Criminal justice may be ritualised and in some respects archaic, but a strict regimen is critical to fair trials.
Sructured mayhem is not a description that many involved in the legal process would choose to describe the process of a criminal trial, but it is one that many experienced advocates and judges would sympathise with.
It is, however, the title of a recent report published by the Criminal Justice Alliance, a coalition of more than 90 organisations committed to improving the criminal justice system.
The report describes an ‘elaborate, ritualised and, in many respects, archaic’ system which ‘can be seen as a strategy to sustain the Crown court’s aura of authority.’ Advocates are criticised for ‘seeking to outdo each other with displays of quick wittedness, eloquence and legal knowledge’ while lay participants (including vulnerable witnesses and defendants) feel marginalised and circumscribed in what they say by rules of evidence.
Many of those who work in the system will share the frustrations experienced by those witnesses who have waited months, and in some cases years, for a trial date. In the last 18 months the average time taken from commission of an offence to the conclusion of a trial has risen from 304 days to 360, and with a further round of court closures announced since, the workload on already overburdened courts is going to increase.
Even in a system which is properly resourced, as the report acknowledges, the logistics of bringing together a large number of professional and (sometimes reluctant) lay people in a short period of time for a specific purpose, are staggering. In some cases it is remarkable not that cases run slowly, but that they run at all.
The criminal trial brings together two important principles of our democratic society. The first is that the state cannot impose a criminal sanction on an individual unless it has been established on cogent and compelling evidence that the individual is guilty of the offence of which they are charged.
The second is that guilt should be determined by a jury of the defendant’s peers. The rules of procedure and evidence which limit what can and cannot be said in court exist to ensure that juries are only presented with evidence which is logically relevant to the issues being determined and which does not have a prejudicial effect which outweighs its probative value. This may well be frustrating to witnesses who feel they have more to say, but without focus some trials would quickly descend into unstructured public airings of disputes, which would be protracted, confusing and unfair.
The duty of a defence advocate is to represent their client’s interest and proceed on their client’s instructions. In doing so they represent the only protection an individual has against the state. It is for the jury to determine guilt or innocence and each advocate must ensure every piece of evidence against every defendant is subject to the same level of robust scrutiny.
The report states that 127,000 defendants pass through the Crown court each year. If just 1% of those are innocent of the charges they face, that is still 1,270 individuals who are at risk of being subject to a miscarriage of justice. The primary role of the trial process is to prevent this and this cannot be done if a defendant is unable to challenge their accusers.
That is not to say there is not more that can be done to make the experience of giving evidence more tolerable for witnesses. If wigs and gowns are intimidating then maybe they should be consigned to the past. If defendants do not understand what is happening in court or the terminology being used, it is the duty of their legal representative to explain this to them.
Witnesses also need clear support throughout the process to explain what their role is in the system and why it operates as it does. But the heart of the justice system is a fair adversarial trial governed by strict rules of evidence and procedure. We need this ‘structured mayhem’ to avoid total ‘mayhem’.
Jeremy Robson is a principal lecturer in advocacy at Nottingham Law School and a barrister