The contested trial, and the search for truth that takes places in that forum, may be central to popular perceptions of justice. For reasons documented elsewhere in this book, though, an adversarial trial has many deficiencies as a means for discerning the truth surrounding a criminal event. It has also been seen that the trial process is concerned with more than truth-finding and that this function may, on occasion, be subordinated to potentially competing values, for example by excluding potentially incriminating evidence that has been obtained unlawfully (see Chapter 5). The popular belief that a contested trial is the normal means of determining whether an offence occurred and, if so, who bears responsibility, is incorrect. Contested trials are rare. In England and Wales, the majority of offenders admit guilt pre-trial. In most cases, the only thing to be determined in court is the appropriate sentence. This might suggest that factfinding is of limited relevance in the daily life of the criminal courts. Questions of fact, however, remain vital even when a plea of guilty is tendered. An initial task for the court is to determine what precisely the offender is admitting to. This is a factual question (what does the individual accept responsibility for?) as much as it is a legal one (the offence admitted to may not reflect the real gravity of the actual conduct and/or may misrepresent their culpability at the time).

Also of potential relevance are the circumstances surrounding a guilty plea. A court might, for example, seek supporting evidence in order to stop a potential miscarriage of justice. Or a sentencer might differentiate between someone who had no realistic choice but to admit their guilt given the strength of the prosecution case, from someone who admits guilt when there is little incriminating evidence. Finally, the judge must determine the relevance of particular facts in order to impose an appropriate sentence. This assessment might appear to be wholly subjective but determinations have already been made by a Sentencing Council about what ‘facts’ are relevant to sentencing and how these ‘facts’ should influence the punishment.