Abstract

http://ssrn.com/abstract=1407968
 
 

Footnotes (79)



 


 



Autonomy and Accuracy in the Development of Fair Trial Rights


John D. Jackson


University of Nottingham - School of Law


University College Dublin Law Research Paper No. 09/2009

Abstract:     
This paper seeks to argue that although fair trial standards are commonly portrayed as a set of minimum coherent standards applicable across a range of different legal traditions, there is a tension between those standards that accentuate the importance of individual will and autonomy and those that emphasise the importance of accurate outcome through an effective defence. This tension has been managed for the most part by enabling individuals to be represented by legal counsel who present the defence on the basis of their clients' instructions. Human rights law has recognised the importance of legal assistance at trial and pre-trial stages of criminal procedures. Despite this certain developments in domestic and international criminal processes have led to a growing number of cases being decided without an effective defence being provided by legal counsel. Such cases have been disposed on the basis of defendants' 'consent' and this supposed autonomy has held sway over any effective defence.

The paper begins by tracing different dimensions of the fair trial standards and exposes a tension between the need for defendants to exercise autonomy over their case and the need for an effective defence. The paper then argues that the right to counsel has acted as a bridge between these two competing demands. Recent developments are then reviewed which have served to impede counsel from providing an effective defence in the interests of the client's freedom to choose how her case should be handled. The examples examined are the growing number of cases that are pleaded or diverted out of court with no real examination of the strength of the prosecution case, the emergence of special advocates who do not take instructions from defendants and the increasing tendency for defendants to represent themselves in certain types of cases. The paper concludes by arguing that we need to make a sharper distinction between individual rights and procedural standards and argues for greater attention to be given to the latter on the design of criminal procedure.

Number of Pages in PDF File: 19

working papers series


Download This Paper

Date posted: May 22, 2009  

Suggested Citation

Jackson, John D., Autonomy and Accuracy in the Development of Fair Trial Rights. University College Dublin Law Research Paper No. 09/2009. Available at SSRN: http://ssrn.com/abstract=1407968 or http://dx.doi.org/10.2139/ssrn.1407968

Contact Information

John D. Jackson (Contact Author)
University of Nottingham - School of Law ( email )
Law and Social Science Building
University Park
Nottingham, NG7 1BB
United Kingdom
Feedback to SSRN


Paper statistics
Abstract Views: 1,243
Downloads: 274
Download Rank: 63,014
Footnotes:  79

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.250 seconds