CRIMINOLOGY, SENTENCING AND THE PENAL SYSTEM (CSPS)
Reading: the core textbooks have good introductory chapters. Or browse Padfield, N. and
Bild J. (2016), Text and Materials on the Criminal Justice Process (5th ed) or Dockley, A.
and Loader, I. (2013) The Penal Landscape. The Howard League Guide to Criminal Justice
in England and Wales (Routledge)
Processes and systems: Look at the 'flows'….(see diagram from annual Criminal Statistics :-
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/614414/
criminal-justice-statistics-quarterly-december-2016.pdf
But that seems to have disappeared:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/734069/criminal-justice-statistics-quarterly-march-2018.pdf
System = “set of connected things or parts that form a whole or work together”. Is this
system really little more than a series of decisions?
The role of discretion: Gelsthorpe and Padfield (eds) Exercising discretion: Decision-making
in the criminal justice system and beyond (2003):
Discretion is one of the most contentious concepts in criminal justice and related circles
because those involved in decision-making processes experience a considerable degree
of mandated flexibility in the decisions…it is the day-to-day discretionary actions of
police officers, prosecutors, defence lawyers, judges, psychiatrists, prison, probation, and
immigration officers, among others, which are the ‘stuff of justice’ and which make for
justice or injustice (page 1).
Dworkin Taking Rights Seriously (1978), p. 31
Discretion, like the hole in a doughnut, does not exist except as an area left open by a
surrounding belt of restriction. It is therefore a relative concept. It always makes sense to
ask, "Discretion under which standards?" or "Discretion as to which authority?"
Checks and balances: internal and external + role of the courts: appeals and judicial
review….
Evaluations How do we evaluate whether the system is living up to expectations?
Different models (e.g. Packer’s crime control v due process). Values: e.g. Sanders and
Young: the enhancement of freedom. Principles. Human rights
Some characteristics of the English criminal justice processes:
- Adversarial? Not really, but it depends what you mean (role of victim?)
- Lay element? - Constant change and uncertainty
- Popular punitiveness - ‘Managerialism’: NOMS/HMPPS
- Privatization - Short termism
Police: The main gatekeepers to the criminal justice system? Police powers: many
‘miscarriages of justice’ cases have ‘gone wrong’ in the police station.
The role of the Police and Criminal Evidence Act 1984 (PACE) in controlling the abuse of
discretionary powers; e.g. PACE Codes of Practice, the European Convention on Human
Rights, the Human Rights Act 1998.
Maxwell [2010] UKSC 48: Supreme Ct decide 3-2 that the Court of Appeal (CA) had not
been wrong to order a retrial in a murder case in which it had quashed the original conviction
1
Reading: the core textbooks have good introductory chapters. Or browse Padfield, N. and
Bild J. (2016), Text and Materials on the Criminal Justice Process (5th ed) or Dockley, A.
and Loader, I. (2013) The Penal Landscape. The Howard League Guide to Criminal Justice
in England and Wales (Routledge)
Processes and systems: Look at the 'flows'….(see diagram from annual Criminal Statistics :-
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/614414/
criminal-justice-statistics-quarterly-december-2016.pdf
But that seems to have disappeared:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/734069/criminal-justice-statistics-quarterly-march-2018.pdf
System = “set of connected things or parts that form a whole or work together”. Is this
system really little more than a series of decisions?
The role of discretion: Gelsthorpe and Padfield (eds) Exercising discretion: Decision-making
in the criminal justice system and beyond (2003):
Discretion is one of the most contentious concepts in criminal justice and related circles
because those involved in decision-making processes experience a considerable degree
of mandated flexibility in the decisions…it is the day-to-day discretionary actions of
police officers, prosecutors, defence lawyers, judges, psychiatrists, prison, probation, and
immigration officers, among others, which are the ‘stuff of justice’ and which make for
justice or injustice (page 1).
Dworkin Taking Rights Seriously (1978), p. 31
Discretion, like the hole in a doughnut, does not exist except as an area left open by a
surrounding belt of restriction. It is therefore a relative concept. It always makes sense to
ask, "Discretion under which standards?" or "Discretion as to which authority?"
Checks and balances: internal and external + role of the courts: appeals and judicial
review….
Evaluations How do we evaluate whether the system is living up to expectations?
Different models (e.g. Packer’s crime control v due process). Values: e.g. Sanders and
Young: the enhancement of freedom. Principles. Human rights
Some characteristics of the English criminal justice processes:
- Adversarial? Not really, but it depends what you mean (role of victim?)
- Lay element? - Constant change and uncertainty
- Popular punitiveness - ‘Managerialism’: NOMS/HMPPS
- Privatization - Short termism
Police: The main gatekeepers to the criminal justice system? Police powers: many
‘miscarriages of justice’ cases have ‘gone wrong’ in the police station.
The role of the Police and Criminal Evidence Act 1984 (PACE) in controlling the abuse of
discretionary powers; e.g. PACE Codes of Practice, the European Convention on Human
Rights, the Human Rights Act 1998.
Maxwell [2010] UKSC 48: Supreme Ct decide 3-2 that the Court of Appeal (CA) had not
been wrong to order a retrial in a murder case in which it had quashed the original conviction
1
