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.