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CRIM 3654
James Sheptycki

CRIM 3655 – FALL LECTURE NOTES th October 15 , 2013 POLICING AND LAW - REMIND OURSELVES THAT WHEN policing was made a matter of political creation, people did not like the idea (e.g. wealthy gentry people) - One of the ways that Peel and Metropolitan police sold the policing idea to the public was through the idea of the rule of law o Said this is not an infringement of british liberty, this is no bad thing, this is about insuring that our country, England, and other countries of the commonwealth, are rule of law nations o Police will be subject to rule of law as much as anyone else - “Rex, Lex” (latin for King=law) - Peel reversed that into “Lex, Rex”  the LAW is king o The king is no longer above the law, they are equally subject before for the law - The government itself becomes something that serves the law o Integral to our understanding of the relationship between law and people in a democracy - Famous and important decision in common law o Lord Denning’s decision – in the new English court of Appeal, while accepting that the police are answerable to the law, reiterated the cardinal principle of police independence o Believed the police are independent – it is not in his place to tell the police what they should or should not do  “he is answered to the law, and to the law alone”  Considered a good thing because otherwise someone like Stephen Harper can call the RCMP and tell them how not to act, and this would result in a form of tyranny - Diagram by Goldstein (1971) o It is impossible for the police to do total enforcement of the law  First of all, they don’t even know about all the things that happen  So for that reason alone, they will have to make choices o Example: If you are a police officer like the one Muirr describes, you might decide now is a good time not to arrest anybody, to use discretion not to invoke the law and instead talk to people. If I just arrest somebody, I might start a riot, and part of the job is peace- keeping o These are low-visibility decisions in the enforcement of the criminal law o We have tried to raise visibility with CCTV, cop cars, and all kinds of surveillance that wasn’t around in 1971. It is still the case though that things police are doing are things done under low visibility  Arguably making up the law in those situations – deciding whether a legal action should be created or not  Example: in England where someone spit and was arrested and charged for littering in court - Another important law is subcultural law (contempt of cop) Four Reasons why Discretion is both a Necessary and Legitimate Aspect of Police Work - 1) It is impossible to write a law which is perfectly written and is perfectly clear and perfectly covers all circumstances it might apply to. A police officer must interpret the law in order to apply it. The more you write law, the more loop holes you create – always leaves room for discretion - 2) There’s lots of old laws on the books which may or may not be fair to apply. There are lots of laws that are not written well. - 3) Total enforcement is impossible because you can’t know, full enforcement is impossible because of law of resources - 4) sometimes you can’t get away with nicking a guy because of spitting on a sidewalk because you can start a riot and you wouldn’t want that. Discretion is arguably the better part of valor Police Discretion turns “black letter law” into “blue letter law” (enacted law) - It is their values, norms, understandings, and solutions that really count for them since they are the ones that are powered to use their discretion on the spot Herbert Packer - “two models of the criminal process will let us perceive the normative antinomy at the heart of the criminal law…I call these models the due process model and the crime control model” - Justice since revolution has been depicted as a woman blindfolded holding sword and scales of justice o Represent what Packer calls “the due process model” and the “crime control model” - These models are abstract representations of two value systems concerning the relationship between policing and law. The tension (normative antinomy) between these value perspectives creates the observable ambivalence, conflict and disharmony in the police-law relationship - Point is that these two systems have a normative antimony (a mutual incompatibility of two laws or premises – two ways of thinking – two systems of thought) o Gives rise to disharmony and confusion – it isn’t mechanistic - Rule of law doesn’t tell us what to do – you will use your discretion Crime Control Model - The most important thing about criminal justice process is that it controls crime - Principal way of putting crime in its place is deterrence through fear of punishment and putting them in jail - Repression of crime is most important function because order is most necessary thing of a free society - Law quite rightly gives police powers to investigate, arrest, search, seize and conduct - Beccaria: in order for deterrence to work it must be swift and sure - In order for things to move along swiftly, legal technicalities that handcuff the police should be minimized or eliminated - The main objective of the process should be to discover the truth or to establish the factual guilt of the accused - The victim’s rights should be vindicated, don’t necessarily worry about the offender’s rights o Main thing is to get the bad guy and then the victim will be happy Due Process Model - Most important function of CJS is to provide due process to ensure fundamental fairness under the law - Police powers should be limited to prevent official oppression of the individual o State is mighty power and it can crush us and so due process restrictions are a way of protecting us from an over-powerful state - The CJS process should look like an obstacle course, consisting of a series of impediments that take the form of procedural safeguards that serve as much to protect the factually innocent as to convict the factually guilty o To make sure the bad guy isn’t always weeded out first and instantly - Criminal justice authorities should be held accountable to rules, procedures and guidelines to ensure fairness and consistency in the justice process - Persons should not be found guilty on the basis of the facts alone; a person should be found guilty only if the government follows legal procedures in its fact-finding o Police may have caught you with the gun, but if they found that gun in your car without a requisite search warrant, the fact that you have the guilty gun, doesn’t count - Because of potential for the state to become an opp
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