1. ‘Didn't get a trial and didn't deserve one’
In the early hours of 2 May 2011, US Navy SEALs stormed a Pakistani compound in Abbottabad, near the nation's elite military training base. Five residents of the compound, four men and one woman, were fatally shot after a brief gun battle against the American troops. There were no SEAL casualties. The then US President, Barack Obama, announced the outcome of the mission during a televised conference, stating that ‘justice had been done’ to the leader of an organisation ‘committed to killing innocents in our country and across the globe’.Footnote 1 This news resulted in jubilant Americans celebrating in the streets. The SEALs had targeted the man widely considered to have masterminded a series of terrorist attacks, the most notable of which was the coordinated plane hijackings on 11 September 2001. Osama bin Laden was dead.
Operation Neptune Spear was highly controversial and its legality has since been questioned.Footnote 2 Nevertheless, it was supported by the majority of Americans.Footnote 3 Praise for the mission came from Republicans as well as Democrats,Footnote 4 and the global political rhetoric appeared to be one of approval that justice had been served. For example, then Prime Minister David Cameron described the operation as a ‘great achievement for America, … [in killing] a mass murderer’.Footnote 5 Similarly, the then United Nations Secretary-General, Ban Ki-moon, stated ‘that justice ha[d] been done to such a mastermind of international terrorism’.Footnote 6 The public reaction at the news, and the political approval of the mission, suggests that a criminal verdict was not needed for justice to be seen to be done. These sentiments were reflected by legal journalist Jeffrey Toobin, who commented in the New Yorker that ‘bin Laden didn't get a trial and didn't deserve one’.Footnote 7 Bin Laden was not only denied due process of law but was also deemed undeserving of it.
Bin Laden is an exceptional example and this rhetoric was not universal. Nonetheless, the public reaction raises questions about the purpose of the criminal trial. The suggestion that an individual may or may not deserve due process or, indeed, a trial at all, challenges the ethos of the criminal trial. Yet it needs to be recognised that this type of trial, with the rights-bearing defendant at its centre, is relatively modern. A historical perspective shows us that the role of the defendant has mutated in response to pressures placed on criminal justice, with such adaptations going relatively unnoticed by contemporary commentators until irreconcilably changed. Moreover, these mutations have often occurred haphazardly and indirectly, and it would be naïve to assume that such developments could not be reversed. If the role of the defendant can mutate, it is possible that the influence of new pressures could serve to once again alter the criminal trial. Viewed in this context, the rhetoric that bin Laden did not deserve a trial, from commentators with knowledge of the law and due process, becomes more problematic. The public celebration of the death, and the popular discourse of justice served, suggests that we might be at the beginning of a new reconceptualisation of the defendant.
The focus here will be on the criminal procedure of England and Wales, as this is the origin of the common law system and thus can provide valuable insight into the mutable defendant in a range of jurisdictions. Although legal historians have devoted considerable attention to the development of the criminal process, the role of the defendant has largely been seen as a side issue. The contrast between the extensive academic commentary on the English jury trial, for example, and the paucity of commentary on the defendant suggests a general belief that the defendant is a passive receiver of criminal justice. Nevertheless, the literature on the historical development of criminal procedure provides a valuable insight into the development of the role of the defendant. Reading between the lines, it is possible to identify how the concept of the defendant has mutated over time. This paper accordingly aims to develop a clearer theoretical understanding of the changeable concept of the defendant.
Focusing on the role of the defendant provides a novel way through which to assess the long-term impact that pressures and procedural changes can have on the criminal trial. Whilst any amendment to the criminal justice process is usually scrutinised by academics, it is often limited to an analysis of the impact of such change on due process. Whilst this is valuable, it does not explain the long-term impact. Acknowledging the defendant as a mutable concept allows us to project into the future and assess how even small alterations may have enormous consequences on criminal procedure and the philosophy that underpins it.
To fully appreciate how the defendant mutates, it is necessary to have a long view of history. Changes to the role of the accused occurred gradually and often unnoticed by contemporary commentators. Because of this it is impossible to pinpoint exact dates of change for the defendant. As such, this paper will be divided into three conceptualisations of the accused, which follow broad timeframes but are not specific to one particular era. Part 2 will consider the penitent defendant as part of the communal justice mechanisms of Anglo-Norman society, designed to deter the damaging tradition of the blood feud. Part 3 will examine the advocate defendant in a jury system that focused on deservingness. Part 4 will consider the development of the rights-bearing defendant, an inadvertent consequence of the introduction of defence counsel into the felony trial, who facilitated an adversarial revolution in the eighteenth century. The final part of this paper will analyse the potential impact of new pressures on the defendant. Here, it is suggested that a performative defendant is emerging, which may be at odds with the rights-bearing defendant. The introduction of adverse inferences through the curtailment of the right to silence and the development of the duty to disclose will be considered. A discussion of the impact of the new phenomenon of ‘digilantism’ will follow, which will analyse the potential impact of online vigilantism on the rights-bearing defendant. It must be emphasised that this paper does not aim to provide a general history of the development of English criminal process. Rather, it seeks to provide an overview of the procedural changes throughout a substantial period in English history. By so doing it aims to establish the influences that transform the concept of the defendant.
2. The penitent defendant
Notions of guilt and innocence in Anglo-Norman society bear no resemblance to modern standards. In the small, rural communities of the time, factual guilt was normally known.Footnote 8 Indeed, the responsibility for detecting crime in Anglo-Norman society rested with the affronted community, expected to raise a hue and cry and thereby creating awareness of the act by making noise.Footnote 9 Thus, the justice system did not ascertain factual guilt,Footnote 10 and intent was not taken into account.Footnote 11 Instead, the trial was designed to restore harmony and prevent a damaging blood feud, by ensuring that the community featured heavily in the justice process.Footnote 12
The Anglo-Norman trial is described as a process based on proofs and ordeals. The most common type of ordeal was that of compurgation, only available to defendants of good character.Footnote 13 Twelve men of good reputeFootnote 14 attested under oath to the defendant's trustworthiness.Footnote 15 Another ordeal, favoured by the Normans, was the trial by battle, which pitted the accused and accuser, or their representatives, against one another in combat.Footnote 16 Perhaps the most well-known was the unilateral ordeal. Reserved for those defendants with the worst reputations (or those of lower status),Footnote 17 the unilateral ordeal involved a highly orchestrated and religious ceremony, where the supervising priest invited God to pass judgement. The rituals were widespread, varied and involved a physical and seemingly painful test, with the most common being hot or cold trials.Footnote 18
The system of ordeals provided an indisputable verdict. The 12 individuals required for the ordeal of compurgation would have been a significant proportion of the small communities of this period and the process thus provided a high reconciliation threshold.Footnote 19 Those defendants that passed the compurgation did so because the community attested, in essence, to their good character. Similarly, the outcome of the trial by battle was an indisputable mechanism through which the parties could literally fight out their grievances. The unilateral physical ordeal was reserved for the most contentious of defendants, where communal reconciliation might prove difficult.Footnote 20 The fact that they were judged by the divine played into superstition and faith and provided an outcome that was difficult for the accuser to disagree with.Footnote 21 The ordeals were a process centred not around the suspect or the victim, but on the wrong caused and the disharmony that resulted as a consequence of the crime.Footnote 22 In the small rural communities of Anglo-Norman society, discord could be inherently destabilising. The ordeal provided a mechanism that reinforced the need for stability and cohesiveness by ensuring that justice remained communal.
There is convincing evidence to suggest that the ordeals were merciful, granting the accused an opportunity to atone for their sins.Footnote 23 For example, although cursory readings of trial by unilateral ordeal depict a brutal ceremony where the accused was twice damned,Footnote 24 it appears that it operated as a form of penance to allow those defendants of bad repute to rehabilitate back into the community.Footnote 25 Indeed, there appears to be consensus amongst academics that the ordeals had a high success rate,Footnote 26 something that was noted with frustration by some contemporary commentators.Footnote 27 It was not unusual in this society for religious penance to be physical and painful, something the unilateral ordeal appeared to emulate. This is not to suggest that justice in this time was fair, indeed a system that depended on the participation of the community were undoubtedly influenced by its prejudices. This could be problematic for unpopular individuals, vulnerable to false accusations.Footnote 28 It is possible that there were defendants who underwent the pains of the unilateral ordeal simply because they were disliked.
The trial by ordeal became an unsuitable mode of justice as English society developed and became less insular.Footnote 29 By the thirteenth century, society and the Catholic Church were moving away from the ‘mystical expedients’Footnote 30 of the ordeal towards a philosophy based on rational proofs and natural phenomenon, rather than divine interference.Footnote 31 The ordeals were finally eliminated in 1215. For most of Europe the replacement was the forensic and systematic Roman-canon method, which gave rise to the inquisitorial methodology.Footnote 32 For English criminal justice, by contrast, the alternative was the already present jury trial.
3. The advocate defendant
The first juries in the twelfth and thirteenth centuries drew upon local knowledge of the crime and the defendant.Footnote 33 Thus, the jury came to the courtroom more to speak than to listenFootnote 34 and external witness testimony during the trial was rare.Footnote 35 Determining guilt for this ‘self-informing jury’,Footnote 36 therefore, was reminiscent of the ordeal, enabling reconciliation to remain a factor in adjudication.Footnote 37 The jury proved willing to deliver partial verdicts or acquit entirely defendants of good character, first offenders, or with dependants to support.Footnote 38 From the thirteenth and fourteenth centuries, juries were increasingly drawn from the county as a whole, rather than from the affected community.Footnote 39 Jury selection began to focus as much on the status of the juror as on his proximity to the crime.Footnote 40 The trial gradually shifted from reconciliation, to the regulation of immoral behaviour. For example, the jury frequently devalued stolen goods for deserving defendants so as to avoid an automatic capital sanction.Footnote 41 Therefore, a death sentence was reserved only for those defendants considered beyond hope of salvation, something that Parliament appeared to rely on when legislating crimes.Footnote 42 As a result, defendants accused of apparently wicked offences that were believed to instigate a slide into immorality – such as those involving alcohol, gambling or other ‘corrosive temptations’ – were less likely to be considered deserving of mitigation.Footnote 43 The need to assess a defendant's morality created an ‘accused's speaks’Footnote 44 trial, vocally responding to the accusations made against them. In this way the defendant can be described as an advocate defendant, expected to convince the jury that they did not deserve a conviction or the maximum sentence.
The expectation that defendants would advocate their own defence was a considerable challenge in a criminal trial that was a bewildering process for most defendants ‘who were for the most part dirty, underfed and surely often ill’.Footnote 45 Under such circumstances the defendant is not likely to provide a vigorous cross-examination of the evidence.Footnote 46 The pressure on the advocate defendant was further exacerbated by the supposition that they were the best person to know the facts of the crime, having been close enough to events to be accused.Footnote 47 In this way, there was a subtle but underlying presumption of guilt. Unlike defence witnesses, prosecution testimony was delivered under oath, lending considerable authority to the accusations.Footnote 48 Indeed, judges were known to instruct the jury not to put too much weight on the unsworn testimony of the accused.Footnote 49 This was exacerbated by the fact that a private prosecutor was considered to be a witness, and therefore impartial, whereas the defendant was not.Footnote 50 Furthermore, unlike prosecution witnesses, defence witnesses could not be compelled to testify.Footnote 51 This was to avoid contradictory sworn testimony in the courtroom, which, it was believed, would have forced one party to perjure themselves and face eternal damnation.Footnote 52 The effect of this was to provide an inherent prosecutorial bias in courtroom proceedings.
The challenges facing the advocate defendant increased in the sixteenth century with this prosecutorial bias being statutorily entrenched by the Marian Statutes.Footnote 53 This legislation aimed to improve an investigatory deficit in English criminal law that was a consequence of the demise of the self-informing jury.Footnote 54 Acquittals due to a lack of evidence were common and sometimes there was no trial at all.Footnote 55 This created a perception that crimes were going unpunished due to a reluctance by the victim to instigate proceedings.Footnote 56 By extending the powers of the Justices of the Peace (JP)Footnote 57 to investigate crimes and compel prosecutions,Footnote 58 the statutes added an official element to the investigation of the crime and regulated the role of the private prosecutor.Footnote 59 The JPs were given no authority to investigate more widely, meaning that the increased powers were limited to prosecution evidence.Footnote 60
There is evidence to suggest that this prosecutorial bias was unintentional.Footnote 61 It is clear from the preamble of the statute that the legislation did not aim to alter the procedure of the criminal trial.Footnote 62 Instead, the focus of the statute appeared to stem from a desire to make prosecution more effective and keep it local and cheap.Footnote 63 The fact that obviously guilty defendants were being tried at all was probably regarded as a substantial progression of defensive rights.Footnote 64 Thus, it is possible that the prosecutorial bias of the sixteenth century courtroom went unnoticed by state officials.Footnote 65
This bias, however, made the defendant vulnerable to abuse of power, which was exploited during a period of royal authoritarianism in the seventeenth century. Judges and juries who issued verdicts that ran contrary to the will of the Crown could be investigated and punished.Footnote 66 The result was the near extinction of an independent judiciary in a criminal justice system that was influenced by state authoritarianism and an over-zealous criminal law.Footnote 67 Judges who did not wish to accept a jury verdict could question each juror individually as to the reason behind their decision.Footnote 68 During one notable trial of a group of Catholics, led by Richard White, the jury asked the judge ‘whom they should acquit and whom they should find guilty’.Footnote 69 Juries who deliberated for an undue length of time could be denied food, drink, candles and fires until a verdict was reached.Footnote 70
The power imbalance between the prosecutor and defendant was starkly illustrated in a series of treason trials in the late seventeenth century. The increasing use of constructive treason meant that the scope of the crime could be expanded to prosecute political defendants, rendering it very difficult for the accused to establish a defence.Footnote 71 As with felony trials, defendants were not able to see the indictment, nor were they able to compel witnesses to testify at trial.Footnote 72 The most prominent criticism of the treason trial was against the prohibition of defence counsel, which, it was argued, compounded the prosecutorial bias, particularly as the Crown invariably hired lawyers.Footnote 73
Royal persecution of the Whigs led to repeated calls for reform of the treason trial. Abuse of royal power had ensured the conviction and execution of several defendants for treason, but who were probably innocent.Footnote 74 Eventually, the Treason Trials Act was passed in 1696, with the aim of redressing the procedural imbalance. The Act established that the underlying principle in treason trials should be equality of arms, rather than deference to the monarch. The defendant in these rare cases was now entitled to a number of pre-trial rights, such as being able to see the indictment, that embraced this new equality.
While the defensive protections of the Treason Trials Act were limited to the very rare crime of treason, it was the first example of a rights-bearing defendant. Moreover, it provides an example of a conscious effort to change the role of the accused in the criminal trial. It is important to note the limited scope of the 1696 Act; the defendant's role in felony trials remained unchanged.Footnote 75 The notion of a universal rights-bearing defendant developed over the course of the subsequent century as a result of the increasing presence of defence counsel. Despite being officially prohibited from the felony trial until 1836,Footnote 76 remarkably defence counsel facilitated the adversarial revolution that saw the advocate defendant transformed to one regarded as rights-bearing.
4. The rights-bearing defendant
The notion of a defendant deserving of rights developed over the course of the eighteenth century. Influenced by Enlightenment ideals, which championed individualism and the rationality of mankind, at the heart of the adversarial procedure was an acknowledgment of the power imbalance between the state and the defendant.Footnote 77 Thus, due process protections emerged during an adversarial revolution in the English courts,Footnote 78 as part of the recognition that the state had access to substantially greater resources.
Although scholars have traced due process-like phraseology such as ‘innocent until proven guilty’ as far back as thirteenth century inquisitorial jurists,Footnote 79 such terminology does not indicate defensive safeguards. These inquisitorial provisions were not concerned with safeguarding the defendant but on ensuring an indisputable verdict.Footnote 80 Indeed, the defendant was not considered to be an important component of the inquisitorial trial, which could convict and sentence without the presence of the accused.Footnote 81 It is for this reason that due process is seen here as an adversarial concept. This is not to say that the adversarial methodology was better than the inquisitorial process. Indeed, the professionalised bureaucracy of the Continental methods created a sophisticated system of evidence that ensured that the defendant could be convicted only on the highest standard of proof, something that was not afforded to the English defendant.Footnote 82
One of the prevailing characteristics of the adversarial criminal trial is the presence of lawyers. Defence counsel drastically changed the concept of the defendant and did much to address the long-standing procedural imbalance of the trial. Initially their range of activities was severely restricted. Lawyers were allowed to cross-examine witnesses and raise points of law but they were unable to directly address the jury or argue against facts put in evidence.Footnote 83 However, lawyers had obvious incentives to challenge any and all evidence against their client, and to utilise strategy in order to win the case.Footnote 84 Despite these restrictions, over time they transformed the criminal trial from a brief and often bewildering experience for the defendant, into a zealous and combative process.Footnote 85 The introduction of due process safeguards, such as the presumption of innocence, the beyond reasonable doubt standard of proofFootnote 86 – placing the evidentiary burden on the prosecution – and the notion of equality of arms can be attributed, at least in part, to the presence of defence counsel in the courtroom.Footnote 87
Despite their influence, there was no clear policy in the eighteenth century to introduce counsel for all defendants, or to instigate what would be a drastic procedural transformation.Footnote 88 Procedural change in the criminal courts was slow. It is likely that this ‘lulled the bench into inaction until the lawyers had become entrenched’.Footnote 89 What is remarkable is that this procedural revolution, and the new conceptualisation of the accused, came about seemingly unnoticed by courtroom personnel and political elites until it was too late to change it. What had begun as the introduction of counsel in rare instances developed into a procedural revolution that simultaneously silenced and protected the accused.
The adversarial procedure was not formally endorsed until the nineteenth century. The passage of the Prisoners’ Counsel Act 1836 afforded felons the statutory right to defence counsel who were empowered to address the jury directly and offer observations on the evidence.Footnote 90 Provisions such as the Indictable Offences Act in 1848, which granted the defendant a right to silence, made accessing a lawyer increasingly necessary in order to understand proceedings, let alone successfully argue a defence in court. The Criminal Evidence Act 1898 reinforced this right to silence, by stating that the defendant could not be compelled to testify.Footnote 91 Thus, the rights-bearing adversarial defendant came to be seen as a passive receiver of justice. The need for counsel and for the prosecution to prove guilt became essential features of the English criminal trial.
The adversarial process was also physically entrenched in the courtroom, the layout of which now formally reflected the dominance of lawyers. The open court of the fifteenth century, whereby spectators were free to move about the courtroom,Footnote 92 had changed by the Victorian era. By the eighteenth century, purpose-built courthouses were emerging, separating court personnel and providing a more distinct space for counsel.Footnote 93 The accused became completely separated from proceedings, placed in a dock, on the edge of the courtroom, and enclosed.Footnote 94 This starkly highlighted their criminal status and championed the adversarial dominance of the lawyer.Footnote 95
The rights-bearing defendant became further entrenched through codified pre-trial safeguards. These included the Metropolitan Police Regulations 1873, which prohibited the police from forcing a confession,Footnote 96 and the introduction of Judges’ Rules in 1912, providing guidelines for the police investigation that ensured it respected due process.Footnote 97 However, these safeguards were largely introduced in a piecemeal and ad hoc manner. It was a series of high-profile miscarriages of justice in the 1970s and ’80s that powerfully demonstrated the need to regulate the investigation stage and facilitated the passage of the Police and Criminal Evidence Act (PACE) in 1984.Footnote 98 PACE provided a raft of pre-trial safeguards such as the right to access a lawyer,Footnote 99 limits on the length of detention without chargeFootnote 100 and treatment whilst in custody.Footnote 101 The concept of a rights-bearing defendant is now a fundamental component of English criminal justice, protected throughout the whole criminal justice process.
5. The performative defendant: a turning point?
As the rights-bearing defendant became entrenched, the criminal trial became more complicated, longer and more expensive. One key aspect of the rights-bearing defendant is their non-participatory role. It is for the state to bring proceedings and to prove guilt beyond reasonable doubt.Footnote 102 A desire for efficiency has influenced the rhetoric surrounding the criminal process in the latter part of the twentieth century and has led some to query whether this marks the demise of adversariality.Footnote 103 It has established new means of requiring the defence to participate in the process. This new ‘participatory model of procedure’Footnote 104 is based on the expectation that an innocent defendant has nothing to hide.
History has demonstrated how incremental changes to the criminal justice process can have profound implications for the role of the defendant. It is suggested here that these reforms could be creating a performative defendant, expected to engage with the criminal justice process as a way of demonstrating their innocence. This not only has implications for the adversarial criminal trial as a whole but could be an indication that the role of the defendant is changing once again. This section will consider two pressure points on the criminal trial that could entrench this performative defendant: the introduction of adverse inferences; and the rise of so-called ‘digilantism’. In short, we are asking here whether, as in the 1730s, we are at the cusp of another turning point in the criminal justice process.
(a) Obligatory participation: adverse inferences
The requirement that the defendant must participate can be seen in the introduction of adverse inferences through the Criminal Justice and Public Order Act 1994 (CJPOA 1994) and the Criminal Justice Act 2003 (CJA 2003), Part 5 , which amended provisions in the Criminal Procedure and Investigations Act 1996 (CPIA 1996). Sections 34–37 of the CJPOA 1994 allow the jury to make inferences ‘as appear proper’Footnote 105 from the defendant's failure to advance a defence within a reasonable timeframe, or from a failure to answer questions under certain circumstances, most controversially when questioned by the police (s 34).Footnote 106 Similarly, the CPIA 1996, as amended by the CJA 2003, places burdens on both the prosecution and defence to disclose any elements of their case that may assist the opposing party.Footnote 107 The prosecution has long had a general duty to disclose,Footnote 108 but for the first time the defence is now under a similar obligation. The accused must now provide a defence statement to the court,Footnote 109 stipulating the nature of their defence, the matters of fact and points of law that they intend to rely upon and any issues (and why) they have with the prosecution's case.Footnote 110
The introduction of adverse inferences were designed to achieve parity between the prosecution and the defence, after the passage of PACE was felt to have tipped the balance too far towards the accused.Footnote 111 There was a particular fear that the new right to legal advice (PACE, s 58) would provide a major obstacle to police investigation by hindering the suspect interview.Footnote 112 There was also concern that s5 8 could lead to an increase in so-called ambush defences, whereby the accused would refuse to proffer a defence until the last minute as a strategy to undermine the prosecution's case.Footnote 113 Problematically the legislation failed to adequately assess the evidence pertaining to this area of law. This has led Quirk to state that the CPIA 1996 in particular ‘appears to have been drafted in a vacuum’,Footnote 114 an accusation that can also be levelled at the CJPOA 1994. By introducing adverse inferences, the reforms have had the inadvertent effect of requiring the defendant to perform or run the risk of being perceived as guilty.
(b) Right to silence
The curtailment of the right to silence has been described as ‘one of the most controversial reforms of English criminal law in the last century’.Footnote 115 Its introduction was based on a fear that it was being widely used to obstruct criminal justice. Research had consistently found that the right to silence was rarely exercised, and when it was used, it had little bearing on guilt.Footnote 116 Rather, there were more innocuous reasons for remaining silent, for example because of cultural hostility to the police.Footnote 117 Two safeguards were written into the CJPOA 1994, ostensibly to protect vulnerable defendants. Guilt cannot be determined based on the silence of the accused alone (s 38(3)), nor can inference be made if the accused's physical or mental condition makes it undesirable to testify at court (s 35(1)(b)). However, as Birch notes of s 38(3), it ‘is impossible to police’.Footnote 118
Judicial interpretation has expanded the scope of ss 34–37Footnote 119 and provides a powerful demonstration of how such reforms could be transforming the rights-bearing defendant. In Condron Footnote 120 the Court of Appeal held that inferences could be drawn despite legal advice to remain silent.Footnote 121 This is problematic given that the curtailment of the right to silence was ostensibly because of the introduction of legal advice. As Quirk points out ‘[t]his means that suspects have not received the protections that Parliament intended, and that some of the protections of PACE have been weakened without direct legislative authority’.Footnote 122 Although silence should not establish a prime face case, it appears that the courts are willing to do just that. In Hart Footnote 123 the defendant was convicted of knowingly importing cannabis. He remained silent during interview and at trial; the only evidence against him was a piece of paper with a Spanish mobile number found in his pocket on arrest. His appeal was allowed due to poor judicial direction.Footnote 124 However, as Birch notes, ‘that he was convicted in the first place suggests that juries are capable of attaching considerable, and misplaced, significance on silence’.Footnote 125 The implication of these cases is that passivity being equated with guilt.
There is evidence to suggest that the right to silence was being eroded even before the introduction of adverse inferences. In 1976 the Court of Appeal in Chandler Footnote 126 found that the presence of a solicitor equalised the position between the defendant and the police. As a result, the jury could infer the defendant's silence as an acceptance of the accusations. Similarly, in Alladice Footnote 127 in 1980 the Court of Appeal, alluding to ambush defences, stated that as a result of PACE, s 58 ‘the balance of fairness between prosecution and defence cannot be maintained unless proper comment is permitted on the defendant's silence’.Footnote 128 Even prior to PACE, the Court of Appeal commented that juries rarely acquitted if the defendant remained silent.Footnote 129 Parallels can be drawn between the CJPOA 1994 and the Marian Statutes: both being pieces of legislation that attempted to make the criminal trial more efficient, but in actual fact may have simply codified established, or emerging, practice. Crucially, the Marian Statutes eventually led to profound changes to the role of the defendant. The CJPOA 1994 could be doing the same.
(c) Disclosure
The disclosure reforms similarly make a tenuous conclusion that failure to disclose equates to guilt. As Owusu-Bempah notes, ‘the defendant's failure to disclose … before trial is only suspicious because the law places an obligation on him to do so’.Footnote 130 Thus, the defendant is not only considered suspicious if they remain passive and silent, they are also suspicious if they do not perform and cooperate with the justice process. The implications for the rights-bearing defendant are clear; passivity no longer appears to be something deemed to be in need of protecting.
Initially, judges appeared reluctant to draw adverse inferences for failure to disclose. As a result, the applicability of adverse inferences under the CPIA 1996 is ambiguous, when, for example, disclosure is made late or is insufficiently detailed.Footnote 131 Unlike the right to silence, the law on disclosure has generated little case law.Footnote 132 It appears that most judges at least initially preferred to verbally chastise rather than sanction non-compliance.Footnote 133 Nevertheless, the obligation to disclose is being expanded. The amendments made by the CJA 2003, which aimed to ‘give sharper teeth to the enforcement of defence disclosure’,Footnote 134 extended defence (and prosecution) disclosure obligations and made sanctioning non-compliance easier. It now appears that the defence statement is being used to evidence the actus reus component of a crime;Footnote 135 the obligation to disclose is also not absolved by legal advice.Footnote 136 Neither of these new expansions were an intended consequence of the statutes.
The introduction of the Criminal Procedure Rules (CrimPR) has also increased the impact of the disclosure obligations. Designed to promote efficiency in the criminal trial and encourage cooperation between the parties, the CrimPR also introduces a more proactive role for the judiciary, threatening adversarialism.Footnote 137 Despite an initial reluctance to sanction failure to disclose, it appears that, as a result of CrimPR, the courts are increasingly viewing disclosure as a duty in the interests of justice.Footnote 138 Crucially, the courts have, on several occasions, perpetuated the suspicion that the defendant's failure to disclose was tactical.Footnote 139 As a result, it appears to be increasingly difficult for the defendant to appeal against their disclosure obligations.Footnote 140
The obligations of the CrimPR also extended to summary offences. Most disclosure obligations only apply to cases in the Crown Court; the CPIA 1996, s 6, makes it clear that disclosure in the magistrates’ courts is voluntary. Crucially, r 3.11 of the CrimPR states that the parties are under an obligation to complete a case management form in which they identify the order of their evidence, including points of law and information about witnesses that are relevant to their case. This has been described as ‘akin to completing a defence case statement under the CPIA’.Footnote 141 Thus the CrimPR could be an expansion of disclosure through the back door.
It is possible that this new requirement to participate is merely a recalibration of the rights-bearing defendant, rather than a new conceptualisation. However, this would only be possible if the principle of equality of arms was maintained at all stages of the criminal justice process. Unfortunately, this does not appear to be the case. For example, although the CPIA 1996, s 23, creates a disclosure officer, responsible for the cataloguing of the evidence acquired, training for this role is often poor. As a result, officers can fail to understand the importance of a job that requires value judgments of the evidence to be made.Footnote 142 Furthermore, the neutrality required from the disclosure officer contradicts a pervasive attitude amongst the police that they are ‘salesmen for jail’.Footnote 143 Not only does this suggest a lack of a presumption of innocence at the pre-trial phase, it contrasts with the conduct of defence counsel who need to ensure a good working relationship with the police and are therefore less likely to be adversarial in the police station.Footnote 144 The collapse of recent cases due to police failure to disclose demonstrates fundamental flaws in the system.Footnote 145 The growing use of smartphones and other technologies means that the category of potential evidence is growing exponentially. Recent cuts to police budgets make it increasingly difficult for the police to sift through all the evidence accumulated. These factors create a perfect storm for miscarriages of justice.
The introduction of adverse inferences has impacted on the rights-bearing defendant. The erosion of the right to silence ensures that a passive defendant is perceived to be a guilty one. The introduction of the obligation to disclose, however, goes one step further by requiring the defendant to perform to expectations of what innocent behaviour looks like. As then Home-Secretary Michael Howard stated, ‘I do not believe that the innocent have anything to fear from the changes’.Footnote 146 This new attitude towards the defendant, ‘makes a number of untested assumptions about the “natural” behaviour of suspects’.Footnote 147 Nevertheless the view that a passive defendant is a guilty one appears to be growing. It is even perpetuated amongst some defence counsel.Footnote 148 We can see this attitude also operating outside the trial in the reporting of some crimes. Headlines such as ‘Chilling footage shows “no comment” interview with killer Michael Stirling…’,Footnote 149 ‘The “no comment” interview with Stephen Hough that helped convince cops they had cound Janet Commins’ real killer’Footnote 150 or ‘Paedophile Matthew Falder's cocky “no comment” interview after finally being caught’Footnote 151 suggest a growing culture for drawing adverse inferences. There are echoes here of the advocate defendant.Footnote 152 This new performative defendant, however, is expected to engage throughout the criminal justice process. Moreover, it appears that, as a result in the pervasive use of new technologies such as smartphones and social media, the performative defendant must not only convince the jury but also the wider public.
(d) ‘Digilantism’
The underlying implication of guilt behind adverse inferences echoes the notions of deservingness discussed in the introduction to this paper. The reaction towards bin Laden's death appears to suggest that in some cases a criminal trial itself is not deserved. Were this the only example then it could be explained away on the basis of the exceptional circumstances. However, there are indications of a more subtle and widespread change in attitude towards the criminal trial. The growth of social media allows individuals to participate in crime news and to investigate. Described as ‘performative communities’Footnote 153 there have been growing incidents of people taking justice into their own hands. As a result, it is possible that this notion of deservedness is more widespread, threatening the rights-bearing defendant.
Perceptions of criminal justice are heavily influenced by its reporting.Footnote 154 Although some people source crime news through social media, for most of the public the news media remains the primary source of information on criminal justice.Footnote 155 However, increased news media competition is resulting in a ‘hyper-competitive “do what it takes” 24-7 news media sphere’, and is leading to a more sensationalised reporting style.Footnote 156 As a result, criminal defendants are increasingly finding themselves condemned in a ‘court of public opinion’.Footnote 157 Newspaper condemnation of defendants is nothing new. However, the tone of crime reporting has shifted from a rhetoric of crime as a one-off, horrific event to one that ‘could happen to you’.Footnote 158 As a result criminal acts become more personalised, inviting greater reader engagement with the crime and empathy with the victims.
Social media is increasingly becoming an outlet where the public can comment on and digest crime news. This ‘virtual condolence book’Footnote 159 can amplify feelings of grief, connecting individuals to crime in a way that transcends normal geographic boundaries. Online conversations may be short-lived,Footnote 160 but can increase a sense of punitiveness against the defendant. Trending hashtags after criminal events such as #RIPLeeRigby after the 2013 Woolwich killing, or the widespread use of the worker bee, a symbol of the city, after the 2017 Manchester Arena bombing, not only demonstrate widespread solidarity against the crime, but could also be amplifying feelings of anger and revenge against those accused of such crimes.
Interaction with crime is not a new phenomenon; indeed, as noted above, early forms of crime detection relied on the hue and cry and the participation of the community. Since the birth of mass media crime has captured the public imagination.Footnote 161 The growing use of smartphones allows eyewitnesses to record crime as it occurs. This footage can then be disseminated in real time via social media sites. Imagery has always added to the sensationalism of a crime, and CCTV footage has factored into news stories for several decades.Footnote 162 What is new, however, is that this smartphone footage, and the resultant rhetoric of the crime and the accused, is not controlled by the police. For example, the Woolwich killers were named online within 24 hours of the attack, ten days before they were officially named by the police.Footnote 163 This enabled widespread speculation and commentary about the two suspects in the news media.Footnote 164 The fact that social media enables such widespread public engagement can have significant implications for the rights-bearing defendant, particularly through the erosion of the presumption of innocence.
When the defendant is captured red-handed and almost in real time, public understanding of guilt and innocence can become blurred, which can call into question the purpose of the criminal trial. This was illustrated in the online treatment of the two teenagers tried for the murder of Angela Wrighton in December 2014. The age of the perpetrators, 13 and 14, as well as the brutality of the crime,Footnote 165 attracted media attention. However, the Wrighton case is also noteworthy for the role of social media. The children had broadcast their actions on Snapchat and Facebook Messenger, adding to the sense of callousness of the crime. Social media also provided an outlet for the public to express their horror at events. The level of vitriol directed at the defendants resulted in one mis-trial and in severe reporting restrictions, including preventing news media outlets from linking their stories to social media comments.Footnote 166 Indeed, the impact of social media in this case has resulted in the Attorney-General starting an inquiry into the impact of social media on criminal trials more broadly.Footnote 167 Similarly, the naming and shaming of the then-alleged killer of six-year-old Alesha MacPhail has resulted in a prosecution under the Contempt of Court Act 1981, after one woman named and shamed the suspect on social media.Footnote 168 The defendants in both trials had their identities protected by the court. The acts of naming and shaming, alongside the vitriolic online commentary suggests that there is a perception that the criminal trial is obscuring justice, rather than facilitating it.
Social media also allows individuals to investigate crime and take matters of justice into their own hands; the most prominent example are so-called paedophile hunters. These individuals attempt to lure paedophiles to a meeting by posing as children online. Often filmed or live-streamed to social media sites, the alleged paedophiles are then confronted by a group of people who shout accusations and insults whilst they await the police. Described as ‘digilantism’Footnote 169 the motives behind these vigilante groups are illuminating. Yardley et al have found that there are a range of reasons someone might engage in web sleuthing, from being a victim of a similar crime to wanting to see justice done.Footnote 170 In the case of paedophile hunters, there appears to be a strong desire for the latter, as demonstrated in interviewsFootnote 171 and in the names of the groups such as ‘Dark Justice’ or ‘Justice Will Be Served’. Trottier suggests that the rise in online vigilantism is due to a decreased faith in the criminal justice system, among other things.Footnote 172
We are seeing growing ‘digilantism’ in the UK, sometime with disastrous results. Darren Kelly was fatally stabbed by Chris Carroll, who believed Kelly to be a paedophile. Kelly had gone to the meeting believing he was going to meet the mother of a 15-year-old girl.Footnote 173 Similarly, Bijan Ebrahimi was beaten to death by his neighbours Lee James and Stephen Norley, who believed Ebrahimi to be a paedophile. They then set Ebrahimi's body on fire. An Iranian refugee with learning difficulties, accusations against Ebrahimi had begun to circulate on the estate he lived in after he began to take pictures of children who were harassing him; there is no evidence to suggest he was a paedophile.Footnote 174
Anti-paedophile violence is nothing new,Footnote 175 nor is the notion of vigilante justice. Indeed, after the News of the World published details of all convicted sex offenders in protest at the Home Secretary's decision not pass Sarah's Law, a mob infamously attacked those named and living in the Paulsgrove estate.Footnote 176 However, this activity is growing and becoming more mainstream in part due to the ease of access to social media. The use of evidence obtained by paedophile hunters to change suspects increased sevenfold in 2015, with 150 instances of such evidence being used in 2017.Footnote 177 If the criminal justice process allows individuals to exact justice against those they believe are guilty, the idea that the criminal trial is something we deserve and – by implication – earn becomes less exceptional. The pressures on the criminal trial are clear, the growth of apparent ‘evidence’ of guilt may be reframing notions of justice and, thus, the rights-bearing defendant. The hints of a performative defendant as a result of adverse inferences become more acute in this context.
6. How does the mutable defendant change our understanding of modern criminal justice?
The rights-bearing defendant is in a precarious position. As has been established, the defendant's role in the criminal trial is capable of extraordinary change. Moreover, this change can be a considerable departure from legal traditions and can occur without a conscious policy to do so. The criminal justice process reflects, in part, the needs of contemporaneous society. The issues highlighted in the final section of this paper are examples of the many potential pressures on the rights-bearing defendant. Other examples include the cuts to legal aid,Footnote 178 implementation of recent anti-terrorism legislation,Footnote 179 and the potentially coercive nature of the guilty plea.Footnote 180 As this paper has demonstrated, the role of accused is changeable and subject to external pressures. This mutable defendant provides a new theoretical framework though which to assess the future impact of even apparently minor reforms to the criminal justice process.
As we have seen, during a period of sparsely populated but interdependent communities, the focus of the Anglo-Norman criminal trial was not on the defendant, but on encouraging reconciliation to prevent a blood feud. The ordeals created the penitent defendant. The de facto abolition of the ordeals in 1215 was one of only a few conscious attempts to change the procedural status quo. The English jury system was a development of the ordeal of compurgation and continued to draw upon community knowledge in order to establish guilt. A by-product of this requirement was the advocate defendant, who necessarily had a central role in the criminal trial. The Marian Statutes, aimed at addressing a perceived imbalance in favour of the accused, indirectly changed the defendant's role once again, entrenching the advocate defendant and inadvertently establishing a prosecutorial bias. This bias, exploited by the Crown during a period of authoritarianism, led to elite calls for reform for treason trials, the first example of a rights-bearing defendant. Although it occurred gradually over the course of the eighteenth century, and as a result of the mysterious increase in lawyers in felony trials, this rights-bearing defendant became entrenched as the adversarial methodology developed. Due process, a key aspect of the rights-bearing defendant, became statutorily enforced in England and Wales throughout the nineteenth century. The twentieth century saw the rights-bearing defendant established in the pre-trial investigation with the enactment of provisions such as PACE.
There are indications that we might be witnessing a move towards a new iteration of the mutable defendant; indeed, there are hints of the emergence of what is described here as the performative defendant. Certainly, the notion of deservingness evident in the reaction to the death of Osama bin Laden is not compatible with the rights-bearing defendant and a due process-adhering criminal trial designed to protect the accused from the might of the state and arbitrary punishment. Bin Laden is an exceptional example, but history has demonstrated, with the Treason Trials Act, for example, that exceptional examples can have a profound, albeit gradual, impact on the criminal trial as a whole. There is a risk that new developments to criminal justice may eventually echo these notions of deservingness. The use of adverse inferences creates a subtle presumption of guilt for any defendant who does not participate in their criminal trial. Worryingly, the statutory provisions have been judicially expanded and there are indications of a broader cultural acceptance that failure to participate equates to guilt. This notion fundamentally contradicts the rights-bearing defendant, who is entitled to be passive as a check against state tyranny. Indeed, such attitudes are more akin to the advocate defendant. However, the performative defendant goes beyond the advocate defendant, as they are expected to participate throughout the criminal justice process and even, in some cases, to convince the wider public – not just the judge or jury – of their innocence. Social media, facilitated by a hyper-competitive news media, is increasingly being used to digest and comment on crime news. This can result in intense vitriol being directed at defendants, sometimes – such as with Angela Wrighton's killers – with severe implications for the criminal trial. The rise in ‘digilantism’, such as in the case of paedophile hunters, is facilitating acts of individual justice. Tragically, this has resulted in the deaths of innocent people. Whilst anti-paedophile action is nothing new, it demonstrates a lack of faith in the criminal justice system. What is new is that these vigilantes are able to view, produce and disseminate apparent ‘evidence’ of guilt, giving greater credence to their actions. It should not be forgotten that it was a lack of faith in the criminal justice system, albeit with the Whig elites, that facilitated the adversarial revolution.
The mutable defendant provides a useful theoretical framework through which to better assess the capacity of reforms and societal changes to place pressure on, and indeed alter, the criminal justice system. Even though the rights-bearing defendant, through due process protections such as the presumption of innocence, has been globally entrenched, it is important to remember the damaging effects that seemingly minor erosions of procedural values can have on the overall process. Thus, this paper serves as a warning: the defendant, in short, is capable of mutating again.
