The Citizen and the State

Criminal Justice and Civil Liberties in Conflict

Angus Nurse

• Publisher: Emerald Publishing Limited
• Year: 2020
• Print ISBN:
  9781789730401
• eBook ISBN:
  9781789730418
• Topic: Social Sciences
• Subtopic: Civics & Citizenship
• Index: Social Sciences

The Citizen and the State conducts an essential criminological analysis of contemporary justice systems, combining critical criminology and human rights perspectives. The book contextualizes criminal justice and criminal justice processes as tools of the state that impact negatively on citizens' lives. Particularly in a post 9/11 world where 'national security' and terrorism concerns are used as justification for the erosion of citizens' rights, justice systems are inherently in conflict with principles of liberty and justice enshrined in human rights instruments. While acknowledging the reality of changes in law-and-order discourse, this book argues that contemporary justice systems risk lacking in legitimacy in circumstances where the necessity for interference in rights is largely asserted rather than demonstrated. Using a range of real-world case studies, the book conducts a critical analysis of contemporary criminal justice and examines the challenges in achieving a balance between effective criminal justice and upholding civil liberties. This book is essential reading for academics, post-graduate researchers, and social policy professionals.

Chapter 1

The Citizen and the State

The criminal justice system arguably represents an unprecedented exercise of state power upon its citizens. Within criminal justice processes, the state exercises powers to deprive citizens of their liberty, their possessions and in extreme cases their life (in those states that still retain a death penalty). The criminal justice apparatus also provides a mechanism through which the state can deploy powers of surveillance and intrusion into the lives of its citizens, impacting on private and family life sometimes with extreme consequences. Such powers are afforded to the state because arguably criminal justice is linked to the welfare state and notions of the state as provider and protector given that protecting citizens is one of the central roles of government. Breaking the (public) law infringes the social contract, causes social harm and thus invokes a state response. In truth, citizens expect (and at times demand) the state to punish offenders and to take action to ensure the safety and security of all citizens. Doing so may sometimes require interfering with individual liberties in the cause of the (greater) public good. Thus, criminal justice processes and imposing the punishment of the criminal law is considered necessary to censure those individuals who cause social harm and to provide punishment which both satisfies the public need for restitution and reassures the public of the state's ability to maintain law and order and provide for public protection. Criminal justice agencies acting on behalf of the state do this by prosecuting offenders and punishing them for their actions, usually through a system of fines and imprisonment (and in extreme cases, the death penalty) that reflect public disapproval of deviant behaviour. Thus, a criminal justice system exists that incorporates the police, the courts, the probation service, prisons and public prosecutors such as the Crown Prosecution Service [CPS], Procurator Fiscals (in England and Wales and Scotland respectively) and the network of district and state's attorneys in the US, as part of the criminal justice system. Supporting this is an entire apparatus of justice departments, such as the Home Office and Ministry of Justice in the UK and Department of Justice and local justice departments and federal law enforcement agencies in the US.

The key argument of this book is that there is an inherent conflict between the citizen and the state in respect of the operation of criminal justice. Zedner (2005) indicates the primary aspect of this conflict is in securing equilibrium between security and liberty, arguably indicating that a possible solution is a principled approach that ‘relies upon the incorporation into domestic law of clearly enunciated rights, safeguarded through rules of procedure and evidence, and asserted where necessary by legal challenge through the courts’ (2005: 508). In Zedner's view, structural and procedural safeguards against abuses of power exist through judicial oversight and defence of due process. However, a critical criminology viewpoint might contest the adequacy of these safeguards as legal challenge through the courts carries with it its own uncertainties. As this book argues, access to justice is not provided in a uniform manner to all citizens, and miscarriages of justice are arguably endemic to most justice systems (Cooper, 2014; Naughton, 2012; Poyser, Nurse, & Milne, 2018). Zedner (2005: 507) also recognises that ‘post 9/11 the pursuit of security against international terrorism poses no small threat to the very liberties it purports to protect’ and numerous other commentators acknowledge that the landscape of justice vs rights has changed remarkably since 9/11 and the renewed ‘war on terror’ (Ashworth, 2004; Moeckli, 2008; Wilson, 2005). Thus, reliance on procedural rights as a tool for protecting rights against unwarranted erosion is questionable if the intrusion on those rights targets not just those who are a tangible threat to liberty and security but also those from marginalised groups who are perceived as a threat and who may lack the tools and resources to deploy these legal challenges.

The manner in which the state exercises its criminal justice powers raises questions about the purpose of criminal justice and the extent to which justice processes are fair. International human rights mechanisms (such as the ‘International Bill of Human Rights’ discussed later in this chapter) generally set out the view that there should be no punitive sanction without due process. Specific provisions such as Article 6 of the European Convention on Human Rights (ECHR) set out detailed requirements for fairness (discussed later in this book) intended to ensure that a suspect in criminal proceedings is able to mount an effective defence. In principle, this would dictate that a suspect should not be disadvantaged through lack of resources and socio-legal status and that criminal procedural rules should so far as is possible create a level playing field between prosecution and defence. However, this chapter and the further discussions throughout the book identifies that rather than the object of the criminal justice system being to search for truth and justice; instead, criminal justice arguably represents the might of the state against the individual with the emphasis being on the suspect or defendant to disprove the state's case often against seemingly insurmountable odds. This introductory chapter sets up the core argument of the book that contemporary criminal justice systems arguably represent a problematic illustration of state power aimed toward vulnerable and disadvantaged members of society whilst doing little to address crimes of the powerful.

Constitutional Power and Criminal Justice

The basis of criminal justice powers lies in constitutional arrangements governing the exercise of punitive and sanctioning powers. Constitutional frameworks generally set out the structure and powers of government and the relationship between individuals and the State. In many states these are written into a codified constitution that regulates the relations between the different parts of government and between the government and the people. Thus, the written constitution specifies the limits on executive power or at least defines the nature and scope of executive power such that reasonably clear rules can be ascertained from the constitutional documents. However, the unwritten nature of the UK's constitution means that state criminal justice powers derive not solely from statute but also from the legal prerogatives of the Crown, which the monarch possesses as an embodiment of the Crown ¹ . Certain of these prerogative powers are, by convention, exercised on the advice of Her Ministers, for example the power to grant most honours, and prerogative executive powers, which are effectively devolved from the monarch to Her Ministers. The precise scope of the prerogative executive powers is uncertain: there is no authoritative list. Conventions exist on the exercise of prerogative executive powers but these remain uncodified. As a consequence of the unwritten nature of the constitution, it can sometimes be a matter of interpretation as to whether a particular power exists. One recent example of this concerns the UK's proposed exit from the European Union (EU) where a difference of opinion existed between the Executive and anti-Brexit campaigners as to whether the Prime Minister had legal power to take the UK out of the EU without the authorisation of Parliament. The matter was ultimately determined by the courts which sided with the anti-Brexit campaigners and concluded that Parliamentary approval was required. ²

Stuntz (2006: 7) suggests that the constitutional approach to criminal justice ‘is too punitive, discriminatory, and unconcerned with the interests of the criminal justice system's targets’ and as a result, problems such as over-criminalisation, over-punishment, discriminatory policing and prosecution, overfunding of prison construction and underfunding of criminal justice institutions exist. The constitutional issues surrounding the exercise of criminal justice powers relate to discussions of Parliamentary sovereignty, the rule of law and the separation o powers (discussed further in Chapter 2). Dicey's three ‘rules’ of Parliamentary Sovereignty specify that: Parliament is competent to make any law; No Parliament may be bound by a predecessor or bind a successor; and No person or body is competent to override or set aside the legislation of Parliament (Dicey, 1982). Thus, implementing criminal justice policies into law is subject to gaining Parliamentary approval and Parliament has wide latitude to pass any criminal justice laws it sees fit, subject to the existing (and prevailing) constitutional principles. An independent judiciary, strengthened in the UK by the creation of the Supreme Court as a result of the Constitutional Reform Act 2005, is an essential part of scrutiny of criminal justice and of the state's exercise of its criminal justice powers. Similarly, in other states (e.g. the US) the courts can examine the lawfulness of government action, and where Supreme Courts exist these can impose far-reaching and binding decisions on the Executive. However, such scrutiny is dependent on the strength of the judiciary and their willingness to interpret the law in a manner that is rights compliant ³ . In a European context, the existence of the ECHR rights and its measures for protecting rights through national legislation enacting the ECHR serves as a mechanism for addressing the balance between human rights and the needs of criminal justice. However, as further discussion illustrates, a primary issue for consideration is the extent to which weighing conflicting priorities and perspectives can result in rights-compliant criminal justice processes.

Principles of Criminal Justice

Core aims of criminal justice are to provide security and public protection, to prevent crime and to bring offenders to justice. Assessing the administration of criminal justice arguably requires considering the extent to which there can be said to be a ‘criminal justice system’ as opposed to a range of disparate bodies that come together in the name of criminal justice. However, in one sense the term ‘criminal justice system’ is misleading, as it has become shorthand for a number of different elements within state justice practice, including the police and policing; the public prosecutors (e.g. the aforementioned district attorneys and prosecutors acting on behalf of the Crown); justice departments; courts and tribunals; the prison system and probation service; other elements.

Newburn describes the criminal justice system as ‘that conglomeration of institutions and agencies which respond to – and on occasion attempt to prevent – crime’ (1995: ix). In practice, the different elements operate as disparate, largely autonomous parts rather than as a co-ordinated system, although there is evidence that what happens in one part of the justice system can impact on another. For example, prison overcrowding may mean that judges are encouraged not to send ‘minor’ offenders to prison but instead to use community sentences or fines. In addition, cuts in police or prison and probation service staff numbers may have an adverse effect on the way that these services are run, impacting negatively on, for example, the rehabilitative effects of prison and instead leading to a command and control approach to criminal justice that ultimately results in mass incarceration and the use of prisons primarily as holding facilities (Gottschalk, 2006; Simon, 2010, 2014). Changes to national law and order policies can also require the police to substantially alter their priorities and operational activities, in order to give effect to contemporary policy directives.

Arguably the overall purpose of criminal justice systems is to maintain public order through enforcing compliance with the law. This is achieved by detecting and prosecuting those who break the law and by bringing criminal offenders to justice through a system of penalties. Criminal law defines criminal offences as those actions that are dangerous or harmful to society as a whole; as such, prosecutions are brought by the state and generally not by an individual. To achieve this, a criminal justice system has been developed, which consists of:

• legislation which defines criminal activity via the public law;
• adjudication and enforcement by a range of policing and law enforcement bodies who detect crime and prosecute offenders;
• correction or punishment via the courts and other agencies.

The complexity of justice systems varies according to the jurisdiction and can be influenced by a range of practical, political and ideological considerations given that the administration of justice reflects the political culture of a nation (Dammer & Albanese, 2014: 6). However, Global North criminal justice is arguably influenced by the law enforcement perspective which relies heavily on detection, apprehension and punishment and which in practice is primarily about detection and punishment after crime has occurred rather than about crime prevention despite frequent political rhetoric to the contrary. Faulkner (2010) describes how Prime Minister Tony Blair saw the criminal justice system as being unfit for purpose, unable to protect the public, and in need of urgent reform. Collins (2010) also argues that:

The criminal justice system in England and Wales is in crisis. The cost of the system has grown dramatically in recent years, yet prisons are dangerously overcrowded, the public's confidence in the system is low, and reoffending rates remain high. A fresh approach to criminal justice policy is long overdue. (2010:1)

Although the general aim of criminal justice policies may be to reduce crime and make society a safer place, individual criminal justice policies can have specific goals. Separate from the goal of punishing offenders for behaviour that society considers unacceptable, criminal justice policies employed in mainstream criminal justice may have, as a secondary aim, any of the following motives:

• repressing deviation from the accepted norms in society;
• protecting society from wrongdoers;
• providing restitution for the wronged (including the environment);
• rehabilitating offenders to protect society by preventing future offences;
• retribution, revenge and ‘just desserts’;
• general (as opposed to individual) deterrence to keep the bulk of society law-abiding.

An effective criminal justice policy may have to combine several of these intentions to effectively address crime problems in society and prevent offending and reoffending. Criminal justice policies therefore need to range from those that target the individual offender to those that deal with minimising the opportunities for offences to be committed and attack the conditions that cause crime. However, Naughton (2011: 42) has argued that in practical terms, the presumption of innocence and burden of proof on the prosecution to prove its case has rendered suspects in criminal trials passive. Naughton suggests that this ‘places pressure on, and directs the bulk of the resources to, the police and prosecution to chip away at the presumed innocent status and construct cases from only incriminating evidence that might obtain a conviction, rendering innocent victims vulnerable to wrongful convictions’ (2011: 42). Arguably, the defence then becomes ‘ineffectual’ due to limitations in resources (Merchant, 2012; Naughton, 2011), and thus an important safeguard against miscarriages of justice (i.e. the robust defence) is neutralised when defence lawyers rely primarily on evidence and materials made available by the police and prosecution rather than conducting a wholly independent investigation (Poyser et al., 2018). Moeckli (2008: 7) identifies ‘the image of balance’ as portraying ‘security as a given and measurable concept that is in natural opposition to reality’ but questions the reality of this notion, suggesting instead that security is not a fixed value but a concept whose meaning is in dispute and that is arguably subject to different interpretations. Thus, security can arguably be considered as a social construction that varies according to place and time and according to political realities. Accordingly, in a post 9/11 world, one conception of security is that relating to terrorism threats and how justice agencies such as the police should operate to fulfill their obligations within the ‘War on Terror’ that identifies counter-terrorism as a core responsibility of policing agencies. This contemporary paradigm has also arguably shifted national security from a counter-terrorism responsibility carried out primarily by the security services to a shared responsibility of police and security agencies, if not an actual core responsibility of mainstream policing.

The Conflict between Civil Liberties and Criminal Justice

At the heart of this book's discussion are questions concerning the purpose and operation of criminal justice and the extent to which the balance between criminal justice and civil liberties is problematic. A normative human rights view holds that public authorities such as the police, the courts and prison services are required not just to observe or have regard to human rights but are also required to positively uphold rights (Stone, 2010). Fenwick (2007) notes that the exercise of police powers such as arrest and detention represents invasion of personal liberty that can only be tolerated where such access is necessary in the interests of prevention and detection of crime, or for other limited reasons (discussed later in this chapter). Accordingly, ‘the interest in personal liberty requires that such powers should be strictly regulated’ (Fenwick, 2007: 1101). Thus, human rights laws generally provide for interference with some human rights for specified reasons; the general concession is that some rights can be interfered with for selected legitimate purposes including protection of the public, the prevention of crime, for national security purposes or for the protection of public health or morals. Interferences are considered permissible if carried out for one of these purposes, in accordance with law, where the interference can be considered ‘necessary’ and so long as any interference is proportionate and represents minimal interference. Later chapters of this book will discuss these issues in more detail and will examine cases where state interference in human rights has been challenged.

The Universal Declaration of Human Rights was adopted by the United Nations (UN) on 10 December 1948 and contains 30 articles that set out fundamental human rights that apply to all. Whilst the Declaration's articles are not by themselves legally binding, ⁴ they have arguably become part of customary international law due to their acceptance by nations. The Declaration's principles also provide the basis for subsequent human rights instruments and form a framework through which international human rights standards have been developed. Several articles of the Declaration are relevant to discussions of the tension between human rights and criminal justice and deal with substantive issues of criminal justice. Table 1.1 sets out the key articles and their relevance for criminal justice discourse.

Table 1.1.The Universal Declaration of Human Rights, Core Criminal Justice Provisions.

Article	Text	Criminal Justice Considerations
Article 3	Everyone has the right to life, liberty and security of person	Protects against arbitrary state interference with the right to life and liberty, thus requiring justification for any interference with these rights. Restrictions on liberty (e.g. imprisonment) cannot be arbitrary (See also Articles 9 and 11)
Article 5	No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment	Prohibits state use of torture, also applies to conditions of imprisonment and the nature of punishment for criminal offences
Article 6	Everyone has the right to recognition everywhere as a person before the law	Provides for legal recognition and application of the law to all citizens (e.g. preventing discrimination or marginalisation of vulnerable groups)
Article 7	All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against ...

Table of contents

• Cover
• Praise for The Citizen and the State
• Title
• Copyright
• Table of Contents
• Acronyms
• Preface
• Acknowledgements
• Chapter 1 The Citizen and the State
• Chapter 2 The Rule of Law and Contemporary Criminal Justice
• Chapter 3 The Art of Activism
• Chapter 4 Justice for Some, Lawyers for All? Victim's Rights and Redress
• Chapter 5 Alternative Dispute Resolution and Redress
• Chapter 6 Justice Under Stress: Scrutiny, Tribunals and Public Enquiries
• Chapter 7 Speak No Evil, Hear No Evil: Criminal Justice and Freedom of Expression
• Chapter 8 Freedom of Assembly and Protesting against the State
• Chapter 9 Exploring Creativity and Sexuality: Freedom of Expression Expanded
• Chapter 10 Re-assessing the Citizen and the State: Perspectives on Democracy
• References