I process. These models are slightly abstract ways

I agree with the statement given
that Debates around criminal justice are
necessarily enthused with an array of vales, ideologies and interpretive
frameworks. I think that every debate given has an underlying value,
ideology or interpretive framework, individually or simultaneously. This quote
comes from Daniel Newman’s book Legal Aid Lawyers and the Quest for Justice1,
in this book Daniel discusses the lawyer-client relationship under legal aid
and the accessibility to criminal justice, in this book Newman discusses how
crime control and due process values underpin many decisions made by lawyers, ultimately
effecting criminal justice.

 

Herbert Packer is a reference
point for many authors and academics when discussing the values underpinning
criminal justice. Packer is an academic that constructed the two models of
criminal process, the Due Process and Crime Control model. Packer’s work
focuses on understanding the values underlying the criminal process and how
these values are then depicted in the criminal justice system and used in many
debates. The Crime Control model has a focus on the repression of criminal
behaviour and how this can be done in the best and most efficient way and the
Due Process model is focused on the rights of the individual. Packer says that
these models compete to control the operation of the criminal process. These
models are slightly abstract ways of understanding the criminal process and perceiving
the normative.

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The first of Packers two models
is the Crime Control Model. It can be seen throughout Packers work that the
value system that underlies this model is based on the proposition that the
repression of criminal conduct is by far the most important function to be
performed by the criminal process2. Convicting
the guilty is at the heart of this model. The three key aspects of this crime
control model, I believe to show the values which they are based on, the first
is that our justice system is a managerial system, this means that the system
needs to work as efficiently and quickly as possible, and there is a heavy
focus on guilty people and how cost effective it is going to be. The crime
control model can be seen as an assembly line, as defendants are passed through
the system efficiently and effectively. This leads to the question of whether
there is a tension between doing things cost effectively and achieving justice?
Under the circumstances of Crime Control, there is a focus on cost efficiency
not justice, which you would expect to be at the heart of criminal justice. This
would further the truth in the statement that I am discussing, thus the values
of the model would be questioned here. The next aspect of the Crime Control
model is the factual presumption of guilt, under this model there is a lot of
trust in the police and prosecution to have made the right judgement call. In essence,
we rely on them. The value underpinning this is that the defendant passes
through the system with a presumption of guilt which is quite contrary to the presumption
of innocence that we all think of as being the foundation for the rule of law. The
final aspect is that of the pressure to plead guilty, pleading not guilty is a
waste of time and resources, so therefore there are pressures applied to a
defendant to plead guilty for example, cohesive or persuasive techniques. The
crime control model aims to end a case as soon as possible, it aims to avoid a
trial as this is the most complicated and time-consuming part of the criminal
process.

 

The second model that Packer
constructed is the Due Process model. This model has very different values as
the foundation of it, in comparison to the Crime Control model. The focus of
Due Process is on upholding individuals right and protecting them. Newman
refers to due process as being an obstacle course,3 they
will see the barriers as an achievement in making sure that people who are
found guilty are actually guilty. It has one similar aspect to Crime Control
which is that people who are guilty should be convicted however, in contrast is
much more interested in the formal process of the criminal law making sure it
works fairly, properly and justly. The three main aspects of this model are;
lack of faith in pre-trial fact finding, there is no transparency to it, you can’t
see if pressures are being applied of it things aren’t going according to the
law. They want to make sure that every individual criminal case has a set of independent
or neutral eyes on it so we know that it is going properly and to ensure a high
level of scrutiny. The next aspect is that of champions adversarialism, this is
the idea that every individual has the right to contest their case, every case
should be able to go to court so we can see that the defendant is able to
assert their rights and if they should be found guilty. There is a high focus
on the right to representation, the Crime Control model doesn’t really like to
have defence lawyers involved, however it is integral to the due process perspective
because its defence lawyers that give defendants the ability to stand up to the
state. The final aspect is that this model is against finality, individuals
should always be allowed to appeal their conviction, there is little faith in
the criminal system so therefore the opportunity to appeal is important.

 

It can be seen that debates today are enthused with the values
of Packer’s models of criminal process. As in today’s society, it can be seen
that we are heading more towards Crime Control values. This is also my opinion,
as we are seeing an increasing amount of power going to the police and
prosecution and an increasing amount of powers being taken away from defence
lawyers. This idea is explored by academic Daniel Newman4, he
discusses legal aid cuts and the effect that they have, he examines the ‘sausage-factory’
approach, which can be seen as trying to get as many clients through the door
as possible. This again would be seen as a debate based upon Crime Control
values and further supports the statement given. I think that in the future we
are going to move towards the extreme of crime control because we are living in
a time of austerity, there are constant cuts and warnings being made. These cuts
restrict the ability of the state to help the individual, this seems to be
moving away from due process values.

 

For Packer (1968) ‘Each of the two models we are about
to examine is an attempt to give operational content to a complex of values
underlying the criminal law.’5
However, Packer is not saying that every person involved is thinking explicitly
about one of the models. These models are academic models, but just because a
person is not explicitly thinking towards one of the models doesn’t mean that
we cannot say that what they are doing is reminiscent of the models. Packer
also believes that his models would not adhere to be an ideology, he describes
this as being a ‘fanatic’. However, this could be wrong as authors say which
ideal they believe in. therefore, Packer’s models could cause debates on their
values and ideologies as some people would take a model to the extreme.

 

Models are criticised by MacDonald (2008), who believes that
the resulting models are inadequate, conflating strong and weak ideal types as
well as failing to properly differentiate between empirical and evaluative
research.6
Criticism furthers debates concerning interpretive frameworks. I think that we
need multi-faceted frameworks of criminal justice, as they better capture the reality
of the criminal justice system, they capture all elements of what’s going on in
the real world, but in particular they do so from a value perspective. Ashworth
and Redmayne introduced a rights-based approach (2010).7 This
framework, was based on the values of human rights and says that the lens we
look at the criminal process through, should stand up for and protect human
rights. Again, this would mean that frameworks would need to have due process
values, which contradicts Packer’s idea of being a fanatic. This framework focuses
on; individuals being rational and rights bearing, retributive rationale for
punishment, the need for authoritative determinations of guilt and human rights
being at the centre but being balanced. Another framework that helps us
understand the criminal process is The Freedom Approach Sanders (2010)8,
this framework says that it is simplistic to only focus on human rights, as
they are a basic minimum but don’t necessarily do what a criminal process
should do which is maximising the freedom of everybody. The aims of this
framework, are to convict the guilty, protect the innocent, protect the victim,
maintain human rights and order, securing public confidence and pursing goals efficient
and effectively without disproportionate cost. The aims of both of these
frameworks are reminiscent of the values set out in both Packer’s models. However,
even though these frameworks engage with Packer, they think that they will
improve him and make him more realistic and aspirational.

 

The final debate that I am going to discuss is that of
McConville and Marsh (2014)9,
this study applies the crime control model and says that we live in a criminal
justice system that is dominated by crime control values. The system still claims to be formally
due process, claims to have protective measures in place to ensure that it
works justly. When in reality it is about pushing through a mass of convicted
people are quickly and efficiently as possible. They believe that this is
happening firstly, because criminal courts are a key site of social control,
this is where the state exercises its power and its repressive function to
control its population. Secondly, there is becoming a much larger justification
for using these repressive powers. we can’t afford to have every case going to
a trail. The system would fall apart. This is an argument given to having a
guilty plea earlier on. It saves us money – crime control model at heart. This
goes one step further and says that it is a repressive state clamping down on
its citizens. And finally, it is achieved through the creation of a dominant
narrative, State has to protect its population against certain troublesome
groups. So, we start to see the justification of crime control values based on
managing a social problem of one sort or another. This was seen clearly in the
London Riots.

 

In conclusion,
I agree with the statement given that debates around criminal justice are necessarily
enthused with an array of values, ideologies and interpretive frameworks, as I have
discussed in detail throughout. I believe that society today is so influenced
by social factors that values, ideologies and frameworks are what define people’s
views and opinions so therefore they are enthused greatly in debates.