Models of the Criminal Justice System

UNIVERSITY OF LONDON
COMMON LAW REASONING AND INSTITUTION
ESSAY TITLE: “It is a general problem not specific to the law of the United Kingdom: a criminal justice system characterised by an emphasis on crime control rather than due process will inevitably produce miscarriages of justice.”

STUDENT NUMBER: 111099151
CANDIDATE NUMBER: 110466

Outline * What is Criminal Justice System? * Theories and perspectives of criminal justice system * Miscarriage of justice * What due process entails * What crime control entails * The conflict between crime control and due process in the miscarriage of justice cases

Criminal justice system is that branch of the English Legal System with a set of legal and social institutions for enforcing criminal law in accordance with the defined set of procedural rules and limitations. Just as the social functions of the criminal law may be seen to be quite diverse, so too are the different social theories or models that underpin the Criminal Justice System. A number of the models of the criminal justice system that may be identified are; the due process model, crime control model, a medical model, the restorative justice model, the bureaucratic model, status passage model, power model and social integration and exclusion model. Many a times the failure to observe due process and strict adherence to the crime control model may lead to miscarriage of justice. Some may ask, ‘’what is miscarriage of justice?’’
There is no clear definition of miscarriage of justice. However some scholars have defined it to encompass the breach of due process by governmental agencies thus resulting to a wrongful conviction. Others view miscarriage of justice as errors of impunity. In line with the different definitions by the different scholars, I view miscarriage of justice as the conviction and punishment of a person for a crime they did not commit. In most cases this results from the breach of due process, resulting from the need by government to control crime.
Due process is a very important component of the criminal justice system of any country. It focuses on individual liberties and rights and is concerned with limiting governmental powers. It may be defined as the belief that an individual cannot be deprived of life, liberty or property without appropriate legal procedures and safeguards. Any person charged is supposed to have his rights protected by the criminal justice system under due process. The guaranty of due process means that no accused is punished without an orderly and adequate procedure that is applicable uniformly in all cases. Under a due process, every accused has a right to; get an advance notice of trial, get an opportunity to be present at his hearing, be heard and to defend himself either in person or by a legal representative. It covers a wide range of areas that include; treatment of suspects while in detention, confessions, identification of suspects and so on.
Breach of due process may have its share of consequences in that, the defendant may be released upon its discovery but he would have spent a long time in prison for a crime he did not commit. This was evidenced in the case of Maguire Seven where the defendants were convicted of handling explosives. The prosecution relied on the fact that the defendant’s had knowingly handled nitroglycerine for an unlawful purpose. The charge required a positive trace on the body or clothing of the defendants and innocent contamination had to be discounted. The scientific evidence presented at trial was used to construct a narrative of bomb preparation. In fact, Stockdale asserts that later test showed the brittle nature of legal extrapolation from scientific fact and there were a number of explanations as to how these traces of nitroglycerine could have found their way onto the defendants’ bodies. By the time a successful appeal was granted all but one of the defendants had served their sentences. One of the defendants, Giuseppe Conlan, father of Gerald Conlan who was one of the Guild Four, died in prison in 1980. He would never have the pleasure of knowing that his name was cleared of the crime.
Unlike the due process model which is more concerned with ensuring that the correct lawful procedures are followed when handling a suspect, crime control model is concerned with ensuring that crime is kept at its bare minimum and places emphasis on reducing crime in society through increased police and prosecutorial powers. This model prioritizes governmental powers to protect society with less emphasis on individual liberty. The value system that underlies the Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function of the criminal process. The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and hence to the disappearance of an important condition of human freedom. If it is perceived that there is a high percentage of failure to apprehend and convict in the criminal process, a general disregard for legal controls would tend to develop. The law-abiding citizen then becomes the victim of all sorts of unjustifiable invasions of his interests. His security of person and property is sharply diminished, and, therefore, so is his liberty to function as a member of society. The claim ultimately is that the criminal process is a positive guarantor of social freedom. In order to achieve this high purpose, the Crime Control Model requires that primary attention be paid to the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate dispositions of persons convicted.
The model, in order to operate successfully, must produce a high rate of apprehension and conviction, and must do so in a context where the magnitudes being dealt with are very large and the resources for dealing with them are very limited. There must then be a premium on speed and finality. Speed, in turn, depends on informality and on uniformity; finality depends on minimizing the occasions for challenge. The process must not be cluttered up with ceremonious rituals that do not advance the progress of a case. Facts can be established more quickly through interrogation in a police station than through the formal process of examination and cross-examination in a court. It follows that extrajudicial processes should be preferred to judicial processes, informal operations to formal ones. But informality is not enough; there must also be uniformity. Routine, stereotyped procedures are essential if large numbers are being handled. The model that will operate successfully on these presuppositions must be an administrative, almost a managerial, model.

We cannot dictate for certain that one model is superior to the other as value judgment is required if this is to be achieved. The political climates at the time may have a role to play when it comes to determining which model shapes the criminal justice policy at a specific time.

At times, when a government is faced with the threat of insecurity it may tend to rely more on crime control model rather than due process model. The intention of the government for doing this is to try and eliminate the threat in question, though by doing this, a miscarriage of justice may occur as was the case in the United Kingdom where a Brazilian national by the name Jean Charles de Menezes was shot dead by the metropolitan police armed officers. Following his death it transpired that the police had been following de Menezes believing that he fitted the description of a terrorist suspect who had been foiled the previous day in an attempt to blow up a London Underground train. Though it was a case of mistaken identity, this case illustrates how far the United Kingdom government may be willing to go to purge terror threats.

Kenya on the other hand has undergone major reforms particularly in areas touching on our criminal justice system. Before the inauguration of the new constitution in August 2010, the model that seemed to be favored by the Kenyan government in abid to pacify security threats was the crime control model. However, the use of this model had its shortcomings which presented themselves in the form of miscarriages of justice, as many people’s civil liberties ended up being violated. An example of such a breach was evidenced by the Wagalla Massacre of 1984 which resulted from an operation sanctioned by the security committee and carried out by the army alongside the ordinary police to see to it that the Degodia clan (one of the Semitic clans in Kenya) was disarmed and that the names of the bandits who were terrorizing the district were provided via any means possible. The operation which targeted men above the age of 12 turned sour as women were raped and killed, property looted, house burnt in every locality that the operation took place and men tortured in abid to confess to knowing the bandits. It is estimated that over 3,000 people lost their lives during the operation according to the United Nation’s report.

It is as a result of pressure from both external and internal forces that the government decided to form the Truth Justice and Reconciliation Commission as a way of a semblance of justice for victims of past crimes who now wield power to harm others. TJRC is a tool of reconciling the society at large and clear revenge from their conscience.

The new constitution has signaled a wave of change in the criminal justice system with police reforms being instituted as a result of the public outcry. It provided the bedrock for instituting extensive security sector reforms in Kenya after decades of demand for political and socio-economic transformation. Most notably affected by the reforms are the police.
Public outcry for the transformation in the police sector in particular has been driven by tribulations in the police force whose deeds have eroded public confidence. However, the ongoing reforms seem to suggest that the force will transform into a service that is accountable, professional, and transparent and one that is sensitive to human rights approach as well as the operational capacity to deliver on its obligation to the Kenyan public. These reforms have led to the formation of the Independent Police Oversight Authority, a body created through the Independent Policing Oversight Authority (IPOA) Act 2011 whose responsibility is to ensure that it provides much needed accountability and monitoring functions over the Police Service. Part of its mandate will be to receive public complaints regarding police conduct and will also have powers to conduct its own independent investigations. If faithful to its responsibilities, it will contribute in restoring public confidence in the police and in stemming political interference, which has been a major hindrance to police performance. The new constitution along with the reforms tend to rely more on due process model than on crime control model so as to ensure that civilian rights are protected.
It is evident that reliance on crime control model in most cases would lead to miscarriage of justice. Should the government use its discretion to sacrifice the rights of its citizens by insisting on use of crime control model knowing very well that the probabilities of miscarriage of justice resulting from its use are high?
I would recommend the use of a much friendly model, one that would make the civilian of any state view the law enforcement officers not as perpetrators of impunity but as the enforcers of the rule of law. A model that would create a friendlier atmosphere between the civilians and the police in that it would make civilians volunteer information to the police if they sense that they are faced with a threat of any kind thus lowering the crime rate and most importantly one that involves the society in its safe guarding. That model is the due process model. The criminal justice system of any country would be more efficient if it involved its citizens in its operation rather than by petrifying them in abid to try and create a safe environment.

BIBLIOGRAPHY
Two Models of the Criminal Process- Herbert L. Packer
The Crime Controls and Due Process Models- By Brandon A. Perron, Board Certified Criminal Defense Investigator
Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer - Hannah Quirk
Common Law Reasoning and Institutions Study Guide- Adam Gearey and Wayne Morrison
The Politics of the Common Law Perspectives, Rights, Processes and Institution-Adam Gearey, Wayne Morrison and Robert Jago
Police reforms in Kenya crucial to restore public confidence- Irene Ndungu, Consultant Researcher, Peace Missions Programme, ISS Pretoria Office
Blood on the runway- S. Abdi Sheikh

Bibliography: Two Models of the Criminal Process- Herbert L. Packer The Crime Controls and Due Process Models- By Brandon A. Perron, Board Certified Criminal Defense Investigator Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer - Hannah Quirk Common Law Reasoning and Institutions Study Guide- Adam Gearey and Wayne Morrison The Politics of the Common Law Perspectives, Rights, Processes and Institution-Adam Gearey, Wayne Morrison and Robert Jago Police reforms in Kenya crucial to restore public confidence- Irene Ndungu, Consultant Researcher, Peace Missions Programme, ISS Pretoria Office Blood on the runway- S. Abdi Sheikh