Having successfully completed a combined degree in Law and Criminology, I am furthering my studies and aim to successfully complete the Institute of Chartered Secretaries and Accountants International Qualifying Scheme through completion of an MA/LLM Corporate Governance and Law masters programme, thus ultimately qualifying as a Chartered Secretary. The legal aspect of my degree has allowed me to attain a firm understanding of the rigid, but at times flexible, application of the law whist the criminological aspect on the other hand has given me firm knowledge of theoretical and sociological reasoning. A combination which allows me to adhere to the systematic analysis of the application of law but simultaneously allows me to theorise about the efficacy of that application.

Sample 1

‘Arguments about due process and crime control are too simplistic to resolve the conflicts of interests found in criminal justice. Discuss’

Arguments about due process and crime control are too simplistic to resolve the conflicts of interests found in criminal justice because they seek to make finite the application of both frameworks to criminal justice (CJ) as two completely separate approaches with differing wanted outcomes. But for Herbert Packer (1969), who developed these models the debate is not between two conflicting value positions, but instead positions reflecting different points on the same spectrum. This is evident as whilst crime control is viewed as being concerned with the repression of crime and due process with the protection of the innocent they both seek the same objective namely punish the guilty and free the innocent, although the means by which they achieve this objective varies. An example is seen by applying the models to a CJ institution such as the police, through the eyes of crime control policing is seen as a war against crime and criminals and so advocates that tough policing strategies are needed, thus holds steadfast that the means does justify the end. On the other end of the spectrum however, due process maintains that police should adhere to the letter of the law i.e. they operate ‘within’ policies and strategies. Commencing with crime control both models will now be explored in relation criminal justice.

Crime control views the most important function of CJ as the repression of criminal conduct. The absence of that repression results in a fear of crime and a loss of social freedom through disregard for the criminal law. Its answer is attaining ‘high conviction and detention rates’ as the means of achieving the ultimate function of repression. The model holds ‘high conviction and detention rates’ synonymous with ‘speed and minimising opportunities for challenge’ thus finds formal fact-finding through the court to be slow and wasteful. It sees speed being achieved by allowing for example the police to undertake interrogations to establish facts. “To further guarantee speed, procedures must be uniform and routine, so that the model as a whole resembles a conveyer belt in its operation” (Sanders, 2000, p. 22). The confidence it places in the informal administrative fact finding process is reflected in its belief that the probably innocent are screened out whilst the probably guilty proceed through the remainder of the CJ process. The model accepts that some errors will be made in this screening process and is willing to tolerate these mistakes to ensure the efficient repressing of crime. It even views its own pre-trial process as producing more reliable evidence than formal court proceedings. Still utilising the police as an example and in keeping with the models need for speed, crime control sees a guilty plea as means of curtailing the judicial stage of the CJ process and so the police seek to get confessions from those they presume to be guilty. The presumption of guilt is what makes it possible for the crime control system to deal efficiently with large numbers and routine procedures are essential if large numbers are to be handled.

“Packer concludes, ‘when reduced to its barest essentials and operating in its most successful pitch, it offers two possibilities: an administrative fact finding process leading to (1) exoneration of the suspect or (2) the entry of the guilty plea” (1969, p. 162 - 163).

Looking at the operation of the CJ system thus far there are prominent crime control features, these include for example decisions to stop and search and arrests made on police instinct not reasonable suspicion, routine and authorised detention for the reason of obtaining a confession (which in certain situations constitutes proof beyond reasonable doubt) and plea bargaining (through its use adjudicative fact-finding is reduced to its barest essentials). Thus, it can be conceded that “crime control invariably trumps individual rights and the broader constitutional values related to the Rule of Law” (Bronitt, 2004, p. 2). At the heart of this model lies the guilty plea and the early administrative fact-finding stages which in turn make the subsequent stages inconsequential.

Though crime control may accept rules forbidding illegal arrests or coercive interrogations such as the Police and Crime and Evidence Act and its subsequent codes of practice, it opposes the consequences of those rules which mainly include making inadmissible in court illegally obtained evidence or the quashing of convictions because of a breach of the rules. Though this is the standpoint of crime control, the opposite is true of the due process model.

Due process lacks confidence in informal fact-finding processes as it argues that the police will innately have the belief that they have correctly apprehended the correct suspect and so it advocates formal adjudicative, adversary fact-finding. Its ideological stance is not converse to that of crime control as it does not maintain that it is not socially desirable to repress crime. It leaves open a large margin for error and thus maintains that the possibility of a case being reopened to take account of new facts should always be a possibility. “The aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty” (Packer, 1969, p. 165). The due process model seeks to uphold a complexity of values some of which are based on the efficacy of crime control devices which is concurrent to another of its values, in particular the individual citizen. The connection here is that due process declares the need for controls over the state to prevent it form using is powers in a coercive and oppressive manner over the individual. An example of these controls is seen through the presumption of innocence over guilt, consequently placing the burden on the state to prove legal guilt in a procedurally proper manner. Taking the viewpoint of the passing bystander this would appear to be more than fair as the state, being a super power in comparison to the individual would have at its disposal the necessary resources to take on such a task. The model’s concern with the abuse of power in some instances takes precedents over reliability. This is apparent as in cases where the police have illegally obtained evidence that undoubtedly establishes the guilt of a suspect, the model insists that the evidence be inadmissible as a demonstration to officials that there is nothing to be gained by using their powers oppressively.

One of the main premises the due process model rests on is that of equality. As there cannot be equal justice if the kind of trial a man gets depends on the amount of money at his disposal, the due process model holds that every man should have the same resources at his disposal to ensure that an effective and reliable defence is conducted. This manifests itself in the provision of a lawyer to advise or represent clients, whom through financial inability do not have one, this occurs where the theoretical right to be supplied with one exists. The role of the lawyers is central to the model as “they are needed to bring into play the remedies and sanctions which due process offers as checks against the operation of the system” (Sanders, 2000, p. 25).

Lastly the due process model has a mood of skepticism about the morality and utility of the criminal sanction, taken either as a whole or in some of its applications. It sees the use of sanctions being targeted at the psychologically and economically disadvantaged. And because there are “doubts about the ends for which power is being exercised, pressure is created to limit the discretion with which that power is exercised” (Packer, 1969, p. 171).

In summation a crude reiteration of these arguments can be understood as in the case of the crime control model there is the main concern of convicting the guilty at the risk of convicting the factually innocent and thus the possible infringement of civil liberties is seen as a necessary price to pay to achieve its goal. It resembles an assembly line conveyor-belt guaranteeing speed and uniformity thus subverting adversarial procedures. Examining the conviction it puts in the police and prosecution it can be said that the model adheres to some inquisitorial ideological values. Whilst on the other hand due process holds steadfast morality and individuality, putting foremost the protection of civil liberties and the prevention of state coercive powers. Its somewhat preoccupation with morality and adherence to procedure reflects moral standards and its belief of leading by example.

Accordingly, it can be said that the due process model resembles an obstacle course in that it provides successive hindrances to impede suspects advancing thorough the criminal justice process.

Application of these models to CJ reveals the danger of such simplistic arguments as it leaves the absolute of an ‘either or’ proposition, providing no compromise in an atmosphere inherent of conflicting interests and influences on criminal justice such as those emanating from the multi-cultural make up of this society. Evidence of such conflicts can be seen through the inquiries of the deaths of Stephen Lawrence and Damilola Taylor. “Though subject to some criticism on the grounds that they represent an over- simplification of what is, in fact, a complex structure, Packer's crime control and due process models of criminal justice remain useful evaluative concepts” (Roberts, 2004, p. 5). There remains no indication of a possible merger of ideologies or the incorporation of any additional elements. However, a union of both models or future incorporation of other elements may produce a hybrid paradigm most effective in eliminating the simplicity of the individual models thus resolving the conflict of interests found in criminal justice.

Bibliography

(2000) Police Commentary. Police Journal. PJ 73 (295)
Bronitt, S. (2004) The Law In Undercover Policing: A Comparative Study Of Entrapment And Covert Interviewing In Australia, Canada And Europe. Common Law World Review. CLWR 33.1(35)
Packer, H. (1969) The Limits of the Criminal Sanction. London: Stanford U.P.
Ramraj, V. (2004) Four Models Of Due Process. International Journal of Constitutional Law. ICon 2.3(492)
Roberts, A. (2004) The Problem Of Mistaken Identification: Some Observations On Process. Intenational Journal of Evidence and Proof. EvPro 8(100)
Sanders, A. (2000) Criminal justice / Andrew Sanders, Richard Young. London : Butterworths.

Sample 2

‘Arguments about due process and crime control are too simplistic to resolve the conflicts of interests found in criminal justice. Discuss’

The art.234 procedure acts as a mechanism by which national courts may apply to European Court of Justice (ECJ), when there is a question regarding the interpretation or validity of the Acts of Community Institutions. “It is often said that this procedure is the most important procedural provision of the EC Treaty” (Tridimas, 2004, p. 125). When the case has been heard by the ECJ it is then returned to the national court for it to be applied, as it is a judicial device and not an appeal system, it is for the national courts to apply for the procedure not the parties to a case. A preliminary ruling (PR) could be so specific and detailed that it borders on deciding the case and so a clear distinction must be made between interpretation and application as ‘art. 234. gives the court no jurisdiction either to apply the Treaty to a specific case or to decide upon the validity of a provision of domestic law’ (C6/64 Costa v Ente Nazionale per l’Energia Electtrica (1964) ECR 585). Under art. 225(3) of the Treaty of Nice the Court of First Instance (CFI) also possesses jurisdiction in certain areas to give preliminary rulings, this was done in an attempt to relieve the work load of the ECJ. It provides that ‘where the CFI considers that the case requires a decision of principle likely to affect the unity or consistency of Community law, it may refer the case to the ECJ’. It goes on to provide that where there is a serious risk of the unity or consistency of Community law being affected rulings of the CFI may be subject to review by the ECJ. The potential problem with this provision lies within the lexis of the provision itself, e.g. the use of ambiguous phrases such as ‘likely to affect the unity or consistency’, ‘serious risk’ and ‘decision of principle’ begs the question, what do they specifically include?

The ECJ is not permitted to rule on the interpretation of national law however, its jurisdiction is very wide in that it is permitted to rule on the interpretation of the Treaty, acts of the institutions (both binding and non-binding) and of statutes of bodies established by an act of the Council. When it comes to validity the ECJ’s jurisdiction is confined to acts of the institutions.

The first of the procedure’s primary purposes is to ensure the uniformed interpretation of Community law throughout all Member States. Allowing national courts to apply their varied individual interpretations to Community law would undermine the underlying principle of the supremacy of EC law and this in turn provides consistency. Subsequent is the development and extension of legal order, where by an interpretive obligation, is placed on Member States (MS) to interpret legislation in accordance with the aims and purposes of the directives (C14/83 Von Closon and Kamman (1984), If a MS is in breach of its obligations and an individual has suffered then compensation maybe awarded, (Francovich (1992))). Thirdly the procedure allows national courts to familiarise themselves with the workings of the European legal order. And finally preliminary rulings have been used to determine whether Treaty provisions and secondary legislation satisfy the criteria for direct effect.

As art 234 only sanctions requests from ‘courts or tribunals’ the test is very wide (A court or tribunal includes ‘any body with official backing which exercises a judicial function according to the normal rules of adversarial procedure and has the power to give binding determinations of legal rights and obligations, independent of the parties in the dispute’ C54/96 Dorsch Consult (1997) at p. 23) thus is not a necessity for the body to be recognised as a court or tribunal under national law (C24/92 Corbiau v Administration des Contributions (1993) ECR I-1277; Italy’s Bar Council (Gebhard (1996) E.R.C. 4165)). When deliberating whether a body is said to be a court or tribunal the ECJ will take a number of factors into consideration e.g. inter partes (C54/96 Dorsch Consult (1997) at p. 30) procedure. In Broekmeulen (C246/80 Broekmeulen v Huisarts Registratie Commissie (1981) ECR 2311. The ability to practise as a medical practitioner was dependent on registration with the committee and one-third of the Committee’s members were appointed by the Dutch government; 61/65 Vaassen (neé Göbbels) [1966] ECR 261), a Dutch body called the Appeals Committee for General Medicine that heard appeals from the medical disciplinary tribunal was held to be a ‘court or tribunal’ for the purposes of art.234. It is unclear however, if international courts such as the European Court of Human Rights are allowed to request the procedure. Courts and tribunals have the discretion under art.234(2) whether or not to refer a question to the ECJ. Nvertheless, Lord Denning in Bulmer v Bollinger ((1974) 2 CMLR 91) laid down guidelines ((a) Is the point of law free from doubt (acte clair) (b) is answer to the question conclusive of the case (c) is there a previous ruling by the ECJ on the issue (d) have the facts of the case been decided ) to which national courts can refer when considering the procedure.

Under art. 234(3) Courts of last resort are obligated to refer to the ECJ. The scope of this provision is not always clear. The ambiguity surfaces when contemplating whether it applies to courts whose decisions are not subject to appeal. The situation has been somewhat clarified by the case of Costa (C6/64 Costa v ENEL (1964) E.C.R 585), where the ECJ ruled that ‘national courts against whose decision, as in the present case, there is no judicial remedy, must refer the matter to the ECJ’ (Another example is where a case being heard in the Court of Appeal (CA) is denied leave to appeal to the House of Lords by both courts, the CA in those circumstances would not be a court of last resort under art. 234(3)). Even so, there still exists the abstract theory that argues that art.234(3) can only mean the highest court in the country.

A court of last resort may be sometimes relived from its obligation to refer a question to the ECJ. This principle is sanctioned from French law and is known as acte clair and its guidelines were laid down in the CILFIT (C283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (1982) ECR 3415) case. This doctrine is accepted by the ECJ where (i) the question of Community law was irrelevant; (ii) the provision had already been interpreted by the ECJ and; (iii) the correct application is so obvious that it leaves no room for doubt. The last of the above conditions was qualified with other considerations these are that (a) acte clair should not be used too often; (b) the national court must be convinced that the matter is equally obvious to courts of other MS as well as the ECJ and; (c) the national court must compare the different versions of the text in the various community languages, it must also bear in mind that legal concepts and terminology do not necessarily have the same meaning in Community law as in national law. It is argued that such narrow guidelines deprive the doctrine of any practical implementation, utilising the very last consideration as an example; it is an extremely daunting task taking into consideration not only the different legal concepts in different jurisdictions but also he vast number of languages of the EU. But according to authors like Weatherill “recent English decisions have made use of the acte clair doctrine which have demonstrated confidence in the interpretation of Community law” (1987, p. 1)

Acte clair cannot be used to substantiate the invalidity of Community legislation (C314/85 Foto-Frost v Hauptzollamt Lübeck-Ost (1987) E.C.R. 4199). “Although the ECJ has in a few cases refused its jurisdiction, it has despite a constantly growing workload, encouraged national courts to refer” (Steiner, 2003, p. 551). However, the ECJ will refuse to hear a request if it falls outside of art.234 (C102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstem AG & Co.AG (1982) E.C.R. 1095); if the request has nothing to do with Community law (C318/00 Barcardi-Martini v Newcastle United FC (2003) 552 not reported ); if there is the absence of a genuine dispute (C104/79 Foglia v Novello (No 1) (1980) E.C.R. 745) or if the question is hypothetical (93/78 Mattheus v Doego (1978)).

The call for reform of the art.234 procedure is due to the large backlog of requests. The increase in requests can be attributed to the increased number of MS and the increasing number of languages used. One proposed reform is the restriction to seek references to national ‘courts-of-last-resort’ only. Although this would considerably lighten the ECJ’s work load it is criticised as it threatens the uniformity of EC Law and the problem would be transferred to the national systems as parties would continuously appeal to get to the court-of-last resort. One argument put forward supporting this reform is that “the goal of the ECJ is the preservation of uniformity”.... and so the procedure should only be “entrusted to the highest court inside the legal order concerned” (Lenaerts, 2004, p. 29).

The second suggestion is that of filtering i.e. ECJ/CFI should be allowed to select cases according to their complexity or importance. The obvious benefit of such a reform is the reduction in work load but also it may encourage national courts to be more selective. Again a criticism of this is that is may distort uniformity, it may also deter prospective references as it may be feared that the request may be denied outright. In 1999, the European Commission proposed that a sentence be added to the existing article requiring national courts to ‘specify why the validity or interpretation of the Community law raises difficulties in the case before it’. The final most radical of reform is that of decentralisation, which involves creating regional courts in each member state. The most evident downfall of such a system is divergent ruling from the separate courts and thus an erosion in the consistency of EC law, however such a reform would drastically reduce the workload of the ECJ and CFI.

BIBLIOGRAPHY

C-54/96 Dorsch Consult (1997) Retrieved 08-01-06 From link
C6/64 Costa v Ente Nazionale per l’Energia Electtrica (1964) ECR 585. Retrieved on 08-01-2006 from link
Lenaerts, K (2004) The Unity of European Law and the overload of the ECJ – The Sysytem of Preliminary Rulings Revisited. Retrieved 08-01-06 from link
Steiner, J(2003) Textbook on EC law. Oxford : Oxford University Press
Tridimas, T (2003) Knocking on Heaven’s Door: Fragmentation, efficiency, and defiance in the preliminary ruling procedure. Common Market Law Review 40(1), 9-50
Weatherhill, S (1987) "Acte clair" In the English Courts. New Law Journal. Vol 137 No. 6326 p. 942

CASES CITED

C318/00 Bacardi-Martini v Newcastle United FC (2003) 552 not reported
C246/80 Broekmeulen v Huisarts Registratie Commissie (1981) ECR 2311.
Bulmer v Bollinger (1974) 2 CMLR 91
C6/64 Costa v Ente Nazionale per l’Energia Electtrica (1964) ECR 585
C24/92 Corbiau v Administration des Contributions (1993) ECR I-1277
C54/96 Dorsch Consult (1997)
C104/79 Foglia v Novello (No 1) (1980) E.C.R. 745
C314/85 Foto-Frost v Hauptzollamt Lübeck-Ost (1987) E.C.R. 4199
Francovich (1992)
C55/94 Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano (1996) E.C.R. 4165
93/78 Mattheus v Doego (1978)
C102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstem AG & Co.AG (1982) E.C.R. 1095
C283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health (1982) ECR 3415
61/65 Vaassen (neé Göbbels) [1966] ECR 261
C14/83 Von Closon and Kamman (1984) E.R.C. 1891