Rationale of UK criminal act

Rationale of UK criminal act

By Adrianus Meliala

JAKARTA (JP): One of the most controversial issues in the United Kingdom last year was the passing of the Criminal Justice Act. Despite its name, the act did not touch on the legal process and mechanism involving the four institutions in the criminal justice system: the police, the prosecutors, the court and the correctional institutions.

On the contrary, it gives more authority to the police to process any citizen suspected of having committed an illegal action. In other words, the act has added to the list of legally prohibited actions. It is understandable that so many members of the community have become so upset by the ratification of the act.

Based on the new policies, parties and social gatherings -- both formal or informal -- will be considered illegal if no prior permit has been obtained. This is so much like the situation in Indonesia.

People should think twice before they stage demonstrations, occupy a piece of land, or a building illegally, or have a gathering on somebody else's property without permission, as three month's imprisonment, or a fine of 2,500 pounds (US$4,000) can entail.

The new act also allows the police to intervene in social interaction. A person may be searched and detained if the police suspect that he is about to become involved in an act of violence. This person, or persons, may have their blood, urine, pubic hair or other specimens taken and kept as criminal samples in the police data center. An act of silence in front of an investigator can lead to being declared guilty of having committed the charged illegal action.

Uncovering the reasoning behind the act should prove to be both interesting and necessary given that Indonesia adopts similar policies.

There were several reasons for the passing of Criminal Justice Act. Increasing unemployment, high crime rates and increasingly frequent infringement of individual property rights were the main causes. Individual freedom was considered excessive in that it was already causing a lot of damage. One example is the hooliganism phenomenon, or brawls between fanatic supporters of football clubs.

In an adversarial legal system, such as the one that Britain has, the judiciary institution is not supposed to interpret a regulation to determine its applicability or non-applicability to a particular case, be it criminal or civil. On the other hand, each time a difficult case is brought to court and there are not enough pertinent clauses to govern it, special regulations can be created. The British police, for instance, always had difficulty in charging troublemakers at the compound of football stadiums. So, all of this became the rationale for passing the justice act.

As the result, however, the U.K. now has a new policy with a strong tendency toward becoming excessively "criminalizing" as it tries to implement a "get tough" policy. There are three factors that have to be taken into consideration before this particular policy can be made effective. First, the police should be given additional authority, which could lead to overly vigilant policing. Second, more correctional institutions must be made available to accommodate increasing numbers of inmates. Third, a number of inter-individual conflicts should now be treated as conflicts between individuals and the state so that law enforcers will be able to interfere in situations that have the potential to lead to the breaking of the law.

In the past, property owners would have to confront their land or house tenants in civil courts if they had a dispute. Today, the police can be called to intervene. In the past the substance of the case was the failure of one party to deliver on his promise to the other party, while today it would be considered aggravated trespass. In this manner, the law is seemingly partial to certain individuals, regardless of the fact that these indi viduals may not be entirely innocent.

Obviously there is potential for excesses to stem from this tough criminal policy. The first possibility is the tendency to criminalize the "intention" to take some illegal action instead of the "behavior" itself. This reflects a turning around from the principle of "no criminal justice if there is no crime". Today, in order to get oneself detained by the police on the charges of involvement in a scuffle, one does not need to really get involved; it is sufficient for one just to watch the action, or to be at the scene at the time of a crime.

The second possibility is the tendency to regulate cases that actually do not require additional regulation in the guise of pre-emptive effort. That is why, just to do business in trading, for example, one has to obtain so many different permits.

Another area that has been substantially affected by the act is civil liberties. A discussion on this single topic would take us an entire day; therefore, suffice it to say that the right to civil liberties has emerged to counter the power of the authorities and the legal systems, both of which are always far more powerful and tend to limit the civil liberties of its citizens.

The act's elimination of the right to remain silent in front of investigators or the judge is one indicator; the silence would only incriminate a suspect. The law would consider him guilty of the charged crime.

On this basis, the legal bodies must gather as much incriminating evidence as possible, while the defense attorneys must gather as many facts as possible in favor of the defendant (based on the Police and Criminal Evidence Act). The court of law will then make its decision based on the most overwhelming evi dence. If such a process were not followed, the state would have unlimited freedom to accuse anybody -- including members of political opposition groups -- of having committed crimes.

Should this ever happen, it would mean that a miscarriage of justice has occurred. Many fear that this will be the case when someone has a DNA (deoxyribonucleic acid) sample taken and kept in criminal files without sufficiently strong reasons. The fact that a person may suffer life-long stigma because he has a criminal record seems to have escaped the consideration of the designers of the Criminal Justice Act.

It is also interesting to note that each time there is a strong reaction against controversial, tough criminal policies, law enforcers everywhere talk about the possibility of discretion. Discretion is the legal power to decide whether or not a case of minor offense should be brought to court.

This is exactly what has happened in the British police force, in which there is a strong reluctance to accept such a large scope of power -- which also means more work to be done. In this respect, the police have stated that they are not going to process all suspects who, otherwise, under the stipulations of the act, would have to be prosecuted.

The problem with discretion is that it always contains a bias. The bias may lie in the perception that individuals with certain character traits tend to commit criminal actions. Another example of bias is the attitude among law enforcers who believe it is not necessary to be lenient toward individuals with certain traits and that these people should always be punished strictly according to the law. In the context of England, such cases have happened and will continue to happen because of the justice act.

What is the lesson that we can learn from the Criminal Justice Act? In Indonesia, it seems that the relationship between tough criminal justice and civil liberties is not very obvious. There are several reasons for this. Among others, the perception of civil liberties in Indonesia obviously differs widely from that in Western societies. In other words, a tough criminal policy will not affect our society in general.

Nevertheless, it is still difficult to determine to what extent the society remains unaffected and where the boundaries are. Analysis has been done of the relationship between clashes between groups of people and law enforcers that have occurred in this country and the possibility that the public has become fed up and full of resentment as the result of continued oppression.

The writer is a criminologist from the School of Social and Political Science, University of Indonesia.