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 5: Institutional distress: the State

Mike McConville and Luke Marsh

Subjects: law - academic, criminal law and justice


The guilty plea process established by judges, while placing a premium on cost-effectiveness, remains embedded in a legal framework, which, it is claimed, serves to secure correct outcomes and protect against error. This, indeed, is a necessary requirement both to deliver justice on the ground but also to project the appearance of formal legality. The certainty and celerity of punishment which State-induced guilty pleas claims to achieve must be accompanied by the assurance that expedition does not imply less vigilance, so that, to use for pedagogic purposes the categories made fashionable by Auld (2001), 'the innocent' are protected from wrongful conviction and 'the guilty' receive punishment. In the absence of an independent tribunal of fact and conventional procedures to secure compliance with rules regarding admissibility of evidence and the burden and standard of proof, the guarantee is primarily to be found in the personnel of the law: prosecutors, judges and defence lawyers. In this chapter we examine the extent to which prosecutors and judges provide such assurance that concerns over State-induced pleas may be properly allayed, before turning to defence lawyers in Chapter 6.

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