To what extent are the fundamental values of the criminal justice process actually expressed in practice?

Yet, in practice, we do have difficulties in fulfilling this compatibility and the rhetorical values of criminal justice (e.g. the priority given to protecting the factually innocent from wrongful conviction over bringing the factually guilty to justice) are not necessarily the same as what are actually pursued. Therefore, various miscarriages of justice arise. I will illustrate in the following paragraphs, from four aspects, to what extent the values of criminal process is (or is not) expressed in actual practice.

Firstly, let's see some statistical facts. Whilst the rhetoric of criminal procedure tends to emphasis on jury-trial, the great majority, over 90%, of defendants (out of the consideration of sentence discount at an early stage) plead guilty in magistrate's court and it's the same case of some 70% in the Crown Court. The prosecution evidence is not examined and the proof of beyond reasonable doubt is self-satisfied by the plea itself, which means that no trial of guilty ever occurs. This fact displays certain features of crime control value, but the probability that many more factually innocent persons will be found legally guilty and that many more factually guilty person will be convicted inevitably undermines the values of due process. Another example is, despite the "golden thread" established by Woomington (1935) (i.e. it is the prosecution who must burden the proof of guilty of the accused), in practice, 219 out of the 540 indictable (serious) offences in common use involved a reversal of the burden of proof (Ashworth & Black), which tells us that when we appreciate the due process value of protecting the innocent, we must consider in detail the actual rules and their actual application.

Secondly, the miscarriages of justice lead to three Commissions and two Acts worthy of our attention and examination. The first Commission is the Royal Commission on Procedure 1981 (Philips Commission), which was set up because of the wrongful conviction of three youths for murder in Maxwell Confait (the case raised questions about the adequacy of the safeguards against false confessions). The Commission published its blueprint for a "fair, open (on the due process side), workable and efficient (on the crime control side)" system. It recommended that there should be a "fundamental balance" in criminal justice between the rights of the suspects and the powers of the police. Although not all of its proposals were accepted, it led to the passing of the Police and Criminal Evidence Act 1984 (PACE), which regulates the principal investigative powers of the police together with the correlative safeguards for suspects, and the Prosecution of Offences Act 1985, which created the Crown Prosecution Service to take over the prosecution function from the police. Obviously, the Philips Commission and the two following Acts aimed to reduce the risk of further miscarriages of justice. However, a string of miscarriages of justice still had come to light during that time, of which the most famous ones were the "Guildford Four", the "Maguire Seven", the "Birmingham Six", Judith Ward, the "Tottenham Three" and the "Cardiff Three". The common causes of these miscarriages were the suppression by the police and prosecution agencies of evidence helpful to the defence, incriminating evidence secured by the police use of psychological pressure and tricks, and the distortion, manipulation and occasional fabrication of prosecution evidence. Nowhere through these actions of the police could we find anything related to due process value at all. Also, the Royal Commission on Criminal Justice 1993 (Runciman Commission) was established out of the fact that the wrongful convictions of 14 people had been quashed because of irregularities by police offices (most of these being post-PACE cases). However, the deficiency of Runciman Commission' proposals were not grounded in a proper theoretical understanding of adversarial ideology and thus failed to resolve the conflict between supporting both the adversarial ideal of the impartial passive judge and the inquisitorial ideal of the investigating interventionist judge. The third Commission is the Criminal Cases Review Commission (CCRC), which was established under the Criminal Appeal Act 1995 to investigate suspected miscarriages of justice. Unfortunately, when CCRC was established, a growing backlog of cases had been built up, thus delays of three or four years could occur. This fact thus showed that it could not lessen the tension between due process and workability (crime control). In summary, the factual deviation from all these Acts and Commissions elaborates that even though we have established formal and authoritative carriers, the values of the criminal justice process are still vulnerable to the abuse of power.

A third point concerns about the accused rights of silence and counsel. Since there have been no entrenched rights or principles governing the operation of criminal justice process. Common law rights are inherently subject to change. They could be created at one time and then whittled away, amended, or even completed removed at a unexpected later time. For instance, the Criminal Justice and Public Order Act 1994 severely limited the suspect's supposed right to silence. And in Samuel (1988), the suspect's require to see his solicitor was denied. It seemed that the real reason why the access to counsel was refused in Samuel was that the police believed a solicitor would counsel silence, and thereby hinder them in their efforts to question the prisoner. If human rights could be treated so lightly, then it is easy to tell to what extent the values of protecting human rights could be pursued in practice. Besides, the access to solicitor is not applicable to all the suspects, largely for financial reasons. Most of them are too poor to pay a solicitor. Even there is a system of a rota of "duty solicitors" out of legal aid, so poor are the rates of pay that many solicitors are not willing to join or shortly after their joining dropped out the scheme. This lack of professional legal aid will certainly affect the criminal justice process adversely.

The last but never the least worry is how the victim's rights are properly protected in criminal process. Victims are those directly suffered from the committed crime, yet their rights seems to be ignored by both the crime control and due process values. Until the early part of the 19th century, the prosecution of crimes was the victim's responsibility. But now, the prosecution role is taken by over by the state and the victims are largely excluded from the criminal process except as information provider or occasional source of evidence. Failures to keep the victims informed about the process "their" case do occur from time to time and make them feel the values of the criminal process are insensitive to their interests. It is said that crime control and concern for victims can walk "hand in hand" (e.g., the admission by law of documentary evidence in limited cases could lessen the victim's fear in oral examination). Yet, even due process values could be fulfilled when a wrongful conviction was quashed; it rendered little comfort on the victim's side, for to them, their real "offenders" had never been identified and convicted. Some argue that only when a "Victim central" model is established, would the criminal justice prioritise the victim's interest. Yet to do this, "an alternative framework is needed" (A. Sanders & R.Young). Therefore, as far as the victims are concerned, it is a rather disappointing extent to which the values of criminal justice process is expressed.

Based on what we have discussed above, we could come to a conclusion that the fundamental values of the criminal justice process, through decades of years' evolution and development, have well been established, despite the emerging of different views of framework. The values of crime control (workability) and the values of due process (fairness and openness) are in theory compatible. But in practice, these values are not always well expressed. Therefore, we should find out a "balancing point" and thus achieve the goal of criminal justice on a relatively satisfactory level.