To What Extent Can Prosecution Agencies Contribute to Any Meaningful Sense of ‘Criminal Justice’?

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The Crown Prosecution Service (CPS) was established under the Prosecution of Offences Act 1985 ‘as the principal prosecuting agency’ in England and Wales that take over cases which the police had decided to prosecute. The Criminal Justice Act 2003 transferred most of the charging power from the police to CPS, giving the impression of a public service that counterbalance the increased police force while delivering justice by working independently of them. However, since the inception of CPS, there are mounting criticisms that it is bureaucratic, ineffective, working too close to the police. The main questions I will address in this paper are the use of discretionary power and the failure to fulfill its function as an independent body from the police. In addition, I will also assess the different approaches adopted by non-police organizations that conduct prosecutions. However, before I do so, it is necessary to observe that the concept of ‘criminal justice’ differs from person to person. A distinction must be drawn between procedural justice and justice in a socio-political context. Taking this into account I will use the different paradigms of criminal justice, from Herbert Packer’s due process and crime control models to victim’s standpoint, in order to gain a holistic view to see the extent of prosecution agencies achieving criminal justice in the England and Wales.

As the question suggests, there is no universal definition of ‘criminal justice’ exists. Different models are essentially different perspectives provided to assess criminal justice in terms of some general characteristics and principles. Understanding this, I will first look at what ‘justice’ is through the due process lens. Herbert Packer derived this model from the ideas inherent in rule of law which stresses the importance of formal structure of law and procedure safeguards (Packer, 1968: 2).

Three main values can be gleaned from the due process model. The first and arguably the most crucial one is the concept of individual primacy over the interest of the state, and thus the complementary need for limits on official power (Young, 2010: 23). The concept of the ‘presumption of innocence’ is based upon this idea to ensure a strict adherence to procedures in conducting a fair and unbiased trial. So a person is to be held guilty if and only if these factual determinations are made in accordance with procedures by authorities acting within the competences dully allocated to them (Packer, 1968: 8).

The second value is the ‘ideal of equality’ between parties. It holds that everyone should have same resources as to permit them to exploit all its defensive possibilities irrespective of their social or financial standing (Packer, 1968: 10). Lastly, the due process casts a skeptical eye over the morality and utility of the criminal sanction, especially when taking into account the fact that the sanction is used primarily against the psychology and economically impaired (Packer, 1968: 10). Therefore, the central idea of the due process model is to prioritise the protection of civil liberties as an end itself. In addition, the passing of the Human Rights Act 1998 (HRA) reflects concerns of Parliament to give more protections to fundamental human rights, hence the English criminal justice is arguably characterized as one which emphasizes due process safeguards. However, in looking at the prosecution policies, it is difficult to see any evidence of due process.

First, the supposed limits on their discretionary powers are absent at the pre-charge stage. The Code for Crown Prosecutors provides that the prosecutor has to apply a ‘twin tests’ in deciding whether to prosecute or not; the first is evidential test that a prosecution should only be introduced and continued with only if there is a ‘realistic chance of conviction’. If the first test is passed, then the CPS proceeds to decide whether that a prosecution would be in the public interest. But as a...
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