Effective participation in criminal proceedings: principle and practice

Recent cross-jurisdictional research examined the meanings and functions of, and barriers to, ‘effective participation’ by court users.

Jessica Jacobson is Professor of Criminal Justice at the Institute for Crime & Justice Policy Research (ICPR), Birkbeck, University of London. Her research interests span many aspects of the criminal and wider justice system, and she has researched and published on such topics as prisons, youth offending, sentencing, criminal advocacy, and public experiences of the justice system. As Director of ICPR, she also oversees the institute’s programme of academically-grounded, policy-oriented research.

It is a long-established legal principle in England and Wales that people should be able to participate effectively in the court and tribunal proceedings that directly concern them. And yet the concept of participation is poorly defined in law and under-explored in legal research and analysis.

In criminal proceedings, the defendant’s exercise of their Article 6 right to a fair trial rests, in part, on their capacity to participate effectively, while the criteria for determining fitness to plead also support the principle of effective participation. Fair trial rights are not generally regarded as extending to complainants and other witnesses in criminal hearings: rather, support in law for their participation is largely framed in terms of improving the quality of the evidence they give in court. This, for example, is the main aim of the ‘special measures’ provisions introduced by the Youth Justice and Criminal Evidence Act 1999, whereby witnesses identified as vulnerable can give evidence from behind a screen, via live video-link, with assistance from an intermediary, or with other specified forms of help. More broadly, the Criminal Procedure Rules 2020 require the court, in preparing for trial, to ‘take every reasonable step … to facilitate the participation of any person, including the defendant’ (para 3.8(3)(b); emphasis added).

But what exactly does it mean for a defendant or witness to participate effectively in criminal proceedings? This question was addressed in a recent cross-jurisdictional study, conducted by the Institute for Crime and Justice Policy Research (ICPR) at Birkbeck, University of London, and funded by the Nuffield Foundation. As well as the criminal courts (both Crown and Magistrates’), the study encompassed the Family Court and some tribunals; the research entailed policy analysis, courtroom observations, and interviews with justice practitioners including judges, lawyers, court staff and providers of support services. 

The interviewed justice practitioners shared a general commitment to the principle of participation: arguing that justice could not be achieved in its absence and, moreover, frequently emphasising their own respective roles in helping court users to participate. In discussing participation, they did not draw upon ready-made or precise definitions of the concept, but rather articulated it in a range of ways. Six contrasting conceptualisations of what court users’participation entails could be identified in practitioners’ accounts: 

  • Providing or eliciting information for the court;
  • Being informed, such that they have understand the court process and outcomes;
  • Having legal representation;
  • Being protected: that is, not being exposed to excessive fear, distress or discomfort;
  • Being managed in such a way that they do not disrupt the court process;
  • Being present at proceedings.

The functions of court users’ participation were likewise described in various ways, among which the prominent themes were that:

  • Participation is, in and of itself, the exercise of one’s legal rights;
  • Court decision-making depends on the information provided or elicited by participating court users;
  • Court users who participate and thus have a ‘voice’ in proceedings are more likely to view the court process and outcomes as legitimate;
  • Participation potentially offers therapeutic benefits to court users.

From the courtroom observations conducted for the study, it was clear that the nature of court user participation varies according to the judicial setting, type of hearing, and the court user’s role or legal status. For example, the part a defendant might play in a criminal trial necessarily differs from that of a prosecution witness appearing in the case; while the scope of participation by a parent in a contested care hearing in the Family Court, or a claimant in an Employment Tribunal hearing, is very different again. Nevertheless, there were many commonalities to participation which cross-cut the jurisdictional and other divides. Most notably, almost every case had at its heart a story of conflict, loss and disadvantage; and each court user’s ‘participation’ was, in effect, a process by which they told, or had told on their behalf, their own version of that story. This process was facilitated by courtroom professionals and practitioners who were, very predominantly, courteous, kind and respectful in their dealings with court users.

However, the observed court proceedings did not simply entail the telling of court users’ stories, but also – necessarily – their translation into legal questions and legal answers in order that decisions could be made and judicial outcomes achieved. And it was apparent that this process of translation was also a process of disempowerment. The formality and complexity of court language, concepts and structures, and above all the power differentials they embodied, had the effect of marginalising and silencing court users and, ultimately, disconnecting them what was going on around them.

Over recent years, the HMCTS court reform programme has introduced many policy changes with the stated aim of ‘building a modern system for administering justice which will benefit everyone who uses it’. Notwithstanding a continuing focus within the programme on access to justice, aspects of the reforms have created potential new barriers to effective participation: particularly, the wide-scale court closures and accompanying expansion of remote and online proceedings. At the same time, availability of legal advice and representation has been severely impacted by sweeping cuts to legal aid. Today, the Covid-19 pandemic – which has given rise to large case backlogs and rapidly accelerated the trend towards ‘virtual justice’ – adds far greater urgency to the task of developing and implementing a principled approach to supporting participation. Such an approach should be based on a clear understanding of what exactly participation means, why it matters, and what can be done to ensure it is genuinely effective across all judicial settings. The findings of ICPR’s research will, it is hoped, significantly advance this understanding.

The findings of the study are published in the book Participation in Courts and Tribunals: Concepts, Realities and Aspirations (editors Jessica Jacobson and Penny Cooper), available from Bristol University Press and as an open access e-book. A policy briefing and practitioner toolkit based on the study findings are also available.

Contact

Jessica Jacobson, Professor of Criminal Justice

Institute for Crime & Justice Policy Research (ICPR)

Birkbeck, University of London

Email: j.jacobson@bbk.ac.uk

Website: https://www.icpr.org.uk/people/jessica-jacobson

Images courtesy of the author

Primodos: The first step towards Justice

Primodos: Sharon Hartles reflects upon the significant impacts of avoidable harms that have been perpetuated for decades through a culture of denial and an absence of state and corporate pharmaceutical accountability.

Sharon Hartles (002)Sharon Hartles was awarded an MA in Crime and Justice (with distinction) from the Open University in December 2019 and is a member of the British Society of Criminology (BSC). She has an interest in crimes of the powerful, including state and state-corporate crime. Sharon draws upon a zemiological approach to evidence the ways in which crime and harm are produced and interwoven into society via socio-economic inequalities.

Primodos was the most widely used hormone pregnancy test prescribed to women in the UK. During 1958 to 1970 Primodos was marketed as a hormone pregnancy test and for the treatment of secondary amenorrhea. However, this was changed to just the treatment of secondary amenorrhea from 1970 to 1978, at which stage Primodos was withdrawn from the UK market. When Primodos was placed on the UK market in 1958 there was no centralised structured pharmaceutical regulation. In other words, no licence was required, no specific safety test was needed and there was no general consumer protection legislation.

In 1978, the Association for Children Damaged by Hormone Pregnancy Tests, was set up in the UK to represent families who suffered congenital abnormalities, stillbirths and miscarriages, allegedly due to taking the oral hormone pregnancy test Primodos. Decades of fighting for justice to uncover the truth about the failures of past Government Health Regulatory Authorities led to a review being commissioned in February 2018, by Jeremy Hunt, the then, Secretary of State.

The announcement in the House of Commons was for a review into how the health system responds to reports about harmful side effects from medicines. This stemmed from patient-led activist campaigns on the use of: hormone pregnancy test Primodos, sodium valproate and surgical mesh. Jeremy Hunt stated “patients and their families have had to spend too much time and energy campaigning for answers in a way that has added insult to injury for many.”

Two and a half years after this review was commissioned, on Wednesday 8th July 2020, the Independent Medicines and Medical Devices Safety Review published the First Do No Harm Report. This Report, together with the additional supporting documents to accompany it including: Personal TestimoniesOral Hearing TranscriptsHormone Pregnancy Tests Supporting InformationTimeline Key EventsHistory of Regulation and the Press Conference Speech (by Baroness Julia Cumberledge, CBE, Chair of the Independent Medicines and Medical Devices Safety Review) evidence unequivocal systemic failures and a clear link between PRIMODOS and its tragic side-effects.

Marie Lyon, Chair of the Association for Children Damaged by Hormone Pregnancy Tests and active campaigner for justice, since 1978, on reading the First Do No Harm Report, declared “I’ve tried to be very calm and I can’t. It’s the fact it’s been acknowledged. They’ve actually looked at the documentation honestly and openly and for me that is the biggest result for our families today. They will be absolutely overjoyed.”

The Independent Medicines and Medical Devices Safety Review has set out nine recommendations in their First Do No Harm Report. Recommendation 1: states ‘The Government should immediately issue a fulsome apology on behalf of the healthcare system to the families affected by Primodos, sodium valproate and pelvic mesh.’ On the 8th July (the date the report was published) Matt Hancock, Secretary of State for Health and Social Care apologised “on behalf of the NHS and the whole healthcare system” to those who have suffered and their families.

For decades, there have been numerous publications evidencing an association between hormone pregnancy tests and congenital malformations in babies. In 2018 and 2019, Oxford University published an analysis of data which found a clear association relating to Primodos and birth defects. Other supporting research which have found links between hormone pregnancy tests and birth defects includes:

However, there have also been opposing publications which have found no association and/or inconclusive results. In 2017, the Medicines and Healthcare products Regulatory Agency (MHRA) published their report on the use of hormone pregnancy tests and adverse effects related to pregnancy including possible birth defects. The MHRA is an independent Expert Working Group of the UK’s commission on Human Medicines, which was established, in October 2015, in order to conduct this review. The MHRA found there to be insufficient evidence to support an association. Other opposing research includes:

For Marie Lyon, Chair of the Association for Children Damaged by Hormone Pregnancy Tests “after viewing the oral evidence presented by members of the Expert Working Group who were responsible for the scientific publication in 2017, it seems I already have a perfect example of the denial and protection culture endemic in our regulators. Denial when problems occur and protection, not for the patient but for the manufacturer.”

In light of the decades of jostling to and fro of supporting and opposing evidence, it is clearer to understand why the findings of the Independent Medicines and Medical Devices Safety Review in the First Do No Harm Report, together with Matt Hancock’s prompt apology on behalf of the UK Government and acceptance may in the first instance offer some form of relief for the families of the Association for Children Damaged by Hormone Pregnancy Tests.

In the Press Conference Speech by Baroness Julia Cumberledge Chair of the Independent Medicines and Medical Devices Safety Review, she stated ‘In our view Primodos continued to be given as a pregnancy test for years longer than it should. In the face of growing concerns it should have ceased to be available from 1967.’ Yet Primodos remained on the UK market until 1978. This is a failure on behalf of the UK Government to protect its population from harm. Equally, a failure on behalf of the corporation Bayer (Schering). Primodos, was manufactured by Schering in Germany. In 2006 Schering was acquired by Bayer plc.

It is important to point out that Amenorone Forte a hormone pregnancy test prescribed by GPs, during this same time frame, acted in much the same way as Primodos and was manufactured by Roussel in France.  Roussel was acquired by Sanofi in 2004. For this reason families of the Association for Children Damaged by Hormone Pregnancy Tests hold both corporations accountable for the avoidable harm inflicted.

According to the Independent Medicines and Medical Devices Safety Review, History of Regulation, The Medicines Act 1968 received Royal Assent in October 1968, however the ‘transitional period’ meant this Act did not come into effect until 1st September 1971. During this time the Committee on Safety of Drugs was formed, yet it had no legal powers. With little irony, there was no formal regulator, it was part of a voluntary arrangement. There was no body to legally mandate the removal of a drug from the market and limited mechanisms to regulate drugs and restrict their use.

More systemic failures followed because the Committee on Safety of Medicines, (which replaced the Committee on Safety of Drugs, 1st September 1971) focused its gaze on formalising new medicines entering the UK market. Products, including Primodos, which had been on the market before the 1st September 1971 were automatically granted a Product Licences of Right (PLR).

Primodos was awarded a PLR yet its product which had been on the market since 1958, had never been required to submit evidence of quality, safety or efficacy. This oversight to ensure Primodos met the appropriate standards of safety, quality and performance in line with new rules was another missed opportunity to protect public health and safeguard the interests of patients and users.

The Independent Medicines and Medical Devices Safety Review Timeline has brought to light other damning evidence. On 22nd July 1969 Schering UK wrote to Schering Germany recommending the removal of the pregnancy testing indication. In a letter dated 17th February 1970 to Schering, Dr Ruttle a member of the Standing Committee on the Classification of Proprietary Preparations (known as the MacGregor Committee – 1965 and 1971) which provided guidance as to which preparations should be used on the NHS, stated ‘The Committee would be prepared to place the product in A.3 if the promotional indication as a “pregnancy test” were withdrawn and I would suggest that the most appropriate and, acceptable to the Committee, promotion be “symptomatic treatment of amenorrhea to produce withdrawal bleeding.”

On the 9th March 1970 Schering agreed ‘to the deletion of “pregnancy test” from the indications, and to the promotional statement “the symptomatic treatment of amenorrhea not due to pregnancy, by producing withdrawal bleeding”. Further correspondence in April 1970 acknowledged the suggestions from Schering (removing the pregnancy test indication and altering promotional statements) and confirmed that Primodos would be placed in category A.3 (prescription-only medicines).

Five years later, the Committee on Safety of Medicines (an independent advisory committee to the UK medicines licencing authority) published a letter in the British Medical Journal (BMJ) on 26th April 1975. In this letter the Committee on Safety of Medicines stated they agreed with an article published five months earlier in the BMJ entitled Synthetic Sex Hormones and Infants which advised ‘there is little justification for the continued use of withdrawal type pregnancy tests when alternative methods are available.’

On 5th June 1975, the Committee on Safety of Medicines sent an alert letter – to all doctors in the UK – entitled Hormonal Pregnancy Tests, in which they advised them of a possible association between hormonal pregnancy tests and an increased incidence of congenital abnormalities. The Committee on Safety of Medicines stated ‘In view of the possible hazard, doctors should not normally prescribe certain hormonal preparations for pregnancy tests’.

Spanning 1958 to 1978, Primodos was given to around 1.5million women in Britain. Primodos was a hormone pregnancy test prescribed to women to detect pregnancy. It consisted of two tablets which were to be taken on consecutive days. A negative pregnancy test would result in a withdrawal bleed (within three to ten days of consumption of the tablets). It is now known that Primodos prescribed to women to confirm their pregnancy, by today’s standards equates to 13 morning-after pills or 40 oral contraceptive pills. Moreover, the hormones contained in Primodos are now used in the morning-after contraception pill.

A statement taken from the Independent Medicines and Medical Devices Safety Review Personal Testimonies from the families of the Association for Children Damaged by Hormone Pregnancy Tests illustrate their distress – “We feel that we were used as collateral damage by the pharmaceutical company who were developing the contraceptive drug at the time.” The personal testimonies of Nicky Gubbins and Daniel Mason evidence how “The effect on our lives have, as you can imagine, been devastating.” The alleged impacts of PRIMODOS comprise:

  • all congenital malformations
  • more specific malformations:
    • cardiac malformations
    • musculoskeletal
    • neurological
    • neurogenetical malformations
  • birth defects
  • miscarriage
  • stillbirth

The First Do No Harm Report together with the supporting documents is significant because it evidences a clear link between Primodos and the terrible avoidable harms that have been perpetuated for decades through a culture of denial and the absence of state and corporate accountability.

Acknowledgement in the form of an apology on behalf of the Government was the first step towards justice. However, in a letter dated 13th December 2018, to the Independent Medicines and Medical Devices Safety Review, Bayer stated ‘there is nobody at Bayer plc who could usefully contribute anything on the subject matter of your inquiry’. Notwithstanding this response, it is now time to look to the future.

The Government (on behalf of the UK regulators) and corporations Bayer (Schering) and Sanofi (Roussel) should as recommended in the First Do No Harm Report, fund the costs of care for those affected by state and corporate harm. In addition to this, the families of the Association for Children Damaged by Hormone Pregnancy Tests using the Independent Medicines and Medical Devices Safety Review evidence should be able to successfully take legal action for the harms done to them by Bayer, Sanofi and the regulators.

In line with recommendation 9, of the First Do No Harm Report, the Government has a duty to set up a task force which must schedule a timeline for the implementation of the remainder of the recommendations. Such initiatives should endeavor to provide a safety net to ensure that a patient-led approach is centred at the heart of future health care provision.

 

This article was originally published by the Harm & Evidence Research Collaborative on 21 July 2020 at:  https://oucriminology.wordpress.com/2020/07/21/primodos-the-first-step-towards-justice/

 

Contact

Sharon Hartles

Email: sh28739@ou.ac.uk

Twitter: @shartles1

 

Images: Courtesy of author and http://www.ccpixs.com/ via Flickr

 

Justice must be seen to be done

An intersectional analysis of observations of Crown Court trials for rape and serious sexual assault.

Ellen Daly

Ellen Daly is a PhD candidate at Anglia Ruskin University. Her research explores the use of rape myths and other narratives in rape and sexual assault trials in England and Wales.

 

In recent years there has been a great deal of media attention paid to the prosecution of rape. Most recently criticisms have frequently centred around the falling prosecution rate in England and Wales. Although reports of rape are increasing, the number of prosecutions continues to fall. This means that many victims are not getting the justice they are seeking through reporting to the criminal justice system. Only a tiny portion see justice, and for victim-survivors from minoritised or marginalised groups the chances of seeing a conviction are even slimmer. This begs the question “why?” – why does it seem that victim-survivors from particular groups are more likely to find justice through the criminal justice system?

Evidence suggests that victim-survivors from particular backgrounds have limited access to justice as a result of structural inequalities and various aspects of their perceived identity (see for example Lovett et al 2007 and Hester 2013). There is little contemporary research that addresses these issues, particularly in the context of criminal court. Criticisms of Crown Court responses to rape and sexual assault often focus on the influence of rape myths on trial practices and outcomes, but very little has been done to explore the links between what goes on in the courtroom and the differences in attrition rates for women from minoritised or marginalised groups. This is what my PhD research seeks to explore.

Rape myths are frequently pointed to as offering an explanation for the lack of justice for rape and sexual assault victim-survivors as a whole, and with good reason. It is well established, through a strong body of research from a range of disciplines, that rape myths are commonly accepted among the general population, including by those involved (or potentially involved) in the administration of criminal justice. This includes research that evidences the existence of rape myths at trial and their influence on jurors.

Rape myths have featured in every rape and sexual assault trial I have observed so far and have usually had the function of either blaming the victim or excusing the defendant’s alleged actions. They are utilised as a tool for casting doubt on victim-survivor testimony and to bolster the defence of the accused.

In my observations I have heard the behaviour of victim-survivors being questioned, implying that but for their actions the incident would not have occurred. I heard a victim-survivor being questioned on her drinking habits and binge-drinking, even though a central argument to the defence case was that she was not drunk on the night in question. These arguments draw on rape myths that seek to minimise the behaviour of the accused by positioning the victim-survivors as bearing responsibility for what happened to them.

I have heard victim-survivors being positioned as liars who are seeking revenge or are embarrassed and regretful. In the courtroom, these myths that position women as liars rely on the misconception that false allegations of rape are common, when actually we know that not to be true.  These lines of argument may be particularly pertinent to juror decision-making when considered against the backdrop of mass media coverage regarding collapsed cases.

These myths can be applied to all victim-survivors though, so their presence doesn’t necessarily answer what could be happening to impact specifically on those from minortised and marginalised groups. Provisional findings from my research indicate that one possibility is that narratives around social class are used in trial and that they intersect with the gendered rape myths that are already known to exist in the courtroom.

There are no direct references to social class, it is more subtly implied through small seeds sown throughout the trial. There are frequent references to victim-survivors and defendants being uneducated and unintelligent, which come against the context of evidence which establishes that they live in an impoverished town, on a council estate, that they receive state benefits, are unemployed or are in insecure work. All of which are things that are reflective of working-class stereotypes in our society. The work of Charles Murray in the 1990s on the so-called ‘underclass’ in Britain and its subsequent and continued uptake by the media and politicians, provides a starting point for arguing that stereotypes often portray working-class people as poorly educated or of lower intelligence compared to those deemed middle- and upper-class.

In my observations, defendants being of low intelligence was being presented by the defence as an inability to lie or pretend, positioning them as the credible party the juries should believe above the victim-survivors. To illustrate, two trials included text message evidence of what could be read as confessions to the events in question. In these trials the specific wording used by the defendants was thoroughly picked apart by both prosecution and defence, with the prosecution proclaiming that the defendants’ explanations were ridiculous. Whilst on the other hand, the defence in both cases rationalised the choice of words as being because the defendants are uneducated or unintelligent, that his words were not intended as a confession to rape or sexual assault and can simply be explained by his poor grasp of English grammar and vocabulary. These narratives are taking the counter-side of the ‘women lie’ rape myth, by suggesting that these ‘unintelligent’ working-class men are too stupid to lie convincingly and therefore must be believed.

Other narratives related to social class draw on middle-class ideals of respectability. Victim-survivors are portrayed as not conforming to these standards of respectability, whether that be through their drinking habits or the way they present themselves. We needn’t look much further than reality TV to evidence how young women, particularly those from working-class backgrounds, have been portrayed as heavy drinkers whose behaviour and ways of dressing are used to depict them as ‘easy’ and ‘up for anything’ (recent examples include Geordie Shore and TOWIE). This of course links to gendered rape myths around respectability, which are based on middle-class ideals.

The findings I’ve outlined here perhaps begin to answer how some groups of victim-survivors appear to have a lower chance of seeing a conviction in their cases. Narratives drawing on victim-survivors’ and defendants’ perceived identity or membership to a particular group, which in the examples outlined here related to social class, intersect with gendered rape myth narratives. Therefore it is not only rape myths that play a role in undermining the credibility of victim-survivors and bolstering the presumed innocence of defendants. The reality inside the courtroom is much more nuanced than that. Myth-busting measures are unlikely to have the desired effect without taking account of broader structural inequalities. Fair justice cannot come from a system where convictions and acquittals can be made based on myths and stereotypes.

Contact

Ellen Daly, Anglia Ruskin University

Email: Ellen.daly@pgr.anglia.ac.uk

 

Copyright free images courtesy of the author