10. Plea

This chapter examines the law and practice on plea negotiation. After looking at the percentage of defendants who plead guilty, it then considers some of the principal reasons for changes of plea, looking at charge bargains (where the defendant agrees to plead guilty in exchange for the prosecution reducing the level of the charge or the number of charges); at fact bargains (where the defendant agrees to plead guilty only on the basis that the prosecution will put forward a particular version of the facts); and at plea negotiation (where the change of plea is motivated by considerations of sentence). The tendencies evident in the English system are then evaluated in the light of defendants’ rights and the supposed advantages to the public.

9. Pre-trial issues: disclosure and abuse of process

This chapter reviews various procedural mechanisms to ensure that the eventual trial runs smoothly and fairly. In terms of facilitating the smooth running of the trial, it concentrates on ways of screening cases and clarifying some of the issues prior to trial. The disclosure of evidence is a fraught matter in this regard, with an impact on fairness as well as efficiency. In terms of ensuring that the defendant is not subjected to an unfair trial, it examines some question that arise under the broad heading of abuse of process, concentrating on issues of delay and the entrapment doctrine.

8. Remands before trial

The impact on the liberty of a defendant is an important issue and this chapter analyses remand decisions, scrutinizing the justifications for taking away liberty before trial. It also considers the law relating to remands as well as the treatment of unconvicted defendants, the treatment of victims and potential victims, procedural justice and remand decisions, and, finally, equal treatment in remand decisions. The principal focus in this chapter is on the court’s decision whether to remand on bail or in custody between first appearance and trial. Also discussed are the issues of principle raised by the law and practice.

4. Investigating crime and gathering evidence

The criminal process is, to a large extent, an investigative one, existing to prepare cases for effective trial. To this end, authorities are given powers enabling them to gather evidence. But these powers can infringe numerous interests, some relating to the workings of the process itself, in addition to external ones, such as liberty, privacy, freedom from humiliation, and bodily integrity. This chapter examines how the gathering of evidence is and should be affected by these concerns and covers powers and practices in relation to the investigation of crime and the gathering of evidence. It discusses stop and search, surveillance, eyewitness identification evidence, voice identification, forensic and biometric samples, and the privilege against self-incrimination.

14. Criminal process values

This chapter reflects upon the values that appear to dominate the English criminal process, the values that ought to dominate it, and how change might be brought about, in the context of austerity and diminishing resource allocation for both economic and ideological reasons. Specifically, it considers the avoidance of criminal trials, as well as the principled approach to criminal justice. The purpose of the criminal process is to bring about accurate determinations through fair procedures. The approach therefore emphasizes various rights and principles that ought to be safeguarded. The chapter then covers discrimination and non-discrimination, as well as promoting the principled approach.

12. Appeals, reviews, and retrials

This chapter examines the appeals system, the most important purpose of which from the legal system’s point of view is the development and clarification of the law. Reviewing the law in this way allows the higher courts to exert some control over the lower courts and adds much to an understanding of the forces shaping the appeals system. From the point of view of litigants, appeals offer a chance to challenge a result they are unhappy with. The chapter discusses restrictions on appeal rights; challenging jury verdicts; due process appeals; post-appeal review of convictions by the Criminal Cases Review Commission; miscarriages of justice, prosecution appeals; and double jeopardy and retrials.

11. The trial

This chapter focuses on the criminal trial itself which is the focal point of criminal procedure. The rules governing trials therefore shape the decisions made by the police and prosecutors. The trial remains important because defendants’ decisions on whether or not to plead guilty are often informed by what they believe to be the probability of conviction. The chapter considers the courtroom processes and raises questions about the roles of judge and jury. The chapter also discusses the modes of trial; the Crown Court trial; and confrontation and the protection of witnesses all of which are closely connected to issues of procedural fairness.

2. Towards a framework for evaluating the criminal process

This chapter advances a theoretical framework for evaluating criminal procedure, while keeping in mind the links between the different parts and aspects of the criminal justice system. A rights-based theory of the criminal process should have the twin goals of regulating the procedures for bringing suspected offenders to trial to produce accurate determinations, and ensuring that fundamental rights are protected in those processes. This approach should be adopted in England and Wales—both on principle and because it is implicit in international documents such as the European Convention on Human Rights that still plays a fundamental role in English law. Separate objectives for dispositive decisions are also proposed, including the decision to divert a person from the criminal process without trial.

5. Questioning

This chapter examines the questioning stage of the criminal process, looking at the role and powers of the police. It covers the context of questioning and interviewing of suspects, interviewing victims, and confessions in court. It argues that confessions remain a suspect type of evidence despite the fact that the police questioning process is well regulated. Police detention will always be stressful, and innocent suspects will always have some incentives for confessing. This is why there is a case to be made for the corroboration of confessions. It is also crucial that the gains made since the Police and Criminal Evidence Act 1984 (PACE) are not undermined by government initiatives to cut costs by reducing the amount and quality of legal advice available to suspects.

13. Circumventing the trial through preventive orders

This chapter examines a notable feature of the English legal system that has waxed and waned over the last decades—civil preventive orders. These are orders that may be made by a court sitting as a civil court; orders that contain prohibitions created by the court as a response to conduct by the defendant; and orders the breach of which amounts to a criminal offence. Thus, civil preventive order involves a kind of hybrid or two-step process (first, the making of the order according to civil procedure and, secondly, criminal proceedings in the event of breach), which has several implications for the criminal process and for the rights of defendants. More recently their form has been altered and their use moderated.