The Scottish Legal System Is Discovering The Truth

The criminal justice system consists of models and theories that often contradict one another. Of these models are the crime control model, the due process, model, the consensus model and the conflict model. In this paper these models are evaluated and defined, as well as each entity in the criminal justice systems role within each model. Policing, corrections and the court system all subscribe to each model in some way and in a hurried manner in cases that dictate such a response. As described by Erik Luna in the Models of Criminal Procedure, the following statement summarizes the aforementioned most appropriately.

When Alexander McLeod- Lindsay was take from hospital to Sutherland police station he was interviewed/ interrogated like a suspect as the case had been turn to a sexual assault case and he was told that, “in the case of assault upon a wife, we always check out the husband’s story first”, (McLeod-Lindsay, A, 1984). Another role of investigators is to collect evidence. The police had bought a change of clothing for Alexander McLeod- Lindsay, so that they can take the clothes that he had wearing as evidence. Alexander McLeod- Lindsay had now become the suspect of sexually assaulting and attempting to murder his wife and son. Alexander McLeod- Lindsay was found guilty of attempted murder due to the circumstantial evidence that was bought forward before the jury such as the blood splatter that was on the wall and blood stains found on the accused Alexander McLeod-Lindsay’s clothing. Despite the fact that there was no form of direct evidence such as someone eye witnessing the incident or even to point the finger that Alexander McLeod- Lindsay had committed the attempted murder of his wife and 4 year old son Bruce, the jury still convicted him of committing the offence, all based on circumstantial evidence. This highlights that Alexander McLeod-Lindsay experienced miscarriage of justice due to the fact the jury based their decision on the circumstantial evidence of blood stains that were found on Alexander

The criminal justice system in the United States has traditionally operated under two fundamentally different theories. One theory is the Crime Control Model. This theory is characterized by the idea that criminals should be aggressively pursued and crimes aggressively punished. The other theory is the Due Process Model. This theory is characterized by the idea that the rights of the accused need to be carefully protected in any criminal justice investigation. (Levy, 1999)

Bulsey & Anor v State of Queensland [2015] QCA 187 signified the requirements of legal justifications when conducting unwarranted arrests, and further expresses the importance of the right to personal liberty as it is ‘the most fundamental of the human rights recognised under the common law.’ It was evident to the Judges that at least one officer held reasonable suspicion that “the suspect” had committed an indictable offence, but the lawfulness of the arrest was inevitably questioned as to whether an officer with reasonable suspicion was the arresting officer. The judgements in favour of the appellants heightens the need for officers to use their powers within the ‘confines of the law’ when ‘forcibly arrest[ing] and detaining’ a person as to preserve the right to personal liberty, for once this right is left in the power of any authority, to imprison arbitrarily whomever they suspect, ‘there would soon be an end of all other rights and immunities.’

In addition to similarities, there are also many differences between the two models. According to Packer, “The Crime Control Model emphasizes that the repression of criminal conduct is by far the most important function to be performed by the criminal process because public safety is essential to personal freedom” (Zalman, 2008, p. 5). Because this statement supports that, any apprehension of an individual by authorities is guilty because of the assumption that police and prosecutors are accurate in his or her decision of arresting and detaining the correct individual people may view this as a negative component to the model. The Crime Control Model resembles a conveyor belt because it moves the alleged criminal through the system on the assumption that the alleged is guilty until proven innocent. On the other hand, the Due Process Model looks like an obstacle course. Even though this model respects the repression of crime, it does not believe that the findings of police are always accurate and the criminal justice system is subject to errors. The Due Process Model allows the alleged offender a chance to discredit any information found against him or her. If an offender is guilty of a criminal offense, he or she has the right to engage in many appeals. “The demand for finality is thus very low in the Due process Model, Packer states” (Zalman, 2008,

The United States has a unique criminal justice system that stems from the unique rights granted to its citizens by the Constitution. The United States Constitution grants the most basic rights of “life, liberty and the pursuit of happiness” and no citizen can be denied these rights without due process of law. Due process is the way in which the criminal justice system ensures that the right person is punished for the right crime. This process includes certain rights of the accused and specific procedures that must be followed to the letter or the accused could be released without having punished for a crime he or she could have

Procedural fairness is an extremely important factor in achieving justice in the legal system. The importance of procedural fairness can be displayed through the case of Haneef v Minister for Immigration and Citizenship (2007) as there was a lack of procedural fairness applied, resulting in a lack of justice. Dr Haneef was suspected of terror related offences and subsequently held without charge for an excess of 12 days due to evidence linking him to a terrorist attack in Glasgow. This evidence was later proven incorrect. The links between Haneef and the suspected offences were not enough to go to trial. Dr Haneef was incarcerated for three weeks, two of which he was held in 23 hours isolation, after being wrongly convicted of a 'reckless association with terrorist groups.' His reputation was tainted and his VISA revoked, as well as his wife's without any reason for the cancellation. All of these actions during the investigation of Haneef show a lack of procedural fairness resulting in his unjust treatment. Justice was not achieved in the case of Haneef v Minister for Immigration and Citizenship (2007). This case reinforces the importance procedural fairness has in the legal system as it reflects the legal system not achieving justice when an individual is not treated with equal rights, opportunities and awareness of what is occurring. Therefore, the doctrine of procedural fairness is essential to achieving

One of the fundamental principles of the Criminal Law System is the presumption of innocence until proven guilty (McSherry, 2003). By enacting punitive legislation such as the examples given above, it has been said that it is removing this Common law right from the individual (Greig, 1995). It has also been said that it creates an exception to the general principle of law that no person shall be imprisoned unless a court comprised of Judge/Jury is convinced, beyond reasonable doubt that the person committed a very serious offence. Thereby effectively allowing people to be detained without the burden of proving guilt (Keon-Cohen, 1992).

There are two distinct types of models that are found in the English criminal justice system. These are the crime control model and the due process model. They vary in their characteristics and are considered to take divergent objectives. Basing on their evident differences, one of them is actually considered being more effective than the other if the new wave and rate of crime being witnessed in the society is anything to go by. This paper therefore seeks to identify some of the differences between these models and point out that which is considered as effective in dealing with rate of crime in our current society.

Every detainee must have a custody record opened for them when in police detention. All information is recorded here by the custody sergeant with relevant times and dates also recorded, verified by the custody officer’s signature (PACE act 1984). The Custody record is an ‘open’ document that must be made available to the defence, a detainee’s solicitor is entitled to see the custody record the moment of arrival at a designated police station and must be given a copy at request any time within 12 months of the detainee leaving police detention or coming before the courts. It is the Custody Sergeants responsibility to make sure that the custody record is kept up to date, accurate, and complete. The detainees must also be read out their three basic rights under code C of the PACE act, these rights are the right to have somebody informed of their arrest, the right to consult with a solicitor and be given free legal advice and the right to consult the codes of practice (YourRights 2007). The Custody officer must also assess mental health and identify any communication barriers; this may result in the need for an interpreter or possibly even the consultation of a doctor. They must also review any evidence relating to the investigation and decide whether there is a sufficient amount to charge or whether the detainee must be kept in custody so more evidence can be obtained. The custody officer must determine whether he

Firstly, an advantage of the Police and Courts Service is that even though they are designed for the purpose of prosecution and deciding on the fate of an individual who commits a criminal offence, they also protect the defendants who are put forward for a trial in a Criminal Court. Packer identified the Due Process Model, in which he came to the conclusion that offenders who find themselves caught up in the Criminal Justice System will have to go through a complex system where they undergo many principles and procedures as set out by legal legislation, in which at this stage; the defendants are prone to unfairness from the authorities (Packer, 1968 as cited in Davies, Croall and Tyrer, 2005). Within the model, Packer then goes on to emphasise the importance of the Due

The causes of wrongful convictions are easy to identify: irregularities and incompetence at the investigatory, pre-trial, trial and appellate stages of the criminal justice system. More particularly, Kaiser identifies the following contributory factors, among others: false accusations, misleading police investigative work, inept defense counsel, misperceptions by Crown prosecutors of their role, factual assumption of an accuser’s guilt by actors in the criminal justice system, community pressure for a conviction, inadequate identification evidence, perjury, false confessions, inadequate or misinterpreted forensic evidence, judicial bias, poor presentation of an appellate case, and difficulty in having fresh evidence admitted at the appellate stage. Each instance of determined wrongful conviction illustrates a different combination of failures in the criminal justice system that has

Then there is the “due process model.” The due process model demands reliability with a decreased importance on efficiency. Unlike the crime control model, the due process model believes that the investigative and prosecutorial fact finding is prone to error and should be investigated further by individuals other than those involved with prosecuting the case. This model can be described as the step by step examination of individual due process.

However, the due process model emphasizes on the role of individual liberties in reducing crime. It believes that when given freedom and liberties, people have the ability to eliminate crime in the society. Based on the rate of crime in the society, the crime control model is the most effective to reduce crime. One of the key differences between the two models is in their perception of crime repression. Crime control model asserts that the criminal justice system should aim at crime repression as its most important function in order to reduce crime in the society.

The due process and crime control models, both created by Stanford University law professor Herbert Packer, represents two opposing method of principles functioning within criminal justice system. Although the models describe the important facets of the politics and practice of criminal justice, both have been criticized since presented by Packer in 1964. Presently both models are acknowledged as imperfect standards to explain the politics and law of criminal justice. The crime control ideal represents traditional principles, whereas the due process belief reflects moderate values; therefore generating conflict evident throughout the years. This paper discusses models, crime control and due process, and how each affects the criminal