Criminal Judges

Criminal Judges

Legitimacy, Courts and State-Induced Guilty Pleas in Britain

Mike McConville and Luke Marsh

Against a backdrop of a dysfunctional criminal justice system, the authors bring an avalanche of legal and empirical material to question the legitimacy of the relationship between judges, lawyers, politicians and defendants in modern Britain. Examining existing legal structures and court practices through the lens of what used to be called ‘plea bargaining’ the authors provide a graphic picture of why case disposals through enforced guilty pleas promote injustice, feed discrimination and skew the judicial function. This is the most comprehensive examination to date of case disposition methods in England, Wales and Scotland., underpinned by a new socio-legal theory on the criminal process. Criminal Judges is sure to provoke debate on the forces which drive the criminal justice process and will therefore be of great interest to all those concerned about the future of criminal justice policies and practices. It will appeal to academics, researchers, policy advisors and practitioners of criminal law.

Chapter 2: Helping the police with their inquiries

Mike McConville and Luke Marsh

Subjects: law - academic, criminal law and justice


As seen in Chapter 1, at times of social crisis, actual or manufactured, there is a propensity for courts to disregard traditional understandings of adversarial adjudication. In this chapter we examine whether the 'rights' and 'principles' said to guarantee the adversary system prevail in noncrisis situations. Certainly, we would expect that individual rights would be prominent if only because the existence of 'formal legal rationality' (legal formalism) has been cultivated by judges through, for example, the 'rule of law', 'presumption of innocence', 'right to silence' and 'no detention without arrest'. We argue that the idealised trial model and the very 'rights' once said to be the 'British tradition' going back through Dicey (1885) and Blackstone (1765) to Magna Carta have either not existed in fact or have been dismantled by judges, aided and abetted by official inquiries (in turn, drawing on prior judicial actions) and by politicians engaged in populist 'law and order' campaigns. At root, while espousing fidelity to individual rights and upholding them occasionally, there has been almost unconditional support for police practices in the face of known police illegality. This posture has set the scene for the diminution of individual rights in fact, in legal rhetoric and in law.

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