I've decided to write a small post on whether the law is too kind to criminals, particularly as they pass through the criminal justice system. I am in the process of writing a 12,500 word dissertation on the subject, and therefore any comments are very much welcomed.
The idea for my dissertation came together after some thought on the ways in which justice is achieved in our 21st century legal system. Herbert Packer proposed two conflicting models which may attempt to deal with 'justice' - the Crime Control system and the Due Process system. Much as its name suggests, the Crime Control system focuses on ensuring criminals are successfully convicted, even at the expense of breaching human rights such as the right not to be tortured. In contradistinction, the Due Process system believes human rights should be upheld and respected at all times, even at the expense of criminals walking free. Looking at these two systems caused me to question whether either system alone could, or indeed should, work in isolation to the other - and furthermore, whether a Crime Control approach to justice could ever be justifiable.
The two systems then led me to think about Utilitarian ideologies and whether it's right that one person should suffer so that the many may be happy - or in criminal respects, that one person might be treated unjustly by the system in order that a conviction is secured and society might be safe.
It has been overwhelmingly clear that, as a general principle, the UK's justice system tends to favour the Due Process approach. As the technically more 'just' of the two, I suggest that this is the safer option, particularly given the outrage and criticism that would ensue were police permitted to take more heavy-handed action with suspects. Nevertheless, it must be questioned as to whether the Due Process model has gone so far as to not only protect criminals, but aid them in their quest for acquittal.
One area of particular interest to me has been the issue of 'double jeopardy' - an 800 year old law which states that no person can be tried twice for the same crime. Whilst in principle this principle may have a number of merits including preventing the floodgates of litigation from opening, it has led to some abhorrent results. Take, for example, the murder of Julie Hogg. The 22 year old woman who was brutally murdered for refusing to have sex with a man. He then hid her body behind her bath panel, only for her mother to discover it rotting months later. Whilst her murderer should have been convicted at trial - with evidence such as his semen on the blanket she was wrapped in, his finger prints on her keys, and many of her belongings hidden under his floorboards - the jury failed twice to come to a unanimous verdict, and he was subsequently acquitted. Knowing that double jeopardy would protect him, Julie's murderer later confessed to his ex-wife and a prison officer that he had strangled her for refusing to have sex with him.
If you're interested in the facts of this case, they are readily available online; however, the important factor is that double jeopardy has since been abolished in England and Wales (although unfortunately not in Scotland) as a result of this case. Julie Hogg's murderer was given a life sentence and many others like him are now facing re-trials. Part 10 of the Criminal Justice Act 2003 now permits a re-trial where 'new and compelling evidence' is available. What I attempt to explore, inter alia, is whether reform of this law has gone far enough - for instance, is the requirement that the evidence be 'new' too high a standard or should we make it easier for suspects to be re-tried? I will also look at whether the courts are too readily dismissing improperly obtained evidence or overturning convictions based on 'unfair trials', thereby allowing many known criminals to escape justice.
Please give me your thoughts, I look forward to hearing them!
