Difficulties of balancing the need to protect the defendants rights

Today I am going to discus and investigate the difficulties of balancing the need to protect the defendant’s rights during the criminal justice system when there is pressure to secure a criminal conviction.

Nowadays whenever there is a high profile case the people expect to have someone to be able to point the finger at so they can be at peace now that a person who has committed a big crime in the public’s eye has been caught and is going to be punished. This is a pressure that the jurors shouldn’t give in to. There are numerous unsolved crimes, it might be the case that a clever criminal has not left behind any evidence and this is nothing new in our society but this is not what the public want or what the police want as it looks bad on them these unsolved cases and they do not what the public to lose faith in them. This pressure can lead to miscarriages of justice due to the pressure of having to secure a conviction.

The human rights acts represents a moment of change in the English legal system as not only was it intended to set out the rights of individuals but also to restrict the power of the monarch to control parliament (Kate Malleson, the legal system 2007). This bill covers the basics rights and freedoms such as the right to life, liberty, freedom of thought as well as of expression and the right to a fair trial to name a few of the 14 Articles it covers. One of the most noteworthy features of the terms of the human rights act which has not been given a lot of attention but can be pivotal for the years to come is its potential impact on the law and system of precedent. Also now due to this act whenever a court considers a legislative or common law issues which raises principle issues, the courts must look at the jurisprudence from Strasbourg and conclude the requirements of the convention in the light of the case law.

The main concern in the due process model is to give importance to the values and practices that protect the rights of the delinquent from the forceful power of the state. In order to ensure this protection it would mean strict supervision of police enforcement, impartial judges and proportional punishments that fit the crime. It bases its model on treating the defendant as innocent until proven guilty and stresses the need to reform people though rehabilitation. Supporters of this model argue that being detained prior to the trail should be done in rare occasions as the people should be at liberty to remain free until found guilty except for when the defendant poses a threat to society. The model believes that the way to maintain justice within the society is to police within the criminal justice system.

In R v Offen (2001) the Court of appeal held the (two strikes and you’re out) sentence under the Crime (sentences) Act 1997 which could lead to automatic life sentences in “certain circumstances" when you have been convicted for the second time of a similar offence. This breached the condition that detention must be lawful under article 5 of the human rights act. This is because the detention must be “proportionate". The court then decided that the section of the Act which allows the judges not to pass a life sentence “in exceptional circumstances" had to be reviewed and read into and allow the courts to decide whether or not the defendant posed a significant risk to the public or not. If the accused was not seen as a risk to the public then this would be seen as an “exceptional circumstance" under the Act. This case shows how the Human Acts right is already shaping and influencing decisions.

The high profile cases are the ones that catch the public’s attention so they all tune in and tend to take an interest in them. This means that the police and courts are monitored and “examined under a microscope" by the public checking for any little error or discrepancy to pounce on. The public’s faith in the system seem to hang in the balance on these high profile cases, if the person accused is acquitted they will complain that no one had been punished for the crime but they might not realise that they could have been condemning an innocent man for a crime that he has not done. Another possible point of influence can be the great amount of media attention that a high profile case gets. Depending on the angle the media portrays to the public, this coverage surrounding high profile cases can either destroy the defendant’s chances for a fair trial or it could end up benefiting them. Also if this publicity is given before the trial this can have a detrimental impact and could make the potential jurors for the case prejudice to the defendant when they should be impartial.

The case of the Birmingham pub bombings is notorious for being one of the biggest miscarriages of justice in England. Six Irish born men were arrested in 1974 for being responsible for the bombing in two pubs in which 10 died and 160 were injured. This act of terrorism caused an uproar in England. The men claimed in court that they had confessed only after being beaten up by the police. The court did not believe them and then began their battle for justice. The Griess test was used for all of the accused and two resulted positive for having handled explosives. After having two appeals turned down on their third attempt in 1991 they were successful due to new evidence of police fabrication and suppression of evidence and the discreditation of both the statements and the forensic evidence resulted in the Crown withdrawing its case against the men. GCMS tests that were done at a later date came back negative for powder and contradicted the initial results. Scientist later on admitted in court that results provided for having handled explosives could have also been produced the same results from handling cigarettes. Here is a case where external and internal pressures to secure a conviction lead to the conviction of six innocent men.

They have to balance the rights of the accused regardless of the crime where it is petty or major. The irony of criminal proceeding is that the more serious the crime is the greater the public interest in the case and in securing a conviction, the more important the constitutional protections of the accused become. Everyone is entitle to a fair trial so in high profile cases sometimes they have to take precautions if the case is given media exposure such as gag orders on trail participants, prior restraints on the media, postponement and change of venue for example. These things are done to reduce the prejudicial effects the media exposure can cause.

In recent years we have seen the fruits and the impact that Human Rights Act has had in the courts. For example in 2004 for the first time in 400 years a serious criminal offence was being tried in England without a jury. The case concerns four defendants being accused of armed robber at Heathrow airport in 2004 stealing 1.75 million from a warehouse along side. One of the defendants John Twomey in the first trail he suffered a heart attack, the case went on forward with the others accused and they were acquitted. He then had a second trail and the jury was unable to reach a verdict and in the third trail the judge stopped the case halfway through its course after there was evidence of a “serious attempt at jury tampering" after looking into the possibility of protecting the problem of interference with jurors, they thought it was not fair on their families have this burden. This lead to the decision for the case to be taken over by a judge. Due to being a high profile case we see that an exception has been made in order for him to receive a fair trial.

Disclosing previous convictions in court can have a really big impact with the jurors and make them prejudice towards the accused. This violates the right to a fair trial. The jurors should be left to make their decision based on the evidence that has been presented to them in court. The topic of the removal of the right to silence is one that is much divided. The ones in favour of the removal use the argument that professional criminals took advantage of the system and would construct “ambush" defences on the prosecution causing many cases to be acquitted, when now they run the risk of “adverse inference". The supporters of the right to silence argue that it doesn’t take into consideration the reason why they don’t want to answer questions, it might be they need to protect others, maybe fearful of their own safety or maybe they don’t understand the nature of the case against them so they cannot give a clear response. Research also shows that there are vulnerable suspects that under pressure are likely to make false confessions (Gudjonsson, 1992). If they are forced to answer questions in those circumstances there is a greater risk of a miscarriage of justice especially if there is an adverse inference which can lead to a conviction in relation to otherwise week prosecution case.

The golden rule that the legal system has taught us is that the accused is treated to be innocent until proven guilty. This means that the attention is focused on the accused whilst placing heavy burden on the prosecution to prove the case beyond reasonable doubt. The take they have on it is that they prefer for many guilty men to be freed because of this approach but no innocent person should be wrongly convicted. However this approach of innocent until proven guilty if not properly done can lead to injustice, not towards the offender but the victim. There does not seem to be any corresponding rights for the victim to seek justice for the wrong done to him and has consequently lead to miscarriages of justice.