Due process is the equal protection of law to all men and women

According to Young and Burton Criminal justice system is a complex social institution which regulates potential, alleged and actual criminal activity within limits designed to protect people from wrongful treatment and wrongful conviction. Criminal justice system can be described as a series of interlocking and interdependent processes which are triggered by the report or discovery of an alleged offence. The two main aims of criminal justice system as listed out by The Auld Review of the Criminal Courts in 2001 are: reducing the crime rate and dispensing justice fairly. Criminal justice system regulates detection and investigation of crime, gathering evidence, arresting, charging, and prosecuting and also to prevent citizens from doing what is criminal. The police and Crown Prosecution Service together with the judges and juries incorporating the Criminal Cases Review Commission’s recommendations work together to achieve the goals of the criminal justice system. The Common Law jurisdictions operate according to the adversarial system unlike the civil law jurisdiction which follows the inquisitorial system. Therefore judge is not involved in the process of gathering evidence and the duty of the judge is to assess them neutrally through overseeing the process. Since the state is the prosecuting body against an individual in a criminal case, possibility of unfairness through imbalance of power is eliminated by protection given to those accused of criminal offences. Fair justice system is an essential component of the rule of law. The World Justice Project argues that an effective criminal justice system is a key aspect to the rule of law because it is the ‘natural mechanism’ to redress grievances. Due process has been listed as one of the main component of a well-functioning criminal justice system according to WJP.
The requirement of balance of power is considered to be a major issue in which prominence given to controlling methodologies against the fair treatment of the accused differ according to various societies. Packer came up with two models as an attempt of proper balance of power. He named them as ‘crime control’ and ‘due process’ models. Tis can be used as aids in evaluating the approach and fairness of the criminal justice processes. Crime control model is a policy of social conservatism which depicts that the most important function by the criminal justice system is to punish offenders so that it reduces crimes in future. It is to be functioned by fast and efficient processing of suspects and rapid determination of guilt. This sort of process will result in high rate of apprehension and conviction of suspected offenders and chances of challenging the decision will be limited. In comparison the due process model put forwarded by Packer talks about procedural justice than substantial justice where the rights and liberties of the accused are given more prominence. That includes complex rules of evidence, use of juries and the right to remain silent. Packer argues that if the crime control model assembles an assembly line, the due process model looks very much like an obstacle course. While the crime control places heavy reliance on investigative skills, the due process model stresses the possibility of error in collecting the evidence, in the memories of witnesses. The risk in the criminal justice system influenced largely by the due process values is that guilty people would be wrongly acquitted because of the importance given to their rights and liberties. As per William Blackstone the law holds that it is better that ten guilty persons escape, than that one innocent suffer. Articles of the ECHR which deals with are: Article 6 — right to a fair trial, Article 5 — freedom of arbitrary detention, Article 3 — freedom from inhuman and degrading treatment and Article 8 — right to privacy. The requirements of due process are that laws should be known, individuals should know the case against them, they should be given an opportunity to defend themselves, and decisions should be reached by an objective and impartial decision maker. Mainly Article 6 of the ECHR guarantees a clear and positive right for a fair trial. Article 6 (1) entitles everyone to a fair public hearing with reasonable time by an independent and impartial tribunal established by law. Stressing on public hearing makes the process transparent which assures justice done and will be seen to be done. Article 6 (2) brings on the presumption of innocence where the accused is presumed to be innocent until the prosecution proves that the accused is guilty. Even the minimum rights that a person charged with criminal offence entitled to, is defined in article 6 (3). There should be sufficient substantial evidence to prove that someone is guilty and if the person’s liberty is taken or interrupted without courts having evidence to prove his wrongdoing, then the court is liable to award damages to the accused.
Steps have been taken in the investigation of crime where police and their powers are included to make sure that the individual’s liberty and autonomy is not infringed. The main functions of the police are: preventing crime, detecting and apprehending offenders who committed the crimes, carrying out investigation about the crime and collecting evidence. One of the most important powers given to the police in doing their duty is the power to stop, search, arrest and detain suspects. To make sure that the police act within their powers and exercise those powers fairly, the government based on the rule of law implemented various regulations. The Police and Criminal Evidence Act 1984 (PACE) can be named as one of the most significant statutory provision which has been passed to regulate the power exercised by the police. Police breaching the law under the act would make them liable to civil or criminal proceedings. Evidence obtained by the police in breach of Codes of Practice might be excluded at trial because of the fact that it was obtained unlawfully even though breach of Codes of Practice is not considered to be unlawful. Furthermore s.78 of PACE says that the courts have the discretion to refuse the evidence if allowing the evidence might pave way to negative impact on the fairness of proceedings. The police officer’s authority to stop and search any person or vehicle for stolen or prohibited article given under s.1 of pace is subjected to limitation where the police officer is allowed to do so only if he had reasonable grounds for suspecting the person regarding the possession. Even in this case there has been issues regarding the police mostly stopped and searched minority unreasonably and it was named as one aspect of institutional racism within the police.
An arrest can be defined as the deprivation of a person’s liberty by the legal authority even for a short period of time. Lord Dilhorne in Spicer v Holt stated that a person’s arrest does not depend upon the legality of the arrest but whether he has been deprived of his liberty to go where ever he wants. Article 5 of the ECHR talks about the right of liberty and arrest is a clear breach of Article 5 of the ECHR if it was done unlawfully. According to s.24 of PACE the situations in which a police officer can arrest a person lawfully are: when a person is about to commit n offence, when a person is in the act of committing an offence, when the police officer has reasonable grounds to for suspecting that the person is about to commit an offence, or when the police officer has reasonable grounds to suspect that the person is to be committing an offence. The police officer is under a duty to tell the person that he/she is under arrest and the reason for the arrest. In the case of McCann v Crown Prosecution Service, the arrest based on a mistaken belief of the police officer did not render the arrest unlawful. If there is reasonable grounds, then that is sufficient for the arrest to be lawful. The directions to be followed after arrest are also listed out in the Act. The arrested person should be taken directly to a police station and brought before the custody officer who is responsible of supervising the detention process. For most offences a person can be detained up to 36 hours without charge. Though the Terrorism Act 2006 allows arrested person to be detained for up to 14 days, under PACE maximum period allowed to detain without charge is 96 hours.
All these measures and procedures are to protect the rights of the accused rather than punishing the accused. In criminal proceedings, due process promotes rule of law because rule of law stresses the right to fair trial to all men and women. Even the crime control has got its own regulations and limitations which leads to procedural fairness. Therefore it can be concluded that course of due process promotes equal protection of law to all men and women.