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UK Justice v The Demonic and Others
The sanctity of a civilised court room demands rationality, but the laws of the distant and not so distant past in this jurisdiction are entrenched in the uncanny. Rules safeguarding the impartiality of the jury are grim “wards” against the spiritual chaos that once dictated verdicts. The infamous case of the Ouija Board jurors, aka R v Young[i] only thirty years ago is not merely a legal curiosity: it is a modern chilling echo of a centuries old struggle defining the judiciary’s absolute commitment to a secular process that refuses to share its authority with the spectral world. The ancient rule, now applied to Google and the smartphone, has always been simple: the court cannot tolerate a decision derived from an unvetted external source.
When Law Bowed To The Supernatural-Ancient Past?
For millennia, the outcome of a criminal trial in Britain was terrifyingly dependent on the supernatural, viewing the legal process as a mechanism for Divine Judgement[ii]. The state feared the power of the otherworldly more than it trusted human evidence.
Prior to the 13th century, the determination of guilt was not based on evidence but on the Judicium Dei [iii](Judgement of God). The accused’s fate lay not with the court but with the elements of the earth itself.
The Ordeal of Hot Iron: The accused would carry a piece of red-hot iron. If their subsequent wound was judged “unclean” after three days-a sign of God withholding his grace-the accused was condemned to death. The burden of proof was literally placed upon a miracle.
The Ordeal of Cold Water: This was an essential test in early witch-finding. If the bound accused floated, the pure water was thought to reject them as impure agents of the Devil, condemning them as guilty. The collapse of these ordeals after the Fourth Lateran Council in 1215 was the first, forced act of separation between the secular law and the spiritual realm, necessitating the creation of a human, rational jury[iv]
Legislating against the Demonic: The Witchcraft Acts
Even after the rise of the jury, the judiciary was consumed by the fear of the demonic. The Act against Conjuration, Witchcraft and dealing with evil and wicked Spirits 1604 (1 Jas.4 1. c. 12)[v] made contacting the demonic a capital felony, ensuring that the courtroom remained a battleground against perceived occult evil.
The Pendle Witch Trials (1612): This event is a spectral stain on UK legal history. Ten people were executed based on testimony that included spectral evidence, dreams, and confessions extracted under duress. The judges and juries legally accepted that the Devil and his agents had caused tangible harm. The failure to apply any rational evidential standards resulted in judicial murder.[vi]
Even the “rational” repeal in the Witchcraft Act 1735 (9 Geo. 2. c. 5),[vii] which only criminalised pretending to use magic (fraud), haunted the system. The prosecution of medium Helen Duncan in 1944 under this very Act, for deceiving the public with her spiritualist services, demonstrated that the legal system was still actively policing the boundaries of the occult well into the modern era, fearful of supernatural deceit if not genuine power.
The Modern Séance: R v Young and the Unholy Verdict
The 1994 murder trial of Stephen Young[viii], accused of the double murder of Harry and Nicola Fuller, brought the full weight of this historical conflict back into the spotlight. The jury, isolated and burdened with the grim facts of the case, succumbed to an uncanny primal urge for absolute certainty.
The jury had retired to a sequestered hotel to deliberate the grim facts of the double murder.During a break in deliberations on the Friday night, four jurors initiated a makeshift séance in their hotel room. They used paper and a glass to fashion a crude Ouija board, placing their life-altering question to the “spirits” of the deceased victims, Harry and Nicola Fuller.
The glass, according to the jurors’ later testimony, moved and chillingly spelled out the words “STEPHEN YOUNG DONE IT.”
The Court of Appeal, led by Lord Taylor CJ, ruled that the séance was a “material irregularity” because it took place outside the official deliberation room (in the hotel). This activity amounted to the reception of extrinsic, prejudicial, and wholly inadmissible evidence after the jury had been sworn. The verdict was quashed because a system based on proof cannot tolerate a decision derived from ‘the other side’
The core rule remains absolute: the verdict must be based only on the facts presented in court. The modern threat to this principle is not possession by a demon, but digital contamination, a risk the law now treats as functionally identical to the occult inquiry of 1994.
The Digital Contamination: R v Karakaya[ix]
The Criminal Justice and Courts Act 2015 (CJCA 2015) was the formal legislative “ward” against the digital equivalent of the séance.
The New Medium: In the 2018 trial of Huseyin Karakaya, a juror used a mobile phone to research the defendant’s previous conviction. The smartphone became the unauthorised medium. The Legal Equivalence: The Juries Act 1974, s 20A (inserted by CJCA 2015)[x] makes it a criminal offence for a juror to intentionally research the case. In the eyes of the law, consulting Google for “defendant’s past” is legally equivalent to consulting a ghost for “who done it.” Both are dangerous acts of unauthorized external inquiry.
The Court of Appeal, in R v Karakaya quashed the conviction because introducing external, inadmissible evidence (like a prior conviction) created a real risk of prejudice, fundamentally undermining the fair trial principle raised in Young.
The lesson of the Ouija Board Jurors and the digital contamination in R v Karakaya is a chilling warning from the past: the moment the courtroom accepts an external, unverified source—be it a spirit or a search engine—the entire structure of rational justice collapses, bringing back the judicial catastrophe of the Pendle Trials. In 2025, the UK criminal justice system continues to fight the ghosts of superstition, ensuring the verdict is determined by the cold, impartial scrutiny of the facts.
[i] R v Young [1995] QB 324
[ii]R Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (Oxford University Press 1986). (https://amesfoundation.law.harvard.edu/lhsemelh/materials/BartlettTrialByFireAndWater.pdf)
[iii] J G Bellamy, The Criminal Law of England 1066–1307: An Outline (Blackwell 1984) p42
[iv] Margaret H. Kerr, Richard D. Forsyth, Michael J. Plyley
The Journal of Interdisciplinary History, Vol. 22, No. 4 (Spring, 1992), pp. 573-595
[v] https://archives.blog.parliament.uk/2020/10/28/which-witchcraft-act-is-which/
[vi] https://www.historic-uk.com/CultureUK/The-Pendle-Witches/
[vii] Witchcraft Act 1735 (9 Geo. 2. c. 5) https://statutes.org.uk/site/the-statutes/eighteenth-century/1735-9-george-2-c-5-the-witchcraft-act/
[viii] R v Young [1995] QB 324
[ix] R v Karakaya[ 2020] EWCA Crim 204
[x]The Juries Act 1974, s 20A https://www.legislation.gov.uk/ukpga/1974/23/section/20A
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What cost justice? What crisis?
The case of Andrew Malkinson represents yet another in the long list of miscarriages of justice in the United Kingdom. Those that study criminology and those practitioners involved in the criminal justice system have a reasonable grasp of how such cases come about. More often than not it is a result of police malpractice, negligence, culture and error. Occasionally it is as a result of poor direction in court by the trial judge or failures by the CPS, the prosecution team or even the defence team. The tragic case of Stefan Kiszko is a good example of multiple failures by different bodies including the defence. Previous attempts at addressing the issues have seen the introduction of new laws such as the Police and Criminal Evidence Act 1984 and the Criminal Procedure and Investigations Act 1996. The former dealing in part with the treatment of suspects in custody and the latter with the disclosure of documents in criminal proceedings. Undoubtedly there have been significant improvements in the way suspects are dealt with and the way that cases are handled. Other interventions have been the introduction of the Crown Prosecution Service (CPS), removing in part, charging decisions from the police and the introduction of the Criminal Cases Review Commission (CCRC) to review cases where an appeal has been lost but fresh evidence or information has come to light.
And yet, despite better police training regarding interviews and the treatment of suspects, better training in investigations as a whole, new restrictive laws and procedures, the independence of the CPS, the court appeal system and oversight by a body such as the CCRC, miscarriages of justice still occur. What sets the Malkinson case aside from the others appears to be the failure of the CCRC to take action on new information. The suggestion being that the decision was a financial one, with little to do with justice. If the latter is proved to be true, we will of course have to wait for the results of the inquiry, then how can anyone have any confidence in the justice system?
Over the years we have already seen swingeing cuts in budgets in the criminal justice system such that the system is overloaded. Try to pop into the local police station to make a complaint of a crime, you won’t find a station open to the public. Should you have been unfortunate enough to have been caught for some minor misdemeanour and need to go to magistrates’ court for a hearing, you’ll be lucky if you don’t have to travel some considerable distance to get there, good luck with that if you rely on public transport. Should you be the victim of a more serious crime or indeed charged with a more serious offence, triable in crown court, then you’ll probably wait a couple of years before the trial. Unfortunate if you are the alleged offender and on remand, and if you are the victim, you could be forgiven for deciding that you’d rather put it all behind you and disengage with the system. But even to get to that stage, there has to be sufficient evidence to secure a prosecution and it has to be in the public interest to do so. Your day in court as a victim is likely to be hang on the vagaries of the CPS decision making process. A process that has one eye on the court backlog and another on performance targets. Little wonder the attrition rate in sex offences is so high. Gone are the days of letting a jury decide on occasions where the evidence hangs on little more than one person’s word against the other.
Andrew Malkinson and his legal representative have called for a judicial review, a review where witnesses can be compelled to attend to give evidence and documentary evidence can be demanded to be produced. Instead, the government has said there will be an independent inquiry. On a personal note, I have little faith in such inquiries. My experience is that they are rarely independent of government direction and wishes. Andrew Malkinson’s case is a travesty and the least that can be done is to have a proper inquiry. I suspect though that the Malkinson case might just be the tip of the iceberg. The Criminal Justice System is in crisis but budgetary restraint and political whim seem to be far more important than justice. We can look forward to more finger pointing and yet more reorganisation and regulation.
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What price justice?
Having read a colleague’s blog Is justice fair?, I turned my mind to recent media coverage regarding the prosecution rates for rape in England and Wales. Just as a reminder, the coverage concerned the fact that the number of prosecutions is at an all-time low with a fall of 932 or 30.75% with the number of convictions having fallen by 25%. This is coupled with a falling number of cases charged when compared with the year 2015/16. The Victims’ Commissioner Dame Vera Baird somewhat ironically, was incensed by these figures and urged the Crown Prosecution Service to change its policy immediately.
I’m always sceptical about the use of statistics, they are just simple facts, manipulated in some way or another to tell a story. Useful to the media and politicians alike they rarely give us an explanation of underlying causes and issues. Dame Vera places the blame squarely on the Crown Prosecution Service (CPS) and its policy of only pursuing cases that are likely to succeed in court. Now this is the ironic part, as a former Labour member of parliament, a minister and Solicitor General for England and Wales, she would have been party to and indeed helped formalise and set CPS policy and guidelines. The former Labour Government’s propensity to introduce targets and performance indicators for the public services knew no bounds. If its predecessors, the Conservatives were instrumental in introducing and promulgating these management ideals, the Labour government took them to greater heights. Why would we be surprised then that the CPS continue in such a vein? Of course, add in another dimension, that of drastic budget cuts to public services since 2010, the judicial system included, and the pursuit of rationalisation of cases looks even more understandable and if we are less emotional and more clinical about it, absolutely sensible.
My first crown court case involved the theft of a two-bar electric fire. A landlady reported that a previous tenant had, when he moved out, taken the fire with him. As a young probationary constable in 1983, I tracked down the culprit, arrested him and duly charged him with the offence of theft. Some months later I found myself giving evidence at crown court. As was his right at the time, the defendant had elected trial by jury. The judicial system has moved a long way since then. Trial by jury is no longer allowed for such minor offences and of course the police no longer have much say in who is prosecuted and who isn’t certainly when comes to crown court cases. Many of the provisions that were in place at the time protected the rights of defendants and many of these have been diminished, for the most part, in pursuit of the ‘evil three Es’; economy, effectiveness and efficiency. Whilst the rights of defendants have been diminished, so too somewhat unnoticed, have the rights of victims. The lack of prosecution of rape cases is not a phenomenon that stands alone. Other serious cases are also not pursued or dropped in the name of economy or efficiency or effectiveness. If all the cases were pursued, then the courts would grind to a halt such have been the financial cuts over the years. Justice is expensive whichever way you look at it.
My colleague is right in questioning the fairness of a system that seems to favour the powerful, but I would add to it. The pursuit of economy is indicative that the executive is not bothered about justice. To borrow my colleague’s analogy, they want to show that there is an ice cream but the fact that it is cheap, and nasty is irrelevant.
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White and Male: the diversity of the judiciary
My name is Anita and I graduated with a Criminology degree in 2016. I did have a great time at the University of Northampton. The course was challenging and intense however this meant that it provided me with the opportunity to overcome my barriers and develop myself both academically and personally. I miss going to lectures and seminars, revising for exams and even writing the dissertation. If you are reading this and you are in your third year, you are probably thinking that I am mad but I do miss it. I can’t help it! I can honestly say that going to University was the best decision I ever made and I would love to go back and do a postgraduate course. My advice to all students is enjoy it because time goes by so fast.
Before we start, please stop and think…… What percentage of court judges would you guess are women? How many members of the judiciary are from ethnic minorities?
If your guess is that we have a substancial amount of women and members from ethnic minorities in the judiciary, then this blog post might dissapoint you.
Let’s define the judiciary before we progress any further. The judiciary can be defined as ‘the judges of a country or a state, when they are considered as a group’ (Hornby, 2000, p.700).
The judiciary in the UK is dominated by Oxbridge educated white middle-class men. It is estimated that three quarters of all judges in England and Wales are male and 95% are white (Lieven, 2017). The gender imbalance can be well illustrated by looking at the Supreme Court. There is only one woman among the 12 Justices on the Supreme Court. Lady Hale is the only woman ever to serve on the Court and all of the judges are and have always been white. Only Armenia and Azerbaijan have lower proportions of women in their judiciary than the UK (Lieven, 2017). This is unacceptable in 2018, changes must be made to address this gender imbalance.
In terms of race, as at 1 April 2017, only 7% of court judges were Black, Asian or Minority Ethnic (BAME). Of these Asian and Asian British accounted for 3% and the remaining three groups, Black and Black British, Mixed Ethnicity and Other Ethnic Group at around 1% each (Ministry of Justice, 2017).
This shows that judges are not reflective of wider society. This is a significant problem because the public should be confident that the judiciary delivers justice fairly. The lack of diversity means that concerns about the legitimacy and objectivity of judgements may be raised.
There are three main explanations for the continuing lack of diversity. The first explanation is that there are not enough women, BAME people and people from less privileged backgrounds who would be suitable for appointment. However, I would question the validity of this argument. This explanation seems to suggest that women or BAME people might be lacking lacking adequate knowledge or experience. There is no evidence to support this argument.
The second explanation given is that women and BAME candidates do not apply for appointment. However, it could be argued that the issue is more complicated than simply failing to apply. For example, Allen (2009) found that when BAME candidates and solicitors do apply for appointment they are significantly less likely to be successful than white candidates or barristers. This shows that the issue is not the lack of applications received from women or BAME candidates but perhaps the discriminatory recruitment process.
The third explanation is that the key principle governing our appointments to judicial office is merit. Unfortunately, the term ‘merit’ is not defined, but the implication is that achieving merit and diversity are at odds.
In conclusion, the lack of diversity in the judicial system is very concerning and should be addressed as soon as possible. This needs to be done to ensure that our justice system is fair, accessible and efficient. It is in our interest to produce a judiciary of the highest quality that reflects the make-up of our nation. Difference should be valued and not feared.
References
Allen, A (2009) Barriers to Application for Judicial Appointment Research. London: Judicial Appointments Commission.
Hornby, A.S (2000) Oxford Advanced Learner’s Dictionary. 6th ed. Oxford: Oxford University Press.
Lieven, N (2017) Increasing judicial diversity. London: Justice.
The Ministry of Justice (2017) Judicial Diversity Statistics 2017. London: MOJ.
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The never-changing face of justice
There are occasions that I consider more fundamental questions beyond criminology, such as the nature of justice. Usually whilst reading some new sentencing guidelines or new procedures but on occasions major events such as the fire at Grenfell and the ensuing calls from former residents for accountability and of course justice! There are good reasons why contemplating the nature of justice is so important in any society especially one that has recently embarked on a constitutional discussion following the Brexit referendum.
Justice is perhaps one of the most interesting concepts in criminology; both intangible and tangible at the same time. In every day discourses we talk about the Criminal Justice System as a very precise order of organisations recognising its systemic nature or as a clear journey of events acknowledging its procedural progression. Both usually are summed up on the question I pose to students; is justice a system or a process? Of course, those who have considered this question know only too well that justice is both at different times. As a system, justice provides all those elements that make it tangible to us; a great bureaucracy that serves the delivery of justice, a network of professions (many of which are staffed by our graduates) and a structure that (seemingly) provides us all with a firm sense of equity. As a process, we identify each stage of justice as an autonomous entity, unmolested by bias, thus ensuring that all citizens are judged on the same scales. After all, lady justice is blind but fair!
This is our justice system since 1066 when the Normans brought the system we recognise today and even when, despite uprisings and revolutions such as the one that led to the 1215 signing of the Magna Carta, many facets of the system have remained quite the same. An obvious deduction from this is that the nature of justice requires stability and precedent in order to function. Tradition seems to captivate people; we only need a short journey to the local magistrates’ court to see centuries old traditions unfold. I imagine that for any time traveler, the court is probably the safest place to be, as little will seem to them to be out of place.
So far, we have been talking about justice as a tangible entity as used by professionals daily. What about the other side of justice? The intangible concept on fairness, equal opportunity and impartiality? This part is rather contentious and problematic. This is the part that people call upon when they say justice for Grenfell, justice for Stephen Lawrence, justice for Hillsborough. The people do not simply want a mechanism nor a process, but they want the reassurance that justice is not a privilege but a cornerstone of civic life. The irony here; is that the call for justice, among the people who formed popular campaigns that either led or will lead to inquiries often expose the inadequacies, failings and injustices that exist(ed) in our archaic system.
These campaigns, have made obvious something incredibly important, that justice should not simply appear to be fair, but it must be fair and most importantly, has to learn and coincide with the times. So lady justice may be blind, but she may need to come down and converse with the people that she seeks to serve, because without them she will become a fata morgana,a vision that will not satisfy its ideals nor its implementation. Then justice becomes another word devoid of meaning and substance. Thirty years to wait for an justice is an incredibly long time and this is perhaps this may be the lesson we all need to carry forward.
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Justice on Trial
Last weekend I was fortunate enough to be treated to theatre tickets for Agatha Christie’s Witness for the Prosecution. The setting – London’s County Hall – was exquisite, the play sublime and the actors fabulous. An afternoon of sheer escapism, even for a die hard Christie fan like myself. Having read the short story/play many times is no replacement for seeing this on the stage. The theatre offers the opportunity to see the action from all perspectives; you can put yourself in the shoes of the defendant, the court actors and of course, the witnesses. Such a perspective vividly demonstrates the immense power of the State, not only through physical violence (although this is also evident) but through verbal dexterity. To see the defendant – Leonard Vole – on trial; so small and defenceless against the majesty of the courtroom, is thought provoking. Furthermore, this environment is staffed by legal professionals, who unlike him, understand the world in which they operate. The cut and thrust of legalistic argument performed in the play (and in modern day courts daily) conceals the sheer ferocity of authority’s attack on the individual. Remember at the time the play was written, the death penalty was still in force, and Leonard Vole is on trial for the capital crime of murder. In essence, he is openly fighting for his very life, but subjected to the machinations and mediation of professionals who openly profess to be seeking justice. When he tries to speak, to argue, to cajole, he is silenced. There is no place for the defendant’s perspective unless it is expressed via the mandated professional who speaks on his (or her) behalf.
In the twenty-first century (and indeed, for the latter part of the twentieth century), capital punishment in the UK has not been a sentencing option. Whilst defendants may not be faced with a possible date with the hangman, the finality of sentencing and punishment is no laughing matter. Whilst there is no doubt that dramatic denouements have their place in the theatre, in the serious business of the criminal courts such antics seem out of place. If we look at the criminal court as a theatrical scene, we start to observe all manner of incongruity (cf. Carlen, 1976). For starters; the language used and the costumes worn. For anyone that has ever grappled to understand the works of Shakespeare or the Brontë’s, such reading requires patience and perseverance to understand the beauty of such writing. In 2018, we would not request that our surgeons operate on us without the benefit of anaesthesia, neither would we want to be treated with procedures such as bloodletting or trepanning. Similarly, we don’t expect soldiers to carry muskets or form into schiltrons just because that’s how it used to be. Yet we accept and arguably, expect our courts to run as if they were stuck in time. What chance does the individual defendant have in this archaic, theatrical setting? After all, they are the star of the show, yet they have neither costume, nor the opportunity to learn their lines. It is hard to argue, that such practices are conducive to the pursuit of justice.
On the surface, going to the theatre appears to offer a pleasurable break from academia, yet the reality is it offers the opportunity to consider criminology from a novel perspective. Reading (and you all know how keen I am on reading!!) is only part of Criminology; talking, listening, thinking and exploring away from the classroom are equally important. My advice; get out, explore – the arts; theatre, cinema, literature, museums – and add this experiential knowledge to your academic studies. See things from a different perspective and unleash your Criminological Imagination (Young, 2011).
References:
Carlen, Pat, (1976), ‘The Staging of Magistrates’ Justice,’ The British Journal of Criminology, 16, 1: 48–55
Christie, Agatha, (2018), Witness for the Prosecution, Directed by Lucy Bailey. London County Hall, [11 February 2018]
Young, Jock, (2011), The Criminological Imagination, (London: Polity)
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A Problem with the Criminal Justice System?
Nahida is a BA Criminology graduate of 2017. Her dissertation, ‘On Degradation and Shaming’ explored the problems noted in this post.
Throughout studying for a Criminology degree, we are lectured upon the causation of crime, and how there is no, one single cause. However, it is interesting to see how the stereotypes that were once instilled inside us, are no longer a part of our daily voice of reason. We begin to question the very organisation, many of us want to become a part of; that being the criminal justice system itself. We come to realise, that the system, as most things is flawed.
It is public knowledge that the criminal justice system is full to the brim with defendants, offenders, victims and the innocent; amongst many other people. Therefore, as a result of these massive caseloads, the whole process from a crime being reported, to the guilty being sentenced, can become similar to a factory-line; making the procedure very impersonal. Justice can often be delayed and denied. This has a huge impact on all the parties involved; including the ones accused of a crime i.e. the defendants.
Throughout the whole process, defendants can often feel as though they are being discriminated against. It has been found that the criminal justice system, particularly the courtrooms create distance between society and the defendant. Courtrooms in England and Wales are set up in a manner in which the defendants are removed, and made to stand out of the ordinary. They are often placed in their own cage of sorts, and told to not speak, unless spoken to. This can leave defendants, who are potentially innocent, feel degraded and shamed. Courtrooms can often leave defendants without a voice, prohibiting them to feel, or even express remorse. Disallowing an offender to express remorse, can be detrimental to their rehabilitation; and even the victim’s lives. We, as a society, can have hope for criminal rehabilitation, but the way in which our justice system is set up, can hinder that very process.
Through observations made at the local crown court, it has been found that judges tend to not address the causation of the supposed crime. It is understood that people do not commit crime in a vacuum. Something has to lead them to it. Therefore, not allowing one to truly comprehend what has caused the alleged crime in the first place, can be argued as problematic, for the root issue cannot be solved, if it is not identified in the first place. This could be argued as one of the many reasons why there still remains to be a high reoffending rate. To stop reoffending, one must address the causation. However, it can be found that many parts of our criminal justice system does not perform such investigations. Therefore, how can we expect the system to achieve its aim of reducing crime, when it is potentially causing further criminality, without even intending to?
Thoughts from the criminology team 
