Supporting the effective participation of defendants
in court proceedings
A research-based briefing from:
the Institute for Criminal Policy Research,
Birkbeck, University of Londoni
Jessica Jacobson,
Gillian Hunter
Amy Kirby
March 2014
Introduction
There is a general acceptance in law that in order to exercise his or her right to a fair trial –
as enshrined in Article 6 of the European Convention on Human Rights – a defendant must
be able to participate effectively in the court process. Under Article 6, the minimum rights of
a person charged with a criminal offence are:
(a) to be informed promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he
has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.1
The principle of effective participation is reflected also in the criteria generally used to
determine whether or not a defendant is ‘fit to plead’: namely, that the defendant can plead
with understanding, understand the proceedings, challenge a juror, question the evidence,
and instruct counsel.2 There is also a further rationale, beyond the principles of law and
human rights, for supporting the effective participation of defendants. If it is accepted – as
many researchers in this field claim – that the development of a sense of ‘agency’ or control
over one’s own life is an important factor in desistance from crime,3 then, arguably, a
defendant’s active engagement in the court process may contribute to desistance.
In practice, the extent to which defendants can be said to participate effectively in court
proceedings is often limited. The aim of this briefing is to identify some of the main barriers
to defendants’ effective participation at court, and to consider how advocates and other legal
professionals can help to overcome these barriers.
The material presented in the briefing derives from a recent study of the public’s experiences
of the Crown Court, conducted over a 20-month period in two courts. This was a qualitative
study, funded by the Economic and Social Research Council, and involved interviews with
defendants, prosecution witnesses, court users’ family members, and criminal justice
professionals, along with observations of court hearings. The study sought to identify the
essential features of the court process, as it is experienced by members of the public; to
explore the interplay between the different participants in court proceedings; and to assess
the extent to which members of the public who appear at court regard the processes and
1
http://www.echr.coe.int/Documents/Convention_ENG.pdf
The legal test for ‘fitness to plead’ dates back to 1836 and is widely criticised as unsuited to the present day;
for example, by the Law Commission (http://lawcommission.justice.gov.uk/areas/unfitness-to-plead.htm.
3
See, for example, Maruna (2001); Giordano et al (2002); McNeill (2006) among others.
2
1
outcomes as fair and legitimate. This paper presents some of the findings of this research;
other findings are presented elsewhere.4
Barriers to defendants’ effective participation
The large majority of defendants who appear at the Crown Court – whether for trial or for
sentencing - are highly compliant with the court process: that is, they attend court when they
are told to, and they follow the social rules and etiquette of the courtroom once they are
there. Defendants’ compliance, however, often appears to reflect a passive rather than
active relationship with the proceedings that concern them.
Four main barriers to defendants’ effective participation at court can be discerned from
defendants’ comments in the research interviews5 and from court observations: a lack of
understanding; exclusionary practices within the courtroom; denial of defendants’ ‘voices’;
and defendants’ passive acceptance of the court process.
Lack of understanding
The language of the courtroom and the concepts deployed can pose difficulties for
understanding, as noted by defendants Jerome and Danny:
They used very long, powerful words where if you're not well educated, if you didn’t
do well at school or didn’t go to university or college or anything like that, because I
didn’t do any of that, it's very hard to take in and understand… If you are a bit
common you are going to find it very hard to understand what they're saying.
They use jargon words ... They speak posh in there as well. And they patronise you
and belittle you by using some of these big words ... It’s all part of the game plan,
wiht barristers and that.
While there are ‘expert’ defendants whose routine involvement in the criminal justice system
means that they are familiar with it and have at least a veneer of knowledgeability, others
who have had little or no prior contact with the system are more likely to acknowledge
confusion. Jenny spoke of her ignorance of the prosecution process as a whole and its
terminology:
From being arrested, even down to the words ‘bail’ and ‘charged’ - because I had
never dealt with these sorts of circles or had any involvement - I didn’t really
understand what even any of those terms meant. So when I was told I had a bail date
until October, that didn’t really mean anything to me. And I didn’t really understand …
why we had to go to the magistrates’ court, to the Crown Court and why it took so
4
Including in a report on victims’ and witnesses’ experiences published by Victim Support (Hunter et al, 2013)
and an academic monograph to be published by Policy Press (Jacobson et al, forthcoming).
5
Interviews with a total of 41 individuals who had appeared as defendants at the Crown Court were conducted
for the study. All but three of the defendant interviewees had been convicted on at least one occasion at the
Crown Court, and most had had multiple experiences of the criminal courts.
2
long. Like there was no kind of explanation … At the time it just was a complete new
world.
Court observations reinforce the impression that defendants often struggle to comprehend
what is being said in court; particularly, for example, where counsel and judge engage in
lengthy legal argument concerning technical matters of law, of which explanation to lay court
users is rarely even attempted. At times, advocates use deliberately obscure or overelaborate language in cross-examining a defendant or witness, in an effort to mislead or
undermine the individual. This can, however, simply produce bafflement, as in the following
exchange in which a defendant accused of rape was asked about the circumstances in
which he first spoke with the complainant:
Counsel:
Defendant:
Counsel:
Defendant:
Counsel [snaps]:
Defendant:
[You spoke to her] as a prelude to sexual activity?
What?
It was as a prelude to sexual activity?
I don’t understand.
You spoke to her because you wanted to have sex with
her!
No.
Exclusionary practices
Barbed exchanges or banter between the professionals in court are often exclusionary in
their language and tone:
Counsel
Judge:
That seems like a sensible suggestion.
Thank you; I shall treasure that’.
Judge:
Counsel:
I’m just pausing for thought, which is sometimes wise.
I should pause for thought more often.
Judge:
Counsel:
It is quite a difficult case for your client to present.
Yes, but the Bar is known for its fearless advocacy.
Some defendants report feeling that they are isolated within, or incidental to, a process that
in many ways appears to be centred around the legal professionals. Such feelings are
enhanced by the perception that defence and prosecution advocates are, essentially, on the
same side; that signs of combat are merely play-acting:
‘They’re all in cahoots…they sit at the same Bar. They see each other every day. It’s
a joke. It’s an absolute joke’
[Steve]
They're pally pally as well, with the prosecution. I see them coming in and they're
laughing and joking. I’m thinking: What’s this? Like you’re going for some drinks or
something.’
3
[Kwame]
Observations of courtroom interactions provide a similar impression of a court process
focused on legal professionals, within which defendants and witnesses are peripheral.
During an armed robbery trial, for example, the two defendants and a key prosecution
witness sat in silence (the former in the dock; the latter at the witness stand, behind a
screen) as the judge and counsel debated at length about how to proceed in light of
suspicions that the witness had been contacted earlier that day by one of the defendants.
The following day, the judge made a decision to halt the trial and schedule a retrial, as the
witness by now had made a clear allegation that the defendant had contacted him. As judge
and counsel now discussed – in open court - potential dates for the retrial, one of the
defence advocates enquired how he could ensure that he and the solicitors would receive
payment (via legal aid fees) for their further work on the case. The judge sought to reassure
him on the matter, but the lawyer persisted in voicing his concerns, and described having
appeared in similar circumstances elsewhere on which occasion the authorities had
‘resolutely refused to pay’. Eventually the judge admonished him:
Judge:
Counsel:
It is unseemly to talk about money in front of your client,
in view of his predicament.
Quite so, quite so.
Denial of defendants’ ‘voices’
The voices of defendants are heard very little at court. In a contested trial, a defendant may
choose to give evidence, but often opts not to do so, or is discouraged from doing so by the
defence counsel. ‘I don’t want them expressing themselves when they’re in the dock,’ said
one lawyer unapologetically in a research interview, ‘It is our job to speak for them.’ Most
defendants plead guilty and thus only appear at court for sentencing, when they are rarely
invited or permitted to speak. Some defendants have a keen sense of being silenced during
the process of sentencing:
‘It’s very frightening and there’s no human contact ...You don’t feel like you can
communicate if you’ve got something to say.
[Gerry]
The only thing I will say about when you get sentenced is that the moment you’re
sentenced you’re taken straight away, and that’s the one thing I’ve never liked about
a court. ‘You’re done now - go away. You’ve just ruined your life; we don’t care. Off
you go.’ That’s a bit inhumane, the way it happens.
[Sam]
Court observations similarly suggest that defendants tend to be silent observers of their own
fate from the dock – particularly at sentencing hearings. The sentencing of a 24-year-old
man for a serious assault ended with the judge passing a custodial sentence while noting his
own regret that this should be befalling a young man of such ‘impeccable good character’;
4
when the defendant then asked the judge ‘Can I say something?’ he was ignored or not
heard, and so simply waved and called out ‘Bye – Mum, Uncle…’ as he was led out of the
dock.
Passive acceptance
A kind of passive acceptance – or what has been described by others as ‘dull compulsion’
(Bottoms and Tankebe, 2012: 165) – characterises the response of many defendants to the
court process. There are various manifestations of passive acceptance, one of which is a
sense of disengagement from the court process, as illustrated by the following exchanges in
research interviews:
Interviewer:
Jerome:
Interviewer:
Jerome:
Interviewer:
Jerome:
Interviewer:
Latif:
Interviewer:
Latif:
Interviewer:
Latif:
Interviewer:
Latif:
What do you think were the worst things about going to Crown Court?
Bad thing about going to Crown Court is knowing that you may not
walk out. That’s all I can say on that one.’
Is there anything you think that could have been done to make your
experience in the Crown Court better?’
I could’ve done with a drink of water half way through it.
They didn’t offer you water?
No. I could’ve done with a drink of water, but that’s about it.
At sentencing, can you remember what the prosecution said about the
offence?’
They were just talking about my criminal background.
Did you think what the prosecution said was fair?
Well … I knew I was going to get done so there wasn’t really a point in
arguing.
Can you remember what your defence said in mitigation?
Can’t remember.
And so how did you feel when the judge passed the sentence that he
gave you?
I felt all right.
Another manifestation of passive acceptance is a largely apathetic response to being in
court. Dexter said of being sentenced: ‘I’ve got issues anyway, so I didn’t really - not to say I
didn’t care, but I didn’t have any feeling in it, because I’ve got other things on my mind as
well.’ Jack described himself as ‘feeling a bit nervous’ when he was last sentenced, ‘but, as
the old saying goes, I committed a crime - had to be punished for it.’ He added that, at court,
‘people are there to do the job and – me personally – you feel they do it to the best of their
ability … I find the Crown Court all right.’
Some defendants claim that their main feeling about being at court is the desire to get the
experience over with. Christian described having been sentenced to a four-year custodial
sentence, and being urged by his lawyer to appeal the sentence because it was harsh. He
had been, he said, reluctant to appeal because he wanted to ‘just get on with it; just get on
with my time and stuff like that… [The case] was going on for months and months. Just get
5
it out of the way.’ (In the event, his girlfriend ‘kept going on about it’ and persuaded him to go
ahead with the appeal; this was successful and resulted in in a substantial reduction of his
sentence from four to two and a half years.) When asked how he had reacted to being
sentenced for drugs offences, Alfie replied:
‘Ummm – dunno - I was just: get on with it - it’s all I could do, you know. No one wants
to go to prison. But it happens. Just gotta deal with it, innit. …. Like – I don’t really take
notice - I’m just there to get my sentence and get my punishment and get out. … Like I
said – I just go there to get my sentence - not there to meet and greet. … Get in and
get out.’
Leon was similarly fatalistic about a new sentencing hearing that he was awaiting at the time
of the research interview: ‘I don’t know if I could be getting locked up or not, so it’s a thing
where you just have to wait and pray that I don’t get locked up. But if I do, I get locked up –
that’s life. Just have to deal with it.’
Many defendants express anger and cynicism about the court process as well as, or
alongside, apathy, resignation, fatalism or detachment. But these expressions of anger are
often infused with a profound sense of powerlessness. Dexter, as noted above, described
himself as having ‘no feeling in it’ when he was most recently sentenced; but he also spoke
of his outbursts of anger at court which are – as he himself fully acknowledged - selfdestructive and futile:
I was causing a lot of trouble [in the cells at the court], kicking doors and all kind of
stupidness; banging, punching the doors, making noise and shouting. Stupid
behaviour; stupid, stupid behaviour. I was upset. … It’s like me, when I went to the
police station, I had a thing with the custody sergeants - I just started kicking up the
place like a mad lunatic, kicking it and messing up my legs again, both legs. … The
only reason why I calmed down was because I injured myself. I couldn’t be kicking the
doors and doing all that; it started to really hurt. When you kick those doors, they’re
solid; they hurt. They hurt a lot, and the harder you kick them, and the more you kick,
the more damage you do to yourself.
Supporting defendants’ effective participation
Defendants are in the paradoxical position of being the focus of and yet, at the same time,
peripheral to the court process. Many feel belittled by aspects of the process, excluded and
often confused by much of the language used in the courtroom, and sometimes frustrated by
the apparent grandstanding, game-playing and chumminess of the lawyers. The barriers to
defendants’ effective participation are thus, to an extent, rooted in the very structures of the
adversarial court process. Very often, defendants’ inability or disinclination to engage
actively in the court process may also reflect their more general disaffection or alienation
from the social order – which itself may have numerous causes, and may be intimately
bound up with offending.
6
Some broad developments within the courts and wider justice system offer scope for tackling
defendants’ passivity and building their capacity for participation. These include greater
involvement of sentencers in the active supervision of certain types of sentence, and the
establishment of ‘problem-solving courts’, within which there is a focus on the problems
underlying offending behaviour – such as substance misuse - as an integral part of the
judicial process.6 Together, such initiatives may have the potential to produce ‘courts which
concentrate on people as well as cases’ (Bowen and Whitehead, 2013: 6). Further,
restorative justice – which entails bringing victims and offenders together to address the
harms caused by offending – is an approach which strongly promotes active engagement on
the part of offenders who are expected to take responsibility for their harmful actions. The
past few years have seen increasing efforts by government to incorporate restorative justice
initiatives as both formal and informal components of the justice process.7
Aside from these broad developments, improving the quality of micro-level interactions within
the courtroom can also help to support – or, at least, can prevent the undermining of –
defendants’ capacity for effective participation. This is an approach supported by the
extensive findings of procedural justice researchers,8 who argue that individuals’ direct
experiences of fairness and good treatment within the criminal justice system substantially
boost positive perceptions of the system as a whole and a sense of its legitimacy. Enhancing
procedural justice within the courts does not demand extensive additional investment of
resources or significant change to practice; it is more a matter of a cultural shift towards a
justice system which more actively and sensitively engages with its lay participants.
Based on defendants’ own accounts of their court experiences, it would seem that the
professionals who engage most effectively with them are those who: speak clearly and
provide explanations of what is happening; treat defendants courteously; allow defendants’
voices to be heard; talk to, not at, defendants; and demonstrate serious commitment to the
case and to fair procedure.
Do not assume understanding: speak clearly, and explain
Legal professionals should recognise that a defendant’s compliance and passivity at court
may mask a lack of understanding. The judge and defence advocate, as appropriate, should
provide explanations of the process as it unfolds; and all professionals at court should seek
to use language that is clear and straightforward. Some defendants, in research interview,
strongly expressed their appreciation of their lawyers’ and others’ efforts to clarify and
explain what was going on:
6
See, for example, Woolf, 2007; Policy Exchange, 2009; Plotnikoff and Woolfson, 2005. Problem-solving (or
what are sometimes termed ‘community justice’ courts) have their origins in the United States, and since the
mid-2000s have fallen in and then out of favour in England and Wales.
7
See, for example, Ministry of Justice, 2012a, 2012b.
8
Procedural justice research is associated particularly with the work of Tom Tyler (e.g. 2006; 2011a; 2011b)
and colleagues in the United States. European-based research on procedural justice includes that by Hough,
Jackson, Bradford and others (e.g. Hough et al, 2013a; Hough et al 2013b; Hough, 2012).
7
Yes, if I didn’t understand it – just like you know when you’re talking to someone and
you say, ‘Sorry I didn’t hear you,’ - I’d say that, and then they’d tell me. And if [the
defence lawyer] saw that I couldn’t understand the words he was using he’d break it
down in layman’s terms.
[Ali]
I think the best thing for me [about the court process] was they made you aware of
what was going on. They were very clear in their statements. They always asked me,
‘Do you understand what I'm saying to you?’ And if I didn’t understand they would
repeat it for me.
[Rodney]
Treat defendants with courtesy
Some defendants have little expectation of being treated in a polite and pleasant way at
court. Sidney’s view was that ‘Because I'm in front of them for a crime, I'm going to be
sentenced by them, they aren’t going to be nice.’ Some insist that they care little for attempts
at courtesy – described by Steve as a ‘façade’ covering up the professionals’ true feelings
about defendants. ‘Oh – it’s all lovely, and everything’s nice, you know - so polite, and very
civil. But deep down – you know. … Listen: I don’t care how you cut it, or how pretty you
dress it – what [the judge] said would be irrelevant to me.’
On the other hand, polite and respectful treatment does make a real and positive impression
on some individuals. Jack remembered a particular judge who ‘called me Mr Macintosh.
Some judges and magistrates just call me Macintosh. Or they say, “Will the prisoner stand
up”’. For all his impotent rage at his own situation, Dexter valued the good treatment he
sometimes received from court security staff:
There was a security guy at D- Court. Am I allowed to say his name? I might as well.
His name was Simon, some guy called Simon; a black fellow. He was good looking
after me, bringing me tea and giving me something to eat and whatnot. He’s a very
good guy. I wonder how Simon is … There are a couple of female guards; they’re all
right as well. They look after you there, give you tea and whatnot and make sure
you’re all right. If you ‘re causing trouble they say, ‘Behave yourself!’
Talk to, not at, defendants
At the point of passing sentence, the judge directly addresses the defendant, which provides
an opportunity – at this critical point of the prosecution process – to engage with the
defendant as an individual and to encourage him or her to reflect upon the offence and its
repercussions, including the sentence. A deeply angry and cynical defendant, or one who is
entirely apathetic, may be impossible to engage. But the judge’s style of delivery of
sentencing remarks can also be important. Judges who speak in opaque language or in a
patronising way may make little connection (the significance of even the smallest gestures
should not be overlooked; defendants complain, for example, about judges who look ‘over
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their glasses’ when talking to them), compared those who address defendants in a
constructive and non-demeaning manner:
The judge - I will give her her dues; she was a fair woman. What she said, I got
emotional, because she said: a lot of things that you have done, they do centre
around drug use. And when I came out of court - I have never done it in my life - I
started crying. I had to go in a little room outside of the court, and this probation
officer, nice women, Asian lady, she works in T- Crown [Court], she gave me some
tissue. Because what the judge said, she was a really fair judge … The words she
said, it is like I had never seen her before but she could see, the things she said hit
home, do you understand.
[Damien]
He was firm but fair, I suppose. I suppose when you hear a judge giving his sentence
... he is condemning you, in a way. So it is a bit, almost a little bit insulting. But I
mean, he's not totally incorrect. But it's delivered in a way that does make you kind of
stand to attention, if you know what I mean.
[Peter]
Demonstrate serious commitment to the case and to fair procedure
It is argued above that defendants can feel alienated by a process that often seems to
revolve around the legal professionals in the courtroom, and by the banter and repartee
among them. Where lawyers or judge appear rushed and distracted, this can also contribute
to a sense of alienation. Conversely, where the professionals display commitment, this may
in turn encourage the defendant’s own engagement with the process:
[The judge was] doing his job, and digesting and reading, and digesting, being
diligent – know what I mean? And people try like [to] pull the wool over people’s eyes
... but the judge, he said that he read the case, the day, the night before the trial, so
everything was fresh in his mind.
[Patrice]
While most defendants, unsurprisingly, are more concerned with the specific outcomes of
their respective cases than with abstract notions of justice, many are also alert to displays of
fairness. Fairness is typically seen as inhering in the impartial treatment of all parties to a
case, and in the court’s commitment to long-established procedures and systems:
Oh, yes, the judge - there’s been rumours about this judge already - like even lawyers
speak about him. … He was the judge that no-one wants to get apparently. …. [But] I
would just say, he was … kind of like hard on the lawyers, but he was equal. … It was
both sides, so it wasn’t biased … The process was all right. It was there because this
is things that have been followed for hundreds of years.
[Kwame]
9
They are judging, but they don’t - they are not deciding themself. They take the
seriousness of the offence, then they decide what this offence deserve, this man
deserve one year, deserve five years. And of the Crown you don’t. So they are doing
their work properly.
[Sizwe]
Conclusion
In short, the structure of the court process often combines with defendants’ natural reticence
to render them as silent and passive observers of their own fate from the dock. Most
defendants are thus far from the ideal of ‘effective participants’ in the court process. It is
suggested above that there are ways in which lawyers, judges and other court-based
professionals and practitioners can, through the nature and quality of their interactions with
defendants, encourage greater engagement and participation. Moreover, this proposed
‘procedural justice’ approach to supporting the effective participation of defendants has wider
applicability. Witnesses and victims often complain of feeling marginalised by a criminal
justice system that accords them little respect or is insensitive to their needs, fears or
expectations. Clearer and more responsive communication between professionals and all
lay participants in the court process potentially offers wide benefits.
Of course there are also limits to what can be achieved within the confines of the adversarial
court process as it currently exists. As noted above, broader developments in criminal justice
– including the expansion of restorative justice interventions and ‘problem-solving’
approaches to justice – might help to build defendants’ capacity for effective participation. It
must also be remembered that those defendants who are the most disengaged in the
courtroom are likely to be the most disengaged from wider society; and that tackling the
multiple causes of such disengagement is an enormous challenge that extends far beyond
criminal justice policy.
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Copyright is held by the authors but this paper may be reproduced in whole or in part without the authors’
permission, provided the source is acknowledged.
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