The Criminal Court Trial
© John Lea 2006
The trial before judge and jury in the Crown Court is regarded as the pinnacle of the English system of criminal justice and the characteristics of the English trial system are frequently seen as the very definition of due process. This is a bit strange considering that very few cases actually get to the stages of not-guilty pleas in the Crown Court. The vast majority of cases (in England and Wales) are dealt with entirely by the lower, Magistrates, courts. Basically, there are three categories of offences: those that can be entirely dispensed with in Magistrates courts (summary offences), those that must be committed to the Crown Courts, (indictable offences) and those in which the defendant can choose either to have the case tried by the Magistrate or to go to Jury trial at the Crown Court (either-way offences). All cases begin with a Magistrates Court hearing (known as committal). Around 2 percent of cases actually go to Crown Court trial and there over 60 percent pleaded guilty. The acquittal rate (around the mid-1990s) for not-guilty pleas was around 40 percent. There are several features of the English system which are worthy of note.
The adversarial trial
The English trial is adversarial. That is to say it takes the form of a sort of battle between two (supposedly) equal parties: the prosecution, which attempts to prove its case beyond reasonable doubt, and the defence which seeks to undermine the prosecution's case and to create reasonable doubt. It should be noted that the task of the defence is not to prove the innocence of the defendant but to prevent the prosecution from proving guilt.
The origins of the system go way back into feudal times and the very local and decentralised nature of English justice. This latter is in turn in no small measure due to the fact that power of the King had been restricted by Magna Carta in 1215. which had concluded the conflict between the King and the great Barons during the 13th century. The organisation of justice in England, unlike several other European states, reflected a decentralised and local and popular element. The community remained the focus both of law (The Common Law) and of the trial. The latter, even if it took place in front of the King's judges, was based on the right of the individual to directly confront their accuser. The trial was the method of proof of guilt.
The supposed equality, albeit fleeting, of the prosecution and the defence has been seen as an important guarantee of liberty in a system in which there is no written constitution to guarantee in advance the rights of the accused. Two elements of this equality are particularly important:
It should be noted that nowhere in this rather brief and partial outline has the word truth occurred. The aim of the trial is not to conduct an examination to unearth the truth about innocence or guilt. Truth is assumed to be a by-product of the conflict between the two parties to the trial.
The contrast to the adversarial 'trial as battle' is the inquisitorial system characteristic of the Continental European jurisdictions based on Roman Law rather than the English Common Law. Whereas in the adversarial system truth (guilt or innocence) is an outcome of a battle, the inquisitorial system sees itself as directly concerned with the establishment of truth by careful sifting of the evidence and legal reasoning. The role of the court is conceived of as rather akin to a scientific laboratory in which facts and evidence will be carefully examined. In this sense the court trial is simply the final stage of a long investigative process conducted by the judge. The origins of this system lie in the inquisitorial procedures developed by the Catholic Church and then taken over by the strong, centralised European monarchies. Whereas the English adversarial trial evokes notions of a decentralised system based on individuals confronting their accusers, the Continental European system evokes notions of the King's (or the State's) investigator setting out to determine the truth. Some of the key features of inquisitorial trials are
Some see the Continental system as superior to the 'knock-about' style of the English trial process. The inquisitorial systems appears calmer, more scientific and focused on getting at the truth rather than on a conflict of which truth is almost the unintended consequence. Others point out that the image of a group of lawyers, acting like scientists in calm pursuit of the truth, is a bit of a myth. The adversarial trial enables the inevitable conflicts between defence and prosecution to be brought out into the open. The conflict forces each side to 'do its homework' properly when it comes to unearthing evidence and constructing the case properly.
But it should not be thought that criminal justice systems are entirely either inquisitorial or adversarial. Some systems may have elements of both. There are certainly elements of inquisitorial procedures creeping into the English system and other Common Law jurisdictions while some Continental jurisdictions have adopted adversarial elements. And of course many non-criminal justice tribunals, workplace disciplinary hearings etc., take an inquisitorial form. We cannot go into these issues further here.
The Day in Court
The focal point, it should now be obvious, of the English criminal justice process is the day in court. No evidence, from prosecution or defence is legitimate that cannot be confronted in open court and cross-examined by the other side. All the information and testimony that counts is that which is orally presented in court. Any written information such as witness statements to police has to be repeated in court and the speaker can be challenged and cross examined. This right to confront your accuser in open court is regarded as the core of the English trial system (and of course that of other jurisdictions based on it).
The Judge as Umpire
In this battle in open court the role of the Judge is simply that of umpire. His or her job is to see fair play by both sides; to rule out of order irrelevant or illegitimate lines of questioning during cross-examination. Rarely will the judge intervene to directly question a witness and then only because some point of clarity is at issue. Of course the extent to which Judges do intervene to allow or disallow particular lines of questioning can be quite controversial. An important example is the role of questioning regarding the previous sexual history of the alleged victim during rape trials. The Sexual Offences (Amendment) Act of 1976 ruled it inadmissible for the defence to cross-examine the victim (who is a witness for the prosecution) about her previous sexual activity except in very specific circumstances. Sue Lees and other feminist critics of the trial system have noted numerous occasions where Judges took a very narrow interpretation of this restriction and allowed such questioning to take place. Thus the interventions of the Judge can be quite crucial to the course taken by the trial.
The key point at which the power and influence of the Judge is evident in the English system is at the stage of summing up at the conclusion of the trial before the Jury retire to reach their verdict. The judge will summarise the evidence and the points of law at issue and may give directions to the Jury which will be crucial to their verdict. So although the role of the umpire-judge in the English system is quite different from that of the investigator-judge in the Continental system it should not be thought that the former is any less powerful and influential.
The Jury as key to adversarial justice
After the judge's summing up the jury consisting of ordinary people selected for jury service from the electoral register (in England 12 people, in Scotland 15), retires to deliberate and reach its verdict of guilty or not guilty. In complex trials this may take more than a day and the jury may be incarcerated in a hotel for the night. The jury is regarded as the 'jewel in the crown' of the English trial system. It is the embodiment of the Common Law tradition, going back to the Middle Ages, of 'trial by your peers' (your equals). Who else can legitimately convict you but your own people? Trials without juries are not unknown in British jurisdictions. In Northern Ireland during the Troubles many terrorist cases were tried by judge-only courts known as Diplock courts. The rationale was that given the political sensitivity of these trials, interference with the jury by various terrorist paramilitary groups could not be ruled out. 'Jury nobbling' as it is known is also to some extent an issue with regard to trials of leading members of organised crime groups and other powerful criminals. However here our task is to explain the principle of the Jury system. Sometimes argument takes place concerning whether juries come to the 'right' decisions. We know little about how juries actually reach verdicts. Research into how juries arrive at decisions is quite difficult (researchers 'sitting in' and monitoring jury deliberations is not allowed). Baldwin and McConville (1979) in a rare survey of the outcomes of 370 jury trials at Birmingham Crown Court, concluded that "trial by jury is a relatively crude instrument for establishing the truth" (page 67) Nevertheless the main factor influencing jury decisions is actually the evidence. In other research which attempts to evaluate the 'reliability' of jury decisions there is always the danger of circular argument. It is necessary to have some other 'decision' in terms of which to evaluate whether the jury came to the 'correct' one. This other decision will be by some panel or other of lawyers as to how the case actually should have gone. So really all the research may be doing is simply saying 'juries came to different decisions to our panel of lawyers.' There is consequently an implied, but unwarranted, assumption that our panel of lawyers was correct in all cases where they conflicted with the conclusions of the jury.
However, the arguments in favour of jury trial in terms of how effective it is (compared to other possible mechanisms such as judges acting alone, or judges assisted by panels of lawyers) are not only inconclusive but besides the point. The main justification for jury trial is that it is an integral part of the adversarial system itself. Confronting your accuser in open battle requires an audience to judge the outcome of the battle. The jury as audience gives a focus to the trial. The issue for both defence and prosecution becomes that of how to persuade a jury consisting of people who are not criminal justice professionals but 'ordinary' people. The case has to be built up piece by piece with an opportunity for challenge at each stage. The jury has, in theory, no prior knowledge of the case. In cases which have had considerable exposure in the mass media, the jury will obviously be aware of some of the issues. Defence lawyers may argue that such exposure can prejudice a fair trial. After the Judges summing up of the evidence and directions to the Jury, the jury members go off to conduct what from one point of view can be seen as their own mini-trial as they go over all the evidence and arguments of defence and prosecution which have been presented to them. It is a strong argument that this is the best arrangement to ensure that defence and prosecution structure their cases clearly and properly acting under the impulse of the need to persuade the jury. It might be argued that prosecution and defence might be similarly motivated if the need was to persuade the judge. It may be added that a group of twelve individuals, even despite the obstacles to people from some backgrounds serving on juries (see below) is a better reflection of the diversity of modern society than judges, the vast majority of whom are white, male, upper or middle class and, as far as Crown Courts are concerned, usually from a background of a career as prosecution lawyer.
But studies of the working of the Diplock Courts in Northern Ireland found that presentation by both defence and prosecution was stultified because advocates assumed that judge already had knowledge of case and a lot was not said. A judge sitting alone may indeed have heard applications prior to, or during, the trial (e.g. as part of a Pre-Trial Hearing). Also there is a danger that judges may become ‘battle-hardened’ and too ready to dismiss defence evidence as ‘the same old story’ they have heard countless times before. On the other hand you can never know for sure what the jury is thinking, therefore you have to be clear and persuasive (see Jackson 1995) These points should be born in mind when we come to look at recent moves to further restrict jury trial.
Disclosure of Evidence
In an adversarial system the trial is governed by rules of evidence and cross examination which are there to ensure the day in court is fair to the defendant. So for example certain types of evidence are inadmissible. An example would be hearsay evidence for which there is no witness to testify and therefore which cannot be cross-examined by the defence. Another example would be the restrictions on the right of the defence to question the sexual history of the victim in rape trials (see above).
Nevertheless there is an important imbalance at the heart of the trial. In the days before the existence of a professional police force and when it was up to the individual victim to initiate a prosecution it might be said that defence and prosecution were, roughly, equal parties to the 'trial by battle.' But it is quite obvious that in the modern criminal justice system, by contrast, the prosecution has far more resources at its disposal (police investigators, forensic scientists etc.) than the defence.
Disclosure (by the prosecution of its case, the evidence and witnesses it will call at the trial) is traditionally regarded as one of the two main ways in which this inequality is remedied. (the other is the right of the accused to silence both in police investigation and in court) Belloni and Hodgeson quote the opinion of the Court of Criminal Appeal in reviewing the Birmingham Six case in 1991:
As recently as 1994 the Court of Appeal (in the case of R. v Winston Brown) reiterated the point: that
It was made clear in this and other judgments, in particular by Lord Justice Taylor that the prosecution is obliged to disclose all unused material, including witness statements and suchlike which might be relevant to the defence. In such a situation it might be maintained that the police, in effect, worked for both sides in that they and the prosecution were traditionally obliged to disclose their case in advance whereas the defence was not. If the defence disclosed its witnesses then no doubt the police could go around and 'have a word' with them whereas it would be much harder for the defence to behave in such a manner. But it can be argued that much was appearance rather than reality. Many of the major miscarriages of justice referred to in previous lectures, including the case of the Birmingham Six, were associated with failures of prosecution disclosure. Moreover even if there was full disclosure the prosecution remain at a massive advantage in terms of resources. Belloni and Hodgson quote a succinct summary of the situation:
So there is a great big problem at the heart of the adversarial system! The trial is supposed to be a battle between equal participants but the police and investigative services work for only one of the parties, the prosecution, so how can it really be adversarial? Some of the features of the inquisitorial system, in particular the role of the investigating judge who collects the initial facts of the case without working for either prosecution or defence, now might appear as rather useful features of a genuinely adversarial system. The rules of disclosure have changed considerably in recent years as we shall see presently but it is by no means obvious that they have remedied these problems.
Of course not all problems with the adversarial system are problems of the weakness of the defence. As Sue Lees argued, in rape trials, where the issue is one of consent rather than witness statements or forensic evidence, then the fact that the victim is very likely to only briefly meet the prosecutor (though this is supposed to have changed with recent reforms of the CPS) while the defendant can go over his case with his counsel more thoroughly actually puts the prosecution at a disadvantage. In many other types of cases similar problems of lack of preparation characterise defence cases.
Recent changes: from due process to crime control
The orientation to efficiency combined with an orientation to effective prosecution and crime control rather than the defence of due process and the rights of the accused have been the driving forces in changes to criminal justice procedures in recent years.
Reduction of role of the Jury
Attempts to reduce the role of the Jury, on the grounds that Jury trials are time consuming and costly, has quite a history. Usually the restriction takes the form of reclassification of offences from those that can be tried either-way to summary offences. (see the first paragraph of this lecture for an explanation) For example in 1988 four either-way offences (these included Common Assault, Driving while Disqualified and Criminal Damage below £2,000- now £5,000) were reclassified as summary only. As crime rose during the 1980s the numbers of cases going to the Crown Courts for Jury trial also rose sharply. The 1993 Report of the Royal Commission on Criminal Justice recommended removing the defendant's right to choose the mode of trial in either-way cases and to leave this decision entirely up to the Magistrate (after consultation with CPS and defence lawyers). The argument was that a large number of the cases dealt with in the Crown Court that originated as either-way offences in the Magistrates Court received sentences that were within the Magistrates sentencing powers (maximum of 6 months custody - extended to 12 months under the Criminal justice Act 2003) anyway and that defendants were electing for Jury trial because of the higher acquittal rates in the Crown Courts. This proposal produced a storm of criticism as undermining the right to trial by Jury. The Royal Commission had shown little regard for the rights of defendants to be tried in the Court where they felt they would get justice rather than where their trial would cost less! The Commission failed to take into consideration the widespread feeling that Magistrates are less impartial than Juries and that the higher acquittal rates in Crown Courts was a reflection of a more thorough treatment of the case. The Criminal Procedure and Investigations Act 1996 introduced a system whereby defendants indicating that they would plead not guilty in either-way cases could still elect for Jury trial but not if they indicated a plea of not-guilty. But the attempt to restrict Jury trial along the lines of the Royal Commission's proposals was resurrected in the Criminal Justice (Mode of Trial) Bill of 1999. This Bill faced a storm of criticism and did not succeed in becoming law
The other area in which there have been attempts to restrict the role of Jury trial has been for long and complex fraud cases on the basis that such cases may be too complex to be understood by juries of 'ordinary' people. Such proposals have a considerable history. Most recently they were included in the 2003 Criminal Justice Bill but the government agreed to delay indefinitely plans to abandon juries in such cases in order to get the Bill through Parliament.
Disclosure and the right to silence
In the discussion above the argument was put that the requirement on the prosecution to disclose its case in advance to the defence was an attempt to compensate for the imbalance at the heart of the adversarial system whereby investigation and the gathering of evidence is controlled by police and prosecution. The Police and CPS were not happy with the obligation to disclose to the defence which might involve very sensitive material. The Criminal Procedure and Investigations Act 1996, following the recommendations of the The Royal Commission on Criminal Justice, shifted the balance of power back towards the prosecution. Under the Act the prosecution must disclose to the defence its case together with any unused material which, in the prosecution's opinion, might undermine its case against the accused. This is known as primary disclosure.
But, and this was the most significant change, the defence must also disclose its own case to the prosecution, 14 days after the prosecution has disclosed its case to the defence. For critics this undermines the whole notion of innocent until proven guilty and requires the defence to collaborate with the prosecution. It annuls, in effect, the accused's right to silence which, as noted in a previous lecture, has been already undermined at the stage of police questioning. Only after this has been done does secondary disclosure take place in which the prosecution must disclose all unused material which might undermine its (the prosecution's) case. The criteria for relevance is therefore material which, in the opinion of the prosecution having read the defence's initial disclosure of its case, is considered relevant to the defence case. This creates the amazing situation in which the prosecution, in an adversarial system, is considered the best judge of which material from police investigations might help the defence case! The defence can apply for a court order to disclose any material which the prosecution has failed to disclose, but this presupposes that the defence is aware that such material exists in the first place. Finally, the abolition of the right to silence and the burden of proof lying with the prosecution are compromised by the fact that the court is entitled to draw inferences from the failure to provide, or lateness, of the defence disclosure. The Auld Report recommended various simplifications but no basic changes to the system established by the 1996 Act.
We are back once again at underlining the importance of the Continental tradition of the examining magistrate as neither defence nor prosecution-oriented and the construction of the dossier as a neutral document containing all evidence and equally available at all stages to both defence and prosecution. Could it be that the Inquisitorial systems are in fact more adversarial than our own system in the equity with which they treat defence and prosecution? Surely not! the problem faced by the English system is that in an adversarial system there is no such neutral figure--except the judges themselves who do not have any investigative role (not to mention ability!). The attempt to put defence and prosecution on an equal footing and to speed up the process of disclosure and court trials the prosecution and the police are being asked to act as impartial and neutral bodies which of course they are not, and in an adversarial tradition, are not really expected to be. There is a lot more to be said on these issues but in an introductory lecture we cannot go any further right now. We have given examples of the types of changes taking place and the driving forces behind them.
There are other changes which have further modified the rules of procedure, in a direction of the greater efficiency of trials but, according to many critics, at the expense of the accused.
Who is Judging Whom?
We have spent some time looking at the structure of the adversarial system and the rules of criminal procedure which govern its working. But of considerable importance in determining the actual outcomes are the social relations between the key personnel of the courts on the one hand and the accused on the other. In other words: who is judging whom?
Magistrates: there are around 30,000 lay magistrates in England and Wales. They are appointed by the Lord Chancellor with local advisory committees (80% of which are serving magistrates). Lord Chancellor's department has taken steps to try and widen recruitment and about 48% of magistrates are now women and non-whites. But non-white ethnic groups are hugely underrepresented. Magistrates are overwhelmingly from a middle class (professional and higher managerial) background. One factor in this is undoubtedly the fact that they are not paid.
Judges: In the English system judge is not a special category of lawyer for which you train at law school but a reward for years of service as an accomplished trial advocate (Barrister) English Crown Court Judges tend to be overwhelmingly older, white, upper class, men. The majority have been educated at Oxford and Cambridge and public school. Various studies over the years into the background of judges have confirmed the remarkable constancy of this background.
There have been some recent reforms with a Commission for Judicial Appointments was set up by the Lord Chancellor in 2001. The Commission reported in July 2004 on the intake procedures for High Court Judges in 2003. The report was highly critical of the appointments process for senior members of the judiciary pointing out that “members of the High Court bench are predominantly white, male and drawn from a narrow social and educational background.” It criticised the mechanism whereby High Court Judges are appointed as: "opaque, outdated and not demonstrably based upon merit".
Juries: the social composition of juries has become an issue in recent years. The old idea of a jury of '12 good men' who are necessarily representative of the general public becomes less plausible in a society divided by class and cultural diversity. Juries have gradually become more socially representative. Women were admitted in 1919 and in 1972 the property owner qualification was dropped and the minimum age was lowered to 18.
In his report on the English court system, Lord Justice Auld commented that
Most of the things he focused on were mechanisms whereby people drop out of jury service. Home Office research estimates that only about a third of the people called for jury service are actually available. About 38% are excused service. Those excused are usually granted exception on the basis of employment (they may lose their job), childcare (one estimate is that this amounts to about 20% of exclusions). In short it tends to be poorer people (and with an overconcentration of non-white ethnic groups) who will drop out of jury service. Also people who move frequently nd are not on the electoral register will not get called. Auld recommended that other records than the electoral register should be used.
Auld, Lord Justice
Review (The Auld Report) London: The Stationary Office