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Penalising Defendant Non-Cooperation in the Criminal Process and the Implications for English Criminal Procedure

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Penalising Defendant Non-Cooperation in the Criminal Process and the Implications for English Criminal Procedure Penalising Defendant Non-Cooperation in the Criminal Process and the Implications for English Criminal Procedure Abenaa Owusu-Bempah UCL PhD 1 I, Abenaa Owusu-Bempah confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. .......................................... Abenaa Owusu-Bempah 2 Abstract Requirements for the defendant to actively participate in the criminal process have been increasing in recent years such that the defendant can now be penalised for his non- cooperation. This thesis explores the procedural implications of penalising a defendant’s non- cooperation, particularly its effect on the English adversarial system. This thesis uses three key examples: 1) limitations placed on the privilege against self-incrimination, 2) adverse inferences drawn from a defendant’s silence, and 3) adverse inferences drawn from defence non- disclosure. The thesis explores how laws regarding the privilege against self-incrimination, the right to silence and pre-trial disclosure came to be reformed such that the defendant can now be penalised for his non-cooperation, and how these laws have been approached by the courts. A normative theory of criminal procedure is developed in the thesis and is used to challenge the idea of penalising defendant non-cooperation in the criminal process. The theory proposes that the criminal process should operate as a mechanism for calling the state to account for its accusations and request for official condemnation and punishment of the accused. Within this framework, the defendant should be free to choose whether or not to cooperate and participate throughout the process. The theory rests upon a broad interpretation of the presumption of innocence, the right to a fair trial, and a conception of the relationship between citizen and state. Conversely, the thesis finds that, by placing participatory requirements on the defendant and penalising him for his non- cooperation, a participatory model of procedure has developed. This model relies on the active participation of the defendant in pursuit of efficient fact finding. The participatory model is far removed from England’s history of adversarialism and, unfortunately, has less regard for legitimacy, fairness and respect for defence rights. 3 Acknowledgements I would like to express my sincere appreciation to Professor Ian Dennis and Dr Jonathan Rogers for their invaluable supervision. I am grateful for all of their insight, comments and advice, and for the time they have spent reading draft chapters. I am immensely grateful to my father who has provided constant support, advice and encouragement, and who took the time to read through the thesis. I would also like to thank Kwabena Anin for his personal support. 4 Table of Contents Abstract………………………………………………………………………………………………………………………………………3 Acknowledgements…………………………………………………………………………………………………………………….4 1. Introduction………………………………………………………………………………………………………………………...9 1.1 Arguments against penalising non-cooperation…………………………………………………………..11 1.1.1 The presumption of innocence………………………………………………………………………..11 1.1.2 The right to a fair trial……………………………………………………………………………………..12 1.1.3 The relationship between citizen and state……………………………………………………..13 1.2 The link between the criminal process and the criminal law……………………………………….14 1.3 Implications for English criminal procedure…………………………………………………………………15 1.4 Thesis Outline………………………………………………………………………………………………………………16 2. Aims…………………………………………………………………………………………………………………………………..19 2.1 Introduction…………………………………………………………………………………………………………………19 2.2 Rule 1.1(2)(a) Acquitting the innocent and convicting the guilty…………………………………22 2.3 Rule 1.1(2)(b) Dealing with the prosecution and defence fairly……………………………….....25 2.3.1 Fairness……………………………………………………………………………………………………………25 2.3.2 Legitimacy……………………………………………………………………………………………………….28 2.4 Rule 1.1(2)(c) Recognising the rights of a defendant and the defence…………………….....29 2.4.1 Balancing rights…………………………………………………………………………………………………..31 2.5 Rule 1.1(2)(d) Respecting the interests of witnesses, victims and jurors…………………….33 2.6 Rule 1.1(2)(e), (f) and (g)……………………………………………………………………………………………..37 2.7 Conflict resolution………………………………………………………………………………………………………..38 2.8 Conclusion…………………………………………………………………………………………………………………...41 3. Models……………………………………………………………………………………………………………………………….42 3.1 Introduction…………………………………………………………………………………………………………………42 3.2 Adversarial and inquisitorial models…………………………………………………………………………....43 3.2.1 The adversarial model……………………………………………………………………………………..44 5 3.2.2 The inquisitorial model…………………………………………………………………………………..46 3.2.3 Assessment………………………………………………………………………………………………….…48 3.3 Hybrid systems……………………………………………………………………………………………………………49 3.3.1 France…………………………………………………………………………………………………………….50 3.3.2 Italy………………………………………………………………………………………………………………..52 3.3.3 Assessment…………………………………………………………………………………………………….55 3.4 Efficiency and managerialism……………………………………………………………………………………..57 3.5 European model………………………………………………………………………………………………………….63 3.5.1 Convergence…………………………………………………………………………………………………..64 3.5.2 Influence of the ECHR……………………………………………………………………………………..66 3.6 Conclusion…………………………………………………………………………………………………………………..69 4. Defendant Participation……………………………………………………………………………………………………..71 4.1 Introduction…………………………………………………………………………………………………………………71 4.2 Calling to account………………………………………………………………………………………………………..72 4.3 Defendant participation in the development of the adversarial trial…………………………...81 4.4 Defendant participation in today’s criminal process……………………………………………………90 4.5 The presumption of innocence and legal burdens……………………………………………………....96 4.6 Conclusion………………………………………………………………………………………………………………….103 5. The Privilege Against Self-Incrimination…………………………………………………………………………..105 5.1 Introduction……………………………………………………………………………………………………………….105 5.2 Origins of the modern privilege against self-incrimination………………………………………..106 5.3 Justifying the privilege against self-incrimination……………………………………………………...109 5.3.1 Process values……………………………………………………………………………………………….111 5.3.2 Substantive values………………………………………………………………………………………...115 5.3.3 The relationship between citizen and state……………………………………………………119 5.4 The scope of the privilege against self-incrimination………………………………………………...122 5.4.1 The case law………………………………………………………………………………………………….123 5.4.2 Making sense of the scope…………………………………………………………………………….132 5.5 Conclusion………………………………………………………………………………………………………………....133 6 6. The Right to Silence…………………………………………………………………………………………………………135 6.1 Introduction………………………………………………………………………………………………………………135 6.2 The silence debate…………………………………………………………………………………………………….136 6.2.1 Pre-trial reform…………………………………………………………………………………………….138 6.2.2 Trial reform…………………………………………………………………………………………………..140 6.3 Sections 36 and 37…………………………………………………………………………………………………….141 6.4 Pre-trial silence………………………………………………………………………………………………………….147 6.4.1 Common law…………………………………………………………………………………………………147 6.4.2 Section 34……………………………………………………………………………………………………..148 6.5 Trial silence………………………………………………………………………………………………………………..161 6.5.1 Common law………………………………………………………………………………………………….161 6.5.2 Section 35………………………………………………………………………………………………………164 6.6 The CJPOA in practice…………………………………………………………………………………………………173 6.7 Theoretical implications of the CJPOA……………………………………………………………………….174 6.7.1 The value of the right to silence…………………………………………………………………….175 6.7.2 The scope of the right to silence……………………………………………………………………177 6.7.3 Implications of limiting the right to silence……………………………………………………178 6.8 Conclusion………………………………………………………………………………………………………………….181 7. Disclosure…………………………………………………………………………………………………………………………183 7.1 Introduction………………………………………………………………………………………………………………183 7.2 Disclosure Reform………………………………………………………………………………………………………185 7.3 Prosecution disclosure……………………………………………………………………………………………….189 7.4 Defence disclosure……………………………………………………………………………………………………195 7.4.1 Defence statements………………………………………………………………………………………196 7.4.2 Adverse inferences………………………………………………………………………………………202 7.5 Issues of principle……………………………………………………………………………………………………….207 7.5.1 Issues of fairness……………………………………………………………………………………………207 7.5.2 A ‘no assistance’ approach…………………………………………………………………………….211 7.6 Implications for English criminal procedure………………………………………………………………215 7.7 Conclusion………………………………………………………………………………………………………………….221 7 8. Conclusion…………………………………………………………………………………………………………………….223 8.1 The participatory model……………………………………………………………………………………………..225 8.2 Beyond efficiency……………………………………………………………………………………………………….227 8.3 What happens next?.......................................................................................................229 Bibliography………………………………………………………………………………………………………………………….232 Appendix A – Table of cases…………………………………………………………………………………………………241 Appendix B – Table of legislation…………………………………………………………………………………………….246 8 1 Introduction There has been an increasing trend in criminal justice reforms over the past two decades to secure the active participation and cooperation of the defendant as an individual and the defence as a party representing the defendant. These reforms often entail detrimental consequences for those who do not comply with their participatory requirements. This thesis examines the implications of procedural practices which effectively penalise failure to participate in, or cooperate with, the criminal
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