University of London

Common Law Reasoning and Institutions

Exam Candidate Number: 141064
Student Registration Number: 101011916
Q6 It is a general problem, not specific to the law of the United Kingdom: a criminal justice
system characterised by an emphasis on crime control rather than due process will inevitably
produce miscarriages of justice.
Assess the validity of this statement with particular reference to at least one Jurisdiction other than
England and Wales.
Do I think the death penalty is immoral because it will inevitably lead to condemnation of
someone who is innocent? Well of course it will, I mean you cannot have any system of human
justice that is perfect. Its one of those risks of living in an organised human society.
Justice Scalia, US Supreme Court
1
Over the last century miscarriages of justice have blighted jurisdictions across the world. From the
French parents falsely accused of child molestation
2
to the decades-long incarceration of Sakae
Menda on Japans death row
3
, individuals have been wrongly accused, imprisoned and sometimes
executed.
Despite radical differences in legal traditions between jurisdictions, the reasons for these errors are
strikingly similar, with eyewitness misidentification, faulty forensic evidence and police mistakes
blamed repeatedly.
4
Arguably such errors are inevitable; the human memory is notoriously unreliable,
while scientists and police are hardly infallible. Perhaps, as Justice Scalia contends, mistakes are
simply an unfortunate side-effect of modern society.
This essay aims to challenge Scalias statement by investigating whether miscarriages of justice are
caused not by fundamental human fallibility, but by prioritising crime control values at the expense
of due process safeguards. Packers Crime Control model will be briefly outlined, before determining
whether characteristics of this model correlate with factors responsible for miscarriages of justice.
Singapore will be used as a case study. Subsequently due process controls will be examined to
ascertain whether they can prevent, or at least reduce miscarriages of justice.
The Crime Control Model
The archetypal Crime Control model depicts an authoritarian government, convinced that efficient
conviction of criminals brings greater freedom for law-abiding citizens. Unless speed and finality
are paramount, order deteriorates and society cannot function. Great power is granted to police and
prosecutors to screen suspects, with informal interrogations in the police station preferred to court
cross examinations. Police screening processes are deemed accurate indicators of guilt, so subsequent
checks are superfluous ceremonious rituals which compromise efficiency.
5
Provided police are
neutral fact-finders objectively gathering evidence, the crime control philosophy may be justified;
unfortunately, this is often far from the truth.
Surrounded by grieving victims, irate witnesses and possibly threatening suspects, it is unsurprising
that police have difficulty remaining neutral.
6
High-profile cases often spark media-fuelled public
outrage, driving police to violence and coercion to secure convictions swiftly. In the wake of
the Guildford and Birmingham IRA bombings, hundreds of Irish nationals were rounded up and
aggressively interrogated, eventually leading to the wrongful incarceration of the Maguire family.
7
Similar problems exist in the US where police routinely use prison informants to bolster evidence in
weak cases, despite their notorious unreliability. In Illinois, 40% of miscarriages of justice involved
evidence from prison informants.
8
Unscrupulous informants will often testify to non-existent
conversations regarding another prisoners guilt, in exchange for reduced charges. In some cases
evidence is simply made to order
9
Although such practices are deplorable, police often believe they
are side-stepping restrictive bureaucracy to deliver justice, so-called noble cause corruption.
10
They
are convinced of a suspects guilt, but in the absence of concrete proof feel compelled to fabricate
evidence to secure conviction. With no scientific method for objectively ascertaining guilt, such
subjective police suspicions, however honestly held, often result from unconscious stereotyping.
11
Psychological Effects
Even without deliberate interference, police can still induce miscarriages of justice. Detective
work involves far more than robotically classifying fingerprints or measuring bullet trajectories. It
includes formulating a list of suspects and proposing a narrative of events, which once engrained into
investigators minds is hard to displace, with police often asserting the guilt of a key suspect when
their involvement has long been disproved.
12
Psychological studies demonstrate biased interpretation of evidence by police, who unconsciously
try to prove their initial hypothesis correct. Interviewers inadvertently formulate questions to support
their hypotheses, giving undue weight to corroborating answers, whilst dismissing contradictions.
Such effects intensify, as interrogators unconsciously transmit their desired responses through
subtle audio and visual clues; hence witnesses and suspects, eager to provide the right answers,
miraculously confirm the police hypothesis.
13
These effects are exemplified in the case of US high school student William Harris, who served
almost a decade in prison before being exonerated by DNA evidence. After being sexually assaulted,
the victim asserted immediately that she knew Harris and he was not her attacker. However, following
a series of suggestive interviews, prominent photos of Harris in the local media and a photo based
identity parade, she performed the most dramatic sort of identification the deputy sheriff had ever
witnessed.
14
She was certain, but she was wrong.
Subjective biases also plague seemingly independent fact-finders like forensic scientists. Although
scientific evidence is highly prized as a beacon of objectivity in a confusing mire of garbled
testimonies and dubious alibis, it is not as precise as most juries believe. If DNA samples are
too small or mixed together, the results can be interpreted with significant subjectivity
15
. This is
especially disturbing given 28% of British forensic scientists say they feel pressurised to produce a
particular result, while 75% have insufficient time to guarantee accuracy.
16
In the US there are reports
of large-scale forensic fraud, amid allegations that labs are controlled directly by law enforcement.
17
Prosecutors are unable to rectify these fact-finding errors as they act solely on the police evidence
provided. Even in the European civil law jurisdictions, where inquisitorial magistrates can request
reinvestigation, this power is rarely used. With this combination of powerless prosecutors, noble
cause corruption and unconscious influencing of witnesses, miscarriages of justice seem inevitable.
Allowing the subsequent stages of the judicial process to be relatively perfunctory could be unwise, as
Singapore demonstrates.
Singapore
Punishment was so severe that crime was very rare. In the midst of deprivation after the second
half of 1944, when the people half-starved, it was amazing how low the crime rate remained. As a
result I have never believed those who advocate a soft approach to crime and punishment, claiming
that punishment does not reduce crime.
Lee Kuan Yew, former Singaporean President describing the Japanese occupation.
18
The island-nation of Singapore boasts one of worlds lowest crime rates, the strictest laws and highest
number of executions per capita
9
. Despite damning international criticism of Singapores barbaric
20

practices, the dominant Peoples Action Party unashamedly endorses the crime control philosophy,
believing it a requisite for social order.
21
The right to silence is deemed unconstitutional, police
interrogation guidelines are non-existent and even the hallowed presumption of innocence is infringed
in the case of drug-trafficking (a capital offence). The Internal Security Act allows the Home Affairs
Minister to detain anyone prejudicial to Singapores security without trial. Critics accuse the
government of rendering Packers descriptive model prescriptive.
22
Consequently, the wrongful conviction of the innocent should be commonplace, yet it appears
conspicuously absent. Commentators attribute this to harsh penalties for corruption, exacting
police training and multiple layers of scrutiny, with the few recognised miscarriages of justice
fortunately discovered in time.
23
Human rights activists however believe they are more prevalent,
just unacknowledged.
24
The exposure of miscarriages of justice globally is credited to investigative journalism, combined
with tireless campaigning from family members
25
- unthinkable in Singapores heavily censored
media environment. Ranked 140 of 176 countries for Press freedom
26
, Singapore has little time for
dissenters. Alan Shadrake was arrested for scandalising the judiciary after publishing a criticism
of Singaporean capital punishment
27
while Lynn Lee was interrogated
28
for interviewing Chinese
bus drivers alleging police abuse. International intervention can secure clemency for those sentenced
to death, but success appears to depend on the country applying pressure. Rusman bin Kosoh was
hanged despite questionable intellectual capacity, yet known drug dealer Julia Bohl was sentenced to
a short prison term after Germany threatened economic reprisals.
29
Analysing the few recognised miscarriages of justice reveals that Singapore suffers the same problems
as other jurisdictions including false confessions, police abuse and unreliable prison witnesses.
30

Campaigners also highlight the cases of Vignes Mourthi, executed despite unsubstantiated evidence
and police corruption
31
; Fong Chee Peng almost sentenced to death on the basis of a sketchy six-
paragraph judgement
32
and Amara Tochi hanged as he should have known he was carrying drugs.
33

Given this climate of government secrecy and media repression, miscarriages of justice could be
significantly more numerous than formally recognised. Former chief justice, Chan Sek Keong
believes it impractical to ensure the innocent are never convicted; such a process would become
a charter for murderers, rapists, robbers and other criminals to act with impunity
34
. Due Process
advocates disagree.
Due Process
The Due Process Model looks like an obstacle course. Each of its successive stages is designed to
present formidable impediments to carrying the accused any further in the process
Herbert Packer, Two Models of Criminal Justice
35
Avoiding conviction of the innocent is paramount in due process philosophy. The state has been
granted great power to deprive citizens of their liberty; the judiciary must ensure it is not abused.
Police and prosecutors are inherently biased agents; their conclusions are untrustworthy and must
be scrutinised by an impartial public tribunal. Counsel is central to allow the defendant to openly
counter the accusations against him; efficiency and finality are subjugated by fairness to innocent
defendants.
36
Following miscarriages of justice, many states have implemented due process controls to restore
public confidence. Audio-visual recording of police interviews throughout Australia has helped
eliminate fabricated confessions
37
; forensic evidence must be accompanied by reliability assessments
in the US
38
, and the Norwegian and English Criminal Cases Review Committees (CCRC) have
reopened hundreds of doubtful cases.
39

40
Whilst undoubtedly laudable, such measures must be well
researched, not knee-jerk reactions to assuage public anger. Crudely superimposing due process
concessions on a crime control mentality could exacerbate injustice by falsely convincing the public
that miscarriages of justice have been eliminated.
Although the United States retains the death penalty, successive governments have reiterated that
rigorous checks exist to safeguard the innocent.
41
Superficially this appears justified; a comprehensive
capital appeal system exists at both state and Federal levels with a right to effective counsel, in
addition to numerous constitutional safeguards.
42
However, many judges and legislators have a
strongly engrained crime control mentality which has gradually eroded these due process checks,
rendering them useless.
43
Defendants cannot admit evidence in Federal courts that their counsel was ineffective, or that
constitutional errors occurred. To overturn a state decision, Federal courts must be satisfied that the
decision was not only wrong, but unreasonable
44
; while according to critics, the effective counsel
requirement has been reduced to having a pulse and a bar card.
45
Sleeping, drunk and spectacularly
incompetent lawyers have all been deemed legally effective. In North Carolina, 20% of death row
inmates were represented by lawyers sanctioned at the bar; similar statistics have been replicated
throughout the US.
46
Even if due process is not flagrantly disregarded, the implementation of additional safeguards can
have unexpected negative consequences. During the high profile IRA trials of the 1980s, the press
clamoured to release the wrongly convicted, but as soon as the CCRC was created, public interest
waned.
47
The government had apparently resolved the problem; but despite miscarriages of justice
remaining a real threat, funding for the CCRC has been cut over the last six years
48
, and the two
retiring commissioners have not been replaced.
49
As the public has become complacent, miscarriages
of justice may become more common.
Conclusion
With overreliance on police and prosecutors, criminal justice systems characterised by crime control
values will inevitably produce miscarriages of justice. Either through deliberate misconduct or
subconscious influence, primary fact-finders produce highly subjective conclusions which can lead
to injustice, as Singapore demonstrates. Carefully implemented due process controls can help rectify
these flaws as the creation of the CCRC illustrates; however simply applying a due process veneer
to a crime control system could actually exacerbate miscarriages of justice by discouraging public
scrutiny. It would perhaps be nave to suggest that sufficient due process controls could eliminate all
miscarriages of justice; but while Justice Scalia is satisfied with a success rate of 99.973%
50
, human
rights campaigners decry the punishment of a single innocent.
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13 Ibid
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23 Supra 21
24 Shadrake Alan, (2011), Once a Jolly Hangman, Pier 9 Books
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26 Supra 21
27 Supra 24
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29 Supra 27
30 Supra 21
31 Lawyers for Liberty (2010) Memorandum of Protest: Wrongful Execution of Malaysian Vignes Mourthi
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32 Foong Chee Peng v PP (Criminal Appeal No. 5 2011)
33 PPv. Iwuchukwu Amara Tochi &Anor [2005] SGHC 233
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Rev. 433
35 Supra 5
36 Ibid
37 Supra 4
38 Supra 14 p20
39 Supra 25
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41 Supra 1 p xxiii
42 Supra 40 p 40, p62
43 Supra 40, p20
44 Supra 40 p 40
45 Supra 40 p82
46 Supra 40 p 60
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Miscarriages of Justice?,Solicitors Journal, Wilmington Publishing and Information Ltd.
50 Justice Scalia of the US Supreme Court, Kansas v Marsh, 548 U.S. 163 (2006) (quoting Joshua Maquis)