The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial 9781472564153, 9781841136981

The criminal trial is under attack. Traditional principles have been challenged or eroded; in England and Wales the righ

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The Trial on Trial: Volume 3: Towards a Normative Theory of the Criminal Trial
 9781472564153, 9781841136981

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Preface This book is the final published product of a research project on the criminal trial, funded by a grant from the Arts and Humanities Research Council. Two other books, of articles based on papers given and discussed at workshops during the project, have already been published by Hart Publishing (The Trial on Trial 1: Truth and Due Process, 2004; The Trial on Trial 2: Judgment and Calling to Account, 2006); this third book marks the four authors’ collective attempt to bring the whole project to fruition by providing at least the outlines of a plausible normative theory of the criminal trial. We are grateful to the Arts and Humanities Research Council for the grant that made this project possible, and to our own universities for the further material and administrative help that they provided—the University of Stirling and the Stirling Department of Philosophy; the University of Glasgow and the Glasgow Law School; the University of Edinburgh and the Edinburgh Faculty of Law; the University of Warwick and the Warwick Law School. Above all, however, we are grateful to all those who took part in the various workshops and monthly meetings around which the project was structured. Some gave papers, some commented on others’ papers, some commented on earlier drafts of chapters of this book, and some did all three: collectively they made an invaluable contribution to the project, and to all three of the books that it has now produced; apart from the ideas, arguments and criticisms that they offered, they showed how fruitful, and enjoyable, this kind of interdisciplinary work can be. They are, in alphabetical order—Sarah Armstrong, Andrew Ashworth, Zenon Bankowski, Michael Brady, Robert Burns, Michelle Burman, James Chalmers, Emilios Christodoulidis, Andrew Choo, Erik Claes, Sherman Clark, Rowan Cruft, Lawrence Douglas, Markus Dubber, Peter Duff, Evi Girling, Stuart Green, Klaus Günther, Alastair Henry, Mireille Hildebrandt, Jacqueline Hodgson, Jeremy Horder, Tatjana Hörnle, Neil Hutton, John Jackson, Heike Jung, Dudley Knowles, Nicola Lacey, Gerry Maher, Matt Matravers, Claire McDiarmid, Jenny McEwan, Richard Nobles, Antje Pedain, Duncan Pritchard, Mike Redmayne, Paul Roberts, Bert van Roermund, Burkhard Schafer, David Schiff, Wendy Schneider, Bruce Smith, Marion Smith, Richard Sparks, Sarah Summers, Stephen Tierney, Adam Tomkins, Scott Veitch, Thomas Weigend, Olav Wiegand, William Wilson. We are also extremely grateful to Rex Ferguson for his assistance in preparing the final manuscript.

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vi Preface When authors thank others for help in writing a book, it is conventional to emphasise that such mistakes, confusions and nonsense as remain are entirely the authors’ responsibility, although Joel Feinberg sometimes blamed his mythical colleague Josiah S Carberry. We have no Carberry to blame, and realise that many of those listed above will regret that we did not accept more of their advice; but we hope that the book will, together with the two previous volumes and the seminars and workshops from which they emerged, stimulate further debate, and thus further progress in the important task of developing an adequate normative theory of the criminal trial. RAD/LF/SEM/VT

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1 Introduction Theorising the Criminal Trial 1.1.

THE TRIAL UNDER ATTACK

T

HE CRIMINAL TRIAL is under attack. The attack takes four forms. First, principles which were once considered sacred and are central to the traditional conception of the trial are now being challenged or eroded. In England and Wales, the right to trial by jury has been restricted and the role of the judge altered, with the aim of the more efficient management and processing of cases. Rules concerning bad character evidence, double jeopardy and the right to silence have been substantially altered, purportedly in the name of rebalancing the system in favour of the interests of victims. Political momentum behind this ‘rebalancing’ gathers apace and threatens to erode traditional conceptions of the criminal trial still further. Second, the pursuit of security, particularly from terrorism, has been used to justify denying some people the right to a fair trial altogether, whilst still subjecting them to what looks very like punishment. The right to a fair trial is protected by Article 6 of the European Convention on Human Rights (ECHR), which was given domestic effect through the Human Rights Act 1998, but the government is either routinely derogating from this right or avoiding established procedural protections in cases of this sort. It is at best ironic that the government which supported that right through the Human Rights Act should be taking such steps to undermine it. Detention is authorised without anything resembling a full public trial process—without public scrutiny of the conditions that supposedly justify it, without the kinds of right or protection to which criminal defendants are normally entitled, and with only attenuated appeal procedures. Detention without trial has led to unprecedented public debate, engaging politicians, academics and the wider public, about the rights of citizens who are suspected of engaging in criminal activity. Much of the political and academic reaction to detentions in Guantanamo Bay and Belmarsh prison presupposes the importance of the right to a fair trial as a necessary prelude to legitimate imprisonment and to the security of the citizen: but

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that presupposition has come under attack from those who argue that ‘the war on terror’ requires that right to be qualified, if not suspended, in the interests of security. Third, to tell a story with which criminal justice scholars have become familiar, contested trials have for a long time been relatively infrequent occurrences, since most criminal convictions follow from a guilty plea. Contested trials, it is often pointed out, are not central to the criminal process, at least if centrality is understood quantitatively. So whilst there is a very public struggle over the future of the criminal trial, there is also a less publicly observed, but no less important, controversy about the significance of trials in modern society. Some would argue that this is almost the beginning of the end for the central position that contested trials once had in the criminal justice system. Contested trials will be exceptions to the norm of administrative procedures which, aimed as they are at bargains, agreements and cost-effective management of cases and of offenders, lack most of the central and significant features of trials.1 Finally, trials are under what we might call normative attack. The value of trials is increasingly called into question by those demanding different kinds of process—such as those of reconciliation or restoration—that are intended to address more profoundly the needs of victims to be part of the process as well as to move away from the imposition of state power through trials and punishments. Trials and punishments, it is argued, are fundamentally destructive of social relations, since they are aimed at, or at least bring about, the social exclusion of offenders in response to a vindictive retributivist impulse. We can see, then, that there is a range of controversies about criminal trials, about the rules and principles that should govern them, about when the right to a fair trial should be available, about their social significance and about their normative value. Given the heat and intensity of these different debates about trials it is surprising that normative theorising about criminal trials remains in an embryonic state. Whilst substantial progress has been made in normative theorising about criminal justice, notably about criminal responsibility and about punishment, much less progress has been made in developing a normative theory of the criminal trial. This is unfortunate, for if we are to defend the criminal trial against the kinds of attack noted above, or alternatively to argue in the light of such attacks that it should be radically reformed or that its scope and significance should be reduced, we need to have some idea of the aims that criminal trials should serve, of what significance they have or should have as part of a system of criminal justice, and of the principles and values that

1

See Weigend, 2006.

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The Trial under Attack

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should structure them. We need, that is, a normative conception or theory of the criminal trial, which can then underpin a sustained and systematic critique both of our existing practices and of proposals to reform them. Since the criminal justice system is perhaps the most powerful tool that the state has to control its citizens, the lack of normative theorising about criminal trials can only be seen as regrettable. This book develops a normative theory of the criminal trial. The core of that theory is the idea of calling to account: the criminal trial, we argue, is a process through which defendants are called to answer a charge of criminal wrongdoing and, if they are proved to have committed the offence charged, to answer for their conduct. If the defendant is found not only to have committed the offence, but to have no defence, he is condemned through a guilty verdict which holds him to account for his wrongdoing. This account portrays a criminal trial as a communicative process that calls the defendant to answer, and through which he can challenge the accusations of wrongdoing made against him, including the norms in the light of which those accusations are made. The trial is a communicative forum which involves mutual relations of responsibility between the participants. We develop this account of the trial both in the light of its history, and by contrasting it with some familiar alternatives, including instrumentalist accounts and accounts based on the protection that trials give to defendants against the power of the state. The history of the trial illuminates the normative questions concerning trials that we address later in the book by showing how our understanding of the trial has come to be organised around certain themes, and how these are related to forms of social organisation. In the light of that history, we go on to show that the alternative accounts of the trial are at best partial and that the values to which they appeal are better integrated into our more ambitious account. The structure of the book is as follows. In Part I, we provide a schematic history of the development of some key features of the criminal trial, and of the controversies to which they gave rise (we draw primarily on the history of the trial in England and Wales). In Part II, we outline the communicative theory of the trial that we favour, and defend it against alternative models. We also show how a range of intuitively plausible doctrines, rules and principles, for example regarding the role of the defendant and the exclusion of improperly obtained evidence, are best understood in the light of this communicative account. In Part III, we address some fundamental issues concerning the structure and operations of criminal trials, taking up some of the issues that we discuss in a preliminary fashion in Part II, to show in more detail how the general theory that we defended in Part II can deal with them. Chapter six discusses the role and significance of full, contested criminal trials, in the light of widespread practices of plea bargaining and by comparison with alternative practices of regulation and penalty. Chapter seven discusses the

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roles of different participants in the trial: building on the initial discussion in chapter four of the defendant’s participatory role, we consider the proper roles to be played by complainants, witnesses and decision makers, as well as defendants. Chapter eight is concerned with the integrity principle, the principle that the norms at trial cannot be separated from norms of investigation. We discuss entrapment, and develop the discussion of wrongfully obtained evidence that we introduced in chapter four, but also raise the question of what should be considered as evidence at all: building on our earlier discussion of previous convictions, we suggest that previous convictions should not be considered as evidence. Chapter nine is concerned with the public character of trials: we question the instrumental rationales that have been offered for public trials, and argue that the best rationale is that public trials allow critical public scrutiny of the participatory processes of the trial. Finally, chapter ten discusses some possible limitations of the criminal trial, in particular in relation to security, to the use of amnesty procedures in periods of political transition, and to ideas of restorative justice. In the remainder of this Introduction we address two preliminary questions. First, why develop a normative theory of the criminal trial? We consider various possible challenges to the significance of a normative theory of the trial. Some of those challenges are linked to the attacks on trials outlined above. But there is also the challenge of a simple orthodox theory—the belief that the aims and functions of the trial are already clear—that might be thought not to require further defence. Secondly, if there is good reason to generate a normative theory of the trial, what should be our methodology? Should we develop a general theory to be applied to all trials or should we begin more locally than that? Here we will defend a certain degree of parochialism, at least in how we build the theory, if not in its final application.

1.2.

WHY DEVELOP A NORMATIVE THEORY OF THE CRIMINAL TRIAL?

Although there is plenty of normative theorising about particular aspects of the criminal trial, in relation to, say, the law of evidence or aspects of criminal procedure, theorists have shown relatively little interest in developing overall normative theories of the trial. We are offered general theories of criminal responsibility, for instance, or of criminal punishment, but are not in the same way offered general theories of the criminal trial. Why is this so? One answer might be that the trial’s central justifying aims seem obvious. Trials, it might be argued, aim to establish the truth. They aim to establish whether defendants committed the offences with which they have

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been charged as defined by the criminal law, whether they are entitled to any defence, and to determine whether they can be punished. Trials are thus of purely instrumental value: they serve the more fundamental interest that the state has in establishing whom we can justly punish for their crimes.2 Let us call this the standard account.3 Even on this account, other values serve at least to restrain the main aim of the trial. Defendants have various rights which must be protected, partly in order to ensure that verdicts are accurate, but also to ensure that accurate verdicts are sought with a proper degree of respect for the defendant as a citizen. It will often be unclear whether a particular norm of the criminal process is intended to serve accuracy or whether it acts as a restraint on the pursuit of accurate verdicts. For example, is hearsay evidence excluded, on this account, because hearsay evidence tends to be inaccurate, or is it because defendants have the right to confront their accusers? This is the kind of debate about particular doctrines of criminal evidence and procedure that will be familiar to evidence scholars and scholars of criminal justice. Two key features of such debates, for our present purposes, are that they tend to presuppose a version of the standard account; and that the rights to which they appeal as possible constraints on the pursuit of truth are independent of any particular conception of the trial. Given this standard account of the criminal trial, one can see why there is no general theory of the trial, but rather theories of different aspects of trials. Various different features of the criminal trial can be evaluated independently, in terms either of the promotion of accuracy or of the protection of defendants’ rights. Theorising about the trial then quickly fragments into theorising about particular evidential and procedural questions, for instance about whether the contribution that a practice or rule makes to the probative values of the trial is outweighed either by its prejudicial potential or by particular rights of the defendant. A general theory of the trial would, on this view, be a very simple affair: trials aim to establish the truth about whether the defendant is guilty of the crime charged, by procedures that serve that aim whilst also respecting the rights of defendants and others. Substantial debates will then be focused on particular features of the trial, particular principles, rules and policies, and especially on different ways in which the pursuit of truth might conflict with respect for rights. Such debates do not then either draw on or develop a rich theory of the trial: they are rather concerned with conflicts between

2 See, eg, Roberts, 2006; Ashworth and Redmayne, 2005: ch 2. Versions of what we call the standard account are, of course, more sophisticated than this, and we will attend to some of them in later chapters: for the moment, however, this crude portrayal is all we need. 3 cf Burns, 1999: ch 1 who describes what he calls the ‘received view’ of the trial as a formal process of fact-finding and rule application governed by external rule of law principles.

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the simple aims of the trial, as portrayed in the standard account, and other normative values and demands, in particular those grounded in rights, independent of the trial. Ultimately, we will suggest that the standard account of criminal trials is inadequate as an account of what trials ought to be, and perhaps even of what they are currently understood to be. If the standard account is to be shown to be adequate, we suggest, then it will need to be defended by developing a general theory—defended in a way that it has not typically been to date. Here, however, we simply note that this account begs a number of questions that need to be addressed in order to develop an adequate normative account of the trial. First, although almost everyone will agree that trials have epistemic ambitions (even if some are sceptical about whether those ambitions can be fulfilled),4 a question remains about what the trial’s epistemic aim is or should be. Is truth the ultimate aim sought, or is truth part of some more ambitious aim that the trial might have? Is the aim merely to establish the truth of a fact or set of facts about the defendant, as the standard story suggests? Or does a criminal conviction have normative significance, such that it can be justified only if the court can be normatively committed to the verdict? For example, if the trial involves what Hildebrandt calls ‘case-to case reconstruction of legal norms’,5 does it not also involve commitment to those norms, and consequently require more than an investigation into whether the relevant facts obtain? If this is the case, although the trial would be required to prove certain facts about the defendant’s conduct to justify a conviction, that would only be part of a more ambitious enquiry into whether the defendant’s conduct violated a norm which the court ought to affirm. Until we know what trials are for, whether they are merely for identifying those who are to be subject to punishment, as the standard story has it, or whether they have independent intrinsic significance, we cannot identify or articulate the fundamental principles that should structure criminal trials and determine what kind of trial practices are appropriate. Second, there is a question about the relationship between the epistemic aims of the trial and the process through which those aims are pursued. It is generally accepted that defendants have various ‘process rights’, and that if those rights are violated in pursuit of their conviction they have been wrongfully convicted, regardless of whether the epistemic aims of the trial are satisfied. But should we see these process rights as independent of the epistemic aims of the trial, or are the two intimately related? Should we see

4 5

See Nobles and Schiff, 2006. Hildebrandt, 2006: 36.

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some or all of the defendant’s process rights as generated by the trial’s central purposes, or rather as constraints on the pursuit of those aims? Resolving this second question will be essential if we are to evaluate the status of interferences with the defendant’s rights. Is the violation of a defendant’s process rights to be balanced against the good of accurate convictions, if this is taken to be the aim of the trial? (This seems to be assumed by some of the jurisprudence of the European Court of Human Rights on the right to a fair trial, as well as much of the political debate surrounding criminal trials).6 Or should we see the very aims of the trial as having been undermined when a process right is violated?7 Our answer to these questions may differ with respect to different rights possessed by the defendant. Some rights may be generated by the aims of the trial itself, whereas others provide constraints on the pursuit of that aim. Only by clarifying the aims of the trial can we appreciate this distinction, an appreciation which is essential to evaluating the normative significance of different rights. There are thus two reasons why we need to look beyond what we have called the standard account, towards a more thoroughly grounded general theory of the criminal trial. The first is that without answering these questions we are unable to see whether or not the standard account of the trial’s aims is adequate. Second, only then can we give a principled account of the various process rights that defendants are taken to have, and respond adequately to the controversies that surround some of those rights—such as the right of silence, the right to confront witnesses, the right not to have one’s criminal record used as evidence and the rights embodied in the presumption of innocence. Our argument so far suggests that there are significant gaps in the standard theoretical account of the trial and that there is for this reason a need to develop a general normative theory of the criminal trial. However, another reason why there might be a lack of interest in a general theory of the criminal trial is the reason we noted earlier—that trials are now commonly supposed by criminal justice scholars to lack the significance popular imagination gives them. Whilst the contested jury trial continues to dominate public perceptions of the criminal justice system, such trials are in fact comparatively rare. The vast majority of criminal convictions result from a guilty plea by the defendant as a consequence of plea bargaining. Of course, mere quantitative rarity does not establish the normative or practical insignificance of contested trials, and there are four ways in which we might defend their significance even in the light of the prevalence 6

See Trechsel, 2005; Summers, 2007. See, eg, Ashworth, 2002a, for a critique of the balancing approach. For an exploration of the distinction in the context of the presumption of innocence, see Tadros, 2007. 7

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of bargained guilty pleas. First, contested trials still occur with relative frequency in relation to the most serious offences.8 Even if trials do not dominate the whole criminal justice landscape, they can still be very important when it comes to offences with the greatest stigma and the greatest practical consequences for the defendant. Second, even if the defendant does not contest a criminal charge, it is essential that he has a right to a fair trial, that he could contest the charge if he so wishes. We then need to investigate both what should count as a fair trial for these purposes, and what conditions must be met to ensure that the defendant has a right to a fair trial. On the latter question, the most significant issue will be whether it is consistent with the right to a fair trial to offer defendants inducements in terms either of charge or of sentence to plead guilty (and consequently disincentives to contest the charge). Third, even if contested trials are rare, we should not underestimate their significance for the rest of the criminal process. Trials, to use a standard metaphor, cast a long shadow over the whole criminal process. In this particular context, it is worth emphasising that when defendants engage in a plea bargain, their bargaining power will be in large part determined by the likely consequences of going to trial. Ensuring that trials are fair will be a necessary if not sufficient condition for ensuring that any plea bargaining is fair. A plea bargain could not possibly be fair if the defendant was faced with the threat of an unfair trial. We will address this question in detail in chapter six. Fourth, and most importantly, the whole question of whether plea bargains are justified depends on the aims of trials. Where there is a guilty plea it is not that there is no trial. There is just no contested trial.9 A guilty plea, we will argue, results in a very truncated trial. As we will see later, how we should understand guilty pleas is a significantly contested question which itself depends on how we should understand the trial. However, if we are to determine whether guilty pleas should even be allowed, and the circumstances under which they should or should not be accepted, we need

8 This broad claim should be qualified. As Ashworth and Redmayne (2005: 267) point out while guilty plea rates are low for sexual offences (36%) and offences of violence (55%), there are relatively high rates of guilty pleas for certain types of serious crime (eg burglary and drugs offences). These differences probably do not reflect offence seriousness but are related to difficulties in ensuring that witnesses testify and the role of the police in detecting the crime. 9 Some would say instead that a guilty plea pre-empts the trial: the defendant’s formal plea comes before the trial, which goes ahead only if the plea is ‘Not Guilty’ (we are grateful to Michelle Dempsey for this point). Theorists’ usage differs on this point: contrast eg Sprack, 2006: 275 (‘A trial on indictment begins with the arraignment’) with Ashworth and Redmayne, 2005: 264 (‘If the defendant pleads guilty, there is no trial’). However, for reasons that will become clear later (see below, ch 3 n 7), we take the trial to begin when the charge is formally put to the defendant, who must then plead ‘Guilty’ or ‘Not Guilty’.

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a normative theory of the trial which will show how guilty pleas relate to the proper aims of the trial. Far from establishing the irrelevance of a normative theory of the trial, then, the problem of plea bargaining only strengthens the need for such a theory. A further objection to our focus on criminal trials might come from those interested in restorative justice. For some who promote restorative justice, the criminal justice system cannot provide adequate solutions to the problems of criminal wrongdoing, since it fails to meet the concerns that we should have about both offenders and victims of crime. Trials and punishments tend to lead to the social exclusion of offenders rather than to their reintegration into society. But trials also exclude the needs of victims who, in Nils Christie’s memorable phrase, have their conflicts ‘stolen’ by the state.10 What we should be focusing on, the argument might go, is the proper way to address the needs of both wrongdoers and of victims of wrongdoing. Here it is first worth noting that the distinction between trials and punishments on the one hand and restorative justice on the other is by no means clear or sharp.11 Before we can evaluate restorative justice as an alternative to the criminal process, we need a clear sense of what trials can and should be. Any form of process following on from wrongdoing must presumably have both a means of establishing accurately that the person charged committed the wrongdoing and (for the reasons given above) be committed in the relevant way to the appropriate norms—both of which are central features of the criminal trial. The debate about the relative merits of restorative justice and the criminal process must therefore be informed by a theory of the trial, and we will suggest that once we are clear about what criminal trials should become, criminal justice will often provide a more plausible response to public wrongdoing than does restorative justice. This is not to say that there will be no room at all for restorative justice as an alternative to criminal justice, but that the main responsibility for calling individuals to answer for public wrongdoing should rest with the criminal justice system. In making the case for trials, we will address a number of the concerns of restorative justice scholars, particularly regarding participation and communication in the trial, and will suggest that there is good reason to develop a communicative model of criminal trials, as an essentially public process. Once the public nature of criminal wrongs is properly understood, we will argue, at least some of the concern about the exclusion of victims from the process should begin to evaporate. Public wrongs, we suggest, should not primarily be seen as wrongs against the state, but rather as

10 11

Christie, 1977. See von Hirsch et al, 2003 for relevant discussion.

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wrongs which the public are appropriately concerned with prosecuting and condemning; central to that concern is precisely a concern for the victim.12 We consider the relationship between criminal trials and restorative justice in more detail in chapter ten. 1.3.

METHODOLOGY

To talk of ‘a normative theory of the criminal trial’ might suggest that we aim to establish an account of those aims and values that will be universally applicable across all times and all places—a theory that will apply to anything that counts as a criminal trial, whatever its legal, political or historical context. But that is not our aim, since we share the suspicions that many theorists have voiced at such attempts at ahistorical, a-contextual normative theorising. Our aim is rather, more modestly, to develop a normative theory that is appropriate to the context in which it is formed and will be applied—that of a twenty-first-century state that purports to be democratic and to respect the set of roughly liberal values that, whatever the controversies about their precise meaning and application, are the common currency of contemporary legal and political debate. We will need to explicate some of those values and their implications for the criminal trial, and in so doing we will be able to show how they can ground a normative theory that has real critical bite: but we will not seek to justify those values themselves. Given that we develop our normative theory in this book primarily by building out from a conception of adversarial trials as they developed historically in England and Wales, it is necessary for us to say something about the relation between adversarial and inquisitorial systems and how it bears on our theoretical ambitions. In any kind of work on the trial or criminal procedure, it is difficult to avoid the distinction between adversarial and inquisitorial systems. This distinction is commonly used to classify different systems of criminal procedure based on factors such as the role of the judge, the degree of party control over proceedings, the relative importance of written and oral argument, and the supposed attitude towards ‘objective’ truth.13 The first point that must be made about this distinction is that it is a crude tool for classifying systems as the terms of the classification are vague and outdated.14 More importantly, even when it is deployed with a relative degree of sophistication, its usefulness as an analytical tool can be 12

See also Marshall and Duff, 1998. The classic analysis is in Damaška, 1973 and 1986. For a critical review and analysis of the uses of this distinction see Summers, 2007: ch 1. 14 Nijboer, 1993: 303, for example, asserts that there are no inquisitorial systems in modern Europe. 13

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questioned. Taking this distinction as a starting point means that developments are seen as movement towards or away from a particular form— something that is either welcomed or viewed with horror, depending on the views of the particular writer. As Summers notes ‘the issue of whether there are actually significant differences between the systems is left unaddressed’.15 For this reason we have preferred to avoid this terminology wherever possible, focusing instead on more fundamental issues relating to the aims and values of the criminal trial, such as the process of calling to answer and the norms of participation. For the most part, then, we leave open the question of the extent to which a normative theory that is developed in this way can be applied to other systems, and particularly those which place greater emphasis on the role of the examining or investigating judge or magistrate. Our primary reason for this is that the relationship between the trial and the rest of the criminal process may be fundamentally different in certain systems, depending for example on who investigates the crime (police or magistrate), such that it is hard to conceive of the trial as the continuous oral hearing that is characteristic of the English system. For this reason, it is unlikely that the normative theory that we develop can, in a very simple and straightforward way, be transplanted into other systems. That is not, of course, to say that none of that normative theory is relevant to these systems. Rather, it is to say that the realisation of the principles and norms that we defend might be quite different as between different procedural traditions. What we aim to do, then, is to develop our normative theory in the social and historical context that is particular to the modern adversarial trial. We do this both in order appropriately to restrict the theory’s ambitions, and to ensure that our assumptions about the criminal trial, which themselves are likely to rest on our understanding of the institution that we are most familiar with, can be subjected to critical scrutiny. This approach, thus, allows us to ground our theory effectively in its historical context, as our theory of the trial is developed through historical scrutiny of a particular system. This history is aimed at uncovering the normative patterns and commitments that have informed and shaped— however unconsciously—the development of the trial in England and Wales, and to show also how these are connected to the development of other social and political institutions. It is not intended to offer answers to the question of the aims or values that the trial should pursue by valorising a certain model of trial by jury or the adversarial tradition. It is rather that an attention to how different societies at different times have sought to deal with problems of proving wrongdoing reveals how institutions that

15

Summers 2007: 8.

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we perhaps take for granted have been shaped, and can help us to challenge certain easily held assumptions about their value. The history, in this sense, is intended to be critical, to break down and challenge certain assumptions about the trial before we can begin the process of constructing a normative theory of the trial that is appropriate to this context. The value of the exercise lies in showing the links between particular normative conceptions of the trial and particular political and cultural forms—thus understanding the factors that shape our conception of the trial, as well as the constraints of particular forms. The history that we develop in Part I will, of course, be schematic, focusing on the key developments in criminal trials for our purposes, identifying the development of principles and points of conflict that are our primary concern in this book. In doing so, we draw heavily on the evolving secondary literature on the history of criminal trials. Given the historical and social pressures that underpin the failure of trials to meet their own ambitions, we ought to consider not only what trials should look like in ideal theory, but also how that theory might be realised in practice. It is sometimes suggested that trial by jury is the ideal, but that given the cost and frequency of criminal prosecution, dealing with all criminal prosecutions through jury trial is unfeasible. The institutionalisation of our communicative theory is also potentially costly and time consuming. Could it then be realised in practice? We address some of these concerns in chapter six. We should, finally, note two further limits on the scope and ambition of this book. First, we will have nothing to say about the sentencing stage of the criminal trial: our account of the trial ends with the defendant’s acquittal or conviction. This is not because we think that the significance of the sentencing process is exhausted by its punitive outcomes: we need a normative theory of the procedures through which sentences should be determined and, given our emphasis on the defendant’s participation in the pre-verdict stages of the trial, of the role that the convicted defendant should play in those procedures.16 But sentencing raises a host of issues that go beyond those involved in the pre-sentencing trial, with which we are primarily concerned here: to avoid making this book even longer and more unwieldy than it already is, we must postpone discussion of the sentencing process to another occasion. Second, we will also have almost nothing to say about the pre-trial stages of the criminal process of investigation and prosecution—although we will say something in chapters four (at 4.3 and 4.4) and eight about the implications of investigative improprieties for the legitimacy of the trial, and in chapter six about some of the ways in which cases can be dealt with

16

See, eg, Cavadino and Dignan, 1998; RA Duff, 2001: 158–63.

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without going to trial. Some might argue that this is a mistake: that by focusing exclusively on the trial in this way we exaggerate its importance relative to other aspects of the criminal justice system and other ways in which actual or suspected offenders are processed by such systems; and that a theory of the criminal trial will be useful only if it is part of a larger theory of the criminal process—a process in which the trial is simply one, and not even the most significant, part. One answer to such a criticism is, again, that prudence dictates a more limited ambition for this book: it is enough of a task to develop a normative account of the trial, without at the same time trying to capture the whole criminal process—which is not to deny that, in the end, any adequate normative theory of the trial will need to be integrated into a larger account of criminal law, criminal justice and the criminal process. But a better answer, which meets the charge that in treating the trial separately from the rest of the criminal process that precedes it we distort the role and significance of the trial as a part of that process, is that even if contested trials are relatively infrequent, we can understand the criminal process only in the light of the trials in which it potentially, if often not actually, culminates. Investigatory procedures must be such that the evidence they unearth or produce could be used at a trial; suspects must be treated in ways that are consistent with their status as potential defendants; prosecutorial activities and decisions are centrally concerned with questions about whether to bring this person to trial or not, and on what charge; and so on.17 Rather than understanding the aims of the criminal trial, as this critic suggests, only by first understanding the aims of the criminal process of which the trial is just one part, we will understand the central aims of the criminal process only by first understanding the proper aims of the trial as the paradigm culmination of that process—or so we will argue in what follows. Overall, then, the intention of this book is to build a normative theory of the criminal trial, based on an account of its central communicative purpose as a process through which citizens are called to answer charges of public wrongdoing and to account for their wrongful conduct. We will argue both that the model is attractive in theory, and that it is realisable (albeit, inevitably, imperfectly) in practice. We must thus defend it both against other normative theories of the trial, and against more sociologically oriented critics who doubt whether, at least under modern conditions, trials could possibly serve the communicative ends that we ascribe to them. Such critics might argue that in contemporary bureaucratic states, with high crime rates, trials function only as parts of the administrative processes by which supposedly deviant populations are managed; or that under contemporary conditions of value pluralism and dissensus the trial’s

17

See further RA Duff et al, 2004: 8–17; and ch 6.1 below.

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epistemic ambitions to seek normative truth cannot be realised.18 In chapters five and six we suggest some ways in which these concerns about the potential for legitimate, communicative trials can be met. We hope that this book outlines an account of the criminal trial that is both normatively attractive and practically plausible, and that thus provides a critical paradigm against which our actual trials, procedures and practices can be judged. More modestly, we hope that it will at least encourage further and deeper normative theorising about the proper aims of criminal trials and about the values by which they should be structured. In an age when political and public debate about criminal trials is fierce, but typically superficial, the development of such normative theorising is essential if one of the state’s most powerful weapons, the criminal law, is to be used and controlled in legitimate and appropriate ways.

18

See, eg, Weigend, 2006; Nobles and Schiff, 2006.

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2 Normative Conceptions of the Trial in Historical Perspective 2.1.

INTRODUCTION

Trial by jury ever has been, and I trust ever will be, looked upon as the glory of English law … it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make), but also from all secret machinations, which may sap and undermine it.1

I

T IS HARD not to be impressed by the confidence with which Blackstone defends trial by jury or by the strength of his belief in the superiority of English law. The jury trial is the ‘glory’ of English law, itself a superior system. Its age and fairness is contrasted with the threatened introduction of ‘new and arbitrary’ methods of trial. The ‘secret machinations’ of those who would undermine trial by jury invokes the spectre of the secret machinations of those despotic legal systems that do not respect individual liberty. It is so central to the defence of the liberties of the English, that any attack on the jury is, by extension, an attack on liberty itself. Finally, it is placed beyond challenge by the invocation of the ‘sacred’. It is no ordinary institution, but is invested with spiritual qualities that provide it with both its moral foundations and a shield against attempts to corrupt, undermine or destroy it. It is easy, of course, to dismiss these claims about the jury as mere rhetoric or ideology—and much recent historical scholarship has been devoted to showing precisely how little protection was afforded to the accused in either law or practice by the late eighteenth-century criminal trial jury.2 The criminal law explicitly protected the interests of the landed 1

Blackstone, 1765: iii. 379; iv. 350 (emphasis in original). See principally Langbein, 2003; Beattie, 1986; King, 2000. See also Hay et al, 1975. Blackstone was also criticised by contemporaries, see TA Green, 1985: ch 7. 2

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classes. Those accused of felonies had no entitlement to legal representation and little opportunity to prepare a defence, since they were not informed in advance of the charge against them. Trials were brief and juries more likely to convict than acquit. To be sure, juries exercised some discretion—Blackstone’s famous ‘pious perjury’3—but only rarely, and more rarely still in political trials against the direction of the judge.4 As a bulwark of liberty, the jury trial then, as now, exhibited some serious deficiencies. It would be a mistake, however, to dismiss these kinds of claim out of hand, for they exercise a powerful hold over the Anglo-American legal and political imagination, which continues to invest jury trial with a significance that far exceeds its practical role in the criminal justice system. Even today proposals to reform or limit jury trial are met by arguments that more or less explicitly invoke the Blackstonian view of trial by jury.5 The attachment to jury trial expresses a commitment to a series of other values (fairness, liberty, lay participation, and so on) and a belief in the ability of this institution to represent and protect these values, thus revealing a connection to a set of deeper normative beliefs about the trial as a legal and political institution. Whilst it is one of the larger aims of this book to subject such claims to critical analysis, the more limited aim of this chapter is to clear some of the ground for this process by examining the history of the criminal trial to understand the values that have in fact informed and shaped the development of particular trial procedures, and by placing these kinds of normative belief about the criminal trial in historical perspective. This might appear to be a rather strange exercise for a number of reasons. First, it might be objected that the central normative values that we associate with the trial have always been associated with the trial, irrespective of the particular legal or institutional form in which those values have been expressed in different historical periods: the trial has always, for instance, been concerned with truth—with discovering who did what at a particular place and time.6 On this view, while there may be some historical interest in discovering the different procedures that have been adopted at different places and times for establishing the truth, this can contribute little to our understanding of the value of, or commitment to, truth in itself. Equally, it might be argued that a historical understanding of the changing forms of responsibility and political liberty, or even of the aims of the trial, can contribute little to our normative analysis. A

3

Blackstone, 1765: iv. 239 (see also 354–5); see Beattie, 1986: 424. See Stephen, 1883: i. 571. See the discussion in RA Duff et al, 2004: 3–8. For the view that such claims are purely rhetorical see Darbyshire, 1991; for a contrary view, see Redmayne, 2006. 6 For a contrary view, arguing that the nature of truth in the trial itself changes as the form of the trial changes, see Foucault, 2000. 4 5

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second objection might be that the history of the trial is a movement from superstition or enchantment towards increasingly rational and fair procedures. On this view, a history of the trial might illuminate the process of movement towards the fair and the rational, and the ways in which particular institutions or procedures have helped or hindered the instantiation of those core values, but cannot alter our understanding of these values themselves. However, the history of an institution like the trial is not one of linear development towards either its modern form or a particular set of values. Rather, we would argue, historical changes in the structures and procedures of the trial have been accompanied by changed understandings of the values and concepts that inform the trial—of what counts as proof, for instance, or of how responsibility should be constituted or liberty understood; an awareness and understanding of these changes must inform our attempt to develop a normative theory. A different kind of objection can be found in the influential work of John Langbein, who has studied the development of the English criminal trial between the seventeenth and nineteenth centuries.7 He argues that since the Anglo-American adversarial trial is the product of piecemeal changes in procedure and practice, there is no underlying normative conception of the criminal trial whose development we might trace. Indeed, he sees the development of the criminal trial as the ‘story of how we came to live under a procedure for which we have no adequate theory’,8 and argues that the development of the adversary trial raises the theoretical challenge of ‘how to justify the truth-impairing tendencies of a procedure that remits to partisans the work of gathering and presenting the evidence upon which accurate adjudication depends’.9 Langbein sees the task of normative theory as being that of justifying, where possible, the particular institutional arrangements under which we live (or, more probably, discarding or reforming unjustifiable institutions and procedures in favour of institutions which can be justified). There are two points to make in response to this view. First, Langbein’s account of the development of the modern adversary trial is explicitly seeking to discover the origins of what he sees as the defects of the modern American trial, described as the ‘wealth effect’ (that wealthy defendants with access to lawyers are able gain advantages and thus distort trial outcomes) and the ‘combat effect’ (that adversary procedure is an inefficient means of discovering the truth).10 It is clear that for Langbein the

7 Principally Langbein, 2003, but similar views are expressed in a series of articles on the history of the trial published over the last 30 years. See, eg, Langbein, 1974, 1978, 1983. He responds to criticisms of the sort we are making in Langbein, 2005. 8 Langbein, 2003: 9. 9 Langbein, 2003: 8. 10 Langbein, 2003: Introduction.

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whole process is continually being measured against what he takes to be the proper aim of the criminal trial: the discovery of truth by procedures such as those that are typical of continental European legal systems. It is also clear that his criticisms are underpinned by an implicit normative commitment to values of fairness and truth. From a historical point of view this is distracting, since it is not always clear whether Langbein is seeking to reconstruct the normative underpinnings of a particular historical development, or bringing his own, contemporary, views to bear on a historical debate. Second, and more importantly, his work suggests that the modern trial has been shaped historically by successive attempts to restore a balance between prosecution and defence that is continually being put under pressure by the practices of lawyers and other courtroom actors. It is thus arguable that, on his account, there is an implicit normative concept of ‘balance’ at the heart of the historical development of the trial, even if this was rarely articulated by contemporaries—hence the recognition of a need to ‘even up’ between prosecution and defence to prevent either side from developing a permanent advantage.11 An understanding of this kind of underlying normative conception can be more valuable to the development a normative theory than abstract principles or epistemic aims taken out of context such as truth and fairness, since it places the development of the trial in its specific legal, political and social context. Yet this idea of fairness or balance will not take us very far, since we must additionally look at the question of which actors were considered to be part of this balancing process and why, and this will require some examination of principles and ideas such as autonomy, citizenship, standing and so on, as they may be realised in context. Thus, while there has historically been little discussion of the normative structure of the trial, the development of the trial as an institution responds to and in turn shapes broader social changes in understandings of the political and legal subject, of the role of the law and legal institutions, of the definition and protection of political liberties, and of the capacity of the trial to determine or reconstruct the ‘truth’ of particular events. In this chapter we discuss the main stages in the development of the criminal trial and relate these to the broader normative understandings of the institution of the trial. This history of the trial will necessarily be schematic, and for practical reasons will focus on the main stages in the development of the criminal trial in England and Wales up to about 1900—though for reasons we have already given we should not be understood as making any claim about the superiority of what has come to be known as the ‘adversarial’ mode of

11 An example might be the idea that truth is best discovered by confronting defendants with the charge and the evidence at the trial, rather than allowing them to see the charge and witnesses in advance and to prepare a defence. Langbein sees this model as being ‘unbalanced’ by the entry of the lawyers: see Langbein, 2003: ch 1; Beattie, 1986: 350–1.

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trial. The final section of the chapter will briefly consider more recent developments, but these will mainly be discussed as and when appropriate later in the book. The history, however, provides an essential backdrop to thinking about trial procedures in the English-speaking world, and is essential to the development of our critical understanding of the criminal trial more generally. It will also, of necessity, focus on the jury, at least in the early stages of the development of the criminal trial, since the early history of the trial is to a great extent the history of the jury. However, when we come to more recent history, the focus will broaden, and the jury will move to the margins of the picture. We will analyse the history of the trial in terms of two broad themes, which also reflect two different underlying models. The first of these concerns the development of the trial as an institution that formally limits the exercise of state power. Developments in the trial can then be understood as part of a broader history of the development of the rule of law, according to which the trial institutionalises certain protections or guarantees against the oppressive or arbitrary imposition of state power on the individual (in the particular forms of detention or punishment); the trial thus offers a form of security to the community when there is a mistrust of the state. The second theme concerns different modes of participation in the trial—of the accused, victims, the state, and the wider community—and of the forms that this participation could take. Here the underlying model of the trial is one in which participation and deliberation are understood as being central to the idea of the political community. Although these models allow us to highlight important features of the development of the institution of the criminal trial, we should note that they are not necessarily antithetical to each other and are not intended to be exclusive. We will trace the interaction of these themes through different periods in the development of the trial by focusing on three specific features of the different forms of trial procedure. First, the form of truth seeking. Here we are concerned with what counted as proof that a crime had been committed, how much proof was required, how this proof was articulated, and what was signified by the verdict. Second, there is the question of the roles of the respective actors in the trial and what these reveal about the nature of the legal and political subject. Here we are concerned with the questions of who could speak and who had standing (accused, victim, judge, jury, lawyers and so on). Third, there is the question of how trial procedure is related to the form of political community and how each legitimated the other. We are concerned here with the trial’s place within a set of political and legal institutions for responding to crime, and with the social functions and understandings of its procedures.

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The Trial in Historical Perspective 2.2.

THE TRIAL IN HISTORY, I: FROM PROOF TO TRIAL

Since our interest is in the criminal trial as an organised, public institution for responding to crime, we begin with a brief analysis of the ordeal. Although the ordeal was not, strictly speaking, a trial in the modern sense, since it was not directly concerned with the discovery of past facts or the weighing of evidence or arguments before a tribunal acting judicially, it was nonetheless a forum in which the person accused of having committed a crime was called to account for their actions before the community and before God. It is thus of interest to us in developing an understanding of how an individual might be called to account by, and before, the community. It is also of historical importance because of the theory of proof that operated within the ordeal and its impact on the development of the early jury trial.

2.2.1. The Ordeal ‘Trial by ordeal’ refers to a mode of proof that was widely used throughout medieval Europe before its formal abolition in 1215.12 Attention tends to focus on the ordeal itself—the moment at which the person was put to the test of fire or water—leading some historians to see it as an irrational mode of proof. However, it is important to see this as the end point of a relatively formal judicial procedure. Although there were numerous local variations, historical research suggests that it commonly comprised four stages. First, the accusation.13 This would take the form of a private accusation, in which the accuser was required to establish a prima facie case against the alleged wrongdoer. The accusation had to be established by a body of supporting witnesses who would swear to the genuineness of the causes of complaint (rather than to the facts at issue).14 There was no requirement that the accusation be backed by proof, though where, for example, a thief had been taken in possession of the stolen goods this would give rise to a strong presumption against the accused. Second, there was the stage of negotiation. At this point the accused person could make their defence or could try to settle with their accuser. The court would then determine what form of proof would be appropriate and who should undergo the proof, and in making this decision they would be influenced by the reputation or 12 This section draws primarily on Bartlett, 1986 and Hyams, 1981 and follows their emphasis on trial by fire and by water. 13 After the Assize of Clarendon 1166 the accusation could be brought by a jury of presentment, which could summon those suspected of crime to answer before the Royal justices. See Holdsworth, 1956: i. 321–3; Hyams, 1981: 121–4; Plucknett, 1956: 112–13 has the text of the Assize. 14 See Holdsworth, 1956: i. 300, citing Thayer on Evidence; Hyams, 1981:107–8.

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social standing of the parties as well as the relative strength of their cases. Third, there would be the test itself, in which the person was to submit to a physical challenge. This could take a variety of forms from the swearing of an oath denying the charge (compurgation)15 to, in more serious cases, the ordeal.16 This was a form of physical test ‘fraught with danger’ the outcome of which would reveal God’s judgment.17 The two most common forms of ordeal were trial by fire and by water.18 Finally, there was the judgment, the point at which the outcome of the ordeal was interpreted and the consequences determined. This was far from straightforward, since the interpretation of the outcome (of healing or injury, or flotation) seems to have depended on the social context of the ordeal, and there is evidence that those administering the ordeal would interpret the signs to produce the outcome that they considered to be right.19 This concern about the legitimacy of the ordeal is often cited as a reason for its decline and abolition.20 Several characteristics of the ordeal should be noted. First, as Hyams has argued, the ordeal was a device which was primarily suited to doing justice in small communities, dealing with disputes arising between private individuals, when both the character of individuals and the content of norms were known.21 The authority of courts in this system did not derive from a central or sovereign power, but from their ability to negotiate compromises between powerful parties in a particular locality and to prevent further resort to violence. The process was thus mediative, reconstructing the shared world of the participants from case to case without recourse to the authority of the state.22 Contrary to some of the

15 See Holdsworth, 1956: i. 305–8. Following the Assize of Clarendon 1166, accusations by presenting juries had to be tried by ordeal, Baker, 2002: 507. See also Plucknett, 1956: 115–16 16 Trial by battle was another form of ordeal, introduced to England by the Normans, but seems to have been less commonly used in criminal cases. See Holdsworth, 1956: i. 308–10; cf Hyams, 1981: 119–24 17 Hyams, 1981: 92, suggests that in a world where the swearing of false oaths was believed to be met by serious consequences, even the oath itself should be regarded as a kind of physical test. 18 In trial by fire the proband had to grasp a piece of iron that had been heated in a fire. Their hand was then bound and inspected after several days. If the wound had festered they were held to be guilty; if it had healed there was no blame. In trial by water, the proband was bound and lowered into a pond: if they sunk (or were ‘received’ by the water) they were considered innocent, but if they floated they were guilty. 19 See, eg, the case cited by Hyams, 1981: 93–5, where the accuser had to admit that the hand of the proband was clean, and that he was not guilty, although the rest of the onlookers could clearly discern the pus and decay on the hand. See Kerr et al, 1992 for a discussion of the scientific reason why probands could have ‘passed’ the ordeals of fire and water. 20 See Baldwin, 1961. 21 Hyams, 1981, esp at 95–106. His account is heavily influenced by anthropological literature on informal justice. 22 See Hildebrandt, 2006: 22–3.

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more traditional interpretations of the ordeal,23 Hyams also stresses the relative informality of the process, where within the formal structure the court would work to negotiate outcomes that were acceptable to the parties and the community at large, using the threat of the test to put pressure on the parties to re-establish a workable peace. Thus, although the judicial function was formally limited to determining the mode of proof and judging the outcome, these were part of a larger process of negotiation, with the final sanction of God’s judgment being used to secure and legitimise the verdict. However, whilst it is tempting to see the ordeal in purely functional terms, as a way of setting the seal of divine approval on all too human decisions, this would also be to overlook the ‘sacramental’ quality of the ordeal and the significance of submitting to oaths or to tests of character.24 We thus need to say a little more about the ordeal as a form of proof that can be understood as rational in its context. As has already been pointed out, although the court might question the parties or witnesses about their knowledge of the facts, this was not the preferred method of proof.25 It could be relevant to determining the relative strength of the parties’ cases, and thus to determining who should go to proof and the appropriate mode of proof, but proof itself was distinct. An important feature of this proof was the significance of the oath. In a world in which there was a strong belief in divine power, the swearing of oaths must be seen as a rational means both of reinforcing the seriousness of the procedure and of judging the inner purity of the proband.26 The person swearing the oath, moreover, was not testifying to their belief in the existence of a certain state of affairs in order that the testimony might be judged by the court—which would require a distinction between fact and law that did not exist at the time. They were testifying as to their belief in the rightness of the claim or accusation, and were at the same time submitting themselves to judgment. The proband, in turn, was testing his character by throwing himself on the mercy of God.27 Thus the mode of proof was not a weighing of evidence or facts, or necessarily linked to anything that had been discovered by the tribunal, but was an appeal to an external authority to determine the outcome in a completely inscrutable way. The ordeal was formally abolished by a decree of the Fourth Lateran Council in 1215 which forbade members of the clergy from officiating at

23 See classically Weber, 1968: 762 where the ordeal is seen as a central form of formal irrational law, mixing procedural formality with an irrational means of proof. 24 See Bartlett, 1986: 157–66. For a functional analysis of the structure of the ordeal which stresses the importance of strength and social power, see Foucault, 2000. 25 See Donahue, 1981. 26 On oaths generally, see Fenn, 1982: ch 3. See also Hyams, 1981: 108–12. 27 ‘God proclaims a man’s guilt or innocence of a particular act in the course of a judgment on the whole man and his soul’ (Hyams, 1981: 111); Olson, 2000.

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ordeals—though Hyams has argued both that the ordeal was already becoming discredited before this date and that it survived in more remote areas or amongst those of a lower class well after this date.28 We need not concern ourselves here with the question of whether the demise of the ordeal was precipitated suddenly by the proclamation of the Lateran Council, or whether this merely reflected a longer standing social distrust of the ordeal and changes in the structure of a society that had hitherto supported the institution. What is of significance, however, is the impact that its abolition had on the development of trial by jury in England.

2.2.2. From Ordeal to Inquiry The ending of the ordeal in 1215 left a lacuna in the administration of criminal justice that was filled in different ways in continental Europe and in England. While most European systems quickly adopted a system of proof from the newly re-discovered Roman canonical law, in England the jury was developed as the normal mode of proof in all criminal proceedings following royal proclamation in 1219.29 There is dispute over the precise origins of the jury, between those stressing the Anglo-Saxon and judicial origins of the institution, and those seeing it as a Norman administrative innovation following the conquest.30 It is clear, however, that the thirteenth-century jury corresponds to Pollock and Maitland’s description of the jury as ‘a body of neighbours summoned by some public officer to give, upon oath, a true answer to some question’.31 While the jury still performed some administrative functions unrelated to crime, from 1154 onwards the jury drawn from the locality was playing an ever larger part in the administration of criminal justice as the Crown gradually assumed the power to punish those who broke the King’s peace.32 Their role combined the investigative and judicial, as the jury of presentment was required to bring an indictment against those suspected of having committed serious crimes and, after 1220, the petty jury of twelve men increasingly sat in judgment over fellow members of their community. 28 Trial by battle continued to be available until its abolition in the nineteenth century (1819 59 Geo III c 46), though it was practically obsolete by the end of the thirteenth century: Holdsworth, 1956: i. 310. Trial by water was used in witchcraft trials in the seventeenth century. 29 The text of the writ is printed in Plucknett, 1956: 119. See generally TA Green, 1985. Groot, 1988 argues that this had occurred by 1229. 30 See most recently Macnair, 1999, with commentary by Donahue and Wormald. 31 Pollock and Maitland, 1968: i. 117. 32 At periodic justice eyres (every six or seven years) in which royal justices would hear a range of civil and criminal disputes, and later through twice yearly gaol delivery sessions. See generally Baker, 2002: chs 2, 29 (see also 558–61 for sample gaol delivery proceedings); Hyams, 1981:117–18.

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Once again it is worth noting the central features of this procedure. Although serious crimes were treated as breaches of the King’s peace, prosecution was still a matter of private initiative. Charges might be brought either by a private individual (‘appeal’) or by the community through the jury of presentment (later to become the Grand Jury), who would make an initial investigation to determine whether or not there was a case to answer and whether an indictment could be brought.33 There was no clear distinction between membership of the jury of presentment and the petty jury, with both being drawn from the locality of the incident,34 and members of the former often continued as members of the latter. The significance of this was, first, that there was no rigid distinction between pre-trial and trial, though an accused might object to jurors who had been on the jury of presentment being on the petty jury.35 Second, and more importantly, the jury was expected to be self-informing in the sense that they would gather information in advance of the trial by talking to witnesses and relying on local hearsay or rumour about the incident.36 They could additionally hear any witnesses who came forward as well as any objections or questions from the accused, but these were supplementary sources of information, and there is little evidence of the participation of witnesses in criminal proceedings. Thus, in the absence of explicit fact-finding procedures, the trial was dependent on this kind of local knowledge. Third, the role of the judge was quasi-prosecutorial: examining the jurors’ knowledge, if necessary; presenting the indictment based on information from the jury of presentment against the accused; obtaining their consent to trial by jury; managing the process of jury selection; charging the jury immediately following jury selection; and finally, after the verdict, declaring condemnation or dismissal.37 The jury would not retire to arrive at their verdict, and did not have to give reasons for their decision.38 It is hard, then, to see this as trial in any modern sense, since the petty jury did not hear evidence, basing their verdict on what had been learned from the jury of presentment, which in turn relied on information from outside the court.

33 Although the ‘appeal’ procedure was not formally abolished until 1819, it became more common for private individuals to bring charges through the Grand Jury. For a full discussion of the procedure in the thirteenth century, see Klerman, 2001. 34 Either the village or the hundred of the incident. See Klerman, 2003: 61–2. 35 This was recognised as a legal right in 1352 (25 Edw III stat 5 c 3). 36 On the ‘self-informing jury’ in the thirteenth century see Klerman, 2003; Powell, 1988; cf Musson, 1996: 201–7. See also Macnair, 1999: 546–8; Plucknett, 1956: 129. 37 ‘[T]rial was primarily a conversation between the judge and the defendant, and secondarily between the judge and the jury’ ( Klerman, 2003: 73). 38 There was no requirement of unanimity before 1367 (YB Mich 41 Ed.III fo 31, pl 36). There is also evidence of high rates of acquittal in cases before the early jury: see Bellamy, 1998: ch 3.

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It is clear that in structure the early trial had more in common with the ordeal, with the accused putting themselves to ‘proof’ before the jury, rather than the jury acting as a mechanism for judging the weight of evidence.39 This can be seen by asking what the early jury was judging, and how the judgment was made. While it is tempting to see the role of the jury as that of judging facts, it is clear that, unlike under Roman canon procedure, the common law drew no distinction between judge and witness, or law and fact. The local knowledge and standing of the jury meant that their function was investigative or testimonial as well as judicial.40 They were required by their oath to give a ‘true’ answer, but their judgment was based on knowledge of the accused and their standing in the community as much as any direct knowledge of the incident. Their answer expressed a complex social and moral judgment of both the incident and the defendant himself rather than a weighing of the evidence.41 The early jury was thus similar to the ordeal in that it was regarded as a formal test to which the parties must submit—hence the inscrutability of the verdict (that there was no going behind the oath or the verdict to investigate further the facts of the case).42 It is also relevant here to consider the importance of the accused person’s consent to trial by jury. The accused person would be asked how they wished to be tried, and if pleading not guilty they would have to answer ‘by God and the country’ as a means of indicating their consent to jury trial.43 While this formula apparently arose from the vagueness of the royal instructions issued to justices in 1219, requiring the prisoner who did not accept this mode of trial to be kept in prison indefinitely, it was further institutionalised by a statute of 1275 which established that prisoners who would not plead should be subjected to prison forte et dure to force them to do so.44 This suggests that far from being the mere consequence of an

39

Macnair, 1999: 571–87. Baker (2002: 75) points out that the juror’s oath was not unlike the oath of the witness. Bracton (published around 1220–30) records the juror’s oath as ‘Hear this, ye justices, that we will speak the truth about what is asked of us on the king’s behalf, nor will we for any reason fail to tell the truth, so help us God etc.’ (quoted in Klerman, 2003: 65). 41 ‘At first the jury was no more regarded as “rational” than the ordeals which it replaced’ (Plucknett, 1956: 125). 42 See Holdsworth, 1956: i. 317. It is important to note that the criticisms of the ordeal were that the operation of the ordeal was unreliable—it was subject to trickery, abuse etc—and not that the idea of appealing to God’s judgment was a fraud. 43 Without such consent, they would have to remain in prison indefinitely. Baker, 2002: 508. 44 Statute of Westminster, 3 Edw ch 12. This was later misread as ‘peine forte et dure’, which led to the practice of pressing the prisoner under heavy weights, with some choosing to die rather than recognise the authority of the tribunal. This was not abolished until 1772 (12 Geo III c 20), when silence would lead to an automatic conviction. Only in 1827 was a refusal to plead treated as the equivalent of a not guilty plea (7&8 Geo.IV c 28). For a full discussion see Mckenzie, 2005. 40

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oversight, consent was seen as central to the operation of the system. Yet we might ask why consent should be so important if the jury trial was aimed at the suppression of crime and the introduction of a more reliable system of justice to replace the ordeal. One answer to this is that the consent of the accused person was important to the legitimacy of the new institution of the jury.45 However, there is little historical evidence to suggest discontent with the early criminal jury or with the ending of the ordeal, and it is hard to see how a consent obtained by compulsion could confer legitimacy. It has been argued, by contrast, that the need for consent suggests instead a kind of implicit avowal of devotion to the community (‘the country’).46 By consenting to judgment in this form the accused submitted to the community and asked their mercy.47 The jurors were being asked to judge the suitability of the accused for such reconciliation, based on the character of the accused and their standing in the community (rather than on past facts). In both the ordeal and the early jury trial, a penitential accused was asking for divine mercy, and though this was operating through different institutions, in each case the inscrutability of the verdict reflected something of this mystery. The early history of trial by jury is thus significant in a number of respects. First, as argued above, there is no strong conception of the trial as a weighing of evidence or argument before a judicial tribunal, although the jury of presentment played a significant role in evidence gathering. The distinction between fact and law that is seen as central to the jury’s role in the operation of the modern criminal law does not emerge until well after the jury’s establishment as the principal mode of trial. That said, however, the origin of the jury as a self-informing body drawn from the local community is important to understanding later developments in criminal law and evidence. Finally, we should note the prominence of the theme of participation, in the way in which the accused was called to account in this form of trial. Though trial by jury was used primarily in royal courts, under the direction of royal justices enforcing the King’s peace, the effectiveness of this mode of trial was strongly linked to the involvement of the local community both as the origin of accusations and in the making of judgments of guilt. As Green has pointed out, the pre-trial and trial procedure left the jury in almost total control of the outcome of cases.48 The accused was called to account by their community, before a jury that embodied that community,

45

An idea pursued in Fisher, 1997: 585–602. See Olson, 2000: pt III. Not necessarily in the modern sense of admitting guilt and asking forgiveness, but in the sense of a merciful judgment of the accusation. 48 TA Green, 1985: 18 and in general stressing the role of the jury in mitigating the harshness of the criminal law. 46 47

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and since criminal laws were largely unwritten, their content and application could be negotiated through the trial procedure. However, the proof retained the structure of the test or ordeal. The accused was not simply called to account in respect of their actions, established through evidence of those actions, but rather had their conduct submitted to divine judgment operating through the social institutions in the light of their character and social standing. It is only with the later development of the trial that we can see clearer distinctions developing between law and evidence, and the development of the role of the jury as the trier of fact.

2.3.

THE TRIAL IN HISTORY, II: THE ALTERCATION TRIAL C.1400–C.1700

By the late fourteenth century we can see the trial beginning to develop as an institution that would weigh up evidence and arguments before a tribunal acting judicially. This change has been attributed in large part to the decline of the self-informing jury, which meant that evidence of alleged offences had to be presented to the court, but it was also linked to the growth of the state and its attempts to deal with problems of crime and disorder—suggesting an emergent tension between the themes of community participation and the awareness of a need for protection against the state. We will consider this change, and its impact on the understanding of the role of the jury and on conceptions of evidence and proof, in more detail below, but it will be helpful to begin with a brief overview of the main institutional and procedural changes and the main characteristics of felony trials in this period. While the local courts were trying greater numbers of crimes, it is procedures in the royal courts, in particular the prosecution of felonies at the assizes, that had the greatest impact on the development of the modern trial, and so we will focus on this court.49 A number of older courts with special or local jurisdiction continued to function throughout this period, particularly in dealing with misdemeanours and petty crime, but the most significant development in the prosecution and trial of crime was the extension of the influence of the royal courts and the officers of royal justice.50 In particular, this period saw the consolidation of the position of the assizes as the principal court for the trial of felonies, while magistrates’ quarter sessions became the main court

49

See below, for discussion of procedure in relation to trials for treason and misdemean-

ours. 50 For an overview see Cockburn, 1972. See also Sharpe, 1999: ch 2. For a detailed description of the operation of the courts in Sussex, see Herrup, 1987. For a more theoretical analysis of the expansion of royal power, see Dubber, 2005: pt I.

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for the trial of misdemeanours and petty crime.51 This in turn reflected the fact that the prosecution of crime was becoming more organised and systematic.52 If prosecution was still private in form, it increasingly took place under the supervision of the local Justice of the Peace (JP). The office of JP, created as a ‘royal experiment for suppressing disorder’ in the fourteenth century,53 increasingly became the central figure in the administration of justice, as well as in county government more broadly. The JP, usually a member of the local gentry, exercised both judicial and investigative functions. They would try petty crimes and misdemeanours at quarter, and later more frequent petty, sessions.54 In their investigative role, they were expected to supervise parish and petty constables who were authorised to preserve the King’s peace, and to assist in the preparation of prosecutions for the assizes—in which function they came to replace the self-informing jury of presentment (grand jury).55 Typically, then, individuals, or constables acting under the authority of the magistrate, would bring complaints or accusations to the JP, who would then examine the suspected felons, complainants and witnesses, binding over the essential witnesses to appear at the trial.56 Suspected felons, particularly those of lower social classes, would normally be committed to gaol to await trial at one of the twice yearly assizes. These were held by itinerant royal justices who would try on indictment all cases of felony in that area.57 The bill of indictment and the prosecution evidence would be laid before the grand jury, which would decide whether an accusation was sufficiently well-founded to go to trial before a petty jury.58 Langbein has described the criminal trial of this period as the ‘altercation’ trial, as the centrepiece of the trial was the confrontation between the accuser and their witnesses and the accused in the courtroom.59 While, as

51 For an overview of procedure covering the early part of the period, see Bellamy, 1998. See also Cockburn, 1972: ch 6 52 And that conviction rates were higher. See TA Green, 1985: ch 4; Bellamy, 1998: ch 3; and below. 53 Sharpe, 1999: 40. See generally Holdsworth, 1956: i. 285–98. 54 Until 1590 capital crimes could be heard at the Quarter Sessions, but a reform of the commission of the peace reserved difficult (ie capital) cases to the assizes. See Sharpe, 1999: 33; Herrup, 1987: ch 3. 55 Which, though not abolished until 1933 (Administration of Justice (Misc Prov) Act 1933), became increasingly passive: Bellamy, 1998: 47. Appeals of felony continued to be used in parallel with prosecution on indictment until the early sixteenth century, because they allowed settlement in return for compensation. Baker, 2003: 513. 56 This procedure was formalised by statute in 1554 and 1555 (1&2 Philip and Mary, c 13; 2&3 Philip and Mary, c 10). These are normally referred to as the Marian committal statutes. See Langbein, 1974; Baker, 2003: 515–16. 57 Acting under either a commission of gaol delivery or one of oyer and terminer. See Klerman, 2003: 74–5. 58 Indictments for homicide might also have originated from a coroner’s jury. Baker, 2003: 512 59 Langbein, 2003: ch 1, drawing on Smith, 1565: bk.II, ch 23:

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we argued above, Langbein’s focus on the history of the trial in terms of the truth-impairing consequences of the entry of lawyers may have distorted his overall view of its development,60 it is nonetheless useful to begin with his description of the principal features of this form of trial. First, trials were very short, rarely lasting more than 15 or 20 minutes, and were conducted almost entirely orally. The procedure consisted of the jury being called and sworn, the written indictment and depositions being read to the accused, and the accuser or any witnesses giving evidence on oath in support of the charges. The accused could then respond to the charges and might be interrogated as to the facts, before the judge charged the jury on the law relevant to the case. The jury then, usually without retiring, delivered its verdict, which after 1367 had to be unanimous.61 Sentence would be pronounced, and often executed, immediately following the verdict. Second, the trial was structured in such a way as to compel the accused to speak. The jury were increasingly drawn from a wider area—the county rather than the immediate neighbourhood of the alleged incident—and would not necessarily know the accused or their alleged crime, or have had the opportunity to find out about them in advance of the trial.62 They would hear prosecution evidence, and the principal mode of defence open to the accused was to challenge the accuser and prosecution witnesses directly—not least because it was not clear that they were allowed to lead evidence that would contradict clear evidence for the Crown.63 Third, the trial was informed by the belief that the best way to discover the truth of any accusation was to confront the accused directly, to hear

The Judge first after they [the jury] be sworne, asketh first the partie robbed, if he knowe the prisoner, and biddeth him looke upon him: he saith yea, the prisoner sometime saith nay. The partie pursuivaunt giveth good ensignes verbi gratia, I knowe thee well ynough, thou robbest me in such a place, thou beatest mee, thou tookest my horse from mee, and my purse, thou hadst then such a coate and such a man in thy companie: the theefe will say no, and so they stand a while in altercation, he telleth al that he can say: after him likewise all those who were at the apprehension of the prisoner, or who can give any indices or tokens which we call in our language evidence against the malefactor. When the Judge hath heard them say inough, he asketh if they can say any more: if they say no, then he turneth his speeche to the enquest. (emphasis added) There are also useful descriptions of trials in Baker, 2003: 516–20 (drawing on a manual of 1550) and in Stephen, 1883: i. 346–50. 60 His description of it as the ‘lawyer-free criminal trial’ clearly points towards these concerns. For these reasons we prefer his alternative term the ‘altercation trial’. 61 YB Mich 41 Ed.III fo 31, pl 36; Smith, 1565: bk II, ch 23. It was forbidden to communicate with jurors once they had been sworn, and they were sequestered from the outside world: Baker, 2002: 75–6. See generally Seipp, 2002. 62 Though they could still draw on their own knowledge, and might even reach a verdict though no evidence had been produced: see Plucknett, 1956: 130. Jury composition is discussed in the essays by Lawson and Cockburn in Cockburn and Green, 1988. 63 See Baker, 2003: 519; Bellamy, 1998: 107–08; Stephen, 1883: i. 350–54. Once permitted, defence witnesses could not testify on oath until 1702.

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their response and see their reaction. They were not informed of the charge before it was read to the court, so as to prevent the fabrication of a defence. Finally, the law offered little in the way of formal protection—and probably was not supposed to. The accused who was detained before their trial had little opportunity to prepare a defence, and even if they were aware of the likely charge could not compel defence witnesses to testify on their behalf. They were not entitled to legal representation,64 and although an indictment could be struck down if there were formal flaws on the face of it, an accused person was extremely unlikely to be able to identify these without legal assistance. Extenuating circumstances might have been laid before the court in the course of the trial, but there was little place for legal argument or special pleading.65 The judge was supposed to act as counsel for the accused, detecting weaknesses in the prosecution and keeping questioning relevant, but pressures of caseload meant that this was hardly effective. There may have been, as Stephen suggested, a crude fairness to this procedure, but it was crude indeed, for in many cases the trial seems to have offered only the opportunity to appeal to judge and jury for mercy.66 We can thus see that while the altercation trial shares a number of common procedures with earlier modes of trial, it is also distinctive in a number of respects, and we want now to discuss certain themes in more detail. We will consider here the relationships between state and community, between the accused and other actors in the trial, and developments in the law of evidence and proof, before going on to consider modes of trial in cases of treason and their impact on the self-understanding of trial by jury as a foundation stone of the liberties of the English subject. Historians usually point to the combination of lay justices and jurors and professional judges, or the centralised control of local lay officers, as the unique feature of the administration of criminal justice in England in this period. It is therefore important to consider how the relationships between state and community, and between law and the people, were manifested in the criminal trial. Whilst, as we have seen, community participation remained central to the operation of the criminal trial, the operation of the assizes must be understood within the social context of a

64

Except on matters of law: see Langbein, 1997: 84–8. See Baker, 2003: ch 29. Langbein (2003: 20) suggests that guilty pleas were rarely accepted as this deprived the court of the opportunity to learn of any mitigating or extenuating circumstances. See also Herrup, 1987: 155–6. Cockburn (1985: 65–70) suggests that confessions became common in theft cases in the early seventeenth century as part of an experiment with ‘plea bargaining’. See also Cockburn, 1988: 174 66 Stephen, 1883: i. 355; see Beattie, 1986: ch 8; Herrup (1987: ch 6) also discusses numerous cases where the jury altered the value of the stolen property, or the charge itself, to take it outwith the category of capital crime. 65

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highly stratified society.67 Jurors were commonly drawn from the ranks of the minor gentry and small property holders, while JPs would be members of the county elite. The royal judges, by contrast, were outsiders, appearing briefly but with great ritual, to enforce the law and communicate government policy to the localities.68 The accused, however, particularly in property offences which made up the bulk of the work of the assizes, were commonly from the lower or labouring classes. These hierarchies, and the understanding of the appropriate roles and behaviour for those of particular ranks, were played out in the context of the trial and the decisions that it made. There was, to be sure, room for negotiation and collaboration,69 but many of the rituals of the assizes (parade, sermon, homily) were about stressing a fixed social order, in which the law was backed by divine authority, and every individual had their place.70 Law was understood as a means of reinforcing obedience to social order and restraining the passions of the individual. An individual’s conscience, it was frequently stressed in assize sermons, was a kind of court of law, installed by God to direct his actions, and operating as a private sessions, preparatory to the Grand Assize of the last judgment.71 In addition to this, a number of changes in procedure and practice meant that the bench was becoming more powerful. An important indicator of the increasing influence of the bench was the rise in the conviction rates for cases that went trial. In the early jury trial, conviction rates were very low (around 25%), but over the course of the sixteenth century this began to rise.72 This was the result of the changing relation between central government and local institutions such as the jury trial: the Tudor state was inclined to see jury-based non-enforcement of the law less as a political and social necessity, than as an affront to justice.73 Measures were taken to reduce jury discretion exercised through the use of pardons and discretionary punishment. However, foremost amongst these changes were the reforms of pre-trial procedure under the Marian committal statutes of

67 There is discussion of this point in Sharpe, 1999: ch 2 and Herrup, 1987: chs 1, 6. Cockburn, 1972, 1988 is critical of accounts that represent the jury as a largely autonomous vehicle of community discretion (1988: 160). 68 Cockburn (1988) discusses jury composition. Cockburn (1972: ch 4 and pt III) discusses the role of the assizes in government. 69 ‘The Assizes and Quarter Sessions were occasions both local and national, coercive and responsive, elitist and participatory’ ( Herrup, 1987: 7). 70 ‘The hierarchy of office holding corresponded to the social hierarchy’ (Sharpe, 1999: 57). 71 See Sharpe, 1999: 215–25; Herrup, 1987: ch 1; B Shapiro, 1991: 15 72 Low conviction rates have been attributed to the requirement to present on suspicion, even where cases were weak, and the reluctance of juries to convict in capital cases. See generally Bellamy, 1998: ch 3; TA Green, 1985: pt I; Cockburn, 1985, 1988. 73 See TA Green, 1985: 105; Cockburn (1988: 171–6) argues that the peak of judicial control was in the mid-sixteenth century.

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1554 and 1555.74 Although prosecution remained private in name, a consequence of these statutes was that the JP assisted in the assembly of the prosecution case, and ensured that the private prosecutor and key witnesses were bound over to appear at trial. This also had an impact on the relationship between judge and jury.75 The judge was provided with the depositions, which were read in court, and he could as a consequence confront the accused with the evidence. Since the judge was no longer reliant on the jury for information, he could thus exercise control over the jury through judicial instruction. The bench could, moreover, test jury verdicts against their own interpretations of the evidence, which led in due course to conflict over the role of jury nullification—a conflict that helped to crystallise the distinctions between law and fact, and the respective provinces of judge and jury.76 However, while these reforms shifted the relationship between judge and jury, they did not displace the idea of the confrontation as the focus of the trial. While the ‘altercation’ between accuser and accused was the centrepiece of the trial, historians have suggested that there were other confrontations going on between the various participants, and attention to these can deepen our understanding of the trial. The issue here is not only whether the accused is an informational resource, as Langbein suggests, but what it meant to be put on trial, and the nature of judgment and law. Leaving aside, for the moment, consideration of the theory of truth underlying the altercation, we should explore the central idea of confrontation. First, the accused was to be confronted directly by the accuser and the evidence, which was the basis for the orality of the proceedings. Although depositions might be produced in court, they had to be read in the presence of the accused. Testimony was also to be given in the presence of the accused. Although there was no clearly formulated rule against hearsay, it was generally required that evidence be led in open court in the presence of the accused.77 And although the trial was structured by rituals and formal legal procedures surrounding the reading of the indictment and oathtaking, it was otherwise conducted in a relatively informal manner so that both parties could present their accounts. Second, Herrup points to the importance of confrontation between jury and accused, suggesting that there were three separate points in the trial at which there was a formal confrontation.78 As the jurors were individually

74 Langbein (1974: pt I) suggests that the reforms were the regularisation of existing practice, rather than a conscious attempt by the Tudor state to make criminal justice more effective. 75 See Herrup, 1987: 133; TA Green, 1985: ch 4. 76 See principally TA Green, 1985: pt II; Plucknett, 1956: 133 ff. The leading case was Bushel’s Case (1670). 77 See Baker, 2003: 518; Friedman, 2002. 78 Herrup, 1987: 131–2.

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sworn it was recommended that they look directly into the faces of the prisoners;79 each prisoner was then brought forward between the jurymen, who were again asked to look at them; and before the verdict was announced, the jurors were again advised to look on the prisoner.80 Herrup suggests that these rituals, linked as they were to the swearing of oaths, were a means of emphasising the responsibilities of the petty jurors, not only as individuals with consciences but also in relation to the other participants.81 The jury increasingly had a quasi-judicial role. Jurors were no longer, as we have noted, expected to be self-informing, but neither were they yet completely passive and wholly dependent on evidence presented in court.82 They were also likely to have had previous experience as jurors, since they were drawn from a limited pool of those qualified, and not all who were qualified were willing to serve.83 The jury, then, was representative of the (propertied) local community, expected to have knowledge of the workings of that community and thus to rely on conscience and experience in reaching their verdict. Notwithstanding the undoubted importance of the jury, it is clear that the key figure in the operation of the trial was the judge: prompting the prosecutor, intervening to keep questioning relevant, supervising the proceedings, and reminding the jury of their duty to reach an assurance of guilt based on the evidence.84 However, it was also clear that, even if judges were exerting greater influence on juries, they remained happy to allow the jury to take the ultimate responsibility for convicting according to their own consciences.85 Their role instead focused on the formulation of an appropriate standard of proof for the jury. In order to understand this development, we must consider more closely the nature of judgment in the altercation trial. As before, it is important to ask what it was that was being judged in the trial, and how this judgment was made. To the extent that the altercation between accused and accusers was the centrepiece of the trial, jurors’ attention was focused on what the accused said and how they said it, and

79 Their oath was ‘to goe uprightlie betwixt the Prince and the prisoner’ (Smith, 1565: bk II, ch 23). 80 Since jurors did not issue individual verdicts at the conclusion of each trial until the early eighteenth century (Langbein, 2003: 21), jurors might have needed to look at the defendant to recall whom they were convicting. 81 Herrup, 1987: 131–2. 82 Because of increased social mobility, the exclusion of presenting jurors from the petty jury, and the administrative difficulties of assembling juries for regular assizes. See Klerman, 2003: 74. 83 See Herrup, 1987: ch 6, esp 139; cf Cockburn, 1988: 160–70. 84 ‘The tradition of the active judge was integral to trial by peers’ (TA Green, 1985: 138); Langbein, 2003: ch 1 pt A 85 ‘It were the most unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence of the prisoner’ (Hale, 1736: ii. 313). See Seipp, 2002: 90–01.

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on the tacit appeal to the jury contained in their words. This was understood as a test of the accused, of their spontaneous reaction to evidence and questioning, of their presentation and demeanour, and of their conscience under examination by the judge.86 It is easy to see, then, why lawyers should have been deemed unnecessary, because this would have shielded the accused from questioning and prevented them from speaking in their own words.87 But even more fundamentally, the jurors were judging not only the truth (in the sense of factual accuracy), as they understood it, but also the fittingness of the accused for punishment—the accused’s character, understood as a composite of social position and demeanour, as a member of that community.88 The presence or intervention of lawyers would have placed an obstacle between the jurors and the object of their judgment. Legal subtleties were to be avoided, then, because the ‘overriding issue was the character of the accused’.89 However, it is also clear that, to a much greater extent than hitherto, the altercation trial was relying on evidence presented in court which had been subjected to some sort of screening and organisation prior to the trial. These developments opened up a distinction between matters of law and fact or evidence, and led eventually to a narrowing of the jury’s function. The indictment had to be supported by evidence, and one of the key issues became that of how much evidence was required and how it was to be evaluated: what kind of assurance would allow jurors to arrive at a finding of guilt based on the evidence?90 Some of the earliest rules of evidence developed in this period, prohibiting the testimony of certain classes of persons who might be thought to have an interest in the case or who were believed to be unreliable, and Shapiro has drawn attention to the growing concern with the abilities of courts to assess the credibility of witnesses.91 It was accepted that jurors should not accept testimony simply because it was given on oath: they might be party to information about the incident or about the witness that would make the testimony unreliable. They should

86 See TA Green, 1985: 136–7 and works cited there. See also W Hawkins, 1716: ii. 400: ‘the Guilty, when they speak for themselves, may often help to disclose the Truth, which probably would not be so well discovered from the artificial Defense of others speaking for them’. 87 The accused was not permitted to give evidence on oath, because that was regarded as a form of compulsion which could only encourage perjury. See CJW Allen, 1997: ch 5. 88 ‘The personal interaction emphasized in the ritual of initiation for each juror was realized in the freewheeling Socratic exercise that was the process for trying criminals in Tudor-Stuart England’ ( Herrup, 1987: 142). On property qualifications see TA Green, 1985: 114; Oldham, 1983. 89 Herrup, 1987: 4. See more generally Lacey, 2001. 90 See B Shapiro, 1991. Problems of amount and type of evidence are discussed in chapter 4, the formulation of the standard of proof in ch 1. 91 By contrast to the Romano-Canonical stress on the number of witnesses: B Shapiro, 1991: 186–98. See also Oldham, 1994.

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instead judge according to their consciences, a feature which some observers considered made this form of trial superior to any other.92 This, by the late seventeenth century, became the basis for the evaluation of the guilt of the accused person, as jurors were directed that they should not convict before they had satisfied their consciences as to the accused’s guilt. This was understood as a rational and practical, rather than emotional, form of judgment, where the question determined should be a matter of high probability, excluding any rational doubts.93 These standards were articulated in a series of cases over the course of the seventeenth century in which issues concerning the role of the jury and the status of the accused—and thus the nature of the trial itself—became questions of wider public and political concern. These in turn drew on and articulated a view of trial by jury as a fundamental element of the ancient liberties of the Englishman which, whatever its historical inaccuracies, was to be of lasting significance. Already in the sixteenth century, works had been published popularising the anachronistic interpretation of Magna Carta as requiring jury trial.94 The relationship of the jury to political liberty and the ‘Ancient Constitution’ was taken up in the course of the political and religious struggles of the seventeenth century.95 One area of dispute concerned the scope of jury discretion, a question that arose in the context both of radical demands that the jury should be judges of law and fact as a means of controlling arbitrary judicial or legislative power, and of government attempts to control juries through the practice of fining jurors where the judge disagreed with their verdict.96 In both contexts, the key claim was that juries should be allowed to decide according to their true conscience, on the grounds that justice could only be achieved through the exercise of conscience, a right which had originally belonged to the people but which had been usurped by royal justices. This found expression in the celebrated acquittals of the Leveller John Lilburne in 1649 and 1653 and his claims that the jury should reject the use of oppressive law to act on behalf of the people. Following the Restoration in 1660 these views of the powers of the jury, and of the relationship between state and individual, were further developed through the trials of Quakers, and subsequently became an important element in the political settlement of 1689. Disputes 92

See Hale, 1739: ch XII. See B Shapiro, 1991: 13–18 on the religious and philosophical origins of the test. 94 c.39 was translated as requiring trial by one’s peers. See, eg, Lambarde, 1581: 234, 436; Fortescue, 1997: 63–77; More, 1931: 975–1003. See also Herrup, 1987: ch 6. Holdsworth (1956: i. 59) comments laconically that, ‘A trial by a royal judge and a body of recognitors who found the facts was exactly what the barons did not want’. 95 This was also a source of the hostility towards the Star Chamber, abolished in 1641, where prosecution was public and where juries had been fined for returning perverse verdicts: see Cockburn, 1988: 179; Stephen, 1883: 168–80. 96 These issues and the pamphlet literature they generated are discussed in TA Green, 1985: chs 5–6. See also B Shapiro, 1975; Veall, 1970. 93

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arose in a series of cases in which juries apparently sought to limit the effect of penal statutes aimed at religious dissenters by returning only partial verdicts, or even acquitting the defendants. The issue came to a head in Bushel’s case in 1671, in which a juror who had refused to convict William Penn and William Mead for unlawful assembly, and had subsequently been imprisoned for failure to pay a fine, argued that there was no legal basis for the practice of fining jurors. Chief Justice Vaughan held that a judge may not fine or imprison jurors for their verdict if they had acted in good faith, for jurors alone could judge the evidence.97 If after this the bench retained many of their powers to control or influence juries, it is nonetheless also clear that the decision in Bushel’s case, and the debate that it stimulated, made a significant contribution to political understandings of the role of the jury which have persisted into modern times. The treason trials of the late seventeenth century allowed the articulation of a distinct set of issues, with the reforms of procedure in treason trials in 1696 paving the way for the development of the adversarial criminal trial. While we do not propose to examine these in any detail, it is important to note the impact that these trials had on the development of a new normative understanding of the criminal trial.98 At one level it might seem strange that these trials, from the Popish Plot of 1678 to the Bloody Assizes of 1685, should have had any positive impact on the development of normative understandings of the criminal trial, since they reveal a catalogue of oppression: pre-trial manipulation, routine perjuring by witnesses, the denial of the opportunity to prepare or present a case, the packing of juries, and bullying by bench and prosecution. In Langbein’s words, they were ‘show trials, closer in function to political pageants than routine adjudication’.99 The treatment of defendants in the trials, however, was a significant political grievance, and reforms of the judicial process were central to the political settlement which followed the Glorious Revolution.100 While one of the grievances was settled with the reform of the conditions of judicial tenure in the Act of Settlement 1701,101 the principal reforms to criminal procedure were contained in the Treason Trials Act of 1696.102 The Act clarified and augmented protections for the defendant: requiring the corroboration of two witnesses for the indictment; giving the

97 124 Eng Rep 1006. But a power of fining could be exercised in the case of corrupt jurors. See generally TA Green, 1985: ch 6. For the view that Vaughan’s opinion is ‘dishonest nonsense’, see Langbein, 1978: 298. 98 Questions of the practical impact of the Treason Trials Act 1696 will be taken up in the next section. 99 Langbein, 1978: 266. 100 See generally Langbein, 2003: ch 2; AH Shapiro, 1993. 101 Tenure was on good behaviour rather than at the pleasure of the Crown. See generally Lemmings, 1993. 102 7& 8 Wm III c 3.

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accused a statutory right to see the indictment and a copy of the panel of jurors; giving the defence the power to subpoena witnesses who could testify under oath; and allowing representation by counsel on both legal and factual matters. Outwith its obvious impact on the conduct of trials for treason, the importance of the Act lies in the way that it reveals a new theme of equality between sovereign and subject.103 While, as later commentators such as Stephen have pointed out, defendants in earlier treason trials displayed a deference to the monarch, manifested in a submission to the charges and the acceptance of guilt, defendants in the later Stuart treason trials increasingly challenged the charges and sought out the means, both ideological and legal, which would allow them to do so.104 In seeking to establish the right to a defence, reformers drew on the idea of a contractual monarchy in which the powers of the Crown were limited by law: this implied a demand for impartiality and a recognition of equality between sovereign and subject. This found specific expression in the demand that a statutory right to a defence should replace occasional privileges awarded at the discretion of the judge.105 Of equal importance was the casting of the claim to the right to a legal defence in terms of the natural law principle of self-preservation, and the correlative duty of the individual to resist arbitrary or illegitimate authority.106 From this perspective it was argued that since defendants were on trial for their lives, they should be allowed appropriate means of defence. Since the judge both interpreted and applied the law, defendants should be allowed the means to challenge the proceedings against them.107 Finally, Shapiro has noted that these arguments contributed a new political dimension to the presumption of innocence. While this was a well established element of the rhetoric of English criminal justice, it amounted to little more than an expression of the requirement for some evidence of an offence. However, it came to be understood as an aspect of political identity: the new political subject, the individual, could not be expelled without good cause or proper evidence of wrongdoing.108 This conception of the political subject—as an individual

103

See especially AH Shapiro, 1993. See Stephen, 1883: 397; LB Smith, 1954. For an interesting discussion of the function printed reports of trials played in ‘educating’ defendants in the modes of resistance, see Paterson, 1997: chs 3–4. 105 AH Shapiro (1993: 229–33) points out that this is recognised in the preamble to the 1696 Act. 106 See, eg, Hobbes, [1651] 1968: 223; Locke, 1988: 404. 107 Including deciding whether or not to permit defence counsel to assist with legal argument: AH Shapiro, 1993: 233–42. 108 See AH Shapiro, 1993: 242–4. Note that while this political dimension was important to the understanding of the rights of the individual, it did not take on a clear legal form until later in the nineteenth, or even arguably the early twentieth, century. See B Shapiro, 1975: ch 1; CK Allen, 1931; Stein, 1993; Helmholz et al, 1997. 104

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who entered into a compact with the state, and who was to be protected against the arbitrary uses of state power—was to be influential in shaping the subsequent development of the criminal trial. While it is hard to generalise about the development of the criminal trial over a period of some three hundred years, it is worth drawing attention to some significant features. Perhaps of greatest significance was that truth was becoming internal to the trial procedure, and as a consequence that procedure could be measured against, and called to account for, its outcomes. The increased availability of evidence had led to the formulation of a standard of proof, that of the ‘satisfied conscience’, which was understood by both judge and jury, and which shaped their behaviour in the trial context. That said, however, the conduct of the trial had not developed significantly. It was still based on confrontation, the demanding of an explanation from the accused, in a social and political context in which they were expected to show deference to their social superiors. Discretion remained central to the operation of this process, mitigating guilt or punishment according to community perception of the character of the accused. And although there is some evidence to suggest that the definitions of offences such as murder were being clarified as a result of the greater amounts of evidence being put before the courts, this was still a system that relied for its operation on broad and flexible offence definitions.109 Outwith the limited context of state or political trials, the criminal trial remained ‘a point of contact between central government and the common people at a time when the formal institutions of government were hardly democratic’.110

2.4.

THE TRIAL IN HISTORY, III: THE ADVERSARIAL TRIAL 1700–1900

It is now widely understood that the criminal trial underwent a massive transformation in the course of the eighteenth and early nineteenth centuries. This is principally a result of the gradual entry of lawyers into the criminal trial, a development which had an impact on the law of evidence, criminal procedure and the conduct and conception of the trial.111 This thesis is now sufficiently well known to require only an outline summary here; we will then concentrate our analysis on the impact of the procedural developments on normative conceptions of the criminal 109

See TA Green, 1985: ch 3 Lemmings, 2005: 70; he goes on to suggest that in this period it was courts, not parliament, that were the ‘primary institutions of representative government’. 111 This thesis is primarily connected with the work of John Langbein (2003, and other works cited in n 7). Other significant work on this period has been done by Beattie, 1986, 2001; Landsman, 1990; Cairns, 1998; AN May, 2003. 110

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trial, especially as they reflect the growing symbolic importance of a particular image of the jury trial as being foundational to conceptions of political liberty. In the second part of this section we will examine changes in the form and conception of the trial in the second half of the nineteenth century.

2.4.1. The Birth of the Adversarial Trial 1700–1836 The turning point for the development of the modern adversarial trial was the passing of the Treason Trials Act of 1696, permitting those charged with treason to have full access to counsel for the preparation and conduct of their defence. Although described as a ‘charter of defensive safeguard’,112 the provisions of the Act did not extend to those charged with ordinary felonies. The impact of the reform, however, was more subtle, in that it represented a concession to the idea that a person on trial for their life, faced by the resources of the state, could not necessarily mount a defence without legal assistance. But the entry of the lawyers was not a straightforward process, taking place only gradually over the course of the eighteenth century, with the right to a full legal defence in trials for felony only formally recognised with the passing of the Prisoners’ Counsel Act in 1836. For much of the eighteenth century the majority of criminal trials continued to be brief and conducted by altercation. What had changed was that, particularly in urban areas, the process of prosecution had become more organised. Although it was still private in name, the state offered financial incentives to prosecute, and some private individuals grouped together to form associations for the prosecution of felons.113 Some magistrates, most notably Sir John Fielding in London, were more proactive in detecting and prosecuting crime, organising small forces of constables, interviewing suspects at committal hearings, and assisting prosecutors in the preparation of their cases.114 This period also saw the development of forms of summary jurisdiction, as well as the more widespread use of public prosecution for statutory offences against property.115 The trial process itself began with the presentation of the indictment to the grand jury, which heard only the prosecution case; if it was found to be a ‘true bill’, the accused would be tried before a petty jury. A person accused of felony had to conduct their own defence, aided if necessary by the judge, 112 113 114 115

Langbein, 2003: 68. See Beattie, 1986: ch 2; Hay and Snyder, 1989; Landau, 1999. See Beattie, 2007; B Smith, 2007. See B Smith, 2005.

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since there was a prohibition on the use of lawyers.116 This began to change in about the 1730s as more lawyers became involved in the prosecution of crime (either funded by government or through private initiative).117 Although their involvement was still formally prohibited by law, judges began to admit defence counsel in a limited capacity.118 They were gradually allowed to cross-examine witnesses, to enforce evidentiary rules, and to advise the accused person, but they were not permitted either to present arguments or to summarise the case.119 This limiting of function led to an emphasis on certain roles, principally the aggressive crossexamining of witnesses and efforts to exclude certain sorts of witnesses or evidence as unreliable—producing a series of exclusionary rules (on hearsay, character and confession) that were to provide the foundation of the modern law of evidence.120 However, the accused person still faced a number of disadvantages in the preparation of their defence: defence witnesses, unlike prosecution witnesses, could not be bound over to appear; the accused was normally imprisoned between committal and trial and so had little opportunity to prepare a defence or contact potential witnesses; they were not informed of the evidence against them; and in an age where the criminal law was in many cases explicitly being used to protect the interests of the propertied classes, most defendants were in any case too poor or illiterate, or both, to be able to prepare or run an effective defence. Despite this, few offenders pleaded guilty, probably because to do so would deprive them of any opportunity to present mitigating evidence or to show good character, and it appears that juries acquitted or returned partial verdicts in as many as 50 per cent of cases.121 It is likely that this reflected an unease with the proliferation of capital statutes and the well-publicised abuses of professional thief takers. As before, juries would sit on several cases, and would deliver their verdicts without retiring.122

116

See Langbein, 2003: ch 1. See Langbein, 2003: ch 3. 118 Though this was in a very small number of cases until later in the century. See, eg, King, 2000: 228. 119 See, eg, Langbein, 2003: 291–320; Beattie, 1991; Landsman, 1990. 120 Compare Langbein, 2003 and Landsman, 1990 on differing interpretations of the origins of evidence law. Langbein sees it as judicially created in order to control the activities of lawyers, Landsman as created by lawyers in order to secure their role in the trial. One increases, the other narrows, the judicial function. 121 King (2000: 234) suggests that this proportion only starts to decline after 1800. The high number of acquittals may also have been due to the fact that magistrates had to commit all cases for trial and that grand juries did not act as an effective filter (cf Beattie, 2001: 106). A partial verdict would find a reduced value of the property stolen, so that it was no longer a capital felony. 122 King (2000: 252–7) notes the presence of noisy crowds in the courtrooms which were undoubtedly also capable of influencing the verdicts of jurors. 117

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The entry of the lawyers, combined with other developments in policing and law reform, made the trial more adversarial and led to the transformation of the roles of the courtroom actors. While in the early part of this period the trial was dominated by the figure of the judge, preventing the accused from pleading guilty in order to learn something of their background, examining witnesses, and advising the jury, the activity of the lawyers allowed judges to move into the background. The role of the judge in the trial was increasingly that of the neutral arbitrator, removed from active involvement in the discovery of evidence, and commentators at the end of the century argued that judges in summing up should confine themselves to a summary of the evidence without expressing an opinion on the merits of the case. The lawyers made the process more adversarial as they fought to establish their professionalism and their place in the trial. The admissibility and relevance of evidence was challenged, and witnesses examined more closely.123 Although not permitted to address the jury directly, defence lawyers would use the examination of witnesses as a pretext for expressing their view of the case. Equally, there is extensive evidence to suggest that juries often exercised their independence throughout this period, intervening in the process to ask questions, but most notably in their tailoring of verdicts to a sense of justice—often in the face of judicial direction.124 However, as lawyers came to control the examination of witnesses, and sought to limit the evidence that was presented to the jury, juries became increasingly passive, observing rather than participating in the trial process. Langbein has argued forcefully that these controls led to the creation of the modern—inexperienced, taciturn, autonomous—jury, a development which drastically changed the form of lay participation in the trial.125 A third important consequence was the impact of the involvement of lawyers at both pre-trial and trial stages on the accused themselves, in particular the silencing of the accused. While, in the absence of other forms of defence, the accused had been obliged to speak to the court (although not permitted to do so on oath), lawyers advised the accused to remain silent in committal proceedings and at trial so as to oblige the prosecution to prove its case.126 A French observer of the English criminal justice system in 1822 was so struck by the lack of

123 And often more aggressively. One barrister, William Garrow, became notorious for his hostile cross-examination technique. See Beattie, 1991; AN May, 2003: ch 2. 124 See King, 2000: 231–52. 125 See Langbein, 2003: 318–30. 126 Committal proceedings were reformed by Jervis’ Acts 1848 (11&12 Vict cc 42, 43, 44). The preliminary examination was made into a judicial proceeding (rather than being investigative) because the accused person was allowed to put his side of the case. Holdsworth (1956: i. 297) comments that the magistrate was now able to act as a judge now because he was no longer required to supplement the deficiencies of the police force. On the Acts generally see Freestone and Richardson, 1980; Pue, 1983.

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involvement of the accused in the proceedings that he remarked that ‘his hat stuck on a pole might without inconvenience be his substitute at the trial.’127 The passing of the Prisoners’ Counsel Act 1836, permitting counsel to address the jury directly in an opening speech and summing up of the case was a formal recognition of the adversarial nature of the criminal trial.128 This had a profound impact on the conception of the trial. It is not entirely accurate to suggest, as Langbein has done, that the movement towards the adversarial trial was at the cost of the commitment to truth of the altercation trial.129 While the accused might be a valuable resource who should be encouraged to speak, the altercation trial, as we have shown, was a complex social negotiation involving the measuring of responsibility within a framework of the judgment of character, social hierarchy and written and unwritten norms. The outcome of the redistribution of the roles of the actors in the trial was that, rather than being a conflict between two individuals (prosecutor/victim and accused), it became a contest between two cases with defence counsel insisting that the prosecution prove (rather than assert) its case through the presentation of evidence, according to the newly formulated standard of ‘beyond reasonable doubt’.130 The point is not so much that truth seeking was not a priority of this mode of trial, as that the concept of proof became internal to the legal proceedings, subject to the cases presented by the parties and the limitations on the admissibility of evidence. Moreover, it came to be believed that cross-examination, far from being a barrier to the truth, was itself the most effective means of discovering the truth.131 The point was made strikingly by the Criminal Law Commissioners in their 1836 report on prisoners’ counsel: It will hardly, we think, be disputed that the permitting the advocate to speak for the client tends, generally, to the discovery of truth and the consequent advancement of justice … That an accused but innocent person should, generally speaking, be as well able to state his case … as a skilful advocate, is a position which is, we believe, at variance with experience.132

The presentation and proof of facts, particularly involving circumstantial evidence, was a complex process beyond the experience or skill of the 127

Cottu, 1822: 109. On the 1836 Act see Beattie, 1991; Cairns, 1998; AN May, 2003. Langbein, 2003: 331–4. 130 Juries were instructed on the standard of proof ‘beyond reasonable doubt’ after about 1780. Beattie, 1991: 249; B Shapiro, 1991; Langbein, 2003: ch 5. 131 ‘If we omit political considerations of a broader range, then cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure’ ( Wigmore, cited in G Williams, 1963: 79). 132 Second Report of His Majesty’s Commissioners on Criminal Law (1836) Parl Papers XXXVI, 183 at p 2. This is discussed in Cairns, 1998: 76–87. 128 129

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ordinary person; the presence and assistance of counsel would aid the accused both in the organisation of their case and in challenging the credibility of other witnesses. It is also noteworthy that it is the innocent accused, requiring defence against unjust or unfounded accusations, who becomes the organising figure in this argument. The zeal and eloquence of opposing counsel was seen to be fundamental to the discovery of the truth, the acquittal of the innocent and the conviction of the guilty. This conception of the trial as a continuous event, in which the prosecution case is presented and tested by professional lawyers, and the verdict of guilty beyond reasonable doubt must be based solely on the evidence presented to the court, lies at the heart of modern understandings of the adversarial trial. Finally we must note the impact of broader political changes on the conception of the trial, and in particular the way that contemporaries thought about the relationship between the jury trial and political liberty. The criminal law in the eighteenth century was based on a combination of severity and mercy, in which the scaffold was a powerful symbol of sovereign authority. As writers such as Hay have shown, the administration of the ‘Bloody Code’ was based on close social relations, judgment of character, the institutionalisation of discretion in the jury, and wide use of the prerogative of mercy.133 It is striking, however, that contemporaries both recognised the need for jury mitigation and consistently extolled the constitutional role of the jury as a bulwark against tyranny. The first reveals an understanding of the trial that reflected the realities of criminal law enforcement and a keen awareness of ‘the limits of the power that authorities could bring to bear on those they ruled’.134 The second, which was given weight by the state trials of the eighteenth century, identified the role of the jury as being that of a safeguard against executive or judicial tyranny through the procedure of jury nullification.135 For these writers the jury occupied a pre-constitutional role, symbolising the power that was the foundation of civil government, and retaining a residual power to limit state action by challenging the validity either of the law or of its application to the particular case. As Green has pointed out, these two views are hardly inconsistent, but are rather rooted in a system in which state power to enforce the criminal law remained weak: jury mitigation was fundamental to preventing over-enforcement of the criminal law and

133

Hay et al, 1975. See also King, 2000 as a corrective to Hay on the uses of the criminal

law. 134 135

See TA Green, 1985: 313. Discussed in TA Green, 1985: ch 8.

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securing the consent of the governed; but the power to mitigate was itself turned against the state when it sought to abuse the criminal law for explicitly political ends.136 The break-up of the old system because of the declining effectiveness of the public displays of punishment, the criticism of the severity and obscurity of the law, and the sheer inefficiency of enforcement and prosecution, has been well documented, as has been its replacement with new systems of policing and punishment.137 The new mechanisms of law enforcement and punishment transformed both the practices and the image of criminal justice.138 The authority of the criminal law was no longer to be based on the personal authority of the judge and the widespread use of the pardon. Justice was instead to operate through the impersonal application of predetermined (and less severe) laws, introducing distance, uniformity and impartiality in place of the interplay of severity and mercy. Political security was understood to attach to the certainty of laws and their application, rather than to an institution such as the jury, and its role in the mitigation of punishment was accordingly restricted. These changes were to have important consequences for the trial, which came to be seen primarily as a mechanism for the effective enforcement and application of the law, a means of displaying the legitimate consequences of a criminal act, the representation of punishment as an idea.139 The trial acquired greater visibility as a forum for staging questions of individual guilt and innocence, crime and punishment, and efforts were made to establish a new kind of decorum and control of communication within the trial.

2.4.2. The Reconstructive Trial 1836–c.1950 While the passing of the 1836 Act was undoubtedly important in recognising certain procedural safeguards and establishing the trial as a contest between prosecution and defence cases, it is significant for establishing a structural framework within which the adversarial trial was to develop. Indeed, the trial in the early twentieth century looked very different from the trial of one hundred years earlier, as a consequence of changes in the detection and prosecution of crime and of piecemeal reforms of procedure, evidence and substantive law. The early nineteenth-century reforms, moreover, opened up a space in which questions of guilt, intention and evidence 136 See TA Green, 1985: 351–5, recalling Thompson’s famous observations on the rule of law in eighteenth-century England: Thompson, 1975: 258–69. 137 For a survey see Emsley, 2005. For a comprehensive review of the literature on penal reform see Radzinowicz, 1948–85. 138 McGowen, 1983. 139 This was also reflected in the rebuilding of courthouses in this period. See Graham, 2003, and below ch 9.

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could be explored more fully than hitherto.140 Thus, while the trial undoubtedly became ‘an opportunity for defence counsel to probe the prosecution case’,141 this does not tell us about how this process occurred. It is not enough to know that the prosecution case was being tested, it is also important to understand how that case is put together: who speaks, what kind of evidence is led, and what the prosecution is trying to prove. For this reason we have preferred the term the ‘reconstructive’ trial because we wish to draw attention to the way in which the trial in this period is given over to the reconstruction of past events, in order to make the court witness to the truth of the events and so test the guilt of the accused person.142 Of course, the jury trial has always been reconstructive— concerned with the proof of past facts—to some extent, but the way in which it has done so has changed substantially over time. By the late nineteenth century the issue of what was being reconstructed, and how it was being reconstructed, changed quite significantly. We can see this by noting a number of features of the late nineteenthcentury trial. One significant development was that trials were getting longer, with some now extending over a number of days. Long trials were not unknown before 1900, but until the latter part of the century trials would rarely last longer than a day, or two days at the most. This was in part because, once sworn, a jury in a felony case was prohibited from separating until a verdict had been delivered, which led to the unpopular and expensive practice of detaining juries. In practice judges would sit late to finish a case.143 However, although in the late nineteenth century the length of trials was continuing to grow, the overall number of trials was decreasing, as a consequence of the rise of plea bargaining and the growth of summary jurisdiction which aimed to reserve jury trial only for the most serious crimes.144 A consequence of this was a bifurcation in the criminal justice system, with summary trials becoming increasingly less visible, and jury trials for serious crimes attracting ever greater levels of media and public attention. A consequence of this bifurcation was that the image of the contested jury trial came to be the dominant image of the criminal trial. One of the principal reasons why trials were getting longer was the greater number of witnesses being produced as the police effectively took 140 Eigen (2003: 158–60) argues that a latent effect of the reforms of penal in the 1830s was the creation of such a space. There is a useful, if somewhat digressive, account of the late nineteenth-century trial in Stephen, 1883: i. ch XII. 141 Langbein, 2003: 253. 142 For more detailed discussion see Farmer, 2007a. 143 With the result that the defence case was often heard late in the day when the jurors were tired and concentration was poor. See Bentley, 1998: 63–4, 275–7. Once enclosed, a jury was prohibited fire, food or drink—a rule that was not abolished until the Juries Act 1870. 144 See RM Jackson, 1937. On the rise of plea bargaining, see Fisher, 2003; McConville and Mirsky, 2005; Feeley, 1997. On diversion to summary jurisdiction see Philips, 1977; Radzinowicz and Hood, 1986: 618–24.

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over the prosecution process.145 More organised police detective work meant that greater numbers of potential witnesses were contacted and required to appear at trial. These witnesses testified to their respective roles in the discovery of the crime, or their relation to the accused or victim, and through the accretion of such detail the prosecution would seek to reconstruct both the crime and the motives of the accused. However, it is also important to note how certain key witnesses shaped this process of reconstruction. The authority of the professional detective and the scientific expert was central to the interpretation of the evidence of the crime.146 Thus, the case that was being tested was not only a legal one, but was backed by the authority and organisation of the police, such that the defence could not so much present an opposing account of the events—as had been the case with the altercation trial—as respond to the account that had already been organised by the police and prosecution. The accused person could give evidence on oath on their own behalf following the passing of the Criminal Evidence Act 1898 but, as many commentators noted, the effect of this was more often than not to force an accused into testifying to refute the circumstantial case that had been built up.147 The courts began to regulate police conduct in the detention and questioning of suspects, particularly following the creation of the Court of Appeal in 1906, but they were reluctant for a long time to concede that the judges’ rules had the force of law.148 The increasing influence of organised policing had the consequence, in spite of the greater legal protections available in certain areas, of weakening the overall position of the accused. There was also a greater reliance on forensic and medical evidence. Medical witnesses were not unknown in earlier trials, but doctors would rarely have had specialised knowledge of forensic medicine, and there was no systematic procedure for the investigation of suspicious deaths.149 The previously rather haphazard system was reformed in 1836 with the passing of an Act permitting coroners to order medical examinations in the case of suspicious deaths and providing for payment for post-mortem examinations and medical witnesses at Coroner’s Inquests.150 Although this system was not immediately effective, the Act laid the basis for the more systematic investigation of suspicious deaths, increasing the likelihood that 145 Although prosecution was private in name until 1985, in practice the police had taken over prosecution by the late nineteenth century. In more serious cases prosecuting counsel were instructed by the Director of Public Prosecutions, a post created by the Prosecution of Offences Act 1879. 146 On the rise of expert testimony generally, see Landsman, 1998; Jones, 1994. 147 See generally Farrar, 2001. On the movement for reform see Bentley, 1998: chs 15–18; CJW Allen, 1997: ch 5. 148 See Cornish and Clark, 1989: 619–23. 149 See Havard, 1960; chs 1–4; Burney, 2000. 150 6&7 Wm IV c 89 s 1. An act requiring the registration of births and deaths was passed in the same year, showing the public health concerns that motivated both pieces of legislation.

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homicides would be detected. At the same time the science of forensic medicine was developing and a body of Crown forensic experts emerged, the most notable of whom attained a level of celebrity through their involvement in most of the notable criminal trials of the late nineteenth century.151 These ‘medical detectives’ played a key role in the detection and prosecution of crime, their authority resting on a combination of scientific expertise and a carefully cultivated reputation for aloofness and impartiality. As Jones has written: Whereas the police did practical work at the level of investigating and detecting crime, forensic experts also did symbolic work, creating the impression that, once the power of the scientific vision had been harnessed to law, not even the cleverest of villains would escape conviction.152

The increasing use of expert witnesses, and their appearance for both prosecution and defence also led to changes in the rules governing this evidence, in particular with respect to the hardening of the distinction between fact and opinion. In the eighteenth century, medical witnesses would be asked to express their opinions about the likely causes of death.153 By the late nineteenth century the situation was very different, as experts were confined to speaking only on the facts and not to expressing opinions about the ultimate issue in the case.154 Any apparent conflict of expert evidence, however, was regarded as something that had to be tested by the adversarial process of the law, under cross-examination. In the end, the most important roles in the trial were played by the lawyers. First counsel and then the judge would organise the evidence and present theories of the case in their opening and closing addresses, and through the cross-examination of witnesses. Some barristers achieved a public profile, even a kind of celebrity, for their skills in breaking down witnesses through rigorous cross-examination, or for performances convincing reluctant juries to either convict or acquit.155 The judicial role was complex. Judges were expected to exercise self-restraint and to remain aloof from the arguments in court, as a way of contributing to the esteem of the court, yet at the same time to organise the evidence and lead the jury through the arguments. Indeed, many popular accounts of trials from this period present cases as conflicts whose outcome might be determined either by the choice of counsel or by the identity of the judge or by the

151 See Jones, 1994: ch 5. One of the most famous was Sir Bernard Spilsbury: see Browne and Tullett, 1951. 152 Ibid at 88. 153 See Stephen, 1883: 381–7. For an example see the trial of Mary Blandy: Roughead, 1914: 80–88, 101–04. 154 See R v Wright (1821) Russ and Ry 456; 168 ER 895. 155 The most famous was probably Edward Marshall Hall, but there were others such as Edward Carson, F E Smith and so on. See Broad, 1958; Birkett, 1962.

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outcome of the clash between counsel and the accused. In this sense the trial was literally staged for the jury—and, by extension, for the external audience of newspaper readers. Their role was not only to look for clues, but also, in an important sense, to judge the performance of the actors in the trial.156 In comparison to the display of authority in a public execution, the trial might offer a display of individualism, but in the staging of the reconstructive trial it was the personality of the lawyers, detectives and scientific experts that came to dominate. By the first half of the twentieth century, then, the adversarial trial had been thoroughly professionalised, dominated by lawyers, police and expert witnesses, and oriented towards the effective processing of criminal cases. The position of the accused was relatively weak: permitted to testify on oath, but under conditions that would limit the effectiveness of that testimony, and could undercut protections such as the right to silence. The trial remained the public face of the criminal justice system, but it is interesting to note that the understanding of the political role of the jury trial in the defence of liberty had diminished, giving way to a focus on forensic details of the crime and the personality of the accused.

2.5.

THE TRIAL IN HISTORY, IV: THE ADVERSARIAL TRIAL IN THE LATE TWENTIETH CENTURY

The development of the criminal trial in the late twentieth century can be characterised in general terms by the rise of the idea of the importance of due process. Yet this has been far from a straightforward development. Although this idea of due process is reflected in constitutional and international norms, domestic systems of criminal law have continued the pattern of bifurcation (or even fragmentation) that we noted developing in the earlier period. While in some cases criminal trials have become even longer, and are the focus of an even greater media attention, in the vast majority of cases there are attempts to avoid criminal trials, or where trials do take place to speed up the process through a development of the role of the judge as case manager. In this final section, we will look briefly at three things: first, the rise of due process and the right to a fair trial in both domestic and international contexts; second, some developments in criminal procedure over the last fifty years and their impact on the number and conduct of trials; third, the paradoxical impact of these two developments—that while there may be fewer trials occurring now than ever before, the demand for trials and the expectations of what might be 156 cf the more political conception of the jury that was common in the early part of the period: see Farmer, 2007b.

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achieved by a trial are greater than ever before. This is why a normative theory of the trial is required now, as never before. The idea of fair trial or due process is captured in the beliefs, on the one hand, that the citizen requires protection from the state and, on the other, that there is a kind of ‘inner morality’ to criminal procedure. While the trial aims to establish whether the accused person should be condemned as an offender, the state simultaneously limits itself in the means that may be used for this process. In a useful summary, Hildebrandt has suggested that there are six core elements to this idea of the fair trial, as it is expressed in documents such as the European Convention of Human Rights.157 These are that: (1) the judge is impartial and independent; (2) the trial is public; (3) the defendant will not be punished without a legal finding of guilt (the presumption of innocence); (4) there is an equality of arms between prosecution and defence; (5) the judgment will be based on evidence presented in court (a principle of immediacy, connected with a normative preference for oral testimony); and (6) the proceedings are based on a right of confrontation. We might add to this the further point that these principles governing the conduct of the trial and criminal process are increasingly conceived in the form of rights or constitutional guarantees, available to the accused, enforceable against the state.158 This points to the fact that the rise of this new conception of the fair trial has been shaped by the protective understanding of the criminal trial. It is, however, also important to note that a further internationalisation of the fair trial is taking place with the adoption of these principles in international criminal tribunals such as the newly established International Criminal Court, where the dominant idea is perhaps less that of individual protection than that the international community should be seen to be acting according to demonstrable principles of fairness.159 Domestically there has been a continuing reduction in the numbers of jury trials, relative to other procedures for the disposal of crime. This is, in part, a consequence of the seemingly inexorable rise of plea bargaining. However, it also reflects a certain ambivalence towards juries and jury trials. Whilst jury trials are seen as being of central importance for the trial of certain serious crimes, and the idea of the jury trial as a constitutional guarantee of liberty is still affirmed, the government has sought to evade it in cases in which it is believed that a jury might not comprehend the complexity of the case, or where trials might be unduly long or burdensome, where the cost of jury trial is seen as disproportionate to the matter being tried, or where the use of a jury is seen as potentially interfering with

157 158 159

See Hildebrandt, 2006. On the age of rights see Loughlin, 2000: 202–08. See, eg, Cassese, 2003.

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requirements of national security.160 This is accompanied by a certain degree of public wariness about the jury trial. While the criminal trial remains an object of public fascination to an unprecedented degree, it has also come to be viewed as a deeply flawed institution where money and power routinely distort the possibility of just outcomes through the manipulation of legal ‘loopholes’ or the purchasing of expensive legal teams or scientific experts. Its recent history is seen as a period of decline.161 These developments have been accompanied by other changes in the law which have sought to make the criminal justice process more effective and which have had an impact on the conduct of the criminal trial. Of importance here is the creation of the Crown Prosecution Service in 1985, making prosecution the responsibility of the state—though in practice this amounted to the removal of the prosecution function from the police. The informal procedures regulating police investigative powers were reformed by the Police and Criminal Evidence Act 1984.162 This, it has been argued, had the effect of ‘controlling police evidence and shifting the focus away from often disputed confessions to the real evidence in the case.’163 Most recently this demand for efficiency has led to proposals for judicial case management as a means of controlling the increasing cost and length of criminal proceedings.164 The proposals are significant because they seek to reduce some of the more adversarial aspects of criminal proceedings, by requiring parties to agree on timetables for the case or on uncontroversial evidence. Of equal importance was the modification of the so-called right of silence in 1994, allowing juries to draw an adverse inference from the silence of the accused when interviewed by police, which created further pressure on the accused person to enter the jury box.165 Finally we should note the increasing use of reverse burdens of proof in statutorily created crimes, which aim at requiring an accused person to offer an explanation of their behaviour once an initial prima facie case has been established by the prosecution.166 It is hard to assess the overall impact of these changes on the criminal trial. A number of suggestions can, however, be made. Overall, notwithstanding the continuing adherence to the principle of the presumption of

160 These developments are reviewed in Thornton, 2004; Ashworth and Redmayne, 2005: 300–07 161 These themes can be seen in a recent popular history: Kadri, 2005. 162 Previously procedures for the interviewing of suspects had been regulated only by the Judges’ Rules. A similar measure (though without the codes of conduct) was introduced in Scotland in the Criminal Justice (S) Act 1980. 163 Thornton, 2004: 692. 164 See Auld, 2001; Bonomy, 2002; Jackson and Doran, 1997. 165 Criminal Justice and Public Order Act 1994 ss 34–9. 166 See Ashworth and Blake, 1996; Ashworth, 2004; Tadros and Tierney, 2004.

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innocence, it seems clear that the standing of the accused person has shifted. As a consequence of changes in policing and prosecution they are no longer seen as an innocent, an equal who happens to have been charged with a crime, but are instead frequently viewed as suspects, required to answer the charges, and whose silence is seen as an obstacle to criminal justice. Second, the standing of the judge has changed, as they are now expected to combine judicial impartiality with an understanding of their managerial role in a criminal justice system that is increasingly oriented towards the securing of convictions. Finally, we should note the ‘rise of the victim’, which has been accompanied by the demand that the victim should have the opportunity to have their voice heard in court, and that the trial should offer the opportunity for them to achieve ‘closure’ on the crime— arguably placing a burden on the criminal trial (and the actors in the trial) that it is (and they are) ill-qualified to carry. Such an interpretation of recent developments clearly points towards the need to think about a theory of the trial in terms of the theme of protection—to institutionalise protections that are being eroded, and to secure the individual against an ever-expanding state power. In the next part of the book, however, we shall argue for a communicative theory of the trial, as being the theory that best serves the ends of protection and participation in a liberal democratic society.

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3 Truth and the Trial

I

N CHAPTER TWO we traced some of the key historical developments both in the trial process itself in England, and in normative conceptions of the proper purpose of the criminal trial. Several of the themes highlighted in that admittedly very selective history will be picked up in what follows; three will be particularly important. The first is that of participation, in particular the participation of the defendant who was to be called to account, put to the test, or brought face to face with his accusers. The second, appearing later in the trial’s history, is that of defence and due process—the way in which the trial and its procedures came to be seen as protecting citizens against the potentially (and all too often actually) oppressive power of the state. The third, more recent still, is that of efficient management—the concern that the criminal process should deal efficiently, ie cost-effectively, with alleged and suspected offenders, and that the trial, as part of that process, should be so structured and organised that it serves that goal of efficient management. Our own normative account of the contemporary criminal trial builds primarily on the first of these themes; we begin its development by examining what appears to be an obvious, central aim of the criminal trial throughout its history—that of establishing the truth about whether the defendant committed the offence charged against him. The apparently obvious centrality of such an aim, and a simple account of why it matters, appears when we ask what role a practice like the criminal trial could play within a system of criminal justice. If that system includes both a substantive criminal law that defines offences, and a system of punishments to be imposed on those who commit such offences, a simple instrumentalist answer to this question seems tempting. Whatever further aims the system of criminal justice might have, a central aim internal to it must be to punish those who commit criminal offences: the purpose of the trial is then to identify those who have committed such offences, in order that punishments can be directed to them; the trial, and the criminal process of which it is the final part, connect the substantive criminal law to the penal law, to ensure as far as possible that the state imposes its penal sanctions on those for whom they are intended. There is clearly something right about this view, but we will argue in this chapter that the role of truth in the trial, or as an aim of the trial, is more complex

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than this simple instrumentalist account suggests. Three points will be important. First, the truth at which the trial purports to aim has an intrinsic, not merely an instrumental, importance among the aims of a criminal justice system. Second, the truth that is sought is not merely a factual or non-normative truth about whether the defendant’s conduct satisfied the law’s definition of a criminal offence, but a richer, normative truth about whether the defendant is guilty of a wrong for which he is to be condemned. Third, that what is sought is not merely truth, but something like knowledge.

3.1.

SIMPLE INSTRUMENTALISM AND THE TRIAL

The ‘reason for having trials in the first place’, say the authors of an authoritative textbook on the criminal process, ‘is, primarily, to make accurate decisions’.1 This is stated not as a controversial thesis that requires argument, but as an obvious truth: although Ashworth and Redmayne also describe the ‘twin objects of the criminal trial’ as being ‘accurately to determine whether or not a person has committed a particular criminal offence and to do so fairly’,2 it is clear that that accurate determination constitutes the primary aim of the trial. If we ask why ‘accurate decisions’ matter, the equally obvious answer is that they matter in a way analogous to that in which accurate diagnoses matter in medicine: a diagnosis identifies those who require medical treatment, and enables the doctor to find the appropriate treatment for the patient; accurate decisions at a criminal trial identify those who merit punishment, and enable sentencers to determine the appropriate punishment for the convicted defendant. Accurate verdicts can thus serve both the aim of subjecting those who commit offences to punishment, by identifying the guilty, and the aim (which is integral to the retributivist aim of punishing the guilty for their crimes) of fitting punishments to crimes, by identifying the particular crime that the convicted defendant committed. Trials, on this simple view, aim at truth: the truth about whether a particular person, the defendant, committed the criminal offence specified in the charge. The value or importance of that truth is instrumental, a means to the proper application of penal sanctions. One immediate disanalogy between trials and medical diagnoses is that a doctor is likely to be at least as concerned to avoid mistaken decisions that a patient has nothing wrong with him as to avoid mistaken diagnoses of illness. By contrast, the presumption of innocence in criminal trials implies that it is more important to avoid convicting the innocent than it is to 1 2

Ashworth and Redmayne, 2005: 299. Ashworth and Redmayne, 2005: 22.

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avoid acquitting the guilty. But this need not yet worry the instrumentalist, who can explain the presumption of innocence by arguing that the consequences of a mistaken conviction are very much worse than those of a mistaken acquittal, so that we should err on the side of acquittal rather than of conviction. A simple instrumentalism need not be so simple as to hold that the sole reason for trying to arrive at accurate decisions is to identify those who are to be punished; or that trials should be structured solely by the search for accurate decisions. It can allow, first, that other benefits also flow from making accurate decisions about guilt: this will, for instance, offer satisfaction to victims and others; it will reassure citizens (especially if the process is public) of the law’s efficacy; and it will sometimes enable those wrongly suspected of crimes to have their names publicly cleared.3 Instrumentalists can also recognise other goals that the trial might properly serve—for instance, symbolic goals to do with the display or reassertion of the law’s authority, and the expression and validation of public sentiments about crime. However, the trial can serve such goals as these only because it presents itself as a search for accuracy or truth: as an attempt to establish whether this defendant committed this crime. Instrumentalists can also argue that the purpose of the trial is not to arrive at accurate decisions by whatever means might be effective. Even if the ‘general justifying aim’ of the institution is to reach accurate verdicts, the pursuit of that aim can be subject to side-constraints that rule out some means of achieving accurate verdicts, in the light of other values that also bear on the trial.4 It might, for instance, serve the aims of accuracy to require defendants to give evidence at their trial: but even if it would do so, we might think it wrong to impose such a requirement, on the grounds that the state should not require suspected offenders, on pain of further punishment, to play such an active part in their own trials.5 Such side-constraints are ‘external’ to the aim of arriving at accurate decisions: they do not flow from that aim, and might indeed hinder its pursuit. Some theorists also suggest that they are ‘external’ to the trial, or to the criminal process more generally. For them

3 See, eg, J Jackson, 2004. Although given the presumption of innocence, a mere acquittal cannot be expected to have that effect; only proof of the defendant’s innocence can achieve that. 4 Compare Hart’s model of criminal punishment: the ‘general justifying aim’ of the practice is preventive, but in pursuing that aim we must respect side-constraints of justice limiting punishment to the guilty and to what is proportionate: Hart, 1968: ch 1. On side-constraints in moral and political reasoning generally, see Braithwaite and Pettit, 1990: 26–36. 5 It could be argued that such a requirement would not always or even generally serve the aim of accuracy, since evidence that is legally coerced, from someone with a strong interest in securing a particular verdict, might well be unreliable: but the point is that we have reason not to impose such a requirement even if it would serve the aim of accuracy.

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the aim internal to the trial is the search for truth, and such sideconstraints on that search reflect values that are external to that aim.6 We will argue later that many of what the instrumentalist portrays as sideconstraints should rather be seen as internal, not merely to the trial process (as Ashworth and Redmayne can be taken to hold, in talking of fairness as one of the ‘twin objects’ of the trial), but to the truth-seeking aim itself, properly understood. The point here is simply that an instrumentalist who takes accurate decisions to be the primary aim of the trial, and takes their value to be instrumental to the further aim of subjecting offenders to appropriate punishments for their offences, need not be a pure instrumentalist who thinks that every justified aspect or feature of the trial must be rationalised in instrumental terms of its contribution to a further aim. This instrumentalist view is not completely wrong: trials do aim at determining truth, and an obvious reason for pursuing that aim is indeed that that truth determines certain further legal consequences. A trial begins with a formal accusation being put to the defendant, that she committed a specified crime: the accusation—the ‘indictment’ or ‘information’—sets out both the specific offence that the defendant allegedly committed, and the ‘particulars’ of how and when she committed it.7 If the defendant pleads ‘Guilty’, she formally admits the truth of the charge as thus set out. If she pleads ‘Not Guilty’, the prosecution must then attempt to prove the charge to be true, and the court must determine whether it has succeeded in this. By convicting the defendant it declares the charge to be true, and the most obvious implication of a conviction is that the defendant is liable to be punished, whereas when she is acquitted she is freed from the threat of punishment. However, there are several reasons why we should not rest content with the simple answer. These reasons emerge when we ask, first, just what truth the trial is supposed to establish; second, why it should be so important to establish that truth; and third, what role the search for that truth should play in the trial. Simple instrumentalism, we will show, fails to capture the intrinsic importance of the attempt to establish and declare the truth that a trial should involve; and it cannot explain a number of features of the trial that are normatively significant.

6 See, eg, Damaška, 1997: 12–14; Galligan, 1988; P Duff, 2004a: 155–6. Contrast Dennis, 2007: ch 2; J Jackson, 2004. 7 See, eg, Sprack, 2006: 165–9, 239–65, for the English rules; LaFave et al, 2004: chs 19–21, for American provisions; Criminal Procedure (S) Act 1995 s 64 (2) sch 2, for the Scottish rules. As we noted earlier (ch 1, n 6), some would take this to be a pre-trial process, with a trial properly speaking taking place only if the defendant pleads not guilty. However, we will portray the trial as the formal process in and through which an alleged offender is called publicly to answer a charge of wrongdoing: the putting of the indictment or information thus marks the start of the trial, and the plea constitutes the defendant’s formal answer. The precise nature of the process that follows from the accusation will differ according to the answer that is given, however we will argue that there are strong reasons for seeing this as the start of the trial, as we see when looking at guilty pleas (see below, ch 6.2).

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Some will argue, of course, that simple instrumentalism is more radically mistaken, as is any view that portrays truth as the, or even as an, aim of the criminal trial. Given the structure of the trial, they argue, and the role that trials actually play in our systems of criminal justice, it is quite implausible to claim that they have truth as an aim: their procedures and workings are obviously quite ill-suited to such an aim.8 There are indeed aspects of the trial which inhibit the search for truth, and which—we will argue—cannot be dismissed by a normative theory of the trial; we will discuss some of these later, and show how some of them might be accommodated by a normative theory. The actual operations of criminal trials in our existing systems are also all too often so ill-suited to the establishment of the kind of truth that the trial claims to seek that we might wonder whether that claim is anything more than mere rhetoric. But our enterprise is one of normative theory, not of empirical analysis: our question concerns what trials ought to be, and our claim is that we can provide a plausible account of what they ought to be by taking seriously the rhetoric in which they are clothed. If we can provide a plausible normative account of trials which makes the attempt to establish a particular kind of truth one of their central aims, this will also provide the basis for a critique of features of our current practices which hinder that aim.9 However, we must first attend briefly to a rather different instrumentalist or functionalist normative conception of the trial, which gives truth and the search for truth a rather different significance.10 On this account, the proper aim of trials, as of the criminal process generally, is to resolve ‘disputes’; the truth, and the search for truth, matter only insofar as they are useful or necessary as means to that end.11 An initial question about such a conception concerns the character of the ‘dispute’ that the trial, or the criminal process more generally, is to resolve. One kind of ‘dispute’ is that which is generated or constituted by a crime: thus Weigend talks of the ‘conflict … between the victim (or “society”) and

8 For different versions of this kind of argument, see, eg, Nobles and Schiff, 2006; Damaška, 1998; Rock, 1991; Frankel, 1975. See also Langbein, 2003. 9 See below, ch 6. 10 There are in principle as many possible instrumentalist accounts of the trial as there are accounts of the ends that the criminal law should serve: see, eg, Braithwaite and Pettit’s (1990) account based on ‘dominion’ as the final aim—an account that they think helps explain not only why trials should aim to establish truth (as well as to reprobate offenders), but also why trials should be fair (because potentially oppressive state power must be checked), and how the frequency and cost of contested trials can be properly reduced. Our objections to the simple instrumentalist account will also apply to other instrumentalist accounts, since they show that the value of the truth at which trials should aim cannot be understood in instrumental terms. 11 See, eg, Weigend, 2003; Jung, 2004 (both drawing on Luhmann, 2001). See also Nobles and Schiff, 2006. Contrast J Jackson, 2004.

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the offender’.12 This echoes some familiar themes of abolitionist thought, in particular the idea that we should reconceptualise crimes as ‘conflicts’ or ‘troubles’,13 and raises the question that such abolitionists want to emphasise—that of why we should look to a system of criminal law to resolve such ‘conflicts’, rather than looking for other modes of negotiation, mediation and reparation. Now there is a sense in which, on the account that we will offer, criminal trials should indeed aim to ‘resolve’ such ‘disputes’: if the trial brings offenders to answer for the wrongs that they have committed, it constitutes at least an important part of an appropriate response by the polity to those wrongs—a response which, whilst it cannot undo the wrong, can offer a proper kind of satisfaction to those directly affected, and thus help to achieve a ‘resolution’ of the problem constituted by the wrong. But it is misleading to use the language of ‘conflict’ or ‘dispute’ in the context of what are properly defined as crimes, ie as wrongs that require a formal public response.14 Conflicts or disputes are disagreements that require negotiation, and that might be resolved by suitable compromise between the demands of each party; crimes are wrongs that must not be committed, and whose wrongness should not be a matter for negotiation or compromise. A second kind of ‘dispute’ is more relevant to the criminal trial: that which arises when there is disagreement about whether D committed a specified wrong—about whether it was D who committed what it is agreed was a wrong, or about whether what D did constituted a criminal wrong. Weigend talks of the ‘conflict … between the prosecutor and the defendant about the defendant’s guilt’, and also of ‘the social unrest caused by the suspicion of a crime’.15 Perhaps, then, we should see the trial’s proper function as being the resolution of this kind of dispute—a resolution that will settle the issue between accusers and accused, and thus also alleviate the unrest that unsettled accusation or suspicion may cause. There is surely something right in this conception of the trial. If the defendant pleads guilty, the trial marks the formal resolution of any such dispute. If the defendant pleads not guilty, the dispute can be resolved through a contested trial that produces a verdict that the various interested parties can accept (though it might fail in that aim); and we can hope that this process, together with the imposition of whatever sentence follows a conviction, will bring satisfaction, or ‘closure’, to those affected by the crime, and persuade them to regard the matter as settled. But there is also

12 13 14 15

Weigend, 2003: 169. See, eg, Christie, 1977; Hulsman, 1986. See RA Duff, 2001: 60–64. Weigend, 2003: 169.

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something deeply wrong with such a functionalist account (as a normative account), as we can see when we look more closely at the role it can allow to truth in the trial. Before doing that, we must ask how ‘resolution’ is to be understood in this context. The most natural understanding is psychological or sociological: a dispute is ‘resolved’ when an outcome is reached that in fact satisfies the demands or wishes of all the parties concerned, that brings them to agreement, that brings an end to the felt or visible tensions that existed between them. A dispute is in this sense resolved when those who were parties to it no longer see or feel themselves as being in conflict. Another understanding is possible, however—one that takes, for instance, the dispute about D’s guilt to be properly ‘resolved’ by proof that D committed the crime or (given the presumption of innocence and its implications) a definitive failure to produce such proof. On this view what properly resolves the dispute is establishing the truth, and the dispute is in that sense resolved whether or not the parties involved accept that proof or cease to feel themselves to be in conflict: to say that the matter is settled is then to say, not that they have in fact moved from conflict to agreement, but that they ought to do so.16 The truth is now constitutive of, rather than a means to, the resolution of the dispute about D’s guilt. Our own account will give criminal trials the function of resolving disputes in this second sense, but this is not the sense in which theorists typically talk of dispute resolution. We will therefore focus, initially, on the first interpretation of dispute resolution as a matter of psychological or sociological fact. It might seem that truth must still, on this view, be the or a central aim of the trial, since it is through establishing the truth that both kinds of ‘dispute’ can be resolved: we resolve the dispute about whether D committed the specified wrong by establishing the truth of whether he did so or not; and the parties to the dispute constituted or generated by the commission of that wrong can resolve it by facing up to and dealing with the truth of its commission. But matters are not that straightforward, for three reasons. First, we can presumably hope that those with an interest in the matter will find at least some satisfaction in an honest and committed, but unsuccessful, search for the truth: that is to say, what matters might not always or only be the discovery of the truth, but rather an attempt to establish it. If the defendant is acquitted, either because his innocence is proved or because his guilt cannot be proved to the appropriate standard,

16 Though there might be some sliding between the two senses: compare the way in which ‘legitimacy’-based justifications for some exclusionary rules of evidence slide between appeals to what will in fact undermine public confidence or trust, and appeals to what would undermine confidence among ‘reasonable’ people—See, eg, Dennis, 2007: 101–6; P Duff, 2004a: 174–5; Ashworth and Redmayne, 2005: 318–19.

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this may be frustrating for the victim, and for other concerned citizens: but if the trial marked the culmination of a conscientious attempt to identify and convict the offender, they should find some satisfaction in that fact.17 We need not quarrel with this implication of the functionalist, dispute resolution account, however: both because truth remains the immediate aim of the trial, although the trial has value even when it fails actually to achieve that aim; and because on our account the same will be true—that a trial can still be a kind of success, and achieve at least part of its proper aim, even when it fails to establish either D’s guilt or her innocence, so long as it constitutes an appropriate attempt to establish the relevant truth. Second, if what is to be resolved is the actual dispute between prosecutor and defendant (whether we see the prosecutor as speaking for the state, the victim, or the community), then what matters is not so much whether the truth of the matter is established as whether a story is produced to which both prosecutor and defendant can agree.18 So, for instance, a bargained plea of ‘Guilty’ to a lesser charge than that which was initially laid can resolve the dispute. Similarly, a defendant might have been suffering, at the time of the offence, from a mental disorder that could ground an insanity defence; but he might not offer an insanity defence (for obvious reasons, given the effect of such a defence). Unless the prosecution allege insanity on his behalf, his (in)sanity is not then part of the ‘dispute’, and he will be tried as if he had been fully sane and responsible; the resolution of the dispute would then omit a crucial aspect of the truth, thus seriously distorting the overall truth about D’s guilt.19 Some might talk now of ‘procedural truth’, counting as ‘true’ whatever account emerges from a fair criminal process, but that is misleading.20 We may say that whatever verdict emerges from fair procedures is legitimate and should be accepted, but we should not pretend that every such verdict is true. What is true, for instance, is that D committed the crime under the influence of a psychotic condition that rendered him non-responsible for that action. It might suit both the prosecution and D not to bring that truth out in the trial, and there might be good reason for trial rules that allow them both not to raise the issue. This might render D’s conviction just or warranted, but does not render the verdict true. Nor will it do to abandon talk of truth, and portray the trial as an instance of ‘pure procedural justice’—as a process whose

17 It is worth noting, however, that it is misleading to talk here of ‘dispute resolution’: what needs ‘resolving’ need not be a dispute, but could just be ignorance of or uncertainty about the identity of the perpetrator. 18 This point applies especially, and perhaps only, to ‘adversarial’ trials, which are our present focus: we will comment in Part III on ‘inquisitorial’ criminal processes. 19 See Weigend, 2003: 171; also more generally McEwan, 1998: 5, 11, on the way in which the ‘truth’ that the trial can establish is limited by what matters the parties put in issue, what evidence they present, and what the witnesses are allowed to say. 20 See Weigend, 2003.

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outcomes can be assessed only in terms of the justice of the procedures from which the verdict emerged: if D is convicted after a trial that respected every procedural nicety, there is still room to ask whether he was actually guilty, and to judge the conviction as mistaken (even if warranted) if he was not. Third, one response to the previous point might be to say that the dispute that the trial is to resolve is not just between defendant and prosecutor, but between defendant and victim, or other properly concerned citizens: even if defendant and prosecutor agree on a plea bargain, or decline to raise the issue of sanity, that might not satisfy others who want to know the truth of the matter. One problem with this response is that it is not clear how much other people will care about the truth: if the question is what will in fact satisfy them, the answer might too often be that what will satisfy them is that someone is convicted for the crime (especially if the crime aroused public outrage), or (in the case of insanity) that this dangerous person is put away. Another problem is that if our concern is with what will in fact satisfy people, what matters is not truth, but the appearance of truth: but the conviction of an innocent person is not a successful outcome of the trial, even if he is believed to be guilty. We might say that what people should care about, and want to be established, is the truth: but that is to slide into the other interpretation of dispute resolution, according to which what resolves the dispute about D’s guilt is indeed establishing the truth—not because this will satisfy the demands or desires of those involved, but because that is what constitutes the resolution of the dispute. More generally, our suggestion will be that this kind of functionalist account gets things the wrong way around. To the functionalist, truth matters (insofar as it does matter) as an aim of the trial only because it is a means to a further, independently identifiable, end of dispute resolution. On our account, by contrast (which we will defend in what follows) trials should indeed seek to resolve disputes about D’s guilt: but that is because they should aim to establish the truth, and because people (victims, citizens) should be interested in whether D is guilty, and thus in establishing the relevant truth. What is fundamental, in other words, is the truth and its significance: whatever ‘dispute’ there is matters only because the truth matters, and its resolution is, constitutively and not contingently, achieved by establishing the truth.21

21 Thus one could see the ‘altercation trial’ (see ch 2.3 above) as aimed at ‘dispute resolution’ through the confrontation between accused and accusers; but the dispute could be resolved only be a supposedly true determination of the accused’s guilt or innocence.

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WHAT TRUTH?

Talk of ‘accurate decisions’ as the primary aim of the trial might be read as implying that the aim is to arrive at an accurate record of a matter of fact: whether the defendant committed (or has been proved to have committed) the offence charged.22 But what kind of fact is that? If we ask first what kind of decision or verdict the criminal justice system itself requires, to serve its ends, the answer must be that it requires something much more than a bare finding of fact. A verdict of ‘Guilty’ makes the defendant eligible for punishment; indeed, it could be read as mandating her punishment. Now punishment, we are assuming, is justified only if it is warranted by the defendant’s criminal wrongdoing: thus if trials are to identify those who are to be punished, what is required is a finding or decision not merely that the defendant acted in a way that satisfied some factual specification, or that contravened some specified rule, but that she committed a criminal wrong that deserves or warrants punishment.23 The ‘accuracy’ at which the trial must ultimately be aimed is therefore a normative accuracy; the facts that are to be established are normative facts about the defendant’s alleged wrongdoing. (Theorists who take a non-cognitivist view of moral thought might not want to talk about accuracy’ or ‘facts’ in this context, or about ‘proving’ or ‘coming to know’ that the defendant committed a wrong.24 Perhaps ‘accuracy’ is not an apt term: for even if we can talk of moral knowledge, any such knowledge involves dimensions of understanding and interpretation that ‘accuracy’ cannot capture. As for such notions as ‘truth’ and ‘fact’, however, and the related notions of knowledge and proof, we cannot enter here into the debate about moral truth and knowledge; but we take it that any plausible philosophical account of moral thought will find some role for those notions—that the real debate is not about whether we can properly talk of moral truth and knowledge, but about just what such truth and knowledge amount to.) How then is the trial to serve the end of establishing whether the defendant committed a criminal wrong that warrants punishment? The simple answer is that it should serve that end directly: a verdict of ‘Guilty’ should express the court’s finding that the defendant committed such a 22 As we will see in 3.4 below, the question is better expressed as one about what has been proved, beyond reasonable doubt. For those who distinguish ‘offences’ from ‘defences’, a finding that the defendant committed the offence does not settle the issue of her guilt, since it leaves open the question of whether she had a defence. For simplicity’s sake, however, we will use ‘committed the offence’ to mean ‘committed the offence, with no defence’. 23 That judgment is, however, meant to be focused on the crime that the defendant allegedly committed, not on his character more generally (cf ch 2 at n 88 above; and see further ch 4.4 below). 24 For a useful survey of the contemporary debate, see Sayre-McCord, 1998; for illustrative examples of the competing views, see Paul et al, 2001.

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wrong—the wrong that he was accused of committing. Such a simple answer is also, however, problematic in several ways. First, it seems to require the ‘fact-finders’ at trials—jurors, magistrates, sheriffs, judges—to make that strongly normative judgment in their own voice. What they must be able to say is not just that the defendant’s conduct satisfied the legal definition of the relevant offence, but that in committing that offence he committed a wrong that merits punishment. They must be able to say that, not in their own first-person-singular voice as individuals, but in the first-person-plural voice of representatives of the law or of the polity whose law it is. A verdict of ‘Guilty’ must express their own judgment that this defendant deserves punishment for what he has done. They are not, of course, invited to exercise a wholly unguided discretion on the question of wrongdoing and punishment—to decide whether this person has committed some wrong that deserves punishment (although on some views of the Scottish courts’ ‘declaratory power’, it precisely gave judges the power to declare to be criminal conduct that they thought constituted a punishable wrong, whether or not it satisfied a pre-existing offence definition).25 They must decide on the basis of the specific charge brought against the defendant. But they must, as it were, make that charge their own as a charge of punishment-deserving wrongdoing; which raises the question of whether judges and jurors should be expected to take on such a normative responsibility. For, second, what then are they to do if they do not think that what the law defines as an offence is a punishment-deserving wrong? There is of course a spectrum of possibilities here, ranging from relatively modest dissent from a small aspect of the law to utter rejection of the whole system: perhaps the fact-finder thinks that the offence is defined a little too broadly—for instance, that sexual intercourse with someone under sixteen should be criminal only when the offender is at least five years older;26 perhaps she thinks that the defendant has what the law should (but does not) recognise as a defence—that his conduct should count as legitimate self-defence, for instance,27 or that serious social disadvantage such as he had suffered should constitute a defence;28 perhaps she thinks that what the defendant did—for instance, growing cannabis for his own use—simply should not be criminal; or perhaps, at the extreme, she regards the whole criminal justice system as so unjust or corrupt that it has no right to punish anyone. The extreme case is, for the time being, unproblematic, since such 25 On the scope and limits of the ‘declaratory power’, see Gordon, 2000: 15–40. Compare the reasoning of the court imagined by AP Herbert in Herbert, 1935—a man who jumped off a bridge into the Thames during a regatta must be guilty of something, although it was quite unclear what specific offence he had committed. 26 Contrast Sexual Offences Act 2003 ss 9–13. 27 As perhaps in Martin [2002] 1 Cr App R 27. 28 See, eg, Delgado, 1985.

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a radical dissenter will presumably have no ambition to be a conscientious fact-finder: but the intermediate cases are more problematic, since they raise the question of what a conscientious fact-finder is to do, and what the criminal justice system can properly demand of her. Perhaps when her disagreement with the law is relatively minor, she can be expected to be willing, as an official of the system or as a citizen of the polity, to accept the law as being democratically legitimate, and to make the judgment that the law demands—to speak in the collective voice of the polity and its law so long as that voice is not too different from the voice in which she would speak for herself in the first person singular. But when the disagreement is serious, it is more problematic to say that she ought to judge the defendant to be guilty of punishment-deserving wrongdoing. It is one thing to say that she should accept the law unless and until she can secure its democratic reform, ie that she should not resist it, and should obey it insofar as it bears on her conduct; it is another thing to say that she must also, if she is called to serve as a fact-finder, make her own the judgment of penal desert that the law mandates.29 Third, there are possible solutions to this problem, but not easy ones. One solution is jury (or fact-finder) nullification: if jurors do not agree that the defendant has committed a wrong, as specified in the charge, that merits punishment, they should vote to acquit.30 Or the law could allow for conscientious objection: a fact-finder would be entitled to refuse to serve in a particular case if she could not convict with a clear conscience. But jury nullification is controversial, especially if the question concerns (as ours does) the legal rather than the moral responsibilities of fact-finders: is the law itself to say to the fact-finder that she should acquit those who are guilty in law if she does not think that they have committed a punishmentdeserving wrong? Conscientious refusal to serve does not raise that problem, but it does raise both theoretical questions about the scope and extent of the responsibilities of citizens (and magistrates and judges), and practical questions about its workings (since it might well not be clear to a juror in advance of hearing the case that she does have a conscientious objection). Perhaps, however, we can avoid these problems by reconsidering the trial’s relationship to the system’s goal of identifying those who have committed punishment-deserving wrongs. Perhaps the trial is not, and should not be, intended to serve that goal directly by establishing whether 29 Although we talk here of ‘fact-finders’, to cover both trials with and trials without juries, the issues raised are clearly to some degree different as between jurors and magistrates or judges, if only because jurors are typically required to serve, whereas judges and magistrates have chosen to take their jobs. 30 See Matravers, 2004; also, more generally, Schopp, 1996; King, 1998; Abramson, 2000: ch 2; Auld, 2001: 175–6. For the historical background, see above, ch 2 at nn 76, 95–7, 135; TA Green, 1985.

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the defendant committed a punishment-deserving wrong, but should rather serve it indirectly, by establishing a less normatively ambitious finding—a finding from which the system-level judgment of punishment-deserving wrong can be inferred, but which does not itself make that judgment. The criminal law defines criminal offences, and defines them as criminal wrongs that merit punishment; but the purpose of the trial, as just one element in the criminal justice system, is to establish whether the defendant committed the criminal offence with which he is charged, without also having to establish or find that that offence constitutes a criminal wrong that merits punishment. The relation between offences and wrongs, the task of so defining offences that they match wrongs, is a matter for the legislature; the trial’s sole concern is with offences. Just what this would imply for the trial, and for the fact-finders’ responsibilities, depends on how offences should be defined. Here too there is a spectrum of possibilities. At one end, offences would be defined in purely factual terms, so that whilst it might be empirically hard to determine whether the defendant committed the offence (since facts can be very difficult to establish), no normative judgment would be required from the fact-finder. Thus instead of having to decide whether the defendant was driving at dangerously excessive speed, which might involve having to make a normative judgment about whether he created an excessive risk of harm to others, or whether he was driving in a way that fell ‘far below what would be expected of a competent and careful driver’,31 the factfinder might just have to determine whether he was driving at a specified speed and whether this exceeded the speed limit in force for that particular road. At the other end of the spectrum, offences would be defined in the kind of richly normative terms that directly explicate the character of the wrong in question: murder, for instance, might be defined as causing death by an action done with a ‘wicked intention to kill’ or ‘displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences’.32 However, fact-finders would not be expected to make these normative judgments in their own first-person voices: they would be expected only to make the kind of ‘detached normative statement’ that records how matters would be judged in the light of some value or standard to which the speaker does not purport to be committed.33 This is how we can read the Court of Appeal’s dictum in Ghosh that to decide whether a defendant acted ‘dishonestly’ in a case of theft or obtaining by deception, the jury must first ‘decide whether according to the ordinary

31

Road Traffic Act 1988 s 2A. See Gordon, 2001: 290, quoting Macdonald, 1948: 89, as glossed in Drury v H M Advocate 2001 SLT 1013 paras 10–11. 33 On ‘detached normative statements’, see Raz, 1979: 153–9. 32

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standards of reasonable and honest people what was done was dishonest’.34 Although this direction seems to require the jurors first to identify the set of ‘reasonable and honest people’ (applying whose standards?), what it in effect requires is that they apply not their own standards of honesty, but the prevailing standards of the community (in so far as such standards exist)—that is, that they make a detached normative judgment of the (dis)honesty of the defendant’s conduct. If a verdict flows from such judgments as these, fact-finders are saying not ‘We find that this person committed a punishment-worthy wrong’, but ‘we find that this person committed what the law counts as a punishment-worthy wrong’. This is a common feature of large and complex institutions: officials or other participants make decisions that serve the institution’s aims by identifying those for whom certain kinds of treatment are appropriate, but do not themselves decide directly whether that treatment is appropriate. They apply criteria laid down by the institution—criteria whose application does not require a first-person judgment that the relevant treatment is appropriate, either because they make no explicit reference to its appropriateness, or because their application requires only a detached normative judgment. Thus a system of social security payments may have as a primary aim that those who are in serious need should be offered the financial or material assistance that they require. Decisions about individual cases are made by officials or tribunals, but there are obvious reasons why those officials or tribunals should not simply be left to decide for themselves whether this person’s need is sufficiently serious, or just how much and what kind of assistance he should receive: instead, they will be given criteria and rules to apply. These will probably include some whose application involves a purely factual determination (for instance, if decisions depend partly on a points score, based on such matters as income, number of dependants, health etc), and others whose application requires a detached normative judgment of need. There are familiar debates about just how much and what kinds of discretion should be allowed to officials in such systems. The less discretion they are allowed, the more they are required to apply factual criteria that leave little or no room for judgment or interpretation in the light of the institution’s aims, the greater the danger that their decisions, although accurate in terms of the rules they are required to follow, will fail to identify those who, in terms of the institution’s aims, they should be identifying. On the other hand, the more discretion they are allowed, the more they are given criteria whose application requires normative—albeit detached normative—judgment and interpretation, the greater the danger

34

Ghosh [1982] QB 1053, at 1064; see Theft Act 1968 ss 1, 13, 15.

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of individual bias or misjudgment, and of inconsistencies between individual officials that will generate unjustly unequal treatment of different individuals. Those debates arise in the criminal law just as they do elsewhere. How far can or should the law’s offence definitions provide courts with determinate rules whose application is determined by descriptive criteria (on the model of the laws defining speeding offences); how far must or should they provide normatively laden standards whose application requires judgments about the meaning and significance of relatively ‘thick’ normative concepts (on the model of dishonesty in the Theft Act)?35 It is clear that our existing laws rely heavily on thick concepts, whose application is often at issue in the trial. In many cases, of course, the only matters at issue are straightforwardly factual: it is not disputed that a robbery or rape or wounding took place; the only question is whether the defendant was the attacker.36 Even in such cases, the reason why the focus is on factual issues is not that no normative concepts are involved, but that there is no disagreement about their application to the case. In many other cases what is at issue is precisely the applicability of a normative concept. Just how far this is true depends on how wide a range of legal concepts are normative, ie requiring normative judgment for their application; for just one example, is the question of whether the defendant’s conduct caused the relevant criminal outcome a purely factual question; or is it partly a normative question, whose answer depends on a judgment about whether it is just to hold the defendant responsible for that outcome?37 But there are plenty of examples of indubitably normative concepts: to take just one kind of instance, consider the roles played by the notion of the reasonable person, or of what it would be reasonable to do or to think in a particular context. In judging whether a defendant acted recklessly, or negligently, fact-finders must decide whether it was ‘reasonable’ or ‘justifiable’ to take the risk he took;38 in deciding whether he is entitled to a defence of duress, or a partial defence of provocation, they must decide whether a ‘reasonable person’ would have reacted as he did;39 in deciding whether he is guilty of 35 For a useful introduction to the ‘rules’ versus ‘standards’ discussion, see Schlag, 1985. On ‘thick’ concepts and their role in ethical thought, see BAO Williams, 1985, especially ch 8. 36 To say that the issues are straightforwardly factual is not to say that they are always easy to settle, but only that settling them does not require the fact-finder to mobilise either her or the law’s normative standards. 37 For a useful survey of the competing views, see Wright, 2001; for a clear example of the normative view, see Model Penal Code s 2.03 on whether an unexpected result is ‘too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his offense’ (see Commentary to s 2.03 at 266). For an argument in defence of a normative view, see Tadros, 2005a: ch 6. 38 See Law Commission, 1989: 51–2 (Draft Criminal Code Bill s 18(c)); Model Penal Code s 2.02(2)(c). 39 For duress, see Model Penal Code s 2.09(1) (‘a person of reasonable firmness’); Graham [1982] 1 All ER 801 at 806 (a ‘sober person of reasonable firmness’); for provocation, see Homicide Act 1957 s 3; Morhall [1996] AC 90 at 98 (‘a hypothetical person having the

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rape under English law, they might have to decide whether his belief that the person whom he sexually penetrated consented to it was a ‘reasonable’ belief—ie a belief on which it was reasonable to act.40 Now some might regard the presence of such normative concepts as a regrettable (even if also unavoidable) defect in the law: ideally, they might think, the criminal law should define offences in purely descriptive terms, so that the fact-finder’s task is indeed purely factual, to determine whether those descriptive criteria are satisfied.41 We will have more to say about this later, but should say briefly here why such a descriptivist aspiration is not just doomed to frustration by the ineliminability of normative concepts from the law and the trial, but also misguided. The criminal law claims to define certain kinds of wrongs, wrongs whose perpetrators are to be punished (this is the modest version of legal moralism that we are assuming). If it is to address the citizens over whom it claims authority with the respect and honesty due to them as members of a liberal polity, its offence definitions must therefore be recognisable by them as definitions of wrongs; indeed, as definitions of wrongs that could merit punishment. But adequately recognisable definitions of wrongs must be set in normative terms; indeed, though this requires more argument than we can provide here, they must utilise versions of the kinds of thick ethical concept that are so crucial to moral thought: a criminal law that succeeded in defining all offences in purely descriptive terms would in that very success fail to speak to the citizens of wrongs that merit punishment.42 Even if the criminal law as addressed to citizens must be couched in explicitly normative terms, it could be argued that what fact-finders in the courts need is a set of ‘rules for courts’ that will provide descriptive criteria for the application of the normative concepts used in the ‘rules for citizens’: for that preserves the appropriate division of labour between legislatures and courts—that the norms are set by the legislature, whilst the factual issue of whether this defendant’s conduct satisfied the definition of this offence is for the courts. But even if there is good reason to separate out a power of self-control to be expected of an ordinary person of the age and sex of the defendant’; Lord Goff); Simester and Sullivan, 2003: 348–56; see also Model Penal Code s 210.3(1)(b). 40 Sexual Offences Act 2003 s 1(1)—more argument is clearly needed to justify this reading of ‘reasonable’. 41 For one of the more plausible arguments for descriptivism in criminal law see Michaels, 2000; one can also discern descriptivist ambitions in some advocates of codification—see, eg, Gainer, 1988; Robinson, 1997. 42 This paragraph clearly skates over two large sets of issues. One concerns the terms in which the criminal law should address the citizens: see further RA Duff, 2001: 56–68. The other concerns the ineliminability of thick concepts (see BAO Williams, 1985: ch 8) from offence definitions: for a survey of the underlying controversy about whether ‘facts’ can be clearly distinguished from ‘values’, see Crisp, 1998; for related arguments about offence definitions in criminal law, see, eg, Gardner, 1994; Horder, 1994; RA Duff, 2002b; Tadros, 2005b.

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‘code of conduct’ for citizens from a ‘code of adjudication’ for courts (and we have serious doubts about whether this is an appropriate way to mark what is indeed a real difference between different aspects of substantive criminal law),43 the code of adjudication would still need to make heavy use of normative concepts. The reason for this is not just that it is impossible to provide adequate descriptive criteria for the application of normative concepts; it is also that, as we will argue in detail later, the trial must be accessible and intelligible to the lay people who are to participate in it (as defendants, or as victims, or as witnesses, or as jurors or magistrates), precisely as a determination of a charge of criminal wrongdoing, and must therefore deal in normative terms appropriate to such a charge.44 None of this need yet worry the instrumentalist: our point has been simply to show that, while we can say that the trial is concerned with truth, it is much less clear just what that truth is and how it is best expressed. Nor does this yet show that fact-finders must bring their own norms or values to their task in the trial, or that they must speak their verdicts in an authentic first-person voice: it could still be argued that the most that is required of them is the kind of detached normative judgment that involves no first-person commitment. This would not, of course, be to say that fact-finders who have principled objections to the laws that they are required to apply do not face a moral difficulty about what to do—about whether to take part in an institutional practice whose rules or purposes they find objectionable. But that difficulty is now extrinsic rather than intrinsic to the trial: for a fact-finder who must think and decide in the committed first person, the question of her own attitude to the rules or values she is asked to apply must inform her deliberations; for one who is asked only to make detached normative judgments, that question need not arise within her deliberations. The argument of this section has been that the truth that, for an instrumentalist, provides the trial with its justifying aim must be a normative truth about whether the defendant has committed the criminal wrong with which he was charged, and which warrants punishment. That is an aim of the criminal justice system—an aim that, according to the instrumentalist, matters simply as a way of identifying those who are to be punished. It need not be the aim that the fact-finders who must arrive at a verdict pursue directly by trying to decide whether the defendant has 43 For ‘code of conduct’ and ‘code of adjudication’, see Robinson, 1997; see also Alldridge, 1990. See further below, ch 9 at nn 53–7. 44 For a related critique of the ‘descriptivist’ model of criminal trials, see Burns, 1999. Burns emphasises the role of ‘narrative’, and of the kind of truth that narratives claim, in the trial: the trial is concerned not so much with the accuracy of a description, as with the adequacy or justice of a normatively structured narrative of what was done. For our doubts about Burns’s account, see Farmer, 2003; RA Duff, 2003b.

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indeed committed a punishment-deserving wrong. Even if we cannot or should not aspire to a trial that had to determine solely whether a set of purely descriptive criteria was satisfied; even if the application of thick normative concepts is an inescapable task for the fact-finder at a trial: it could be argued that the fact-finders need make only a detached normative judgment, which does not commit them to the first-person judgment that the defendant has committed a punishment-deserving wrong. One question about this suggestion is whether it really will be possible for fact-finders to make only such detached normative judgments. Such judgments are relatively easy to make if one is dealing with a well-defined and articulated value system: non-Catholics should be able, on at least very many issues, to make detached judgments about what Catholics ought to do; non-Utilitarians can make such judgments about the implications of Utilitarianism. It becomes much harder to make these judgments to the extent that the value system is only incompletely or unclearly articulated— when what is required might be a rational reconstruction that can take on Herculean dimensions.45 When fact-finders ask what is ‘reasonable’, or ‘dishonest’, they will not typically be able to think as detached observers of a legal system that includes clear specifications of the relevant norms;46 nor, since they will lack the relevant sociological evidence, will they be able to ask as detached observers what judgments ‘ordinary people’, or ‘members of the community’, would make: they will have to deliberate as participants in that community, in an attempt to interpret and apply their own values—in the first person, not in the detached third person. We will not pursue this issue here, however, since we will later offer other and stronger reasons for holding that the fact-finders must be required to make first-person, rather than detached, normative judgments about the defendant’s guilt. To see why that is so, we must ask why the truth that the trial supposedly seeks should matter.

3.3.

WHY DOES TRUTH MATTER?

On the simple instrumentalist view, the truth that trials seek has no intrinsic significance: the only (or primary) reason for trying to establish it is that this will enable us to identify those who are to be punished. In many contexts truth does have this kind of essentially instrumental significance: accurate diagnoses of medical conditions, the truth about this patient’s illness, matter instrumentally as a means to determining appropriate 45 On ‘rational reconstruction’ (as a task for legal theorists rather than for fact-finders), see, eg, MacCormick, 1990; on Hercules, see RM Dworkin, 1986. 46 Compare the very sketchy and partial specifications of what is or is not ‘dishonest’ in Theft Act 1968 s 2.

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treatment; accurate assessment of people’s skills typically matters instrumentally as a means to deciding whom to select for a particular job, or for some educational opportunity. Coming closer to our present concerns, one might say the same about the kind of inquiry held in England on someone found unfit to plead. An unfit defendant is not tried; but an inquiry is held, and the jurors must determine ‘whether they are satisfied … that he did the act or made the omission charged against him as the offence’. If they are not satisfied, the defendant is acquitted ‘as if the trial had proceeded to a conclusion’, but if they are satisfied he is not convicted; they instead ‘make a finding that the accused did the act or made the omission charged against him as the offence’, and the court can then make a hospital order, a guardianship order, a supervision and treatment order, or discharge the defendant.47 If we ask why it should matter that such a finding be accurate, the obvious answer is instrumental: to identify those upon whom such special measures as hospital orders can be legitimately imposed. But is the same true of the criminal trial? Some features of our existing practices seem to fit this view. For instance, guilty pleas, if they can be treated as reliable, provide a much more economical way of identifying those who are to be punished than a full trial does; and it is clear that such pleas are encouraged in English and American courts, whose functioning indeed depends on them.48 There is also an increasing range of measures that divert offenders from the trial process altogether, but that depend on an admission of guilt—for instance, formal cautions and fiscal fines, administered within the formal criminal justice system, or diversions into a restorative justice or mediation scheme outside that formal system:49 these again suggest that a trial is dispensable, if we can find more economical ways of identifying those who in virtue of their guilt should be subject to some kind of imposition; we need a trial only if guilt is denied, or when the punishment that would be imposed is severe enough to warrant a formal procedure to make sure that the person is guilty. However, other features of our existing practice of criminal trials are not easily explained on an instrumentalist view. An instrumentalist could of course reply that they therefore lack any adequate justification; or that they are non-central aspects of the trial, which reflect other values that are not integral to the trial’s rationale. We will argue, however, that they are central, and point the way towards a richer, conception of the significance of truth as the goal of the trial.

47 Criminal Procedure (Insanity) Act 1964 ss 4A–5 (inserted by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 ss 2–3); see Sprack, 2006: 287–8. 48 See Ashworth and Redmayne, 2005: ch 10; see further ch 6.2 below. 49 See Ashworth and Redmayne, 2005: ch 6; and below, ch 6.3–6.5.

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Consider first the apparently strong requirement that trials be public. This requirement is given formal expression in Article 6(1) of the European Convention on Human Rights (ECHR) as the defendant’s right ‘to a fair and public hearing’—a right that can only be infringed, by holding some or all of the proceedings in camera, in a limited range of circumstances.50 As Foucault has argued, the trial has not always been the most public aspect of the criminal justice system, but has taken that role over from punishment.51 Now despite some theorists’ hopes for ‘shaming’ sanctions, part of whose point is the offender’s public display and humiliation,52 it is commonly (and rightly) accepted that punishment should not generally be administered publicly, partly just because of the obvious likelihood that public punishments will humiliate and degrade the offender. Why then should similar worries not have led to proposals to hold trials in secret; why should the idea of a public trial seem so important? Of course it matters that justice ‘be seen to be done’, and that there be some adequate control and oversight of the state’s exercise of its penal powers.53 But those concerns arise for all aspects of the criminal justice system, from policing to punishment: why then should it seem so important that trials be public, when other kinds of scrutiny are thought adequate for other parts of the criminal justice system? Consider, secondly, the ways in which people seem to care about trials and verdicts even when punishment is not, or is no longer, at issue. Someone who was wrongly convicted, or whose relative was wrongly convicted, might fight for justice long after any punishment has been completed, and with no prospect of compensation: as she might put it, it is important that the truth of her innocence be recognised and admitted. Of course further consequences will typically flow from such recognition: consequences having to do, most obviously, with the convicted person’s standing in the eyes of their fellow citizens, as well as such matters as their employment prospects. But, first, a mistakenly convicted citizen might plausibly want to clear her name independently of such further consequences; and second, those consequences matter in part because they are based on truth or on falsehood—I want to restore my standing in the eyes of others not just or primarily because I do not like them thinking ill of me, but because I want what they think of me to be true. Consider, in the same light, why it might matter to victims, or to concerned citizens, that the perpetrator of a crime be tried and convicted. Of course, they will typically

50 See Ashworth and Redmayne, 2005: 291–2; Sprack, 2006: 352–5. There is room for discussion about what being ‘public’ requires (see generally Jaconelli, 2002). See also below ch 9.3. 51 Foucault, 1977: 9; Farmer, 2007a. See also below ch 9. 52 See, eg, Kahan, 1996. 53 Cf Hildebrandt, 2006, on publicity as an essential aspect of a fair trial.

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want the offender to be punished, but they might care about a trial and conviction even if no punishment follows—because they want the truth to be established and recognised. This might bring them satisfaction or even ‘closure’ (whatever that amounts to), but it achieves that by establishing and recognising the truth, and what matters to them is precisely the truth. To see this, imagine a case in which someone is convicted, and the victim and others feel that sense of satisfaction and closure; but it emerges later, in the light of new evidence, that the person who was convicted was innocent. They will of course no longer feel satisfaction or closure: but more to the point, they will look back on the satisfaction they felt with new eyes—they will now see it as tainted, valueless, because it was based on falsehood rather than on truth. Or suppose the perpetrator dies without being punished. If he dies without even facing trial for his crime, people might reasonably feel that justice has not been done, or that he escaped justice, at least if the crime was a serious one. If, however, he dies after being convicted at a trial, but before undergoing punishment, that feeling is likely to be much less acute: at least, we can say, he was brought to trial for his crime. Thus even where there are significant effects to which we can point in explaining why the trial matters, their value depends on the value of the truth that the trial aims to establish. (It is interesting in this context to consider the proposed provisions of the abortive Northern Ireland (Offences) Bill. The bill provided a special judicial process for offences related to terrorism committed before 10 April 1998: not only would those convicted of such offences by the special tribunal (or who had already been convicted) avoid punishment (or gain release from prison); they would not even be required to appear in court when their cases were heard. This feature of the scheme was, according to The Guardian, ‘the source of most criticism and anger’ among MPs, whose objections led to the bill being dropped;54 that implies that they were prepared to accept, for the sake of advancing the peace process, that the perpetrators of such crimes should be allowed to avoid punishment, but saw an importance quite independent of punishment in the holding not just of a trial, but of a trial at which the perpetrator would be required to appear.) All of this should suggest that the truth that the trial seeks to establish has a more than merely instrumental significance. The reason for thinking it important to establish the guilt of the offender at a trial is not simply or primarily that this enables us to identify those who are to be punished. A fuller account of the non-instrumental significance of truth in the trial must wait until further elements of our account, in particular those to do with 54 See http://www.guardian.co.uk/guardianpolitics/story/0,1673948,00.html (Michael White in The Guardian (27 December 2005)); on the dropping of the bill, see The Guardian (12 January 2006) 4.

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the defendant’s role and standing in the trial, have been developed in chapter four; but we should offer a preliminary sketch of the argument here—especially since it puts in doubt the suggestion discussed in the previous section, that the fact-finder need only be engaged in detached normative judgment. The criminal trial is concerned with alleged criminal wrongdoing: it is, we can say, a way in which a polity formally takes such wrongdoing seriously. There are, of course, other ways in which it does this, notably in the efforts it makes to prevent crime, and in the support it offers to victims of crime, as well as in the punishments it imposes on offenders. However, the role played by the trial in the polity’s responses to (alleged) crimes is not only that of a prelude to punishment. If, as a polity, we take wrongdoing seriously, if we care collectively about the wrongs done to the victims of crime (not just about the harms they have suffered) and the values that the crime violates, we must take notice of crimes as wrongs. Outside the criminal law, this happens informally: in different contexts, in different kinds of community, people display their commitment to the values that inform their lives and activities in part by the way they respond to violations of those values; they display their moral concern for each other in part by the way they respond to wrongs committed by or against other members of the group (as well as to wrongs that they commit themselves). Such responses take different forms in different contexts, and will also typically allow for the possibility of ‘forgiving and forgetting’— although just what that amounts to, whether it is always morally possible and what preconditions it requires, all require further discussion. But it would be inconsistent to claim to be committed to certain values, as values by which our lives in this community are or should be structured, and yet not to respond to violations of those values in a way that recognises and condemns the violation as a breach of those values. The criminal law formally defines certain kinds of wrong as ‘public’ wrongs: as wrongs that are properly the business of the polity as a whole, and that should attract a public, formal response.55 Central to that response is the criminal trial, as the place in which such wrongs are formally recognised, condemned, and attributed to their perpetrators: the trial is the forum in which alleged perpetrators are called to answer charges of wrongdoing, and to answer for the wrongdoing if it is proved against them. One could offer an instrumental reason for such an institution: that it pre-empts the informal responses to perceived wrongdoing that can so often lead to violence, injustice and persecution—just as it is sometimes

55 For the classical conception of crimes as public wrongs, see Blackstone, 1765–9: bk IV, ch 1 (on which see Lieberman, 2002). A ‘public’, properly understood, is not one that wrongs ‘the public’ as distinct from any individual victim, but one that properly concerns the public: see Marshall and Duff, 1998.

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said that part of the point of criminal punishment is to pre-empt informal responses that would be far less controlled and far more dangerous.56 But its primary significance is not instrumental: a polity owes it to its citizens (as victims, as citizens who supposedly share in the values that have been violated and, as we will see, as offenders) to provide for such a formal response to public wrongs. It is also worth noting that, from this perspective, the attempt to establish the truth can be of significant value even when it fails. Suppose that a defendant, whom the victim knows to be guilty, is acquitted because the prosecution cannot prove his guilt beyond reasonable doubt (or even on a ‘technicality’). In one way, of course, the trial has failed, albeit for good reason, and the victim cannot gain the satisfaction of seeing ‘her’ offender convicted; but in another way, as a search for truth that also respects such values as the presumption of innocence, it has been a success, and the victim can find vindication, and others satisfaction, in the fact that a serious attempt was made to establish and declare the truth.57 If this is right, however, it also requires us to look more carefully at the verdict and what it means: what is being said, what is being done, when the fact-finder brings in a verdict of ‘Guilty’ (or of ‘Not Guilty’)? When a jury finds that a defendant who was unfit to plead did commit the offence charged,58 its finding is just that—a finding that this person committed this offence. But the formal declaration of a verdict of ‘Guilty’ in open court by a jury or magistrate or judge does more than that: the verdict is not just the assertion of a proposition, but a performative that condemns the defendant as a criminal wrongdoer. Its meaning lies not only in the proposition that the defendant committed the crime charged, but also in what is done by this formal declaration of guilt—the condemnation of his commission of that crime.59 That is why those who have been mistakenly or unjustly convicted might reasonably think it so important to try to clear their names—that they have been unjustly condemned as wrongdoers. That is why for some people a conviction is itself a kind of punishment, indeed a severe punishment: they suffer the condemnation of their fellow citizens—a condemnation that can be acutely painful. If a verdict of ‘Guilty’ constitutes a condemnation, what does a verdict of ‘Not Guilty’ mean? It might seem that, especially in jurisdictions that allow only ‘Guilty’ or ‘Not Guilty’ as verdicts, and do not offer the third option of ‘Not Proven’,60 it cannot be a declaration of the defendant’s 56

See, eg, Gardner, 1998. Hence the importance, eg, of the efforts to bring General Pinochet to trial, and of the Milosevic trial. 58 See above, n 47 and accompanying text. 59 On performatives, see Austin, 1962. Of course assertions are themselves, as Austin came to realise, also performances; but the verdict does more than assert a proposition. 60 On the role and meaning of the ‘Not Proven’ verdict in Scots law, see P Duff, 1996. 57

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innocence, since the most that can be said is that he has not been proved to be guilty: so perhaps it does nothing more than free him from the prospect of punishment, rather than freeing him from the taint of suspicion. But if we understand it against the background of the presumption of innocence, it might take on a different meaning: if citizens must be presumed to be innocent until they are proved to be guilty, then a ‘Not Guilty’ verdict could be read as declaring that that presumption has not been defeated, and that the defendant must still be presumed to be, and be treated as, innocent. We need then to ask by whom the acquitted defendant is to be presumed to be or to be treated as innocent: should that verdict be morally binding on his fellow citizens in their dealings with him, or only on the legal system—or only on the criminal justice system?61 It must be admitted that the courts do not always interpret acquittals in this way. In R v Davis, Rowe and Johnson, the Court of Appeal could not say that, had the irregularities that grounded the appeal not occurred, ‘a reasonable jury would have been bound to return verdicts of guilty’: the defendants’ convictions were therefore unsafe, and must be quashed. Given the lapse of time (ten years) it was not practicable to order a retrial, but ‘[f]or the better understanding of those who have listened to this judgment and of those who may report it hereafter, this is not a finding of innocence, far from it’.62 On our account, this comment is improper: if the defendant cannot be proved guilty beyond reasonable doubt and through a legitimate process, the presumption that he is innocent (a presumption that must at least bind the criminal court) remains undefeated, and his acquittal (or the quashing of his conviction) should declare that to be so. If a conviction constitutes a condemnation of the defendant for committing the wrong of which he has been proved guilty, this casts doubt on the suggestion that the fact-finders at a trial need only be making detached normative judgments. It is they who declare the verdict, they who formally find the defendant ‘Guilty’ (or ‘Not Guilty’), and they who must therefore pronounce the condemnation that a ‘Guilty’ verdict involves. But there is a crucial difference between condemning a person for a wrong, and declaring that according to the values of this system he has committed a wrong that merits condemnation. Whilst the detached normative fact-finder can do the

61 This issue is vividly exemplified by the provisions, in s 1 of the Criminal Justice (Scotland) Act 2003, for ‘risk assessment reports’, which provide the basis for ‘orders for lifelong restriction’ for offenders who are then judged to be likely, if left at liberty, to ‘seriously endanger’ other people: the risk assessor ‘may, in preparing the risk assessment report, take into account not only any previous conviction of the convicted person but also any allegation that the person has engaged in criminal behaviour (whether or not that behaviour resulted in prosecution and acquittal).’ An acquittal does not bind the assessor to treat the person acquitted as innocent of the charge on which he was acquitted. 62 [2001] 1 Cr App R 8; the passages quoted are from para 95.

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latter, she cannot do the former; but it is the former that she must do if the trial is to serve its purpose of condemning the guilty defendant’s wrongdoing. It seems therefore that what a trial requires of fact-finders is that they declare the verdict in the first person: that they condemn by their verdict ‘Guilty’, rather than simply recording that the defendant would be condemned by those who accept the system’s values. This then revives the problem to which the possibility of detached normative judgments appeared to offer a solution: the problem of how the law or the polity can properly require fact-finders to condemn a defendant even if they do not accept the criminal law’s declaration that what he did amounted to a genuine criminal wrong—even if, in their eyes, the law’s definition of the offence that he certainly committed is more or less seriously defective as a definition of a wrong that merits public condemnation. Perhaps, however, the problem is not quite that stark. There is a position between the suggestion (which we have rejected) that fact-finders need make only detached normative judgments, and the suggestion (which we have been making) that they must be able to make first-person plural, non-detached normative judgments in their own voices. This depends on the possibility (moral, not psychological) of separating one’s personal normative views from those that belong with a particular role that one fills; whether one can make authentic, not merely detached, judgments as the holder of a certain office or role which one would not make for oneself independently of that role. Consider, for instance, a ceremonial president or monarch, one of whose responsibilities is the formal presentation of various honours to those to whom they have been awarded (medals to mark significant achievements, or for especially meritorious public service, for instance); and suppose that the awards are determined by some official body, not by the president. Presumably what is expected of the president (expected by the recipients, and by others) is not merely that she go through the motions of handing over the awards, and reciting the grounds for them; nor that she make merely detached normative statements about the recipients’ achievements: but that she speak in an appropriately first-person voice. That need not be her own individual voice, however: it is rather meant to be the voice of the whole polity, in whose name and on whose behalf she is acting and speaking. It should be her official voice, which need not be identical to her personal voice. She might thus have to present an award to someone whom, as an individual, she thinks unworthy of it; but she is still expected to present it in the appropriately commendatory tones, and (ideally) to be able to do this without deceit or pretence. What is required of her is not so much that she conceal her personal views, but that she speak, think and feel as the president, not as a private person; in other words, that she seriously and authentically fulfil her role. Of course there are limits to the extent to which such a person can properly be

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expected to separate the official from the personal: if the judgments that she is required to express as president are too radically at odds with her own normative views, she faces the question of whether she really can, on this occasion or more generally, act as president. But there is surely within such limits an area in which the personal and the official can legitimately diverge; an area in which her official voice and judgment need not be identical to her personal voice and judgment, without this involving hypocrisy, betrayal, or lack of integrity. Indeed, this is a common phenomenon: that in playing the different roles (professional, legal, institutional) that we fill, we must make judgments and decisions, and must undertake actions, in accordance with goals, values and criteria that we may to at least some significant extent see as misguided or unjustified if we consider them from outside that role. Again, there must be moral limits to this, which amount to constraints on whether we can, with a clear conscience, take on the role in question. Nor can we avoid criticism, or avoid being called to account, for the judgments and decisions we make merely by appealing to our role (‘I was only doing my job’): we must be ready, if required, to explain and justify our actions in terms appropriate to the role we are playing, and to stand behind and defend the goals and values which define that role.63 But it is to say that our official or formal voice need not always be the voice in which we would or could speak for ourselves as individuals. Why then should we not say something similar about fact-finders in the criminal trial? It is still true that, as we have been arguing, the verdict that they reach must amount to more than a merely factual statement, and more than a detached normative statement: it must, if it is a verdict of ‘Guilty’, condemn the defendant’s action as a wrong. But it condemns that action as a public wrong, from the point of view of the criminal law as a public institution; the fact-finder therefore speaks as a public rather than as a private person, and might have to speak in terms and tones different from those in which she would speak were she asked only to express her personal judgment. The condemnation is still committed rather than detached: the verdict does not report that the defendant would be condemned by those who shared the law’s values, but condemns him; it does not just report, but expresses, the values that the law embodies. Fact-finders are still expected to apply the law as their law, and thus to deliberate and to pronounce in their own voices. But they deliberate and speak, and are committed, as officials, not as merely private individuals. The values and principles, and the definitions of wrongs, that they are required to apply need not be ones that they would accept as private 63 Perhaps this requires that we can, speaking personally, recognise those goals and values as being at least ‘reasonable’, or rationally defensible, even if we would still, speaking personally, not accept them.

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individuals; they might indeed, from their personal perspectives, regard those values, principles and definitions as being to some degree misguided: but they can still deliberate, judge and speak sincerely as officials. This move alleviates, but does not remove, the problem, because there must still be moral limits on the extent to which the personal and the official can be separated. If the fact-finders are to retain their moral integrity, they need not achieve a close fit between the personal and the official, but they must be able to avoid radical fissures between the two; there will, therefore, be limits to the extent to which they can honestly and non-hypocritically apply legal values and offence definitions that they regard not merely as somewhat misguided, but as illegitimate or unjust. They can perhaps legitimately apply ‘reasonable’ offence definitions that they would not accept if they were speaking simply for themselves (and that they would vote against if the legislation was put to a vote). However, if they regard aspects of the law as being beyond the (very generous) bounds of the ‘reasonable’, it is still not clear that or how they can be expected to apply those aspects, or to condemn those who are thus defined as criminal. We will not discuss this problem further here, since it is just one aspect of a larger problem—a problem that becomes even more visible when we ask about what can be expected or demanded of a defendant who does not regard what he did as a criminal wrong. We will return to this issue at the end of chapter four, and tackle it directly in chapter five. All we would suggest here is that this is a problem, less for our account of the criminal trial than for the institution of the criminal trial itself: that is, there is a real problem about the legitimacy of criminal trials, as there is about the legitimacy of the criminal law, in contexts in which there is real and deep disagreement about the polity’s values and thus about the proper content of the criminal law and its claims on the citizens. It is a merit, rather than a defect, in a normative account of the trial that it brings that problem to the fore. We turn now to a final issue about the role of truth in the criminal trial—an issue whose significance is heightened by the argument of this section, that the truth which the trial seeks is intrinsically rather than merely instrumentally important.

3.4.

TRUTH, PROOF AND KNOWLEDGE

Beliefs can sometimes be accidentally or fortuitously true: though the believer has no reliable evidence for his belief, or adequate grounds for taking it to be true, it might in fact be true. A doctor who makes a carelessly ill-founded diagnosis, who has nothing approaching proof for her conclusion, might nonetheless luckily get it right. My uninformed guess

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at the answer to a problem might fortuitously be right. Those who form their beliefs carelessly without adequate grounds are open to criticism for such failures of due cognitive care; the precise form and seriousness of the criticism depends on just what is at stake. However, we can also say, when their beliefs are fortuitously true, that they did reach the right result, however unreliable the methods by which they reached it: we can take comfort from the thought that the diagnosis was, as it turned out, accurate, so that the appropriate treatment was provided; though the careless doctor can claim no credit for it, the process was (luckily) successful. That is generally the case when truth or accuracy has an instrumental importance. If the truth of a judgment matters only as a means to a further end, then it can serve that end successfully just so long as it is true; the unreliability of the means by which it was arrived at, or the fortuitousness of its truth, give us grounds to criticise those who arrived at it, but do not undermine its instrumental value. What then of the criminal trial and its verdict? Suppose that a defendant who in fact committed the offence charged is convicted, but on the basis of evidence that falls well short of proof beyond reasonable doubt that she is guilty, because the fact-finder is too quick to jump to the conclusion that she is guilty. If stronger evidence of her guilt later emerges, should we say that the trial reached the right verdict, although by means that were inadequate or unreliable: that whilst the fact-finder should be criticised for being so quick to convict without adequate proof, there is nothing wrong with the verdict itself? If the case went to appeal, should the Court of Appeal uphold the conviction on the basis of the new evidence; or overturn it as being unsafe?64 Has the guilty defendant suffered a miscarriage of justice that undermines the legitimacy of his conviction; or has justice been done, at least in the trial’s outcome? Instrumentalists must presumably say that while we should of course try to develop and enforce trial procedures that will reliably rather than fortuitously result in accurate verdicts, in such cases the verdict is, fortuitously, right. Once we know that the defendant was indeed guilty, we can criticise the procedures followed, but not the verdict itself. We must separate ‘accuracy of outcome’ from ‘fair procedures’, as distinct aims of the criminal process:65 the trial reached an accurate, and therefore right (even just) outcome, by an unjust, because unreliable, procedure. The defendant has cause for complaint about the procedure, but cannot claim that his conviction was unjust, since (being true) it was what he deserved.

64 On the Court of Appeal’s workings, see Pattenden, 1996; Ashworth and Redmayne, 2005: 344–58. For a different interpretation see Nobles and Schiff, 2000. 65 See, eg, Law Commission, 2001: para 7.12; quoted (and criticised) in Auld, 2001: ch 12 para 58 (see also ch 1 para 7, on the government’s objectives of ‘just processes and just and effective outcomes’).

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On such an instrumentalist view, the aim of the trial is true belief—for example, that the defendant is guilty. We have good reason to insist that fact-finders follow procedures that are likely to produce knowledge, that is justified or well-founded true belief,66 but only because that makes it more likely that the resulting belief will be true. As against such a view, we suggest that knowledge, rather than merely true belief, should be the trial’s aim: either a conviction that expresses the knowledge that the defendant is guilty, or an acquittal that expresses, in the absence of such knowledge, a reaffirmation of the innocence that the court must presume. On this view, we should not separate ‘accurate outcomes’ from ‘fair procedures’: the rightness of the outcome—of the verdict—is not in this way simply a matter of accuracy, but also of the process through which it was reached. Thus the conviction of a guilty defendant whose guilt has not been duly proved is a mistaken conviction: for what a verdict of ‘Guilty’ means is not simply that the defendant committed the offence, but that we, the fact-finders, know that he committed it; and whilst the former claim is indeed true in this case, the latter is not. Proof beyond reasonable doubt is thus part of the very purpose of the trial, rather than (as on the instrumentalist view) a means to the end of truth: conviction is appropriate only if the fact-finder knows that the defendant is guilty. For it to be true that the fact-finder knows this, she must be entitled, on the basis of the evidence presented in court, to assert her judgment that he is guilty without qualification or hesitation;67 given the presumption of innocence, as it is interpreted in contemporary jurisprudence, she is thus entitled only if his guilt is proved beyond reasonable doubt. The presumption of innocence, the requirement that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law’,68 does not, if taken at face value, dictate a requirement that proof be beyond reasonable doubt. That further requirement can, however, be generated from values that underlie the presumption.69 To be convicted of a crime is not just to suffer some loss; it is to be condemned for committing a wrong. This gives us reason to make it quite hard to convict defendants, by defining proof ‘according to law’ as proof beyond reasonable doubt. Civil liability, involving no more than liability to pay the costs of harm that has occurred, might be justly allocated to the defendant if it is proved only on the balance of probabilities that she was responsible for the harm, given that the costs must fall on one of the 66 This is not the place to enter into the debate about the proper analysis of ‘knowledge’: for useful surveys of the current discussions, see Steup, 2001; Audi, 2002: ch 8. 67 This is to look back to the features of knowledge that, in different ways, Austin, 1961 and Wittgenstein, 1969 emphasised. 68 ECHR, Art 6(2). 69 On the presumption of innocence, see generally Roberts, 1995; Tadros and Tierney, 2004; Tadros, 2007.

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parties; but proof that the defendant is ‘probably’ guilty is not enough to justify his formal condemnation and punishment by the state. Those same values give us reason to posit knowledge rather than truth as the proper aim of the trial. To bring in a ‘Guilty’ verdict is, we have argued, not just to make a bare factual or detached claim about the defendant’s conduct; it is to condemn the defendant for having committed a wrong. Now to condemn someone is, implicitly, to claim the right to condemn him; and what gives a court or a jury the right to condemn a defendant is not merely the fact that he did commit the offence, but that the court or jury is entitled to judge, is warranted in judging, that he did—that, in other words, the court or jury knows that he committed it, when ‘knowledge’ is defined in this context as true judgment based on proof beyond reasonable doubt. Although, as we will see, there is more to the right to condemn than this, it is plausible that the right does at least require this epistemic warrant. Of course it matters that the judgment is true. We can hold warranted or justified beliefs that are actually false, and a jury presented with proof of the defendant’s guilt that is beyond reasonable doubt is, we can say, entitled to convict him or warranted in convicting him, even if it later turns out, in the light of new evidence, that he was innocent. But such a conviction is wrong, both erroneous and unjust. The trial is not a locus of ‘pure procedural justice’, in which the justice of the outcome depends entirely on the justice of the procedures through which it is reached; there is a criterion (truth) for the justice of the outcome that is independent of its procedures, and however just and appropriate the procedures are, they cannot guarantee the satisfaction of that criterion.70 Our point here, however, is that the justice of the outcome is not wholly independent of the justice of the procedures: a conviction must be warranted as well as true—knowledge, not merely true belief. This is to suggest that the Court of Appeal should overturn a defendant’s conviction if it was not warranted by the evidence presented in court—and that it should do so even if new evidence has emerged since then that proves his guilt. For if he was convicted on the basis of evidence that did not legitimately prove his guilt, he has suffered a miscarriage of justice that can only be rectified by overturning his conviction, and if necessary ordering a retrial.71 But there is a further twist to this discussion. Suppose that a defendant is convicted on the basis of evidence that is, as presented 70

See Rawls, 1972: 85–6, 235; Resnick, 1977. Contrast Hanratty [2002] 2 Cr App R 30. James Hanratty was hanged for murder in 1962; serious doubts later emerged about the conduct of the prosecution and about the evidence that grounded his conviction. When the case finally came to the Court of Appeal, the prosecution was allowed to introduce new DNA evidence, that could not have been obtained at the time of the original trial, but that seemed to prove his guilt. Partly, though not only, on that ground the Court of Appeal upheld his conviction. See Dennis, 2003. 71

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at the trial, rationally persuasive—such that a reasonable fact-finder would convict; but, as it turns out later, the evidence was in fact tainted or unreliable. If the defendant was innocent, this would be a case of justified or warranted false belief in her guilt; but what if she is guilty, so that the belief is true? Although the original fact-finder’s judgment was both true and warranted or justified by the available evidence, it arguably did not constitute knowledge; it was, rather, another example of fortuitously true belief.72 Should such a defendant also be entitled to have her conviction overturned—even if new evidence has now emerged that does prove her guilt? We think that she should be: her conviction was, as it turns out, based on inadequate evidence—it was not well-grounded, which undermines the fact-finder’s claim to know that she was guilty; she was therefore improperly convicted. We have argued in this chapter that truth is indeed a central aim of the trial, but that it cannot be understood in instrumentalist terms—nor is it simply truth that is the aim. The trial aims at a verdict that is both true and justified by the adequate and legitimate evidence presented at the trial: either a verdict of ‘Guilty’ that declares that the defendant has been proved to have committed (and thus that the fact-finder knows that he committed) the criminal wrong with which he was charged, and that condemns his commission of it; or a verdict of ‘Not Guilty’ that reasserts the innocence that must be presumed, because no adequate evidence has been offered to rebut that presumption. The verdict is performative as well as assertive, and for that reason the fact-finder must be able to declare it in an authentically first-person (plural) voice: she herself, speaking in the name and voice of the polity and its law, must condemn the wrong the offender is proved to have committed—which is to say that she must be able to see it herself as a wrong that merits condemnation. We will have more to say later about the problems that this claim raises. First, however, we must turn to a further set of issues about the aims of the trial, which will require further refinements and qualifications to the claim that the trial aims at truth; these concern the role and the standing of the defendant at the trial.

72 For examples of this kind, that are intended to undermine analyses of knowledge as justified true belief, see Gettier, 1963.

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4 Truth and Communication in the Trial 4.1.

INSTRUMENTALISM AND THE RULE OF LAW IN THE TRIAL

W

E SUGGESTED IN chapter three that, whilst criminal trials can properly be said to have truth as at least one of their central aims, care is needed in working out just what the truth is at which a trial should aim. We also suggested that a criminal trial should aim to produce a verdict that constitutes a performative—a condemnation of the guilty defendant’s wrongdoing, a clearing of the defendant’s name if he is not proved guilty; that that condemnation must be expressed as a first-person, committed rather than detached, normative judgment on the defendant’s conduct by the fact-finder, applying the law’s normatively laden offence definitions; and that it should also aim to express knowledge, rather than merely true belief. We will need to say a lot more to explicate and defend this conception of truth in the criminal trial, and to tackle the problems that it raises: in this chapter we will begin to complicate the story by attending to some aspects of our existing trial processes that seem valuable, but that it is also difficult to explain or rationalise as serving the goal of truth. Most of these, as we will see, have to do with the defendant’s role and status in the trial: to deal with them, we will need to provide a richer account of the ways in which, and the means by which, the trial is to pursue the truth—the particular kind of truth that provides its aim. We will also need to refine our account of the condemnation that a conviction expresses, by saying more about its addressees. We can best approach the tasks of this chapter by extending the simple instrumentalism with which we started the previous chapter into the trial itself. The instrumentalist claim that we considered in the last chapter concerned the value or importance of the truth at which the trial supposedly aims: the claim was that its value was purely instrumental, to identify those who should then be subjected to punishment. The analogous claim about the trial’s internal structure is that its procedures and rules can (in so far as they are justified) be understood in instrumental terms, as serving the aim of establishing the truth. For a pure instrumentalist we must therefore ask of each structural aspect of the trial, of each procedural

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rule, whether and how it serves the aim of establishing the truth—and reject it if it does not serve that end. Now it is unlikely that any serious theorist would be that kind of pure instrumentalist: as we noted in the previous chapter, a more plausible instrumentalism will recognise other, subordinate aims that the trial can serve, as well as non-instrumental side-constraints on the pursuit of truth or of any other goal. But it will be helpful to begin by seeing why pure instrumentalism is not plausible by noting some features of our existing trial processes that do not appear to serve, and that sometimes seem precisely designed to hinder, the search for truth. We can then ask whether such features can be explained in terms of other ends to which they are instrumental, or as reflecting side-constraints on the pursuit of truth; or whether they require some deeper revision to our account of the trial’s aims. Once again, as with the question of the trial’s aims that we discussed in chapter three, a wide variety of normative accounts can be offered of the trial’s structures. We will not discuss that variety here, since our main concern is to sketch the outlines of our favoured account, and to render it normatively plausible. However, apart from the simple instrumentalism that would see the trial as structured purely by the search for truth, there is one other kind of account that it will be useful to contrast with ours—an account that appeals to values underlying the idea of the rule of law.1 In terms of the aims of the trial, and of the criminal process as a whole, it begins with the state’s aims of control: with the aims of preventing crime and of controlling those who do or might commit crimes.2 Given such aims, discovering the truth about whether this person did or did not commit the crime that he is suspected of committing is of course one purpose of the criminal process, since discovering that truth assists an efficient focusing of the state’s crime-preventive or criminal-controlling aims.3 However, to understand why we should have a system of criminal trials we must attend not just to those aims, but to the ways in which the state’s pursuit of those aims must be constrained in the light of values that concern the rule of law and the need to protect citizens against the state’s oppressive power. As the United States Supreme Court declared ringingly

1 We are grateful to Erik Claes for urging us to recognise the merits of this kind of account. 2 This is the model of criminal justice that developed in the nineteenth century, though as we saw it had an ambivalent relation with rule of law protections. See ch 2.4.1 above. 3 Which is not to say that discovering such truths is the only, or perhaps even the primary, way in which the criminal process can serve such ends. It matters, no doubt, that the process appears to be seeking to identify actual offenders; and it matters that for the most part it is applied to those who have committed or are likely to commit offences: but—as different versions of the slogan that ‘the process is the punishment’ remind us (see Feeley, 1979)—the efficacy of the criminal process as a technique of control does not depend on its efficacy in identifying the guilty.

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in Williams v Florida ‘The purpose of the jury trial … is to prevent oppression by the Government’.4 It went on: A criminal trial is in part a search for truth. But it is also a system designed to protect ‘freedom’ by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty.5

What the Court said about jury trials, the ‘rule of law’ account that we will consider here, can be said about the criminal trial more generally as it is structured in democracies that purport to respect the rule of law: that it respects the dignity of citizens by protecting them from oppression by the state. The trial’s structure, the rules by which it is organised, reflect this aim as much as they do the aim of truth finding. The pursuit of that aim, and of the state’s other controlling aims, is constrained by the demand that citizens be protected from oppression and their dignity respected; that constraint helps to determine the internal structure of the trial itself. Now on the account that we will offer, significant features of the trial process—particularly as these relate to the exclusion of certain forms of evidence—are indeed normatively explicable as protecting defendants against the power of the state, and the various kinds of oppression and injustice that can flow from that power (just as features of the pre-trial criminal process can be explained as protecting citizens more generally). However, first, we will argue that the ends whose pursuit is thus constrained by a concern to protect defendants do not simply have to do with the state’s exercise of its crime-preventive power; they have rather to do with the state’s (or the polity’s) proper concern to call alleged criminal wrongdoers to answer, and to call actual criminal wrongdoers to answer for their wrongs. Second, we will argue that some features of the trial, which on a rule of law account embody side-constraints on the state’s pursuit of the positive aims of the criminal process, can be better understood as serving the central positive aim of calling an alleged wrongdoer to answer.6 The regard for citizens (including and especially citizens who are defendants) and for their dignity which the rule of law account rightly emphasises is, on our account, to be expressed not merely in the constraints that we should set on the state’s pursuit of ends that, taken by themselves, embody no such regard, but in the character and formulation of the ends themselves. The point is not merely that, in pursuit of its aims, the state should eschew means which, whilst they might be effective, fail to accord individual citizens the respectful concern that is due

4

399 US 78 (1970) at 100 (Mr Justice White). 399 US 78 (1970) at 113 (Mr Justice Black). 6 We do not offer a full critical discussion of these features here; we will return to them particularly in chs 7 and 8. 5

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to them; it is rather that the very ends which the state is to pursue must embody that respectful concern. And in that case methods and procedures that fail to respect those on whom they are imposed cannot be effective means to the state’s aims; they cannot serve the proper aims at all. This argument will be developed by considering a number of features of the law of evidence that both structure the trial and which might be commonly understood as acting as constraints on the capacity of the trial to establish the truth of a charge—by limiting the participation of the defendant and through rules which exclude certain forms of evidence for various reasons.7 We should also say a word here about the relationship between the normative account of the trial towards which we are working, and the actual legal rules or doctrines, or the actual rationalisations of those rules and doctrines by the courts, to which we will appeal. As a normative theory, our account is of course not validated by the existence of such features of the trial process or by such judicial explanations of them; nor would it be undermined by their absence. Their role in our argument is intended to be suggestive rather than probative: here, we argue, are features of our existing criminal process which seem, at least intuitively, to be important and valuable; here is an explanation that makes good normative sense of them (better normative sense, we argue, than can other, competing explanations); and, although we are quite prepared to criticise when necessary the interpretations and explanations of the judiciary,8 it is also worth noting when what the judges say expresses or points towards the kind of account we are offering. As we will see in the following two sections, the account of exclusionary rules that we want to give does not always connect so closely to the accounts offered by courts or by other theorists; we will then have more work to do to render our account plausible, since we will have to argue that courts have not properly understood the moral foundations of the doctrines they are applying. The essential features of this account will become clearer in what follows, but one further preliminary point should be noted. On the rule of law account the trial could also be portrayed as, in part, giving defendants the chance to call the state and its officials to account—to account, that is, for the charge (the accusation of wrongdoing) that was brought against the defendant, and for the prosecutor’s conduct of the case.9 This is an important dimension to the trial, and reflects the basic normative point that calling to answer or to account is properly a two-way process: if we are to call you to account for your conduct, we must also be ready to answer to you for relevant aspects of our conduct; and whatever else about

7 These are the rules which Langbein (2003), for example, sees as having been created by the entry of the lawyers, but which undermine the capacity of the trial to establish the truth. 8 See, eg, ch 3 at n 62 above. 9 Again, we are grateful to Erik Claes for highlighting this point.

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our conduct might or might not be ‘relevant’, the conduct involved in or preparatory to calling you to account is certainly relevant—that, as we will see, is one reason why misconduct by the prosecution, or by state officials, in bringing the case against the defendant is relevant to the trial.

4.2.

THE DEFENDANT’S PARTICIPATION

The defendant has a right to be present throughout her trial: although there are provisions for the removal of disruptive defendants, and for a trial to continue in the absence of a defendant who absents herself, these are quite limited, at least in more serious cases.10 She has a right to participate in her trial; that right includes the right to present evidence and argument (within the constraints imposed by the law), and to crossexamine witnesses.11 Typically, of course, and especially in serious cases, the defendant will not have much to say in her own person, beyond entering a plea and, perhaps, speaking as a witness; her counsel will conduct the case, examining and cross-examining the witnesses, making such opening and closing statements as are required. But whatever controversies there may be about the role and responsibilities of counsel, it is at least clear (in theory) that they are supposed to speak and act not only on the defendant’s behalf, but in accordance with her wishes; and when we read accounts of the trial process that show defendants to be passively controlled by counsel, in a procedure that they can scarcely understand, we see this as a serious defect in the process.12 That is also why ‘fitness to plead’ is so important, and why it requires not merely the capacity to enter a plea (which itself requires an ability to understand the indictment), but also the capacity to instruct counsel and to follow the course of the trial: the defendant must be given a real opportunity to defend herself against

10 On the rules covering the defendant’s presence at trials on indictment, see Sprack, 2006: 344–6; Hayward [2001] 3 WLR 125. The rules for summary trials make much more generous provision for them to be held in the defendant’s absence: Sprack, 2006: 171–5. For the USA, see LaFave et al, 2004: ch 24.2. 11 See the implications of the right to a fair trial articulated in Art 6 of the European Convention on Human Rights (ECHR), including the right to be informed promptly and intelligibly of the charges, to defend oneself and to be able to procure legal assistance and representation, to call and examine witnesses. 12 See, eg, Baldwin and McConville, 1977. Defendants have the right to defend themselves, and dispense with counsel; but few do this in trials on indictment, for obvious reasons. In the USA, that right to represent oneself has been held to be a constitutional right flowing from the Sixth Amendment; but the defendant’s exercise of that right is also dependent on the trial judge’s finding that she is acting ‘knowingly and intelligently’ in waiving her right to counsel: see von Moltke v Gillies 332 US 708 (1948); Faretta v California 422 US 806 (1975); LaFave et al, 2004: chs 11.3, 11.5.

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the charge, and must thus be able both to understand the charge (as a charge of wrongdoing) and to deliberate and decide about how to respond to it.13 It is, however, misleading to talk only of the defendant’s right to be present at and to take part in her trial. In trials on indictment she has an obligation to be present, and is liable to be arrested to be brought to trial if she does not turn up.14 She is also expected to enter a plea—although a refusal to plead does not, even if she is found to be ‘mute of malice’ rather than ‘by visitation of God’, any longer attract a penalty or an attempt to coerce a plea; a plea of ‘Not Guilty’ is simply entered on her behalf.15 On the other hand, she is not formally required to play any part in the trial beyond entering a plea; in particular, although provisions allowing the court to draw adverse inferences from a defendant’s decision not to give evidence have, to put it mildly, undermined the value of the right to silence at one’s trial, the defendant cannot be required to give evidence.16 It is hard to explain such provisions as these instrumentally, as means to establishing the truth. On the face of it, if the aim was to establish the truth, the defendant should normally be required not only to attend, but also to give evidence and face cross-examination—rather than being allowed to remain silent; but, on the other hand, if the defendant could not take part, for instance because he was so mentally disordered that he could not understand what was going on or answer questions, that should not be an absolute bar to trial if adequate evidence of his guilt—evidence that nothing he could have said could undermine—could be provided. It is true that a defendant who was required to testify and submit to crossexamination might not assist the search for truth: his evidence might be confused or inarticulate, he might be tricked or confused by sharp cross-examination.17 But given the value that the defendant’s testimony is 13

See Sprack, 2006: 287–8; RA Duff, 1986: 29–35, 119–23. Bail Act 1976 s 7; Sprack, 2006: 344. For summary trials, she may plead guilty by post, and the trial can proceed even if she does not turn up (Magistrates’ Courts Act 1980 ss 11–13; Sprack, 2006: 171–5). 15 See Sprack, 2006: 287; on the ‘peine forte et dure’ to which defendants judged to be ‘mute of malice’ could be subjected by English courts, in order to extract a plea, see Mckenzie, 2005; Singer v US 380 US 24 (1965). On the origins of the peine forte et dure, see above, ch 2 at n 44. 16 Until 1898, defendants were not allowed to give evidence on oath (Criminal Evidence Act 1898 s 1), though in fact they routinely made statements to the court (Bentley, 1998: chs 15–18). On the current position, and the conditions under which adverse inferences from a defendant’s refusal to testify are formally permissible (Criminal Justice and Public Order Act 1994 s 35), see Dennis, 2007: 529–37; Roberts and Zuckerman, 2004: 440–49. Contrast the older practices in ‘altercation’ trials (above, ch 2.3), in which the defendant was expected to speak and be questioned. 17 This was one of the reasons given for resisting the 1898 reform that allowed the defendant to give evidence on oath (n 12 above), and for the now repealed proviso in s 1(b) of the Criminal Evidence Act precluding the drawing of adverse inferences from silence at the trial (to reduce the pressure on the defendant to give evidence); the defendant could previously 14

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likely to have in any attempt to establish the truth, those dangers provide reasons for taking steps to protect vulnerable defendants from such confusion rather than for not requiring them to testify at all. Why then should it seem so improper, as it surely and rightly does, to persist with the trial of a defendant who is so disordered that he cannot understand what is going on—even if there is ample evidence of his guilt without his participation? Why should it seem so improper, as it surely and reasonably does, to make it a legal requirement for the defendant to testify? Why should it be thought important, as it surely and rightly is, for the defendant to enter a formal plea? Why indeed should it be so important to ensure that the defendant has a chance to defend herself—that she is given due notice of the charge and the evidence against her, that she has the chance both to call and give evidence herself and to cross-examine the witnesses against her, and so on? If the rationale for such provisions were purely instrumental, then a trial that convicted an actually guilty person despite the failure to respect these provisions, would still have reached the right outcome—‘accuracy of outcome’18—though its procedures would have been unreliable, criticisable, and perhaps unfair. This implies that a guilty defendant who is convicted without being given a fair hearing has no cause for complaint about the verdict or perhaps even about the procedures, since the truth was reached. More precisely she can, as any citizen can, complain that the trial followed unreliable procedures; but she is not wronged by that failure, since she was neither wrongly convicted nor subjected to a risk of being wrongly convicted. An innocent defendant who is denied a fair hearing is on the instrumentalist view wronged, even if she is not convicted, since she is subjected to a unreliable procedure that exposes her to an unreasonable risk of a mistaken and therefore unjust verdict; but the guilty defendant, it seems, suffers no wrong. Surely, however, she does have legitimate grounds for complaint about being denied a fair hearing. Now, it might be objected that there are some evidential foundations to the principles, rules and practices under consideration. For example, it might be suggested that the defendant’s right to defend himself is required because the evidence provided by the prosecution can only be thought convincing if it can withstand the scrutiny of the defence. And it might be argued that it is for that reason that the defendant is entitled to have notice of the charge and to challenge the evidence against him. Further, it might be argued that the trial of those so disordered that they cannot understand

have made an unsworn statement from the dock, but could not be cross-examined on it; see Dennis, 2007: 526–9. (Another motivation for the pre-1898 practice was to save defendants whose truthful testimony would incriminate themselves from the temptation to perjure themselves by giving false evidence on oath: see Roberts and Zuckerman, 2004: 409–12.) 18 See Law Commission, 2001: para 7.12; above, ch 3 at n 57.

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the trial is wrongful precisely because this opportunity is missing. But it is difficult to see how to justify this right and at the same time justify the defendant’s right not to participate on evidential grounds. For if the defendant’s participation is crucial to establishing the quality of the prosecution’s evidence, it would seem to follow that the conviction of the defendant without his participation would be unwarranted, in which case he ought to be required to speak. To try to justify these two principles on the grounds of accuracy alone would be to adopt the unlikely position that the defendant’s mere right to participate, without his actual participation, is both required and sufficient to secure the quality of the evidence. A further answer to such questions would cite other ends that the trial might serve. For instance, it might be said that by entering a plea the defendant recognises the authority of the court and thus of the law—which serves the end of maintaining respect for (or deference to) the law and its institutions.19 Another kind of answer would posit side-constraints on the trial’s pursuit of truth. It might be said, for instance, that even if requiring the defendant to testify would serve the aim of establishing the truth, it would be unduly harsh to do so: for it would subject the innocent to the possibly distressing or traumatic experience of cross-examination, and confront the guilty defendant with ‘the cruel trilemma’—give truthful self-incriminating evidence, commit perjury, or incur a further sanction for refusing to testify.20 Or it might be argued that any citizen (at least, any rationally competent citizen) should have the right to be heard in a process whose outcome might have such a significantly deleterious impact on her: that if we are to treat citizens as ‘persons’ rather than as ‘things’, then those ‘against whom government decisions operate [must be given] the chance to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons’.21 The right to be heard, and the further rights that are required to make that right effective, is thus given a non-instrumental grounding in the demands of respect for persons, whether or not it would serve the aim of establishing the truth, or any other consequential purpose. This right, moreover, is not on this account peculiar to the criminal trial, but applies to any official decisionmaking process that might ‘operate against’ the citizen. Now we might wonder whether citizens should have any such wholly general right, or at least one that could generate a right to be heard at one’s trial: after all, many government decisions, such as those about rates of 19 This is similar to the justification for the requirement to plead that lay at the origin of the peine forte et dure. See ch 2 at nn 44–7. It is also encountered in political trials where the refusal to plead is an explicit denial of the authority of the court. See Christodoulidis, 2004, and below ch 5. 20 For discussion of this rationale, see Roberts and Zuckerman, 2004: 409–12. 21 Tribe, 1978: 502–3; this was Tribe’s own rationale for the defendant’s right to be heard at her trial.

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taxation or about various kinds of social security provision, can ‘operate against’ particular citizens. And sometimes the consequences of those decisions may be worse for citizens than the deprivation of property or liberty that results from a criminal conviction. But whilst citizens, of course, have the right to express their views in a variety of ways, and to participate formally in the electoral process, they have no right of direct participation in the process analogous to the defendant’s right to participate in her trial. But even if we could refine Laurence Tribe’s account of the right to deal with this problem, it would still portray the right to be heard as a side-constraint; whereas, we will argue, it is better understood as intrinsic to the proper purpose of the trial. As we will see, we can better explain both the competent defendant’s right to be heard,22 and the impropriety of trying a non-competent defendant, by portraying the trial not simply as an attempt to establish the truth about the defendant, but as an attempt to call the defendant to answer to the charge against her, and to answer for any criminal conduct that she is proved to have committed.23 A ‘rule of law’ account might claim to be able to explain both the defendant’s right to be heard, and the defendant’s right of silence, in the same way—thus offering a normative unity that our account lacks. If we want to protect citizens against the state’s potentially oppressive penal power, we should allow, and indeed assist, them to respond to accusations that the state brings against them (and that, if not rebutted, are likely to lead to oppressive sanctions); and, we might add, if that protection is also to accord them the dignity due to them as responsible agents, it must be a matter of allowing and enabling them to defend themselves, not merely of providing them with paternalist protections that they cannot control for themselves. However, on the other hand, that very regard for defendants as citizens of a liberal polity also forbids us to require them to take part in the trial: such a requirement would open them to the very kind of oppression against which we are supposed to be protecting them. All this is true—but also, we suggest, incomplete. It explains why the defendant should have a right to be heard: but it does not explain why there should also be any normative expectation, as there surely is in the very structure of the trial, that the defendant should take part. Nor, relatedly, does it show how trials differ from other kinds of administrative process in which those who might be adversely affected should have a right to be heard (just as Tribe’s account fails to explain how criminal trials are distinctive in this respect).

22 We will use this as a convenient shorthand for the right to participate in the trial, and the collection of further rights, such as those specified in Art 6 of the ECHR, which are necessary to the effective exercise of that right. 23 This does not explain the right to silence which we will discuss later (ch 7.3). See also J Jackson, 2005, for the argument that the defendant’s participation underpins Art 6 of the ECHR.

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On this rule of law account, the defendant has the right to be heard, or to stay silent, and these two rights are on just the same footing. On our view, by contrast, the right to be heard is a feature of the trial’s positive aims—aims that are fully achieved only if that right is accorded and exercised. The right to silence flows instead from constraints that, we will see, should be placed on the pursuit of that end: a trial in which that right is exercised is a legitimate trial, but its positive purpose is frustrated. In chapter seven, we will explore in more detail how defendants’ communicative rights and obligations should be understood in the light of our more general theory. For now we turn to evidential issues.

4.3.

EXCLUDING IMPROPERLY OBTAINED EVIDENCE

We look next at various rules concerning the exclusion of improperly obtained evidence. An extreme example is that of evidence obtained through the use of torture. We should note first that since torture is an extreme case, it might also have moral consequences that do not apply to other wrongs at the investigatory stage. Consequently, in chapter eight we take up the suggestion that the use of torture might undermine the standing of the state to call the defendant to account at all. For the purposes of the present discussion, however, we leave that possibility aside. We should distinguish several different kinds case of evidence obtained by torture: between torture used by agents of the state in which the trial is held and torture used by others (whose results come into the prosecution’s possession); between confessions and other types of evidence extracted by torture; between torture applied to the defendant and torture applied to others; and between testimonial evidence obtained by torture and evidence obtained indirectly through torture.24 These distinctions might matter, in so far as the reasons for excluding (some) evidence obtained through the use of torture might apply to some cases but not to others. For instance, reasons that are grounded the ‘privilege against self-incrimination’ would apply directly only to confessions obtained by the use of torture;25 reasons grounded in a concern for the reliability of evidence (that what is said

24 As when what is revealed under torture leads the police to evidence that they might not otherwise have obtained. 25 It is noteworthy that in the two leading textbooks on criminal evidence, torture is discussed only in relation to the extraction of confessions: see Dennis, 2007: 223–4; Roberts and Zuckerman, 2004: 398–9, 453. It is also worth noting that s 76 of the Police and Criminal Evidence Act 1984, which excludes any confession obtained ‘by oppression of the person who made it’ (‘oppression’ includes torture), allows the admission in evidence ‘of any facts discovered as a result of the confession’.

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under torture cannot be reliably taken to be true) would apply only to testimony that was obtained by torture, and not to evidence obtained indirectly through the use of torture. This issue has recently been illuminatingly discussed by English courts, albeit in relation to the use of such evidence not by criminal courts but by the Special Immigration Appeals Commission (SIAC). The Court of Appeal thought that the distinction between torture used (or solicited or encouraged) by officials of the state in which the relevant trial or hearing is held, and torture used by others, was crucial. They held that in making decisions about the detention of terrorist suspects, the Secretary of State could not appeal to evidence ‘obtained by torture which the state had procured or connived at’, but that there was no such absolute bar on ‘reliance on evidence coming into his hands which had or might have been obtained through torture by agencies of other states over which he had no power’.26 The House of Lords, however, took a different view, and firmly held that evidence obtained by torture was inadmissible whether in a criminal trial or before a tribunal such as SIAC, even if it was obtained overseas, by agents of other states, without the encouragement or knowledge of English officials.27 Three points are particularly worth noting about this judgment. First, the Law Lords distinguished evidence obtained directly by torture, ie testimonial evidence (even if given as hearsay) obtained by the use of torture on the person who gave the testimony, from evidence obtained indirectly by the use of torture, as when ‘the accomplice’s statement has led to the bomb being found under the bed of the accused’.28 The former was to be excluded, but the latter—since English courts had never accepted any strict ‘fruit of the poisoned tree doctrine’—might be admissible. Second, a distinction was also drawn between what might be permissible for the executive and what might be permissible for the judiciary—between the evidence that a government minister or other official might properly rely on in deciding some executive action, and the evidence that a court or other judicial tribunal might rely on in reaching its decisions: given the executive’s ‘prime responsibility to safeguard the security of the state’, it must attend to any information that might be relevant, however acquired;29 courts, however, must observe tighter constraints on the evidence that they admit. Third, and most importantly for present purposes, the Court considered the two obvious, instrumental rationales for

26

A and Others v Secretary of State for the Home Department (No 2) [2005] 1 WLR 414. A and Others v Secretary of State for the Home Department [2005] UKHL 71. The Law Lords differed on the issue of who carried the burden of proving that torture had been used—see paras 56–62, 98, 117–27, 145, 154–8, 172–4. 28 [2005] UKHL 71 para 88 (Lord Hoffmann): the latter kind of evidence ‘may be so compelling and so independent that it does not carry enough of the smell of the torture chamber to require its exclusion’; see also paras 16 (Lord Bingham) 161 (Lord Brown). 29 [2005] UKHL 71 para 161 (Lord Brown); see also para 132 (Lord Rodger). 27

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excluding evidence obtained directly by torture, but found them incomplete. Such evidence might indeed be unreliable, and excluding it might help to discourage the use of torture, but there was more to the matter than that. Nor was it simply a question of whether the trial could be ‘fair’, since a trial, viewed in isolation from what led to it, could be ‘fair’ but nonetheless constitute an abuse of process.30 As Lord Bingham put it, summarising ‘the broad thrust’ of the appellants’ argument against allowing such evidence under the common law (a ‘thrust’ that he accepted): [t]he principles of the common law … compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.31

To admit such evidence would compromise the ‘integrity of the judicial process [and] dishonour the administration of justice’.32 Here we must begin to explore the meaning of the idea of integrity.33 Now we do not need to appeal to a normative account of the trial to argue that it is wrong to use torture, or other grossly oppressive means, to extract confessions or other kinds of evidence. There is room to argue about whether or how far the police should be entitled to engage in conduct that is or would otherwise be improper in order to obtain evidence—lying, for instance,34 or offering inducements that might count as bribes. There is room to argue that the use of torture might be morally necessary in extremis (the standard example being that of the terrorist who will not reveal the location of a bomb that would kill thousands). But there can be no room to doubt that the use of torture to extract confessions or other evidence for use at trials is wrong—not because of anything special about the trial, but because of the nature of torture itself. That, however, does not settle the question that concerns us here, which is whether the fruits of torture should ever be admissible as evidence in a trial, or whether here at least the American doctrine of the ‘fruit of the poisonous tree’ should be rigorously applied.35

30 See [2005] UKHL 71 paras 19 (quoting Lord Griffiths in R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 at 61–2), 21 (Lord Bingham, citing R v Mullen [2000] QB 520): both those cases had to do with the means (abduction) by which the defendant had come to trial. 31 [2005] UKHL 71 para 52; he made clear that international treaties and conventions, including the ECHR, had the same implications. 32 [2005] UKHL 71 para 87 (Lord Hoffmann). 33 This will be taken up at greater length in ch 8. 34 On which see Ashworth, 1998. 35 See Nardone v US 308 US 338 (1939) at 341 (Justice Frankfurter); LaFave et al, 2004: ch 9.3–6 502–30. As the idea is standardly used, only evidence obtained indirectly through the use of improper means counts strictly as ‘fruit of the poisonous tree’ (See, eg, LaFave et al, 2004: 509; [2005] UKHL 71 para 88), which raises questions about how far the poison

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No doubt evidence, especially confessions, obtained by torture will often be unreliable. It is not clear, however, that this is enough to explain why such evidence should be excluded. A confession extracted by torture might be reliable—if, for instance, it showed the defendant to know facts about the crime that only the perpetrator could have known, or it might lead the police to other conclusive evidence of guilt. English law, however, would still exclude the former confession, and we should surely wonder about the permissibility of allowing evidence that was obtained through such a confession. Nor is it enough to say that such evidence is excluded in order to deter the police from using, or to avoid encouraging them to use, such improper investigative methods (an argument that would justify excluding only evidence obtained through the use of torture by state officials): the obvious way to do that would be to provide severe criminal sanctions against anyone who uses torture—but still to allow its fruits as evidence if they are reliable. There is at least some intuitive force to the ‘fruit of the poisoned tree’ doctrine: but what, and how much, force does it have? One question is: What can poison the tree? Is it poisoned only by the misconduct of state officials—the misconduct, that is (if we ascribe their actions to the state or polity in whose name they act) of the state or polity that now brings the defendant to trial; or by sufficiently serious misconduct by anyone?36 The latter view would reflect a general moral principle, not connected particularly to any conception of the trial, that one should not (knowingly) profit from or make use of another’s (serious) wrongdoing. If that principle is too general to be plausible, and more general than is needed, the relevant principle could be that one should not profit from or make use of the fruits that another’s wrongdoing was intended to produce. This would forbid using information that was extracted by torture, but not using information that fortuitously came to light as the result of, say, another’s murder. The underlying reason might be that we should certainly condemn and disown the wrongdoing, and that to make use of the very fruits that it was intended to produce would undermine that disowning, since it would by implication partly condone the wrongdoing. Whatever force some such general principle has, however, there also seem to be more specific objections to allowing evidence that was extracted from the defendant by torture, or that was extracted by torture by the police or other state officials. It is in these contexts that we might talk of the ‘integrity’ of the trial, or of the criminal process as a whole, as being

should be seen as reaching; but the idea can usefully be applied to the direct as well as to the indirect products of improper actions. Cf the Scottish cases of Chalmers v HM Adv 1954 JC 66 and HM Adv v McLean 2000 SCCR 987. 36 See at nn 26–35 above. For further discussion of these distinctions, particularly in the context of entrapment, see ch 8 below.

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undermined,37 but this idea clearly requires further explication. But the point to notice here is that this objection to the admission of evidence obtained by (official) torture rests on a normative conception of the trial and its proper goals—for only then can we judge what its ‘integrity’ involves or requires. In other words, if this is at least a significant reason against admitting such evidence, we are not dealing simply with a general principle that applies to the trial just as it applies to various other kinds of conduct; or with a side-constraint on the means by which we may pursue the trial’s proper goals, one that reflects moral values which have no internal connection to the trial. It is a value internal to our understanding of the proper nature and goals of the criminal trial. Similar points apply to other kinds of illegally or improperly obtained evidence. English law gives courts a wide discretion to decide whether to admit or exclude it: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.38

If what matters is simply the accuracy of the verdict, such evidence should be excluded only if its origin casts doubt on its reliability; the only question then would be whether the courts should be left in each case to decide whether the ‘prejudicial effect’ of the evidence is likely to outweigh its ‘probative value’.39 Alternatively they might be bound by a general rule that this type of evidence must be excluded, on the grounds that it is generally so likely to be more prejudicial than probative that we need not, and perhaps for practical reasons to do with certainty and fallibility should not,40 leave the courts with the discretion to decide on this issue. This would not quite be a Benthamite system of ‘free proof’,41 but it would be a system of proof focused exclusively on the accuracy of the verdict, and

37 See at nn 26–33 above (an appeal to ‘integrity’ was central to the Law Lords’ judgments in A and Others v Secretary of State for the Home Department); Ashworth, 2003; also Dennis, 2007: 49–58, on ‘legitimacy’; Roberts and Zuckerman, 2004: 157–60. It is important to be clear, however, that what is at stake here is not simply or primarily the perceived legitimacy of the trial or the criminal process, but the legitimacy that it actually has, whether perceived or not. cf the arguments about what counts as resolving a dispute—ch 3 at nn 18–21 above. 38 Police and Criminal Evidence Act 1984 s 78 (on which see further ch 8.3.2 below). On American law, see LaFave et al, 2004: chs 9–10. 39 See Roberts and Zuckerman, 2004: 97–8, on the ‘PV>PE’ formula, and its classic common law expression in Christie [1914] AC 545, 564–5. 40 This is one familiar, rule-consequentialist, rationale for applying strict rules: see Hare, 1981. 41 See Bentham, 1827; Twining, 1985.

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were accuracy the sole aim, it would be hard to resist Bentham’s typically robust critique of at least most exclusionary rules: If the discovery of truth be the end of the rules of evidence, and if sagacity consist in the adaptation of means to ends, it appeared to me that, in the line of judicature, the sagacity displayed by the sages of law was as much below the level of that displayed by an illiterate peasant or mechanic in the bosom of his family, as, in the line of physical science, the sagacity displayed by the peasant is to the sagacity displayed in the same line by a Newton.42

However, it is clear that contemporary practice and theory take the idea of the ‘fairness’ of a trial to involve more than whether its procedures are reliably focused on the aim of accuracy: that there are (or are thought to be) other fairness-related reasons for excluding evidence than its unreliability.43 Two other possible reasons for excluding improperly obtained evidence, though they are often cited, cannot help us to see why its admission could undermine the fairness of the trial: first, that to exclude such evidence helps to deter such official misconduct (if the impropriety was committed by officials); second, that it provides the defendant with redress against such impropriety when it was committed against the defendant.44 We need not take either reason to be indefeasible: the court might have to weigh up the importance of deterrence or of remedy against the probative value of the evidence and the importance of the case. The relevant point here, however, is that such reasons do not bear on the fairness of the trial: that officials are not deterred from misconduct does not make this defendant’s trial unfair; nor does fairness seem to require that his remedy should be a greater chance of acquittal on the charge (which is unrelated to the officials’ misconduct) that he faces. Indeed, it can be plausibly argued that we should separate such issues as deterrence and remedy from that of admissibility: the law must of course provide suitable sanctions against this and other kinds of official misconduct, and provide suitable remedies for those wronged by such misconduct; but such provisions are not, or should not be, part of the trial of the charge against the defendant. Another possibility would be to argue, again on grounds of fairness, that the state should not be allowed to profit from its own wrongdoing, as constituted by the wrongdoing of state officials. In using illegal or 42 Bentham, 1827: 5–6. See further ch 8.3.2 below, on rights-based explanations for the exclusion of improperly obtained evidence. 43 See generally Dennis, 2007: ch. 8; Roberts and Zuckerman, 2004: 147–8; P Duff, 2004a. See also ch 3 at n 49 above, on ‘accuracy of outcome’ as against ‘fair procedures’ (Law Commission, 2001: para 7.12). 44 For discussion see Dennis, 2007: 101–6; Roberts and Zuckerman, 2004: 150–57. This might also be a feature of the ‘rule of law’ account that we sketched at the start of this chapter; but our argument would still be that the rule of law is best upheld by treating the official misconduct separately from the defendant’s trial.

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improper means to obtain evidence, the state (through its officials) is, as it were, cheating and to allow such evidence to be offered at trial would be to let the state get away with that cheating, which would be unfair to the defendant.45 It might be asked how the state profits in convicting the defendant: to which the answer is that if (as we are assuming) the improperly obtained evidence has significant probative value, the state (and the polity in whose name it acts) profits by thus gaining a better chance of convicting the guilty. We might also wonder how far it is reasonable to treat the illegal and improper activities of officials as activities of the state: why could the state, perhaps through the court, not formally disown the illegal activities of the officials (and demand their punishment)—in which case the question would be that of whether the state should be allowed, or should allow itself, to profit from the wrongdoing of others? Perhaps it is a mistake to focus so much on the idea of fairness, as if this was the only, or the only non-truth-related, value relevant to the trial and its procedures, so that the question is always whether a given procedure or provision is fair. Perhaps we could make more progress if we turn again to the idea of the ‘integrity’ or ‘legitimacy’ of the trial as a distinctive kind of legal process.46 Here is one way in which that idea could be developed, which we will take up in more detail later. The trial is a process through which the state, acting in the name and on behalf of the polity, calls a defendant to answer a charge of criminal wrongdoing; that answering involves both answering to the charge, by entering a plea and (subject to whatever right of silence should be recognised) responding to the evidence adduced by the prosecution, and answering for such criminal conduct as she admits or is proved against her.47 The trial thus presupposes that the defendant is bound both by the substantive criminal law that defines the crime she is accused of committing, and by the laws that govern the trial, including those defining offences such as perjury, interfering with witnesses, and other attempts to pervert the course of justice. In summoning the defendant to trial, the state claims the authority, the standing, to call her thus to answer under the laws by which she is bound. Now we need not think that the misconduct of state officials in investigating the crime undermines the extent to which the defendant is herself bound by the law either in relation to the alleged offence or in relation to her conduct in the trial: quite apart from the fact that her obligations are to her fellow citizens rather than to the state, we

45 On not allowing wrongdoers to profit from their wrongs, see Riggs v Palmer 115 NY 506 (1889)—a case and a principle made much of by RM Dworkin (1978, 1986: 15–20). 46 See at n 37 above, and references given there. 47 Answering for conduct might thus involve either offering a defence, if the commission of the offence is admitted or proved; or accepting guilt.

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should not take so rigorously reciprocalist a view of the grounds of moral obligation—that you flouted your obligations to me does not in general justify me in flouting my obligations to you. Your flouting does, however, undermine your standing to call me to account for my flouting—at least if you have not disowned it and apologised for it, and at least if there is some suitable relationship between the two.48 If the state, in investigating the crime with which I am now charged, in building its case against me, flouted the very criminal law under which it would now call me to account, surely that undermines its standing to call me to account, and so undermines the legitimacy of the trial—unless it first makes clear that it disowns that wrongdoing; but the obvious way in which to disown, or the minimal first step in disowning, that wrongdoing is to refrain from making any use of its fruits, ie not to seek to adduce the evidence obtained through it.49 Of course, these arguments rest on seeing the criminal justice system from investigation to trial as an integrated whole such that wrongdoing at one stage of the process can undermine standing at another. That idea is controversial and needs defence—which we will offer in chapter eight. Here we should note at least that without an enriched normative conception of the trial, it is difficult even to make sense of the concerns about standing that we have outlined. Before turning to the next set of evidential issues to be discussed, it is worth summarising the discussion of improperly obtained evidence up to this point. We have discussed four kinds of rationalisation of exclusionary rules— •



The rules specify a generally effective way of pursuing the truth, or guard against factors that might hinder or distort that search; they exclude evidence that is unreliable, or whose likely prejudicial effect outweighs its probative value. The rules reflect ends (consequential or intrinsic) other than truth that trials should serve, and whose pursuit might conflict with the goal of truth: for instance, they should be used to deter police misconduct.

48 To talk just of ‘some suitable relationship’ is of course intolerably vague. It is intended to mark a recognition of the point that the mere fact that you once wronged me, even seriously, might not be enough to negate your right ever to call me to account for any wrong I do to you, without embarking on the complex discussion of just what kinds of relationship between wrong and wrong, or between wrong and calling to account, are ‘suitable’. We take it, however, that the relationship involved in the use of evidence that was obtained by means that wronged the defendant is certainly ‘suitable. For some analysis in the context of terrorism, see Cohen, 2006. 49 This leaves open, for the time being, the question of whether it is only official misconduct that can, if its fruits are admitted to the trial, undermine the trial’s legitimacy: would the fact that the evidence in question was obtained through private rather than official misconduct weaken or undermine any argument against admitting it? These issues are explored in ch 8.

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Truth and Communication in the Trial The rules reflect non-consequentialist side-constraints on our pursuit of the truth, which have no internal connection to the trial and its aims: for instance, the trial should neither involve nor make use of the fruits of torture. The rules reflect a different, richer, more complex understanding of ‘truth’ as a goal, or of a goal that includes truth as a central aspect: for instance that the goal is not simply the discovery or proof of the truth, but a truth that emerges from a process of calling citizens to answer charges against them.

As we have just indicated, we will develop a version of the fourth kind of rationale. This is not to deny the significance of the other kinds: we have no doubt that such considerations do rightly underpin some procedural rules and structures. But it is the fourth kind of rationale that merits more careful attention—partly because it has not received enough attention from normative theorists, and partly because it will help us to build up a normative picture of what trials should be and should mean. We can continue this task by looking at two further kinds of evidential rule—that concerning evidence of the defendant’s prior record or character and that concerning hearsay and orality. In both cases an instrumentalist account cannot adequately explain why the admission of such evidence should be at least controversial.

4.4.

EVIDENCE OF BAD CHARACTER AND CRIMINAL RECORD

Sections 98–113 of the Criminal Justice Act 2003 now lay down the conditions under which prosecutors in England can adduce evidence of the defendant’s ‘bad character’, defined by section 98 as ‘evidence of, or of a disposition towards, misconduct on his part’. It thus includes but is not limited to evidence of prior convictions.50 The main ground allowed by the Act for admitting evidence of prior convictions is that if they are convictions for an offence ‘of the same description’ or ‘of the same category’ as the offence with which he is charged, they can establish ‘a defendant’s propensity to commit offences of the kind with which he is charged’. An offence is ‘of the same description’ if it would be described in the same terms in the indictment; it is ‘of the same category’ if it belongs ‘to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State’, though such categories must only 50 ‘Evidence of bad character’ excludes evidence concerning ‘the alleged facts of the offence with which the defendant is charged’, and ‘evidence of misconduct in connection with the investigation or prosecution of that offence’. On evidence of non-defendants’ bad character, see s 100.

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include offences ‘of the same type’.51 The Secretary of State made the first order under this section of the Act in October 2004, specifying what is to fall under the ‘categories’ of ‘theft’ and of ‘sexual offences (persons under the age of 16)’: to take just two examples, taking a car without the owner’s consent is placed in the same category as burglary, so that a prior conviction for taking a car without consent can be admitted at a defendant’s trial on a charge of burglary, as evidence that may establish his ‘propensity to commit offences of the [same] kind’ as burglary; and an offence of sexual intercourse with a girl under sixteen is placed in the same category as rape of a victim who was under sixteen, so that a conviction for the former offence can be admitted at a rape trial as evidence that may establish his propensity to commit offences of the same kind as rape.52 We will not embark on a detailed discussion or critique of these provisions here (though this first order gives added force to the worries expressed by critics of the Act). Our question is a prior and simpler one: why should there be any constraints on evidence of bad character or of prior convictions if it is epistemologically relevant to the issue at stake in the trial, namely whether this defendant committed the offence charged? There are, of course, limits to the epistemic significance of prior convictions: the fact that someone who is charged with defrauding his employer has a prior conviction for sexually abusing a child cannot contribute anything epistemically significant to the question now at issue.53 But within such limits, the defendant’s prior convictions will often have some epistemic significance, by which we mean that they would increase the probability that the defendant committed the offence charged, providing some reason for detached observers of a trial to believe that the defendant perpetrated the acts relevant to the charge. This is not to suggest that they would prove his guilt, or that they would always add very much weight to the prosecution’s case, or that they would not easily be counter-balanced by other evidence: but they would at least quite often be epistemically significant as reasons for belief. So why should there be such strenuous objections to allowing such evidence; why, when it is to be allowed under the Criminal Justice Act 2003, are there still such formal constraints on its introduction?

51 ‘Type’ is left undefined. These provisions are in s 103 of the Act: the defendant’s propensity ‘may be established’ by evidence of the appropriate kind of prior conviction, which strongly suggests that it just will be taken to have been thus established. See generally Roberts and Zuckerman, 2004: 500–79. On the law before the Criminal Justice Act 2003, see Dennis, 2007: ch. 18 52 Statutory Instrument 2004 No 3346: Criminal Justice Act 2003 (Categories of Offences) Order 2004. 53 One could say that it shows that he is not deterred from crime by the mere fact that it is criminal: but that is not substantive evidence of guilt.

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The obvious, familiar answer is that such evidence can rarely if ever satisfy the ‘PV>PE’ formula:54 although it might add modest rational weight to the reasons for believing that the defendant is guilty, juries will typically be swayed or prejudiced by it to a degree that vastly exceeds its rational probative force. It would thus be unfair to the defendant to admit it except under closely defined and limited circumstances. There is obvious force to this argument—though it is one that advocates of juries as reliable fact-finders should perhaps be slower and less fervent in mobilising than they often are; but it does not tell the whole story. When we imagine ourselves moving from the detached, disinterested stance of an observer wondering whether this defendant is guilty, to that of a juror at his trial, we can see reason not to allow any probative weight to, not even to consider, factors to which we would rationally allow some probative weight as detached observers. Those reasons have to do with how we should view the person whose guilt we must, as jurors, judge. If we have to judge, in any of a variety of formal or informal contexts, whether someone did commit a wrong that she denies committing, and especially when we are judging, not as detached observers, but as those who will condemn her if we judge her guilty, that person might well object that it is unfair for us to attach any probative value to the fact that she has committed such wrongs in the past. On the standard argument for excluding such evidence from criminal trials, that unfairness could only consist in the risk that we thereby take that our judgment will be unreasonably prejudiced—the risk that we will, whether consciously or not, attach more weight to that prior wrongdoing than is epistemically appropriate.55 It is worth noting that, since such prejudice is as likely to be unconscious as it is to be conscious, she has the same reason to object to our forming such a judgment at all, given our knowledge of her past wrongdoing, as she has to object to our paying explicit attention to that wrongdoing in our deliberation. But there is, surely, more to the charge of unfairness than that. Even if she is confident that we will make no epistemological error, that we will attach no more weight to the fact of her past wrongdoing than the detached, rational observer would attach, she might still object that it is unfair to allow that fact to play any role in our deliberation at all. Our task here is to work out where that unfairness might lie, if it does not lie simply in the risk that we will fall into epistemic error.

54

See Roberts and Zuckerman, 2004: 97–8, and n 39 above. It is worth noting that restrictions on evidence of bad character and prior convictions first emerged in the early nineteenth century as the relevance of character in the trial declined and protections were seen as necessary against the growing power of the state in criminal justice. See generally Bentley, 1998: ch 22. 55

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It might be tempting to mobilise the presumption of innocence again in this context. The detached observer need not operate with such a presumption: she can start with an open mind about the person’s guilt or innocence, and see where the reasons lead her.56 A court or juror, by contrast, must presume that the defendant is innocent: but to allow evidence of his prior convictions undercuts that presumption. Allowing such evidence does not, however, directly undercut the presumption of innocence: for the presumption allows for its own defeat upon proof of guilt, or upon proof of guilt that takes us beyond reasonable doubt; this does not help us to determine whether or not evidence of prior convictions can, or should be allowed to, contribute towards proof beyond reasonable doubt. Nonetheless, thinking about what it is to presume someone to be innocent, and why this matters, can point us in the right direction. The presumption of innocence requires courts and jurors to see the defendant as a citizen who has committed no criminal wrong—to see her thus until it is proved that she is guilty of a particular wrong. This does not reflect a kind of empirical naivety, a naïve belief that people do not commit crimes. Rather, it requires us to see and treat our fellow citizens, especially or at least when we are called to judge them in a criminal court, as if they can be trusted to refrain from crime: for they are citizens, and that is what is expected of citizens. But we are also required to see and treat them as responsible agents: for only if they are thus responsible can they be either tried for or convicted of the crime they are accused of committing. Indeed, to try someone is precisely to address her as a responsible agent: for it is to call her to answer to the charge, and to answer for her crime if it is proved; and to be thus answerable is to be responsible. Now a responsible agent is one who is responsive to reasons: one who can recognise reasons for action (and for belief, and feeling), deliberate about them and from them, and guide her actions in their light.57 To see and treat someone as a responsible agent is therefore inter alia to see and to treat her as someone who can or could respond appropriately to relevant reasons for action, including those reasons provided by or expressed in the criminal law: even if she has not hitherto responded to them, or has on other occasions failed to be guided by them, she could now respond to and be guided by them. To take the fact of prior wrongdoing as evidence of her guilt of a new offence is inconsistent with such a regard or respect for the defendant as a responsible agent: as a responsible agent, she could have put her past crimes behind her, and come to guide her actions

56 A further implication of this contrast between jurors and detached observers is that what counts as ‘proof beyond reasonable doubt’ might be quite different as between the two contexts. 57 On responsibility as reason-responsiveness, see, eg, RJ Wallace, 1994; Fischer and Ravizza, 1998; also Tadros, 2005a: ch 1.

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by the appropriate reasons that the law provides or expresses; but we treat her as if her past conduct determines her present conduct.58 We should emphasise again that the point here is not in a narrow sense epistemic: of course, the ways in which a person has behaved in the past are often very good indicators of how they will behave or have behaved in the present; as Hume pointed out, if we could not rely upon such predictions of others’ behaviour social life would be impossible.59 The point is rather a moral one, about the reasons to which we should attend in judging those whom we would call to account.60 To admit evidence of past convictions is to say to the defendant ‘One reason for concluding that you are guilty of this crime is that you committed a similar crime in the past’: but the defendant might reasonably respond that it is unfair to judge her now on the basis of what she did then—and that this lays on her the unreasonable burden of offering counter-evidence of her non-criminal, law-respecting life since then. Her trial should focus on the actions she is now alleged to have committed; to allow evidence of prior convictions is to turn the focus from his actions to her and her past character—as if that determines her present actions. This provides part of the ground for questioning whether prior convictions can really be seen as evidence at all. To see them as evidence perhaps wrongly implies not only that they have probabilistic significance, but also that they could in principle contribute to the verdict.61 This argument is strengthened if we see punishment as a communicative enterprise that creates a normative expectation that it will induce offenders to change their ways.62 For if the defendant at the present trial had been previously convicted of and punished for another offence (however similar to the one she is now charged with), the criminal justice system must take seriously its own expectation that her punishment for that past offence would have dissuaded her from re-offending. If it is to treat her as a responsible agent, on whom such normative expectations can properly be laid (as it must do if it is to call her to trial or to convict her), it therefore cannot take her past conviction as evidence of her present guilt: for that would be to assume that she has not responded to that prior punishment as

58 That is, after all, what is wrong with the merely preventive detention of responsible agents who are judged to be ‘dangerous’ (and why the preventive detention of non-responsible agents, if they can be identified by reliable means, is not in the same way objectionable): that it fails to respect their responsible agency. Hence the controversy aroused by the English government’s Dangerous People with Severe Personality Disorder Bill 2000. 59 Hume, [1748] 1999: § VIII. 60 It is thus also epistemological in a broader and perhaps more appropriate sense, since it concerns the kinds of ground on which we can be entitled to conclude or be certain that p, and the difference that the context can make to those grounds. 61 We take up this issue in ch 8.3. 62 See von Hirsch, 1993; RA Duff, 2001; also Tadros, 2005a: ch 3 on the communicative character of the criminal justice system.

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she was normatively expected to respond. Such a view of punishment is, however, far from being widely accepted, and we do not want to make our account of the criminal trial depend on it; the argument sketched above is independent of this view of punishment. As with improperly obtained evidence (evidence obtained through official misconduct towards the defendant), we are not arguing that evidence of bad character must never be admitted: only that there are always good reasons to exclude it—reasons that flow from a conception of the trial as a process in which the state, acting in the name of the polity as a whole, calls a responsible citizen to answer a charge of wrongdoing. The ambition of the trial to get to the truth is central to that conception: but it is truth, or rather knowledge, as established through such a process. The fact that there are also, at least sometimes, reasons to allow evidence of prior convictions or improperly obtained evidence—which might indeed sometimes outweigh the reasons against—shows that that conception of the trial cannot stand unchallenged as the normative conception of the trial, for it shows that sometimes what matters is more simply to establish the guilt of the guilty. But we will argue that the richer conception, which defines the end partly in terms of the process by which it is pursued, and makes central the character of the trial as an interaction between state and citizen, should be the primary conception. It is worth noting that the ‘rule of law’ conception of the trial, which we sketched at the start of this chapter as a possible alternative to our account, seems weak here in the same way in which, we argued, it falters in relation to the defendant’s participation and to the exclusion of improperly obtained evidence. It is weak because it does not show what is distinctive about the criminal trial as a kind of procedure. It can emphasise that, when the state is to exercise its power over the citizen, the citizen needs to be protected and empowered; and it can insist that, when that power is to be exercised in ways that burden the citizen, on the basis of claims about the citizen’s conduct or condition, those claims must be subject to scrutiny and must be shown to be well grounded before such coercive action can be based on them. Such an account can ground a principle that those ‘against whom government decisions operate [must be given] the chance to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons’.63 It can ground demands that the state and its officials conduct themselves properly in gathering evidence—although not, as we saw in 4.2 above, that improperly obtained evidence be excluded from the trial. It can ground a demand that decisions which will impinge coercively and burdensomely on citizens be based only on relevant and reliable evidence. But such principles and

63

Tribe, 1978: 502–3; see at n 21 above.

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demands will apply in the same way, and with the same force, to all official proceedings that might burden those subject to them—to, for instance, decisions about psychiatric detention or quarantine, decisions to withhold a licence, decisions about tax liabilities or exemptions, decisions about welfare entitlements, as well as to criminal trials. Our account shows that such principles and demands take a distinctive form and have a distinctive force in the context of the criminal trial, by showing the distinctive character of the criminal trial. 4.5.

HEARSAY AND ORALITY

As well as reforming the law on the admissibility of evidence of bad character and prior convictions, the Criminal Justice Act 2003 reformed the law on the admissibility of hearsay evidence.64 The topic is a complex one and we will not immerse ourselves in its details. The Act specifies the general criteria by which courts are to decide whether to admit hearsay evidence—the most general, catch-all criterion being that ‘the court is satisfied that it is in the interests of justice for it to be admissible’. It specifies the factors to which the court must attend in making that decision—these have to do primarily with the probative relevance of the evidence, with the reliability of the relevant statement and of the person making it, with why it cannot be made orally, and with the difficulty of challenging it; and it specifies the ‘principal categories of admissibility’. Our interest here, however, is in the question of why there should be an issue about hearsay evidence at all. Why should it be seen as problematic? We should distinguish the issue of hearsay from that of orality: they overlap, but are far from identical. The issue of hearsay is that of the admissibility of evidence from a witness who is not present in court at the trial to be examined and cross-examined: evidence either in the form of oral testimony from A of what B told him, or in the form of a written statement by B that is presented as evidence in B’s absence. The issue of orality is that of whether evidence should always be given orally rather than in writing. A system in which a witness’s evidence could or must be given initially in the form of a written statement (made under oath), given to both prosecution and defence, but in which the witness would have to be present in court to be examined and cross-examined on that statement and matters arising from it, would partly violate the demand for orality, but would raise no worries about hearsay. Our concern here is primarily with hearsay, and with orality only in so far as it is precluded by allowing hearsay evidence. We are thus concerned with the question of whether and why it matters that witnesses be present at the trial to be examined or 64

Criminal Justice Act 2003 ss 114–36; see Roberts and Zuckerman, 2004: 580–670.

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cross-examined, and not with the question of whether it could be appropriate for evidence to be initially given in writing.65 Why, to put it crudely, should there be a presumption against allowing hearsay evidence (as there still is—the 2003 Act specifies the conditions under which the presumption can be defeated)? Why not leave hearsay evidence, like other kinds of evidence, to be treated by the courts in the light of its relevance and its probative value? Once again, the obvious answer to this question concerns the search for truth or accuracy. That A said that p might give us some reason to believe that p, at least or especially when we have no particular reason to suspect A of error or deceit;66 but, and especially in the context of a trial when we have more reason to wonder about a witness’s veracity, that reason will be seriously weakened if we cannot question A. Once again, however, it is not clear that such a concern for truth or accuracy tells the whole story about the presumption against hearsay. We noted earlier the importance attached to the presence of the defendant at her trial; by thinking further about that issue, we might see more clearly why it should matter (other than for the sake of the efficient pursuit of accuracy or truth) that witnesses be present. Imagine a system in which cases were heard in writing rather than through trials at which the defendant and others were physically present: the defendant might object, insisting that she wanted to face, to see and be seen by, those who would decide her fate; others might object that such a system makes it too easy for the guilty defendant, since she is not required to face her judges, victims and others. The defendant’s concern is not that she does not get a fair hearing, if that just means a chance to put her side of the case and to respond to the prosecution case, since she can submit written evidence and argument (and receive help with that if she is not good at writing). Rather, her objection, and the objections of others, reflect the deep importance that the idea of physical presence and face-to-face dealing plays in our social lives.67 Our ordinary language is full of phrases that reveal this: looking someone in the eye or facing them (rather than communicating at a

65 Though it should be said that the English system’s continuing obsession with orality, and its apparent mistrust of the written word, is puzzling: there is no good reason why fact-finders should not be given or allowed access to far more written material (witness statements; transcripts; notes of judicial summings up . . . ) than they have at present. 66 There are some general issues about testimony and the rationality of relying on it as a source of knowledge that we cannot pursue here: see Pritchard, 2004. 67 The availability of increasingly sophisticated video communications raises interesting issues here: we could say that it makes at least a kind of face-to-face interaction possible without physical co-presence; others might object that what matters is the idea that you could reach out and touch the other person—though that would not of course be in fact allowed in court. Ideas of what counts as ‘face-to-face’ can of course change, partly as a result of changing technology; there is also a deeper question about how far the very importance we attach to the ‘face to face’ could change with changes in our social and material world—

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distance, by letter or email); faceless men deciding things behind closed doors, rather than in the open where they can see and be seen. It matters, it seems, both that defendants ‘face up’ to the charge against them, by appearing in person before the court, and that those who would judge and condemn the defendant be prepared to face him.68 A clear (perhaps the clearest) example of this concern is found in the idea that defendants should be able to confront the prosecution’s witnesses.69 When those witnesses are the defendant’s accusers, we can see moral force in the demand that they be willing to face him—to accuse him to his face, rather than only at a distance in writing or by video.70 This cannot, of course, rationalise a general expectation that witnesses should appear in person: for not all witnesses, not even all prosecution witnesses, are either in intention or in fact accusers. However, if we think it important that, at least on serious charges, the accused should have to answer in person (which is to say, given our embodied nature, by being physically present) to the charge that he faces; and if, as we suggest, this is because what he is charged with is a wrong for which he must answer to the polity as a whole, through this criminal court: it must also be important that other members of the polity with a role in the trial—as witnesses, as judges or as jurors—should face him in person. There would be a clear contradiction in calling on you to answer in person to us, but refusing to face you ourselves. Here again, then, an instrumentalist account of the trial as aimed at establishing the truth about the defendant’s guilt seems inadequate to rationalise what is perceived as an important aspect of the trial; here again, we can provide a more plausible rationalisation in terms of the idea that the trial is a forum in which a citizen is formally called to answer to the polity for an alleged criminal wrong—to answer to the charge that she committed such a wrong, to answer for that wrong if it is proved against her.

though given the way in which that perceived importance is grounded in our nature as embodied beings who depend on their five senses, such changes would be fundamental. We cannot pursue these issues here. 68 In summary trials the defendant can plead guilty by post (see n 14 above): that marks the view that in such cases the wrongdoing is relatively minor. On the account being sketched here, if we ask why a rapist or a robber should not be allowed to plead guilty by post, the answer is not merely that he would probably then not present himself for punishment, but that a postal plea would not amount to confronting his wrongdoing, and those to whom he must answer for it. See also above, ch 2 at nn 77–8, on the importance of direct confrontation between accused and accusers in ‘altercation’ trials 69 The Sixth Amendment to the US Constitution declares the defendant’s right ‘to be confronted with the witnesses against him’. 70 See Clark, 2003, 2006. The provisions for witnesses to give evidence from behind a screen or by video (see Youth Justice and Criminal Evidence Act 1999 ss 16–33; Dennis, 2007: 625–40; Roberts and Zuckerman (2004: 280–86) nicely illustrate this point, since they are seen as exceptional provisions that require special and strong justification.

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TRUTH AND CALLING TO ACCOUNT: SOME PROBLEMS

We have suggested so far, in this and the previous chapter, that a plausible normative theory of the criminal trial will not portray it simply as an attempt to establish the truth as to whether the defendant committed the offence charged, in order to identify accurately those who are to be subjected to punishment. It will instead portray it as a process through which a citizen is called to answer a charge of criminal wrongdoing. A conception of, and search for, the truth is still central to that portrayal: an essential aim of the trial is to establish whether the charge of wrongdoing has been proved to be true. However, first, the truth that is to be established is a normative truth about the defendant’s alleged wrongdoing—and if what is established is the normative truth that she is guilty of that wrongdoing, its declaration by the fact-finder is also a condemnation of the defendant. Second, what is sought is not merely truth, but knowledge: if we are to respect the values (values to do with citizens’ standing in the eyes of the law) that the presumption of innocence embodies, the formal condemnation of the defendant that a verdict of ‘Guilty’ pronounces must express the fact-finder’s knowledge of her guilt. Third, it is essential to the trial’s character that that truth or knowledge is to be pursued by a process in which the defendant is invited (but not required) to participate: allowing such a role to the defendant is not important merely as a means to establishing the truth, or as a sideconstraint on the pursuit of a kind of truth or knowledge that could in principle be established without giving the defendant any such role, but as integral to the process as one of calling the defendant to answer to the charge.71 In the following chapter, we will flesh out this conception of the trial in more detail, but we will also have to attend to some obvious problems that it raises—problems arising from features of the trial that it cannot easily accommodate, but that seem crucial to the legitimacy or possibility of the trial process. We will note three such problems here: each will require, and will receive, more detailed attention in the following chapters. 4.6.1. The Right of Silence We have already noted (in 4.1 above) that it is hard to explain even what remains of the defendant’s right of silence at her trial in terms of an 71 It is perhaps worth emphasising again that we do not deny that many features of the trial can be explained and rationalised either in instrumental terms as means to truth, or in terms of values that set side-constraints on our pursuit of the trial’s end: our claim is only that some features, those on which we have focused here, are best explained in terms of the richly defined purpose that we attribute to the trial.

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account of the trial as a search for truth. If truth or knowledge is the aim, surely the defendant should have a legal duty to speak—to respond to the prosecution case, to assist in this search for truth: why should this not be recognised as a civic duty, and given the force of law? One kind of answer to this question would deny that there should even in principle be any such civic or legal duty. As citizens we do of course have a range of duties to the state and to our fellow citizens, including some duties to assist the enforcement and administration of the criminal law, but they should not include a duty to assist in our own prosecution. For if such assistance would be in the innocent defendant’s own favour, by rebutting the prosecution’s case, it would be a matter of prudence that she should speak, not of civic duty; and if it would work against her, by strengthening the prosecution’s case, the state should not require citizens thus to injure their own interests.72 This is not the kind of answer that we would give, since we see more force to the idea that, ideally, there would indeed be such a civic duty, and even a legal duty, to participate in one’s trial. To talk of what would ideally be the case in this way is to talk of what would be true or acceptable in a political community that at least came close (very much closer than our existing polities come) to being what it must aspire to be: to being a community structured by mutual respect and concern, and a regard for shared values; and, most crucially for present purposes, to being one in which citizens could trust the state and its officials and institutions to treat them justly. In such a polity, it would be plausible to demand that citizens answer fully (and not just formally through a plea of ‘Not Guilty’) to accusations of criminal wrongdoing that are legitimately brought against them—in the same way as we would expect friends or colleagues or partners to answer to each other. This is not to say, however, that we think that the right of silence should be abolished. It is rather to say that its justification is to be found, not at the level of ideal political theory, but in the messier realms in which one tries to connect ideal theory to actual practice: what makes plausible sense of a right of silence is the very distance between our actual political and legal practices, and the ideals of what they ought to be. We will be able to get clearer about this when we have developed our normative account of the trial’s purposes in more detail: for that account will articulate an ideal of what trials ought to be, and we will be able to rationalise at least some important features of our existing trial practices as safeguards that are necessitated by the size of the gap between the actual and the ideal. We will consider this in a little more depth in chapters five and seven.

72 We might see Hobbesian resonances here, in the limitations that Hobbes placed on what the social contract could require of us by way of self-sacrifice.

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4.6.2. The Need for Finality If we are searching simply for accurate information, we must decide how much time and what sort of resources it is worth devoting to that search. The nature of our inquiry, and when we decide to settle for what (we think) we have established, will depend on what the information is to be used for, and what the costs will be of errors in either direction (of false positives or of false negatives). If our search is for knowledge of intrinsically significant truths, there will of course be similar questions—since it would not be plausible to claim that such truths are of absolute value, and demand all our time and resources: but quite apart from the point that we will probably devote more time and resources to the pursuit than we would if accuracy was the only aim, more is sacrificed if we stop before achieving knowledge. We can say that we have achieved conclusions that are accurate enough for our purposes, or that we have devoted enough time and resources to the inquiry. It is harder to say that we have reached conclusions that are true enough, or that we have no reason to spend more time or resources on the pursuit of truth. Truth seems to make demands that, even if we should not even try any longer to meet them, are not silenced by that fact. But it is important that the trial process achieves a kind of finality that seems to be inconsistent with such a concern for the truth, and in particular that acquittals should be taken to have settled the matter, not by proving that the defendant did not commit the crime, but by marking a final declaration that the presumption of innocence is not defeated in relation to this crime, and that the issue is closed.73 It is worth noting that convictions are not seen in the same light: those who have been mistakenly convicted continue to fight to clear their names, and whilst we might sometimes think that it would be more prudent to abandon the fight, and whilst there must be limits on how often and with what state support those who have been convicted should be allowed to bring new appeals, we would not think that they ought to accept their mistaken convictions simply on the grounds that ‘nothing can be gained’ by their continued struggle. As for the finality of acquittals, this certainly marks a constraint on the search for truth or knowledge; but that constraint can be made plausible by attending to the conditions of civic life.

73 But see the provisions in ss 75–97 of the Criminal Justice Act 2003 for ‘Retrial for Serious Offences’, controversially qualifying the principle against double jeopardy.

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4.6.3. Conflicts of Value The third, and potentially most troubling, problem was already partially raised in chapter three (at 3.2–3.3), but becomes more acute when we turn from the role and responsibilities of fact-finders to that of the defendant. The problem raised in chapter three concerned fact-finders who, given their more or less radical dissent from the laws that they were supposed to apply, could not bring verdicts that accorded both with their own consciences and with the law.74 As citizens or officials of the polity, their responsibility is to judge the defendant in the light of the laws that the polity has established; it is not for them to replace those laws by their own values or standards. But can they really be expected to put aside their own individual or personal views in favour of the law—to condemn in a first person plural voice conduct that which they could not condemn as individuals in a first person singular voice? Now that problem for fact-finders might be remedied in various ways: we might appeal to the possibility of jury (or fact-finder) nullification; we might argue that provision should be made for conscientious objectors, allowing jurors or judges to be exempted from hearing any case in which they would or might face this problem. There are of course problems with both these possible solutions, but when we turn to the defendant’s position the problem becomes much sharper. For suppose that the defendant dissents from the values and norms enshrined in the criminal law under which she is judged, or from the claims to authority that are implicit in the law and in her trial? She might think that the particular law under which she is charged is unjust or radically misguided: that what it defines as a criminal wrong is not a wrong at all, or not a wrong that should concern the polity. Or she might think that she has what the law should recognise, but clearly does not recognise, as a defence. Or, more radically, she might deny that the law of this state is binding on her, or that the court has the right or the standing to call her to account and to judge her. Now one familiar question concerns the terms in and on which it could be legitimate to punish such a dissenter if she is duly convicted, but what concerns us here is a different question about how—if at all—she can be legitimately tried.75 We noted at the start of Part II that we are taking for granted some kind of separation of powers between legislatures and courts, expressed very roughly in the slogan that it is for the legislature to make the law and for the courts to apply it. There are some obvious and familiar reasons for

74 Hence the significance of the title of Green’s book on the jury: Verdict according to Conscience (TA Green, 1985). 75 On the issues raised here, see especially Christodoulidis, 2004; Roermund, 2006; Veitch, 2006.

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such a separation—a separation that gives the legislature authority over the courts (even if, in jurisdictions that allow courts to strike down or revise legislation on constitutional or human rights grounds, the courts also have some authority over the legislature). The court cannot match a democratically elected legislature in democratic legitimacy, since participants in the trial are not representatives of the broader community, nor realistically could they be.76 The trial decides issues in relation to particular cases rather than in general; it is not a forum in which the wider and more general issues that properly bear on the definitions of offences and defences can be effectively considered and decided: it cannot effectively consider the views of different interest groups, or engage in informed debate about the wider implications or ramifications of different offence definitions (though appellate judges often seem to think that they are equipped to pronounce on such matters). There is pressure on the trial to make decisions reasonably quickly—for reasons of efficiency, to ensure that the trial is not overly oppressive to the defendant, and to provide the opportunity for ‘closure’.77 Finally, the values that are expressed in the slogan ‘the rule of law’ include those of certainty and consistency: citizens must be able to know what the law is, and should be able to expect to be treated in the same way, and to be judged by the same standards, whatever court they appear in. But the greater the extent to which individual courts are allowed to make, remake or annul the law, the greater the extent to which the law will become uncertain, unpredictable and inconsistent. The considerations noted in the previous paragraph suggest that there should be limits on what can be discussed and questioned at the trial: that whilst there must be room for argument about the facts of who did what and why (insofar as those facts are relevant by the prevailing legal criteria), about the precise interpretation of the law, and about the application of such standards as the law leaves the courts to apply, there can be no room for argument about the acceptability of the law’s definitions of offences or defences. More precisely, as we will see, there may be room to challenge the law’s validity, by reference to principles or criteria that the law itself—the law of this system, or a law that is binding on this system— provides, but there should not be room for extra-legal arguments about the moral acceptability of the law: the defendant should not be allowed to argue, or be listened to if he argues, that though he is guilty in law, the court or jury should overturn, reject or amend the law and acquit him.78 But, on the other hand, if the criminal trial is to call the defendant, as a

76 For an account of why lay participation fails to inject democracy into the trial, see Hörnle, 2006. 77 See J Jackson, 2004. 78 We assume here the possibility of drawing some distinction between legal and extra-legal arguments.

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responsible agent, to answer the charge of criminal wrongdoing that has been laid against him, how can it properly rule out, as irrelevant to the trial, the very kind of answer he might want to make? To portray the trial as a process of calling a responsible agent to answer is to portray it as, at least in ambition, a communicative process in which the defendant ought to be respected as a participant rather than treated merely as an object. Respecting the defendant as a participant involves recognising some basic rights, such as the right to be told the evidence against him and the right to cross-examine witnesses. It also requires that those who are not competent to play an active part in the trial cannot be tried at all. The right to legal representation might also in part be justified as ensuring that participation in the criminal process, if indirect, is effective.79 A trial might fail as a communicative process in various ways. The defendant might not understand much of what goes on in court. Counsel might effectively exclude the defendant’s voice from the trial rather than truly representing her. The language and atmosphere of the trial might be alienating or intimidating in a way that effectively undermines the defendant’s participation in the trial. Those who control and conduct the trial might be so socially remote from the defendant’s life and experience that effective communication is eroded. One of the challenges of the criminal trial is to create an environment in which true communication is possible. Some of the formal rights that are guaranteed to defendants may help to secure this, although they are also limited. However, more than a proper communicative environment is required if the defendant is to be respected as a participant in the process. Central to such respect is that the defendant has a proper opportunity to present arguments concerning her criminal liability, and that those arguments are taken seriously—so that they can secure his freedom if they are convincing. No formal set of rights of participation can secure this: we must also attend to the substance of the trial—to the kinds of argument that can or cannot be made, heard, and listened to. We will consider these issues in more detail in chapter five. What we hope to have established here is that seeing the trial as a process of calling the defendant to answer a charge, and if responsible, to account for her conduct helps to provide an explanation of some of the central features and controversies surrounding criminal trials. To see the ambition of the trial in terms of mere accuracy fails to provide a proper account of those features and controversies. However, at the same time we recognise that there are limits to the kind of communicative enterprise that trials could plausibly be. We cannot see the trial a forum in which any of the rules and

79

See Dubber, 2004; above 4.1; and Art 6 of the ECHR.

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principles of the law are open to challenge in the light of reasons. But nevertheless seeing the trial as a communicative forum, we argue, provides the best normative reconstruction of the rules, principles and practices of trials.

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5 Calling to Answer 5.1.

INTRODUCTION

I

N THE PREVIOUS two chapters, we argued that criminal trials should be understood, in normative terms, as aiming at truth—at a truth concerning whether the defendant committed the criminal offence with which he was charged. However, in doing so we argued against two different kinds of instrumentalist view of truth and its relation to the trial. First, we should not see the truth at which the trial aims as having a merely instrumental importance—for instance as a matter of accurately identifying those who are to be subjected to penal measures: the trial’s verdict, as a declaration of purported truth that is also a performative (a condemnation or name-clearing), has an intrinsic rather than a purely instrumental significance; and that is one reason why the truth at which the trial aims should be a normative truth that the fact-finders can declare, in an authentically first-person (plural) voice, as something that they have come to know. Second, we should not see the trial itself, its procedures and processes, in purely instrumental terms, as aiming to establish the relevant truth by suitably reliable means: too many features of the trial, features that at least seem to be important and worth preserving, cannot be rationalised in such terms; nor indeed, we have suggested, can they be adequately rationalised as reflecting either other ends that the trial should also serve, or normative side-constraints on the pursuit of truth that reflect values quite independent of the trial and its aims. Several of these features concerned the defendant’s role and status in the trial: the importance attached to her participation (either to her actual participation, or to her capacity and opportunity to participate) in the trial, though balanced by an insistence that she should not be forced or required to participate; the exclusion of evidence that was improperly acquired, especially if the impropriety involved some wrong done by state officials to the defendant; the presumptive exclusion of evidence of her previous offences or otherwise bad character; the importance attached to the confrontation between the defendant and the witnesses (and the case) against her. We suggested that such features can best be understood on the basis of a conception of the trial as a procedure through which the defendant is called to answer the charge of criminal wrongdoing that the indictment

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contains, and called to account for that wrongdoing if it is proved against her. The trial aims at truth, in that it aims to determine whether that charge is true: but that truth is to be expressed in a normative judgment that declares the defendant’s guilt, and thus condemns her; or declares that the Presumption of Innocence has not been defeated, and thus clears her name.1 That judgment is declared to, not just on, the defendant; it must, if it is to be legitimate, express knowledge rather than true belief; and it must emerge from a fair procedure in which the defendant is called, and is given the chance, to rebut the charge of wrongdoing. It is time now to flesh out these suggestions in more detail, which will be to develop the claim that the trial should be normatively understood as an enterprise of calling alleged wrongdoers to answer, and to account. This can best be done by focusing again on the defendant’s role and standing in the trial.2 There are in fact two related questions here. First, it is an obvious general truth that any action or procedure should respect the moral status of those subjected to or affected by it: we therefore need to ask what modes of trial are consistent with the moral status that defendants bring, as it were, to the trial. We might say, for instance, that responsible, autonomous agents should be given ‘the chance to participate’ in the processes by which official decisions that might operate against them are made,3 from which it would follow that defendants should be given the chance to participate in their trials; this would be to appeal to a moral status, that of responsible or autonomous agent, that is determined and understood quite independently of the trial, and that sets side-constraints on the trial process as it does on many other processes. Second, however, we need to ask what status the defendant should have within the trial itself, as a particular kind of institutional process with particular goals. Consider again the person who, though competent and responsible at the time of his alleged commission of an offence, has since become mentally disordered in such a way that he cannot understand what is going on in the court, or plead with any understanding to the indictment.4 We could properly say (which would be 1 We suggested in ch 3 (at nn 60–61) that we should understand the ‘Not Guilty’ verdict in this way. 2 Our focus here is on the defendant’s status at the trial. Although the status the defendant brings to the trial—as citizen, responsible agent, human being—bears not just on the proper aims and conduct of the trial, but also on all other aspects of the criminal process, our concern here is with the status the defendant should be accorded at the trial itself. There are also of course important questions to be asked about other people’s status and roles in the trial—judges and other kinds of fact-finder, victims, witnesses, lawyers, court officials: we will comment on some of these, in particular on fact-finders and the significance of lay participation and on victims, in later chapters; but it is worth bearing in mind (a point rightly emphasised by Roberts, 2006) that any account of the trial must do justice to their rights and moral standing too. 3 Tribe, 1978: 502–03; see above, ch 4.2. 4 See above, ch 3 at n 47, ch 4 at n 13. Matters become more complicated with alleged offenders who do have some capacity to answer for their actions (which includes a capacity to

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part of an answer to the first question) that to ask a defendant in that condition to plead to the indictment, or to give evidence on oath, would be to fail to pay due attention to his status or condition—to his lack of capacity to play such a part in the trial. It does not follow from that, as yet, that he should not be tried—only that his trial would need to be consistent with a due recognition of his condition and its implications for what can or cannot be asked of him. What will show that he should not be tried is, rather, an answer to the second question: an answer that, on the basis of an account of the kind of process the trial should be, shows that it must address the defendant as someone with the capacities that the disordered defendant lacks, ie as someone who can understand and take part in the trial. Or consider a surgical operation. If the surgeon’s patient is a responsible adult, that status sets constraints on what the surgeon may do: most obviously that, except in a dire emergency when the patient is unconscious, she may not operate without the patient’s informed consent. It also, of course, helps determine how the surgeon should behave towards the patient before the operation: for instance that she should genuinely consult the patient about what should be done, rather than just informing him what she is going to do or what must be done (for her medical expertise extends only to a set of hypothetical imperatives about what must be done if this or that end is to made as probable as possible, or if the risk of this or that harm is to be minimised). Once the patient is on the operating table, however, his status as a responsible adult no longer has any direct bearing on the conduct of the operation: he is being operated on as an embodied human being, and the conduct of the operation would be the same whether he was a responsible adult or a mentally disordered child. By contrast—or so we will argue—the defendant’s status as a responsible citizen not only sets constraints on what the state can properly do to him when he is suspected of committing a crime; it also helps to determine the proper aims and structure of the trial, since the trial must address him as a responsible citizen. We will explain this point, and the conception of the trial as a process of calling alleged wrongdoers to answer, more fully in this chapter. In the first section (5.1), we will sketch three ideas that will play a crucial role in this

understand the accusation that they face), but could not understand or participate in a full criminal trial: this is likely to be true of, for instance, some juvenile offenders, and some offenders with learning difficulties; some of the issues were discussed, although not satisfactorily, by the European Court of Human Rights in relation to the trial for murder, in an adult court, of the two boys who killed James Bulger (see V v United Kingdom (2000) 30 EHRR 121). All we would say here is that if, as we argue in this chapter, it is important that wrongdoers answer for their wrongs, we need to develop procedures through which those who can answer can be called to answer.

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conception: those of responsibility, of citizenship, and of public reason.5 Whilst different political conceptions of the state and its relationship to its members generate different conceptions of the defendant’s status in the criminal trial, in a state that aspires to be a liberal democracy responsible citizenship is the key idea. In 5.2, we will spell out this conception of the trial: this will involve distinguishing more carefully between calling defendants to answer to a charge and calling them to answer for the commission of a criminal offence, and thus between the two trial stages on which a conviction depends. In 5.3, we make this conception more concrete by looking again at some of the features of existing criminal processes that we discussed in the previous two chapters. In 5.4, we return to the problem raised at the end of chapter four, about whether and how criminal trials can cope with conflicts of values; we will argue that although consideration of this problem does bring to light some crucial political preconditions for the legitimacy of criminal trials (pre-conditions that might not often be adequately satisfied), the problem does not undermine this normative theory of the trial as a normative theory in whose light we can then criticise existing institutions as more or less radically imperfect.

5.2.

RESPONSIBLE CITIZENS

The criminal trial is clearly concerned with responsibility—with criminal responsibility, to be precise: it aims to determine whether the defendant is responsible for the commission of the crime specified in the indictment. This simple point needs to be explained and expanded in two ways. First, a determination that the defendant is responsible for the commission of the crime charged does not settle the issue: for responsibility is distinct from liability, and the trial also aims to determine whether the defendant is—that is whether she should be held—criminally liable for the commission of that offence. Responsibility is a necessary condition of liability, in that I can be held liable only for that for which I am held responsible; it would make no sense to hold a defendant criminally liable for an outcome whilst also denying that he was criminally responsible for it. But responsibility is not sufficient for liability: one can admit responsibility but deny that one is or should be held liable for that for which one

5 Some might argue that autonomy is a, if not the, key conception for a liberal theory of the trial: that it must respect defendants, and other participants, as autonomous agents (see, eg, Dubber, 2004). The trouble is that the idea of autonomy has been put to such diverse uses, with such vague or varying meanings, in recent years that its utility must now be in doubt; we think that what we have to say about responsible citizenship will capture the key ideas more clearly.

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admits responsibility.6 The point is most simply illustrated by justifications. If I wound an assailant, this being the only way to ward off his unlawful attack on me, I have a justification for wounding him—a moral justification that should save me from moral condemnation for what I have done, and a legal justification that should save me from a criminal conviction for wounding. In offering such a justification, I do not deny responsibility for using violence against V, or for the wound that V suffered. I admit responsibility for that action and its result, as an action that I had reason not to do (for we always have reason not to use violence on fellow human beings), and as a result that I had reason not to bring about (for the fact that my action will physically injure another human being is a reason against acting thus). I admit, that is, that I must answer for my action and its result: that I must answer morally to anyone whose moral business it is, and legally in a criminal court. But, I claim, I have an entirely adequate, exculpatory answer: that my action was, in that particular context, justified as an act of self-defence. The same is true of other kinds of exculpatory answer that constitute excuses rather than justifications: if I plead duress as an excuse (and duress is at least sometimes an excuse), I admit responsibility for the crime that I committed under the threat that constituted duress, which is to admit that I must answer for it; but I offer an answer that, I claim, exculpates me and thus bars the transition from responsibility to liability.7 Second, the trial does not merely aim to determine the defendant’s responsibility for the alleged crime at the time of the alleged crime—to determine whether she was then criminally responsible for doing what the charge alleges that she did. It seeks to determine whether she is now responsible for committing that crime, that is whether it is something for which she must now answer before this court. Some argue that responsibility itself is doubly relational, in that to be responsible is to be responsible for something to someone—to some person or body who has the right to call me to answer for that for which they or it hold me responsible.8 That responsibility is therefore also practice-based, for to be responsible is to be held, or to be liable to be held, responsible within a

6 What we describe as the distinction between ‘responsibility’ and ‘liability’ others might describe as the distinction between ‘accountability’ and ‘responsibility’. 7 We clearly rely here on a robust distinction between offences and defences: proof that the defendant committed the offence is proof of his criminal responsibility for the offence; it is then open to the defendant to avert liability, ie conviction, by offering a defence (the insanity plea is the uncomfortable exception to this neat picture). We cannot further explicate or defend that distinction here, but see Fletcher, 1978: 552–79, 683–758; Campbell, 1987; Gardner, 2004; Tadros, 2005a: 103–15. 8 See, eg, Lucas, 1993; RA Duff, 2003a, 2005. The sense in which on such accounts responsibility is relational is quite different from the relativist sense in which Rorty portrays responsibility as ‘relational’ (Rorty, 1986, 1995; see Gardner, 2003), and from the socially constructivist sense in which Norrie talks of responsibility as ‘relational’ (Norrie, 2000).

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human practice, by some person or body who has the appropriate standing within that practice.9 Others argue that the propriety of being held responsible by A for X, and the legitimacy of our practices of responsibility-ascription, depend on whether those who are thus held responsible are responsible—ie that being responsible is logically prior to and independent of being held responsible.10 On either view, however, the criminal trial can be seen—and we will argue that it should be seen—not merely as a process that aims to determine whether the defendant is responsible (whether she can properly be held responsible) for the commission of the crime charged, but as the process through which she is actually held responsible, if the crime is proved against her. The trial is thus concerned, we suggest, with present as well as past responsibility. That is why it matters whether the defendant is fit to plead. Even if she was responsible at the time of the commission of the crime, in that she then satisfied the law’s definition of the offence in question; even if the prosecution can prove that she satisfied that definition, by evidence that does not depend on her participation in the trial, and that nothing she might say could rebut; there is still the question of whether she is now capable of answering for her crime. If she is not thus capable, for instance because she has, since the time of the crime, become so disordered that she cannot understand the proceedings or respond rationally to the charge, she should not be tried. It might be possible to hold an inquiry and for the jury to be thus ‘satisfied … that he did the act or made the omission charged against him as the offence’:11 but that could not be a trial, just because it could not be a process through which the defendant is called to answer, and could answer, either to the charge or for the crime. It has often been pointed out that whilst being treated as a responsible agent can involve significant burdens (if not the metaphysical anguish of responsibility that Sartre portrayed, at least such more mundane burdens as being blamed or punished for the wrongs one does, or being required to compensate those one has harmed), it is integral to plausible conceptions of human good (especially to liberal conceptions). To be seen and treated as responsible agents is to be seen and treated as full participants in the communities and practices in which we live and pursue our conceptions of the good; it is to be allowed the political and social freedom to be at least part authors of our own lives; it is to be allowed, as well as required, to explain ourselves and our actions, to make sense of them (which will sometimes, but not always, be a matter of justifying them) to ourselves and

9

See, eg, RJ Wallace, 1994; Fischer and Ravizza, 1998; Honoré, 1999; Cane, 2002. See, eg, Tadros, 2005a; fortunately this disagreement among the authors of this book does not affect its main line of argument. 11 Criminal Procedure (Insanity) Act 1964 ss 4A–5 (inserted by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 ss 2–3); see above, ch 3 at n 47. 10

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to others.12 This is, as we will see, one reason why the criminal trial is an appropriate procedure for dealing with alleged criminal wrongdoing: that it addresses the alleged wrongdoer as a responsible agent. To be responsible is to be responsible as Φ, for X, to A. We are responsible as individual university teachers, for our pedagogical activities, to our colleagues, our students and our university. Individual parents are responsible as a parent, for their treatment and upbringing of their child, to their partners, children, and to others who have a legitimate interest in the matter (which, in a welfare state like ours, includes relevant state organisations).13 To get a clear view of the scope and structure of our responsibilities—for what and to whom we must answer—we must therefore be able to identify the relevant Φ, X, and A. How are those places filled in the case of criminal responsibility? Criminal responsibility for past offences is formally determined and ascribed by the criminal court—it is in and before the court that we are called to answer: but as what are we called to answer, and by whom or what? Two familiar kinds of legal theory suggest unsatisfactory answers. According to some versions of natural law theory, and of the legal moralism that such theories can underpin, we are responsible as moral agents. If, for instance, criminal law is a ‘functional kind [of law] whose function is to attain retributive justice’, by ‘punish[ing] all and only those who are morally culpable in the doing of some morally wrongful action’,14 then we are criminally responsible simply as moral agents, for the moral wrongs that we commit. Such a view is, however, radically over-inclusive. First, it implies that we have good reason to criminalise every kind of moral wrongdoing—even if other considerations then tip the balance against criminalisation: but it is implausible to say that we have any reason to criminalise, for instance, someone who breaks off a sexual relationship in a cruel and hurtful way, although she commits what could be a serious wrong. Second, it implies that there is reason to make it a crime under English law for a German to steal from a fellow German in Germany: a sensible division of labour might favour a system of national courts operating with more limited jurisdictions, but if the aim is that wrongdoers be punished as they deserve, this seems to give any legislature reason to criminalise any kind of wrongdoing anywhere in the world. Surely, however, the German thief could rightly claim that his admittedly wrongful theft is simply not the business of the English legal system. The truth in legal moralism is that criminal law is properly focused on wrongdoing. Its error is to claim that criminal law should focus on wrongdoing as such,

12

See, eg, Strawson, 1962; Honoré, 1988; Gardner, 2003. There is of course plenty of room for controversy about who has the standing to call us to account in this or that context. 14 Moore, 1997: 33–5; see above, Introduction to Part II. 13

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thus implying that we are criminally responsible simply as moral agents: we still need to identify the particular kinds of moral wrongdoing that are, in principle, the criminal law’s business. A second, and even less satisfactory, answer to the question ‘As what are we criminally responsible?’ is suggested by classical legal positivism. If law is a set of commands issued by a sovereign, then we are criminally responsible as the sovereign’s subjects, whose duty is to obey her commands or prohibitions, and whom she calls to account for our disobedience (compare the English labelling of criminal cases as ‘Regina v D’). Now this is no doubt how the criminal law is (quite reasonably) understood by many who appear in our courts—as a set of peremptory demands, imposed by an alien power, which they are punished for disobeying. But it is not how the criminal law should present itself to the members of what aspires to be a liberal democracy: it should not speak to them in the alien voice of a sovereign who claims authority over them, and whose commands give them content-independent reasons for action (as if the criminal wrongfulness of rape or murder consists in disobedience to the sovereign who prohibits them). We are, of course, subject to the law: we are, or so it claims, bound by its demands, and answerable in its courts for our crimes. But the law by which we are bound should not be something imposed on us by a sovereign: it should be a ‘common law’—a law that is our law, that speaks to us in our own collective voice in terms of the values by which we define ourselves as a polity; a law by which we bind ourselves.15 This suggests a better answer to our question: we are criminally responsible as citizens, under laws that are our laws; which implies that we are criminally responsible to our fellow citizens collectively. We are held responsible, called to account, by and in criminal courts: but the courts act on behalf of, and in the name of, the polity as a whole (compare the American labelling of criminal cases as ‘People v D’ or ‘Commonwealth v D’). As citizens, we have a range of civic responsibilities to each other, for our discharge of which we are answerable to each other. Criminal responsibility is, of course, not co-extensive with civic responsibility: we are not criminally responsible for our conduct in relation to all our civic responsibilities. The criminal law, as one aspect of our civic life, defines the kinds of wrong for which we must answer to the polity’s courts, and for which we will be condemned and punished by the polity if we cannot offer an exculpatory answer.16 15 On the idea of the common law to which we appeal here, see Postema, 1986, especially chs 1–2; see also Cotterrell, 1995: ch 11. 16 It is worth noting that on this view we should not say that the criminal law ‘prohibits’ the conduct it defines as criminal—as if it provided some new, content-independent reason to refrain from it; it rather defines the kinds of wrong that are to count as ‘public’. It is also worth thinking about the implications for penal policy of taking seriously the thought that offenders are citizens.

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An underpinning for this conception of the citizen as a responsible, reason-giving and reasons-responsive agent can be found in a more abstract account of the nature of thought and reason itself as intersubjective. Here we follow Postema’s claim that moral justification is both essentially public and not ‘merely justification ad hominem’ but inter homines.17 On such an account reason giving—justification—is part of the fundamental structure of our common life, and in this sense of a ‘common life’, is something which underpins even the possibility of disagreement. The realm of reason which we inhabit as rational agents ‘holds us to public argument and reflective thought’18, but it does more than that for, as Korsgaard argues ‘It announces that you have a claim on that other, or acknowledges her claim on you.’19 The reasons that we give are not simply reasons ‘to us’ but ‘reasons for us’. They are not simply reasons for compliance but reasons for acceptance. We would argue further, then, that such an account suggests that we should understand the public realm as one in which the values of deliberative democracy are instantiated, and that the criminal trial should be understood, normatively at any rate, as an expression of the values claimed for deliberative democracy: reciprocity, publicity and accountability.20 The significance of the idea that public reason, as we are using it, is constituted by ‘reasons for us’ is that it requires not just that the accused is called to answer, but that ‘we’ too are required to justify what we do in calling the accused to answer. This claim that criminal responsibility is tied to citizenship requires two qualifications. First, temporary visitors are also bound, and protected, by a polity’s criminal law. This might suggest that geography rather than citizenship is the key condition of criminal responsibility: what makes me criminally responsible under English law is not English citizenship, but the location of my alleged criminal conduct in the geographical territory over which English law has jurisdiction.21 However, geographical location does not have the normative significance that a primary condition of criminal responsibility requires. Legal systems require more than geographical territories for their existence: they depend on political communities, and should thus be taken to address their laws in the first instance to the members of those communities—ie to citizens, in communities that aspire

17

Postema, 1995: 64. Ibid: 43. 19 Korsgaard, 1993:51. 20 Cf Gutman and Thompson, 2000. 21 Compare the geographical terms in which the American Model Penal Code (s 1.03) and German Criminal Code (s 3) define the primary jurisdiction of their respective criminal laws (but see Model Penal Code s 1.03(1)(f), German Criminal Code ss 5, 7, for claims of extra-territorial jurisdiction, which we cannot discuss here). 18

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to be liberal democracies. The law’s claims and protection also extends to temporary visitors: but they must first be understood as applying to citizens. Second, we should say something about international criminal law, especially given the way in which national courts might now claim universal jurisdiction over certain crimes: thus torture is triable in English courts, wherever and by whomever it is committed.22 If the International Criminal Court proves effective,23 national courts might lose this role; but we must still inquire into the basis of such international or trans-national criminal responsibility, which depends on neither citizenship nor geographical location. One possibility is to see ‘crimes against humanity’ as crimes whose perpetrators should be responsible to ‘humanity’ as a whole: pending the development of an effective international court to act on behalf of humanity, national courts may take on that role (though we must ask whether we can make substantive sense of humanity as a community to which people could answer). Another, less ambitious, suggestion is that crimes should be dealt with by the courts of the polities within which they are committed (unless they are international in scope, as with war crimes by one state against another); but that where there are serious crimes with which the appropriate national courts cannot realistically be expected to deal, such as systematic crimes by state officials, then an international court or other national courts might have reason to claim jurisdiction—not on behalf of ‘humanity’, but on behalf of the citizens whom the local courts are not protecting.24 We might well need to develop both these suggestions, to deal with different types of crime that seem to call for a trans-national or international response; all we would say here is that the issues raised in this paragraph highlight the importance of asking the question that relational accounts of responsibility make salient—‘To whom are we responsible?’25

22 Criminal Justice Act 1988 s 134; R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet [2000] 1 AC 147; see also German Criminal Code s 6; and, generally, Cassese, 2003: 277–322. cf Arendt, 1994: 262–3 on Israel’s claim to jurisdiction in the Eichmann trial. 23 See Cassese, 2003: 327–47. 24 It is worth noting that s 134 of the Criminal Justice Act 1988 includes under the offence of ‘torture’ only acts committed by public officials. 25 Similar questions are raised by developments in European criminal law (and one question is whether we can usefully talk of, or should welcome, moves towards ‘a European criminal law’); it is worth thinking, in this context, about the significance of the European arrest warrant (Council Framework Decision (EC) 2002/584/JHA of 13 June 2002). This should remind us that we are never ‘criminally responsible’ tout court: we are criminally responsible for different types of conduct, before different courts, under different legal regimes, and thus to different bodies or communities; if we are to be accurate, we should therefore talk not just of ‘criminal’, as contrasted with ‘moral’ and other species of responsibility, but of ‘Scottish criminal responsibility’, or ‘European criminal responsibility’, or ‘international criminal responsibility’.

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We are criminally responsible as citizens, to our fellow citizens, for our commissions of what the law defines as public wrongs; wrongs are ‘public’ in this sense if they are wrongs for which we must answer to our fellow citizens (as distinct from merely private wrongs for which we must answer only to some other and smaller community). Now to say that someone is responsible for some kind of wrongdoing is to say that he can properly be called, or even that she should be called, to answer or account for that wrongdoing by those to whom she is responsible. This is true both in our informal moral relationships, and in more formal settings in which many of our social and institutional roles are structured and played out. If one friend has wronged another, at least or especially if the wrong is moderately serious, we can expect that she will be called to account for it both by the direct victim and by others who belong to that group. If an individual commits an academic or pedagogical wrong as a member of a university, he or she can expect to be called to account for it informally by their colleagues and students, and in more serious cases formally through some kind of disciplinary process. Four aspects of this kind of practice of calling to account should be noted. First, it is a way of taking wrongdoing seriously, as wrongdoing. If someone has suffered harm or injury, one kind of appropriate response is to seek some way of repairing the harm or providing compensation for the injury; we might then raise the question of who should bear the cost of such repair or compensation, and suggest that anyone who culpably contributed to its causation should share in that cost. But if the harm or injury resulted from wrongdoing, we might also and properly think that that aspect of it should be salient in our response to it: not always, since we might sometimes urge those involved to focus on repairing harm rather than on allocating blame for it, but at least sometimes. This is because we rightly care not merely about the causing of harm or injury, but about the doing of wrong: we owe it to our fellows not just not to harm or injure them (subject to obvious qualifications), but not to wrong them; and the latter obligation cannot be reduced to the former. If we ask what it is to take wrongdoing seriously, or how such a concern can properly be expressed, part of a plausible answer must be that it involves seeking to call the wrongdoers to account. Of course, we can express that concern in the efforts we make to avert wrongdoing in advance, as well as in our responses to the victims of wrongdoing; but our responses should also recognise the doing, as well as the suffering, of wrong, by seeking to call the doer to account. That is indeed part of a suitable response to victims: hence the frequent plea from those who have suffered, or whose loved ones have suffered, serious harm through official or professional negligence that what they need is an accounting, an explanation from those who were responsible; that the appropriate or only way to address what they have suffered is to call the guilty to account.

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Second, such calling to account is also a way of taking the wrongdoers seriously, and of treating them with the respect that is due to them as responsible agents. If someone does me a serious wrong, it might be tempting just to shout at him, or attack him, in a way that would give vent to my anger; or to ostracise him, and simply seek to have nothing more to do with him. So too—as is all too familiar in our penal rhetoric and practice—with those who commit crimes, especially when those crimes involve serious attacks on others. In such cases it is tempting to vent our vengeful anger by simply trying to inflict penal suffering on them, or to see and to treat them as outsiders or enemies against whom ‘we’, the law-abiding, must protect ourselves but with whom we have no real community. By contrast, calling them to account involves a quite different attitude: it expresses a conception of them as fellow members of a normative community, not as mere objects of our anger or as enemies to be fought or disposed of, by whose values we are collectively both bound and protected. It is to address them, and call them to judgment, in terms of a set of values to which we claim that the addressees are or should be committed just as we are. It is to recognise the need both to explain to them why we are responding in this way, and to attend to their explanations and defences of what they did—in other words, to try to engage with them in a communicative enterprise of judgment and of normative truth seeking. A sovereign faced by a disobedient subject might seek simply to condemn or repress such disobedience; a state faced by an attack from an enemy (whether external or internal) might seek simply to ward off the attack, and to destroy the attackers or at least render them harmless: but the members of what aspires to be a liberal polity of citizens cannot respond in those terms to the wrongdoings that they commit against each other. They should, rather, respond in a way that still recognises the wrongdoer as a full member of the normative community.26 Third, to call a person to account for her wrongdoing in this way involves an attempt (or an aspiration) to persuade her to accept the judgment that she did wrong, and to make it her own—to accept and make her own not just the bare judgment that she committed a wrong, but the understanding of the character and seriousness of the wrong that the process of calling her to account should express. This is an integral feature of communication, as something more than and distinct from mere expression or coercion as one-way activities carried out on, or in relation

26 See further RA Duff, 2001: chs 2–3; Tadros, 2005a: ch 3. We return later, in s 5.3 of this chapter, to the argument that if we are really to treat alleged criminal wrongdoers as fellow members of the normative community that the polity aspires to be, they must be given the chance to argue at their trial that what they did, though in breach of the existing law, was not a wrong that merits public condemnation, or to argue that the court lacks the moral standing to try them.

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to, what could be a purely passive object: it seeks the other’s understanding of and assent to what is communicated. Ideally, of course, the wrongdoer would already have made that judgment, reached that understanding, for herself, in which case the process of calling her to account is one of calling her to make a more public admission of and apology for what she has done. When she has not already made that judgment, however, the intention or hope is that through being thus called to account she will come to accept it—to see that and how she has done wrong. Often, of course, that might be no more than a more or less idle hope: we might have very good grounds for believing that—for any of a variety of possible reasons—this person will not come to accept that she has done wrong. But we might still think it important to try to call her to account, not to let the wrong pass in silence; and the form that such calling to account takes is still an attempt, albeit probably futile, to persuade her to see that she did wrong. This kind of response to a wrongdoer is naturally expressed not in third person judgments of the form ‘She committed this wrong’; nor in the kind of second person judgment that is simply announced to a person— ‘You committed this wrong’: but a judgment that seeks acceptance—‘Can’t you see how wrong that was?’. Fourth, such calling to account requires a shared language in which the accuser can call and the accused can answer, a language that expresses the (supposedly) shared values and understandings in terms of which the wrongs can be identified and characterised, and responsibility and liability for them can be argued and ascribed. To call someone to answer a charge of wrongdoing is to call them to take part in a process of judgment (of judgments of wrongdoing and of responsibility) on the basis of a set of values that we supposedly share with them; in the absence of such a shared language of values and normative understandings, we might still judge or comment on another’s conduct, but we cannot call him to account for it. This is not to say that he must in fact accept, or regard himself as bound by, the values in the light of which, and in terms of which, we call him to account. There is logical and moral room for us to call him to account in terms of values which, we claim, he should accept even if he does not now do so; the unfaithful spouse cannot escape being called to account for his infidelities merely by declaring, however sincerely, that he does not believe in sexual fidelity in marriage. But it is to say that those who call him to account must do so in terms of values that they can claim he should accept and respect; those values must therefore be available to him, as a participant in the practices on which they bear, in a normative language that he can speak. It is not to say that calling to account depends on a set of shared values whose content, interpretation, application and ordering are already fixed and determinate: there is room for argument within any shared normative practice about just what its values are or should be, and about just how those values are to be interpreted and applied. It is to say,

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however, that calling to account can take place only between participants in a shared normative practice, and that it must thus presuppose a shared substantive normative language. We have talked so far in rather general terms about what is involved in or presupposed by a process of calling wrongdoers to account for their wrongdoing. Certain particular features of criminal responsibility should also be highlighted—partly because they will show why the idea of citizenship is so important here, and partly because they will again direct our attention to a problem that we raised at the end of chapter four, and to which we will return in section 5.4 below. Citizenship in a polity involves a network of responsibilities, obligations and rights that structure relationships between citizens and between citizens and the polity—responsibilities, obligations and rights that are articulated, actualised and enforced by that polity’s institutions. The criminal law, understood as a set of institutional practices which include the substantive criminal law and all the mechanisms through which it is applied and enforced, presupposes that those whom it claims to bind, and on whom it is enforced, belong to such a network. This is to say that it presupposes political obligation. This is not the place for a general discussion of political obligation, or of what can ground it,27 but is worth noting the different obligations and responsibilities that a system of criminal law applies to or imposes on the citizens. There are responsibilities to refrain from conduct that the substantive law defines as criminal, or to act in ways whose omission it defines as criminal, but there are further responsibilities that come into play once a crime has been committed (or suspected): we have some very limited legal obligations to assist the polity’s officials in the investigation of crime, either as citizens or as suspected offenders, and it could be argued that we have more demanding civic (but not legally enforceable) responsibilities to assist; we also have obligations to participate in the criminal process—as defendants, as witnesses, as citizens summoned to serve as jurors.28 In calling a defendant to trial, the court does not of course presuppose that she is responsible, let alone liable, for the commission of the criminal wrong of which she is accused. But it does presuppose that she has a responsibility to answer to the charge, and for the offence if it is proved against her—which is to presuppose that she shares in that network of responsibilities, obligations and rights that in part constitutes citizenship. 27 We need suppose here only that some account of political obligation holds. Of course someone who believes that there is no such thing as political obligation will not be persuaded by our argument in any case. 28 An interesting set of questions arises here about the responsibilities, as well as rights, of victims: do they, for instance, have a civic responsibility to report the crime, and to assist in the detection and prosecution of the perpetrator? We will say more about this in 5.3, and later in ch 7. See also Marshall, 2004.

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The existence of the kind of shared normative language on which, as we noted above, any process of calling to account depends is also crucial to the legitimacy of the criminal trial, indeed to the whole enterprise of criminal law. The criminal law claims to define public wrongs—that is, wrongs that should be recognised, understood, and condemned as such by members of the polity, in the light of the values by which it defines itself as a polity; the criminal trial calls citizens to answer to charges of public wrongdoing, and to answer for such wrongdoing if it is proved against them. The definition, identification and condemnation of such wrongs, and the very process of calling wrongdoers to account for them, is possible only within a shared, public realm of normative reason.29 Just as, as we noted above, the requirement that there be a shared normative language does not preclude disagreement on values, so the ‘public reason’ of the kind that the criminal law and the criminal trial presuppose can have room for deep normative disagreement. It is a commonplace that liberal polities are not only pluralist in matters of value (which is to say that they must accept and indeed welcome a plurality of conceptions of the good without trying to determine that some are right and some wrong), but deeply divided on normative issues in relation to which normative disagreement cannot simply be accepted; and that the criminal law of a liberal polity cannot therefore be expected to reflect a substantive set of values or norms that were, independently of the law, shared by members of the polity, from which some might conclude that criminal law, as we conceive of it is then impossible.30 Others might argue that we can resolve this problem by abandoning any attempt to ground criminal law in a set of shared substantive values in favour of some version of proceduralism, according to which what is needed is agreement on the procedures by which the content of the law, and other matters of political or legal substance, can be determined. We will offer a qualifiedly proceduralist argument ourselves below (5.5), to the effect that a dissident can still be obligated to accept the court’s authority and its verdict so long as there exist political procedures outside the court through which she can argue her case; but this is not to say that a wholly proceduralist account of the basis of political obligation (and thus of the legitimacy of the criminal trial) is tenable. For if we are to agree on procedures in a way that could ground a polity, we must be able to count on some level of mutual respect between those who are to agree on and then to work within the procedures—that is one of the ways in which even proceduralists must be able to appeal to agreement on some basic substantive value. However, it is hard to make sense of a respect that

29 The idea of ‘public reason’ goes back to Kant but has been developed in different ways since: Rawls, 1993; Habermas, 1984, 1991; Michelman, 1986; Postema, 1994, 1995. 30 See, eg (arguing to very different conclusions), Bianchi, 1994; Waldron, 1999; Norrie, 2001.

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would be sufficiently robust to underpin the requisite procedures, but that would not preclude murdering, raping, or subjecting to other central kinds of serious wrongdoing the person whom I respect. The criminal trial must therefore be able to presuppose some set of substantive values which, even if they are not in fact shared by all those whom the law claims to bind, are such that the court can properly say even to the dissident that she ought to accept them; we will return in section 5.4 to the problem this raises.

5.3.

CALLING TO ANSWER AND CALLING TO ACCOUNT

The criminal law provides formal, purportedly authoritative, definitions of public wrongs—of wrongs that should be recognised and condemned as such by members of the polity, and for which their perpetrators are answerable to the polity. The criminal trial is the formal process through which perpetrators are to be called to answer, but also through which perpetrators are to be formally identified as perpetrators. The trial is also, of course, a prelude to punishment for those who are convicted: the conviction declares them to deserve punishment in the law’s terms, and the sentence determines at least the outlines of that punishment. But, we suggest, the core of the trial is to be found not in that role as the prelude to and legitimation of the punishment that the convicted defendant then receives, but in its role as calling citizens who are accused of such public wrongdoing to answer that accusation, as determining the justice of the accusation, and as calling the defendant who has committed the crime to answer for it. Imagine a system that had trials without (further) punishments. Those who were accused of crimes would still be called to answer to the charge; those proved guilty would be formally convicted of, and thus publicly condemned for, the crime; they might also be asked, or even expected, to say something after their conviction by way of explanation or apology (although of course what they want to say might instead consist in a defiant rejection of the conviction or a denial of the justice of the trial): but that would be the end of the criminal process.31 We would no doubt (if we believe in criminal punishment) have various objections to a system of trials without punishments: but it could not be said that such a system would be meaningless—as a system would be if it maintained processes that had a purely instrumental value whilst removing that towards which they were instrumental. It makes sense, that is to say, to try to call 31 Some kinds of ‘truth and reconciliation’ process could be understood in this way, as could some kinds of ‘restorative justice’ procedure—though by no mean all restorative justice theorists would be happy with the idea that the aim is to call people to account for wrongs that they have committed.

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wrongdoers to account even if nothing is to be done to or about them beyond that process of calling to account; and, as we argued in the previous section, the value of doing that is not reducible to the value of securing their punishment, since it is a way of taking both them and their wrongdoing seriously. The trial begins with the defendant being called formally to answer a charge of criminal wrongdoing. As we noted in the previous chapter (4.1), he is required to be present for the trial (at least for the more serious kinds of charge), and is expected to enter a plea, although that is not seen as a duty or requirement that he should be punished for failing to fulfil. The indictment that he is to answer must specify something that has been duly defined and declared to be a public wrong; the charge is not merely that he acted in a way that satisfied a certain description, but that he committed a wrong that merits public condemnation. The defendant’s first role is not to answer for anything, since it has not yet been proved that he has anything to answer for—that he has committed an offence for which he must now answer. It is rather to answer to the charge, with a plea of ‘Guilty’ or ‘Not Guilty’. In chapter six we will investigate in more depth the conditions under which guilty pleas might be accepted, but here we should note that a plea of ‘Guilty’ will very often result from a formal or informal process of plea bargaining, or from a calculation of the benefit it might bring. When a defendant pleads ‘Guilty’ to a charge of which he knows he is indeed guilty his plea might reflect such rational prudential calculation rather than anything resembling remorseful recognition of wrongdoing; and someone who is in fact innocent of the crime charged might decide, or be persuaded,32 to plead ‘Guilty’ to avoid the punishment that a conviction following a ‘Not Guilty’ plea might bring. Indeed, the US Supreme Court has held that a defendant’s plea-bargained ‘Guilty’ plea can be accepted even if she also insists that she is actually innocent, upholding the conviction of a defendant who said in court ‘I’m not guilty but I plead guilty’, and thus approving what became known as ‘Alford’ pleas.33 Nonetheless, the meaning of the plea is precisely that of a confession—which is why ‘Alford’ pleas, and the plea-bargaining processes that they reflect, are at best an artificial device serving a purely pragmatic purpose, and at worst a distortion of the criminal process. To plead ‘Guilty’, if the plea is treated seriously, is to admit not just that I

32 Or bullied, or simply led as part of a process that they barely understand; See, eg, Baldwin and McConville, 1977; Dubber and Kelman, 2005: 92–101. 33 See North Carolina v Alford 400 US 25 (1970) (the defendant’s declaration is quoted at 29); the Supreme Court also attached weight, however, to the fact that ‘that the record before the judge contain[ed] strong evidence of actual guilt’—that ‘the evidence against [the defendant], which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered’ (at 37–8).

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acted in a way that satisfied a certain legal specification, but that I committed this wrong.34 There may be good reasons why a liberal system of law should not enquire too closely into the sincerity or otherwise of such pleas (as distinct from trying to ensure that they are voluntary): perhaps it should leave room for defendants to enter such pleas for tactical reasons, rather than trying to establish whether they are indeed repentantly confessing their wrongs—not because sincere confessions by guilty defendants is not an ideal to which we can aspire, but because any such attempt to determine sincerity would be oppressive and intrusive.35 But if guilty pleas are justified at all, it is through their meaning as confessions of criminal wrongdoing—even if such confessions are not (and are known not to be) always sincerely repentant confessions. This is one reason to be especially concerned by the evidence that plea bargaining is tactical either on the part of, or on behalf of, the defendant, and that defendants often do not understand the advice that they are given when they plead guilty.36 Guilty pleas in such circumstances are disturbing not merely because the defendant may be subject to unjustified punishment, but also, and equally importantly, because the meaning of the statement, the confession, cannot properly be attributed to the defendant. The defendant, in pleading guilty in such circumstances, appears to claim, or at least admit, responsibility for the criminal conduct. But that claim or admission is either insincere, or is even improperly attributed to him. Over and above any inappropriate consequences that flow from this, there is also the failure, in such cases, to treat wrongdoing seriously as wrongdoing, to take wrongdoers seriously and to persuade them to accept the judgment that they did wrong in the light of shared values. Instead, the plea-bargaining process appeals to defendants’ desire to evade taking responsibility, or ignore their desires and values altogether. If such a system is required for criminal justice to be at all workable, which is itself a question which depends on other factors such as the proper scope of the criminal law, it is a heavy cost for the system to bear. A plea of ‘Guilty’, in a properly constituted system, both admits that the defendant has something to answer for, namely the commission of the crime charged, but also that he has no adequately exculpatory answer (though he might go on to make a plea in mitigation, ie by way of partial exculpation). It is to admit both responsibility and liability, and thus

34 In some jurisdictions there is no formal provision for pleas of ‘Guilty’—though there is often still room for something very like plea bargaining (see Ashworth and Redmayne, 2005: 265); but our interest here is in the meaning of such pleas where they are available. 35 Compare the reasons why, even if a defendant could properly be required to make a public apology, there should be no attempt to establish whether the apology is sincere (see RA Duff, 2001: 95–6, 109–11). 36 See McConville et al, 1994; Bottoms and McLean, 1976. Findings summarised in Sanders and Young, 2007: 430–33.

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constitutes at least the start of an answering for the crime, as well as an answering to the charge (only the start, because there is then more for the defendant to say, whether in court or as part of the punishment, by way of explaining himself). The meaning of a ‘Not Guilty’ plea is less clear: it might look like a straightforward denial of guilt, but in the context of the trial process, and of the burden of proof borne by the prosecution, it could instead be read either as a claim of ‘Not provably Guilty’, or simply as a non-assertoric challenge to the prosecution to prove guilt if it can. There is much to be said for a performative, non-assertoric, interpretation. For one thing, it would be odd to say that a guilty defendant who pleads ‘Not Guilty’ lies to the court.37 For another thing, the defendant is entitled to a verdict of ‘Not Guilty’ just so long as the prosecution fails to prove her guilt beyond reasonable doubt: if the plea of ‘Not Guilty’ constitutes or implies a claim that she is entitled to an acquittal, all that she need be claiming therefore is that the prosecution cannot prove her guilt; but since she has not yet heard the prosecution’s case, it seems more plausible to interpret the plea as a challenge, than as a prediction that the prosecution will fail in its task. What underpins a plea of ‘Not Guilty’—if anything underpins it beyond the hope that the prosecution will fail to prove guilt—might be a denial or non-admission of responsibility, which might itself take different forms; or an admission of responsibility, but a denial or non-admission of liability (although this will typically need to be a denial rather than a mere non-admission, because the defendant typically has the onus of at least adducing evidence in support of any defence that would block the transition from responsibility to liability). The defendant might simply deny, or not admit, that she did what the prosecution alleges—that she was responsible for the criminal wrong specified in the charge. But a defendant might instead admit committing the offence charged but offer a legally recognised justification or excuse—which would be to admit criminal responsibility, but deny liability; or she might admit that she acted in the way that the prosecution alleges, but deny that that constituted the offence charged—which would be to admit if not criminal responsibility, responsibility for what she had done, and to argue that it was not a criminal wrong.38 Although pleas of ‘Not Guilty’ thus often do not constitute admissions of responsibility for the commission of the crime charged, the charge and 37 He is certainly not guilty of perjury—but that is because he is not speaking under oath: Perjury Act 1911. 38 See, eg, Anderton v Ryan [1985] 1 AC 560 (successful argument that handling what was mistakenly believed to be stolen goods does not amount to a criminal attempt to handle stolen goods—but overruled in Shivpuri [1987] AC 1); Hinks [2001] 2 AC 241 (unsuccessful argument that appropriation consisting in acquisition of title by a valid gift cannot constitute theft).

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the plea are nonetheless exercises in the ascription and acceptance of responsibility. In summoning a defendant to trial, the polity (acting through its criminal justice system) addresses her as a responsible agent— that is, as someone who can properly be called to answer to the charge and for the wrongdoing if she is proved to have committed it; as someone who is capable of thus answering, and as someone who is answerable to the polity before this court. We should add that in providing for a system of criminal trials the criminal law also imposes certain new prospective responsibilities on the citizens—to appear for trial if summoned (or to turn up if summoned as a juror or witness), to play their assigned role in the trial, to refrain from perjury, and so on. Indeed, in relation to central mala in se, the law’s definitions of them as crimes can be seen as amounting not to prohibitions that offer citizens new reasons to avoid such conduct, but to declarations that they constitute public wrongs for which we will be called to public account—which is to say what the criminal law is doing in such cases is creating a prospective responsibility to be prepared to answer for such wrongs, and to answer charges of committing one (or formalising and providing an institutional framework for the discharge of the prospective responsibilities we already, pre-legally have to answer for such wrongs to our fellow citizens). Prospective responsibilities of this kind generate further retrospective responsibilities for our conduct in discharging or failing to discharge them—for a failure to appear when summoned to trial, for instance, or for misconduct during one’s trial. In answering to the charge, the defendant implicitly accepts the authority of this court to try him on this charge: he accepts, that is, that he can properly be called to answer to this charge by and before this court; and that he can properly be called to account or to answer for his conduct if it is proved that he committed the offence. This is not to say that everyone who enters a plea actually believes the court to have such authority: but that is what it means to enter a plea in that context, and that is why a defendant who does not recognise the court as having such authority might refuse to plead, or to take any part in the trial. There are several different types of legal ground (as well as further moral grounds) on which someone who is summoned to trial can refuse to plead either ‘Guilty’ or ‘Not Guilty’, and argue instead that he cannot legitimately be tried: he might argue that he is unfit to plead, ie incapable of answering (though that argument will of course have to be offered on his behalf rather than by him); or that he has a relevant immunity from being called to account by this court or this legal system (as might be claimed by a diplomat); or that he cannot be called to answer for this alleged conduct, since it happened too long ago, or outside the court’s territorial jurisdiction, or since he has already been tried for it; or that his prosecution is barred by an official promise of immunity, or that it would constitute an abuse of process in view of the prior misconduct of the polity’s officials towards him. Or he

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might agree that, in the law’s eyes, he can be called to answer this charge, but refuse to recognise the legitimacy of the courts and of the laws that they administer, or to accept that they have the right to call him to answer.39 Although to plead ‘Not Guilty’ is not yet to admit that one has anything to answer for, it is therefore to accept the authority of this court to call one to answer to the charge, and to determine one’s guilt or innocence. If the defendant pleads ‘Not Guilty’ then, given the presumption of innocence, it is for the prosecution to prove her guilt. The first stage of proving guilt is to prove responsibility: to prove, that is, that she committed the offence charged. Until that is proved, there is nothing for which the defendant has to answer. There might be a case to which she has to offer an answer if she is to avoid conviction: however strong we make the right of silence, the fact remains that a defendant who remains silent will be rightly convicted if the prosecution offer evidence that suffices to establish guilt beyond reasonable doubt, even if she could have produced evidence that would have created a reasonable doubt. The right of silence, in its minimalist form, is the right not to be required to speak on pain of condemnation and punishment for staying silent; in its stronger form, it is the right not to have adverse inferences drawn from the mere fact of silence. But it cannot plausibly be interpreted as the right to be acquitted if the jury can think of some imaginable evidence that would have created a reasonable doubt had it been offered. But in answering the prosecution’s case, in offering evidence of her innocence, she is not yet answering for anything. If the prosecution discharges the first stage of its guilt-proving task, the defendant then has something for which she must answer in court: it has been proved that she committed, ie that she is responsible for, the offence, and she must now answer for it. She might answer for it by offering a defence, in relation to which she bears at least an evidential burden. Or she might offer no answer until she is convicted (as she should be if the prosecution has proved that she committed the offence and she has not offered any defence), and then offer something by way of a plea in mitigation. Or she might remain silent throughout the process of trial, conviction and sentence. Nonetheless, the trial holds her responsible for committing the crime that was proved against her: which is to say that the trial calls her to answer for that crime, whether by offering a defence or by accepting her guilt. The language of ‘calling’ is important here. A call might be insistent rather than pleading; it might be repeated, and be loudly and forcibly made: but it is still something to which one can refuse to respond. We can insist on holding a wrongdoer responsible, and liable; we

39

For further discussion of such possibilities, see RA Duff, 2003a.

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can insist on calling her to answer for what she has done: but we cannot extract an answer from her. This is an essential aspect of the criminal trial as a process addressed to responsible citizens, and as a process that pays wrongdoers the respect that is still their due: they are called to answer, called to recognise their guilt; but as with any communicative process, it is still open to them to refuse to answer that call. Finally, if the prosecution completes its whole task, both proving that the defendant did commit the offence charged, and disproving any defence for which evidence is adduced, it is then for the fact-finder to convict the defendant. As we argued in chapter three, a conviction is not simply a finding of neutral fact; it constitutes (it is intended to constitute) a condemnation of the defendant’s conduct as a public wrong, a wrong for which he is now called and held to account. As we noted in 5.1, this is not merely a condemnation that is made about the defendant in the third person: it is a condemnation of him, to his face, that is intended to be understood in the second person (even if it is formally expressed in the third person, as ‘We find the defendant guilty’); it speaks to him of the wrong of which he has been proved to be guilty; it expresses a judgment on, and a normative understanding of, that wrong that he is now expected to accept and to make his own. The verdict does not in and by itself ask the defendant to answer or account for the wrong that he committed, but it points the way towards such an answering or accounting. It points the way informally, in that if I do accept the court’s verdict that I am guilty of a public wrong, that must have implications for what I go on to do: I must recognise that I owe something, by way of apology or moral reparation (both of which constitute ways of answering for what I have done), to those whom I have wronged. It also points the way formally, in that the next stage of the trial is a sentencing process in which the defendant will properly be invited to say anything that he wishes to say—and central to what he might properly wish to say will be an accounting for his conduct; and one could go on to portray punishment, at least the kinds of punishment that are most appropriate to citizens, as a process through which offenders are to answer more adequately for what they have done. In this section we have sketched, in fairly bare terms, the way in which criminal trials can be seen as procedures through which alleged wrongdoers are called to answer and called to account.40 To put a little more flesh on these bare bones, we should now attend to some more specific features of the criminal trial.

40 We are of course talking so far only of a particular kind of criminal trial, found in the legal system from within which we are writing. As we said in the Introduction, however, and at the beginning of Part II, we think that normative theorising can most usefully begin with

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THE MODES OF THE TRIAL

When the accused is charged with a criminal offence, we have argued, he is called to answer a criminal charge brought against him, and if he is criminally responsible, to account for his conduct. This conception of the criminal trial informs an account not only of the charge, the plea and any conviction, but also of the form which argument in the trial ought to take and the roles that different individuals should have at trial. Consider, first, the structure of the case. Before the defence has to present any argument, the prosecution must present its case. Following the case by the prosecution, if there is insufficient evidence on any aspect of the offence, the judge may acquit directly. It is often argued that if such a directed acquittal occurs, there has been a failure of the process: weak cases ought not to go to court.41 The prosecution must raise sufficient evidence that the accused has a case to answer. This seems a natural structure for the criminal process to have, and yet it is difficult to explain on purely evidential grounds. There is little reason to think that defendants are more likely to contribute to a search for the truth in the light of the prosecution’s case. On the contrary, the structure gives the defence the opportunity to exploit weaknesses in the prosecution’s case even if those weaknesses do not reflect the truth. At the same time, however, it seems manifestly inappropriate to question the defendant at trial without the prosecution having provided a case to answer. The defendant is called to answer not just the charge, we might say, but the case presented by the prosecution. When judges direct an acquittal at the end of the case for the prosecution, they declare that there are insufficient grounds to require such an answer. In answering the charge, the defendant is entitled to challenge the prosecution’s case. However, she need not do so. The defendant’s right of silence extends throughout the criminal process. This raises the question of whether we can truly regard the defendant as having been called to answer when there is no requirement on her to provide any answers to the prosecution’s case, or whether we can say that the defendant has been called to account even when she is never required to provide an account of her actions. Answering the charge normally involves showing and exploiting weaknesses in the prosecution’s case.42 The process can be complex. The defendant is entitled to an acquittal if she can show that there is insufficient evidence to convict her beyond reasonable doubt. But in fact,

what is in this way local or parochial, before going on (as we will go on in Part III) to ask how far the theory that emerges can transcend such limits of time and place. 41 See Ashworth and Redmayne, 2005: 198. 42 Cf the altercation trial, described in ch 2.3 above.

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convincing the jury that this is the case often involves the defendant constructing a plausible alternative story to the one constructed by the prosecution. The absence of a convincing alternative will be treated as strong evidence in favour of the prosecution’s case. In practice, then, defendants who are called to answer are called to provide an explanation of their whereabouts or their actions that shows why the prosecution’s case does not prove criminal liability beyond reasonable doubt. The strategy of the defence at trial is not simply concerned with presenting or challenging evidence, it is constitutive of evidence in the case. The fact that the trial is treated as a forum where the defendant can be expected to provide an answer provides the explanation of this fact. That might also provide at least part of the explanation of why, even when the jury were instructed not to draw adverse inferences from the silence of the accused, the right of silence was rarely invoked.43 It is in the light of this that we can begin to understand the proper account to be given of the right of silence. Here we should distinguish between the defendant’s right of silence pre-trial and her right of silence at trial. In general, a person has a legal right to or not to do something so long as they are legally permitted to do, or not to do, that thing, which is normally the case if no legal sanctions attach to doing not doing it. But in the modern era, the criminal law of England and Wales has protected the right of pre-trial silence more powerfully than that.44 Indeed, prior to 1994 juries were instructed that they were not entitled to draw adverse inferences from the silence of the accused. This special protection of the right of silence has been completely eroded by the Criminal Justice and Public Order Act 1994, although given that there is no sanction for remaining silent the right persists in name at least. A number of different explanations might be given for the traditional rule about pre-trial silence. Perhaps the probative value of silence is outweighed by the potential for prejudice, although it is perhaps difficult to see why jurors will be especially prejudiced about silence given careful judicial direction.45 A better argument is that defendants ought to be actively encouraged to remain silent so that they can respond to accusations in a calm and cool manner after having received appropriate advice.46 An immediate response to a charge might make an unhelpful contribution to establishing the truth in an adversarial system, particularly given the

43 Of course, it was also the case that defendants rarely understood what the right meant, or even that they had such a right. 44 See Helmholz et al, 1997; Farrar, 2001. See also ch 2.4 above. 45 For a cautiously expressed contrary view, see Roberts and Zuckerman, 2004: 440. 46 See Ashworth and Redmayne, 2005: 94; cf Constable, 2005: ch 7 on Miranda warnings in the US as a means of protecting the justice of the trial hearing by ensuring that statements introduced as evidence meet minimal conditions for the proper hearing and understanding of utterances.

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evidential weight that is commonly attributed to inconsistencies in the defendant’s story. There is good reason to think that the pressure not to remain silent will be overwhelming if the defendant is aware that adverse inferences may be drawn from his silence.47 At any rate, even prior to 1994, the right of silence did not apply powerfully to the proceedings of the trial itself. Whilst the Criminal Evidence Act 1898 prevented the prosecution from commenting on the failure of the defendant to give evidence, it did not prevent the judge from doing so.48 So whilst the jury ought to be instructed that the defence need not say anything, and that it is for the prosecution to prove their case, it is unsurprising that the reality is that this is unlikely to happen. The reality is that the case for the prosecution, if there is a case to answer, is a call to respond, even if a response is not required in law. The charge as a call to answer, then, is consistent with the right of silence. If the appropriate conditions for the question obtain and the defendant fails to answer, a conviction will often be warranted. When the defendant is called to answer he is entitled to say nothing, but he is, nevertheless, invited to answer by the presentation of the case for the prosecution.49 Defendants not only have the opportunity to present an account of what occurred, they also have the opportunity to cross-examine witnesses brought by the prosecution. That right is bound up with the rule concerning hearsay evidence. Hearsay evidence is considered to be problematic not simply because it is less reliable than evidence given in court; hearsay evidence is, after all, as probative as much other admissible evidence. The primary objection is that hearsay evidence cannot be subject to the appropriate kind of challenge by the defence. The entitlement to challenge witnesses face to face is best understood as contributing to the participatory forum that the criminal justice process ought to aspire to be.50 However, such a right is only properly exercised insofar as it involves a degree of mutual respect between the defendant and the witness or complainant. A communicative forum, properly understood, need not be entirely free and unstructured to be legitimate, an idea that will be explored in a little more detail in the next section. It would be inconsistent with the participatory ideal for the defendant to be entitled to humiliate or

47 See Royal Commission on Criminal Justice, 1993: 55. See also Sanders and Young, 2007: ch 5.3. 48 R v Rhodes [1899] 1 QB 77. 49 For further analysis of participation and the role of the defendant, see ch 7 below. 50 Cf ECHR Art 6(3)(d) on the right to confront witnesses. For an expansive version of the value of this face to face confrontation, see Clark, 2006.

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intimidate witnesses or complainants, in part because this will tend to produce unreliable evidence,51 but also because it attacks the discursive ambitions of the trial. The trial, then, ought to be a way of calling the defendant to answer, and if he is criminally responsible, to account for his actions. Such a process can only properly be pursued as a communicative exercise. This account explains some powerful intuitions about the way in which trials ought to be conducted. However, it is also true that the trial is anything but an unconstrained discussion. This is in part because of the style in which trials tend to be conducted, and partly because of the formal rules that constrain the discussion. Trials tend to use technical formal language. They tend to be conducted in intimidating and formal settings. The dress and conduct of participants is often unusual, and disconnected from the ordinary experiences of most defendants. Some efforts are made to make trials accessible to those who do not speak English, and the availability of counsel goes some way to ensuring that the defendant is properly represented at trial, but such representation can also create barriers to communicating with the defendant. Typically, participation by the accused is more prominent in France, for example. But this is a cause for concern as much as it is for celebration.52 For defendants can hardly be said to be on an equal footing in terms of status or rhetorical power to encourage a confident expression of their position. It would require radical alteration in the style of trials for proper direct participation by the defendant to be realistic and legitimate. But beyond the style in which trials are conducted, there is also a concern that the formal rules governing trials prevent a free and open discussion of the case. Formal rules of the order of events, the admissibility and production of evidence, as well as the constraints imposed by the substantive criminal law, serve to ensure that the communicative process is substantially constrained. Whilst some of those constraints seem problematic, it is difficult to envisage legitimate trials being conducted without some constraints of some kind. Of special concern and interest, however, are the ways in which the trial is constrained by some features of the substantive criminal law. To what extent can a communicative normative theory of the trial be sustained in the light of such constraints? That is the question to be addressed in the next section.

51 52

See Ashworth and Redmayne, 2005: 42. See Hodgson, 2006.

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THE IMPLICATIONS OF THE INSTITUTIONAL SETTING OF THE TRIAL

The criminal trial is, at least in ambition, a communicative process in which the defendant ought to be respected as a participant rather than treated merely as an object. Respecting the defendant as a participant involves recognising some basic rights, such as the right to have available to him the evidence against him and the right to cross-examine witnesses. It also requires that those who are not competent to play an active part in the trial cannot be tried at all. Furthermore, the right to legal representation may in part be justified by the need to ensure that participation in the criminal process, if indirect, is effective.53 There are various different ways in which this model of the trial as a communicative process might be undermined. The accused might not personally understand much of what goes on in the trial. Counsel might effectively exclude the voice of the accused from the trial rather than truly representing him. The language and atmosphere of the trial might be alienating or intimidating in ways that effectively undermine the defendant’s participation in the trial. The trial might be dominated by individuals who are socially so detached from the life of the defendant that effective communication between participants is eroded. One of the challenges of the criminal trial is to create an environment where true communication is possible. Some of the formal rights that are guaranteed to defendants may help to secure this, although they are also limited. However, something more than a proper communicative environment is required properly to respect the defendant as a participant in the process. Central to such respect is that the defendant has a proper opportunity to present arguments concerning his criminal liability, and to have those arguments acted on insofar as they are convincing. If the defendant is to be regarded as a participant in the process, no formal set of rights to participation will be sufficient. Such formal rights will be meaningful and effective only insofar as they operate against the background of a criminal law that has an acceptable moral content. For the whole point of such rights is to help to ensure that arguments available to the defendant as to why he should not be convicted of an offence are listened to, taken seriously, and where they are credible, acted on in the appropriate way. Obviously, respect for the defendant does not require that any argument that the defendant offers ought to be treated with respect, or even admitted into court. There are ways in which the trial properly constrains the kinds of arguments that can be presented. For example, arguments which constitute or incite racial discrimination against the victim or the judge

53

See Dubber, 2004.

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ought not to be treated with respect or admitted into court, even if the defendant believes that such arguments call into question the legitimacy of the charge or of the trial. However, respect for the defendant at trial does require that some arguments that are legally and morally wrongheaded must be treated with respect. This means that they must be listened to with an open mind, and if they are rejected reasons must be given for that rejection. Furthermore, the reasons that are given for rejecting arguments must be the reasons that actually motivated the rejection. The common practice of providing a technical legal explanation of why an argument is rejected when the court was actually motivated either by pragmatic or by moral reasons does not treat the defendant with respect. Given that the criminal trial involves an investigation into the defendant’s criminal liability, we can begin to investigate what legitimate restrictions there might be on the kinds of argument that the defendant can raise at trial by considering the kinds of claim that individuals might raise outside the legal context when answering a charge of wrongdoing. As we shall see, some kinds of claim that a defendant might be inclined to make are obviously central to the trial. Others are more or less excluded by kind. Suppose that, outside any particular institutional setting, D is accused of moral wrongdoing by X. There are various different ways in which D might legitimately answer that accusation. Firstly, she might simply accept the accusation, and possibly apologise for the wrong she thus admits to having committed. Secondly, she might deny that she did what X has accused her of doing, either in whole or in part. Thirdly, she might accept that she has done wrong, but provide some kind of explanation as to why she should not be judged negatively for doing that wrong: she might offer a justification or an excuse for acting thus. Fourthly, she might accept that she has done what X has accused her of doing, but deny that it constitutes wrongdoing. Fifthly, she might claim that X is not an appropriate person to accuse her of wrongdoing: for example, she might say that it is none of X’s business, or she might say that X does not have the appropriate moral standing to hold her to account.54 In the criminal justice system, there are obvious equivalents of the first, second and third claims. The first claim is the social equivalent of pleading guilty. The second claim is at issue where the defendant denies having perpetrated some element of the offence. And the third claim is the equivalent of the defendant claiming a defence. The fourth and fifth claims do not have such obvious parallels in the criminal justice system. There are some ways in which the criminal law might be said to accommodate versions of the fourth and fifth claims, but only in a

54

The fifth objection in particular is addressed in Christodoulidis, 2004, and Veitch,

2006.

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restricted set of circumstances. For example, D might challenge the relevancy of the charge against him on the grounds that the conduct that he performed did not constitute a criminal offence, which might be thought the equivalent of admitting the conduct which he was accused of perpetrating, but denying that it was wrong. But that is not a true equivalent of the fourth claim. For the accused might accept that ving is criminal but deny that it is wrong. What constitutes wrongdoing is more or less decided in advance of the criminal trial. Whether the law has declared an appropriate set of conduct to be criminally wrong is not often open to contest at trial.55 Of course, it would be wrong to say that the criminal trial excludes such arguments entirely by kind. Although some positivists may disagree, moral argument is relevant in determining the proper interpretation of the law. For example, it might be relevant to reading mens rea terms into legislation that appears, on the surface, to impose strict liability. In such a case, the defendant might argue that a proper interpretation of the legislation would exclude his non-wrongful action. But such opportunities for the defence to make a claim of the fourth kind are limited at trial. Given that the criminal trial is supposed to establish that the defendant has perpetrated the kind of wrong, with the kind of fault, such that he ought to be held criminally responsible for it, this exclusion appears to pose a serious challenge to the validity of the criminal trial in general. For the accused is denied a proper opportunity to explain that his conduct did not constitute the kind of wrong for which a criminal conviction is appropriate. But there will obviously be arguments of this kind that are valid. And if there are such arguments, consideration needs to be given as to why they are more or less excluded from the criminal trial in kind. The fifth claim is different in kind. Here the objection of the person accused does not relate to the moral nature of her conduct, but rather to the right of the accuser to assess the moral nature of that conduct. There are different kinds of claim that might be relevant here: she might deny that the accuser has such standing in respect of acts of this kind; she might deny that the accuser has standing in respect of acts done by her in particular; she might deny that the accuser has standing in respect of acts done in that place, or at that time; or she might deny the moral standing of the accuser to make a moral assessment of anyone at all.56 There are undoubtedly some kinds of political condition where any criminal trial at all, which purports to be in the name of the state, is illegitimate. In other social conditions, trials of some individuals might be illegitimate, or trials of certain kinds of act, even acts that would properly constitute criminal 55 On the extent to which criminal law declares public wrongs rather than prohibiting conduct, see RA Duff, 2002b; Tadros, 2005a: ch 10. 56 See RA Duff, 2003a.

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wrongs under other political conditions. And yet, even though there are clearly examples where the fifth claim has significant moral bite, such a claim will not and cannot be investigated by the criminal trial in full. Perhaps we cannot even regard such claims as being heard, in the proper sense. For to be heard, in that sense, is to be taken seriously such that if one provides good reason for action, belief, judgment, desire and so on, one’s claim will be motivating. The obvious explanation of why such arguments are excluded from the trial is that there is another forum, a political forum, where such claims are considered relevant, and it is there that such claims can be heard in that rich sense. The validity of the criminal trial rests in part on establishing that the exclusion of such challenges from the criminal trial is warranted in the light of their inclusion, or at least potential inclusion, in the political process.57 It might be argued that the criminal trial will be legitimate only if any sound moral argument to the effect that the defendant ought not to be convicted of a criminal offence is capable of ensuring that the defendant is not convicted of a criminal offence. But it might be claimed that not all such moral arguments need to be capable of having such a consequence during the criminal trial. The criminal trial is part of a complex institutional structure, and different kinds of moral argument have their place in different institutional contexts. However, when we examine this justification of the exclusion of such claims from the criminal trial in more detail, doubts must arise. Firstly, the accused is not normally in a position to challenge the law before offending. Despite the (unrealistic) maxim that ignorance of the law is no defence,58 the range of criminal law is so vast and complex that citizens cannot be expected to know its content. So even if the citizen ought to attempt to achieve a change in the law rather than conduct himself in a way that breaches it, that will often be unrealistic. This is particularly so where the range of the criminal law extends beyond the core range of conduct which everyone would expect to be proscribed.59 Secondly, there are many offences that can be committed without intent. Consequently it will often not be open to the defendant to plan her life by seeking to change the law rather than acting to contravene it. If the law wrongly criminalises negligent action, for example, it is absurd to say to the defendant: ‘if you didn’t want us to criminalise your negligent action, you ought to have secured a change in the law first.’ For the whole point of negligent action is that one does not plan to act negligently. Thirdly, access to Parliament to present legitimate arguments to change the law is obviously unavailable to the vast majority of defendants even if the citizen 57 58 59

See RA Duff, 1998a: 182–4. On which see Husak and von Hirsch, 1993. For a discussion of related rule of law concerns, see Gardner, 1994.

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has a compelling case to present that a change in the law is required. It is difficult to see how things could be otherwise in a society remotely like ours. Fourthly, there is a considerable difference between one’s perspective on the law after one has breached it and faces criminal trial and the perspective that one would have prior to breach. So the grounds on which one would challenge the moral legitimacy of the law may well only be truly available to the defendant well after the period where such a challenge is permissible in the political forum, even were such challenge realistic. These problems are only exacerbated when we consider the fifth kind of claim, that is that the court lacks the moral standing to judge the defendant. There are different kinds of claim that might be made here. The defendant might take as his target either the trial in particular or the political institutions of which the trial is a part more generally. In general, it might be thought a basic condition of legitimate communicative practices that they should incorporate not only the possibility of challenges within the norms and structures of those institutions, but also challenges to those structures and norms themselves. So, for example, democratic processes should contain within them the possibility of a change to democratic procedures, or even the development of legitimate non-democratic models of decision making. The equivalent, in this context, would be incorporating the possibility that the defendant could challenge the legitimacy of the nature of the criminal trial. Now, there are some ways in which such an idea is incorporated into trials, albeit to a limited extent. The defendant might be given the right to challenge jurors on the basis that they are not competent to judge her. Or she might be permitted to challenge a decision of the court on the grounds that the judge lacked independence or was biased.60 But such provisions are very limited: they do not allow the defendant to mount a political or moral challenge to the legitimacy and authority of the court, or of the system of criminal justice or of the political system of which it is part. The argument that the defendant might raise here is that the reason why the court lacks the appropriate moral standing to judge him is that it constitutes part of an institutional framework that lacks the moral legitimacy that is necessary for moral judgment to be passed. Such an argument obviously cannot be met with the claim that there is an appropriate forum for the defendant to make that argument. For the whole point of the argument is that the kinds of forum where such arguments might be heard are illegitimate. The point of such claims is to call into question the very validity of the political system on whose legitimacy the criminal trial rests.

60 Art 6 of the ECHR protects the right to a fair and public hearing by an independent and impartial tribunal.

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If the legitimacy of the criminal trial rests on the possibility of communication about the moral foundations of the trial itself, there is a paradox at the heart of the trial: the legitimacy of the division of labour between courts and parliament as communicative fora concerning moral and legal judgment rests on the very provision of the fora to be defended. As Christodoulidis puts it: ‘no meta-level argument over “proper limits” is possible at the first-order level of constitutional politics or court procedure. Instead every determination of “proper” occurs within the givenness of those parameters’.61 To put this argument in another way: the institutional structure of communication takes a particular form which determines what may and may not be presented as a legitimate argument. But one central way in which criminal responsibility might be denied is to deny the legitimacy of that institutional structure. However, the moral bite of such an argument, even if it is legitimate, is unlikely to be recognised within that institutional structure. Consider a criminal trial that denies the right of women to speak. It is unlikely that the moral bite of the argument of a woman denying the legitimacy of such a trial will be felt within that criminal trial. Such an argument might be expanded to the very institutional division of labour between the political system and the trial. Any argument challenging that institutional structure is unavailable to the defendant at trial. A consequence of this argument is that an account of the legitimacy of the criminal trial cannot rest on the possibility of all relevant moral arguments being available to the defendant. There are moral arguments that are potentially relevant to determining the defendant’s criminal responsibility, but the actual relevance of such arguments cannot be assessed by the criminal trial. What must be justified is the exclusion of certain kinds of argument from the criminal trial, kinds of argument that would have relevance in the ordinary moral setting. The institutionalisation of the determination of wrongdoing has some consequences which favour the defendant (the formal setting helps to ensure that certain fundamental rights of the defendant are protected, which would not be protected in the ordinary social world). But it also has some consequences which do not favour the defendant (there are some conditions of legitimacy which would be open to challenge in the ordinary social world, which are not open to challenge by the defendant). Claims 4 and 5 are examples of claims which are unavailable to the defendant at trial, even if those claims would have bite in the ordinary moral world. This problem arises because of the apparent conflict that may arise when we attempt to protect two different social and political demands at once. Both are demands to take wrongdoing seriously, but in different ways. First

61

Christodoulidis, 2004: 197.

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there is the demand that individual instances of wrongdoing be taken seriously as wrongdoing. A polity ought to respond to wrongdoing, we have been arguing, by holding individuals accountable for that wrongdoing. And that ought to be done by calling such individuals to answer when there are sufficient evidential grounds to make a case that they have perpetrated the wrong, and calling them to account when they are proved to have perpetrated the wrong, either by offering a defence for what they have done, or by accepting responsibility for what they have done. That demand is fully met only in an acceptable communicative forum where the relevant evidential and moral issues can be challenged. Second, there is the demand that general categories of wrongdoing are taken seriously as wrongdoing. This is the demand for the polity to declare and define what constitutes criminal wrongdoing. A polity ought to establish, through the proper democratic procedures, the kinds of actions and activities that ought to be considered public wrongs: wrongs which require a response not only to the individual harmed, but to the polity more generally. Taking wrongdoing seriously involves not only responding to individual instances of wrongdoing when they occur, but also declaring and defining wrongs. And declaring and defining wrongs is an activity which is legitimate only if it is done through a proper participatory process that involves the polity as a whole. A consequence of this idea is that courts should respect the separation of powers, for to fail to do so would be to show inadequate respect for the legislative process of declaring and defining wrongs, and a consequent failure to respect the demand to take wrongdoing seriously in this second sense. Of course, life in general is full of conflict. We can often protect one value only at the expense of another. And conflicts may even arise in trying to protect a single value. Given this, if the moral legitimacy of an action or practice were to require all relevant values to be satisfied in full, there would be very little that we could do that would be morally legitimate. The proper response to competing and inconsistent demands is often, though not always, compromise. In this context, clearly a balance must be struck between the right of the accused to challenge the charge that she can appropriately be held criminally liable for perpetrating a criminal wrong and the demand that the efforts of the legislature to declare and define which constitutes a criminal wrong be respected. How to strike that balance will vary from rule to rule, depending, inter alia, on whether the rule is statutory or common law, whether it concerns an offence or a defence, on the relevant purposes for which the rule has been created and so on. Now, this response will obviously be regarded as unsatisfactory by some. Here are two kinds of objections. Firstly, it may be claimed that a constrained and compromised communicative process of this kind cannot be regarded as a legitimate communicative process at all. The process

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cannot be legitimated through communication without it being able to hear all relevant moral and political objections. More rather than less communicative freedom might be thought a good, on this account, but it is not legitimising. In response, we would argue that this objection puts the stakes of legitimacy too high. In general, a decision, an institution or a practice may be regarded as legitimate even if it is not the best that it could be. Legitimacy is not the most demanding standard. It falls well below excellence, for example. There is something paradoxical about the claim that the trial can be as communicative as is possible given proper respect for the political process, but that this is insufficiently communicative to ground the legitimacy of the trial. The demand for legitimacy cannot be either the demand to do the impossible or the demand to ignore the significance of a proper democratic process. Even a constrained communicative process can contribute to the legitimacy of trials, notwithstanding that such a process is insufficient to warrant calling trials legitimate overall. The legitimacy of a trial might depend both on the legitimacy of the political processes of the state in which they operate and on their communicative practices. But it cannot be the case that the communicative processes must involve the opportunity to cast doubt on the legitimacy of those political processes. For the legitimacy of those political processes arguably rests on their insulation from undemocratic challenges of that kind. The political process could hardly be called legitimate if its outcomes were open to challenge in an open and unstructured way by parties during the trial. Secondly, it might be claimed that this compromise casts doubt on the epistemic ambitions of the trial. We argued in chapter three that the trial aims at knowledge that a criminal wrong has been perpetrated. But surely, it might be argued, to have knowledge that p requires consideration of claims that we are aware might disprove p. There seems something paradoxical about claiming to know that p whilst knowing of an objection to the truth of p that we have not considered and that might be true. This issue is complex and we cannot do justice to it here.62 But even if this objection can show that knowledge that the defendant has committed a public wrong cannot be attained by the trial alone, knowledge might still play a role as a regulative ideal that governs the rules, principles and practices of the criminal trial. So even if the division of labour between courts and the legislature constrains the pursuit of knowledge, knowledge may still structure the rules, principles, ambitions and practices of the trial. For example, the rules of evidence might be 62 See Pritchard, 2005. It is worth noting that Bernard Williams claimed that knowledge could be attained with respect to thick normative terms without critical investigation of the appropriateness of those terms: see BAO Williams, 1985.

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structured in a way that reflects the demand that the trial knows of certain facts,63 even if normative knowledge about those facts cannot be attained within the limits imposed by the separation of powers. The fact that certain normative challenges to criminal responsibility cannot be considered during the trial, properly understood, is undoubtedly significant. It limits the kind of normative investigation that the trial could be. The trial can only be a constrained normative investigation into whether the defendant ought to be held responsible for perpetrating a criminal wrong as defined by the state. This is consistent with an account of the trial as a communicative investigation which aims at knowledge of that fact. But the investigation has its proper limits. This undoubtedly involves a loss: the defendant is held to account without the availability of a proper challenge to some of the grounds of criminal responsibility. But whilst our normative theory of the trial rests on compromise, the legitimacy of the trial is not undermined by that compromise. The demand for legitimacy cannot be the demand for the impossible.

63 For a knowledge based approach to the rules of evidence, see Pardo, 2005; see also J Jackson, 2004.

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6 Why Call to Answer? The Trial and Criminal Justice 6.1.

INTRODUCTION: HOW IMPORTANT IS THE CRIMINAL TRIAL?

W

E ARGUED IN Part II that the criminal trial should be normatively understood as a process in and through which citizens are summoned to answer to their fellow citizens for their alleged public wrongdoings—summoned initially to answer to the charge that they committed such a wrong, and then to answer for that wrong if it is proved against them. The criminal trial as thus conceived, we have also argued, should play a central role in a liberal polity’s system of criminal justice: such a process of calling to account, of holding answerable, is an appropriate way in which citizens can respond to the kinds of wrongdoing that properly concern them as ‘public’ wrongs. It is a response that takes seriously both the wrong that was allegedly committed, and the moral claims of its alleged victim and of the alleged wrongdoer as a responsible citizen. In the remaining chapters of this book we will further clarify this account and explore some of its implications, thus filling out this normative conception of the role and importance (and limitations) of the criminal trial in a contemporary liberal democracy. We can best begin this task by responding to an apparently devastating objection to our account: that criminal trials do not, and could not, play such a role in our existing systems of criminal justice.1 This objection is based on a number of different developments in criminal justice practices. First, the idea of citizens being called and held to account by their fellow citizens might suggest that trials should typically be jury trials, in which the defendant is tried by a jury of his fellow citizens: but even in jurisdictions that have jury trials, and even limiting our attention to cases that come to court, such trials are very rare; about 95 per cent of criminal cases are dealt with by magistrates sitting without a jury (we comment below on cases

1 Compare Rock’s criticisms of a similar project in Rock, 2003. See RA Duff et al, 2004: 8–17.

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that could be tried by a jury but that are instead settled by guilty pleas).2 However, this is need not be a problem for our account. Our account does suggest an important role for lay participants in reaching the verdicts that the trial aims to produce, as we will see in chapter seven, but that role could be played by lay magistrates or lay judges, so long of course as they have real power, and are not, in law or in fact, merely subordinate to a professional judge.3 Moreover, it is not obvious a priori that professional judges cannot try cases on behalf of and in the name of the polity as a whole.4 Second, the vast majority of trials end almost before they begin, with a guilty plea from the defendant—often on the basis either of an explicit plea-bargain, or of an understanding that a guilty plea will secure a sentencing discount. We discuss the problems of guilty pleas and plea bargaining, and the problems they pose not only for our account of the criminal trial, but also for any system of criminal justice in 6.2. Third, there is a growing tendency for cases at the lower end of the scale of seriousness to be dealt with by legal officials without the formalities of a trial: offenders may be cautioned by the police, or pay a prosecutor’s fine, without having to appear in court and be convicted. Such provisions seem to undercut any suggestion that offenders should be called to answer for their crimes. We deal with this issue in 6.3. Fourth, criminal conduct may be diverted from the criminal process altogether, without any formal conviction or penalisation: the prosecutor might simply decide not to prosecute; or the alleged offender might be diverted to, for instance, a restorative justice process, or to psychiatric care. We discuss these possibilities in 6.4. Fifth, conduct that could be defined and treated as criminal may be ‘diverted’ from the criminal law to a system of non-criminal regulation and penalties, in which there again seems no real room for the idea that offenders should be called to answer for what they have done: a good example of this phenomenon is the German system of Ordnungswidrigkeiten. We deal with this issue in 6.5. Before we turn to such specific issues about the role and significance of the criminal trial, it is important to be clear about just what problems they might pose for our account (and for a system of criminal justice). The mere fact that our existing systems of criminal justice do not seem to give the trial the central place that, on our account, it ought to have does not by 2 For classic criticisms of the focus on jury trials that characterises so much English and American theorising about the criminal trial, see McBarnet, 1981; Darbyshire, 1991, 1997, 2000. 3 See Hörnle, 2006: 136, 151–2. 4 And see Jackson and Doran, 1997 for an argument that the defendant should sometimes be allowed to opt for a jury-less trial in the Crown Court—a suggestion taken up in Auld, 2001: ch 5 paras 109–18.

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itself generate an objection to that account. As we have emphasised, ours is a normative account of what the trial ought to be, what role it ought to play in a system of criminal justice; faced by even a radical lack of fit between the trial as a normative theory portrays it, and the reality of trials (or of their absence) in our existing systems, it remains open to the normative theorist simply to use that fact as grounds for criticising those existing systems. How then can that lack of fit generate any problem for our account? One way in which it might be thought to undermine our account would be by grounding an alternative account of the function of the criminal process.5 If we look at the ways in which our systems actually operate, the critic might argue, it cannot plausibly be said that they serve or aim to bring wrongdoers to account; they actually serve quite different social or political ends. If we look at the rather minimal role that actual trials (especially contested trials) play in the criminal process as it operates in our existing systems, it cannot plausibly be argued that they have the central significance that our account ascribes to them: the real work of the criminal justice system is done by processes and procedures prior to and independent of the trial. One answer to this kind of criticism is that other activities within the criminal process are conducted in the shadow of the trial, which therefore plays an essential role in shaping them and in guiding their agents: police and prosecutors have to ask themselves what evidence will or would stand up in court, whether and how they can put together a case that would secure a conviction; the plea bargaining that often averts a contested trial depends on what would be likely to happen should the case go to a contested trial; and so on.6 But this is not a wholly satisfactory answer. It weakens the normative force of our account, which is concerned less with how our existing systems of criminal justice actually function, or what ends they actually serve, as with how they should operate, and what ends they should serve. It invites an inquiry into the extent to which the various activities and practices that make up a criminal justice system in its responsive mode are in fact structured by the prospect of a possible trial—an inquiry which is irrelevant to our present purposes. More significantly, our claim is that actual trials, not merely the prospect of a possible trial, should play a central role in a polity’s responses to crime: but this answer to the critics does not support that claim. If that is our claim, however, it confronts us with a further, related objection. The point is not just, the critic will argue, that trials in our existing criminal justice systems do not in fact play the role that our 5 See, eg, Feeley, 1979; also ch 3.1 above, on the idea that the function of the criminal process is to resolve disputes. 6 We offered a version of this answer in RA Duff et al, 2004: 8–17.

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account ascribes to them; it is that they could not do so. The alternative functionalist account that the critic offers has the merit of realism: the function is one that the criminal justice system can—because it evidently does—serve. The purpose that our account ascribes, by contrast, is one that the system could not serve, or could not serve without costs that would not be tolerable. For our account implies that most cases should go to trial, and to a contested trial at that—a trial at which the defendant answers to the charge: but that would involve a massive increase in the number of contested trials. Without enormous additional resources, our criminal justice systems (already under serious pressure from the number of cases they must process) would collapse under the strain of trying to deal with so many trials. But, on the other hand, to provide the necessary additional resources would involve either a significant increase in taxation, or a significant shift of resources away from other tax-funded activities— neither of which would command wide support. Our existing systems are very far from perfect: but they do serve some useful functions—although not that of bringing alleged wrongdoers to answer in the way that our account suggests they should; the way to improve them is not to demand that they do very much more than they now do (in other words that they should subject a far greater number of alleged offenders to contested trials). This is a serious objection. Whilst a normative theory is not undermined by the mere fact that the practices that it theorises do not actually operate as it implies they should, if it is to guide the reform of those practices it must point towards a goal that is in principle achievable; it must not set goals that are unattainable, or attainable only at a cost that the polity could not plausibly be expected to bear. We could alleviate the problem to some extent by arguing (as we would anyway argue), first, that some of the resources that would be required for a much greater number of trials could be provided by cutting down on other expensive aspects of the criminal justice system, for instance the use of imprisonment as a punishment, and the length of prison terms;7 and, second, that our existing systems could bring a larger proportion of cases to trial, without additional resources, if the scope of the criminal law was significantly reduced, so that there were fewer offences to be dealt with.8 It remains true, however, that to provide

7 A move for which, especially in Britain and the USA, there is a familiar plethora of good reasons, both of justice and of crime-reductive efficiency. 8 One obvious place to look for substantial decriminalisation is the wide range of drug offences (see Husak, 1992); but see more generally Husak, 2007. A further point which we cannot directly address here concerns the proportion of offences whose investigation proceeds far enough even to identify possible defendants. The question here (a version of which we discuss below in relation to trials) is how much importance, and thus how many resources, we should ascribe to the detection and investigation of crime: whilst our account implies that we have reason, given the importance of calling wrongdoers to account, to devote significant

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for contested trials (and adequate legal representation for defendants) even in most criminal cases would be very costly in terms not merely of material resources, but also of human effort and suffering. If that is what would be required to serve the aim of bringing criminal wrongdoers to answer for their wrongs (and bringing those reasonably suspected of criminal wrongdoing to answer the charges against them), we must doubt whether that aim should be central to a system of criminal justice: we must either doubt whether it should be the central aim of the criminal trial, or doubt whether the trial should have the central role in the criminal process that our account allocates it. We meet this objection in the remainder of this chapter. We argue that both guilty pleas and plea bargaining have a proper role in a system of trials that aims to call wrongdoers to account, although they should be subject to stringent safeguards and constraints, which would predictably reduce their frequency. There is some scope for dealing with very minor offences by something like a system of prosecutorial fines—for such offences to be punished without a trial. There is also good reason to divert some offenders from the criminal process, though we will argue that there are objections to ‘diverting’ some kinds of conduct to systems of noncriminal regulation. We can conclude, therefore, that a system of criminal justice which gave criminal trials the role that on our account they should have would hold more trials, and more contested trials—but not unmanageably more. But the point of this chapter is not simply to meet this objection: in meeting the objection, we shall also clarify our account of the meaning and importance of the criminal trial.

6.2.

GUILTY PLEAS AND PLEA BARGAINING

If the criminal trial is meant to be a procedure through which a citizen is called to answer to a charge of public wrongdoing, guilty pleas are in theory unproblematic. We could indeed say that a defendant who knows that he is guilty (which requires knowledge not just of the facts of what he has done, but of the relevant law and its interpretation) should plead ‘Guilty’: not because a plea of ‘Not Guilty’ would be a lie, since it could be interpreted as a non-assertoric challenge to the prosecution to prove his guilt,9 but because in a decent society with a decent legal system citizens should be ready to admit to their wrongdoings.10 resources, it does not imply that that aim is so important that the state should try to detect and prosecute all wrongdoers. Cf Braithwaite and Pettit, 1990: 106–20. 9 On the meaning of a plea of ‘Not Guilty’, see above, ch 5 at nn 39–40. 10 Guilty pleas were in fact rare in English courts until the early nineteenth century: in the absence of counsel and of provisions for post-verdict pleas of mitigation by the defendant,

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A guilty plea is not merely evidence of guilt, but a performative: it is how the defendant answers to the charge, with a formal admission of criminal wrongdoing. It is the first-person version of the verdict ‘Guilty’ that a fact-finder declares at the end of a trial at which guilt has been proved beyond reasonable doubt; the defendant admits and condemns his own conduct as a public wrong. A guilty plea, as made by a guilty defendant who recognises his guilt, thus serves the proper aims of the criminal trial, as an appropriate answer to the charge of public wrongdoing. Furthermore, if the polity is to treat its citizens as responsible agents, it should allow them thus formally and publicly to admit their guilt—to take responsibility in this way for their own wrongdoing.11 Why then should we not simply note that a system of criminal trials which calls alleged wrongdoers to account must allow them to plead guilty, and leave it at that? The reason is that we need to attend to two ways in which guilty pleas might fail to serve the aims that, according to the normative theory, they ought to serve, and to features of the criminal process that make such failures more likely. One such failure occurs when a person who is actually innocent of the charge nonetheless pleads guilty to it. In that case the trial has concealed rather than established the relevant truth, and a wrongdoer is not being brought to answer for her wrong. Another failure occurs when a person makes a non-sincere plea, one that does not express his own recognition of his criminal guilt, to a charge on which he is indeed guilty. His plea would be non-sincere if she did not understand what it meant—that it was a formal admission of guilt for the offence with which he was charged; or if he pleaded not because he recognised his guilt but for some other reason, such as securing a lighter sentence. In these cases, the guilty plea does not amount to what it should amount to: a wrongdoer’s admission of guilt—of culpable responsibility for the wrong with which he has been charged. Such failures are problematic not simply because they might occur (no system can proof itself against all failures), but because there are significant features of our existing systems that make them very likely—but that might also seem essential to the cost-effective operation of those systems. First, defendants who plead guilty can expect substantial sentencing discounts—in England, up to one third of the sentence they would have received.12 Such discounts are already a kind of plea bargain: if the

defendants had to present any mitigation as part of their defence, which would be precluded by a guilty plea (see above, ch 2 n 65; Langbein, 2003: ch 2). 11 What then of ‘inquisitorial’ legal systems which make no formal provision for guilty pleas? They might still give the suspect/defendant’s admission of guilt a role functionally similar to that of a formal guilty plea (see n 12 below), but if they do not do so, we think they are to that extent lacking as criminal processes. 12 See Criminal Justice Act 2003 s 144 (and Criminal Justice and Public Order Act 1994 s 48, which it replaced); Ashworth and Redmayne, 2005: ch 10. Even in ‘inquisitorial’

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defendant pleads guilty to the charge, he will receive a lighter sentence. Second, however, formal or informal practices of plea bargaining extend far beyond this kind of bargain, since the bargaining can involve not just the sentence that will be imposed if the defendant pleads guilty to the initial charge, but the very charge to which he is to plead, or the facts of the case that the prosecution will state. We can call the first kind of bargain a plea bargain strictly speaking, since the bargaining concerns whether the defendant will plead to the charge already on the table. A second kind of bargain is ‘chargebargaining’, about the charge to which the defendant is to plead (with a prospect of conviction for a less serious offence, and the consequent expectation of a lighter sentence). A third kind of bargain is ‘factbargaining’: whilst the charge is not altered, the prosecution offers not to present certain features of the offence that the defendant would prefer not to be made thus public (most obviously, aggravating features that might lead to a harsher sentence), in return for a guilty plea.13 The key feature of all these kinds of bargain is that a defendant who might otherwise have pleaded not guilty agrees to plead guilty in return for some benefit— typically, but not, necessarily a lighter sentence. There are two ways in which such plea-bargaining practices can make it more likely that guilty pleas will be defective in one of the ways noted above. First, they offer prudential incentives to plead guilty which might induce a rational defendant to do so, even if he is innocent, or without properly recognising his guilt. A defendant who knows that he is innocent of the charge might see good reason to accept the bargain, rather than risk suffering a much harsher punishment (or conviction and punishment for a much more serious and thus much more stigmatising crime) through pleading not guilty and being mistakenly convicted.14 A defendant who knows that he is guilty in law, either of the offence to which he pleads or of a more serious offence for which he would otherwise be prosecuted, might also see good reason to accept the bargain, and to plead guilty, not as a sincere admission of his guilt (of his culpable responsibility for committing the wrong), but simply as a means to a lighter sentence or less damaging conviction. In both cases, the prospect of avoiding the burden of a

jurisdictions that traditionally had no place for guilty pleas there is growing formal or informal room for admissions of guilt which lead to a reduction in sentence: see Dubber, 1997; Ashworth and Redmayne, 2005: 265 and further citations there. 13 For this classificatory scheme, see Ashworth and Redmayne, 2005: 269–75. See generally McConville, 1998, 2002; Darbyshire, 2000; Weigend, 2006; Sanders and Young, 2007: ch 8. For the history of plea bargaining see Fisher, 2003; McConville and Mirsky, 2005; for the English rules see Turner [1970] 2 QB 321, Cain [1976] Crim LR 464; on plea bargaining in American courts, see LaFave et al, 2000: ch 21. 14 A defendant who is not sure whether he is guilty, or who mistakenly believes himself to be guilty, might of course also be induced to plead guilty.

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contested trial also gives defendants reason to accept the bargain whether or not they take themselves to be guilty or recognise their guilt. Second, the availability of such plea bargains opens the door to other, less rational, kinds of persuasive pressure on defendants, pressure which may be independent of any incentive that the system offers. A disordered defendant might want to plead guilty to a crime of which he is innocent; or a defendant might be pressured or bullied by others to plead guilty, to take the rap for the person who committed the offence. If a guilty plea is accepted as dispositive (we return to this point below), innocents may thus be convicted and punished, whilst the guilty escape and the truth is concealed. More usually, however, the pressures come from agents of the criminal justice system, and depend on the incentive (which is what supposedly makes it in the defendant’s interest to plead guilty). Police officers anxious to be seen to clear cases up and to avoid lengthy investigations and trials will urge suspects to agree to plead guilty—and such urgings can be more forceful than their rational foundation warrants. Prosecutors and defence counsel have many reasons to want speedy dispositions, and will thus be tempted to put pressure on defendants to accept a bargain—pressure which many defendants may be ill-placed to resist. The result is that the defendant who pleads guilty on the basis of a bargain (a bargain that might indeed have been made by her counsel without any participation by her) might well not have made a rational, informed decision to do so; might do so even though he is innocent, or at least not provably guilty, of the charge; might, even if guilty, plead without recognising his guilt; and might indeed not even understand what is going on—just what the charge or the plea that his counsel tells him to make actually mean.15 The most obvious arguments in favour of sentencing discounts for pleading guilty, and of plea bargaining more generally, appeal to the administrative benefits of such practices—to their contribution to the cost-effective operation of the criminal justice system.16 From the point of view of those who administer the criminal justice system (if not of the polity), such practices save substantial resources that would otherwise have to be expended on contested trials, and make it easier to process large

15 For vivid illustrations of this see Baldwin and McConville, 1977; see also McConville et al, 1994; Blake and Ashworth, 1998; Dubber and Kelman, 2005: 92–101. Other familiar objections to plea bargaining, in the form in which it now operates, include the lack of public scrutiny; the way it effectively penalises those who do not plead guilty, or whose offer to plead is not accepted (see Dilley 96/6687/W3 (1996), cited in McConville, 1998: 566); and the inconsistencies in outcomes to which it leads. Ashworth and Redmayne (2005: 285–92) argue that the practice of sentencing discounts for guilty pleas ‘runs contrary to the spirit’ of several of the human rights recognised under the European Convention. 16 A concern that has become more prominent in the recent history of the trial; see above, ch 2.4.2.

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numbers of cases efficiently; they ensure convictions at least some of which would not otherwise have been obtained; and they put control of the process more firmly in the hands of professionals (counsel, prosecutors, judges). It can also be argued that such practices benefit defendants, who are spared the burden of a trial and might obtain lighter sentences than would otherwise have been imposed; victims, who see ‘their’ offenders brought to speedier and more certain justice, and are spared what might have been the painful need to give evidence; and others who would have had to give evidence at a trial. We should not discount such benefits, in so far as they are real (though we have already seen reason to distrust some of the supposed benefits to offenders, and will shortly see reason to be sceptical about some of the benefits to victims). However, the main driving force behind the expansion of such practices has been the benefit they bring in cost-effective administration; and the problem that their justification poses is that arguments based on cost-effectiveness or administrative convenience are ill-suited to meeting the objections noted above, since those objections are based on considerations of justice. The justice at stake is sometimes the justice of outcomes. Such practices threaten justice in so far as they increase the probability that innocents will be convicted, or indeed that those who are guilty will be convicted of much less serious offences than they committed (and for which it might have been possible to convict them).17 They also threaten procedural justice, in so far as they make it less likely that the criminal process will be a fair, public procedure which calls alleged wrongdoers to answer the charges against them, and which allows them to answer those charges without being subject to undue pressure to plead guilty. They also, of course, decrease the likelihood that the defendant’s conviction will reflect the character or the gravity of his actual offence, or that his punishment will be proportionate to that offence. Should we then argue that such practices ought to be prohibited—that whilst guilty pleas should be allowed, there should be no provision either for a sentencing discount, or for other kinds of plea bargaining? One problem with such an argument is that even if such practices are formally prohibited, they will certainly still go on: prosecutors and defence counsel (and police officers in their dealings with suspects) will still make bargains—though such bargains would be even less open to scrutiny than they are now. A more serious problem is that there are better and more

17 That is one reason why practices of plea bargaining might not benefit victims, since the wrongs that they suffered might not be adequately recognised: the defendant might agree to plead guilty to a lesser included offence that is very much less serious than the offence with which he was originally charged, and of which he might have been convicted after a full trial (a charge of rape is bargained down to a charge of indecent assault, for instance); or he agrees to plead guilty to one offence if charges involving other quite separate offences are dropped.

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principled arguments for some kinds, if not of ‘plea-bargaining’ as such, at least of sentencing discounts and plea agreements—arguments which aim to show that it is just or penally appropriate, not merely bureaucratically useful, to impose lighter sentences on those who plead guilty, and to allow prosecutors to seek agreements with defendants about the charges to which they will plead guilty. The core of what we have called plea bargaining strictly speaking, a sentencing discount for guilty pleas, is of course a controversial issue in sentencing theory, which we will not try to settle here.18 Some arguments in favour of a discount do not depend on the sincerity of the guilty plea as an expression of recognised guilt: it might be said, for instance, that this is one kind of cooperation with the criminal justice system for which the offender should be given some benefit. Others do depend on the idea that one who pleads guilty thereby expresses, or purports to express, his repentant recognition of his wrongdoing. The repentant offender has disowned the crime, and distanced himself from the person who committed it; on some views of punishment, he has done part of the penitential work that punishment is meant to do—he has begun to punish himself, and it is surely appropriate to mitigate the punishment imposed on him by the state.19 On the other hand, it might be argued that the appropriate mode and level of punishment should be determined by the character and seriousness of the offence, which is not affected by later remorse; or that the punishment should be an appropriate kind of formal moral reparation that must be undergone or undertaken to communicate the right message to others—in which case a repentant offender should undertake the punishment willingly, rather than looking for it to be mitigated.20 All we can say here is that if we have good reasons of justice or penal propriety to mitigate the punishment of those who plead guilty,21 we should do so, even if it creates dangers of the kind noted above. The fact that giving a discount to guilty offenders who properly plead guilty creates inappropriate incentives or pressures for other defendants gives us good reason to try to guard against those inappropriate incentives and pressures, but not to withhold the discount from those who merit it; to withhold it would be to punish them more harshly than they deserve.22

18 It is indeed an issue on which the authors disagree among themselves. For the arguments on either side of the debate see Ashworth, 2005: 163–71. 19 See Tasioulas, 2006 for an interesting version of this line of argument—though Tasioulas insists that it is a matter of mercy, not of penal justice. 20 See RA Duff, 2007: s 6 for a version of this argument (responding to Tasioulas, 2006). 21 Or of those whose guilty pleas can be taken to manifest repentance; see at nn 23–6 below. 22 The same line of argument applies if the discount is a matter of mercy rather than of justice (see Tasioulas, 2006).

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Similar points can be made about other kinds of plea bargaining. There surely are cases in which it would not be improper for prosecutor and defendant to agree that the defendant will plead guilty to a specified charge, if the prosecutor does not pursue another, more serious charge that she could have pursued, so long as the charges concern offences of the same type, and not too different in seriousness. Perhaps the prosecutor has evidence that could ground a charge of wounding with intent, and a prospect of securing a conviction on that charge good enough to warrant proceeding with the case. But conviction is far from assured; a trial would involve significant costs and burdens (on witnesses and the victim, as well as on the criminal justice system); and the defendant is willing to plead guilty to the lesser charge of wounding—a plea that he will not offer if the prosecutor proceeds with the more serious charge. If she thinks that he is guilty, and that he might be provably guilty, of the more serious charge, there is a demand of justice that she pursue that charge: justice is not adequately done if those who are guilty of serious public wrongdoings are not brought to answer for them, or if people are not brought to answer charges of such wrongdoing that are based on plausible evidence. However, if the prosecutor pursues justice by prosecuting the defendant for the graver offence, she might jeopardise convicting him of anything at all. Although he was willing to plead guilty to the lesser offence if the prosecutor did not pursue the graver charge, if she does pursue the graver charge he might plead not guilty to both the graver and the lesser offence—and might be acquitted of both. The prosecutor might then reasonably ensure that justice of a more limited kind, through conviction of the lesser offence, is achieved, rather than risk the defendant escaping without a conviction at all by prosecuting the graver offence. Similar points apply to both sentencing discounts and fact bargaining. If the defendant is willing to plead guilty to the offence if he is given a sentence discount, the prosecutor may reasonably agree to that on the grounds that pursuing a higher sentence through prosecution would risk the defendant being acquitted, and thus not being punished at all for his conduct. With respect to fact bargaining, the prosecutor might legitimately ensure that the defendant is convicted of perpetrating the offence, described in a less serious manner, rather than risk an acquittal by including aggravating factors, given which the defendant would have pleaded not guilty. These arguments in favour of some limited provision for plea bargaining, charge bargaining and fact bargaining have nothing to do with the costs of prosecution: they appeal solely to the importance of trying to achieve retributive justice. Consider two cases with the same evidential basis that might ground a charge of assault occasioning Grievous Bodily Harm (GBH). The prospects of conviction are reasonably good but by no means certain. D1 is willing to plead guilty to the lesser offence of assault

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occasioning Actual Bodily Harm (ABH); D2 is not. The prosecutor might legitimately decide not to prosecute D1 for assault occasioning GBH, but to prosecute D2 for that offence, even if she is reasonably confident that D1 did indeed perpetrate the more serious offence. This is because imperfect retributive justice, secured through D1’s conviction for assault occasioning ABH, is better than no retributive justice at all, and the decision to prosecute D1 for the more serious offence risks him being acquitted altogether. We should now consider whether cost could be a legitimate consideration in a prosecutor’s decision to make a plea agreement. We think that it could. Consider D3: the prospects of convicting him for assault occasioning GBH are high, but still not certain, and he is willing to plead guilty to the lesser charge of assault occasioning ABH. In this case, we stipulate, were retributive justice the only consideration, the prosecutor should prosecute D3 for assault occasioning GBH: the prospects of convicting him for the more serious offence make it worth risking a complete acquittal. However, resource implications may make it legitimate to make a plea agreement with D3. Prosecuting D2 may still be a priority, in that the prosecutor might reasonably resist giving up on retributive justice altogether, and seek to retain the prospect that at least imperfect justice will be done in all cases. Hence, if there are resources available to prosecute only one of the defendants, it should be D2. Whether sufficient resources remain to prosecute D3 may rightly determine whether the prosecutor should accept a plea of guilty to the lesser charge. Given limited resources, the cost of prosecution can legitimately guide a prosecutor to abandon prosecuting a defendant for a more serious charge, rather than abandoning a prosecution in a case where no agreement is available, hence giving up an opportunity to achieve retributive justice in that case altogether. These arguments are, of course, sound only if the defendant did indeed commit at least the lesser offence: serious injustice would be done if defendants who were guilty of neither offence pleaded guilty in order to escape the risk of conviction for the more serious offence. Given that, we should at first look not to abolish sentencing discounts and other kinds of plea bargaining, but rather to limit and control them, and subject them to proper scrutiny so as to guard against the dangers they create. We cannot embark here on a detailed discussion of the kinds of constraint or control that might be appropriate, but should note a few key points.23 First, we should not look for measures that would guard against the danger of pleas that are insincere as expressions of repentance. There are different views about what counts as ‘sincerity’ in this context. On one

23

See further Ashworth and Redmayne, 2005: 285–96.

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view, a sincere guilty plea would express the defendant’s genuinely repentant recognition that he committed what the polity properly counts as a public wrong. But on the other hand, one might argue that the defendant’s commitment in pleading guilty need be no more personal, no deeper, than the fact-finders’ commitment ought to be in bringing a guilty verdict. The fact-finder, we argued earlier,24 might condemn the defendant whose guilt has been proved beyond reasonable doubt, not in her own personal voice, but in the voice that belongs with her role as a fact-finder within this legal system: so long as she does not regard the system’s rules and offence definitions as unreasonable, she can condemn in the name of the system and of the polity defendants whom she would not condemn when speaking in propria persona as an individual citizen. So perhaps a sincere guilty plea could analogously express, not the defendant’s own personal recognition of what he would count for himself as culpable wrongdoing, but his recognition that he committed what the polity has reasonably and legitimately defined as a public wrong through its criminal law.25 Whichever of these views we take of the guilty plea’s meaning, however, and thus whatever we count as ‘sincerity’ in this context, guilty pleas can obviously be made with full understanding of what they mean, but insincerely. The defendant might see the criminal law, not as a practice which declares and enforces reasonable, legitimate definitions of public wrongs, but as something with which he has to deal as a source of possible obstacles to his enterprises: he realises that his conduct fitted the law’s definition of a crime, and knows that such conduct is regarded as wrongful by other citizens; but his guilty plea is simply a tactical device to secure a benefit for himself; he goes through the motions of pleading guilty, but no more than that. We can predict that the provision of sentencing discounts for guilty pleas makes it more likely that more guilty defendants will plead guilty in that spirit: but that is not a danger against which we should try to build in safeguards. The reason for this lies in the familiar liberal idea that the law should exercise restraint in the extent to which it inquires into the ‘private’ realm of attitudes, feelings and commitments. A liberal legal system typically requires of citizens that they act or refrain from acting in certain ways; whilst the identification of prescribed or proscribed actions inevitably involves reference to the intentions, and sometimes to the practical attitudes, that such actions manifest, the law does not usually inquire into the further reasons for which we do what it requires, or refrain from doing

24

See above, ch 3.2–3.3. One might find the distinction between these two ways of interpreting guilty pleas in Ognall J’s comments on why a guilty plea should attract a sentencing discount: that it ‘is generally perceived as being the most cogent token of remorse and regret’, and that the defendant ‘demonstrates by his plea an acceptance of the justification that he should be punished for his wrongdoing’ (Byrne [1997] 1 Cr App R (S) 165, at 166). 25

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what it defines as criminal. At least in this context, ‘the right deed for the wrong reason’ is a concern of morality, not of the criminal law. Now pleading guilty can be a right deed, if one is indeed guilty, and the provision of sentencing discounts for such deeds reflects the view that they are indeed right: but while their moral worth depends on the reasons for which they are done (and given which they count as sincere or insincere), and whilst they should be recognised by the law as right only because they can have the moral worth that they have when they are sincere, the law should not inquire into those reasons, any more than it should inquire into the reasons for which, or the spirit in which, I pay my taxes or act in accordance with the requirements of a ‘Bad Samaritan’ law. The law should treat the plea as if it is sincere; so long as the offender performs the appropriate ritual of pleading guilty, a ritual whose public meaning is that of recognising one’s guilt, the law and his fellow citizens should be content.26 Second, however, there are other dangers against which a system of plea bargaining must provide safeguards: these concern the accuracy (as distinct from the sincerity) of the plea; the adequacy of the plea in relation to the wrong that was allegedly committed; the defendant’s understanding of the plea and the process of which it is part; and the fairness of the procedure from which the plea emerges. It must be the court’s responsibility to ensure such safeguards: that is why, whilst a guilty plea is a performative rather than mere evidence of guilt, it cannot be dispositive; the court must reach its own verdict of guilty, which might be presumptively warranted, but cannot be conclusively justified, simply by the defendant’s guilty plea. As to accuracy, the court should convict the defendant only if satisfied that he committed the offence to which he pleads guilty: the verdict ‘Guilty’ should still amount to a declaration that it has been proved beyond reasonable doubt that the defendant committed the offence. There is a presumption in favour of taking the defendant’s guilty-pleading word for it that he committed the offence, but that presumption is not proof, since we know that defendants can plead guilty even when they are not. The simplest way to provide such a safeguard would be for the prosecution to present a written summary of the case against the defendant, so that the

26 Analogously, one can see undergoing punishment as a ritual of apology and reparation which offenders will ideally undertake sincerely, because they recognise the need to apologise and to make reparation. As far as the law and their fellow citizens are concerned, however, what matters is simply that they undertake the ritual; the law should not inquire into the sincerity of that undertaking (see Bennett, 2006).

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court can assure itself that there was at least a prima facie case against the defendant on the basis of which there would have been a reasonable chance of conviction.27 As to adequacy, the court must be satisfied that the plea agreement on the basis of which the defendant pleads guilty is in the public interest, which includes the interests of justice. As we have noted, part of what makes a plea agreement reasonable is that there is not too radical a mismatch between the charge that the defendant originally faced or would otherwise face (a charge backed by sufficient evidence to bring it to court) and the charge to which he pleads; but more generally the prosecutor’s decision to accept the plea must be a decision that it is in the public interest to do so, and that decision must be subject to public scrutiny by the court.28 As to understanding, the point is partly that the defendant must be fit to plead, whatever his plea:29 if his plea (whether sincere or not) is to have the meaning that it should have in the trial, he must be able to understand what he is doing—that he is formally admitting his guilt on the criminal charge to which he pleads. But it also matters that the defendant does actually understand the meaning and implications of the charge and his plea, and the alternatives open to him. This too is something that the court must check, by questioning the defendant. In relation to procedural fairness, the key issue is that the defendant is protected against undue pressure to plead guilty—that he is allowed and enabled to decide for himself, in the light of an understanding of the options, whether to plead or not. This is in part a matter of trying to ensure that prosecutors and defence counsel do not bully or pressure the defendant into accepting the offered agreement—which of course raises the question of how that could be ensured. Another safeguard could be that the inducement offered (the sentencing discount, the reduction in the charge) should not be too large.30

27 It follows that ‘Alford pleas’, in which a defendant formally pleads guilty whilst also denying his guilt (see North Carolina v Alford 400 US 25 (1970); above, ch 5 at n 33), should not be allowed. 28 On such decisions, see further 6.4 below. A well-known example of such scrutiny is provided by the trial of Peter Sutcliffe (the ‘Yorkshire Ripper’): charged with the murder of thirteen women, Sutcliffe pleaded not guilty to murder, but guilty to diminished responsibility manslaughter; the prosecution was prepared to accept this plea, but Mr Justice Boreham ruled that he must be tried on the murder charges (on which he was ultimately convicted); see http://www.execulink.com/~kbrannen/trial02.htm. Of course, in that case we may suspect that it was the potential public reaction rather than justice that was on the judge’s mind in rejecting the agreement. 29 On fitness to plead and its significance, see above, ch 3 at n 47, ch 5 at n 11; also RA Duff, 1986: 119–23. 30 See Du Plooy v H M Advocate 2005 1 J.C. 1: the practice of giving a sentencing discount for guilty pleas ‘has to be kept within bounds, so as to avoid discouraging, or appearing to discourage, accused persons from exercising the right to put the prosecution to

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We are certainly not confident that sufficient safeguards could be built into the system to make a practice of plea bargaining acceptable: perhaps McConville’s pessimistic conclusion, that ‘the benefits may be less than claimed and the burdens impossible to avoid’, is more plausible.31 All we have argued in this section is that there are reasons of principle and justice in favour of a practice of plea bargaining (which would reduce the proportion of cases that need to be decided by a contested trial); but that any such practice would need to incorporate strict, court-administered constraints and safeguards, to prevent or at least minimise its abuse. Even if some practice of plea bargaining should be allowed, the constraints that would be imposed on it might well substantially reduce the proportion of cases settled by guilty pleas—which confronts us again with the question of whether our account of the criminal trial could structure a practicable system of criminal law. We turn now to some other ways in which the number of trials might be reduced, without undermining or failing to pay due regard to the importance of the trial as a process that calls alleged public wrongdoers to account. 6.3.

PUNISHMENTS WITHOUT TRIALS

No punishment without a pre-existing law defining the offence for which punishment is to be imposed, the ‘nulla poena sine lege’ slogan tells us:32 but does our account of the criminal trial imply that punishment also requires a prior trial at which the accused is convicted of the charge of criminal wrongdoing? That would commit us to rejecting the various kinds of trial-less punishment that many legal systems allow, disposing of large numbers of offences that would otherwise either go unpunished or require the expense and burden of a trial. One example of such provisions is the ‘fixed penalty’ fine that can be imposed by police or other authorities. In England and Wales, for instance, the police can issue fixed penalty notices for a range of traffic offences, and for an increasing number of other relatively minor offences;33 Scotland has an analogous system of ‘fiscal fines’ imposed by the prosecutor, as do a number of continental European legal systems.34 Such provisions as these might sometimes be better seen as ‘penalties’ than as ‘punishments’—as the proof of the charges against them’ (para 4). But the court still thought that a discount of up to one third could be appropriate (para 26). 31 McConville, 2002: 377. 32 Or, in full, ‘nullum crimen, nulla poena sine praevia lege poenali’. 33 See R Allen, 2002: 168–9; Criminal Justice and Police Act 2001 Part 1; Auld, 2001: ch 9. 34 For Scotland, see P Duff, 1994, 1999. The practice has been extended by the Criminal Proceedings etc (Reform) (Scotland) Act 2007 ss 50–54. P Duff, 1994 discusses analogous provisions in the Netherlands.

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sanctions that lack the condemnatory message of punishment properly speaking:35 this is especially true, perhaps, when the offence consists in the non-payment of a licence fee or tax, and the penalty consists in making an extra payment on top of what is owed—as happens in England for the non-payment of vehicle excise duty, and for some kinds of tax evasion, and as is proposed for the use of a TV without a licence.36 We discuss such penalties in 6.5, and will therefore deal here only with the question of whether fixed penalties or fiscal fines could play a proper role as punishments without trials.37 If they are punishments, they must be imposed for the commission of a public wrong, and must communicate the censure that that wrong deserves: but can this be justified without a trial? A liberal polity’s response to public wrongs, we have argued, should involve not merely the imposition of punishments on those proved to have committed such wrongs, but a process that holds the alleged wrongdoer to account, and calls her to answer for the wrong if she is proved to have committed it. A system of fixed penalties or fiscal fines could, if structured in the right way, meet this demand. Three aspects of that structure are important. First, in the absence of any formal proof of guilt, there must be something analogous to a guilty plea, in which the offender admits her guilt—ie answers for the wrong. Under current provisions, this is required for cautions, but not for fixed penalties or prosecutor fines;38 but if, as we have argued, the proper civic response to public wrongdoing is to hold the offender responsible for it, there must be either something like a conviction or something like a guilty plea. This is not to say that the alleged offender must appear in person before an official to admit guilt—it could be done by letter, or by signing a form; but if these provisions involve punishments for public wrongs, they should also involve a formal admission of guilt. Second, the alleged offender must be freely able to refuse the penalty and insist on being prosecuted (or freed without charge). If the process is to be one that calls an alleged offender to account, she must be allowed to

35

On the distinction between ‘punishments’ and ‘penalties’, see Feinberg, 1970. See R Allen, 2002: 169. Such provisions do muddy the distinction between punishments and penalties. Compare also the provisions for ‘conditional cautions’ in Criminal Justice Act 2003 ss 22–7: the conditions attached to the caution must be aimed at ‘facilitating the rehabilitation of the offender’ and/or ‘ensuring that he makes reparation for the offence’ (s 22.3); it is not clear whether we should see such conditions as punishments, or as alternatives to punishment. We focus here on sanctions imposed by police or prosecutors, but similar issues clearly also arise in relation to those imposed by other kinds of enforcement agency. 38 On fiscal fines, and the similar Dutch provisions for ‘transactions’, see P Duff, 1994: 574; he connects it to the fact that the alleged offender’s acceptance of a fiscal fine does not amount to a criminal conviction which would then give the offender a criminal record, but one can separate the issue of criminal record from that of whether there should be a formal admission of guilt. 36 37

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answer the charge; and her answer might be ‘Not Guilty’. The point is not just that she must be able to challenge the imposition of a financial burden, by denying her commission of the offence for which it is imposed; if the process is to address her (as a penal process should) as a responsible citizen, it must allow her to respond.39 Third, the sanction must be presented as a punishment, not merely as an administrative matter: the fine must not be presented simply as a bill. This requirement is certainly not met by many of the existing provisions for fixed penalty fines, but could easily be met: either by requiring a face to face meeting between the offender and an official, at which the matter can be made clear, or by the terms in which a fixed penalty notice is expressed. Given these three aspects, we need not reject provisions for fixed penalties or prosecutor fines, since they can be ways of calling offenders to account for their offences: the offender must still answer for what she has done, and that answering, while not in public, is to a public official within a public structure; it is still a way in which a polity can call public wrongdoers to account. Such a practice is a lower key process than a trial: it lacks the formal solemnity that a trial still has, even one in a magistrates’ court that involves only a guilty plea and a sentence; it lacks the publicity of a trial, since it is conducted in an office or by letter rather than in a public courtroom. These are reasons for limiting the practice to relatively minor offences—those of which the polity should still take formal and punitive notice, but which are not so serious that they require the full panoply of a trial or a criminal court: relatively minor offences require only a relatively low-key response. We will not try here to work out just how such provisions should be organised or for what offences they should be available; our aim is only to show that they have a proper role in a criminal process that aims to call public wrongdoers to account. But there are two issues on which we should comment briefly here.40 First, such provisions clearly create the same dangers of abuse or misuse as do those for the various kinds of plea bargaining discussed in 6.2. They provide inducements for alleged offenders to admit guilt in order to avoid the burdens of going to court and the risk that they would receive a harsher punishment if convicted in court; they thus create a danger that such admissions will be false or insincere. They serve the interests of

39 This is also required by Art 6(1) of the ECHR: the alleged offender is ‘entitled to a fair and public hearing by an independent and impartial tribunal established by law’. 40 And see ch 9 below on public justice. A further issue concerns the range of available punishments: should such provisions be limited to fines; or could they properly include, if not imprisonment, Community Service Orders or other non-custodial sanctions? If they should be strictly limited, is this just because offences for which harsher modes of punishment might be appropriate are too serious to be dealt with in this way; or because the imposition of some sanctions, notably imprisonment, requires the public formality of a court?

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prosecutors and police who want to dispose of cases expeditiously and cost-effectively; they thus create the danger that alleged offenders will be subjected to undue pressure to admit guilt. Safeguards are therefore needed against these dangers. One such safeguard would be a requirement that the official who is to administer the penalty has evidence of the alleged offender’s guilt—evidence that would suffice to ground a prosecution;41 another would be that the ‘penal discount’, the gap between the severity of the punishment imposed by the prosecutor and the severity of that which a court might impose, should not be too great—though this raises again the question discussed in 6.2 of whether discounts for guilty pleas can be justified.42 Second, what kinds of factor would make it appropriate to take a case to court rather than dealing with it by a fixed penalty or prosecutorial fine? The most obvious factors have to do, first, with the extent to which the alleged offender’s guilt is or is not reasonably assured; and, second, with the seriousness of the alleged offence. If there is room for real doubt about her guilt (which should usually be the case only if she refuses to admit guilt), the prosecutor must either take the case to trial or drop it; if the offence was so serious that it requires the formal public process of a trial, or might require a sentence that can only be imposed by a court, the case must be taken to court. Other factors will fall under the general heading of ‘the public interest’, to be discussed in 6.4, but one is worth noting here: suppose that the victim of the offence wants the case to go to court, and objects to the prosecutor’s decision to impose a prosecutorial fine? Dutch law, for instance, gives the victim the right to ask the Appeal Court to set the prosecutor’s decision aside and order a prosecution:43 but should the victim have any special standing on this issue? There is a general question here about whether and how such prosecutorial decisions should be subject to public challenge and scrutiny—we discuss this in 6.4,44 and there are general questions about the role of the victim in the criminal trial, which we discuss in chapter seven. However, the particular question here concerns the victim’s proper interest in the prosecutor’s decision. An obvious reason why victims might object to the decision to impose a prosecutorial fine is that they see the offence as being more serious than

41 Compare the requirement for conditional cautions in Criminal Justice Act 2003 s 23.2: a prosecutor must decide ‘that there is sufficient evidence to charge the offender with the offence’. 42 Compare R v Metropolitan Police Commissioner, ex parte Thompson [1997] 1 WLR 1519 (see Ashworth and Redmayne, 2005: 163): a formal police caution was quashed on the grounds that offering a caution if the suspect admitted the offence constituted an unfair inducement. 43 See P Duff, 1994: 573, 581–2; many offences dealt with in this way involve no identifiable direct victim. 44 See P Duff, 1994: 581–2.

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that implies; but as we will argue in chapter seven, the victim’s view on the seriousness of the offence can have no special authority. There are other possible reasons for allowing the victim to object, however, including the desire to have one’s day in court—a desire, that is, to see the wrongdoer brought to account, perhaps even to be able to face her in court oneself.45 We might reasonably think that, although the primary interest at stake here should be the public interest, the polity’s interest in seeing public wrongdoers brought to account, the victim does have a special role: it is still in a sense ‘his’ wrong, as its direct victim, although it is a wrong which the whole polity shares; the offender owes recognition of the wrong to the victim not just as a member of the polity, but precisely as the direct victim of the crime. This is not to say that victims should have an overriding right to demand that the case go to court; victims’ claims must compete with other claims and considerations that bear on prosecutors’ decisions. But victims should have a right, distinct from that which any citizen might have, to ask for the case to go to court and to challenge a prosecutor’s decision not to take it to court; that right could be recognised by requiring prosecutors to consult the victim before deciding not to take the case to court, and by allowing victims to apply to a court to review such decisions. We have been concerned in this section with ways in which the criminal process can be curtailed, so that punishments are imposed without the formality of a trial or court hearing. We turn now to ways in which alleged offenders might escape both trial and punishment, by being diverted from the criminal process altogether, or by an official’s decision not to pursue the case.

6.4.

DIVERSIONS FROM THE CRIMINAL PROCESS

Suppose that a prosecutor has evidence that D is guilty of an offence— evidence that could be led at a trial, with some prospect of conviction. She might nonetheless decide not to bring the case to trial, indeed to take no further action within the criminal justice process: what kinds of consideration could justify such a decision?46 The first, crucial question is of course whether there is sufficient evidence to take a case to trial. If the trial is to call a citizen to answer to a charge of public wrongdoing, it cannot be justified if that charge is not supported by sufficient evidence to make it one that requires an answer. A 45 Another concern might be to make it easier to obtain compensation; but that could be met by following the Dutch provision which allows the prosecutor to require the offender to pay compensation as part of the ‘transaction’: see P Duff, 1994: 573; compare Criminal Justice Act 2003 s 22.3, n 37 above. 46 Similar questions will of course arise for the police in investigating a case, and for other enforcement agencies; but for simplicity’s sake we will focus here on prosecutors.

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trickier question concerns what should count as ‘sufficient evidence’: the English Prosecutors’ Code now requires that the evidence be sufficient to ground a ‘realistic prospect of conviction’, which is taken to require not a prediction about what a court might in fact do, but a judgment on the ‘intrinsic merits’ of the evidence as a basis on which to determine the defendant’s guilt.47 Our account of the trial suggests a slightly different way to express the answer (which will also deal with a problem about the test of evidential sufficiency): that the prosecutor should proceed only if the evidence is sufficient to constitute a ‘case to answer’. Given the presumption of innocence, and the burden of proof that it lays on the prosecution, a defendant need offer no answer to the indictment beyond ‘Not Guilty’, until the prosecution establishes a case to answer: until evidence is led on which the fact-finder could reasonably convict the defendant if he does not offer an answer that casts doubt on the evidence or on the inference from the evidence to his guilt. Unless the prosecutor judges the evidence to be of that strength, she therefore has no good reason to call the suspected offender to trial. Even if the evidence is that strong, there might be reasons not to proceed that concern the sufficiency of the evidence: the prosecutor must also consider what evidence or argument the defendant might offer, and might on that basis conclude that there is no realistic prospect of conviction. But the evidence must at least be sufficient to ground a case to answer. Prosecutors must be accountable for such decisions, and there are questions that cannot be pursued here about how they can be held accountable: who should have the standing to challenge their decisions, and in what forum? We should, however, comment on one problem, concerning cases in which someone is known to be suspected of, is perhaps arrested for, or even charged with, an offence, but the prosecutor decides not to proceed on the grounds that there is insufficient evidence to warrant prosecution. If the decision is announced in just those terms, the suspect might reasonably complain that he is left with a cloud of suspicion hanging over him, and argue that he should be prosecuted, so that he can clear his name. Should we, in this type of case, allow citizens the right not merely to answer to a charge when summoned to do so, but also to insist on being charged so that they can then answer the charge in a public court? Our account does not have this implication; indeed, it provides a neat solution to this problem. One objection to allowing any such right to insist on being tried is that it would subvert the presumption of innocence: allowing some suspected offenders to be tried in order to prove their innocence would imply that it 47 See Code of Practice for Crown Prosecutors 2004 paras 5.2–5.5; Ashworth and Redmayne, 2005: 178–84 (with discussion of the different tests of evidential sufficiency at different stages of the criminal process).

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is for suspects to prove their innocence, so that those who do not insist on being tried can be reasonably thought to be quite probably guilty (whatever their reasons for so acting). The solution to the problem is to take the presumption of innocence seriously, and make its implications more explicit. A prosecutor who decides not to proceed because the evidence is insufficient should declare publicly that she is not proceeding, not because the evidence is insufficient, but because the suspect has no case to answer: like a jury bringing in a verdict of ‘Not Guilty’, she should declare in effect that the presumption of innocence is undefeated. Even if the evidence is sufficient to justify prosecution (however we specify sufficiency), the prosecutor might still decide not to bring the case to trial. English prosecutors, operating under an ‘Opportunity Principle’, have a relatively large discretion about whether to bring the case to trial; other jurisdictions, especially in continental Europe, are supposedly structured by a ‘Legality Principle’ requiring prosecution just so long as the evidence is sufficient.48 Given the qualifications and exceptions that are typically attached to the Legality Principle, one might wonder how far this is a genuine contrast in approaches to prosecution,49 although there is still an important difference between an approach of the form ‘You should prosecute unless there is very good reason not to do so’, and those of the forms ‘You must decide whether or not to prosecute’, or ‘You should not prosecute unless there is good reason to do so’. English practice, however, has been moving towards the first approach. Whereas earlier versions of the Crown Prosecutors’ Code held that prosecutions should be brought only if ‘the public interest requires it’, its latest version comes close to declaring a presumption in favour of prosecution: ‘[a] prosecution will usually take place unless there are clear public interest factors tending against prosecution which clearly outweigh those tending in favour’.50 Our account implies at least such a presumption in favour of prosecution: if there is sufficient evidence that a citizen has committed a public wrong, of a kind that merits formal condemnation by the polity, there is good reason to summon him to answer to the charge of committing that wrong, ie to bring him to trial. But it can also allow that there could be good reasons not to bring him to trial. There are three types of prosecutorial decision not to proceed; only one strictly counts as ‘diversion’ from the criminal process, but all raise the same issue of what can count as a good reason not to bring a suspected 48 See generally Jung, 1986, 1993; Ashworth and Redmayne, 2005: 147–8; Sanders and Young, 2007: ch 7. For a clear version of the Legality Principle, see the German Code of Criminal Procedure s 152. 49 See, eg, the German Code of Criminal Procedure s 153(a); Ashworth and Redmayne, 2005: 147–8. 50 Code of Practice for Crown Prosecutors 2004 para 5.7; see Ashworth and Redmayne, 2005: 184.

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offender, against whom there is sufficient evidence, to trial. A prosecutor might just decide to take no further action. She might give a ‘conditional caution’, if the suspected offender admits guilt—a caution to which conditions are attached having to do with the offender’s rehabilitation or with his making reparation.51 Or she might divert the suspected offender from the criminal process to another process, for instance to psychiatric treatment if he seems to require it, or to a drug treatment programme, or a restorative justice programme (on which we comment in chapter ten), without the formality of a conditional caution. Neither of the first two decisions are, strictly speaking, to divert a suspected offender from the criminal process: the first is simply a decision to abandon that process; the second marks a kind of completion of that process that averts the need for a trial.52 In all three kinds of case, however, we must ask how it could be right not to bring to trial a suspected offender against whom there is sufficient evidence of guilt. The prosecutor is required to attend to ‘the public interest’: but what does that mean? The central point to notice here is a simple one. The ‘public’, the polity’s members, have a proper interest not just in identifying and punishing offenders, but in calling alleged public wrongdoers to account. That interest generates reason, as a matter of justice, to prosecute suspected offenders against whom there is sufficient evidence. Such demands of justice can be insistent, especially in relation to serious crimes, but are not plausibly seen as absolute—as demands that must be satisfied, come what may. Some such demands, for instance that we refrain from committing serious injustice, might be thus absolute, but that is not a plausible reading of the demand that we call suspected public wrongdoers to account. A prosecutor who takes that demand of justice appropriately seriously might still see good reason not to satisfy it, and might therefore act properly in dropping a case. What could count as such a good reason, reflecting some aspect of the public interest? Some reasons might still be matters of criminal justice, broadly understood. If it is clear to the prosecutor that, given the nature of the offence or such mitigating circumstances as obtain, a trial, formal conviction and sentence would be disproportionately burdensome, she could decide that to pursue the case would not serve the public interest in doing justice to offenders.53 If the demands of criminal justice can be

51 See Criminal Justice Act 2003 ss 22–7; Ashworth and Redmayne, 2005: 159–61. We cannot discuss police cautions here: see Ashworth and Redmayne, 2005: 148–9, 151–9. 52 Whether or not such conditional cautions count as punishments (see n 37 above), the process has the same relationship to conviction and sentencing in court as a prosecutorial fine has to a judge’s sentence in court. 53 This is how Ashworth and Redmayne (2005: 185–6) plausibly interpret para 5.10 of the Code of Practice for Crown Prosecutors 2004. Some of the considerations listed there as arguing against prosecution, in particular those concerning the defendant’s health, could be

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satisfied, as we argued in 6.3 they can sometimes be satisfied, by something like a prosecutorial fine or conditional caution, a prosecutor might reasonably see no need to call the offender formally and publicly to account in a criminal trial. But there may also be cases in which the demand that suspected wrongdoers be called to account, and the demands of criminal justice more generally, conflict with other values independent of criminal justice—and may be outweighed by them. One kind of case does not figure in the English prosecutors’ code, presumably because it will typically be dealt with before the question of prosecution formally arises. This is the situation where, given the relative triviality of the offence, prosecution would be unreasonably expensive in resources.54 Such cases would normally be disposed of, for instance by a formal or informal police caution, before they even reach a prosecutor’s desk. But para 5.10 of the English code mentions two other kinds of situation in which a case might be dropped: that ‘a prosecution is likely to have a bad effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence’; or that ‘details may be made public that could harm sources of information, international relations or national security’.55 Whether the first factor is quite independent of the demands of criminal justice depends in part on how we should understand the victim’s role in criminal justice: if the trial as a process of calling a wrongdoer to account is something that the polity owes to the victim, then its effect on the victim’s well-being is a consideration within rather than independent of criminal justice, and the conflict between the victim’s well-being and the demand to bring the offender to trial is a conflict within the broad realm of criminal justice. We cannot pursue the discussion of what kinds of public interest, from within or outside the realm of criminal justice, could outweigh the demand that alleged public wrongdoers be called to account (a demand which itself reflects a significant public interest): that discussion would require a detailed examination of the proper interests of a liberal polity, and of their relative importance. Our point is simply that while the public interest in calling alleged public wrongdoers to account generates a strong demand

portrayed as favouring mercy; but we need not embark here on the vexed issue of whether mercy is an aspect of, or distinct from, justice (for recent discussions, see Nussbaum, 1993; Tasioulas, 2003, 2006; Bennett, 2004; RA Duff, 2007). 54 Insofar as the expense (material or non-material) would fall on the offender, such cases would fall under the ‘disproportionately burdensome’ description; but the costs of prosecution are also relevant. 55 The decision in 2006 not to pursue the criminal investigation into the alleged bribery of members of the Saudi royal family in order to secure a lucrative arms contract provides a recent, controversial illustration of the ‘national security’ dimension of the ‘public interest’; of particular interest is the widespread though by no means universal view that the ‘public interest’ encompasses matters of national security, but not such matters as large-scale job losses if the contract was lost. See The Guardian (16 December 2006) 1, 4–5.

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that suspected offenders be brought to trial, that demand is not categorical: it can be outweighed by other demands grounded in the public interest; prosecutors can sometimes rightly decide not to proceed with the prosecution of a suspected offender against whom there is sufficient evidence. What is also of course true, for decisions not to proceed just as for decisions to impose a prosecutorial fine, is that prosecutors must be accountable. They are meant to be acting in the public interest, on a matter in which the public has a significant interest—whether an alleged public wrongdoer should be brought to trial. There must therefore be a mechanism through which they can themselves be held to public account for their discharge of that responsibility. As a part of that mechanism there must be a requirement to give reasons for decisions not to prosecute, since only when reasons are given can others either realise that the decision was reasonable, or identify grounds on which to question it.56 There must also be a formal procedure (judicial review is the obvious possibility) through which citizens with a proper interest in the case can challenge the prosecutor’s decision. This is not to suggest that any concerned citizen should be able to ask a court to second guess the prosecutor, and overturn decisions with which the court disagrees; only that there must be provision for judicial review, and for the quashing of prosecutorial decisions that are demonstrably unreasonable. Prosecutors have a responsibility to call others to account, to hold others responsible, for their alleged public wrongdoing; they must themselves be accountable for their discharge of that responsibility—both to those most directly affected by their decisions, and to the wider polity in whose name they act.

6.5.

NON-CRIMINAL REGULATION

Another way in which criminal offences, and those who commit them, can be diverted from the criminal process—thus averting the need for a trial—is to ‘decriminalise’ the conduct that constitutes the offence: not by removing it from the sphere of legal regulation altogether, but by removing it from the realm of criminal law to a realm of non-criminal regulation. German law provides a clear example of this strategy. The 1968 Regulatory Offences Act transferred various categories of offence (including a range of road traffic offences) from the criminal law to a regulatory regime: what had been crimes (Straftaten) became regulatory infractions 56 This has been an issue in high profile cases such as the murder of Stephen Lawrence, and also arises particularly in relation to cases of rape and sexual violence: Macpherson, 1999; on prosecution of sexual assault see Kelly, 2002. See generally Ashworth and Redmayne, 2005: 202, and more generally 161–4, 201–3; Sanders and Young, 2007: 372–80.

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(Ordnungswidrigkeiten), and financial sanctions that had been fines (Geldstrafen) now became administrative penalties (Geldbussen).57 The material substance of a citizens’ dealings with the state when she pays a regulatory fine for an Ordnungswidrigkeit, and when she pays a prosecutorial fine for a minor criminal offence, may seem almost indistinguishable. In both cases, a legal official determines that she has broken a legal rule, for which the law specifies an appropriate penalty that the ‘offender’ is required to pay; in neither case does this determination and penalisation of a breach of the rule constitute a conviction that gives the ‘offender’ a criminal record; in both cases, the ‘offender’ can challenge the imposition of the penalty, and secure a hearing in a court. We thus face two questions. First, is there any substantive difference between prosecutorial fines for minor criminal offences, and administrative fines for Ordnungswidrigkeiten: does it matter whether conduct is classified as a criminal offence dealt with by a Geldstrafe, or as an Ordnungswidrigkeit dealt with by an administrative fine Geldbusse? Second, can theorists who portray the trial as a calling to account avoid the need for impracticably many trials by arguing not just—as we have argued—that relatively minor criminal offences can be dealt with by prosecutorial fines, but that we should reclassify various minor criminal offences as regulatory offences? The European Court of Human Rights discussed a version of the first question: it had to decide whether someone accused of an Ordnungswidrigkeit is facing ‘a criminal charge’, or being ‘charged with a criminal offence’. If he is, the process counts as a criminal process, and he is entitled to the protections laid down in Article 6 of the European Convention on Human Rights, including the rights to a ‘public hearing by an independent and impartial tribunal established by law’, and to ‘the free assistance of an interpreter’.58 The Court insisted that, whilst the state’s formal classification of the offence was relevant to determining whether it should count as a criminal offence, this could not be dispositive: states could not avoid the Convention’s demands simply by a formal reclassification of the offence as ‘non-criminal’. Two further considerations—the nature of the offence, and the nature and severity of the penalty that could be imposed—were

57 Gesetz über Ordnungswidrigkeiten (1968; consolidated in 1975); there had also been an earlier Gesetz über Ordnungswidrigkeiten in 1952. For a useful introductory (and critical) discussion, see Weigend, 1988. 58 See Öztürk v Germany (1984) 6 EHRR 409 (An administrative fine of DM 60 was imposed on Mr Öztürk for causing an accident—colliding with a parked car—by careless driving; the issue was whether it violated his Article 6 rights also to charge him the interpreter’s fee of DM 63.90). See also Lauko v Slovakia (2001) 33 EHRR 40, on a similar question about ‘minor offences’ in Slovakian law.

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crucial;59 in their light, the Court held that Mr Öztürk was charged with a criminal offence, and was therefore entitled to the free services of an interpreter. The Court thus held that, whatever the formal distinction between crimes and regulatory offences, between criminal and administrative fines, there was from the perspective of human rights no substantive difference between them: those who were accused of and penalised for either kind of ‘offence’ should have the same procedural rights. The reason for this was not simply that administrative fines can be as materially burdensome as criminal fines, and that those on whom such burdens are imposed should have the same procedural rights in resisting them. Tax demands can be as materially burdensome as criminal fines; psychiatric detention for treatment or protection can be as burdensome as imprisonment: but it is not suggested that Article 6 applies to those liable to such burdens. To clarify the issues here, and the question of whether a genuinely non-criminal system of regulatory offences and administrative fines is a viable alternative to criminalisation, we need to be clearer about the substantial implications of classifying conduct as a regulatory or administrative offence rather than as a criminal offence. We can begin with the implications of classifying conduct as Ordnungswidrigkeit rather than Straftat, but then generalise from this specific example to a broader conception of non-criminal regulation. The three main features of Ordnungswidrigkeiten are that they do not attract the formal condemnation that attaches to crimes: the conduct must be ‘rechtswidrig’ (unlawful) and ‘vorwerfbar’ (reproachable), but the ‘Schuld’ (blameworthiness) that crime requires is not necessary.60 Second, regulatory offences can be penalised only by administrative fines, which are formally distinct from criminal fines.61 Third, although the alleged offender can formally object to the fine, in which case the matter is decided by a criminal court, the procedure is in various ways simpler than that of a criminal trial: neither defendant nor prosecutor need attend, evidence can be taken in writing, and the rules of evidence are relaxed.62 From these three features, we can generate a broader conception of regulatory offences. First, whether a ‘regulatory offence’ is morally wrongful or not, it does not attract the formal condemnation from the polity whose law it is: a rule has been broken, and the penalty must be paid, and

59 See Öztürk v Germany [1984] 6 EHRR 409, 421 (para 50), citing Engel v Netherlands (1979–80) 1 EHRR 647, 678–9 (para 82). 60 See Gesetz über Ordnungswidrigkeiten (1968/1975) s 1; Weigend, 1988: 71–2. 61 However, someone who wilfully fails to pay a Geldbusse can be imprisoned for up to six weeks (OWiG s 96). In the case of serious and persistent breaches of the road traffic regulations, the offender can also be disqualified from driving for up to three months (Strassenverkehrsesetz (1982) s 25). 62 See Weigend, 1988: 80–81.

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that is all there is to it. The point of the administrative procedure is not to condemn wrongdoers or hold them responsible for their wrongdoing; it is simply to assign the penalties to those who have incurred them. Second, the content of the penalties, their material mode, must be apt for their role. Their primary purpose is to act as disincentives—to reduce the incidence of the prohibited conduct by making it more costly.63 Imprisonment and other more intrusive penalties are also strong disincentives; but we might allow only fines for regulatory offences, partly because the imposition of more onerous penalties would require a more stringent procedure (see below), and partly because of their meaning. Fines can be imposed and understood as morally neutral penalties in this context; but it is hard to see the meaning of freedom-constraining penalties such as imprisonment or Community Service Orders as anything other than condemnatory.64 We will therefore define as regulatory offences only those for which a fine or a similarly non-intrusive penalty will be appropriate: assuming that a principle of proportionality between offence and penalty still applies, regulatory offences will therefore be relatively non-serious. Third, if offenders face neither the moral burden of public condemnation, nor penalties that impinge on their person or freedom, we might simplify the procedure for imposing such penalties, and weaken offenders’ procedural protections. The procedure must enable alleged offenders to object to the finding that they broke a rule, or to the penalty imposed; even if the penalty is initially imposed by an official without a formal hearing, there must be a process through which objections can be justly (and efficiently) dealt with. But that process need not be conducted in public; there seems less need for such formalities as an appearance in person by the defendant or oral confrontations with witnesses (which make sense in a procedure that calls a citizen to answer a charge of public wrongdoing), or for the full range of procedural protections that apply to criminal trials. Many of those provisions protect the innocent against the dangers of being mistakenly convicted and condemned as wrongdoers: whilst we should also protect citizens against the danger of being required to pay administrative fines to which they are not properly liable, that danger warrants less in the way of protection. We might now be tempted to distinguish regulatory offences more sharply from criminal offences, for the sake of efficiency. We can note two possibilities here. First, if criminal offences attract formal condemnation as wrongs, it matters both that the conduct defined as criminal is wrongful in a way that

63 They might also deprive the offender of any profits he gained from breaking the rule, or make him bear part of the cost of whatever harm he caused; Weigend, 1988: 77–8. 64 See n 37 above; RA Duff, 2001: 143–55. Although, of course, the imposition of a fine might also be used to express condemnation: it is not determinative of the question.

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can count as a ‘public’ wrong,65 and that only those who are culpable in committing that wrong are liable to be convicted for it. Criminal offences should therefore be so defined as to require a substantive ‘fault element’, and factors that negate fault should be recognised as defences: that is why strict liability offences are objectionable in criminal law.66 Once we remove the element of condemnation, however, we may see less need for such constraints: we can define offences in broad terms, to ensure that they cover the conduct we want to dissuade, even if they also capture conduct that is not wrongful (so long as citizens can know what conduct will be penalised); and though we should still worry about imposing penalties on citizens without giving them a ‘fair chance’ to avoid being penalised,67 the imposition of strict liability is less objectionable—especially if the penalties attach to conduct in the course of activities that are themselves optional, so that citizens can avoid the penalty by avoiding the activity.68 Second, the mistaken imposition of an administrative fine does not convict or punish the innocent. Insofar as the demanding burden of proof laid on the prosecution in criminal trials reflects a concern to protect the innocent against the injustice of being wrongly convicted and condemned, we might see less need to impose it in the context of regulatory offences: why should we not lighten the burden of proof that is laid on the ‘prosecution’ if this would serve the ends of efficient administration (and reduction of undesirable conduct)?69 Could such a system of regulatory offences and administrative fines play a legitimate role among the state’s techniques for controlling conduct? If so, we could maintain our normative account of the criminal trial as a process of calling to account without having to argue for an impracticable increase in the number of trials, or for the complete deregulation of too much undesirable conduct: we could argue that many existing, relatively minor offences which are formally classified as criminal should be transformed into regulatory offences, for which we need not provide criminal trials. There are clear practical advantages to a system of regulatory offences. From the state’s perspective, this is a more efficient way of applying penalties to offenders. It averts the costs of a criminal trial; and while it lacks the symbolic power of a trial, and the possible dissuasive power of the stigma of appearing in a criminal court, it offers a quick and efficient means of penalising and thus reducing the undesired conduct. From the 65

See above, ch 3 n 55 and accompanying text. For useful discussions, see Simester, 2005a. 67 See Hart, 1968: chs 1–2. 68 See Ogus and Abbot, 2002: 298; Weigend, 1988: 72. Arguments for strict liability in English criminal law often appeal to the ‘quasi-criminal’, non-stigmatic nature of the offences involved: see Simester, 2005b. 69 See, eg, Ogus and Abbot, 2002: 294, 296. 66

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offender’s perspective, there are also benefits: she has less protection against mistaken penalisation, but she can avoid the costs of a court appearance, and whatever pain or stigma that would involve; instead of facing public condemnation in open court, she can pay her debt discreetly by a cheque. Some think that such practical considerations are all that matter: we should determine the proper role (if any) of a system of regulatory offences by a cost–benefit analysis. If our aim is to reduce the incidence of certain types of harmful or otherwise undesirable conduct, and if a system of legal rules would serve that end because the threat of sanctions by which the rules are backed would provide prudential incentives for obedience,70 we should decide what kinds of rule they should be—criminal or regulatory—by asking which would offer the most cost-effective means of reduction. The calculations will be complex, but we will probably find a significant role for a system of regulatory rules, which are far less costly to administer.71 However, even leaving aside the difficulty (or impossibility) of including such moral factors as the ‘cost’ of false criminal convictions into a comparative calculus of costs and benefits,72 this approach is inadequate: we must ask about the moral significance, not merely about the economic costs, of each kind of process. In deciding that Ordnungswidrigkeiten (of the kind that Mr Öztürk allegedly committed) constituted criminal offences for the purposes of Article 6, the European Court focused on the nature of the offence, and the nature and severity of the penalty that could be imposed. We will not try here to reconstruct the Court’s reasoning (which was neither perspicuous nor unanimous) but will try to show why this is the right way to approach the question of whether there is a proper role for a system of non-criminal, regulatory offences. The nature of the offence matters from two perspectives: that of the polity that defines it, and that of the citizen who is penalised for it. We must ask first whether, although administrative penalties do not condemn in the way that criminal convictions and punishments condemn, regulatory offences must be wrongs: is the conduct’s moral wrongfulness is a necessary condition of its prohibition, as it is for its criminalisation? Mr Öztürk’s conduct was clearly wrongful: careless driving is wrongful, as endangering others, independently of any legal regulation. More generally, we suggest that moral wrongfulness should be a necessary condition of

70 Either as direct deterrents, or as useful weapons in the negotiations over compliance that characterise many regulatory agencies’ dealings with the corporations whose activities they regulate (see Hawkins, 2002). 71 See Ayres and Braithwaite, 1992; Ogus and Abbot, 2002. 72 Compare eg Ogus and Abbot, 2002: 293, who fail to take this problem seriously.

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regulatory penalisation. This is not to say that moral wrongfulness is a necessary condition of legitimate state prohibition: the state might have good reason to regulate conduct that is not independently wrongful—for instance to solve coordination problems, or to specify procedures for certain activities. We must ask, however, what could justify the state not only in creating such regulations, but in penalising those who break them. If the penalties could be seen simply as taxes on the conduct, or as a pricing mechanism; if their message was ‘You may act thus, so long as you pay for it’: the conduct need not be wrongful—and that is how administrative penalties are often seen, and perhaps used. But that is not how they are portrayed in the German Ordnungswidrigkeiten law, or by any system which talks of penalties for breaches of prohibitions: their message is that citizens ought not to act thus, ie that they have good reasons not to act thus—whether those reasons are prior to or consequent upon the legal regulation. Of course not all ‘oughts’ are moral ‘oughts’, not all reasons are moral reasons. But the state’s demand that its citizens obey such regulations must be grounded in a moral claim: that those regulations serve some aspect of the common good, and that citizens therefore owe it to their fellow citizens to obey them. More work is needed show how breaches of such regulations can be morally wrongful if the conduct is not wrongful prior to the legal regulation, but we cannot embark on that task here:73 our claim here is only that unless such wrongfulness can be shown, the conduct cannot justifiably be penalised, even if that penalisation is not formally criminal. To say that penalised conduct must be morally wrong is not yet to say that its wrongness must be the formal focus of the penalisation: one could argue for a system of morally neutral penalties which did not condemn the conduct. A system of criminal law should aim not just to prevent publicly wrongful conduct, but to condemn it as wrongful: we show our collective civic commitment to the values that underpin the law, we treat victims and offenders with the respect due to them, by taking wrongdoing seriously—in part by providing formal responses which take due note of that wrongdoing.74 That is why it would be intrinsically inappropriate (not merely consequentially ineffective) to treat rape as a regulatory offence: the law should condemn rape as a wrong. From the polity’s perspective, however, we might think that there is less need to provide for the formal condemnation of wrongs that are much less serious. We might still have good reason to penalise the conduct in question, in order to assist the safe and stable functioning of society; but we have less reason to condemn it

73 Which is the task of making sense of ‘mala prohibita’: see SP Green, 1997; RA Duff, 2002a; for criticism, see Husak, 2005. 74 This issue is crucial to the debates about ‘restorative justice’: see further ch 10.3 below.

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formally—which might then seem to warrant dealing with it in noncondemnatory terms as an Ordnungswidrigkeit that is to be sanctioned only by a morally neutral administrative penalty. But we must also consider the agent’s perspective:75 does a system of regulatory offences communicate the right kind of message to him? A liberal state should deal honestly with its citizens. One implication of that requirement is that it must be ready to justify its demands to its citizens by appeal to the very reasons that ground those demands; the reasons for action that it offers its citizens should match the reasons that justify its attempt thus to guide their conduct. Now the penalisation of regulatory offences is, as we have seen, justified partly by their wrongfulness: breaches of the regulations are justifiably penalised only because they are wrongful. The message which penalisation communicates to citizens must, therefore, include that wrongfulness; the reasons the system of rules and penalties offers citizens for obeying the rules must include the wrongfulness of disobeying. But if those sanctions are imposed as morally neutral penalties; if the formal response to a breach of the rules involves no formal condemnation of that breach as a wrong: that message cannot be communicated, and the only reasons given for obedience are prudential reasons to do with avoiding the penalty.76 This leads to the second factor that exercised the European Court: the nature and severity of the penalty that breaches of the regulation attract. One point here is that the more serious the penalty, the more reason there is to give alleged offenders the protections in Article 6, ie to treat the proceedings as dealing with a ‘criminal charge’; but there is more to it than that. We must also ask whether the penalty is intended to be ‘punitive’: which presumably means that we must ask whether it is supposed to be imposed and understood simply as a neutral payment that is required for a breach of the rule; or rather as expressing a condemnation of that breach. The argument sketched in the previous paragraph provides an answer to this question: if the state is to deal honestly with its citizens, the penalty imposed should be in this sense punitive, and should thus be understood as a criminal punishment. This implies that the law should not include a distinct category of Ordnungswidrigkeiten, ‘merely regulatory’ offences; if conduct should be legally prohibited and penalised, it should be criminalised.77 This is not to

75 And, though we cannot deal with this here, that of anyone directly affected by the penalised conduct, such as the owner of the car that Mr Öztürk damaged. 76 Compare the arguments against a purely deterrent system of criminal punishment, based on the kinds of reason that it offers to, and the terms in which it addresses, citizens: RA Duff, 1986: ch 6; von Hirsch, 1993: ch 2. 77 This is true, at least, when dealing with individual offenders. It could be argued that matters are different in dealing with corporations: that there is less room or need for, indeed less sense in, moral condemnation of corporate activities, and that what is needed is an

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say that those who have committed, or who are suspected of having committed, such offences must always be called to answer to a criminal charge in a criminal court: many offences that German law counts as Ordnungswidrigkeiten could, as we argued in s 3, instead be dealt with by prosecutorial fines or fixed penalties. The crucial point about such sanctions is that they are still criminal punishments which condemn the offence as a wrong: that condemnatory aspect might not be highlighted, it might indeed be concealed by, the current administrative processes through which they are imposed (though for many of us, receiving a fixed penalty notice for speeding which we pay by post still has its condemnatory aspect); but it is there, and should be explicit. Since these are criminal offences, and receive criminal punishments, they can be taken to a criminal court, either by the prosecutor (because the offence is serious), or by the defendant (if he wants to challenge the finding or guilt or the punishment): the process is continuous with the criminal trial itself.78 We can thus argue both that the criminal trial should be a public process which calls alleged wrongdoers to account, and calls proved offenders to answer for their wrongdoings; and that our criminal process should (given suitable procedures and safeguards) make more use of prosecutorial fines and fixed penalties. (There is another contemporary device for subverting the criminal law and the criminal trial that we cannot discuss here: the Anti-Social Behaviour Order (ASBO), which deals initially with alleged ‘anti-social’ behaviour not by a criminal trial and conviction, but by a non-criminal process resulting in the imposition of an ASBO; the ASBO is supposedly not a punishment, but breaches of the order constitute criminal offences.79 There are persuasive objections to this kind of preventive technique, at least in anything like its present form:80 for our purposes, the salient point is that the procedure for imposing an ASBO treats the allegedly anti-social agent not as an alleged wrongdoer who should be called to answer for his anti-social conduct (ie who should be charged with and tried for a criminal offence of anti-social behaviour), but as a difficult or disruptive subject who must be controlled. By thinking about what is wrong with the ASBO procedure, we can see more clearly the importance of the criminal trial, as

efficient system of administrative regulation to maximise compliance with appropriate procedures. We cannot discuss such arguments here. 78 Thus although we will need to specify the range of offences for which prosecutorial fines or fixed penalties could be imposed, we will not need to draw a sharp general distinction of the kind that must be drawn between Ordnungswidrigkeiten and criminal offences: compare Weigend, 1988: 91–3. 79 See Crime and Disorder Act 1998 ss 1–4; Anti-Social Behaviour Act 2003 s ; Anti-Social Behaviour etc (Scotland) Act 2004. Home Office 2002. See also R (McCann and others) v Crown Court for Manchester and anr; Clingham v Kensington and Chelsea Royal London Borough Council, [2003] 1 AC 787. 80 For discussion see Simester and von Hirsch, 2006; Farmer, 2006.

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a process that addresses the defendant as a citizen and as a responsible agent, who must answer to his fellow citizens for his alleged wrongdoing.) We have aimed in this chapter to defend our account of the criminal trial against charges that it is at best utterly impracticable, since if we took the trial as seriously as we have argued it should be taken, we would have to bring most criminal cases to a full trial. In response, we have argued that there are various ways in which, on our account, trials can be acceptably and properly avoided—not merely by decriminalising quite a lot of conduct that is now criminal (although we should not underestimate the independent importance of that strategy), but also by providing for a suitably structured and controlled system of prosecutorial fines or fixed penalties, and by allowing that prosecutors (and other enforcement officials) can sometimes for good reason decide not to pursue the prosecution of someone against whom they do have evidence sufficient to constitute a case to answer. We would not try to predict whether, if the kinds of provision that we have suggested were fully implemented, the result would be an increase or a decrease in the number of contested trials; but we are confident that it would not lead to such a massive increase as to make the system unworkable.

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7 Communicative Participation 7.1.

INTRODUCTION

I

N THE FIRST part of the book we defended a model of the criminal trial which rests on the claim that the trial ought to seek knowledge through communicative participation. Guilty verdicts, we argued, should express not only truth but knowledge, knowledge gained through a proper participatory process. We grounded that model in the normative concerns that arise from a historical investigation of the criminal trial in England and Wales, and in an investigation of the appropriate processes and claims that are central to the general practices whereby people hold each other responsible for their conduct. In this chapter we revisit some of the questions of participation that we began to address in chapter four to provide answers to those questions, as well as addressing a range of other issues concerning participation. The ideal of communicative participation regulates the communicative roles and obligations of defendants, prosecutors, complainants, witnesses and decision makers. Outlining these roles adequately is essential to realising the model of communicative participation in practice. We begin by developing our account of communicative participatory norms a little further than we have in previous chapters. What constitutes participation in the trial? Is it a requirement, for participation, that a person speaks; or is contributing through representation adequate; or is it even sufficient that the person is merely present? What about those who speak in an unhelpful way, or who deny the standing of the court by turning their back on it? Are they participating in the trial, or is their gesture a refusal to participate? As we shall see, what counts as participation depends on the proper aims of the trial. From that discussion, we will consider the role that various different participants ought to have in the trial. First, consider the defendant. In England and Wales, the obligations on defendants to participate in the criminal process are very limited indeed. It is regarded as a central principle of criminal trials that the defendant can sit back and wait for the prosecution to prove the case against him. Not only are there few legal obligations to participate, there is also a powerful culture which discourages participation in practice. Research has shown that much of the case

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for the defence is constructed by defence counsel with little control or even understanding on the part of the defendant.1 In our conception, the defendant is called to answer a charge, and if he is criminally responsible, to account for his conduct. What does that conception imply about the absence of sanctions for the defendant’s failure to participate? And what, if anything, does it imply about the culture that should be developed in criminal trials with respect to direct participation by the defendant? We will address these questions in 7.3. In 7.4 we consider the role of the complainant. It is a common criticism of criminal trials in England and Wales that the ‘victim’, or as we prefer, the complainant, is marginalised by the criminal trial. This is the motivation behind a number of recent developments in criminal justice from Victim Impact Statements to restorative justice conferences which aim to re-position the victim as one of the central agents in the process. Such reforms are in turn criticised, however, for failing to understand the properly public nature of criminal wrongdoing, and the institutional consequences that follow from that. We will show how a proper understanding of the public nature of crime need not marginalise the victim. On the contrary, we argue that wrongful behaviour often ought to be treated as a public concern, and in consequence as a criminal wrong, precisely because of its impact on the victim. This has consequences for the role that complainants ought to play in criminal trials. Another central issue is the degree of participation by decision makers, a factor which is itself often taken as one of the criteria for distinguishing between adversarial and inquisitorial systems. It is generally thought that inquisitorial systems give decision makers a greater degree of participation than do adversarial systems. Decision makers in the former systems have primary responsibility for the development and management of the case as a whole. In adversarial systems by contrast, decision makers traditionally play a passive role. In 7.5 we argue that the participatory model of criminal trials encourages active decision makers who ask questions of the accused and respond to evidence during the trial. However, as Schäfer and Weigend have suggested, this is consistent with both inquisitorial and adversarial models of the trial.2 We argue that there are not only powerful epistemic reasons to encourage active decision makers, as Schäfer and Weigend show, but there are also deeper reasons concerning relations of responsibility between participants in the trial that motivate that idea, and that this can provide further reason for scepticism about the utility of the adversarial/inquisitorial distinction. We conclude that a model of communicative participation favours neither an adversarial nor an inquisitorial

1 2

We discuss the historical origins of this in ch 2.4 above. Schäfer and Weigend, 2006.

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system but might be realised in different ways in different systems. Whilst the division of labour between different roles in the trial differs between adversarial systems and inquisitorial systems, the same set of norms of communicative participation could inform each. Consequently, such norms could provide standards for the critical scrutiny of either kind of system.3

7.2.

WHAT IS PARTICIPATION?

In general, we might say that a person participates in an activity only insofar as he or she intends a positive contribution to the ends of that activity. This formulation is, at first sight, attractive. It suggests that participation in an activity often does not require one actually to contribute to its success, so long as one intends to do so. An individual who intends to hinder the ends of an activity, however, cannot be said to participate in it. For example, a person does not participate in a political rally if they drive their car through it in order to hold up the rally. By contrast if they intend to contribute to the rally’s success by driving their car in it, but in fact hold it up, they do participate in it. That might be an example of unhelpful participation, but it is participation nevertheless. However, it might be argued that even this formulation is insufficient to capture some cases of participation in the criminal trial. For we might say that whether a person participates in an activity depends on the ends that it might have rather than on the ends that it in fact sets itself. This suggests a model of participation that can also accommodate those actions which are designed to alter the ends of an activity. Take a forum which is to decide entry into University based on academic merit. A person who argues that diversity as well as academic merit should contribute to the criteria for admission participates in that forum even though that person does not intend to be directly involved in the activity of selecting on the basis of academic merit. How then might this account deal with the controversial case of those who call into question the legitimacy of the trial? Consider the interventions of Nanni Ballestrini in his trial, as discussed by Christodoulidis.4 Ballestrini responded to the criminal accusations against him by questioning whether there were any shared norms between himself and the judge such that communication would be possible. He reiterated his political 3 See J Jackson, 2005 arguing that this is the model of a fair trial that infuses the jurisprudence of the European Court of Human Rights, and that this model can be realised across adversarial and inquisitorial jurisdictions. cf the more sceptical analysis of the European Court advanced in Summers, 2007. 4 Christodoulidis, 2004: 182. See also Christodoulidis and Veitch, 1997 (on the BaaderMeinhof trial) and Lahav, 2005 (on the Chicago Conspiracy trial).

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commitments rather than communicate about, or respond to, the immediate charge. The judge, Christodoulidis suggests, responds to Ballestrini by attempting to accommodate his claims within legal discourse. In his account, Ballestrini’s text has served to introduce [an ideological] displacement from the activist’s perspective, manifested in a confrontation that never quite becomes one, a series of elisions, non sequiturs and failures to register any of the protestations and objections. At the same time, the judge is forever reinstating the supremacy of the legal idiom, forever realigning the activist’s idiom to the prescriptions of a second order language.5

Is Ballestrini participating or not? The defendant who merely refuses to acknowledge the court, say by turning his back on it, is perhaps not participating in the process, but is merely denying its authority. On the other hand, a model which allows the defendant’s political and moral concerns to register, even if they cannot alter the verdict, might count such actions as a form of participation. Certainly, it is not necessary to all forms of participation that one be active. Consider an electoral system in which voting is compulsory. A person who abstains from voting nevertheless participates: abstention may have meaning and significance. Similarly, we might say that the defendant who refuses to speak after the case for the prosecution might be indicating merely that the prosecution has failed to prove its case, and that therefore nothing needs to be said to secure an acquittal. Silence thus communicates, and is a form of participation. Clearly, then, participation may take different forms, and we need to ask which are most appropriate to the trial. We should surely be interested in securing good, fruitful and positive participation—given suitably inclusive interpretations of these evaluative concepts, and certainly, as we noted in chapter five, some forms of participation are rightfully excluded from the trial. There is no reason to protect the participation of, say, the white supremacist who denies the legitimacy of a charge on the grounds that it is based on unfounded racial equality. It might even be legitimate to hold a white supremacist who persists in making such statements to be in contempt of court. Furthermore, it must be recognised that criminal trials are often emotionally charged, and that participants in the trial may be afraid of each other or dislike each other intensely following the events and/or the accusation. That militates in favour of creating more rigid participatory norms at the trial than one might in the political arena, where it is perhaps more likely that one will see a degree of mutual respect between participants. Whilst the mutual respect between participants in the trial is to be hoped for and encouraged, it cannot reasonably be expected 5

Christodoulidis, 2004: 182.

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as a matter of psychological fact about the participants. The norms governing the conduct of the trial should, however, require mutual respect as a formal feature of its processes. However, with the previous two comments in mind, we also might wish to secure and value participation even if it seems unhelpful. As accounts of participatory democracy have shown, participatory models of institutions should, within generous limits, not make strict distinctions between the forms of participation which might be considered helpful or appropriate and those which are not. The goods secured by participatory models are partly reliant on allowing scrutiny of participatory norms themselves. In other words, it should be open to participants to question the validity of the participatory ground rules themselves. We said something in chapter five about the extent to which this is also true of criminal trials, where there is a balance to be struck between ensuring that there are legitimate norms and principles of participation, of the kind that we outline below, and the demand that those norms and principles not be fixed too securely in the trial, that they are open to challenge. Participants at trial should not be denied the opportunity to argue that a participatory norm is itself flawed, and the court should be able to recognise the value of potentially disruptive participation. But such recognition should not be at the expense of the rights to respect and security of all participants in the trial, or of the wider community. 7.3.

THE DEFENDANT’S PARTICIPATION AND THE ROLE OF COUNSEL

In chapters four and five, we began to argue that the defendant’s participation is central to a model of the trial as a communicative enterprise. One principal motivation of such a model is to encourage recognition that the defendant at trial is not to be treated as a mere object of investigation, but rather as a citizen who is called to answer a charge and, if he is criminally responsible, to account for his conduct. Such a process requires treating the defendant as an agent who is capable of responding to that call: as one who can respond to evidence, reason and explanation in the appropriate way.6 What does this idea entail for formal and cultural norms about the defendant’s participation in the trial? As we indicated in chapter four, the defendant’s participation is neither required by formal legal rules, nor encouraged by the practices that have grown up around the trial. Indeed, it is often regarded a central principle of adversarial criminal justice systems that the defendant need not participate in her own trial: she is entitled to remain passive, requiring the prosecution 6

See also RA Duff, 1998b.

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to prove the case against her. This principle is sometimes cited as a motivation both for the general principle against self-incrimination and for the right of silence in particular. It has also been justified as a restraint on state power: the state, with all of its resources, should not rely on the defendant to prove the case against herself. More recently, Mike Redmayne has argued that it is justified by the liberal idea that citizens are entitled to distance themselves normatively from the prosecution.7 Alongside the lack of a legal obligation on the defendant to participate, there are also cultural reasons why the defendant tends not to participate in the trial in any substantial way in England and Wales. The defendant may give evidence, but beyond that her case will normally be conducted by her legal representatives rather than in her own voice. This may be partly to protect the defendant’s rights, but it is also due to a tendency of professionals to manage the defendant’s case, sometimes to her disadvantage. Legal and cultural concerns about the defendant’s participation in the criminal trial should be seen together. A participatory model of the criminal trial requires both a proper set of rules and the appropriate kind of legal culture to encourage the defendant to participate in the trial in an appropriate manner and to an appropriate degree. Let us begin by focusing on the formal requirements regarding participation by the defendant. There are rules which are designed to stimulate participation in the criminal trial and there are rules which protect the defendant’s right to participate. The rules which stimulate participation do not go as far as providing formal sanctions for a failure to participate. So it is for the prosecution to prove the case against the defendant beyond reasonable doubt, and if the prosecution fails to discharge that burden, the defence need do nothing. Despite serious recent challenges to this principle in England and Wales, eroding the defendant’s rights, the right not to participate remains formally intact. The defendant cannot be compelled to give evidence during the trial, and will not be held guilty of contempt of court for failure to do so.8 However, the defendant’s privilege of non-participation in the criminal process is at best incomplete.9 For example, in some circumstances, the defendant can be compelled to provide bodily evidence and documentation to the prosecution which will contribute to the case against him. But

7 Redmayne, 2007. For the historical origins of the privilege against self-incrimination and the right to silence see Ch 2 at n 108 above, and the works cited there. 8 Criminal Justice and Public Order Act 1994 s 35(4). 9 It is worth underlining the fact that this feature of our criminal procedure and practice dates from the nineteenth century. Until very recently the English system placed a high value on participation: the early jury trial required the defendant to consent to the procedure, on pain of penalty, and in practice the defendant was expected to respond to the charge. See ch 2.2–2.3 above.

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perhaps the most significant challenge to the privilege is the erosion of the right of silence, one of the most controversial developments in the criminal justice system in England and Wales in recent times. Prior to 1994 decision makers in criminal proceedings were generally not entitled to draw adverse inferences from the defendant’s silence on arrest or at trial. That was altered by the Criminal Justice and Public Order Act 1994, despite support for the pre-1994 position by the Runciman Royal Commission.10 Sections 34–8 of that Act effectively entitle decision makers to draw adverse inferences from the defendant’s silence either on arrest or during the trial, subject to restrictions where there are peculiar reasons to doubt whether silence provides any evidence of guilt, or where the accused was not effectively informed of the consequence of his silence, or was not properly represented. This is regarded by some as tantamount to coercive pressure on the accused to participate in criminal proceedings. Certainly, there are good reasons to be concerned about the erosion of the right of silence, particularly with regard to pre-trial silence. Those accused of crimes are often from the least educated and articulate sections of the community, who are unlikely to present their case in the most effective way in their own voice. Furthermore, at the moment of arrest the defendant is unlikely to be in a state of mind to explain his defence in the clearest way. And he may not have information available to him that is important in constructing his case. Given this, one would have thought that there is good reason for most people to remain silent on arrest, and so it is difficult to see what adverse inferences could reasonably be drawn from the defendant’s silence. The direction that is now to be given to juries about the evidential implications of silence, which has been described as tantamount to a public admonition of the accused’s failure to testify,11 may have the effect of encouraging them to overestimate its probative force. Furthermore, if it is indeed true that most of those who remain silent are guilty, the effect of the reforms is likely to be an increase in the extent to which those who are guilty lie rather than remaining silent. It is at best unclear that this will lead to an increase in convictions of the guilty, and it certainly cannot count as increasing participation in the sense appropriate to our normative account of the trial as a calling to answer. One who lies is not, in the appropriate sense, answering. It has also been argued that this might lead decision makers increasingly to mistrust statements made by those arrested, including statements made by the innocent, consequently

10 See Royal Commission on Criminal Justice, 1993: 55 citing the earlier (1981) Royal Commission on Criminal Justice which was similarly opposed to interference with the right. 11 See Roberts and Zuckerman, 2004: 441.

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exposing the innocent indirectly to an increased risk of wrongful conviction.12 However, given that very few defendants in fact used the right of silence, and given that previously juries may well have ignored instructions not to give silence probative weight, the effects of the changes might not be profound in practice. There are defendants who wish not to participate in the criminal trial, and to some extent the rules of criminal justice reflect a prima facie obligation to participate. Erosion of the right of silence suggests that this is the case, and it is at least plausible to argue that our account of the trial also supports such a prima facie obligation. We will discuss what this might amount to later. However, there are also defendants who wish to secure for themselves a greater participatory role in the trial. At least to some degree, criminal trials in England and Wales purport to respect the right of the defendant to participate in criminal trials. For example, in general the defendant has the right to cross-examine witnesses, although this right has been limited with regard to children and complainants in sexual offences trials.13 The defendant is entitled to give evidence, though he need not, and he may call witnesses. In general, he is supposed to have control over the way in which his case is presented. Often, this involves the presentation of a narrative of his case rather than a mere challenge to the prosecution’s case, even though raising a reasonable doubt about his guilt ought, in theory, to be sufficient to secure an acquittal. Although this does not reflect the respective evidential burdens of prosecution and defence, the trial, as Robert Burns puts it, will often be ‘largely a battle for the imagination of the jury’.14 However, there are again restrictions on the form that participation can take. There are a limitations on the way in which cross-examination may take place, and on the way in which the defence may present the case. For example, the defence, like the prosecution, is not entitled to ask leading questions of witnesses. Furthermore, if the defence does not challenge a statement made by a witness, they cannot present an account contradicting that statement in their closing remarks.15 Witnesses should not be quoted evidence by other witnesses and the defence should not enter into argument with them.16 Participation by the defendant in criminal trials in England and Wales is more profoundly limited by cultural than by legal norms, and in particular by the professionalisation of the trial process. The majority of defendants

12 See Stein, 2005: 158–64. We suspect that Stein may overestimate the power of this argument: see Roberts and Zuckerman, 2004: 417–25. 13 See particularly the Youth Justice and Criminal Evidence Act 1999 ss 34–40. 14 Burns, 2004: 172. 15 See R v Bircham [1972] Crim LR 430. 16 R v Baldwin (1925) 18 Cr App R 175.

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are represented by counsel for large portions of the criminal trial, and it may be that, not understanding much of the trial themselves, they put their trust in professionals to speak for them. Efforts made by professionals to limit the extent to which the defendant intervenes himself may also have the consequence of limiting the extent to which the defence challenges the prosecution’s case, against the interests of the accused.17 One question that arises, then, is whether it is sufficient for the participatory model of the criminal trial that we have defended that the right to participation is secured, or whether actual participation is required for a legitimate trial. In other words, beyond securing the formal right to participation, should efforts be made to facilitate and encourage actual participation by the defendant? It might be thought that it is sufficient that the right to participation is secure. However, our account of the criminal trial in Part II of this book rests on the idea that the defendant is a responsible citizen who can be expected to engage in a communicative forum about his conduct and that this is an obligation that he owes to his fellow citizens.18 This is well brought out by Jackie Hodgson, who favourably contrasts French criminal justice with that of England and Wales in this respect, suggesting that: In contrast to the demeaning way in which accused persons are generally regarded in England and Wales (even by their own defence counsel) where they are treated as an underclass beyond redemption, a criminological other outside respectable society, the accused in France is required to take responsibility for her actions, to reflect on the consequence of what she has done and to participate in the process. This model is played out in practice, as well as in theory: defendants are questioned by the procureur; they are questioned directly by the judge in court …; there is a sense in which they are held to account as erring citizens. This contrasts with criminal procedure in England and Wales, where the accused is marginalised in the trial process itself, treated as the object of the case, rather than the subject whose actions are on trial.19

Professionalisation of the trial, which tends to discourage participation by the accused, Hodgson argues, undermines the ambition to treat the defendant as a responsible agent. It tends to result in the defendant being treated as the mere object of the trial rather than as a participant.20 Of course, the ambition to treat the defendant as a responsible agent who can participate in the legal process must be balanced against the

17

See McConville et al, 1994. For the contrasting situation in France, see Hodgson, 2006. For philosophical accounts of the relationship between communication and responsibility, see Pettit and Smith, 1996; Korsgaard, 1993; Gutman and Thompson, 2000. 19 Hodgson, 2005: 21. She is, however, critical about the extent of defendant participation pre-trial. It is worth noting that this type of comparison has a long history, and has been put to diverse ends. See Cottu, 1822; Stephen, 1883: i. ch XV. 20 See also Cottu, 1822, and ch 2.4 above. 18

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requirement that the defendant’s rights are properly respected. Encouraging the defendant to speak in his own voice carries with it the risk that he will not do himself justice, or will not present his case in the best light. But the impetus towards representation that stems from this concern needs to be checked to some degree by the ambition that the defendant should be engaged with rather than managed in the criminal process—a distinction of some significance.21 An accused person who is represented, it might be argued, nevertheless participates in the process. He participates through his representative. But if advocacy becomes management, as it commonly does, the defendant’s participation is lost altogether. We will consider this in more detail later in this section. First, though, we should address the prior question of whether it is legitimate for the criminal justice system to demand that the accused participate in the process, and related questions concerning the right of silence. Here it might be useful to contrast the use of the idea of communication to legitimise criminal trials with the use of that idea in political theory to legitimise political authority. Although there is some commonality between the use of the idea of communicative legitimacy in trials and in political theory, communication also plays a different role in each. Communicative theory has become central to claims for political legitimacy in writing in political theory. Political decisions are legitimate, it is argued, (if and) only if they emerge from debate in a legitimate communicative forum in which there is proper representation of all relevant stake holders. This then requires consideration of the style of communication that can eliminate or at least mitigate what Iris Marion Young calls ‘internal exclusion’ from the political debate. Such exclusion occurs where ‘the terms of discourse make assumptions some do not share, the interaction privileges specific styles of expression, the participation of some people is dismissed as out of order.’22 This motivates a concern that the style must be appropriate for the presentation of information and argument in a way that is open and flexible and that invites mutual understanding and recognition. This, it is argued, is essential to ensuring that political decisions do not merely reflect the desires of the rich, powerful majority or the political elite. Such a style also presumably precludes coercing participation in the debate: a legitimate communicative forum is one which provides participants with reasonable control over their decisions either to or not to contribute to the conversation. Communicative debate is to be encouraged rather than demanded.

21

This is a common concern of those interested in restorative justice. See, eg, Hudson,

2003. 22

Young, 2000: 53.

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However, in ordinary social circumstances, where one individual legitimately calls another to answer a charge concerning their behaviour, and to account for their conduct if they are responsible for it, we appropriately characterise the call as a demand. I think that you have been spreading gossip about me at work. I call you to answer. I outline the reasons that I think this, and if they are good reasons it seems that there is a legitimate demand that you answer. Answering, in these circumstances, is a moral obligation, and participation in the conversation is a moral requirement. This seems right even if you are in fact innocent of spreading gossip about me. In that case, you have an obligation to dispel my fears. Now, it might be argued that this idea gives credence to a model of the criminal trial which demands rather than merely invites participation. When the state legitimately calls the defendant to answer a charge of criminal wrongdoing, it legitimately demands his participation. It is appropriate to see him as required to contribute to the trial. He might do this by admitting the truth of the charge, by accepting responsibility but denying liability, or by denying responsibility. Equally, it might be argued that if there is no legitimate demand that the defendant respond to the charge there is also no legitimacy in charging him at all. On its surface, this argument appears to run contrary to the principle in adversarial trials that it is for the prosecution to prove the case against the defence and that the prosecution can demand no assistance from the defence. No sanction, it is claimed, is appropriate where the defendant fails to participate in the trial. Indeed, some would go further, defending the traditional right of silence which bars decision makers from drawing adverse inferences from the accused’s silence. However, an obligation to speak need not be reflected in sanctions for failing to participate. An obligation can be properly recognised even in the absence of formal or informal sanctions for failure to meet it. There may be reasons against imposing such sanctions, as we have already indicated. Indeed, the idea that there is a legitimate demand that the defendant participate is consistent even with the rule restricting decision makers from drawing adverse inferences concerning the accused’s guilt from his silence. The requirement that the jury must not draw inferences from silence may be motivated by a concern that a failure to fulfil the demand to speak might not be indicative of the defendant’s guilt. Such a requirement is then quite consistent with the claim that there is an obligation on the defendant to participate in a trial in which he is legitimately called to answer. In short, there might be a legitimate moral obligation to participate, but no corresponding legitimate, sanction-backed, legal obligation. Against this, it might be argued that the demand to answer that is legitimate in social settings is not legitimate in the criminal trial. Even if it is true in social circumstances that one person may demand an answer from another where there is credible evidence of wrongdoing, it does not

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necessarily follow that the state can properly make the same kind of demand in a criminal trial. The fact that the state has all of the resources required to investigate crime, and can exercise great coercive power over the accused, might also deny it the right to demand that citizens answer in the face of legitimate accusations of wrongdoing. The inequality of power between the state and the citizen might be sufficient to remove even the moral obligation on the defendant to participate, given the inevitably unequal terms on which he would participate, let alone give rise to any legal obligation. Perhaps we can say only that the defendant should participate, meaning that if he does not participate he will have failed to meet a standard of conduct normally expected of citizens, or that the defendant’s participation is a good worth striving for without imposing obligations, moral or legal, on the defendant himself. Furthermore, as was noted above, it may be that the defendant’s failure to speak or respond to the charge is itself to be regarded as a form of participation. The defendant, in not giving a response, is also communicating that, in his eyes at least, no response is required: that even without his response it has not been shown that he has perpetrated the offence to the requisite evidential standard.23 In this respect the trial departs from the ordinary social situation where demands can appropriately be made of others on the basis of evidential standards that are lower than that required by the criminal law. So even if the defendant, in the face of the evidence, would have a social obligation to respond to an accuser with the relevant standing, that is not to say that he has an obligation to respond in the trial. The social obligation to respond may reflect the lower evidential standards that must be met before a response by the person accused can be appropriately demanded. Indeed, the very structure of the adversarial trial reflects this point. The defendant is first called to make a formal answer to the charge that he faces, by pleading guilty or not guilty: whilst there is no longer any attempt to coerce a plea from a defendant who refuses to plead,24 and no sanction for refusing to plead, we can say that there is a strong expectation, or even a demand, that the defendant enter a plea; in other words, that he participate in this formal way. It is then for the prosecution to present its case; and whilst it must of course be open to the defendant to crossexamine prosecution witnesses, there is no demand that he offer an answer of his own to the charge beyond the initial plea of ‘Not Guilty’. Once the prosecution case has been presented, the defendant can argue that he has no case to answer—that the prosecution has not adduced sufficient

23 Although, of course, it may also communicate other things, and defendants in trials with an overt political dimension often seek to exploit the communicative potential of their situation. See works cited in n 4 above. 24 See above, ch 2 at n 44, ch 4.2.

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evidence of his guilt to make it reasonable to expect him to answer that case on pain of being convicted if he does not do so; or of course the court could declare that there is no case to answer even if the defendant says nothing.25 Only if the prosecution has established a ‘case to answer’ is there any expectation that the defendant will participate beyond entering a formal plea—an expectation that now depends in part on the judgment that, given the evidence presented by the prosecution, it would be legitimate for the fact-finder to conclude with suitable certainty that the defendant is guilty unless he offers an answer. Also relevant here is Redmayne’s suggestion that the principle against self-incrimination is grounded in the idea that in a liberal democracy the defendant should be entitled to distance himself from the prosecution: to mark his disapproval of it by refusing to participate in it. This, it might be argued, stems from his political right to object to the state. His right to distance himself from the prosecution is the right to disapprove of state norms and actions, a right that is at the heart of liberal democracy. Given this right to express disapproval, a liberal democracy cannot demand participation in the trial, even without backing up that demand with sanctions. Minimally, we can argue that regardless of whether there is an obligation, either moral or legal, on the defendant to participate in the criminal trial, the fact that the defendant is called to answer is a reason to create the legal and cultural conditions whereby participation is facilitated, conditions which are manifestly absent from Anglo-American criminal trials. The defendant ought not to be hindered from answering the charge and accounting for his conduct if he is criminally responsible. The formality of the trial, the architecture of the courtroom, the language of the law, the silence of key decision makers such as the jury, and the attitudes and conduct of professionals all contribute to the creation of an environment in which the participation of the defendant as a responsible citizen who can speak in his own voice is substantially hampered. However, at least some of what is valuable about the defendant’s participation can be secured through his being properly represented at trial. So far, our focus has been primarily on securing the defendant’s participation in the trial in his own voice. But the mere fact that counsel speaks for the defendant need not substantially reduce the degree to which he takes or denies responsibility for the charge or explains himself to the court. In fact, under some social conditions meaningful participation by the defendant in the trial might be more effectively secured by communicating through counsel rather than in his own voice.

25

See Sprack, 2002: 156–7, 188–9, 293–5.

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For example, in a cultural environment in which it is intimidating for the defendant to speak, in which he may be concerned at being discriminated against for his accent or his level or mode of articulacy or his style of expression, the defendant’s views and interventions might be made more effective by being delivered in the voice of counsel rather than in the defendant’s own voice. Counsel may have an appropriate role in ensuring that the procedural rights of the accused at trial are secured without it appearing that the defendant is himself trying to subvert the process in his favour. And, if we are right that the defendant at the criminal trial can appropriately scrutinise the quality of the norms of the criminal law as well as providing evidence, this can usually be more effectively done by counsel with the relevant legal expertise than by the defendant himself. Furthermore, consider Burns’ suggestion that, in jury trial at least, the success or failure of the defendant’s case is heavily dependent on the extent to which he can present a convincing and complete narrative that is consistent with his innocence, in the light of directions given by the judge.26 If Burns is right about that, there is good reason also to ensure that counsel have the prominent role in communicating, if not developing, this narrative. In most cases, counsel will be more effective in delivering a narrative that is coherent and favourable to the defendant in a courtroom setting than the defendant himself. That is not to say that the narrative constructed is outwith the control of the defendant. That the narrative is delivered by counsel is not the same thing, at least in principle, as its being developed by counsel. That the defendant does not speak for himself to the court, but communicates indirectly through counsel, does not, in principle at least, indicate a lack of participation. Admittedly something of the direct confrontation between the defendant and his accusers, which might be thought central to holding him responsible for his conduct, is lost if he communicates through counsel. But that is not to say that he is not participating at all. Participation through counsel may be imperfect participation, but it is participation nevertheless. If this principle is respected, it should not be thought that this reduces the role of counsel to merely translating the defendant’s views into legalese or some form of ‘correct speech’. Counsel may also have an important role in ensuring that the defendant’s participation is properly guided by reflection. As counsel is likely to be less emotionally engaged in the case, she may better present the reflective view of the defendant. There may be times at which the words of counsel do not reflect the defendant’s immediate view about how his case should be conducted. However, the crucial question is not whether counsel is saying what the defendant would

26

Burns, 2004. See also Bennett and Feldman, 1981; Brooks and Gewirtz, 1996.

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say at a particular moment, but whether counsel effectively represents the reflective view of the defendant, a view that is broadly consistent with the defendant’s understanding of his own case and that the defendant would come to share given time to reflect and a full understanding of the law.27 The principle that the defendant may participate effectively through counsel, it must be noted, is inadequately realised in practice. It will be effectively realised in practice only if the role of counsel is truly to carry out the defendant’s instructions rather than to control the case for him on his behalf. If counsel is making participatory interventions for the defendant broadly under the defendant’s control, the defendant is still participating. If counsel is constructing the case herself and is not sufficiently guided by the defendant’s views and instructions, as is very often the case in practice, her interventions can no longer be seen as participation by the defendant in a meaningful sense. This point is especially important in relation to recent challenges to the defendant’s right personally to question the complainant in rape trials. Self-representation by the defendant in rape trials has been criticised, and legally restricted,28 on the grounds that it gives the defendant an opportunity to intimidate and humiliate the victim by aggressive questioning. Whilst it might be argued that the self-representing defendant is participating in the process, intimidatory and humiliating participation of that kind cannot provide a valuable contribution to the criminal trial as we have portrayed it; nor indeed, can humiliating, intimidating, or aggressive techniques used by counsel. As we argued in chapter five, not all communicative participation is good communicative participation, and courts can justifiably rule out some kinds of claim, as well as some ways of making claims, that undermine rather than facilitate the trial’s central aims. Whilst the represented defendant is not participating as directly as one might ideally like, we should not fall into the opposite conclusion that he is not participating in the trial at all. In rape cases legal representation of the defendant in cross-examining the complainant has the potential, subject to the discussion above, appropriately to channel the defendant’s participation at trial rather than removing that participation altogether.

7.4.

PARTICIPATION OF THE COMPLAINANT

In the modern tradition at least, criminal law is part of public law rather than of private law: the criminal law adjudicates not a conflict between the 27 Burns, 1999: 75–85 discussing the relation of representation to legal ethics. This is discussed in a historical context in Cairns, 1998: ch 6. 28 Youth Justice and Criminal Evidence Act 1999 ss 34–40.

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defendant and the complainant,29 but one between the defendant and the state or the polity. This is also, however, a notoriously controversial feature of the criminal law. The criminal justice system has been criticised for marginalising complainants (as well as defendants) from the process, and even for ‘stealing their conflicts’.30 This marginalisation of complainants gives rise to a number of practical concerns about the criminal process. Complainants will tend to give poorer evidence against the accused if they are not central to the process. They will tend to be treated shoddily at trial, as just another witness in the process, as though their suffering is marginal to the case. They may not be informed of the outcome of the trial, and they will tend to feel less satisfaction with that outcome if they are not true participants.31 However, it is also important to remember that the nature of criminal law as public itself derives from concern with the victim. We have suggested that criminal wrongs are best understood as public wrongs. We understand this not in the traditional way, as a wrong done against the body of the sovereign, but rather as a wrong with which the public are right to be concerned qua public.32 That concern itself normally flows from a concern with the wellbeing of the victim, wellbeing that has been diminished by the wrong. In seeing criminal law as public law, then, we are not marginalising the victim. On the contrary, the public concern that is central to criminal law must centralise rather than marginalise the suffering of the victim.33 The question remains, however, whether complainants should therefore be given more of a formal role in, or even some control over, the conduct of the trial. When the complainant is indeed a victim, this might serve the aim of accuracy in verdicts: victims who are recognised rather than marginalised, for example, may be more likely to assist the trial process; effective communication between the prosecution and the complainant might help to ensure that the case for the prosecution is presented in the most effective way; when the defendant is guilty, the complainant will often be crucial to showing this to be the case. More important for our

29 The concern expressed in this context is often with the ‘victim’ rather than the ‘complainant’. However, we should talk of the ‘complainant’, since one of the trial’s tasks is to determine whether the complainant is in fact a victim. Even that is not perfect, since some putative victims of crime might not wish to complain—as is recognised by the possibility of prosecution despite the putative victim’s wishes. For that reason, ‘putative victim’ is better; but given its clumsiness, we will stick to the less accurate ‘complainant’. 30 See, eg, Christie, 1977. 31 See Goodey, 2005: chs 5–6; Zedner, 2002. 32 See Dubber, 2005: pt I, and ch 3 at n 55 above. 33 See also Marshall and Duff, 1998; RA Duff, 2001: 60–64.

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account, however, is the question of whether the participatory model itself encourages, or even requires, giving the complainant a more central role in the criminal trial. Two roles might be important here. First, the complainant might have a more central role in calling the defendant to account. The complainant might have a role in decisions about, for instance, whether to prosecute and for what offence, or in directing questions to the accused, or in determining sentence. As is well known, however, the extent to which the complainant can appropriately play such roles is limited by the demands of equal treatment between defendants.34 Defendants should not be subject to the chance that the victim is relatively forgiving or unforgiving. That is central to the idea that criminal law is public rather than private. Public concern about criminal conduct ought to ensure that a criminal conviction is not dependent simply on the inclinations of the victim, punitive or otherwise. However, there may be roles that the complainant can play in determining how the case proceeds that do not undermine fairness between defendants. In England and Wales there is a principle that it is the interests, rather than the wishes, of the complainant that are relevant in determining whether to prosecute.35 However, the complainant’s desires concerning the way in which the process is conducted might reflect what is in the complainant’s interests rather than merely what he desires. And if what makes the criminal law ‘public’ is public concern about wrongdoing to the victim, the complainant’s interests are also the public interest. A proper communicative forum should expose the complainant to discursive scrutiny of her inclinations, so that decisions do not reflect her unreflective desires. Outcomes should rather emerge from open deliberation between the complainant and experienced public prosecutors to ensure that the complainant’s interests, and therefore the public’s interest, are advanced by the prosecutor’s decisions and conduct. Whilst it is the public, through the state, that properly calls the defendant to answer the charge and to account for his conduct, the complainant ought not to be excluded from that call. To do so would be to fail to recognise that the wrongs done against particular victims are still central to the character of crimes as ‘public’ wrongs.36 We might therefore advocate giving the complainant a larger role in the commencement of

34

The arguments are reviewed in Ashworth, 2000. Ashworth and Redmayne, 2005: 199–200. It might be thought that one way of securing such recognition would be for the complainant to attach a civil action to the criminal action brought by the state, as is common in France.; that, however, might reinforce the very distinction between the ‘public’ wrong and the wrong done to the victim that we are denying. 35 36

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proceedings against the accused. Private prosecutions are virtually nonexistent in the UK, whereas in France by contrast a significant proportion of criminal proceedings are instigated by the complainant.37 As we noted above, it is important to ensure that such participation by complainants does not create unfairness for those accused of crimes. The decision whether to prosecute must not merely reflect the complainant’s wishes; she must show that prosecution is in her interests, and therefore in the public interest. But participation in the decision is perhaps the best way of achieving that. Secondly, and contrastingly, the trial might call the complainant to account for making the accusation against the defendant. The trial obviously serves not only to determine whether the defendant is to be convicted, but also to exonerate the defendant in the case of acquittal.38 But acquittal might also involve calling the complainant to account for the accusation. In the most serious cases, a complainant who makes a spurious claim against the accused might face a criminal prosecution himself. For example, in Scotland, in addition to the offence of perjury, there is the offence of false accusation.39 For obvious reasons such offences ought only to be used in a limited range of cases, and they would be prosecuted in a separate trial. But perhaps the complainant should sometimes be held to account for making the accusation at the trial of the person whom he has accused: that might apply in cases where it would not be appropriate to charge the complainant with a separate offence. Given the powerful injustice that must commonly be felt by those wrongfully accused of a criminal offence, criticism of wrongful accusers may be an important role of the criminal trial. The communicative model of the criminal trial is not only concerned with the appropriate relationship between state and defendant. It requires a dialogue in which different individuals in the trial can be held to account for their conduct. The role of the trial is not only to determine the truth about the conduct of the accused. This aim is integrated into a more general process of accountability that applies across actors in the trial. The participatory model suggests an increased role for the complainant to play in determining whether the prosecution is to go ahead, but also increasing the accountability of the complainant for her role in making the accusation. Just as we have argued that the defendant has some obligation to participate, so too does the complainant, although there are undoubtedly different ways in which these obligations might be realised. A fuller

37 See Hodgson, 2005: 31. There are very rare instances of private prosecution in Scotland. See J and P Coats v Brown (1909) 6 Adam 19; X v Sweeney 1982 JC 70. 38 On the meaning of an acquittal, see above, ch 3 at nn 60–62. 39 Hume, 1844: i. 341–2.

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development of the model would indeed generate an account not just of these obligations, but of the obligations of witnesses as well.40

7.5.

JUDGMENT AND PARTICIPATION

In debates about adversarial and inquisitorial systems of criminal justice, the former are often characterised as involving passive and the latter active judges. In adversarial systems the prosecution and the defence prepare and present their cases more or less in the style that they wish; judges intervene only to ensure that the rules of procedure and evidence are not breached. In contrast, in inquisitorial systems the judge has responsibility for the investigation itself, and consequently for the development of the case; accordingly, the judge also plays a more active role during the trial itself.41 This contrast between systems is less uniformly significant in relation to lay participants with a decision-making role. In some systems that are commonly styled inquisitorial, lay participants sit with the judge in determining the case, and consequently have the potential to play a more active role.42 However, in other inquisitorial systems the role of lay participants is more limited. In adversarial systems, lay magistrates have a similar level of activity to professional trial judges. The jury, on the other hand, is almost completely passive. They are not involved in determining the course of the trial or in asking any questions of the defendant or of witnesses. This has been criticised on the grounds that passivity is not an effective way of attaining knowledge. Schäfer and Weigend suggest that research in cognitive psychology, as well as direct jury research, supports the claim that active juries are likely to be more effective fact-finders than passive juries.43 Of course, there may be some practical reasons to make juries passive which weigh against the active involvement that epistemological theory might recommend: detachment between jury and accused might help to ensure that the jury makes a neutral judgment; particular jurors will not be exposed as being pro-prosecution or pro-defence; and freeing up juror participation might lead to a more chaotic presentation of the case. Overall, then, there are reasons of accuracy and efficiency which militate both for and against greater active involvement by lay participants in the trial. 40 We cannot discuss the role and obligations of witnesses here (but see Clark, 1999); our aim in this chapter is only to indicate the directions in which application of our model might lead; see further Marshall, 2004. 41 See, eg, the essays in Doran and Jackson, 2000; P Duff, 2004b. 42 Although in reality they may not do so. See Hörnle, 2006. 43 See Schäfer and Weigend, 2006. See also McEwan, 2003: chs 4–5.

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The communicative model that we advocate provides a more significant set of reasons to see the participation of those who must make judgments as valuable. In making a judgment about the responsibility of the accused, it is reasonable to expect the judge to be effectively integrated into the dialogic process that we have argued is central to the practices of holding individuals responsible for their conduct. Responsibility is centrally bound up with the practice of communicative engagement in which an individual responds to the call to answer and the call to account that is central to the criminal trial. Judgments of responsibility are properly made by those who call: the standing of one person to call another to answer questions concerning his conduct and to account for it if he is responsible is normally also the standing to judge him in the light of his answer and his account. In a complex social institution such as the trial, there may be reasons to divide up this process of calling to answer, calling to account and judgment. However, to do so is to lose something central to practices of responsibility: those practices are often importantly multi-directional. When one individual calls another to answer questions concerning his conduct and to account for his conduct if responsible, he implicitly claims standing to do so. Consequently he invites scrutiny in the other direction. Charges of hypocrisy are explained in that way: the standing of the accuser is questioned in the light of his own conduct. To hold another responsible for their conduct without permitting scrutiny of one’s own moral standing is normally arrogant or domineering. We have already discussed, in chapter five, the limited way in which analogous charges can be heard in the criminal trial, and we suggested some ways in which the trial might deal with accusations of lack of standing. One thing that is central to making such practices plausible is a more open participatory forum. It is questionable whether the limited right to challenge jurors before trial is sufficient to meet this demand in Anglo-American systems; it is also a poor substitute for the organic process of communication that is common in social practices of responsibility. So if there are reasons against encouraging the more active involvement of lay participants in the trial process, those reasons must be strong enough to justify an erosion of the communicative practices of responsibility of which the criminal trial is an instance. We have defended a model of the trial as an intrinsically valuable process through which, in convicting defendants, the court claims to declare a normative truth about their conduct, and in acquitting them confirms the innocence that society ought to presume. The communicative process of the trial is intrinsic to this goal: the end sought is normative knowledge rather than mere accurate truth; the communicative practices of the trial are bound up with its epistemic ambitions. But the passivity of those who must make such judgments contributes to an erosion of that central goal of the trial.

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There are obviously limits to the kind of normative scrutiny that lay participants in the trial can be expected to endure to establish their moral standing, and to the kinds of factor that should be allowed to disqualify them from serving.44 But beyond that, there is also the question of the decision-makers’ epistemic competence. The defendant ought to have the opportunity to scrutinise that competence through communicative engagement. Active dialogue between decision makers and other participants in the trial is one way to ensure that the epistemic decisions of decision makers do not escape scrutiny in the criminal process. Decision makers must play their role in the trial in a responsible manner, and can be expected to account for the way in which they take their decisions. This is central to ensuring that relationships of responsibility in the trial are multi-directional. This brings us to the further important question of whether juries should be required to give reasons for their decision. At present, the jury simply gives a verdict of ‘Guilty’ or ‘Not Guilty’ (or, alternatively in Scotland, ‘Not Proven’). The jury is not required to give reasons for its decisions. This practice has recently been considered in the Auld Report.45 Lord Justice Auld there concludes that the time has come for the jury to give reasons for its decisions, sometimes in public, and to permit the Court of Appeal to scrutinise the legitimacy of the jury’s decision-making process. It is also suggested that at least some reform along these lines may be required to ensure compatibility with Article 6 of the European Convention on Human Rights. This would be in the context of a more constrained role for the jury, to be achieved through the development of structured questions of fact to be given to the jury, which will logically lead to a verdict either of ‘Guilty’ or of ‘Not Guilty’. Now, it seems an obvious conclusion to draw from our communicative model that the jury should give reasons for its decisions. Central to ensuring the mutual recognition of responsibility between participants in the criminal trial is the requirement that decisions are reached in accordance with reason, and that those reasons are public in a way that would allow scrutiny.46 To that extent, we concur with the Auld Report’s proposals. However, in contrast with the Auld Report, we would not give decision makers in the criminal trial only the kind of constrained role with regard to the law implied by presenting a list of factual questions to the

44 The English provisions for exclusion or exemption from jury service would provide a useful starting point for critical discussion of this issue (see Juries Act 1974, as amended by Criminal Justice Act 2003 sch 33). In particular, we would need to ask whether it is really proper that prior conviction of and punishment for a criminal offence, even a serious offence, should disqualify a citizen from jury service (for an argument that is relevant to this point, see ch 4.4 above). 45 Auld, 2001: 168–73; ch 11. 46 See also ch 9.4 below for discussion of publicity in relation to jury decision making.

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jury. The law is open to a degree of interpretation, and it is at least sometimes the proper role of decision makers to make decisions about the proper scope and interpretation of the law as well as about its application in the light of argument by the parties to the case. The law is perhaps even properly open to nullification in restricted circumstances. That should be seen as a consequence of the Rule of Law, properly understood, rather than in conflict with it.47 As we argued in chapter five, this role for decision makers reflects an important aspect of the kind of challenge that one person can rightly make to another who attempts to hold him responsible for his conduct. It is generally open to the person accused to challenge the accuser about whether the conduct of which he is accused is truly wrongful. This requires both that reasons are given for the judgment, reasons that indicate what is wrongful about the defendant’s conduct, and that the decision maker is not entirely constrained from reflecting on whether the norms which are being used to judge the defendant’s conduct truly describe a wrong that is worthy of being deemed criminal. This is so, even if the ultimate decision reached is in accordance with the law. Decision makers in criminal trials, we have argued, have a broader role than the mere declaration of whether the defendant is guilty of the charge. They may wish to convict or acquit ‘with regret’ in accordance with the law. The expression of reasons for the decision will not only assist with the proper development of the criminal law; it also reflects the central role of the criminal justice system in holding individuals to account for publicly wrongful conduct.

7.6.

PARTICIPATION AND COMMUNICATION

As we noted at the start of this chapter much traditional and modern criminal justice scholarship uses the distinction between adversarial and inquisitorial trials, notwithstanding the acknowledgement of many criminal justice scholars that most criminal justice systems do not conform in any pure way to the adversarial and inquisitorial models as conventionally defined. This raises the question of the usefulness or significance of this distinction,48 but also the more fundamental question for us of the extent to which our model of communicative participation is of relevance beyond the immediate context of the English criminal trial. Adversarial and inquisitorial systems are conventionally distinguished on the basis of different characteristic rules and practices. Thus, it is suggested that adversarial systems tend to involve partisan participants who control 47 See ch 5.5 above; Redmayne, 2006 (particularly his discussion of MacCormick, 1999). On nullification, see Matravers, 2004. 48 See also ch 1 at nn 13–15 above.

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the presentation of their own case; they have exclusionary rules of evidence and most evidence is presented orally; the prosecution must prove the case against the defendant and the defendant is not required to participate in the trial; and the judge and jury play a passive role in proceedings, assessing the evidence without controlling how it is presented or asking questions about it. By contrast, it is suggested that inquisitorial systems have few rules of evidence; that the judge controls the dossier in which the case is constructed, and that the defence is expected to participate in the collection of evidence; and much of the evidence is written and the judge is aware of the contents of the dossier prior to the trial.49 Whilst this bundle of rules and practices helps distinguish adversarial from inquisitorial systems, (and no system is regarded as purely adversarial or inquisitorial), we might rather refer to a single idea seems to lie at the core of the distinction. The idea of the inquisitorial model is that the most effective and principled way of getting the best account of the relevant facts is to allow decision makers to ask all the questions and make all the investigations that they deem necessary to develop that account. The parties make themselves available to respond to the decision maker’s wishes, but do not have overall control over the development of ‘their’ case. In contrast, the idea of the adversarial system is that the most effective and principled way of getting the best account of the relevant facts is to allow the defence and the prosecution to develop their best account of the facts, and to scrutinise the other’s account, and for the decision maker to decide in the light of that which account is best. Now, we might well ask which kind of model tends to realise the communicative ambitions that we regard as central to legitimate criminal trials. The answer to that question is not straightforward. For example, we have noted Hodgson’s research which shows that the defendant is more actively involved in the French criminal justice system than in that of England and Wales; we suggested that Hodgson is right to value the defendant’s participation as an appropriate reflection of the communicative model of the trial that we defend, although we have also suggested that participation through counsel is sufficient to secure the value of the defendant’s participation. The same might be said for the activity of decision makers: that their more active role in the continental system is more appropriate to a communicative model of the trial. However, we should not suppose that the communicative ideals that we defend are inevitably poorly realised in adversarial systems. Communicative participation can be realised in adversarial systems just as it is in inquisitorial systems. As far as the role of the defendant is concerned, the

49 See Damaška, 1973, 1986. A summary of this kind is also provided in P Duff, 2004b. For a more sceptical account see Summers, 2007.

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problem with the system in England and Wales, we suggested, is not so much that the defendant is more likely to communicate through representatives at trial: such communications do not fundamentally undermine the defendant’s participation in the trial. Rather, the problem, in England and Wales at least, is that counsel cannot be regarded as the defendant’s representative. Defence counsel tend to construct the case for the accused in a much more profound way than would be consistent with our communicative model, excluding the accused from the process altogether, and not always in his interests. Similarly, as far as the activity of decision makers is concerned, Schäfer and Weigend rightly argue that jury activism is perfectly consistent with adversarialism.50 The jury, they suggest, ought to be involved in fact interpretation. Asking questions is a way of establishing what the parties are attempting to prove. That does not interfere with the basic idea that in adversarial systems the parties have primary responsibility for the way in which their case is presented. The decision-makers’ role is to develop an understanding of the defendant’s or the prosecution’s construction of the case through active questioning, in order to clarify the contrasting accounts that are being presented to them. This is perfectly consistent with the idea that decision makers are to decide which is the superior of two contrasting accounts, subject to the rules of evidence. Perhaps then what differs between broadly adversarial and broadly inquisitorial systems is the relevant kind of participation by decision makers. In inquisitorial systems decision makers may go beyond asking questions which help them to interpret the case presented by the parties; they can direct the development of the case in a way that would be inconsistent with the principles of adversarialism. In adversarial systems, decision makers should limit themselves to asking questions which clarify in their own minds the account that is being provided by the parties rather than attempting to construct the best case independently of the parties’ own designs. Nevertheless, the more fundamental point here must be that the ideal of participation, which binds participants in mutual recognition of their responsibilities, can be realised in either system. By approximating the relationship between the jury and the parties to a conversation, the relationship of responsibility between agents in the trial is strengthened. For example, it becomes open to the parties to question the appropriateness of the questions posed by the jury, calling them to account for their appreciation of the norms that are relevant in judging the case. This is both a way of ensuring that decision makers decide cases on an appropriate basis, and a way of strengthening the mutual recognition that

50 Moreover, historically it can be seen as fundamental to the development of the adversarial trial see ch 2.2 above.

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is essential to judgments of responsibility. It is to be contrasted with the current state of affairs, where the jury appear to the defendant, and other parties at trial, as more or less inscrutable. Consequently, whilst our theory of the criminal trial as communicative participation is developed from a more or less adversarial perspective, it is not particular to the adversarial system. It may well be that the central norms, values and principles that we develop from the adversarial perspective, and which holds adversarial practice up to a critical light, can appropriately be developed in an inquisitorial context, allowing critical scrutiny and development of the inquisitorial ideal as well. The different division of labour that obtains between the adversarial system and the inquisitorial system does not require different fundamental norms of communication and participation.

7.7.

CONCLUSION

The communicative approach to the criminal trial that we advocate takes as its starting point the ordinary social practice whereby one person calls another to answer in the light of evidence of serious wrongdoing. This model of communicative participation might be thought unrealistic in the light of the pressures to which the modern criminal trial is subject. In the light of the power balance between the state and the accused, and the consequences of the trial for the defendant, we should not expect the criminal trial to track the ordinary social practice in every respect. In order for the principles and values of this model to be realised under these particular social circumstances, we should expect that defendants are represented and that they will not always participate directly themselves, that we must protect their right not to participate, and perhaps even ameliorate the ordinary evidential conclusions that decision makers might draw from a failure to participate in the way that was achieved by the right to silence prior to 1994. Furthermore, different trial systems will realise the communicative ideal in different ways. We have attempted to show some that this ordinary social practice may be realised in different kinds of formal process. It can be developed through a more adversarial model or through a more inquisitorial model. However, in each model, it will have implications for how the system is realised. The norms of participation suggest that defendants, complainants and decision makers must all contribute in one way or another to the communicative forum. Whilst this may be in person or through representatives, ultimately active participation ought to be encouraged, or perhaps even demanded. There are currently reasons both of legal substance and of legal culture why the participatory model is ineffectively realised in most criminal justice systems. This tends to make

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trials oppressive and bureaucratic, reducing the extent to which defendants are encouraged to take responsibility for their account, and ultimately for their actions, but also reducing the extent to which they can hold other participants in the trial accountable for the decisions that they make, or for their standing to make those decisions. Ultimately, this has consequences not only for the accuracy of decisions made, but also for the justifiability of the practice of trials altogether.

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8 The Principle of Integrity 8.1.

INTRODUCTION

A

CRIMINAL CONVICTION is warranted, we have argued, only if knowledge that the defendant is criminally liable has been established through the legitimate communicative process of the criminal trial. That communicative process involves calling the defendant to answer to the charge, and, if criminally responsible, to account for his conduct. It proceeds on the basis of reciprocity of responsibility. Whilst it is primarily the defendant’s responsibility for his conduct that is under scrutiny, the defendant also has the opportunity to challenge the standing and conduct of participants in the trial, as decision makers, prosecutors or witnesses. Reciprocity of this kind is central to legitimating the criminal process as a way of holding the defendant responsible for his conduct. However, the declaration that the defendant is guilty as charged involves more than the expression of knowledge that the defendant fell within the conditions of the offence and had no defence. It involves an institutional form of moral condemnation of the defendant for his conduct. And if that is so, a conviction does not merely imply that the epistemic conditions for conviction have been met. It also implies that the state, through the trial, has the moral standing to condemn the defendant. One consequence of this might be that a ‘Not Guilty’ verdict suggests either that there is some doubt about whether the epistemic conditions of guilt have been met, or that there is some doubt about the moral standing of the court to make a declaration of guilt. ‘Not Guilty’ may mean that the trial finds itself unable to condemn the defendant because a conviction would lack moral credibility. This reflects the ordinary social idea that, when one individual holds another to account for his conduct, a legitimate response of the other, the person accused, is to deny the moral standing of the one. However, as we shall see, there is a question about whether questions of moral standing are best thought of as bars to having a trial at all, and consequently whether there should be a verdict at all in such cases. In this chapter we will explore in further detail an aspect of this idea of moral standing. This aspect has to do with the integrity of the trial. In considering the idea of integrity, we are concerned primarily with the question of whether faults in the criminal process prior to trial may

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undermine the legitimacy of convicting the defendant even where the epistemic conditions for conviction have been or would be met. This is distinct from two other ways in which moral standing may be undermined: general faults of the state (such as the corruption of the political process) and faults in the formulation of the offence (such as that it does not describe a public wrong). These latter faults, as we suggested in chapter five, may, in some circumstances, each undermine the legitimacy of the trial, but they are not our concern here. Rather we are concerned with faults particular to the process. A prominent formulation and defence of the integrity principle has been developed by Ashworth.1 For him, integrity is best understood in terms of coherence. Coherence involves two things in this context. First, that the criminal justice system is underpinned by what Ashworth calls ‘a network of supporting rules and principles’, and secondly that courts’ actions are ‘systematically connected to the conduct of police officers on which prosecutors seek to rely’.2 The integrity principle, then, connects together two sub-principles. We might call these ‘integrity as moral coherence’ and ‘integrity as integration’. Integrity as moral coherence is the principle that a criminal justice system which lacks moral coherence will lack the standing to call the defendant to account for his conduct. Integrity as integration is the idea that, in assessing the standing of the criminal process to call the defendant to answer the charge and account for his conduct, different parts of the criminal process cannot be isolated from each other. In particular, the criminal trial cannot claim that its moral integrity is intact in isolation, where there have been failings at an earlier stage in the criminal process. Ashworth names the thesis to the contrary—that different stages of the criminal process ought to be treated in isolation—‘the separation thesis’.3 The integrity principle applies to a variety of specific concerns in the criminal law. Ashworth uses the principle to consider the issues of entrapment, reliance by defendants on official advice that their conduct will be legal, defendants who commit offences in order to promote law enforcement,4 exclusion of wrongfully obtained evidence and the prosecution of defendants wrongfully brought into the jurisdiction. We will not endeavour to provide an account of all these issues. However, we will use some of them to explore the application of the integrity principle, in 8.3, where we will also consider whether the integrity principle has implications for how we should understand what evidence is as well as for exclusions of evidence from the trial. Before that, in 8.2, we focus on the foundation of

1 2 3 4

See Ashworth, 2002b, 2003. Ashworth, 2002b: 301. See Ashworth, 2003: 113–15. All in Ashworth, 2002b.

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the integrity principle. The application of the principle will rest on understanding why it should be considered a principle at all.

8.2.

THE FOUNDATION OF THE INTEGRITY PRINCIPLE

To show why the integrity principle is plausible, we will start with a discussion that we began in chapter four. This will allow us to develop our critical analysis of two alternative explanations of the range of issues under consideration here: explanations grounded in deterring criminal justice officials, particularly the police, from wrongful conduct and explanations based on the rights of the defendant. The former, we suggest, lacks explanatory force. The latter, on the other hand, is best understood as a partial account, one that makes proper sense only when integrated into a more general theory about integrity. This discussion will, to an extent, mirror an earlier argument that we developed for the communicative theory of the trial in contrast with a theory of protection against state power. As we noted in 4.1, a theory that is used to justify the importance of criminal trials is that trials can protect citizens against the arbitrary exercise of state power. As is often noted in connection with the criminal justice process, the state has powerful investigative and coercive resources that may be arbitrarily and wrongfully applied to its citizens. The trial, on this account, provides a safeguard against abuses of these resources by requiring that powers of detention or imprisonment must be subject to safeguards of the rule of law. We have suggested that although this account has significant force, it is better integrated into a more general communicative theory of the criminal trial. The communicative account provides a very particular protection against the arbitrary imposition of state power: state power must be justified to the defendant through the appropriate kind of communicative process, treating him as a responsible agent. This account is superior, we suggest, not just because other methods of ensuring that state power is not applied arbitrarily would be less effective than protections which rest on a communicative process, but because they would be inadequately justified, in that they would permit the defendant to be held responsible for his conduct without his status as a responsible agent being recognised by involving him in the appropriate kind of process. Here we wish to develop a similar line of argument in relation to the principle of integrity. The law concerning wrongs perpetrated during the pre-trial stage, such as entrapment, wrongfully obtaining evidence or wrongfully bringing the defendant into the jurisdiction, is sometimes defended on the grounds that staying the proceedings or excluding the evidence is the best method of ensuring that defendants are protected from

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these kinds of wrong.5 There are two independent ways in which this claim might be argued for. The first we call the ‘deterrence thesis’ and the second the ‘rights thesis’. The former thesis, we suggest, is unconvincing. The latter has significant force, but should be considered part of a broader integrity principle.

8.2.1. The Deterrence Thesis The deterrence thesis claims the following: officials will be deterred most effectively from perpetrating the relevant wrong only if perpetrating the wrong cannot contribute to the end for the sake of which it is committed. So if wrongfully obtained evidence is excluded from the trial, there will be no point in wrongfully obtaining evidence and consequently evidence is less likely to be wrongfully obtained. This claim is problematic in a number of respects. First, by the lights of this theory itself, when considering whether wrongfully obtained evidence should be excluded, the relevant comparator in terms of deterrent effect is not failing to respond to the wrong, but rather using alternative sanctions for the wrong. So we must evaluate the deterrence value of excluding wrongfully obtained evidence against the deterrence value of using other sanctions. The wrongs under consideration are serious in two respects: they normally involve serious violations of rights, either of the defendant or of others, and they have the tendency to erode confidence in the criminal justice system as a whole. Given that, it may well be that the use of other sanctions such as prison sentences would be appropriate in response to such violations. What would be the difference in deterrent effect of staying the trial or excluding the evidence when compared with the use of such sanctions, or even in addition to such sanctions? This difference is inevitably difficult to evaluate; more importantly we cannot be confident that it will be significant. Whether changes in the severity of sanction have such deterrent effects is questionable. As criminologists have argued, whether individuals are deterred from criminal offending depends more on their perceived likelihood of being caught than on the severity or type of penalty if they are caught. That thesis might also apply to the exclusion of evidence. The deterrent effect of any response to wrongs perpetrated by public officials may well depend largely on the perceived likelihood of having the wrong exposed. Any difference in the quality of the response is likely only to make a marginal difference to behaviour. 5 This is apparently the main rationale for exclusion of wrongfully obtained evidence in the US. See Ashworth, 2003: 112.

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Secondly, as we shall see when considering the application of the principle, if the deterrent basis for the exclusion is weak, as we suggest it is, it is unlikely to outweigh the powerful reasons to ensure that the defendant is convicted where there are sufficient epistemic grounds to do so. Failing to convict the defendant on the grounds of wrongdoing by state officials, particularly where the epistemic case against the defendant is impeccable, involves the failure of the state to perform one of its basic duties: to represent citizens in discovering and declaring the truth about public wrongdoing and responding to that truth through punishment. If failing to convict the defendant where there is a powerful epistemic case against him is a serious abrogation of responsibility by the state, it will need powerful justification in terms of deterrence, a justification which we suspect will not be forthcoming. So it is difficult to develop an argument based on public protection against state power to justify the exclusion of evidence, the law of entrapment and so on. Deterrence is likely to be, at best, a weak reason for excluding evidence or staying prosecutions where there is a sufficiently strong epistemic case against the defendant to secure a conviction. The reason is so weak that is likely to be outweighed by reasons in favour of prosecution, coupled with the deterrent effect of prosecuting the relevant official breaches.6 Were there no reasons beyond deterrence to exclude evidence or to stay prosecutions based on entrapment, it would be unlikely that reasons of deterrence would be sufficiently powerful to justify those consequences. Of course, some will embrace this conclusion, suggesting that deterrence is the primary rationale behind exclusionary rules and that deterrence is best achieved by other means, means that do not threaten what is valuable about holding trials. We suggest, on the contrary, that deterrence is not the primary rationale at all.

8.2.2. The Rights Thesis A familiar alternative to the deterrence thesis is the rights thesis. Where fundamental rights have been violated, the rights thesis suggests, the victim of the violation is entitled to a remedy. The appropriate remedy is to ensure that the victim does not suffer disadvantage through the breach. The only way to achieve this is either to exclude the evidence obtained through the breach from the trial or to stay the proceedings. In suggesting that there is no knockdown argument for the integrity principle against the separation 6

See also Roberts and Zuckerman, 2004: 155–7.

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thesis, Ashworth is inclined to fall back on this argument.7 Failure to ensure that the victim of a rights violation is not disadvantaged through the breach, the argument goes, shows a lack of respect for fundamental rights. The rights thesis has some explanatory force that the deterrence thesis lacks. It can explain the intuition (for those who share it) that the appropriate remedy for wrongful conduct of the kind under consideration is staying the criminal process or the exclusion of evidence, rather than merely punishing officials for breaching the rules. The ideal remedy for breach of a right is normally (at least) restoration of the victim to the position he would have been in had the right not been violated; staying the prosecution or excluding the evidence would be the normal ways to achieve this. Furthermore, the rights thesis can provide at least a partial explanation of the distinction that is commonly drawn, both in law and in the academic literature, between breaches by state officials and breaches by private individuals. If D’s home is wrongfully searched by state officials, he is entitled to a remedy against the state. And, if the rights thesis is correct, that remedy must involve the state ensuring that he is not disadvantaged by the breach. If, on the other hand, D’s home is wrongfully searched by a private individual, he is entitled to a remedy only against that private individual. As there is no remedy against the state, the obligation on the state to forego prosecuting D on the basis of that evidence is less powerful. Any obligation on the state derives from its role in ensuring that D has the appropriate remedy against the rights violator rather than its obligations as violator itself. The rights thesis also has its critics. Roberts and Zuckerman, for example, have argued that it is unconvincing given that ‘time and events have marched on, and the informational status quo ante can never, in reality, be retrieved once cognitive innocence is lost’.8 In these circumstances moral evaluation of the evidence cannot involve pretending not to know that it has been obtained. This argument, they think, is particularly compelling in cases where the remedy of excluding the evidence is disproportionately favourable to the defendant. If the violation is relatively trivial and the evidence gathered is highly probative of a serious offence, exclusion seems disproportionate. In that case, they argue, the right is better vindicated by punishing the violator than by excluding the evidence. If this argument were sound, the rights thesis would face the same difficulty as the deterrence thesis: it can explain why we respond to

7 8

See Ashworth, 2003: 121–2. The position was initially developed in Ashworth, 1977. Roberts and Zuckerman, 2004: 153.

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breaches by criminal justice officials, but it cannot explain our intuitions that the appropriate remedy for breach would be exclusion of evidence or staying the proceedings. These arguments, we would argue, have purchase only against a very extreme version of the rights thesis. Roberts and Zuckerman write as though the rights thesis must treat a violation of the supposed right, in this context, as an exclusionary reason9 against considering the evidence at all, and it is only against those that develop this version of the rights thesis that their objection holds. Exclusionary reasons operate by giving normative priority to one order of decision making even when it apparently results in decisions that are contrary to the balance of reasons at another order. So, for example, if A giving B an order provides a second-order exclusionary reason for B to obey, the order excludes B’s consideration of the first-order reasons that ought to have grounded the giving of the order (and hence the action of obeying it). As Joseph Raz notes, where exclusionary reasons operate, a ‘peculiar feeling of unease’ is often created if there appears to be a conflict between what the exclusionary reason directs and what the first-order reasons would, in its absence, have directed.10 The version of the rights thesis that Roberts and Zuckerman consider holds that the rights violation provides a reason excluding the evaluation of the evidence, and of the offence of which it is evidence, altogether. But the consequences of this position are too stark to be capable of justification. Minor breaches would exclude consideration of the probity of the evidence and the significance of the offence in determining whether it should be admitted. However, this would vitiate all rights-based analyses of the problem only if the following were true: if D has a right to v then, where this remedy is available, D ought to be put in the position that he would have been in had his right not been violated regardless of the consequences. But we see no reason to develop such a stark claim about rights. Providing such a remedy for violation of a right should not always trump negative consequences of doing so, particularly where those consequences are severe and other remedies for breach are available, and particularly (or perhaps even only) where the consequences involve more serious violations of the rights of others. But that fact does not immediately undermine the importance of rights and remedies. Where the consequences are not severe, the best remedy for wrongful violation of the right might still be to put the defendant in the position that he would have been in had the right not been violated. Vindication of the right may require that the evidence is excluded

9 10

On exclusionary reasons, see Raz, 1990: 35–48. Ibid 41.

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unless exclusion has severe consequences, in which case the next best remedy, say compensation of the defendant or punishment of the violator, ought to provide a substitute. We might usefully compare breach of contract in this regard. The purest remedy for breach of contract is specific performance, for only specific performance delivers to the plaintiff the content of his right. Practical problems with attempting to achieve specific performance may lead to the use of other, less pure, remedies such as damages, perhaps even much more frequently than specific performance.11 Nevertheless, when specific performance is provided, that is in vindication of the right of the plaintiff. The frequent use of damages as a remedy for breach does nothing to erode the centrality of rights to the law of contract. Specific performance and damages are simply two different remedies that might be provided for breach of a right, the latter being provided where there are sufficient reasons against providing the former. Similarly, exclusion of the evidence might be considered the primary remedy for violation of the defendant’s rights by criminal justice officials in obtaining the evidence. However, there may be reasons against giving that primary remedy in some (or even most) cases, in which case it is acceptable for the law to fall back on other remedies. Nevertheless, weaknesses of the rights thesis remain, at least when that thesis stands alone. The first thing to note about the thesis is that it only applies to a narrow set of circumstances in the broader group of cases that we are considering here. First, it is not clear that entrapment cases or cases of reliance on official advice involve breaches of fundamental rights. It is difficult to see how there is a breach of a fundamental right simply by giving false advice or encouraging a criminal offence to be committed. If there is a breach of a right, it is the prosecution itself that constitutes the breach. So staying the prosecution in such cases cannot be regarded as a remedy. Secondly, the rights thesis appears only to apply to breaches of the fundamental rights of the defendant himself. Suppose that D1’s house is wrongfully searched, and evidence against D2 is obtained; here it is difficult to see why D2 is entitled to any remedy at all in respect of the breach of D1’s rights. That argument even seems to apply to cases of torture. D2 cannot claim that evidence obtained by the torture of D1 should be excluded, as this would only be a remedy for the breach of D1’s rights. 11 It is worth noting that although the ‘primary’ remedy in English law of contract is damages, specific performance or specific implement is the primary remedy in Scots law, and across most of Europe. Even if there are often practical reasons against specific performance, English law seems to us to have things back to front in treating damages as primary. See Macgregor and MacQueen, 1999. For arguments designed to show that the rarity of specific performance in English law is consistent with a rights-based analysis of contract, see S Smith, 2004: 398–403.

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There seems good reason not to provide a rationale for excluding evidence in the range of cases under consideration here that is too fragmentary. As the protection principle, when cast in terms of fundamental rights, is inadequate in this respect, it ought to be rejected. There is a further problem with the argument, however. It seems right to distinguish between breaches perpetrated by state officials and breaches perpetrated by private citizens. Suppose that the evidence against D1 is discovered by a wrongful search by a police officer. In an otherwise identical case, evidence against D2 is obtained by a wrongful search by a private citizen, X, entirely independently of state involvement. It might seem that evidence in the second type of case should be admissible, but there are also cases where evidence obtained privately ought to be excluded from the trial. For example, if D2 is tortured by a private citizen, it seems clearly wrong to use the evidence obtained against him at trial. However, it is difficult to see how the rights thesis standing alone can deliver this, for if D2’s rights are violated by X he is entitled to a remedy against X and not against the state. If the state is under an obligation not to prosecute in these cases, it must be as a consequence of its obligation to ensure that the violation of D2’s rights by X does not disadvantage D2. In general, if one citizen violates the rights of another and the other cannot provide the ideal remedy to restore D2 to the position he would have been in had his rights not been violated, there would be no obligation on the state to provide such a remedy. Rather, the normal course of action would be to utilise a non-ideal remedy such as compensation. Hence, if there is, in this case, an obligation on the state to provide the remedy it will depend on other features of the state and its obligations, rather than on the idea of rights as such. Of course, in this case, it might be suggested that, in using the evidence against D2, the state would not merely fail to provide D2 with a remedy for the violation of his rights. It would rather be using the fruits of X’s wrong. But we still need a rationale for the principle against doing this, a rationale which the rights thesis cannot provide alone. Consequently, understanding how it can be that respect for D2’s fundamental rights involves excluding evidence obtained by private torture will require us to understand something about integrity as moral standing. For it must be shown why the violation of D2’s rights makes it wrong for the state to rely on the fruits of the violation. This will require us to develop a conception of what counts as association with the wrong of another and when it undermines the legitimacy of the trial. The rights thesis itself cannot address that question. The thesis can only be made good by considering its application, and its application is governed by the integrity thesis. Finally, we raise here an issue that we will consider further below. The rights thesis is potentially broad. If the argument is that the defendant

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should be restored to the position that he would have been in had his rights not been violated, it is difficult to see why his claim should be restricted to investigatory violations in particular. As we will see, however, the reasons for excluding evidence are less compelling if the evidence was acquired as a side-effect of a non-investigatory investigation.12 Our suggestion, then, is not that the rights thesis should be abandoned, but that it should be understood as a contribution to the integrity thesis. The integrity thesis provides general claims about securing the moral standing of the trial and its integration with other parts of the criminal process. The rights thesis can help us to understand some important features of integrity, but it does not do all of the relevant explanatory work. It can do that work only if it is understood as part of a broader theory of integrity. 8.2.3. Two Types of Integrity Suppose that there has been a wrong perpetrated during the pre-trial stage. The integrity theory suggests that there are two bases upon which a defendant might claim that the prosecution should be stayed or that evidence should be excluded if the prosecution is to go ahead. First, a defendant might claim that it would be inconsistent to continue the prosecution given the state’s conduct at the pre-trial stage. Secondly, a defendant might claim that the moral standing of the trial would be undermined by the prosecution through the association between the trial and the wrongful conduct pre-trial. These two ideas might, at first sight, seem identical. However, they are different in kind. The first focuses in particular on conduct of state officials without emphasising that such conduct needs to be morally wrongful. It rests on the identification between the state and the actions of its officials such that actions by officials in the course of investigation are to be treated as actions by the state, which then have implications for the justification of future state actions. The second focuses on wrongful behaviour without emphasising the need for that conduct to be perpetrated by state officials. We have already seen some examples of the latter claim where the former is not at issue: there might be cases of private torture where the rights of D are not violated by the state itself. Despite this, there seem good grounds to exclude the evidence obtained, even if those grounds are not as strong as cases in which torture is perpetrated by state officials. According to the first idea, as far as state officials are concerned, there need not be a rights violation, or indeed any blameworthiness at all, to exclude evidence or to stay a prosecution. Consider D who relies on a statement by a state official, O, who is authorised to make such statements, 12

See further s 3.2 below.

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that the conduct that he intends is not criminal. In fact, in carrying out his intention he breaches the criminal law. There are good grounds, it seems, not to prosecute D because of his reliance—which is true regardless of whether O’s behaviour was morally wrong. If O has given the advice in good faith, and even if he could not be criticised for giving the advice, it appears that D ought to be able to rely on O’s advice, and that therefore D should not be prosecuted, or at least should have a defence. Mere inconsistency between the advice given and the law is sufficient to undermine the legitimacy of the prosecution. This is a pure case of integrity as integration, pure because D’s rights, in receiving the advice, are not violated. Here it might be claimed that D should rather be entitled to a defence of reasonable mistake of law. In relying on O’s advice, D cannot be criticised for the mistake he makes about the law and so should be entitled to a defence. Were this the rationale, we would need to ask whether such a defence should not also sometimes be available to someone who relies on advice not from an official but from a non-official source—perhaps from someone with legal qualifications; which would require us to ask whether it can ever be in the appropriate sense ‘reasonable’ to rely on such advice. But that is not what is at stake when D relies on official advice: the point here is rather that, first, the state itself, in authorising O to make such statements, thereby also gave D an entitlement to rely on such statements as being authoritative; and, second, that it would be inconsistent for the state, having formally advised D through O’s statement that his intended conduct would not be criminal, then to prosecute him for it.13 So far we have suggested two features of the integrity thesis. The rights thesis plays a role in the integrity thesis, but it does not exhaust the integrity principle. The integrity thesis itself is composed of two subprinciples: the principle of integrity as integration and the principle of integrity as moral standing. We must now try to show that the integrity thesis is morally appealing in positive terms. In showing this, we will also show that the two sub-principles of integration and moral coherence are more closely related than might first appear to be the case.

13 There must of course be limits on the extent to which D can legitimately rely on whatever O says: if O’s statement of the law gives it a content that is obviously unreasonable or absurd, we might say that O can no longer be regarded as acting in an official capacity, and that D, as a responsible citizen, should realise that he cannot simply rely on what O says. The issue of what would count as ‘obviously unreasonable’ will, of course, require some difficult further work: for some useful ideas, see Husak and von Hirsch, 1993.

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8.2.4. Integrity, Investigation and the Trial In Part II of this book, we argued that the central rights of the defendant at trial are grounded in the communicative character of the trial. The trial is a process of calling the defendant to answer a charge and, if he is criminally responsible, to account for his conduct. The communicative process is essential in order that verdicts reflect not only the epistemic standards appropriate to the criminal law, but also the court’s moral standing to condemn the defendant for committing a public wrong. Such moral standing, we suggest, is only secure if the defendant is treated as a full citizen who is entitled to participate in a criminal process which he could accept as legitimate. The principle of integrity as integration is related to this idea. It claims that the defendant must be treated as a citizen not only at trial, but throughout the criminal process, and that the normative validity of the trial rests on the validity of the state’s conduct pre-trial. The communicative process at trial must itself be grounded in a pre-trial process where the rights of the citizen qua citizen are fully respected. The alternative, against which we will defend this principle, is the separation thesis14: the thesis that each part of the criminal justice process can be considered independently. According to this thesis, faults at one stage of the process need not infect decisions taken at later stages as long as there are independent remedies for those earlier faults. Ultimately, the defence of integrity as integration will depend on its plausibility in application, which we will investigate in the next section. However, here we should state some initial reasons why the principle is appealing. In order to see the plausibility of integrity as integration, we can look briefly at the role of the criminal justice system, and of the officials within that system. One important function of the criminal justice system is to respond to public wrongdoing: wrongdoing that is a proper concern for the citizens of a liberal polity.15 Given this, a central role of all criminal justice officials is to participate in securing legitimate convictions where public wrongs have been perpetrated. The criminal justice system is representative of public concern in the commission of public wrongs, concern which requires a public response. For this reason, we doubt that the criminal justice system should be seen as displacing the private inclination for vendetta,16 even if this can be seen as one of the beneficial

14

On the separation thesis, see also Ashworth, 2003. We are not of course suggesting that this is the only function of the criminal justice system: see Zedner, 2004: ch 1 for a concise review of the diverse aims and social functions of criminal justice. 16 As, eg, John Gardner (1998) has claimed. 15

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effects of having a public system of criminal justice. Its public nature is central to both its identity and its justifiability. Where a citizen shows good reason to believe that a public wrong has been perpetrated against her, the first response will obviously be investigation. Taking public wrongs seriously requires that those wrongs are investigated, and indeed this is reflected in European Convention on Human Rights (ECHR) jurisprudence, which requires that certain rights violations must be investigated.17 But if the state is to treat its citizens as citizens, limits must be set on what kinds of investigation are permissible. This is not just because the state must respect the rights of its citizens; it is also because the investigation must be such that it could contribute to a legitimate criminal conviction. For it is only as potentially securing that end that the investigation is legitimate in the first place. And that requires that the state does not violate the very moral standards that it purports to be upholding through the criminal process. That is not to say, of course, that the only legitimate methods of investigation are those that track the appropriate rules of evidence at trial. For example, generating statistics about the likelihood of the place of residence of the offender, or other features of his profile, might be a legitimate way of directing an investigation. But that information ought not to be considered as evidence at trial.18 However, the investigation must be capable of being justified at trial as a legitimate way of securing convictions of defendants. Whilst preliminary investigations might properly rely on information that would not be available as evidence at trial, the trial nevertheless importantly directs the investigation in determining what information can be gathered as evidence against a particular suspect. Even wrongful conduct in the preliminary investigation might undermine the legitimacy of the trial. To see this, consider stop and search. As is well known, certain individuals, often from ethnic minorities, have been targeted by the stop and search policies of the police. Some individuals have been stopped and searched repeatedly and, as a consequence, understandably felt victimised by the police. Suppose the police adopt a racially motivated policy of stop and search and D, who is in the targeted minority group, is discovered in possession of drugs. It is arguable here that the profiling which singled D out as a person to be investigated undermines the legitimacy of the prosecution against him for possession.19 The upshot of this, if it is right, is

17

See Mowbray, 2004. See at nn 40–41 below. 19 For American perspectives on discriminatory prosecution and the significance of racial profiling, see LaFave et al, 2004: ch 13.4; Gross and Barnes, 2002. For philosophical debate on the legitimacy of profiling, see Risse and Zeckhauser, 2004; Lever, 2005. 18

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that the norms of the criminal trial have a role in regulating not only what information can be treated as evidence but rather the whole investigation. Given the communicative theory of the criminal trial that we have defended in Part II of this book, it follows moreover that the investigation must be capable of being justified to the defendant. This is required by the reciprocal relations of responsibility that provide the normative foundation of the trial. This understanding of the norms governing investigation suggests that investigatory norms are not derived merely from free standing rights of individuals to privacy or bodily integrity, for example. They are generated from a proper understanding of the aim of the criminal process as making public declarations about guilt or innocence.20 For this reason, we should see the relevant principles which govern the investigation as flowing from the aims of the criminal justice system more generally, rather than as flowing from free-floating rights. And if that is right, there is good reason to think that the principle of integrity as integration is a plausible principle. The norms governing the investigation are generated by the norms of the trial itself. For that reason, we cannot see the investigatory process as distinct and unconnected to the trial in terms of its normative foundations. On the contrary, the normative foundations of the investigatory process are integrated with the normative foundations of the trial: both provide part of the system through which a public response is made to criminal wrongdoing. As the trial, within that system, makes public declarations of guilt, it also provides the normative conditions of investigation of criminal wrongdoing. This also helps us to understand something further about private violations of rights and the exclusion of evidence. It is commonly supposed that evidence obtained by torture, even private torture, should be excluded from the trial. The rights thesis considered above might be thought to provide an explanation of this. The rights of the defendant have been violated and his position should be restored. One problem with this idea, as we have already suggested, is that it is not clear from the rights thesis alone why the state should be involved in ensuring that the appropriate remedy is provided to the defendant. But there is a further problem. It is not the mere violation of rights that can plausibly be at issue here. Suppose that D’s home is burgled by X, and when X is apprehended it is discovered that the goods which X stole from D’s home were themselves stolen. In that case, there is surely no argument that the evidence should be excluded from a trial against D for handling stolen goods: D cannot plausibly argue that he ought to be put in the position that he would have been in had his right to property or privacy not been violated by X.21 20

See also ch 4 above. Matters might be different if the non-investigatory violation is serious enough; see further n 37 below. 21

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What distinguishes the cases of private torture, private entrapment, private phone-tapping and the like from this case is that those cases are investigatory. Torture, entrapment and phone-tapping are used precisely in order to investigate crime. In treating evidence obtained from those methods as evidence the state is effectively treating them as part of the criminal justice system: for they are ways, albeit illegitimate ways, of investigating crime. This is not to say that evidence obtained in those ways ought always to be excluded. That remains to be seen, but they raise the issue of exclusion only because they involve forms of investigation. If this is right, it also suggests a closer relationship between the sub-principles of integrity as integration and integrity as moral coherence than we suggested earlier. Integrity as moral coherence involves the moral coherence of treating certain actions, be they of officials or private citizens, as part of the investigation of D. The aim of the trial to make public declarations of guilt and innocence also provides the normative horizon against which the norms of investigation can be tested. The moral coherence of the trial rests on ensuring that the investigations that it treats as legitimate are legitimate. On one view, this is an idea that applies to investigations done both by public officials and by private citizens. The principal question on this account is whether a particular rights violation is investigatory, regardless of who perpetrated the violation. But, on this view, the communicative ambitions of the trial cannot be separated from the investigation, since the investigatory norms, norms that apply to anyone who participates in investigating public wrongs, are themselves generated and regulated by the normative standards of the trial. Even on this view, of course, there may nevertheless be further reasons to distinguish between official and private violations. For example, the fact that the state has the primary investigatory role and substantial investigatory resources might also mean that higher standards can be expected of it in ensuring that the investigation is not conducted improperly. This is particularly so given the function of the criminal trial as a way of protecting citizens, through a reciprocal system of responsibilities, against the arbitrary use of state power. Arguments such as this may in turn lead to a justification for treating official breaches of the proper standards of investigation less sympathetically than breaches by private citizens. Nevertheless, even as far as private citizens are concerned, use of evidence wrongfully obtained involves treating the actions of those private citizens as part of the investigation. The argument on this view is that the integrity principle, the principle that the trial cannot be detached from the investigation in normative terms, applies to private actions as well as actions of public officials. This does not apply only to the most serious investigatory wrongs to which it is commonly applied, such as torture. If private citizens illegally

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tap phones or otherwise invade privacy, for example, use of the evidence would still treat the investigation performed by the citizen as in part legitimate. There is nothing in principle, only in degree, to distinguish torture from other kinds of wrong. For reasons already indicated, where these wrongs are committed by officials of the state, there is stronger reason to exclude evidence than where the wrong is perpetrated by private citizens. Nevertheless, even as far as private citizens are concerned, the trial provides the normative standards that ought to govern the investigation of public wrongs. In using evidence wrongfully obtained by private citizens in their investigations of public wrongdoing, the trial cannot distance itself from those wrongs. Another view is that it is primarily official or public investigation that is regulated by the trial. This view is bolstered by the fact that there is an obligation to investigate wrongs that applies solely to the state and not to private individuals. In fulfilling this obligation officials are acting as part of a general process of public accountability from which the state cannot distance itself in the course of prosecuting at the trial stage. Even on this view, however, there may be cases of private wrongdoing which properly lead to staying the prosecution or excluding evidence. In prosecuting the defendant or using evidence obtained through private violations of rights, the state may be complicit in the wrongs of others. But on this view such cases are different in kind from those involving official violations of rights. For with public or official violations, there is no question of complicity with the wrong of another. The investigatory wrong would be perpetrated by the very body which purports to have legitimacy to hold the defendant to account: the state. Ultimately, we remain undecided whether it is investigation tout court that is regulated by the norms of the trial or official or public investigation. If it is the latter, an account needs to be given of what will count as public or official. It may seem problematic to focus on this state in particular, given that the investigation of crime has become increasingly international, especially in relation to trafficking offences, financial crime and terrorism. And, given the expanding role of private security firms, focusing merely on state officials and excluding state-regulated bodies seems problematic. Nevertheless, we see something appealing about the idea of integrity that focuses principally on the activities of the state, or states, in particular in investigation, including their regulatory function. It is the state that has the greatest power and authority to investigate crime, or to regulate its investigation by private companies, and that militates in favour of an account which focuses primarily on official investigations of crime rather than on private investigations, even if there may instances of the latter group where complicity by the state in the wrong through the use of evidence improperly obtained would be sufficient to justify exclusion.

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At any rate, whichever way we see the integrity principle, nothing so far is intended to mandate its over-zealous application. The integrity principle must be balanced against the significant wrong that is done to complainants when wrongs perpetrated against them are not prosecuted or probative evidence is excluded resulting in acquittal. The integrity principle is important, however, not only because it does sometimes justify staying prosecutions or excluding evidence, but also because it helps to demonstrate that a conviction based on wrongfully obtained evidence is nevertheless tainted by compromise of the principle. 8.3.

THE APPLICATION OF THE PRINCIPLE

The first thing to bear in mind, then, when considering the application of the integrity principle is that when it applies it frustrates, or at least tends to frustrate, conviction. Something very significant is thus lost. It is not just that the defendant, if guilty, goes unpunished for his wrong, but also that there is no public declaration of wrongdoing at all. And if the trial is barred the defendant is called neither to answer a charge nor to account for his conduct. This is so even where the epistemic conditions of conviction would otherwise have been met. In other words, there may be cases where there is sufficient epistemic ground for knowledge that the defendant was criminally liable, but this court lacks the moral standing to declare public knowledge of his guilt. This explains the inevitable frustration that arises from the application of the integrity principle: the frustration that is often expressed when the defendant is seen to have escaped ‘through a legal loophole’. This understandable frustration is also a reason not to develop an account of the integrity principle that is too broad or too liberal in its application.22 The application of the principle can be narrowed in two ways. First, high standards may be set for the degree and kind of moral wrongdoing that result in the principle being utilised. So it might be that evidence should be admitted at trial where the breach in gathering the evidence is merely technical. Or it might be that only explicit rather than indirect inducements should be sufficient to ground a claim of entrapment. The argument here would be that integrity is not sufficiently undermined to make proceeding at all, or proceeding on the basis of the evidence obtained, illegitimate. Second, the effect of its application can be as restrictive as possible. So, for example, if police officers have violated legal principles in collecting evidence, the remedy is normally exclusion of evidence rather than staying the prosecution altogether. In such cases, the defendant, it might be argued, is entitled to claim that he cannot be convicted on the basis of evidence 22

See also Roberts and Zuckerman, 2004: 157–60.

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wrongfully gathered. But if a conviction is competent without such evidence, the integrity of the process is not sufficiently threatened, as long as that evidence (as well as perhaps its fruits) is excluded from the trial.

8.3.1. Entrapment and Integrity The best place to begin an analysis of the application of the integrity principle is entrapment. Although in one way entrapment cases are special, in that the allegedly wrongful conduct at the ‘investigatory’ stage is intimately connected to the perpetration of the wrong, in another way it is easier to test our intuitions in entrapment cases because we are not distracted by concerns about the probative quality of evidence as we are in cases of wrongfully obtained evidence. Although there is a common anxiety about prosecutions in entrapment cases, it is surprisingly difficult to develop a convincing and principled account of what motivates that anxiety. In the central case of entrapment, the defendant is provided with an inducement to perpetrate a harmless criminal offence by an undercover law enforcement official of the same jurisdiction for the purpose of arresting and prosecuting him for that offence. In that case, the remedy that it seems most natural to advocate would be a stay of prosecution. The relevant concern is not that the defendant was not criminally responsible for the offence. He does not normally have a relevant defence such as duress or coercion. The concern is rather with the standing of the state to hold him to account for a wrong which they have induced.23 There are a number of different respects in which cases might depart from this central case, and, as we shall see, there are often good reasons not to stay the prosecution outside the central case. One way in which a case might differ from the central case is in the identity of the entrapping agent. The entrapper may be a law enforcement official from another jurisdiction, or a private citizen. A second potential difference concerns the nature of the offence. Entrapment normally involves harmless offences such as possession of illegal drugs or offensive weapons or attempt, but in some situations the entrapped person might be induced to perpetrate a criminal harm. A third difference concerns the inducement provided. The strongest cases involve something approaching coercion: those entrapped are threatened, albeit not to the degree that would ground a defence of coercion; the weakest cases involve what is sometimes called an ‘unexceptional opportunity’ to commit the offence.24 23 24

See Tadros, 2005a: ch 11. See, eg, R v Looseley; Attorney-General’s Reference (no.3 of 2000) [2001] 1 WLR

2060.

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A fourth difference concerns the purpose for which the person entrapped is induced to commit the offence. He might be encouraged to commit the offence for its own sake, or in order to prosecute another person. The normative foundation of entrapment doctrine involves both the general purpose of criminal trials that we have outlined and the integrity principle. The central focus of criminal trials, we have argued, is public wrongdoing. In calling the defendant to answer the charge, and if he is responsible to account for his conduct, the state accuses the defendant of public wrongdoing. If the charge is warranted, if the defendant is criminally culpable for the conduct concerned as demonstrated through the proper procedure, his conduct will be condemned as publicly wrongful through a guilty verdict. The integrity principle suggests that there is normative continuity between the investigatory stage and the criminal trial. The central principle behind entrapment doctrine is that the state cannot take the attitude that the relevant conduct is publicly wrongful for the purpose of prosecution and conviction, such that it should be condemned, but at the same time induce that conduct. In inducing the conduct the state indicates that it does not regard that conduct as worthy of condemnation; if the integrity principle is sound, the state cannot at a later stage change its normative position concerning that conduct.25 In order to make this account convincing, we will consider the extent to which it would provide a remedy in cases involving the four departures from the central case outlined above. Whilst at first sight it might appear that this principle is too broad to account for our intuitions in entrapment cases, we will show that it provides a convincing account both of our strong intuitions that the principle should not apply in some cases, and of the conflict in cases about which there is likely to be disagreement. First, consider the identity of the entrapping agent. There is a common intuition that the case for a stay of prosecution is more powerful where the entrapper is an agent of the state than where the entrapper is an agent of another state or a private citizen. However, there may be disagreement about whether there should ever be a stay of prosecution where the entrapper is a private citizen. The integrity-based account outlined above distinguishes these cases. The contradiction between the attitude of the state in entrapping and then trying the defendant is in the former case obvious, but there is no such obvious or straightforward contradiction when the entrapper was not an agent of the prosecuting state. That is not to say that the account could not provide the basis for an argument to stay the prosecution in cases of private entrapment. Here it should be remembered that the idea of public wrongdoing that we advocate is one which is normally focused on the victim of the wrong. The

25

See also Ashworth, 2002b; RA Duff, 2003a.

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proper account of public wrongdoing is not that the relevant wrong is committed against the public, but rather that the public has standing to condemn the wrong that has been committed against the victim. Now, if the victim himself induced the defendant to perpetrate the wrong, there might be a case for saying that the state can no longer condemn the wrong against the victim, precisely for the reason that the victim induced it. So, for example, if the victim induced the defendant to swing a punch at him, knowing that the police were nearby, in order that the defendant would be prosecuted for attempted assault, a stay of prosecution might be warranted on the grounds that the state cannot regard the wrong done to this victim as a public wrong. The state cannot condemn what D did to V, at least in some cases, it might be argued, if V induced the wrong to be perpetrated against him. This will not be the case when the entrapping agent induced D to perpetrate a wrong against another or to perpetrate a victimless crime, but there we think that the grounds for staying the prosecution are indeed weak. There the grounds might be that the state, in prosecuting the defendant, will effectively be acting as the agent of the entrapper’s scheme. But we think that this should only exceptionally provide grounds for a stay of prosecution, for example in quasi-coercion cases. Where the entrapper is an agent of another state, our intuitions might be stronger that the prosecution should be stayed. This can be explained on the grounds of cooperation between states in controlling crime: given the internationalisation of crime, the investigatory process will often involve criminal justice officials of more than one jurisdiction. In that case the state, in trying the defendant, cannot effectively distance itself from the wrongs perpetrated by officials from other states at the investigatory stage. Given the internationalisation of crime and enforcement, the integrity principle is best seen as cross-jurisdictional. Secondly, consider differences in the nature of the offence. In general, entrapment cases involve harmless or inchoate offences. The defendant was induced to supply drugs to police officers, for instance, or to attempt to obtain drugs from them. Part of the reason for barring trial in such cases is, we suggest, that there is then no wrong with which the public ought to be concerned, and therefore there should be no prosecution. All there is here is a simulation of a public wrong, a simulation that could not concern the public (except insofar as it involves wrongdoing by the entrappers). D thought that he was committing what the law defines as a genuine public wrong, but he was not. The public might be concerned about D’s tendency to attempt to commit such offences; but it is not an appropriate role of the criminal law to prosecute citizens for their characters or tendencies.26

26 This is an objection to some accounts of the role of character in criminal responsibility. See RA Duff, 1996: 188–90; Tadros, 2005a: ch 2.

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However, there could be cases in which the defendant was entrapped into committing a more serious offence, an offence which involved actual harm being caused. There, it might seem unjust to stay the prosecution. There are two kinds of case here. In one, the entrapper intended an inchoate offence to be committed, but the defendant completed the offence. In the other, the entrapper actually intended the complete offence. In the first kind of case, the entrapping official might, for instance, improperly induce D to try to commit an attack that would constitute the crime of wounding, intending that police officers will prevent the attack from being completed. But what if they bungle the operation and D succeeds in wounding his victim? Here there seem to be good grounds for prosecuting for wounding, since there is no contradiction in such a prosecution going ahead. Whilst the state, in inducing the attempt, has shown that it cannot publicly condemn D for attempting to wound V, it is not similarly estopped from condemning the complete wounding.27 The second kind of case involves officers who induce complete harmful crimes in order to see D prosecuted: perhaps the entrapper intends that D complete the attack on which he is induced to embark, and that he will then be arrested. Here again it might seem wrong to stay D’s prosecution for wounding. But we might say here that the entrapper has stepped so far beyond his function as a police officer that he can no longer be regarded as acting in his role as agent of the state at all—in which case no contradiction will arise in treating the conduct as publicly wrongful.28 Thirdly, consider differences in the kind of ‘inducement’ given to the defendant. At one end of the spectrum are cases where the ‘inducement’ almost amounts to duress in law. The defendant is threatened with violence to commit the offence, for example, albeit not violence that would quite suffice to ground a defence of duress. At the other end are cases in which the police merely provide the defendant with an opportunity to commit the offence. For example, a police officer waits in a park at night in order that a suspected rapist will attempt to rape her, or an undercover officer asks the defendant if he can purchase some firearms in order to induce him into illegal supply. Preventing the police from engaging in activities of the latter kind seems overly restrictive. This distinction between active inducement and the mere provision of an unexceptional opportunity to commit the offence has been criticised on the grounds that it problematically tracks the distinction between ‘known 27 On the other hand, it might be argued that there is still an inconsistency in inducing the attempt and then condemning its success, especially since what is intended to motivate D includes the prospect (as he sees it) of success. V has been the victim of a public wrong for which—unless he was party to the entrapment—he has a legitimate claim that D be called to public account; but perhaps the state’s role in inducing that wrong deprives it of the standing to call D to account. The authors do not have an agreed view on this point. 28 See n 13 above. This implies, of course, that the entrapper should also be prosecuted.

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criminals’ and the ‘innocent’: an unexceptional opportunity to the former may be regarded as an unacceptable inducement to the latter. But the evidential basis on which the distinction between known criminals and the innocent is drawn is problematic,29 and we agree that that distinction should not be treated as significant. What is an unacceptable inducement to an ‘innocent’ should be treated as an unacceptable inducement in all cases. Nevertheless, it is important to distinguish inducing the offence from merely passively lying in wait for it to occur. There is a tension between encouraging D to v and condemning D for ving that does not obtain, or at least not so powerfully, between creating an opportunity for D to v and condemning D for ving. The more powerfully the police press D to commit the criminal offence, the more there will be an inconsistency in later condemning D for doing so. There is a continuum of degrees of encouragement, and the law must draw the line somewhere. Where it should be drawn will perhaps vary depending on other features of the case. For example, as suggested above, it may be that if the entrapper was a private citizen prosecution should be stayed only if the inducement amounted to quasi-coercion, whereas something less will do if the entrapper was a police officer. Fourthly, consider the purpose for which the inducement occurs. In standard cases of entrapment, D is induced to commit the offence in order that he can then be prosecuted for it. But there might be other reasons why he is induced to commit the offence, which will weaken the claim that the prosecution should be stayed. For example, D might be encouraged to commit an offence so that another person can be entrapped: perhaps X, a police officer, induces D to offer to sell V an unlicensed firearm, hoping that V will accept the offer so that he can then prosecute V. There are two potential scenarios of this kind: in one D is aware of X’s identity and plan, in the other he is duped by X. In the former scenario, D thinks that he is assisting X’s effort to prosecute a supposedly dangerous person, and he might then believe that his reliance on official encouragement should result in a stay of prosecution. His case is much weaker than standard entrapment cases, however, since rather than being himself the victim of a trap, he is participating in the illegitimate entrapment of V; the wrong he commits is not merely the sale of an unlicensed firearm, but a substantial contribution to the attempted illegitimate prosecution of V. Nevertheless, as in standard entrapment cases, he might argue that the state cannot consistently encourage the offence and then prosecute him. If D is unaware that he is participating in such a plan, he cannot claim to have acted on official advice. On the other hand, his wrong is not compounded by the intention

29

See the discussion in Squires, 2006; see also G Dworkin, 1988.

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to contribute to an illegitimate prosecution and he can still argue that it would be inconsistent for the state to prosecute him after encouraging him to commit the offence. It is, we think, unclear whether the prosecution should be stayed in either of these scenarios. What is clear, however, is that the integrity principle must play a key role in determining whether there should be a stay of prosecution in these as in other cases. The integrity of the criminal justice system is valuable; in some cases it is sufficiently valuable to require a stay of prosecution where the defendant might otherwise be held criminally liable for his conduct. However, the integrity principle is not absolute: it does not require a stay of prosecution whenever there is a conflict between the attitudes displayed at different stages of the criminal justice process. There is no hard and fast rule requiring a stay of prosecution in every case, or every case of a particular kind. What we have done in this section is to outline the considerations that might contribute to arguments that the prosecution ought to be stayed, or to go ahead, in a variety of cases. This is intended to give proper weight to the value of integrity without abandoning proper respect for the victims of serious offences or a realistic attitude towards techniques of law enforcement.

8.3.2. Integrity and Improperly Obtained Evidence In this section we take up the issue of improperly obtained evidence that we began to consider in chapter four (at 4.3). Although the issues concerning improperly obtained evidence have much in common with those relating to entrapment, there are also significant differences. First, and most obviously, they differ in terms of the potential consequences of a violation of integrity. Whereas in successful cases of wrongful entrapment the normal consequence ought to be a stay of prosecution, where evidence is wrongfully obtained the evidence is excluded from the trial. But if other evidence against the defendant is sufficiently probative, a conviction may nevertheless be competent. The standing of the trial in calling the defendant to answer the charge and account for his conduct will only be compromised if it relies on wrongfully obtained evidence in convicting the defendant. There may, however, be some exceptions to this. In chapter four we began to investigate whether torture of the defendant by the state might justify exclusion of evidence on the basis of the integrity principle. But, the better view might be that if the state uses torture in the investigation of an offence, it loses standing to try at least the victim of the torture altogether. That, we suggest, may be so even if there is evidence entirely independent of the torture which has sufficient probative force that it would otherwise justify prosecution. This is primarily because in torturing D, the state

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denies D’s humanity in the most extreme way. Once that attitude has been taken to D, the moral standing of the trial, which itself rests on recognition of D as a fellow citizen, is fundamentally eroded. For this reason, we should see the state, in torturing D, as violating not only D’s rights, but also the right of the complainant to have a proper public investigation of the wrong perpetrated against him. In general, with the exception of confession evidence obtained through oppressive means,30 the common law of England and Wales has reflected reluctance to exclude evidence on the grounds that it was wrongfully obtained.31 However, an apparent opportunity to reverse this reluctance was created by section 78 of PACE, which provides that: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

As we noted in chapter four, this principle appears to create a broad invitation for the court to scrutinise the circumstances in which evidence is gathered, and to exclude it if it has been wrongfully obtained. Or at least, it does so if it can be shown that the fact that it was wrongfully obtained casts doubt on the ‘fairness of the proceedings’. That, however, is dependent on showing that the fairness of proceedings can be compromised on the basis of prior wrongs. Failure to admit that this is the case might explain why section 78 has not resulted in dramatic changes in the principles governing the admission of evidence. In the eyes of the law, the most powerful case for the exclusion of wrongfully obtained evidence is confession evidence obtained by torture. There, both the nature of the evidence (the confession) and the means by which it is obtained (the torture) have been thought to contribute to the reasons for excluding the evidence. We will begin by concentrating on this case and then see whether there are sufficient justifications for treating it as a special case, or whether the reasons that apply here can be generalised. As far as the nature of the evidence is concerned, caution is often thought particularly justified in the use of confession evidence. A number of reasons might be given for this. First, confessions are especially probative. Normally where the defendant confesses, he will also plead guilty, and so none of the evidence will be tested. But even where the trial 30 Governed by Police and Criminal Evidence Act (PACE) 1984 s 76. On the development of the common law see Bentley, 1998: ch 21. 31 See R v Sang [1980] AC 402. It is interesting to note that Scots law has generally taken a more restrictive view, at least in principle, requiring a balancing of interests between the state and the individual. See Lawrie v Muir 1950 JC 19. See also P Duff, 2004a; Maher, 1986.

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is contested, confession evidence is often regarded as particularly powerful. This is true even in inquisitorial systems where the defendant is not entitled to plead guilty.32 Despite the fact that untruthful confessions are not enormously uncommon, there is often good reason to treat confessions as particularly probative. This is both because confessions are probably very probative in many cases, but also because doubting the confession of the defendant may at least sometimes show him a lack of respect.33 Given that confessions are regarded as being particularly probative, there might also be thought to be good reason to be particularly careful in admitting confession evidence where there is a doubt about the reliability of the confession.34 However, any justification of that kind is difficult to articulate in probative terms. Consider a confession that is given in oppressive circumstances. No doubt the oppression here might be a reason to doubt the extent to which the confession is probative. But the oppression need not remove the probity of the confession altogether. The probative value of the confession is still probably much greater than the probative value of much evidence that is uncontroversially admissible. For example, an eye-witness report that someone of the defendant’s height and colouring was at the scene of the crime will often not be particularly probative of guilt, probably less so than confession evidence. So on probative grounds alone, there would seem to be little reason to exclude the confession evidence obtained by oppression entirely as opposed to merely alerting decision makers to its qualified probative significance. Furthermore, the general arguments presented against the deterrence-based and rights-based claims for exclusion apply with equal force to oppression with regard to confessions.35 A further reason that might be given for the particular significance of confession evidence is a consequence of the privilege against selfincrimination. In adversarial proceedings at least, the principle is often related to the claim that the defendant is entitled not to participate in criminal proceedings, a principle which we considered in the previous chapter. The principle might also be thought to apply to confessions

32 Although as McEwan (2003: 177–8) points out, this is in the face of a considerable psychological literature indicating that confessions are not reliable indicators of guilt. 33 Though this should not be understood as suggesting that protections are not required or that particularly vulnerable subjects should not receive special protection. Respect for the defendant might be manifested in different ways. 34 For a review of some of the issues surrounding the psychology of confessions see McEwan, 2003: 172–8. For a more theoretical discussion see Brooks, 2000. 35 There may be further arguments about the potential prejudicial effect of admitting coerced confessions. The high probative value of confessions may lead to the tendency to overvalue the probative significance of coerced confessions. It is very difficult to establish whether this is the case, or whether the tendency is any stronger than tendencies to probative error that juries might make in relation to other kinds of evidence.

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obtained by oppression. The oppression, here, might be thought particularly serious because it involves interference with the privilege against self-incrimination.36 If the defendant does not have a duty to cooperate with the state, forcing him to cooperate is doubly bad: oppressive means are used to compel him to do something that he is entitled not to do. However, for the principle to operate in this way, we must rely on our earlier defence of the integrity principle. For if the separation thesis is correct, using evidence obtained by oppression pre-trial cannot morally taint the trial itself. But if the integrity thesis is correct, perhaps there is some good reason to defend the orthodox view that obtaining confessions by oppression is a special case due to the nature of the evidence. There is a further difficulty with this claim, however: why should confession evidence be a special case? The principle against selfincrimination is quite general. If the defendant does not have to participate in proceedings by providing oral evidence of his guilt, why should he be required to provide other kinds of evidence against himself? Redmayne has argued, for instance, that what underpins the principle against selfincrimination is the right not to cooperate with state proceedings, and to distance oneself from the prosecution; but in that case, as he points out, the principle should apply to any evidence, confessional or non-confessional, that the defendant might be able to provide.37 Overall, then, it becomes difficult to see oppression used to generate a confession as a special case, at least if we focus on the nature of the evidence. Are we better, then, focusing on the nature of the oppression? Is it because the oppression is particularly wrongful that confessions obtained by oppression are to be regarded as special? In England and Wales, the test of whether the oppression used against a defendant was such that confession evidence ought to be excluded is laid down in s 76 of PACE, which was developed from ECHR Art 3.38 If the defendant is subjected to torture or cruel and degrading treatment, the evidence is to be excluded. Art 3 is treated as a particularly significant right in the ECHR: it is neither qualified nor subject to the possibility of derogation. This has been used to justify the exclusion of evidence obtained by torture even when the torture was perpetrated by third parties rather than by officials of the relevant criminal justice system.39 One obvious argument to look to here in justifying the exclusion of evidence is the wrong of association. The argument is that in using

36

See Dennis, 2007: 222. See Redmayne, 2007. See McEwan, 2003: 174–9, suggesting that coercion should be more broadly understood than oppression. 39 A v Secretary of State for the Home Department [2006] 2 AC 221 (although the decision is problematically ineffective given the distribution of evidential burdens). 37 38

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evidence obtained by third party torture, the court would effectively be condoning that torture. One potential difficulty facing this account, however, is that uses of the consequences of a wrong do not normally constitute condoning that wrong. Why is it not sufficient for the state to declare that it does not condone the wrong by condemning and if possible punishing the perpetrators, whilst still using the evidence? One answer is that, in using the evidence, we act as though some good has come from the wrong—which is not how we should treat serious wrongs. The difficulty with that answer is that it applies broadly, to wrongs which are not investigatory as well as to wrongs which are. So evidence that comes to light only because a rape or murder has occurred would according to this principle have to be treated in the same way as evidence obtained by torture, which would generate too broad an exclusionary rule. The PACE exclusionary rule applies to confessions obtained not only by torture but also by inhuman and degrading treatment, but it is less clear that courts should also exclude evidence that emerged as a side-effect of a wrong comparable in seriousness to inhuman or degrading treatment. For this reason, we think that the best explanation for the exclusion of evidence obtained by torture is that using the evidence would be, at least to a degree, legitimising the torture as part of the investigation. The torture would be providing a contribution to the investigation itself, whereas that cannot plausibly be said of evidence that came to light as a side-effect of a rape or murder. Since the rape or murder is not investigatory, the state may be entitled to treat it as incidental to the production of the evidence.40 But when torture is used precisely to investigate, the state cannot treat it as being incidental, and that is true whether the torture is perpetrated by officials or by private citizens. Of course, as we have noted, given the significance of trials and convictions, and the moral loss incurred when a person is not convicted for an offence where there are sufficient epistemic grounds for a conviction, evidence should not be excluded lightly. When there is evidence of a serious offence, in particular, the criminal justice system is rightly cautious in regarding its own wrongful conduct as grounds for excluding evidence. But when it does admit such evidence, moral compromise is involved. The justification of the conviction to the defendant and to the public at large becomes weaker when it is based on evidence wrongfully obtained. For

40 Or should we say that, if the wrong is serious enough, even evidence that emerges as a side-effect should be excluded (see n 21 above, and accompanying text)? Even if we should, investigatory wrongs are distinctive, and give us distinctive reason to exclude the evidence that they procure.

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such breaches of the standards of investigation that ought to apply to citizens of a liberal democracy undermine the trial’s legitimacy as a practice of reciprocal responsibility. So even if the very limited exclusionary rules that apply to wrongfully obtained evidence in criminal trials in England and Wales are ultimately justifiable as compared to the more expansive rules that hold in the United States,41 that would be true only because these rules exhibit a better compromise between the state’s obligations to treat citizens as citizens in the course of investigation, and to make declarations about public wrongdoing when it has occurred. Even if this is true, there are nevertheless substantial reasons to exclude evidence, reasons that the importance of securing convictions must outweigh if the evidence is to be admitted. Furthermore, even when they are outweighed, the moral status of the conviction, as a verdict whose justification depends on the proper process of reciprocal responsibility, is itself in part compromised.

8.3.3. Integrity and the Nature of Evidence The integrity principle is commonly used to motivate exclusionary rules of evidence. The common idea, explored in the previous subsection, is that where evidence is gathered using improper means it ought to be excluded from the trial. In this sub-section, we raise a different issue, about what should be considered evidence at all. The issue is not whether something which is agreed to be evidence should be excluded from the trial. Rather, we suggest, the idea of integrity can be used to exclude from the trial facts that have probative significance, on the grounds that they are not in the relevant sense ‘evidence’. Here is what might be thought a common-sense definition of what evidence is: E1: a fact, f, is evidence of a proposition, p, if the existence of f increases the probability of p being true.

E1 leaves open the possibility that evidence ought still to be excluded for reasons internal to the very idea of evidence: if, for instance, f increases the probability of p only infinitesimally, it might be excluded as lacking sufficient probative value.42 We wish to defend a different account of what evidence is, however: 41

On which see LaFave et al, 2004: chs 9–10. Courts may exclude evidence on grounds that it lacks ‘relevance’. We do not use the idea of relevance here, however, since it is used in current legal discourse to cover both the requirement expressed by E1 and that expressed by E2—f might be excluded, as lacking ‘relevance’, either because it does not increase (or does not increase by enough) the 42

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E2: f is evidence of p if the existence of f increases the probability of p being true and could in principle provide appropriate grounds for claiming to know that p is true.

The central difference between E1 and E2 is that whereas E1 focuses only on the truth of p, E2 also focuses on the character of the grounds for belief in the truth of p. Whereas E1 is purely factual, E2 thus opens the door to a normative account of evidence, by allowing for the possibility of normative restrictions on what facts can ground knowledge. E2 does not suggest that all normative grounds for excluding f as a ground for claiming to know p to be true exclude them as evidence. Only facts which in principle cannot be grounds for claiming to know p to be true are normatively excluded from constituting evidence. E2 thus maintains the distinction between evidence that should be excluded (for instance because it was obtained by oppression) and facts that on normative grounds do not constitute evidence at all. E2 is, we suggest, an important integrity-based principle with implications for some controversial issues in the law of evidence, including profile and bad character evidence. We can begin to see the basis for, and the importance of, E2 by recalling the normative nature of convictions.43 A guilty verdict condemns the defendant for public wrongdoing, and is just only if it expresses knowledge of the defendant’s public wrongdoing. Knowledge in this context involves the decision makers’ moral commitment to the conduct’s wrongfulness, and must be established through a communicative process involving reciprocal relations of responsibility between decision makers and defendant. If E2 is right, facts should be treated as evidence only insofar as they can contribute to knowledge in this morally enriched context. This is a further manifestation of the integrity principle. The trial will have moral integrity, we suggest, only if its treatment of facts as evidence respects its basic normative foundations in reciprocal relations of responsibility manifested through the communicative process. This might lead us to exclude some kinds of fact as constituting evidence even if those facts have probative significance. If a fact is of a type that is in principle incapable of being presented in a communicative forum of reciprocal responsibility, it does not constitute evidence—what should count as evidence in a trial. Examples of such facts might be facts about the defendant’s profile.44 Suppose that general features of the defendant’s profile (including, for example, his race, gender, socio-economic background, place of residence

probability that p is true, or because it does not constitute an appropriate ground for claiming, in the context of the trial, to know that p is true: see Dennis, 2007: ch. 3; Roberts and Zuckerman, 2004: ch 3. 43 See ch 3 above. 44 For a review of the issues here see McEwan, 2003: 149–70

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and so on) have probative significance as making it substantially more likely that he committed the kind of offence with which he is charged. Are such facts about his profile evidence, in the sense relevant to the trial, that he perpetrated the offence? Against treating such facts as evidence is the claim that it is inconsistent to present such facts as constituting evidence of the defendant’s guilt whilst claiming to treat him as a responsible citizen. Treating the defendant as a responsible citizen involves respecting his autonomy, and respecting his autonomy requires that we do not see such statistics as increasing the likelihood that he perpetrated the offence. Such facts are generalisations of features of D’s identity; to treat them as evidence in a criminal trial would fail to respect the way in which D’s motivations should be assessed individually and not merely on the basis of class membership. Because such facts are in principle incapable of contributing to knowledge in the morally enriched forum of the criminal trial, they cannot constitute evidence in a trial. If a fact-finder is to be justified in convicting the defendant, she must be in a position to say to him ‘I know you are guilty, because …’, the ‘because …’ to be filled in by the reasons that ground her claim to knowledge.45 To include such facts about his profile in that account of her reasons would be to insult him by implying that he is a prisoner of his group membership; that is why they should not count as evidence in a criminal trial. Facts such as these are to be distinguished from specific facts pertaining to the case. For example, in some crime fiction (PD James’s The Skull Beneath the Skin is a classic example) there is a limited range of suspects who could have committed the offence, for example because the offender was one of a small group of people on an island when the offence was committed. In that case, the fact that D was on the island is evidence against him. That D was there is not a general feature of D’s profile; it is a specific fact about D that connects him to the case. Such evidence is, in principle, available as evidence against D: it could contribute to knowledge of D’s guilt. Treating D’s presence on the island as evidence against him does not fail to respect his autonomy. His membership of the class of people on the island is not a generalisation of a feature of his identity. Profile facts are also to be distinguished from, for example, the fact that D had a particular motive for killing V. Suppose that V was D’s wife, and that he had recently discovered that she was cheating on him. Clearly this is evidence that it was D who killed V, based on a generalisation about the ways in which people respond to infidelity. That does not wrongfully treat D as a member of the class of cuckolds. The explanation feeds into a

45 Indeed, we suggested in ch 7.5 above that fact-finders should be required to give those reasons.

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specific account of D’s actions in particular rather than some general features of D that tend to reveal him as a ‘criminal type’. We can now see the contrast with wrongfully obtained evidence more clearly. Wrongfully obtained evidence consists in facts that could in principle contribute to establishing that the defendant was guilty of the offence in question; but in the particular case the evidence is inadmissible, because of the way in which it was obtained. We might call this an external bar on the use of the fact as evidence. In the case of profile evidence, on the other hand, it is the nature of the fact itself that prevents it from contributing to a conviction: there is an internal bar on the use of the fact as evidence. This is why E2 requires only that the fact be capable of contributing to knowledge in principle. There may be external bars on the use of certain facts as contributions to knowledge, but those external bars do not undermine the nature of those facts as evidence. This argument might also be used in relation to the treatment of previous convictions as evidence of further offending.46 Arguments about the use of previous convictions as evidence generally revolve around the relative probative significance and prejudicial effect of that evidence. If the prejudicial effect of introducing previous convictions is more significant than their probative significance, the argument goes, they ought to be excluded.47 Arguments of this form already assume that facts about previous convictions constitute evidence, presenting further claims to do with prejudicial effect which, in order to be effective, must outweigh the probative significance of the facts. However, the argument we offered in chapter 4.4 suggested that previous convictions should in principle not count as evidence of the defendant’s guilt at all, even if they make it more likely that he committed the offence. If we are to treat the defendant as a responsible, ie reason-responsive agent (and especially if we see punishment as a communicative process that aims to persuade the offender to recognise the wrongfulness of his conduct), we should not take the fact that he was convicted even of a fairly similar offence in the past as evidence, of a kind appropriate to a criminal trial, that he is guilty of the offence with which he is now charged. We will not repeat that argument (or its qualifications) here; the point to note here is simply that it too depends on the principle of integrity—integrity as integration. If the trial is now to address the defendant in terms that are properly consistent with his treatment by the criminal justice system in the past, it must address him, as his previous punishment addressed him, as a responsible agent whom punishment could dissuade from further offending. But if it now treats his past criminal record as evidence of his present

46 47

See ch 4.4 above. On different sides of this debate are Redmayne, 2002, and Lloyd-Bostock, 2000.

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guilt, it assumes that he will not have been thus dissuaded; this is inconsistent both with the terms in which he was previously addressed, and with a proper conception for him as a responsible agent. Thus with criminal record as with profile evidence, argument must move away from a focus on the balance between probative value and prejudicial effect, into a richer normative discussion of what should constitute evidence in the kind of reciprocal communicative forum that the trial purports to be.

8.4.

CONCLUSIONS

The integrity principle has been an influential but also a puzzling principle of criminal justice. Defending it has proved difficult, although people have strong intuitions about the justice of excluding wrongfully obtained evidence (particularly if the wrong is investigatory as well as serious), and of staying prosecutions if the defendant was entrapped (particularly if the offence was harmless, and the entrapper actively encouraged it). These intuitions are particularly powerful where the wrong is perpetrated by a criminal justice official. The account of integrity that we have offered here is grounded in our communicative account of the trial. The communicative norms at trial flow from the reciprocal relations of responsibility that are central to its legitimacy; those norms also govern the proper principles of investigation. For this reason, the trial cannot be regarded as normatively insulated from other features of the criminal justice system. We suggest that this explains many of the strongly held intuitions that scholars have had about exclusionary rules of evidence and the law of entrapment. It also helps to explain the ambivalence that is commonly felt where comparable wrongs are perpetrated privately. On the one hand, when the private wrongs are investigatory, perhaps the trial cannot ultimately distance itself from them; in relying on the evidence, there would be at least a degree of complicity in the wrong. On the other hand, such wrongs are not perpetrated by the state, and so the trial is perhaps not tainted to the same degree when it relies on their fruits. Finally, we suggest that the integrity principle is also important in helping to provide an account of a less familiar question, the question of what evidence is. The integrity principle, when it is developed from the communicative theory of the trial, can help to explain commonly held intuitions about probative facts that ought not to be treated as evidence of wrongdoing. The integrity principle, then, is not just superior to other principles, such as deterrence or rights based principles, that have been used to ground accounts of exclusionary rules and of entrapment. It also

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helps us to understand a broader range of issues to do with evidence that have not generally been related to these questions.

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9 The Public Character of the Trial 9.1.

INTRODUCTION

A

FUNDAMENTAL PRINCIPLE of the law of many modern societies is that justice should be done in public before an open court. This link between the fair trial and the public trial is made in many constitutional documents, and its recognition in this form can clearly be traced to the codifications of state power and criminal law that took place at the end of the eighteenth century.1 The principle of public justice is also enshrined in more contemporary human rights instruments, such as the European Convention of Human Rights (ECHR), suggesting a link between this principle and the ideas of democracy and respect for individual autonomy that animate these documents.2 The centrality of the principle is also reflected, for example, in the protest which met the decision of the US to try detainees in Guantanamo Bay in secret hearings.3 Yet while we might agree that secret or closed hearings offend the principle of public justice, the basis of this principle is rarely articulated either in legal decisions or in more theoretical writings on criminal procedure.4 The fact, for example, that the European Court distinguishes between the need for a public hearing and the requirement that judgments be pronounced

1 See, eg, US Constitution, 6th Amendment; Irish Constitution 1937, Art 34.1. See Jaconelli, 2002: 4–6 for other examples. The principle is contained in the 1808 Code of Criminal Procedure in France (Art 306 of 1980 revision). See section 3a below for discussion of the origins of the principle. 2 See ECHR Art 6(1): In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … Judgment shall be pronounced publicly but the press and public may be excluded … in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. For the case law see Trechsel, 2005: ch 5. 3 Hamdan v Rumsfeld 126 SCt 2749 (2006); see now also The Guardian (10 March 2007). See generally Kadri, 2005: 279–80. 4 One recent exception is Jaconelli, 2002, although this focuses on the application of the rule of public justice, rather than on clearly articulating a basis for that principle.

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publicly suggests that neither the content of the principle nor its justification are necessarily as clear as they might be.5 Indeed, when we look at the arguments given in support of public justice we find inconsistency and contradiction, and that the basis of the rule is far from clear. One reason that is frequently offered in support of the rule is that public justice is more accountable by reason of being open to public view. This reason is born of the experience of state oppression. In England the use of the Star Chamber by the Tudor and Stuart monarchs, though it was abolished in 1641, is often cited as a reminder of the potential abuses of trials held in secret.6 Indeed, it is an important part of the self-image of English criminal procedure that the public jury trial compared favourably with the more oppressive and secret inquisitorial proceedings of continental jurisdictions.7 In Scotland, the passing in 1693 of an Act of Parliament guaranteeing public trial was seen as an essential part of the constitutional settlement following the revolution of 1689.8 In France, Germany and Italy the use of secret proceedings was a key grievance of penal reformers such as Voltaire and Beccaria who argued in favour of a public and codified criminal law.9 The principle of public justice was thus seen as fundamental to the recodifications of political power that established the modern state. Yet at the same time, modern states have witnessed some of the greatest abuses of public justice in, for example, the show trials of Soviet Russia, where the problem was not the secrecy of the proceedings, but the very use of publicity to legitimate political trials. Indeed, an unease about the potential for publicity to distort the operation of the criminal trial continues to run through debates over public access and the broadcasting of trials. Here it is often suggested that the solemn character of criminal trials might be diluted if they were to become merely another form of entertainment.10 This concern also points to the fact that public justice in the modern state is frequently mediated through the press and television, and the role of such media in the publicising of trials is something to which we shall have to return in the course of our discussion. Plainly then, publicity is not a sufficient condition of justice, though it may play an important role in the legitimation of the criminal trial. We should note at the start, however, that there may be reasons for protecting the public character of the criminal trial that do not hold in the

5

Trechsel, 2005: ch 5. Though recent historical work has challenged this view of the Court of Star Chamber: see Barnes, 1961. 7 See, eg, the passing references to despotism, lettres de cachet and the liberties of the English in the judgments of the House of Lords in the leading case of Scott v Scott [1913] AC 417. 8 Act anent Advising Criminal Processes with open doors APS 1693 c 27. 9 See, eg, Beccaria, [1764] 1995: chs 14, 15. 10 See, eg, Department for Constitutional Affairs, 2004; Jaconelli, 2002: ch 9. 6

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same way for civil disputes or trials. In other words, there may be grounds for arguing that criminal trials are distinctive, and that the arguments in support of a public hearing are stronger here than elsewhere in the law. The reason for this is quite simply that the criminal law is dealing with public, not private, wrongs and as we have already argued earlier in the book, its function in articulating those norms, expressing disapproval of wrongdoing, and communicating disapproval of that wrongdoing to the accused is necessarily of a public character—though obviously much more needs to be said about the scope of publicity or of any exceptions to this rule. This, however, is an important point, for it is a way of addressing the puzzlement of certain commentators when faced with the task of explaining the basis for the principle of publicity. In this context it is often suggested that there is no internal connection between the right to a fair trial and publicity: a trial may be fair yet not public, for the fairness of the proceedings seems to be independent of any requirement of publicity.11 There may be reasons of political expediency or utility for making criminal proceedings public—to demonstrate the fairness of the proceedings or to deter others from committing similar crimes—but these seem to have no clear connection with idea of a fair trial as such. By contrast, we shall argue here that there is a clear connection, and that it is to be found in this core idea that breaches of the criminal law are forms of public wrongdoing for which members of the community are publicly called to account—and through which the institutions of the criminal justice system can themselves be held accountable. In this sense, public justice must be seen as a core element of the process of calling to account that we have argued lies at the heart of the criminal trial. This, as we have already argued, is an important basis on which the practice of plea bargaining can be criticised, which is not true in the same way for civil disputes. While there may be important reasons for civil trials to be public—and these may overlap with the reasons for public criminal trials—private parties may settle at any time, and the grounds of that settlement need never be made public, without offending the principle of public justice.12 This cannot be the case in the criminal law, as we have shown, where the process of calling to account for a public wrong is disrupted by private or informal settlement. In this chapter then, we must elucidate more fully the basis and scope of the requirement that trials be public.

11 On this point see Trechsel, 2005: 120; Summers, 2007: ch 6. It is suggested that the corollary of this is the vagueness of the right to public trial: who should be able to enforce this right? Not necessarily the accused, as it may often be in their interest to insist on privacy or secrecy of proceedings. See section 3.3 below. cf the 6th Amendment to the US Constitution which establishes public and speedy trial as a distinct right. 12 See Jaconelli, 2002: 54–8, noting that there is an exception in English law in cases of defamation, false imprisonment and malicious prosecution.

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The argument will proceed in three sections. In the first, we will examine some of the possible rationales for the principle of public justice, from the capacity of publicity to enhance the truth-finding functions of the trial, to its capacity to prevent political persecution, and finally to the ways in which it is linked to the communicative capacity of the trial. In the second section, we shall examine the meaning of the term ‘public’: what does it mean to say that proceedings are public? This requires that we say something about the relevant part of the proceedings that must be public; what the requirement of publicity might entail; the kind of exceptions to the requirement of publicity that should be permitted. We shall also address here the question of whether it makes sense to talk about a right to a public trial. Third, as a means of illustrating the scope of the principle, we shall address two contemporary controversies about the public character of the criminal trial: the televising of trials and the privacy of jury deliberations. 9.2.

WHY PUBLIC JUSTICE?

The basis of the principle of public justice has rarely been articulated. While it has undoubtedly been understood by common lawyers to be the established practice of trial courts, there is surprisingly little discussion of why this should be the case.13 To the extent that the principle was discussed by early writers on the common law, they laid stress on the dangers of secret accusations, and the importance of allowing the accused person to confront their accuser. Thus, Sir John Fortescue, writing in the fifteenth century, stated that witnesses must testify ‘in the presence of twelve trustworthy men of the neighbourhood in which the fact in question occurred’ to prevent secret or dishonest accusations.14 Blackstone, likewise, pointed to the importance of public accusation and the possibility of confronting adverse witnesses.15 This has led to the suggestion that the right to a public hearing has at least an affinity with the adversarial model of trials. In adversarial proceedings the defendant should be seen as a participant in the process rather than its mere object, and as such should have the right to have access to the prosecution’s case. An inquisition conducted against the defendant in secret would not enable any meaningful participation on his part. It would be an investigation of him rather than engaging him as a responsible citizen. Similarly, as we argued in the previous chapter, ensuring that the trial respects reciprocal relations of 13 We shall focus on the common law here, since it is generally accepted that continental penal reformers followed English practice in the adoption of public trials. 14 Fortescue, 1997: 41–2, before going on to contrast this with criminal procedure in France—a trope that was characteristic of panegyrists of the common law. 15 Blackstone, 1765–9: iii. 373. See also Smith, 1565: bk II, c 23.

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responsibility requires that the defendant has the right to confront those who make accusations against him, as well as those who provide evidence against him. The right of confrontation, we suggested, does not derive primarily from any evidential benefits, but rather from the extent to which it enhances respect for the defendant by treating him as a responsible citizen, tried by his responsible peers. This argument provides a rationale for publicity of a kind: the content of the prosecution’s case must be publicised to the defendant and evidence must be given by witnesses in the defendant’s presence, to allow meaningful confrontation on his part.16 One important aspect of the rationale for public justice is to ensure transparency to the defendant in particular so that he can mount a proper defence. Public justice in this sense is a challenge to the idea of trials that require minimal disclosure to the defendant of the charges brought against him and of the prosecution’s case—which has implications not only for the trial but for pre-trial procedure as well. However, this conception of public justice is insufficient to establish the right to a public hearing, publicised not only to the defendant, but to the public more generally. At best, as Roberts and Zuckerman note, these arguments show that there is an affinity between the right to participate in one’s own trial and the right to public justice.17 The principle of public justice—a trial which is open to the general public rather than to the defendant alone—cannot be established through the right of participation, for one’s right of participation might be fully guaranteed by trials which exclude the general public. If we are to understand the basis for the principle of public justice, we must therefore consider other potential rationales, which would establish the principle on a broader basis than that offered by the rights of confrontation or participation. We begin (in subsections 9.2.1 and 9.2.2) with two instrumental rationales that are sometimes offered for public trials: the argument that public trials enhance the ability of trials to establish the truth; and the argument that they encourage officials to adhere to independent standards of fairness. We then offer what we take to be a more plausible rationale, grounded in the communicative character of the trial.

16 This was an important element of the reform of procedure in the nineteenth century that established the modern trial. The Prisoners’ Counsel Act 1836 required the disclosure of the depositions taken at committal proceedings to the defendant, though not necessarily the depositions of other witnesses. The defendant was not entitled to a copy of the indictment in felony trials until the passing of the Indictments Act 1915. 17 Roberts and Zuckerman, 2004: 52.

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9.2.1. The Argument from Epistemic Capacity Let us begin by considering whether public justice enhances the capacity of the trial to fulfil its aims of establishing truth and knowledge: the argument from epistemic capacity. This is one of the principle arguments made by Bentham, an enthusiastic proponent of the potential of public justice, who offered one of the first systematic defences of the modern principle.18 His argument was that publicity acts as a means of discouraging witnesses from lying, as the false statement could come to the attention of other potential witnesses, who would thereby be moved to contradict its claims. Witnesses who might be tempted to perjure themselves would hesitate to do so, feeling the eyes of the public upon them. The fear of discovery would thus potentially act as a means of discouraging perjury or false testimony, or more generally act as a prompt to witnesses to assist the court by adding their testimony to that already in the public domain.19 From this we can see that there are two dimensions to the argument from epistemic capacity. First, public justice is said to improve the quality of evidence actually presented. It might achieve this both by restraining witnesses from lying and by encouraging them to report truthfully. Second, public justice might act as a stimulus for the production of more true evidence. Evidence given in public, whether true or false (but particularly if false) might encourage witnesses to come forward whose evidence would otherwise be unavailable at the trial. The arguments from epistemic capacity are, in and of themselves, insecure. Against the epistemic benefits of public justice must be balanced some epistemic burdens. First, the tendency of public justice to improve the quality of evidence will vary from witness to witness. There might be witnesses who are inclined to lie in private, but who would tell the truth in public as a consequence of the greater chance that the lie would be discovered. On the other hand, there may be those who would tend to give fuller and more truthful evidence in private, particularly if the information that they have is embarrassing or stigmatic. There may also be those who are intimidated by the public setting, who would be more articulate in a more intimate and private environment. This may be particularly true, for example, of complainants in sexual abuse cases or of children, where there is sometimes a restriction on the requirement to be present in the court in person, but it may apply with at least some degree of force to a much larger group of witnesses.20 Second, public trials might hinder as well as stimulate the production of new evidence. Some witnesses, who might have been willing to give 18 19 20

Bentham, 1827: bk II, ch x. Ibid 522–3. See also Jaconelli, 2002: 34–45.

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evidence in a private session, would not be willing to give evidence in open court. This is likely to be for the same set of reasons just considered. Furthermore, the fact that the public has a right to attend a trial does little to encourage witnesses to come forward if in fact members of the public are rarely present at trials, as is the case in reality. It should also be noted, of course, that Bentham was writing in a period before organised policing and prosecution. At that time it might have been imperative to encourage witnesses to present themselves; for us the problem is rather that of ensuring the quality or reliability of the testimony of those witnesses already located by the police or through the publicising of the crime before the trial takes place. The idea that public trials enhance their epistemic capacity is certainly difficult to defend in any uniform way across trials, and it is quite difficult to defend at all. It is, of course also argued that the public trial could prevent secret accusations or denunciations, a claim which might be seen as being linked to the argument from epistemic capacity. However, whilst this rationale is, as we have noted, of historical significance to the common law tradition, it is not clear that it enhances truth on its own (for the reasons given above), or whether it is linked to a separate claim about an independent right of confrontation, regardless of whether such confrontation might enhance the epistemic capacity of the trial. Overall, then, the argument from epistemic capacity is weak. Even if it has some force in some cases, it is hardly sufficient to defend a right to public justice, let alone the human right to public justice that is enshrined by the European Convention of Human Rights. 9.2.2. The ‘Court of Public Opinion’ A second type of claim is that the political legitimacy of the criminal trial rests in part on it being held in public. There are a number of aspects of political legitimacy that might be enhanced by trials being held in public. The argument under consideration in this section is that justice should not only be done but should be seen to be done, and that ensuring the latter is a way of securing the former. A crucial component of legitimate trials is that they are conducted in a fair and impartial manner; that decision makers are motivated by concerns of justice and only those concerns. It is commonly argued that conducting trials in public will be a way of ensuring that decision makers properly respect concerns of justice by making the judge accountable to the ‘court of public opinion’.21 In Bentham’s frequently quoted formulation, recalling the principle of the panopticon, the judge while judging is simultaneously 21

Bentham, 1827: bk.II, 523.

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being judged by those members of the public who are observing the proceedings, and this acts a brake on any urge they might have to act according to individual or political bias.22 On this conception, the role of public scrutiny is primarily instrumental: it will tend to ensure that independent concerns of justice will be tracked effectively by decisions in trials. As such, one would need to be aware of countervailing concerns: that public pressure for a particular verdict or for particular irrelevant reasons to be taken into consideration in the decision will bear negatively on the extent to which decisions track concerns of justice. This is a common defence of the privacy of jury deliberations: concerns that bias will go unchecked, it is sometimes argued, are counterbalanced by the need to ensure that the jury can deliberate openly and freely without public pressure or pressure from the defendant, his friends and family. In addition, there may be a public perception that ‘technical’ rules of evidence and procedure are unfair and that the trial is not adequately aiming at the truth, putting pressure on the judge to apply those rules less stringently.23 We should note, however, that the ability to create such pressure (or indeed to provide the kind of scrutiny envisaged by Bentham) does not necessarily require the actual presence of members of the public at trials, as the media (particularly newspapers and television) are increasingly central to the reporting of criminal trials. Indeed, the fact that members of the public are rarely actually present at trials increases the power of the media to represent (or misrepresent) certain issues as public concerns, and thereby to increase pressure on judge and jury to favour a particular outcome. The argument for public scrutiny, insofar as it is persuasive at all, seems to be an argument in favour of requiring impartial public observers rather than of the right to a public trial.24 Of course, it may be argued that public scrutiny of trials should not be understood on a trial by trial basis, but rather as a general claim for public involvement in scrutinising the criminal justice process to ensure that it generally meets standards of fairness. But even then, it would need to be shown that the public conception of criminal justice that provides the standard of public scrutiny of trials enhances fairness overall, and that is difficult to establish. Given the prevailing attitude of most of the mass media to criminal justice, it would be surprising if public attitudes to justice could be seen as a guarantee of enhanced justice.

22 ‘Upon his moral faculties it acts as a check, restraining him from active partiality and improbity in every shape: upon his intellectual activities it acts as a spur, urging him to that habit of unremitting exertion’ (ibid). 23 Garapon (1996: 233) points out that press and TV offer an immediate (ie unmediated) version of the truth, which is presented as superior to that of law which is regarded as vulnerable to the technicalities and the manipulations of lawyers. The trial is, by contrast, as we have argued, mediated by lawyers and witnesses. 24 See also Trechsel, 2005: 121.

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Finally, it would be remiss not to recall in this context the way in which public trials have historically been used, and still are used, as a way of legitimising the power of the state. While the most extreme and systematic examples of this took place in the Soviet Union under Stalin it is important to note that this was neither unique to the Soviet regime nor a feature only of ‘political’ trials.25 Recent events, such as the trial of Saddam Hussein, show how the criminal trial might be used to seek to demonstrate the fairness or impartiality of a political order, as compared to those which preceded it, whilst other trials might acquire unanticipated political resonances such that the state has a particular interest in either the outcome or the procedure.26 Such trials can only call into question the instrumental efficacy of public trials in ensuring that standards of fairness are met, as the demand for legitimacy may be driven by state demands or requirements and will depend on prevailing social conditions that will vary from place to place and time to time.27 That trials are held in public can be as much an instrument of illegitimate public power as a disciplining mechanism to ensure fairness. The possibility of using the symbolic power of the trial to achieve unjust and coercive ends erodes the confidence that one can have in their instrumental efficacy in contributing to independent standards of fairness. The instrumental defence of public trials, then, insofar as it is a defence at all, is insecure. It depends on empirical claims about the tendency of public scrutiny to ensure correctness that are difficult to verify, and which probably do not obtain in the majority of cases, either because of countervailing considerations of illegitimate public pressure or because members of the public are not in fact present in most trials. If the right to a fair trial is to be used as a justification of public trials, we will need a more foundational moral and political theory to ground the right, one that is not simply based on the instrumental potential of the public trial in achieving fairness. 9.2.3. A Communicative Defence of Public Trials So far, we have focused primarily on defences of public trials that are grounded in the defendant’s right to a fair trial. We concluded that if this is understood in instrumental terms, it is difficult to establish that the fairness of trials is enhanced in any substantial and uniform way by their being held in public. There are instrumental claims that might be made for and 25 For a brief review of the Stalinist show trials, see Kadri, 2005: ch 6. On political trials generally see Kirchheimer, 1961. 26 This was also true of the Nuremberg trials and of the trial of Eichmann. See Arendt, 1994; Douglas, 2001, 2006. 27 For fuller discussion of these issues see ch 10 below.

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against public trials which are quite difficult to assess, as the empirical grounds for the right to a fair trial are unclear. Ultimately, we will come back to the right of the defendant to have a public trial and suggest a way to ground that right, but in order to get to that point, it may be better to begin with our more general communicative rationale for the criminal trial. That account will form the backdrop to discussions of who should be able to exercise the right that trials be public. Let us begin with public verdicts. The necessity of giving verdicts in public is sometimes defended independently from the right that the trial itself should be conducted in public.28 We can immediately see, from our account of criminal law and criminal trials defended in previous chapters, why public verdicts should be regarded as particularly significant. The defendant, we argued, is called to answer and to account for perpetrating a public wrong. A verdict of ‘Guilty’ constitutes a condemnation of the defendant as a public wrongdoer, a condemnation that, at least in the institutional voice, articulates a commitment to the relevant norms of the criminal law. It is not difficult to see why this condemnation should be public. A public wrong is a wrong which the public have an interest in prosecuting and, if a conviction is warranted, condemning. Public condemnation of this kind obviously requires that there be public knowledge of the conviction. An acquittal, by contrast, is a formal declaration that the presumption of innocence has not been defeated; as such, it must be public if it is to carry its appropriate meaning as a declaration by the whole polity. This alone, however, does not make the demand for public trials immediately transparent. In order to establish whether the defendant has committed a public wrong, it is clear that decisions in the trial must be taken by representatives of the public: individuals who can be trusted to ensure that it is only those defendants who deserve public condemnation who are convicted of crimes.29 But given earlier arguments that the interests of justice are not necessarily enhanced by other members of the public having a right to be present during the trial, are there any other reasons why they should be invited to be present? Here we should return to the nature of convictions as public condemnation. (Analogous points apply to acquittals, but we focus here on convictions, as raising the relevant issue more sharply.) Condemnation, we suggested, is justified if the trial has established knowledge of public wrongdoing by the defendant. Such condemnation purports to be in the name of the public, in the sense that it condemns a wrong with which the public have a proper concern. But if condemnation is in the name of the public, members of the public have a right to ensure that they are satisfied 28

Trechsel, 2005: 119. For our purposes here legal officials, such as judges, can also be taken to be representatives of the public. 29

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that the condemnation was justified. This cannot be achieved merely by knowledge of the verdict, but also requires that in any individual case the public should be able to scrutinise (through presence in court or some other form of access to the court proceedings) both that the grounds for the verdict were adequate and that the proceedings were conducted in a fair manner. Furthermore, although the trial is intended to be representative of the public, citizens in a liberal democracy should have the right to distance themselves from public decisions, including decisions to prosecute and convict defendants.30 Whilst convictions constitute public condemnation of the defendant, citizens are entitled to express the view that any or all such convictions are ‘not in their name’ in the sense that there is disagreement over either the content of the norms or their application in a particular case. This is only consistent with the demands of liberalism to be tolerant of dissent about the proper content, scope and application of definitions of public wrongs. Obviously the ability to take a critical view about criminal convictions that is the foundation of this entitlement is dependent on the right to know the conditions under which the defendant is convicted. Protecting the right of citizens to distance themselves from prosecutions and convictions is a necessary condition of public condemnation properly understood. A system of condemnation which does not protect the right of the public either to affirm or deny that condemnation can hardly be called public in the proper sense. The right to critical scrutiny of the trial, then, is not to be regarded as valuable for the benefits that it has in ensuring that the trial meets other, independent, standards of justice. Rather, it is required in order to ensure that convictions have the appropriate standing as expressions of public condemnation. Trials and punishments for public wrongs require a defence of the right to public scrutiny and participation. But we should not only think about the impact that public trials might have on the public in negative terms. We should also hope that trials, properly conducted, will have an educative role.31 Criminal trials, as we conceive them, are designed to show the proper degree of respect for those who are suspected of public wrongdoing. Trials might display to the public not only the norms of the criminal law, which is commonly regarded as an ambition of the criminal justice system, but also the norms of criminal justice. Just as criminal offences have a communicative role in outlining what the polity holds to constitute public wrongdoing, so the rules and practices of criminal justice

30

See also Redmayne, 2006b. See also Bentham, 1827: bk II, 525: ‘[B]y publicity, the temple of justice adds to its other functions that of a school: a school of the highest order, where the most important branches of morality are enforced by the most impressive means’. The didactic functions of trials are also explored in Douglas, 2001. 31

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communicate to the public the norms according to which suspects should be treated. Trials have a symbolic role in affirming the values of citizenship that apply even to those whom we suspect of violating the most fundamental values of the state.32 This also helps to explain something that we suggested in chapter six, that public trials should not be required in all cases, particularly if the wrongs are relatively minor. It is not that the wrongs are not public in these cases; for them to count as truly criminal they ought to be of public concern. It is rather that it may be fair to assume public trust in the system in condemning more trivial wrongdoing. Furthermore, in such cases, citizens who wish to distance themselves from the relevant convictions will generally do so as a whole and as a class rather than on a case-by-case basis. Finally, the educative function of criminal trials is less pressing in these minor cases, for there is less of a tendency to over-retribution for minor wrongdoing. Overall, then, the value of holding trials in public lies in the critical scrutiny of trials that this allows. But we should not see this in instrumental terms, in improving the extent to which trials will track independent values of procedural and substantive justice. Rather we should see it in terms of the rights of citizens either to affirm verdicts or to distance themselves from them, rights that are grounded in the critical independence that liberal democracies ought to afford their citizens. In terms of the popular formulation, it is not just that justice should be seen to be done—which suggests a purely contingent relationship between justice and the public—but that a trial in which justice is not seen to be done cannot properly be said to be just. Now we can see why defendants should have a right to a public trial. That right should be seen as a right to have their trial subject to this kind of critical scrutiny. Defendants have a right that, if the state is to declare that they have committed a public wrong, this should be capable of being affirmed or denied by members of the public. A ‘Guilty’ verdict, in condemning the defendant, purports to do so in the name of the public, and consequently invites both approval of it and condemnation of the defendant by the public. The defendant should be entitled to have that decision subjected to public scrutiny, and the possibility that citizens will distance themselves from the verdict to which this gives rise. Once again, the defendant’s right to a public trial is not grounded in ensuring that

32 See also Hildebrandt, 2006; Clark, 2006. This might extend more broadly still: When the basic structure of society is publicly known to satisfy its principles for an extended period of time, those subject to these arrangements tend to develop a desire to act in accordance with these principles and to do their part in institutions which exemplify them. A conception of justice is stable when the public recognition of its realization by the social system tends to bring about a corresponding sense of justice. (Rawls, 1972: 154).

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independent standards of justice are met, for those standards might be supported or hindered by holding trials in public. Rather it is grounded in the opportunity that ought to be afforded to defendants to have the verdict called into question by the public in whose name it purports to be delivered.

9.3.

THE PUBLIC HEARING

If this sets out a clearer justification for the principle of public justice, it does not yet address the question of what ‘public’ should mean in this context. To answer to this question we must address a number of distinct issues. First, we must ask which parts of the trial process should be open to the public. We have discussed the distinction between verdict and hearing to argue that the public character of the trial requires that more than the verdict alone should be public, but this raises further questions about the extent to which pre-trial procedures should be public—or the justification of restrictions on pre-trial publicity. Second, it raises important questions about the preconditions and forms of public scrutiny: what kinds of public access are likely to encourage or facilitate the proper forms of scrutiny? Finally, we must return to the question of the right to a public trial, to discuss the issue of the form and limits of such a right.

9.3.1. Which Part of Criminal Proceedings should be Public? The jurisprudence of the European Court of Human Rights limits the right to a public trial to the hearing itself.33 This reflects a broader understanding of the right to a public trial that developed over the course of the nineteenth century. And while this might mean that the Convention itself can have differential application, depending on the relation between pre-trial and trial procedure in different jurisdictions, it is important to note that this understanding of the centrality of the public hearing cuts across conventional distinctions between adversarial and inquisitorial procedures.34 The recognition of the value of public justice was something that took shape across Europe in the late eighteenth and nineteenth centuries. In part this reflected the reaction against absolutism in which grievances about the abuse of power in the criminal law—torture, arbitrary punishments, and secret trials—played a central part. Indeed, the reformers in many European countries looked towards England as the model of public justice, 33 34

See Trechsel, 2005: 122. See Summers, 2007: ch 2.

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though no specific principle of public justice had been articulated there.35 However, the changing perception of the value of the public trial was also a result of changes in the practice of punishment, changes which had a significant impact on the understanding and scope of public justice even in England. Critics of the Bloody Code there were concerned not only that the use of capital punishment was ineffective, but also that the public display of authority that was the spectacle of the scaffold was too easily subverted, as the condemned refused to display the necessary contrition and the behaviour of crowds became increasingly difficult to manage. The reformers argued that the criminal justice system resembled a lottery in which few offenders were detected, fewer still convicted, and capital punishment was inflicted mainly on those unfortunates who did not have the social resources to make a successful plea for mercy.36 In the early part of the nineteenth century the Bloody Code was repealed to be replaced by new institutions of policing and punishment, principally the penitentiary but also transportation, that offered the possibility of more certain detection and the more measured infliction of punishment. Punishment increasingly became a secret process, hidden behind the walls of the prison, operating on the soul or mind rather than on the body of the condemned person.37 A consequence of the decline of the idea of public punishment was that the principle of publicity came to be expressed in a different way as different institutions acquired a symbolic importance.38 The trial became a means of staging questions of individual guilt and innocence, crime and punishment, replacing the scaffold as the ‘public climax of state justice and its imaginatively defining scene’.39 There was a double principle of publicity at work, with the publicity of the penal norm linked to a new form of procedural publicity in the trial.40 The criminal trial, then, was increasingly concerned with presenting an appropriate image of the order and authority of law. Even if in England there continued to be an absence of explicit discussion of public justice, the

35 It was later claimed to have been centuries old, but there is little evidence of explicit formulation of the principle before Bentham’s Rationale of Judicial Evidence published in 1827. See Esmein, 1914: Pt II, Title II, ch 2. For a discussion of the concept of the public hearing in European jurisprudence of the period see Summers, 2007: ch 2. 36 On the image of the lottery and the reform movement, see Cairns, 1998: ch 3. On capital punishment and the uses of mercy see Gatrell, 1994: ch 21 (and see generally ch 2.4) above. 37 Foucault, 1977, although public executions were not abolished in Britain until 1868. 38 See also Taylor, 1993: 22. 39 Grossman, 2002: 7; see Moretti, 1983: 138. 40 Foucault, 1977: 9. He goes on to argue that the criminal trial develops a new focus on the accused person, looking behind their acts to the pathologies of their character. While this might be true of French criminal procedure, it is clearly not the case in the English adversarial trial, where a consequence of the reform of the criminal law was the silencing of the accused. See below. For an account which develops Foucault’s argument in relation to French criminal procedure, see Taylor, 1993: Introduction.

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change in attitude can be seen in the rebuilding of the courtroom, in such a way as to create a new ‘theatre of justice’. A recent study of English courtroom architecture in the nineteenth century points to the contrast between eighteenth- and nineteenth-century courtrooms. The former encouraged sociability, and had large public areas, with spaces for the judge and jury separated only by screens, columns and archways.41 These courts were places for public display or business, where members of polite society might meet for purposes that extended beyond the simple witnessing of the actions of the court. In the latter there was a strict contrast between the court and any open public areas, but more importantly within the court itself between the areas open to lawyers and the public areas.42 Within this there were other forms of segregation—between witnesses, jurors, prisoners—which allowed for reintegration only under the controlled conditions of the courtroom. It began to be common for there to be a passage from below the dock, through which the prisoner could be brought into court. The lawyers’ quarters (robing rooms, judges’ chambers) were separated by walls and corridors from the public parts of the court, distancing them from the public and even from their own clients. There were separate waiting rooms for witnesses, and corridors so that they could be taken to and from the courtroom without encountering others. Jury members were clearly segregated from the public with special entrances and accommodation. These courtrooms were designed to facilitate the specialised functions of criminal justice through the efficient flow of different groups of individuals around the central courtroom. The move to specialised accommodation was a result of the feeling that the majesty of the law could be enhanced through a more dignified architectural setting, and the court buildings that were constructed during the nineteenth century accordingly emphasised the authority of the law. On the one hand, this led to a reduction of certain forms of ceremony associated with the assizes—the balls, the extensive dinners, aspects of the parades—which were felt to be unruly or disorderly, to be replaced by new forms of sobriety and order. This also meant the adoption of styles of architecture and ornament that projected the order and authority of the law.43 On the other hand this meant the spatial reorganisation of the courtroom in ways which reinforced the authority and exclusivity of the law. It is in this period that we see the courtroom beginning take on its recognisably contemporary form, specifically the vertical organisation of 41

See Graham, 2003: ch 3. See the description of Winchester assize courts in ibid: 279–84. 43 Though making little attempt to match the imposing theatricality of the rebuilt Palais de Justice in Paris: see Graham, 2003: 328. In nineteenth-century France there was a rebuilding of courthouses, principally the Palais de Justice in Paris, to present the trial as spectacle or theatre, ‘reviving iconicity when its traditional subject, the ruler, had been displaced by a diffuse new subject, the public’ (Taylor, 1993: xxi). 42

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the seating which reflected the hierarchical arrangement of participants, from judge, to clerks, to lawyers. Significantly, however, as Taylor points out, members of the public were physically removed from the courtroom, sitting in galleries isolated from and overlooking the floor of the court, underlining the fact that their presence was for the purpose of observation rather than participation.44 This all shows how the focus of the criminal proceedings was the public hearing in which the criminal act could be reconstructed and evidence argued over before an audience of judge, jury, press and public, with public verdicts delivered to that audience. The necessity of publicity was recognised, but at the same time it was acknowledged that it should be subject to limits: not admitting too many members of the public; attempting to reduce elements of explicit theatricality in the trial; and excluding the public altogether when the subject matter of the trial was generating an interest that might deemed to be prurient or potentially disorderly.45 These limits, moreover, extended to pre-trial publicity so that by the end of the nineteenth century it was accepted that, although the public had a legitimate interest in being informed about committal proceedings before magistrates, this did not extend to prejudicial comment.46 The development of the trial in this way has three important consequence for our argument. First, it has led to a focus of the questions of publicity and openness on the hearing itself—the public presentation of evidence—at the cost of considering whether there might be important issues of public justice in certain areas of pre-trial proceedings.47 Given the scepticism that exists about the possibility that the trial might be an effective means of controlling other criminal justice actors such as the police, there are grounds for arguing that the principle of public scrutiny should extend to aspects of pre-trial procedure.48 Just as importantly, it ignores our understanding of the impact that pre-trial procedures have on the determination of criminal charges.49 While certain aspects of pre-trial proceedings, such as committal hearings, are conducted in public, there may be other aspects of pre-trial procedure that would benefit from improved public scrutiny. Second, much of the concern has been with the questions of how the trial should look (the public face of the trial)—the

44 Taylor, 1993: 13–14 drawing a contrast with the French courtroom where the public occupied part of the court and participated in the proceedings 45 See, eg, Stephen, 1883: i. 516, suggesting that the necessary publicity could be secured by admitting members of the press only. 46 Though this did not yet prevent the reporting of previous convictions or alleged confessions of guilt. See generally Bentley, 1998: ch 5. For early debates about public access to pre-trial proceedings see Beattie, 2007. 47 Summers, 2007: 46−7. 48 Some of these issues were discussed above, in ch 6. 49 See, eg, McConville et al, 1993.

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management of the criminal trial so as to project a certain image of legal authority—rather than with the question of why the trial should be public.50 This has led to a focus on ritual and the symbols of justice rather than addressing the question of how the public trial is intimately bound up with that of doing justice in the criminal law. The overall aim has been the defensive one of engendering public acceptance rather than encouraging or even accepting more critical forms of public scrutiny. Third, public access has been shaped and limited by these concerns. The press have been taken to be representatives of the public, where it might appear more often to be the case that they have been co-opted to present the legal system in an appropriate light. This leads us now into a consideration of how that public scrutiny might operate. 9.3.2. What is the Meaning of ‘Public’? The most basic precondition of public justice is that the trial should be conducted in a language that is comprehensible to all of the participants, as well as to members of the wider political community. While we have discussed earlier the preconditions for the trial of a particular accused,51 it can readily be seen that these preconditions extend to the public more generally, as well as being seen as an extension of the more general principles of criminal law that the law should be both accessible and comprehensible to members of the public.52 A public wrong should be capable of being understood as such by members of the public to whom the law applies, and if specific participants, such as members of the jury, or the public more generally are to be capable of exercising the critical scrutiny of the law and its application that is their responsibility, they must be capable of understanding that law. This also has important consequences for a distinction that is conventionally made in criminal law theory between ‘conduct rules’ and ‘decision rules’, or rules for citizens and rules for courts.53 Theorists maintain that there is an important distinction between rules which should orient the conduct of the ordinary citizen and those which are concerned with the application of particular laws, rules of criminal procedure or the law of evidence. The former, it is argued must be expressed in clear, comprehensible and simple language, since they are intended to guide the citizen in their everyday conduct. Thus the law of murder or theft should state clearly the content of the rule. The latter, by contrast, are argued to be more technical, 50 This is a distinction that Summers draws (2007: 38−47). See Department for Constitutional Affairs, 2004 for a recent illustration of this concern. 51 See above, ch 4.2; RA Duff, 1998b. 52 See Ashworth, 2006: 74–7; also Law Commission, 1989: vol 1, paras 2.4–2.11. 53 See, eg, Dan-Cohen, 1984; Alldridge, 1990; Robinson, 1997.

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concerning distinctions between degrees of offence (murder/manslaughter), the application of certain defences (eg diminished responsibility or insanity), or the conduct of criminal proceedings. While they might be concerned with the scope of application of a rule or defence they are not primarily aimed at the guidance of citizens’ conduct. The primary audience for such rules is, accordingly, lawyers or other specialists. Some have argued, on this basis, that the rules for courts need not even be comprehensible to citizens, since they are not intended to guide citizens’ conduct (indeed, there might be advantages in an ‘acoustic separation’ between the two sets of rules): defendants should not be able to claim that they have been treated unjustly because, for instance, they could not understand the distinction between diminished responsibility and insanity in relation to their conduct, or the precise scope of the law of duress.54 Rules of procedure or evidence can readily be classified as decision rules, on the grounds that they concern the basis for the legal conduct of trials as interpreted by judges and lawyers. That does not imply, however, that such rules need not be comprehensible to citizens; indeed, the comprehensibility of the proceedings is still a precondition of a just public trial. If the trial is to address citizens in legal and moral terms which they can understand, the rules for courts must also be rules for citizens, in that they must be articulated in a way that connects appropriately with the ethical language of participants in the trial.55 Given the extensive sociological research pointing to the fact that defendants in criminal trials are frequently bemused by the proceedings and unable to understand the procedure as it relates to their own case, this requirement points to the need for significant legal reform.56 While this need not necessarily translate to the demand that criminal procedure be simplified, it at least points to a requirement that the various stages of criminal proceedings be explained to participants in the process.57 A second precondition is that of accessibility. This has two aspects. First, it applies to the physical accessibility of the courtroom. The courtroom should not be locked, it should be accessible to people with disabilities, there should be no admission charge, and there should be some space set aside inside the courtroom for the accommodation of members of the public.58 Second, it extends to the requirement that unnecessary obstacles should not be placed in the way of those seeking to attend the hearing. In his survey of public justice Jaconelli notes a series of cases in which the 54

See especially Dan-Cohen, 1984; contrast Robinson, 1997: 207–09. See RA Duff, 2002b. 56 See Bottoms and McLean, 1976; Carlen, 1976; Baldwin and McConville, 1977. 57 See for instance the improved information that is being provided to victims of crimes as a result of pressure from the victims’ movement. 58 Though Bentham believed that open access was not inconsistent with charging for places of ‘superior convenience’ (1827: 543). 55

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principle has been challenged by circumstances such as the hearing of the case outwith normal court hours, behind a door marked private, not on the scheduled date, or in an office with a coded lock on the door.59 Such cases make it clear that accessibility is not only a matter of physical barriers to public access, but extends to all conditions which might prevent members of the public from attending a hearing. If these are the preconditions of the public trial, we must now move on to consider the meaning of ‘public’ more generally. This might be thought potentially to comprise three distinct elements: that the trial should take place in the presence of the parties; that it should be open to the public or their representatives; and that the trial should be open to public scrutiny. The first two of these have already been discussed in relation to the justifications of public trials, and so it is unnecessary to go through these at length once again. The first is clearly linked to the ideas of orality and immediacy: the substance of the charges and identities of witnesses should be known in advance, read out in court, and the defendant must have the chance to challenge witnesses.60 It need only be added here that such rights are specifically linked to the possibility of preparing and mounting a proper defence, and that while they are linked to the requirement for information as an aspect of calling to account, or to the right of confrontation, there is no necessary connection to the idea of the public trial.61 As we have seen, the development of the idea of the public trial in the common law has traditionally placed most stress on this second element, that the trial should be open to the public or to representatives of the public such as the press. This is expressed in the extravagant formulation of Viscount Haldane that ‘every Court of Justice is open to every subject of the King’.62 While it is significant that courts are not closed institutions, the true importance of this element is linked to the third, that of allowing for the possibility of public scrutiny. This facilitation of public scrutiny might depend on a number of distinct requirements. Jaconelli, for example, distinguishes four such requirements: the provision of adequate facilities for the attendance of members of the public or press; that the press can report freely on the proceedings that they observe; that documents used in the trial should be freely available; and

59 Jaconelli, 2002: 69–72. In several of these cases measures which were taken to reduce accessibility in the interest of the parties in avoiding bad publicity were considered acceptable. We shall discuss the basis of this exception below. 60 Jaconelli, 2002: 3–4. 61 This also points to the undesirability of the trial in absentia. This should be seen as a right of the defence, rather than being connected to public trial as such—though trials in absentia have often also been secret trials. See Trechsel, 2005: 252–6. 62 Scott v Scott [1913] AC 417 at 440.

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that the identities of the personnel involved in the trial should be known.63 What is important here is that these requirements illustrate different ways in which the right to public scrutiny might be implemented, and also that these seek to broaden the requirement for public justice beyond the hearing itself. However, they also point towards the larger principle that effective public scrutiny goes beyond public access to the hearing, to include access to information that is necessary to understand the nature of the proceedings. This also might be thought to extend to the requirement to give public reasons for decisions—a requirement that would conflict with the long-established rule protecting the secrecy of jury deliberations, something that we discuss below. Here we should also note a distinction between the trial and the pre-trial stage. At the trial, the defendant is called to answer a charge and to account for his conduct if he is criminally responsible. This calling to answer and calling to account is done in the public name. In calling the defendant to answer and to account, the trial purports to be acting on the basis of a public wrong, a wrong which the public are properly concerned with prosecuting and convicting, that it is alleged the defendant has perpetrated. That this is done in the name of the public particularly invites critical public scrutiny in order that members of the public could distance themselves from recognising the defendant’s alleged conduct as wrongful, or from the basis on which he has been convicted of the offence. This requirement for public scrutiny operates in a different way at the pre-trial stage. Pre-trial proceedings are concerned with the threshold question of whether there is sufficient evidence to warrant committing the accused person for trial or to withhold bail. This suggests that public scrutiny in the pre-trial stage, if it is justified or required, is primarily to be justified through its instrumental value in ensuring that public institutions, such as the police or prosecutors, are acting according to law and improving independently established standards of fairness and proper treatment of the accused. This is, of course, a significant stage in the criminal process, and it is important both that public bodies be accountable for their actions and that defendants are accorded proper legal protection; however at this stage the defendant is not yet being called to account for his conduct and so restrictions on the amount and type of publicity may be justified. Finally we should give brief consideration to the issue of what exceptions should be permitted to the public character of the trial. Writers from Bentham onwards have discussed the issue of exceptions to the principle of publicity, acknowledging that there may be circumstances in which public access or scrutiny should be restricted.64 These circumstances fall into five 63

Jaconelli, 2002: 2–3. See Bentham, 1827: 537–68. He notes nine circumstances, including preserving the good order of the courtroom; preserving the reputation or tranquillity of families from 64

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different classes: the prevention of pre-trial publicity that might prejudice the outcome of the hearing; measures to protect the identity of particular witnesses, or to hear evidence without requiring an appearance in open court65; measures to protect a particular class of defendants, such as juveniles; the exclusion of members of the public from the courtroom when their presence threatens the orderly conduct of the trial or the interests of justice66; or finally, the exclusion of both public and press from the hearing (or from access to documents connected to the hearing) where the subject matter of the hearing is deemed to require secrecy. Of these the last is undoubtedly the most controversial, not least because of recent cases in the UK and US.67 It is instructive, however, to consider the principles set out by Bentham in thinking about these issues. He argued that four principles should be observed: that the concealment should not be perpetual or indefinite; that it should not extend beyond its purpose; that there should never be a situation where there is a special tribunal reserved for secret causes; and that every courtroom should have a private chamber to which the parties might retire if necessary.68 It follows from our own argument that it would be presumptively unfair to hold such proceedings in secret, and that the burden of showing that the restrictions are necessary and that the proceedings are fair should lie on the state in each case. To Bentham’s principles we would thus add that what is crucial in such situations is that the grounds for a decision to hold the hearing in secret should be subject to scrutiny, whether by the public or an ‘independent’ assessor acting on behalf of the public. This would require three things: that the exceptions should be clearly defined in law; that those whose cases are proposed to be heard in private should have the opportunity to have the basis for that decision reviewed; and that crucially members of the public or the press should be able to have this decision reviewed, even in cases where those involved might opt for secrecy.

9.3.3. Whose Right? We must finally return to the question of whether there can be said to be a right to a public trial. It is easy to think of situations in which an individual unnecessary vexation; public decency; protecting secrets of state. Hume (1844: ii, 304) discusses a case of 1814 where it was conceded that the public should be excluded, where required, by the ‘indelicate nature’ of the evidence, but that this did not extend to a case which discussed ‘anatomical details’. 65 See, eg, Ellison, 2001; Roberts and Zuckerman, 2004: 269–86; Criminal Procedure (S.) Act 1995 s.271H (as amended). 66 cf M Wallace, 2006. 67 Secretary of State for the Home Department v MB [2006] EWCA Civ 1140; Hamdan v Rumsfeld 126 SCt 2749 (2006). 68 Bentham, 1827: 569–71.

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accused may want to assert a right that proceedings be held publicly in order to prevent the possibility of state oppression; in many other cases this may be more problematic since individual defendants might want the proceedings to be held in camera precisely to preserve their anonymity or to avoid the shame and stigma that might attach to a public hearing and conviction. Thus, it has recently been argued that those accused of serious sexual offences or celebrities should be given anonymity in criminal proceedings to prevent ‘trial by media’ or the negative and damaging association with serious criminal charges. Yet the trial is public whether this is desired by the defendant or not. While in documents such as the European Convention on Human Rights this is characterised as an individual right, there is considerable scepticism amongst lawyers as to whether it can properly be characterised as such.69 In addition, in his recent exhaustive survey of open justice, Jaconelli has argued that the idea of a right to a public trial, properly understood, is incoherent, since our understandings of rights in terms of either will- or interest-theories cannot provide an adequate basis for such a right.70 Defendants can neither enforce nor waive the public character of the proceedings in their case, and the interests of those who want a public trial may well be conflicting. The media or a victim might argue for access, while the accused would wish for anonymity. The public interest in the public character of criminal proceedings may, in any case, be too diffuse, Jaconelli suggests, to vest in any particular person or persons if it is conceived in instrumental terms as facilitating the ends of justice.71 By contrast we have argued here that there is a right to public justice. A fundamental basis for this disagreement is that the writers mentioned above have considered public justice to be extrinsic to, or independent of, the understanding of fair trials. Publicity is then seen as something that is desirable in criminal proceedings, but additionally as something that might present an obstacle to a fair hearing, and which therefore can be restricted if some other powerful interest should be at stake. Jaconelli, for example, suggests that the right to a public trial can be understood as an element of the right to a fair trial only if ‘the former is invariably guaranteed as the best means of securing the latter’.72 Our argument is that there is an internal connection between a public trial and a fair trial because of the communicative process that is central to calling to account for public wrongdoing. This means that trials have a necessarily public character and that they should held in public and be open to public scrutiny. This is not a right that can be waived by the accused, because of the character or public

69 70 71 72

See Trechsel, 2005: 120. Jaconelli, 2002: 110–16; see also Jaconelli, 1997. Jaconelli, 2002:114–15. Ibid: 113.

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wrongs and the necessary public process of a calling to account for those wrongs. It is, however, a right that would inhere in the accused or any other member of the public either to attend a hearing in person, or to have their representative do so, or to have access to documents relating to a particular charge. It is, in this sense, comparable to freedom of information in terms of the breadth of the availability of the right. And, as we argued above, it is the right of an accused or other member of the public to challenge the decision to hold any particular hearing in conditions of secrecy. This public character means that trials which are held in secret are presumptively unfair, unless it can be demonstrated on the part of the state that the restrictions are necessary and that the conditions of fairness have been met.

9.4.

ISSUES IN PUBLIC JUSTICE

In this section, we briefly consider the impact of our understanding of trials on two issues in public justice: broadcasting of trials and the privacy of jury deliberations. As we shall see, whilst our theory does not drive powerfully at particular conclusions to these debates, it does suggest ways of understanding how those debates should be structured that are distinct from the ways in which they have tended to be seen. Where the debates have often focused on the instrumental advantages and disadvantages of these practices, we suggest that the ambitions of the trial as a way of publicly calling the defendant to answer a charge and account for their wrongs are engaged in the level and kinds of publicity that we protect. Instrumental concerns about publicity, in that case, compete with rights of defendants and of the public, rights grounded in the normative ambitions of criminal trials.

9.4.1. Broadcasting Trials At present, there are severe restrictions on the broadcasting of criminal trials. The law not only prohibits television and radio broadcasts, it prohibits still photographs being taken in the courtroom.73 This means that the main way in which the public have access to what happens at trial is through publication of the decisions reached or, more commonly, reports of journalists who attend them. As journalists are not legal experts, and because they wish to make stories attractive to the market, there is an 73 Contempt of Court Act 1981 s 9 prohibits sound recording; Criminal Justice Act 1925 s 41 prohibits the taking of photographs. For a general discussion of these restrictions see Jaconelli, 2002: chs 8, 9. On the origins of the prohibition see Nead, 2002.

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inevitable problem of inaccuracy in such reports. As the vast majority of the public cannot attend the trial, how should the right to critical scrutiny of the criminal process, which we have defended earlier in the chapter, be protected? In 2004, the Department for Constitutional Affairs published Broadcasting Courts,74 a consultation paper on whether trials, both criminal and civil, should be broadcast. Televising trials would almost certainly have the greatest impact on public access to trials. It would allow critical scrutiny of processes and decisions which otherwise is severely hampered by reliance on second-hand reporting by journalists. The consultation proceeded on the basis that there are two demands of criminal justice: that justice must be done and that it must be seen to be done. The latter principle, it was argued, is important, but it is the former that is paramount. The first thing to note is that we should not draw this dichotomy as sharply as the consultation paper does. The demand that justice is done is a demand for public justice. Decisions taken in private, which are completely inaccessible to critical scrutiny, should be considered at least as imperfect justice, not just in appearance but in substance. The right of the public critically to scrutinise decisions made in criminal trials, and the related right of defendants to have decisions taken about them open to such public critical scrutiny, is a demand for substantive justice. This, of course, does not imply that the current restrictions on broadcasting criminal trials are mistaken. It may be that the concern with the distorting effects of broadcasting on the behaviour of various different trial participants is a real one, but this has not been fully investigated, and is often presented only in terms of a reference to the (unspecified) dangers of a ‘US style media circus’.75 This, however, overlooks a number of important factors. It ignores the fact that the presence or absence of the public has always had an impact on the conduct of proceedings, distorting or otherwise, from the conduct of the ordeal through to the press interest in scandals and notorious criminals at the turn of the twentieth century.76 In this process of development the character of the proceedings has always been linked to particular forms of access and publicity, and talk of distortion may distract attention from the real question, which is whether the publicity is going to encourage the proper forms of public scrutiny. Following from this, it is appropriate to ask whether the resistance to the US style media circus really just betrays the state’s interest in the process, and the desire to limit or control meaning. One might ask by contrast, what is wrong with the media circus? Surely nothing has stimulated greater

74

Department for Constitutional Affairs, 2004. The words of the Lord Chancellor, Lord Falconer on introducing the consultation: http://www.dca.gov.uk/ speeches/2004/lc290804.htm. 76 See Farmer, 2007b; Rowbotham and Stevenson, 2003. 75

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debate about the meaning of murder and the operation of the criminal justice system than cases such as the OJ Simpson case, where levels of media hysteria arguably reached their highest levels. This concern also reflects a rather naïve view of the process of communication. The introduction of TV cameras would inevitably have an effect on the conduct of the participants, as the introduction of other media has done historically. The trial has already been made into a spectacle, reduced to certain moments or images, and expected to entertain.77 This process has fundamentally altered the way that most people experience the criminal trial. There is a new kind of participation in the process, as observers or audience, judging the reported performance of the participants and making their own decisions on the proper verdict. This, then, is a paradoxical process, for while it has enhanced public awareness of trials, it also increasingly removes the public from the direct kind of experience of the trial that has traditionally seemed necessary to the trial in the constitutional democratic state. The appropriate questions of rights and justice cannot, then, be answered simply in terms of whether televising trials will encourage or discourage trials in meeting standards of justice. The failure to provide the public with a proper opportunity to scrutinise trials interferes with citizens’ right to affirm or to distance themselves from prosecutions and convictions, which are supposedly done in their name.

9.4.2. Jury Deliberations In the UK and the US jury deliberations are almost entirely private and secret.78 Juries normally deliver a verdict and nothing more. Their deliberations are almost entirely outside the public domain. In fact, it is even a criminal offence in the UK to ask a jury member what went on in the jury room. There are obvious pragmatic concerns about making jury deliberations public. Most notably it is argued that this might interfere with the contribution that some jury members make to the deliberations for fear of recriminations or reprisal by the defendant or by others, which would in turn tend to affect the quality of decisions reached. In chapter seven we have already argued that jury members should be participants in the criminal process rather than mere passive observers and decision makers. This would already lead to the jury having a public voice in the criminal trial beyond the delivery of the verdict. As we noted there, it would allow the defendant to scrutinise critically, to a limited degree, the quality of the jury’s understanding of the case and hold the jury responsible in the light of appropriate epistemic and communicative norms. However, 77 78

These issues are explored in Sherwin, 2000 and Garapon, 1996. See Jaconelli, 2002: ch 7; See also LCD Consultation; Auld, 2001: 164–73.

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this will clearly be insufficient to satisfy the defendant even that the jury is competent and unbiased, let alone that their deliberations have the communicative quality that could contribute to a just verdict. Other participants in the trial or the general public will still not be able to know whether the verdict was reached according to proper standards of fairness appropriate for a criminal conviction. To this we should add that the meaning of verdicts has implications for the debate about investigations of jury deliberations. Convictions are forms of public condemnation of criminal wrongdoing by the defendant. The epistemic standard that must be reached to make such convictions just, we suggested, is knowledge, and if the conviction is in the name of the public, it is public knowledge of wrongdoing that is required. Conducting the deliberations through which verdicts are reached in public ensures that it is indeed public knowledge of wrongdoing that is established through the trial. The surface difficulty with private deliberations by the jury is that it is difficult to see how their deliberations can contribute to public knowledge. Surely the possibility that the deliberations do not meet proper standards of rationality and reasonableness must erode our confidence in them, and consequently our knowledge that public condemnation of the defendant is warranted. Here we should note that it is possible to gain knowledge through trust of others even if one does not have the opportunity to scrutinise their reasoning processes. For example, I might know that I suffer from a particular illness if my doctor tells me so and I have good reason to trust his expertise, even if I am not able to comprehend how he reached his diagnosis. The difficulty with applying this to juries is that it is difficult to have the degree of confidence in jury deliberations required for knowledge. Redmayne has noted that juries may tend to be relatively good fact-finders because of the range of experience that they can bring to bear on the case.79 That might be sufficient to defend the role of the jury in decision making in comparison with individual judges deciding alone. But it is obviously not sufficient to enable the public to know that a defendant’s conviction was warranted. Where jury deliberations are completely in private, one cannot claim to know that the decision reached was warranted, only that there are good reasons to think that it might have been. That being said, if there were further reasons why we could trust the jury to deliberate in the appropriate way, perhaps confidence in the decisions could be improved. Our confidence would be increased, for instance, if juries were required to give reasons for their verdicts, as we argued in chapter 7.5. It might also be increased if neutral observers were introduced

79

Redmayne, 2006a.

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into the jury room, with the responsibility of ensuring that inappropriate and unreasonable arguments were not given substantial weight in the deliberations. This would be a way of meeting some concerns with making jury deliberations public whilst maintaining our confidence that verdicts represent public knowledge of wrongdoing.

9.5.

CONCLUSIONS

The right to public justice has been forcefully defended both historically and in contemporary society. Suspected injustice done to terrorist suspects is deepened all the more given that the injustice is done in private hearings. But it is difficult to understand the foundations of such a right in the instrumental terms in which it has generally been conceived and justified. It is not clear that achieving the aim of accuracy is enhanced by the presence of the public, and in the absence of the public it is certainly not enhanced by the mere existence of the right. And yet the concern that justice should be done in public is resistant to this kind of challenge. We have attempted to ground that intuition in the communicative conception of the trial that we have been defending in this book. If trials publicly call defendants to answer a charge and to account for their conduct, as well as condemning them in the name of the public if they are proved guilty, then it is imperative that the public have the opportunity to critically scrutinise the trial. Indeed defendants have a right that the public have this opportunity, for it provides them with an opportunity to have citizens distance themselves from a decision that purports to be in the name of the public. Issues of public justice such as the broadcasting of trials and the privacy of jury deliberations are difficult to resolve, and our theory does not provide clear answers about these cases. But understanding the intrinsic connection between public justice and the normative foundations of criminal trials ought to provide a better way of understanding what is at stake in these issues. If there are instrumental reasons against broadcasting or public jury deliberations, it must be recognised that acting in response to these instrumental reasons involves sacrificing something significant in criminal justice: the public nature of trials and verdicts.

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10 The Limits of the Criminal Trial: Security, Truth and Reconciliation 10.1.

INTRODUCTION

T

HERE ARE GREAT public expectations of, as well as great scepticism about, criminal trials. The call for trials is heard with increasing persistence: trials are used, or it is claimed that they should be used, to hold state officials to account for their wrongs, to hold corporations to account for deaths for which they are responsible, to hold children to account for wrongs that they commit, or to ensure that the state is pursuing its aims of security in the face of terror in a legitimate manner. But there is also a concern that trials will stand in the way of a solution to wrongdoing, of providing security, and of alleviating victims’ suffering. The criminal trial of the late twentieth century, while an object of public fascination to an unprecedented degree, has come to be viewed as a deeply flawed institution: where money and power routinely distort the possibility of just outcomes; where unscrupulous lawyers deceive the unsuspecting public; and where legal technicalities obstruct rather than assist in the discovery of the truth. Alternatives to trials are sought with the aim of reconciliation or restoration, and reforms are proposed that will supposedly ‘rebalance’ rules and procedures that have swung too far towards the protection of criminals. It is in this context that detention without trial in the name of national security has become a reality in the UK and the US, circumventing the traditional protection against the power of the state that the trial is said to provide. Criminal trials nevertheless play a central role in discharging the state’s responsibility to respond to criminal wrongdoing. Trials, we have argued, are practices of accountability. They determine whether defendants are accountable for their conduct and hold defendants who are accountable to account for their wrongs. But accountability, in the trial, ought to be reciprocal. The trial is one expression of the state’s general claim to legitimate authority over, and responsibility to, its citizens; but the state must also, through its conduct of the trial, establish the legitimacy of its claim to hold this defendant to account for the wrongdoing specified in the charge. That legitimacy can be established only if the trial is governed by

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norms that require defendants to be treated as citizens of a liberal polity, not as mere subjects of power. If trials are properly conducted, then, they treat the defendant with the respect due to citizens, whilst at the same time manifesting public concern about the wrong done to the victim through a thorough consideration of whether the defendant perpetrated the wrong and, if he did, holding him to account for it. The appropriateness of trials as a response to crime is secured in part by the distinctive appropriateness of holding individuals responsible for wrongdoing. When an individual has done wrong to another, it is normally appropriate to hold her responsible for that wrong. Practices of responsibility are central to human relationships in general, and have a particularly powerful place in respect of wrongdoing. A society without practices of responsibility to structure its responses to wrongdoing would be so profoundly different from our own that it would be difficult to recognise it as a human society.1 Criminal trials are a particular instantiation of the more general social practice of holding one another responsible for wrongful conduct. However, criminal trials are also appropriate responses to wrongdoing because of their public nature. They are appropriate because there are wrongs which ought to be of concern not only to the victims of the wrong and to their immediate associates, but to the public more generally as citizens. One feature that distinguishes criminal trials amongst our practices of responsibility is that they are public, not only in the sense that they occur in public, but also and more importantly because they are conducted in the name of the public. They are peculiarly public responses to wrongdoing, and are therefore peculiarly concerned with wrongdoing that is public in the sense that it is wrongdoing about which the public ought to be concerned as a public. These features of trials justify their centrality as a response to public wrongdoing, but they also create limitations on the goals that trials can realistically achieve in respect of such wrongdoing, and raise questions about the appropriateness of the resort to trials in certain situations. In this concluding chapter we will discuss some of the limitations of the criminal trial as a means of achieving some other legitimate aims that the state might have with respect to public wrongdoing. There are three such aims—the pursuit of security, the pursuit of truth, and social reconciliation—for which, we suggest, either the trial will not be a suitable means of achieving that end, or the institution of the trial will place such constraints on how this aim can be pursued that resort to the trial will potentially distort either the aim that is sought or the institution of the trial itself. Those who see such limitations on what trials can achieve 1 See BAO Williams, 1993: ch 3 for an account of how enduring our relationships and practices of responsibility are, which also recognises how differently those relationships and practices might be constituted in different social circumstances.

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as frustrating the pursuit of these aims sometimes then seek to reform the trial in ways that corrupt it as a practice of public accountability, in order to pursue these aims more effectively; or seek to create alternative institutions whose values conflict with those embedded in the trial. In this concluding chapter, then, we want to defend not only the values that shape the trial, but also a conception of the social place and function of the criminal trial. In the following three sections we will consider these limitations on what trials can achieve, and the question of whether the pursuit of these aims can justify either abandoning or corrupting the trial as a process of calling citizens to account. Firstly, trials are often regarded as setting a fundamental constraint on the ways in which security, both of individual citizens and of the state, can legitimately be pursued. Depriving those who are perceived to threaten the state of their liberty, which is one of the ways in which security may be achieved, can be warranted only in a very restricted range of circumstances, and conviction of a criminal offence through a criminal trial is perhaps the most important of these. However, as social insecurity and the pressure to pursue security increases,2 individuals are increasingly being deprived of their liberty for extended periods without a trial or a conviction, in ways that subvert the requirement for a proper calling to account. More commonly, though, and perhaps more disturbingly, the institution of the criminal trial is corrupted or misused, for the sake of security, to convict and punish people who have committed no wrongs for which the state could legitimately hold them to account. This is one aspect of the wider problem of over-criminalisation, which undermines the trial’s efficacy as a protection against the abuse of state power. Secondly, trials are limited with respect to the truth. They aim to establish whether this specific defendant (most often an individual, but sometimes a corporate body) can be proved to have been culpably responsible for a specific crime, either an individual criminal action or a longer course of criminal conduct. They do not typically look beyond the particular crime to any larger patterns of social or political activity, involving other agents and groups, of which it might be part, or behind the particular crime to the social or political conditions from which it emerged—unless those patterns are organised patterns of criminal activity that can be seen as a conspiracy of which the particular crime was a part, or those conditions could ground a legally recognised defence or plea in

2 On the social and political conditions underpinning this trend, see Garland, 2001; Loader, 2006.

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mitigation.3 Sometimes, however, and especially in the aftermath of political conflicts which involved the large scale and widespread commission of wrongs by a large number of agents, there are legitimate demands for a public accounting that transcends the specific wrongs committed by specific agents and suffered by specific victims, to include the larger patterns of which those wrongs were part, the deeper political conditions from which they flowed, and their deeper social effects. The central issue here is that of the extent to which ordinary criminal trials can be apt for this for this kind of public accounting or whether some other kind of procedure would be more appropriate. Thirdly, trials are limited in relation to reconciliation: they can achieve only a limited kind of reconciliation in very limited circumstances. Public accountability for a wrong perpetrated can sometimes achieve reconciliation between the victim and the offender. Through the trial, the defendant may come to recognise that he has wronged the victim and apologise to her for that wrong. The victim may feel that her rights have been vindicated through the defendant being thus publicly held responsible for the wrong: once he has been held accountable, and perhaps punished, for the wrong, and especially if he apologises for it, she might be able to forgive him. That, however, will inevitably be rare for reasons that we will outline later. But if trials do not tend to achieve reconciliation, and if reconciliation of this kind is both a public and individual good, should we adopt other methods of achieving reconciliation which displace trials? 10.2.

TRIALS AND SECURITY

Of the three aims identified above, it is perhaps the demand for security that is exerting the greatest pressure on the criminal trial in an age in which there is a widespread fear of terrorism and other kinds of crime. People might think, not necessarily unreasonably, that trials as they have developed, with the standard range of protections for defendants, cannot but fail to serve the ends of security in this context: the protections for the defendant and the integrity of the procedures are seen as operating as powerful barriers to the easy identification and conviction of ‘known’ criminals. This is not surprising, for, as we have noted at various points in the book, one of the important social and political role that trials have played historically, and continue to play in contemporary society, is that of providing restraints on state power; ensuring that the state only metes out 3 Critical theorists sometimes argue that this exemplifies a basic defect in (liberal) criminal law: that it abstracts individual defendants and their specific crimes from the social and political contexts which explain them (and attention to which would undermine a categorical ascription of criminal responsibility to the individual agent (see, eg, Norrie, 2001). We cannot tackle those arguments here (see RA Duff, 1998a).

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punishment on individuals who have been proved, in a public forum, to have perpetrated criminal wrongs. In the face of increasing insecurity, both felt and actual,4 there have been two kinds of response which impact on the trial and its traditional protective role. On the one hand there has been a demand to revise trial procedures so as to make convictions more certain, by removing or qualifying the rights that fall under the idea of due process; on the other hand we have seen the introduction of separate procedures that lead to preventive detention rather than punishment and that do not have the procedures characteristic of a fair trial. Thus, whilst human rights protections have recently been bolstered in the United Kingdom by the Human Rights Act 1998, incorporating the European Convention of Human Rights (ECHR), we have simultaneously seen the erosion of the right of silence, relaxation of the constraints on the introduction of bad character evidence and exceptions to the principle of double jeopardy in the context of trials. In addition, recent anti-terrorism legislation in the UK has introduced forms of hearing that can lead to detention or other stringent restrictions on liberty, and which dispense with important features of the trial altogether.5 With respect to the first response, involving radical changes to trial procedures, we would argue that it is a mistake to say that trials fail to serve the aim of security, since on our argument trials aim to call to account, not to achieve security. Of course, to a modest degree, trials do make a direct contribution to, rather than restraining, the pursuit of security. Trials themselves, rather than the punishments that might flow from them, may deter individuals from criminal offending. Individuals may find being put on trial intrinsically disvaluable in that they may see trials as onerous, time-consuming and, perhaps most importantly, publicly humiliating, although this latter may not always be for entirely noble reasons: the humiliation may lie in being caught out rather than in any shame at having their wrongdoing publicly exposed. Going on trial may also have the consequence that one is always treated with suspicion, since many will suspect that ‘there is no smoke without fire’. These consequences, however, are clearly incidental to the trial and can hardly provide a significant justification for the process. 4 ‘Security’, as Zedner (2003a, 2003b) has suggested, is a slippery notion. It can refer to a state of being without threat, or a warding off of a threat (security in this sense might depend on the existence of the potential threat that is warded off); or, perhaps in a different sense of the word, to a state of mind or character (an individual might feel secure insofar as they do not overestimate threats posed to them, for example). The sense that we focus on here is broad and basic: security is increased to the extent that the threat of criminal wrongdoing, or perhaps just of harmful criminal wrongdoing, decreases. 5 See, eg, the notorious provisions of Part IV of the Anti-Terrorism, Crime and Security Act 2001 (some of which were declared to be incompatible with Art 5 of the ECHR in A v Secretary of State for the Home Department [2005] 2 AC 68) now partially repealed and replaced by the Prevention of Terrorism Act 2005.

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Still, it might be argued that this misunderstands the first response, for it is not the trial which aims at security but the punishment which follows. Punishment aims at the prevention of wrongdoing. Now it is not part of our argument that punishment does not have a preventive dimension, but the crucial point is that punishment, if it is to be justified, is internally related to the idea of a fair trial because punishment, unlike other modes of detention or incapacitation, involves the condemnation of actual wrongdoing: if the state is to be justified in thus forcibly condemning and punishing someone as a wrongdoer, that condemnation and punishment must flow from a trial at which he was confronted with and given a fair opportunity to answer the charge of wrongdoing. The erosion of the rights embedded in the idea of a fair trial, in order to secure convictions, thus severs the connection between punishment and its justification: trials that do not respect defendants’ process rights lead to punishments that are illegitimate, even if they serve the goal of security. Trials therefore cannot be used as a means of ensuring greater security without either radically distorting the trial process or undermining the legitimacy of the practice of punishment. But this appears to leave open the possibility of pursuing security through quite different kinds of procedure which do not pretend to be criminal trials, but which can impose a range of restrictions on liberty, including preventive detention, for the sake of crime prevention and security. Even if the legitimacy of punishment is undermined when it is not the outcome of a fair trial, the legitimacy of such non-punitive preventive restriction or detention is not thus undermined. One problem with this suggestion is that it is in fact hard not to see the restrictions as punishments that are imposed on people who are guilty of some wrongdoing. That is certainly how such restrictions are popularly understood, not least by the persons who are subject to them; but if they are in substance punishments, they are illegitimate for the reasons given above. Suppose though that it is possible clearly to distinguish a form of security-focused tribunal which does not have this defect; suppose that we could so modify the character and conditions, and the public perception, of the restrictions such tribunals impose that they are not punishments either in substance or in perception. We still have grave doubts about whether the state should engage in such pre-emptive action against its citizens. A full discussion of the arguments here would take us too far from the normative structure of the trial, which is our main concern. There is, however, one argument that we can advance from the perspective of the trial and its normative underpinning, which would ultimately link to some of the broader arguments in political philosophy that bear on the legitimacy of such preventive or pre-emptive restrictions. At the heart of ‘calling to account’ is a conception of the citizen as a responsible agent, whose actions are guided by reasons, and who must answer to fellow citizens for any

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public wrongdoing.6 Now whatever the form of such security-focused tribunals, they will still require a reference to ‘wrongdoing’ even if only as a future prospect; for their proper concern is with the prevention not merely of future harm, but of future harmful wrongdoing. What the procedure does is, then, to deny the detainee’s status as a responsible agent who is capable of acting for the right reasons. The detention itself pre-empts acting for the right reasons; it simply prevents the predicted actions. None of this is to deny that there might be some dire circumstances in which such action could be justified; but before accepting such practices even in extreme cases, we should be clear about how far they can achieve the desired outcomes. How far, that is, in balancing the rights of potential victims of crimes against the rights of potential offenders, do such practices afford genuine protection? This question is important because an attack on the rights of potential offenders is an attack on the rights of all citizens, since these are rights which all citizens share (this is one implication of the idea of ‘shared wrongs’ that informs our account of the trial).7 We cannot pursue the question here: one point that it highlights is the importance of getting clearer about the very idea of ‘security’ as a valuable state goal. We have argued that the relationship of state and citizen established through the trial could, in principle and in practice, be one in which the citizen is treated by the state with respect as a responsible agent for the centrally important purpose of establishing whether she should be held responsible for some alleged public wrongdoing. Our normative analysis of the trial thus helps to establish the normative standards against which trials can be judged, and by reference to which we can show how problematic it is to try to use the trial as a means of managing and administering defendants for the purposes of security. Once we understand the functions that trials can legitimately perform, we can see why their use to serve the ends of control and security is a misuse. Fair trials alone could not, of course, achieve the aim of ensuring that the state pursues the aim of security only by legitimate means. Trials can serve this role only given a criminal law whose scope and content adequately reflect the range of public wrongs. When the criminal law includes offences which are defined so broadly (supposedly in order to serve the aims of security) that many who commit them cannot plausibly be held to have committed a wrong, the trial cannot effectively function either as a procedure through which public wrongdoers are called to

6

See above, ch 5.3. Such measures also arguably undermine security, because they undermine the security of the individual. This would be to argue that liberty and security should be understood not as alternatives, but as complementary. See Neocleous, 2000. 7

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account, or as a restraint on state power.8 We should not expect the trial by itself to provide a fundamental restraint on the development of the substantive criminal law. None of this, of course, is to establish that deprivation of liberty for reasons of security can never be justified in the absence of proof of public wrongdoing. That is a question which needs to be addressed independently of the role of the trial in establishing public wrongdoing, and which raises a range of questions about the legitimacy of such preventive coercion, about the procedures by which it could be administered, and about the grounds on which the necessary predictions of future wrongdoing could legitimately be based. All we have argued in this section is, first, that the criminal trial should not be understood or used as serving the aims of security, and that its procedures cannot therefore be changed to suit passing political whim or populist demands for tougher responses to crime; its meaning and value lie, rather, in its character as a procedure through which alleged wrongdoers are publicly called to account. Second, the values that structure the trial, values expressed in the idea that the state should treat its citizens as responsible agents, also create a strong presumption against the use of purely preventive detention or restraint; such purely preventive coercion, based on predictions of future wrongs, does not respect the responsible agency of those who are coerced. Third, a fair trial is a necessary but not a sufficient condition of a just criminal conviction: unless the criminal law itself has an appropriate content, unless it defines as criminal only conduct that can plausibly be portrayed as constituting a public wrong, the fairness of the criminal trial cannot legitimise the conviction and punishment to which it leads.9

10.3.

TRIALS, TRUTH AND RECONCILIATION

The second limitation that we noted on what trials can achieve concerns the extent to which they can establish or reveal truths about the character, significance and origins of crimes that transcend the ascription of culpable responsibility for specific crimes to particular defendants. One issue in this context, which we cannot pursue here, concerns corporate wrongdoing and the question of whether the criminal trial can be or become a process through which corporations can be called to public account for the wrongs that they commit. We will instead look briefly at some of the issues raised by the aspiration to find procedures that might achieve ‘truth and 8 For a striking example, see ss 56–7 of the Terrorism Act 2000. This is, however, just one dimension of the much broader problem of over-criminalisation, on which see Husak, 2007. 9 For a related argument about the erosion of the presumption of innocence, see Tadros, 2007.

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reconciliation’ in the aftermath of political oppression or conflict involving large scale wrongdoing by many different agents. We will focus here primarily on the South African Truth and Reconciliation Commission, which is perhaps the best-known example of such procedures: by attending to the ways in which such programmes differ from criminal trials, we can highlight both the proper aims, and the inherent limitations, of the criminal trial. Truth and Reconciliation Commissions (TRCs) are, like trials, part of a retrospective public response to public wrongdoing. Like trials, they involve practices of responsibility: they call individuals to account for wrongs that they have done. Like trials, they aim at knowledge of what was done. But such programmes are also distinct from trials in three important ways. First, their aim is different: whilst both trials and TRCs aim at truth, TRCs typically aim at a more comprehensive, less individualistic account of what happened—at as complete an account as is possible of the broad range of interconnected wrongdoings that occurred during the time of political conflict. Furthermore, the aim of this truth finding is to be reconciliation (at least in the political realm) between those who had been enemies, or between those who had been oppressors and those who had been their victims. Second, accountability in such programmes is generally more direct than it is in the trial. The defendant in a trial is merely called to answer a charge brought against him; he is called to account for wrongdoing only if it is proved against him. TRCs typically move directly to the second stage of accountability, without the first stage of calling individuals to answer the charge. Proof of accountability is not required or provided other than through the testimony of the perpetrator himself. Third (which makes possible the second difference), the connection between trials and punishments is broken. Perpetrators who give an account of (answer for) their wrongs to the TRC are granted a guarantee that they will not be prosecuted or punished for those wrongs. The point of such amnesties is to encourage perpetrators to admit and to answer for their wrongs: truth and accountability are pursued at the expense of punishment. This is taken to be justified partly by the importance of the general accounting that the TRC undertakes to achieve, but also, more pragmatically, by the difficulty, and the potentially harmful political and social consequences, of mass criminal prosecutions. Although TRCs are thus very different from criminal trials, they operate in the shadow of the criminal justice system. Criminal prosecution and sanctions sit in the background of such programmes, to be used if perpetrators fail to come forward or fail to provide a full account. (However, it should also be noted that despite perceived deficiencies in the accounts that were given to the TRC, and the limited range of perpetrators

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who came forward at all, in the South African context criminal prosecutions were rare even in the absence of amnesty.)10 In the remainder of this section, we will say a bit more about the kinds of truth that trials cannot be expected to pursue—and about the alternative procedures through which such truth might be pursued, by means that are still focused (as trials are focused) on the ascription of responsibility for wrongdoing; and about some of the problems that the idea of reconciliation, as an aim of such procedures, involves in the kind of post-conflict or transitional contexts in which they are typically proposed.

10.3.1. Amnesty and the Limits of Truth in the Trial Trials, on our account, provide a public response to wrongdoing. But that response is very specific: it is a response which is directed at establishing whether a defendant can be proved to have been responsible for the specific crime that has been charged and, if he is proved responsible, holding him to account for his commission of that crime. As we noted earlier, trials are not well suited to giving a comprehensive account of the kinds of large scale and multi-agent wrongdoings that characterise political conflicts or political oppression—not even an account that will allocate responsibility appropriately among the wide range of agents (both individual and collective) who played different roles in the wrongdoing. Attempts to use trials for such purposes as these, to provide a comprehensive historical record and explanation of such large-scale wrongdoing, whilst calling the perpetrators to account, typically therefore involve a range of more or less drastic revisions to the criminal process, and the consequent danger of more or less seriously compromising the values captured by the idea of due process.11 These limitations of the criminal trial were two of the primary motivations for setting up the South African TRC. Criminal prosecutions for wrongs perpetrated, it was argued, would provide too partial an account of the human rights abuses that had occurred in South Africa under the Apartheid regime; the TRC, it was hoped, would provide a better account. This was thought justified even though the TRC could achieve its goals only at the expense of criminal prosecution and punishment of those giving evidence about themselves: individuals whose wrongs were politically 10

See Veitch, 2006. For a useful discussion of such compromises, and of the use of trials for such purposes, see Douglas, 2001, 2006. It is, of course, possible for the trial of an individual or individuals to be understood as representative of political or social conflict. However we would distinguish between the aims of the trial and its symbolic role to argue that it should not be an aim or function of a trial to provide resolution to a traumatic event, though that might be a by-product of the legal process. Cf Felman, 2002. 11

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motivated could apply to the Commission for amnesty, which would be granted on condition that they gave a full and public account of their wrongs.12 In fact, however, whilst it was designed to provide a full picture of wrongdoing in Apartheid South Africa, the TRC still focused essentially on individual wrongdoing. Only individuals, not groups, could apply for amnesty. The TRC was primarily concerned with establishing the extent of mass wrongdoing through accumulation of knowledge about individual wrongs. Indeed, one of the major criticisms of the process has been that the TRC failed to address any wrongdoing that was not a violation of the positive law of the apartheid era, and particularly failed properly to address systematic wrongs committed not just against black political activists, but against the black community generally.13 Although the TRC did refer to systematic wrongs, its account has been criticised as bland, something that was perhaps inevitable given its mandate.14 In this way, the shortcomings of the TRC can be attributed to an uneasy political compromise in its remit. It failed adequately to address the systematic nature of the wrongdoing, but it also failed to hold individuals to account for their particular wrongs by calling them to account and punishing them.15 An alternative approach to understanding the truth about mass or systematic wrongdoing has been sought in the idea of collective responsibility—a question that has been discussed particularly in relation to post-Nazi Germany. The risk with these accounts, however, is that they exonerate the individual wrongdoers, as though they are only a part in a collectivity rather than independent agents who must account for their own role and participation in the wrongdoing. This led Arendt to deny the legitimacy of the idea of collective guilt, though not that of collective responsibility. Guilt, she argued, should be reserved for individuals, who could be called to account for their particular role in the wrongdoing. Responsibility, on the other hand, could accrue simply through one’s membership in a collective which as a whole provides part of the explanation for the occurrence of the wrong.16 Establishing collective responsibility, on this account, in no way removes the obligation to

12

See Veitch, 2006. See Veitch, 2006: 161–3. It might be said that amnesty requires a crime (see Günther, 2001) but that just highlights one of the limitations of a process that depends in this way on the criminal law. 14 See, eg, Du Bois, 2001. 15 See Du Bois, 2001. Some defend reconciliation processes under some political and social conditions, suggesting that where responsibility is collective, individual responsibility is not so sharply at issue and may hamper political harmony; see, eg, L May, 2005. 16 See Arendt, 2003. 13

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establish guilt on the part of individuals, though it might be consistent with the broader aims of accountability and reconciliation that are pursued by TRCs.17 We will not pursue this discussion here, since our primary concern is not with the ability or inability of TRCs, or other kinds of tribunal, either to establish the truth about or to ascribe responsibility for large-scale wrongdoing that transcends the bounds of individual agency. Our concern has simply been, first, to note that criminal trials, which call specific defendants to answer specific charges of criminal wrongdoing, are not procedures through which we can hope to pursue such truths or such ascriptions of collective responsibility. Second, however, if we look to other procedures such as TRCs to pursue such truths, there is a danger that we will either lose the focus on individual responsibility and culpability (whether for individual wrongs, or for individual contributions to collective wrongs) that trials provide—and that it seems important to retain; or fail to achieve the kind of accounting that we sought, precisely by retaining a central role for individual responsibility.

10.3.2. Truth and Reconciliation? Who is to be Reconciled? Our account of criminal trials has emphasised their public nature. They are public in that they provide an appropriately public response to public wrongs—wrongs that properly concern the public. Defendants are called to account to the public for the wrongs that they allegedly committed; if proved guilty of the wrong, they are condemned by the public. In a liberal polity, there will, of course, be disagreement about what should constitute public wrongs. There will also be disagreement about the proper form, role and function of political institutions that bind the public together as a public. Finally, there will be disagreement about who should be considered to be a member of the polity for these purposes; who should be considered a citizen. However, in such polities, there is typically some relatively stable set of social conditions which determine who the public in fact is, if not who the public ought to be, for these purposes. Criminal trials normally operate against a background set of unchallenged political conditions which determine the nature of the public to whom an account must be given, and the values by reference to which that account is demanded and assessed.18 17 For an alternative view, which seeks to make collective responsibility the focus but to preserve individual responsibility by requiring individuals to account for their role in the collective wrong, see L May, 2005: ch 13. 18 There may also be limits on whether or how far those conditions can be challenged in the trial: see Christodoulidis, 2004; Veitch, 2006; and ch 5.5 above.

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The public that calls defendants to account for their conduct is not just a collection of individuals, but rather a community that is normatively bound together, and whose members therefore have a proper concern with wrongs done within that community. The issue of jurisdiction shows the significance of this point. English courts have no jurisdiction over a crime committed by, for instance, a Jordanian citizen against a Jordanian victim in Jordan: they have no normative standing to hold such a wrongdoer to account for such a wrong. The point is not that English citizens should be unconcerned by the wrong, but rather that they do not constitute a public with the standing to hold this wrongdoer to account for their wrong: the Jordanian wrongdoer is criminally responsible for the wrong, but not to English courts or the English public (he is responsible to the Jordanian polity). This separation between jurisdictions depends on there being normative significance to the public that is entitled to call an individual to account, because it has special standing to be concerned with the wrong that he has committed: it matters not just that wrongdoers are responsible, but to whom they are responsible.19 TRCs, however, typically operate in circumstances of political transition, when the existence and identity of the relevant public are more problematic. The normative background condition of a genuine political community might well be lacking, but there is (at least in intention) a transition to a public that will have normative standing to call citizens to account for their previous wrongs, even those wrongs committed before the public was constituted as such. The problem here is not that there is no way of specifying which individuals are members of the relevant state; rather, it is that those individuals have been in the kind of political conflict that makes it difficult to call them a public other than in transition. Take the South African case again. In the period of transition from apartheid to democracy, it was tolerably clear who was a South African citizen, who was entitled to the benefits and burdens of the emerging state. What was not clear, however, was whether there yet existed a ‘public’, a genuine political community of which all South Africans were fellow members, that could claim the normative standing to call people to account for the wrongs they had committed under apartheid. No such community existed under apartheid (which was why the courts of the apartheid regime lacked the moral standing to call black South Africans to account for their criminal wrongdoings); nor, arguably, had such a community yet come to exist, since political community is not created merely by legal or constitutional change. Accordingly, one could argue that one of the aims of the TRC was precisely to help to constitute a public that would 19 We cannot discuss the role of international tribunals here, or the question of whether there are some crimes for which the perpetrator can be called to account not by a particular polity, but by ‘humanity’, or the international community (see R A Duff, 2008).

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have normative standing to hold citizens to account for wrongs perpetrated in the apartheid era. Through the process of calling individuals to account for their wrongs, the TRC was designed to bind together members of the state into a public by addressing the conflict from which they had emerged. This highlights a further feature of the process through which individuals are called to account by the polity. The public does not exist prior to and independently of the polity’s public institutions. Rather it is bound together through those public institutions which, if they meet the appropriate ethical threshold, then generate a public that has the standing to hold its members to account. Public institutions, of which the criminal trial is one, in this sense forge the public on which they (normatively) depend. The South African case is special only in that the public, normatively understood, is nascent. This polity-creating role might be thought to justify some of the TRC’s compromises of accountability: sacrificing full accountability, of the kind that is sought through a criminal trial, was thought acceptable for the sake of constituting a public with the standing to call the perpetrators to account, a public born out of reconciliation through mutual recognition of wrongdoing. Reconciliation between broad sections of a divided political community, as was attempted by the TRC, is not, of course the normal kind of reconciliation that might be sought through the criminal process. In the ordinary criminal case, the conflict between the parties is not political in this grand sense. The fact that the two parties are members of a political community, which provides the backdrop against which individuals are held to account for their conduct, is normally unthought and unsaid in the criminal process. Reconciliation is of course problematic in both contexts—problematic both as to its meaning, and as to whether it is an aim that we should hope to pursue either through the criminal trial or through alternative procedures. We will pursue aspects of this question in the following section.

10.4.

RECONCILIATION AND RESTORATION

Truth and Reconciliation Commissions aim at reconciliation on a grand scale, between groups and individuals who were on opposing sides in a serious political conflict. But we should also attend to another way in which reconciliation is argued by some to be the end we should pursue in the aftermath of crime, since this argument would also, if sound, cast doubt on our account of the criminal trial and its significance. ‘Abolitionist’ theorists, and those who now advocate ‘restorative justice’ procedures as an alternative to the criminal process, sometimes argue that we should think not about ‘crimes’ whose ‘perpetrators’ must be brought to trial, but of ‘conflicts’ or ‘troubles’ which need to be resolved by those

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involved in them; that we should rely not on a formal criminal process which ‘steals’ such conflicts from those to whom they properly belong, and which seeks to impose an authoritative (or authoritarian) moral condemnation and to inflict penal suffering on those who are brought to trial and convicted, but on informal processes of mediation, in which all those with a stake in the conflict can take part, and through which they can try to find ways to repair the harm that was done and to reconcile themselves with each other.20 They will have no time for a justification of criminal trials as calling alleged wrongdoers to account, and proven wrongdoers to answer for their wrongdoing. This is not the place for a detailed critique of abolitionist ideas, or of the now wide range of theories of ‘restorative justice’ (some of which, of course, seek a place for restorative justice within a criminal process that could include trials as we portray them), but we should at least make clear how our account of the criminal trial is related, and the ways in which it is opposed, to some of the central themes of abolitionist and restorative justice theorists. First, in so far as such theorists are concerned to criticise our existing institutions and practices of criminal justice, rather than the very idea of criminal law, criminal trials and criminal punishment, we can readily accept much of what they say. In particular, though we have not discussed the proper scope of the criminal law in this book, we can agree that quite a lot of what is now defined as criminal should not concern the criminal law, and perhaps should not concern the law at all—that is, that the current extension of the concept of crime is too wide. We can also agree that criminal trials, as they are all too often actually conducted, effectively exclude lay people, including both defendants and victims, from the kind of participation, or even the kind of understanding, to which they are entitled; we have commented in earlier chapters on the proper roles of defendants, victims and other parties in the trial, and need not repeat those comments here. The main difference between our views and those of abolitionists is that we would seek to remedy these serious defects in our existing criminal law institutions by reforming them—by working towards a narrower criminal law with less ambitious scope, by working to make the trial a process through which a responsible citizen is properly called to answer to his fellow citizens. By contrast, abolitionists turn away from criminal law and the criminal trial altogether. Second, we can also agree that criminal conduct—conduct that constitutes what the law properly defines as a crime—should not always be dealt

20 For classical versions of abolitionism, including this critique of the concept of crime, see Christie, 1977; Hulsman, 1986. The literature on restorative justice is by now vast: for useful ways into, and some critical discussions of, the varieties of ‘restorative’ theory, see Braithwaite, 1999; Johnstone, 2002; von Hirsch et al, 2003; Zehr and Toews, 2004.

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with by a criminal process of prosecution, trial and punishment: sometimes, for instance, a rational and appropriate response will involve something more like the kind of informal mediation that restorative justice theorists advocate, rather than a formal criminal process. Consider, for just one instance, the neighbours who have been quarrelling for years over a series of more or less petty issues—noise, the height of a hedge, litter and so on. It is quite possible that, as the disputes drag on, they will involve low level criminal conduct on both sides—insulting behaviour, for instance, and criminal damage to the other’s property.21 But the best way for them to deal with their problem (and it is natural here to talk of ‘conflict’ or ‘trouble’) might well be to embark on some kind of informal mediation process, rather than calling the police to investigate the criminal offences that have no doubt been committed. The best and most appropriate solution to the conflict might be to seek a compromise between their conflicting interests that will make it possible for them to live beside each other in something approaching peace, rather than to focus on calling each other to account for those wrongs. It may well be better to arrange for such harm as was caused to be repaired, rather than focusing on punishment for those wrongs. This is especially true when the wrongs involved were relatively minor and were committed by both parties against each other, and when the dispute was and continues to be one between roughly equal parties—so that it is not the case that one is being bullied by the other, or might now be unfairly pressured into this kind of informal, non-criminal process. As we argued in chapter six (at 6.4), the demand that wrongdoers be called to account is indeed a demand of justice, a demand whose strength depends partly on the seriousness of the wrong. But it is a demand that may conflict with, and be outweighed by, others; when the wrongs are both trivial and mutual, and when focusing on them will hinder the search for peace, we may see good reason not to focus on them. The central difference between our views and those of abolitionists is that we see such informal, non-criminal procedures as being appropriate only for some kinds of case involving criminal conduct: in other kinds of case, including many which wholehearted abolitionists or restorative justice theorists would like to deal with by a restorative rather than a criminal process, we would argue that the criminal law should be involved, and that the case should be dealt with by a criminal prosecution and a criminal trial. Which kinds of case are those? The quick answer is that they are those in which what is or should be salient is the fact that someone was wronged— that someone suffered a kind of wrong that properly counts as public in the sense that it properly concerns all the members of the polity in virtue simply of their shared citizenship. As we made clear at the start of Part II of

21

See Public Order Act 1986 s 4(1); Criminal Damage Act 1971 s 1.

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this book, we assume that there is at least this much truth in legal moralism: that the law should define as criminal only that which is in some relevant way morally wrong. As we argued in chapter three, the criminal trial is properly concerned with the question whether this person committed such a wrong—the wrong with which he was charged. The criminal law and the criminal trial are therefore focused on wrongdoing—and not, for instance, on harms and their prevention; we should therefore maintain a system of criminal law and criminal trials and punishments only if it is sometimes proper thus to focus on wrongdoing—to make it salient in our collective responses to some kinds of conduct. Now some abolitionist and restorative theorists deny just this: they argue that our focus should be on harms and their repair, not on wrongs and their punishment.22 Our reply to that argument, though we cannot develop it here, is that often one cannot identify the relevant ‘harm’ without reference to the wrong that caused it; and that if we take both the moral values to which we profess to be committed seriously, and ourselves and each other seriously as moral agents, we must take seriously the wrongs that we commit and that we suffer: which is to say that, although a constant and single-minded focus on the detection and condemnation of moral wrongdoing (and moral wrongdoers) is a familiar kind of distortion of proper moral commitment, it is a distortion of something proper; we should sometimes focus, not exclusively but saliently, on the wrong that was done. That focus will properly take the form of calling the actual or alleged perpetrator of the wrong to account, since that is how we manifest our recognition of the wrongdoer as a responsible agent. We owe it to the victim, and to the values that the wrong violated, to take note of the wrong in this way; and we owe it to the wrongdoer to call her to account—which of course includes being ready to listen to her account. Such a calling to account is often informal and very local: it happens between friends, neighbours, colleagues, in a relatively localised context; it does not concern anyone outside that particular group. But if the wrong was a public wrong in the sense that we have explained, it merits a public response; if it was properly defined by the law as a criminal wrong, it merits a response not just from the members of this or that particular group, but from the polity as a whole. That response could of course be an informal one, but the activities of informal vigilante groups make painfully clear the two main dangers that lie down that route: first, that the response will be ill-focused, disproportionate, and brutally vindictive—very far from the legitimate process of calling an alleged wrongdoer to answer the charge of wrongdoing; second, that too many wrongs will receive no response at all, since they will not attract the attention or interest of enough other people. A

22

For a clear example, see Walgrave, 2001, 2003; for critique see RA Duff, 2003a.

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formal process of criminal prosecution and trials gives suitable, and suitably controlled, public form to the process of calling to account those who are reasonably suspected of committing public wrongs. It ensures that wrongdoers can be called to account even when their victims arouse little sympathy, and would not have aroused an adequate informal response; it protects offenders, both actual and suspected, against the kinds of illgrounded or excessive response that vigilantism so often involves; it ensures (if conducted as it should be) that the suspected wrongdoer is indeed called to account, rather than being merely bullied or harassed. It should also be able to ensure that the calling to account is limited to the public wrong that the person is accused of committing, since the very formality of its procedures, and the rules by which it is constrained, should exclude irrelevant matters that do not bear directly on the charge. By contrast, the kinds of informal procedure favoured by restorative justice theorists tend to set no such limits on what can be brought into the discussion: any and every aspect of the ‘offender’s’ life and conduct can become a focus of attention if it concerns the others involved in the process. The criminal trial can thus provide a further kind of protection, of a sort that liberals who believe in privacy and a limited state should see as especially important: it can ensure that offenders are not called on to account for or to discuss those aspects of their lives, characters or conduct that are not directly related to the public wrongs that they are accused of committing. A system of criminal law which defines and condemns a set of public wrongs, and a formal criminal process that calls those who are alleged to have committed such wrongs to answer the charge of committing the wrong and to answer for the wrong if it is proved against them, are thus important elements in a liberal polity that is to treat and respect its citizens as responsible agents, in the light of moral values by which they are all equally to be both bound and protected. One final point is also worth noting: that such a system can claim to promote an appropriate kind of reconciliation and restoration. It is not always clear what restorative theorists mean by reconciliation or restoration. Insofar as reconciliation is meant to be a matter not just of conduct but of feeling, insofar as it is meant to promote something like friendship: we should not look to criminal trials as a way of promoting reconciliation. Likewise, insofar as what is to be ‘restored’ is some kind of personal relationship of mutual affection or trust (though it is often very doubtful whether any such relationship existed to be now restored), we should not look to criminal trials to promote restoration. Nonetheless, if the criminal process of trial and punishment is respected with due seriousness not just by offenders but by all citizens, it can provide a formal kind of reconciliation and restoration, of a sort appropriate to a liberal polity. If an alleged offender is acquitted, the presumption of innocence

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305

remains undefeated: whilst there is room for argument about the ways and contexts in which it is or is not legitimate to allow one’s conduct towards others to be structured by the suspicion that they have committed criminal offences, that undefeated presumption requires that he be still treated formally as a citizen in good standing; the formal distance between him and his fellow citizens that the charge created is removed. If an alleged offender pleads ‘Guilty’, we have argued that the plea should be taken as a genuine expression of his recognition that he has committed a public wrong; that recognition itself should go some way towards repairing the formal breach that his crime created between him and his fellow citizens. If, finally, an alleged offender is convicted after pleading ‘Not Guilty’, we might not think that the conviction by itself could reconcile him to his fellows or restore their formal relationship as fellow citizens; but it can be argued (although we cannot develop this argument here) that once he has undergone the process of punishment, he should be treated as someone who has paid his reparative, apologetic debt to the polity, ie as someone who is now formally reconciled, by his conviction and punishment, with his fellows.23 However, our normative account of the trial does not depend on such claims about the restorative or reconciliatory potential of criminal trials and punishments. What it does crucially depend on is the claim that we should maintain a system of criminal law which defines and condemns a range of public wrongs; and that the appropriate response to such wrongs, for a liberal polity of citizens who are to respect each other as responsible moral agents, is a practice of criminal trials that calls those accused of having committed such wrongs to answer those accusations, and to answer for those wrongs if they are proved to have committed them. Insofar as abolitionist or restorative theorists deny that we should maintain public institutions which are thus focused on public wrongdoing, we think that they are failing to recognise the importance and meaning of an essential dimension to the public life of a liberal polity. 10.5.

CONCLUSION

We have argued throughout this book that trials are, and should continue to be, a central institution of criminal justice, and that the institution of the trial is worth defending against the kind of attacks that are made on it as an institution, as well as against changes to rules and procedures which might undermine central features of the trial. This, however, is not an indiscriminate defence: we have not defended a particular form of trial, such as trial by jury, because of its traditional or symbolic importance; we 23

See RA Duff, 2001.

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Security, Truth and Reconciliation

have not claimed that the trial is the central or organising institution of criminal justice; and we have not claimed that resort to the trial is or can be appropriate in every situation involving criminal harm or wrongdoing. We have, however, made two important claims. First, by stripping away both historical and conventional normative assumptions about the criminal trial we have sought to focus on the communicative practice of calling to answer and account for public wrongs that we argue must lie at the core of a normative account of the criminal trial. We have then developed this account to show how it can provide a justification for certain well-established rules and procedures, and to sketch its implications for the standing of the various participants in the criminal trial, in ways that might transcend its origins in the analysis of the English criminal trial. This analysis has not, of course, been exhaustive, and we are aware that we have said little about important rules of procedure such as those relating to delay or sentencing, about practices of advocacy in the trial, or about criminal appeals and their relation to the trial. These must await further analysis, but we hope that we have at least developed a plausible normative account of the trial based on those practices we have examined—an account which might then plausibly be extended to the analysis of other procedures or rules in the trial. Second, while we do not wish to claim an unwarranted significance for the trial in the criminal justice system, we have attempted to show how this account of the trial—based on the idea of calling to answer and to account for public wrongs—might offer in turn justifications for other rules and practices of criminal justice. This is most obvious, perhaps, in relation to practices of punishment and their legitimation, but we have indicated how this account might be developed in relation the analysis of other practices of criminalisation and dealing with wrongdoers. While we have not been able to develop these analyses fully, we hope that we have at least shown how this account might fruitfully be applied to the analysis of other criminal justice practices, rules and procedures. If these two claims offer opportunities for further development of these ideas in relation both to the criminal trial and to the criminal law more generally, it is appropriate to end, as we have in this chapter, by noting the limitations of the trial—as a political institution, in terms of the truth that it can establish, and in terms of social ends that might be pursued through the trial. It is only through an awareness of the limitations of the institution that we can understand the value of the trial, and that we can in turn call to account those who would seek to undermine it.

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Index Abolitionism, 65–6, 300–305 Accusation altercation trial, in 30 false, 216 instrumentalism, and 64 public, 262–3 trial by ordeal, in 22 Acquittal Directed, 149 jury nullification, 72 meaning of, 84, 89, 121, 216, 268 mistaken 62, 83 presumption of innocence, and 304–05 see also Presumption of innocence diversion, and 79 admission of guilt, 181–3 Adversarial trial defects, 19 defence, 41–3, 45, 53, 222 defendant’s role, 43–4, 203–4, 209–10 history of, 41–53 inquisitorial trial, contrasted, 10–11, 200–01, 220–3 judicial role, 52, 53, 217, 221 juries, 42–44, 217, 221, 222 lawyers’ role, 40–44 lay magistrates, 217 origins, 41–6 participation, 200, 201, 221, 223 see also Communicative participation presumption of innocence, 52, 53 procedure, 10, 11, 217 proof, 44–5, 52

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publicity, 262 pursuit of truth, 44, 45 victims, 53 Alford pleas, 143, 179 Altercation trial Characteristics, 30–35, 40 confrontation, 34–5 conviction rates, 33 defence, 31, 32 evidence, 31–6 judges’ role, 32–5 judgment, 35–37 juries, 34–37 legal representation, 32 pursuit of truth, 40 relationships judge/jury, 34 state/community, 32, 33 state/subject, 40 Amnesties, 295–7 see also Truth and Reconciliation Commissions (TRCs) Anti-social Behaviour Orders (ASBOs), 197 Assize courts, 29–34 Calling to account abuse of process, 146 accountability, 216 apology, 148 citizenship, 134–7, 140, 146 communicative process, 3, 11, 138, 139, 306 complainants, 216 see also Complainants corporate wrongdoing, 294 court’s authority, 146 criminal prosecution, 304

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criminal responsibility, 130–5, 138, 140 criminal wrongdoing, 3, 108, 110, 128, 303, 304 defendant’s obligation, 108–10 fines, 166 guilty pleas, 165 guilty verdicts, 3, 70, 71, 83–86, 89, 90, 91, 119 immunity, 146 jury trials, 165, 222 police cautions, 166 publicity, 139, 261, 278, 281, 285 public reason, 141 public wrongs, 137, 141, 148, 165 punishment, 142–3, 148, 182 see also Punishment reparation, 137, 148 restorative justice, 166 state authority, 108, 109 territorial jurisdiction, 146 two-way process, 96, 97 verdicts, 148 see also Verdicts victim response, 137 Calling to answer acceptance of guilt, 147 communicative process, 124, 125, 147, 148, 152, 306 court’s authority, 146 criminal prosecution, 304 criminal wrongdoing, 113, 118, 119, 124, 127, 143, 209, 303, 304 defence case, 147, 151–54, 236 defendant’s response, 154–9 indictment, 143 pleas, 143–7 see also Plea bargaining, Pleas public hearing, 278, 285 public wrongs, 146, 158–60 punishment, 142, 143

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purpose of trial, 142 pursuit of truth, 110, 119 recognition of wrongdoing, 143 responsible agents, 146 right of silence, 149, 151 see also Right of silence trial without punishment, 142, 143 two-way process, 96, 97 verdicts, 148 see also Verdicts Case management importance, 61 judicial role, 52, 53 Citizenship calling to account, 146 criminal law, 140, 146 nature, of, 140 responsibility, 134–37, 140 see also Responsibility trial process, 270 see also Trial process Communicative participation see also Participation adversarial trial, 199–202, 221, 223 compulsion, 204 decision-makers, 200 defendants see Defendants differing forms, 202 French system, 207, 221 inquisitorial trial, 200, 201, 221, 223 jury trials, 222, 223 legal representation, 204, 207, 208, 211–13, 222, 223 limitations, on, 206, 211 participatory norms, 202, 203 political rights, 211 right of silence, 204, 205, 208, 209 see also Right of silence role, of, 199

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Index shared norms, 201 silence, as, 202 Communicative rights requirement to testify, 100 right of silence see Right of silence right to be heard, 100–102 right to testify, 98 Communicative theory, 208–10 Complainants see also Victims accountability, 216 calling to account, 214, 216 interests, 215, 216, 248 marginalisation, 200, 214 participation, 200, 214–7, 223 private prosecutions, 216 restorative justice, 200 role, 214–6 victim, as, 214 violation of rights, 248 Confessions, 248–51 Convictions condemnation, 83, 84, 86, 93, 148, 268, 269, 284 effect, 83, 84 epistemic conditions, 226, 251 epistemic standard, 284 failure to convict, 229 guilty pleas, 2, 7, 8 see also Guilty pleas integrity thesis, 241, 242 see also Integrity thesis legitimate convictions, 236, 237 mistaken convictions, 62, 69, 80, 81, 83, 89, 90, 91, 121, 173 normative significance, 6, 253 public wrongs, 148 punishment, and, 83, 142 wrongful convictions, 6, 206 See also Prior convictions Corporate wrongdoing calling to account, 294 Criminal justice

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Job: Duff_Trial_on_Trial

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accountability, 261 coherence, 59 consistency, 59 crime prevention, 94 impartiality, 46 law enforcement, 46 political security, 46 uniformity, 46 Criminal justice system accountability, 261 aims, 61 basis, 226 core values, 59 costs, 168, 169, 172 court’s actions, 226 integration, 109 moral coherence, 226 public character, 236–7 punishment, 61 see also Punishment resources, 168, 169 trial, importance of, 165–68 see also Trial; Trial process Criminal law citizenship, 140, 146 code of adjudication, 77 code of conduct, 77 criminal responsibility, 130 criminal wrongdoing, 303, 304 legislative/judicial roles, 59, 76 legitimacy, 87 offence definitions, 40, 73, 75, 76, 142 political obligation, 140 proceduralism, 141 public law, as, 213–15 public reason, 141 public wrongs, 82, 83, 86, 141, 142, 261 scope, 301 security, and, 293 shared values, 139–42 Criminal process accuracy of outcome, 88, 89, 99

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Division: Index

/Pg. Position: 3 /

Date: 24/10

JOBNAME: Duff − The Trial on PAGE: 4 SESS: 3 OUTPUT: Fri Oct 26 10:03:51 2007

330

Index

alternatives to trial, 167, 168, 300, 302 complainants, 214 condemnation, 225, 268 conditional cautions, 187, 188 costs, 168, 169 crime prevention, 94 criminal wrongdoing, 303, 304