Chapter 16: IMAGINING CRIMINAL JUSTICE Criminal Justice- guarantor and threatener The criminal sanction is at once prime

e guarantor and prime threatener of human freedom. Used providently (careful and sensible in the way you plan things) and humanely it is guarantor; used indiscriminately and coercively it is threatener. The tensions that inhere in the rimina! san tion an ne"er #e $ho!!% reso!"ed in favour of guaranty and against threat. &ut $e an #egin to tr%' (er#ert )a *er, 19 !, The "riminal #anction, $

Ne$ Se tion: INTR+,UCTI+N: A -+RTUNE .IT( (+STAGES/ Criminal justice as the process commit to ROL but different underlying values as there are competing value, each has own credos Traditional accounts of rimina! 0usti e tend to assume that there e1ists a s%stem $ith a o!!e tion o2 seam!ess pro esses, which begins with inter"ention #% the po!i e and ends in the punishment o2 the o22ender' #uch accounts are useful to demonstrate how the institutions of the criminal %ustice system wor& #ut their assumption that the pro ess operates in an o#0e ti"e 2ashion $ith one ommon aim and a seam!ess 3s%stem4 is un2ounded' #ince (er#ert )a *er4s 2amous a ount of how the rimina! 0usti e pro ess of any country an #e e"a!uated #% onsidering $hether its pro esses are ommitted to rime ontro! or due pro ess far more attempts have been made to tr% and understand the under!%ing "a!ues $ithin an%

 'n (ngland and )ales more recent academic commentary has concerned itself with the inherent conflicts and di!emmas that are 2a ed #% those $ho pra tise $ithin the rimina! 0usti e pro ess'

These pra titioners 2a e ompeting "a!ues e"er% da% in their wor& and an appreciation of this encourages any reader to re ognise ho$ ea h pra titioner $ithin ea h institution has its o$n 3$or*ing redos4 '

.ith su h "ariations within each institution it is di22i u!t to see ho$ there an #e one seam!ess pro ess $ith a sing!e aim. The rimina! 0usti e s%stem is #est understood therefore as a series o2 pro esses with many of its practitioners wor&ing $ith di22erent "a!ues' This ou!d suggest haos #ut in fact it is at worst organised haos #e ause the ma hiner% of the institution tends to dri"e through a parti u!ar ourse and pra titioners often wor& beneath the radar to preser"e their o$n $or*ing redos'

!ystem is not uniform, danger to the victim *nce we understand that the s%stem is not o#0e ti"e5 it is not uni2orm, we can begin to imagine what criminal %ustice is and how it impacts upon an individual. The ma%ority of us lead law+abiding lives and so will not encounter the criminal %ustice system. ,owever it is important that those $ho do en ounter the s%stem should be subject to practices, $hi h are de2ensi#!e and #ear riti a! s rutin%'

"iscarriage of justice and factors #ome who encounter the process will be guilty but there $i!! a!so #e those $ho are inno ent and %et ha"e #een a "i tim o2 a mis arriage o2 0usti e. These miscarriages may be due to dis riminator% po!i e pra ti es in ompetent s ienti2i e"iden e o"er re!ian e o2 the ourt on e1pert testimon%' 'n imagining criminal %ustice we need to remember that where mista&es are made by those who have po$er $ithin the pro ess so this po$er $hen a#used5 an ha"e riti a! onse6uen es' These peop!e are o2ten hostages to the 2ortune o2 the pro ess.

#attle of power btw the institutions .ut our story is not simp!% one o2 mista*es. 't is also a stor% o2 the #att!e 2or po$er. 't involves a consideration of the arguments that continue to rage within any evaluation of the criminal %ustice process. The #att!e #et$een the 0udi iar% and the e1e uti"e7 !egis!ature o"er: the senten ing of a convicted person and also over the e22e ts o2 an e1pansionist po!i % to$ards the use o2 prison continue to haunt the processes we thin& about.

$ovt may blin%ered with election and ma%e decision with good intention however litter the process 'n these battles $e $ou!d e1pe t to #e supporti"e o2 the e1e uti"e7!egis!ature 2or their tas* is to represent us in our !i#era! demo ra %' (o$e"er sometimes the% too #e ome #!in*ered in their sear h 2or 2ortune (in the form of re8 e!e tion and the consolidation of political power) that the% 2orget that there $i!! #e hostages to their de ision ma*ing. (e!ena 9enned% warns us of how e"en the most #ene"o!ent o2 go"ernments with signi2i ant in2!uen e o"er the !egis!ature an o2ten 2orget ho$ po$er2u! the% ha"e #e ome and the responsi#i!it% $hi h a ompanies that power.

 #he says- No state shou!d #e assumed #enign5 even the one you are governing. A!though there are !egitimate re6uirements that the ommunit% is prote ted against terrorists, there is also the ris* that the state uses the threat o2 terrorism to in rease its o$n oer i"e po$ers' The state is therefore not benign. The rimina! 0usti e pro ess $ith its institutions $ho ad"an e their ommitment to 30usti e4 are not #enign either. The pro ess ma% #e !ittered $ith good intentions but whilst those intentions mani2est themse!"es into pra ti es $hi h margina!ise or "i!i2% the 2e$, then our imagining o2 rimina! 0usti e soon #e omes the dar*est o2 "isions'

Ne$ Se tion )+LICING: L+CAL &ATTLES AN, NATI+NAL .ARS &olice power become too intrusive although increase due to terrorism and it needed to be scrutinise )e begin our tour through the criminal %ustice process by onsidering the urrent e1tent o2 po!i e po$ers and some o2 the ontro"ersies, which have emerged during the e/ercising of those powers. )o!i ing in Eng!and and .a!es has !ong #een onsidered to #e #% onsent' This means that those who are policed ta it!% onsent to a!!o$ the po!i e to ha"e po$ers5 $hi h ena#!e the po!i e to preser"e pu#!i order, ensure citi0en safety and to protect citi0en property $here appropriate. This has #een the traditiona! "ie$ of policing since reforms to policing were carried out during the nineteenth century.

 1ny evaluation of policing in the t$ent%82irst entur% can see that although there continues to be widespread support for the police there has, o"er the !ast thirt% %ears5 #een a de !ine in po!i ing #% onsent. This is in part due to the fragmentation of local communities where those being policed have felt for some years that the po$ers possessed #% the po!i e ha"e #e ome too intrusi"e and are #eing used in a dis riminator% $a% to target parti u!ar groups $ithin that !o a! ommunit% )hilst these local battles continue to rage but we have also seen developments on the world stage which has led to in reased po!i e po$ers $hi h ha"e #een imp!emented in an attempt to respond to the per ei"ed in reased threat o2 terrorism' These powers have also pro"ed ontro"ersia! in their use #% po!i e' The result being a general recognition that heightened po!i ing ma% #e a ne essit% #ut a 2ar *eener e%e is no$ p!a ed on ho$ the po!i e e1er ise these po$ers5 #oth

!o a!!% and nationa!!%5 to ensure they are used carefully.

Lo a! #att!es Localised policing is preferred to target the local problems 2olicing has always been a local business. (istori a!!% po!i ing was organised and ontro!!ed #% the !o a! ommunit%. This arrangement, with 3$ police forces in (ngland and )ales, has ontinued and so there is not urrent!% a nationa! po!i e 2or e. That said in re ent %ears there have been !egis!ati"e re2orms, which ha"e resu!ted in greater 4not fully5 entra!isation, and indeed the home o22i e suggests that the% 32und the po!i e and ha"e o"era!! responsi#i!it% as o"erseer and oordinator4' This !o a!ised arrangement means that each po!i e 2or e is permitted5 within limits, to target its resour es at particular priorities $ithin that !o a! ommunit%. Lo a! 0usti e has a!$a%s #een pre2erred as a means o2 targeting !o a! pro#!ems'

Little effort in prevention of crime and only for rural area There would be !itt!e point dire ting "a!ua#!e resour es to$ards pre"enting a parti u!ar t%pe of crime, $hi h is a on ern 2or one po!i e 2or e #ut not 2or another.

This division has been particularly noted when considering the priorities for policing in rural as opposed to urban areas.

&olice racist to minority ethnic issue *ne 6!o a!4 pro#!em for the 7ondon 8etropolitan 2olice #ervice since the publication of the 8ac2herson report has been ho$ to dea! $ith the riti ism #% that report that the ser"i e is 3institutiona!!% ra ist4. Ra ia! dis rimination is a on ern 2or a!! po!i e #ut is more riti a! 2or those areas $here there are !arge popu!ations o2 peop!e 2rom ethni minorit% groups' There have been a $ho!e host o2 initiati"es to attempt to om#at this charge. [that mean counterargue this point] The ,ome *ffice website cites an increase in defining racists incidents, more community and race relations training for police officers and the mobilisation of the 'ndependent 2olice "omplaints "ommission to independently review police actions. There has also been an attempt to increase the recruitment of minority ethnic police officers.

Crucial to the test how police are racist but not institution itself has discrimination (o$e"er on a local level there remains a ru ia! test o2 ho$ ra ist, or not, the po!i e are. This refers to a po!i e o22i er #eing ra ist in their de ision8 ma*ing rather than an institution $hose pro esses dis riminate against those from an ethnic minority bac&ground. This is in their day to day e/ercising of their stop and search powers.

&olice s power now can search the bags and poc%ets (istori a!!%, there $as no po!i e po$er to stop and sear h. with the e/ception of 7ondoners, #. 8etropolitan 2olice 1ct 1!$9 An% po!i e o22i er stopping and attempting to sear h a citi0en ou!d #e sued 2or assau!t. This hanged in 1:;< $hen s'! o2 the )o!i e and Crimina! E"iden e A t ()ACE) permitted police, on reasona#!e suspi ion, to stop and sear h an% person or "ehi !e that the police #e!ie"ed were arr%ing sto!en goods or other prohi#ited items' This search was !imited to a sear h o2 #ags or po *ets'

 This new power was seen as a crucial development for the police as the% had argued the% ou!d not pre"ent or dete t rime i2 the% $ere una#!e to dete t peop!e arr%ing sto!en goods and pre"ent peop!e who were in possession of items, $hi h ma% #e rimina! or 2a i!itate a 2uture rime 4such as possess of a dangerous weapon5 1ll stop and sear hes ha"e to #e re orded and ea h po!i e 2or e pu#!ishes statisti s those searches in their annual reports. The controversy surrounding the e/ercising these powers was considered in 8ac2herson and does remain an indicative measure of the wor&ing practices of police officers.

Reasonable suspicious- but more #lac%, "uslim, low income people were searched To stop and search an individual there must be 3reasona#!e suspi ion4 on the pan o2 the po!i e o22i er'

't is the formation of this suspicion, based around so ieta! stereot%pes and dis riminator% #e!ie2s, $hi h auses the most on ern'

1s #anders et al have stated 6po!i e $or*ing ru!es do not impa t e6ua!!% upon all sections of society9 't has become apparent that #!a * peop!e in depri"ed so io8 e onomi onditions are no more !i*e!% to ommit rimes than their $hite ounterparts and %et the% 2igure disproportionate!% in the stop and sear h 2igures' The same is true for those who are unemp!o%ed and !o$ paid' )hen they had less income, then how can they be more capable to crime:

&rior to &'C(, &olice has arbitrary power .ac& in 19;<, prior to the supposed rigours o2 )ACT5 Lord ,e"!in stated that suspicion arises at or near the starting point of an investigation of which obtaining of prima facie proof is the end . . . 2rima facie proof consists of all admissible evidence. Suspi ion an ta*e into a ount matters that ou!d not #e put in e"iden e at a!!' #baaban .in ,ussien v. "hong =oo& >am

This view tended to grant po!i e o22i ers arte #!an he to stop $ho the% $anted e"en though the% had no statutor% po$er to do so. )ith the e/ception of 7ondoners. )e have already stated there was no statutory power to stop and search and %et po!i e o22i ers o2ten did in a parti u!ar!% ar#itrar% $a%'

 An assau!t !aim ou!d 2o!!o$ against an o22i er #ut 2e$ indi"idua!s $ou!d *no$ this and in a ordan e $ith 3po!i ing #% onsent4 would submit to a search if as&ed.

Reason for discrimination- police prejudice, based on criteria, blac% behaviour- all reasons may interlin%ed Things did not appear to improve after 21"(. 1rbitray power stop #anders et al. e/plain that in ?<<;@! a #!a * person $as o"er = times and 11 an Asian person >'> times more !i*e!% to #e su#0e t to a stop and sear h by a police officer than a $hite person' They e/plain that this could be due to #oth dire t and indire t dis rimination' The dire t dis rimination is where the stop and search is founded by po!i e pre0udi e and re!ian e on negati"e stereot%pes (all blac& people arc drug users and all 1sians, especially 8uslims, are terrorists). Indire t dis rimination occurs where the e/ercising of police powers is #ased on riteria, which inad"ertent!% resu!ts in un0usti2ied disparities'

't could also be due to #!a * peop!e a tua!!% e1hi#iting #eha"iour, which is o#0e ti"e!% more suspi ious' #anders describe it as legitimate reasons

)e should not assume that the reasons are easy to locate within the police officer on the street e/ercising reasonable suspicion. 't could be a combination of all three. The problem is that even if blac& people are e/hibiting behaviour which is ob%ectively more suspicious which ma&es the stop and search 6legitimate9 their over representation in the figures does suggest that direct and@or indirect discrimination is also apparent and this does need to be addressed.

?uinton et a!- negative effect is more than positive effect when suspicious based on instinct n e)perience To understand how the e/ercising of stop and search powers is racially discriminatory we need to understand what the motivation is of those who e/ercise these powers. ?uinton et a!. ondu ted an e1tensi"e sur"e% of those who stop and are searched and noted that one po!i e o22i er said 6%ou see someone and %ou 0ust *no$ he4s not right4. ,e isions are o2ten #ased on instin t and e1perien e which #% its nature an #e negati"e!% grounded in ra ia! pre0udi e.

This resear h on2irmed that those $ho e1perien ed stop and sear h o2ten 2ound the e1perien e aggressi"e and intimidating .

't also stated that- 6the !ega! re6uirement o2 reasona#!e suspi ion is pro#a#!% not 2u!2i!!ed for some searches9.

This research confirms the 6suspi ions9 long held over the use of stop and search and it seems apposite that- 6the aggra"ation5 distrust and resentment urrent!% aused $as seen to out$eigh an% per ei"ed positi"e out omes4'

&olice an)ious when searching, as worry being alleged as racist ?uinton et a!'4s resear h was conducted directly after the 8ac2herson report was published in an attempt to o22er some guide!ines on good pra ti e 2or the use o2 stop and sear h po$ers' It no$ remains to as* i2 things ha"e impro"ed. -oster et a!'1= ondu ted resear h, which attempted to assess the impa t o2 the Ma )herson report on the 7ondon 8etropolitan 2olice #ervice. They indicate that some impro"ements are apparent but no$ po!i e are "er% an1ious a#out stopping and sear hing 2or 2ear o2 #eing a used o2 #eing ra ist' This does suggest that po!i e ha"e #e ome more a$are o2 ho$ their #eha"iour can be construed as being racist.

(he defensible way *current+ in ma%ing decisions ma%e the polices change and in faster way 't is also understanda#!e that po!i e o22i ers may find themselves $or*ing in a more de2ensi"e $a%' behaving in a way that shows they feel unsure or threatened. (o$e"er5 $e shou!d ha"e no pro#!em with this. )o!i e ma*e de isions to stop and sear h and these de isions shou!d #e de2ensi#!e' )o!i e o22i ers ma% $e!! #e an1ious about e/ercising those powers but it is an an1iet%5 $hi h shou!d in2orm and assist in their de ision to stop and sear h. It is not a de ision $hi h shou!d #e ta*en !ight!%'

,raw attention to the obviously identifiable change- searching , forces the police to change

-oster et a!' do o22er a a"eat to the man% positi"es the% identi2% by suggesting that- 6-or es + perhaps understandably + ha"e tended to 2o us on those hanges that $ere most o#"ious!% identi2ia#!e and a hie"a#!e4'

"hanges in attitude, especially in the canteen and on the streets, may prove rather more difficult to alter over such a short period of time. 4That mean now draw attention to their changes in 6searching9, this way seem li&e 6forces9 them to change as it is easy to be identified and achievable )hile changes in attitude in canteen and street not easy to be identified, that why difficult to change over short period5

#owling and &hillips- &olice still did not trust and prejudice *n final analysis .owling and 2hillips remain sceptical. They conclude that as of >@@=, #!a * peop!e in Eng!and and .a!es $ere no$ si1 times more !i*e!% to #e stopped and sear hed based on their numbers in the general population. They argue that un!a$2u! ra ia! dis rimination ontinues to operate and this can be supported in t$o $a%s. =irstly they argue that this does have an unfavourable impact on those people of A2ri an Cari##ean origin because it ontinues to undermine an% trust and on2iden e that these ommunities ma% ha"e e"er he!d 2or the po!i e. #econdly they point to evidence which continues to show damning e/amples of po!i e pre0udi e to$ards ethni minorities.

1 film show police power should be used when genuine reasonable belief but not suspicious *ne cited e/ample is a film in ?<<$ which used covert recording show e/treme racism was alive and well in a Aational 2olice Training "entre. *fficers were shown demonstrating e1treme ra ia! hatred and e"en admiration 2or those $ho murdered Stephen La$ren e. Stephen is a #!a * #o% The film also showed a serving police officer boasting about his use of discretion in stopping and searching people from ethnic minority bac&grounds. Their final rallying cry is for- 6the po!i e po$er to detain a person on the street 2or the purpose o2 a sear h shou!d #e restri ted to situations $here a onsta#!e has a genuine and reasona#!e #e!ie2 that $rongdoing is a2oot, rather than the merest o2 suspi ions4.

.ut the Buestion is how genuine and reasonable be construed by officer:

1 sound sentiment but $e are !e2t imagining ho$ 3genuine and reasona#!e #e!ie24 $i!! #e onstrued #% a ser"ing o22i er who appears to be confronted with if not thoroughly adhering to, the stereotypical views of police officers about+ those from ethnic minority bac&grounds.

Another ase: po!i e 3mis ondu t4 *i!!ing o2 a i"i!ian 'n this discussion of the use and@or abuse of police power a recent case concerning the death o2 a <=8%ear8 o!d i"i!ian has highlighted once more the tragic fall out from e1 essi"e use o2 po!i e po$er. Tom!inson was a newspaper vendor who was aught up in the protests that too& place during 7ondon9s C?< #ummit in 1pril ?<<9. (e $as not a protestor' (e tragi a!!% died on that da%' 't was initially suggested by the 8etropolitan 2olice #ervice that they had no contact with Tomlinson on that day and indeed protestors had attac&ed the police who were trying to offer him medical assistance. 1s the days went by it became clear that there was a substantial range of evidence to directly contradict the initial position ta&en by the 8etropolitan 2olice #ervice.

 'n spite of video footage which showed a Simon (ar$ood, a Territorial #upport "roup o22i er5 stri*ing and pushing Tom!inson 0ust #e2ore he o!!apsed5 the "rown 2rosecution #ervice in ?<1< decided not to prosecute this officer at that time. 1t the inBuest in ?<11 a verdict of unlawful &illing was returned and the C)S re"ie$ed the ase and pro eeded to prose ute (ar$ood for mans!aughter. 'n Duly ?<1? he $as 2ound not gui!t%. (ar$ood has sin e #een dismissed from the 8etropolitan 2olice #ervice 2or gross mis ondu t' The authors chose to mar& this incident and so inserted an image of Tomlinson at the beginning of this chapter.

>ettling not violate the human right The 2a!! out 2rom the ase has been understanda#!% e1tensi"e and one parti u!ar method o2 ontaining pu#!i order *no$n as 3*ett!ing4 has come under scrutiny once more. 69ett!ing4 is a $ide!% used ta ti to ontro! !arge ro$ds or protestors.

't involves the cordoning 45 of an area where the police can determine the e/it point.

2olice have regularly used this method and its use has no$ #een deemed !a$2u! #% the ECt(R in Austin and others "' the U9

The app!i ants !aimed that Arti !e A o2 the Con"ention $as "io!ated $hen protestors and passers #% $ere essentia!!% he!d apti"e 2or up to = hours'

The ECt(R did not #e!ie"e that there $as a "io!ation o2 the Arti !e. The "ourt held that po!i e had #een re6uired to ontain !arge ro$d o2 peop!e in di22i u!t onditions and this was the 6!east intrusi"e4

means o2 prote ting the pu#!i 2rom "io!en e.

Nationa! $ars "ethod to prevent terrorism by policing is draconian The 6$ar on terror4 is no$ a ommon 2eature o2 rime pre"ention and detection in this country.

)o!i e appear to tour the streets in 2ar greater num#ers than the% did prior to 9@11 and ;@; and we as itiBens are a!! en ouraged to #e 2ar more "igi!ant as we go about our everyday lives. ;@; refers to the terrorist attac&s, which too& place in ?<<E in 7ondon. E people died and over ;<< were in%ured. 't was the largest and deadliest terrorist attac& on 7ondon in history

#uch a response is understandable.

.ut it is also responsible for insti!!ing a gro$ing sense o2 paranoia #et$een itiBens.

'magine the following- a %oung Asian man is $earing traditiona! Mus!im dress'

 #ome ma% 2!in h5 e"en momentari!%5 and $orr% that the man is in 2a t a sui ide #om#er' That $orr% is #orne out o2 e1perien e 2or some peop!e and media filled fear for others. #uch paranoia is understanda#!e if not legitimate. To om#at this 2ear, $e e1pe t our go"ernment and our po!i e 2or e to *eep us sa2e'

The methods 2or ensuring that sa2et% ma% appear dra onian but $e o2ten thin* the% are ne essar% gi"en the urrent !imate'

The 6$ar on terror4 is the de2en e 2or po!i ing which would otherwise appear indefensible. The reality is that for these po!i ing methods to #e tru!% de2ensi#!e $hen in times o2 2ear 2or nationa! se urit%' 1s John .adham has commented6,ra onian anti8terrorist !a$s ' ' '

ha"e a 2ar greater impa t on human rights than they ever will on crime9.

-ar on terror effect on liberty, more 'sian being searched #ince the 6war on terror9 began after 9@11 the !a$ en2or ement agen ies ha"e #een granted e"er more e1tensi"e po$ers to attempt to ounter terrorism' The head of the 1nti+Terrorist .ranch of the 8etropolitan 2olice said6pu#!i sa2et% demands ear!ier inter"ention4' (arlier intervention reBuired greater stop and search powers than were already in e/istence. 8oec&li charts the in rease in po!i e po$ers. The Terrorism A t >@@@ had already created a power for police officers to carry out #!an*et stop and sear hes' The 1nti+Terrorism "rime and #ecurity 1ct ?<<1 introduced new powers of the Treasury to 2reeBe terrorist 2unds and control orders on terrorist suspects can be imposed under the Terrorism 1ct ?<<E.

 The Terrorism 1ct ?<< gave police the power to detain terrorist suspects for up to ?! days and the "ounter+Terrorism 1ct ?<<! e1tended this !imit to <> da%s. The Terrorism 2revention and 'nvestigation 8easures 1ct ?<11 a#o!ished ontro! orders and introdu ed a ne$ regime5 $hi h is designed to prote t the pu#!i 2rom terrorism. +ur interest here is once again to consider ho$ 2ar these po$ers ha"e impa ted upon indi"idua! !i#ert%. Dust as the stop and sear h po$er under )ACE could be seen to be disproportionately aimed at &!a * itiBens #o terrorist po$ers ha"e #een disproportionate!% app!ied to Asian itiBens. 8oec&li suggests that after 9@11 the searches of Asian persons rose #% C@> per ent' &!a * and Asian peop!e $ere more !i*e!% to #e stopped under

the pro"isions o2 the Terrorism A t >@@@ than $hite peop!e'

,iscrimination issue and privacy issue There is apparent!% ine"ita#i!it% to this rise. (aBe! &!ears, ,ome *ffice 8inister at the time, stated that it 6ine"ita#!% means that some of our ounter8 terrorist po$ers will be disproportionate!% e1perien ed #% peop!e in the Mus!im ommunit%4. The Chie2 Consta#!e of the .ritish Transport 2olice at that time was even blunter when he said+ 6.e shou!d not $aste time sear hing o!d $hite !adies. 't is going to be disproportionate. 't is going to be young men, not e/clusively, but it ma% #e disproportionate $hen it omes to ethni groups4.

 Moe *!i suggests that this strateg% is tantamount to ethni pro2i!ing )hen he was e/ploring the %udgments in the R .$illan/ "' Commissioner of &olice for the "etropolis case, he e/plores ho$ this 2orm o2 pro2i!ing an #e ompati#!e $ithin the EC(R which under Arti !e 1< prohi#its dis rimination. Lord S ott in Gi!!an omments that the stop and sear h po$ers under Terrorism 1ct ?<<< may 6re6uire some degree of stereotyping in the selection of the persons to be stopped and searched and arguably therefore, some degree o2 dis rimination4'

 ,e felt this $ou!d #e "a!idated #% e1isting !egis!ation $hi h permits dis rimination on the grounds o2 ra e i2 this is 2or the purpose o2 sa2eguarding nationa! se urit%. This in itse!2 is5 to Moe *!i5 di22i u!t to de2end. Targeting terrorists is the purpose o2 the Terrorism A t >@@@ #ut not persons o2 Asian appearan e who may, %ust may, be in"o!"ed in terrorist a ti"it%' This is di22i u!t to de2end in the onte1t o2 Arti !e 1< Ddis riminationE, which can be mobilised when the Arti !e A right to pri"a % has #een in2ringed'

&ractical difficulty- 0ot all 'sians are "uslims and not all "uslims are (errorist Moe *!i is a!so more on erned on a pra ti a! !e"e! $ith the use o2 Asian appearan e as a factor, which defends this discriminate form of stop and search. ,e points out that on!% ha!2 o2 those $ho are Asian are Mus!im and so the criteria are too broad. Man% $ho are stopped $i!! not #e Mus!im and, se ond!%5 the o"er$he!ming ma0orit% o2 those $ho are Mus!im ha"e nothing to do $ith terrorism. These #road riteria serve once again to a!ienate the ethni minorit% ommunities and gi"e po!i e the po$er to inter2ere $ith peop!e4s !i"es. The %ustification is that these peop!e are o2 a parti u!ar ethni origin and the urrent threat means that this inter2eren e is ine"ita#!e. Ine"ita#!e 2or some though not 2or a!!'

1thnic profiles cause death of innocent Terrorist attac&s are tragic.

They often involve an indiscriminate ta&ing of civilian life and represent a brea&down in the democratic process, which is there to ensure that dissatisfied citi0ens can voice their concerns about national and international developments, which affect them either directly or indirectly.

In reased po$ers o2 po!i ing ma% #e ne essar% to ontain the threat o2 terror and to ensure nationa! se urit% is maintained' ,owever these powers should not be used at any cost. *ne tragi reminder o2 the need to de2end de isions ta&en in times o2 heightened se urit% is the death o2 Jean Char!es de MeneBes.

 Dean "harles, ?;, was a .ra0ilian Aational who had been living in 7ondon since ?<<?. *n ?? Duly ?<<E he $as shot dead #% Metropo!itan )o!i e armed officers. The armed officers shot him eight times. =ollowing his death it transpired that the police had been following Dean "harles believing that he fitted the description of a terrorist suspect who had been foiled the previous day in their attempt to blow up a 7ondon Underground train. 8ystery surrounds the identity of the armed officers who shot him. This $as a tragi ase o2 mista*en identit%. 1larming too was the response of the police to the incident. 'nitially it was claimed that Dean "harles had been wearing bul&y clothes in the height of summer, he

had %umped over the tic&et harrier, which added to the officers suspicions and had not responded when challenged before he was shot. The 'ndependent 2olice "omplaints "ommission later confirmed that none of this was true.

't would appear that eyewitnesses and police fabricated these details in an attempt to provide some 6%ustification9 for the incident.

)u#!i rea tion appeared mi1ed' #ome appeared to recognise that the police had made a sp!it8 se ond de ision and it $as tragi ' 't appeared to some that it $as o!!atera! damage in the 3$ar on terror4. Three $ee*s ear!ier A> peop!e had died, e/cluding 3 suicide bombers, in the ;@; attac&s and it was understandable that the police should be vigilant and tragedies happen. +thers $ere 2ar more riti a! #e!ie"ing this to #e a 2urther e1amp!e o2 po!i e #ruta!it%.

 )hat does appear evident is that the e1er ising o2 po!i e po$ers needs to #e #ased on more a urate inte!!igen e if such incidents are to be avoided. Jean Char!es $as &raBi!ian and mistoo* 2or a natura!ised &ritish CitiBen $ho $as origina!!% 2rom Ethiopia. *ne man was #outh 1merican, the other of 1frican descent. Ethni pro2i!ing in this instan e had tragi onse6uen es' 1s Moe *!i speculates- 6+ne $onders $hether the shooting of Dean "harles de 8ene0es . . . $as not a tragi onse6uen e o2 the o"er re!ian e on stereot%pi a! hara teristi s su h as ethni appearan e in anti terrorism operations9. The lesson is clear.

&rotect the liberty from terrorism but at the same time diminish the protection liberty from state .hen po!i e po$ers are in reased for the protection of citi0ens from terrorist attac&, the% need to #e emp!o%ed e"en more are2u!!% to ensure that itiBens do not #e ome as "u!nera#!e to the po!i e as they do to the terrorist attac&. Lu ia Fedner e/plains it best when she concludes

)hen the pursuit of security is permitted to pro eed at su h a speed and $ith su h s$a% as to tramp!e #asi !i#erties, it runs ounter to the "er% purpose o2 se uring !i#ert%.

*ne of the ironies of pursuing security is that $hi!st !aiming to prote t !i#ert% 2rom one sour e 8 terrorism, but it diminishes the prote tion o2 !i#ert% 2rom another 8 the state'

Ne$ Se tion: )+.ERS +- ARREST AN, (UMAN RIG(TS Related to 2R', when arrested, liberty is suspended 's there, then, a principled way that we could approach policing: To what e/tent the ommon !a$ prin ip!es and rules that ensure that po!i e po$ers are !imited and used in an a ounta#!e $a%: )hat is the re!ationship #et$een the ommon !a$ and human rights !a$ $hen it omes to po!i e po$ers: These are the Buestions that animate our discussion in the following section of the chapter. +ur 2o us is on po$ers o2 arrest because this de2ines the point at $hi h the itiBens !i#ert% is suspended and the% enter the rimina! 0usti e pro ess'

Common law must stri%e a balance btw crime control and the power not easy to be abuse The ommon !a$ has a!$a%s understood that arrest ser"es a "a!id 2un tion in the apprehension o2 rimina!s or those suspected of being criminals. (o$e"er, it is a po$er that an #e easi!% a#used' The ommon !a$ has there2ore attempted to sa2eguard indi"idua! !i#ert%, or 6the sense of 2reedom 2rom ar#itrar% detention4. 'ndeed, the prote tion o2 3persona! 2reedom4 is 2undamenta! to the !i#ertarian ons ien e o2 the ommon !a$ that Lord &ingham described as 6dating #a * to Chapter C: o2 Magna Carta 1?1E9. A' G' (ome Se retar% 4?<<35 7iberty is given specific form in the writ of habeas corpus, the right to damages for false imprisonment and the narrow interpretation of any e/ceptions to the 6most basic guarantee of individual freedom9.

 )hile it is true to say that the common law provides remedies for unlawful arrest, #ut $e need to !oo* riti a!!% at the onstitution o2 arrest in #oth ommon !a$, and the )o!i e and Crimina! E"iden e A t H)ACEI 1:;<' The critical issue is- does the ommon !a$ a hie"e a #a!an e #et$een rime ontro! and due pro ess/ )e will e1amine this Buestion #% onsidering the 3thresho!d4 2or a "a!id arrest' This is a fundamental concern, as the test itse!2 must ensure that po$ers o2 arrest are not eas% to a#use, $hi!st a *no$!edging the pra ti a! issues that 2a e a po!i e o22i er ma*ing an arrest'

!uspicion is safeguard and can based on not admissible evidence 1s argued earlier in Shaa#an #in (ussien "' Chong -oo* 9am, Lord ,e"!in pointed out that the threshold condition or the 6test of reasona#!e suspi ion ' ' ' has e1isted in the ommon !a$ 2or man% %ears4. 'n ,um#e!! "' Ro#erts, S ott J e/plained that reasona#!e grounds 2or 3suspi ion o2 gui!t4 are a 3sa2eguard4 designed 2or the 3prote tion o2 the pu#!i 4. ,owever, as he also argued, the 6re6uirement is "er% !imited4 and 2a!!s 2ar short o2 the e"iden e re6uired 2or on"i tion. 8oreover, suspi ion an #e #ased on matters that are not 3admissi#!e e"iden e4.

3eldman- the standard of suspicious too e)tensive

The pro#!em is pre ise!% this 3ma!!ea#i!it%4 o2 the standard re6uired for arrest.

*ne would have thought that i2 the ommon !a$ $ere so ommitted to the prote tion of civil liberties, it $ou!d ha"e re6uired a 2ar more e1a ting thresho!d.

)ACE- police arrest when reasonable suspicious to has been committed and being committed crime and preventative power of arrest 'n order to investigate these issues, we need to loo& in more detail at the contemporary law defining arrest. )o$ers o2 arrest $ithout $arrant are now primari!% de2ined #% statute' (o$e"er, as has been pointed out, )ACE preser"es the 3an ient4 po$er o2 the itiBen4s arrest, and this informs the way in which arrest po$ers are des ri#ed #% the A t. The most important section is ><H<I' 1n indi"idua! an ma*e an arrest if there are reasona#!e grounds 2or suspe ting that an arresta#!e o22en e is in the pro ess o2 #eing ommitted or $hen an arresta#!e o22en e has #een ommitted'

 The powers of arrest given to police officers are more e/tensive. 1 police officer an arrest on reasona#!e grounds o2 suspi ion that an arresta#!e o22en e has #een ommitted' 'n other words, an o22i er is e22e ti"e!% prote ted 2rom a i"i! a tion i2 he ma*es an arrest and an o22en e has not #een ommitted. 1 onsta#!e a!so has a pre"entati"e po$er o2 arrest that is not a"ai!a#!e to a pri"ate itiBen.

The on!% e1 eption is the power to ma&e an arrest $hen an imminent #rea h o2 the pea e is anti ipated'

A itiBen Has $e!! as a onsta#!eI ma% then ma*e a pre"entati"e arrest.

1. Sa2eguard o2 ommon !a$ in 3suspi ion4 )ACE preser"es the 2undamenta! ommon !a$ sa2eguard on arrestthe thresho!d o2 reasona#!e suspi ion. .ut how do the courts understand this &ey term:

!uspicion made at the time of arrest The reBuirement of 6reasona#!e suspi ion4 is #ased on the in2ormation a"ai!a#!e to the arresting officer at the time that s7he ma*es the arrest' Redmond8&ate "' ,)) This principle is elaborated by a later case- Clarke v. DPP+ It must #e made !ear to the court $hat the o22i er had in mind $hen he or she made the arrest The court has determined that this issue must be assessed at the time of arrest and not 2rom the perspe ti"e o2 hindsight. Redmond &ate "' ,))

't is also necessary to ac&nowledge that an arrest ma% #e #ased on a 3spur o2 the moment4 decision. C. v. Chief uperintendent of Police! #troud,

#o, riti a! 6uestions relate to what the o22i er *ne$ or had in mind when he or she made the arrest'

Reasonable suspicious- objective test, ordinary cautious man will suspect that he was guilty but not conclude &ut ho$ are $e to understand the on ept o2 reasona#!e suspi ion: Castorina "' Chie2 Consta#!e o2 Surre% *ne of the central authorities is "astorina v. "hief "onstable of #urrey, the trial %udge defined 6reasonable cause9 as an 6honest belief founded upon reasonable suspicion leading an ordinary cautious man to the conclusion that the person arrested was guilty of the offence9. This argument was based on the authority of Fumbell v. Goberts that applied to arrests the principle that 6everyone is innocent until proven guilty9. The Court o2 Appea! disagreed, asserting that the proposed test was too severe and shou!d #e o#0e ti"e. The trial %udge9s reference to 6honest belief9 was misleading, as it raised Buestions of sub%ective belief.

 Thus, it would appear that reasonable cause mean that an ordinar% autious man $ou!d it $ou!d #e enough to suspe t that he $as gui!t%. .ut does not mean the man will conclude that the person was guilty of the offence;

Suspe t- means arrest that person with a view to 4uestion her at police station "astorina was further elaborated in (o!gate8 Mohammed "' ,u*e' The ,ouse of 7ords determined that6where a police officer reasona#!% suspe ts an individual of having committed an arrestable offence, he ma% arrest that person $ith a "ie$ to 6uestioning her at the po!i e station4. This de ision an on!% #e 0udi ia!!% re"ie$ed i2 the onsta#!e a ted improper!% #% ta*ing something irre!e"ant into a ount.

Comment- case law more toward criminal control

"ommentators have pointed out that this ase !a$ errs too 2ar on the side o2 rimina! ontro!' The law also allows the space for the in"estigation o2 rime to #e #ased on 3hun hes4.

An arrest is made to pro"ide reasons 2or either on2irming or den%ing a po!i e o22i er4s 32ee!ing4 that an indi"idua! has ommitted an o22en e' The ourts ha"e sho$n themse!"es un$i!!ing to 6uestion those de isions that arresting officers have made. 8oreover, s'>A of 21"( created arrest po$ers 2or non8arresta#!e o22en es'

!ometimes court will constraint the power and sometime it do otherwise The fact that the ourts ha"e #een are2u! to onstrue this po$er narro$!% indi ates that there ma% #e due pro ess onstraints o"er these additiona! po!i e po$ers. (o$e"er i2 $ou!d #e $rong to suggest that the ourts ha"e a!$a%s ta*en this approa h to arrest powers. )hile in some cases the courts are attempting to control power of arrest, in others the% ha"e #een !ess inter"entionist' =or instance, the po!i e ma*e e1tensi"e use o2 ommon !a$ #rea h o2 the pea e po$ers H both to ma*e arrests and to ta*e steps short o2 arrest' 'n Chie2 Consta#!e o2 C!e"e!and )o!i e "' M Grogan, po$ers o2 arrest 2or #rea h o2 the pea e $ere onstrued narro$!% Court interfere

 &ut in Austin v5 Metropo!itan )o!i e Commissioner ["##$]! the ourt $as !ess $i!!ing to e1amine the use o2 #rea h o2 pea e po$ers' 1s these po$ers are use2u! in po!i ing pu#!i order situations, it is !i*e!% that the ourt does not $ant to inter2ere unduly with operational decisions, although it will censure (disapprove) more e/treme abuses. There is a related issue is the e/tent to which the ourts are $i!!ing to 6uestion the arrest po$er o2 pri"ate se urit% guards. Civen the privatisation of policing, this matter should be given more attention than it presently receives.

?. Sa2eguard o2 ommon !a$ in 3arrest4 )e can observe a similar pattern in relation to the court9s consideration of the safeguards on the power of arrest.

'rrestor ma%es clear the person under arrest by oral or physical 1t common law, it $as ne essar% 2or the person ma*ing the arrest to ma*e it !ear to the person under arrest #% either ph%si a! means or through !ear ora! ommuni ation that s@he had been arrested. 'n terms of the common law definition of arrest, the e!ement o2 ompu!sion is a!so essentia!' The arresting o22i er must, therefore, indi ate that the suspe t is under arrest either ph%si a!!% or ora!!%. The problem in relation to indi ating arrest #% ora! means a!one is that it ma% not indi ate the re6uired ompu!sion. A!derson "' &ooth 419 95

'rrestor must tell the reason of arrest and arrestee be informed as soon as is practicable after arrest )ACE supp!ements the ommon !a$ with further reBuirements. 1n arrest under )ACE has to meet with the 2orma!ities contained in s'>;H1I' Se tion >; states that the arrest is not !a$2u! unti! the person arrested is to!d o2 the reason 2or arrest, and this must be done as soon as is pra ti a#!e a2ter the arrest' 8oreover, the person arrested must #e in2ormed o2 the ground o2 the arrest under s'>;HCI' 'n s.?!($) an arrest is not !a$2u! un!ess the arrestee is in2ormed o2 the ground for arrest Aote- the re6uirements under s'>; are stri t!% separate 2rom this ne essit% to indi ate that the detainee is under ompu!sion'

(he man is free prima facie and should tell the reason for intervene of freedom and if mista%e then can e)plain and call attention to other persons Christie "' Lea hins*% gives the reason of 6inform the ground9 a person is prima 2a ie entit!ed to persona! 2reedom 4and5 shou!d *no$ $h% 2or the time #eing his persona! 2reedom is #eing inter2ered with . . . No one5 I thin*5 $ou!d appro"e of a situation in which when the person arrested as&ed for the reason, the policeman replied6that has nothing to do $ith %ou: ome a!ong $ith me . . 1nd there are pra ti a! onsiderations ... if the charge ... is then and there made &nown to him, he has the opportunit% o2 gi"ing an e1p!anation o2 an% misunderstanding or of a!!ing attention to the other persons 2or $hom he ma% ha"e #een mista*en, with the result that 2urther in6uiries ma% sa"e him 2rom the onse6uen es o2 2a!se a usation . . .

 'n Le$is " Chie2 Consta#!e o2 South .a!es 419915 the p!ainti22s $ere to!d o2 the 2a t of the arrest, #ut the po!i e de!a%ed te!!ing them the grounds' The CA stated that an arrest arose as a 6uestion o2 2a t 2rom the depri"ation o2 a personJs !i#ert%. 1s it $as a ontinuing a t, $hat had started as an un!a$2u! arrest ou!d #e ome a !a$2u! arrest. In other $ords5 an arrest #e omes !a$2u! on e a ground is gi"en'

'rrestor cannot %eep, give false, and failed to inform the ground This statement suggests that the ourts ta*e the re6uirements o2 s'>; $ith great seriousness' The $ords spo*en on arrest are important as they spe i2% the reason 2or the arrest and thus give the detained person the 2a tua! #asis 2or an% !ega! ha!!enge' 'f there were no reBuirement to give reasons or the courts allowed a valid arrest to be constituted by vague and imprecise reasons, the law would not effectively prevent the arbitrary use of power. Iiscount #imonds9 words in .i!son "' Chie2 Consta#!e o2 Lan ashire Consta#u!ar% are an instructive guide to the court9s attitude. 1n arresting o22i er is not entit!ed to 3*eep to himse!24 the grounds o2 arrest or gi"e an untrue ground' 'ndeed, 2ai!ure to in2orm the detained person of the correct grounds for arrest onstituted 2a!se imprisonment'

,ecision for criminal control- must practical as well .above is for liberty of the arrestee/ (o$e"er, at the same time, the reBuirement to gi"e reasons 2or arrest annot hinder the pra ti a! tas* o2 ma*ing an arrest' The $ords used #% the arresting o22i er need not #e te hni a!!% orre t + 6' arrest you9 is not necessary, statement of fact enough ,)) "' (a$*ins +The arrest does not need to be confirmed by words such as 6' arrest you9K a statement o2 the 2a t o2 the arrest is su22i ient. 2rovided arrestee &new they had been arrested Fander suggests that the A##asse% 4199<5 has the &ey statement of the law here. There was no need for the technical or precise language to be used, pro"ided the person *ne$ that the% had #een arrested. This $as a 6uestion o2 2a t to #e ans$ered #% the 0ur%'

Time given the reason must practical ,)) "' (a$*ins 419!!5 is authority for the fact that i2 it is not pra ti a#!e 2or reasons to #e gi"en at the time o2 the arrest, the arrest is !a$2u! and remains so unti! su h time as reasons shou!d #e gi"en'

Ne$ Se tion: ARTICLE A preser"e the !i#ert%5 CL a!$a%s onsistent To what e/tent is the common law consistent with (uropean human rights: Arti !e A is an essentia! e!ement of human rights, as it is on erned $ith !imiting the po$er o2 the state5 and preser"ing the !i#ert% o2 the indi"idua!. 'n 9urt "' Tur*e%, the ("t,G stressed that 6the 2undamenta! importan e of the guarantees contained in Arti !e A for securing the right of individuals in a demo ra % to #e 2ree 2rom ar#itrar% detention at the hands o2 the authorities4 4and to the need to interpret narrowly any e/ception to5 6a most #asi guarantee o2 indi"idua! 2reedom4' This statement of genera! prin ip!e appears #road!% onsistent $ith the "a!ues arti u!ated #% the ommon !a$ ourts'

'rt 6.7/- deprive liberty based on art5 and law Arti !e AH1I states the fundamental guarantee- depri"ation o2 !i#ert% an on!% ta*e p!a e in the ir umstan es stated in the Arti !e, and on!% 3in a ordan e $ith a pro edure pres ri#ed #% !a$4' The remainder of E(1) covers these circumstances. They range 2rom the reBuirement that detention shou!d #e 3a2ter on"i tion #% a ompetent ourt4 through to arrest 2or non8 omp!ian e $ith a ourt order5 to detention o2 "arious !asses o2 persons' This basic summary gives some sense of the range of the 1rticle. 1s we need to focus on what it tells us about arrest, we are not concerned with the challenges to mandatory life sentences, the confinement of the mentally ill or the concept of the 6supervision of minors9 that emerge in 1rticle E %urisprudence. 1lthough this approach does limit our understanding of the 1rticle, it does allow us to focus on the

paradigmatic instance of the suspension of a person9s liberty.

6 .7/.c/- reasonable suspicion and purpose to bring before competent legal authority #o far as this first paragraph of the 1rticle is concerned, our focus is on E(1)(c), which states that detention is !a$2u! to the e1tent that it is #ased on 3reasona#!e suspi ion4 and 6effected for the purpose o2 #ringing Dan indi"idua!E ' ' ' #e2ore the ompetent8 !ega! authorit%4. ,ow is reasonable suspicion defined:

1. ECt(R8 reasona#!e suspi ion The ECt(R has held that 6the Jreasona#!enessK of the suspicion on which an arrest must #e #ased 2orms an essentia! part o2 the sa2eguard against ar#itrar% arrest and detention4. 1rticle E(l)(c) reBuires that some 2a ts e1ist $hi h 3$ou!d satis2% an o#0e ti"e o#ser"er that the person concerned ma% ha"e ommitted the o22en e9, although the court pointed out that reasona#!eness depends on the 2a ts o2 the ase. %o&! Campbell and 'artley v. (nited )ingdom

'nti-(errorism- arrest without reveal info but 1Ct2R held some info should justified detention 1 fair proportion of the cases #rought against the U9 in relation to this point on ern anti8 terrorism !egis!ation in Northern Ire!and. 1nti+terrorism legislation tends to a!!o$ arrest to ta*e p!a e on the #asis o2 in2ormation that, for reasons of security, an #e $ithhe!d 2rom the person arrested or e"en 2rom the ourt. The %urisprudence of the "onvention attempts to balance a tension between competing values. It re ognises that non8dis !osure is 0usti2ia#!e #ut that the on ept o2 reasona#!eness shou!d not #e e1p!oited #% the state and its agen ies' Thus, the state is under a dut% under Con"ention !a$ to re"ea! at !east some in2ormation that 0usti2ies detention.

1Ct2R- #rogan- purpose is to 4uestion the detainee about the suspicion is enough info even can based on inadmissible evidence or which investigation on bad faith cannot be proved )hat is the nature of this information: The test is not too stringent' In2ormation used to 0usti2% an arrest does not ha"e to #e o2 the 6ua!it% to 0usti2% charges against the detainee. 't can be lin&ed to an arrest, the purpose o2 $hi h is to 6uestion the detainee a#out the suspi ion that might have arisen that made the arrest ne essar% in the first place. *rogan and +thers v. (nited )ingdom 'n +J(ara, for instance, the applicant was arrested on suspi ion o2 murder. ,e remained silent for si/ days

 The ECt(R did not 2ind a #rea h o2 Arti !e AH!IH I, partly because the applicant had not raised this issue in the domestic courts. *n the facts, it was thus !egitimate to re!% on the e"iden e o2 in2ormers to 0usti2% the detention. &rogan is !arge!% onsistent $ith this position. 't was possi#!e to re!% on e"iden e that ou!d not #e produ ed in ourt and, to the e1tent that it $as not possi#!e to sho$ that the in"estigations $ere moti"ated #% #ad 2aith, the detention o2 those suspe ted o2 terrorist o22en es $as 0usti2ia#!e'

4fact below not so important as it merely as& the Buestion- what is the standard for reasonable suspicion:5

-o1- reasonable suspicion presupposed fact that would satisfy objective observer test but has to depend on circumstances as well 'n -o1, the ("t,G had held that reasonable suspi ion 3presupposed4 2a ts that $ou!d 3satis2% an o#0e ti"e o#ser"er that the person on erned ma% ha"e ommitted the o22en e4. 'mportantly, though5 reasona#!eness re6uired that a!! re!e"ant ir umstan es #e ta*en into a ount' "ircumstances cannot denied the 6attac& of terrorist as well9 This5 o2 ourse, meant that the specific concern with the in"estigation o2 terrorist o22en es had to #e ta*en serious!%. The 6ris* o2 !oss o2 !i2e and human su22ering4 re6uires that the authorities 3a t $ith utmost urgen %4'

-o18 reasonable suspicious in terrorist may have to act on info from secret sources but cannot compromised the safeguard in art56 and at the same time cannot compromised the practical investigation 't may be ne essar% to a t on in2ormation 2rom sensiti"e or se ret sour es. This ma% #e 3re!ia#!e4 #ut annot #e made *no$n to the suspe t for fear of compromising the sources. Therefore the standard that 0usti2ies 3reasona#!e suspi ion4 annot #e the same as that used in 3 on"entiona! rime45 but this does not mean that 3reasona#!eness4 an #e 3stret hed4 to the point that the 3sa2eguards4 put in p!a e #% Arti !e A are negated. 1t the same time, the Arti !e annot #e interpreted to 3put disproportionate di22i u!ties in the $a% o2 the po!i e authorities of the "ontracting #tates in ta*ing e22e ti"e measures to ounter organised terrorism4.

 This element of appreciation means that the ECt(R $i!! not re6uire the ompromise o2 se ret sour es of information in anti+terrorism cases. (o$e"er5 a go"ernment must 32urnish at !east some 2a ts or in2ormation apa#!e o2 satis2%ing the Court that the arrested person $as reasona#!% suspe ted o2 ha"ing ommitted the a!!eged o22en e4' This re6uirement #e omes a!! the more serious $hen the re!e"ant !a$ sets the thresho!d o2 3honest suspi ion45 $hi h is not as e1a ting a standard as 3reasona#!e suspi ion4'

1pplication in 8urray case- !ufficient suspicious but not to restrict protection under 'rt56 and deal with terrorist under ROL )e will loo& in detail at Murra% "' U9 to determine what is at sta&e in these terrorism cases. Murra% had #een arrested under section 13 of the Aorthern 'reland ((mergency 2rovisions) 1ct 19;! on suspi ion o2 #eing in"o!"ed $ith the pro urement o2 arms 2or a terrorist organisation5 the Irish Repu#!i an Arm% DIRAE' .efore the ("t,G, Murra% argued that the arresting o22i er did not ha"e the 3re6uisite suspi ion4 to 0usti2% the arrest. The ("t,G began its %udgment by referring to the political conte/t of the case, noting that- 6due account will be ta&en of the special nature of terrorist crime, the threat it poses to democratic society and the e/igencies of dealing with it9.

8ust G*7, protect the liberty under 1rt. E -o!!o$ing &rogan, the thresho!d o2 suspi ion 2a!!s #e!o$ that re6uired to #ring harges. The !ength o2 detention also had to be ta&en into account. *n the facts of the instant case, it had #een !imited to the ma1imum period a!!o$ed #% the A t5 $hi h is 2our hours. The ("t,G9s #a!an ing a t re6uired them to a *no$!edge the need to om#at terrorism #ut not to restri t the prote tion o22ered #% Arti !e A' The following paragraph is worth citing in full1s to the present case, the terrorist campaign in Aorthern 'reland, the carnage it has caused over the years and the active engagement of the 2rovisional 'G1 in that campaign are established beyond doubt.

The Court a!so a epts that the po$er o2 arrest granted to the Arm% by section 13 of the 19;! 1ct represented a bona fide attempt #% a demo rati a!!% e!e ted par!iament to deal with

terrorist crime under the ru!e o2 !a$'

#uffient suspicious according to the fact =rom this position, the ECt(R an approa h the go"ernment4s argument mu h more positi"e!% than the "ommission and atta h a mu h greater !e"e! o2 redi#i!it% to the e"iden e against Murra%' App!%ing -o1, though, the go"ernment sti!! had to sho$ that there $ere some 2a ts to %ustify honest suspicion. The ECt(R onsidered that the 2a t that Murra% had asso iated $ith her #rothers in the United #tates, that they $ere prose uted 2or attempting to pro ure arms, and that the evidence showed that the% $ere !iasing $ith someone 3trust$orth%4 in Northern Ire!and, was su22i ient to pass the minimum standard.

?. ECt(R8 detain7arrest sa2eguard )e now turn from our consideration of the !egitimate grounds o2 detention to the se ond paragraph o2 the Arti !e that spe i2ies the sa2eguards that should operate. These have been described as 6e!ementar%4 and an 3integra!4 part o2 Arti !e A. They state that a person $ho has #een arrested shou!d *no$ that this is the ase. %o&! Campbell and 'artley v. (nited )ingdom

'rrestee must promptly being told under arrest with simple nontechnical language, not necessary to specific precise crime The Arti !e re6uires that- 6an% person arrested must #e to!d, in simp!e, non8te hni a! !anguage that he can understand, the essentia! !ega! and 2a tua! grounds for his arrest9. The ("t,G has also held that whilst it is necessary that the detained person must be prompt!% to!d that s7he is under arrest, the arresting o22i er need not te!! the detainee e"er%thing' )romptness must #e assessed on the 2a ts o2 the ase*ordovskiy v. ,ussia 'ndeed, there appears to be something of a sliding scale. I2 a person is arrested on the #asis that s7he has ommitted a rime, it is not ne essar% to spe i2% the pre ise rime or charge nor e"en to use a parti u!ar 2orm o2 !anguage' E1tradition pro eedings re6uire a !o$er thresho!d still, a!though the

court has insisted on the re6uirements o2 promptness. aadi v. () -udgment

Reason 2or this sa2eguard8so as to be able, if he sees fit, to apply to a court to challenge its lawfulnessto prevent arbitrary power of state The fundamental reason for this safeguard is to allow the detained person to 3 ha!!enge4 the !a$2u!ness o2 his7her arrest. This lin&s together paragraphs (?) and (3) of 1rticle E. 1n eBually important re6uirement is that the person is to!d 3prompt!%4' There is a great deal of case law on this element of the 1rticle, and we can only review the fundamental reason for this particular reBuirement. The court9s e/planation of the promptness re6uirement !in*s it to prote tion against the 3ar#itrar%4 po$ers of the state. The *o.ano

 The court has further elaborated this point Dudicial control of interferences by the e/ecutive ... is implied by the rule of law 4this is5 one of the fundamental principles of a democratic society . . . 4and5 is e/pressly referred to in the 2reamble to the "onvention4.5 #ection E($) is seen to flow directly from the fundamental values of the "onvention. The ECt(R4s approa h a *no$!edges the 2ine !ine that e1ists #et$een !egitimate po!i ing and the use o2 po$er un he *ed #% !a$'

&romptness as important safeguard- judges can justified the lawfulness of detention according to fact, public interest and liberty of the detainee This means that the ECt(R has #een *een to interpret the $ord 3prompt4 in a very narro$ $a%, as it means a person has been kept from appearance before a judge or a court through an e&ecutive act that has not #een 0usti2ied #e2ore an independent #od%' That mean after be detained, it is all thru e/ecutive9s act without %ustified by independent body 4court5, so promptness in this issue is very important, so that the arrestee can challenge the lawfulness E"en in anti8terrorism ases, the ECt(R has insisted on the need to #ring a detainee #e2ore a ourt' 'f we lin& E($) with E(3), we can understand more precisely the schema of the 1rticle. Arti !e AH<I spe i2ies that a detained person must ha"e the opportunit% to ha!!enge the 6!a$2u!ness of his detention9.

 This, in turn, reBuires further guarantees "ertain procedural and substantive guarantees ensure that %udicial control- the 0udge (or other officer) #e2ore $hom the a used is 3#rought prompt!%4 must be seen to be independent o2 the e1e uti"e and o2 the parties to the proceedings; that 0udge, having heard the accused himself, must e1amine a!! the 2a ts arguing for and against the e/istence of a genuine re6uirement o2 pu#!i interest %ustifying, with due regard to the presumption o2 inno en e, a departure from the rule of respect for the accused9s liberty, and that 0udge must ha"e the po$er to order an a used4s re!ease. .*.C. v. (nited )ingdom

(a#eus orpus although can be used against arbitrary state, however, in limited nature of review, e)ecutive enjoy wide discretion during emergency, court s role will decrease, therefore it is no enough in relation to art5 6 't would be far too !imited to thin* in terms o2 the $rit o2 ha#eus orpus to address these issues from the perspective of the common law. =rom the perspective of the common law, this gives us the terms in which to %udge the operation of habeus corpus. (a#eus orpus has been des ri#ed as 3the 2undamenta! instrument 2or sa2eguarding indi"idua! 2reedom against ar#itrar% and !a$!ess state a tion4 ,arris v. Aelson (19 9). 1lthough it is perhaps !ess important in Eng!ish !a$ toda%, it retains a ho!d on the !ega! imagination' 't is the means by which the ourt an ma*e a determination o2 the !ega!it% o2 a person4s detention'

 1s well as Buestioning the technical reasons for an arrest and detention, ha#eus orpus an a!so #e used to en6uire into the a#use o2 po$er' e/ parte #arno 4191 5 'ndeed, the ECt(R has suggested that in certain circumstances, the $rit is itse!2 too !imited' L' "' United 9ingdom 6A!though L. had access to a court which ruled that his detention $as M!a$2u!N in terms o2 Eng!ish !a$, #ut this annot o2 itse!2 #e de isi"e as to $hether there $as a su22i ient re"ie$ o2 M!a$2u!nessN 2or the purposes o2 Arti !e A par. 39. (o$e"er, at para E!, the court commented6Aotwithstanding the limited nature of the review ... the remed% o2 ha#eas orpus can on occasions onstitute an e22e ti"e he * against ar#itrariness in this sphere.

 It ma% #e regarded as ade6uate, for the purposes o2 Arti !e A para 3, 2or emergen % measures 2or the detention o2 persons on the ground o2 unsoundness o2 mind. The authorit% empo$ered to order emergen % detention o2 this *ind must, in the nature of things, en0o% a $ide dis retion5 and this ine"ita#!% means that the ro!e o2 the ourts $i!! #e redu ed4

&oth sa2eguard seem no enough i2 app!ied to Murra% ase )hat should we ma&e of the terrorism conte/t of these cases: 1lthough the nature of terrorist offences means they must be policed in a different way to non+terrorist criminal activity, has the ECt(R ta*en into a ount the rights o2 the suspe ts in an% meaning2u! $a%/ Argua#!% DNoE, in some cases, and Murra% would be a good e/ample there are factors that suggest the ourt has eded too mu h to e1e uti"e po$er. The standard of suspicion too low Ta*ing into a ount Murra%4s hea!th, the 2a t that she had 2our %oung hi!dren and no pre"ious rimina! re ord, meant that there shou!d #e 3a higher !e"e! o2 suspi ion4 a 3stri ter standard4 put in p!a e'

Iague inform 8oreover, the interrogation $as hara terised #% 3"ague 6uestions4 and Murra% ou!d not there2ore ha"e ome to the on !usion that she had #een 3in2ormed o2 the reasons 2or her arrest4. 1ccording to the interpretation of the 1rticle in =o/, the #asi sa2eguard o2 Arti !e AH>I was that 6any person arrested must be told, in simp!e5 non8te hni a! !anguage that he an understand5 the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 39. The facts in the instant case suggest that this 3#asi standard4 had #een #rea hed.

Ne$ Se tion: C+URTR++M: SCIENCE AS TRUT(5 EL)ERTS AS TRUT( TELLERS 9mprovement of science, great help to the truth *ne area within the criminal %ustice system, which has in reased dramati a!!%, is the re!ian e on s ien e in the ourtroom. )hilst the (nglish legal system has a long history of consulting e/pert advice on scientific matters the growing developments in forensic science have meant that re!ian e on s ien e is greater than e"er #e2ore' This shou!d #e $e! omed'

 1s Goberts confirms The in reasing use o2 s ien e in the modern criminal process should be welcomed as an o"er$he!ming!% positi"e de"e!opment' -orensi s ien e is good 2or 0usti e in the same way that all modern science improves on the &nowledge and technology of the past 1eroplanes are more effective conveyances than hot+air balloons, &ey+hole surgery is preferable to treatment with leeches, and rape is easier to pro"e $ith ,NA e"iden e than $ithout it' 't is the gro$th o2 re!ian e on ,NA e"iden e which is to be parti u!ar!% $e! omed' ,istorically the criminal trial used $itness testimon% and statements #% the a used along with documents and rea! e"iden e to attempt to esta#!ish truth. 1longside lawyer submissions and %udicial directions this was thought to

ma*e 2or a ourt s%stem which although adversarial did ensure that the truth $as esta#!ished' The celebrated mis arriages o2 0usti e cases from the 19;<s have all demonstrated the !imitations o2 these methods' Cuildford =our! .irmingham #i/ and 8aguire #even ,NA is more 2oo!proo2.

'8 ,0' although more foolproof but dissuade other compelling evidence as well (o$e"er, ,NA e"iden e not to #e re!ied on $ithout aution. Ug!o$ onsiders an e/ample where a samp!e ta*en 2rom a s ene o2 a #urg!ar% !ed to a suspe t $ho !i"ed >@@ mi!es a$a%5 su22ered 2rom )ar*inson4s disease, who could not drive and could barely dress himself. ,is #!ood samp!e had #een ta*en during a pre"ious arrest and the po!i e re2used to a ept his a!i#i $hen he protested his inno en e' 1 retest esta#!ished that there had #een a mista*e but it demonstrated that once FA1 evidence is found its m%thi a! 6ua!ities o2 a#so!ute truth tends to dissuade e"en the most ompe!!ing ounter e"iden e. These mista*es are !i*e!% to #e in reased where the gro$th o2 the ,NA data#ase ontinues. This database was set up in 1::A and #% >@@6 it had over 2our mi!!ion di22erent ,NA stored on it.

 The database re ords the ,NA o2 a!! those $ho are arrested' Civen that this is when the% are arrested rather than harged the use o2 ,NA in this way is ontro"ersia!, least #e ause o2 its potentia! in"asion o2 pri"a % and given the concerns about o"er re!ian e on it as a t%pe o2 e"iden e. It is more 2oo!proo2 than $itness testimon% but re!ian e on it shou!d not #e at the e1pense o2 a!! other e"iden e, which can, on balance, be compelling.

!cientific evidence more reliable than police interrogation which tend to be racist The in reased use o2 s ienti2i e"iden e is genera!!% supported' .ac& in 199$ following the unmas*ing o2 the e!e#rated mis arriages o2 0usti e cases it #e ame apparent that te hni6ues o2 interrogation #% the po!i e $ere 2!a$ed and 8i&e 8c"onville pro !aimed that $e shou!d ha"e 3more dete tion5 !ess interrogation4' Civen our dis ussion o2 the potentia! and a tua! a#use o2 po!i e po$ers earlier in this chapter, so de"e!opment o2 s ienti2i proo2 ma% #e a desira#!e de"e!opment.

!cientific evidence is good but has to be presented in the court thru adversarial process as scientific evidence also made by human who easy to ma%e mista%es ,owever it should not be utilised without caution. S ienti2i e"iden e has to #e presented in the courtroom $ithin the onte1t of the ad"ersaria! s%stem and )al&er has commented that 6the e"identia! "a!ue o2 e1pert testimon% has #een o"erestimated in a number of instances only for it !ater to emerge that the tests #eing used $ere inherent!% unre!ia#!e, that the scientists conducting them were inefficient or both9.

There were several e/planations but heavily based on scientific evidence cause in%ustice 'n the case of the Maguire Se"en the prosecution case was heavily based around the fact that the defendants had &nowingly handled nitro+glycerine for an unlawful purpose. The charge reBuired a positive trace on the body or clothing of the defendants and innocent contamination had to be discounted. The scientific evidence presented at trial was used to construct a narrative of bomb preparation. .y the time a successful appeal was granted all but one of the defendants had served their prison sentences5 One of the defendants, Ciuseppe "onlan, father of Cerard "onlon who was one of the $uildford 3our, died in prison in 7:;<. ,e would never &now that his name had been cleared'

 'n fact Sto *da!e asserts that later tests showed the 6#ritt!e nature o2 !ega! e1trapo!ation 2rom s ienti2i 2a t4 and there $ere a num#er o2 e1p!anations as to ho$ these tra es o2 nitrog!% erine ou!d ha"e 2ound their $a% onto the de2endant4s #odies. The 8aguire #even case reminds us that it is not 0ust the a umu!ation o2 s ienti2i e"iden e that is important but a!so its presentation in the ourtroom'

To demand more s ienti2i e"iden e as though it is a pana ea to a!! the pro#!ems associated with other forms of evidence is to !oo* 32or a himera 8 2orms o2 e"iden e $hi h an #e presented in ourt unsu!!ied #% 2a!!i#!e human pro esses4 That mean scientific evidence also made by human, surely there can be some mista&es during the process

,eification of e)pert cause problem- jury without scientific %nowledge has to ma%e the decisions on confliction scientific evidence 1s well as the type of evidence presented and the o"er re!ian e on s ienti2i e"iden e5 the re!ian e on and dei2i ation o2 the 3e1pert4 has also led to calls for in reasing aution surrounding the use of e/pert testimony. "oncerns surrounding the %ury attempting to understand scientific evidence are not new Stephen bac& in 1! < said that

Jur% $ithout an% pre"ious s ienti2i *no$!edge or training are sudden!% a!!ed upon to ad0udi ate in ontro"ersies in $hi h the most eminent s ienti2i men 2!at!% ontradi t ea h other4s assertions can be more absurd and incongruous '

&roblems arise when too relied on e)pert and then when the apparent cause still un%nown )hat has become clear in re ent %ears is that there has been greater reliance on e/pert evidence usually because of in reased sophisti ation in the o!!e tion o2 s ienti2i data' This in turn has led to a more e1tensi"e use o2 the e1pert who o2ten presents their 2indings as the truth, una#!e to re ognise a!ternati"e e1p!anations' The three cases here concern the phenomenon o2 Sudden In2ant ,eath S%ndrome HSI,SI'

This is where death occurs and following an autopsy , the apparent ause is sti!! un*no$n'

This immediately presents us with a problem.

.e do not $h% the hi!d has died so $e spe u!ate '

1nd a!though $e re2ute 3suspi ious ir umstan es4, #ut $e need to 2ind out $h%' )e turn to an e/pert to assist and through its informed, specialist, all &nowing e/pert we believe what we are told. .h% $ou!d $e dou#t the e1pert/

"eadow- e)pert evidence become law= 'nd found later to be flawed= 9njustice case= 1t the trial the e/pert paediatrician, )ro2essor Sir Ro% Meado$ said that the han e o2 t$o #a#ies d%ing as a resu!t o2 SI,S $as 1 in =C mi!!ion' That mean if the ? child died of #'F#, mean someone possible has murdered them. ,e had famously stated that- 6one sudden in2ant death in a 2ami!% is a traged%5 t$o is suspi ious and three is murder un!ess pro"en other$ise4' This #e ame *no$n as Meado$4s !a$.

This time the statistic of 8eadow appeared to hover over the trial li&e the ghost at the feast.

Civen the media coverage it $as un!i*e!% the 0ur% had not !earned o2 Meado$4s erroneous a! u!ation' That mean Dury has the idea what 8eadow said, if let said ? child died of #'F#, then Dury most li&ely to concluded it is criminal homicide

 1st ase o2 Sa!!% C!ar*' She $as on"i ted o2 murdering t$o o2 her #a#ies in Aovember 1999. Appea! $as disa!!o$ed' >nd ase8Ange!a Cannings $as on"i ted o2 a dou#!e murder $hen she had !ost three #a#ies to #'F# Meado$ re2ute the suggestion that the pre"a!en e o2 death to Ange!a Cannings4 hi!dren ou!d #e attri#uted to a medi a! ondition )ell, is it possible it is a condition that is not yet understood by doctors or described by them: and that must always be a possibility, #ut ne"erthe!ess as a do tor o2 hi!dren I am sa%ing these 2eatures are those o2 smothering . Turn to se st ond appea! o2 Sa!!% C!ar* H1 aseI was heard and this time it $as de ided that Meado$4s statisti s $ere mani2est!% $rong and gross!% mis!eading'

 "lar& was freed having spent o"er three %ears in prison' $rd case+ Trupti )ate! was harged $ith *i!!ing three o2 her #a#ies. This time there $as no on"i tion as )ate!4s grandmother appeared as a $itness and e1p!ained that 2i"e o2 her t$e!"e hi!dren had died $ithin si1 $ee*s o2 #irth. There was a geneti de2e t here which could account for the deaths. 1s could be commonly concluded multiple deaths made a genetic lin& %ust as li&ely as a case of serial murder.

1)pert is human as well, has his own life principle which may made him felt as prosecutor and ma%e mista%e 1s an e/pert, )ro2essor Sir Ro% Meado$ had #een raised up #% the tria! s%stem' Feified as an e/pert who had e/plained how the death of #ally "lar&9s children could not have been anything but murder. ,owever following these cases he was investigated and in Fecember ?<<E the Ceneral 8edical "ouncil (C8") found him guilty of serious professional misconduct. 8eadow appealed to the ,igh "ourt in ?<< and was successful. The C8" then appealed to the "ourt of 1ppeal who upheld 8eadow9s appeal. (e had been cleared of serious professional misconduct but $ou!d ne"er a t as an e1pert again' 't would appear that Meado$ had #een too 2o ussed on on2irming his o$n suspi ions $ithout onsidering the a!ternati"e e1p!anations 2or the SI,S.

This was understanda#!e in that he had !ong !aun hed a rusade against those $ho $i!2u!!% in0ured their hi!dren.

,e was an early campaigner in the medical recognition of 8unchausen #yndrome by pro/y and it seems he #e ame so 2o ussed on the prose ution and on"i tion o2 those he thought $ere gui!t% that he 2orgot that he $as an e1pert opinion not the on!% e1pert opinion. (e had a!so mis a! u!ated his statisti s and this meant there could be an alternative e/planation.

"eadow turned the court into witches trial (e $as !i*ened to a .it h82inder Genera! by Jen*ins who suggested that during 8eadow9s court appearances The ourts o2 0usti e are the same as tried the Sa!em $it hes. They summon %uries to pass public %udgement on these wretched women, calling in aid a witch+finder general, the haw&ish 2rofessor #ir Goy 8eadow ... #ir Goy is said to possess the ourtroom presen e o2 Judge ,an2orth in Arthur Mi!!er4s Sa!em $it hes p!a%, The "rucible. (e an $hip an% 0ur% into 2inding these $omen gui!t%.

>erdict come from jury but not e)pert, flaw e)pert cause injustice The rimina! 0usti e s%stem had as*ed a medi a! e1pert to o22er an e1p!anation to how the deaths of these children had occurred. Meado$ offered such an e/planation but that e1p!anation $as 2rom someone $ho had 2orgotten to re ognise the !imits o2 his o$n opinion. (e had o22ered a "ie$ #ut it appeared he de!i"ered a "erdi t'

,e!i"ering a "erdi t in the ad"ersaria! tria! is the tas* o2 the 0ur% not the e1pert and Meado$ u!timate!% paid the pri e 2or his 2o!!% '

There is a tragi end to our stor% though. 'n 8arch ?<<; Sa!!% C!ar* H1st aseI $as 2ound dead at her home, 2our %ears 2o!!o$ing her re!ease 2rom prison. ,er death reminds us of the "er% rea! osts o2ten #orne #% "i tims o2 mis arriages o2 0usti e and her

case serves as a reminder of why 6e/pert9 testimony too has its flaws.

Ne$ Se tion: SENTENCING: ART +R SCIENCE/ !entencing is an art, as in the end cannot replace by scientific formula *nce an offender has been convicted they will be sentenced. There has long been a po$er strugg!e #et$een the 0udi iar% and the e1e uti"e o"er $ho ontro!s senten ing' .elieving it to #e an art the %udiciary have argued that sentencing, to be %ust, has to #e "er% are2u!!% na"igated to onsider not on!% the o22en e ommitted #ut the o22ender themse!"es' 1s Judge Co*e e/plained 1t the end of the day, the e/ercise of dis retion in senten ing must remain in human hands. Oou annot programme a omputer to register the 32ee!4 o2 a ase, or the impact that a defendant ma&es upon the sentences

 [/hat mean sentencing should be an art instead of scientific formula]

2owever, e)ecutive loo% for consistency sentencing but judiciary did not want to lose discretionary power The e1e uti"e on the other hand have argued for there to be 2ar more onsisten % in app!i ation and this has meant the pursuit o2 statutor% pena!ties for offences which !imit the e1tent o2 0udi ia! dis retion' This has really been a #att!e 2or ontro! o"er punishment because increasingly successive governments adopt an agenda of ta&ing crime seriously and part of this agenda is the attempt to e1ert pressure on the 0udi iar% to mete out HorderI harsher punishments. This is not to suggest that the 0udi iar% ha"e ne"er administered harsh punishments but the% have generally demonstrated a re!u tan e to !ose their o$n dis retion in 2a"our o2 satis2%ing the e1e uti"e4s po!iti a! aspirations o2 the da%. This battle has seen a number of &ey twists and turns which we shall now e/plore.

9n early time, Judges mitigate the strict sentencing law by circumvent the law in the name of justice Thomas e/plains that in ear!% Eng!ish rimina! law senten ing $as a straight82or$ard matter. 'f a person ommitted a 2e!on% then they would re ei"e the death pena!t%.

'f a person committed a misdemeanour they would be su#0e t to an un!imited 2ine or an un!imited prison senten e.

The !a$ $as harsh and un2orgi"ing. *ver a period of time the 0udi iar% de"e!oped pro edures $hi h mitigated the harshness of the law. *ne such procedure was &nown as the 6#ene2it o2 !erg%4' 'f a defendant was convicted of a felony they were sentenced to death.

 +ne $a% o2 a"oiding this $as i2 the de2endant $as a priest.

.eing a priest meant the de2endant ou!d #e dea!t $ith #% the e !esiasti a! ourt.

There e1isted no 2orma! re ords as to $ho $as or $as not a priest and so the on!% measure $as the de2endant4s !itera %. 1 de2endant $ou!d #e as*ed in ourt to read e1tra ts 2rom the #i#!e to demonstrate their membership of the clergy.

1lthough most defendants could not read, man% $ou!d !earn e1tra ts 2rom the #i#!e "er#atim and re ite them $hen prompted P Q in the ourtroom.

This $ou!d resu!t in the 2e!on4s re!ease.

This ear!% ir um"ention o2 the ommon !a$ demonstrated a ommon di!emma 2or 0udges and one they still face today.

.hat right do the% ha"e to ir um"ent the e1isting !a$/

 Their ans$er: it is in the interests o2 0usti e to do so'

Judges discretion that why become an art The 6#ene2it o2 !erg%4 d$ind!ed in importance during the eighteenth entur% and it was then that the po$er 2or 0udges in senten ing $as at its apogee '

They could transport the offender if friends of the offenders could secure a royal pardon.

The pivotal point for the Judge $as $here the% either de ided to senten e the o22ender to death or the% granted a temporar% reprie"e 2or the o22ender to see& the royal pardon.

The operation o2 this dis retion $as tota!!% ar#itrar% and did according to Thomas result in 3a !otter% o2 0usti e4'

)hilst the e1er ising o2 po$er in an ar#itrar% $a% is a!$a%s 2ro$ned upon the &ey principle of establishing %udicial discretion in the sentencing process, #ut is a *e% 2eature in the argument #% the 0udi iar% that senten ing is an art not a s ien e'

Court of Criminal 'ppeal formed to ma%e sure consistency of judicial sentencing but failed as few appeal and lac% of systematic report and analysis .y the nineteenth century sentencing was still very much in the hands of the %udiciary but statutes $ere passed5 prompted #% the e1e uti"e5 to 2urther restri t 0udi ia! dis retion. -i1ed pena!ties $ere en2or ed so that it was clear that if you were guilty of murder then the death penalty followed. Gi"en that the death pena!t% had #een redu ed in s ope so that it only remained for the most serious of offences this meant there ou!d #e no 2urther 0usti2i ation 2or the 0udi iar% to depart 2rom the e1isting !egis!ati"e pro"isions'

.y the end of the nineteenth century onsisten % in senten ing $as again seen as elusive and so by 19<; the Court o2 Crimina! Appea! $as esta#!ished' 1lthough may said consistency is being challenged, but in the end, the aim of this court is to achieve consistency sentencing

This court was charged with ensuring that there $as parit% in senten ing'

I2 a de2endant #e!ie"ed their senten e $as e1 essi"e then the% ou!d appea! to this appe!!ate ourt that would have a sense of how similar cases were being dealt with across the country.

't was also hoped that the spe tre o2 appea! $ou!d en ourage the 0udi iar% to #e more onsistent in their decisions on sentencing. Dust as the e/ecutive had attempted to ur# e1 essi"e disparit% in the a$arding o2 senten es #% the reation o2 the Court o2 Crimina! Appea!, so the e/ecutive had also widened sentencing powers to include probation, which after 19<; was an alternative to custody.

.y the time the Court o2 Crimina! Appea! $as renamed the Court o2 Appea! ("riminal Fivision) in 19 3 it had become clear that the p!ea 2or onsisten % had not #een o"er!% su ess2u!' -e$ de2endant4s appea!ed against senten ing and there was !a * o2 s%stemati reporting and ana!%sis o2 senten ing de isions'

Crimina! Justi e A t 1::1+ commitment to proportionality but custody threshold be ignored by court due to it is the judicial s e)perience wor% C+0 1criminal2 was altered after 3456 than&s to the wor& of 7ord "hief Dustice 2ar&er and the arrival of the Dudicial #tudies .oard but by 1::1 there $as sti!! a 2ee!ing that the e1e uti"e $anted to use senten ing as a too! by which the% ou!d demonstrate their ommitment to tougher senten ing. 'n fact their statutory enshrinement of 6%ust desserts9 in the Crimina! Justi e A t 1::1 demonstrated a ommitment to proportiona!it% which the %udiciary had arguably always wor&ed towards anyway.

*rdinal and cardinal proportionality, had always been used to ensure that similar cases received similar sentences taking into account any mitigation or aggravating factors.

The 1::1 A t a!so introdu ed the ustod% thresho!d under s.?(?)(a) where it $as made !ear to the 0udi iar% $hen the% shou!d #e senten ing a de2endant to ustod%'

 This $as !arge!% ignored #% the 0udi iar%. .elieving the ustod% thresho!d $as a matter for 6recognising elephants9 the% did not #e!ie"e a statutor% pro"ision ou!d e1p!ain $hen ustod% shou!d #e used' The 0udges5 $ith their e1perien e5 2e!t the% *ne$ $hen ustod% $as appropriate. &% the !ate 1::@s the Court o2 Appea! had ome to a!! #ut ignore the 1::1 A t'

Judiciary restricted impact of Crime .!entences/ 'ct 7::? in @AB times you are out rule by !9 .y 199 there was a real concern that the e/ecutive had prompted the legislature to legislate far beyond what was reasonable and the 0udges 2e!t their 3art4 o2 senten ing $as #eing redu ed to a s ien e as the e1e uti"e #egan to !egis!ate 2or mandator% senten ing. 8andatory sentencing clips the %udicial wings in that it prescribes what sentences must be awarded for what offences. The Crime HSenten esI A t 1::= saw offenders who were convicted for a se ond time o2 a "io!ent or se1 o22en e were to receive an automati !i2e senten e. if an offender was convicted of domestic #urg!ar% and a!read% had t$o pre"ious on"i tions for similar offences then they would receive a mandator% senten e o2 three %ears. This was popularly &nown as the 7three strikes and you are out rule8.

 These re2orms had ta*en p!a e during a period o2 pena! popu!ism $here the Conser"ati"e 1dministration, desperate to sho$ the% $ere responding to per ei"ed in reases in rime had decided that sentences needed to be harsher. Dudges disagree this type of e/ecutive interference 7ord "hief Dustice Taylor was publicly very critical of these reforms feeling they were ill considered and symptomatic of an e/ecutive interference, which should be ceased immediately. 7ord Fonaldson was eBually concerned that interference with the %udicial power to sentence posed a threat to the individual citi0en who was e/cessively punished because politicians had decided that an e/ample needed to be set. =inally 7ord ,ailsham, a former 7ord "hancellor, had argued that the legislation imposed upon the independence of the %udiciary.

7oophole in legislation ma&e the %udges interpret differently to avoid this rule There was however a riti a! !oopho!e in the 1::= !egis!ation' The provisions for the se ond !i2e senten e stated that the automatic life sentence should be imposed 6un!ess there $ere genuine!% e1 eptiona! ir umstan es4 $hi h the ourt $ou!d ha"e to 0usti2%' 'n ?<<< the Court o2 Appea! e22e ti"e!% 6uashed this ru!e by arguing that as long as the defendant posed no substantial ris& to the public the life sentence did not need to be passed. 1gain consistency and 6honesty in sentencing9 had been used to defend the passing of the "rime (#entences) 1ct 199; but the %udiciary had seen an out with the 6e/ceptional circumstances9 section and sei0ed upon it to limit the impact of the legislation.

#alance btw L and J achieved, sentencing is an art, but still can remain consistency =urther attempts have been made to promote consistency in sentencing. The La#our Go"ernment had #een as *een as the "onservative Covernment had been to add to the !ist o2 mandator% punishments for offences committed. (o$e"er5 the% had adopted a more on i!iator% approa h by esta#!ishing the Senten ing Ad"isor% )ane! HSA)I in 199! whose tas& it was to stimu!ate senten ing guide!ines' Civen that the mem#ership in !uded senior 0udges it would appear a sense o2 o8operation $as #eing 2ostered #et$een a!! those in"o!"ed and in2!uen ing the senten ing function. The Crimina! Justi e A t >@@C also esta#!ished the Senten ing Guide!ines Coun i! HSGCI whose %ob it was to pro"ide senten ers $ith omprehensi"e and pra ti a! guidan e.

 1gain mem#ership $as mi1ed but this time it was haired #% the Lord Chie2 Justi e. The Coroners and Justi e A t >@@: then esta#!ished the Senten ing Coun i!5 $hi h assumed the ro!e o2 #oth the SA) and the SGC' Its tas* is to . . . promote greater onsisten % in sentencing, $hi!st maintaining the independen e o2 the 0udi iar%. 't seems that in this !ong #att!e to *eep senten ing as an art rather than redu ing it to a s ien e, a 2ine #a!an e has #een rea hed. The e1e uti"e $i!! no$ ontinue to a!!o$ the 0udi iar%, with all their e/perience, to arr% out the senten ing 2un tion as though it were an art #ut will ensure on some onsisten % which in turn will ensure it is marginally scientific in its approach.

Recent legislative may subject to change but judiciary can smart enough to find the way to retain their power This #a!an e is ho$e"er su#0e t to hange. Re ent !egis!ati"e hanges have sought to ontinue to e1er ise some ontro! o"er the senten ing 2un tion and the impa t o2 these hanges ha"e %et to #e 2e!t' Lega! Aid Senten ing and )unishment o2 +22enders A t >@1> which finally removes the controversial imprisonment for public protection which was introduced under the "riminal Dustice 1ct ?<<$ and modified under the "riminal Dustice and 'mmigration 1ct ?<<!. It is a !e"er 0udi iar% that ontinues to 2ind $a%s o2 retaining their po$er base %ust as they had done when they introduced the benefit of clergy some centuries before.

*fcourse it ou!d #e argued that the 0udi iar% ha"e no right to ir um"ent the $i!! o2 the peop!e via their elected representatives.

 1ndrew 1shworth argues that more onsisten % in senten ing is re6uired and the 0udi iar% shou!d #e re6uired to #e onsistent.

The author agrees but clearly legislative sledgehammers should not be used to trounce %udicial discretion.

&etter 0udi ia! dis retion is maintained and na"igated through a path to$ards some re!ati"e onsisten %' The 0udi iar% need to believe they are controlling sentencing as the% #e!ie"e is their 2un tion $ithin the onstitution'

2ome secretary used to set out the tariff remain in prison and release date but it has be changed now due to 2R' as he is not independent tribunal

1s a coda to this discussion of the %udiciary and sentencing it is interesting to note a development, which re ognises $h% 0udges and not the e1e uti"e shou!d ontro! senten ing'

The e/ample here is the histori po$er o2 the (ome Se retar% to 2i1 and re"ie$ the tari22 of a prisoner serving a life sentence. The Court o2 Appea! has Iong issued guide!ine 0udgments which sets out the proper approach which is to be adopted by a %udge in dealing with offences within a particular category. They are not meant to be prescriptive but they usually indicate a tariff or range in which %udges, according to the severity of the offence, will impose a sentence. Things ha"e a!$a%s #een s!ight!% di22erent 2or those on"i ted o2 murder'

 This offence arries a mandator% senten e of life imprisonment. #ince 193! the (ome Se retar% has had the po$er to de ide $hen a !i2e prisoner an #e re!eased 2rom prison. Under s.?9 "rime (#entences) 1ct 199; the (ome Se retar% $as a#!e to de ide on the date o2 re!ease for the lifer on licence and they $ere a!so a#!e to set the tari225 $hi h sa$ them de ide ho$ !ong a !i2er shou!d remain in prison. As this po$er $as a 0udi ia! one the separation o2 po$ers had on e again !ong #een ompromised' &% >@@< this position had #e ome untena#!e' 1 series of cases before the courts, since the (uman Rights A t 1::; had come into force, had been riti a! o2 the (ome Se retar%4s po$er and the de ision in the Anderson ase 2ina!!% $ithdre$ the po$er. 1 panel of se"en La$ Lords de ided that the ourt rather than the (ome Se retar% shou!d

de ide on the tari22 for a lifer convicted of murder. The (ome Se retar%4s senten ing ro!e $as seen to #e in dire t on2!i t $ith the Arti !e 6 right to a fair trial as per the (uropean "onvention on ,uman Gights. The right to a 2air tria! demands an independent and impartia! tri#una!. The (ome Se retar% $as not independent or impartia!'

0ew legislation came out and again !9 ma%e the judges circumvent the statute and retain power to sentencing

The reaction by the e/ecutive was one of anger and the then (ome Se retar%5 ,a"id &!un*ett5 insisted he $ou!d ir um"ent the ru!e $ith !egis!ation'

The result was s'>6: Crimina! Justi e A t >@@C $hi h re6uires the ourt to ha"e regard to ertain prin ip!es $hen setting a tari22 for a on"i ted murderer' +n e again ho$e"er there is a !oopho!e in the legislation in the form of the term 3norma!!%4 which a!!o$s the ourt to onsider a!! 2a tors and ontinue to #e reati"e in their e1er ising o2 their 2un tion'

Judges remain a sentencer is a constitutional matter= &olitician cannot be the judge at the same time The hange in the !a$ that too* p!a e annot #e underestimated.

=irstly the reiteration #% the 0udi iar% o2 the ro!e o2 the 0udge in senten ing is important at a time $hen 6uestions ontinue to #e as*ed as to the !egitima % o2 that ro!e.

Lord Ste%n views the separation o2 po$er to #e riti a! here and has argued that

. . . nowhere outside .ritain, even in democracies with the $ea*est 2orms o2 separation o2 po$ers5 is the independen e o2 the 0udi iar% potentially compromised in the eyes of citi0ens by relegating the status of the highest court to the position of subordinate part of the legislature.

1nd nowhere outside .ritain is the independen e o2 the 0udi iar% potentia!!% ompromised in the eyes of the citi0en by permitting a ser"ing po!iti ian to sit as a 0udge at an% !e"e! ' .

Criminal justice process cannot in the hand of politician who always care for political goal rather than legal principles

'n addition an in2amous ase in (nglish legal history demonstrates the potentia! in0usti e that an #e2a!! a de2endant under that power which was once he!d #% the (ome Se retar%'

M%ra (ind!e% was convicted of &illing four children with her partner 'an .rady in 19 . 1t trial the 0udge imposed a !i2e senten e5 as $as mandator%, a!ong $ith a tari22 o2 >A %ears. This meant she $as due 2or paro!e in 1::@'

,# e/tend the tariff without inform her .y 19!E the then ,ome #ecretary, 7eon .rittan decided, under his political power to e/tend tariffs that she would in fact serve $< years before being eligible for parole. .y 199<, following revelations of further involvement in other murders, the then ,ome #ecretary, Favid )addington imposed a whole life tariff on ,indley insisting she would never leave prison.

 ,indley was not notified of this decision until 1993 when the prison service were told they were obliged to inform all prisoners of when they could e/pect to be considered for parole. .etween 199; and ?<<< ,indley appealed against the whole life tariff a total of three times each time arguing that she was a reformed prisoner who no longer posed a ris& to the public. A!! three appea!s $ere re0e ted' (ind!e% died in prison in Aovember ?<<?. Two wee&s !ater the (ouse o2 Lords on2irmed in the e1 parte Anderson de ision that the (ome Se retar% shou!d no !onger de ide on the tari22 for convicted murderers.

 ,indley9s crimes were clearly abhorrent but the decisions by su essi"e (ome Se retaries to a!ter her tari22 and pre"ent her onsideration 2or re!ease $ere po!iti a! and not #ased on sound !ega! prin ip!e' 't is not clear whether ,indley would have ever been released from prison even if the power to set tariffs had been with a %udge rather than a politician. 1lthough not a sympathetic figure ,indley did prove, ironi a!!%5 to #e a "i tim o2 the partia!it% o2 the rimina! 0usti e pro ess in this regard'

Ne$ Se tion: +GERCR+.,E, )RIS+NS: A CRISIS +- NUM&ERS AN, C+N,ITI+NS 'lthough many issue on crisis but overcrowded in prison is the most concerned and @@C prison is overcrowded "onvicted offenders sometimes receive custodial sentences. They are then sent to prison to serve those sentences. 1ccording to "avadino and Fignan, there e/ists a pena! risis' This crisis is concerned with a number of issues, which impa t upon the legitimacy of the process and more important!% the !i"es o2 prisoners' There currently e/ists a managerial crisis, a crisis of security, a crisis of control and authority, a crisis of accountability and a crisis of legitimacy.

 The impact of these crises should not be underestimated but it is the risis o2 num#ers $hi h impa ts upon prison onditions $hi h is most $orr%ing at this time. 1t the time of writing there are ! ,1E! prisoners in custody. The last decade has consistently seen records bro&en as to the number of prisoners in custody and if an e/pansionist policy were the present and previous government9s aim then the numbers would point to success. This unpre edented in rease does ho$e"er ha"e its asua!ties. "avadino and Fignan e/plain that as man% o2 the urrent prison e!!s $ere designed 2or sing!e o upan % at !east >> per ent o2 the prison popu!ation are #eing he!d in o"er ro$ded onditions'

Cavadino and ,ignan D overcrowded ma%e the crisis worse +"er ro$ded prisons 2eed the risis o2 onditions'

This risis is three+fold in that it involves the ph%si a! a ommodation that prisoners have to live in,

the repressi"e regimes they are often sub%ect to =or e/ample, it was reported in ?<< that the 7ord "hief Dustice announced that o"er ro$ding $as pro"ing 32ata!4 2or prisoner treatment. 'n fact he said that drug addi ts $ere o2ten ommitting o22en es in order to a ess treatment in prison.

the #rea*do$n $ith 2ami!% ties that often occurs as a result of local prisons being full and inmates #eing transported around the ountr% to p!a es di22i u!t 2or "isitors to tra"e! to' This final conseBuence is said to 2eed o22ender #itterness and hosti!it% whilst in prison which then contributes to their recidivism upon release.

&hysical accommodation- inhuman and degrading )e will contain our discussion to the ph%si a! a ommodation and its related conditions as this has the most dire t impa t upon the prisoner4s !i2e and reminds us of a political battle that was once won by the e/ecutive but which proved the %udiciary to see into the future and the developments that would occur. The (o$ard League o2 )ena! Re2orm has commented on ho$ t$o or more prisoners are often housed in e!!s designed 2or one and they are using uns reened toi!ets which 62ai! to pro"ide them $ith the most #asi o2 human rights4. These 3inhuman and degrading onditions4 are not ne$ #ut the urrent prison risis o2 num#ers and o"er ro$ding is !i*e!% to e1a er#ate rather than reduce these sBualid conditions. 'nhuman and degrading conditions 1s confirmed by the (uropean "ommittee for the 2revention of Torture (1991). The pra ti e o2 prisoners 3s!opping out4 their overnight waste did come to an end in >@@6 but this some fifteen years a2ter the .oo!2 Report ried out 2or a ap on prison num#ers and a re"ie$ o2 prison onditions.

.oo!2 Report- change the e)ecutive power to fill the prison beyond capacity and release prisoner if overcrowded, fail= The .oo!2 Report $as in response to the #trangeways and other prison riots in 199<. 7ord Dustice )oolf chaired the enBuiry that followed these prison disturbances. ,is terms of reference were to6inBuire into the events which began on 1pril 1st 199< and the action ta&en to bring it to a conclusion, having regard also to the serious disturbances which occurred shortly thereafter in other prison establishmentsM. 'nterestingly sentencing practice was not included in these terms of reference for fear that )oolf would comment on the e/pansionist policy that the government of the day was beginning to adopt following a dip during the 19!<s. The *e% point to .oo!24s approa h was he believed that there was no sing!e ause to a riot'

 This meant that there $as no simp!e so!ution or action, which will prevent this from happening again. There were a total of twelve recommendations.

Most signi2i ant for the discussion here was that, in light of prison conditions and the e)ecutive thirst for recourse to the prison, a ne$ prison ru!e shou!d #e imp!emented which would pre"ent an esta#!ishment ho!ding more prisoners than is pro"ided for in its normal certified level of accommodation. That mean ut do$n e1e uti"e po$er to 2i!! up the prison #e%ond apa it%

This re ommendation $as ne"er adopted in the pac&age of reforms that followed the publication of the report. .oo!2 a!so $anted the e1e uti"e po$er o2 re!ease to #e used i2 prisons #e ame o"er ro$ded'

-oolf report go into wrong direction- should be increase no5 of prison, change sentencing power and more important-rehabilitate prisoner and prevention of crime

.y ?<<; Ca"adino and ,ignan omment that .oo!24s a!! for a new prison rule to limit overcrowding appears 32an i2u!4.

1nd yet a mem#er o2 the 0udi iar% had as*ed 2or an e1e uti"e po$er5 to ontinue to 2i!! up prisons #e%ond their natura! apa it%, to #e urtai!ed' Lord .oo!2 had #een $rong a#out one thing though. (e had de !ared that prison o"er ro$ding $as a thing o2 the past and %et prisons are no$ o"er ro$ded #e%ond an%thing he could have imagined. Ans$ers to the urrent pro#!em could be 3in reasing prison apa ities or crisis driven hanges in senten ing4' 7osel, =. (?<<;) The pro#!em $ith these so!utions is the% tend to #e short term and iso!ated.

 Lose! o22ers a more profound course of change when he suggests that a reduction in the prison over+crowding crisis may come i2 $e impro"e o22ender reha#i!itation $hi h $i!! redu e re idi"ism.

,e also advocates a redu tion in short term in ar eration and a greater ommitment #% go"ernment to de"e!opmenta! pre"ention and ear!% inter"ention'

)rison4s ondition sti!! needed to #e on erned5 0usti e #e ompromised .ac& in 19!; Gi"ien Stern des ri#ed our prisons as 6#ri *s o2 shame4' )oolf commented in 1991 that 0usti e itse!2 is ompromised i2 prisoners are he!d in o"er ro$ded onditions that are 6inhumane and degrading, or are otherwise wholly inappropriate9. Twenty years on, in spite of recent calls to reductionism, the prison num#ers ha"e es a!ated #e%ond $hat ou!d ha"e e"er #een imagined. "rowded cells see prisoners sitting on toi!ets as a means o2 sitting do$n $hi!st eating their mea!s' This time has seen improvements in prison conditions but there are still improvements to be made and these tend to #e ompromised $hen o"er ro$ding is at su h a pea*'

&rison service cover the real situation

The prison ser"i e5 in o!!usion $ith the go"ernment, suggests they have a useable operational capacity of 9<,99E.

This would suggest at the time of writing that there are still 3,!$; places going spareN Ca"adino and ,ignan are however suspicious of the method of calculating these figures suggesting the% 3mas* the true e1tent o2 the pro#!em4'

Overcrowded- self harm increases The 2rison Geform Trust has suggested that one very serious effect of this prison overcrowding is the incidence of self+harm increases. This cannot be defensible.

1)perience of prison cannot %eep up 1)pansionist policy The e1perien e o2 prison 2or the prisoner is dire t!% a22e ted #% this ommitment to an e1pansionist po!i %, which at the present time annot *eep up $ith its o$n en!argement.

Last Se tion: C+NCLUSI+N: ,REAMS AN, NIG(TMARES Sanders et a!. believe that the time has come to 6set the primar% goa! o2 the rimina! 0usti e s%stem as the promotion o2 2reedom o2 a!! itiBens and so ia! groups a!i*e4' This dream is a noble one. To promote freedom within a process that often priBes rime ontro! o"er due pro ess and routine!% dis riminates against "u!nera#!e groups within society may be desira#!e #ut is it rea!isti a!!% attaina#!e/ 1t the beginning, )a *er said $e shou!d tr%. )e should try to attain the unattainable for if we stop trying we will fall even further short of finding guaranty and eliminating threat. This hapter has onsidered some o2 the $inners and the !osers in our current criminal %ustice+ processes.

)inner The $inners appear to #e the state and its "ast ma hiner% harged with de!i"ering 0usti e in a way that satisfies many.

't should satisfy all #ut on 2ina! ana!%sis it is a pro ess5 $hi h is !e2t $anting .

7oser The losers are those who have su22ered nightmares at the hands o2 a pro ess, which in both its stru tures and its pra ti es has left critics believing that it is a process in need of repair. .e on!% need the pro ess to #e 2air when we encounter it. *n this evidence, the man% $i!! hope the% don4t en ounter 2or 2ear o2 #eing treated !i*e the 2e$'