Defendant Participation in the Criminal Process
By Dr Abenaa Owusu-Bempah
The criminal justice system in England and Wales is often considered to be ‘adversarial’. Within an adversarial system, defendants who deny guilt are not ordinarily required to actively participate in criminal proceedings. This is consistent with the presumption of innocence, under which defendants should be treated as innocent and the burden rests on the prosecution to prove guilt. If the defendant does not wish to play an active role, they can put the prosecution to proof. Alternatively, they may rely on their lawyer to present a positive defence or test the prosecution case at trial. In fact, legal professionals dominate the adversarial system, meaning that, for better or worse, the defendant is often little more than an observer of their own trial.
In England and Wales, however, defendants are not at liberty to take a passive role in the criminal process without fear of being penalised. Over the past few decades, there has been a marked increase in demand for defendant participation.
Unfortunately, this has not resulted in significant changes aimed at helping defendants to participate effectively. Rather, they are now subject to legislative coercion to actively participate, and may be penalised if they fail to do so.
In my book, Defendant Participation in the Criminal Process, I explore the origins and effects of the various participatory requirements which have been placed on defendants in recent years.
Participatory requirements and penalties
Under sections 34 to 38 of the Criminal Justice and Public Order Act 1994, inferences of guilt may be drawn against defendants if they: rely on a fact at trial which they did not mention during police questioning; fail to account to the police for the presence of objects, substances or marks, or their presence at the scene of a crime; or if they do not give evidence in court.
Two years after the introduction of the 1994 Act, the Criminal Procedure and Investigations Act 1996 required all defendants in Crown Court trials to disclose the nature of their case prior to trial. Disclosure is not limited to the general nature of any defence, but must include, among other details, facts the defendant will rely on, factsthey will take issue with, points of law they will rely on, and the names and addresses of all defence witnesses. Failure to comply with the disclosure obligations, late disclosure, or departure from the ‘defence statement’ at trial can be sanctioned through adverse comments and adverse inferences. The disclosure obligations have been augmented by the Criminal Procedure Rules, which were first introduced in 2005. Under the Rules, judges must act as ‘case managers’. As such, they can require the parties to disclose details and information about their cases in trials on indictment and summary trials. Those who fail to comply may be subject to such penalties as cost orders, or even exclusion of evidence from trial.
In addition, there exist many legislative exceptions to the privilege against self-incrimination, under which one can be prosecuted if one does not supply particular (self-incriminating) information during investigations. For example, under section 172 of the Road Traffic Act 1988, car owners can be required to disclose the identity of the person driving their car at the time of a road traffic incident, or face prosecution for non-compliance.
From adversarialism to obligatory participation
The laws and procedures outlined above represent just some of the ways in which the culture of criminal procedure has shifted from adversarialism to one of obliged co-operation and participation. There appears to be two primary reasons for the increase in requirements for defendants to actively participate. First, defendant participation may assist in achieving accurate outcomes, as the defendant is often a good source of information which can help to establish guilt or innocence. Second, defendant participation may increase efficiency in terms of the cost and length of proceedings. If the defendant provides information relevant to the case, and does so early on, time and resources can be spared.
However, the perceived benefits of defendant participation come at a cost. The move from a system of adversarialism to one of obligatory participation has implications for due process and fair trial rights. Article 6 of the European Convention on Human Rights provides for the right to a fair trial. The right to a fair trial includes, among other specific rights: the right to be presumed innocent; the right to silence; and the privilege against self-incrimination. These rights are undermined, if not completely abrogated, by requiring defendants to answer questions and supply information, and by penalising non-cooperation. For example, to require individuals under criminal investigation to provide self-incriminatory information is clearly contrary to the privilege against self-incrimination. The legislation which allows adverse inferences to be drawn from silence is inconsistent with the right to silence. It also undermines the presumption of innocence, as it places a burden on the defendant to explain their innocence, undermines the many possible innocent reasons for silence, and allows the prosecution to rely on silence as evidence to help discharge its burden of proof.
Both the domestic courts and the European Court of Human Rights have (for the most part) been complacent with the idea of requiring defendant participation. The courts have decided that, as long as certain safeguards are in place, the legislation referred to above is compatible with Article 6 of the European Convention on Human Rights. As a result of numerous court judgments, defence rights have been marginalised, interpreted narrowly, subjected to exceptions, and balanced away against the ‘public interest’ in convictions. In short, the ever-increasing pursuit of efficient fact-finding has been given priority over defence rights and the autonomy of the accused.
Requiring defendant participation, and penalising non-cooperation, can also have a discriminatory effect. This is because BME defendants, and particularly black defendants, are more likely than white defendants to exercise their right to put the prosecution to proof. For example, black suspects are more likely to refuse to answer questions in the police station and, therefore, face greater risk of adverse inferences being drawn against them at trial.
Should defendants be required to participate in the criminal process?
We are now in a position where we must recognise the significant effect which participatory obligations have had on the nature of criminal procedure, and consider broad normative questions, such as: whether and why defendants should (or should not) be required to actively participate in the criminal process; and whether we should abandon these participatory requirements or change how we define and understand our system.
These questions are addressed in Defendant Participation in the Criminal Process. The book argues 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 condemnation and punishment of the defendant. 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.
Drafted in 1950 by the then newly formed Council of Europe, the European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe. The convention entered into force in 1953. All Council of Europe member states are party to the Convention.