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CRIMINAL JUSTICE POLICY AND THE OPERATION
OF THE CRIMINAL JUSTICE SYSTEM
THE OPTION FOR CHANGE
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| 1. |
Is there a need - are there benefits for
co-ordination within a smaller nation?
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The criminal justice system is a particularly
conspicuous aspect of the power of the state. The criminal
justice system ought not to operate in isolation in
matters of policy, rather its operation should be influenced
by and will influence social policy in other areas.
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The two broad basic propositions advanced
above may it is suggested be considered, as identifying
a need for change. |
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With respect to the first proposition it
is suggested that the devolution settlement may continue
to be dogged by the perception that Welsh Government is
in reality no more than another form of Local Government
whilst so conspicuous an aspect of the power of the state
is completely undeveloped. There may therefore be a need
for change in this area if one is concerned with the credibility
and authority of Welsh Government. |
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To deal with this point devolution in this
area need not be total. Federal systems, the Privy Council
appeal system and the Scottish system (with its right
of appeal to the House of Lords in civil cases) illustrate
how this can work in practice. |
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Are there benefits for co-ordination within
a smaller nation? |
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The answer to this question is likely to
be yes. A criminal justice system functions best if it
is responsive to and reflects closely the needs and wishes
of its population. The essential co-operation of that
population is best assured by such a relationship. There
is a role for a Welsh dimension in relation to this not
least in the context of encouraging a perception by the
relevant population of the accessibility and community
base for the criminal justice system. |
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Of course a Welsh dimension would have to
be only one tile in the relevant mosaic. Local, England
and Wales (particularly important because of the common
land border) United Kingdom and multinational aspects
for
co-ordination are all obviously very important. |
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It is a cliché but nonetheless true, that
crime knows no frontiers. |
| 2. |
What are the options as to the organisation
of the criminal justice system within Wales and as to
further devolution of functions and powers? |
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To some extent the options here are
unlimited. The devolution of responsibility for the
police, responsibility for the prosecution process and
responsibility for the administration of the Court system
are all possible.
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Devolution in all such areas might carry
with it advantages in the areas noted in the first section
of this paper. Partial devolution in any such areas (probably
completely impractical in relation to the police function)
would seem difficult. Devolution of responsibility for
Magistrates Courts but not the Crown Court would seem
likely to create an unhappy interface of functions. |
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An exception in relation to the desirability
or practicability of devolution with respect to the
administration of the Court system would appear to be
the appeal process. There are disadvantages in a common
law system in having a self contained appeal process
relying for its development upon cases provided by a
relatively small population. The staffing of an Appeal
Court might also be difficult.
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| 3. |
Where should the line be drawn between any
devolved and any non devolved functions and powers? |
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I have already indicated my reservations
about complete devolution of the appeals process. (Although
there should obviously be, in the event of further devolution
in this area, a prominent Welsh element in such a process).
Other areas where devolution would appear to be inappropriate
and where special arrangements would need to be made
would be with respect to the prosecution of "cross-border
offences" and the prosecution of offences directed
against the United Kingdom Government. It should go
without saying in the current climate that no aspect
of what might be proposed ought to have the effect of
weakening the ability to combat terrorism. Arrangements
for the appointment of the judiciary would also need
to be very carefully considered so as to prevent the
operation of nepotism and patronage and to exclude the
suspicion thereof, features in themselves very damaging
to a criminal justice system and incidentally features
for which the last independent Welsh Courts (the Courts
of Great Session) were notorious.
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| 4. |
The capacity to make policy and the implications
of policy that may differ to that applied in England. |
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Although the last subject to be dealt
with in many ways this subject is the most interesting
and the most important. There are cultural, demographic,
economic, resource based and other reasons why different
policy decisions might usefully be taken in Wales as
opposed to England and Wales.
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A common criticism of the criminal justice
system (and I dare say on occasions a valid one) is that
it is too prone to the "knee jerk" response.
A move towards research based change and closer co-ordination
with other areas of social policy might well be easier
in a devolved setting. Research results are more useful
in the area of criminal justice policy and related disciplines
when the product of a study of a more homogenous population.
If there is concern as to rising levels of firearms offences
or youth crime, the nature of the problem may differ looking
at Wales alone as opposed to looking at England and Wales.
The strategy for dealing with such problems ought not
to be confined to an examination of criminal justice policy
and the operation of the criminal justice system. Other
elements of social policy must necessarily also be involved.
A co-ordinated approach based upon research conducted
on a Welsh basis may have clear advantages in delivering
what is wanted, namely lower levels of such crime. A fractured
approach with criminal justice policy being dealt with
on an England and Wales basis but other elements of policy
being looked at on a Welsh basis is unlikely to be as
effective although, of course, some of the difficulties
can be addressed within the existing system. |
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