The Criminal Justice Process

Mark Telford

Crime Control and Due Process

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Herbert Packer, The Limits of the Criminal Sanction, 1968, Stanford University Press.

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Crime Control Due Process

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Crime Control Model

Aims & objectives

• The purpose of criminal justice is to ensure security and freedom for citizens

• Through the repression of criminal conduct

• By efficiently producing a high rate of detection, conviction and punishment of offenders

• Efficient exoneration of the factually innocent (though accepts that tolerable levels of efficiency will mean that some mistakes happen)

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Crime Control Model

Mechanisms

• Trust in police to reliably determine factual innocence or guilt

• Trust in pre-trial informal administrative procedures and decision making rather than courts

• No necessary exclusion of evidence obtained through improper means

• Speedy, uniform and routine procedures

• Minimal opportunity for challenge

• Mass production of guilty pleas

• Resembles assembly-line conveyor belt in operation

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Crime Control Due Process

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Crime Control ModelDirty Harry - Do you feel lucky?

24’s Jack Bauer

Jude Dredd

‘I am the law’

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Due Process Model

Aims and Objectives

• Maintaining a scepticism about the efficacy of the criminal sanction

• ‘The aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty’

• Upholding the primacy of the individual

• Giving high priority to the protection of civil liberties as an end in itself

• Placing limits upon the use (and abuse) of official power

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Due Process Model

Mechanisms

• Distrust of reliability of police adjudication

• Demands finding of formalised ‘legal guilt’

• Presumption of innocence

• Exclusion of evidence obtained through improper means

• A right to legal advice and representation

• Many opportunities for appeal and redress

• Resembles an obstacle course in operation

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Crime Control Due Process

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Due Process Model

Atticus Finch in ‘To Kill a Mocking Bird’

‘I want the truth!’ A Few

Good Men

Police Stop and Search

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Stop and Search• Background – The Confait Affair

• Royal Commission on Criminal Procedure, 1981 (The Phillips Commission)

• Police and Criminal Evidence Act (PACE) 1984

• Associated Codes of Practice

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PACE 1984, section 1 (+Code A)• Stop and search powers

• ‘reasonable suspicion’

• any person carrying stolen items or other prohibited items (e.g. an offensive weapon)

• requires ‘objective basis’ for reasonable suspicion

• not personal factors alone

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Objective Criteria for ‘reasonable suspicion’• ‘information received’ on someone

• someone ‘acting covertly or warily’

• someone ‘carrying a certain type of article at an unusual time or place’ where there have been relevant crimes recently

• Contrast the legal position with policing working practices

• Terrorism Act 2000, section 44 (Gillan & Quinton v. UK)

Detention and interrogation in the police station

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PACE 1984 – Detention only:

• Authorised by specialist ‘custody officer’

• in order to charge the suspect

• where there is insufficient evidence to charge the suspect, in order to secure that extra evidence but only where ‘necessary’

• anyone at a police station should either be free to leave at will, or be under arrest.

• Time Limits (24, 36 or, with court order, 96 hours)

• Contrast ‘law in books’ with ‘law in action’

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Access to Legal Advice- PACE 1984• S. 58(1) A person arrested…shall be entitled, if he so

requests, to consult a solicitor privately at any time…

• S.58 (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable

suspect must be informed (and given written notice) by the custody officer of his right to see a lawyer and that this will be free of charge

Contrast ‘law in books’ with ‘law in action’

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Right to legal advice?• some suspects are simply not informed of their

rights

• some suspects’ requests are denied, ignored, or simply not acted upon

• the police use various tactics to attempt to dissuade suspects from seeking advice and to persuade them to cancel their requests

• Many suspects have negative attitudes towards defence solicitors