Guest post by Jessica Jacobson, Gillian Hunter and Amy Kirby
Thursday, 22 January saw the publication of Inside Crown Court: Personal experiences and questions of legitimacy. The book, which is published by Policy Press, was launched at the Royal Courts of Justice in London.
Inside Crown Court presents the results of an ESRC-funded study which explored – through interviews with court users and observations of court hearings - what it is like to attend the Crown Court as a victim, witness or defendant.One of the themes of the book is the multiple incongruities of the court process. This is a process which is elaborate, ritualised and, in many ways, archaic. Not least, the formality of the language used by judges and lawyers, and the wigs and gowns they wear, help to create a sense of other-worldliness – even while most of the day-to-day substantive business of the court is centred on grim, sordid and often violent happenings from a world that is all too real. The deployment of formality and ritual can be seen as, in part, a strategy to sustain the Crown Court’s aura of authority for those who work there and, especially, those who enter the space as outsiders.
Another of the incongruous aspects of the court 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 establishing a definitive version of events. In a criminal trial, defence and prosecution battle over competing accounts of ‘the truth’, neither of which may be grounded in objective reality. Indeed, the complexities and messiness of much alleged offending is such that the very existence of an objective reality can sometimes be called into question. Even where a case is dealt with by way of a guilty plea rather than a trial – as applies to the large majority of cases passing through the Crown Court – this does not mean that an uncontested, unambiguous version of ‘the truth’ of the offence has been established. Rather, a guilty plea is often reached through a process of negotiation and compromise between prosecution and defence over the nature and details of the offence.
It is notable that during the court process the search for an objective truth is constantly undercut by an emphasis on subjectivity. In a trial, for example, the jury is told to return a guilty verdict only if the case against the defendant has been proven beyond reasonable doubt. In order to ‘prove’ its case, the prosecution usually takes the greatest care to demonstrate the objectivity of the evidence it places before the jury; and often the defence case depends on refuting these claims to objectivity. Meanwhile, the judge frequently reiterates to the jury that they must make their decision only on the basis of the ‘facts’ presented to them. But at the same time as the jury are told to focus on the objective facts of the case, so too they are told time and again to exercise their ‘judgement’; to draw, collectively, on their ‘life experiences’ in their deliberations; to use their ‘common sense’. How else, after all, can decisions be made about whom to believe among witnesses presenting diametrically opposed versions of the same event, or differing interpretations of the same, supposedly objective, evidence?
Very often, therefore, court proceedings seem to be not so much about establishing ‘what really happened’, but are a process of managing conflict between the parties involved. The process of conflict management entails, moreover, the translation of the messy realities of human misdeeds, intrigue and violence into a form of theatre. The parallels between theatre and court proceedings – and particularly the adversarial trial – are many. They include the fact that court cases are played out in full public view. The content of many cases is in itself dramatic: they deal with extremes of behaviour and emotion, or at the very least with difficult, disturbing, unusual and occasionally blackly humorous situations. The structure of the adversarial criminal trial is highly theatrical: the entire process takes shape around the competing performances of prosecution and defence counsel and culminates in the moment of high drama when the defendant is pronounced ‘guilty’ or ‘not guilty’.
The observation that proceedings in the criminal courts are a kind of theatre has been made a great many times. Perhaps it is somewhat less obvious that the drama of the Crown Court trial is one in which those who might be presumed to be lead players – the victims, witnesses and defendants – in fact play only minor, walk-on parts. The starring roles in a trial and throughout the court process are played by the judge and, particularly, the prosecution and defence counsel who seek to outdo each other with displays of eloquence, quick-wittedness and legal knowledge; albeit some with more vigour than others. It thus appears that the most significant divide in the courtroom is not that between prosecution and defence, or between victim and defendant, but that between the legal professionals and the lay court users.
Inside Crown Court details the above, and many other, aspects of the Crown Court experience. This experience is described as inherently difficult, stressful and frustrating; sometimes very distressing; and overlaid with all kind of contradictions. But it is also observed that, despite all this, the vast majority of people who attend court as victims, witnesses and defendants are highly compliant with the court process. They turn up as required, and speak when and how they are told to. They behave appropriately and follow the social rules of the courtroom. This compliance appears to reflect an implicit belief in the legitimacy of the court process. In other words, court users comply with the court process not simply because they have to, but because, at least at some level, they believe in it.
About the Authors: Dr Jessica Jacobson is Co-Director of the Institute for Criminal Policy Research, where Gillian Hunter is a Senior Research Fellow and Amy Kirby is a Research Fellow. The Institute for Criminal Policy Research is based in the School of Law of Birkbeck, University of London.