Book Review – Criminal Judges (McConville & Marsh)

Book Review – Criminal Judges (McConville & Marsh)

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Never Judge a book by its cover, they always say. Sitting down to crack the spine on this, I thought it would be a light-hearted romp through the history of some thoroughly unpleasant men of the law over the last few hundred years. This was based on the cover (the picture reminding me of a Punch cartoon for some reason) and the title. I couldn’t have been more wrong. The book is a deadly serious, and seriously good, analysis of the complete change in the way that criminal justice is operated in recent times.

The long title sets out what the book is about – “Legitimacy, Courts and State-Induced Guilty Pleas in Britain”, although the different jurisdictions are dealt with by a solitary chapter towards the end dealing with Scotland whilst the remainder of the book looks at the situation in England and Wales.

It will make uncomfortable for lawyers and Judges. The main thesis of the book is that there has been a sea-change in the English legal system over the last forty years or so, and it is not a change that we should be proud of.

Although the book covers many areas of law, it concentrates on the role of the guilty plea in the adversarial system, and how the ‘powers that be’ aided, it has to be said, by defence lawyers who have taken their eye off the ball, have formalised the system with the aim of producing more and more guilty pleas, seemingly regardless of the justice of the situation.

This is painted as part of a wider picture, where the system pays lip service to the importance of individual rights, whilst always finding a reason in the specific case to withhold them. This can be seen most recently in the ‘Riots cases’ where the appearance of a collective insanity gripped the criminal justice system with sentences far outside of the normal range being handed out, in the name of the crisis of the day.

Although this can be written off as the circumstances pertaining at the time, it is pointed out that there are always “circumstances that require, in this instance only of course, a change to normal procedure”. The riots cases were contrasted, by way of example of the above, with the ‘Operation Major’ cases of 1982 (which I confess to not having heard of), where a perception of benefit fraud getting out of control lead to a minor moral panic, some dubious police tactics and disproportionate punishment.

The thorny nature of the role of the judiciary in guilty pleas starts starts with the case of Turner (1970) 54 Cr App R 352, the book documents the history of plea bargaining since then. The common theme running through this period is the steady move in this jurisdiction towards plea bargaining, whilst coupled with the resolute refusal of the English courts to recognise that they are actually engaging in what they are condemning.

That there should be credit for a guilty plea is taken as read, but should it be? I suspect that most people would agree that a guilty plea should attact a sentencing discounte, but it does raise issues as to the voluntariness of the pleas that are entered. The authors suggest that the ‘system’ is geared up to the extraction of guilty pleas, and the Judges and both Defence and Prosecution lawyers, are complicit in this.

There was many parts where, as a practicing criminal lawyer I was nodding vigorously, some where I shook my head in disagreement. Whether that is because the authors’ case is over-stated, or because I am in denial or acting out of self-preservation is perhaps not for me to say. It did cause me to re-assess the legitimacy of the Criminal Procedure Rules and the way we operate, which can only be a good thing. To go back to first principles every so often is always an important check to keep a system honest.

This is an important book that ties together many strands in the development of the Criminal Justice Systems. There are numerous textbooks on the theory of criminal law, plenty of practitioners texts and a smattering of histories of the criminal law. What there is not is an overview of the history of the ‘bureaucracy’ of the system – the mechanics of criminal procedure. This is not, generally, a ‘sexy’ area of the law, but it is a vital one. In many ways, it is more important than most of the esoteric points of law that are argued, decided, and annotated in the law reviews.

For that reason, ‘Criminal Judges’ breaks new ground, and is to be welcomed. It is polemical in tone, but then there is a lot to be angry about here. It is an example of how small incremental changes can add up over time to make a fundamental difference to a system. The nature of ‘salami tactics’ such as this means that there has been, in effect, a complete overhaul of the adversarial system that has been conducted by stealth. Whether that case that is put forward is made out is for you to judge at the end of the book, but it is one that cannot be dismissed out of hand, and there is certainly a case to answer.

Currently, the President of the Queen’s Bench Division, Sir Brian Leveson, is conducting a “Review of Efficiency in Criminal Proceedings”. The word ‘efficiency’ in an official document often makes people shudder, and for good reason. It is frequently synonymous with ‘slapdash’, ‘putting cheapness above everything else’ and ”. For the sake of all of us in general, and the system that we work within particularly, we must hope that Sir Brian takes a wider view of history and see now only where we go, but how and why we got here.

System reviews are expensive and time consuming. It would be well worth the Ministry of Justice forking out £5.99 for a copy of this book, and put it at the top of Sir Brian’s reading list. They won’t, I suspect, as it goes directly against the current orthodoxy. I hope he seeks it out for himself.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

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