Decisions to Imprison: Court Decision-Making Inside and Outside the Law (Advances in Criminology)

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This is because according to the adversarial system a defendant is presumed innocent of the case laid against them until a guilty verdict is reached. This is one of, if not the most, important procedural protections afforded to defendants. This is especially so with regard to the potential loss of liberty, in the form of imprisonment. In addition there are social consequences that arise from being convicted. Importantly one of the worst forms of victimisation has been identified as serving a prison sentence without having committed a crime. This means that the public assumes that an allegation of a sexual wrongdoing must be true, and therefore the public jumps to the conclusion that once a person is accused of a sexual offence s that person will be convicted of such.

This is due to the severity of the social stigma surrounding sexual wrongdoing together with the difficulties in proving the innocence of the person being accused. This illustrates that the presumption of guilt regarding individuals suspected of a sexual offence is a real problem, and this can persist despite the lack of judicial conviction either pre trial, where no prosecution subsequently takes place, or even where a trial does take place and a defendant is found not guilty. This is significant as the consequences of the presumption of guilt can be severe, affecting not only the judicial sentencing of the accused but also the moral or social sentence that many defendants find themselves labouring under even in the absence of formal prosecution.

Despite the denial of a lawyer and being able to record her sessions with the investigators, and learning the charges against her when she was sat in from of them, thus having no time to prepare, she fought and won the case. As a result of this Kipnis decided to write a whistle-blowing essay on her experience. Furthermore, confusion around the issue will only serve to obfuscate and confuse genuine victims of sexual abuse and assault, those individuals who in fact, the system exists to protect and support.

Just as the presumption of guilt has become a cultural imperative, it has had practical applications within the courtroom. Likewise, studies show that media portrayal of victims whether related to a specific case or to similar cases can also affect jury decision-making. The upholding of the principle of the presumption of innocence is not a panacea to miscarriages of justice and wrongful convictions. In most common law countries, individuals who report a crime to the police have the opportunity to have some input into the criminal process by way of the provision of impact evidence on their part.

Elsewhere this is known as a victim impact statement VIS. Everyone involved in the case should read the VPS. There are many problems inherent within the VPS that undermine the presumption of innocence regarding the defendant, not least that the attention is fundamentally shifted from the burden of proof on the part of the prosecution, to the harm experienced by the victim. The VPS is taken at a stage in the process where there is an accuser and an accused. This is especially problematic in England and Wales as the influence of the VPS goes beyond impact evidence during the sentencing process.

Victim impact schemes in other common law jurisdictions confine the use of VIS to the sentencing process. While it is extremely important to allow victims to participate in the criminal justice process, the content of the VPS or the VIS is more than a simple statement of experiences or facts. For a juror exposed to such a narrative, the presumption of innocence of the defendant may feel akin to a denial of the content of the victim testimony.

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Being believed when reporting a sexual offence is necessary and long overdue, and concerns regarding securing justice for victims of sexual offences have rightly been aired. These are exacerbated by the pressures on juries to believe the accuser, the presumptions embedded in the VPS, and the presumption of guilt with regard to those accused of a sexual offence s. It is better that ten guilty persons escape than that one suffer. The focus should not be one of belief with regard to the accuser, but one where allegations of crime including sexual offences are taken seriously.

ICJIA | An Examination of Illinois and National Pretrial Practices, Detention, and Reform Efforts

Both accusers and accused should be subjected to a thorough, civilised investigation in which all relevant information and evidence claimed to indicate guilt is disclosed and subjected to critical interrogation. This includes being guided by the principle of innocent until proven guilty in the pre-trial and criminal trial stages. Seeking to safeguard the innocence of the accused does not in any way negate the experiences of harm caused to the victim, or imply that all accusers are insincere.

Instead, this safeguard recognises that the harms may be severe, but there is also the small chance that in some cases they did not occur, and importantly, that where they did occur that the accused person may not be the perpetrator of those harms.

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Finally and crucially, the punishment of an innocent person is of no benefit to victims or society, as such a wrongful conviction potentially leaves the actual perpetrator at large. Ashworth , p. See Saunders for more detail. Huff and Naughton , p. Cited in Goldhill Huff and Naughton Naughton , Robins Thomas , p. Hayler in Robins , p xii. Gibbs ; Panorama: Getting a fair trial Kipnis , p. Panorama: Getting a Fair Trial? Naughton , p.

See Naughton for more detail. Sarnoff in Hoyle et al.

Problems with the “solutions”

Hogan-Howe , paragraph Hoyle et al. See Cooke , paragraph Cooke , paragraph Kasin et al. Kramer et al. Bane and Flynn Smith and Skinner Roberts and Manikis See Pemberton and Raynaers for a discussion of how the VIS affects the impartiality of the trial, and puts pressure on the rights of suspects and on criminal justice principles such as proportionality and due process. Roberts and Manikis , p.

Introduction to Deviance, Crime, and Social Control

Smith , Spencer et al. Robins , p. Thanks also to the two anonymous reviewers for their constructive comments, they helped to strengthen this article. On behalf of all authors, the corresponding author states that there is no conflict of interest. Skip to main content Skip to sections.

Advertisement Hide. Download PDF. A Criminal Injustice System? Sex Offender Suspects and Defendants. Open Access. First Online: 10 October This is due to cultural changes inside and outside the criminal justice system. Miscarriages of justice are a routine, even mundane feature of the criminal justice system. This is due to the exposure of high profile miscarriages of justice which have brought to light problems in the way that the criminal justice system works. Despite reforms being made in the criminal justice system in light of such concerns miscarriages of justice and wrongful convictions continue to happen.

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Decisions to Imprison

This has to be contextualised. This is important within and without the criminal justice system as in these cases, individuals who are accused of sexual misconduct may be subject to a moral or social or indeed legal conviction based entirely on a false allegation. This can be extended to falsely accused individuals in other contexts such as on University campuses and in other professional occupations were individuals are in a position of trust.


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Saunders Robins Thomas Davies Gibbs Hoyle Kipnis Joh , p. Smith Naughton Compliance with Ethical Standards Conflict of interest On behalf of all authors, the corresponding author states that there is no conflict of interest. Ashworth, A. Four threats to the presumption of innocence. The International Journal of Evidence and Proof — CrossRef Google Scholar.


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Bane, E. An investigation into the effects of victim - focused pre - trial publicity on juror decision - making. Google Scholar. Cooke, R.