Models of justice Flashcards
Crime control model
Places great emphasis - investigate stages
innocent are ‘screened out’
and
guilty are ‘passed quickly through the remaining stages of the process’.
‘presumption of guilt’ stems from confidence at the investigate stage.
in turn, place as few restrictions as possible on the investigate process.
Due process model
aim to protect the innocent,
place safeguards against errors.
points out that witnesses can make mistakes
confessions may be induced by various forms of coercion, the police are looking for evidence of guilt, not innocence.
so there must be the possibility of
further scrutiny open to the accused.
How do the crime control model and due process model differ?
what they are each really trying to accomplish
crime control - reduce crime
due process - protect the rights of the accused.
Best reflects the aims and values of the Criminal Justice Process in England and Wales (Michael King)
Lord Justice Auld refers two key ‘aims’ identified in the Government’s Paper that the criminal justice system in England and Wales is trying to achieve. Those aims are:
Reducing crime and the fear of crime and their social and economic costs; and
Dispensing justice fairly and efficiently to promote confidence in the law.
evidence that was obtained improperly
crime control would allow (even illegally)
Due process, however, would exclude, even if that evidence is highly relevant.
This example perhaps also shows that the reality lies between the two extremes – in the UK, evidence that was obtained illegally may be admissible, but only if its probative value exceeds its prejudicial effect on the fairness of the trial of the accused.
No system correspond exactly with either model, but in most systems the values of one or the other model appear to predominate.
Controlling crime rather than safeguarding due process
A society that feels unsafe more likely to accept or demand a system that is closer to crime control. Therefore, crime control measures appeal to popular and populist sentiment. They suggest a quick and effective response to the problem of crime and wrap this in a shroud of protecting the innocent and vulnerable. In many ways this is perfectly understandable.
Moreover, the safeguards required by due process are expensive (for example in terms of court time) and there has to be a limit on what the State can afford to expend on criminal justice. Packer notes that one of the hallmarks of due process is the notion that ‘there can be no equal justice where the kind of trial a man gets depends on the amount of money he has’.
Dr Daniel Newman (2014) indicates that “savings in the criminal process are precipitating a shift from due process values to those crime control,” when innocents will suffer as legal cuts pit paid to due process. While maintaining its legitimacy through professing due process principles, such as legal aid lawyers and the right to an appeal, the criminal justice system of England and Wales is increasingly crime control in its functional reality. Values are shifting under the ideological impact of austerity.
Crime control model
This model seeks a system that is efficient, in the sense of being able to apprehend, try, convict and sentence a high proportion of offenders whose offences become known.
The crime control model places great emphasis on the investigate stages of the criminal process. To achieve a high rate of detection and convictions, speed is important, as is finality.
This requires that, at the stage of the police investigation, those who are probably innocent are ‘screened out’
and those who are probably guilty are ‘passed quickly through the remaining stages of the process’.
Packer notes that this approach requires what he terms ‘a presumption of guilt’.
The ‘presumption of guilt’ stems from confidence in the reliability of the fact-finding that takes place at the investigate stage.
The remaining stages of the process can be relatively perfunctory. On this basis, the criminal process must put special weight on the quality of that earlier fact-finding.
This, in turn, makes it important to place as few restrictions as possible on the investigate process.
Due process model
The due process approach does aim to give maximum protection to the innocent, and so emphasises the importance of putting in place safeguards against errors.
It places much less faith in the reliability of the initial investigative stages of the process.
It points out that witnesses can make mistakes, that confessions may be induced by various forms of coercion, and that the police are looking for evidence of guilt, not innocence.
The due process model would argue additionally that the trial process itself may not lead to reliable fact-find, and so there must be the possibility of further scrutiny open to the accused.
How do the crime control model and due process model differ?
The major difference between the two is in
what they are each really trying to accomplish.
The crime control model is trying to reduce crime
while the due process model is trying to protect the rights of the accused.
The crime control model is about the repression of criminal behaviour, considered as the main aim of the criminal process,
whereas the due process model is aligned to the formal structure of the law and is concerned with the protection of the innocent.
The models provide two extremes but appear to have the same objectives of punishing criminals and protecting the innocent.
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In crime control model, the idea is to reduce by almost any means necessary.
The police and the prosecutors should be given more powers to pursue criminals or potential criminals.
This would reduce crime.
The crime control model is focused on reducing crime and to achieve its goal may be detrimental to the human rights of an individual. The criminal process should be quick and efficient, and can often overlook quality within the process to achieve quantity, for example the priority of detecting crime and convicting offenders at any costs.
In the due process model, the idea is that the people’s rights should be protected from the government. This model believes in curtailing the powers of law enforcement to keep them from trampling the rights of the people.
In contrast, the due process model attempts to ensure adherence to rights and liberties that are likely to impact on the reduction of crime and prosecution of offenders. A premise of English law is that a person is innocent until proved guilty. Agencies of the state are required to work within the rule of law, which provides certain safeguards for the accused from the initial investigation of a crime, to arrest, charge and through to trial. It may be fairly clear that a person is guilty of a crime but, if the evidence against them been improperly obtained, under this model the evidence would not be allowed. Here the process is concerned with quality rather than quantity to ensure fairness, integrity of evidence and protection of individuals, and to engender public confidence (Packer, 1968).
The due process model insists on the prevention and elimination of mistakes to the greatest extent possible, whereas the crime control model accepts the probability of mistakes up to the level at which those mistakes interfere with the goal of repressing crime.
Best reflects the aims and values of the Criminal Justice Process in England and Wales (Michael King)
Lord Justice Auld refers two key ‘aims’
identified in the Government’s Paper that the criminal justice system in England and Wales is trying to achieve. Those aims are:
Reducing crime and the fear of crime
and their social and economic costs; and
Dispensing justice fairly and
efficiently to promote confidence in the law.
In order to assess whether the system of criminal justice is ‘fit for purpose’, one way is to devise a theoretical model (setting out what the system should be striving to achieve and how it should be going about it).
King (1981:13) has described how a court is configured differently under six of what he terms these “theoretical process models.”
Each of these has different priorities and depends upon the criminal justice policy goals, which in turn are shaped by the analysis of cause.
King (1981: 13) points out that, depending upon which model has priority, there can be different effects upon components of the system such as law enforcement or the court.
For example, the overall policy goal of the classical due process model is to administer justice.
Therefore, the court will emphasise equality between the parties, protect the individual’s sovereignty by assuming innocence, and provide rules protecting defendants against error and arbitrary use of power.
In contrast, a court influenced by the crime control model will aim at administering punishment.
As a result its procedures will be extensively developed with disregard of legal controls, implicit presumption of guilt. It will provide support for police in which easily lead to high conviction rate but unpleasant experience of defendants.
Although two models apparently exclusive, tend to operate as ends of a continuum, with most justice systems appearing at various points along the line.
The English system in some ways has been characterised by a move from crime control to due process over the last 15-20 years, particularly in relation to some areas of police powers (for example, powers relating to the detention and questioning of suspects). To debate at present, however, appears to be focusing on the question of whether the balance has shifted too far in the direction of protecting the defendant.
New Labour’s stance on being ‘tough on crime’ looked very much oriented this way, and carried many of the hallmarks of a shift back to crime control.
In England and Wales, the introduction of Police and Criminal Evidence Act (1984) on one hand saw an extension of due process safeguards, whilst on the other it introduced a significant increase in crime control powers.
The fact that certain infamous miscarriages of justice, particularly the ‘Cardiff Three’, occurred following the introduction of PACE, is suggestive of crime control values remaining pervasive.
A good illustration of the conflict between crime control and due process is in the use of evidence that was obtained improperly.
The crime control would allow evidence to be used in a trial so long as it is relevant, because it has probative values; it does not matter how the evidence was obtained (even illegally).
Due process, however, would exclude form the trial evidence that was not obtained properly, even if that evidence is highly relevant.
This example perhaps also shows that the reality lies between the two extremes – in the UK, evidence that was obtained illegally may be admissible,
but only if its probative value exceeds its prejudicial effect on the fairness of the trial of the accused.
No system correspond exactly with either model, but in most systems the values of one or the other model appear to predominate.
Controlling crime rather than safeguarding due process
The safeguards required by due process are expensive (for example in terms of court time) and there has to be a limit on what the State can afford to expend on criminal justice.
Packer notes that one of the hallmarks of due process is the notion that
‘there can be no equal justice where the kind of trial a man gets depends on the amount of money he has’.
Dr Daniel Newman (2014) indicates that
“savings in the criminal process are precipitating a shift from due process values to those crime control,” when innocents will suffer as legal cuts put paid to due process.
While maintaining its legitimacy through professing due process principles, such as legal aid lawyers and the right to an appeal, the criminal justice system of England and Wales is increasingly crime control in its functional reality.
Values are shifting under the ideological impact of austerity.
A society that feels unsafe more likely to accept or demand a system that is closer to crime control.
Therefore, crime control measures appeal to popular and populist sentiment.
They suggest a quick and effective response to the problem of crime and wrap this in a shroud of protecting the innocent and vulnerable.
In many ways this is perfectly understandable.
