Criminal Law: Thinking about Criminal Law from a Trial Perspective
. .. trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives. Patrick Devlin (1956, p. 164)
Although it is necessarily a rough-and-ready distinction, research and scholarship in socio-legal studies typically distinguishes itself from its criminological cousins by focusing on civil and public law. While there are shared concerns (the legal enforcement process, the lived experience of participants and stakeholders, the resolution of disputes, policy implementation issues, regulation etc.), it is probably fair to say that many if not most scholars who identify as 'socio-legal' would not consider themselves to be criminologists (and vice versa). This distinction is not, in itself, significant. It does, however, raise questions as to what might constitute a socio-legal approach to the study of criminal law that wasn't simply another name for a 'criminal justice' approach, and caused me difficulties when it came to thinking about the focus for this chapter. One option was to provide a critical survey of the literature on the use of empirical research in Criminal Law courses, but that (I soon found) would not only have made for an extremely short contribution, it would not have been particularly useful. Another would have been a more general and speculative piece about how socio-legal studies might inform the curriculum, but this too seemed fraught with difficulties - precisely because I was conscious that this would simply end up arguing for greater use of the excellent criminal justice texts and research that already exist. Instead, it seemed more fruitful to focus on the legal and pedagogical expertise of those who typically teach criminal law, and of the expectations and interests of those who are studying it, and to suggest one specific way in which we might bring the lived experience of criminal law into the classroom. That is what this chapter seeks to do.
I take as my starting point the fact that most, if not all, Criminal Law courses at undergraduate level in England and Wales focus on teaching the fundamental principles of criminal law (often referred to as 'the general part', and including matters such as actus reus and mens rea, causation and defences) and a number of specific offences such as murder, assault, theft and rape categorized within 'the special part' as exemplars of fatal and nonfatal offences against the person, property offences and sexual offences. This focus reflects, first, the division of legal education and training in this jurisdiction into the 'academic' and 'vocational' stages, with the academic stage being traditionally concerned with providing students of law with the knowledge and understanding of criminal law they need before going on to learn more practical skills. Second, it reflects an emphasis on what might alternatively be called a conceptual, principled or philosophical approach in traditional criminal law student texts - an approach which tends to mean that the enforcement and application of criminal law by police, prosecutors and trial judges tend to be addressed cursorily, if at all, and when they are as introductory matters to be disposed of as briefly and succinctly as possible. Third, it is a focus that reflects the disaggregation of substantive criminal law from evidence and procedure. Evidence is not a foundation subject for the purposes of a qualifying law degree (and where it is taught on such degree courses generally incorporates civil evidence too), and criminal procedure is rarely taught as a separate subject, relegated to being studied as an element of courses on criminal justice or criminology.
From one perspective, this approach to undergraduate criminal legal education is both explicable and defensible. It is explicable on practical grounds (the substantive law has to be taught at some point, and it makes sense to do so before addressing its more practical aspects) and pragmatic ones (there are only so many hours' teaching available); it is defensible, one might argue, on the intellectual grounds that understanding the core principles and conceptual architecture, or grammar, of criminal law and criminal offences is essential to an appreciation of its operation in the real world of criminal justice institutions.
Whatever the strengths and weaknesses of these arguments (see e.g. Farmer, 1995), it would be fair to conclude that most law students complete their study of criminal law without engaging with the way in which that law plays out in practice in the trial courts. This means that their understanding of the law is limited (and here I deploy that term neutrally) to the interpretation of legislation by, and common law developments in, the criminal appeal courts. This is regrettable for a number of reasons (Maranville, 2001). One is that it gives a misleading impression of the operation of criminal law in practice: that it is concerned with the finding of facts rather than the interpretation of statute; that the majority of defendants plead guilty and that there is no trial; that most people are convicted of relatively minor and/or common offences and of those which are less frequently covered in the syllabus because they are too complex, or fail to exemplify the principles of the general part (such as offences relating to drug possession, health and safety and public order). Another is that it results in what one might call a deadening, or muffling, of the issues that have given rise to these relatively abstract principles.
That is not to suggest that the stories as recounted by appellate judges are not compelling or are lacking in human interest; rather it is that in their appellate editing, which necessarily reduces dialogue to monologue, and contestation to resolution, the vibrancy of dispute and the complex interrelationship between procedure, evidence and substantive law are lost. It is in the criminal trial process that we are able to see most vividly the interaction between legal principle and lived experience. It is in the language that is used, the questions that are asked, the answers that are given, the assumptions that are made, the implications that are drawn, and in the verdicts that are reached, that we may come to understand the way events in the world are translated into a set of discrete legal problems to which a legal resolution (and only a legal resolution) is reached.
The point I hope to make is this. Appellate judgments provide a vital and irreplaceable source of knowledge for those who wish to understand the criminal law, and they provide legal theorists and textbook writers with the raw material they need to explain, analyse and criticize 'the law', but they cannot, by definition, provide a comprehensive account of how or why that decision was reached. The arguments, counter-arguments and evidence that provide the foundation for the development of legal principle in a particular area of law are buried deep and (typically) unexcavated.
In this chapter I want to suggest that active engagement with the trial provides those teaching and studying criminal law in the undergraduate curriculum with the opportunity not only to gain a richer understanding of the law in action (a central concern of socio-legal studies) but also of the appellate cases that constitute its core. In the context of this latter aim - the more ambitious - I want to suggest that it is through considering the trials that lead to these appellate decisions that we may provoke and promote a critically reflective stance on these decisions and so increase learners' appreciation of what appellate law actually is: a distillation, reduction and abstraction of a much more complex process.
The material I use to explore these issues is drawn from the trial of Feston Konzani, and the subsequent Court of Appeal decision (R v Konzani ). I have explored this case and its doctrinal implications more extensively elsewhere (Weait, 2005a; 2007). It is, however, a good case to use in the context of the aims of this collection of essays and the particular aims of this chapter. Not only is it one that most students of criminal law will be familiar with (it is referred to in most undergraduate texts), it is one that illustrates in a particularly vivid way the issues that I have identified above. I show this in the following way. First, I describe and summarize the appeal decision in the form that most readers will find familiar. Second, I explore the trial, using transcript material to illustrate the issues that gave rise to, and informed, the appeal. Finally, I provide some reflections on the relationship between the trial and the appeal with a focus on what this can provide for those with an interest in the socio-legal dimensions of criminal law.
-  There are, of course, notable exceptions, exemplary among which is Lacey et al.'sReconstructing Criminal Law (2010).