Trials and tribulations

The importance of the pre-trial stages of the criminal process has recently been thrown into painful relief by the exposure of several devastating miscarriages of justice that had their roots in abuses and irregularities in the investigation and preparation of cases for trial. Yet there has until now been no systematic academic treatment of the field in this country.

It is this gap that Andrew Ashworth's book seeks to fill, and fills it comprehensively and imaginatively. Its aim is to set a detailed analysis of the various stages of the pre-trial process within a broad theoretical framework that articulates and explores the values and principles that may be thought to inform a civilised criminal justice system.

Ashworth develops a number of principles such as integrity, equality before the law, the right to non-conviction of the innocent, legality and consistency, and draws upon their enunciation within the European Convention on Human Rights as the basis for a finely tuned critique of English practice. Incorporating a broad range of research, including that on the occupational cultures of the police, lawyers and other relevant groups, Ashworth's argument displays a breathtaking command of the intricacies of criminal justice practices and of the interaction of different stages encompassing dispositive and processual decisions made and implemented by diverse agencies.

Throughout his discussion, Ashworth integrates a concern with the rights and interests of defendants, victims and society at large. He sets his face against the idea that all such interests can be balanced in the essentially utilitarian way assumed by the Royal Commission on Criminal Justice (set up in the wake of the miscarriages of justice). His argument is that we can come to a proper assessment of the implications of detailed empirical research only by articulating evaluative arguments about particular practices - considering the supposed justifications for and aims of the criminal process, and reflecting on the relative importance of the discrete values involved. In this way we may hope to generate the informed public debate so lacking at the moment, and to unsettle the unprincipled and reactive attitude to policy-making so vividly exemplified by the Criminal Justice and Public Order Act 1994.

It is impossible in a short review to do justice to the scope and subtlety of Ashworth's analysis. This is not to say that his argument does not encounter difficulties. Many readers will not share the endorsement of the just deserts approach to criminal justice that informs much of his argument. Others may have doubts about whether his evaluative framework is clearly distinct from the simple balancing approach he criticises. Problems remain about how competing values are to be accommodated and reconciled. And at certain points a fuller discussion of the proactive solutions Ashworth advocates - training, guidelines, codes of ethics, frameworks for accountability and the proper flow of information - would have been welcome.

The great strength of Ashworth's argument, however, is to illustrate the ways in which principle and practice are inextricably linked. Criminal justice practices are informed by underlying evaluative assumptions, and we can change the practices only by unearthing and, where necessary, challenging those assumptions in the light of a considered critical framework. In this respect, his approach is in stark contrast with the piecemeal, atheoretical and crudely managerial stance of the Royal Commission.

The contrast is made all the sharper by the specific and measured terms in which Ashworth conducts his critical dialogue with the commission's recommendations. Real change can be effected only by transcending the instrumentalist, regulatory culture that pervades both much of the criminal process and the attitudes of government and reform bodies, and by focusing on the whole picture of the criminal process rather than on individual portions of it. If only the report of the Royal Commission on Criminal Justice had looked more like Andrew Ashworth's book . . .

Nicola Lacey is a fellow and tutor in law, New College, Oxford.