week 7

Comparative Criminal Justice Systems & Due Process Outline

United Kingdom and European Union Legal Systems

I. Introduction

1. Background

· Globalization, technology, and human rights apply more and more to criminal justice systems in present societies and demand more due process protection from one jurisdiction to the other.

· The United Kingdom and the European Union are two similar but not identical legal systems where there are variations in the application of the principles of procedural fairness, search and seizure principles, and principles of a ‘fair trial'.

· Thirdly, there is emerging scholarly discussion about the likelihood of increased phenomena of AI usage, digital evidence, and transnational offending that are creating worries with traditional safeguards afforded in criminal justice (Blount, 2021; Casino et al., 2021).

2. Thesis Statement

In the UK and EU criminal justice systems protections of fundamental rights and the rule of law shows some degree of convergence and divergence.

II. Body

First Topic: Due Process and Procedural Fairness in Criminal Justice Systems

Point A: Foundations of Procedural Justice

· In both the UK and the EU systems of investigation, prosecution or adjudication, there is a guarantee of the fairness of the process to be gone through, known as due process.

· Procedural justice focuses on the perception of having fairness and trust in the judicial system (Schaap & Saarikkomäki, 2022).

· Structural inequality/explicit inequalities in power within institutions shape experiences of fairness in both jurisdictions.

Point B: Pre-Trial Decision-Making and Fairness

· Judges' decisions on (pre)trial detention is highly variable and depend on personal whims and computational powers (Dhami & van den Brink, 2022).

· EU systems tend to be more important on proportionality and rules of detention in relation to rights, than are more forthright systems in the UK.

· Treatment may not be the same, and there may be interference with liberty rights, due to inconsistent decisions made.

Second Topic: Criminal Investigation, Police Authority, and Early Justice Processes

Point A: Police Discretion and Investigative Fairness

· Decision-making structures in the police and similar entities can achieve biases and lack of neutrality during investigations (Amagnya, 2022).

· Separation of investigative vs. prosecutive function is a significant due process protection.

· The level of institutional independence within a system between the police and the prosecutor varies between the UK and the EU.

Point B: Systemic and Comparative Considerations

· African comparative systems highlight how institutional constraints can weaken procedural fairness, offering contrast for UK and EU analysis (Winterdyk, 2022).

· Legal traditions influence how discretion is structured within policing systems.

Third Topic: Search and Seizure

Point A: Traditional vs Digital Search and Seizure

· Digital evidence and cross-border investigations is a very big challenge to search and seizure protections (Casino et al., 2022).

· Traditional legal frameworks were designed for physical evidence, not digital environments.

· Jurisdictional conflicts arise over data access and privacy protections.

Point B: EU vs UK Evidence Standards

· EU legal systems put more emphasis on stronger exclusionary rules for illegally obtained evidence (Panzavolta & Maes, 2022).

· The UK heavily dwells on flexible evidentiary discretion within common law traditions.

· There is tension between security interests and individual privacy rights.

Fourth Topic: Self-Incrimination and Fair Trial Protections

Point A: Interrogation Rights and Due Process

· Both systems constitute protection against self-incrimination, and neither is as effective in its application as is the Other.

· Access to legal assistance and procedural safeguards have an impact on Fair Trial rights (Amagnya, 2022).

· Case outcomes are affected - in a significant way – by early-stage procedural protections.

Point B: Access to Legal Safeguards

· The unequal access to counsel during initial proceedings might have an adverse impact on weakens due process protections (Dhami & van den Brink, 2022).

· EU is more likely to establish a more uniform protection in the field of human rights.

· UK system is more heavily based on (national) legal principles and trends.

Fifth Topic: Artificial Intelligence and Criminal Justice Decision-Making

Point A: AI in Criminal Justice Systems

· Predictive policing and crime prevention (PCP) and machines that make predictions about which crimes are most likely to happen and where they will take place are increasingly employing artificial intelligence (AI) (Blount, 2022).

· Clarification is required with regards to the transparency, bias, and accountability of AI systems.

· The Opaque algorithms can challenge the right to due process protections.

Point B: Algorithmic Governance and Regulation

· UK criminal justice systems have vastly integrated algorithmic tools under regulatory oversight (Zilka et al., 2022).

· EU systems on the other hand puts more emphasis on transparency and human rights compliance in algorithmic decision-making.

· Lack of explainability in AI systems may violate fairness principles.

III. Conclusion

· Criminal justice systems of the United Kingdom and of the European Union have some common elements of due process but are not identical.

· EU systems tend to support more predictable rights protection, whilst the UK's common law tradition offers more flexible rights protection.

· New issues like artificial intelligence, digital evidence and transnational crime are and will continue to affect the due process rights of both systems.

References

Amagnya, M. A. (2022). Due process in police-led prosecutions: Views of Ghanaian police prosecutors. International Journal of Police Science & Management, 146135572210895. https://doi.org/10.1177/14613557221089562

Blount, K. (2022). Using artificial intelligence to prevent crime: implications for due process and criminal justice. AI & SOCIETY, 39(1). https://doi.org/10.1007/s00146-022-01513-z

Casino, F., Pina, C., López-Aguilar, P., Batista, E., Solanas, A., & Patsakis, C. (2022). SoK: cross-border criminal investigations and digital evidence. Journal of Cybersecurity, 8(1), 1–18. https://doi.org/10.1093/cybsec/tyac014

Davis, F. (2022). Judicial Review of Deferred Prosecution Agreements: A Comparative Study. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4072985

Dhami, M. K., & van den Brink, Y. N. (2022). A Multi-disciplinary and Comparative Approach to Evaluating Pre-trial Detention Decisions: Towards Evidence-Based Reform. European Journal on Criminal Policy and Research. https://doi.org/10.1007/s10610-022-09510-0

McConnell, B. (2022). Racial Sentencing Disparities and Differential Progression Through the Criminal Justice System: Evidence From Linked Federal and State Court Data. https://doi.org/10.48550/arxiv.2203.14282

Newburn, T., & Jones, T. (2022). Policing, punishment and comparative penality. British Journal of Criminology, 62(5). https://doi.org/10.1093/bjc/azac032

Panzavolta, M., & Maes, E. (2022). Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union. The International Journal of Evidence & Proof, 136571272210883. https://doi.org/10.1177/13657127221088328

Rose, C. (2022). Enforcing the “Community Interest” in Combating Transnational Crimes: The Potential for Public Interest Litigation. Netherlands International Law Review. https://doi.org/10.1007/s40802-022-00214-0

Schaap, D., & Saarikkomäki, E. (2022). Rethinking police procedural justice. Theoretical Criminology, 26(3), 136248062110566. https://doi.org/10.1177/13624806211056680

Winterdyk, J. (2022). Comparative Criminology and Criminal Justice within the African Continent. Strathmore Law Journal, 6(1), 46–70. https://doi.org/10.52907/slj.v6i1.157

Zilka, M., Sargeant, H., & Weller, A. (2022). Transparency, Governance and Regulation of Algorithmic Tools Deployed in the Criminal Justice System: a UK Case Study. Proceedings of the 2022 AAAI/ACM Conference on AI, Ethics, and Society. https://doi.org/10.1145/3514094.3534200