A Crime Control Central Justice

At the core of the criminal justice system is the delivery of justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent. It is responsible for detecting crime and bringing it to justice; and carrying out the orders of the court, such as collecting fines, and supervising community and custodial punishment, therefore it involves a multitude of agencies. An ideal criminal justice system must be able to help reduce crime by bringing more offences to justice, and to raise public confidence that the system is fair and will deliver for law-abiding citizen. In short, an ideal criminal justice system must work to prevent crime from happening in the first place, to meet the wider needs of victims, and to help turn offenders away from crime. According to the academic Herbert Packer, the aims of the criminal justice system can be divided into the due process model and the crime control model. The latter places most importance on convicting the guilty, taking the risk that occasionally some innocent people will be convicted. Therefore, as stated in the question, a crime control central justice may reduce the crime rate by deterrence to the society but as a side effect miscarriage of justice is more likely to be happened.

Then we need to consider that does a crime control model necessarily reduce crime rate. Although the United Kingdom government kept emphasize on the idea of “Get rid of crime”, but the result still unsatisfactory. According to the Home Office, there were around 880,000 “Violence against the person” crimes in England and Wales in 2008–9, equivalent to 16 per thousand people in England and Wales. There were about 50,000 sexual offences during the same period, just under 1 per thousand. Other areas of crime included robbery (80,000; equivalent to around 1.5 crimes/per thousand), burglary (285,000; 5 per thousand) and vehicle theft (150,000; 3 per thousand). Based on the Government’s preferred comparison system, this marked a 7% decline in crime on the year before. However the figure is unconvinced since it includes those plead guilty before trial. Accused may want to plead guilty in return for a lesser sentence because the court will find a plea of guilty with remorse as mitigating factor (Lord Parker in R v Turner).

We should compare these circumstances with those in United State. While the crime rate had risen sharply in the late 1960s and early 1970s, bringing it to a constant all-time high during much of the 1980s, it has drastically declined ever since 1993. One possibility is the introduction of the Three Strikes Law in 1993 by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. However, such result is not necessarily achieved by over emphasized on crime control model. As contrary, striking a balance seems to be a more justify solution. Refer back to the example in the United State, except the strict Three Strikes Law, the legalisation of abortion and increase of the due process rights (since it reduces the possibility of miscarriage of justice) also contribute to the drop in crime rate.

A crime control centred criminal justice system will necessarily deprive the accused rights. Since the police authorities are responsible for crime detection and apprehension of the wrongdoer, they should not be given inappropriate power. Section 1 Police and Criminal Evidence Act 1984 (PACE) provides the police power to search a person or vehicle in public for stolen or prohibited articles where he has reasonable grounds for suspecting that stolen or prohibited articles could be found. The Criminal Justice Act 2003 extended the power to stop and search to cover searches for articles intended to cause criminal damage. The requirement of reasonable suspicion is intended to protect individuals from being subject to stop and search on a random basis, or on grounds that the law rightly finds unacceptable, such as age or racial background. However, various statutes give specific stop and search powers regarding particular offences. For instance, the Misuse of Drugs Act 1971, section 23, allows police to stop and search anyone who is suspected on reasonable grounds to be in unlawful possession of a controlled drug. Under section 44 of the Anti-Terrorism Crime and Security Act 2001, the Home Secretary can secretly authorise the police to carry out random stop and searches in the fight against terrorism without the requirement of reasonable suspicion. The power given to the police seems to be too wide since they had used the power extensively and controversially.

Powers of arrest allow people to be detained against their will. Such detention is only lawful if the arrest is carried out in accordance with the law. Under section 1 of the Magistrates’ Courts Act 1980, the police may lay written information on oath before a magistrate that he has reasonable grounds for suspecting a person had committed an offence or likely to commit an offence. This enables the magistrate to issue an arrest warrant. The police may enter and search premises to carry out the arrest by using reasonable force (section 117 PACE). As stated by Lord Woolf in Castorina v Chief Constable of Surrey, the test for “reasonable ground” is objective. It was enough if the police could show that the existence of facts or information would satisfy an objective observer that the person concerned may have committed the offence (Fox, Campbell and Hartley v United Kingdom). The requirement of a warrant and the test laid down seems to be the safeguards of the suspect’s rights.

However, one can argue that it will be very difficult to challenge the police for wrongful arrest under this objective test. This was shown in Holgate-Mohammed v Duke which stated that the decision of the police can only be challenged if he acted improperly by taking something irrelevant into account (Wednesbury principles). Obviously, this is a low threshold test and there is a danger it will be abused by officers. Furthermore, where there is a breach of the peace or where a person is about to commit a breach of the peace, a police officer can make an arrest without warrant. These powers were increased by the Serious Organised Crime and Police Act 2005 which simplified the police powers of arrest, but at the same time they have given the police more powers than they need, and are open to abuse. For example, it will be necessary to carry out an arrest if the person will not give their name and address, or the police officer reasonably suspects that the name or address given is false.

Next, we need to consider the issue of police interrogation. The usual reason for detaining a suspect is so that the police can question them, in the hope of securing a confession. However, instances of miscarriages show that confession can be tampered with or falsified by the police. The suspects may also be threatened or physically abused into confessing even when they are in fact innocent. Fortunately, PACE provides important safeguard to refuse to admit evidence which has been improperly obtained. Under s76, confession evidence is inadmissible if it was obtained through oppression. But this depends on the discretion of the court whether to exclude the confession as unreliable evidence. However, is this safeguard sufficient?

Section 76(2) PACE requires the prosecution to prove beyond reasonable doubt that a confession was not obtained by oppression (which defined in section 76(8) as torture, inhuman or degrading treatment or the use or threat of violence), or otherwise in circumstances likely to render the confession unreliable. These requirements seem adequate to protect the defendant, but the interpretation of the court may render the protection ineffective. For example, the Court of Appeal in R v Fulling ruled that unless the exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors; et cetera; the imposition of unreasonable or unjust burdens, the court is unlikely to exclude the evidence. However this threshold seems to be too high for the accused to prove. This can be seen from R v Paris, Abdullahi and Miller, only the repeat shouting to the defendants about what they have to say despite the fact that they had denied involvement over 300 times can be held to be unreliable. Is this always the case? Sometimes single act may sufficient enough to force the defendant to make an incorrect confession.

Since the main propose of the crime control centred criminal system is to convict the guilty, it is understandable that improperly obtained evidence may be used to achieve their aims. Section 76 (confession cannot be obtained by oppression) and section 78 (refuse evidence of any kind if it appears that the admission would have an adverse effect on the fairness of the proceedings that the court ought not to admit it) of PACE expressly provide the court the right to exclude admissibility of evidence improperly obtained by the police. But, since there is no absolute requirement to exclude illegality obtained evidence, has the court strike an appropriate balance? In fact, the court refused to accept evidence of interviews which were not contemporaneously written up because the breach is flagrant, deliberate and cynical. However the court took a very narrow approach to section 78 in R v Latif and Shahzad. The House of Lords allowed the evidence to be admitted although it was obtained by an undercover police by trickery and deception. This seems to be unfair to the defendant since his crime may not be succeed without the help of the police. To date the decision of the court may be different since the enactment of Human Rights Act 1998. Admitting of improperly obtained evidence may result in breach of the Article 6 of the European Convention on Human Rights: Right to fair trial (Khan v United Kingdom).

The abolition of the right of silence under the Criminal Justice and Public Order Act 1994 certainly take the balance in favour of the police and the state. Now the jury can draw adverse inferences where a suspect refuse to answer police’s question or fail to account for objects or substances on their clothing when asked to do so. An adverse inference may also be given when the suspect chooses not to give evidence without good cause during the trial itself. There is no conviction based wholly on silence. Where inferences may be drawn from silence, the court must direct the jury as to the limits to the inferences which may properly be drawn from silence. This does not apply to investigations by the Serious Fraud Office, where there is no right to silence. Under Section 49 and Section 53 of the Regulation of Investigatory Powers Act 2000 (RIPA), it is an offence to fail to disclose when requested the key to encrypted data (with a penalty of two years in prison). However, we should consider the effect of the European Court of Human Rights which restrict the impact of these abrogations of the right to silence in domestic law. Although there is no express right to silence on the face of Article 6, the court found such a right to be embodied in the article 6 rights to a fair trial. European Court of Human Rights held in Murray v United Kingdom that drawing inferences from silence is a matter to be determined in the light of all the circumstances of the case. The inroads into the so-called right to silence remain controversial especially given the continuing concern over the effectiveness of safeguards for suspects at the police station and the lack of research data to support police claims that the exercise of the right to silence in a significant number of cases seriously impedes the investigation of offences.

Does it mean higher incident of miscarriages of justice is inevitable due to the lessening of the protections of the accused? Someone may argue that miscarriages of justice is a necessary evil that has to be put up with if the crime control centred criminal justice system maintains. In the high profiled case of the Birmingham Six, the appeal was only succeeded in their third attempt in 1991 because of new evidence of police fabrication and suppression of evidence, the discrediting of both the confessions and the 1975 forensic evidence. It took 16 years for the Six to get their convictions quashed. The Runciman Commission was set up following this case to look into the effectiveness of the criminal justice system and make recommendations for the reform. The Commission recommended that judge may stop any case if the prosecution evidence is demonstrably unsafe or unsatisfactory or too weak to be allowed to go to the jury. The other recommendation was made that wherever a confession has allegedly been made to the police outside the police station, whether tape-recorded or not, it should be put to the suspect at the beginning of the first tape-recorded interview at the station.

The report also led to the creation of the Criminal Cases Review Commission introduced by the Criminal Appeal Act 1995. This Commission can refer possible cases of miscarriages of justice to the attention of the Court of Appeal to prevent the possibility of miscarriages of justice that had occurred in cases like the Birmingham Six and the Tottenham Three. However, the Criminal Cases Review Commission does not have main power to carry out investigation and instead they rely on the police for this purpose; this is doubtful whether the commission is fully effective. The other problem need to be addressed is the racist attitude of the police force which led to more stop and search is conducted on ethnic minorities as reported in the Macpherson Report.

As a conclusion, it is obvious that the criminal justice system should not over emphasize on the crime control model. Instead, we must also take into account of other aims of the system such as rehabilitation and protection of the accused due process rights. A criminal justice system that balances different objectives has a higher chance of producing a model acceptable to society as a whole. However, striking for a hundred percent balance between the two controversial models could be impossible. But since the Human Rights Act 1998 came into the picture, the system should be further reformed to be compatible with the European Convention on Human Rights. For instance, in Caballero v United Kingdom, the Government accepted that the law on bail breached Article 5 of the Convention and the domestic law was reformed as a result.