Materials linked to
Chapter 9: "TRIAL PROCEDURES"
John Jackson
Content
The spate of miscarriages of justice against innocent defendants in
the late 1980s raised questions about whether adversarial trial procedures
could protect defendants against unreliable prosecution evidence.
Apart from this, however, there has also been concern about the way in
which these procedures treat witnesses, and particularly victims who have
an interest in the outcome of the proceedings. There is now increasing
frustration on the part of victims that justice is denied to them at court
because of the way their cases are dealt with. Of course, there
is an inevitable clash between the interests of victims and defendants
in any criminal procedure. The price we pay for ensuring that innocent
people are not convicted is that guilty people may sometimes go free.
But adversarial procedures put victims in a particularly difficult position
because they are structured as a contest between two parties only, the
prosecution representing the public interest (not just the interests of
the victim) and the defence. It is not surprising then that
this contest may over-shadow the interests of the victim. The public
interest may lie more in getting an offender convicted whatever the actual
charge, while the victim’s interest may lie as much in ensuring that the
charge reflects the true gravity of the harm inflicted as in the actual
conviction of the offender. If, as invariably happens, the
case never goes to trial, the victim’s story may never be heard or presented
properly. If the case goes to trial, witnesses and victims are put
into the front line of the adversarial battle with little protection offered
from the court. It is common to hear rape victims, for example, complaining
after the trial that they felt they were on trial as much as the defendant.
It was against this background of concern about adversarial trial
procedures that the Royal Commission on Criminal Justice was asked to make
recommendations for reform and in particular to consider whether the courts
should have a greater investigative role both before and during the trial.
Before we consider this possibility, it is proposed to examine in more
detail the respects in which trial procedures may contribute to injustice
to the defendant and the victim. We shall consider in turn the different
modes of trial that are available, the phenomenon of plea bargaining, the
rules of evidence which operate at trial and the role of the judge.
Linked web pages
Courts Service
Lord Chancellor's
Department
Last Updated 3 June 1999
© Clive Walker, Centre for Criminal Justice Studies,
1999
9miscar.htm