Division of powers between the institutions is the important feature of the criminal justice system in democratic societies. This separation of powers is an essential factor to protect the rights of suspects during the criminal process, regardless the focus on the civil law or on the common law principles. From this point, the division of powers in terms of separating the roles of the police, prosecutors, judges and juries guarantees that a suspect will be treated fairly and according to his or her rights at all stages of the criminal process. As a result, a suspect receives the opportunity to be treated as innocent till the guilt of the person is proved; the participants of the criminal process remain to be impartial at all the stages; and decisions can be made only by judges and jurors whose judgments are free from bias. In this context, the focus is on the Due Process model in contrast to the Crime Control model, when the rights of suspects are accentuated in opposition to the focus on controlling and preventing crimes.
However, it is important to state that there are significant differences in interpreting the areas for separation of powers in the adversarial system, associated with the common law, and inquisitorial system, associated with the civil law. A comparison of these two systems in relation to the United Kingdom’s law, the specific French approach, and the system of the United States is important to explain how the rights of suspects can be treated differently in democratic societies, where the division of powers in the criminal justice system is observed. This paper will discuss the role of the division of powers between institutions in the criminal justice system for safeguarding the suspects’ rights and focus on the differences in the common law and civil law regarding approaching the issue. The elements of criminal justice systems in the United Kingdom, France, and the United States will be compared in the paper in order to support the critical discussion of the problem.
The Division of Powers in the Criminal Justice System of the United Kingdom
The criminal justice process and procedures can be realised and regulated with references to two opposing principles or models such as the Crime Control model and the Due Process model. If the Crime Control principle is based on preventing crimes in the society and on declaring the rights of victims, the Due Process model is based on the idea that all criminal processes or trials should be fair in order to prevent convicting the innocent person. As a result, the discussion of the separation of powers in the criminal justice as the approach to safeguarding the rights of suspects is more correlated with the Due Process model, according to which the focus should be on avoiding errors in the trial process and accusing the innocent person in both common and civil law systems. The complexness of dividing the criminal justice system into bodies with different responsibilities and jurisdiction can guarantee that the suspects’ rights will be taken into account at all stages of the criminal process, and there are only few possibilities for the unfair trial.
In the United Kingdom, the criminal justice system is completely influenced by the aspects of the common law, and the division of powers is based on the idea of not only criminal but also social justice because the appropriate activities to detect, prosecute, and convict the criminals are directly related to the concept of justice. In this case, much attention is paid to such requirement of justice as the equal and fair treatment of all suspects. While focusing on the specific rights of suspects and possibilities for their protection in the criminal justice system of the United Kingdom, it is important to state that the main principles of safeguarding the individuals’ rights are observed at the first stage when arrest and investigation are made by the police. Conway states that currently, accountability of the police in the United Kingdom is increased. However, the problem is in the fact that the police have too many powers that are associated with responsibilities to arrest and detain suspects, and the cases of abusing the power for discretion are often reported by suspects. In order to understand the legal background of the problem, it is necessary to state that previously, the actions of the police were regulated with references to the Judges’ Rules, and today the Police and Criminal Evidence Act 1984 (PACE) is followed by the authorities in order to determine the range of the police’s power.
The PACE 1984 was adopted in the United Kingdom in order to provide the effective directions for regulating the actions of the police and in order to protect the rights of individuals suspected of committing crimes. As a result, the PACE guarantees safeguarding the suspects’ rights at the first stage of the criminal process in order to protect individuals from violating their civil liberties. In addition, the PACE is effective to prevent false confessions and manipulation of legal norms and principles. Section 24 of the PACE provides the definition of the ‘arrestable offence’, according to which the police need to have reasonable grounds in order to arrest the offender. The main focus is on the possibility to state that the suspect could actually commit the crime or was about to commit it. Section 37 provides the principles of committing lawful arrests and making notifications for suspects regarding the reasons for their arrest. Alcock, Daly, and Griggs note the PACE “tries to create a balance between the powers of the police and the rights of the accused”. As a result, these sections are important in order to address the suspects’ rights in relation to treating them equally and fairy.
It is important to state that the division of powers between the criminal justice institutions provides the opportunities for developing and adopting specific regulations for each organ of the criminal justice system and prevent the violation of suspects’ rights at different stages of the criminal trial. Thus, the power of the police is limited with references to the PACE, the prosecution procedures are regulated in accordance with Prosecution of Offences Act 1985, and the court procedures are regulated with references to a range of laws similar to Supreme Court Act 1981. From this point, when adversarial prosecutors have no powers to control the investigation process or influence the opinion of the judge, there are more opportunities for the defendant to be treated impartially and objectively. However, the Criminal Justice Act 2003 expanded the responsibilities of Directors of Public Prosecutions, and they were granted the opportunity to charge in all the cases, while influencing the trial process. Still, in courts, the rights of defendants are also protected because judges and jurors are responsible for deciding on the case and sentencing while depending only on the facts presented by defence attorneys and prosecutors.
The Criminal Justice System based on the Civil Law in France
The civil law system depends on the use of codes. In France, the Code of Criminal Procedure and the Penal Code regulate the investigation processes and determine the sanctions for offences accordingly. In this inquisitorial model, the separation in the powers of criminal justice institutions is present, but the division of tasks and responsibilities differs significantly from the approaches that are typical for the common law system. Therefore, the issue of the suspects’ rights should be discussed in detail with references to the French criminal justice system. Such critics of the French criminal justice system as Schneider and Frase state that the division of powers typical for this system cannot guarantee the focus on the fair and bias-free trial because the hierarchical monitoring of the criminal justice bodies is used in this system. In this context, in spite of the fact that the investigating judge acts as independent and separate from prosecutors, the specialists continue to insist on eliminating the role of the investigating judge because this situation challenges the effectiveness of dividing powers in the criminal justice system of France. The role of procurators in the French criminal process is also questioned by proponents of the adversarial system because these authorities are responsible for supervising both investigation and prosecution procedures.
Thus, much attention is paid to the pre-trial investigation conducted by the authorities from all the criminal justice bodies. As a result, suspects are most vulnerable at this stage of the criminal process, and their rights can be considered as matters for debates in France. Referring to the measures for safeguarding the suspects’ rights, it is important to focus on the principles presented in the Code of Criminal Procedure. The compliance of the current Code of Criminal Procedure with the statements of human rights declared in the European Convention is a matter for debates because some formulations associated with the police custody are often discussed as confronting the human rights, and appropriate amendments are added to the Code. In order to improve the approaches to protecting the rights of suspects, the Justice Commission in France discussed the improvements to the procedures several times. Referring to the amendments and improvements in the Code that are oriented to addressing the rights of suspects, much attention is paid to the police custody process. In order to guarantee that the suspect is aware of his or her rights, it was recommended to provide defendants with the access to lawyers during the police custody.
Much attention was also paid to protecting the principle of presumption of innocence and to improving the police custody with references to recording the interrogation sessions. Many issues were identified in relation to the constitutional character of the sections in the Code of Criminal Procedure related to the police custody procedures. The problem is in the fact that the sections of the Code did not reflect the principles of the fair treatment. As a result of debates, the preliminary article of the Code was changed in 2000, and now it is stated in the article that “Criminal procedure should be fair and adversarial and preserve a balance between the rights of the parties. It should guarantee a separation between those authorities responsible for prosecuting and those responsible for judging”, and moreover, “Persons who find themselves in a similar situation and prosecuted for the same offences should be judges according to the same rules”. The other important point is that “Every person suspected or prosecuted is presumed innocent as long as his guilt has not been established”. Delmas-Marty and Spencer note that these additions support the focus on the human rights during the investigation and prosecution procedures. As a result, the division of the powers in the criminal justice system can be considered as an important factor to influence the treatment of suspects because the situation when the powers influence each other makes suspects less protected in relation to their rights and liberties.
The Division of Powers in the Criminal Justice System of the United States
Separation of powers between the criminal justice system’s institutions is more accentuated in the United States than in the other countries. As a result, the focus on the rights of the suspects becomes more evident. Barlow emphasises this idea and states that the necessity of protecting the suspect’s rights is one of the main aspects of the criminal justice system in the democratic society. In this case, the focus is on limiting the capacities of the state to violate the individual’s rights and liberties. It is possible to state that the division of powers between the police and investigation agencies, prosecutors, judge and juries in the United States works as a guarantee that each institution is responsible for performing their specific tasks properly.
The tradition of protecting the rights of suspects in the United States is associated with adopting the U.S. Bill of Rights, in which much attention is paid to determining the interest of suspected persons and to the approaches to safeguarding their rights. Thus, suspects in the United States have the right for appropriate law process, fair trials, and adequate punishment. The 4th Amendment of the U.S. Bill of Rights guarantees that individuals are protected from the search and seizures without reasons or causes stated by the police. Arrest warrants should be provided to perform the search of seizure depending on these reasons. The 5th Amendment guarantees protection from self-incrimination, and it is closely associated with Miranda Rights. The fair trial is guaranteed with the 6th Amendment, when the 8th Amendment protects from the inadequate and cruel punishment. As a result, the separated powers of the criminal justice system are expected to serve for promoting the individuals’ rights and avoiding unfair criminal processes.
For the citizens of the United States, the separation of the criminal justice institutions is a guarantee that the fair decision will be made at different stages of the criminal process. As a result, the officers of the police, prosecutors, and judges or juries can focus only on the facts related to the concrete stage of the criminal process. In this case, suspected individuals can be discussed as protected from the power of the state. Moreover, the focus on the rights of suspects is also observed at each stage of the process. The police is a law-enforcement body that is responsible for arresting and detaining suspects, investigating crimes, and searching people and buildings. In spite of the fact that the police can demonstrate the significant discretion, the activities of the police are limited by such factors as the reasons for arresting and warrants for searches in buildings. Moreover, during the arrest process, the rights of suspects are regulated according to Miranda Rights that serve to protect suspects.
During the prosecution process, the suspects are protected also with references to the regulations that work for the procedures of investigation and obtaining evidence. If the suspects’ rights are violated with the fact of illegal obtaining evidence by the police, this evidence is not used in further stages of the criminal process. The unique role of prosecutors is accentuated with references to the fact that they make decisions related only to their area of responsibility, and they can decide independently whether or not to prosecute the case depending on the facts and evidence provided after the investigation process. Prosecutors are also responsible for deciding on charges in cases when the prosecution process is developed. Still, neither the police not prosecutors can decide on the sentence and penalty even if the defendant pleads guilty. These decisions can be made by only the judge and juries. In this case, the suspect realises his or her right for the fair trial free from bias. The court decision becomes a result of the process during which the prosecutor as the protector of the victim’s rights presents the facts related to the case along with the defence attorney who protects the rights of the defendant. From this point, the U.S. courts are discussed as the primary safeguards of the defendants’ rights because the decision regarding the suspect’s guilt can be made only in the walls of the court.
Comparative Analysis of Systems
While comparing criminal justice systems in the United Kingdom, United States, and France, it is important to state that under the common law, the division of powers is complete because organs cannot monitor or supervise the activities of each other, as it is in the civil law system based on the principle of hierarchy. Therefore, the U.K. and U.S. criminal justice systems are discussed as mainly based on the Due Process model, and the rights of suspects are regarded as fully protected. The reason is that three powers of the criminal justice system in the United Kingdom cannot influence each other regarding the discussion of the suspect’s guilt, and the final decision can be made only in court. Furthermore, it is important to pay attention to the fact that the criminal justice system in the United States follows the principles of the British common law, and the role of the American prosecutor is different in this system, and the main focus is on the further separation of powers.
In contrast to the system in the United Kingdom and the United States, the criminal justice system adopted in France is based on the rules of the civil law, and it is considered as the inquisitorial system. If the executive bodies of the criminal justice in the United Kingdom and the United States are independent, in France, prosecutors monitor the investigation process conducted by the police, and they also participate in it along with an investigating judge. There are significant differences in the police custody, and in the U.K. and U.S., it is important to guarantee that the suspects understand their right to silence. In France, the problem is in the fact that, even after the adoption of the mentioned recommendation, defendants still have no absolute rights to remain silent in comparison with the suspects in the United Kingdom or in the United States. The reason is in discussing the role of the investigating judge who has the direct right to interrogate defendants.
However, the common law system has also drawbacks. In spite of the fact that the criminal justice system of the United States is often discussed as most effective to address the rights of suspects and protect them from being treated unfairly, there are also problems that are associated with the corruption in the police and in investigation agencies and with the prejudice of juries. Feeney and Hermann also mention such controversial issues as the level of corruption in the law enforcement and investigation agencies. In spite of advantages of the effectively separated powers of the U.S. criminal justice system, corruption leads to treating suspects unequally, and this fact influences the quality of the investigation process. However, in contrast to the system in France, there can be several investigation processes that are also conducted for the needs of prosecutors, and this fact allows authorities to determine at which stage of the criminal process the case of corruption could occur. Having compared the criminal justice systems in three states with different law systems, it is important to note that the emphasis on the suspects’ rights is central in any system, regardless the present focus on the pre-trial investigation or on the court discussions.
The principle of dividing the powers of the organs related to the criminal justice system should be regarded as essential for protecting the rights of the suspects involved in the investigation and then in the prosecution processes. Nevertheless, in spite of the fact that this principle of the powers’ division is followed in all democratic societies, the impact of this factor on the problem of safeguarding the suspects’ rights can be different. Thus, in systems based on the common law, there are more opportunities and tools for addressing the rights of suspects. In the United Kingdom, much attention is paid to regulating the investigation process and the arrest procedures with the help of the PACE 1984. The proponents of this approach support the idea that the rights of suspects can be significantly violated when their arrests are unreasonable and when the search and seize procedures are not supported with necessary probable causes and required warrants.
The similar approach is followed in the United States, where the police have the wide discretion, but the powers of the police and other investigation agencies are limited with references to the Bill of Rights. From this point, suspects have the protected opportunity to be treated fairly at all stages of the criminal process. By contrast, in France, the division of powers in the criminal justice system acquires the features typical for the civil law systems, and as a result, all the executive organs influence each other significantly. In this situation, the protection of the suspects’ rights becomes the priority because it is important to regulate the issues associated with the informing suspects about their rights and reasons of arrest and with preventing prejudice in courts. Thus, the division of the powers in the criminal justice system is essential, but it is not always a guarantee of choosing the Due Process model, as it is in case of the French system.
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