HUMAN RIGHTS, DUE PROCESS AND SENTENCING.

The aim of this paper is to examine the arguments for adopting a rights-based approach to the analysis of the sentencing process rather than the traditional crime control and due process models developed by Packer (1968). An attempt is also made to further the theoretical debate by suggesting how Giddens's theory of structuration could fruitfully be extended to provide an appropriate theoretical context for the analysis of rights in the sentencing process.

The recent conflict between the judiciary and the executive regarding the sentencing reforms contained in the controversial 1996 White Paper, Protecting the Public and the resultant Crime (Sentences) Act 1997, has focused attention on the nature and protection of individual rights in the sentencing process (see, for example, Nash and Furse 1996; Henham 1996). This concern reflects a wider preoccupation with the implications of increased managerialism, consumerism and politicization of sentencing policy formulation during the last decade (see Lacey 1994; Bottoms 1995). This paper is concerned with two aspects of the debate. In the first instance, it examines the arguments for adopting a rights-based approach to the analysis of the sentencing process rather than the traditional crime control and due process models (Packer 1968). The rights-based approach is exemplified in recent work by Ashworth which focuses on the pre-trial criminal justice process (1994: 26-34, 1996), while Sanders and Young have adopted Packer's normative models in their contemporary analysis of the criminal process (1994: 12-20). Although these writings focus largely on pre-trial as opposed to sentencing aspects of the criminal justice process, the analysis which follows is based on the premise that there are certain normative and analytical issues, central to a contemporary analysis of the criminal justice system, which transcend the specific concerns of discrete components of the process. In other words, despite the fact that at the micro-level different analytical forms and values may exist for each process, the normative questions raised by the rights-based approach and the heuristic capabilities of criminal process models have a wider relevance to the operation of the criminal justice process as a whole.

Packer's Crime Control model stresses the repression of criminal conduct as the most important function of the criminal justice system and focuses on the most efficient ways that this can be achieved, particularly through the disregard of formal legal controls which prove an obstacle to the production of a high conviction rate. The Due Process model, on the other hand, stresses adherence to courtroom procedure and protection of the individual. Packer endeavours to develop these models as representative of two competing sets of normative prescriptions which can be employed as heuristic devices to facilitate the description and analysis of the criminal process. The latter is portrayed as producing a constant interplay between the contradictory demands of the two competing normative positions. Sanders and Young (1994) utilize Packer's typology as a normative measuring rod by relating every aspect of empirical reality to its compatibility with the bipolar normative positions represented in each model, thus imbuing Packer's project with a dichotomous quality which it was not intended to possess. Ashworth (1994: 28-9) doubts the continued utility of Packer's models as a satisfactory theoretical framework for analysis of the criminal process, pointing out that `the models may help us to identify elements of two important strands, but they neglect other conflicting tendencies'. He asserts (without further elaboration) that the search for further possible models is less relevant than the introduction of `certain concepts from the law of evidence' (1994: 29). Ashworth consequently develops a number of fundamental principles and corresponding rights, including rectitude--the need to ensure the reliability and accuracy of evidence, protection of the innocent from wrongful conviction, and the right to consistent treatment within declared policies, the principle that individuals should only be subject to the minimum burdens necessary, and integrity--in the sense that criminal justice agents and the courts should consistently apply morally acceptable practices. Ashworth's basic concern is his rejection of the notion of `balance' between competing interests in the criminal process, although this, as Norrie points out (1995: 342), remains unresolved in Ashworth's theoretical position.

The analysis suggests that both philosophically and sociologically derived positions address different aspects of the same problem. The rights-based approach is concerned to postulate a number of fundamental normative propositions which, as such, have moral rather than empirical validity. The due process and crime control approach is viewed as theoretically deficient, but heuristically valuable as an empirical tool. I therefore argue that each approach is complementary but neither suggests a sufficiently sophisticated theoretical formulation of the criminal process within which rights can be empirically located, their existence and relationship to other variables established, and their significance assessed. The decisions of the European Court of Human Rights relating to the sentencing of dangerous mentally abnormal offenders are presented and analysed in order to illustrate how identifying the existence of rights through the operation of substantive law cannot necessarily be related to normative concerns in the establishment and recognition of fundamental rights. It is suggested that a nexus between philosophical and sociological theory can be achieved by utilizing Giddens's theory of structuration within which substantive rights and principles, which may (or may not) represent normative principles or rights, can be conceptually located and empirically verified. This has the advantage, not only of providing an appropriate theoretical context for rights analysis, but also the potential for wider theoretical evaluation of the criminal process.

Evaluating `Models' of the Criminal Justice Process

In recent work Ashworth has developed a rights-based approach for analysis of the criminal process following his rejection of the conventional theoretical framework developed by Herbert Packer in the 1960s (Ashworth 1994: 29). In so doing Ashworth asserts the need to `introduce certain concepts from the law of criminal evidence' rather than seek to modify Packer's models to encapsulate more modern complexities such as resource management and victim-related rights. Ashworth's principal motivation for abandoning Packer's analysis appears to rest on his desire to jettison the concept of `balance' (as exemplified by the 1993 Royal Commission) in favour of a more rational and principled basis for the promulgation of criminal justice reform (Ashworth 1996).(1) With the exception of Norrie (1995), reviewers of Ashworth's 1994 study unequivocally asserted the significance of this change in approach (Sandland 1995; Greer 1995; Morgan 1996). In his review of Sanders and Young, Sandland refers to their over-reliance on the Packer typology to the extent that `some issues are forced to fit somewhat uneasily within this framework' (Sandland 1995: 679) and Morgan simultaneously complains that Sanders and Young's assumption that the English criminal justice system is characterized largely by crime-control values `runs like a leitmotif through their subsequent exposition' (Morgan 1996: 309). Further, both Sandland and Greer are explicit in referring to Ashworth's alternative approach as a `model' of criminal justice (Sandland 1995: 680; Greer 1995: 648) while Morgan uses the expression `model or principle' interchangeably when referring to Ashworth and Sanders and Young (Morgan 1996: 311). I wish to suggest that this notion of a `model' is misconceived and that the Packer typology (or similar variants) should not be viewed as an alternative to any rights-based approach but rather as complementary, since they are both conceptually and analytically distinct. In essence, Ashworth's normative prescriptions are wrongly understood as being a set of empirically testable propositions equivalent to a social theory of human rights, which is essentially to embrace the naturalistic fallacy that `ought' cannot be derived from `is' (Finnis 1980). Theoretically grounded heuristic models, such as Packer's, are specifically designed to be the exploratory tools of social science explanation. I will argue that social theory and the empirical reality which may represent normative positions are complementary in the sense that it is possible to utilize Giddens's theory of structuration as a framework within which these processes can be located and analysed.

There is no doubt that, although the Packer typology may be deficient (Bottomley 1973; Bottoms and McClean 1976),(2) its value derives from its utility as a heuristic device. It is a model, or paradigm (Kuhn 1962), in the sense that, although it may Specify those factors involved in a causal sequence, it does not purport to reveal the reality of decision making in the criminal justice process as do theoretical formulations (Ryan 1970). Models may, however, be adapted to represent distillations of particular value systems reflecting different approaches to criminal justice and, more widely, political and social policy positions. In this sense they may be concerned further to explain the relationship between social institutions and social change (King 1981). Alternatively, a more deterministic application has been to develop decision-making models of the criminal justice process or sentencing system for use as predictive devices (Hood and Sparks 1970; Morgan et al. 1987). Given that the sentencing process is both irrational and complex, a paradigmatic sentencing structure (or model) is a pre-requisite for meaningful hypothesis testing (Hogarth 1971).

Further, there are two considerations relating to the Packer typology which are particularly relevant to the present argument. The first point concerns a more general criticism directed at due process, crime control and bureaucratic models of the criminal justice process, namely, that research based on such approaches treats areas of the criminal justice system as self-contained entities as opposed to structures within a wider social system. Such so-called …