Legitimacy, Courts and State-Induced Guilty Pleas in Britain
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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