Technocratic Justice, Therapeutic Jurisprudence and Procedural Justice

From Uni Study Guides
Jump to: navigation, search

This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 228-255.

Technocratic Justice: the Drive for Efficiency

[1] There has been an aim of increasing efficiency in the courts. In the criminal process, this has involved:

  • Increase of on-the-spot fines etc for summary offences.
    • This is the most efficient process, as it covers investigation of the offence, charge, prosecution, conviction and sentence, simply by writing the ticket.
  • Regulation and socialisation of break and enters through insurance, given the low clear up rate.
  • Expansion of summary jurisdiction.
  • Demise of the jury trial in favour of judge-only trials.
  • Rewarding of guilty pleas with sentencing discounts.
  • Shift to ‘informalism’ - the move away from formal adversarial processes to other forms of fact finding and adjudication (eg, tribunals or through the promotion of processes of negotiation and mediation).

Such developments are often controversial and criticised. The debate today is between the different 'models' of the criminal justice system.

Models of the Criminal Process

[2] Packer discusses the two main models (ie, a core case) of criminal justice systems:[3]

  • The Crime control model:
    • The main priority is the repression of criminal conduct and maintenance of public order.
    • Places emphasis on efficiency, speed and finality.
    • As such, it involves a series of routinised processes which aim to identify suspects early, discard the unlikely ones, convict the rest, and afford little opportunistic for challenge (like an assembly line which carries the accused as fast as possible towards conviction).
    • To do this the processes of the model are informal (less ritualised), routine, and work largely on the assumption that the police did their investigation properly and therefore the defendant is likely to be guilty.
    • The lower courts exemplify this model more closely.
  • Due process model:
    • Its main priority is to critically examine the evidence in order to determine guilt or innocence.
    • Places emphasis on processes and the protection of the innocent.
    • As such, it makes use of ritualised judicial processes and thorough examination of facts. There is a presumption of a possibility of errors in the facts and investigation (like an obstacle course which must be overcome in order for the defendant to be convicted).
    • As such, control mechanisms are put in place, such as regulation and limitation of official powers, and the use of rules (eg double jeopardy).
    • The higher court exemplify this model more closely.

To the clash between ‘crime control’ and ‘due process’ values, Dubber has added the ‘Police Power Model’:[4]

  • Similarly to Crime Control model, it is concerned with the eradication of criminal activity, and values efficiency and speed as opposed to processes which protect the rights of the defendant.
  • The difference lies in its conception of what criminal activity is - according to the Police Power model, the protection against criminal activity is the protection of public interests rather than the rights of individuals. Public interest is determined by the state, and therefore the model is concentrated on protecting state authority.
  • As such, the victim of a crime is the state itself, and individual victims and personal interest no longer play a role.

O'malley contends that there has been a shift away from adversarial justice, to:[5]

  • On-the-spot fines.
  • Informal procedures such as cautioning and mediation.
  • Reliance on the guilty plea.
  • Proliferation of tribunals.
    • As a result of these shifts, the criminal law has been stripped of its moral content, and is instead merely an imposition of law and order.

Hogg comments that there has been a socialisation of crime, with a conversion of it to accounting problems and cost-benefit analysis.[6]

On-the-Spot Justice

[7] On-the-spot fines, also known an infringement/penalty notices, involve the payment of sum in order to discharge potential criminal liability in relation to the alleged offence.

  • It is the apex of efficiency: the writing out and giving of the fine encompasses everything from investigation to sentencing.
  • On-the-spot fines are constantly expanding, and have moved into some serious offences in recent years.

The increasing use of on-the-spot fines was discussed by O'malley:[8]

  • It is based on revenue raising, rather than anything to do with punishment, deterrence etc.
  • A particular problem is that there is no requirement that the person who receives the fine pays the fine.
    • This is a fundamental challenge to the role of the criminal justice system in punishment.

Attacks on the Jury

[9] A jury is a panel of adult members of the community who must reach a verdict in a criminal or civil case. A jury’s verdict involves the determination of facts in the case, following the hearing of all evidence and the receipt of judicial instruction on the law.

  • In criminal proceedings by indictment, the accused has a right to trial by jury.
  • The verdict of a jury must be unanimous, unless provisions are made for a majority verdict.

It is often said that the jury fails as an instrument of justice due to the following reasons:

  • Juries can be prejudiced by pre-trial publicity.
  • Juries can become embroiled in emotions that detract from rational decision making.
  • Juries do not have the necessary skills to make the judgement required of them

Some argue that these problems mean that trial by jury should be abolished, while others note the high degree of public confidence in the jury system as a mechanism of justice. The criticisms are often based on juries returning ‘perverse verdicts’, however such verdicts also demonstrate various benefits to justice.

Preverse Verdicts

A perverse verdict occurs where a jury returns a verdict contradictory to the law or evidence put before it. It involves the jury’s own value judgements.

  • ‘Perversity’ often occurs in domestic violence and provocation-related cases (eg wife kills husband after history of domestic abuse).

Preverse verdicts are discussed by Devlin:[10]

  • A mundane reason for the jury is that it exhibits the element of popularity that is appropriate in a democracy, and increases community confidence in the outcomes.
  • A paramount reason is that it allows conscience to enter into the system.
    • The judges are sworn to uphold the law, but the jury is not, and as such can place the justice of the case above the law itself.

And also by Brown and Neal:[11]

  • The function of infusing community values into the operation of the criminal law is one of the most compelling arguments in favour of the jury system.
  • The difference between the application of legal technicality and public morality is demonstrated in the final outcome of the South Australian ‘axe-murder’ case, where a wife killed her husband after significant abuse directed towards her and their children.

Judge-Only Trials

[12] In 1990, the Criminal Procedure Act 1986 (NSW) was amended so that an accused person in criminal proceedings in the District or Supreme Courts could elect for a judge-only trial, with the consent of the DPP. The DPP considers each judge-alone trial application on a case-by-case basis. The NSW DPP Prosecutions Guidelines state that:

  • Trial by jury is usually required where there are issues of community values (eg, provocation, dishonesty, indecency etc) or circumstantial cases.
  • Trial by judge alone is appropriate where there is technical evidence, lengthy arguments over the admissibility of evidence or likely prejudice from pre-trial publicity etc.

About 5% of trials held in NSW are heard by judge-alone. The benefit of judge-only trials is that the accused can be protected from the effects of pre-trial publicity. It is thus commonly used in cases where:

  • An accused is raising the defence of insanity.
  • Ghastly or bloody murders, where the jury may be swayed by the nature of the deaths.

Majority verdicts

[13] In NSW, there is a provision for a majority verdict (rather than unanimous verdict) of a jury divided 11:1 (or 10:1, for jury of 11), if:[14]

  • (a) Jurors have unsuccessfully deliberated for at least 8 hours, and
  • (b) The court is satisfied that it is unlikely for a unanimous verdict to be reached.

This move was a response to the media claim that hung juries most commonly resulted from a rogue juror who refused to convict.

  • However, NSW BOCSAR found that many of the hung juries were split more evenly than 11:1, and that there would only be a slight time saving from introducing majority verdicts.
  • This move was thus not a considered response, but a surrender to political pressure.
  • Unanimity is important because it ensures greater deliberation and the avoidance of hasty decisions. Also, disregarding the views of the minority makes the jury lose its significance as an instrument of peer judgement. Thus, the benefits benefits outweigh the costs.

The issue of whether the right to a unanimous verdict is protected by s 80 of the Constitution (which gives the right to trial by jury) was discussed in Cheatle:

  • s 80 should be interpreted as requiring a unanimous jury decisions for Commonwealth offences.
  • The fact that one dissenting juror is present already jeopardises the whole concept of 'guilty beyond reasonable doubt' (since one person is in doubt). To ignore that person (through majority verdicts) would be the same as to change the standard of proof required into ‘mostly beyond reasonable doubt’.

As such, there is a dual system involving unequal treatment in NSW.

  • Defendants facing trial for Commonwealth offences will enjoy the protection of a unanimous jury.
  • Those facing charges for NSW State charges will be able to be convicted by a majority verdict (a second class form of justice).

Jury Compilation and Jury Vetting

[15] The process of selecting the jury and filtering out unsuitable targets is called jury vetting. The compilation and selection of the jury is set out in the Jury Act 1977.

  • Some people are disqualified – those who have been imprisoned within the past 10 years etc.
  • Some people are ineligible – Australian lawyers, those without English skills, those unable to discharge the duties of a juror due to infirmity, sickness etc.
  • Some people are exempt as of right – pregnant women, people over 70, clergy, doctors etc.
  • Women only became eligible to serve as jurors in 1977.
  • Note: There is an argument that exemptions etc to the selection of juries should be stripped down to their bare minimum, so as to increase the randomness of the selection.

Whilst these guidelines exist, jury vetting is not such a big industry in Australia, in contrast to the United States, where the lawyers actually investigate into the character of the juries and eliminate people on grounds of being racist, sexist, etc.

  • However, the legislation in some states permits the prosecution to obtain a list of jurors to be empanelled in advance (opening the door to potential jury vetting).
  • In Katsunu, the High Court decided that jury vetting is not incompatible with s 80 of the Constitution.[16]

After people have been summoned to serve on the jury, the parties can 'challenge' (ie, remove) the jurors before they are 'empanelled' (ie, become jury members). Challenges to the empanelling of jurors can be made in three ways:

  1. Challenge to the array - this is a challenge to the way the entire panel was compiled (ie, an allegation that there was a failure to observe the provisions of the Jury Act).
    • It is a very rare challenge.
  2. A challenge on a ground of cause - this is a challenge on a particular person and because of a particular reason.[17]
    • Also pretty rare.
  3. Peremptory challenge - challenge without cause.[18]
    • Most common challenge.
    • The challenge is made when the potential juror is called out but before they are sworn in.
    • It is based on stereotypes such as age, dress, race etc.
    • The prosecution and defence are each entitled to 3 such challenges.

The Expansion of Summary Jurisdiction

[19] A significant threat to the jury trial is posed by the expansion of the summary jurisdiction, particularly the downward classification of offences formerly triable only on indictment before a judge and jury.

The Criminal Procedure Act 1986 (NSW) divides indictable offences into three groups:

  • Indictable offences not triable summarily.
  • Table 1 indictable offences, dealt with summarily unless the prosecution or accused elects otherwise.
    • Includes some drug offences, various offences against the person etc.
  • Table 2 offences (less serious than Table 1), dealt with summarily unless prosecution elects otherwise.
    • Less serious offences against the person such as stalking and intimidation, firearms offences, some small drug offences etc.

Few defendants opt for trial by jury in these offences – it is too risky.

  • In the Local Court, the maximum term of imprisonment that can be imposed is 2 years for these offences, and accumulated sentences of up to 5 years. This is preferable to the sentences of the higher courts.

Systematically, more and more indictable offences are being classified as Table 1 or Table 2 offences.

Therapeutic Jurisprudence and Procedural Justice

[20] Therapeutic jurisprudence is an approach which involves using the law and legal processes to enhance the psychological well-being of the convicted offenders (ie, helping them change their mind-set rather than just punishing them).

  • Therapeutic jurisprudence assesses the consequences of the criminal justice system on the defendants. It aims to increase the ways in which the criminal justice system provides a therapeutic effect on the punished.
  • It is founded on the following assumptions:
    1. The implementation of law has an effect on the psychological well-being of the defendants.
    2. The law should be used and effected in a way which promotes a healthier change in those convicted.
    3. The law and the defendant should not be antagonists - the law is there to help the defendant improve.
    4. Doing this, the law is still required to maintain balance between the amount it helps an individual (therapeutic principles) and its need to protect the community (justice principles).
    5. This process is normative, involves value judgments, and encourages overreaching.
  • It can include integrating treatment services with judicial case processing, multi-disciplinary involvement and collaboration with community and government organisations.
  • The use of specialised courts (such as drug courts) are consistent with the approach of therapeutic jurisprudence.

Procedural justice and narrative competence

Procedural (or natural) justice refers to the ways in which decisions are made and their fairness. Procedural justice consists of four main elements:

  1. neutrality
  2. respect
  3. participation
  4. trustworthiness

In the court itself, these translate to processes which are courteous, to dialogues which are meaningful and to court officers who manifest an ethic of care. Functions of procedural justice include:

  • Ensuring accurate decisions
  • Ensuring that participants in a dispute process feel that the process has been fair and open.

Procedural justice also may result in the increase of public confidence in the dispute resolution process which in turn increases the probability that participants will accept adverse decisions.[21]

  • People are more willing to accept decisions of legal authorities whose motives they view as benevolent and more trustworthy. This is achieved through procedures that participants view fair.

Narrative competence

Narrative competence is the ability to 'understand the meaning and significance of stories through cognitive, symbolic and affective means'.[22]

  • Narrative knowledge is subjective, focusing upon the participants' understandings of events or actions.
  • In the context of problem-oriented courts, narrative competence required that the judicial officer, case workers, therapists and others be able to listen to, and understand, the offender's view of the world. This is not a matter of determining 'the facts', but comprehending motivation and action.
  • Hall argues that trust 'is essential for activating the charismatic or emotive dimension of healing which is fundamental to effective treatment relationships' (Hall 2002:118).


This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.


Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 228-9.
  2. Textbook, pp. 229-35.
  3. H Packer, The Limits of the Criminal Sanction (1968 in Textbook, pp. 229-229-32.
  4. M D Dubber, ‘The Possession Paradigm: The Special Part and the Police Power Model of the Criminal Process’ in RA Duff and Stuart Green (eds), Defining Crimes: Essays on the Special Part of the Criminal Law (2005) in Textbook, pp. 232-3.
  5. P O’Malley, ‘Technocratic Justice in Australia’ (1984) 2 Law in Context 31 in Textbook, pp. 233-4.
  6. Hogg, ‘Criminal Justice and Social Control: Contemporary Developments in Australia’ (1989) 3 Journal of Studies in Justice 89 in Textbook, pp. 234-5.
  7. Textbook, pp. 235-6.
  8. P O’Malley, ‘Fines, Risk and Damages: Money Sanctions and Justice in Control Societies’ [2009] Current Issues in Criminal Justice 365 in Textbook, pp. 236-7.
  9. Textbook, pp. 238-9.
  10. Lord Devlin, ‘The Conscience of the Jury’ (1991) 107 Law Quarterly Review 398 in Textbook, p. 239.
  11. D Brown and D Neal, ‘Show Trials: The Media and the Gang Twelve’ in M Findlay and P Duff (eds)m The Jury Under Attack(1988) 126 in Textbook, pp. 239-41.
  12. Textbook, pp. 241-4.
  13. Textbook, pp. 244-9.
  14. The Jury Act 1977, s 55F (2).
  15. Textbook, pp. 249-51.
  16. (1999) 73 ALJR 1458.
  17. Made by the crown under s 43 (1) or by the defendant under s 46 of the Jury Act 1977 (NSW).
  18. Made under s 46 of the Jury Act 1977 (NSW).
  19. Textbook, pp. 251-2.
  20. Arie Freiburg, 'Therapeutic Jurisprudence in Australia: Paradigm Shift or Pragmatic Incrementalism?" (2002) 20(2) Law in Context 6 in Textbook, pp. 252-5.
  21. Makkai and Braithwaite, 1996.
  22. Brookbanks 2002 citing Charon 2000.
Personal tools