CRIMINAL JUSTICE AND CRIME CONTROL

The rationale of English criminal justice is quite to the contrary. Crime control by courts is not, and cannot be, an instrument of criminality in the community, other than as satisfaction to the instant victim (if identifiable).

Fitzjames Stephen wrote in 18836 that ‘the object of the lawmaker was rather to reconcile antagonists upon established terms than to put down crimes by the establishment of a system of common law as we understand the term’. And so, broadly speaking, the adver­sarial trial procedures remain in place, despite some powerful onslaughts from prestigious sources. Jerome Frank, a judge of the famous US Second Circuit Court of Appeal and a prominent figure among the American realist school of jurisprudence in the twenti­eth century, wrote in Courts on Trial^{[156] [157] that the Anglo-Saxon system subscribed to a fight theory of justice, rather than a truth theory. The criminal process was and is distinctly not a search for the truth about a criminal event but, far too often, a golden opportunity for defence lawyers to conceal the truth, a method of trial that permits the defence advocate to throw up a smokescreen in front of the jury; what Jerome Frank epitomised as the equivalent of throwing pepper in the eyes of a surgeon performing an operation on his patient.}

Students of the criminal law are familiar with the writings of another distinguished American commentator, Professor Herbert Packer. He suggested that society may adopt one of two models of criminal justice - the crime control model and the due process model - which are founded on two discrete value systems. The crime control model places a premium on the effective and efficient processing of criminal events so as to optimise society’s efforts to exert a dampening influence on the perceived burgeoning rate of crime. The due process model assumes the existence of the control functions outside the jurisdiction of the criminal courts, but it focuses mainly, if not exclusively, on demanding justice for the individual offender facing loss of liberty. Justice to the instant vic­tim and to the public, by catching criminals and punishing them, is at best relegated to an ancillary role. Increasingly, however, there is a public demand to modify the due process model so as to take account of a social policy of remedying harm done to victims and for providing protection to the vulnerable public. The pressures for criminal justice to supply satisfaction other than to the immediate contestants will, if given effect to, distort the existing mode of trial.

There are three parties to criminal proceedings - the court, the prosecution and the defence. Witnesses (including the victims of criminal events) are not parties to the trial process, providing only evidential material to the court. The essential, residual difference between the adversarial and inquisitorial systems of criminal jus­tice lies in the role and function of the court in relation to the two other parties; prosecutor and accused remain adversaries, which­ever system of criminal procedure and trial is adopted.

To return to the nature of the trial process, witnesses to the crimi­nal event and other evidence are merely the instruments for the actors in the criminal proceedings to use in pursuance of their respective, adversarial functions. Only a fraction of the victims of crime become involved in the criminal process beyond the stage of

investigation by the police or some other agency of law enforcement. For the most part criminal justice bypasses the victims of crime.

The evidence about criminal activity strongly - even overwhelm­ingly - suggests that criminal justice policy and practice can have only, at best, marginal effects on crime levels.

the police-recorded statistics are problematic, because of the so-called ‘dark figure' of unrecorded crime. In the well-worn metaphor, the recorded rate represents only the tip of the iceberg of criminal activity (and, a fortiori, culpable harm). At issue is what we can learn about the totality from the part that is visible.^[158]

Even the most reliable statistics elicited in the British Crime Survey, which are based on the incidence of crime by victims, offer only an alternative source of data capable of mapping trends in interpersonal violence. Victimless crimes, like drug trafficking offences, are not recorded - and many other crimes go publicly unnoticed. It is, there­fore, unsafe if not unwise for those engaged in social policy to do more than take note of apparent trends (both upwards and down­wards) in criminal activity. That criminal justice policy should be formulated on such deficient evidence violates the fundamental principle of evidence-based policies. And when it comes specifi­cally to fashioning the role of the criminal courts, with their stated objective of punishing the guilty, even greater caution should be employed. Punishment by the State as a moral response to wrongdo­ing is a dubious policy. As Professor Reiner rightly observes, ‘there are both pragmatic and ethical grounds for not seeing criminal justice as central to the control of crime.’^[159] Just so; indeed, criminal justice is at most peripheral to the control of crime, even though the populace fondly believes that criminal justice is society’s revenge for crime.

It is necessary therefore to construct proposals for the support and protection of victims beyond the bounds of criminal justice. Victims of crime are in need of comfort, aid and protection immedi­ately consequent upon the criminal event and not delayed while the criminal process, if any, runs its unpredictable course. The broad areas of need are: receipt of information from the official agencies of crime control of their response to the criminal event; monetary compensation for injury or harm caused by the event; and the ongoing social support of bereaved families of homicide victims and others suffering long-term traumata.

Given the nature of the basically unreconstructed adversarial contest, the system can never hope to deliver justice other than, in the restricted sense, to the individuals involved directly in the criminal proceedings and, conceivably, to the immediate commu­nity affected by the criminal behaviour. Indeed, it has (as I have explained) never pretended to lead to the truth about the circum­stances leading up to, or even surrounding a criminal event, only a highly institutionalised truth, requiring the prosecutor to prove the case according to strict rules as to the admissibility of evidence and the imposition of a high standard of proof beyond reasonable doubt (to use the outworn formula, now to be mouthed to the jury as ‘certain so that you are sure’). Ensuring justice in the widest sense would be possible only as and when the system acknowledged the existence of, and paid respect to both the interests of victims of crime and of the public generally. But a criminal trial is definition- ally not a public inquiry; it has its own institutional function.