“Law and Order are primarily maintained by the police. The other parts of the legal and criminal justice system are less essential.” Discuss the extent to which this statement is true.
The gradual modification of the Common Law system over the years has led to the creation of professional police as holders of criminal investigations in most criminal offenses, inaugurating the existence of a procedural phase prior to criminal activity. Recently, new reforms in the English criminal system have transferred the powers that were in the hands of the police, to give rise to the criminal proceedings, to the prosecuting body, clearly creating a division functions in criminal prosecution between the police at the investigation stage criminal and the prosecuting body in the criminal activity. On the other hand, Civil Law also underwent transformations that altered its initial configuration, linked mainly to the need to limit the powers of the magistrate during criminal proceedings. The modifications removed much of the judge's role in the production of evidence in the criminal action, as well as implying their distance from the criminal investigation, handing that role of the judge to an accuser, who is also a magistrate.
Until the second half of the 19th century, there was no preparatory stage in criminal proceedings which would enable the magistrate to comment on a case after a prior investigation. At that time, England and Wales did not have an official police force, so there was no government agency responsible for investigating and filing the case with the judge. The government was kept away from criminal proceedings and the application of criminal law was considered a private matter. The criminal prosecution was carried out by the citizens themselves and promoted by the victims of the crimes, so it was not possible to affirm the existence of a state system of criminal prosecution itself. Today, the police in England and Wales have control of criminal investigation, in a way that the investigation of crimes occurs under their direction while exercising their own powers. The police are responsible for conducting the investigation, collecting information, and forming investigation records. In this way, the development of the first phase of criminal proceedings depends entirely and exclusively on the police. As stated in the Code of Crown Prosecution, responsibility for the direction of investigations implies making decisions to initiate and pursue them, as well as the form to use their resources: The Criminal Procedure and Investigations Act 1996 Code of Practice (2.1) states that: “All investigators have a responsibility for carrying out the duties imposed on them under this code, including in particular recording information and retaining records of information and other material.”
Thus, in England and Wales, the police have control of the criminal investigation and do not act under the command of the judge or the prosecuting body, who are not authorized to direct the activities of the police. The ownership of the criminal investigation conferred to the police was accompanied by the obligation to pursue all reasonable lines of investigation, regardless of whether they benefited or harmed the investigated when clarifying the fact. The Criminal Procedure Investigations Act 1996 in section 23 (1) Code Practice (3.5) provides for this characteristic of the justice system in England and Wales. It is in this way that criminal investigation does not only limit to a search of elements for the condemnation, but it also develops evidence regarding the innocence of the suspects. Therein lies the duty to conduct criminal investigations in an impartial manner. This characteristic of the English system shows that it is mandatory for the purpose of the criminal investigation to clarify the facts and not to assist a magistrate or the prosecuting body in forming its opinion. The police secure criminal investigations for most crimes, so the investigation of crimes depends entirely and exclusively on them. In this way, the main role of the police in criminal proceedings in England and Wales is to carry out a criminal investigation, through the production of evidence, and to present, in relation to some crimes, the criminal charge. The police control criminal investigations from beginning to end, and they are responsible for this phase of the criminal process. The role of the police, in short, is to open investigations (inquiries), to take steps to clarify the case, according to the available resources and appropriate investigative measures, and, finally, to delimit the conduct of those involved and formalize the criminal infraction. When the police finish the investigation, they formally send the case to the judge, presenting, in some specific cases, the imputation.
The police officer has functional autonomy to conduct investigations and decide on the imputation of crimes to the investigated when applicable, not being subject to the orders of the government or their superiors, but only to compliance with the law. The magistrate remains inactive, acting only reactively in relation to requests made by the police in the course of the criminal investigation, or by the parties, the prosecutor and the defense, during the criminal action. The judge does not take the lead in the criminal investigation, nor does direct police actions when implementing authorized measures since the operation depends on the police. Crown Prosecution Service (CPS) magistrates and members belong to different careers and cannot exchange roles between themselves. The police are also not subordinate, bound, or submitted to the prosecuting body during the investigation of crimes. However, it is up to the prosecuting body, when consulted, to present its opinion on matters involving the investigated crimes to the police officer, in order to assist the police in carrying out their function, as stated in Code of Crown Prosecution 2013 (3.2). The English criminal system underwent a new reform in 2003, carried out by the Criminal Justice Act, which changed this characteristic. From then on, the powers of the English prosecuting body in criminal proceedings were increased to the detriment of the powers of the police. The Crown Prosecution Service is responsible for filing criminal action in most cases, as well as for the final decision regarding the archiving of investigations. The reforms carried out in the English criminal system maintained the ownership of the criminal investigation in the hands of the police and gave the prosecuting body exclusive decisions on the initiation of criminal proceedings, in most cases, on the continuity of the charges brought by the police, and also on the archiving of investigations. Thus, in the English system, the police are mainly responsible to maintain Law and Order.
- Delmas-Marty, M. and Spencer, J. (2002) European Criminal Procedures. Cambridge, U.K.; New York: Cambridge University Press, 2002.
- https:www.instituteforgovernment.org.ukpublicationpublic-services-spending-round law-order