Rights of Defendants

Are the rights of the defendants sufficiently protected in Criminal Justice in England and Wales?

“If the success of the criminal prosecution is to be measured by the proportion of criminals whom it convicts and punishes, the English system must be regarded as a failure.”1

The combination of words moulded in an interrogative form, in my opinion, deserves negative answer, although, the notion above carries lot of positive aspects with it but its dark vision has defeated its designed perceptions. The word Defendant means “a person in a trial who is accused of committing a crime, or a person who is being sued by an other person”2, therefore, the spectrum of the statement is limited as rights before trial are not required under discussion.

The words of LORD DEVLIN were given life practically which can be seen after getting the number of convictions in England and Wales for (Dec 2007 722,499 convicted, Mar 2008, 726324 convicted, June2008, 727714 convicted, Sep 2008, 725918 convicted)3 . In order to evaluate the effectiveness of a criminal justice system, you need first to know what that system sets out to do. There are two quite different potential aims for criminal justice: the ‘due process’ and ‘crime control’4. Obviously criminal justice systems tend not to fall completely within one model or the other: most seek to strike the balance between the two which is really a perplexed zone to enter. The Government claiming that the balance has been tipped too far in favor of suspect’s rights, at the expense of convicting the guilty. On the other hand , civil liberties organizations, many academics and the lawyers involved in the well-known miscarriages of justice feel that the system has not learned from those miscarriages, and that the protection of the suspects are still inadequate5. Before dwelling into an ocean of unending contentions, we must consider two important aspects 1.Contemporary leader of Criminal Justice, a distinguished name Crown Prosecution Service (CPS) which plays privetol role in Criminal Trial and 2.Trial.

1: Crown Prosecution Service (CPS)

Came into being in 1986, as the first public prosecution service in England and Wales. Before it, prosecution as well as investigation was carried out by the police, who in many instances employed in-house lawyers to prosecute in court. The 1981 Royal Commission on Criminal Procedure (the Philips Commission) identified a number of problems with this arrangement, in particular, the inconsistent levels of charging and of rates of prosecutions across the country. The CPS was established in order to provide an independent legal review of cases in order to determine whether or not to bring a case to prosecution. The ‘Philips principle’ as it came to be known, was that the functions of investigation and prosecution should be kept separate. The new system should ‘recognize the importance of independent legal expertise in the decision to prosecute’ and ‘make the conduct of the prosecution the responsibility of someone who is both legally qualified and is not identified with the investigative process’.6 In contrast to systems rooted in the inquisitorial tradition, the prosecutor was given no power to oversee or to direct the police investigation; her role was limited to post-investigation and post-charge. Given that the prosecutor has no judicial training or status, it is perhaps right that she was not given a quasi-judicial role in the way enjoyed by the procurer in France. This functional separation was again considered by the 1993 Royal Commission on Criminal Justice (the Runciman Commission) and was again affirmed as the key feature enabling the CPS to exercise their judgment independently.7

2: The Trial:

This begins with the prosecution outlining the case against the accused, and then producing evidence to prove its case. The prosecution calls its witnesses who give their evidence in response to questions from the prosecution (Examination-in-chief). These witnesses can then be questioned by the defence (Cross Examination), and then if required, re-examined by the prosecution to address any points brought up in cross- examination. After all evidence presented by the prosecution, defence can submit that there is no case to answer, which means no reasonable jury ( bench or magistrate) on the presented evidence could convict. If the submission is successful then a verdict of not guilty will be given. If no such submission is made or if made but it is unsuccessful then defence puts forward his case using the same procedure for examining witnesses as prosecution did. The accused is the only witness who cannot be forced to give evidence. It is not easy process as reduced into words but it involves great amount of intricacies and complexities which in result defeat Justice and creates such concept “Are you going to hang him any-how—and try him afterwards?”8

The person, arrested by the police and brought to the court of justice, is presumed innocent as Law “directs to consider everyone innocent until proven guilty”9 but what is he expecting from the Court a conviction or an acquittal? Why people think that “When I wanted an honest man, I never thought to go to court for him”10 . In my opinion, No defendant will ask court to award him conviction, provided exceptions are over-ruled, he will always look for an acquittal but system is not established to respect his desires, infact, criminal justice system is established to impose desires of a particular class . Rather there is positive aspect for not honoring desires of defendant because it is the most important function of criminal justice system to deter people from committing crimes but to do it at the expense of convicting innocents! Why do we forget this that before verdict they are innocent! and those who actually are criminals are left free because they are mightier than Law and “there is a point at which even Justice brings harm with it”11 , we have witnessed such incidents where Criminal Justice System defeats justice by fracturing his skull through punches and beating him to death and the classical examples are (Birmingham Six, Bridgewater Three, M62 Bombing, Cardiff Three, Tottenham Three, Guildford Four, Maguire Seven ).

We can understand the problems with criminal justice system, Ofcousre they were not there when crime took place nor did they know who did it, they only believe what they are told to believe but in all this misfortune one positive act by criminal justice system can become a windfall for the defendant and that is FAIR TRIAL and this is what Court and living oracles of law can provide and this will inevitably heal their(defendant’s) wounds. HRA 1998 incorporated the Conventional Rights into domestic law, Article 6 of the ECHR is entitled ‘Right To A Fair Trial’, paragraph (1) provides that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The right of access to the courts is not expressly guaranteed by Article 6(1). However, decisions of the European Court of Human Rights (ECtHR) have made it clear that denial of access to national courts may amount to a breach of Article 6.12 The right of access to a court is not absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate.13 but this is not about ECHR but this is about those innocent people who are not yet declared as Guilty but are still subject to torture and mental harassment in the temple of law. In this regard two concepts always encounter each other, the independence and the impartiality.

“The Court recalls that in order to establish whether a tribunal can be considered as ‘independent’, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.”13

As to the question of ‘impartiality’ there are two aspects to this requirement. First, the tribunal must be subjectively free from personal prejudice or bias. Secondly it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect, concepts of independence and objective impartiality are closely linked.”14 Citing that case in his judgment in the House of Lords’ case of Porter v Magill,15 Lord Hope of Craighead noted that in addition to actual proof that the tribunal must be free from actual bias–a difficult and rarely achievable task–it must also appear not to lack these essential qualities. It is the perception that seems to render the judicial task so difficult. The fact that Lady Cosgrove was known to be Jewish, both ethnically and religiously, should not have disqualified her from sitting on a case in the Scottish courts where the claimant was a Palestinian by birth and supporter of the Palestinian Liberation Organization. That by itself could not (and did not) conceivably give rise to a claim of bias. But Lady Cosgrove was also a member of the International Association of Jewish Lawyers and Jurists, no doubt politically on the other side of the Arab-Jewish conflict from the claimant. In Helow v Secretary of State for the Home *P.L.200 Department16 the House of Lords rejected, somewhat less convincingly, but no less correctly, the claim of bias, affirming the test in Porter v Magill. The perception that the court is free from bias, that it is objectively impartial, stems from that overworked aphorism of Lord Hewart C.J. in R. v Sussex Justices Ex p. McCarthy17 : “It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”

In Porter v Magill the House of Lords finally decided the proper test for finding perceived or apparent bias, after a judicial debate over two decades which displayed the welcome interplay of judicial pronouncements within the jurisdictions of the English common law, Scotland and Strasbourg jurisprudence. The test is now whether the fair-minded observer, having considered the facts, would consider that there was a reasonable possibility that the tribunal was biased. Earlier, the test formulated in R. v Gough was whether in all the circumstances of the case, there appeared to be a real danger of bias. Objection was rightly taken to that formulation because it focused objectively on the court’s view of the facts and placed inadequate emphasis on the public perception in the shape of the reasonable observer of the irregular incident. We could not miss the issue of Plea Bargaining, Zander and Henderson (1993) concluded that each year there were some 1400 possibly innocent persons whose council felt they had pleaded guilty in order to achieve a reduction in the charges faced or in the sentence, infact, it goes against the principle that offenders should be punished for what they have actually done. This new theory receives fatal blow when it occurs at the last moment the structure of this principle is devastated such cases are called Cracked Trials because at the end it neither save time nor money which was the specific intent behind this great favor.

Many efforts have been made to modify the criminal system to make it fair and transparent but still we face lot of criticism but we must not turn our eyes from Positive Tomorrow which will be seen by our generation as we have seen what our ancestors wished for us to see. This is in the blood of Human nature that never surrenders and keeps on striving for better and better though sometimes it leads to destruction but nevertheless this is what Human race on track of Fate. Finally, though our Criminal Justice System is insufficient to protect Defendant rights but we can still proudly claim that we have much better system than many other countries and the remarkable quality of our system is that we realize, identify and the rectify the lacunas to avoid injustice.

Bibliography

• • Lord Devlin, quoted by Sir Robert Mark, in the Observer, 12 July 1981
  • Oxford Advanced Learner’s Dictionary 7th Edition.
  • Http://lcjb.cjsonline.gov.uk/ncjb/perfStats/cautions-convictions.html
  • Herbert Packer (1968)
  • Catherine Elliott and Frances Quinn, English Legal System,7th Edition
  • RCCP (1981) para 7.3
  • Professor Jacqueline Hodgson, School of Law, University of Warwick
  • Mark Twain (1835-1910), A trial, 1872.
  • Legal Maxims
  • Thomas Fuller (1654-1734) Gnomologia, no 5560
  • Sophocles (496—406 B.C.), Electra
  • Airey v Ireland, Judgment of 9 Oct 1979, Series A, No 32; (1979) 2 EHRR 305; Golder v UK, Judgment of 21 Feb 1975, Series A, No 18; (1975) 1 EHRR 524; Osman v United Kingdom, Judgment of 28 Oct 1998; (2000) 29 EHRR 245. For the right of access in relation to the transnational enforcement of environmental law, see The International Law Association Toronto Conference (2006) Draft Rules on Transnational Enforcement of Environmental Law, rule 1. For the provision of the means of execution of a judgment and Art 6 see: Immobiliare Saffi v Italy, Judgment of 28 July 1999; Orams v Apostolides [2006] EWHC 2226 (QB).
  • Ashingdane v United Kingdom, Judgment of 28 May 1985, Series A, No 93, para 57; (1985) 7 EHRR 528; Steel and Morris v United Kingdom, Judgment of 15 Feb 2005, para 62.
  • The European Court of Human Rights in Findlay v United Kingdom
  • Findlay v United Kingdom (1997) 24 E.H.R.R. 221 at [73].
  • Porter v Magill [2001] UKHL 67; [2002] 2 A.C. 357 at [103].
  • Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 W.L.R. 2416
  • R. v Sussex Justices Ex p. McCarthy [1924] 1 K.B. 256 KBD at 259.
  • Louis Blom-Cooper, 2009 Bias: malfunction in judicial decision-making