Due Process versus Control Model - Essay Example

?CASE STUDY: DUE PROCESS VERSUS CONTROL MODEL Introduction The origin English and Wales criminal system can be traced as far as the 12th century. At the time, the monarchs adopted the ‘trial by ordeal’ and ‘trial by combat’ but these elements were later replaced by the modern criminal justice system. According to the modern criminal systems was set up by the King Henry II between 1154 and 1189 with the establishment of 12 local knights to settle disputes over the ownership of land. The system later evolved with the established of the Magistrates’ court during the reign of Edward I, and the abolishment of the nearly 300-year-old assize courts in 1830. Later on, the Judicature Act of 1873 was passed and the Criminal Appeal Act of 1907. Due process model According to Sanders, Young and Burton the English criminal system just like the American one, emphasizes on adversarial procedures and due process safeguards. The relevance of the due process in the English law is advised by the fact witnesses could be biased or the police force may interfere with the whole process. By insisting on a formal adjudicative process, the accused are able to get justice and beside, the entire process prevents the miscarriage of justice as an end to itself. In addition the due process discourages the law enforcement agencies from abusing power and breaking rules, while encouraging the primacy of the individual citizen. The role of the police in the criminal justice system is very constrained. As Wells and Quick (2010) observe in Wales and England, police can go as far taking an inquisitorial role but cannot force citizens to produce testimony against their will. The due process starts once an adversarial relationship has been formed or after becomes a suspect. In all fairness once can see that the role of the police is very limited in English and Wales criminal system. The existing laws goes as far guarding the misuse of powers by requiring the police offers to adhere to a set of rules. The police force is even required to justify their actions under the due process, failure to which the suspects can be freed. Moreover, the suspects enjoy right to legal advice, and there must be proof reasonable doubt before they are prosecuted. According to Wells and Quick (2010) the due process model as practiced in England and Wales, involves the use of procedural and evidentiary rules in order to avoid to prevent miscarriages of justice to the accused. Wells and Quick (2010) liken the due process model to an assembly line or an obstacle course designed to prevent the accused from progressing through the criminal process. The need for incorporation of the due process in the English and Wales criminal system is characterized by the elements of miscarriage of justice and observance of human rights. Another core element of the system is presumption of innocence doctrine, which is prescribed to by many other judicial systems all over the world. Presumption of innocence doctrine This is a core tenet in the criminal justice system, and is equally appreciated in the European Convention on Human Rights. The presumption of the innocence doctrine further suggests that the onus lies on the prosecution to prove the defendant’s guilt beyond reasonable doubt. According to Wells and Quick (2010) by forcing the prosecution to prove its case against the accused in an adjudicative context, the accused acquires an enhanced opportunity to secure a favourable outcome. Shift from the due process system to the control system However, in the face of the increasing terrorist activities, and transnational crimes, the English government is under increasing pressure to adopt the crime control approach. At the same time, the English system is under pressure to initiate an appropriate legal framework to support the law enforcement agencies to control the levels of crime being experienced. The crime control model as suggested by Sanders, Young and Burton (2010) is based on the proposition that the repression of the criminal conduct is the main role of the criminal process. According to Sanders, Young and Burton (2010) for this model to operate effectively is should have a high rate of crime detection and conviction. Among the activities that define this model include examination by the law enforcement agencies. According to Sanders, Young and Burton (2010) compared to the due process model, the control system ensures prompt delivery of justice to the affected persons. In addition, the control system eliminates lengthy and expensive trials, and lack of efficiency could negatively affect the potential of the courts from delivering justice to the affected persons. To promote confidence in the system, limited safeguards such as the appellate systems could be put into place. Because of its potential of preventing criminal activities, the crime control system is regarded as a suitable instrument for protecting individual rights and freedom. According to (0 the system also require high efficiency and reliability of administrative procedures in identifying facts of the crime. A gathering dubbed the international conference on criminal justice under stress: transnational perspectives held on 24th November, 20006 established that crime control system is becoming a viable alternative to due process system. This is because it does not on conviction through adjudication rather the entry of place of guilty. Such a strategy facilitates governments to reduce the amount of resources required for administrative and prosecutorial services. In the face of growing complexity in the international crimes, it is becoming apparently for the England and Wales criminal systems to adopt a hybrid of the due process and criminal control systems. The nearest the current system came to adopting such a perspective was in 2001 with the initiation of the initiation of the Anti-Terrorism, Crime and Security Act 2001. The act enhanced the police powers in the investigation and prevention of terrorist activities while allowing for the indefinite detention of foreign national suspected of terrorism. The law does not appreciate one of the tenets of the due process- the respect for human rights- and just to illustrate, its provisions gives the police and security agencies the power to collect personal information from, private and public bodies. In addition, the law gives the security agencies the authority to freeze property of suspected at the start of an investigation. Stop and search The police in England and Wales are empowered under section 1 of the Police and Criminal Evidence Act (PACE) to conduct stop-and-search. However, according to the Eq1uality and Human Rights Commission, the law as it is discriminates against the minority groups. The inconsistencies of the application of the law are well described in the article titled, stop and search used disproportionately on black and Asian people. According to Sanders, Young and Burton (2010) the ENHRC found out that in Dorset, the black people are eleven times more likely than white people to be stopped and searched. The situation is similar in West Mercia and Warwickshire where the Asians and people of mixed races have disproportionate chances of being stopped and searched. Another key component of the current system is the Criminal Justice and Public Order Act of 1994, which was introduced to deal with football-related disorders. According to the EHRC report police are likely to misuse this law, by arresting Asians and blacks more than white people especially in the West midlands, and Thames Valley. The motive of this law was to protect the public, and reduce crime and disorder. The use of various laws to contain social disorders in the English and Wales raises other concerns which are detailed below. According to the Sanders, Young and Burton (2010) the labour government has made ambitious steps to reduce crime and discourage anti-social behaviours. In the case of Gough v. CC Derbyshire, laws dealing with the anti-social behaviour disorders are recognized and as a matter of fact such laws do not require the criminal standard of proof. The same is reflected in the case of Clingham v. Royal Borough of Kensington and Chelsea. Between w999 and 2006 12,675 orders were issued and in these cases the applying agencies did not have to prove the intention of the defendant to cause harassment, alarm or distress. In order to enforce the anti-social behaviour orders, the police enacted the Police Reform Act of 2002 and the Acceptable Behaviour Contract was initiated. Under this arrangement, suspects and authorities can form an agreement to preventing and stopping low levels of anti-social behaviours. These aspects of the criminal justice system work towards crime prevention, rather than following the due process in the prosecution of the suspects. Under the current laws, the police also have the powers to pre-empt offences by identifying individuals and subjecting them to conditions. According to Sanders, Young and Burton (2010) this is a common occurrence, when controlling group marches and prevention of activities that are likely to threaten public order. In line, with the existing laws, police have the authority to arrest individuals are about to cause a breach of peace, remove trespassers from private land or deal with the offences of aggravated trespass. Again by giving police the authority and power to arrest without prior approval, it is a testament enough that the English and Wales criminal system conforms to the crime control model. Other powers and laws given to the police and which given them the authority to deal with unstable situations includes the dispersal power act to prevent individuals from committing offences ranging from aggravated trespass Comparison of the due process and the crime control The available literature suggests that crime control system and the due process system have several differences and similarities. For instance, the crime control system prioritizes the conviction of the guilty while the due process prioritizes the acquittal of the innocent. In addition, while the crime control system may infringe on the rights of suspects to achieve its goals, the due process protects the civil liberties. Judging from the above literature it is right to conclude that the English and Wales criminal justice system is a hybrid of criminal control and due process models. This is because the while the English and Wales criminal justice system follows the due process, the police reserve the authority to arrest, and as is the practice, they could even detain individuals to obtain confessions. From the available information on the two models, it apparent that the due process model plays an important role in the English and Wales criminal system and as such should continue being part of the judicial system. At the same time, the due process as applied in the English and the Wales legal system recognizes the primacy of the individuals and the need to limit the powers of the officials. The need for this form of criminal system in the English law is appreciated by the fact that police could abuse the powers they have hence the need to have formal safeguards to protect the suspects. This due process is especially important in the African countries where police are used to breaching human rights while disregarding the legal system to the detriment of the accused persons. Given the benefits associated with the due process model, it is important that the English and Wales criminal system preserves elements to protect the rights of the suspects. On the other hand, the crime control model focuses on the repression of the criminal conduct in the interests of the society. One such legislation which seeks to protect the larger society from criminal activities is the Crime and Disorder Act of 1998. From the available information is apparent that having elements of crime control in a criminal system is very important due to scarcity of resources. In this regard, following the strict procedural rules as provided for under the due process model could be strenuous and requires vast resources to implement. This means that the English and the Wales criminal systems should continue opt to re-train and empower the police and prosecutors to help them screen out the innocent rather than over-relying on the judicial system. Conclusion In sum, the English and Wales criminal justice system operates in line with the criminal process and due process ideologies. The current criminal system can be improved by empowering the police force and the prosecutors in order to reduce resources required for screening out innocent citizens. The crime control model is considered suitable in the modern society because it is quicker and more efficient than the due process model. On the other hand, the due process control act is considered humane as it observed the human rights as envisaged in the EHRC. The importance of the due process model is best demonstrated in the cases of Brewer versus Williams, where a man was found innocent due to violation of his interrogation rights. However, later on, upon retrial, Williams was convicted for rape and murder, and this aspect of the due process modal makes it tight proof. Given that both have attendant strengths and weakness, the current criminal system should incorporate both, so that they can complement each other. This compromise is very necessary given that implementing a purely due process model is likely to be very expensive, and contributes less to the prevention of criminal activities. Reference list Sanders, A., Young, R. and Burton, M., 2010. Criminal justice. Oxford niversity Press Wells, C. and Quick, W., 2010. Lacey, wells and quick reconstructing criminal law. Cambridge University Press Read More