Still Just Rhetoric? Judicial Discretion and Due Process

Judicial discretion is crucial in determining whether, in practice, those accused of crimes experience the protection of due process safeguards during the trial process. In this article, two examples of evidential rules and their judicial interpretation are examined. They are assessed in the context of the common critique that discretion is utilised primarily to the effect of denying due process protections in practice. This analysis takes place in the particular context of the punitive turn in the politics of criminal justice. A detailed examination of the interpretation of s114(1)(d) and s101(1)(d) in conjunction with s101(3) of the Criminal Justice Act 2003, regulating the admission of hearsay and bad character evidence, is carried out in order to gain insight into the modern role of judicial discretion. Conclusions are drawn by proposing some theoretical models of the relationship between statutory content, the interpretation of those provisions and the effects of these on the experience of defendants in criminal trials.