THERE IS NO such thing in England and Wales as a criminal justice system; only a series of government departments and public agencies that contribute to a process of justice in response to a variety of criminal events.

Each contributor has its own budget, and vies competitively for public funding; each has its own agenda for its functioning towards declared aims of criminal justice. Inevitably, there is much overlapping of functions (if not duplication) and even helpful collaboration.

In their impressive work, Where next for Criminal Justice?,¹ David Faulkner and Ros Burnett argue that when the criminal justice ser­vices had to be managed in accordance with the Government’s Financial Management Initiative, together with policies for effi­ciency, economy and effectiveness in the 1980s, a system evolved. Nevertheless they recognise the view of the criminologist Lucia Zedner in her essay ‘Reflections on Criminal Justice as a Social Institution’,^{[151] [152] that criminal justice is ‘no more than a series of largely independent organisations with different cultures, professional ethos and practices which come together and interact only insofar as is necessary to pursue their respective goals’. System or no sys­tem, the independence of the judiciary and the operational inde­pendence of the criminal court of trial dictates (as I will demonstrate) a separate identity.}

The aim of the present chapter is thus to examine the role and function of the criminal courts, simpliciter, and their relationship to the other agencies contributing to the overall public response to criminality. The focus is the trial of accused persons for the com­mission of a criminal offence. The prosecution of an offender is pre­scribed by Article 6 of the European Convention on Human Rights, whose language and purpose is pure English common law. Our sys­tem of trial by judge and jury is fully compliant with the Convention, as the recent decision of the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium^[153] demonstrated.

At the outset it is necessary to consider comparatively the basic models of criminal trial within the criminal processes of the Member States of the Council of Europe. It is, however, neither appropriate nor fully accurate to separate the judicial systems of the world into common law and civil law jurisdictions, any more than to divide them between those that observe, on the one hand, adver- sarial/accusatorial traditions (favoured by Anglo-Saxon systems) and, on the other hand, those that are organised according to the inquisitorial model which favours either a professional tribunal or a court of professional judge and lay members. Such a binary vision is gradually adapting to borrowings that increasingly have a ten­dency to render the two main models more like each other. But while the dissimilarities remain a stumbling block, there is, I ven­ture to think, a consensus of principles encompassed in modern criminal justice that renders the traditional labelling of the modes of trial by practitioners and commentators unhelpful and unreward­ing. Under the aegis of the European Court of Human Rights (the international judicial arm of the Council of Europe) with its explicit recognition of the margin of appreciation accorded to the criminal jurisdiction of the Member States, there is now (in the twenty-first century) a discernible commonality of purpose in responding to crime.

It is a common, if not universal, claim of judges and criminal law practitioners that they are agents of crime control. To provide an example (Barbara Wootton taught us all that to make any generalisa­tion, you need at least two examples) I rely on only one typical, lawyerly statement from the most liberal judge of our time. In R v Powell and another,^[154] Lord Steyn declared that criminal justice ‘exists to control crime’. (One should observe that New Labour upgraded crime prevention as the main purpose, as distinct from the administration of criminal justice.) Their Lordships in Powell were dealing, not very satisfactorily, with the case of joint criminal enterprise where a number of individuals (often organised gangs of youths) had been engaged in violent conduct that had resulted in fatal injury inflicted by one (often unidentified) individual with others participating in various degrees of culpability for the victim’s death. The reach (indeed, overreach) of the criminal law to second­ary liability in homicide on those participating in violent behaviour often discloses a pronounced judicial desire to affix criminalisation beyond what is either necessary or just. The assumed controlling of criminal conduct through the instant trial dictates an enlargement of criminal responsibility to secondary offenders - an undeclared claim to control of crime in society generally. It is transparently all part of the judicial attitude that reflects its purpose in deterring criminal behaviour by potential offenders.

A more recent example of judicial outreach to meet the perceived requirements of public policy is the Supreme Court decision in R v Gnango.^[155] The facts were decidedly odd, but simple. A and B volun­tarily engaged to fight out their rivalry with pistols. It was a gun­fight. A fired the first shot, without effect. B retaliated; one of his bullets killed a young woman who was innocently walking home from work.

Lord Phillips and Lord Judge, with Lord Wilson agreeing, took the extremely pragmatic approach of saying that it matters not whether A was a principal or a secondary party, he and B both acted dangerously in a public place and each should be held accountable for the death of the victim. Either could have killed someone and it was just fortuitous that the person who fired the fatal shot was B. These judges, and Lord Dyson, preferred the secondary liability route to responsibility, but they agreed with Lords Brown and Clarke that principal liability could also be used as the basis for liability. Is it right that you can just pluck somebody out of an unruly mob and say that this person could easily be the one who caused the relevant harm, and that he should therefore be held responsible for it, even if it is known that he did not actually do it himself? Can you pretend that he intentionally assisted or encour­aged the commission of an offence, when there is no evidence of him meaning to help or encourage its commission? The law must further the interests of the community, but there must be a rational, formalist basis for attributing responsibility for crime. Otherwise we will have a society in which judges can simply say that we should not let a defendant off, so we will hold him liable. Once again, our highest judges are making a mess of a civilised system of criminal justice. They see themselves as instruments of crime con­trol; their aim is chimerical.