CRIME CONTROL, DUE PROCESS AND `THE CASE FOR THE PROSECUTION'.

A Problem of Terminology?

The recent debate in this journal between Smith and McConville, Sanders and Leng is bedevilled by terminological problems. These might be solved by renaming Packer's `Crime Control model' as the `Efficiency model'. This renders the true nature of the dispute readily identifiable.

This short note was prompted by the recent exchange in this journal between Smith (1997) and McConville, Sanders and Leng (1997) (henceforth MSL), authors of `The Case for the Prosecution'. It is intended simply as an observation about the terms in which the debate is being conducted rather than an independent attempt at theorization. My concern is that confusion over the terminology, stemming directly from the writings of Packer (1969), has obscured the precise nature of the debate. Further argument, I leave to the protagonists.

Essentially, the problem is that the term `Crime Control' is used in two very different senses. First, it is used to describe the overall purpose of the criminal justice system--i.e. the repression of criminal conduct. Secondly, it is also used as a label--a kind of shorthand--to encapsulate a particular set of values which influences the system. As is well known, Packer's analytical framework contrasted two different `complexes of values': the `Crime Control model' and the `Due Process model'. His argument was that these sets of values `compete for priority' in the operation of the criminal justice process and he sought to show the way in which they were influential in shaping the system and the actions of its functionaries (pp. 153-4). It is fair to say that Smith and MSL do refer to this terminological problem at the outset of their articles but, unfortunately, this insight seems to get lost in the heat of the following argument. Consequently, there is a tendency to use the term `Crime Control' in two distinct senses--sometimes to describe the goal of the criminal justice system and sometimes to summarize a complex of values which influences its operation--and confusion inevitably follows.

Perhaps I can clarify the problem with a simple change of terminology. The above commentators all clearly agree that the overall purpose of the criminal justice system is the repression of criminal conduct (Packer 1969: 158; Smith 1997: 320; MSL 1997: 355).(1) As Ashworth puts it, in a useful earlier contribution to this debate, the `general justifying aim' of the process is `Crime Control'. Thus, let us continue to …