TCC - Disclosure of Evidence
The rules for disclosure of evidence, so that the defendant can see the strength of the case against him, are set out in the Criminal Justice Act 2003. The key provision is below:
S 32(1)(A): the prosecutor must disclose any material which “reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused”. (S37 shows that this is a continuing duty.
Problems with the disclosure with evidence are often said (per Sanders) to be due to: lack of police training (with no incentive to do the job better anyway), CPS often not realising what evidence they have exactly and occasional deliberate acts.
A proportionality test was suggested, to reduce the burden on the prosecution, however LJ Gross dictated that better training for police officers would be the only possible reform.
TCC - Case Management
The judge in a case has a more active role in ensuring efficient management of cases due to the Criminal Procedure Rules.
Solicitors, it has been noted, often leave preoperational work to lowly staff, and the presentation of the case to barristers. This runs against the idea that the Crown Court is a serious institution.
Barristers are not allowed to coach their client in lies, they are only allowed to indicate what would be unacceptable once the client has suggested it. Discussions between the client and lawyer are subject to legal privilege but the barrister is not able to lie to the court.
The Barrister’s Relationship with the Defendant
McConville noted that Barristers generally persuade the defendant of the liklehood of conviction, and the advantages therefore of a guilty plea. On this thought, Zander and Henderson noted some defendants reported they had been persuaded to plead guilty by the Barrister when they did not want too.
Defence barristers, according to McConville, have a predisposition to distrust their clients, and often do not listen to what they have to say. Instead relying on the prosecution file in front of them
PBs come in a number of different forms:
1. Sentence Discount, where a defendant agree to plead guilty in return for a lesser sentence (which could mean a fine or a shorter, less onerous period of imprisonment).
2. Charge Bargain, where the D agrees to plead guilty to a lesser offence than the one for which he was originally charged (e.g manslaughter instead of murder).
3. Fact Bargain, where the D agree to plead guilty, in return for the facts being presented in a manner more favourable to him.
The sentence discount principle has been introduced by S 144 of the Criminal Justice Act 2003. The timing of the plea, the severity of the offence and the strength of the case will all affect the discount that the defendant receives, and whilst this isn’t set out in the statute it has been by the Sentencing Guidance Council.
Plea Bargains 2
The basic scheme has a 1/3 discount for a guilty plea at the first available opportunity. ¼ when the trial date has been set, and only 1/10 at the “foot of the trial”. Some crimes, such as murder, have their own specialist sentencing guidelines.
R v Goodyear had set out that judges can respond to a defendants question in order to indicate the maximum possible level of sentence following a contested trial. The judge may indicate the sentence would remain the same, no matter if there was a plea and that he cannot give this information unless asked (the D must instruct his barrister in writing to ask the judge).
Darbyshire has suggested that the plea bargain instead of rewarding those who do plead, is in fact punishing those who do not. He also noted that if the Defendant is genuinely guilty then they are receiving a benefit they do not deserve, and thus the pressure put on innocent defendants may be too high. The Defendant does not benefit if he was going to be acquitted and the victim does not benefit as the offender will receive a shorter sentence than he deserves.
PBs are therefore a crime control measure, implicitly encouraging pleas before any evidence of guilt has been presented.
Jury Trial - TCC
12 members of the public are drawn without training to decide on whether or not a defendant is factually guilty, if needed by a majority of 10 to 2.
Bankowski says that juries are there to represent the public in deciding what behaviour is permissible and what is not. Gobert has noted that perverse verdicts are therefore used to hand out community justice rather than apply the word of the law.
Researching the jury is difficult because S 8 of the contempt of court act makes it a criminal offence to attempt to inquire into how decisions in actual cases where made.
It is often stated that juries do not represent the public as BME are less likely to be on the electoral roll, from which juries are taken. Furthermore juries are said to only be for those who are too bored or too stupid to avoid it. Finally prosecutors are able to ask jurors to “stand by for the crown” and having researched to see if they would make suitable jurors are therefore able to abuse this power.
To complaints of white bias, Thomas’ research showed in case simulation all-white juries had no discrimination against BME defendants.
Jury Decision Making - TCC
It has been suggested that Juries do not have the interlectual capacity to deal with certain cases (such as complex fraud trials). 50% of jurors, according to Zander, said they did not have any difficulties understanding evidence, and over 90% of lawyers thought jurors were capable of their jobs.
Over acquittal by juries, according to Darbyshire, is often because jurors think the phrase “beyond any reasonable doubt” means 100% sure of guilt.
Lord Judge has regularly been concerned with jurors use of the internet in cases, such as in the case of Thompson and Others, where one of the jurors contacted the judge after the trial to complain one juror being self-employed rushed other members, one juror could not speak English and that one furor continued to fall asleep, whilst another used the internet to research the case.
In AG v Fraill one juror contacted an acquitted defendant via facebook and gave information about ongoing discussions in the jury room.
TCC - Trials
Trials may either take place about the factual situation (Actus Reus) or about the state of mind of the defendant (Mens Rea, 40% of cases). 16% of prosecutors and 35% of barristers thought the judge indicated his opinion to the jury through non-verbal communication, when he is supposed to only submit his view of the case in the summary. Excessive “huffing and puffing” has led to overhauls of convictions, and any judicial bias is for the prosecution.