Abstract
The judgments of criminal appeal courts are an example of Calabresi and Bobbitt’s concept of ‘tragic choice’. Judges justify convictions by reference to the values which they attribute to criminal procedures: fairness, truth and rights, rather than the full range of considerations which have influenced the introduction of those procedures: cost, efficiency, crime control, public perceptions of crime, etc. The difficulties facing the Court of Appeal in justifying convictions by juries after a full trial are multiplied in the case of convictions following guilty pleas. A procedure which on its face is less capable of identifying guilt than a trial, has to be defended on the basis that it is overwhelmingly more capable of identifying guilt (or so fair as to justify disregarding the possibility of innocence). Recent changes to the plea system restricting maximum sentence discounts to pleas made at the earliest opportunity further distance guilty pleas from the protections afforded by trial, and compound the difficulties in justifying these convictions as ‘safe’. With guilty pleas we have reached a situation where the Court of Appeal seems unable to provide a remedy for miscarriages, but instead, like the judges of the 19th century opposing the creation of the Criminal Court of Appeal, claims the procedure is so safe that there is little or no need for review, even in cases of procedural irregularity (short of abuse of process) or new evidence (short of exoneration).
Highlights
Is Baron Parke’s sanguinity about the improbability of miscarriages of justice in the 19th century merely a matter of historical interest, or does it find echoes in judicial attitudes towards the safety of convictions today? And if such echoes exist, does this point to the presence, in our criminal justice system, of factors that transcend historical change? In this article we explore the theme of judicial reluctance towards undoing convictions in the context of the everincreasing reliance on guilty pleas as a mechanism by which those convictions are achieved
From an external perspective, the attempt to justify a near blanket ban on guilty plea convictions has echoes of the 19th century judicial resistance to any appeals against jury verdicts except on points of law, as expressed by Baron Parke in the quote at the start of this article – a view which, if our system ever evolves in a manner that dispenses with guilty pleas, may be viewed as sanguine, if not smug complacency
We have attempted to show that the judicial treatment of appeals against conviction following a guilty plea is an example of tragic choice – the need to justify procedures by reference to values such as rights and truth, and without reference to the considerations which have led to their introduction
Summary
I think that the Complaints of the present Mode of administering the Criminal Law have little Foundation, for the Cases in which the Innocent are improperly convicted are extremely rare; some, no doubt, there are; and I consider it. RICHARD NOBLES AND DAVID SCHIFF impossible in any human System in administering Justice to avoid such Misfortunes occasionally. (Baron Parke’s evidence in 1848 to a Select Committee of the House of Lords on a Criminal Law Administration Amendment Bill).[1]. Is Baron Parke’s sanguinity about the improbability of miscarriages of justice in the 19th century merely a matter of historical interest, or does it find echoes in judicial attitudes towards the safety of convictions today? If such echoes exist, does this point to the presence, in our criminal justice system, of factors that transcend historical change? Is Baron Parke’s sanguinity about the improbability of miscarriages of justice in the 19th century merely a matter of historical interest, or does it find echoes in judicial attitudes towards the safety of convictions today? And if such echoes exist, does this point to the presence, in our criminal justice system, of factors that transcend historical change? In this article we explore the theme of judicial reluctance towards undoing convictions in the context of the everincreasing reliance on guilty pleas as a mechanism by which those convictions are achieved
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
