CRIMINAL JUSTICE SYSTEM
Introduction –
What is the Criminal Justice system? OED definition of system: “A set of things working together as parts of a
mechanism or an interconnecting network; a complex whole”. Designed to do harm to those who are brought
into the system (i.e. offenders) but does help those who have been harmed (i.e. victims).
Government departments:
Home Office
Ministry of Justice (responsibility of the courts)
Attorney General’s Office (oversee the prosecuting department CPS)
Agencies:
Police
CPS – Crown Prosecution Service
Courts
Prison
National Probation Service
Functions and aims of the CJS - "We see the criminal justice system as a complex social institution which
regulates potential, alleged and actual criminal activity within limits designed to protect people from wrongful
treatment and wrongful conviction" (Sanders, Burton and Young, 2010).
Diversion out of the system through the imposition of a police or prosecution caution) or court proceedings.
Recent years there has been a reconfiguration of criminal law and criminal justice in favour of crime emption
through risk management technique = ideological view that public safety and the interests of victims should be
given greater weight than civil liberties and the rights of suspects.
Theorising Criminal Justice
– “Better that ten guilty persons escape than that one innocent suffer” (Sir William Blackstone, 1765).
Better if neither things happened. But all systems will fail in some way – when we set up the system we have to
build up the system we are aware of errors that are coming in one way – which error is worse so we then
construe the system in that ways.
– The presumption of innocence:
“The presumption of innocence is one of the most fundamental human rights. Underlying it is the principle that
the state must not take coercive action against any individual unless it has been proved that the person is guilty
of a criminal offence and is properly subject to punishment. The guarantee that the state will not interfere with
its citizens except when it has demonstrated the justification for the interference is essential for any state with
aspirations of conforming to the liberal ideal” (Stumer, 2010).
The burden of proof is on prosecution - procedural safeguard ”innocent before proven guilty”. Every stage when
someone is arrested the police have evidence/proof that they are highly guilty. That’s why the prosecution has
the burden of proof (prove the defendant is guilty) and not on the defence to prove the innocence of the
defendant.
The standard of proof is guilt beyond reasonable doubt
“The golden thread” that runs through the CJS. Justice aswell as promoting rule of law Woolmington v DPP
[1935] AC 462
Lippke, “The Prosecutor and the Presumption of Innocence” (2014) Criminal Law and Philosophy 8: 337-
352: “Factfinders are supposed to grant defendants a ‘‘clean slate,’’ so to speak. They are to set aside what
they have heard, suspect, or believe about defendants and their alleged crimes and presume them materially
innocent. They are then supposed to expect and indeed demand that the state make its case at a high level of
proof, all the while subject to contestation by the defense. Only if the evidence ‘‘speaks’’ clearly, forcefully,
and unequivocally on the subject of the defendant’s guilt are the fact-finders to return a verdict of ‘‘guilty.’’
For only then will they and all of us have the appropriate moral assurance that we have acted with due regard
for the moral rights of individuals, rights that they presumptively enjoy”.
Undermining the presumption of innocent: Sentance discount if you plead guilty = incentive not to plead not
guilty but you are being penalised on your right to be proved innocence.
Mulcahy, “Putting the Defendant in their Place: why do we still use the dock in criminal proceedings?”
(2013) British Journal of Criminology 53: 1139-1156. The way the room is – defendant is in a dock = less
security around them which makes them look (presumption) guilty when they may not have done anything.
Other jurisidictions move the defendant from the dock where this presumption is removed.
– The adversarial style of Criminal Justice
Role of prosecution / defence. If the parites don’t want to call a certain witness, however relevant the evidence
might have been, the court can do noting about it.
“truth is discovered by powerful statemtns on both sides of the question”.
, The importance of equality of arms – if the adversarial system is a contest between rivals then you need an
even playing feeling where both sides have equal resources.
Role of judge – passive role
Gatekeeper – what evidence is allowed to be heard by the jury/lay people.
Umpire – neutral arbitrator who is guiding the trial but it is the defence and prosecution determining what
evidence is brought in; ensures that the proceeding are conducted with procedural propertiy and announcing a
decision at the conclusion of the cas.e
The relationship between official power and notions of justice – in the adversarial sysem we have lay members
involved (juries/magistrates judge) and this is because there’s a certain distrust on the officials where there’s a
need to reduce the power they have.
. System but unsystematic due to the conflict in the CJS – different ends in mind.
Disadvantages of this system are:
One or both of the aprites might delibrtely suppress relvant evidence for ractial reaosns
engage in aggressive coss-exmaination designed to shumilate and confuse the witness so that their
evidence would be percieved as unreliable.
One party might lack adequate resources or expertise needed to counterbalance the argument of their
oppentn
(In an inquisitoral system, the dominant role in conducting a criminal inquiry is supposd to be played by the court ;
judge decided what witnesses to call and examines them in person. The danger in this system is htta whoever conducts
the ivnestiagation (police, prosecutor or an examining magistrates( will come to favour one particular view of the
matter and that this will infleucne teh constuction of the dprossier. Material that would be helpful to the accused may
be excluded.
– Packer’s Models of Criminal Justice – (oversimplifications, 2 extremes - most legislation/policy will be on the
spectrum of the extremes).
• Crime Control emphasis that hat the system should operate as efficiently as possible to achieve the objective of
repression of criminal conduct in the interests of society as a whole.
Primary concern is with the threat that individuals hold to the social order. Idea that law abiding citizens and
then offenders = need to be protected from.
Strong faith in the police – best way of establishing guilt and innocent is the early stages of the system i.e the
police better then going through the court system. Strong confidence in the police. Focus = trying to get
confessions at the police stage so theres no full trial – no guilty pleas.
Assembly line – focus on speed and processing lots of cases through the system because of upholding social
freedom, a high rate of detection and conviction must happen. Resources to carry out all this work = scarce
which leads to an emphasis on informality than compliance with strict procedural rules and extra judicial
processes are welcomes as being more effective in achieving the goal of crime control. Strong focus on finality
– limited rights of appeal (once dealt with cases that’t it). Limited safeguards e.g. objectional if we have the
evidence and due to technical problems we can’t have the evidence – we know who’s guilty but can’t use the
evidence.
Cop culture is embedded in crime control norms (Sanders et al).
Its all about SPEED.
Packer concludes saying, ”when reduced to its barest essentils and operating at its most succesfful pitch, it
offers 2 possibilities: an administrative fact finding process leading (1) to exoneration of the suspect (free from
guilt – cleared from the accusation) or (2) the entry of a plea of guilty.
Crime control prioritises the conviction of the guilty, even at the riskof the conviciton of some (fewer)
innocents and with the cost of infringing the liberties of suspects to achieve its goals. (Sanders, Young and
Burton)
• Due Process –
Insists on formal, adjudicative, adversary fact-finding processes in whichthe case agiant teh accused is
tested before a public and impartial court. This is because of the unreliable evidence given by the
suspects. E.g. when witnesses describe disturbing event they tend to make errors in recollecting details or
may be animated by a bias that the police either encourage or will not seek to discover.
Sanders, Young and Burton – Aim of the process is at elast as much to protect the factually innocent as it
is to convict the factually guilty.
Concerns over the abuse of power takes precedence over reliability. Controls are needed to prevent state
officials exercising coercive powers in an oppressive manner even if this impairs the efficiency of the
system (Sanders, Young and Burton). This model is spectical of the agencies of the CJS especially of the
police. Want the case to go the trial as they have a lack of faith in the police – because the police are
heavily involved in the cases they are investigating where they become bias/objective where you may
avoid evidence that contradicts “your view”. Need to take evidence away from the police and give to the
lawyers who are more impartial. Therefore they priorities the importance of lawyers and is concerned
with protecting the innocent aswell as convicting the guilty – miscarriages of justice.
, Rules and safeguards to the accused. Obstacle course – safeguards put in place which makes it harder to
find someone guilty. E.g. wouldn’t find it problematic to withhold evidence because of the way it had
been collected = acceptable; one of the aims = uphold the rule of law and if the police haven’t followed
procedure then it is okay for the evidence to be admissable.
There is a concern of error so they reject the crime control desire for finality. There must always be a
possibility of a case being reopened totake account of some new fact that has come to light since the last
public hearing.
Upholds the ideal of equality – that everyone sould be placed in the same position as regards the
resources at their disposal to conduct an effective defence of a criminal charge. This mode; insists that
those who cannot afford a lawyer should be provided with one for free.
Provisions of the PACE are reflected here.
• "At the risk of oversimplification, one can summarise the main conflict in values between the two models in the
following way. Crime control values priorities the conviction of the guilty, even at the risk of the conviction of
some (fewer) innocents, and with the cost of infringing the liberties of suspects to achieve its goals; while due
process values prioritize the acquittal of the innocent, even if risking the frequent acquittal of the guilty, and giving
high priority to the protection of civil liberties as an end in itself. Further, whereas due process seeks to maximize
adversarialism by introducing obstacles & hurdles for the prosecution to surmount at every stage, crime control
seeks ways of ensuring that the adversarial contest never gets beyond the encounter between the police and suspect
in the police station. Due process and adversarial ideology thus can work harmoniously together, whereas crime
control values tend to subvert adversarial procedures" (Sanders, Young and Burton, 2010).
• Criticisms of the model – Choongh argues that neither of his models adequatley explains the experiences of a
significant minority of those who are arrested and detained at the police station. For those detainees there is never
any intention by the police to invoke the criminal process. He also argues that the police operate a ”social
disciplinary model” which encompasses the beleive that an acceptable and efficient wya to police socieyt is to
identify classes of people who in vaious ways reject prevailing norms because it is amongst these classes that the
threat of crime is at its most intense… the police are then jutisified in subjecting them to suveillance and
subjugation, regardless of whether the individuals selected for this treatement are violating the criminal law at any
give moment. – Pcker was constructing models of the criminal porcess and not of policiing where social
disciplining wasn’t central to his analysis. But what Choongh points out is that the police sometimes use resources
provided by the criminal process scuh as interrpogation powers to pursue some part of the broader police mission.
(Sanders, Young and Burton).
• The English System –
DUE PROCESS-
When the police have any reasno to suspect the individual than an ”adversarial” relationship id formed where
the citizen becomes a suspect.
Only if there is reasonable suspicion, coercive powers can be execrised to search or to arrest a suspect.
When it comes to arresting the suspect and detaining them this requires further due process justifications
because civil liberties are eroded by detention and its associated procedures such as interrogation and strip-
searches.
Detention – due process protecton such as the right to legal advice.
To convict, evidence must be beyond all reasonable doubt – this would mean that few factually innocent
persons are found legally guilty, or are carried toofar down the court, but it would also mean that many
factually guilty persons will be ejected from the system for lack of the required standard of evidence.
CRIME CONTROL –
Decisions to arrest and stop and search are often made on police instinct rather than reasonable suspicion
Detention for the purpose of obtaining a confession is habitually and uniformly authorised and there are
incentives if you confess and plead guilty. This would mean that areound 90% of defendants whose cases
proceed to trial, plead guilty. Proseuction evidence is therefore not tested. This would man that factually
innocent people will be found guilty and that many more factually guilty people will be cpmvocted
– The relevance of Human rights to Criminal Justice
statutory provision of Human Rights Act 1998 – have to respect human rights. Human rights obligation that
apply to the CJS.
Human rights say that certain values are worth respecting as points of principle – can’t eat into those values for
the interests of crime control without good reason. Human rught keep us ancored towards due process.
Article 2 of the ECHR protects the right to life = relevant in terms of how much force the police may be
allowed to use upon arrresting someone.
Article 3 – protects against torture or inhumane or degrading treatment which may be relevent in terms of
interegating suspects. Article 5 – right to liberty and security. All stages of the CJS where people are drawn
into their liberty are cotailed in some ways – to greater or lesser degrees – increases as you go through the
system but the system does infringe on peoples right to liberty and security – infringmenet acceptable?
o Article 2 and 3 are absolute rights where they cannot be legitmately traded off against other rights
or interests or derogaated from during times of national emergency
, Article 5- right to liberty and security of the person
Article 6 – protects you to a fair trial = directly affecting the system. Right to a fair and public hearing –
due process values. Inshrined in article 6(2) presumption of innocenc – everyone charged with a criminal
offence should be proved innocent until proven guilty according to law.
How do we resolve the conflict between the protection of HR and the goal of bringing offenders at trial and
prosecuting guilty offenders.
One way the conflict may be resolved is by the status of the rights. E.g. Article 2 – right to life, Article 3 –
right from protection from torture, these rights are absolute so they win if there is a problem. Most of the
rights are fundamental then absolute and this means that in certain listed circumstances which are attached to
the article then those rights can be eaten into. E.g. right to liberty under article 5 = not absolute but
fundamental where there are circumstances where it can be challenged e.g. provision of crime and disorder.
Bullock and Johnson, “The Impact of the Human Rights Act 1998 on Policing in England and Wales” (2012) British
Journal of Criminology 52: 630-650. – looks at whether or not our obligation under HR made a difference in how
the police acted their duties and powers in practice. One the the things that the paper found was what had actually
changed was mainly presentation – layer of beroucracy that the police had to satisfy to show that their actions didn;t
interfere with citizens HR but in practice there was not a substansive change.
Point of how easy it is to change factism in the CJS – policy and legislative changes = in practice doesn’t really work
where its just mainly presentation.
Amatrudo and Blake, Human Rights and the Criminal Justice System, Routledge, 2015.
Weber, Fishwick and Marmo, Crime, Justice and Human Rights, Palgrave Macmillan, 2014.
– Victims' rights and Criminal Justice
The victim’s charter (1990) set out the services a vicitm would expect from various CJ agenices.
Traditional view = CJS has neglected victims where it is more concerned with the rights of the potential offenders and
suspects. There is a need to balance rights through balancing the system. If we respect offenders rights then this is
harmful to victims rights = can be false – can respect both parties rights neglecting/negatively affecting the other
sides rights.
E.g. Service Rights if you protect the victims service rights then this means keeping the victim in the picture
on what is going on in their case – telling them if someone has been released from prison, bail. This doesn’t
interfere with offenders rights. Protected in this country under this code:
Code of Practice for Victims of Crime:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/476900/code-of-practice-
for-victims-of-crime.PDF
E.g. Procedural Rights – rights that would be given to victims which would allow them some say/power –
what happens in what happens to the offender e.g. bail. But innocent before proven guilty and the victim
might be bias
Drake and Henley, “’Victims’ versus ‘Offenders’ in British Political Discourse: the construction of a false
dichotomy” (2014) Howard Journal of Criminal Justice 53(2): 141-157.
Starmer, “Human Rights, Victims and the Prosecution of Crime in the 21st Century” [2014] Criminal Law
Review 11: 777-787: “Throughout that double century [19th and 20th] criminal trials were thought of, and
set up as, a straight fight between the prosecutor and the defence, with victims and witnesses having, at
most, a walk on part when their evidence was needed”.
Walklate, “Courting Compassion: victims, policy and the question of justice” (2012) Howard Journal of
Criminal Justice 51(2): 109-121.
Sanders, Young and Burton - Are victim better served by the a crime control or a due process model of
adversarial justice?
First sight = crime control model has a greater concern for the vicitms (expect when it is distorted by
managerialist targets). It offers the prospect of a hguherrate of conviction where they encourage defendants
to plead guilty which means that it reduces the need for victims to come to court and give evidence
(important in cases of domestic violence, rape and child abuse).
BUT some victims want ”their day in court” and some defendants whom are innocent refuse to plead guilty.
Due process protects vunerable victims e.g. the law now allows the admission of a documentary (includes
videotaped) evidence in some cases, including where the statement is made to a police officer and the maker
doesn’t give oral evidence through fear; some vicitims are now allowed to give their evidence behind
screens. Due process offers reduced charges or reduced sentances to secure a guilty plea. This would mena
that the sentance imposed will more accurately refelct teh vicitm;s sfferong and the vicirm may also have
had the opportunity of giving an account to the court. Some vicitms are more concerned with their story
being hear and that they be taken seriously than be protected from the rough and tumble of an adversrial
trial. Miscarriages of justice – wrongful conviction represents an injury to the vicitm, wider society and the
defendant
