Key Legislative Developments in Criminal Justice in England - Essay Example

KEY LEGISLATIVE DEVELOPMENTS IN CRIMINAL JUSTICE IN ENGLAND Criminal justice in any mature society always involves a balance of two competing interests: the need to protect the rights of the accused, and the need to combat crime and instill peace and order in society. "Legally, a crime is any act or omission proscribed by the criminal law and thus punishable by the state through the criminal justice system" (Davies, Croall and Tyrer, 2005) Legal systems in the civilized world - whether in civil or common law jurisdictions -- have, at least in theory, given primacy to the rights of the accused, understanding that ambiguity should be resolved in his or her favor. In practice however, we see how police officers routinely violate the human rights of those they apprehend. The implicit message is that these are criminals anyway - thugs, petty thieves, gangsters, punks, drug addicts, alcoholics - and they are doing society a favor by treating them brusquely. An oft-heard justification is that you cannot treat hardened criminals with kid gloves or you will be perpetrating crime even further. But this argument has no regard for the fact that even hardened criminals are covered by the human rights guarantees in the Constitution and in human rights conventions. Human rights are inalienable and imprescriptible, and they apply to everyone. On the other hand, the desire to preserve society and prevent crime is equally valid. It would seem that society has been ill-equipped to come up with answers and solutions to address it definitively (Norrie, 1996). It is imperative however to disabuse oneself of the simplistic approach that is often used when analyzing crime rates. Many are wont to believe that a rise in crime rates signifies a social problem, and a decrease is something to be lauded. In fact, a rise in recorded crime rates could actually mean better police efficiency, a willingness of the victims to come forward, and a desire by society as a whole to condemn criminals. The significance of making this initial assertion is explained by Matthews (1995) as follows: Making this point at the outset is important for two reasons: First it helps to free us from the disarming grip of pessimism that is often associated with the assertion that increases in crime and inevitable and undesirable. Second, it reminds us that crime is a social construct and is the outcome of a complex process of action and reaction. Crime is reducible neither to an act or to a biography. Rather it is a process that requires both an offender and a victim - direct or indirect - to interact within a milieu of formal and informal constraints. The parliament is vested with the power to create laws that have coercive effect. It is essentially in their province to come up with regulations to maintain order and peaceful conduct in the society, while ensuring that a human rights framework is always in place. Over the past two decades, there has been a steady stream of legislation, marking the evolution of Criminal Justice as it is known in the present time. Indeed, the constant changes in the Criminal Justice Act reflects the constantly changing public mindsets on crime and its concomitant issues. The Criminal Justice Act of 1991 was introduced to reflect the notion of "just deserts", It also provided for some protections for the accused, in particular, a provision stating that past offenses should not be taken into consideration when sentencing a felon, except in certain circumstances. However, some feel that in practice, proportionality gives rise to many problems and within six months of being in force, the CJA 1991 was already being undermined. (Hudson, 1994). There are also those who perceive the XJA 1991 as a case of government valuing efficiency over democracy (Lacey, 1994). Said Windlesham (date): "Of all the lessons to be drawn the first is the way in which so many of the provisions which found their way into law derived from the perceived demands of local, sectional or national public opinion rather than from practical experience or detectable body of coherent principle." After three years, the CJA 1993 was enacted, which removed the unit fines that were introduced in 1991. The CJA 1993 dealt primarily with drugs and anti-trafficking. Given the proliferation of illegal drugs and considering its pernicious effects on the youth population, the Parliament deemed in necessary to create legislation addressing this specific problem. In 1994, the CJA 1994 was passed, amidst widespread furor from civil liberties groups for punishing behavior deemed "anti-social". The wider restrictions on raves (or the use of repetitive beats), the regulations on street protests and the wider definition of trespass have been perceived to be in violation of human rights guarantees. This is ironic considering the strong bias towards civil liberties in European Courts. In fact, aside from imposing a negative obligation on law enforcement agents not to trample on protected rights, the law states that they must secure the effective enjoyment of these rights. [Wilson and Palmer v. United Kingdom (2002) 35 EHRR 20). In the case of Plattform 'Arzte fur das Leben v. Austria [{1988) 13 EHRR 204] the ECHR held that "Genuine effective freedom of peaceful assembly cannot be reduced to a mere duty on the part of the state not to interfere Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be." At present, the law prohibits any public body from behaving in a manner that is incompatible with any of the rights guaranteed under the European Convention on Human Rights. (Hoffman & Rowe, 2003). Moreover, many of the provisions were deemed to be violative of the Constitutional guarantees on the rights of the accused. For example, Sections 34-39 would effectively allot law enforcement agents to draw inferences from the silence of a person undergoing custodial investigation. Sections 54-59 allowed the making of more intrusive bodily searches, while Section 60 afforded the police greater power to make stop and search operations. In 1998, the Crime and Disorder Act was enacted, which introduced the concept of Anti Social Behavior Orders which in the United Kingdom is defined as 'conduct which caused or was likely to cause alarm, harassment, or distress to one or more persons not of the same household as him or herself and where an ASBO is seen as necessary to protect relevant persons from further anti-social acts by the Defendant.' A criticism of this is forwarded by Sanders (1998): It created Anti Social Behavior Orders, breach of which is punishable by up to five years' imprisonment, more draconian restrictions on sex offenders who have already served their time, and child curfew schemes, to give just three examples. This is all consistent with Howard's 1997 legislation in its intolerance of diversity and its disregard for civil liberties, standards of proof and modern criminological research. Crime and disorder will no doubt increase despite (or even as a result of) these measures, but only the nave believe that Home Secretary Straw will learn the obvious lessons from this. Of course, not to be forgotten in 1998, is the creation of the Human Rights Act. The Human Rights Act 1998 received royal assent on November 9, 1998 and came into force on October 2, 2000. The objective of said Act was to harmonize the domestic law of the United Kingdom with the European Convention on Human Rights and to provide for stricter human rights guarantees to be followed by all states. The provisions on free speech, freedom of assembly and due process all impact heavily on the criminal justice system in the United Kingdom. In 2000, the Criminal Justice and Court Services Act 2000 was enacted, which created the National Probation Service and allowed for compulsory drug testing for offenders. (Davies, Croall and Tyrer, 2005) It also increased maximum penalties for offences relating to child pornography. To address the burgeoning problem of terrorism following the World Trade Center bombings in the United States, the Anti Terrorism, Crime and Security Act was enacted, to enhance police power and facilitate information sharing between the different branches of government. (Davies, Croall and Tyrer, 2005) In 2004, however, the Law Lords declared Part 4 of the Act incompatible with the European Convention on Human Rights. Part 4 allowed the Home Secretary to certify any non-British citizen whom he suspected to be a terrorist and have him detained indefinitely. In 2003, the Sexual Offences Act was passed which redefined the concept of consent. Currently, the accused, in order to secure an acquittal, must be able to prove that he had reasonable grounds to believe that the victim gave her consent. Prior to 2003, the Sexual Offences Act of 1956 read: 'at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it'. Equally significant is Section 75 of the Act, which creates a rebuttable presumption that the victim did not consent and the defendant had mens rea under certain circumstances. The highlight of 2003, of course, is the enactment of the Criminal Justice Act 2003 which rebalances the Criminal Justice System in favour of witnesses, victims and the community. (Davies, Croall and Tyrer, 2005) It is an attempt to modernize the system as it amends the law with respect to the powers of the police, appeals, and admissibility of evidence. The over-all aim is to reduce the possibility of the system being abused. Indeed, a modernization of the system is long overdue. In order to keep up with the times and to keep a society that is protected from crime while at the same time maintaining its adherence to human rights and civil liberties, the system needs to be revisited from time to time. Antiquated concepts must be thrown out. Conceptions in criminal justice is constantly evolving, the variety and nature of crimes committed shift as well. The key is to be able to adapt with constantly rising developments, while remaining firmly committed to the timely ideals of justice. References Davies, M., Croall, H. & Tyrer, J. An Introduction to the Criminal Justice System in England and Wales. London: Pearson Longman. 2005. Hoffman, D. & Rowe, J. Human Rights in the UK: An Introduction to the Human Rights Act 1998. London: Pearson Longman. 2003. Hudson, B. "Beyond proportionate punishment: Difficult cases and the 1991 Criminal Justice Act." Crime Law and Social Change. Vol. 22, No. 1, 1994. Lacey, N. "Government as Manager, Citizen as Consumer: The Case of the Criminal Justice Act 1991" The Modern Law Review, Vol. 57, No. 4 (Jul., 1994), pp. 534-554. Matthews, R. "Crime and Its Consequences in England and Wales". Annals of the American Academy of Political and Social Science. 1995. Norrrie, A. "The Limits of Justice: Finding Fault in the Criminal Law". The Modern Law Review, Vol. 59, No. 4 (Jul., 1996), pp. 540-556. Sanders, A. "What Principles Underlie Criminal Justice Policy in the 1990s" Oxford Journal of Legal Studies, Vol. 18, No. 3 (Autumn, 1998), pp. 533-542. Windlesham, L. Responses to Crime: Vol. 3--Legislating with the Tide. Oxford: Oxford University press. 1996. Read More