Is Our Criminal Justice System Fair for Defendents?
On the surface, our system claims to uphold the right to due process, however, when delving deeper into aspects such as pre-trial procedures and jury trials, holes arise.
Due process stands behind the words ‘innocent until proven guilty’ which is a building block in our adversarial system. Herbert Packer theorised the two models of ‘due process’ and ‘crime control’ to describe the competing values in our criminal justice system. Due process can be described as “at least as much to protect the factually innocent as it is to convict the factually guilty” (Henry, S. and Einstadter, W.J., 2006.,p.61) whereas crime control protects the victim with the insurance of justice being served. On the surface, our system claims to uphold the right to due process, however, when delving deeper into aspects such as pre-trial procedures and jury trials, holes arise.
There are many stages between arrest and trial, which are referred to as pre-trial procedures. Among them includes the assumption of bail where if a person is arrested or accused of a crime, they will be granted bail in the assumption that they will later attend court (Davies, M., Croall, H. and Tyrer, J., 2015) The idea of this operation is within the values of due process as it presumes innocence before proven guilty, however, there are conditions of whether a suspect is provided with bail such as: it’s believed that the defendant won’t show up to court, they may commit another offence, the seriousness of the offence and any previous convictions of the defendant will also be taken into consideration when making a decision. If the defendant doesn’t meet the criteria required for bail and thus denied it, does this not challenge the standard of proof and consequently not adhere to due process values? It can be argued further that if bail is granted, are we taking away the due process rights of the public by putting a possibly dangerous criminal back into society on the holding of the right of presumption of innocence? Jeremy Wright told the House of Commons that 132,000 offences were committed by those when on bail in 2012 (Davies, M., Croall, H. and Tyrer, J., 2015) The granting of bail can be a due process right only on the terms that it isn’t abused. Paul Gambaccini was released on bail for almost a year while his case was reviewed (Travis A., 2015 ‘Paul Gambaccini: police used me as a’flypaper’ for almost a year) and although, presuming an adequate amount of innocence by the court to realise him, this in turn resulted in the violation of substantive due process by Art 3 European Convention on Human Rights where it can be argued that it was degrading treatment to retain Mr. Gambacci on bail for an extensive period of time. If bail isn’t granted, and the defendant is remanded in custody, they can experience certain privileges such as having a ‘taste’ for prison which can perhaps act as a mitigating factor in their trial. In general, bail and remands in custody are within due process.The Police and Criminal Evidence Act 1984 (PACE) Code C is the Code of Practice for the detention, treatment and questioning of persons by police officers. In this code, due process is served in a variety of ways such the ‘appropriate adult’ for juvenile suspects where an adult is assigned to a child to essentially act as a substitute parent(1.7 a), mentally and physically vulnerable persons are taken into consideration(1.7 b), suspects are even entitled to a copy of the Code to review their rights (1.8 b) Another important aspect of pre-trial procedures would be the Plea and Trial Preparation Hearing (PTPH) which occurs for Crown Court trials and is aimed at reducing the need for multiple hearings. The indictment will be read to the defendant and they will hence be asked if they plead guilty or not guilty. If plead not guilty, further organisation will be set for the trial and if plead guilty, the sentence will decided there (Justice Gov, 2015) Guilty pleas can result in the negligence of due process rights for both the prosecution and the defence as it almost disregards Art 6 of the Human Rights Act 1998- the right to a fair trial; when pleading guilty, there’s no need for a trial and the defendant will be convicted, thus not having the opportunity to provide any evidence proving innocence and any evidence will not be cross-examined to point of it being conclusive, which can be a value of crime control. However, under the s.144 Criminal Justice Act 2003, a defendant can expect a reduction in their sentence for a guilty plea, the reason for this being is there’s not longer a need for a trial and the expenses can be disposed elsewhere.
On the other side of the process, jurors act an impartial tribunal in deciding whether the defendant is guilty or not guilty in indictable cases within the Crown Court. In England and Wales, juries make up 12 lay people who must reach a verdict on the basis of the information only given in court (Sanders A., Young., R and Burton M., 2010) The first problem that arises within this are the difficulties of our comprehensive justice system on a lay persons mind. Would it not be a breach of the Human Rights Act (HRA)1998, Art 6 `(1) ‘The right to a fair trial’ to expect those with no legal training to have the ability to not only understand the information that they are given, but give these people the power to take away someones freedom? In the 2013 trial of Vicky Price, the judge described the jury as having “fundamental deficits in understanding” after they couldn’t reach a verdict on over 15 hours of deliberations (Davies C., 2013 The Guardian) It’s difficult to expect the level of professionalism and critical thinking from those who have never had any experience, education or training within our justice system and have them make life-altering decisions. A 2013 UCL study conducted by Cheryl Thomas found that 23% of jurors are unsure about rules surrounding the internet in fact whilst serving as a juror in Luton Crown Court, Lecturer Theodora Dallas researched the defendant and was later arrested and jailed (Bowcott, O., 2012 Juror jailed over online research) However, by allowing professionals such as a judge or a bench of judges to come to a verdict be taking away the due process rights of from the public as a 2005 British Attitudes Survey found that 72% of the public believed that trial by jury to be a very important legal right? On the other hand, juries can be beneficial to due process values. It’s been ongoing argument that jurors can present a biased opinion when making their decision, which, again, contrasts with HRA 1998 Art 6 (2) ’the right to a fair trial’ however, a 2010 study from the Ministry of Justice have shown that jurors that not more likely to convict a BME defendant than a white defendant ( Ministry of Justice, February 2010, p15) In fact, jurors have the ability to reach an ‘equity verdict’ in which they will reach a decision contrasting the law if they feel that the law is unjust.
Pre-trial procedures such as bail, remand in custody and pre-trial and preparation hearings and jury trials, on a basic level, adhere to the values of the due process model. The granting of bail provides the defendant with the standard of proof yet the refusal for bail, and instead being remanded in custody, does the opposite in which we must ask the question of whether that challenges the fundamental value of the due process system of the ‘presumption of innocence before proven guilty’? A guilty plea can result in due process laxity by taking away the right to challenge evidence in a court of law thus the defendant not having been proven guilty but instead presumed on the basis of his words. Jury trials have been a point of dispute in whether they are fair and it has been found that jurors tend to be just that, outwardly showing belief of due process values within trial by jury, however, juries are made up of lay people and so we are putting the weight of deciding guilt in the arms of those without legal training, how can we then provide a fair trial to a defendant when his life and freedom will be determined by those, evidentially proven within the aforementioned points, to be unbeknownst to the labyrinthine of our criminal justice system? It is practically impossible to give the defendant, the victim, the public and the state their rights, by giving one their due process, we essentially take away that from another, therefore elucidating that the values of the due process model cannot be adhered to fully within pre-trial procedures and jury trials.
Bowcott O., 2012, ‘Juror jailed over online research’ The Guardian (online)Available from: https://www.theguardian.com/law/2012/jan/23/juror-contempt-court-online-research
Criminal Justice Act 2003, Section 144 [online] Available at: https://www.legislation.gov.uk/ukpga/2003/44/section/144
Davies, C. (2013) ‘Vicky Pryce faces retrial after jury ‘fails to grasp basics’ The Guardian. (online)Available from: https://www.theguardian.com/uk/2013/feb/20/vicky-pryce-retrial-jury
Davies, M., Croall, H. and Tyrer, J., 2015, Criminal Justice, Harlow, Pearson Education Limited
Henry, S. and Einstadter, W.J., 2006. Criminological theory: An analysis of its underlying assumptions. Maryland, Rowman & Littlefield Publishers.
Human Rights Act 1998, Article 6. Available at: https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/5
Justice Gov, 2015, Plea and Trial Preparation Hearings- Introduction and Guidance [online] Available at: https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/october-2015/cm007-eng.pdf
Police and Criminal Evidence Act 1984, Code C. [online] Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/117589/pace-code-c-2012.pdf
Sanders A., Young R. and Burton M., 2010, Criminal Justice, Oxford, Oxford University Press.
Sentencing Guidlines Council, 2007, Reduction in Sentence for a Guilty Plea [online] Available at: https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction_in_Sentence_for_a_Guilty_Plea_-Revised_2007.pdf
Travis, A., 2015, Paul Gambaccini: police used me as ‘flypaper for almost a year’, The Guardian. Available at: [online]https://www.theguardian.com/media/2015/mar/03/paul-gambaccini-police-flypaper-for-almost-a-year-abuse-mps-bail-limit
