City Research Online

Abstract

This book explores the changes to the defendant’s role as a participant in the criminal process and the ramifications of penalising a defendant’s non-cooperation, particularly its effect on the adversarial system.

The increase in demand for participation has resulted in the imposition of requirements on defendants to actively participate, backed by penalties for non-cooperation. These requirements derive from legislation and have been given effect by the courts. The purpose of this book is to critically examine the participatory role of the defendant during the pre-trial and trial stages of the criminal process, from charge to verdict, and to assess the impact which requiring active participation has had on the nature of criminal procedure. The position taken is that it is wrong to require defendants to actively participate in proceedings against themselves. This argument is based on a broad approach to fair trial rights and a normative position, or theory, which holds that the criminal process should operate as a mechanism for calling the state to account for its accusations and request for official condemnation and punishment of the accused. When fair trial rights are interpreted broadly, as they ought to be, they allow defendants to take a passive role, while challenging the state and holding it to account for its accusations of criminal wrongdoing. Moreover, if defendants are to be treated as free and dignified citizens of a liberal democracy, as they ought to be, they must be at liberty to choose whether or not to actively participate in criminal proceedings. This normative theory of the criminal process not only provides a basis for the argument against requiring active participation, but also provides a framework, or yardstick, from which to approach and examine wider developments in criminal procedure and the law of evidence.

Publication Type:	Book Section
Additional Information:	This is an Accepted Manuscript of a book chapter published by Routledge in "Defendant Participation in the Criminal Process" on 2016-10-28, available online: https://www.routledge.com/Defendant-Participation-in-the-Criminal-Process/Owusu--Bempah/p/book/9781138019577
Publisher Keywords:	Criminal Law,Criminal Procedure, Criminal Justice, defendant participation, air trial,
Subjects:	K Law > K Law (General)
Departments:	The City Law School

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