AC1.3 Describe models of criminal justice

What are the two models of criminal justice?

• the crime control model of justice

• the due process model of justice

(In 1968 Herbert Packer, an American professor of law and criminology, described two contrasting sets of values which shape the way criminal justice systems work which he sumed up with two opposed models of justice)

The crime control model

• Crime is a threat to people’s freedom and so the goal of the crime control model is the suppression of crime. It prioritises catching and punishing offenders, deterring and preventing them from committing further crime.

• The model starts from a presumption of guilt. It trusts the police to be able to identify those who are probably guilty through their investigations and interrogations.

• Police should be free from unnecessary legal technicalities that prevent them investigating crime.

• Once the ‘probably guilty’ are identified, it favours a conveyor belt or assembly line justice system that speedily prosecutes, convcits and punishes them.

• It argues that if a few innocent people are occassionaly convicted by mistake, this is a price worth paying for convicting a large number of guilty people

• it emphasises the rights of society and victims to be protected from crime, rather than the rights of suspects

What sort of ‘legal technicalities’ might supporters of the crime control model want to remove so that police can investigate more effectively?

• rules around police questioning: reducing lengthy legal procedures and paperwork that can delay investigations

• search and seizure requirements: relaxing some requirements for obtaining warrants before searching suspects or their property

• if police collect evidence but make minor procedural mistakes, supporters of the Crime Contrl Model ma arguethat the evidence should still be admissible if it is reliable and helps establish guilt

The due process model

• The power of the state is the greatest threat to the individual’s freedom and so the goal of the due process model is to portect the accused from the oppression by the state and its agents. These include the police, prosecutors and judges

• the model starts from a presumption of innocence. The accused is innocent until proven guilty after a fair trial

• it has less faith in the police’s ability to conduct satisfactory investigations. Incompetence, dishonesty etc. mean that suspects’ and defendants’ rights need to be safegurard by a set of due process rules that investigations and trials must follow. These include rules about arrest, questioning, legal representation, admissibility and disclosure of evidence, cross-examination of witnesses, no secret trials etc.

• rather than a conveyor belt carrying the accused swiftly to punishment, the rules and procedures protecting their rights form a necessary obstacle course that prosecutors have to overcome before they can secure a conviction.

• This means that the guilty sometimes go free on a ‘technicality’ (e.g. where the prosecution have relied on illegally obtained evidence). However, the model argues that this is a lesser evil than convicting the innocent.

• The model emphasises the rights of the accused individual rather than those of the victim or society

What kinds of evidence are courts likely to rule out as inadmissible and why?

• evidence obtained illegaly - if police search a property without the proper legal authority, the evidence may be excluded because the suspect’s rights have been violated

• unreliable witness testimony - if a witness has been influenced, pressured or given misleading information, their evidence may not be considered reliable

• contaminated forensic evidence - if DNA or other forensic evidence has been contaminated due to poor handling, its reliablity may be questioned

why might a court rule a confession obtained thrugh threats inadmissible, and how doe this support the Due Process Model?

if police obtain a confession by threatening a suspect, the court may rule it inadmissible because it was obtained through coercion. This supports the Due Process Model because it protects the suspect’s rights and prevents unreliable evidence from being used to secure a conviction

The crime control model and theory

• right realism - the crime control model is a right-wing, conservative approach to justice and it has much in common with right realist theories of crime. For example, like zero tolerance policing strategies, it favours giving the police greater powers to investigate and suppress crime.

• Functionalism - the crime control model also has links with Durkheim’s functionalist theory that punishment reinforces society’s moral boundaries. As the main function of justice is to punish the guilty, this enables society to expres its moral outrage and strengthen social cohesion

The due process model and theory

• labelling theory - the due process model is a liberal approach. It aims to stop state agenices like the police from oppressing people. As such it has links to labelling theory. The police may be tempted to act illegally, harrassing groups that they label negatively as ‘typical criminals'. The due process model offers some protection against this because it requires the police to follow lawful procedures and not exceed their powers.

• left realism - argues that oppressive ‘militaristic policing’ of poor areas triggers confrontations and makes residents unwilling to assist the police. In the left realsit view, police must follow due process by acting in a lawful and non-discrinatory way if they want to fight crime effectively, since this depends on the cooperation of the community.

what does the due process model focus on?

• presumption of innocence and the necessity of producing fairness

what does the due process model aim to protect?

defendant’s legal rights

how does the due process model link to theory?

links to combatting inequalities created by unequal society (Left Realism)

Due process model- give examples of areas of law that support it

• police procedural safeguards (PACE 1984)

• all interviews recorded with rights to legal representation

• Human Rights Act 1998 ensures that the human rights of the accused/defendant are protected at all times

Due Process Model - Examples of cases?

• Sion Jenkins -

• Garry Weddell

• Thompson v UK

• Venables v UK

These are examples of where defendants have been give their statutory legal rights

For instance, thatof the right to apeal against a conviction thus allowing a retrial (Sion Jenkins). Or the exercise of the presumption of bail, even to a charge of murder, prior to conviction (Garry Weddell). Also, to ensure a trial was fair, thue use of human rights using the European Convention on Human Rights (Thompson and Venables, the kilers of James Bulger).

What are strengths of the due process model?

Avoids miscarriages of justice and should lead to acquittal where the accused is innocent

What are criticisms of the due process model?

• too soft; disregards the impact on the victim and/or society.

what does the crime control model focus on?

• the quick and efficient disposal of criminal cases, with the aim to punish criminals and stop them committing further crime

what does the crime control model aim to protect?

• protecting victims and society from dangerous criminals

what theories link crime control model?

Links to the Zero Tolerance approach by raising the risks/punishments to deter criminals (Right Realism)

Crime Control Model - Examples of areas of law that support it

• Allows the introduction of ‘bad character’ evidence and previous convictions for the courts to consider when deliberating on a verdict

• removal of the ‘double jeopardy’ rule for muder

• extended pre-charge detention time for terrorist suspects

Crime Control Model - examples of cases

• Colin Stagg

• Barry George

• Gareth Hughes (brief)

These cases show examples where a conviction is sought at any cost. The public and political reaction lead to a demand to solve the case as quickly as possible; the police felt sure that the suspect was guilty and used all measures available to produce evidence of guilt

Example of cases investigated using the crime control model

Colin Stagg and Barry George

Arguably, the key focus in both cases is on securing a conviction at any cost. Each victim’s muder provoked strong public reaction and a deman for the case to be solved as quickly as possible. In both cases the police felt sue that the suspect was guilty and used all measu including undercover police surevillance, to produce evidence of guilt

What is the difference between the due process model and the crime control model?

• the due process model uses principles that are opposite to the crime control model and promotes the presumption of innocent until proven guilty

• the focus of crime control justice is to produce a swift verdict

What are strengths of the crime control model?

Works on the side of the victim and the wider law-abiding society

What are the criticisms of the crime control model?

Does not address the causes of crime; too harsh

What are rules that favour the due process model? (rules governing the working of the justice system)

• the suspect’s right to know why they are being arrested

• the right to remain silent when being questioned by the police and in court - based on the principle that is the prosecution’s job to prove guilt, not the accused’s job to prove their innocence

• the right not to be detained indefinitely without charge

• the right to legal representation when questioned by th police and in court

• the right to trial by a jury of one’s peers

• the right to appeal against convcition or sentence

• the right not to be re-tried for the same ofence once acquitted

• rules governing the admissibility of evidence in court; e.g. hearsay, entrapment and forced confessions are not admitted

• the prosecution has a duty to disclose evidence against the defendant in advance of the trial

What are rules that favour the crime control model? (Rules governing the working of the justice system)

• police rights to sop, search and arest. The right to stop and search without giving a reason in some circumstances

• the court may draw negative inferences (conclusions) if the defendant remains silent when questioned by police or fails to testify in court without good reason

• extended police detention is allowed for questioning on suspcion of indictable offences (36 + 96 hours) and terrorist offences (14 days)

• Extended period before access to a lawyer is allowed (for serious offences) / restrictions on the availability of legal aid

• jury trials are only for serious cases. Magistrates are more likely than juries to convict / Juryless trials are allowed if jury tampering is suspected

• Appeals rights are not always automatic. Some are only allowed on a point of law, not of evidence

• Change to the double jepardy rule allows a second prosecution if ‘new compelling’ evidence emerges (for serious offences only)

• Evidence or bad character/previous convcitions is permitted in certain cirumstances

• Public-interest immunity certificates may allow the prosecution to avoid disclosing evidence

Give examples of miscarriages in justice

• The West Midlands Serious Crime Squad was responsible for over 100 criminal cases (including the Birmingham Six) involving malpractice by its officers, including perjury (lying under oath). assulating prisoners, fabricating confessions and planting incriminating evidence on suspects.

• The case of Bingham Justices (1974) involved bias by a magistrate. When a defendant’s evidence contradicted that of a police officer in a speeding case, the chairman of the magistreates said ‘My principle in such cass has always been to believe the police officer’.

In all the above examples, the cases either collapsed in court or guilty verdicts were quashed on appeal. However, for some it took a second appeal, resulting in longer in jail - 16 years for the Birmingham Six and three years for Sally Clark