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Still Just Rhetoric? Judicial Discretion and Due Process

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Abstract

Judicial discretion is crucial in determining whether, in practice, those accused of crimes experience the protection of due process safeguards during the trial process. In this article, two examples of evidential rules and their judicial interpretation are examined. They are assessed in the context of the common critique that discretion is utilised primarily to the effect of denying due process protections in practice. This analysis takes place in the particular context of the punitive turn in the politics of criminal justice. A detailed examination of the interpretation of s114(1)(d) and s101(1)(d) in conjunction with s101(3) of the Criminal Justice Act 2003, regulating the admission of hearsay and bad character evidence, is carried out in order to gain insight into the modern role of judicial discretion. Conclusions are drawn by proposing some theoretical models of the relationship between statutory content, the interpretation of those provisions and the effects of these on the experience of defendants in criminal trials.

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Notes

  1. Packer (1968).

  2. McBarnet (1981).

  3. Packer (1968, 239).

  4. Ibid.

  5. See n 2.

  6. Ibid, 1–2.

  7. Ibid, 2.

  8. Ibid, p 4–6. For further discussion see Feeley (1973); Roach (1999).

  9. McBarnet (1982, 5).

  10. Ibid, 156.

  11. Ibid.

  12. Ibid, 6.

  13. Ibid, 8.

  14. Ibid, 161.

  15. Ibid.

  16. For further discussion of the relationship between the principles behind criminal justice and judicial discretion see Sharpe (1998, 1–10).

  17. McBarnet (1981, 156–157).

  18. Galligan (1986, 1).

  19. For further discussion of methods of statutory interpretation more generally see: Cross, Bell and Engle (1995); Manchester, Salter and Moodie (2000).

  20. For two opposing views see Handler (1986, 169) and Goodin (1986, 242). See also Davis (1969) where it is argued that discretion should be significantly limited.

  21. Schneider (1992, 61).

  22. Ibid, 47.

  23. McBarnet (1981, 5).

  24. The move towards punativeness in policy statements is well documented, particularly since Prime Minister John Major announced his ‘Crusade on Crime’ in the Mail on Sunday. See Interview with the Mail on Sunday, 14th February 1993. These sentiments were carried forward with Michael Howard’s appointment as Home Secretary in 1993, who announced his legislative agenda by declaring that measures such as the reduction of the Right to Silence would ‘…correct the 30 year in-built bias in the criminal justice system in favour of the criminal and against the protection of the public.’ See Independent (7 October 1993). For further discussion of this period see Bridges (1994). For further discussion of the continued use of punitive rhetoric by successive governments see Brownlee (1998) and Tonry (2004).

  25. See Bell (1992, 91), who suggests that ‘legal rules and standards are treated as privileged statements of policy, but it is the overall objective which matters most’.

  26. Ibid, 106.

  27. Ibid, 104.

  28. For further discussion see Hawkins (1992, 13).

  29. Dworkin (1977, 302).

  30. Bell (1992, 99).

  31. Ibid, 94.

  32. Lucy (2002, 215).

  33. Ibid, 216–217.

  34. Dworkin (1977, 82–90).

  35. McBarnet (1981, 158).

  36. Reinforcing the existing common law discretion to exclude, which operated where the probative value of evidence was outweighed by its prejudicial effect or where evidence had been obtained improperly.

  37. Defined by the 2003 Act, s 98.

  38. Defined in the 2003 Act, s 114.

    1. (1)

      In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—

      1. (d)

        it is relevant to an important matter in issue between the defendant and the prosecution,

      2. (g)

        the defendant has made an attack on another person’s character.

  40. See Roberts and Zuckerman (2004, 29). This concurs with Dworkin’s assessment of the role of discretion, whereby discretion can be used in the ‘weak sense’ of judicial judgement in how pre-determined standards should be applied and the ‘strong sense’ of when an official is not bound by official standards (as in some sentencing decisions). It is the former, ‘weak’ version that concerns the rules of evidence. See Dworkin (1977).

  41. Hall, Critcher, Jefferson, Clarke and Roberts ( 1978).

  42. See, for example, Pratt, Brown, Brown, Hallsworth and Morrison (2005); James and Raine (1998); Garland (2001).

  43. See Bottoms (1995, 17–24).

  44. McBarnet (1981, 157).

  45. See Garland (2001); Bottoms (1995); Pratt et al. (2005); James and Raine (1998).

  46. Home Office (2001).

  47. I.e. they were mentioned the greatest number of times in ‘Justice for All’.

  48. See for example, Tonry, (2004, 5); Brownlee (1998, 326).

  49. Jackson (2003, 309–311).

  50. Home Office (2001, 4.52).

  51. For an extended discussion of this kind of argument see Nobles and Schiff (1995, 304) and the discussion below.

  52. Home Office (2001, 4.5).

  53. Ibid, 4.53.

  54. See, for example, the submissions about these provisions made on behalf of JUSTICE and the Criminal Bar Association to the House of Commons Select Committee on Home Affairs, Tuesday 19th November 2002.

  55. [2008] EWCA Crim 1985.

  56. [2005] EWCA Crim 824.

  57. Per Lord Justice Rix in R v Woodhouse [2009] EWCA Crim 498, para. 16.

  58. [2006] EWCA Crim 2988.

  59. [2008] EWCA Crim 4.

  60. [2008] EWCA Crim 2498.

  61. [2009] EWCA Crim 513.

  62. Per Lord Justice Maurice May, para. 22.

  63. See R v Johnson [2009] EWCA Crim 649, R v Gourde [2009] EWCA Crim 1803, R v Herman [2009] EWCA Crim 1211, R v Tye [2009] EWCA Crim 1738, R v Green [2009] EWCA Crim 1688, R v Rossi [2009] EWCA Crim 2406, R v Bahaji [2009] EWCA 2863.

  64. [2006] EWCA Crim 3408.

  65. Here it was found that a 20 year old conviction could establish a relevant propensity but this would be rare and would require some highly unusual or distinctive behaviour to justify admission under gateway (d).

  66. R v Kingdom [2009] EWCA Crim 2935.

  67. [2009] EWCA Crim 2890.

  68. Per Lord Justice Scott, para 37.

  69. It should be noted that this was a small scale and limited study of only six court centres and such caution should be taken before reliance is placed on any of its results. For an outline of the methodology used see Morgan Harris Burrows LLP (2009, 2).

  70. Ibid, 14.

  71. Under s101(3) the exclusionary discretion can only be exercised if the defence make an application for the evidence to be excluded. They must do this by giving notice as prescribed under Part 35.6 of the Criminal Procedure Rules.

  72. Morgan Harris (2009, 15).

  73. A notice to exclude was made in 47% of cases where the application to admit was granted in full, 65% of cases where the application was granted in part and 85% of cases where the application was refused. Ibid, 24.

  74. Overall, this was the reason for exclusion in 57% of cases involving an application to adduce evidence via gateway (d). Interestingly, the reasons for exclusion differed significantly between the Magistrates and Crown Courts, adverse effects on fairness accounting for 78% of exclusions in the Crown Court but only 38% in Magistrates Courts.

  75. McBarnet (1981, 160).

  76. See s 121(1)(c).

  77. See s 125.

  78. See ss 116–124.

    1. (2)

      In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—

      1. (a)

        how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

      2. (b)

        what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (d)

      3. (c)

        how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

      4. (d)

        the circumstances in which the statement was made;

      5. (e)

        how reliable the maker of the statement appears to be;

      6. (f)

        how reliable the evidence of the making of the statement appears to be;

      7. (g)

        whether oral evidence of the matter stated can be given and, if not, why it cannot;

      8. (h)

        the amount of difficulty involved in challenging the statement;

      9. (i)

        the extent to which that difficulty would be likely to prejudice the party facing it.

  80. See, for example, Baroness Scotland at HL Deb 18th Sept 2003 cc1122-1123. Paul Goggins made this point to the Commons using the example of the case of R v Thomas, noting that ‘…the Court of Appeal dealt with a similar problem in the case of Thomas, when it upheld the judge's ruling that the statement was inadmissible hearsay, but it allowed the appeal as a conviction obtained in such circumstances could not be regarded as safe. That illustrates the need for some form of discretion to admit evidence outside of the categories provided in the Bill.’ HC Deb 18th Nov 2003 c707.

  81. The phrase ‘hearsay fiddles’ was coined by Birch (1987). She further develops the concept, with examples, in Birch (2004).

  82. McBarnet (1981, 120).

  83. [2005] EWCA Crim 3136.

  84. [2007] EWCA 740 (Admin).

  85. [2010] EWCA Crim 1176.

  86. Although not discussed in detail here, a good example of this can be seen in R v Z [2009] EWCA Crim 20.

  87. Per Lord Justice Pitchford, para 11.

  88. [2006] EWCA Crim 260.

  89. [2009] EWCA Crim 712.

  90. Also see the case of R v Khan [2009] EWCA Crim 86, where the idea that the decision was within the range of options available to the defendant was emphasised.

  91. [2010] EWCA Crim 1213.

  92. See also R v Fox [2010] EWCA Crim 1280. This kind of approach was also evidence in R v Seton [2010] EWCA Crim 450, although the trial judge’s decision in that case was held to have also fallen within the ‘range’ of options available to him.

  93. See R v B [2010] EWCA Crim 644.

  94. McBarnet (1982, 163–164).

  95. The research found that following the decision in Hanson, prosecutors were inclined to make less bad character applications and be more selective where they did. This suggests that, at minimum, CPS lawyers expect trial judges to apply the decisions of the appellate courts in interpreting this legislation. See Morgan Harris Burrows (2009, 6).

  96. McBarnet (1981, 155).

  97. Ibid, 112–118.

  98. Morgan Harris (2009, 6).

  99. Zuckerman (1989, 8).

  100. See, for example, Mr Wills at HC Deb 28th Jan 2003 c60.

  101. Zuckerman (1989, 1).

  102. This approach of has been criticised by Nobles and Schiff as justifying the removal of exclusionary rules which protect ideas of fairness and rights in preference for the concept of ‘justice as truth’. As such, they argue, due process is only seen as defensible when it can be argued to assist the process of truth seeking. See Nobles and Schiff (1995, 304). Jackson is more positive, but suggests that these developments put increased responsibility on the judiciary to use their discretion to protect against wrongful convictions and issue limiting directions to juries. See Jackson (1999, 199–201).

  103. Blackstone (1769, 352).

  104. Sanders and Young (2007, 699).

  105. Of course, adherence to legal concepts of truth was meant to lead to only factually accurate finding of guilt, but in doing so accepted the acquittal of a proportion of factually guilty defendants as acceptable.

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    Imogen Jones

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Jones, I. Still Just Rhetoric? Judicial Discretion and Due Process. Liverpool Law Rev 32, 251–273 (2011). https://doi.org/10.1007/s10991-011-9101-5

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