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Allocating blame in the criminal justice process

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We live in a society that is increasingly preoccupied with allocating blame: when something goes wrong someone must be to blame. Bringing together philosophical, psychological, and sociological accounts of blame, this is the first detailed criminological account of the role of blame in which the authors present a novel study of the legal process of blame attribution, set in the context of criminalisation as a social and political process. This timely and topical book will be essential reading for anyone working or researching in the criminal justice field. It will also be of wider interest to anyone wishing to discover the role of blame in modern society.

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Can the criminal justice system achieve justice based on its ability to determine the truth?

Drawing on a variety of disciplinary and interdisciplinary perspectives, this book investigates the concept of truth – its complexities and nuances – and scrutinizes how well the criminal justice process facilitates truth-finding. From allegation to sentencing, the chapters take the reader on a journey through the criminal justice system, exposing the marginalization of truth-finding in favour of other jurisprudential or systemic values, such as expediency, procedural fairness and the presumption of innocence.

This important work bridges the gap between what people expect from the criminal justice system and what it can legitimately deliver.

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Issues, Impacts and Implications

If prison regimes had continued as normal during the COVID-19 lockdown, social distancing would have been impossible. Therefore, sweeping restrictions were imposed confining prisoners to their cells, cancelling communal activity and prohibiting visits from family and friends.

This insightful book identifies the risks posed by prison lockdowns to minority ethnic prisoners, foreign national prisoners and prisoners from Traveller and Roma communities across the United Kingdom and the Republic of Ireland. It documents the unequal impacts on their mental and physical health, feelings of isolation and fear, access to services and contact with visitors.

The legacy of the lockdown will be profound. This book exposes the long-term significance and impact on minority ethnic prisoners.

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This chapter expands on the terms and concepts adopted in the title, considering ‘blamestorming’, ‘blamemongers’ and ‘scapegoats’ in turn. Through the use of contemporary and historical examples, we document how society seems more ready to hold individuals to account for their, and sometimes others’, actions. We start the chapter by detailing the tragic facts surrounding the death of a 22-year-old man. Justice seemingly demanded the punishment of his mother, but a causal analysis shows that her actions were but part of a factually and morally complicated story. Even if one could agree on how factual blame could be apportioned in such a case, determining the extent to which she should be deemed blameworthy is highly problematic. That blame plays a vital role in the criminal justice system, that blame is inherently complex, and that society is prepared to find blame more easily than in the past are themes that emerge at the start of the study and ones to which we return throughout.

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Chapter Two provides an overview of the role of blame in English criminal justice. Although the chapter cautions against viewing the criminal trial as the normal response to deviant behaviour (most offenders are diverted pre-trial or admit guilt), the trial remains paradigmatic and the chapter’s structure follows the process from mode of trial to sentence. It is argued that blame informs, though does not fully explain, both of these decisions. At this point in the book the value of blame both to illuminate and to evaluate becomes apparent. Sentencing represents a determination which will adversely affect the offender; as harm is being inflicted, it needs moral justification. The extent to which the offender is seen to be deserving of blame often frames a justification for sentence. Moreover, despite considerable residual discretion, sentencers must act within the law: statutes must be followed and guidelines generally heeded. To what extent does the law rely on notions of blame? Even if there is a gap between the statute and implementation, if sentencing law is based on blameworthiness, this is a notable finding. Our conclusion is that, despite a myriad of rival objectives, the law provides thresholds for different penalties (custody, community sentences and so on) based primarily on personal culpability. The relevant law is not so much accommodating to blame as a determinant of sentence, but usually demands that it is the sole or primary consideration.

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Chapter Three considers situations where individuals are excluded from criminal liability even though they are factually responsible. Two categories of person often incur no criminal liability or are treated differently on the basis of a perceived lack of blame: children and those who lack mental capacity. The chapter considers both in turn, investigating the basis for such claims and assessing whether the law is consistent with the findings of other disciplines such as psychology. A study of insanity and other defences which rest on lack of blame throws up legal inconsistencies and situations where the law fails to accord with principle. Finally, attention is paid to the concept of moral luck, an under-researched topic of great relevance to our study. Often the outcome of an individual’s deliberate action cannot be foreseen: a blow to the head can bruise, injure or kill. Does this arbitrary consequence affect blame?

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‘Clive has dedicated his 35 year career to unearthing the truth.’ So begins the preface to the autobiography of Clive Driscoll, a former Detective Chief Inspector with the Metropolitan Police (Driscoll, 2015). Driscoll is probably best known for leading the investigation that resulted in the conviction of two of the men responsible for the death of Stephen Lawrence. Criminal investigations and the entire criminal process culminating in the criminal trial are regularly characterized as a pursuit of the truth:

Underlying the question of guilt or innocence is an objective truth: the defendant, in fact, did or did not commit the acts constituting the crime charged. From the time an accused is first suspected to the time the decision on guilt or innocence is made, our criminal justice system is designed to enable the trier of fact to discover the truth according to law. (Burlington v Missouri 451 US 430 (1981))

In Jones v National Coal Board [1957] 2 QB 55 Denning LJ (as he then was) identified that the judicial role ‘above all, is to find out the truth’ (p 63). The same point was made by the US Supreme Court in Tehan v United States ex rel. Shott 382 US 406 (1966): ‘The basic purpose of a trial is the determination of the truth’ (p 416). It was reiterated by Marvin E. Frankel, who sat as a judge of the US District Court for the Southern District of New York between 1965 and 1978 and was a key figure in the development of sentencing guidelines in the United States, who wrote: ‘Trials occur because there are questions of fact. In principle, the paramount objective is the truth’ (Frankel, 1975, p 1033).

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The continuing preoccupation with historical child sexual abuse cases has focused attention on a number of associated issues. An issue central to this book and the focus of this chapter is the nature of allegations/false allegations. In looking into the way in which allegations of sexual abuse are dealt with, the chapter will explore the nature, importance and significance of allegations in the criminal justice process and the ways in which ‘credibility’ and ‘truth’ are examined and evidenced.

On 22 July 2019, Carl Beech was found guilty by a jury at Newcastle Crown Court of 12 counts of perverting the course of justice and one count of fraud. Mr Justice Goss sentenced Beech to a total of 18 years’ imprisonment (R v Beech, Sentencing Remarks, Unreported, Newcastle Crown Court, 26 July 2019). Between December 2012 and March 2016, Carl Beech (referred to as ‘Nick’) had made a series of allegations of murder and child sexual abuse against a number of public figures. These included some particularly serious allegations about the abuse of boys on the Dolphin Square estate in Pimlico in London. The names of several of the prominent individuals against whom allegations were made were reported in the press. They included the former Conservative Home Secretary, Lord Brittan, the former Chief of the Defence Staff, Field Marshall Lord Bramall, the former Prime Minister, Edward Heath, and the former Labour MP, Greville Janner (Daily Telegraph, 2015).

Beech had first contacted the police with allegations of child sexual abuse in the autumn of 2012 after the broadcast of a documentary about the life of the media personality, Jimmy Savile, and the launch of Operation Yewtree.

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Frequently regarded as the most unequivocal evidence of guilt, a confession relieves doubts in the minds of judges and jurors more than any other evidence. In criminal law, the confession evidence is considered to be the most damaging form of evidence produced at trial and a prosecutor’s most potent weapon. (Conti, 1999, p 14)

Some individuals express an overwhelming need to admit to their misconduct. Others have little choice but to do so when faced with overwhelming incriminating evidence. In both cases, the truth can be arrived at in an expedient manner and with minimal involvement from the criminal justice system – most suspects who confess to the police will not seek to retract their confession later but will admit guilt again prior to the trial by entering a plea of guilty. Assuming factual accuracy and a lack of coercion, a confession can be viewed as an optimum criminal justice outcome. Prosecutors are not faced with the task of determining whether the evidence suggests that conviction is a realistic prospect or in the public interest. Trial uncertainty is avoided. Limited state resources can be diverted to other cases, with the possibility that the additional resource secures the conviction of other offenders. The benefits of a confession go beyond the financial as victims, witnesses and defendants are spared the inconvenience and distress of attending court. All of these benefits are considerable.

Confessions are an incredibly powerful indicator of guilt in the eyes of jurors (Kassim, 1997; Watson et al, 2010; Garrett, 2011). Why someone may admit criminality is therefore important.

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Before a prosecution is brought, the Crown Prosecution Service (CPS) needs to be satisfied that there is sufficient evidence to provide a realistic prospect of securing a conviction against the suspect(s). In assessing the evidence, the CPS needs to consider the admissibility of the evidence and this is considered in more detail in Chapter 5. It must also consider the reliability and credibility of the evidence. In order to do so, it must consider whether there are any reasons to question the accuracy and integrity of the evidence. Very often this will involve making judgments on the veracity, integrity and credibility of witnesses who may be called upon to give their testimony in court. Andrew Choo sets out the traditional view on how the criminal trial can make assessments of witness reliability:

Any statement may be unreliable because of defects in the perception, memory, sincerity, or ability to narrate clearly, of the maker of the statement. Suppose that a witness, W, states in his or her testimony that ‘The car I saw driving away was red’. This statement may be unreliable because (1) W may have perceived the car to be red when it was in reality of some other colour; (2) W may have genuinely forgotten that the car was of some other colour; (3) W may be lying; or (4) W may be trying to say that the car was of some other colour, but be lacking in the ability to narrate this clearly. In this situation, because the statement has been made in court by the person who witnessed the event, it will have been possible to observe his or her demeanour at the time of making the statement.

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