Still Just Rhetoric? Judicial Discretion and Due Process

Still Just Rhetoric? Judicial Discretion and Due Process

Imogen Jones

Published online: 8 December 2011

� Springer Science+Business Media B.V. 2011

Abstract Judicial discretion is crucial in determining whether, in practice, those

accused of crimes experience the protection of due process safeguards during the

trial process. In this article, two examples of evidential rules and their judicial

interpretation are examined. They are assessed in the context of the common cri-

tique that discretion is utilised primarily to the effect of denying due process pro-

tections in practice. This analysis takes place in the particular context of the punitive

turn in the politics of criminal justice. A detailed examination of the interpretation

of s114(1)(d) and s101(1)(d) in conjunction with s101(3) of the Criminal Justice Act

2003, regulating the admission of hearsay and bad character evidence, is carried out

in order to gain insight into the modern role of judicial discretion. Conclusions are

drawn by proposing some theoretical models of the relationship between statutory

content, the interpretation of those provisions and the effects of these on the

experience of defendants in criminal trials.

Keywords Hearsay � Bad character � Discretion � Due process

Introduction

This article explores the relationship between statutory provisions, judicial

discretion and the crime control and due process ideologies.1 Previous debates

have suggested that the judiciary acknowledge due process but use the process of

interpretation and discretion to relegate it to the realms of rhetoric, with the effect of

I. Jones (&)

School of Law, University of Manchester, Oxford Road, Manchester M13 9PL, UK

e-mail: [email protected]

1 Packer (1968).

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Liverpool Law Rev (2011) 32:251–273

DOI 10.1007/s10991-011-9101-5

defendants being denied its protections in practice.2 Since these arguments were

developed, the punitive turn has gained momentum, changing both the political and

legal landscape. In the last decade legislation has arguably become more closely

intertwined with crime control rationales, resulting in increased criminalisation and

aiding the process of conviction. In particular, the concept of ‘balance’ and the

interests of victims have taken a central role on the political stage, with punitive

public perceptions of where the balances in criminal justice should lie being

advanced as justifications for legal reform. As such, it is important to revisit the

issue of the role of judicial discretion in negotiating the key ideological balances in

the criminal process.

This article examines two recent examples of legal reform to evidential rules and

the appeals based upon them. The first provision is s101(1)(d) and the corresponding

exclusionary discretion in s101(3) of the Criminal Justice Act 2003 (the 2003 Act),

dealing with the admission of a defendant’s bad character as propensity evidence.

The second provision is the new inclusionary discretion for the admission of hearsay

evidence contained within s114(1)(d) of the same Act. These provisions provide

valuable illustrations both because of the ideologically driven political context in

which they were enacted and because of the way in which the legislation appears to

advance both crime control and due process goals. Through the examination of

these provisions and decisions, initial steps are taken to renewing understanding of

the role of judicial discretion.

First, an important limitation of this article must be acknowledged. It is restricted

to the appeal stage of the process, it being assumed that trial judges apply the law as

interpreted by higher courts, although there is no empirical substantiation of this.

By the time cases reach the appellate courts, there has usually already been a finding

of guilt. As such, they cannot represent a genuine reflection of the issues in an actual

adjudication. Therefore, the analysis offered here cannot necessarily be assumed to

reflect the experience of defendants during the trial stage.

Questioning Assumptions About the Law

Packer’s crime control and due process models are useful tools in analysing the

ideological foundations and effects of criminal justice decisions, setting up

contrasting value systems which help in understanding how conflicting goals are

reconciled and prioritised. In summary, the crime control model prioritises the

conviction of the guilty over the risk of convicting a small number of innocent

people. It is not concerned to abide by the rights of the accused if it can achieve its

goals without affecting the reliability of the fact-finding processes involved, thereby

prioritising factual rather than legal guilt. A crime control system resembles an

‘assembly line’.3 By contrast, the due process model prioritises the acquittal of the

innocent, even if this results in the frequent acquittal of the guilty too, insisting upon

legal guilt being proved. It pursues the protection of civil liberties as an end in itself.

2 McBarnet (1981).3 Packer (1968, 239).

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Consequently, legal safeguards against conviction make the system appear to be an

‘obstacle course’.4

Doreen McBarnet,5 who has provided one of the leading commentaries on the

role of judicial discretion, begins with the premise that the ‘rhetoric of justice’ (by

which she means the key principles upon which justice is thought to operate), is one

of due process, whereby the system is set up to favour strongly defendants over the

state, prioritising the protection of innocent accused above the goal of convicting the

guilty.6 This leads her to question why most cases result in a finding of guilt.7 Of

course, a large element of the answer to this question lies outside the scope of this

article, namely that the majority of those accused of a crime plead guilty. Their

cases never reach adjudication and the rules of evidence are never engaged in

determining their guilt. Nevertheless, it is this general disparity between the

experience of most defendants and the rhetoric of justice that sets the scene for

McBarnet’s critique.

The idea that ‘law in the books’ (as it is described, representing due process) is

undermined by the ‘law in practice’ (what actually happens in practice, reflecting

crime control) is not a novel idea.8 It has often been suggested that due process is

actually for crime control, in the sense that it allows crime control to be pursued

without legitimate allegations of unfairness. McBarnet, however, introduced the

idea that the law itself should not be assumed to incorporate due process protections

for the accused, this being a significant flaw in the methods of those wishing to

effect stronger safeguards.9 As such, the behaviour of legal officials becomes a

convenient scapegoat for law which does not match up to its rhetoric.10

If the law does not incorporate its own rhetoric, then it must be possible to

establish three rather than two levels at which the law operates, so that the rhetoric

of justice is separate from the law and the practice.11 The rhetoric of justice can be

found in general principles such as the presumption of innocence, the burden of

proof and that a conviction should not be based upon inadmissible evidence. For its

part, the law is found in the actual rules and procedures which purport to regulate

the administration of justice and the practice denotes the reality of court

proceedings.12 This serves to remind us that the content of law is in itself worthy

of detailed analysis and challenges us to question whether the law incorporates its

own rhetoric.13

The judiciary play a significant role in creating this gap by using the common law

system to acknowledge principles which contain the rhetoric of justice but then

4 Ibid.5 See n 2.6 Ibid, 1–2.7 Ibid, 2.8 Ibid, p 4–6. For further discussion see Feeley (1973); Roach (1999).9 McBarnet (1982, 5).10 Ibid, 156.11 Ibid.12 Ibid, 6.13 Ibid, 8.

Still Just Rhetoric? Judicial Discretion and Due Process 253

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provide a justification for denying it in a particular case.14 It is this ‘highly

particularistic’ nature of the case law system which allows the law to operate at

different levels, which McBarnet refers to as the ‘abstract’ and the ‘concrete’. This

allows the judiciary to avoid, for the most part, difficult contradictions because the

two layers are seen to operate distinctly. As such, the ‘rhetoric is rarely denied but is

simply whittled away through exceptions, provisos and qualifications.’15 That the

judiciary are able to manage the gap between rhetoric and reality, that is the need for

the appearance of due process as well as the demand for crime control, allows the

system to promote two different ideologies at the same time. The way the judiciary

exercise their judgement and discretion is thus essential to the system continuing to

operate effectively.16

The Role and Purpose of Discretion

Discretion is evident in decision making processes throughout the criminal justice

system, from those taken by the police to parole boards; of particular interest here

are decisions as to whether to allow the admission of a piece of evidence at trial.

In order to be able to reflect on the argument that the judiciary routinely use their

discretion with the effect of denying the practical force of due process safeguards

for individual defendants,17 it is important to understand what is meant by

‘discretion’ and its current role in judicial decision making.

Why Do We Need Discretion?

It might seem obvious that discretion is essential for judges to carry out their

interpretive tasks properly. What is perhaps not so clear is why judges need to have

this interpretive function at all. Indeed, were the language of statutes never to leave

any scope for ambiguity, interpretive discretion might cease to be necessary.

However, facts in law are rarely without the potential for interpretation. As Galligan

informs us, ‘the vagueness of language, the diversity of circumstances and the

indeterminacy of official purpose’18 means that interpretation is inevitable in our

legal system.19

Of course, the role that discretion plays is not without controversy. Anything

which creates flexibility of action also allows for the possibility of subjective

decision making. This could in turn lead to justice or injustice, depending on a given

14 Ibid, 161.15 Ibid.16 For further discussion of the relationship between the principles behind criminal justice and judicial

discretion see Sharpe (1998, 1–10).17 McBarnet (1981, 156–157).18 Galligan (1986, 1).19 For further discussion of methods of statutory interpretation more generally see: Cross, Bell and Engle

(1995); Manchester, Salter and Moodie (2000).

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individual’s perceptions of the facts and law.20 This has pragmatic value to the legal

system, allowing situations like the ‘gap’ McBarnet describes to emerge as a

consequence of decision making processes and responsibility for difficult policy

matters to be transferred from the government to the judiciary. More positively,

discretion can fill gaps, correct errors and resolve conflicts21 allowing the law to

develop in line with social standards without the need for constant legislative

reform.

Schnieder argues that lawyers tend to be nervous of discretion because, as they

believe that rules incorporate due process, discretion is undermining the value of the

law or indeed its existence.22 This problem is often highlighted in criticisms of civil

rights activists, who are sometimes accused of assuming that due process is

incorporated into the law itself.23 However, as many policy statements increasingly

reflect more of a crime control orientation,24 it might be surprising for due process

to be reflected in the law. If it is desirable for the judiciary to attempt to give effect

to Parliamentary intention when interpreting statutory provisions, then it may be

appropriate for the policy goals of the government to be prioritised as desirable

outcomes.25 Indeed, Bell argues that judicial reasons are drawn from political

morality and social utility, making factors such as common sense and humanity of

importance, in addition to guiding rules.26 So, whilst rules may provide guidance to

citizens and provide authority to decision makers,27 discretion makes the process of

pragmatic ‘justice’ possible.

This emphasis on the ‘law in action’, evident in much of the sociological work

on discretion, can be contrasted with the emphasis of legal philosophers on

propositions of law which constrain the ability of the decision maker to act entirely

autonomously and as such are primarily concerned by the relationship between rules

and discretion.28 These contributions can aid comprehension of the different kinds

of discretion and their importance, more specifically, in adjudication.

20 For two opposing views see Handler (1986, 169) and Goodin (1986, 242). See also Davis (1969) where

it is argued that discretion should be significantly limited.21 Schneider (1992, 61).22 Ibid, 47.23 McBarnet (1981, 5).24 The move towards punativeness in policy statements is well documented, particularly since Prime

Minister John Major announced his ‘Crusade on Crime’ in the Mail on Sunday. See Interview with the

Mail on Sunday, 14th February 1993. These sentiments were carried forward with Michael Howard’s

appointment as Home Secretary in 1993, who announced his legislative agenda by declaring that

measures such as the reduction of the Right to Silence would ‘…correct the 30 year in-built bias in the

criminal justice system in favour of the criminal and against the protection of the public.’ See

Independent (7 October 1993). For further discussion of this period see Bridges (1994). For further

discussion of the continued use of punitive rhetoric by successive governments see Brownlee (1998) and

Tonry (2004).25 See Bell (1992, 91), who suggests that ‘legal rules and standards are treated as privileged statements of

policy, but it is the overall objective which matters most’.26 Ibid, 106.27 Ibid, 104.28 For further discussion see Hawkins (1992, 13).


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One of the main jurisprudential contributions was made by Dworkin, who

described three forms of discretion. The first, ‘weak discretion’, exists where some

kind of judgement is exercised, despite the existence of guiding standards.

Secondly, ‘official discretion’, itself a form of weak discretion, refers to a decision

maker having the authority to make a final decision. Finally, ‘strong discretion’

exists where the decision maker is not restricted by an applicable rule or standard.29

Dworkin has been criticised for not fully expanding upon the range of choices

available to decision makers, therefore neglecting to emphasise that decision makers

have to consider the broader consequences of their judgements as well as their

technical goals.30 Furthermore, it has been argued that Dworkin’s scheme cannot

account for all discretionary powers. For example, Bell suggests that if an appellate

body can only alter a first instance decision where that initial decision is irrational,

then the original decision maker’s discretion is stronger than ‘weak discretion’ but not

as significant as ‘official’ or ‘strong’ discretion.31 Indeed, Dworkin would not suggest

that the different kinds of discretion he described were mutually exclusive.32 Rather, it

is the extent to which different actions are constrained by existing rules or standards

which determines their classification. Moreover, that the rules restrict the possible

outcomes by fettering discretion does not mean that the outcome of a case is

absolutely predictable, but it may mean that a range of possible outcomes can be

forecast. It is those propositions which make the outcome determinable.33 He extends

understanding of the factors which guide judicial decision making by suggesting that

judges can make decisions on the basis of principle, allowing a political decision to be

justified on the basis that it respects a basic right.34

The approach taken in this article is socio-legal, but is restricted to the context of

adjudication rather than the empirical reality of the operation of the entire criminal

justice process. The legal decisions considered are identified as the product of

discretionary behaviour which is primarily constrained by legal rules, whilst having

an appreciation of the broader political and normative factors which influence these

decisions. This combination of approaches is embraced in order to analyse the bad

character and hearsay examples as fully as possible.

Current Legal Examples

The examples of judicial decisions regarding s101(1)(d) and s103 of the 2003 Act,

dealing with one circumstance in which a defendant’s bad character may be

admitted and the inclusionary discretion permitting the admission of otherwise

inadmissible hearsay evidence in s114(1)(d) of the same Act, are illustrations of the

interpretation of significant evidential rules where judicial discretions have an

29 Dworkin (1977, 302).30 Bell (1992, 99).31 Ibid, 94.32 Lucy (2002, 215).33 Ibid, 216–217.34 Dworkin (1977, 82–90).

256 I. Jones

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important impact on what evidence is heard in criminal trials. Whilst the arguments

here are presented in the specific context of these provisions, it is submitted that

they may often have broader application to other discretionary rules.

Of course, the prior assignment of culpability following trial will affect

perceptions of a case, a defendant pursuing an appeal often being seen as arguing his

case on technical rather than factual grounds. This appearance of guilt is likely to

affect the outcomes that appeal judges feel comfortable with, thereby making them

reluctant to find for the defendant.35 If trial judges then follow this jurisprudence,

the trial practice may be impacted upon even if the appeal judges’ primary intention

was to maintain a factually accurate conviction in the individual case before them.

Discretion in Decisions of Admissibility

When deciding whether a piece of evidence should be admitted at trial, the judge

has to have recourse to the legal rules which provide guidance about how he should

act. Basic common law rules such as those requiring that all evidence is prima facie

relevant are not sufficient. Supplementary rules may be contained within statutes or

in interpretive case law. Often there is more than one relevant precedent, not

necessarily leading the judge to the same conclusion. At this stage the trial judge

will have to make a choice about which guidance is the most appropriate to follow.

It is clear that whilst statutes may contain rules, those rules need to be interpreted,

the interpretation often creating a sub-level of supplementary rules. Thus it is this

kind of discretion that denotes the ability to choose one legal authority over another.

Trial judges have to use their discretion in a more overt sense too. A statute may

explicitly create a discretion usually, although not always, to exclude a piece of

evidence which is prima facie admissible. One of the most significant examples of

this kind of provision is s78 of the Police and Criminal Evidence Act 1984

(PACE),36 which allows a trial judge to exclude a piece of evidence if ‘…the

admission of the evidence would have such an adverse effect on the fairness of the

proceedings that the court ought not to admit it.’ Another example is of an

exclusionary discretion is s101(3) of the 2003 Act. Section 114(1)(d) of the 2003

Act is one of the more rare examples of an inclusionary discretion, allowing for the

admission of hearsay evidence where this is in the ‘interests of justice’. This is often

tied up with the use of precedent, the judge being guided about when and how these

discretionary powers should be used.

The picture does not end there. Discretion might also refer to ‘judgment’, where

the trial judge has to decide whether a piece of evidence falls within a particular

definition, if the evidence is ‘bad character’37 or ‘hearsay’38 evidence or whether

the evidence falls within a more narrow definition. For example, to trigger the

exclusionary ambit of s101(3) which deals with the admissibility of previous bad

35 McBarnet (1981, 158).36 Reinforcing the existing common law discretion to exclude, which operated where the probative value

of evidence was outweighed by its prejudicial effect or where evidence had been obtained improperly.37 Defined by the 2003 Act, s 98.38 Defined in the 2003 Act, s 114.


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character, the evidence must first be considered to fall within s101(1)(d) or (g).39

Each of these requires the evidence to be defined as having a particular effect on the

case before it can be considered to be potentially admissible. All of these kinds of

discretion are what Dworkin would describe as ‘weak’ and also demonstrate how

choice is key to understanding the role of discretion in criminal adjudication. It is

possible to identify further kinds of discretion, many of which are interdependent or

may overlap. However, it is these that are of greatest importance for the purposes of

the current discussion.

It is clear that these discretions do not confer untrammelled power upon judges to

decide what evidence is or is not admitted. In the context of criminal evidence rules,

judicial discretion is much weaker than that. The discretion to admit or exclude

evidence receives authority from rules, but in practice it is the product of judicial

judgment, whereby a judge weighs up competing factors and reaches a decision

about the standing of a piece of evidence, that is crucial. Once he has reached his

judgement, it is likely that he then retains no discretion because the evidence must

either be admitted or excluded.40

The Political Context of the Bad Character and Hearsay Reforms

The increasingly repressive use of the law by criminal justice officials has

concerned sociologists for some time. In the 1970’s, Hall et al’s argument that this

could be related to the economic climate and role of the state gained prominence.

They suggested that moral panics and the identification of specific social problems

requiring legal attention led to swings in judicial decisions away from due process.41

More recently, as the issue of ‘balance’ has taken centre stage in criminal justice

policy, arguments have returned to examining whether public, popular and political

perceptions of where these balances should lie can be related to specific shocking

incidents or broader cultural trends.42 This is tied to the suggestion that political

responses have been dominated by a kind of ‘popular punitiveness’, politicians

using the apparently punitive stance of the public to their advantage.43 McBarnet, on

the other hand, preferred an explanation which questioned whether a crime control

tendency existed in the law itself.44 The idea that there is no need for particular

39 (1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—

(d) it is relevant to an important matter in issue between the defendant and the prosecution,

(g) the defendant has made an attack on another person’s character.40 See Roberts and Zuckerman (2004, 29). This concurs with Dworkin’s assessment of the role of

discretion, whereby discretion can be used in the ‘weak sense’ of judicial judgement in how pre-

determined standards should be applied and the ‘strong sense’ of when an official is not bound by official

standards (as in some sentencing decisions). It is the former, ‘weak’ version that concerns the rules of

evidence. See Dworkin (1977).41 Hall, Critcher, Jefferson, Clarke and Roberts (1978).42 See, for example, Pratt, Brown, Brown, Hallsworth and Morrison (2005); James and Raine (1998);

Garland (2001).43 See Bottoms (1995, 17–24).44 McBarnet (1981, 157).

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structural circumstances or moral panics in order to produce a crime control bias

produces the demand for analysis of specific laws rather than overall trends.

It would be misleading to imply that the bad character and hearsay reforms were

enacted in a political context devoid of factors which might account for any

allegation of a lack of due process in the legislation. Rather they were part of a well

established punitive policy drive45 which clearly advocated the goal of increasing

convictions and the admission of evidence which traditionally might have been

excluded.

The White Paper preceding the Criminal Justice Bill 2002, entitled ‘Justice for

All’46 provided five justifications for the proposed reforms.47 These were the needs

of victims of crime (which appeared more frequently than any of the following

issues), that appropriate ‘balances’ needed to be achieved, that the criminal justice

system should seek the ‘truth’, that as much relevant evidence as possible should be

admitted into trials and that juries should be trusted to weigh evidence

appropriately.

The ‘victims’ and balance agendas have been subject to extensive criticism as

being populist rhetorical devices.48 Whilst it is likely that concern for victims of

crime is genuine, the key problem with the government’s approach seemed to be

that it was based upon a false assumption that there is a zero-sum game being

played, whereby increasing the rights of defendants could only lead to losses for

victims and vice versa. Such an approach assumes that the risks of injustice are the

same for all parties and therefore, as a consequence, all parties must be treated in the

same manner for justice to be served.49

The other proclaimed motivations were more readily linkable to evidential rules

and the belief that the exclusion of evidence was obscuring the truth seeking

processes of criminal trials.50 As such, exclusionary rules as traditional due

process safeguards against conviction were no longer considered to promote

accurate fact finding and were therefore not essential.51 This resulted in the

proposal that less evidence should be excluded from courts to ensure that as much

relevant evidence as possible could be admitted.52 To achieve this, it followed that

the rules of evidence would have to be drastically reformed in order to create a

system which permitted the regular admission of evidence which was previously

excluded.53

45 See Garland (2001); Bottoms (1995); Pratt et al. (2005); James and Raine (1998).46 Home Office (2001).47 I.e. they were mentioned the greatest number of times in ‘Justice for All’.48 See for example, Tonry, (2004, 5); Brownlee (1998, 326).49 Jackson (2003, 309–311).50 Home Office (2001, 4.52).51 For an extended discussion of this kind of argument see Nobles and Schiff (1995, 304) and the

discussion below.52 Home Office (2001, 4.5).53 Ibid, 4.53.


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The Bad Character Example: Exclusionary Discretion

The bad character provisions were enacted amid considerable opposition, both

from within Parliament and interested legal and civil liberties groups.54 The most

controversial provision, allowing for the automatic admission of previous convic-

tions for offences of the same description or category as the current charge, did not

survive the legislative process. However its spirit remained intact, thanks to the

resulting amendments made to s101(1)(d) of the 2003 Act. Section 101(1)(d) pro-

vides that evidence of a defendant’s bad character will be admissible if it is relevant

to an ‘important matter in issue between the prosecution and defence’. This is

further defined by s103, with s103(2) providing that a propensity relevant to guilt

may be demonstrated by evidence of a previous conviction for an offence of the

same description or category as the current charge. This is limited by s103(4)

which prevents admission if, because of the age of the previous conviction or any

other reason, its admission would be unjust to the defendant. Furthermore, the

exclusionary discretion in s101(3) is applicable, allowing a defendant to apply to

have a piece of prima facie admissible evidence excluded on the grounds that its

admission would have an adverse effect on the fairness of the proceedings.

Section 101(3) appears to be the kind of provision that might be susceptible to

McBarnet’s criticisms. It seems to provide a judicial discretion intended to afford a

due process safeguard for defendants, preventing them being unfairly prejudiced by

the admission of evidence of their bad character. However it has sufficient breadth

to invite the possibility that this will be denied in preference to an individualised

model of justice. Indeed, the majority of appeals regarding these provisions relate to

whether evidence should have been excluded, although they also provide interesting

insights into how the senior judiciary believe that trial judges should exercise

their judgement in deciding whether a piece of evidence falls within the scope of

s101(1)(d).

The leading case of R v Highton55 confirmed that s101(3) provided a specific

fairness based discretion intended to ensure that defendants received a fair trial.

This confirmed the Court of Appeal’s commitment to fair trial values and their

belief that the judiciary have an important role to play in upholding them. The case

of R v Hanson,56 a key early decision, seemed to replicate the indication that the

senior judiciary were serious about the due process value of the exclusionary

discretion. In Hanson, the Court of Appeal developed a three stage test which they

said should be followed by trial judges when deciding if a piece of bad character

evidence was relevant to an important matter in issue. Firstly, the trial judge should

ask himself whether the history of the conviction(s) established a propensity to

commit the kind of offence currently charged. Secondly, whether that propensity

made it more likely that the defendant was guilty of the offence charged. Finally, the

54 See, for example, the submissions about these provisions made on behalf of JUSTICE and the

Criminal Bar Association to the House of Commons Select Committee on Home Affairs, Tuesday 19th

November 2002.55 [2008] EWCA Crim 1985.56 [2005] EWCA Crim 824.

260 I. Jones

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judge should consider whether it was unjust to rely on the previous convictions or

whether their admission would render the trial unfair. These three steps take the trial

judge through the process of deciding if the previous conviction is relevant (the first

and second elements) and the exclusionary test in s101(3). Given that the legislation

only allows for s101(3) to be invoked in response to a defence application, it is

supposed that the third element of the test can be satisfied by redress to the general

exclusionary power of s78 PACE. Again, the judicial role was seen as one which

could inject due process into the system, whether by the exercise of judgment or

exclusionary powers. However, it was also clear that the senior judiciary saw these

as broad guidelines which were applicable to wide powers and as such they were

reluctant to intervene unless a trial judge had behaved unreasonably or was ‘plainly

wrong’.57

The desire to maintain the breadth of a trial judge’s discretion did not prevent the

appellate courts concluding that, sometimes, this power had been misapplied. For

example, the cases of R v Lever58 and R v Bullen59 emphasised the importance of

the detail of the offences involved, whereby previous basic intent crimes would

rarely establish a propensity relevant to a current specific intent based charge. This

demonstrated a willingness on the part of the Court of Appeal to set clear limits on

the wider admissibility of very prejudicial previous convictions. Similarly, in R vUrushadze60 it was concluded that a previous offence of theft was not sufficiently

similar to the current charge of robbery to establish the required propensity and

should have been excluded via s101(3).

Nevertheless, a string of cases have reconfirmed the appellate court’s non-

interventionist preference (developed in Hanson). In R v Edward A61 the Court of

Appeal concluded that the trial judge had reached a ‘permissible and appropriate

conclusion about fairness’62 emphasising, as per Hanson, that the decision was

neither wrong nor unreasonable. It appears that the Court of Appeal look for

consideration of the factors set out in the three stage test in Hanson, being reluctant

to intervene if the trial judge’s conclusion can be described as falling within a

range of reasonable options.63 Clearly the extent to which previous convictions

will establish such a relevant propensity is the subject of a significant degree of

judgement. For example, in R v Murphy64 it was affirmed that the decision to admit

evidence first involved a consideration of whether it was relevant to an important

matter in issue and then deliberation upon whether any exclusionary discretion

should be exercised. The Court of Appeal felt that the trial judge should be accorded

57 Per Lord Justice Rix in R v Woodhouse [2009] EWCA Crim 498, para. 16.58 [2006] EWCA Crim 2988.59 [2008] EWCA Crim 4.60 [2008] EWCA Crim 2498.61 [2009] EWCA Crim 513.62 Per Lord Justice Maurice May, para. 22.63 See R v Johnson [2009] EWCA Crim 649, R v Gourde [2009] EWCA Crim 1803, R v Herman [2009]

EWCA Crim 1211, R v Tye [2009] EWCA Crim 1738, R v Green [2009] EWCA Crim 1688, R v Rossi[2009] EWCA Crim 2406, R v Bahaji [2009] EWCA 2863.64 [2006] EWCA Crim 3408.


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latitude in doing this.65 It has also been quick to dispense with the allegation that

bad character evidence is being used to prop up a weak case where the Hanson tests

are considered.66

From what appeared to be a promising start for due process, considerable

evidence has emerged of trial judges giving a broad interpretation to s101(1)(d) and

the relevance of bad character. This is coupled with a reluctance of the Court of

Appeal to read significant strength into the exclusionary ambit of s101(3). This

would seem to support the argument that due process is maintained as being

available but denied in the majority of cases, by concluding that due process was not

required in a given case. In essence, the courts are redefining the situation so that the

principle is no longer applicable in that specific circumstance. The appellate courts

may have taken this approach because, like the government, the courts are

convinced that the admission of more bad character evidence is desirable or because

they are also starting to consider interests other than that of defendants when

interpreting potential due process protections. The conclusion of the Court of

Appeal in R v Miller67 that ‘justice and fairness in a criminal trial are not a one-way

street’68 seems to suggest this. This potentially has broad ranging implications for

defendants and our understanding of what due process means in terms of providing

procedural safeguards which are no longer necessarily designed to primarily provide

protections for defendants.

Some indication of the practice can be gleaned from research carried out for the

Ministry of Justice.69 This found that gateway (d) was used in 86% of cases where

an application to adduce bad character evidence was made.70 Defence notices to

exclude71 were made in only 33% of the cases,72 indicating that the judgement

involved in deciding if bad character evidence is ‘relevant to an important matter in

issue’ is instrumental in determining whether the bad character will be admitted.

That said, the research also showed that defence applications for exclusion under

s101(3) had a significant impact on the chances of the evidence being excluded.73

65 Here it was found that a 20 year old conviction could establish a relevant propensity but this would be

rare and would require some highly unusual or distinctive behaviour to justify admission under gateway

(d).66 R v Kingdom [2009] EWCA Crim 2935.67 [2009] EWCA Crim 2890.68 Per Lord Justice Scott, para 37.69 It should be noted that this was a small scale and limited study of only six court centres and such

caution should be taken before reliance is placed on any of its results. For an outline of the methodology

used see Morgan Harris Burrows LLP (2009, 2).70 Ibid, 14.71 Under s101(3) the exclusionary discretion can only be exercised if the defence make an application for

the evidence to be excluded. They must do this by giving notice as prescribed under Part 35.6 of the

Criminal Procedure Rules.72 Morgan Harris (2009, 15).73 A notice to exclude was made in 47% of cases where the application to admit was granted in full, 65%

of cases where the application was granted in part and 85% of cases where the application was refused.

Ibid, 24.

262 I. Jones

123

In those limited circumstances, the courts made considerable use of the ground that

admission would have an adverse effect on the fairness of proceedings.74

This suggests that we cannot dismiss the senior judiciary as failing to uphold the

due process principles behind s101(3). Whilst McBarnet suggested in 1981 that

judicial techniques left the rhetoric of justice ‘eulogised and denied at the same

time’,75 the effect of early key cases appears to have had a very real limiting effect

on future prosecutorial and judicial behaviour. Later cases have to be read in light of

this; the denial of the rhetoric in any individual case is potentially attributable to

evidence of trial level application of tests such as those in Hanson, which maintain

the principles of justice.

The Hearsay Example: Inclusionary Discretion

The hearsay provisions provided for by the 2003 Act were less controversial and

more complex than the bad character provisions, but were not welcomed by all.

Three areas stimulated significant debate. These were the admission of multiple

hearsay,76 the prospect of convictions being based on hearsay alone77 and the

addition of a new inclusionary discretion in s114(1)(d).

Placed at the start of the hearsay provisions, the inclusionary discretion provides

for the admission of hearsay evidence which would not be admissible via any of the

other permissive sections of the legislation,78 but which the trial judge deems to be

in the ‘interests of justice’. This concept is clarified to some extent by s114(2) which

provides a list of factors which should be considered when deciding if the interests

of justice test is met,79 although interpretive case law casts doubt as to the extent to

74 Overall, this was the reason for exclusion in 57% of cases involving an application to adduce evidence

via gateway (d). Interestingly, the reasons for exclusion differed significantly between the Magistrates and

Crown Courts, adverse effects on fairness accounting for 78% of exclusions in the Crown Court but only

38% in Magistrates Courts.75 McBarnet (1981, 160).76 See s 121(1)(c).77 See s 125.78 See ss 116–124.79 (2) In deciding whether a statement not made in oral evidence should be admitted under subsection

(1)(d), the court must have regard to the following factors (and to any others it considers

relevant)—

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in

issue in the proceedings, or how valuable it is for the understanding of other evidence in the

case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in

paragraph (d)

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the

case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it.


123

which these factors should be instrumental to a trial judge’s decision (see discussion

below).

This provision is particularly interesting because it bucks the trend for official

grants of discretion to trial judges by being inclusionary. This leads to the position

where a judicial discretion cannot necessarily be said to be due process orientated,

in order that the judiciary can then deny this in practice. Rather, the inclusionary

discretion does not pretend to have anything other than the potential to be equally

advantageous to both the prosecution and defence. In Parliament, the government

were keen to emphasise that inadmissible hearsay could be important exonerating

evidence, consequently giving s114(1)(d) the potential to act as the equivalent of a

due process type safeguard for defendants.80 At the same time, its availability to

the prosecution was not limited, underlining the fact that the ability to assist the

prosecution in achieving successful prosecutions was also desired.

Whilst it has significant differences to ‘traditional’ judicial discretions,

s114(1)(d) can still be seen as inviting an ad hoc model of justice rather than

decisions being made on a solid principled basis. It is broad enough for reasons to be

given for denying its use whilst still maintaining the idea that the discretion is

available as a protection. Of course, having such a broad inclusionary discretion

may eliminate the need for judicial ‘fiddling’81 with the hearsay rule in order to

produce just results in individual cases. The hearsay rule could be a good example

of the complaint that when the qualifications of a rule are read, the impression left

is that ‘the rules only stand for cases that can stand them’.82 By using s114(1)(d)

the courts no longer have to develop ad-hoc exceptions but instead can claim to

legitimately make individualised decisions.

On the other hand, the inclusionary nature of s114(1)(d) also makes it difficult to

identify what the principle is in order to assess whether it is being denied. As the

statute already endorses the wide admission of hearsay evidence, the traditional

principle that hearsay evidence is not admissible save for exceptional circumstances

is no longer really sustainable. Nevertheless, if the principles of justice are taken

broadly to be those which are primarily directed towards protecting defendants from

wrongful conviction, then we can clearly see evidence of them in s114(1)(d). It is

this protective purpose that will be considered here.

The appeals have thus far developed a similar pattern to that identified regarding

s101(1)(d) decisions, namely a reluctance to interfere in trial judges’ decisions, as

well as emphasising the goal of achieving factually accurate verdicts. The issues of

judgement are different here; the trial judge will have already ruled that the

evidence is prima facie inadmissible hearsay but he still has to decide if admission is

80 See, for example, Baroness Scotland at HL Deb 18th Sept 2003 cc1122-1123. Paul Goggins made this

point to the Commons using the example of the case of R v Thomas, noting that ‘…the Court of Appeal

dealt with a similar problem in the case of Thomas, when it upheld the judge’s ruling that the statement

was inadmissible hearsay, but it allowed the appeal as a conviction obtained in such circumstances could

not be regarded as safe. That illustrates the need for some form of discretion to admit evidence outside of

the categories provided in the Bill.’ HC Deb 18th Nov 2003 c707.81 The phrase ‘hearsay fiddles’ was coined by Birch (1987). She further develops the concept, with

examples, in Birch (2004).82 McBarnet (1981, 120).

264 I. Jones

123

in the ‘interests of justice’, just as with bad character evidence he has to decide if

admission was unfair. However, the effect is reversed, the decision being whether to

allow the admission, rather than whether to exclude apparently admissible evidence

of the defendant’s bad character.

Initially, the messages from the Court of Appeal seemed confused. In R vXhabri,83 s114(1)(d) was read very loosely as allowing the admission of evidence

where this was not contrary to the interests of justice. In R v McEwan84 the Court of

Appeal were far more restrictive, seeming to view the provision as a due process

safeguard by referring to it as a ‘safety valve’. Nevertheless, this could suggest that

the due process purpose to the provision could be more easily identified. On the

(perhaps flawed) assumption that appellate decisions provide crucial guidance

which trial judges follow when applying the law, this provided a reasonably

unsatisfactory start to the career of s114(1)(d).

In the recent case of R v Ibrahim,85 where the trial judge was found to have

placed too much emphasis on the hearsay evidence and should have issued the jury

with an instruction to disregard it, the Court of Appeal helpfully identified key

principles from previous cases. Firstly, there will be no interference by the appellate

courts unless the trial judges’ decision constitutes an error of law or approach, or

falls outside of the reasonable range of options available to him. Secondly,

s114(1)(d) should not be used to circumvent the requirements of s116 for admitting

the statement of absent witnesses.86 Thirdly, caution should be exercised where

admission would cause serious disadvantage to the defendant. Finally, the interests

of justice test should be ‘fully, realistically and not just nominally met’.87

The first of these replicates the approach of the Court of Appeal to

s101(1)(d) cases and is evident in a number of authorities. For example, in R vTaylor88 the Court of Appeal did not want to interfere where the trial judge had

failed to reach a conclusion on each of the factors listed in s114(2) and, on the basis

that he had considered them all, his resulting decision was not plainly wrong. The

reference made to the range of options available to the trial judge in a series of cases

demonstrated that the Court of Appeal wished to see as much breadth as possible

read into the trial judges’ powers under s114(1)(d), but that they also saw different

possible decisions as legitimate alternatives. In R v Sadiq,89 the Court of Appeal

considered that the trial judge’s decision was within the acceptable range available

to him, the ‘interests of justice’ including consideration of the public interest in

crimes being tried as well as the interests of the accused. This clearly indicated

the difference between the way that exclusionary and inclusionary powers were

83 [2005] EWCA Crim 3136.84 [2007] EWCA 740 (Admin).85 [2010] EWCA Crim 1176.86 Although not discussed in detail here, a good example of this can be seen in R v Z [2009] EWCA Crim

20.87 Per Lord Justice Pitchford, para 11.88 [2006] EWCA Crim 260.89 [2009] EWCA Crim 712.


123

perceived, a greater range of interests being relevant to the operation of the latter.90

It also emphasised the complex task undertaken by judges of reconciling both key

principles and the increasing political and social pressure to consider the many goals

of the criminal justice system. The suggestion that there is a due process type

purpose to the provision appears undermined.

Whilst the list given in Ibrahim captures much of the Court of Appeal’s

approach, it omits to acknowledge the emphasis placed by the Court of Appeal,

often in conjunction with a restatement of their non-interference policy, on the

factual accuracy of convictions rather than concentrating on the application of

evidence law in a particular case. For example, in R v ED91 the trial judge assumed

the prosecution were not at fault about the absence of a key witness, wrongly

admitting her statement via s114(1)(d). Whilst the trial judge’s decision was said to

be ‘wrong’, the Court of Appeal emphasised the factual accuracy of the conviction,

finding that the admission of the evidence would not have led to significant

prejudice to the defendant.92 Of course, concerns for factual accuracy are not

necessarily distinct to the factors in s114(2), leading the Court of Appeal to

emphasise the desirability of evidence being challengeable through cross-exami-

nation, which could be instrumental in exposing the unreliability of an important

piece of evidence.93 This demonstrates an approach whereby the appellate courts

express dissatisfaction with the conduct of trial judges but uphold the decision to

admit evidence on other grounds or suggest that the improperly admitted evidence

was not crucial to the conviction, allowing it to stand. This way, they are able to

maintain the illusion that s114(1)(d) should only assist crime control goals in limited

circumstances and that the factors in s114(2) protect against improper admission

(also being there to facilitate the admission of important exonerating evidence)

whilst in practice they deny defendants the benefit of this.

From an initially confused position, some principles have emerged about

s114(1)(d). These are loose and provide limited guidance about how a trial judge

can be expected to interpret the law in any individual case. There have been clear

indications that the Court of Appeal is reluctant to fetter the discretion of trial

judges. Moreover, they are endorsing an approach in which this inclusionary

discretion is much more than a due process type safeguard. Indeed, it would appear

to be of significant assistance to the prosecution. Unfortunately no equivalent

research exists at present charting the practical use of this provision in trial courts.

This means that, even more than with s101(1)(d) and propensity evidence, a hole

exists between what Court of Appeal decisions tell us is happening in a small

number of cases, how the appellate courts expect trial judges to behave and an

actual picture of judicial behaviour during trials.

90 Also see the case of R v Khan [2009] EWCA Crim 86, where the idea that the decision was within the

range of options available to the defendant was emphasised.91 [2010] EWCA Crim 1213.92 See also R v Fox [2010] EWCA Crim 1280. This kind of approach was also evidence in R v Seton[2010] EWCA Crim 450, although the trial judge’s decision in that case was held to have also fallen

within the ‘range’ of options available to him.93 See R v B [2010] EWCA Crim 644.

266 I. Jones

123

Finally, it is important to acknowledge that the doctrine of precedent also exists

in the realm of rhetoric, informing us of the ideology of the rule of law but little

about the reality. This is both because of the ways that the judiciary avoid precedent

and also because of the individualistic nature of appeal decisions.94 The Ministry of

Justice research on bad character suggests that official behaviour may be impacted

upon by case law and creates an expectation that precedent will work in practice.95

Even if that small scale study is encouraging, it matters little if the law (both in

statutory and common law terms) is so broad that precedent does little more than

endorse the breadth of options available via a discretionary provision.

Has the Role of Discretion Changed?

The approach to due process safeguards whereby lawyers view them as effective

limitations on the pursuit of crime control may reflect the strength of the rhetoric of

justice in shaping our perception of trial processes.96 McBarnet argued that the

broad interpretation given to the Criminal Evidence Act 1898 and the similar fact

doctrine which previously dealt with the admission of bad character evidence, in

addition to the judicial ‘fiddling’ with the hearsay rule, meant that the rhetoric of

due process orientated exclusionary rules was maintained under the old law whilst

the reality was one where crime control was not significantly hindered.97

What makes the bad character and hearsay reforms particularly pertinent is not

only the nature of the discretions involved but also the overt pursuance of crime

control as well as due process type goals in the legislation. When we examine the

content of the law in its statutory form, it is clear that we cannot assume that the law

incorporates the rhetoric of due process. The primary question posed here is whether

due process is a legal reality or whether it still just represents general principles

behind the law which can, if the judiciary so wish, be disapplied in practice.

These issues are complex and clearly demonstrate the subtlety required in

assessing these provisions. There needs to be an examination of whether the law

itself, both in statutory and common law terms, incorporates the idea of due process.

If statutes are interpreted in such a way as to give effect only to crime control whilst

maintaining the rhetoric of due process in principle, then it follows that the reality of

the application of the rules in trials can only be a crime control one, hidden

underneath the veneer of rhetorical due process devices like the presumption of

innocence, burden of proof and exclusionary rules.

This emphasises the importance of judicial decision-making in shaping both the

rhetoric and reality of legal processes. The post-2003 case law discussed above

94 McBarnet (1982, 163–164).95 The research found that following the decision in Hanson, prosecutors were inclined to make less bad

character applications and be more selective where they did. This suggests that, at minimum, CPS lawyers

expect trial judges to apply the decisions of the appellate courts in interpreting this legislation. See

Morgan Harris Burrows (2009, 6).96 McBarnet (1981, 155).97 Ibid, 112–118.


123

presents a mixed picture. Analysis of appellate decisions (admittedly the law rather

than the trial practice) demonstrates that the discretions provided in the 2003 Act,

both in the form of explicit discretions and the exercise of judgement, were initially

interpreted by the senior judiciary to give effect to due process but that this has

given way to an approach of non-interference and strengthening of discretion except

in extreme circumstances. It is therefore clear that discretion is not only capable of

operating as a crime control mechanism limiting due process, but also as means of

legitimising the denial of due process by the judiciary. Decisions such as Hansonappear to have impacted on the reality, the CPS claiming that this has made them

less inclined to make bad character applications and more selective when they do.98

Moreover, there is evidence of trial judges using the exclusionary power in s101(3)

to prevent the state from adducing irrelevant or highly prejudicial bad character

evidence. This suggests that the judiciary sometimes do more than acknowledge the

rhetoric of due process by also giving effect to it, allowing due process to become at

least a small part of the reality. On the other hand, later decisions have clearly

afforded a significant degree of latitude to trial judges, allowing them to give effect

to the crime control goals of the legislation in admitting a large amount of logically

relevant bad character evidence.

On examination of case law, we can see that the courts do not apply the rules

strictly. The interplay between the rules and principles means that when deciding

whether to admit a certain piece of evidence, a trial judge has to consider not only

the legal definition of its admissibility but also the need to secure evidence of

crime.99 If the principles and rules were fixed, the courts would not easily be able to

reflect the public interest in prosecuting crime. Furthermore, how the principles are

prioritised may change in response to different political and social pressures. The

cases discussed above provide evidence of the judiciary taking account of the need

to consider the public interest in the effective prosecution of crime as much as there

is of concern that convictions should not be based on overly prejudicial or unreliable

evidence. This is not to suggest that the courts do not recognise the public interest in

safeguarding the potentially innocent, but rather that the need to balance these

competing interests results in explicit recognition and consideration of both by the

judiciary.

The relationship between statutory provisions, judicial interpretation and the due

process and crime control ideals is clearly complex. Rather than always being a case

of the judiciary exercising their discretion in a way which denies due process in

practice, the way in which the judiciary exercise their discretion (and consequently

whether due process is banished to the realms of rhetoric) may depend on the

strength of the crime control measures in the legislation and the extent to which

existing interpretive case law tempers this. In a political climate predisposed to

engaging crime control ideals and disposing of traditional exclusionary rules, the

flexibility awarded to judges in these discretions may in fact be the key to retaining

any genuine due process at all. The theoretical models below demonstrate the

potential for the judicial role to alter depending on the content of legislation. These

98 Morgan Harris (2009, 6).99 Zuckerman (1989, 8).

268 I. Jones

123

models do not, and are not intended to, account for all situations. Rather they

demonstrate the need for laws and decisions to be examined individually, accepting

that their basis will change over time.

The judiciary, like the government, have to balance competing interests in their

decisions and accept the need for crime control in doing so Fig. 1 demonstrates the

kind of situation that initially evolved in relation to propensity evidence, whereby

judicial discretion was used as a means of placing a practical obstacle in the way of

the government’s desire to introduce more evidence of previous convictions. The

judiciary recognised the need to achieve convictions but responded to strong crime

control measures by imposing a degree of due process upon them through

interpretation. After these initial decisions, no further move towards due process

was made, the overall position remaining closer to crime control. Nevertheless, in

this scenario, due process has a notably real effect. Figure 2 represents a situation

whereby, because the legislation is not placed in such an extreme location on the

spectrum, the judiciary does not need to react by strengthening their discretion in

order to maintain due process. Finally, in Fig. 3, a statute provides stronger due

process safeguards than the judiciary thinks is justified. Here, the judiciary react by

interpreting the legislation to give effect to crime control, as per McBarnet’s

conclusions about the legislation which was topical when she was writing. In both

this and Fig. 2, the judiciary may acknowledge the rhetoric of due process but deny

it in practice in a particular decision.

Whilst these models may account for many situations, s114(1)(d) provides

another scenario. Here the statute has the potential to advance due process and crime

Due Process Crime Control

Judiciary

Legislation

Fig. 1 Discretion as due process


Judiciary

Legislation

Fig. 2 Judiciary in agreement with legislature


Judiciary

Legislation

Fig. 3 Discretion as crime control


123

control, with the judicial interpretation of that rule, both at appellate level and

during trials, determining whether a provision actually moves the system towards or

away from due process. It follows that a distinction has to be drawn between the

statute itself, its interpretation and practical application. This presents a model

whereby appellate level interpretation may indicate that the law leans towards one

pole. If the current situation persists, this will be determined on a case by case basis

by trial judges, providing an individualised model of justice. Over time this could

lead to the provision having an aggregate effect of moving towards one pole (i.e. the

majority of cases are decided one way), but this cannot be assumed. Figure 4,

below, demonstrates this.

By placing the responsibility for admission with the judiciary, the government

may have hoped that this would result in the admission of more evidence for the

prosecution, since hearsay evidence tends to benefit the prosecution and because the

judiciary are clearly not averse to the pursuit of crime control. However, this could

not be the guaranteed outcome of s114(1)(d) in practice. Indeed, in Parliament the

government also advanced the argument that wider admission (and specifically the

inclusionary discretions) could protect factually innocent defendants.100 They also

demonstrated a commitment to the maintenance of some due process safeguards,

even if this was less strong than their desire to increase convictions. There are a

number of possible explanations for this, including a desire to ensure that wrongful

convictions did not reach a level intolerable to the public (intrinsic to the

maintenance of crime control) and a genuine commitment to the acquittal of

innocent defendants. Section 114(1)(d) has the capacity to meet all these various

goals at the same time.

Additionally, the potential for s114(1)(d) to increase the accuracy of fact-finding

is also important. If we are to accept that the judiciary will often have redress

to principles rather than detailed rules in making their decisions, then this may

represent the primary basis for many of these decisions. Zuckerman claims that the

principle of accurate fact-finding is the foremost principle of criminal evidence

because it reflects the public interest in bringing offenders to justice in order to

protect the community.101 Not only could increased accuracy in fact-finding

promote increased convictions if exclusion primarily resulted in erroneous

Individual or aggregate crime control decisions


Individual or aggregate due process decisions

Statute

Fig. 4 Effect of discretion over time where the legislation is neutral

100 See, for example, Mr Wills at HC Deb 28th Jan 2003 c60.101 Zuckerman (1989, 1).

270 I. Jones

123

acquittals, but the factual truth of both guilt and innocence could be advanced by

sensible application of the discretion, the inclusionary discretion being utilised only

to admit cogent, reliable and probative evidence.102

When a provision lacks a clear association with the rhetoric of justice, it is hard

to argue that the goal of increasing the factual accuracy of convictions is negative.

As such, whatever the aggregate effect the government hoped would result from the

provisions, it is possible that the practice of individualised justice may mean that

one goal is never more advanced than the other. It is difficult to argue that the

judiciary are at fault for condemning due process to the realms of rhetoric here.

Conclusions

The discussion throughout has operated on the presumption that the rhetoric of

justice is one of due process, whereby the rules of evidence are widely perceived to

incorporate Blackstone’s famous proposition that ‘…it is better that ten guilty

persons escape, than one innocent suffer…’103 However, this neglects to acknowl-

edge the punitive turn that has taken place in criminal justice, with the result that

crime control in itself has become a powerful rhetorical device. As governments

have become more populist in their response to crime, they have intentionally used

the rhetoric of crime control to maintain both the appearance and reality of being

‘tough on crime’. Rather than removing fundamental principles of evidence, the

government proposed to move more towards crime control whilst also emphasising

to those who might object that they were not abandoning due process.

This suggests that the rhetoric of justice may operate on two levels. The first is

the principle of procedural justice and the second is the political message

disseminated to the public about the government’s crime control priorities. Both of

these levels of rhetoric may overlap with the law and the reality depending on the

particular circumstances. For example, considerable rhetoric was found to exist in

the victims/rebalancing agenda advanced as a primary policy goal of these reforms,

this being linked to the drive for more crime control or put another way, this

‘rhetoric was both flawed and deceitful because it disguises the crime control

drift.’104 The implication of this may be that there are strong reasons for both the

legislature and the judiciary to consider the protection of traditional due process

safeguards as a less important goal than the need to be seen to balance these ideals

with those associated with the crime control ideology.

The law does appear to include some devices which resemble those described in

McBarnet’s ‘rhetoric of justice’. At a general level, the exclusionary rules were

102 This approach of has been criticised by Nobles and Schiff as justifying the removal of exclusionary

rules which protect ideas of fairness and rights in preference for the concept of ‘justice as truth’. As such,

they argue, due process is only seen as defensible when it can be argued to assist the process of truth

seeking. See Nobles and Schiff (1995, 304). Jackson is more positive, but suggests that these

developments put increased responsibility on the judiciary to use their discretion to protect against

wrongful convictions and issue limiting directions to juries. See Jackson (1999, 199–201).103 Blackstone (1769, 352).104 Sanders and Young (2007, 699).


123

maintained, although in such a way as might reasonably lead to a conclusion that the

protective effect of exclusionary rules now only exists in rhetoric. It is difficult to

have confidence in what the principles of justice now are. Given that exclusionary

rules play a less significant role in giving effect to broader principles like the

presumption of innocence, the role and importance of other values has to be

considered. Of key importance is the emergence of factual rather than legal truth as

the desired goal of criminal adjudication105 and the political perception about how

this can best be achieved.

More specifically, judicial discretions have, at minimum, the potential to act as

due process safeguards in practice i.e. to protect the innocent. Judicial interpretation

demonstrates the potential of the law to carry through into the next level of law

making, the common law. There is evidence of the overt pursuance of crime control

goals, the denial of due process in practice and also the use of the statutory

provisions to ensure that those crime control goals are not pursued unchecked. This

suggests that due process exists in practice at both levels of law, but not without a

good dose of relegation to a purely rhetorical role too. The actual experience of most

defendants in criminal trials clearly needs further investigation. We need to know

whether the majority of trial judges do what the appellate courts tell them they

should, although the degree of flexibility afforded to them means that it may be

possible for them to do so without being tied to a position which reflects due process

more than crime control, or vice versa. Moreover, and in light of the latitude

afforded by the appellate courts, it is feasible that the rhetoric of crime control may

be even more important during trials because this is a punitive public’s experience

of the criminal proof process. These issues need to be the subject of further research.

The models above demonstrate the difficulty in generalising about the current

relationship between judicial discretion and the rhetoric of justice (whether that is a

due process or crime control one). The multidimensional nature of criminal justice,

changing conceptions of how the system should achieve its fact finding function and

its increasing prominence on the political agenda, means that we have to entertain

the possibility that the judicial role is of increasing complexity. The role of judges in

negotiating the balances between these competing agendas is unenviable and needs

closer investigation.

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