Drawing upon different models of or approaches to the criminal justice system, critically assess which you find most compelling. PDF

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Essaay analyses a number of different approaches to our criminal justice system and try to weigh up their individual values and establish which approach has the most compelling argument towards havingthe most emphasis placed upon it within society today....

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Drawing upon different models of or approaches to the criminal justice system, critically assess which you find most compelling. This essay will analyse a number of different approaches to our criminal justice system and try to weigh up their individual values and establish which approach has the most compelling argument towards havingthe most emphasis placed upon it within society today. THE CRIME CONTROL MODEL The crime control model, established by Packer, looks to the legislature, as opposed to the courts, as its "validating authority”1 The value system underlying this model considers the repression of criminal conduct as the most important function of criminal justice. According to this model, failing to bring criminal conduct under control leads to the breakdown of public order which is necessary to provide human freedom. 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 of crime.2 Given the reality of limited law enforcement resources," the criminal process must place "a premium on speed and finality." 3This is most likely to have been the reason for Packer’s Crime Control model being described as a “conveyor belt” by Sanders and Young. This description given is down to the nature of the system, because of the way in which it moves quickly, knocking off various suspects one by one. The primary aim of the crime control model is to abolish crime, however, it may be thought that human rights exist as a secondary consideration within this model. This has been one of the model’s greatest criticisms, especially considering the Human Rights Act (1998) is now a key part of our own legal system. The model assumes criminal law could control crime without accounting for the fact, revealed by victimization studies4, that most crime victims do not report crime to the police. Despite heavy critique, the model must be praised for its ability to address levels of crime with speed and efficiency; it has also been suggested that without such a harsh system, a ‘general disregard for the criminal law would develop and citizens would live in constant fear’ 5 However, whilst some of the crime control model’s arguments credit worthy, the inconsistency in practice cannot be justified as easily as the lack of thorough investigation has been known to put innocent people at risk of conviction. Additionally, achieving such efficiency with resistance to challenge suggests methods such as interrogation, may be freely endorsed. This suggests that the model is perhaps prioritising conviction rates above rightful freedom.6 DUE PROCESS MODEL The due process model emphasizes individual rights at all stages of the justice process. This model is more concerned with the threat to procedural rights of the offenders than with the general public’s right to be free of crime.

1 Herbert Packer, The Limits of the Criminal Sanction (1968) p 173 2 Herbert L. Packer, Two Models of the Criminal Process, 113U. Penn. L. Rev.1 (1964) 3 Herbert Packer, The Limits of the Criminal Sanction (1968) p 159 4 Idea generally from Ezzat Fattah, Understanding Criminal Victimization (1993) 5 Andrew Sanders and Richard Young, Criminal Justice (4th edn OUP 2010) p22 6 Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC

The Due Process Model encounters its rival on the Crime Control Model's own ground in respect to the reliability of fact-finding processes. Packer stated that if the crime control model resembles an assembly line, the due process model resembles an obstacle course. The due process model insists that reliability is of at least as much importance as efficiency, and so “if efficiency demands short cuts around reliability, then absolute efficiency must be rejected.”7 The aim of due process is at least as much to protect the factually innocent as it is to convict the factually guilty. In some cases such as weir8 there has been much debate as to whether this aim of the due process model has led to truly just results, however this is open to interpretation. In this case. DNA profile evidence from earlier, unrelated and discontinued proceedings had been retained in breach of s.64 Police and Criminal Evidence Act 1984, a conviction based on subsequent DNA evidence obtained only as a result of that breach was unsafe and would be quashed. The due process model has also been seen to cast scepticism on the morality and utility of the use of criminal sanction, taken either as a whole or in some of its applications. It sees the use of sanctions being targeted at the disadvantaged (economically as well as psychologically) as there seem to be “doubts about the ends for which power is being exercised, pressure is created to limit the discretion with which that power is exercised”9 However there has been thought to be a dire need to improve confidence in the criminal justice system 10 with the Government in 2004 stating ‘improving the way that we treat the public, particularly victims and witnesses, is essential to enhancing levels of confidence.’ 11 By supporting the due process model, we are also supporting the rights of the individual- This is one of the model’s greatest advantages in contrast to the crime control model previously discussed. Some common ground… Packer’s analytical framework was constructed upon assumptions, which he described as “some common ground” between the two models.12 Though traditionally Packer’s models of crime control and due process have been seen to have much contrast there have also been some similarities that have arisen between the two, such as that both the crime control and due process models share is the belief that persons only suspected of violating established laws may be arrested and prosecuted. In other words, the police cannot arrest individuals for actions that do not violate any current laws, nor can individuals be punished for his or her actions if they were legal at the time of occurrence. So, in essence, both models embrace constitutional values and work according to our adversarial system. Doreen McBarnet has even argued that due process is in fact consistent with crime control: “the law in action is only too close a parallel to the law in the books; due process is for crime control.” 13

THE FREEDOM MODEL 7 Herbert Packer, The Limits of the Criminal Sanction (1968) p158 8 R v Weir - [2000] All ER (D) 751 9 Herbert Packer, The Limits of the Criminal Sanction (1968), p171 10 Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC 11 HM Government, Cutting Crime, Delivering Justice: A Strategic Plan for Criminal Justice 2004-08, (2004) 12 Herbert Packer, The Limits of the Criminal Sanction (1968) p154 13 Stuart Macdonald, CONSTRUCTING A FRAMEWORK FOR CRIMINAL JUSTICE RESEARCH: LEARNINGFROM PACKER’S MISTAKES p264

Sanders and Young propose a different framework for evaluating criminal justice, namely ‘the enhancement of freedom’. They identify the key aims as of the model, such as convicting the guilty, protecting the innocent from wrongful conviction, protecting victims, maintaining human rights, the protection of everyone (innocent and guilty) from arbitrary or oppressive treatment and maintaining order.14They ‘see none of these objectives as goals in themselves ’but rather as ‘means to achieving the overriding goal of freedom; allocating priority to conflicting goals is then achieved by prioritising ‘the goal that is likely to enhance freedom the most’ 15 THE ACTUARUALISM AND MANAGERIALISM APPROACH The key aims of this approach to criminal justice are prevention, risk and efficiency, effectiveness and economy where output and performance are measured. This approach has been thought of as being very controversial and places its emphasis on what might happen in future. Limiting movements not on the basis of what has been done but on the basis of what they might do. However it has been thought support for this approach in turn gives support for procedures such as plea bargaining. This is where defence and prosecution, publicly in court, negotiate a guilty plea to something on the basis of sentence reduction, charge reduction or statement of facts, this saves time and money. Many commentators, including both those who support and those who oppose plea bargaining, agree that plea bargaining is a permanent and in-evitable fixture in our criminal justice system. 16 Supporters of plea bargaining often argue that it is necessary for handling the enormous criminal caseload because it allows prosecutors to allocate limited resources efficiently, and that without plea bargaining, the legal system would cease to function.17 However, currently English justice system make use of plea bargaining tentatively because there are worries about what might go on behind closed doors. The most important criticism of plea bargaining is that plea bargaining can coerce innocent defendants into pleading guilty. 18 It has also been a worry that defendants may too often be taking advantage of the system of plea bargaining to get a reduced sentence. This may be thought to have occurred in cases such as Peverett19. In this case the defendant was charged with 16 indecent assault against 11 of his pupils, over period of 8 years which happened between the years of 1969 and 1978.He plead guilty to indecent assault only if some of the descriptions were changed and that he isn’t imprisoned. The Judge and barrister agreed he would plead guilty to 9 of charged. Four of victim’s cases were then dropped, the wording was changed and the defendant walked free from court. To some this outcome may seem unjust and that in cases such as these speed and efficiency should not held to take priority over a rightful level of retribution.

14 http://cw.routledge.com/textbooks/9780415442923/Chapter%20One.pdf 15 Sanders, A and Young R, Criminal Justice (OUP, 2007) p44 16 Stephen J. Schulhofer, Is Plea Bargaining Inevitable?,97 HARV.L.REV. 1037, 1037, 1039 (1984) 17 Tina Wan, THE UNNECESSARY EVIL OF PLEA BARGAINING: AN UNCONSTITUTIONAL CONDITIONS PROBLEM AND A NOT SO-LEAST RESTRICTIVE ALTERNATIVE ,2007 (p35) 18 Douglas D. Guidorizzi, Comment, Should We Really “Ban” Plea Bargaining?: The Core Concerns of Plea Bargaining Critics, 47 EMORY L.J. 753, 765 (1998) p771 19 R v Peveret [2001] 1Cr App R 27 174

CONCLUSION It seems through accessing the models of the criminal justice system there are numerous issues raised through full support of just one model alone. Values from each should be taken it to account for example without improved statistics the due process model will fail to be competent enough on its own, and this is perhaps where our crime control anomalies arise. It seems that the benefit and importance of the main aim of the crime control model – abolishing crime- may outweigh a number of its apparent criticisms, giving it a compelling argument to give support to. However the fact the models do seem to have overlap it seems to be essential to given support to a range of approaches to criminal justice in order to have an effective system.

BIBLIOGRAPHY:

BOOKS: Herbert Packer, The Limits of the Criminal Sanction (1968) p173 Andrew Sanders and Richard Young, Criminal Justice (4th edn OUP 2010) Sanders, A and Young R, Criminal Justice (OUP, 2007)

JOURNALS & ARTICLES: Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC Douglas D. Guidorizzi, Comment, Should We Really “Ban” Plea Bargaining?: The Core Concerns of Plea Bargaining Critics, 47 EMORY L.J. 753, 765 (1998) Ezzat Fattah, Understanding Criminal Victimization (1993) Herbert L. Packer, Two Models of the Criminal Process, 113U. Penn. L. Rev.1 (1964) HM Government, Cutting Crime, Delivering Justice: A Strategic Plan for Criminal Justice 2004-08, (2004) Stephen J. Schulhofer, Is Plea Bargaining Inevitable?,97 HARV.L.REV. 1037, 1037, 1039 (1984) Stuart Macdonald, CONSTRUCTING A FRAMEWORK FOR CRIMINAL JUSTICE RESEARCH: LEARNINGFROM PACKER’S MISTAKES Tina Wan, THE UNNECESSARY EVIL OF PLEA BARGAINING: AN UNCONSTITUTIONAL CONDITIONS PROBLEM AND A NOT SO-LEAST RESTRICTIVE ALTERNATIVE ,2007

WEBSITES: http://cw.routledge.com/textbooks/9780415442923/Chapter%20One.pdf ( accessed 04/11/2015)

CASES: R v Peveret [2001] 1Cr App R 27 174 R v Weir - [2000] All ER (D) 751...