Analyse the adequacy and relevance of the crime control and due process models for understanding criminal justice, with reference to the jurisdiction you are in and/or England and Wales.

by teheeteng (student)

University Degree Law

University of London

Common Law Reasoning and Institutions

Essay: Analyse the adequacy and relevance of the crime control and due process models for

understanding criminal justice, with reference to the jurisdiction you are in and/or England and Wales.

Student Number: 100264036

Candidate Number: L2412

Criminal justice system is a system of study and application of laws as means of controlling crime, at the same time ensuring justice is upheld in the process as well. In reality, these two fundamental purposes of criminal justice system often conflict each other when a hard case is presented before the court. The relevance of criminal justice models lie in the core objective of the criminal justice system. For instance, does the criminal justice system in UK aim to sufficiently protect the rights of individuals to a fair trial, or to give absolute attention to public safety and control crime rate. In this research, crime control model and due process model will be studied to show their relevance towards a criminal justice system

In the perspective of a crime control model, the failure of law enforcement to bring criminal conduct under tight control is viewed as the primary reason leading to breakdown of public order and a general disregard for legal controls tends to develop. Therefore, the primary objective of this model is as suggested by its name, making the control of criminal activities the system’s priority. This model ultimately maximizes the number of criminals stopped and brought to justice, though at the price of risking crime suspects, innocent or guilty, being maliciously prosecuted due to the model’s upholding of the notion that one is guilty until proven innocent. In practice, the crime control model sees the repression of criminal activities as the utmost important function of criminal justice system and places main attention on the operations of criminal proceedings such as screening suspects, determining guilt, and securing appropriate dispositions of persons convicted of crime. This model encourages the justice system to give full support to police actions to the extent of ignoring the legal procedures of information collecting on occasions. Though being effective in deterring crimes, a crime control model nevertheless bears a higher risk of wrongfully convicting an innocent.

On the other hand, a due process model is more concerned with the structure and efficiency of the law. The model places great deal of accentuation on procedural law, such as rules of evidence, impartial fact-finding as well as other criminal proceedings. In contrast to crime control model, this model upholds the notion that one is innocent until proven guilty. The fundamental principle in due process is heavily based on the rule of law stating that no one can be punished by the government except for a breach of the law, thus meaning a person’s legal rights are to be respected and shall not be violated in a legal proceeding. In practice, due process model carefully deals with every case presented before the courts. Though, occasionally some criminals were allowed to get off scot-free when their guilt cannot be sufficiently proved in a criminal proceeding.

While these two models have a common goal, which are to reduce crime and protect the public, they have very different views on fundamental justice. While crime control emphasizes on maintaining a crime-free society by “eliminating every threats” of the society, due process on the other hand emphasizes on fair judgments to every person to ensure that the law will never punish a wrong person. In reality, these two models represent two different value systems that compete with each other for priority in criminal proceedings. However, as Herbert L. Packer puts it “neither is presented as either corresponding to reality or representing the ideal to the exclusion of the other”. In order for a criminal justice system to function with the utmost adequacy, a lot of countries do not simply commit to a model and exclude another one, but instead adopt the fundamental values of a model into their criminal proceeding whilst retaining some principles of the other model. An example of a country with unique criminal justice system is Canada, which the police forces tend to lean toward crime control model and the courts lean toward due process.

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The model adopted by the early criminal justice system in England can be traced back to the common law precedent in Foster’s Crown Law, back in 1762. This treatise on the criminal law of England stated that “in every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, unless the contrary appeareth...” Based on this context, it can be suggested to us that England had adopted the crime control model with the presumption that “one is guilty until proven innocent” back then in 1760s. However, the correctness of the law, thus the adequacy of the crime control model, was questioned by courts in 1935, in the case of Woolmington v DPP (1935). The judge sitting in the House of Lords, Viscount Sankey, through his “Golden thread” speech, made it clear that throughout the web of the England 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 exceptions as to defence of insanity and statutory laws. In that case, the suspect was acquitted as the prosecution failed to discharge their burden of proof to prove his guilt. Thus, it can be seen that England judges chose to uphold the presumption of “innocent until proven guilty” and thus favoured in a due process model at that time, as the “Old Bailey hack” has also put it “The presumption of innocence is the Golden Thread that runs through British justice.”As of the criminal justice system in England today, Packer’s exposition of the two models made it clear that the present English criminal justice system is firmly located in the crime control mode. According to Andrew Sanders and Robert Young, the English criminal justice system took another shift again from the due process model to crime control model under the governance of Conservative Prime Minister Margaret Thatcher in the 1980s, and was then continued by New Labour then led by Tony Blair. An examples of law enacted to promote crime control by the UK government can be seen in the Police and Criminal Evidence Act 1984 which gave police more powers to stop and search, as in contrary to the aim of the act. This act spawned even more criticisms when the police power was further extended following the new enactment of Serious Organized Crime and Police Act 2005. Even so, it is not right to say that UK only retains crime control as the one and only model in its criminal justice system, the importance of due process in the English legal system can often be seen in case laws as well as the doctrines of rule of law. For instance, in Malone v Metropolitan Police Commissioner (1979), the courts, in attempt to reverse the principle laid down in Entick v Carrington, held that the police can lawfully tap into telephones because there was no law prohibiting such action. Having had lost the case in UK court, Malone brought the case to European Court of Human Rights in Strasbourg and won the case. Though UK enacted the Interception of Communications Act 1985 afterwards to allow telephone tapping on certain occasions, the act was later repealed by Regulatory of Investigatory Powers Act 2000. Under the provision of section 7 of this act, telephone-tap evidence in present, however lawfully obtained, is not admissible in courts.

Furthermore, following the enactment of the Human Rights Act 1998(HRA), the values due process are given new light as a new power has been bestowed by Article 6 of HRA upon English judges to protect individuals’ rights to a fair trial. Through section 3, this can be done as the courts are now required to interpret the laws and decide cases as compatible as possible with most articles in HRA. Otherwise, the courts will have to declare an incompatibility of the law with HRA to the Parliament under section 4, though the declaration remains legally “powerless” until the law is amended by the legislature. The impact of HRA on England’s criminal justice system can be seen in the case of R v Lambert (2001), where the judges find it impossible for suspect of drug supplies to have a fair trial, which violates the article 6 of HRA, if the court allows the legal burden of proof to be shifted from the prosecution to him as instructed by Parliament in the Misuse of Drug Act 1971. As a result, the court decided that instead of imposing a legal burden of proof on the suspect, he was imposed only an evidential burden of proof. Another situation with similar court judgements affected by HRA can also be seen in the case of Sheldrake v DPP (2033). Thus, it can be concluded that while the fundamental values in the present English criminal justice system follow the crime control model, some values of the due process model are still retained by the system, particularly the fairness of trial proceedings which is reinforced by article 3 of the HRA.

In Malaysia, the perspective of criminal justice system lies in the due process model, which the fundamental principle in criminal proceeding is such that one will remain innocent until proven guilty. However, like the Misuse Drug Act 1971 in England, various statutes in Malaysia such as the Anti Corruption Act 1997 and Dangerous Drugs Act 1952 will also be able to shift the legal burden of proof to defendants to rebut presumptions of their guilt. In adherence to the rule of law stating that “no one is above the law”, as government can only legitimately exercise their authority in accordance with due process, the criminal justice system in Malaysia ensures that each criminal is punished in accordance with the law. However, in reality, Malaysia’s criminal justice system lacks efficiency, and there were many notable travesty of justice in the system. The problem mainly lies on the fact that Malaysia has no legitimate form of separation of powers, which sometimes causes Malaysia government bodies as well as even the judiciary to work in favour of each other. Consequently, with the absence of impartiality and independence in Malaysia courts, fundamental justices were sometimes not upheld in criminal proceedings as they were tainted by political influence.

On many occasions, the courts and government in Malaysia would set aside due process in case proceedings and instead apply a strict model of crime control, which is embarrassing to say that at many times, was not meant for the purpose of controlling crime but instead for oppressing individuals who expressed disapproval to government actions. The Internal Security Act 1960 (ISA) serves as the best realistic example for it has been an extremely notorious law in Malaysia. Basically, ISA allows indefinite preventive detention of any personal without trial in the name of national security, which was originally aimed to deter communist activities in Malaya during the Malayan Emergency from 1948 to 1960. Despite being explained by Tunku Abdul Rahman that the law was not meant to be used to repress legitimate political oppositions and lawful dissents, which was later reaffirmed by the third Prime Minister, Tun Hussein Ong and added that the act will not be used against democratic citizen activity as well, ISA has nevertheless been frequently abused by the government in Malaysia’s present day as “weapon” to eliminate any political threats. The law is criticised by the public, and even overseas for being a legal anachronism that has no place in a democracy and in an era of globalisation. Based on statistics obtained from an archaic article in www.malaysia-today.net, it was reported that since the year of 2005, 10662 people have been arrested under ISA in the past 44 years. 4,139 were issued with formal detention orders and 2,066 were served with restriction orders governing their activities and where they live. In addition, 12 people were executed for offences under the ISA between 1984 and 1993. The ISA has been consistently used against people who criticise the government and defend human rights. In the past, many of the renowned politicians on the opposition parties such as Muhammad Sabu of PAS, Lim Kit Siang, Karpal Singh and Lim Guan Eng of the DAP, and Anwar Ibrahim of the PKR were held under ISA. . Known as the "white terror", it has been the most feared and despised, yet convenient tool for the state to suppress opposition and open debate. To make things worse, not only have the Malaysian courts failed to annul the encroachments on the people’s fundamental rights in Federal Constitution of Malaysia but their lack of judicial activism has in fact encroaches those rights further.

Furthermore, in the recent case of PP v Dato’ Seri Anwar Ibrahim (2010), the High Court denied the defence request for accessing various documents pertaining to the ongoing trial which have not been disclosed by the prosecution. Contrary to section 51A of the Criminal Procedure Code in Malaysia, the courts’ decision has upset the balance of the playing field between the prosecution and the defence, and reduced transparency as well as fairness in the criminal justice system. In this case, the perception of due process and the defendant’s rights to a fair trial was not upheld, for the provision of the requested documents would assist the defence to prepare its case more effectively, increase the level of efficiency of a trial and reduce the incidence of adjournments that are required in order for the defence to review newly-submitted documents. In addition, in relation to the Anwar’s sodomy issues, there was also a statutory declaration made by Dr. Munawar Ahmad, one of the “supposed sodomy victims” of Anwar’s in his first sodomy allegation back in 1998, explaining the “abuse” of the abovementioned Internal Security Act by an inspector named Mazlan to arrest him. In the statutory declaration, Dr. Munawar also explained in details how a group of unidentified personnel manipulated him through inhumane manners to make a “false confession” and plead guilty to the sodomy charge, which his confessions would then be used to against Anwar.

In addition, if injustice wasn’t seem to be done enough by Malaysia criminal justice system yet, a prominent Malaysian lawyer and politician, Gobind Singh Deo, despite being punished once for accusing the Prime Minister of Malaysia, Najib Tun Razak, of being a murderer (of the Mongolian national Shaariibuugiin Altantuyaa), was subjected to double jeopardy with a very harsh second punishment over the very same parliamentary incident. Malaysia’s criminal justice system has received wide criticisms from the locals, and actions of law enforcement agencies as well as jurisdictions of courts and governments have often been questioned as well for their fairness and efficiency. It is extremely regrettable courts and Parliaments failed to be recognized as being impartial and more importantly, independence of each other; and the police are often “associated” with ungraceful terms such as “brutality” and “lawful criminals”. It can be viewed that the ultimate flaw of Malaysia’s criminal justice system is reasoned by the system’s failure to proper adopt a due process in its proceedings.

In all honesty, a criminal justice system will never be a successful criminal justice system if it fails to convince people that it has indeed promoted justice, even if it has. As the judge in R v Sussex Justices ex parte McCarthy (1924), Lord Hewart CJ, puts it that “justice must not only be done, but also be seen to be done.” When being asked, the near-majority of Malaysia would express their uttermost doubt for what the criminal justice system in Malaysia has done to promote justice, if it has not done anything to degrade it already. This situation is indeed very worrying as it reflects the public dissatisfaction of Malaysia’s criminal justice system and at the same instance serves as a warning that reforms of the system is needed, particularly on the reinforcement of due process values in the system.

In conclusion, a good criminal justice system should give light to both crime control mode as well as due process model, and should never allow any innocents to fall victim of the system. When due process is not given attention in a justice system, miscarriages of justice tend to happen such as the notorious cases of Guilford Four, Birmingham Six, Maguire Seven and Adolf Beck in England, and the uproar raised by Internal Security Act in Malaysia. This would be the most unwanted result for a criminal justice system for there is no justice at all if not only the society is not protected in the first place, but instead being victimized. As odd as it may sound, the very essence of these two models contradicts but yet complement each other to form a good criminal justice system. While crime control mode allows the government to effectively subdue crime in a society, a due process must be fixed into the criminal justice system to act as a safeguard for the innocents, as well as a form of scrutiny on agents of the system to prevent abuse of powers mainly rooting from crime control.

Bibiography

WiseGeek, “What is Criminal Justice”? –

“Analysis of the Crime Control and Due Process Models”, 20th November 2005 -

CliffsNotes, “Criminal Justice: Which Model? Crime Control or Due Process” -

Mjodi santoso, “Two Models of the Criminal Process ( I )”, 18th May 2007 -

Answer bag - Some short debates on whether it is worse to send an innocent man to prison, or to let a guilty man go free -

Free-Essays.Com, “Crime Control and Due Process”

Woolmington v DPP [1935] AC 462 -

R v Lambert [2001] UKHL 37, [2002] 2 AC 545 –

Entick v Carrington [1765] EWHC KB J98 –

Malone v Commissioner for the Metropolitan Police [1979] 2 ALL ER 620 –

Malone v. The United Kingdom [1984] ECHR 10 –

Professor J R Spencer, “Tapping into the telephones”, Lexis Nexis, 4 March 2005

Dennis Clark, “The Impact of Human Rights on Criminal Investigation”, CLRI 2007 Study Pack pg183-198

The Lectric Law Library, “Some Background On The Criminal Justice System Of Malaysia” -

Internal Security Act 1960 -

Human Rights Commission of Malaysia, “Review of the Interal Security Act 1960”, 2003 -

Asian Human Rights Commission, “MALAYSIA: Internal Security Act subverts due process” -

Sunil Lopez a/l Ceasar Lopez, “The Internal Security Act 1960: A throw back to the era of tyranny”, The Malaysian Bar, 2008 -

Statutory Declaration from Dr. Munawar Ahmad Anees, Published 3rd December 1998 -

Operation Lalang revisited: A call for repeal of ISA, Malaysia-today.Net, Archives 2008 –

Gobind Deo Case: Double Jeopardy, 14th March 2009 –

Analyse the adequacy and relevance of the crime control and due process models for understanding criminal justice, with reference to the jurisdiction you are in and/or England and Wales.

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