While writing this blog post I am going to try and refrain from mentioning the BBC’s Panorama programme (“Assault on Justice”, BBC 1, 9 Nov 2009, 20:30). While this programme has been the impetus for this blog post I am not sufficiently knowledgeable on the English Criminal Justice System to properly comment on specifics contained within the programme. However, I will make some more general points on the programme to begin with, before going into my own personal views on such methods.
It disturbs me to learn that cautions have been issued for serious offences including rape and child neglect. This would be a serious and fundamental flaw in any criminal justice system. The only proper place for such cases to be dealt with is in a court of law before a judge and jury. If I were living in England and Wales at this moment in time I would be most concerned about how criminal justice is being administered. It’s clearly being done on the grounds of cost rather than justice. The pot of money available for the justice system is finite of course, but society demands that the most serious of crimes (rape being ranked as second only to murder with regards to seriousness) be punished appropriately. A police caution is certainly not an appropriate way to deal with an offence as serious as rape. At this point I would like to invite and would welcome the comment of those in the blogging world who are more knowledgeable than I on matters pertaining to the Criminal Justice System in England and Wales.
Moving onto my own personal views on what is known as “instant justice”. I am not fundamentally against the idea of fines being issued by the police and prosecutors or police cautions. They do serve a purpose, cautioning a person or fining someone for the most minor of misdemeanours is appropriate, just and fair. It sends a signal to the public that the justice system will deal with the low level, every-day crime that has people most worried, but in an appropriate way that recognises that it is much less serious than offences such as rape, murder and serious assaults.
The problems I see with this however, is you essentially place the police and prosecutors in the position of judge, jury and executioner (to steal a commonly used phrase). This form of justice is not done in public and is open to abuse, it ignores the essential separation of powers within the justice system to ensure that both victims and accused persons are treated fairly and respectfully.
One considerable problem I have with such forms of “instant justice”, particularly when used in serious matters, is the quality of the evidence used to base these disposals on. I fear that the evidence would not be sufficient to furnish a conviction in a court of law, this is to say that the evidence does not prove guilt to the required standard: beyond reasonable doubt. This may sound inconsequential (however it is very important) as these forms of justice are creating a criminal record for someone who may otherwise have escaped punishment. However, is there really any punishment in these forms of “justice” – especially when it relates to more gave offences? There is not. Looking at it from the point of view of the accused, is it fair to criminalise someone for something without first subjecting them to due process simply so that the police or the Government can use it as an example of a “detected crime” and help to show that they are tackling crime? Or is it fair to criminalise someone for something on flimsy evidence that does not stand up to the close scrutiny that our justice system has demanded for centuries? The answer to these questions has to be that it is not fair or just.
The push for wider use of methods of “instant justice”, in England and Wales, is clearly (to both lay and non-lay persons alike) being driven by the target culture that is so clearly evident in policing. The police are under pressure to get “detections” and a caution or PND count as a detection. It is far easier to issue a caution or a PND than to take the case all the way to court and obtain a conviction.
In Scotland our forms of “instant justice” are much more limited than in England and Wales, and as panorama informed viewers the decisions of the Procurator Fiscal as to when a Fiscal Fine should be issued are closely monitored by the Scottish Government following a public uproar about their use. Now, the system works far better (but is still not yet perfect).
Giving accused persons the right to refuse a caution or fine and instead have their case heard in court could be a solution as it would force authorities to be more thoughtful in how they issue these forms of “instant justice” when it comes to those cases where the evidence is tenuous. However, the accused may opt just to take the fine or caution to avoid the hassles of court, when in actual fact, the evidence would not be sufficient enough to furnish a conviction.
I have tried not to be so one-sided in this issue, but realise I have mentioned the wrongs of this system in relation to the accused far more than I have the wrongs in relation to the victims of crime. Here, the obvious wrong is that the victim does not get justice and does not see justice being done. Essentially, when the wrong decisions are taken all loose out: the victims, the public and the accused (although there is scope for wrong decisions to work in the favour of all of these groups as well, but that does not make it right).
It is a tough and complicated system to manage and administer, but it is an essential part of our system ensuring that court time is not wasted on matters which are far too minor to warrant a court hearing while ensuring that those guilty of the most minor of misdemeanours do receive some form of sanction for their actions.
As far as Scotland is concerned, the Lord Advocate and senior judges should be issuing very clear guidelines on these forms of justice for the police and prosecutors to follow when taking decisions as to how a case is to proceed.
I have tried to keep this short, but I feel that I have not been able to do the topic justice. By its very nature the subject is a complex one that lends itself well to lengthy thought and discussion (certainly an appropriate topic for a dissertation at the conclusion of a Law or Criminology degree). I hope I have been able to convey briefly the problems of this part of our justice system, as well as its merits and my views on the matter. I feel I must end it there, before this becomes more like an essay or dissertation than a blog entry.
Again, I invite (and indeed would welcome) comments on this matter from all who have something to say on it. If you have any questions regarding my views on this matter then please do feel free to ask them either by E-mail or in a comment below and I shall do my very best to answer these.
Panorama: Assault on Justice is available to view on BBC iPlayer for seven days following its original broadcast (9/11/09 at 20:30) if you missed it and wish to watch it or indeed did see it and wish to view it again.
prout de jure 