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This is a summative assignment essay which needs to be analytical and always referring to the question. In regards to the references, academic journals, legislation, cases and statues are acceptable. We want to keep the references applicable to the context of the essay. It is imperative that research cases and law cases of rape or domestic abuse are used in this paper to achieve the correct high standards needed. I have attached the marking rubric so we can understand what is needed to achieve the 1st level of writing. Thank you

Crown Court: Plea bargaining and trial by Judge and Jury

Reading

Campbell et al (2019) Chapter 10 (Pleas) and selected parts of Chapter 11 (Trials)

Cownie, Bradney and Burton (2013) Chapter 17 (Crown Court).

Sanders, Young and Burton (2010) Criminal Justice. Chapter 8 (on guilty pleas) and Chapter 10 (on judge and jury).

Additional Reading

Crosby (2012) ‘Controlling Devlin’s Jury: What the jury thinks, and what the jury sees online’, Crim LR 15.

Crosby (2015) ‘Juror Punishment, Juror Guidance and the Criminal Justice and Courts Act 2015’ Crim LR 578.

Ellison and Munro (2009) ‘Reacting to Rape’, British Journal of Criminology, 202.

Ellison and Munro (2009) ‘Of ‘normal sex’ and ‘real rape’: exploring the use of socio-sexual scripts in (mock) jury deliberation’, Social and Legal Studies, 291.

Ellison and Munro (2010) ‘Getting to (Not) Guilty: Examining Jurors’ Deliberative Processes in, and Beyond, the Context of a Mock Rape Trial’, 30(1) Legal Studies, 74.

Ellison and Munro (2015) ‘Telling tales’ Exploring narratives of life and law within the (mock) jury room, Legal Studies, 35(2) 201.

Ellison and Munro (2014) ‘A ‘Special’ Delivery? Exploring the Impact of Screens, Live-links and Video Recorded Evidence on Mock Juror Deliberation in Rape Trials’, Social and Legal Studies, 23(1) 3.

Thomas with Bulmer (2007) Diversity and Fairness in the Jury System (Ministry of Justice Research Series 2/07).

Thomas, (2010) Are Juries Fair? (Ministry of Justice Research Series 1/10)

Thomas ‘Avoiding the perfect storm of juror contempt’ (2013) Crim LR 483.

Thomas (2017) ‘Ethnicity and Fairness of Jury Trials in England and Wales 2006-2014’, Crim LR 860.

Plea bargaining

The Crown Court is the ‘public face’ of the criminal justice system, which is dominated by the image of jury trial. In reality few cases reach jury trial; in both the magistrates’ court and the Crown court the majority of cases are dealt with by guilty plea. Those guilty pleas may have involved a plea bargain.

What forms does plea bargaining take?

• Charge bargaining
• Fact bargaining
• The sentence discount

The Sentence Discount

• The discount principle is embodied in statute (s.144 of the Criminal Justice Act 2003)
• The amount of discount depends on the circumstances and timeliness of the plea. See, Sentencing Guidelines Council (2017) Reduction in Sentence for a Guilty Plea Definitive Guideline (which provides guidance on the amount of discount).

• Judicial involvement in plea bargaining is, in theory, constrained. However, the rules governing pre-trial discussions/sentence indications have undergone transformation:

Turner [1970] 2 QB 321.

Peverett [2001] 1 Cr App R 27

Nazham [2004] EWCA Crim 491

Goodyear [2005] 1 WLR 2532

Nightingale [2013] EWCA Crim 405

Campbell et al (2019) observe ‘the element of roulette is gone, but the judge’s indication may impose enormous pressure on the defendant, particularly where the indicated sentence on a change of plea to guilty does not involve immediate imprisonment’.

Some have suggested that, in reality, we are we moving towards a US style system of bargaining? Which perhaps is not a welcome development (See McKinnon v US (2008) UKHL 59).

Plea negotiations in Serious Fraud cases raise particular concerns. Some cases dealt with under the special procedure introduced in 2009 have perhaps left the impression that corporate criminality is being treated more favourably than other types of crime.

What are the advantages and disadvantages of plea bargaining?

It makes sense from an efficiency perspective, but may not always be in the interests of either defendants or victims. It appears to reflect a crime control or bureaucratic model of criminal justice, rather than due process or victim orientated.

Trial by Judge and Jury

What is the role of the judge? What is the function of the jury?

Jury composition

There are several basic qualifications for jury service (e.g. being on the electoral register), but jury composition is further influenced by rules which either exclude or make ineligible certain sections of the population.

Traditionally criminal justice professionals were ineligible, now they are not automatically excluded. Is it right for police officers, prosecutors and judges to serve as jurors?

Abdroikov [2007] 1 WLR 2679

Khan (2008) 2 Cr App R 13

The principle of random selection is compromised by the powers the prosecution have to check the background of potential jurors and ask them to ‘stand by for the Crown’. The defence do not have ‘symmetrical’ powers to alter the composition of jury, not even to try to secure ethnic minority representation (Ford [1989] 3 All ER 445).

Evaluating Jury Trial

Are Juries Fair? Do they approach their task with seriousness?

Examples from the case law suggest that, at least on some occasions, jurors do not give appropriate weight the seriousness of the task: Young [1995] 2 WLR 430. There is also case law relating to racial bias: Mirza [2004] 1 AC 1118. However, the courts are generally unwilling to investigate allegations of racism once a verdict has been returned.

Concern has been raised about the use (and abuse) of the internet by jurors. Can it be argued that juries are unsuitable in an internet age?

R v Thompson (Benjamin) [2011] 1 WLR 200

AG v Fraill [2011] 2 Cr App R 21

AG v Theodora Dallas [2012] 1 WLR 991

Cheryl Thomas’ research for the MOJ concludes juries are fair and the racial composition of juries does not affect their verdicts. Thomas’ research also looks at the issue social media use and she has been active in making recommendations in this area. Crosby has considered whether requiring juries to provide reasoned verdicts would be a potential solution to the problems raised by internet use. Following recommendations by the Law Commission, the Criminal Justice and Courts Act 2015 created several offences of juror misconduct.

Evaluating rape trials

Ellison and Munro’s research (using mock juries) examines juror deliberations in rape cases. Do jurors operate inappropriate stereotypes in rape cases? Ellison and Munro examine a number of variables which may be influential: lack of physical injury, delay reported and the victim appearing emotionally ‘flat’.

Special Measures

The Youth Justice and Criminal Evidence Act 1999 introduced a range of special measures for vulnerable and intimidated witnesses. These measures can be used in the magistrates’ court and Crown Court where facilities are available.

The question has been raised about compatibility with the right of the defendant to confrontation, however it is clear that measures such as screening and video link are compliant with Art 6 ECHR.

Do special measures make a difference to the experience or outcomes of a trial? How useful are they in overcoming the difficulties of prosecuting cases such as rape and domestic abuse? Ellison and Munro (2014) have carried out a study of special measures in rape cases.

In relation to CPS decision making we examined the possibility of hearsay evidence as an alternative to witnesses attending trial in domestic abuse cases. Campbell et al (2019) discuss this from a human rights perspective.

Trial by Judge Alone

Runs against the grain of the adversarial tradition, but is allowed in cases where jury tampering is a serious issue (Section 44 Criminal Justice Act 2003).

R v Twomey [2011] 1 WLR 1681

Ordering trial without a jury is considered a last resort and only acceptable if protective measures cannot reasonably be put in place to safeguard against the risk of tampering.

Should judge alone trial be allowed in other circumstances, e.g. complex fraud? Section 43 of the Criminal Justice Act 2003 would have allowed for non jury trial in complex and lengthy cases, but it was never brought into force and was repealed in 2012.

Additional Reading

Jackson (2002) ‘The Adversary Trial and Trial by Judge Alone’, in McConville and Wilson (eds) The Handbook of Criminal Justice Process, Chapter 19.

Lloyd-Bostock (2007) ‘The Jubilee Line Jurors: Does their experience strengthen the argument for judge-only trial in long and complex fraud cases?’ Crim LR 255.