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!
As much as this short piece touches upon subjects that i could rant about for hours, i will try to keep this short.
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[Stolen from internet]
a government's legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised."
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In a democracy (even a representative democracy such as our own) the authorities are given power by the people. however because in this modern age people are so much more diversified particularly in such a multi-cultural society as the UK, a common consensus is hard to come by. The authority that governs many is not one to which they gave power. particularly at the moment as the existing coalition government is one that nobody voted for.
It is no longer fair or just to use a single inflexible system to govern such a variety of people, societies and cultures.
This is merely one example of the inefficiency of an inflexible system.
As you point out above, particularly with the Julie Hogg case, following rigid rules will always leave some guilty walking free, and some innocents facing conviction. I assume that the law of 'double jeopardy' was initially created for a good reason, yet one publicised case where it was abused and it is repealed in entirety (there may have been many cases, i am not doing research beyond the text you provide). If we had a flexible law system a judge could easily declare that there was new and compelling evidence since the initial trial and thus double jeopardy was no longer applicable to this case, but still stood in English law.
Also to add a different, more practical comment to the main focus of the piece. Our prisons are full, our government is in debt. The police have cracked down hugley in the last few years enforcing on the spot fines, seizing vehicles and property and impounding them. The number of crimes has increased whilst the number of criminals being arrested has decreased... whether people brake the law or not, if our government cant afford, or does not have the room to, lock them up then they cant.
Also you could look at things like the level of care within uk prisons, particularly the less secure ones. I am sure you have heard about inmates being given xbox's and televisions and pocket money/ allowances. particularly compared to minimal benefits available outside prison.
ReplyDeletethe near impossibility gaining reasonable employment after serving jail time
The increase in devout believers in human rights. As if anyone really has a right to that which they cannot achieve themselves.
The clash between the country law (English Common Law) and religious law. And the peoples right to choose the law that governs them, particularly when based on a strong belief system, against the right of a country to expect new commers to fall in line.
The relevance of many laws. Each government comes into power, makes a couple of changes but on the whole we are still governed by the rules of the previous government, and the one before that, and so on, and so on. Do we really have any say in the power that governs us?
Restrictions on police. recent publicity (last 30 years) about police brutality, does it make it harder to catch criminals? does it make it easier for them to get off once caught?
Uncertainty regarding laws... its been in the news alot recently about the potential change in laws regarding cannabis... can police properly uphold these laws whilst people listen to the politicians suggesting the law might be changed. Do these debates and discussions regarding law, weaken those laws?
Increase in public street smarts when handling police. Since the internet people have grown much more savvy when interacting with police. the common man knows the law better than ever before. and if the research particular laws thoroughly they probably know them better than the police who go through a 6 week course which supposedly teaches them how to enforce every law.
Please note a rarely do proper research, even if i state my case in a factual manner.
Good luck, and when you finish you should post highlights of your disseration here, I would love to read more.