Abstract
This chapter describes the participatory rights of a defendant in domestic criminal proceedings in England and Wales in both the pre-trial and trial period. The chapter also considers the law in England and Wales relating to trials in absentia, before considering participatory rights at a transnational level. As I outline in this chapter, recent policy developments in England and Wales have resulted in a number of “efficiency” initiatives theoretically designed to expedite decision making but which have resulted in the potential undermining of participatory rights for a defendant. In addition, recent changes to legal aid have made it increasingly difficult for individuals to access legal representation at different stages of the criminal process. Finally, and most significantly, the United Kingdom remains in a transitional period post “Brexit” referendum in terms of its criminal justice arrangements. The Conservative government made the repealing of the Human Rights Act and its replacement with a British Bill of Rights one of their election policies and although this has not yet materialised (indeed, it has been repeatedly delayed), as of January 2018 parliament has voted not to retain the EU Charter of Fundamental Rights in domestic law when it leaves the EU. This context means that many questions of participatory rights, particularly those linked to the future of the Human Rights Act, therefore remain unresolved and a source of concern.
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- 1.
Blackburn (2015), p. 1.
- 2.
Loughlin (2003), p. 44, explains that the constitution can best be understood as “a translation of the Greek politeia […] a descriptive term for the entire body politic.”
- 3.
Blackburn notes in his arguments for a written constitution that the multiple sources of a UK constitution are confusing and inaccessible: “The present mass of common law rules to be gleaned in law reports, convoluted Acts of Parliament that are unreadable to most people, and unwritten conventions some of which are unclear even to politicians, is utterly impenetrable to most people.” Blackburn (2015), p. 3.
- 4.
In addition, the right to silence is also implicitly recognized within this “Although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself […] are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.” ECtHR, Saunders v. United Kingdom, judgment of 17 December 1996, Appl. No. 19187/9, 23 EHRR 313, paragraph 68.
- 5.
For example, the presumption of innocence has long been considered the “golden thread” running through common law in England and Wales. See Woolmington v. DPP [1935] AC 462.
- 6.
Vick (2002), p. 346.
- 7.
Picinali (2014), p. 2.
- 8.
Rose (2011), p. 3.
- 9.
“Judgment by one’s peers” is a particularly important right for defendants in England and Wales, as it is not one provided for in Article 6. In England and Wales a defendant charged with an indictable offence will automatically be entitled to a trial by jury, and a defendant charged with a triable either way offence has the right to opt for a trial by jury.
- 10.
Both provisions can be derived ultimately from the Magna Carta. The importance of the Magna Carta itself to criminal proceedings has been questioned by some scholars (one of whom described it as a ‘failed peace treaty written in Latin’). However, those who argue for Magna Carta’s importance emphasise that these two clauses in particular have been fundamental to formulating the concept of a fair trial in England. See Jennings (1965).
- 11.
For example, some would argue an individual’s right in law to pursue a private prosecution was a ‘constitutional safeguard’, but others would not include it in the provisions they considered constitutional. The House of Commons [HoC] briefing includes reference to its constitutional authority (file:///H:/SN05281.pdf), but it goes unmentioned in the summary of constitutional laws. Picinali also notes the contested nature of what is constitutional when discussing the presumption of innocence. As he expresses it: “the Act has bestowed upon [the presumption of innocence] – or, at the least, has reinforced its – constitutional status.” 2014, p. 2.
- 12.
Ex Parte Simms [2000] AC 115, p. 131.
- 13.
A 2004 Joint Committee investigating parliamentary emergency powers argued that “fundamental parts of constitutional law” could be found in certain statutes, making the argument that any powers enabling parliament to overturn these statutes was problematic. See First Report of the Joint Committee on Draft Civil Contingencies Bill 2003, para 183.
- 14.
“Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way, the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.” Ex parte Simms [2000] AC 115, p. 131.
- 15.
Whether this will happen and how continues to be argued as, despite multiple timeframes proposed from 2012 onwards, no actual draft bill has yet surfaced.
- 16.
It should be noted, of course, that jury trials are vanishingly rare in England and Wales. Although guaranteed to any defendant accused of an indictable offence, or triable either way offence, court reforms increasingly seek to avoid trial at all. See Galanter (2004).
- 17.
Gearty (2016), describes Brexit as an “act of self-harming isolationism by the UK.” For arguments for a British Bill of Rights, see the Conservatives’ 2010 Publication, rather dubiously named Protecting Human Rights in the UK.
- 18.
European Union withdrawal Bill, draft available at: file:///H:/18005.pdf.
- 19.
Hurdles to obtaining legal aid in England and Wales have also been aggravated by threatened changes to legal aid funding for representatives. The government attempted to introduce a criminal legal aid tender whereby law firms would have to bid for government contracts to provide legal aid and the available contracts would be cut from 1200 to 527 which would have significantly reduced the firms able to offer legal aid to individuals. However, after intense criticism and significant protests from the legal profession, the government have retreated for the moment. For more information see the report from Legal Action Group 2015.
- 20.
See https://www.gov.uk/guidance/work-out-who-qualifies-for-criminal-legal-aid. The interests of justice test is ultimately skewed towards individuals being tried for more serious offences, with the possibility of loss of liberty being a strong argument for legal aid being found by the Legal Aid Agency to be in the interests of justice. This is arguably another reason why Magistrates’ Courts have increasing numbers of unrepresented defendants.
- 21.
A defendant should also be able to access a duty solicitor at the court itself if facing an imprisonable offence, however provision does not currently meet demand and even if available, a duty-solicitor is being asked to represent a defendant with minimal information available.
- 22.
A defendant is not permitted to change legally appointed representatives unless a compelling reason is given, which means that if a defendant is dissatisfied with their representation but the judge refuses their application to change representatives, then she may find herself without representation. For more information see Padfield (2012).
- 23.
The only exception to a defendant’s right to represent herself is the explicit ban on a defendant directly cross examining a child witness, or a complainant in sexual assault proceedings.
- 24.
In civil proceedings, the courts express this in R (Kigen) v Secretary of State for the Home Department [2015] All ER (D) 132 decided that a delay in legal aid application was not a sufficient excuse for postponing court proceedings. Whilst there has been no such explicit decision in criminal proceedings thus far this decision is arguably indicative of the overriding emphasis on avoiding delay which trumps any potential undermining of rights for a defendant during the pretrial stage.
- 25.
“The individual, in such situations, who wishes to see the law enforced has a remedy of his own: he can bring a private prosecution. This historical right which goes right back to the earliest days of our legal system, though rarely exercised in relation to indictable offences… remains a valuable constitutional safeguard against inertia or partiality on the part of authority”. Lord Wilberforce in Gouriet v. Union of Post Office Workers [1977] UKHL 5. A notable example of a private prosecution is the attempt by the families of victims of the Hillsborough disaster, where 96 people died after being crushed at a football game, to privately prosecute David Duckenfield, the Chief Superintendent responsible for crowd control, after an inquest ruled the deaths accidental and the CPS declined to prosecute.
- 26.
There has been a recent move to remove the right of private prosecution from organizations such as the RSCPA, the argument being that this enlarges criminalization with private parties being more likely to unnecessarily prosecute individuals for whom an alternative disposal might be more appropriate. See: http://www.bbc.co.uk/news/uk-37987213.
- 27.
This quite archaic process is called ‘laying an information’ and involves laying out the alleged charge and sufficient evidence for a magistrate to decide that a prosecution is warranted. It is important to note that the kinds of proceedings that permit the institution of private prosecutions are limited. Private prosecutions must be approved by the Attorney General in instances of pursuing crimes of universal jurisdiction such as war crimes, and the DPP must approve a prosecution in alleged cases of assisted suicide.
- 28.
Private prosecutions are not without controversy, however, with the case of Eleanor de Freitas highlighting the potential issues of enabling private parties to pursue prosecutions. De Freitas reported being raped by her then partner in 2013. The police, after initial investigation, decided there was insufficient evidence and dropped the case. Her ex-partner then initiated a private prosecution against her, which the CPS took over. De Freitas committed suicide just before she was due to stand trial for a false rape claim. The suitability of the prosecution, in light of Miss De Freitas’ known mental illness, has drawn attention to the issues that can arise from private prosecution.
- 29.
Lord Bingham in R v Jones [2002] UKHL 5, p.
- 30.
See R v. Abrahams [1895], 21 VLR 343, p. 347.
- 31.
R v. Davis [2008] UKHL 36 at para 5.
- 32.
ECtHR, Al-Khawaja and Tahery v United Kingdom, judgment of 15 December 2011, Appl. Nos. 26766/05 and 22228/06, 2127. See also Redmayne (2010).
- 33.
Spigelman (2005), p. 148.
- 34.
See Friedman (2002), pp. 247–248.
- 35.
O’Brian (2005), p. 494.
- 36.
Redmayne is here referring to William O’Brian’s work as well as referring to the US case of Coy v Iowa 487 US 2012 [1988] where the court argued that: “There is something deep in human nature that regards face-to-face confrontation between accused and accuser as essential to a fair trial in a criminal prosecution […] It is always more difficult to tell a lie about a person “to his face” than “behind his back”.
- 37.
Dennis (2010), p. 2.
- 38.
Redmayne (2010), p. 3.
- 39.
- 40.
Rossner (2016). Use of the dock has now been extended, in some cases, to include juvenile criminal proceedings. Previously, proceedings for those under 18 were deliberately made less adversarial and the defendant was able to sit with a parent or guardian, and a legal representative. Whilst this remains the case for many young defendants, the extension of the use of enclosed docks for underage defendants continues.
- 41.
- 42.
R v. Horncastle [2009] UKSC 14.
- 43.
Ss16,17 Youth Justice and Criminal Evidence Act [YJCEA] 1999.
- 44.
The courts have long recognised in England and Wales that pre-trial breaching of fairness can undermine a fair trial overall; for example, improperly gathered evidence by the police can be held to undermine this right (see R v. Chalkley and Jeffries [1998] 2 All ER 155). However, in England and Wales there is still a presumption that evidence be permitted, however gathered, unless it would contravene the fairness of the trial or if it is itself unreliable. The breaching of a defendant’s rights, or the violation of the codes governing policing (PACE codes) will not necessarily result in the exclusion of the evidence at trial.
- 45.
Nicola Padfield’s (2012) article into self-representation in criminal proceedings found there were several defendants who had had no access to legal representation, saying they had not been able to obtain the services of a lawyer. Whilst the reasons for this are unclear, given that duty solicitors are theoretically meant to be available at all courtrooms, it is clearly the case that there is a substantial minority of defendants who never obtain legal advice, and that this is not voluntary.
- 46.
- 47.
Criminal Procedure Rules 8.2.
- 48.
Leveson LJ (2009) cited in CPS guidance on disclosure, Appendix E, available http://www.cps.gov.uk/legal/d_to_g/disclosure_manual/annex_k_disclosure_manual/ (accessed 10 January 2017).
- 49.
Sentencing Council 2007.
- 50.
Maguire (2012). Alternatively, conversely, this may also lead some individuals charged with triable either way offences to take their chances in crown court before a jury and risk a longer sentence in the absence of effective legal advice.
- 51.
Padfield (2012), Souza and Kemp (2009). It is also notable that the latter research was done prior to further alterations to legal aid. Whilst there is no recent empirical research available, one can expect that the situation would have worsened in regards to access to representation for defendants in Magistrates’ Courts.
- 52.
- 53.
There has been much interesting scholarship done into the procedural safeguards around the presumption of innocence and how it is protected, however, most of it is focused around the analysis of reverse burdens in law (see, for example Picinali 2014). There is less done into the degree to which interim measures prior to trial can undermine such a presumption. Jenni Ward’s (2015) article on changes to pretrial provides a good overview of scholarship into virtual courts and their contested problems and benefits.
- 54.
In addition, should the defendant have legal representation and appear remotely, that legal representative must choose to either be in the courtroom, and therefore be separated from their client, or to be with their client and therefore remote from the courtroom.
- 55.
When considering whether to hold proceedings in camera, the court in England and Wales makes the final decision, but does so with ‘the highest regard’ to the Secretary of State and it is generally expected that the court should ‘not depart from their view’. Guardian News and Media Ltd & Ors v R. & Incedal [2016] EWCA Crim 11, para 51, 52.
- 56.
ibid.
- 57.
Guardian News And Media Ltd & Ors v R. & Incedal [2016] EWCA Crim 11, para 36.
- 58.
See ECtHR, Kennedy v UK, judgment of 18 May 2010, Appl. No. 26839/05, 682; Home Office v Tariq [2011] UKSC 35. As Dinah Rose points out, this means that: “A statutory claim seeking compensation for race discrimination may be held entirely in secret, in the absence of the claimant, if the government considers that disclosure of the relevant evidence would harm national security, and such a trial is not incompatible with article 6 of the Convention.” Rose (2014), p. 10.
- 59.
For more information on restorative justice, see Rossner (2013).
- 60.
This process can be done face-to-face, virtually and through ‘shuttling’ letters. For more details on when and how restorative justice is used, see the CPS’s Restorative Justice Guide at: http://www.cps.gov.uk/legal/p_to_r/restorative_justice/.
- 61.
In this respect, youth justice in England and Wales is compatible with the European Convention of the Rights of a Child where ‘[t]he protection of the best interests of the child means…that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety.’ UN CRC, para 10, gen comment 10.
- 62.
Although in some cases, if the victim does not consent, another affected community member may participate, if appropriate.
- 63.
Hawkins 1724 (re-edited in 1978), p. 34.
- 64.
See Langbein (2003), for a comprehensive overview of the introduction of defence counsel into criminal proceedings in England and Wales.
- 65.
Cottu quoted in Langbein (2003), p. 6.
- 66.
Zydervelt et al. (2016).
- 67.
ss16–17, Youth Justice and Criminal Evidence Act 1999.
- 68.
See CPS Victim Right To Review, http://www.cps.gov.uk/victims_witnesses/victims_right_to_review/.
- 69.
The value of the VPS has been debated. On the one hand, there was recent controversy over a judge being heard by a victim’s family describing the VPS as making ‘no difference’ (BBC 2014); on the other hand, a judge who took into account a victim’s plea for clemency for a defendant had his sentencing decisions criticized.
- 70.
See R v Hayward and Ors. [2001] EWCA Crim 168.
- 71.
R v Jones [2002] UKHL 5, [2003] 1 A.C. 1.
- 72.
“The decision to try a defendant in his absence had to be exercised with the utmost care and caution. It was important for the court to determine whether the defendant deliberately and consciously chose to absent himself. If that was the case, the court then had to consider all the relevant circumstances, including: the seriousness of the offence; the extent of the disadvantage to the defendant in not being able to give his account of events; whether an adjournment might assist in securing the defendant’s attendance, and whether the defendant wished to be legally represented at the trial or whether he had waived his right to representation.” R. v Jones [2002] UKHL 5, [2003] 1 A.C. 1.
- 73.
R. v. O’Hare [2006] Crim.L.R. 950, CA.
- 74.
See for example R v. Folarin [2014] EWCA Crim 3033 where the defendant was considered to have been given ‘ample notice’ and therefore his non-attendance was considered to be a waiving of his right to attend.
- 75.
R v Jones [2002] UKHL 5, [2003] 1 A.C. 1. The initial Jones test included the seriousness of the offence, however this has discounted with the House of Lords stating that a just outcome and a fair trial was of equal importance, regardless of the seriousness of the offence being tried. See Guttentag v. DPP [2009] EWHC 1849.
- 76.
s54, Criminal Justice and Immigration Act 2008.
- 77.
S55(3) Magistrates Court Act 1980.
- 78.
This efficiency push has been notably undertaken by the government since 2010 as part of their plans for “Swift and Sure Justice Ministry of Justice [MoJ] 2012, however this bill predates the coalition government and is a product of the previous Labour administration.
- 79.
Magistrates Court Ex p. Burgess [2001] 165 J.P. 82.
- 80.
R. (on the application of Davies) v Solihull Justices [2008] EWHC 1157.
- 81.
R v. Thames Youth Court [2002] 166 J.P. 711, QBD (Pitchford J.). and R. (M.) v. Burnley, Pendle and Rossendale Magistrates’ Court, [2009] 174 J.P. 102, QBD (Langstaff J.).
- 82.
National Audit Office (2006), p. 9.
- 83.
s37.11 Criminal Procedure Rules.
- 84.
As I will discuss later, the UK opted out of the Framework Decision, along with 130 other EU policing and criminal justice measures, in July 2013. It opted back into the Framework Decision on the EAW in November 2014. Dawson and Lipscombe (2015).
- 85.
Ss9.1, Extradition Act 2003.
- 86.
Cieczka v Poland [2016] EWHC 3399 (Admin).
- 87.
Ss20.8a), b), Extradition Act 2003.
- 88.
Vogler (2013), p. 389.
- 89.
s2, MLA Guidelines 2015.
- 90.
PACE Code G (Arrest and Interviewing).
- 91.
The question of hearsay evidence is particularly pertinent here as much of the evidence submitted under the LOR may be in written form. Generally, under the CICA 2003, such written evidence can be admitted if the court believes the witness’s justification for their absence.
- 92.
Rossner (2016).
- 93.
Rowden (2013).
- 94.
It should be noted as well that legal aid cuts not only affect the participatory rights of unconvicted defendants. Changes in legal aid provision to prisoners mean that those who have been convicted cannot obtain legal representation to protest about their conditions of imprisonment.
- 95.
It is of course important to note, however, that whilst the Magistrates’ Courts do not have to conduct an enquiry into a defendant’s absence, this does not mean that they do not in practice. Again, we lack empirical research here to do more than speculate. Clearly, further research into Magistrates Courts proceedings is of critical importance in understanding how the policy shifts are working in practice.
Abbreviations
- CICA:
-
Crime (International Co-operation) Act 2003
- CJA:
-
Criminal Justice Act 2003
- CPS:
-
Crown Prosecution Service
- DPP:
-
Director of Public Prosecutions
- EAW:
-
European Arrest Warrant
- ECtHR:
-
European Court of Human Rights
- HoC:
-
House of Commons
- HRA:
-
Human Rights Act 1998
- IDPC:
-
Initial Details of the Prosecution’s Case
- LASPO:
-
Legal Aid, Sentencing and Punishment of Offender Act 2012
- LOR:
-
Letter of Request
- MLA:
-
Mutual Legal Assistance
- MoJ:
-
Ministry of Justice
- NCA:
-
National Crime Agency
- PACE:
-
Police and Criminal Evidence Act 1984
- YJCEA:
-
Youth Justice and Criminal Evidence Act 1999
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Leader, K. (2019). Report on England and Wales. In: Quattrocolo, S., Ruggeri, S. (eds) Personal Participation in Criminal Proceedings. Legal Studies in International, European and Comparative Criminal Law, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-030-01186-4_4
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