Due Process

The due process model recognises the disparity of power between the state and the private citizen. The state has virtually unlimited resources to press its case against the citizen. We recognised long ago that the state, despite its power and investigative resources, sometimes makes mistakes. If the state was never wrong in its accusations, there would no need for trials and all that we would require would be a sentencing tribunal. The state and its agents are suspicious of many things. The due process model is there to guard against the arbitrary exercise of power.

The foundation of the due process model lies in the desire for certainty. Is guilt clearly established? Are we punishing the right person? If power is exercised in an arbitrary way, public confidence in the system - and belief in state infallibility - is rapidly undermined. Due process replaces arbitrariness with a systematic approach designed to minimise errors. The main manifestations of this are the enumerated powers of the police, the PACE codes, criminal procedure, and the rules of evidence.

In Criminal Clinic you saw how the police do not have a free hand to question people as they wish. The disparity in power cannot be erased but the police can be prevented from unfair procedures that are likely to exert undue pressure on suspects leading to unreliable confessions. Our trial procedures have many inbuilt protections for defendants that reflect a time when there was even greater disparity between the power of the state and that of the citizen. The role of the legal profession in criminal defence is comparatively recent - and the idea that the state should pay for the professional defence of poor people is even more recent.

Historically in our criminal law there was no formal legal defence at all - the only defence afforded the citizen was common law due process. This prohibited the defendant from testifying - this meant he could not be compelled by the state to testify but it also meant he could not give evidence on his own behalf. The rule was - and still is - that the defendant has nothing to prove and the prosecution has everything to prove. To make even more certain of a correct result, the standard of proof required of the state was higher for crimes than it was for civil disputes - proof beyond reasonable doubt rather than proof on a balance of probabilities.

Packer likens the due process model to that of a factory obsessed with quality control. The process has a whole series of hurdles that the prosecution has to overcome - if it fails at any point, then the defendant must be discharged. This is not because