Book Review: Defendant Participation in the Criminal Process
| Date | 01 January 2018 |
| DOI | 10.1177/1365712717714650 |
| Published date | 01 January 2018 |
| Subject Matter | Book Review |
Book Review
Defendant Participation in the Criminal Process. By Abenaa Owusu-Bempah. Abingdon: Routledge,
2016. xxvii þ200 pp, £60 (hbk). ISBN: 9781138019577. £27.99 (ebook). ISBN: 9781315767857.
In England and Wales, the idea that a defendant may theoretically sit back and put the prosecuti on
to proof reflects the proposition that in our (broadly) adversarial system a defen dant cannot be
compelled to cooperate with the state’s prosecution against him. In reality, this rhetorical commit-
ment is belied by modern inroads into the privilege against self-incrimination (Saunders vUK
(1997) 23 EHRR 313) and the right to silence (ss. 34–39 of the Criminal Justice and Public Order
Act 1994), as well as by defence disclosure obligations (ss. 5–6D of the Criminal Procedure and
Investigations Act 1996) and so-called ‘reverse burdens’ (see for example s. 2(2) of the Homicide
Act 1957). Indeed, has there ever been a time when there were no obligations on the defenda nt at
alltoassistinhisownprosecution?
Abenaa Owusu-Bempah’s book, Defendant Participation in the Criminal Process (2016), is
set within this context, and makes the case that these inroads are unjustifiable in a liberal
democracy committed to upholding the autonomy and dignity of individuals. Roughly speaking,
the book can be split into two Acts: the first involves the creation and justification of a norma-
tive framework in which a defendant should not be compelled actively to assist the state; the
second then applies that normative framework to the current law in England and Wales con-
cerning the privilege against self-incrimination, the right to silence, defence disclosure require-
ments and ‘reverse burdens’.
Owusu-Bempah makes it clear from the beginning that her analysis is restricted to so-called
‘active participation’, and not ‘passive participation’ (Owusu-Bempah, 2016: 2–3). Active partic-
ipation involves the defendant answering questions and providing evidence, while passive partic-
ipation only requires the defendant to submit to external forces (such as in being detained, or being
subject to questioning). Owusu-Bempah then launches into describing and justifying her own theory
of the criminal process. The theory advanced is centred on the proposition that the criminal process
is a mechanism through which the state is called to account for its accusations against its citizens.
Although Owusu-Bempah acknowledges that her theory is culturally relativetoEnglandandWales
(Owusu-Bempah, 2016: 13), it is unfortunate that cultural factors were not explored further, or
perhaps even compared with an extreme opposite such as Japan, where active defendant partici-
pation with the criminal process is considered by many to be a moral duty (Braithwaite: 1989:
61–65 and ch. 10).
Owusu-Bempah’s theory is then expanded and built upon throughout the remainder of the book’s
first Act, drawing from a variety of philosophical, legal and historical sources. In Chapter 2,
Owusu-Bempah analyses the aims and values of the criminal justice process, as stated in Rule
1.1(2) of the Criminal Procedure Rules 2015, with regard to how compatible they are with her
theory. The classic models of analysing criminal procedure are then cut through in Chapter 3
(adversarialism/inquisitorialism and crime control/due process) before Owusu-Bempah proposes
her own framework as a new normative ‘yardstick’ whereby criminal justice systems can be
The International Journalof
Evidence & Proof
2018, Vol. 22(1) 79–81
ªThe Author(s) 2017
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DOI: 10.1177/1365712717714650
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