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Comparative Criminal Justice Compare and contrast
In this assignment I will be analysing two different criminal justice systems. A criminal justice system is made up of three main components, which are a group or combination of interrelated, interdependent, or interacting elements forming a collective entity. These components are the Judiciary system, the Legislature and the Executive which together make up the criminal justice system of a country. For the purpose of this assignment I will be looking at the different systems of Malta and Scotland comparing and contrasting them; highlighting any salient differences or similarities.
It is interesting to note that even tough part of the British Empire, Scotland merits special attention in its own right for the reason that it has its own criminal justice and penal system from that of England and Wales. It also has its own distinctive history of penal policy and crime control. Scottish policy on penal practice and crime control was the responsibility of the Home Department of the then Scottish Office. The tutelage of this Scottish Office was under the Secretary of State for Scotland and even though part of, it had a high level of autonomy from the government at Westminster of the UK (McAra, 2005). With the passage of the Scotland Act 1998 Criminal justice and crime control with the exception of national security have become matters which fall directly under the responsibility of the Cabinet Secretary for Justice and the new Justice Department of the Scottish government.
Criminal law in Scotland comes from a common law tradition which in its own term supports a strongly independent judiciary. In Scotland there exists a system of public prosecution where prosecutors enjoy a high level of discretion when deciding whether to prosecute a case or not with public interest being the key deciding factor (McAra, 2005). Scottish criminal courts are made up of two procedures; solemn and summary. In summary procedures trials are held in District courts where minor cases are heard and tried before lay justices whilst in sheriff courts minor cases can be tried before a sheriff who sits on his or her own . The more serious cases (solemn procedures) are tried before the sheriff who in this case sits with a jury of other 15 persons where a simple majority is needed to convict an accused. The high court which is presided over by a judge and jury deals only with more solemn cases. It also functions as an appeals court whilst also issuing guidelines to the lower courts on sentencing with its judgements (www.scotland.gov.uk). Unlike in the Maltese Criminal Justice System, the police in Scotland do not prosecute
The Scottish Police force is divided into eight regional police forces. These eight different regional police forces generally cover the eight different governmental regions in Scotland. As can be found in the Police (Scotland) Act, 1967, the police forces are governed by three different parties who share responsibility. These are the Police Authority, the Chief Constable and the Secretary of State for Scotland. Joint boards and authorities now exist which govern six of the eight regions whilst the other two fall under the administration of the council of their geographical area (www.police-information.co.uk).
The duty of the police is to enforce the law as well as maintaining peace in Scotland; duties shared also with the Maltese police force who has the same aims. The Scottish parliament is the authority to which most police powers are entrusted. There exists an agreement for the accountability of police service in Scotland and with regards to policing policy, in Scotland; it is still the Ministers who retain overall responsibility. Having said that, there still remain some areas for which the UK Government still retains legislative responsibility. These include national security, terrorism, firearms and drugs. Policing aspects and polices within each area are the responsibility of the Chief constable for that district (www.scotland.gov.uk).
As well as the eight different regional police forces, there exists in Scotland different services which are commonly used by all the forces in their operations. These include the Scottish Police College and the Scottish Police Services Authority which is the authority providing support and effective modern police instruments which play an important part in policing effectiveness through the use of training, forensic services, specialist ICT, criminal records etc (www.scotland.gov.uk). It also provides special staff for the Scottish Crime and Drug Enforcement Agency; an agency with a vision to ‘Protect Scotland’s Communities from serious organised crime’ and a mission for ‘Working every day for the people of Scotland – dismantling serious organised crime’ (www.sdea.police.uk).
In Scotland there are 15 prisons which are all the responsibility of the Scottish Prison Service except 1 which is run by a private sector company. There is only 1 establishment in Corntonvale which is solely for women and another in Polmont which is the main institution for young male offenders. In this regard, it is interesting to note that the age of legal responsibility is one of the lowest in Europe at eight years old, whereas that in Malta is of 9 years old. The rates of convictions in Scotland have seen a decline sine the mid-1990s and a contributing key factor has probably been the increased use of alternative correction systems with a continual rise of community based penalties as opposed to the use of fine and prison sentences. As is increasingly more common practices even in Malta these days, corrective measures are more increasingly used as opposed to punitive ones. One of the newly alternatives to prison sentences is the Community Pay Back Order, which as the title implies is based on making the offender pay back the community by offering unpaid work in the community. This new Order will come into effect in February 2011 and its main goal is to help those punished by addressing the areas that they need to change in order to improve their lives, whilst still being punished (www.scotland.gov.uk).
A major difference between the two systems is that in Scotland there exists the possibility of parole for a prisoner who is no longer deemed to be of a threat to society. This decision is taken by the Parole Board for Scotland, which is an independent board from the Scottish government. The board acts under the statutory functions, as provided under the Prisoners and Criminal Proceedings (Scotland) Act 1993 and the Management of Offenders etc (Scotland) Act 2005. There are various things which the board has to take into consideration when deciding for or against the granting of parole. Mainly the circumstances and the nature of the offence committed is taken into consideration as well the conduct of the same person since his date of imprisonment. There also needs to be a risk assessment of the person’s release back into society and his or her intentions after such release. Some conditions are also compulsory to each parole granted (http://www.scottishparoleboard.gov.uk/). This systems is currently being discussed in Malta and is in the process of being passed in parliament for its implementation in our Criminal Justice System.
As in the Maltese Criminal Justice System, in Scotland, probation officers offer constant input and play a key role in the criminal justice system. They provide reports for pre-sentencing purposes and supervision to offenders placed on probation as well as community services. Their role is also vital for the supervision of those released on licence from prison and parole (not in Malta in this case). The same can be said for social workers who work hand in hand with the criminal justice system constantly providing support in decision making stages and individual profiling for more appropriate sentencing and community based alternatives (McAra, 2008).
As described in the European Journal of Criminology in a publication by Trevor Calafato and Dr Paul Knepper in their study entitled ‘Criminology and Criminal Justice in Malta’, the Maltese Criminal Justice systems is described most accurately as a mixture of both civil and common law. In contrast the Scottish legal system is predominantly based on common law. The fusion of both criminal and common law is a reflection of both the British and Italian rule of the Maltese Islands which have left influences on our legal system. Criminal law is mainly influenced by the Italian law, whilst the common procedure in Malta is a reflection of the English common law. However the use of an inquisitorial system in our criminal procedure has Italian influences and of its inquisitorial system (Calafato, Knepper, 2009); another contrast to the Scottish criminal procedure system which is adversarial.
There is a distinction in the Maltese Criminal Code between crimes and contraventions. Crimes constitute those more serious crimes, including homicide, rape, assault, theft etc, whilst contraventions are the less grievous offences such as traffic offences, drunkenness etc. There are two tiers in the courts which have criminal jurisdiction; the Superior Courts which are the criminal courts which conduct trial by jury and the Court of Criminal Appeal. The Magistrates’ Courts and the Juvenile Court make up the Inferior Courts. The Magistrates’ Court consists also of transforming into a Court of Inquiry for offences which fall within the jurisdiction of the Superior Courts (Calafato, Knepper, 2009).
Unlike in Scotland and mainly due to its small size, in Malta there is only one Police Force which dates back to 1813 after its proclamation from Sir Thomas Maitland during governship of Malta. It is one of the oldest police forces in the whole of Europe headed by Mr John Rizzo, current Police Commissioner. There are two regions that are headed by an Assistant Commissioner each; Region A for the South and Region B for the North, with each region covering five districts each. A Superintendent heads each region whilst there are also several divisions in each district which are led by an Inspector. There are various specialized branches in the Malta police force whilst generally it is the duty district police to perform community policing (www.mpa.org.mt).
The role of the police in Malta lies in its responsibilities of national security and its investigative role. The Malta police are legally bound to investigate any report, information regarding crime and complaint and to decide how to act accordingly whether they are of a civil or criminal nature. It is not the role of the police in Malta to interfere with civil cases but only to investigate criminal cases. The police have the role of investigating, collecting evidence and unlike in the Scottish system the police in Malta also bring offenders to court as prosecutors. The charges for prosecution are decided by the Commissioner of Police. The police in Malta fall under the responsibility of the Ministry for Justice and Home Affairs (www.mjha.gov.mt).
The Maltese Correctional Services also fall under the responsibility of the Ministry for Justice and Home Affairs and apart from the main prison (Corradino Correctional Facility) it incorporates the Substance Abuse Therapeutic Unit, the Valletta Lock-up and the Forensic Unit. The main goals of the correctional services are to keep prisoners in custody, maintain a safe environment whilst preserving order, control and discipline whilst providing decent conditions for prisoners, meeting their needs. The regimes of the prison must help prisoners in addressing their offending behaviour and facilitate rehabilitation whilst preparing them for their return into society. The main prison is built in the panoptical style and it includes a special section for young offenders, the Y.O.U.R.S. (Young Offenders Unit Rehabilitation Services) and women’s section. The Substance Abuse Therapeutic Unit is also run by the Department of Correctional Services and is a specialized unit which is mainly for male adults who have a history of drug abuse and who if serving a prison sentence of more than six months but less than two years may voluntarily request to be transferred to (www.mjha.gov.mt).
Prison population in Malta is growing and there is an ongoing problem of overcrowding and lack of space. This, coupled with the growing understanding of the importance of rehabilitation, has given rise to the use of community based alternatives to lengthy prison sentences in Malta as mentioned also in Scotland. In fact the probation services in Malta are part of the correctional services. The system we have in place today was established in the Probation of Offenders Act (1957). With the introduction of the Probation Act (2002), probation officers became responsible for supervision duties in the cases for individuals awarded community service orders and combination orders (Calafato, Knepper, 2009). As already mentioned before, unlike Scotland, Malta still doesn’t have a Parole System within its criminal justice system. It is however in the process of being implemented in the near future.
In conclusion, the salient differences between the Scottish and Maltese Criminal Justice Systems emerge in the form of criminal law adopted. Common for Scotland, whereas it is a fusion of both Common and Civil in Malta. As highlighted, there is also a difference in the criminal procedure used, as Malta has adopted the Italian style of Inquisitorial system in favour of the adversarial system in use in Scotland. Other differences which have been mentioned throughout the assignment are mostly due to the size and difference in population, and, even though very similar in their systems, both Malta and Scotland are different in other respects due to their different size, culture and history which all leave a substantial influence on the Criminal Justice System of a country.