Defendants in the Criminal Process (Routledge Revivals)

A. E. Bottoms, J. D. McClean

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135074395
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

First published in 1976, this book examines the practical workings of the English criminal court system, focusing on the defendant's experiences of the system and the decisions he takes as he passes through it. Indeed, the defendant in a criminal case is in a unique position to experience the whole criminal process, from the first approaches of the investigating policeman to conviction, sentence and possible appeal.

Defendants in the Criminal Process is based upon the close observation of criminal cases and on interviews with defendants. The authors raise several issues and questions to be addressed by those involved in the administration of justice, whether as court administrators, judges, magistrates or lawyers. They also discuss issues of special importance for academics and others concerned with the explanation of the court process.

1 Birth of a research project

A certain shop in the city of Sheffield has a policy of prosecuting all suspected shoplifters, and strongly encourages its sales staff to report customers acting suspiciously. Inevitably, this policy results in certain persons being brought before the courts while strongly protesting their innocence, on the grounds that they had taken the article in question out of the shop by mistake, and not through any intent to steal.

The formal legal position is clear. If the mistake is genuine, the defendant is not guilty, for ‘theft’ occurs only where a person ‘dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’ (Theft Act 1968, s.1). But if someone has been apprehended in possession of goods which he has not paid, for, how is he to show his innocent intent—or even, to couch the position in the correct legal formality, to raise a reasonable doubt against the prosecution’s allegations of dishonesty?

Our legal system is deliberately designed to permit such a person a considerable freedom of choice in the protection of his rights. In the first place, of course, he may choose to plead not guilty, so forcing the prosecution to prove its case beyond a reasonable doubt. Next, he may decide to have his trial either before a bench of magistrates, or before a judge and jury in the Crown Court, where ‘twelve good men and true’ will be the final arbiters of his guilt or innocence. Whichever of these alternatives he thinks the more likely to secure acquittal, he may choose it. Third, he may if he wishes engage a solicitor to help present his case, and in many instances the State through its legal aid scheme will pay to help him do so. Finally, even if he is convicted at the court he has chosen, he has the chance of an appeal against conviction and against sentence, either to the Crown Court (if tried and sentenced before the magistrates) or to the Court of Appeal (in other cases).

Let us follow through the court system two defendants apprehended at the shop in question within a couple of months of each other:

Case 1049 R, a man in his late 50s, was caught outside the shop in possession of some electric light bulbs, valued at 40p. He claimed that not paying for them was a complete mistake. He was an upper working-class man, living with his wife in a very respectable area of the city, and although he had a minor previous conviction, this had occurred more than twenty years before. He suffered from hypertension, and had been told by his doctor to avoid stressful and worrying situations: he was thus terribly upset when he was suddenly faced with the prospect of a court appearance and possible conviction for dishonesty. In his anxiety, he called in at a probation office near his home for some advice. The probation officer was extremely helpful to him, and gave him useful advice about contacting a solicitor. He also arranged to write a probation officer’s report on R to present to the court, although this is very unusual in routine shoplifting cases in the Sheffield area. R contacted a solicitor, who was very helpful and explained that he could and should plead not guilty, but that (because of the way court business was handled) this would mean an adjournment of the case for 6–8 weeks and a second court appearance before the magistrates. R decided that he could not stand this; his hypertension was such that he must get it over and done with. He determined on a guilty plea, while still asserting his complete innocence. His solicitor tried hard to persuade him otherwise, but with no success; his wife, who had also wanted him to plead not guilty, did not press the matter because she realised it would worry R too much. So R went to the magistrates’ court, asked to be tried there at once, and pleaded guilty. His solicitor told the bench: ‘I have been into the question of plea in some detail. It is his decision to plead: he feels any adjournment will make him very ill indeed.’ The magistrates accepted the plea, listened to a plea in mitigation from the solicitor, read the probation officer’s report, and read also three letters submitted by the defendant—one from himself, one from his doctor, and one from his employer testifying to his good character. An order of conditional discharge for 1 year was then imposed.

Case 5013 B, another respectable upper working-class man, also with a single previous conviction many years before, was caught outside the shop in possession of some glasspaper valued at 10p. He too said it was a completely genuine mistake. He decided from the outset that he would fight the case from start to finish, and would most certainly plead not guilty. In the CID office it was discovered that he had a previous conviction, and, he said, ‘from that point on I was treated as a criminal’. He was advised by the CID officer to plead guilty, but resisted. He went to see a solicitor whom friends had recommended: this solicitor told him about the legal aid scheme, and gave him a form to complete, which B did. The solicitor agreed to fight the case, and told B this would mean jury trial in the Crown Court—B did not realise until after the case was over that he could have opted to plead not guilty before the magistrates. A barrister was duly engaged (solicitors may not appear in the Crown Court for this kind of case), and B eventually had his full jury trial. He was convicted. A fine of £10 was imposed, and B was also ordered to pay £50 towards the prosecution’s costs in bringing the case. After the case B, incensed at the injustice of the result (as he saw it), consulted his solicitor about an appeal. The solicitor advised against this: it would, he said, ‘get you nowhere at great expense’.¹ At this point the solicitor also told B that he (the solicitor) had not submitted B’s legal aid application to the legal aid office, because the application disclosed that B had savings such as to debar him from entitlement to aid. The solicitor’s bill eventually arrived, asking for £65; thus B’s total financial loss in the case was £125 for a 10p theft. Not surprisingly, B was not very enthusiastic about either his solicitor or the legal system in general: ‘I now realise I had no chance against the police: it cost me a lot of money and I have totally wasted all that money. I believed before in English justice, but not now. I did do the receiving the time I was up before, and admitted that: this time I fight it and there is a grave injustice.’ He said the whole family had been very upset by the case.

From these two cases, we see clearly that it is not enough for lawyers simply to point out the existence of safeguards, and of ways of asserting rights, in our formal legal system. Obviously, if these defendants’ stories were true, we have here two wrongful convictions. But even if they were in fact guilty, both men were entitled to claim that the administration of the legal system had in a real sense been unjust to them. In R’s case, the way the courts were administered simply did not permit a plea of not guilty to be disposed of in one court appearance, and that was the only right that was of any importance to him. In B’s case, he had apparently been very badly served by his solicitor, both in the lack of adequate information about choosing the court of trial, and in the failure to make clear at an early stage that B would have to meet all legal costs himself. But more than this, B had been penalised by the legal system to the extent of £50 for asserting his undoubted right to a trial by jury—prosecution costs are rarely awarded in lower court shoplifting cases, and even on occasions when they are, the amount is very small.

All this seems very unfair. Yet from a different point of view, one can defend the system that led to these apparent injustices. If there is to be a contested trial, the prosecution must produce all its witnesses on the right day. This is complex and costly to arrange: it is imperative that it should only be arranged where it is strictly necessary, i.e. where the defendant really is going to plead not guilty. It makes good administrative sense, then, to have a preliminary arraignment at which a plea is taken—if the plea is guilty, the case may proceed; if not, it can be put back to another court. Furthermore, even if one is certain that a particular defendant will plead not guilty, to mix his case up with a lot of guilty pleas, remands before trial, etc. makes little administrative sense—for contested trials take much longer to dispose of, and therefore create unnecessary waiting for a lot of people unless they are deliberately siphoned off to a special court. As to the administrative issues in B’s case: it costs much more for the prosecution to prepare papers and brief a barrister for a Crown Court trial, so if B deliberately chose that form of trial and was convicted, why should the public, and not he, pay for it? In any case, if significantly more defendants opted for Crown Court trial, the administration of the Crown Court would collapse through overwork, so it is legitimate to have some safeguard against this in the form of a ‘costs penalty’.

A similar argument can be developed on the question of plea: not guilty pleas are much more costly to handle, and take up significantly more of precious court time, so it is right that the judicial system should encourage guilty pleas by allowing some reduction of sentence or costs in respect of them.

These are administrators’ arguments, and they do not marry easily with lawyers’ rhetoric about the rights of the accused. The tension between the two points of view is one of the central themes of this book.

Approaching the research

The currently fashionable phenomenological sociology stresses the importance of researchers making explicit in considerable detail the nature of the research act which leads to the findings; for only in the light of detailed knowledge of the research act, including the background expectancies brought to the situation by the observer, exactly how he interacted with the research subject, and so on, can the reader make adequate sense of what is presented to him as research evidence (see generally Phillipson, 1972).

We are not phenomenologists, and it is not our intention to provide precisely this kind of account. But there is advantage in conventional social scientists being prepared to state, more openly and honestly than they sometimes have, exactly how certain research came to be done, and how it came to be done in certain ways.

The research reported in this book is a study of the English criminal justice system from the point of view of the defendant. It came into existence in a rather unorthodox way, almost by accident.

In the summer of 1969, one of the authors approached the Home Office with a request for financial assistance for another research project. The request was declined (it no longer matters why), but it was suggested by the Home Office that discussions might still be held about financing other research. Such suggestions are not to be ignored, and a meeting was arranged. The upshot was that the Home Office had noted the implantation of criminologists within the Faculty of Law at Sheffield, and had wondered whether, with this combination of legal and criminological interest, the Faculty would be interested in pursuing research into the administration of the criminal justice system. For internal reasons, the Home Office was anxious to expand funded research in this area: some was being conducted by the Home Office Research Unit itself, but more was needed from universities.

We must stress that no attempt was made by the Home Office to make us conduct any particular project; we were simply invited to consider whether we wished to propose research in this field. Equally, the Home Office was naturally not committed in advance to accept anything which we might propose, but had simply opened a dialogue. We thought, and still think, that this was a most helpful method of exploring the mutual interests of administrators and of outside academics.

Faced with this invitation, we considered a number of possibilities. While we were doing so, it struck us forcibly that, as we put it in our original research proposal, ‘the pattern of the administration of criminal justice in this country is largely determined by the outcome of decisions taken at certain key stages by defendants in individual cases’. In recent years, the administration of English criminal justice has been increasingly stretched by the growing numbers of cases coming before the courts. Yet if suc...