On the other end of the scale Packer identified his second model of ‘due process’. This model lies in opposition with crime control as due process can be seen as representing a version of how the criminal justice system should operate within the original values of law. In contrast to crime control due process takes into account the legal rights of suspects. PACE could be seen to fit in well with due process as it gives rights to a suspect in an interview within the police station. PACE also enables the proper use of gathering information surrounding an offence and obtaining the right evidence regarding that offence. In supporting this King (1981, p. 15) outlines that ‘central to the model are the presumption of innocence and the inviolability of legal rules governing the police powers and the admissibility of evidence’. In understanding the model of due process it is apparent that the release of an innocent person is of higher importance than the conviction of a guilty person. The model itself also upholds the ideal of equality. As Sanders & Young (2000, p. 25) explain ‘everyone should be placed in the same position as regards the resources at their disposal to conduct an effective defence of a criminal charge’. In other words for suspects who are in an unfortunate position unable to afford a lawyer then public funds should be made available to that person in order for equality of opportunity to be upheld. The due process model is illustrated as being similar to an obstacle course, where the obstacles are the legal rights of a suspect and controls placed over certain agencies such as the police.
One phase within the criminal justice process which Packers two models are the most influential is in pre-trial. Paramount to due process and crime control are decisions made within the pre trial phase that include arrest, charge, police bail and court bail. The pre trial period is all the activity that involves a defendant before they appear in court.
With regards to due process and how it influences the decision of arrest it is apparent that no person should be arrested unless it is clear that they have more than likely committed a particular offence (Sanders & Young, 2000, p. 133). For example if following due process in an arrest situation usually a magistrate would decide whether to issue a warrant thus giving the suspect rights to proclaim their innocence. The crime control model on the other hand would argue that police officers need broader powers to arrest in that they would tend to use their instincts by say stopping someone who looks suspicious and arresting them. This idea upholds the crime control model as it would become quickly apparent as to who is guilty or innocent and thus eliminating the innocent and convicting the guilty as speedily as possible.
In coming to a decision of whether to charge a suspect the police would usually charge an individual with the most appropriate offence with regards to the evidence they have at the arrest stage. The responsibility of the case is then placed with the Crown Prosecution Service (CPS) who review the case and can then add any further charges. What is known as ‘charge bargaining’ can come into play at this stage involving a defendant to plead guilty with usually the promise of a lesser charge. This means that those defendants who plead guilty are rewarded above a defendant who contests and loses the case. This adheres to the crime control model because in pleading guilty there is the advantage of minimising police investigation, cost and speed, less time spent in court and sparing any defence witnesses. In supporting this Sanders and Young (2000, p. 477) explain that ‘the system itself is geared towards the routine production of guilty pleas….the wholesale adoption of crime control ideology by solicitors, barristers and judges up and down the country further oils the conveyer belt moving defendants in inexorably towards conviction’.
Bail decisions within the pre trial stage can also be influenced by crime control and due process. The police may bail a suspect to return to the police station for an investigation to continue or to appear at court following a person being charged of an offence. It is a question at this stage whether to grant bail or for the defendant to remain in custody up until their trial. The crime control model in this case would be more in favour of custody as it firstly would ensure that the defendant attends court for their trial, secondly defendants would have no means of attempting to interfere with prosecution witnesses and lastly it would prevent defendants committing any further offences leading up to their trial. Due process on the other hand would favour bail as it would ensure freedom of the innocent and the decision made is an important one as ‘those people charged with a crime…stand not only to lose their liberty but other associated problems (job, family stress)’ (Bretherick, 2004, p. 31). In order for a middle ground for due process and crime control to be achieved a number of conditions can be placed upon bail (conditional bail) such as a curfew requirement.
With regards to how due process and crime control fit into the prosecution stage of pre trial it is clear that due process is the dominant. The CPS was initially established to be impartial to the police and allowing fairer and just decisions to be made. As the CPS point out in CPS Vision (n.d) they deliver a strengthened public service by ‘strengthening the prosecution process to bring offenders to justice providing an independent prosecution service…building and testing the strongest possible prosecution case and presenting that case fairly in the courts on behalf of the public’. In a government paper ‘No Witness No Justice’ it appeared that there was too much emphasis based on due process and that more emphasis should be based on crime control. The CPS explained that improving the case of victims and witnesses by allowing them to attend court was an effective way to narrow the justice gap and increasing the publics confidence in the criminal justice system (CPS, 2004, p. 6). The CPS has come under strong criticism in relation to their inefficiency in courts. A report produced by Martin Narey ‘Delay in the Criminal Justice System (1997) looked at ways of speeding up the criminal process and works of the CPS. The reports attempt was to reduce delay with regards to paperwork, administration and adjournments in handling criminal cases. The proposals within this report seem more geared towards a crime control perspective with the emphasis being placed on a speedy process.
When examining the court the overall aim is the conviction of the guilty and acquittal of the innocent. Within England and Wales the court and trial processes are formed on an adversarial system meaning that prosecution and defence can be described as a contest to produce a winner (Bretherick, 2004, p. 40). It is apparent that the adversarial system fits more in line with due process rather than crime control. The reason being that due process looks for ways to introduce obstacles for the prosecution to overcome and thus can use the adversarial system to its advantage in a trial. Crime control looks for a ways so that an adversarial system can never develop beyond an encounter with the police and a suspect.
There have been a number of criticisms surrounding Packers two models of criminal justice. Packer ‘did not give a clear explanation of the relationship between his two models’ (Ashworth, 1998, p. 27). They do share an interest in protecting suspects and controlling crime but are different in their theory and practice. A question can be put forward at this point as to what extent should the aim of crime control be limited by the demands of due process? According to Ashworth (1998, p. 29) Packers two models are ‘no longer satisfactory for interpreting the tendencies of criminal justice system, since one might also wish to know what the victims perspective and the extent of bureaucratic or fiscal tendencies’. These perspectives have been developed somewhat since Packer introduced his two models. A range of other models have been developed to aid in our understanding of the criminal justice process. Namely these models are the medical model, the bureaucratic model, the power model and the status passage model.
In conclusion as to whether the models of due process and crime control serve as a useful function in our understanding of criminal justice it is clear that to a large extent they appear to do so. It is difficult to conclude that following one model in particular is likely, as the values concerning each of the models seem to contrast. It is more than likely that most would work somewhere between the two. Both of the models share the belief that law enforcement is socially desirable and a belief that there must be limits on the government to pursue this underlying aim (Sanders & Young, 2000, p. 27). The models basically represent very different views about what those government limits should be. In particular they can influence our understanding of the criminal justice process as both link in and apply to various different agencies within the system and can also show how these agencies operate in line with due process and crime control beliefs and values.
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