Criminal Justice

A Beginner's Guide

Gibson, Bryan

• Publisher: Waterside Press
• Year: 2014
• ISBN:
  9781908162670
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The most straightforward overview available. Covers the entire criminal justice system. A 'no frills' explanation for beginners. This basic guide sets out the main components of the criminal justice system in an accessible way. Intended as a starting point for readers coming to the subject for the first time it is ideal for new staff, volunteers, first year students and other 'rookies': a short book of facts, explanations and pointers to further study.Chapters: 1. What is Crime?2. What is Criminal Justice?3. Who's Who?4. Modern Developments5. The Police6. The Criminal Courts in Action7. Sentencing (including Probation Work)8. Prisons and Imprisonment9. Victims and Restorative Justice10. Causes of CrimeThe book also features the Rule of Law, risk assessment, decision-making, forensic investigation, witnesses, surveillance, criminology, crime reduction strategies, border controls, penal reform and some international and historical dimensions.With a Glossary of Words, Phrases and Abbreviations.

1 What is Crime?

Some obvious candidates for ‘criminalisation’ were mentioned in the Introduction: homicide, serious violence, sexual offences, child abuse, rioting, public disorder, theft and criminal damage. The criminal law also tends to be reactive, responding to pressing problems of the day: domestic violence, trafficking, gangs, drugs, corruption in public life, ‘boiler room’ scams (see the Glossary), benefit fraud and terrorism. Sometimes this leads to the creation or modification of offences, so that what does not rank as a crime today may do tomorrow.

Crimes Change with the Times

The intrinsic nature of crime can perhaps be understood best by looking at examples of what particular societies have resolved to treat as crimes at one time or another:

• abortion, homosexuality, blasphemy (involving different deities), prostitution, adultery, hate crime, female genital mutilation and ‘mercy killing’ or ‘assisted dying’ are crimes in some countries (even today) but not in others
• controls of alcohol, drugs, tobacco or poisons have altered their legal status in different countries at different times, e.g. alcohol was outlawed in the USA during the prohibition era of the early 19^th-century and is in some Muslim countries today (It was restricted in war-time Britain). Certain countries tolerate soft drugs whilst others periodically criminalise or re-classify existing drugs, or prohibit freshly invented ‘designer drugs’ or ‘legal highs’.
• certain countries allow people to carry weapons in a way that is wholly criminal in the UK and other states (the USA Constitution even contains a right to bear arms)
• UK anti-vagrancy laws proliferated in the early-1800s
• health and safety or similar regulations to protect workers are more likely to exist in developed countries
• cybercrime (Chapter 4) hardly existed ten years ago
• infanticide is an example of a crime created in Britain to mitigate the severity of the death penalty that would before 1965 have been visited on a mother for killing her own baby
• driving with excess alcohol in the blood has only existed as a crime in England and Wales since 1967 (though a difficult to prove offence of drunken-driving did exist); harassment since the 1970s; hate crime since around 2004; and some serious and thousands of lesser new criminal offences were created by New Labour from the late-1990s
• countries may have crimes peculiar to them, e.g. in Germany (and other countries) that of ‘denying the holocaust’
• polygamy is normal in some countries but bigamy (marrying whilst married) is an offence in most western states
• offences may spread from one country to another by emulation: a curious example is ‘smoking in a car when a child is present’, an offence in the USA and Canada and on the way to being one in Britain also; and
• the same behaviour may not be a crime in certain circumstances, e.g. killing in self-defence, war (within limits), or lawful execution which continues in many countries today.

It would be possible to compile a longer list. The key point is that there is nothing sacrosanct or preordained about the nature of crime: it is as Lucia Zedner has pointed out, ‘socially constructed’.

Ingredients of Criminal Offences

Legal definitions also determine the parameters of what is an offence. A definitions exist in relation to each individual offence, but this may also vary from state to state. Murder, e.g. which is a single offence in England translates in the USA into ‘murder one’ (premeditated or resulting from certain other felonies), ‘murder two’ (unplanned or in the heat of the moment) and ‘murder 3’ (broadly speaking equivalent to the English crime of manslaughter). Crime definitions set out the legal ingredients of offences. For a prosecution to stand any chance of succeeding, every ingredient must be covered by the evidence (see Chapter 2). Theft only occurs if the accused person acted dishonestly. If someone mistakenly forgot to pay for something whilst shopping this is not an offence. There are many other technicalities involved in the definition of theft. Picking wild flowers is altogether excluded and if someone genuinely intends to return property no offence occurs.

Criminalisation and Decriminalisation

The process of making something a crime is often described as ‘criminalisation’; and by a similar token ‘decriminalisation’ when a crime is abolished. In the UK and western democracies crimes are created or ended by legislation, i.e. Act of Parliament (aka statute). They can also be created by delegated legislation (aka ‘subordinate’ or ‘secondary’ legislation), as made by ministers of the crown but only within the strict confines of powers handed to them by an ‘enabling’ or ‘parent’ Act. Generally speaking, serious offences will (or ought) to be contained in an Act proper; only lesser, e.g. regulatory offences, in minister’s statutory instruments and even though the actions of ministers will ordinarily need to be ratified by Parliament at some point.

Moral panics and ‘new opportunities’ for crime

The phenomenon of the latest ‘big crime concern’ is well-known to criminologists. The term ‘moral panic’ appears to have been coined in the early-19^th-century to describe a deep sense within the population about a perceived new threat to social order, leading to pressure to criminalise the conduct or activity concerned. These concerns may or may not be valid: and sometimes they may have been triggered by a small number of high profile but atypical instances where the existing law seemed powerless or ‘an ass’, maybe fuelled by the media.

Another reason for creating new crimes may be for the state to counter developments in technology that make crimes easier to commit or provide new ways of engaging in existing crimes (Chapter 4). Further reasons include federal or European obligations which may only become law once ratified by a state Parliament or legislature.

The Centrality of State Prosecutions and Sanctions

It is possible to ‘work out’ if something is a crime by asking:

• whether the law prohibits given conduct, acts, failures, omissions, shortcomings, events or a given state of affairs
• if responsibility is placed on an individual or corporate body (when the latter is possible: corporations cannot think for themselves but sometimes a ‘controlling mind’ can)
• if the legal definition and ingredients of the offence fit exactly the conduct involved (this chapter, above)
• whether a given state of mind must be present (Chapter 2)
• whether there are any legally prescribed exceptions (such as picking wild flowers in the theft example above)
• whether the offence is treated as being against the crown (or state) as opposed to an individual victim; and
• whether there is provision for some kind of state-sponsored punishment once the offence is proved against the offender.

Sanctions

The last two pre-conditions above, the need for the involvement of the state in prosecutions and the existence of state sanctions is what jurists have tended to treat as setting crime apart from lesser wrongdoing. This does not mean that punishment must be used, indeed various groups oppose its widespread deployment as archaic: only that the power to use it exists under the law. The principal of mercy, or mitigation, may avoid, or reduce the need for punishment (Chapter 7), but the power to use punishment at the behest of the state is key to understanding the fundamental nature of crime.

Lawyers may object that contempt of court in civil proceedings can end in imprisonment or a financial penalty, which looks very much the same thing as criminal punishment. But this is civil in nature, does not involve the state and is subject to a raft of other distinctions.

Who keeps the income from the CJS?

According to Magna Carta, ‘To none will we sell … deny [or] delay right or justice’. The CJS generates turnover, if not profits. However, the state and not, e.g. the courts, collects and retains fines and the proceeds of sale of criminal assets. Neutral government accounting is used to counter the idea that crime is a ‘cash cow’, but seized assets may be used to fund crime prevention schemes and some fixed penalty fines have been ‘recycled’ to finance, e.g. speed cameras or localised enforcement schemes. More generally, the state arranges for policing, courts, prisons and probation resources as described in later chapters, but all at a distance from ‘takings’ by the system. This is very different to the way state involvement in crime began in England, in medieval times, as an overt way of raising revenues for the crown.

State prosecution and private prosecutions

As described in Chapter 3, in England and Wales prosecution is the remit of the Crown Prosecution Service (CPS) (or other authorised public authority). But there is also an historic if rarely exercised right to bring a private prosecution. How does this square with the notion of crimes being against the state? The answer is that all prosecutions are deemed to be brought in the name of the crown. Further, the CPS (or attorney-general in some more serious cases) can take over any prosecution and ‘discontinue’ (i.e. put and end to) it.

Some crimes may not be prosecuted at all. Examples include:

• where a police warning is given on the street
• where a formal police cautions is issued at a police station by a senior police officer so long as the culprit admits the offence, i.e. a warning not to offend again or risk prosecution. Some cautions may have conditions attached. The CPS is ultimately responsible for advising whether a caution is appropriate (and there are different legal arrangements and standards concerning juvenile offenders)
• where administrative penalties are imposed...

Table of contents

• Copyright and Publication Details
• About the Author
• Introduction
• 1 What is Crime?
• 2 What is Criminal Justice?
• 3 Who’s Who?
• 4 Modern Developments
• 5 The Police
• 6 The Criminal Courts in Action
• 7 Sentencing
• 8 Prisons and Imprisonment
• 9 Victims and Restorative Justice
• 10 Causes of Crime
• Glossary of Words, Acronyms and Abbreviations
• Index