1.3. Describe models of criminal justice. Flashcards
What are the two models of criminal justice?
Herbert Packer (1968) described two contrasting sets of values which shape the way CJS works. Sums these up in two opposed models of criminal justice:
- the crime control model of justice.
- the due process model of justice.
The crime control model.
- Crime is a threat to people’s freedom and so goal of crime control model is the suppression of crime.
- Prioritises catching and punishes offenders, deterring and preventing them from committing further crime.
- Model starts from presumption of guilt. 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 conveyer belt/assembly line of justice system that speedily prosecutes, convicts and punishes them.
- Argues that if few innocent people are occasionally convicted by mistake, this is a price worth paying for convicting a large number of guilty people.
- It emphasises rights of society and victims to be protected from crime, rather than the rights of suspects.
The due process model.
- Power of the state is greatest threat to the individual’s freedom and so the goal of due process model is to protect the accused from oppression by the state and its agents. Include police, prosecutors and judges.
- Model starts from presumption of innocence. The accused is innocent until proven guilty after a fair trial.
- Has less faith in police’s ability to conduct satisfactory investigations. Incompetence, dishonesty etc. mean that suspects’ and defendants’ rights need to be safeguarded by a set of due process rules that investigations and trials must follow. Includes rules of arrest, questioning, legal representation etc.
- Rather than conveyer belt, the rules and procedures protecting their rights from necessary obstacle course that prosecutors have to overcome before they can secure a conviction.
- Means the guilty sometimes go free on a ‘technicality’ e.g. where 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/society.
Links to theories: the crime control model and theory.
Right realism: crime control model is a right-wing, conservative approach to justice and it has much in common with right realist theorists of crime. e.g. like zero tolerance policing strategies, it favours giving the police greater powers to investigate and suppress crime.
Functionalism: 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, it enables society to express its moral outrage and strengthen social cohesion.
Links to theories: the due process model and theory.
Labelling theory: due process model is a liberal approach. Aims to stop state agencies like the police from oppressing people. As such, it has links to labelling theory. The police may be tempted to act illegally, harassing groups they label negatively as ‘typical criminals’. Due process model offers some protection against this as it requires the police to follow lawful procedures and not exceed their powers.
Left realism: argues oppressive ‘militaristic policing’ of poor areas triggers confrontations and makes residents unwilling to assist the police. In left realist view, police must follow due process by acting in a lawful and non-discriminatory way if they want to fight crime effectively, since this depends on the cooperation of the community.
How far do the two models describe the system of justice in England and Wales?
See examples of each model by looking at two areas:
- the rules governing the working of the justice system - Do the rules protect the rights of the accused, or do they favour the prosecution?
- the way the system works in practice - Do the police, prosecutors and judges actually follow the rules and procedures as they should?
Rules governing the working of the justice system.
- Many due process rules in place to protect the individual’s rights during an investigation and trial. e.g. illegally obtained evidence may be rules inadmissible in court. Includes thing such as confession obtained by using torture/degrading treatment. Could be said to support the due process model, since it protects the defendant’s rights.
- However, the judge has power to admit illegally obtained evidence if they believe it will help establish the truth. Could be said to support the crime control model, since it may lead to a conviction.
Rules in UK governing the working of the justice system - rules favouring due process.
- The suspect’s right to know why they are being arrested.
- The right to remain silent when questioned by police and in court - based on principle it’s 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.
Rules in UK governing the working of the justice system - rules favouring crime control.
- Police rights to stop, question, search and arrest. The right to stop and search without giving a reason in some circumstances.
- The court may draw negative inferences 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 suspicion of indictable offences and terrorist offences.
Miscarriages of justice - Cases that point to fact the justice system does not always operate according to principles of due process model:
Colin Stagg: was the victim of attempted entrapment following murder of Rachel Nickell. Despite lacking any evidence against him, the police became convinced he was the killer and tried to use ‘honey trap’ to trick him into confessing to the crime.
Sally Clark: was wrongly jailed for the murder of her two baby sons partly as result of the Home Office pathologist and prosecution witness Alan Williams failing to disclose relevant information to her defence lawyers.
