Purpose of Criminal Law L3&4 PDF

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Purposes of criminal law...

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Criminal Law

Lecture 3/4

15/10/18

The purpose of criminal justice and criminal law What is the purpose of making something criminal? 



To deter members of the public from doing something o But does this general deterrence work? o Depends more on being caught than harshness of punishment To make a statement that the state (and by implication all right-minded people) do not approve of that thing or action o The expressive function of law and punishment

Is just passing legislation enough?  Several ministers may assume it is  Some legislation is just there for the statement and may never be brought into effect (sometimes the cost would be too high)  The law- and associated media publicity and advertising- may tap into social norms or strongly held views and have an immediate effect e.g. smoking on the tube, smoking in cars with children  But, generally legislation needs enforcement- hence the criminal justice system What happens if there is no enforcement of criminal law? Extraordinary cases- War, police strikes etc Hurwitz and Christiansen (1983) War makes criminal justice stricter, with new regulations (more law) so there is an increase in the number of violations e.g. rationing The occupation of Denmark in WWII produced 7 months without police - Thought there were community guards, there was also a sharp increase in crime US police strikes produced looting In the UK, when police did not intervene immediately in the riots, there was an increase in looting and more joined in Martin Innes (2004) when there is disorder of community-affecting crime – ‘signal crimes’, people look for response by the authorities- hence ‘reassurance policing’

Criminal Law

Lecture 3/4

15/10/18

But, criminal justice system is not the only means states have to deter crime Primary (everyone)

Secondary (hot spots)

Offender-orientated

Public information campaigns School discussion

CCTV Youth holiday clubs

Victim-orientated

Locks and bolts

Situation-orientated

Building regulations Concierges

Students Union minibus Licensing rules

Tertiary (crime has happened) Criminal justice and penal system Offender behaviour programmes Advice to victims Additional crime and prevention measures

After Jan van Dijik’s crime prevention model

The two models of criminal process Hebert Packer (1968) The Limits of the criminal sanction  

Two ideal types- though they may be better represented as a dimension Both sit within safeguards of the US Constitution (for the US); both presume the legislature has defined what is crime, and it is the criminal justice system actors who take action

Crime Control • Repression of criminal conduct • based on the need to convict the guilty • Needs to work efficiently/speedily • Needs high rates of apprehension and conviction • Needs uniform processes- routine to create certainty • Very administrative- victim’s rights

Due Process • Emphasis on the integrity of human rights, factual guilt and the fairness of the process • Designed to create obstacles and require thought to proceed so the innocent are found not guilty • Assumes the potential error in decisions • Sees conviction as stigmatising and coercive • Assumes innocence- defendant’s rights

For whom? Crime Control - Government: Cost Effectiveness Efficiency - Worried public - Police/Prosecution

Due Process - Defence - Public confidence/legitimacy - Government Probity International standards

Seemingly, compared to due process model, which is more sympathetic to the innocent; crimecontrol model is dynamic, proactive and helps maintain order in the society. It is important as it is used in contemporary criminal justice systems to deter many people who may have intentions of committing a crime. The strategies employed will enable many governments to efficiently and affordably deter the occurrence of crime in their areas of jurisdiction. The Crime – control model is suitable in ensuring fast dispensation of justice.

Criminal Law

Lecture 3/4

15/10/18

Prosecution Why do cases not get further in the system? • •

•

Because offenders are not caught - 48% of offences recorded by the police, no suspect is caught Because cases are diverted by the police - Not enough evidence - The victim does out support this action - Suspect is given a caution or a Penalty Notice for Disorder - Suspect takes part in a community resolution, which might be doing work in the community, or a letter of apology, or restorative justice Because, having reviewed the case, the Crown Prosecution Service decides to discontinue the case or refer back to the police for diversion

The decision to continue a prosecution (from the Code for Crown Prosecutors, 2013) Both the evidential test and the public interest test must be passed. 1. The evidential stage (has to be satisfied first): •

Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction.

•

‘It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.’ [Note this is different to the standard of proof for conviction at court]

2. The public interest test: •

A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.

Examples: a) b) c) d) e) f) g)

How serious is the offence committed? What is the level of culpability of the suspect? What are the circumstances of and the harm caused to the victim? Was the suspect under the age of 18 at the time of the offence? What is the impact on the community? Is prosecution a proportionate response? (including cost and dealing with multiple suspects) Do sources of information require protecting?

Criminal Law

Lecture 3/4

15/10/18

What actually happens in courts of first instance in England and Wales? A routinised, lawyer-dominant justice unless there is little legal aid, then magistrate-dominant Carlen (1976) in the magistrates’ court: o Justice is ‘produced’ , like a play, through the routine actions of magistrates, lawyers, clerks, probation officers, ushers o Using space, ritual, where people sit, permitted modes of speech McConville et al. (1991): o Police construct the prosecution case; the prosecution has little power to question and change (though now they are co-located with police and advise in more serious cases) McConville et al. (1994): o Defence solicitors manage defendants and their case, from the police station to the court Adversarial vs Inquisitorial legal systems  England & Wales has an adversarial legal system for criminal cases – as opposed to the mainland European inquisitorial system  The inquisitorial legal system tasks both prosecutor and judge with ‘finding the truth’ – and with giving equal weight to evidence in favour of the defendant  But the adversarial legal system tasks prosecutors at court with proving their own case beyond reasonable doubt, not to produce ‘the truth’  The defence is there to cast doubt on the prosecution case and/or to provide alternative explanations  Which is why victims/witnesses can get so annoyed at being challenged at court Why is there such a stress on adequate defence representation in England & Wales?  If there is good, professional defence representation, that challenge can occur (particularly in the higher courts)  If the defendant is unrepresented, it’s more difficult for judges (who are there essentially to give legal rulings and ensure evidential rules are obeyed) – the unrepresented defendant does not know the rules and is unlikely to be able to challenge well  Unrepresented defendants in custody are particularly disadvantaged  The ‘balance’ of justice is tipped – the scales are weighted towards the prosecution  Less of a problem in an inquisitorial system...