1 Transformation, Resistance and Legitimacy: the role of Pre-Sentence Reports in the Production (and Disruption) of Guilt and Guilty Pleas 1 Paper Presented to the European Society of Criminology, Annual Conference 2008 Cyrus Tata 2 Abstract In both instrumental and expressive terms, the criminal process in the lower courts heavily depends on defendants being seen voluntarily to admit guilt. Measures which encourage (and can be seen to encourage) defendants to feel that they are being dealt with dignity and fairness as unique individuals tend to offer defendants some kind of space (or voice) so that their account can be listened to. Yet by offering such an opportunity the legitimacy of the guilty plea process risks overt or implicit challenge – because the defendant‟s story may (implicitly or explicitly) challenge the assumption that the guilty plea was truly voluntary. This paper considers the implications of findings from a recent study of the construction, use, and interpretation of pre-sentence reports in the Scottish intermediate courts. By providing defendants with a space in which to explain and express their guilt, and remorse, the genuineness of the guilty plea can also easily be undermined. Where defendants openly or implicitly suggest that they do not regard themselves as either legally guilty (or even if they accept they committed the act in question) as truly culpable, such „inconsistent‟ or „innocent guilty pleading‟ poses central problems to the process. Such pleading poses problems not only in practical and temporal terms, but also because „innocent guilty pleading‟ threatens to derail the moral basis of the guilt production process. How do pre-sentence report writers, defence lawyers and judges attempt to manage the menace of „innocent guilty pleas‟? 1 The research, a segment of which is reported in this paper, was funded by the UK Economic Research Council (ESRC Award Number RB000239939) over three and a half years. The project was a collaboration between the Universities of Strathclyde, Oxford, and Glasgow. My co-authors of that research were: Simon Halliday, Neil Hutton, Fergus McNeill. I am most grateful to all of the Sheriff Court judges, criminal justice social workers, defence and prosecuting lawyers and convicted persons for their assistance with this study, and in particular to Dr Nicola Burns who conducted the ethnography of the production of reports and much of the fieldwork. Previous versions of this paper were presented to the Annual Meeting of the Law & Society Association and the ISA Research Committee on the Sociology of Law Berlin 2007; and the European Society of Criminology 2008; and to a staff research seminar at Cardiff University Law School in May 2008. I wish to acknowledge the following people for their suggestions and generous advice about earlier drafts of this paper and the ideas contained in it: Lynn Mather, Sharyn Roach Anleu, Kathy Mack, Stewart Field, Richard Moorhead, Phil Thomas, Sara Steen, Mike Hough. 2 Centre for Sentencing Research, Law School, Strathclyde University, Glasgow, Scotland, G4 ORQ, UK. Cyrus.Tata@strath.ac.uk