The Trial on Trial III: Towards a Normative Theory of the Criminal Trial

English criminal law is in peril. Its foundational principles are continuously challenged, and some have long since rotted. In England and Wales, the trial powers of judges have been curtailed; the rules on bad character evidence, double jeopardy, and the right to silence have been drastically revised, all in the name of "rebalancing" the legal system to pander to victims within the system. Global terrorism has driven an excessive pursuit of personal safety, making fair trials sometimes impossible. In fact, for a long time now, trials have rarely taken place in the UK, with the vast majority of criminal cases resolved through guilty pleas. Furthermore, while the British general public incessantly debates how to establish the legitimacy of the future of criminal law, few have noticed that the contemporary importance of the trial itself has been called into question. Trials are under attack, and their value is doubted, particularly by those advocating alternative avenues—whether settlement or restorative justice—to address victims' needs, thereby moving away from state-exercised public trials and criminal liability.

This book aims to establish a foundational theory for the criminal trial to protect the importance of trials within the criminal justice system. The original intent of a trial is to subject guilty defendants to criminal liability and hold them accountable for their past actions. A trial can be viewed as a communicative process between the parties, through which the defendant can answer the improper charges brought against them, including the norms invoked as the basis of the charge. Before constructing a theory of criminal law, this book provides a detailed introduction to the history of the trial. Each chapter elaborates on the procedures and principles of the trial, alternative regulatory models, the roles of participants, the relationship between investigation and trial, and the trial as a public forum, with the hope of establishing a communicative theory.

Table of Contents

Preface

 

Chapter 1

The Principles of Lawyer Ethics

Chapter 2

The Normative Concept of the Trial: A Historical Perspective

Chapter 3

Truth and Trial

Chapter 4

Truth and Communication in the Trial

Chapter 5

Summoning to Court

Chapter 6

Who Summons the Defendant? The Trial and Criminal Justice

Chapter 7

Communicative Participation

Chapter 8

The Principle of Integrity

Chapter 9

The Public Character of the Trial

Chapter 10

The Boundaries of the Criminal Trial: Security, Truth, and Reconciliation

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