week 7

Comparative Criminal Justice Systems and Due Process

Introduction

The rapid pace of globalization, development of technology and rising levels of expectations for human rights has brought its stamp on development of criminal justice systems in recent times, and enhanced due process must pervasively be promoted on a pan-jurisdictional basis. The United Kingdom and European Union demonstrate principles of fairness, accountability, and rule of law, but have varying practices with respect to procedures for safeguarding a person. Such disparities can be found in the process of conducting searches and seizures, pre-trial detention, and evidence requirements. Meanwhile, new issues and technologies like artificial intelligence, digital evidence and transnational crime continue to put to the test traditional legal protections. The aim of this paper is to consider convergence and divergence of the protections afforded by the due process clauses of the law in the UK and EU criminal justice systems.

The principle of due process in the context of criminal justice is a bedrock principle of every democratic system for two reasons: First, it guarantees that a person is not subjected to arbitrary action by the government, and second, it helps to build confidence in the legal system. The UK and EU value ‘fairness, accountability and the rule of law’, but have decided on different interpretations in the way in which due process protections are implemented in practice. The differences are noticeable about pre-trial detention procedures, search and seizure, procedural fairness, and the increasing digitization of criminal justice.

Furthermore, procedural fairness continues to be one of the essential elements of due process since it has a significant impact on public legitimacy and trust in legal processes. Procedural justice is more than just compliance with legal procedures (Schaap & Saarikkomäki, 2022). It also covers issues like fairness, transparency, and non-bias of decision-making processes. The authors contend that structural inequalities and imbalances can disempower public trust in a decision, even if formal procedures are done correctly. There has been a growing emphasis in the United Kingdom and the EU on transparency and accountability in attempts to reinforce procedural fairness in both Member States and the United Kingdom. But the ways in which these protections are given have a distinct effect on countries where their legal traditions differ. Much of the UK law, however, is derived from common law and precedent, whereas in many EU jurisdictions, legality is not codified, and national human rights protection is not necessarily equivalent to that of the EU.

Another area where due process is an issue is pre-trial detention. The rights of accused persons may be seriously impacted as decisions on detention are made prior to determining guilt in court. Dhami and van den Brink (2022) found significant differences in how detention is used in practice in different jurisdictions and how subjective assessments of the child play a greater part than objective laws in the decision-making process. These inconsistencies give rise to suspicions over the arbitrary deprivation of liberty and the unequal treatment in the eyes of the law. A key concern of European jurisdictions is proportionality and necessity, as seen in the assessment of detention; a commitment to human rights protection has been seen in many European jurisdictions.

Due process protections are again illustrated in the context of criminal investigations, where police authorities exercise their own power. Effective law enforcement and prevention of abuse of power are akin to a fine line for criminal investigations. Amagnya (2022) discussed police prosecutions and found that there were issues about instances involving overlapping roles between the police and prosecutors. Poorly defined duties between the investigative and prosecutive agencies may create a risk of compromise of the fairness of the procedure. The separation of police and prosecution in the United Kingdom and most of the European Union jurisdictions is greater than in most other jurisdictions, but there is a continuing debate about issues of discretion, bias, and accountability. A separation of investigative and prosecutive functions is a valuable protection against the possibility of miscarriage of justice and unfair procedure.

As technology has advanced and digital evidence has become a greater issue, search and seizure protections are becoming ever more complex. Traditional legal rules pertaining to search were created mostly with respect to tangible items and physical evidence. Today, however, with the rise of electronic communications, cloud storage, and data that spans several jurisdictions, criminal investigations can become an electronic game. But, in today's world, with electronic communication, cloud storage systems, and data in several jurisdictions, the task of investigation may be an electronic game. In the case of cross-border investigations, Casino et al. (2022) stated that most often, there are law-related obstacles, such as divergent state laws, data access regulations, and privacy laws. The issues are such that a compromise between privacy and constitutional protection and the investigative needs is required between legal system provisions.

The European Union has demonstrated more restrictive views on 'uneditable' evidence in the context of illegally obtained evidence. Panzavolta & Maes (2022) believe the use of such exclusionary rules can foster the respect of due process because they make illegal searches and violations of individual rights undesirable and less likely. The U.K. has a more liberal history of granting admissibility to evidence. This difference is indicative of the civil law-common law distinction in general. Both operate on the principle of equality, but the European Union generally leans towards stability when it comes to the rights granted, whereas the U.K. leans towards judicial discretion.

Perhaps the greatest future threat to the protection of due process arises from emerging technologies. AI is being increasingly adopted to forecast crime events, to make risk assessments, and to design crime prevention strategies. These tools have the promise of developing resource optimization and efficiency, but also present dangers of transparency and accountability. As with many algorithmic systems, Blount (2022) cautions, the algorithm is a “black box,” and it can be hard for defendants and lawyers to understand “how [such] decisions are made.” Such transparency may jeopardize the rights of due process and heighten the possibility of discriminatory outcomes occurring. Indeed, Zilka et al. (2022) highlight the necessity of oversight and governance to hold algorithmic decision-making to account and make it comprehensible. The EU seems to have materially undertaken a more restrictive regime with greater emphasis on human rights' protections, whereas the United Kingdom has maintained a moderate approach, that is, with greater emphasis on requirements for innovation-related oversight.

Overall, there is a similarity that both the UK and the EU have adhered to due process in the criminal justice system and the rule of law. They have some differences in how they put or may put into practice procedural safeguards, evidence control, and new technology issues. Both will constantly have to evolve and adapt to meet the challenges thrown at them by the growth of AI, digital evidence, and transnational crime, but retain the very principles of democratic justice that are the starting point of our rights.

Conclusion

In summation, European Union jurisdictions tend to be more consistent and settled on how rights will be treated (and more important), UK common law bases allow for greater flexibility in judicial interpretation. The systems are, however, increasingly affected by new issues like the use of artificial intelligence, digital evidence and transnational crime cases that take them into issues where existing procedural safeguards are affected. In moving forward, both governments need to evolve and maintain fundamental democratic values of fairness, justice, and respect for human rights.

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

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

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

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

Comparative Criminal Justice Systems and Due Process

Due Process, Procedural Fairness, and Emerging Challenges in Comparative Criminal Justice

Introduction

The rapid pace of globalization, development of technology and rising levels of expectations for human rights has brought its stamp on development of criminal justice systems in recent times, and enhanced due process must pervasively be promoted on a pan-jurisdictional basis. The United Kingdom and EU demonstrate principles of fairness, accountability and rule of law, but have varying practices with respect to procedures for safeguarding a person. Such disparities can be found in the process of conducting searches and seizures, pre-trial detention, and evidence requirements. Meanwhile, new issues and technologies like artificial intelligence, digital evidence and transnational crime continue to put to the test traditional legal protections. The aim of this paper is to consider convergence and divergence of the protections afforded by the due process clauses of the law in the UK and EU criminal justice systems.

The principle of due process in the context of criminal justice is a bedrock principle of every democratic system for two reasons: First, it guarantees that a person is not subjected to arbitrary action by the government, and second, it helps to build confidence in the legal system. The UK and EU value ‘fairness, accountability and the rule of law’, but have decided on different interpretations in the way in which due process protections are implemented in practice. The differences are noticeable about pre-trial detention procedures, search and seizure, procedural fairness, and the increasing digitization of criminal justice.

Furthermore, procedural fairness continues to be one of the essential elements of due process since it has a significant impact on public legitimacy and trust in legal processes. Procedural justice is more than just compliance with legal procedures (Schaap & Saarikkomäki, 2022). It also covers issues like fairness, transparency, and non-bias of decision-making processes. The authors contend that structural inequalities and imbalances can disempower public trust in a decision, even if formal procedures are done correctly. There has been a growing emphasis in the United Kingdom and the EU on transparency and accountability in attempts to reinforce procedural fairness in both Member States and the United Kingdom. But the ways in which these protections are given have a distinct effect on countries where their legal traditions differ. Much of the UK law, however, is derived from common law and precedent, whereas in many EU jurisdictions, legality is not codified, and national human rights protection is not necessarily equivalent to that of the EU.

Another area where due process is an issue is pre-trial detention. The rights of accused persons may be seriously impacted as decisions on detention are made prior to determining guilt in court. Dhami and van den Brink (2022) found significant differences in how detention is used in practice in different jurisdictions and how subjective assessments of the child play a greater part than objective laws in the decision-making process. These inconsistencies give rise to suspicions over the arbitrary deprivation of liberty and the unequal treatment in the eyes of the law. A key concern of European jurisdictions is proportionality and necessity, as seen in the assessment of detention; a commitment to human rights protection has been seen in many European jurisdictions.

Due process protections are again illustrated in the context of criminal investigations, where police authorities exercise their own power. Effective law enforcement and prevention of abuse of power are akin to a fine line for criminal investigations. Amagnya (2022) discussed police prosecutions and found that there were issues about instances involving overlapping roles between the police and prosecutors. Poorly defined duties between the investigative and prosecutive agencies may create a risk of compromise of the fairness of the procedure. The separation of police and prosecution in the United Kingdom and most of the European Union jurisdictions is greater than in most other jurisdictions, but there is a continuing debate about issues of discretion, bias, and accountability. A separation of investigative and prosecutive functions is a valuable protection against the possibility of miscarriage of justice and unfair procedure.

As technology has advanced and digital evidence has become a greater issue, search and seizure protections are becoming ever more complex. Traditional legal rules pertaining to search were created mostly with respect to tangible items and physical evidence. Today, however, with the rise of electronic communications, cloud storage, and data that spans several jurisdictions, criminal investigations can become an electronic game. But, in today's world, with electronic communication, cloud storage systems, and data in several jurisdictions, the task of investigation may be an electronic game. In the case of cross-border investigations, Casino et al. (2022) stated that most often, there are law-related obstacles, such as divergent state laws, data access regulations, and privacy laws. The issues are such that a compromise between privacy and constitutional protection and the investigative needs is required between legal system provisions.

The EU has demonstrated more restrictive views on 'uneditable' evidence in the context of illegally obtained evidence. Panzavolta & Maes (2022) believe the use of such exclusionary rules can foster the respect of due process because they make illegal searches and violations of individual rights undesirable and less likely. The U.K. has a more liberal history of granting admissibility to evidence. This difference is indicative of the civil law-common law distinction in general. Both operate on the principle of equality, but the European Union generally leans towards stability when it comes to the rights granted, whereas the U.K. leans towards judicial discretion.

Perhaps the greatest future threat to the protection of due process arises from emerging technologies. AI is being increasingly adopted to forecast crime events, to make risk assessments, and to design crime prevention strategies. These tools have the promise of developing resource optimization and efficiency, but also present dangers of transparency and accountability. As with many algorithmic systems, Blount (2022) cautions, the algorithm is a “black box,” and it can be hard for defendants and lawyers to understand “how [such] decisions are made.” Such transparency may jeopardize the rights of due process and heighten the possibility of discriminatory outcomes occurring. Indeed, Zilka et al. (2022) highlight the necessity of oversight and governance to hold algorithmic decision-making to account and make it comprehensible. The EU seems to have materially undertaken a more restrictive regime with greater emphasis on human rights' protections, whereas the United Kingdom has maintained a moderate approach, that is, with greater emphasis on requirements for innovation-related oversight.

Overall, there is a similarity that both the UK and the EU have adhered to due process in the criminal justice system and the rule of law. They have some differences in how they put or may put into practice procedural safeguards, evidence control, and new technology issues. Both will constantly have to evolve and adapt to meet the challenges thrown at them by the growth of AI, digital evidence, and transnational crime, but retain the very principles of democratic justice that are the starting point of our rights.

Conclusion

In summation, EU jurisdictions tend to be more consistent and settled on how rights will be treated (and more important), UK common law bases allow for greater flexibility in judicial interpretation. The systems are, however, increasingly affected by new issues like the use of artificial intelligence, digital evidence and transnational crime cases that take them into issues where existing procedural safeguards are affected. In moving forward, both governments need to evolve and maintain fundamental democratic values of fairness, justice, and respect for human rights.

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

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

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

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