A Critical Analysis of the Crime Control and Due Process Models in Relation to the Criminal Justice System in England and Wales.
This essay will discuss the similar and conflicting models of Herbert L. Packer’s Two Models of the Criminal Process (1964) theories using the Criminal Justice System (CJS) of England and Wales.
The CJS is a large public service involving many agencies including, but not limited to, the Police, Crown Prosecution Service, the Prison Service and National Probation Service (Crown Prosecution Service, c2017). Its purpose is to deliver justice, convicting and punishing those who break the law and to stop them from reoffending and to protect the public (Joyce, 2017). These agencies must comply with the current government’s legislation, including when new laws are made, or current ones changed. Newly elected governments could have different ideologies from those that they have succeeded, depending where on the political spectrum they reside, meaning that the CJS of England and Wales could move on the spectrum towards one model and further from the other for the time that party is in power as well as having an impact from public perception (Stenson & Sullivan, 2012). It is for that reason that this essay will talk about the CJS that is current at the time of writing.
Packer (1964) explains that both models reduce crime and punish individuals who have been found to break the law, but they do this using different approaches. The Crime Control model focusses on efficiency using administrative and managerial bias. It allows more power to police and prosecution services in order to deal with crime in the most efficient manner. Packer (1964) likened this process to be that of a conveyer belt which dealt with criminal cases quickly and efficiently. The Due Process model focusses on an individual’s liberty using adversary and judicial bias. Packer (1964) likened the model to an obstacle course where the obstacles are procedures put in place to safeguard individuals that are innocent (Roach, 1999).
Within societies that follow the Crime Control model, police can detain individuals who have previous convictions like one that is being currently investigated, those that are perceived to be acting in a suspicious manner. The police do not need permission to arrest. Any individual detained by the police do not have the right to contact family. The police will try to interrogate the suspect before legal counsel can be sought (Packer, 1964).
The Police and Criminal Evidence Act (1984) gives police in England and Wales the power to stop and search any individual who is suspected of carrying illegal drugs, a weapon, stolen property or something that can be used to commit a crime. The police officer must have reasonable grounds to do this for the majority of the time, but the officer can do this without grounds if it is thought that there will be a serious crime about to be committed, the individual is carrying a weapon or is in a particular area.
The Due Process model states that the public have a right not to be restrained. The Police are not legally able to detain an individual without a warrant given by an independent magistrate who also dismisses any arrests made illegally. There is a time limit on detention of an individual (Packer, 1964).
It can be theorised that the Police’s powers of ‘Stop and Search’ lean towards the Crime Control model and has the potential to continue moving further away from the Due Process model (Bird, 2019). However, there is resistance to these increased powers as they are seen to give a message of ‘tough on crime’ but do not address the causes of crime. There have been reports that the increased power can be abused with people from ethnic backgrounds are more likely to be stopped and searched than white people (Dearden, 2019).
In Packer’s (1964) Crime Control Model, where there is a guilty plea, legal counsel is not seen as useful as there is no need for defence. Leniency is given to those that plead guilty and harsher sentences are given to those that are found guilty after trial. Bail is not usually given as it is seen that the suspect cannot be trusted to attend the trial and can go on to commit further offences. Whenever an individual is charged with an offence they become ‘factually guilty’ and it is up to the individual to prove their innocence. The Due Process model states that the rights of the suspect preserved throughout the process and they are not required to play an active role. They are entitled to legal counsel for the duration of the process and should they not have the financial resources, it would be provided for free by the state. They can be granted bail at a reasonable and affordable price, but there can be conditions given.
The Human Rights Act (1998) states that every person has the right to a fair trial and is entitled to legal counsel throughout the entire process. If an individual is not able to finance legal counsel, a duty solicitor, who is independent of the police, would be made available. When charged with an offence, the individual maintains the presumption of innocent until it is proven that they are guilty. However, when a ‘not guilty’ verdict is given, it does not mean that the individual is innocent, only that there was not enough evidence to prove, beyond reasonable doubt, that they are guilty (Zander, 2011). It is this legislation that pulls the Criminal Justice System towards the Due Process model.
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In England and Wales, after a person has been found guilty of an offense and sentenced, they have 28 days to appeal the conviction and/or sentence (UK Government, 2019). This follows the Due process model which states that individuals have the right to apply for an appeal. This would be financed by the state if the individual is found to have been erroneously convicted of a crime and could be entitled to compensation. Contrarily, the Crime control model states that appeals are discouraged and that they should be financed by the convicted. Any appeals that are granted are heard by the same judge that gave the initial conviction as they are best informed of the case (Packer, 1964). The Criminal Justice System of England and Wales takes features from both models; giving people the right to apply for an appeal but also there is also the possibility that a failed appeal could result in a longer sentence and court costs. The appeal process in England and Wales is seen, on the whole, as positive, with 69.7% of those surveyed gave a good or very good rating to the process and the 67% of appeals studied were allowed. (Criminal Cases Review Commission, 2019)
In conclusion, the Criminal Justice System of England and Wales has multiple positions on the spectrum of Packer’s to models. Both models reduce and address crime and punish those who are found guilty of committing offences. Neither can be labelled good or bad, but a justice system that is balanced is optimum (Packer, 1964). The Criminal Justice System of England and Wales shows aspects of both models, with the policing and arrest policy following closer to the Crime Control model and the policies of detention and trial more towards the Due Process model. It could be said that although Packer’s two model theory is the most successful, it is flawed as it is too simplistic and gives a self-fulfilling prophesy (Roach, 1999). Other theories give a four-model approach, like Roach’s ‘Four models of the Criminal Process’ (1999). Ramraj (2004) goes further to break down the Due Process model into four, however he states that this is only relevant to the United States, Canada and a few other countries. Packer (1964) stated that the main difference between the two models is the right to legal counsel, which is a right in the UK (The Human Rights Act 1998).
It has been a view in the UK that the rights of the individual are a priority. Professor Graham Zellick, the former chairman of the Criminal Cases Review Commission, is quoted as saying
“It is better that 10 guilty men go free than one innocent man be wrongly convicted” (Verkaik, 2008)
At the time Professor Zellick warned judges to second guess the jury’s decisions after innocent people were found to be guilty for a crime that they were later found to be innocent of. A YouGov poll showed that the public are for increased powers for the police, showing a favoured approach to the Crime Control model, although statistics show that even though the public see crime as a problem, it is in decline (Office of National statistics, 2016). Although it seems that the crime rate is falling, violent crime using knives and sharp weapons is on the rise (Office of National statistics, 2019). This increase of crime could influence a further shift towards the Crime Control model.
- Bird, S. (2019). Police to be given ‘hugely effective’ stop-and-search powers as Home Secretary overturns Theresa May’s reforms. Retrieved 25 August, 2019, from https://www.telegraph.co.uk/
- Criminal cases review commission. (2019). CCRC statistics. Retrieved 26 August, 2019, from https://ccrc.gov.uk/
- Crown prosecution service. (c2017). The Criminal Justice System. Retrieved 25 August, 2019, from https://www.cps.gov.uk
- Dearden, L. (2019). Boris Johnson risks triggering riots with rollout of blanket stop-and-search powers, Diane Abbott warns. Retrieved 26 August, 2019, from https://www.independent.co.uk/
- Joyce, P. (2017). Criminal Justice : An Introduction. (3rd ed.). Retrieved 25 August, 2019, from https://ebookcentral.proquest.com/lib/portsmouth-ebooks/reader.action?docID=4905739
- Office for national statistics. (2017). Public perceptions of crime in England and Wales: year ending March 2016. Retrieved 25 August, 2019, from https://www.ons.gov.uk
- Office for national statistics. (2019). Crime in England and Wales: year ending March 2019. Retrieved 26 August, 2019, from https://www.ons.gov.uk/
- Packer, H. L. (1964). Two Models of the Criminal Process. University of Pennsylvania Law Review, 113(1), 1-68 . Retrieved 25 August, 2019, from https://www.jstor.org/stable/3310562?read-now=1&seq=1#page_scan_tab_contents
- Ramraj, V. (2004). Four Models of Due Process. International Journal of Constitutional Law, 2(3), 492–524.
- Roach, K. (1999). Four Models of the Criminal Proces. Journal of Criminal Law and Criminology, 89(2), 671-716.
- Stenson, K & Sullivan, R. (2012). Crime, Risk and Justice. (2nd ed.). Retrieved 25 August, 2019, from https://ebookcentral.proquest.com/lib/portsmouth-ebooks/reader.action?docID=4150634
- UK Government. (1998). Human Rights Act 1998. Retrieved 26 August, 2019, from http://www.legislation.gov.uk/
- Uk government. (2019). Appeal a sentence or conviction. Retrieved 26 August, 2019, from https://www.gov.uk/
- UK Government. (2019). Police and Criminal Evidence Act 1984. Retrieved 26 August, 2019, from http://www.legislation.gov.uk/
- Verkaik, R. (2008). ‘It’s better that 10 guilty men go free than one innocent man be wrongly convicted’. Retrieved 26 August, 2019, from https://www.independent.co.uk/
- Dahlgreen, W. (2014). Three in four British people support the power of the police to use ‘stop and search’ – and most people trust them to apply it fairly to ethnic minorities. Retrieved 26 August, 2019, from https://yougov.co.uk/
- Zander, M. (2011). No, no, no: not guilty does not mean innocent. Retrieved 26 August, 2019, from https://www.thetimes.co.uk/
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