Introduction: Participatory Requirements and Rights

This book explores the changes to the defendant’s role as a participant in the criminal process and the ramifications of penalising a defendant’s non-cooperation, particularly its effect on the adversarial system. The increase in demand for participation has resulted in the imposition of requirements on defendants to actively participate, backed by penalties for non-cooperation. These requirements derive from legislation and have been given effect by the courts. The purpose of this book is to critically examine the participatory role of the defendant during the pre-trial and trial stages of the criminal process, from charge to verdict, and to assess the impact which requiring active participation has had on the nature of criminal procedure. The position taken is that it is wrong to require defendants to actively participate in proceedings against themselves. This argument is based on a broad approach to fair trial rights and a normative position, or theory, which holds 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. When fair trial rights are interpreted broadly, as they ought to be, they allow defendants to take a passive role, while challenging the state and holding it to account for its accusations of criminal wrongdoing. Moreover, if defendants are to be treated as free and dignified citizens of a liberal democracy, as they ought to be, they must be at liberty to choose whether or not to actively participate in criminal proceedings. This normative theory of the criminal process not only provides a basis for the argument against requiring active participation, but also provides a framework, or yardstick, from which to approach and examine wider developments in criminal procedure and the law of evidence

Hate crime and the legal process: options for law reform

Hate crime is a priority area for the Government and policymakers. Among other initiatives to tackle and respond to hate crime, the Government published hate crime ‘action plans’ in 2012 and 2016, the Law Commission completed a project on hate crime legislation in 2014, and, in 2017, the Crown Prosecution Service published new public statements on how it prosecutes hate crime. Public awareness of hate crime has also grown, particularly since the 2016 EU referendum which led to a huge spike in the number of hate crimes reported to the police. More generally, following the referendum, there have been reports of increased levels of anxiety and fear among minority groups and marginalised communities. But what happens when a hate crime is reported to the police? How effectively does the law (and legal professionals) respond to allegations of hate crime? This Briefing Paper presents findings from a 24-month empirical study on the operation of hate crime legislation. These findings indicate that significant reform is necessary to ensure justice for both victims and defendants in hate crime cases

Prosecuting rap: what does the case law tell us?

This article explores the admissibility and use of rap music as evidence in English criminal trials. It presents findings from an analysis of over thirty appeal cases. As well as unpacking the link between rap, race and gangs that is prevalent in these cases, the article challenges the categorisation of rap as ‘bad character evidence’, and critiques the way in which questions of relevance and prejudicial effect have been addressed by the courts. In particular, when making admissibility decisions, the courts appear to give little consideration to the cultural context, artistic conventions or social influences within the rap music genre, or the racialised nature of rap evidence. It is argued that, if rap is to be admissible evidence, a much more rigorous and informed approach is required

Understanding the barriers to defendant participation in criminal proceedings in England and Wales

Over the past two decades, there have been significant legal developments aimed at securing and enhancing the participation of vulnerable witnesses in criminal trials. Yet, there remains relatively little regard for the fact that many defendants, including those who are not deemed to be vulnerable, are unable to participate in criminal proceedings in a meaningful sense. This paper aims to address two questions. First, why should defendants have participatory rights and be capable of meaningful participation in criminal proceedings? Second, why has it proven so difficult to attain meaningful participation of defendants? It is contended that barriers to meaningful communication between the defendant and the court could be dismantled without great difficulty, but continue to exist because due regard is not given to the normative rationales for participatory rights and defendant participation

Defence participation through pre-trial disclosure: issues and implications

The Criminal Procedure and Investigations Act 1996 imposed, for the first time in the history of English criminal procedure, a general duty on the defence to disclose the details of its case ahead of trial. These disclosure requirements have been augmented by the case management provisions of the Criminal Procedure Rules and judicial responses to the perceived need to tackle ambush defences. The defence disclosure regime has changed the role of the defence as a participant in the criminal process. It raises issues of principle in terms of its effect on fai r trial rights and has implications for the nature of English criminal procedure. This article examines these issues and implications; it reveals that the defence disclosure regime has caused a shift in the English criminal process further away from an adv ersarial style contest towards a participatory model of procedure

The interpretation and application of the right to effective participation

Defendants have long held rights to participate in their criminal trials, including the right to effective participation. However, the precise meaning and scope of this right is unclear, and in practice the extent to which defendants can be said to participate effectively in criminal proceedings is often limited. This article examines the definition and uncertain scope of the right to effective participation. It also examines the narrow way in which the right has been applied by the courts, including a judicial willingness to reject medical opinion and an optimistic approach towards the effectiveness of special measures. It argues that there is a need for a clearer and more comprehensive definition of ‘effective participation’ and a more rigorous and medicalised approach to determining whether defendants can participate effectively, to ensure compliance with Article 6 of the European Convention on Human Rights and create legal certainty

Part of art or part of life? Rap lyrics in criminal trials

Even a cursory review of the relevant case law suggests that, on the whole, the courts have taken an uninformed and dismissive attitude towards the prejudicial effect of rap music, writes Abenaa Owusu-Bempah. Such attitudes mean that prosecutors are able to rely on and reinforce racist stereotypes about Black young men and boys

Prosecuting rap: what does the case law tell us?

Forthcoming in Popular Music (2022). This article explores the admissibility and use of rap music as evidence in English criminal trials. It presents findings from an analysis of over thirty appeal cases. As well as unpacking the link between rap, race and gangs that is prevalent in these cases, the article challenges the categorisation of rap as ‘bad character evidence’, and critiques the way in which questions of relevance and prejudicial effect have been addressed by the courts. In particular, when making admissibility decisions, the courts appear to give little consideration to the cultural context, artistic conventions or social influences within the rap music genre, or the racialised nature of rap evidence. It is argued that, if rap is to be admissible evidence, a much more rigorous and informed approach is required

The use of self-modelling in changing eating, smoking and eye-blinking behaviours

The project considers the main aspects of self-modelling: (a) the use of self-modelling in laboratory and field settings; (b) a theoretical framework, based on both cognitive and behavioural factors, which attempts to explain self-modelling phenomena. Five studies are described, each of which contributes directly or indirectly to the proposition that cognitive factors may be involved in self-modelling. [Continues.