Succession: Fraud and Undue Influence in wills

Here I have had a go at answering a typical LLB Law exam question for Succession Law. I have broken down the answer into clear paragraphs which make it easier for the examiner to understand your argument. I hope you find it helpful!

“Fraud and undue influence in the law of wills make it easy for the unscrupulous to take advantage of the old and frail and to harm the interests of genuine beneficiaries.”

Critically evaluate this view.

S.9 Wills Act 1837 sets out certain formalities which must be met in order for a will to be valid.

The purpose of s.9 is to regulate the creation of wills, impress on the testator the importance of his actions, and prevent against possible fraud.

Additionally, various tests in relation to the capacity of the testator have arisen, making it easier to ascertain whether the will should be declared void on grounds of capacity.

Banks v Goodfellow is the leading authority and remains good law following the enactment of the Mental Capacity Act 2005. It sets out that the testator must understand the effect of his wishes being carried out, the extent of the property he is disposing of, and the nature of the claims on him.

This may be applied alongside the Mental Capacity Act 2005, for which the definition of capacity, found under s.2, is a helpful tool.

Parker v Felgate is another useful authority, which sets out when a testator needs to have testamentary capacity. He must have capacity at the time that the will is drafted or instructions are given, the will must then be prepared as directed, the testator must remember his instructions and believe they were followed, and there must be no suspicious circumstances.

Unfortunately despite these precautions, it is still possible for fraudulent behaviour to take place, although stating that it’s ‘easy’ is perhaps taking the issue a little too far.

However, more can always be done to ensure that the risk of fraud and undue influence are kept to a minimum; Borkowski’s journal article provides helpful insight here.

One idea for reform involves implementing a minimum age limit on witnesses to the will. At present there is no limit which means that an infant could potentially be a witness. This could be problematic where the authenticity of the will is called into question and witnesses are required to give evidence that the will was made in circumstances that comply with s.9. Although cases such as Wilson have found a 14 year old witness acceptable, due to his level of maturity and understanding, it would be most preferable to ensure an age limit of 18 years was imposed, otherwise the courts are operating on a slippery slope.

Secondly, at present the number of witnesses to a will is two. It has been argued that this is simply too convenient as the testator may ‘ask the couple next door’ to witness the will. Requiring three witnesses would make the task of finding witnesses slightly more cumbersome, thus impressing on the testator the importance and significance of the task. Borkowski does recognise that of course if three, why not four or five etc, however, the line must be drawn somewhere and requiring three witnesses is sufficient to fulfil the purpose.

Thirdly, the requirement for the testator to be present when the witnesses sign the will is currently insufficient. A string of case law has demonstrated that current law allows scope for potential fraud, most notably Casson v Dade in which the courts said it was enough that the testator could have looked if she’d wanted. In this case the testatrix was actually outside her solicitor’s office in her carriage, however, had she turned her head to glance through the window, she may have been able to see the witnesses signing. The evidence suggested that in fact she had chosen not to look, but this was immaterial. The provision need not require evidence that the testator had been physically present and chosen to look; it would be sufficient to work from the presumption that the testator had seen the witnesses sign unless it could be proved otherwise that he had not.

Finally, allowing another to sign on behalf of the testator is somewhat superfluous as cases such as In the Goods of Kieran (2 letters) and In the Goods of Flinn (thumb print) have demonstrated that a mere mark is sufficient as a signature. Borkowski states that the reasoning behind allowing this provision was based on instances in which the testator was illiterate, however s.9 does not expressly state this which technically means that a perfectly literate and competent testator could direct another to sign his will. In order to prevent risk of fraud, it would be wise for s.9 to specify that another may only sign on behalf of the testator where he is unable due to illness or disability.

Ultimately s.9 Wills Act 1837 does an important and thorough job in regulating the practice of will drafting, however, there is still room for improvement. It is submitted that making some of the changes suggested above would reduce the risk of fraud and undue influence significantly.

Property: Leasehold Covenant essay example

Critically discuss the enforceability of leasehold covenants when the lease and/or the reversion have/has passed to a new owner.

With regards to leases, the date of creation is now pertinent to the running of leasehold covenants, should the tenant or landlord so wish to assign their interest. The enactment of the Landlord and Tenant (Covenants) Act 1995 bought significant and substantial changes to the previous rules on leases but unfortunately, despite attempts by the Law Commission, the new legislation cannot act retrospectively, meaning that leaseholds created prior to 1/1/1996 are treated differently to those created thereafter. This essay will begin by addressing the pre 1996 rules and will then move onto the post 1996 rules before evaluating their subsequent effect. For clarification, all leases before the Act will be referred to as ‘old leases’ and all leases after the Act as ‘new leases’.

Under old leases, 2 conditions were required in order for a lease to run with the land on assignment. Firstly, privity of estate (the relationship between a landlord and tenant whereby they may impose obligations on one another even in the absence of privity of contract); and secondly, ‘touch and concern’ the land (where the covenant relates to the demised premises rather than to a specific person) as governed by “Spencer’s case”, where a covenant to build a brick wall on the leased premises could bind the new owner because the wall would touch and concern the land. Lord Oliver in P+A Swift Investments said that ‘touch and concern’ required the covenant to benefit or burden the landlord or tenant; the covenant to affect the nature of the premises; and the covenant to not be personal. Note that for the assignment of a landlord’s reversion, rather than ‘touch and concern’, the covenant was required to ‘have reference to the subject matter of the lease’, although in essence there is little disparity between the two.

Once established, when a tenant agreed to a covenant, he was not just promising to keep the terms of the lease, but also guaranteeing that any assignee would also adhere to those terms. In other words, the tenant was accepting liability for any breach committed by his own actions or the actions of his assignees or successors. Most leases would expressly state this term, but s.79 LPA ensured that where the parties omitted to expressly state liability, it would be implied by statute. This was the case even where the tenant disposed of his entire estate, as per Thursby v Plant. It’s worth noting that LDF v Avonridge Property established that tenant or landlord may expressly exclude liability where all parties were in agreement, although this is very rare because neither party want to suffer the repercussions of a breach without having a direct remedy through litigation.

Thankfully, following a much needed reform, the new legislation was enacted – referred to hereafter as the ‘1995 Act’. It is suggested that the reform was proposed in the 1980s when economic hardships were rife and the old leases were particularly harsh on original owners, who were forced to cover damages when their assignees failed to pay rent. Dixon, writing for the Conveyancer and Property Lawyer journal states that the new Act sought to eliminate some of the discrepancies between the contractual and proprietary elements of a lease; however the Mashru case has demonstrated that the Act hasn’t been entirely successful in this regard.

The 1995 Act removed the existing rules and replaced them with ‘landlord covenants’ and ‘tenant covenants’, found under s.28(1). The requirement for touch and concern was removed in its entirety and s.5 of the Act states that when the tenant assigns his lease, he is released from both burden and benefit of the covenants attached to the estate; although personal covenants will continue to bind the original parties as found in BHP Petroleum v Chesterfield and now codified in s.3 (6)(a). City of London Corp v Fell established that every single time an individual passes over property, he will give up all benefits and burdens to the new owner; for example, where an assignee decides to re-assign and that assignee then assigns again. In addition, the 1995 Act provides that the s.79 LPA provision will not apply to new leases as they are immune from implied covenants on liability.

Interestingly, above it was mentioned that under s.5 the tenant will be released from his obligations when he assigns the lease to a new owner, however s.6 connotes that landlords are not afforded the same level of ease when attempting to avoid liability, and perhaps for good reason. The landlord has the arduous task of gaining the tenant’s consent for release, complying with the procedures under s.8, or else applying to the courts. This has the effect of giving the tenant some power over the person providing him with accommodation. This may seem harsh on the landlord, who is acting, for all intents and purposes, bona fide, however without those powers the tenant could potentially be left homeless under the control of a new landlord. MacKenzie and Phillips remind us that whilst the landlord can have some say in the tenant’s choice of assignee, the tenant will have no say in the landlord’s choice of assignee even where he is not credit-worthy. Thus the s.6 provision appears justified.

Moreover, the landlord, in controlling the choice of assignee, may require the original tenant to sign an authorised guarantee agreement (AGAs), as per s.18. Dollar, writing for the Landlord and Tenant Review journal, states that s.22 of the Act allows for the landlord to be unreasonable in his desire for an AGA; this made the provision the most controversial and debated by the Houses of Parliament. Neuberger J has since stated that it seems unattractive that the landlord should be entitled to be unreasonable. The tenant’s signature is indicative of his promise to ensure the assignee will fulfil the necessary obligations; thus reinstating the liability which the new Act had aimed to alleviate. It is to be noted however, that although the tenant will hence be liable for his assignee, he will not be liable for any subsequent assignees. For example, where T assigns to A1 who assigns to A2 who assigns to A3; T can only ever be liable for A1. Furthermore, the Good Harvest v Centaur case demonstrated that the tenant’s guarantor cannot be expected to guarantee the obligations of anyone except the tenant he made the agreement for, relying on s.25 of the Act. The new Act has also provided provisions for the protection of the tenant, such as the fact that the landlord can only take action against the former tenant within 6 months of any money becoming due; the landlord cannot enforce against the original tenant any changes to the covenant made after his assignment; and finally, the former tenant may apply for an ‘overriding lease’, thus making himself the immediate landlord of the current assignee tenant.

In conclusion, although prima facie it may appear that the Act has made significant changes to the rights of landlords and tenants who wish to assign their interest, in releasing them from ongoing, onerous liability, the ability of landlords to enforce AGAs has inevitably reduced the rights of the tenant. What the Act does do is make provisions for both parties substantially more reasonable so that whilst they may not still be entirely immune from liability after assigning a lease or reversion, the extent and nature of that burden is not cumbersome. Although individual parties may have hoped for a clause which provides complete immunity from legal accountability, this would not work in practise and ultimately encouraging tenants to take responsibility for their decisions in handing over the leasehold (or in the landlord’s case, the reversion), albeit on much fairer grounds, will inevitably produce a positive outcome for property law as a whole.

Criminal Law: Double Jeopardy

Following the shocking allegation made by the cell mate of murdered Rachel Manning's boyfriend, I realised we might have a double jeopardy case on our hands. For those of you who aren't up to speed with the case, this article might help: http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-23850307

Below I've posted an extract from my own dissertation which discusses some of the central issues surrounding double jeopardy. Feel free to give me your views!

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Double jeopardy ‘can be traced back many centuries, even to Roman times’.[1] It is the corner stone of justice in the UK that a person cannot be tried twice for the same offence; or as 1760s Blackstone stated, it is the ‘universal maxim of the common law of England that no man is brought into jeopardy of his life or limb more than once for the same offence.’[2]

Double jeopardy was previously the most blatant example of excessive defendant’s rights leading to adverse effects for victims and society at large. The law has traditionally operated asymmetrically: allowing the defendant to challenge a conviction on appeal or post-appeal, but repudiating any challenge of an acquittal by the prosecution.[3] It may be argued that finality is important to encourage both the police and prosecutors to reach the right decision first time around,[4] however, with the exceedingly high criminal standard of proof - based on the due process belief that it is better to wrongly acquit a guilty man than risk convicting an innocent one – it is no wonder that so many cases fall through the net.

For centuries the courts have dismissed cases, despite good evidence, simply because the suspected criminal in question had already been acquitted; this has led to some abhorrent results. Among the biggest cases in this area are the murders of Stephen Lawrence and Julie Hogg. Indeed, it is the murder of Julie Hogg and the ensuing litigation that prompted reform of the double jeopardy rules.

Evidence of Julie’s keys and other personal items were discovered under Dunlop’s floorboards; the court also heard evidence of Dunlop’s semen found on the blanket her body was wrapped in, however, the unconvinced jury failed to reach a verdict and Dunlop was acquitted. Aware of the protection created by the double jeopardy rule, Dunlop later confessed the murder to a police officer. Written evidence was produced in family proceedings and Dunlop was charged with perjury – namely, giving false evidence at both murder trials and failing to admit his guilt - which entailed a 6 year sentence; an obviously deeply unsatisfactory result, although arguably better than no conviction at all.

The enactment of Part 10 Criminal Justice Act 2003 finally brought Dunlop to justice. Following the satisfaction of the s.78[5] conditions, the consent of the Director of Public Prosecutions (DPP) was given, Dunlop was brought to retrial and sentenced to life imprisonment.[6]

The new requirements under s.78 are that the evidence being brought for retrial must be ‘new and compelling’, defined in subsections 2 and 3. ‘The most commonly cited example of “new and compelling evidence” of guilt is DNA evidence’.[7] The advancement of technology has made it possible to reveal errors that have been made previously, and to review evidence which was unhelpful in the ‘pre-DNA era’[8] but which now provides damning proof of culpability.

For example, the murder of Stephen Lawrence, for which Gary Dobson and David Norris were originally acquitted but the later discovery of blood and hair on the defendants’ clothing provided sufficient grounds for retrial. Lord Chief Justice directed that although the DNA evidence could not prove it was Dobson who wielded the knife, any party to the killing would be guilty of murder or manslaughter.[9] Thus the DNA evidence provided the key to conviction nearly two decades after Lawrence’s murder.

Additionally, there appear to be cases, including Julie Hogg’s murder, in which confessions are also used at retrial. The credibility of a confession must be questioned,[10] as defendants may admit fault for any number of reasons; but nevertheless, they have generally proven helpful in bringing cases to justice. It may be fair to predict the decline in future post-acquittal confessions as the new exception to double jeopardy receives more publicity.

Both old and new evidence has the ability to fall within the “new and compelling” requirement; indeed, a knife-point rape which occurred in McDonald’s in 1988 was recently brought to justice as DNA evidence, leading to a confession, was brought before the court.[11] Hamer also points out that evidence will be “new” and “fresh” where it was inadmissible at the time of the trial but is presently admissible due to a change in evidence law.[12] However, it’s probably true to say that brand new evidence will have better chances at success, as the quality of older evidence may be questioned and may not be viewed as compelling.[13] Indeed, ‘the defence may argue that the loss and deterioration of evidence means that any conviction would be unsafe’.[14]

The reforms to double jeopardy, although contentious due to the brave step away from due process, have made the appeal system more symmetrical. The UK’s long history of litigation imbalance was outdated and in need of modernisation, which is exactly what the New Labour era ensured. The exception to double jeopardy provided by Part 10[15] has demonstrated that it has the ability to be successful: indeed, as regards the 12 applications by the DPP to the Court of Appeal to date, all involving murder or rape, 7 have resulted in quashing the acquittal and ordering a retrial.[16] However, criticism may still be given, particularly as regards the willingness to embrace the exception to double jeopardy, the finality of litigation, and the scope of the provisions.

Indeed, despite the considerable acclamation the new jurisdiction has received, many of those who hold more traditional views are yet to be convinced. The DPP has said: “the general feeling...among all practitioners, myself included, is that the principle of double jeopardy is a valid one, that the state should not, except in quite exceptional circumstances, be allowed to have a second go.”[17] Thus, although the new law might well exist, its failure to be embraced by members of the executive and judiciary mean that the likelihood of it being applied to its potential is somewhat limited and the real scope of the provision is questionable. At present, although Part 1 of Schedule 5 sets out that the exception to double jeopardy applies in respect of: murder, manslaughter, rape, kidnapping, various offences involving a Class A drug, arson endangering life, genocide, crimes against humanity and war crimes, directing a terrorist organisation, and conspiracy,[18] it has only been used in cases of murder and rape.

The hesitancy of the courts to apply the new provisions in respect of all of the examples above is perhaps based on the inherent due process nature of the UK’s justice system. It has been suggested that the reform was intended to be more symbolic[19] than anything else, although this is considerably objectionable as reforms generally occur for an extremely good reason, where there is defect in the law or the application of it.

A further objection to the new ruling is based on finality. Hamer has written: “if two trials are okay, why not three, or four, or....?”;[20] whilst Gale, in agreement, has suggested ‘finality is no longer a primary aim’[21] and that ‘this may be the thin end of a wedge, which will allow the prosecution successive bites of the cherry’.[22] It is not, by any means, clear cut as to the number of trials that should be permitted with any given case. However, it is certainly true to say that as regards conviction appeals, a case may go to court any number of times – being passed up the ladder from the High Court, to the Supreme Court, with scope to appeal to the European Courts in certain instances; thus if symmetry is truly to be achieved in the justice system, acquittal appeals must be treated with the same level of opportunity.

It is important that the law holds some level of finality, especially as regards maintaining consistency and reliability, however, for as long as appeals on conviction are permitted, this essay submits that acquittals should be served with the same hand, regardless of various counter-arguments based on opening the floodgates of litigation.

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[1] Keir Starmer, ‘Finality in criminal justice: when should the CPS reopen a case?’ [2012] Crim LR 531

[2] Blackstone, IV Commentaries pp.335-336, 1765-1769.

[3] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 64

[4] Keir Starmer, ‘Finality in criminal justice: when should the CPS reopen a case?’ [2012] Crim LR 528

[5] Criminal Justice Act 2003, s.78

[6] R v Dunlop [2006] EWCA Crim 1354; [2007] 1 W.L.R. 1657

[7] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 71

[8] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 72

[9] Tom Whitehead & Mark Hughes, ‘Stephen Lawrence murder: change in double jeopardy law allowed Gary Dobson prosecution’ (2012) The Telegraph

[10] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 72

[11] Keir Starmer, ‘Finality in criminal justice: when should the CPS reopen a case?’ [2012] Crim LR 533

[12] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 74

[13] R v Carroll [2001] Q.C.A. 394

[14] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 77

[15] Criminal Justice Act 2003, Part 10

[16] Keir Starmer, ‘Finality in criminal justice: when should the CPS reopen a case?’ [2012] Crim LR 533

[17] Andrew Ashworth & Mike Redmayne, The Criminal Process (3^rd edn, OUP 2005) 368

[18] Criminal Justice Act 2003, Schedule 5 Part 1

[19] Ian Dennis, ‘Prosecution Appeals and Retrial for Serious Offences’ [2004] Crim LR 619 637

[20] David Hamer, ‘The expectation of incorrect acquittals and the “new and compelling evidence” exception to double jeopardy’ [2009] Crim LR 68

[21] Christopher Gale, ‘Case Comment: Double Jeopardy’ [2007] J Crim L 9

[22] Christopher Gale, ‘Case Comment: Double Jeopardy’ [2007] J Crim L 9

Evidence: The admissibility of improperly obtained evidence

(Abstract taken from my own dissertation)

The admissibility of improperly obtained evidence

It is well established that the courts have the power to throw cases out of court based on some infraction. Whether a police officer denied the suspect the right to legal advice,[1] or failed to note his name and station on arrest,[2] the courts may use such reasoning to justify acquittal. Whilst in principle it is arguably a fine moral standard to ensure misconduct is punished, one must question whether the UK has the correct approach or whether more could be done to ensure justice is achieved on a range of levels. Sanders and Young state that ‘excluding reliable evidence at trial – or worse, halting the trial altogether – so that a guilty person walks free, punishes the innocent public along with the guilty police.’[3] This essay submits that our system has a worrying view of what ‘justice’ is and if we are going to start achieving it, changes must be made.

The provision under which the exclusion of improperly obtained evidence is made possible is found in the Police and Criminal Evidence Act 1984 (PACE) s.78. The section is based upon the supposed ‘adverse effects on the fairness of the proceedings’[4] if evidence is admitted which gives the prosecution an unfair advantage, or of which the opposition have little or no chance at responding to. Although this relatively new provision under PACE appears to empower the judiciary with abundant discretion, Watkins LJ in Mason pointed out that the section actually ‘does no more than to restate the power which judges had at common law before the 1984 Act was passed’.[5]  Issues of admissibility are thus potentially rooted in historical thought, which perhaps explains the system’s reluctance to reform. Nonetheless, there is certainly evidence of some change over the years, given that the historical common law ‘was at the crime control end of the spectrum’ whilst PACE demonstrates clear movement towards due process.[6]

All the same, the issues are as confused now as they have always been. Indeed in R v Sang [1980][7] ‘all the members of the Lords...were prepared to recognise that there should be the possibility of excluding evidence on the basis of unfairness, but did not present any uniform view as to what circumstances might justify this’.[8] It is probably fair to submit, given the ever-widening scope of s.78, that there is still a vital lack of clarity as to what may or may not be excluded. The new provision must, however, be extolled for the extensive scope inherent within it. The term ‘improper evidence’ may be applied in respect of ‘illegal search; identification evidence; suspects being wrongly denied access to solicitors; confessions; alibi notices; breaches of PACE codes.’[9] This means that whilst there may still be some confusion as to when evidence will be excluded, the circumstances under which such a debate might arise will undoubtedly fall within the provision.

It is not entirely apparent whether s.78 is rooted in due process or crime control rationale. Judicial discretion here, similarly, is neither prima facie advantageous nor detrimental to the defendant’s case as it tends to produce anomalous results; this is perhaps a flaw in its own right. The plethora of case law that has arisen in this area gives very little guidance as to what the outcome of any given trial may be. The notion of precedents has been partially, if not entirely, abandoned.

One of the most recent examples of rights going above and beyond their original purpose is that of Abu Qatada and the Courts’ decision to retain him in the UK. The saga has been described as ‘a very expensive and very embarrassing headache for the British Government’[10] as the suspected terrorist from Jordan has been detained in the UK for the past 7 years, for fears that deporting him to his native country would result in a criminal trial where evidence obtained by torture – which is not permitted under the European Convention on Human Rights[11] - is used to convict him. Taking such a due process stand has also highlighted the fundamental quandary in attempting to find the ‘correct’ outcome - assuming that one exists. As one human rights blog states: ‘On the one hand, we have national security. On the other, due process and the rule of law. All three are vital components of the public interest, and often they conflict.’[12]

There are a plethora of issues which arise in the on-going Abu Qatada debate, which will not be discussed here as the basis for this discussion is predominantly centred on exclusion of evidence, linking to the wider issue of whether criminals have too many human rights. However, it is important to note that making such deeply due process-rooted decisions regarding evidence exclusion means that not only in this case are public funds being spent on maintaining an immigrant and giving him a luxurious lifestyle[13] – it has been estimated that when calculating the legal aid, jail fees, government bill, security, housing and benefits, Abu Qatada will cost the UK approximately £6million in 2013[14] - but the suspected terrorist is not being prosecuted in this country either. Theresa May has voiced her concerns and told the Commons that the Government will continue to do everything it can to get rid of Abu Qatada;[15] the problem is finding a law that will permit such action, in a country which is notoriously due process.

However, exclusion of evidence dilemmas do not always arise in such high profile cases. Take for example, Attorney General’s Reference (No.3 of 1999)[16] in which the defendant was acquitted after DNA evidence, proving his guilt, was deemed inadmissible. The saliva sample taken on suspicion of burglary months earlier – of which he was later acquitted – was not destroyed in accordance with legislative provisions requiring destruction of samples.[17] When swabs were taken some 9 months later from a rape victim, which matched the defendant’s DNA profile, he was arrested and a hair sample was taken, proving further evidence of his guilt. It is worth noting that although the suspect was acquitted, the House of Lords disapproved of the result; this perhaps demonstrates the need for acquittals to be challenged. This will be discussed in the double jeopardy section below.

So why are we so hell-bent on excluding evidence which is known to be reliable? How can we be so blasé about acquitting a known-rapist? The issue remains unclear, although it is thought to be rooted in the moral, or not-so-moral standards, we are endorsing when we permit the state to benefit from misconduct. Sanders and Young point out the fundamental impasse: ‘What discredits the criminal justice system more: ignoring apparently reliable evidence and allowing the apparently guilty to go free, or using illegally obtained evidence and, by doing so, condoning illegal police behaviour which may not be subject to any other sanction?’[18]

The writers also highlight the crime control view that ‘legal niceties should not obstruct the search for the truth’[19] – with which this essay is inclined to agree. The issue of admissible or inadmissible evidence is ripe for reform. Although adjudicators now lean towards an arguably more attractive ‘reliability’ stance, if judicial discretion is indeed the way forward, there is a need for clearer guidelines and more consistent precedents; otherwise the justice system becomes a shambles of incomprehensible decisions, supposedly founded on little more than simply good sense.

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[1] Samuel [1988] 2 All E.R. 135

[2] Osman v Southwalk Crown Court [The Times 28 Sept 1999]

[3] Andrew Sanders & Richard Young, Criminal Justice (4^th edn, OUP 2010) 700

[4] Police and Criminal Evidence Act 1984, s.78(1)

[5] Diane Birch & David Ormerod, ‘The evolution of the discretionary exclusion of evidence’ [2004] Crim LR 774

[6] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 701-2

[7] [1980] AC 402

[8] Richard Stone, Civil Liberties & Human Rights (8^th edn, OUP 2010) 168

[9] Diane Birch & David Ormerod, ‘The evolution of the discretionary exclusion of evidence’ [2004] Crim LR 774-5

[10] Online constitutional law blog: Tom Hickman, ‘The Return of Abu Qatada (to the streets of London)’ (2012) - http://ukconstitutionallaw.org/2012/11/14/tom-hickman-the-return-of-abu-qatada-to-the-streets-of-london/

[11] European Convention on Human Rights, Article 3

[12] Online human rights blog: Adam Wagner, ‘Abu Qatada: in the public interest’ (2012) - http://ukhumanrightsblog.com/2012/11/16/abu-qatada-in-the-public-interest/

[13] For example, the £400,000 house in Wembley, as reported by Tom Peck, ‘Abu Qatada is moved to secret address after protesters target his home’ (2012) The Independent

[14] Online article: Richard Moriarty & Luke Heighton, ‘Abu Qatada will cost UK taxpayers £6m this year’ (2013) The Sun - http://www.thesun.co.uk/sol/homepage/news/4765055/Abu-Qatada-will-cost-UK-taxpayers-6m-this-year.html

[15] Online article: unknown author, ‘Abu Qatada wins appeal against deportation’ (2012) BBC News - http://www.bbc.co.uk/news/uk-20295754

[16] [2001] 2 A.C. 91

[17] Police and Criminal Evidence Act 1984, s.64(1)

[18] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 700

[19] Andrew Sanders & Richard Young, Criminal Justice (4th edn, OUP 2010) 700

Herbert Packer's Models of Criminal Justice - Crime Control vs Due Process

(Abstract taken from my own dissertation)

Packer’s models of criminal justice

It has been said that any given justice system will generally adopt one of ‘two conflicting value systems that [compete] for priority in the operation of the criminal process.’[1] Of course, these two systems are the Crime Control and Due Process models mentioned above; and whilst it is true to say that they stand for inherently different values and most people are inclined one way or the other, Packer has said that ‘anyone who supported one model to the complete exclusion of the other ‘would be rightly viewed as a fanatic’.[2]

The Crime Control model (CC) has been described as a conveyor belt by Sanders and Young. This is perhaps due to the nature of the system which moves quickly, knocking off various suspects one by one. Abolishing crime is CC’s primary concern, whilst human rights exist as a secondary or even tertiary consideration – this is one of its major criticisms, given that the Human Rights Act 1998 is now a fundamental part of our legal system.

Despite heavy critique, the model must be praised for its ability to address levels of crime with speed and efficiency; it has also been suggested that without such a harsh system, a ‘general disregard for the criminal law would develop and citizens would live in constant fear’.[3]

However, whilst some CC arguments are plausible, the inconsistency in practice cannot be justified so easily as the lack of thorough investigation puts innocent people at risk of conviction. Additionally, achieving such efficiency with resistance to challenge suggests methods such as interrogation may be freely endorsed; it is a worrying thought that we might be prioritising conviction rates above human autonomy.

It could be argued that ‘criminal justice agencies have been put under considerable performance pressure to reduce crime, to bring offenders to justice and to deal with juvenile offenders’,[4] but critics would submit that this goes little way to providing a defence as what we ‘save’ in monetary terms, we have to make up for in other ways – and this is usually at the expense of human dignity.

The Due Process model (DP) on the other hand, could be described as the antonym of crime control. It is based on procedure and sensitivity to each case – placing as much importance on the process as the end result. Sanders and Young have said that its aim is as much about protecting the factually innocent as convicting the factually guilty, which automatically denotes far fewer convictions.

The willingness of DP to sacrifice crime statistics in the name of preventing demoralising and oppressive behaviour is perhaps founded on the belief that we must teach by example and are failing to educate offenders when we too become law-breakers. “To seek to condemn and deter these people for their supposedly free-will decision to breach the criminal law smacks of cruel hypocrisy, particularly when there is a failure to provide for the individualised and humane rehabilitation of offenders.” [5]

There is a dire need to improve confidence in the criminal justice system[6], and those in favour of due process would submit that respect for individual rights is a step in the right direction. The Government in 2004 said that ‘improving the way that we treat the public, particularly victims and witnesses, is essential to enhancing levels of confidence.’[7] Nevertheless, without improved statistics the due process model will fail to be competent enough on its own, and this is perhaps where our crime control anomalies arise.

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[1] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 21

[2] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 24

[3] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 22

[4] Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC

[5] Andrew Sanders and Richard Young, Criminal Justice (4^th edn OUP 2010) 23-4

[6] Daniel Gilling, Crime Control and Due Process in Confidence-Building Strategies, A Governmentality Perspective [2010] BJC

[7] HM Government, Cutting Crime, Delivering Justice: A Strategic Plan for Criminal Justice 2004-08, (2004)