Defendant Participation in the Criminal Process

Abenaa Owusu- Bempah

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317664680
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Requirements for the defendant to actively participate in the English criminal process have been increasing in recent years such that the defendant can now be penalised for their non-cooperation. This book explores the changes to the defendant's role as a participant in the criminal process and the ramifications of penalising a defendant's non-cooperation, particularly its effect on the adversarial system.

The book develops a normative theory which proposes that the criminal process should operate as a mechanism for calling the state to account for its accusations and request for official condemnation and punishment of the accused. It goes on to examine the limitations placed on the privilege against self-incrimination, the curtailment of the right to silence, and the defendant's duty to disclose the details of his or her case prior to trial. The book shows that, by placing participatory requirements on defendants and penalising them for their non-cooperation, a system of obligatory participation has developed. This development is the consequence of pursuing efficient fact-finding with little regard for principles of fairness or the rights of the defendant.

1 Introduction: participatory requirements and rights

‘In England, the defendant acts no kind of part: his hat stuck on a pole might without inconvenience be his substitute at the trial.’ ¹

The above statement was made by a French observer of the English criminal trial in the early nineteenth century. It reflects a long-standing perception that, within England and Wales, those accused of criminal wrongdoing are free to sit back and wait for the state to prove their guilt. Accordingly, the defendant need not play an active role in pre-trial proceedings, nor is he obliged to speak on his own behalf at trial. However, times have changed. A hat stand is no longer an accurate descriptor of the defendant in court, nor is it a convincing symbol of his role during criminal investigations and pre-trial proceedings. Active and cooperative defendants can provide information which can assist the police and prosecution in building and presenting a case. Active and cooperative defendants can also prevent unnecessary delay by, for example, ensuring early identification of the issues in the case. Over the past two decades in particular, there has been an increase in demand from government and some criminal justice professionals for accused persons to actively participate throughout the criminal process. The increase in demand for participation has accompanied an increase in demand for convictions and efficiency in criminal proceedings.

The increase in demand for participation has resulted in the imposition of requirements on defendants to actively participate, backed by penalties for non-cooperation. These requirements derive from legislation and have been given effect by the courts. The purpose of this book is to critically examine the par-ticipatory role of the defendant during the pre-trial and trial stages of the criminal process, from charge to verdict,² and to assess the impact which requiring active participation has had on the nature of criminal procedure. The position taken is that it is wrong to require defendants to actively participate in proceedings against themselves. This argument is based on a broad approach to fair trial rights and a normative position, or theory, which holds that the criminal process should operate as a mechanism for calling the state to account for its accusations and request for official condemnation and punishment of the accused. When fair trial rights are interpreted broadly, as they ought to be, they allow defendants to take a passive role, while challenging the state and holding it to account for its accusations of criminal wrongdoing. Moreover, if defendants are to be treated as free and dignified citizens of a liberal democracy, as they ought to be, they must be at liberty to choose whether or not to actively participate in criminal proceedings. This normative theory of the criminal process not only provides a basis for the argument against requiring active participation, but also provides a framework, or yardstick, from which to approach and examine wider developments in criminal procedure and the law of evidence.

Before outlining the participatory requirements at issue, and further explaining the normative position, a distinction must be made between active and passive participation. The focus of this book is active participation. The defendant is an active participant when he is actively involved in the criminal process, as an individual, through means such as answering questions beyond statements of ‘no comment’,³ providing material evidence and testifying in court. Active participation involves mental effort or voluntary physical movement on the part of the defendant, which results in the production of information. Passive participation, on the other hand, requires no direct action on the part of the defendant, beyond submission. Arrest, searches, detention in police custody, being subjected to police questioning without answering and being presented to and being present in court are all forms of passive participation in the criminal process. As Leng notes, they are events ‘which happen to the suspect rather than requiring action by her’.⁴

The focus of this book is on active participation rather than passive participation because the increase in requirements to actively participate is relatively recent and far-reaching. It has, therefore, become necessary to consider the consequences of the defendant’s new participatory role. Requirements of active participation have implications for the enforceability of fair trial rights, even when they are interpreted narrowly.⁵ These rights can provide the defendant with a choice of whether or not to cooperate in the criminal process. Depriving the defendant of that choice has significant implications for the nature of criminal procedure. England and Wales can no longer be characterised as ‘adversarial’ in any strict sense of the term, such as Mirjan Damaska’s core meaning of it: ‘a contest or a dispute [which] unfolds as an engagement of two adversaries before a relatively passive decision maker whose principal duty is to reach a verdict’.⁶ While it is natural for systems to transform over time, it is of concern that there has been a departure from legal norms and rights which became workable as part of an adversarial system.⁷

1.1 Participatory requirements

In order to demonstrate the way in which an increase in demand for participation has transformed the role of the defendant and the nature of criminal procedure, three areas of the law of evidence and criminal procedure are examined in Chapters 5 through 7. These are: the privilege against self-incrimination; the right to silence; and pre-trial disclosure. As a result of an increasingly restrictive notion of the privilege against self-incrimination, and legislative reforms to the law concerning the right to silence and disclosure, defendants can be required to participate. It is appropriate to use the term ‘required’ because the defendant is subject to compulsion to participate. The compulsion stems from the penalties attached to non-cooperation.

In relation to the privilege against self-incrimination, defendants can face a direct compulsion to provide self-incriminating information, where non-compliance is a criminal offence, provided for by statute.⁸ It is not a criminal offence or contempt of court to remain silent or refuse to disclose details of one’s case before trial. Nonetheless, defendants are subject to indirect compulsion to participate; a failure to answer police questions, give evidence in court or comply with disclosure obligations can result in an adverse inference being drawn against the defendant.⁹ The inference may be one of guilt and can contribute to a conviction. The defendant is, thus, subject to a penalty because a failure to participate can result in a detriment that would not otherwise be endured. That detriment is provided for by law and associates non-participation with guilt. To penalise the defendant is to treat him as though he had done something wrong. By subjecting defendants to compulsion to actively participate, and then using the law to put them in a disadvantaged position if they do not comply, the message that is conveyed by the practices examined in this book is that it is wrong for defendants not to participate.

The privilege against self-incrimination, the right to silence and disclosure have been selected for analysis on the basis that these three areas of law provide the clearest and most striking examples of requirements to actively participate. In addition, these areas of law have long been the subject of controversy and debate. This book provides an important opportunity to not only consider the impact of reform on the defendant, but also the development and rationales of the privilege against self-incrimination, the right to silence and pre-trial disclosure.

There are, however, a number of other practices and rules through which defendants can be subject to compulsion to participate and penalised for non-compliance. The penalties include the loss of a sentence discount for those who do not plead guilty but are found guilty following a contested trial, as discussed in Chapter 3. In addition to a loss of sentence discount, a mandatory Criminal Courts Charge was introduced in 2015.¹⁰ While the financial charge was imposed on all convicted adults, those who were found guilty following a contested trial faced a higher fixed-sum charge than those who pleaded guilty. The Criminal Courts Charge was met with heavy criticism from criminal justice professionals, in part due to the increased pressure on the innocent to plead guilty.¹¹ It has since been abolished.¹²

Ongoing concern over the pressure faced by defendants to plead guilty may, at times, overshadow the changing role of the defendant in contested cases. However, while the vast majority of criminal cases end in a guilty plea, the prospect of a trial shapes the pre-trial stages of the criminal process, and there continue to be a significant number of contested trials in England and Wales each year.¹³ Most of the participatory requirements explored in this study are imposed on the defendant before the trial, while the penalty for non-cooperation is implemented during, or after, the trial stage of the criminal process.

The defendant can also be penalised through sanctions for failure to comply with case management directions under the Criminal Procedure Rules, as examined in Chapters 3 and 7. In addition, where a reverse burden of proof is imposed on the defence at trial, it will often be necessary for the defendant to participate in order to discharge the burden. A failure to discharge the burden will result in the conviction of the defendant. Consideration is given to reverse burdens of proof as a participatory requirement in the final chapter. Many other situations in which non-participation can result in a detriment that would not otherwise be endured concern the passive participation of the accused, rather than his active participation. For example, a refusal to submit to a police stop and search could result in arrest, and a refusal to be subjected to police questioning could result in a longer period of detention. However, for the reasons outlined above, this study is concerned only with requirements to actively participate during the pre-trial and trial stages of the criminal process.

By omitting to consider coerced passive participation, it is by no means assumed that such coercion is unobjectionable.¹⁴ For example, being subjected to a compulsory search, having bodily samples forcibly taken or being detained in police custody or on remand prior to trial can amount to intrusions of the right to privacy, the right to be free from inhuman and degrading treatment¹⁵ and the right to liberty. These forms of passive participation must be regulated, and they require justification, such as being necessary in the interests of crime prevention or public safety.¹⁶ Once the consequences of coerced active participation have been examined, and the case against requiring active participation has been established, a standard can be identified, and perhaps later applied, to assess whether the various forms of coerced passive participation are justifiable.

It should be noted that, along with the defendant as an individual, the defence as a party has faced an increase in expectations of participation.¹⁷ The defence party consists of the defendant as well as his legal representatives. The d...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Table of cases
• Table of legislation
• Table of international instruments and treaties
• List of abbreviations
• 1 Introduction: participatory requirements and rights
• 2 The aims and values of the criminal process
• 3 Characterising criminal procedure
• 4 Defendant participation
• 5 The privilege against self-incrimination
• 6 The right to silence
• 7 Disclosure
• 8 Participation and the future of criminal procedure
• Bibliography
• Index