POLICING THE DROSS.

A Social Disciplinary Model of Policing

In this article I use the findings of an ethnographic study of police station procedures to explore the limitations of Packer's Crime Control and Due Process models of justice. Concentrating on the dynamics of police--detainee interaction in the significant minority of cases in which the police arrest individuals whom they have no intention of charging, Is how that in such cases policing is not geared towards enforcement of the criminal law but towards the achievement of police-defined objectives. I argue that Packer's models are both legal models, and thus inadequate to the task of explaining what takes place in these cases. I present the argument that these cases are better explained by reference to a Social Disciplinary model of policing. This is a model which eschews concern for both legal and factual guilt, concentrating instead on the task of subordinating sections of society viewed as anti-police and innately criminal.

It has been common for those studying the criminal justice system to evaluate its operation in terms of Packer's Crime Control and Due Process models of justice (Packer 1968; Bunyan and Bridges 1983; Baldwin 1985; Dixon 1990, 1992; Irving and McKenzie 1989; McBarnet 1981; McConville et al. 1991; Sanders and Young 1994). In this article, based upon observation of police station procedures and interviews with detainees, I set out my contention that neither of these models adequately explains the experiences of a significant minority of individuals who find themselves arrested and detained at the police station. A plausible explanation for the treatment received by this group of individuals requires a model of `justice' which is far more solidly rooted in police needs, beliefs and expectations than are the Due Process and Crime Control models (see also Choong 1997).

Due Process and Crime Control: A Legal Paradigm

The Crime Control model operates on the assumption that the primary purpose of a criminal process is to repress crime, and therefore it endorses procedures which efficiently screen suspects, determine guilt and secure appropriate punishment for those convicted of crime. `Efficiency' is defined in terms of speed and finality, and accordingly, court-based processes are rejected in favour of extra-judicial, administrative and standardised procedures in which the opportunity for challenge is kept to a minimum. The model is premised on the belief that police and prosecutors, as administrative experts, can and will identify and screen out those who are probably innocent. Given this faith in police expertise and motivation, the supporters of the model oppose the imposition of restrictions on police activity unless such restrictions enhance the reliability of police fact-finding procedures. Packer summed up the Crime Control model by likening it to a conveyor belt, in which the success of each routinized operation is gauged by its tendency to pass the case along to a successful conclusion (Packer 1968: 160).

In contrast to this, the organizing matrix of the Due Process model is the proposition that informal police procedures are susceptible to misuse and prone to produce error. The model therefore operates an assumption of innocence and ensures that the road to conviction resembles an obstacle course. It requires the state to prove guilt beyond reasonable doubt to a judicial tribunal by overcoming evidential and procedural obstacles relating to such matters as admissibility and the standard of proof. The Due Process model is also concerned to minimize the possibility of investigative powers such as arrest, detention and questioning being misused, or used in an oppressive fashion. Accordingly, police powers are limited through mechanisms such as the requirement for reasonable suspicion, the right to have access to a lawyer at all times and the need for the police to secure prior judicial permission for particularly intrusive activity (Packer 1968: 165).

Although Packer's models describe two very different methods of determining the issue of guilt or innocence, both models involve a dialogue with legal rules. So, first, adherents of both models accept that the processes advocated in each model are to be activated solely for the purpose of enforcing the substantive criminal law. Secondly, both models accept that the activities of law enforcement officers must be subject to a `degree of scrutiny and control' so as to ensure that the `security and privacy of the individual' is not `invaded at will' (Packer 1968: 156). This means that the police, regardless of which of the two models is in operation, must be able to account for and justify their actions by reference to the aims, objectives and rules of that model. Finally, common to both models is the idea that the accused always has the option of forcing his accusers to demonstrate to an independent court that he is guilty of the charges against him.

This final assumption underlines the fact that both models are judicial and rule-bound. The Due Process model favours rules which would make this contest public and routine and ensure that it is fought in accordance with formal rules in open court which give the benefit of the doubt to the accused. The rules of the Crime Control model seek to avoid a public contest of this type, but are nonetheless aimed at producing a legal resolution in each case. There must be rules to establish when a suspect ought to be eliminated from the inquiry; to determine what charge ought to be preferred where the law allows some discretion in this matter; and to decide whether a suspect ought to be warned, cautioned or charged. Furthermore, because the model allows the accused the option of putting the prosecution to proof before an independent forum (the court), the police must operate in the shadow of the court's rules. In other words, they must continually ask themselves whether they can prove the case to the satisfaction of the court. In this respect, it is important to note that the emblematic …