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Q6 “It is a general problem, not specific to the law of the United Kingdom: a criminal justice
system characterised by an emphasis on crime control rather than due process will inevitably
produce miscarriages of justice.”
Assess the validity of this statement with particular reference to at least one Jurisdiction other than
England and Wales.
Q6 “It is a general problem, not specific to the law of the United Kingdom: a criminal justice
system characterised by an emphasis on crime control rather than due process will inevitably
produce miscarriages of justice.”
Assess the validity of this statement with particular reference to at least one Jurisdiction other than
England and Wales.
Q6 “It is a general problem, not specific to the law of the United Kingdom: a criminal justice
system characterised by an emphasis on crime control rather than due process will inevitably
produce miscarriages of justice.”
Assess the validity of this statement with particular reference to at least one Jurisdiction other than
England and Wales.
Exam Candidate Number: 141064 Student Registration Number: 101011916 Q6 It is a general problem, not specific to the law of the United Kingdom: a criminal justice system characterised by an emphasis on crime control rather than due process will inevitably produce miscarriages of justice. Assess the validity of this statement with particular reference to at least one Jurisdiction other than England and Wales. Do I think the death penalty is immoral because it will inevitably lead to condemnation of someone who is innocent? Well of course it will, I mean you cannot have any system of human justice that is perfect. Its one of those risks of living in an organised human society. Justice Scalia, US Supreme Court 1 Over the last century miscarriages of justice have blighted jurisdictions across the world. From the French parents falsely accused of child molestation 2 to the decades-long incarceration of Sakae Menda on Japans death row 3 , individuals have been wrongly accused, imprisoned and sometimes executed. Despite radical differences in legal traditions between jurisdictions, the reasons for these errors are strikingly similar, with eyewitness misidentification, faulty forensic evidence and police mistakes blamed repeatedly. 4 Arguably such errors are inevitable; the human memory is notoriously unreliable, while scientists and police are hardly infallible. Perhaps, as Justice Scalia contends, mistakes are simply an unfortunate side-effect of modern society. This essay aims to challenge Scalias statement by investigating whether miscarriages of justice are caused not by fundamental human fallibility, but by prioritising crime control values at the expense of due process safeguards. Packers Crime Control model will be briefly outlined, before determining whether characteristics of this model correlate with factors responsible for miscarriages of justice. Singapore will be used as a case study. Subsequently due process controls will be examined to ascertain whether they can prevent, or at least reduce miscarriages of justice. The Crime Control Model The archetypal Crime Control model depicts an authoritarian government, convinced that efficient conviction of criminals brings greater freedom for law-abiding citizens. Unless speed and finality are paramount, order deteriorates and society cannot function. Great power is granted to police and prosecutors to screen suspects, with informal interrogations in the police station preferred to court cross examinations. Police screening processes are deemed accurate indicators of guilt, so subsequent checks are superfluous ceremonious rituals which compromise efficiency. 5 Provided police are neutral fact-finders objectively gathering evidence, the crime control philosophy may be justified; unfortunately, this is often far from the truth. Surrounded by grieving victims, irate witnesses and possibly threatening suspects, it is unsurprising that police have difficulty remaining neutral. 6 High-profile cases often spark media-fuelled public outrage, driving police to violence and coercion to secure convictions swiftly. In the wake of the Guildford and Birmingham IRA bombings, hundreds of Irish nationals were rounded up and aggressively interrogated, eventually leading to the wrongful incarceration of the Maguire family. 7 Similar problems exist in the US where police routinely use prison informants to bolster evidence in weak cases, despite their notorious unreliability. In Illinois, 40% of miscarriages of justice involved evidence from prison informants. 8 Unscrupulous informants will often testify to non-existent conversations regarding another prisoners guilt, in exchange for reduced charges. In some cases evidence is simply made to order 9 Although such practices are deplorable, police often believe they are side-stepping restrictive bureaucracy to deliver justice, so-called noble cause corruption. 10 They are convinced of a suspects guilt, but in the absence of concrete proof feel compelled to fabricate evidence to secure conviction. With no scientific method for objectively ascertaining guilt, such subjective police suspicions, however honestly held, often result from unconscious stereotyping. 11 Psychological Effects Even without deliberate interference, police can still induce miscarriages of justice. Detective work involves far more than robotically classifying fingerprints or measuring bullet trajectories. It includes formulating a list of suspects and proposing a narrative of events, which once engrained into investigators minds is hard to displace, with police often asserting the guilt of a key suspect when their involvement has long been disproved. 12 Psychological studies demonstrate biased interpretation of evidence by police, who unconsciously try to prove their initial hypothesis correct. Interviewers inadvertently formulate questions to support their hypotheses, giving undue weight to corroborating answers, whilst dismissing contradictions. Such effects intensify, as interrogators unconsciously transmit their desired responses through subtle audio and visual clues; hence witnesses and suspects, eager to provide the right answers, miraculously confirm the police hypothesis. 13 These effects are exemplified in the case of US high school student William Harris, who served almost a decade in prison before being exonerated by DNA evidence. After being sexually assaulted, the victim asserted immediately that she knew Harris and he was not her attacker. However, following a series of suggestive interviews, prominent photos of Harris in the local media and a photo based identity parade, she performed the most dramatic sort of identification the deputy sheriff had ever witnessed. 14 She was certain, but she was wrong. Subjective biases also plague seemingly independent fact-finders like forensic scientists. Although scientific evidence is highly prized as a beacon of objectivity in a confusing mire of garbled testimonies and dubious alibis, it is not as precise as most juries believe. If DNA samples are too small or mixed together, the results can be interpreted with significant subjectivity 15 . This is especially disturbing given 28% of British forensic scientists say they feel pressurised to produce a particular result, while 75% have insufficient time to guarantee accuracy. 16 In the US there are reports of large-scale forensic fraud, amid allegations that labs are controlled directly by law enforcement. 17 Prosecutors are unable to rectify these fact-finding errors as they act solely on the police evidence provided. Even in the European civil law jurisdictions, where inquisitorial magistrates can request reinvestigation, this power is rarely used. With this combination of powerless prosecutors, noble cause corruption and unconscious influencing of witnesses, miscarriages of justice seem inevitable. Allowing the subsequent stages of the judicial process to be relatively perfunctory could be unwise, as Singapore demonstrates. Singapore Punishment was so severe that crime was very rare. In the midst of deprivation after the second half of 1944, when the people half-starved, it was amazing how low the crime rate remained. As a result I have never believed those who advocate a soft approach to crime and punishment, claiming that punishment does not reduce crime. Lee Kuan Yew, former Singaporean President describing the Japanese occupation. 18 The island-nation of Singapore boasts one of worlds lowest crime rates, the strictest laws and highest number of executions per capita 9 . Despite damning international criticism of Singapores barbaric 20
practices, the dominant Peoples Action Party unashamedly endorses the crime control philosophy, believing it a requisite for social order. 21 The right to silence is deemed unconstitutional, police interrogation guidelines are non-existent and even the hallowed presumption of innocence is infringed in the case of drug-trafficking (a capital offence). The Internal Security Act allows the Home Affairs Minister to detain anyone prejudicial to Singapores security without trial. Critics accuse the government of rendering Packers descriptive model prescriptive. 22 Consequently, the wrongful conviction of the innocent should be commonplace, yet it appears conspicuously absent. Commentators attribute this to harsh penalties for corruption, exacting police training and multiple layers of scrutiny, with the few recognised miscarriages of justice fortunately discovered in time. 23 Human rights activists however believe they are more prevalent, just unacknowledged. 24 The exposure of miscarriages of justice globally is credited to investigative journalism, combined with tireless campaigning from family members 25 - unthinkable in Singapores heavily censored media environment. Ranked 140 of 176 countries for Press freedom 26 , Singapore has little time for dissenters. Alan Shadrake was arrested for scandalising the judiciary after publishing a criticism of Singaporean capital punishment 27 while Lynn Lee was interrogated 28 for interviewing Chinese bus drivers alleging police abuse. International intervention can secure clemency for those sentenced to death, but success appears to depend on the country applying pressure. Rusman bin Kosoh was hanged despite questionable intellectual capacity, yet known drug dealer Julia Bohl was sentenced to a short prison term after Germany threatened economic reprisals. 29 Analysing the few recognised miscarriages of justice reveals that Singapore suffers the same problems as other jurisdictions including false confessions, police abuse and unreliable prison witnesses. 30
Campaigners also highlight the cases of Vignes Mourthi, executed despite unsubstantiated evidence and police corruption 31 ; Fong Chee Peng almost sentenced to death on the basis of a sketchy six- paragraph judgement 32 and Amara Tochi hanged as he should have known he was carrying drugs. 33
Given this climate of government secrecy and media repression, miscarriages of justice could be significantly more numerous than formally recognised. Former chief justice, Chan Sek Keong believes it impractical to ensure the innocent are never convicted; such a process would become a charter for murderers, rapists, robbers and other criminals to act with impunity 34 . Due Process advocates disagree. Due Process The Due Process Model looks like an obstacle course. Each of its successive stages is designed to present formidable impediments to carrying the accused any further in the process Herbert Packer, Two Models of Criminal Justice 35 Avoiding conviction of the innocent is paramount in due process philosophy. The state has been granted great power to deprive citizens of their liberty; the judiciary must ensure it is not abused. Police and prosecutors are inherently biased agents; their conclusions are untrustworthy and must be scrutinised by an impartial public tribunal. Counsel is central to allow the defendant to openly counter the accusations against him; efficiency and finality are subjugated by fairness to innocent defendants. 36 Following miscarriages of justice, many states have implemented due process controls to restore public confidence. Audio-visual recording of police interviews throughout Australia has helped eliminate fabricated confessions 37 ; forensic evidence must be accompanied by reliability assessments in the US 38 , and the Norwegian and English Criminal Cases Review Committees (CCRC) have reopened hundreds of doubtful cases. 39
40 Whilst undoubtedly laudable, such measures must be well researched, not knee-jerk reactions to assuage public anger. Crudely superimposing due process concessions on a crime control mentality could exacerbate injustice by falsely convincing the public that miscarriages of justice have been eliminated. Although the United States retains the death penalty, successive governments have reiterated that rigorous checks exist to safeguard the innocent. 41 Superficially this appears justified; a comprehensive capital appeal system exists at both state and Federal levels with a right to effective counsel, in addition to numerous constitutional safeguards. 42 However, many judges and legislators have a strongly engrained crime control mentality which has gradually eroded these due process checks, rendering them useless. 43 Defendants cannot admit evidence in Federal courts that their counsel was ineffective, or that constitutional errors occurred. To overturn a state decision, Federal courts must be satisfied that the decision was not only wrong, but unreasonable 44 ; while according to critics, the effective counsel requirement has been reduced to having a pulse and a bar card. 45 Sleeping, drunk and spectacularly incompetent lawyers have all been deemed legally effective. In North Carolina, 20% of death row inmates were represented by lawyers sanctioned at the bar; similar statistics have been replicated throughout the US. 46 Even if due process is not flagrantly disregarded, the implementation of additional safeguards can have unexpected negative consequences. During the high profile IRA trials of the 1980s, the press clamoured to release the wrongly convicted, but as soon as the CCRC was created, public interest waned. 47 The government had apparently resolved the problem; but despite miscarriages of justice remaining a real threat, funding for the CCRC has been cut over the last six years 48 , and the two retiring commissioners have not been replaced. 49 As the public has become complacent, miscarriages of justice may become more common. Conclusion With overreliance on police and prosecutors, criminal justice systems characterised by crime control values will inevitably produce miscarriages of justice. Either through deliberate misconduct or subconscious influence, primary fact-finders produce highly subjective conclusions which can lead to injustice, as Singapore demonstrates. Carefully implemented due process controls can help rectify these flaws as the creation of the CCRC illustrates; however simply applying a due process veneer to a crime control system could actually exacerbate miscarriages of justice by discouraging public scrutiny. It would perhaps be nave to suggest that sufficient due process controls could eliminate all miscarriages of justice; but while Justice Scalia is satisfied with a success rate of 99.973% 50 , human rights campaigners decry the punishment of a single innocent. Bibliography 1 Row David R. Executed on a Technicality, Lethal Justice on Americas Death Row Beacon Press Books (2005) 2 Bensussan P. (2011) Forensic Psychiatry in France: The Outreau Case and False Allegations of Child Sex Abuse. Child Adolesc Psychiatr Clin N Am. Jul ;20 (3):519-32 3 Dean Meryll, (1995). Trial by Jury: a Force for Change in Japan International and Comparative Law Quarterly April:02 :379-404 4 Colvin E. (2009) Convicting the Innocent: a critique of theories of wrongful conviction Criminal Law Forum, 20 (2&3), 173-192 5 Packer Herbert L. (1964) Two Models of the Criminal Process University of Pennsylvania Law Review 113(1) 6 Evans J. (1993) Miscarriages of Justice- A Police Perspective. Police Journal. 66(4) 7 Martin D The Police Role in Wrongful Convictions; An International Comparative Study in Wrongfully Convicted Perspectives on Failed Justice, Rutgers University Press (2008) p84 8 Armstrong K. and Mills S. (2000 ) Ryan: Until I can be sure Illinois is first State to Suspend Death Penalty.Chicago Tribune, 1 February 9 Zimmerman C (2008) From the Jailhouse to the Courthouse- The Role of Informants in Wrongful Convictions in Wrongfully Convicted Perspectives on Failed Justice, Rutgers University Press, 10 Supra 7 11 Zuckerman A. (1992) Miscarriage of Justice- A Root Treatment Criminal Law Review 323 12 Ibid 13 Ibid 14 Castelle G. and Loftus E (2001) Misinformation and Wrongful Convictions in Wrongfully Convicted Perspectives on Failed Justice, Rutgers University Press (2008) p20 15 Geddes Linda (2010) Fallible DNA evidence can mean prison or freedom, New Scientist 11/07/10 accessed at:< http://www.newscientist.com/article/mg20727733.500-fallible-dna-evidence-can-mean-prison-or- freedom.html> 16 Geddes Linda (2012) Forensic Failure: Miscarriages of Justice will occur, New Scientist 08/02/12 accessed at< http://www.newscientist.com/article/mg21328514.600-forensic-failure-miscarriages-of-justice-will- occur.htm>l on 1/5/12 17 Ibid 18 Kuan Yew Lee, (1998) The Singapore Story The Straits Times Press p74 19 Capital Punishment and Implementation of the Safeguards guaranteeing protection of the rights of those facing the death penalty (2001), United Nations Economic and Social Council, accessed at: <http:// www.unodc.org/pdf/crime/10_commission/10e.pdf> on 16/03/13 20 Australia slams Barbaric Hanging, Al Jazeera, accessed at: <http://www.aljazeera.com/archive/2005/12/ 200849152014231744.html> on 16/3/12 21 Siyan Chen and Chua E. (2010), Wrongful Convictions in Singapore: A General Survey of Risk Factors, Singapore Law Review, 28 Sing. L. 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Iwuchukwu Amara Tochi &Anor [2005] SGHC 233 34 Keong Sek Chan [1996] The Criminal Process-The Singapore Model Singapore Law Review, 17 Sing. L. Rev. 433 35 Supra 5 36 Ibid 37 Supra 4 38 Supra 14 p20 39 Supra 25 40 Kommisjonen for Gjenopptakelse av Traffesaker, Norwegian Criminal Cases Review Commission- Decisions 2008. Accessed at http://www.gjenopptakelse.no/index.php?id=132 on 30/3/13 41 Supra 1 p xxiii 42 Supra 40 p 40, p62 43 Supra 40, p20 44 Supra 40 p 40 45 Supra 40 p82 46 Supra 40 p 60 47 Poyser Sam (2012), Calling for renewed media interest in Wrongly Accused: Who is responsible for Investigating Miscarriages of Justice?,Solicitors Journal, Wilmington Publishing and Information Ltd. 48 MacGregor Alistair (2012), Unrealistic Expectations in Wrongly Accused: Who is responsible for Investigating Miscarriages of Justice?,Solicitors Journal, Wilmington Publishing and Information Ltd. 49 Malone Campbell (2012), Out of Step in Wrongly Accused: Who is responsible for Investigating Miscarriages of Justice?,Solicitors Journal, Wilmington Publishing and Information Ltd. 50 Justice Scalia of the US Supreme Court, Kansas v Marsh, 548 U.S. 163 (2006) (quoting Joshua Maquis)