Criminal Justice Law - Essay Example

Criminal Justice Law The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60 is an act of the British Parliament that specifies a legislative framework for establishing a balance between police powers and citizens’ rights in England and Wales. “A series of codes of practice” 2. e lawn evidence was obtained in re consistent with the crime control model and have found the approval of courts. 00000000000 form part of the act for the police to exercise their powers under the act. Notably, modifications to the original act introduced by the Serious Organised Crime and Police Act 2005 replaced nearly all existing powers of arrest and introduced a new general power of arrest for all offences, making the concept of “arrestable offences” 3 irrelevant. The codes of practice are applicable to all persons with law enforcement duties, including Store Detectives, Council Officers and Customs Officials. The introduction of these changes has attracted much debate, both in support and in criticism from the legal fraternity, law enforcement agencies, civil liberties activists and the public in general. “Arrestable Offences”, defined under the Police and Criminal Evidence Act 1984 enable police to exercise certain related powers like entry to premises, arrest, searches following arrest, and provisions while in custody. Definitions of arrestable offences under Section 24 of the Act include an offence for which the sentence is fixed by law; i.e. murder and offences for which a first time offender of legal age could be sentenced to terms of 5 years or more. Such offences constitute the most common ones including theft, serious assault, burglary and criminal damage. Some other offences are listed in a separate schedule of the act, which did not attract 5 year sentences but are to be considered in the same category as arrestable offences. These include offences like possession of offensive weapons, ticket touting etc. This list has expanded further with the inclusion of newly created offences and the number of exclusions dropped. Finally, the very concept of “Arrestable Offences” disappeared on enactment of the Serious Organised Crime and Police Act 2005 which came into effect from 1st January 2006. The focus now changed to whether arrest is "necessary" in the sense of being under pressure of circumstance or physical or moral compulsion 4 to arrest the relevant person. 5. The change from a statute based decision to arrest or not, to a decision involving discretion on the part of the person making the arrest has serious implications especially in the context of the offenders’ rights. The comprehensive changes to powers of arrest were introduced through the addition of a new Code G in s 24 and s 24A of PACE 6, as amended and inserted by s 110 of SOCA 2005. 7. The new provisions give police the powers of summary arrest if they had reasonable grounds to believe that for any of the reasons set out in the code, it is necessary to arrest a person. The reasons set out include ascertaining a person’s identity, preventing self inflicted physical injury or injury to others, preventing the person from causing loss or damage to property, protecting children or other vulnerable individuals, to allow the prompt and effective investigation, or to prevent hindrance to prosecution by absconding. Many of these reasons are vulnerable to subjective interpretation. Some examples of necessity are also mentioned in Code G, which include a single exception for the offences of assisting an offender and concealing evidence. Code G also confers powers of summary arrest upon other persons. Such powers vest in them when indictable offences 8 are involved and where the person making the arrest has reasonable grounds to believe that arrest is necessary, and that it is not reasonably practicable for a constable to carry out the arrest. 9 Non-professional law-enforcement officers like store detectives or Council Officers are also expected to exercise such discretion if the situation warrants. There is an apprehension that this may result in abuse of powers by these people. The removal of the concept of “arrestable offence” also changed the meaning of the provisions of the Police and Criminal Evidence Act 1984 (Ch 60) relating to entry of a constable to any premises for the purpose of an arrest. Persons other than constables could now make an arrest, and there were no “arrestable offences” since all offences now attracted arrest. 10 The new provisions were defended by Home Office Minister Hazel Blears - “A simplified rationalised power of arrest for all offences aimed at cutting bureaucracy and better equipping the police to tackle the changing nature of crime -- We need to maintain the crucial balance between the powers of the police and the rights of the individual and requires the police officer to consider the ‘necessity’ 11 of the arrest. The officer has to focus on the individual circumstances of the case and the needs of the investigation. This new power includes significant safeguards that enable the police to tackle crime effectively and raises, rather than reduces, accountability in the use of these powers. The emphasis is now on providing justification for arrests. It is vital that the police are equipped with the powers they need to enable them to do their jobs properly and effectively. The powers need to be updated in order to reflect modern policing priorities and the changing nature of criminal activity 12”. The new single power of arrest aims to simplify powers of arrest by providing a constable the power of arrest for all offences and application of a test of necessity to be carried out before the arrest. However, PACE is rather less eloquent on the remedy for unjustified arrests. Specific provisions to take care of this aspect would instill greater sense of confidence both among the public and among members of the law enforcement agencies. The necessity test forces the constable to focus on the individual circumstances of the case and the circumstances of the victim, the offender and the needs of the investigation. These provisions imply that people can be arrested for even minor offences like painting graffiti or littering. Existing non-arrestable offences like impersonating a police officer, failing to stop a vehicle on order, manufacturing or selling offensive weapons, and failing to hand over a passport to a court, now lose their impunity. 13. While Shadow Home Secretary David Davis dismissed them as "another headline grabbing initiative", Ms Blears insisted that policing will be made more practical and efficient. "These tough new powers make a significant contribution to creating a modern, efficient police service equipping frontline officers with the tools they need to fight modern crime effectively and keep our neighborhoods safe," Ms Blears added, 13 while agreeing on the need to maintain a balance between the powers of the police and the rights of the individual. Criticism of the new provisions of arrest ranged from that of Shami Chakrabarti, director of civil rights group Liberty, who said it is "disproportionate" to make offences which could not carry a prison sentence arrestable. The Conservatives have indicated they will be adopting a policy of “wait and watch”. Liberal Democrat home affairs spokesman Mark Oaten was quoted by the Daily Telegraph as saying, "Officers need firm guidance on how to use these powers. Nobody wants to live in a society in which every offence results in people being dragged down to the police station." 14 While the need to preempt manipulative use of the judicial process cannot be dismissed, sufficient safeguards against errors of judgment and even misuse should be instituted at least at later stages of investigation. One cannot also rule out the possibility that such later-stage protection may become biased against the arrested person primarily because arrest itself is perceived as supposition of guilt. On a broader perspective, changes in criminal justice law must be viewed in the context of various models of crime management. Concepts such as non-emergency policing, prioritising the nature of activity into proactive or reactive policing, and the use of intelligence for targeting police activity are the major themes of a model suggested in a report produced as part of PRG’s Police Operations Against Crime Programme, which concludes that “the management of change from reactive to proactive is difficult” 15. The most popular models of crime management are Packer’s Crime Control Model and Packer’s Due Process Model, and the changes in powers of arrest introduced by the new provisions of PACE have important connotations when viewed in the context of these models. Herbert Packer developed a methodology for evaluating the criminal process by crime control and due process.16 Packer claimed to be a utilitarian 17, implying priority of prevention of crime over punishing criminals. 18. The changes in powers of arrest through PACE emphasise the very same order of priority. Proponents of the crime control model endorse an all out assault on criminal activity. 19 “War on Crime” is how politicians and police describe the means to identify, pursue, isolate, and finally eliminate criminal elements. Aggressive raids and searches form a part of the strategy 20 of implementing a process of repression of criminal conduct. 21. “The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom.” 22. “Speed and minimizing the occasions for challenge.” 23 are crucial elements for the success of this model. Speed can be achieved through interrogation 24 and by avoiding examination and cross-examination in court which are slow processes. 25 The crime control model presumes guilt as a means to tackle larger numbers of suspected criminals 26 and the process is often referred to as a production or conveyor belt operation 27 Initial screening of suspects is left to the expertise of first-line law enforcers. “If there is confidence in the informal administrative fact-finding activities, the process can be relatively perfunctory without any loss in operating efficiency.” 28 The changes in the powers of arrest brought about through PACE are a striking mesh with the crime control model. The model argues that if many guilty people escape liability, or if the system appeared to be unreliable, 29 the result would be at the expense of the deterrent effect of criminal law.30 Findings of guilt under the model should normally be regarded as final.31. Evidence obtained through abuse of process is tolerated 32. The possibility of abuse of process is higher when larger numbers are involved and pressure mounts on the law-enforcement officers. The situation is compounded when the arrest itself is on flawed grounds and the supposition of guilt follows the arrested person throughout subsequent proceedings. These are dangers inherent in arrest on flimsy grounds. 33. The due process model 34 advocates a careful and informed consideration of facts and law enforcers must respect the rights of suspects during arrest and ensuring independent and impartial judicial process 35 and provides protection against illegitimate conviction. It lessens the chances of unreliable witness testimony 36, 37 or coerced confessions 38, 39 by relying on fact-finding through examination and cross-examination. Thus the simplified powers of arrest introduced in 2006 have the potential to negate the safeguards advocated in the due process model. However, the changes have the benefit of speeding up the process of law-enforcement and even serving to prevent crimes by acting as a deterrent. Chances of error in evidence and testimony are avoided in the due process model 40, which the new powers of arrest seem incapable of ensuring. On the other hand, critics point out that justice delayed is justice denied and the liberalisation in powers of arrest is show-cased as a model for speedier dispensation of justice. The integrity of the administration of the criminal justice system requires that the government teach by example. 41 When the government breaks the law, contempt for law ensues, inviting anarchy, and perceptions of unfairness arise 42. The risk of police themselves appearing to break the law through unjustifiable arrest could promote such perceptions. Most citizens are willing to condone a little illegality if major criminals are apprehended 43, and it is in the public interest to prosecute and convict as many serious offenders as possible 44. Viewed in this light, the changes in powers of arrest are consistent with the crime control model and have found favour in case law 45. Works cited 1. http://www.swarb.co.uk/acts/1984PoliceandCriminalEvidenceAct.html accessed on 2nd December 2006 2. http://police.homeoffice.gov.uk/operational-policing/powers-pace-codes/pace-code-intro/?version=1 accessed on 2nd December 2006 3. Zander. (2005). The Police and Criminal Evidence Act (5th ed.). London: Sweet & Maxwell. 4. http://www.m-w.com/dictionary accessed on 3rd December 2006. 5. Zander (2005). The Police and Criminal Evidence Act (5th ed.). Sweet & Maxwell. 6. http://www.swarb.co.uk/acts/1984PoliceandCriminalEvidenceAct.shtml 7. http://www.opsi.gov.uk/SI/si2005/20053496.htm accessed on 3rd December 2006. 8. http://www.m-w.com/dictionary/indictment accessed on 3rd December 2006. 9. http://www.solicitorsjournal.com/story.asp?storyCode=7410&eclipse_action=getsession accessed on 3rd December 2006. 10. http://www.swarb.co.uk/acts/1984PoliceandCriminalEvidenceAct.shtml 11. http://www.m-w.com/dictionary 12. http://press.homeoffice.gov.uk/press-releases/new-powers-for-police?version=1 13. http://news.bbc.co.uk/1/hi/uk/4564600.stm accessed on 3rd December 2006. 14. Liberal Democrat home affairs spokesman Mark Oaten in the Daily Telegraph 15. http://www.homeoffice.gov.uk/rds/prgpdfs/fprs18.pdf 16. Packer, Herbert L. (1969). THE LIMITS OF CRIMINAL SANCTION, 153. 17. http://lsr.nellco.org/cgi/viewcontent.cgi?article=1033&context=uconn/cpilj 18. http://faculty.ncwc.edu/toconnor/111/111lect01.htm accessed on 2nd December 2006. 19. Brandon A. Perron. THE CRIME CONTROLS AND DUE PROCESS MODELS - 20. Packer, Herbert L. (1969). THE LIMITS OF CRIMINAL SANCTION, 153. 21. Andrew Sanders and Richard Young. (2000). Criminal Justice. (2nd ed). 2 Id. at 158. 22. Id. 23. Extra judicial processes are preferred to judicial processes. See id. at 159. 24. Packer. (supra note 1, at 159). 25. Andrew Sanders and Richard Young. (2000), supra note 2, at 22. 26. Id. at 160. 27. Id. 28. Id. at 160-61. See also SANDERS &YOUNG, supra note 2, at 22-23. 29. SANDERS & YOUNG, supra note 2, at 23. 30. PACKER, supra note 1, at 162. 31. SANDERS & YOUNG, supra note 2, at 23. 32. Id. at 24. 33. PACKER, supra note 1, at 163-68. 34. http://sociologyindex.com/due_process_model.htm 35. PACKER, supra note 1, at 163. 36. False Confession, Wrongful Convictions & Eye Witness Error, available at http://faculty.ncwc.edu/toconnor/psy/psylect06.htm. 37. A study reported by Borchard in 1932 found that eyewitness error contributed to forty-five percent of wrongful convictions. Id. (as cited by E. Borchard in Convicting the Innocent (1932). 38. In 1999, the APAS Div. 41 (American Psychology-Law Society), after reviewing a number of cases, found an eyewitness error rate of an astonishing ninety percent. Id. (citing Scott Sleek, Many Eyewitnesses Identify Wrong Person, APA Monitor (Feb. 1999) available at http://www.apa.org/monitor/feb99/reno.html. 39. Andrew Ashworth. THE CRIMINAL PROCESS: An Evaluative Study (27-28). 40. Olmstead v. United States, 277 U.S. 438, 484-85 (1928). 41. Ashworth, supra note 19, at 53. 42. Id. at 53. 43. 1 W.L.R. 104 (Eng. H.L. 1996). 44. Bloy, Duncan. (1994, 38). Lecture Notes: Criminal Law. London: Cavendish Publishing. Read More