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- Author or Editor: Jessica Jacobson x
It is a long-established legal principle in England and Wales – expressed in statute, case law, procedure rules, practice directions and guidance – that people should be able to participate effectively in the court and tribunal proceedings that directly concern them. There is wide agreement among law reformers and commentators, as well as among the judiciary and legal practitioners, that participation is essential to the delivery of justice. But what exactly does it mean for a lay person to participate effectively in judicial proceedings – whether the individual is a defendant or complainant in a criminal case, a party in a family dispute, a claimant or respondent in the Employment Tribunal, an appellant against an immigration or asylum decision, or a witness in any such setting? Why does their participation matter? What factors typically impede their participation and how can it be better supported? This book addresses these pressing, but hitherto neglected, questions in reporting on a unique study which combined cross-jurisdictional socio-legal policy analysis with close empirical inquiry. A raft of policy initiatives over the past two decades have sought to bolster participation in judicial proceedings, and particularly that of individuals considered ‘vulnerable’. Other developments in law and policy have, conversely, undermined the scope or capacity of court users to participate. These include reduced availability of publicly funded legal representation, and wide-scale court closures and the accompanying growing dependence on remote participation through live video- or audio-link and online processes. At the time this book is being completed (May 2020), the existing trend towards replacement of physical with virtual court attendance has accelerated to an extent few could have foreseen – as a result of the COVID-19 pandemic and the imperative to maintain social distancing within the justice system, as across all parts of society.
The preceding chapters of this volume have discussed policy and practitioner perspectives on the legal principle that lay people should participate effectively in the judicial proceedings that concern them. This chapter is concerned with participation in practice, as observed by the research team across the range of courts and tribunals that are the focus of the study. After a short methodological note on the conduct of the observations, the chapter reports on differences between the variety of judicial settings, in terms of the institutional parameters of lay participation. This is followed by consideration of the commonalities across the settings. Here, it is argued that at the heart of almost every case observed by the researchers was a story of conflict, loss and disadvantage; and each lay court user’s ‘participation’ in the case could be understood as a process by which they told, or had told on their behalf, their own version of that story. The final part of the chapter describes how judicial proceedings did not simply entail the telling of the court users’ stories, but also their translation into legal questions and legal answers – and how this was a process which often had the effect of silencing and marginalising court users. The research team conducted a total of 316 hours’ observation over the course of 90 visits to 17 venues covering the Crown Court, magistrates’ courts, Family Court Employment Tribunal (ET) and First-tier Tribunal (Immigration and Asylum Chamber) (IAC). The venues were located across the three cities – one in Wales, two in England – and surrounding areas which had been selected as the main fieldwork sites (see Chapter One).
Available Open Access under CC-BY-NC licence
Effective participation in court and tribunal hearings is regarded as essential to justice, yet many barriers limit the capacity of defendants, parties and witnesses to participate.
Featuring policy analysis, courtroom observations and practitioners’ voices, this significant study reveals how participation is supported in the courts and tribunals of England and Wales. Including reflections on changes to the justice system as a result of the COVID-19 pandemic, it also details the socio-structural, environmental, procedural, cultural and personal factors which constrain participation.
This is an invaluable resource that makes a compelling case for a principled, explicit commitment to supporting participation across the justice system of England and Wales and beyond.
This chapter examines the nature of the court process within the adversarial system of justice in England and Wales. It is argued that at the heart of this process is the tension between the purported aim of finding out ‘what really happened’ in relation to an alleged offence, and the practical impossibility (in many cases) of ever establishing a definitive understanding of complex and messy events. The truth remains elusive, very often, both in cases which go to trial, and in cases where there is a guilty plea. Court proceedings are therefore a means by which the authorities seek to manage conflict between different parties, without necessarily providing for a definitive resolution of the conflict or uncovering of how it came about. This chapter also considers the ritual and formality of the court process, and its many parallels with theatre. In the final part of the chapter, the authors consider the incongruities of court proceedings - observing that the public performances which take place in the courtroom frequently involve an intermingling of highly contradictory elements.
This chapter provides a broad context to the empirical research findings that are presented in the chapters that follow. The first part of the chapter sets out the essential structure of the courts system of England and Wales, and the place of the Crown Court within it. The routes by which a criminal case can come to the Crown Court, and some key facts and figures relating to court business, are also outlined here. Secondly, the authors describe the core components of a Crown Court trial and Crown Court sentencing hearing, and the key players (professionals, practitioners and lay participants) in the courtroom. The third and final part of the chapter addresses the theme of ‘access to justice’, noting that a significant feature of recent criminal justice policy has been the development of support within the courtroom for vulnerable and intimidated witnesses and victims and – to a lesser extent – for vulnerable defendants.
This chapter sets out the key questions addressed by the study and their significance. This is followed by a brief overview of prior empirical and theoretical research that helped to shape this study and to inform the conclusions drawn. Four such strands of research are identified: government research on court user experiences; prior ethnographic studies of the criminal courts; research and commentary on the ‘victims’ rights’ movement in Britain and elsewhere; and academic and policy-related research on ‘procedural justice’. The qualitative methods utilised in the study are described: namely, semi-structured, in-depth interviews with a total of 57 professionals and practitioners working in or around the Crown Court; semi-structured, in-depth interviews with a total of 90 adult court users (45 from the prosecution side and 45 from the defence); and 200 hours of observations of a variety of Crown Court hearings.
This chapter seeks to explain the ‘reluctant conformity’ observed in most court users, and has done so with reference to the concept of legitimacy. It is argued that most court users perceive the court process as, broadly, legitimate – meaning that they obey the rules of the process not because (or not solely because) they are forced to do so, but because they feel obliged to do so. The chapter identifies five constituent parts of court users’ perceptions of the legitimacy of the court process, which co-exist in differing combinations for different individuals. These five constituent parts of perceived legitimacy are: a sense of moral alignment with the work of the courts and the wider criminal justice system; experiences of positive outcomes (however defined) of the court process; experiences of fair decision-making (again, however defined) within the court process; experiences of respectful treatment by the professionals and practitioners with whom the court users have interpersonal contact at court; and – on the part of many defendants – a certain passive acceptance of what goes on in court and its consequences for them.
There are many chaotic aspects to the public performances played out in the Crown Court: key participants in trials and other hearings do not turn up when they are supposed to; equipment fails to work; vital paperwork cannot be found or contains glaring mistakes; delays and retrials are commonplace. The aim of this chapter is to convey these chaotic aspects of court business, but also to demonstrate that, despite the apparent disorganisation and disruption, cases progress through their various stages in an innately structured manner, and eventually reach some kind of logical outcome. The term ‘structured mayhem’ is used here to describe this juxtaposition of order and disorder in the business of the Crown Court. The theme of structured mayhem is examined in detail over the course of this chapter, the first part of which focuses on the process of getting a case to court, and the second part on the stop-start progress of cases once they are at court. The chapter concludes by looking at a single case – involving the trial of a woman accused of perverting the course of justice - to illustrate structured mayhem in practice.
It is observed in this chapter that there is much about the court process that victims, witnesses and defendants alike find difficult. Appearing in court can cause considerable fear, anxiety and distress. Various aspects of the experience can also be hard to understand. Cross-examination poses particular challenges for victims and witnesses, many of whom find it deeply troubling that they are seemingly ‘not believed’. Those defendants who are habitual attendees in court, in contrast, frequently adopt a resigned or even entirely passive stance towards proceedings. But what characterises the response of the vast majority of lay participants is a reluctant conformity: they comply with the expectations and social rules of the process, and rarely do they actively disrupt it – notwithstanding the extreme circumstances and hostilities that are at the heart of most court cases. The chapter considers some of the most problematic aspects of attending court for court users – and, particularly, the anxieties experienced, the inconveniences, the pressures of cross-examination, and difficulties of understanding – before going on to demonstrate that almost all court users, nevertheless, ‘follow the rules’ of the courtroom and judicial process.
This chapter argues that the main divide in the courtroom is not between prosecution and defence, or between defendant and victim, but between the lay court users and the legal professionals. This ‘them and us’ divide runs through all Crown Court proceedings and is manifest in various ways. In the drama of the courtroom, victims and witnesses play ‘walk-on parts’ and defendants are ‘ever-present extras’, while the legal professionals take on the starring roles. Despite a plethora of recent policy changes aimed at improving their standing, victims and witnesses are still often left feeling marginalised in the court process; without an adequate voice and unable fully to express themselves. Defendants, are in the paradoxical situation of being central to yet peripheral within proceedings yet. A key part of the marginalisation of lay court users is their exclusion from the often informal and friendly inter-relations among legal professionals. Finally, this chapter highlights the ambiguous place of the jury in a criminal trial. Jurors comprise the ‘controlled audience’ of the courtroom performance and have the ultimate decision-making responsibility; as such, they straddle the ‘them and us’ divide.
