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 6: Institutional distress: the defence

Mike McConville and Luke Marsh

Subjects: law - academic, criminal law and justice

Extract

In this chapter we review the capacities and practices of defence lawyers against the rhetorical claims made about them and consider the likely impact of government cuts to legal aid in criminal cases. From Turner, through Goodyear and Caley, defence lawyers have been lauded in formal rhetoric as the ultimate protector or 'gladiator of the accused' providing a 'fearless, vigorous and effective defence to secure the best outcome for the client' (Lord Chancellor's Department, 2001). This accords with the argument of Fuller (1961) who said that the purpose of the principle of 'equality of arms', which requires that those accused of criminal offences should be legally represented at the expense of the State, is not merely to protect the innocent person against the possibility of an unjust conviction: 'The purpose of the rule is to preserve the integrity of society itself. It aims at keeping sound and wholesome the procedures by which society visits its condemnation on an erring member'. As Fuller went on to point out, if the defendant is plainly guilty this representation may become in a sense symbolic, but the symbolism is important because 'it marks society's determination to keep unsoiled and beyond suspicion the procedures by which men are condemned for violation of its laws'. Following Turner, defence counsel was required to ensure that defendants would plead guilty only if they were guilty.

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