CJS

The Criminal Justice System

The problems faced can roughly be divided into

1. The Adversarial system.

The adversarial system is a characteristic of the UK legal system. Unlike the Inquisitorial system, it emphasizes more on parties’ participation in court. However, this traditional system poses some problems. For one, an adversarial system in the UK has been complained as encouraging trials to proceed in a competition based format. It is like a debate contest where 2 parties will display each others cases and attempt to strike down the other's case. The judge will sit in an umpire position, with little or no intervention at all. The problems have called for reforms to take place, such as the Runciman Commission, which involves changing certain trial proceedings such as a pre-requisite to give a summary of the cases each party would present before entering the courtroom, or that the judge now has new found powers to call certain witnesses to court without anybody's notice (from the report by Sanders and Young). This however has been protested by the fact that the UK system is no longer traditionally adversarial, many of such reforms tend to shift it to an inquisitorial style. The most basic of the adversarial system is that the 'truth is best discovered by powerful statements on both sides of the question', but the intervention of judges and the like now pose a question of whether the system has changed for the better or worse. For one, it could be better if the judges made due process to call out important witnesses that might drastically affect the outcome of the proceedings, but it is also possible that only witnesses which the judges favour might end up being called upon, hence creating a biased viewpoint, no more an 'umpireal' role.

The introduction of the CPIA (Criminal Procedures and Investigation Act) has led to a requirement for the police to disclose any information that might help the suspect or in otherwise undermine the prosecution's case, but then again it is pretty much up to the police if they want to disclose it or that since they might easily argue that they thought that the evidence was of no importance and might not have any undermining effect at all.

2. The Evidence Collection.

The collection of evidence in criminal cases would most certainly be collected by the police. For example, the suspect or witnesses are usually interrogated by the police. The problem posed by this is that many atime people would not know what goes on during the police interrogation. Cases such as the Cardiff Three seem to suggest that even torture or a forced confession is possible in police interrogations. All these have seemingly been solved by recent acts such as Police and Criminal Evidence Act 1984, where regulations such as a compulsory taping of interrogations be made, but that does not take away the root of the problem. Now, interrogations are psychology specialists, trained in asking leading questions that would tend to confuse the ordinary mind. Questions like 'You killed him, didn't you', 'you put the poison there didn't you', are just a few examples where the suspect is expected to say 'yes' and more often than not the untrained ones would be unwittingly deceived into confession, maybe in an indirect manner even. Another factor is the often excessively long hours of police interrogation done. In order to escape the psychological hell in an interrogation room, many atimes suspects would give in and succumb to the questions and give a confession even. Although some action has been done to reduce this problem (s37-s44 PACE ACT 1984), by limiting the time that interrogations take place, untrained suspects would still find it difficult to cope with such long questioning hours. The fact that interrogations are still held in police stations means that the police would still have the overall control of the situation; it would be difficult to enforce such a rule as well.

Due to technological advances, the police can also now rely on forensic science to crack criminal cases. Good as it might sound; the forensic scientists are often not trained to give an evaluative answer to the forensic evidence. For example, in the case or Judith Ward, the court prosecuted her solely based on the forensic evidence of gunpowder in her pocket and derived a conclusion that she was involved in the murder. However, in the end, after serving long years in prison, they decided that the gunpowder was of negligible amount to base a case on that and hence she was acquitted. Often, scientists are asked to find out if a substance is present, for example gunpowder, but to determine whether or not it is of substantial quantity is different. Scientists cannot take an empirical data and say, oh this is just barely sufficient because scientists work with definite values. People such as the judge, the prosecutors, the layman, would not know how much is considered sufficient and hence the case is normally based on minor circumstantial evidence. Furthermore, such tests are often not done in a properly sterilized environment. Scientists have to rely on the police to collect samples from the site, but often how clean are the samples? It is possible that contamination can occur and substances originally not in the sample can be detected. Even Glidewell J in R v Ward proclaimed that forensic scientists may become partisans

3. The police.

Due to the fact that the police are the main one to get the evidence, it is often the case to say that the defendant would have very little access to the evidence. Often, as explained by the issue on lengthy interrogation hours, defendants are unable to recall what they said during the interrogation hence even their lawyers have a very difficult time to develop a case to help their client.

Another issue is the way the police construct cases. Since the adversarial system is a debate, it would make little sense for the police to disclose every single bit of information. Instead, information is sieved out into what would help the prosecution's case and they would exclude most of the important evidence that would likely help the defendant's case. As such, the case construction by the police is very much a one-sided affair. It just further serves to deny the defendants from utilizing useful information. Also, it has been complained that sometimes the police can construct cases based on very circumstantial evidence. By excluding certain information, they can construct a case such that all guilt points to the defendant, and often, the defendant, being non-experienced the wars of eloquence would end up agreeing to most of what the prosecutor says and this affects the defendant's case in the jury's eyes. All this is well in the adversarial system if the defendant had a similar approach and similar resources, but they have neither. The case put forward by the prosecution can hence be so strong that it can withstand scrutiny by anybody else.

Another abuse on the police's part is the creation of facts. For example in the Guildford Four case, 4 suspects were convicted based on a letter which had incriminating evidence. However, it was only discovered after a few years that the letter had been heavily edited such that the guilt pointed to the four suspects because the original note containing many cancellations and amendments which matched that of the note produced in court had been found. The fact that the police got away with nothing more than a mere apology statement makes matters worse. This just acknowledges the abuse of the police's discretionary powers. Imagine if that note was never found! The four innocent suspects would have spent a lifetime in jail!

Also, on the police's discretionary powers, they are empowered with the powers to make an arrest on reasonable suspicion, this is based on the PACE Act 1984, as usual, the concept of reasonableness is vague. What would constitute a police officer to reasonably suspect someone? For example in the case of Murray v UK, Mrs Murray was held under arrest in her house while the soldiers went around searching the house for any criminal evidence. However, the courts ruled that the police had such a power to arrest on reasonable suspicion and this just puts academicians into further confusion onto what exactly reasonable would constitute. It would be that reasonable suspicion is lower standard than information sufficient to establish a prima facie case looking at Shaaban Bin Hussien v Chong Fok Lam. However otherwise than that there are no cases which would seem to deny police of their discretionary powers; such was the case of Castorina v Chief Constable of Surrey.

4. The Lawyers.

Often, it is the prosecution who has the upper hand than the solicitors based on a variety of reasons.

Although claimed to be an independent body, the Crown Prosecution Service CPS is actually very dependent on the police for evidence. As from the Runciman Commission, the doctrine of separation of powers was emphasized. However, the only source that the CPS can get its evidence from is only the police. It is the fact, and often the CPS relies on the police statements to make a case, often which is already very one-sided. Up against the well endowed CPS are the defendant and not always his lawyer because of extraordinary legal fees. Moreover, due to expensive legal fees, it is often difficult for defendants and their lawyers to meet up. Even with legal aid it does not solve the issue as the aid is unwilling to finance many meetings. This would mean few can have the privilege of getting a strong case in the defence, save the lawyers who are willing to work for justice than for financial reward.

The Problems with the Appeal Process.

1. The Legal Aid

Many atimes convicted suspects are not rich hence they have to rely on legal aid. Legal aid is given based on a means test and if successful all legal costs would be borne by the help scheme. However, without legal aid, appellants run the risk of having to pay extra legal costs to the COA if they deem it necessary. The factor of high costs without the certainty of a successful appeal is what deters most people from applying.

Even after a successful funding, many legal aids are not willing to pay for extra meetings with solicitors and clients because this would incur extra costs. The concept of minimising costs often makes it difficult for the lawyer and his client to discuss the major issues and greatly hampers the effectiveness of the appeal.

2. The lawyers

Though blessed with legal aid, the lawyers have a major role to play in many failed appeals. Erroneous advice such as sentencing would become longer if the appeal fails deter people from appealing. Moreover, while most of the time lawyers are the ones at fault for losing the case, they do not admit it for the reason of saving their reputation, rather than to save the client's liberty. Not that we can blame them either, Many lawyers are bound to the problem of not having enough data to form their case because clients are often unwilling or unable to provide them with what they had said during the police interrogation. People might have the viewpoint that the police is the higher evidence collection authority and think that once they had said it to the police every single detail would be taken to account, which, as discussed above prove otherwise.

Bottoms and Maclean even quoted that convicted persons feel that the appeal process is a somewhat remote affair that is best left to professionals. The overestimation of risks involved by the lawyers is often also the ones that make clients feel that appeals are somewhat hopeless.

3. The time limit.

UK has a 28 day time limit for appeals to be made. However, the problem here is often the rigidity of the system to not except any appeals even if it was submitted just after 28 days. This just reflects the stand of the COA that they treat many verdicts with finality and are quite unwilling to accept appeals.

4. Common law.

The historically restrictive approach that courts have to appeals is also main deterrence factors. Based on the Criminal Appeals Act 1995 appeals are only allowed if the COA feels that the verdict has been unsafe. This is not withstanding unfair verdicts even, following the case of R v Kennedy and R v Mills. It would take either some fresh evidence or some major mistake in the principles of law before the appeal would be allowed, or in some cases new issues that can be considered to have great weight on the verdict.

CCRC

The Criminal Cases Review Commission was established in the 1997, during the period that the HRA 1998 came into effect. The purpose of the CCRC was to take over the COA's duty in reviewing appeal cases. They would evaluate which criminal cases should make it to the COA based on the arguments, fresh evidence, and the principles of law that could have been flawed in the previous trial. However, despite the CCRC's efforts to make the appeal process better, as it was the intention in the Runciman Commission, new problems have arisen instead while solving some old ones.

1. The police.

Because the CCRC is state owned, it gets its evidence from the police. This pretty much defeats the purpose of the appeal process because, as discussed earlier, the police have quite a large part to play in the miscarriages of justice. However, the CCRC has said that the police have satisfied its requirements for the evidence and it is actually quite impossible for the CCRC to use other methods of investigation as well, especially since factors such as high costs, shortage of manpower are involved.

2. The Legal Aid

There is no legal aid available for those appeals that go through the CCRC, and this is detrimental for the people who cannot afford legal fees. Similar to the previous appeal process, appellants would have to pay their lawyers to go through the CCRC but not having legal aid just means that more people would not be able to afford this method of appeal and there are but few lawyers who would be willing help their client for little financial rewards.

3. Shortage of Staff

The CCRC has had a severe shortage of resources for a very long time, such that many appeal cases take not months, but years to process. This extremely slow appeal system would mean that the appellant would pretty much have spent a long duration in prison already before even the appeal is heard which leads to a lot of unfairness. Moreover, due to the excessive workload, now the CCRC has chosen to take the approach to settle the high profile cases which are most likely to succeed, leaving those mundane appeals to a corner. How exactly the CCRC views cases as important are even a mystery, making it very difficult for one to appeal through this channel.

4. Views of the courts.

Despite its shortfalls, there has been none but good praise for the CCRC. In Mattan and Ex Parte Pearson, the courts said that the CCRC was an indispensible committee in delivering and solving the miscarriages of justice. Reasons why people would still go along with the CCRC despite its shortfalls are because it would be easier to get an appeal, notwithstanding the time that is taken. However, for the CCRC to be really effective isn't it plain that more resources should be allocated for cases to be processed faster? Why in the counter against miscarriages are the authorities so slow to provide?