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Rebalancing acts?: an evaluation of the changes to the right of silence and pre-trial disclosure
Quirk, Hannah
Quirk, Hannah
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2003
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This thesis examines the direct and indirect effects of the curtailment of the right of silence, (ss34-38 of the Criminal Justice and Public Order Act 1994), and the pre-trial disclosure regime created by Part 1 of the Criminal Procedure and Investigations Act 1996. The effects are explored through critiques of the debates surrounding the introduction of the Acts, associated research, analyses of the case law and a qualitative study of how criminal justice practitioners in one region of England view the provisions. It demonstrates the flaws, in both principle and practice, of the rhetoric of `re-balancing' a system tipped too far in favour of `criminals' that was deployed in support of these measures and subsequent initiatives that encroach further upon the rights of the accused. Whilst the direct effects of these Acts have been limited by the small number of cases to which they apply, it is argued that their insidious effects go beyond mere procedural change and have distorted the adversarial nature of the criminal justice system. Both Statutes have imposed quasi-inquisitorial expectations upon the defence, the results of which, the prosecution is entitled to deploy in an adversarial contest. The provisions undermine many of the protections guaranteeing suspects a fair trial, in particular legal advice at the police station, in such a way as to be almost immune from formal challenge. Rather than `re-balancing', the process may be more appropriately characterised as a series of crude "trade-offs" which have compromised the fundamental rights of the defendant and vitiated the fairness of proceedings.
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en
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A thesis submitted in partial fulfilment of the requirements of the University of Wolverhampton for the degree of Doctor of Philosophy