Roger Leng

The case for the prosecution : police suspects and the construction of criminality

Criminal justice in England and Wales constructing the suspect population in the police station building the case - interrogation building the case - police records and non-interrogation evidence grading and sorting the suspect population reviewing the case for the prosecution acquittals and convictions understanding the criminal justice process the problems of law reform.

Silence in Court: From Common Sense to Common Law: Azzopardi

The decision of the High Court of Australia in Azzopardi re-asserts the role of the common law in determining what inferences may be drawn from silence in court. It is argued that the current approach of UK courts to this issue breaches the right to a fair trial under the ECHR and that the Australian decision provides a guide to the development of the law in the UK and elsewhere.

Review: Building on the Decade of Disclosure in Criminal ProcedureEppJohn ArnoldBUILDING ON THE DECADE OF DISCLOSURE IN CRIMINAL PROCEDURELondon: Cavendish Publishing (2001) xxxviii + 379 pp, hb £48.40

BUILDING ON THE DECADE OF DISCLOSURE IN CRIMINAL PROCEDURE London: Cavendish Publishing (2001) xxxviii + 379 pp, hb f48.40 This is the first major detailed study of the disclosure regime in England and Wales introduced by the Criminal Procedure and Investigations Act 1996. Two earlier studies by David Corker and John Niblett, published in 1996 and 1997 respectively. had clearly been largely written prior to the Act. In both, a relatively brief discussion of the new legislation supplemented a more rigorous examination of the common law. John Epp’s study will be welcomed as providing an integrated discussion of the common law, the Act and decisions under it, and of the significant amelioration of some of the more problematic aspects of the statutory regime by the Attorney General’s guidelines of 2000. As the book’s rather intriguing title suggests, its publication follows a decade or so of intense forensic, legislative and executive activity. The book will certainly have enduring value as an historical record of this important decade. By virtue of its comparative content (throughout reference is made to the operation of the common law in Ontario) and radical reform agenda, the book will also be of interest to law reformers. However, its ultimate value as a practical tool in its home jurisdiction remains to be seen. The problem for both author and reader is that the target is moving. Although the Auld review of the criminal courts and the White Paper of 2001 are considered, they have now been followed by more detailed proposals in the White Paper Justice for All published in 2002. with a Bill to be published before the end of the year. The White Paper promises substantial reform: a single test for prosecution disclosure; greater judicial scrutiny of prosecution disclosure and defence statements: disclosure of the identities of defence witnesses and of unused expert reports; greater scope for the drawing of adverse inferences against the accused; and the possibility of financial sanctions against both the accused and her lawyer for disclosure failings. If passed, the impact of such measures might be to render Epp’s book of recent history merely part of that history. The book is highly structured and reflects a considerable body of research. Some readers may be surprised at the number of issues which may arise under the disclosure banner, and the number of these which remain to be determined by the common law. The author’s preference for the common law above the English statutory scheme is barely disguised, and he adopts a warning issued byJLJSllCE

Review: Confession EvidenceWolchoverDavid and Heaton-ArmstrongAnthonyCONFESSION EVIDENCELondon: Sweet and Maxwell (1996), li + 734 pp + index, hb, £99

Along with the other three volumes considered here, Dinstein and Tabory’s edited collection makes a valuable contribution to the emerging discipline of international criminal law and procedure; as well as being, for our purposes, a worthy component of the evidence scholar’s antidote to parochialism. In digesting these four edited collections we have sampled the nouvelle cuisine of international criminal law publications: intriguing, colourful and innovative, if sometimes repetitive, occasionally insubstantial and probably overpriced. But if this fare leaves palates unsatisfied or appetites unsated, there are tasty morsels aplenty to keep gourmets coming back for more. Welcome to the feast! Enjoy.

Defence Strategies for Information Deficit: Negotiating the CPIA

he Criminal Procedure and Investigations Act 1996 (CPIA) has been presented as a measure to secure efficiency in the criminal process; as a reinforcement for the principle of adversarialism; and as a means to reduce miscarriages of justice by pre-empting defence tactics which might lead to unmerited acquittals.’ This positive vision is bolstered by an impressive prior consensus in criminal justice circles in favour of some form of mutual disclosure pretrial.’ However, it is important that the government’s rhetoric and invocation of the supporting consensus should not obscure the revolutionary nature of the new procedures and the concerns which they raise about fairness to the accused and the possibility of miscarriages of justice?

Researching the Discretions to Charge and to Prosecute

Prominent miscarriages of justice such as the Confait affair and the cases of the ‘Guildford Four’ and the ‘Maguire Seven’ have focused public attention on the processes by which alleged offences are investigated and alleged offenders prosecuted. These cases raise serious doubts about the ability of the criminal trial to expose the faults and errors which may be built into a case by the very processes of investigation and prosecution. They further suggest that the problem is not generated simply by corrupt or illegal practices of police and prosecutors, but rather that miscarriages of justice may arise also through currently lawful practices. Miscarriage of justice thus may be seen as an inherent feature of our present adversarial system, in which control of a case in its early stages is vested in well-resourced state agencies whose function is to prepare and present a case for the prosecution.