Owusu-Bempah, A; (2012) Penalising defendant non-cooperation in the criminal process and the implications for English criminal procedure. Doctoral thesis , UCL (University College London).

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Abstract

Requirements for the defendant to actively participate in the criminal process have been increasing in recent years such that the defendant can now be penalised for his non-cooperation. This thesis explores the procedural implications of penalising a defendant’s non-cooperation, particularly its effect on the English adversarial system. This thesis uses three key examples: 1) limitations placed on the privilege against self-incrimination, 2) adverse inferences drawn from a defendant’s silence, and 3) adverse inferences drawn from defence non-disclosure. The thesis explores how laws regarding the privilege against self-incrimination, the right to silence and pre-trial disclosure came to be reformed such that the defendant can now be penalised for his non-cooperation, and how these laws have been approached by the courts. A normative theory of criminal procedure is developed in the thesis and is used to challenge the idea of penalising defendant non-cooperation in the criminal process. The theory proposes that the criminal process should operate as a mechanism for calling the state to account for its accusations and request for official condemnation and punishment of the accused. Within this framework, the defendant should be free to choose whether or not to cooperate and participate throughout the process. The theory rests upon a broad interpretation of the presumption of innocence, the right to a fair trial, and a conception of the relationship between citizen and state. Conversely, the thesis finds that, by placing participatory requirements on the defendant and penalising him for his non-cooperation, a participatory model of procedure has developed. This model relies on the active participation of the defendant in pursuit of efficient fact finding. The participatory model is far removed from England’s history of adversarialism and, unfortunately, has less regard for legitimacy, fairness and respect for defence rights.

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