Introduction
Due process is an important concept in a country’s justice system. As a result, a right to due process is considered by many countries as a fundamental element in the fight to uphold human rights. The right to the due process ensures that the government respects the legal rights of an individual as stipulated by law. This means that the right to due process is aimed at protecting an individual against undue exploitation by, for example, the state. Through the right to due process, the government has to subscribe to the laws of the land thereby ensuring that it does not violate legal procedures to its convenience. Due process is also used about the restrictive laws and legal proceedings. This implies that judges rather than legislators determine fundamental fairness, liberty, and justice. However, this definition of due process is divisive since it is similar to procedural or natural justice. In the Australian criminal justice system, there has been a struggle for balance between crime control and due process.
Understanding Due Process
Due process is an old concept within the justice system. According to Gelsthorpe (2002, p. 105), the main purpose of the court in a due process model is to act as an unprejudiced authority between citizens and the state. It aims at ensuring fairness and justice in the application of the law. To ensure fairness in the application of the law, the assumption of innocence is essential. In addition, the due process of the law should be adhered to for justice not only to be done but also be seen done. In a due process model of the criminal justice system, individuals suspected to be involved in criminal activities are subjected to the right procedure of the law to determine their innocence. Gelsthorpe (2002, p. 106) contends that those involved in defense are more linked to the due process while the courts and prosecutors are more concerned with crime control. According to Rosenberg (1990, p.261), the due process model focuses on ensuring that justice and fairness are incorporated in the process. It recognizes that some culpable individuals may be acquitted in the process (Rosenberg, 1990, p. 261). The due process model is different from the crime control model which can gamble in convicting some individuals who are not guilty to prevent crime.
Right to due process
The right to due process is a fundamental right of every citizen. It refers to an individual’s right to fair, efficient, and effective treatment in the administration of justice. This right limits laws and legal proceedings to ensure basic fairness and justice (Galligan, 1996, p.72). In this essay, due process refers to rules which are administered through the courts of justice in agreement with established legal principles and procedures. The legal procedures and principles are aimed at ensuring that the rights of individuals are guaranteed (Fitzgerald, 1962, p. 173). The rules applicable in a justice system are broad. They range from the fair trial, independence, and impartiality of the tribunal to the assumption of innocence.
Right to due process is conventionally centered on the right to an effective remedy and fair trial. All the agencies within the criminal justice system are involved in upholding the right to due process. Examples of these agencies include the police and the courts.
Due Process in Australia
The Australian criminal justice system has attracted numerous debates over the recent years. One of the major debates raised over the criminal justice system relates to its effectiveness in preventing criminal activities and its ability to ensure that justice is done. The criminal justice system in any country has the responsibility of preventing criminal activities. As a result, the success of the criminal justice system is normally judged on its ability to prevent criminal activities and ensure order and harmony for all the citizens (Doble, 1987, p. 213). Although the primary responsibility of the criminal justice system is to prevent criminal activities, the system is supposed to ensure that justice is done in the process. The system should ensure justice to all parties involved in criminal activity.
Australian criminal justice system has two main fundamental dimensions. The first dimension relates to resources used in the process. A significant proportion of resources are invested within the criminal justice system. The number of resources invested amounts to thousands of dollars. This is done through the entire criminal justice system implemented by the government to deal with lawbreakers.
The second dimension involves three main components which include the investigative, adjudicative, and correctional arms of the criminal justice system. Other new features within the Australian justice system relate to the growth of the private sector. This is evident with the emergence of the private security industry which includes private prisons and standing justice commissions. In addition, there is also the growth of alternative dispute resolution and models of criminal justice (Cragg, 1992, p. 67). In all developments within the criminal justice system, the ability of the system to prevent criminal activities and its ability to assure justice to involved parties is vital.
Australia is one of the countries that recognizes and values personal liberty and fair trial. As a democratic republic, Australia has pledged to uphold personal freedom which includes the right to a fair trial. Like other democratic countries, the Australian government is committed to ensuring that it maintains legal and political elements which promote and uphold personal freedom. This is attained through effective implementation of the common law thus guaranteeing Australians an effective due process within the country’s legal system. The resultant effect is that the government can promote and protect individual citizens’ freedom. In addition, common law provides extensive protection which ensures that an individual is not denied personal freedom unless it is by the law (Australian Law Reform Commission, 1975, p. 41).
The police are supposed to respect personal liberty guaranteed by the law. The right to personal freedom comprise not only the freedom from unlawful restrain but also freedom from unnecessary interference with one’s privacy. Practically, what this means is that personal liberty goes beyond the act of merely searching an individual unlawfully or seizing their belongings.
Arrests
The arrest is a necessary procedure in criminal justice. They are necessary for an effort of bringing an individual suspected to be involved in criminal activities to trial. However, arrests should not violate an individual’s freedom (Mashaw, 1985, p. 106). Under the common law, the liberty of an individual is guaranteed unless upon conviction after a fair and full trial. Although it is important to ensure that personal freedom is safeguarded, nevertheless, the police still have the upper hand when it comes to the issue of making arrests. The same case applies to the issue of overseeing the justice system against the breaking of laws (Zehr, 2001, p. 86). The Australian government has developed basic rules which are observed by the police in the process of making arrests. For example, the police are not supposed to make arrests without a warrant of arrest issued by the court of law. However, there are exceptions to these rules such as in the case of acts involving felony, treason, or breach of peace. In such cases, Australian police can arrest without a warrant. Unlike the citizens who can only arrest where there is a breach of peace, felony or treason has occurred, police can arrest on reasonable suspicion. The right procedures and circumstances should prevail for due process in arrest.
About common law, arrests for committing criminal acts can only be done when a warrant of arrest is issued. This prohibition however has been relaxed under some specific and general statutes such as the New South Wales Crimes Act (Chesterman & Hempton, 2003, p. 105).
When issuing a warrant of arrest, the court must ensure that the warrant is specific. In addition, it must be issued only after the court is contented with the basis for the arrest. Apart from the provision for a warrant of arrest in the Australian criminal justice system, other provisions are aimed at safeguarding personal freedom. For instance, police officers are supposed to tell a suspect the reasons for arrest before doing so. If the suspect is not notified of the reasons for the arrest, he or she can sue the police officers in a court of law for damages. In addition, the suspect is justified to resist an arrest if the reasons for being arrested are not disclosed. The police or the citizens conducting arrest are supposed to refrain from using unnecessary force on the suspects.
Detention
In law, an arrest is aimed at ensuring that justice is done by issuing a judgment in a court of law. After arrest, a suspect is supposed to be presented to a court of law within the shortest time possible. In many jurisdictions, a suspect is supposed to be presented in a court of law within a certain limited duration of time such as within 24 hours of arrest. After the arrest, a suspect should not be detained for any other reason and should therefore be presented in a court of law to be charged for an offense initially arrested (Ten, 1987, p. 203). Extension of the duration of arrest is only possible when determined by the judiciary such as remand awaiting trial.
Fair Trial
Right to due process is intended to guarantee a fair trial. The right to a fair trial is central to the Australian criminal justice system. The most important principle in the Australian criminal justice system is the assumption of innocence. Assumption of the innocent in the trial is guaranteed in the common law. Application of assumption of innocence is flexible. This principle aims at ensuring that the personal liberty of individuals is ensured. It can only be deprived after proof of guilty in a due process of law (Honderich, 1969, p. 29). In addition to the assumption of innocence, an individual facing trial in Australian courts has the right to protection of comprehensive evidential and procedural rules (Solomon, 1984, p.117).
Infringement of Right to Due Process
Even though the right to due process is guaranteed in common law, there are instances where the right is infringed. In some cases, the police do not follow the laid down procedures for arrest. Examples of instances for infringement of due process are evident when the police are dealing with protests (Gleenson, 2004, p. 79). In some cases, the police use unnecessary force to deal with protestors and conduct arrests.
Australian criminal justice system follows the format of the adversarial system. The judges in the system depend on the contest between complainant and defendant. In this case, the value of representation becomes very important in winning a case. Although the procedures of the law are adhered to, this does not guarantee a fair trial.
Competition between crime control and due process models is a major motivation to infringement of the right to due process (Braithwaite & Strang, 2001, p. 76). The crime control model is purely motivated by the aim to prevent crime while the due process model aims at ensuring justice. The crime control model holds that the primary role of the justice system should be the prevention of criminal activities.
Conclusion
The right to due process is considered to be a human right in many countries. It ensures that the government respects the legal rights accorded to individuals by the law. The right, therefore, aims at protecting an individual from being exploited by the state. Right to due process puts the government under the law of the land thus ensuring that the government does not overstep legal procedures to its convenience.
Borrowing much from the common law, the Australian criminal justice system upholds the right to due process. The system protects individuals’ liberty by ensuring that the set legal procedures are adhered to. Despite the right to due process, there are instances of infringement of the right. Police overstepping legal procedures in crime prevention and lack of adequate representation to some suspects amount to infringement of the right.
Reference List
Australian Law Reform Commission.1975. Criminal Investigation, Report No. 2. Canberra: Australian Government Publishing Service.
Braithwaite, J. & Strang, H. 2001. Restorative Justice and Civil Society. Cambridge: Cambridge University Press.
Chesterman, M. & Hempton, S. 2003. Law and Justice Foundation of New South Wales, Australia. Sydney: Australian Government Publishing Service.
Cragg, W.1992. The Practice of Punishment: Towards a Theory of Restorative Justice. New York: Routledge.
Doble, J. 1987. Crime and Punishment: The Public’s View. New York: The Public Agenda Foundation.
Fitzgerald, P.J. 1962. Criminal Law and Punishment. Oxford: Clarendon Press.
Galligan, D. 1996. Due Process and Fair Procedures: A Study of Administrative Procedures. Oxford: Clarendon Press
Gelsthorpe, L. 2002. A short introduction to criminology. Oxford: Clarendon Press.
Gleenson, M. 2004. Judicial conference of Australia colloquium.Adelaide, Melbourne: Clarendon Press.
Honderich, T. 1969. Punishment: The Supposed Justifications. London: Hutchinson.
Mashaw, J. 1985. Due Process in the Administrative State. New Haven, Connecticut: Yale University Press.
Rosenberg, B. 1990. Rethinking the right to due process in connection with pretrial identification procedures: An Analysis and a Proposal. Kentucky Law Journal Vol. 76 No. 6, pp. 259-279.
Solomon, D. 1984. Australia’s Government and Parliament. Yale Law Journal.Vol. 66, issue 3, pp. 319.
Ten, C.L.1987. Crime, Guilt and Punishment. Oxford: Clarendon Press.
Zehr, H. 2001. Restorative Justice in Peacebuilding: A Field Guide. Melbourne: Clarendon Press.