Legal Systems in the Civilized World - Essay Example

How far does the criminal justice system provide adequate safeguards to suspects while they are being detained by the police prior to being chargedCriminal 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. To quote: "Legally, a crime is any act or omission proscribed by the criminal law and thus punishable by the state through the criminal justice system"1 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 - petty thieves, 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. 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.2 Indeed, the constant changes in the Criminal Justice Act reflects the constantly changing public mindsets on crime and its concomitant issues. The Criminal Justice System as it stands now appears to be biased against the accused. For example, Sections 34-39 would effectively allow law enforcement agents to draw inferences from the silence of a person undergoing custodial investigation, as for instance, when the accused "at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings."3 This provision whittles down considerably the right of the accused to maintain his silence, and shifts the burden of proof on him. Fundamental and crucial indeed is the basic precept in criminal law that the burden of proving the guilt of the defendant resides on the prosecution.4 The statement of Viscount Sankey LC5 in Woolmington v DPP rings loud and clear: 'Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to ...the defence of insanity and subject also to any statutory exception'. It is fundamental because it is rooted in the Constitutional guarantee of due process.6 An accused is presumed innocent until proven guilty, and his silence should not be taken against him.7 The importance of the presumption of innocence is discussed in the case of State v Coetzee8, where it was stated: '...the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system'. Moreover, the law also allows the police to conduct more intrusive bodily searches. It used to be that "intimate samples" such as saliva, blood, semen and urine could only be taken if the accused is charged with a grave offence like murder or rape. As it stands, constables could require an individual to open his or her mouth even when charged with a minor offence. In 1998, the Crime and Disorder Act was enacted, which introduced the concept of "Anti Social Behavior" 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 Anti Social Behavior Order (ASBO) is seen as necessary to protect relevant persons from further anti-social acts by the Defendant. The problem is that it those arrested may be subjected to a great deal of investigation and scrutiny before charges are filed, for a "disorder" that lies solely in the assessment of the constable. 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.9 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.1011 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 effect, Parliament appears to be saying that the exigencies of public order trumps ordinary rules of evidence, and that drastic problems require similarly drastic solutions. This mindset, however, has alarmed civil libertarians. Indeed, it 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. One fortunate thing is that the United Kingdom is in an international political climate that values human rights and due process. The International Covenant on Civil, Cultural and Political Rights (ICCPR) contains iron-clad guarantees to protect the rights of the accused facing trial for a crime. Articles 9, 14 and 15 spell out these rights in great detail - from the presumption of innocence to the right against self-incrimination to the right against double jeopardy and to the famous Miranda doctrine. Closer to home, under Article 6(2) of the European Convention on Human Rights, an accused enjoys a presumption of innocence. (Keane, 2006) At a time when human rights advocacy for the accused has been made unpopular by the rising rate of crime and thus, there is a greater risk of possible infringement of constitutional guarantees by overzealous constables, vigilance is imperative. 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. It cannot be denied that there is a need to protect the human rights of the accused and ensure that due process and presumption of innocence are practiced in real life and not merely consigned to lip service. These are precepts that should inform and animate legislation; and it is a sad day indeed when magistrates find ways to circumvent these principles. It must be noted that 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.12 Certainly, 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. Bibliography Cooper, S. (2003). "Human Rights and Legal Burdens of Proof."Web Journal of Current Legal Issues. Available at: http://webjcli.ncl.ac.uk/2003/issue3/cooper3.html Last Accessed: April 21, 2007. 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. Keane, A. The Modern Law of Evidence. London: LexisNexis. 2005. 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. Murphy, P. Murphy on Evidence. 9th Edition. Oxford: Oxford University Press. 2005. 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. Read More