Case construction and the goals of criminal process. ('The Case for the Prosecution' by Mike McConville, Andrew Sanders and Roger Leng)

Mc Conville, Sanders and Leng (1991) have argued that the police play the dominant role in a process that constructs the suspect population and produces prosecution cases. Whereas the public rhetoric of the law proclaims ideals of fairness and equality, the process of case construction is driven by the values of crime control. By contrast, this article shows that the criminal justice system can neither be understood nor justified except by reference to the goal of crime control, and that the values of crime control and due process are closely intertwined. Policing cannot be understood as having the function of producing convictions: it evidently has much wider goals. It follows from the essential functions of the police that they tend to be beyond the direct control of the law; the challenge for social science is to understand why rules and values relating to due process influence the police in some circumstances and not in others.

In their response to criticisms of The Case for the Prosecution,(1) Mike McConville and Andrew Sanders (1995) have maintained that their contribution to theory has been ignored or misunderstood. `One plausible explanation for this', they have written, `is the administrative criminological mind-set which views theoretical discussion as a threat to the policy repair kits that administrators from time to time apply to the criminal justice process' (McConville and Sanders 1995: 201). They have quietly regretted the failure of academic critics `to confront the principal arguments rather than to traduce them' and have stated, perhaps with a touch of piety, that `In this respect, the achievement of some critics has fallen below accepted standards and thereby served to inhibit progress' (ibid.). In response to that cue, this article aims to engage with the ideas set out so effectively in CFP. It is worth having this debate, because these views are shared by many commentators on the eastern side of the Atlantic.

The central argument of the book is that the case for the prosecution is the outcome of an active process of construction, or creation, in which the police play the dominant role. Prosecution is thus a mode of production. This view that the police and prosecutors produce the cases is to be contrasted with the simple-minded idea that they strip away a series of veils to reveal the reality or truth of a person's actions and guilt. Whereas the public rhetoric of the law proclaims ideals of fairness and equality, which are often assumed to be enshrined in rules of due process, in practice the system largely expresses the values of crime control. Most of CFP is devoted to analysis of the law and of empirical evidence on a sample of cases to show that the criminal justice process is not governed by the ideals of fairness and equality before the law. Instead, the case for the prosecution is largely constructed out of assumptions and interpretations springing from crime control values.

There are two main points to be made in reply. First, crime control is necessarily the goal of criminal process, and the criminal justice system can neither be understood nor justified except by reference to that objective. The argument, and the insistent rhetoric, of CFP, rests on a contrast between crime control and due process arising from a reading of Herbert Packer's book The Limits of the Criminal Sanction (1968). Yet a central argument of that book is that crime control and due process, although in tension, are also interdependent. Due process values are needed because they help to achieve the goal of convicting the guilty, and because the system cannot be effective in deterring potential offenders if they see that it is arbitrary, whimsical, and likely to convict the innocent. In fact, as explained below, Packer anticipated and explicitly rejected CFP's interpretation of his schema.

Secondly, the idea that the criminal justice process is driven by the need of the police to obtain convictions is a serious distortion that ignores a great weight of sociological evidence. The goals of the police are much wider than those of the criminal justice system. A policing objective (such as controlling a fight) can often be achieved by taking immediate action (including making arrests) regardless of whether there are later any convictions. Police behaviour cannot generally be explained on the assumption that the objective of securing a conviction overrides due process rules. Instead, the police pursue a number of goals, take account of various values, and are influenced by both formal and informal systems of rules. Hence the relationship between rules of due process deriving from the law and policing behaviour is bound to be indirect and complex. The crude schema proposed by CFP does not help us to understand which due process rules are likely to be influential.

In the first section I summarize the main arguments of CFP without adding my own views, but bringing out the ideas that I discuss later. In the second section I comment critically on CFP's interpretation of labelling theory and on the idea that the population of suspects is constructed by the decisions of the police and the prosecutors; I also show how policing behaviour can often be explained by factors other than the overriding need to secure a conviction. In the third section I summarize Packer's account of the goals of criminal justice, discuss his Crime Control and Due Process Models, and show that CFP is based on a misinterpretation or distortion of his views. In the fourth section I outline a much richer and more convincing account of the goals of policing than CFP's: the one set out in 1970 by Egon Bittner. I show that the variable influence of due process rules on the police can only be understood in the context of this richer account of the goals of police work. In the final section I conclude that to treat due process as the goal of criminal justice, as CFP does, is a fundamental mistake which reduces the likelihood that due process values will have an influence.

The Main Arguments of `The Case for the Prosecution'

Many of CFP's main arguments are drawn from Doreen McBarnet's book Conviction: Law, the State and the Construction of Justice (1981). This is particularly true of the argument about case construction, a concept that the authors repeatedly hammer home by printing the world in italics. The problem with the idea of case construction is that, depending on how far it is pushed, it is either an unexceptionable statement of the obvious, or it goes much too far both in philosophical and in factual terms. On a minimal interpretation, the argument could simply mean that the police and prosecutors put together the case against the accused, and have an important influence on what evidence is collected, on how it is interpreted, and on the interactions (such as interviews with the accused, with victims, or with witnesses) from which the evidence emerges. Stated in that way, the theory of case construction sounds like a statement of what everyone already knows. In factual terms, the minimal theory simply states that the police have an important influence on the way the evidence is generated and selected. How could it be otherwise, given that the police are the body responsible for carrying out the investigation? Because evidence is generated by human interactions, it is influenced by people's preconceptions, and it tends to be complex and messy. In other words, as everyone knows, a case is often hard to establish. But this minimal interpretation does not raise any difficult epistemological problem. If (according to the police) one witness says that Harry jumped out of the window, whereas another says he was pushed, we are not tempted to draw the conclusion that there is no true answer to the question whether he jumped or was pushed, and that the view that he jumped, or that he was pushed, are each constructs of contrasting perspectives and ideologies. On the contrary, it is quite consistent with this minimal theory of case construction to believe that a thorough investigation has shown with a high degree of certainty that Harry was, in fact, pushed.

The maximal theory of case construction makes much larger claims in both factual and philosophical terms. Factually, the claim is that the police are always in a position to control the way the evidence is generated and to suppress competing accounts, and this is necessarily so because of structural factors, including the function of the police within the criminal process, and their key position in the general power structure. Because police dominance of case construction flows from deep structural factors, attempts to control police discretion in constructing cases are bound to fail: indeed, the failure is so inevitable that such reforms cannot be intended to succeed, and in fact subserve a hidden agenda that aims to consolidate and expand police power. The philosophical claim is that no particular account has the unique authority of truth. All accounts are constructed by particular narrators to suit the perspectives and objectives that belong to their station in society, and none can be substantiated by independent or conventionally credible evidence. So nobody can say that Harry was, in fact, pushed. They can only say: `My case is that Harry was pushed.'

On the whole, CFP inclines towards the maximal rather than the minimal version of the case construction theory. The philosophical aspect does not have much importance, because it is very little developed, and because the authors could have made the strong factual claims associated with the maximal theory without adopting an extreme relativism on the nature of knowledge and truth. For most purposes it does not matter whether the claim is that the police can always bend the mirror to give a distorted image of the truth, or that in a world without truth the police narrative is the one that will always prevail. It is best to leave on one side the extreme relativism of CFP, and to concentrate instead on its substantive claims about the criminal justice process.

Claims about how the case is constructed

In more detail, CFP makes a number of strong factual claims about how the case is constructed. It is argued that the police dominate every aspect of criminal process, including identification of suspects, investigation, arrest, detention, interrogation, decision about charge, caution or discharge, decision about bail versus remand in custody, collation of evidence and decision on whether to prosecute. The Crown Prosecution Service (CPS) is subservient to the police, most of all because the file tends to exclude evidence needed to challenge the police view, since it is the outcome of a process of case construction directed by the police. A further reason is that there is no incentive for the CPS to review the case rigorously before endorsing prosecution, because most cases (weak or strong) are disposed of by guilty pleas. If (unusually) the defence signals an intention to exploit a weakness, the case can always be dropped later. In general, it is therefore a successful strategy for the CPS to endorse the police recommendation to prosecute without inquiring closely into the strength of the case, and also without considering public interest factors. Juvenile bureaux have a role in deciding whether to prosecute juvenile suspects, but they too are subordinate to the police for the simpler reason that they are directly under police control.

It is not just the police in general who control criminal process, but more specifically the officer in the case: the arresting officer, and later the investigating officer (who may be different from the arresting officer, and may belong to the uniform or CID branch). It is argued that the custody officer, established by the Police and Criminal Evidence Act 1984 (PACE), although formally assigned an independent role, in practice has little or no influence for example on whether or not a suspect is detained and charged, and with what offence.

The first step in case construction is defining the suspect population. Adopting a version of labeling theory which is ascribes to Erikson (1964) and Lemert (1967) CFP argues that the law enforces play the leading role in deciding who the criminals are, and that criminality is not therefore an objective characteristic of a person. The police construct the population of suspects, through their decisions about who to stop and search, through the use that they make of information received from the public, and through the interpretation they place on events and individuals (for example, who started the fight, who counts as a worthy victim). Here, CFP refers to the extensive evidence that stops and searches target particular sections of the population: namely, young males, especially those who are black (Smith 1983a; Smith and Gray 1983; Dixon et al. 1989; 1990). CFP also claims that it is young working class males, rather than those belonging to the middle classes, who are the target of stops, although as discussed in a later section the evidence on this point is more complex (Smith 1983a). CFP argues that the targeting of young working-class males arises because it is easier to police the public spaces where these people spend their leisure time than the private spaces where the deviants are older and more middle-class. It also maintains that the difference in crime rate between males and females arises because females have less access to the public domain that policing covers.

The police exercise a high degree of autonomy in creating the suspect population, because they do this largely on the street and in people's homes, where they are unsupervised. In the police station, their freedom of action is more limited, but even so they are largely successful in creating and controlling the environment in such a way that they can produce `cases' of their own choosing. The first step is the decision to arrest. In the sample of cases analysed in CFP, only 1.8 per cent of adults and 9.2 per cent of juveniles were reported for summons rather than arrested. CFP argues that many more cases could be dealt with by means of summons, but the police have been allowed to adopt arrest as the standard strategy because this allows them to maximize their dominance of suspects through territorial control, enforced detention, isolation and enhanced vulnerability.

Before PACE, the formal procedure required that the charge sergeant should decide whether an arrested person would be charged immediately, detained pending a decision, or released without charge. It was widely accepted, …