Compare and contrast two types of criminal justice systems
Across the world there are many different types of criminal justice system to keep and maintain order and peace within their area of jurisdiction creating a social code of conduct, the law. The criminal justice system tries to deter individuals from disrupting this peace and order by pressuring them with the notion of punishment forcing the individual to abide to the law. These punishments differ from being a punitive one or a rehabilitative nature. By doing so the criminal justice has certain power to control society by means of policing. Policing plays an important role in the criminal justice system as it is the first step to criminal proceedings following investigation, judgment and finally punishment where applicable. The criminal justice system can be categorized in three main parts; policing where the investigation is held, the courts for judgement to take place and corrections where the type of punishment is looked over by the correctional authorities (Bernard, 2011). As mentioned before there are many different types of criminal justice system, the author of this literature will be comparing and contrasting the Japanese criminal justice system with the England and Wales’s system.
England and Wales criminal justice follows an adversarial system where the magistrate or a jury hears two opposing views of a case. The defence and the prosecution parties can present their case as how they deem fit by calling and examining witnesses as they like within certain restriction provided by the law (Chapman & Niven, 2000). Unlike the England and Wales’s system the Japanese system follows a semi-inquisitorial scheme where a judge is present in the preparation of evidence with the police and has a say in the way different parties are to show their case in trial. The judge asks questions to the witnesses while the defendant and the prosecution parties can enquire additional questions only through the judge (Mortimer, 1994).
Furthermore the Japanese system does not use the jury system as the England and Wales do. This system of the Japanese is called the “Monopolization of Prosecution" and gives exclusive power to public prosecutors only. Nevertheless there is an exception to the Monopolization of Prosecution and is practiced when a victim of crime believes that the public prosecutors are abusing of their exclusive power. He or she can apply to the court to order the case to be tried. If the order is well-founded then the court must order the case to be tried and a practicing lawyer is selected by the court to exercise the role of the public prosecutor, however if otherwise the order is dismissed (UNAFEI, 2010). A common characteristic in both the Japanese and the England and Wale’s system is the presumption of innocence until proven guilty and that the standard proof must be beyond the reasonable doubt. This presumption of innocence applies at every stage of the criminal procedure and in case of doubt the defendant’s view will always be favoured. (Chapman & Niven, 2000; UNAFEI, 2010).
Throughout all Japan there is one territorial jurisdiction; the same procedure is followed in all criminal cases under the Code of Criminal Procedure (CCP) and the Rules of Criminal Procedure. The constitution protects most of the rights of the individual regarding court trial and criminal investigation under several articles. A few article are listed below
Article 31: “no person shall be deprived of life, or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law,"
Article 33: “no person shall be arrested except upon warrant issued by a competent judicial officer, which specifies the offences with which the person is charged, unless he is arrested in the commission of the offences".
Article 38: “no person shall be compelled to testify against himself," and that a “confession made under compulsion, torture, or threat, or after prolonged detention or confinement shall not be admitted in evidence". It further provides that “no person shall be convicted or punished in cases where the only proof against him is his own confession".
Article 40:“any person, in case he is acquitted after he has been detained or confined, may sue the State for redress as provided by law". (UNAFEI, 2010, p. 20)
Similarly with the England and Wales criminal system the individual has many different rights under the “The Human Rights Act 1998". In the same way as Article 40 in the Japanese constitution the individual can sue the State to the European Court. A few articles from this Act is as follows
“Article 2 – Right to life
Article 3 – Prohibition of torture
Article 6 – Right to a fair trial
Article 7 – No punishment without law – this article states that no person can be punished for an action which did not constitute a criminal offence at the time it was committed.
Article 18 – Limitation on use of restrictions on rights – this article ensures that the restrictions on rights in the convention are not used for any purpose other than those for which they have been prescribed." (Chapman & Niven, 2000, p. 5-6)
In Japan a police Law was put into force in 1947, completely amended in 1954 in order to offer an efficient and effective police organization showing considerable respect to the principle of local autonomy. The police are trained in order to safe guard the national public in matters relating to serious natural catastrophe creating public disorder and matters relating to civil disturbances. The police in Japan are called “Prefectural Police". For some reason or another, as according to the Cabinet Order, in Japan there can only be 278,300 prefectural police. It is estimated that in Japan 1st October 2003, the population was of 127,619,000 meaning that there is one police officer for every 460 persons in the country. The Police law stipulates the duties of the police as “protection of life, person and property of individuals; prevention, suppression and detection of crime and apprehension of suspects; control of traffic; and other functions necessary to maintain public peace and orderBenjamin2010-12-14T21:07:00
Add referemce" (UNAFEI, 2010, p. 2). According to the police law crime detection is one of the main duties of the all the police officers including patrolmen in all police jurisdiction. (UNAFEI, 2010)
In England and Wales the police have more or less the same role as the Prefectural Police. However for England and Wales, before the Police Act of 1964, the idea of the police was regarded as “police force" to enforce the law. Within time difficulties and concerns were experienced with the public and these experiences changed the mentality of a police force to “police service". A difference from the Prefectural Police is that in England and Wales, the police have different number of forces. These forces have specific territorial powers such as the British Transport police, the Ministry of Defence Police and Royal Parks Police (Chapman & Niven, 2000). In Japan there is only one force that controls different territories.
In Japan there are five types of courts in Japan and are all integrated into a unitary national judicial system. These courts are; the Supreme Court, High Court, District Court, Family Court and Summary Court.
The Summary Court; where all cases are heard by a single judge. This court’s jurisdiction is very limited to small offences, offences not more than ¥1,400,000 (€12,496.65), punishable by a fine or a lighter punishment for example penal detention or a minor fine, and other minor criminal offences. A few examples of minor criminal offences include habitual gambling, embezzlement, petty theft and buying or accepting stolen property. The Summary may not give a prison sentence or a graver punishment however can impose imprisonment with labour not exceeding three years. When a case has an outcome of imprisonment of more than three years, the Summary Court can transfer it to the District Court. (UNAFEI, 2010)
The Family Court; has jurisdiction over family issues and juvenile delinquency involving persons under the age of 20. In addition this court hears adult criminal cases that involve offences harmful to juveniles. (UNAFEI, 2010)
The District Court; hears all cases at the first glance except those set aside for the Summary court, Family Court and the High Court. Most of the time cases are tried by a single judge. Nevertheless if there is the possibility of sentencing a life imprisonment, imprisonment for more than one year or death, three judges hear the case. (UNAFEI, 2010)
The High Court; has jurisdiction appeals from decisions made by the District Court, Family Court and the Summary court in criminal cases heard by three judges. The high court even hears cases involving insurrection where 5 judges handle the case. (UNAFEI, 2010)
The Supreme Court; situated in Tokyo, is the highest court and consists of 15 Justices including the Chief Justice, nine of them qualified to be a Japanese legal practitioner and five of those who has extensive knowledge of the law and is at least 40 years of age. This court exercises appellate jurisdiction. Articles 81 of the Constitution state that this court is the court of last resort and is to decide on the constitutionality of any law, regulation, order or official act. The Supreme Court implements this power by rendering case-specific conclusions not by declaring constitutionality in a general way. It generally hears appeals that were tried at a high court if and only if “(1) a violation of the Constitution or an error in constitutional error, or (2) adjudication contrary to precedents of Supreme Court or High CourtsBenjamin2010-12-14T21:07:00
Add reference" (UNAFEI, 2010)
In England and Wales the Courts there are five courts too, the lowest court is the Magistrates Courts where over 96% of criminal cases are dealt with this court. The Magistrates’ Court is tried by at least two lay magistrate but normally three magistrates hears the trial. A district judge can hear a case on his or her own. The magistrate court acts as the Summary Court, The Family Court and the District Court of Japan but can only impose a prison sentence of less than six months or 12months for consecutive sentences, nor can exceed a fine of £5000 (€5,926.98). (Chapman & Niven, 2000)
Three other courts which are under the Supreme Court are the Court of Appeal, the High Court and the Crown Court. The Crown court hears trials of indictable offences and appeals from the court of Magistrates. Appeals from cases originating in the magistrates courts on points of law and proceedings are heard at the High Court. Appeals arising from the Crown court and the High Courts are heard at the Court of Appeal where the final Appeal is heard at the House of Lords. The House of Lords is made up of Lords of Appeal chosen amongst the judges of the Court of Appeal. The High court in Japan is equivalent to the Supreme Courts in England and Wales whereas the House of Lords is similar to the Supreme Court of Japan. (UNAFEI, 2010; Chapman & Niven, 2000)
After a verdict is given and the individual is found guilty, apart from imprisonment there are many other sanctions that both the Japanese and the England and Wales’s system. Both countries have Probation Officers, Halfway Houses, Parole, Fines and Suspended sentences. The Japanese constitution puts a good effort in Probation and Parole where the offender is put within society supervised. Many citizens volunteer as an assistant probationer or parole. Furthermore in Japan Juveniles are given more attention in order for them to rehabilitate; Living Guidance, Academic Education, Physical and Health Education is provided. The prisons in Japan never suffered overcrowding as the rehabilitation of the offender was more important than retaliation.
In England and Wales, effort is put more in community sentences, resulting in less concentration with probation and parole. Community service, Combination, curfew and drug treatment and testing orders are all an option. Community service is when a prisoner does unpaid work for the community with a minimum if 40hours and a maximum of 240hours in twelve months. The Combination order works hand in hand with a probationer where community service is given with the other rules of the probationer. Curfew order controls the person’s liberty of a person to leave an address at certain hours. These different option were put into force as a solution to overcrowding in the prison system where again the mentality has changed throughout the years.
A difference in sentencing between the Japanese and England’s system is the capital punishment. In England and Wales the capital punishment for murder was abolished in 1965. However it was kept but unused for crimes such as treason and other offences. In September 1998 capital punishment was completely abolished under the Crime and Disorder Act. In Japan the capital punishment is still practiced for homicide and treason. However the homicide must include aggravating factors and/or multiple murders.
Even though the English system has been practised before the Japanese system, there is not much of a distinction between the two as one would perceive it to be due to cultural difference. Most of the rights of the individual are protected in both countries; however power is not always exclusive within public prosecutors. So much so, even though power is mainly in the hands of the Japanese public prosecutors, the citizen still has right to go against such mentioned power.