Chapter 23 Review questions answer guidance

The rule of law means that everyone is subject to the law of the land. It comprises, among other important points, the constitutional doctrine of the separation of powers. The doctrine of the separation of powers sees the power of the state as divided into three separate branches: the executive (the government and its agencies), the legislature (the Parliament), and the judiciary (the courts) (De Montesquieu, 1748). In this way, the independence of each branch is protected from interference from and abuse by the other branches and no single branch has excessive control. This is how the rule of law aims to ensure the independence of the judiciary. For example, the executive can propose law, but the legislature then needs to approve it, or not, and an impartial judiciary adjudicates on its disputes. In theory, the doctrine ensures that power is effectively shared and reduces undue bias in the development of the law.

The due process model places on the state the responsibility to prove that a defendant is guilty in a process that respects the accused’s legal rights, follows a fair procedure, and delivers open justice and accountability by the different criminal justice actors (e.g. the police, the courts, the prosecution etc.). Fair procedure, also known as procedural justice, is fundamental to due process because it ensures the legitimate authority of the criminal justice system as a whole (Tyler, 2017). Open justice highlights the significance of transparent and easily accessible laws that are enforced without favour and discrimination (Gross LJ, 2014).

Other important due process principles are:

• the accused ought to be dealt with by a competent legal authority which has the jurisdiction to deal with them (that is, that it possesses the legal power to do so);
• the accused must be presumed innocent until/unless the prosecution can prove them guilty ‘beyond reasonable doubt’ (this is the principle of the presumption of innocence);
• the accused must be legally competent to stand trial (that is, they must possess criminal responsibility, otherwise known as mens rea);
• the accused must not have committed the offence too long ago or have been previously acquitted or convicted of it (this is known as double jeopardy).

The Blackstone ratio of justice is a strong affirmation of the fundamental importance of the presumption of innocence and procedural justice. The Blackstone ratio of justice gets its name from Sir William Blackstone who in 1769 famously stated that it is ‘better that ten guilty persons escape, than that one innocent suffer’ (Blackstone, 1769, Vol. 4: 27).

Adversarial justice views the criminal justice process in general as a battle between the state and the accused in which one of the two parties will win and the other will lose. In adversarial justice, the battle aim is to establish beyond reasonable doubt whether the accused is guilty or not.

A critique of the cross-examination of witnesses in adversarial trials (a key feature of them) as unfair has led to changes that are seen to weaken adversarial justice. These changes are:

• a presumption against the admissibility of a complainant’s previous sexual history;
• a range of special measures available for any witness considered vulnerable or intimidated;
• a requirement that the defence take part in a full disclosure of evidence process and indicate any points of law likely to be raised;
• the erosion of the presumption of innocence, whereby it no longer includes the suspect’s right of silence at arrest, in the police station, and at court (such silences can now be treated as a sign of guilt or as non-compliance);
• the defence cannot any longer seek an advantage from a ‘technical’ or ‘legal’ mistake in the prosecution.

The impact of the changes on the adversarial justice system in the UK has led some scholars to regard the system as ‘adversarialism lite’ (Cape, 2010).

The Criminal Justice Act 2003 identifies restorative justice as one of the sentencing aims, thus officially recognising its place in the criminal justice system. Restorative justice (RJ) differs from traditional justice ideas and practices, where the focus is on the punishment of the offender by the state. RJ focuses instead on offender reintegration into the community by creating an environment where the offender can repair the harm they inflicted on the community. This can take different forms and in the UK RJ has involved:

• family conferences where the offender’s families or their representatives, the offender and the victim(s) participate;
• victim-offender mediation schemes; and
• community service, where the harm is repaired for the benefit of the whole community rather than only to the individual victim.