Comparative Criminal Law Lecture 2

Lecture 2 in the Course Comparative Criminal Law (2016/2017): Police & Interrogation

Comparative Criminal Law  (2016/2017)

Lecture 2: Police & Interrogation

Policing

What we discuss now is mostly law in the books.

• Policing: a set of processes (surveillance, threat of sanctions) attempting to maintain security. It has two main tasks, to prevent crime and to maintain public order. It is ruled by the Minister of Internal Affairs. Policing is the policy of activities of the police. They have to serve by exerting power (contradictory demands).

The styles of policing are related to legal culture (authority). Japan is a community policing, in the USA it is more like crime control. There are more different models of policing (relationship military vs. Police). There is a civil police model (England, the Netherlands), State police model (Germany, France) and Quasi-military police model (Eastern-Europe).

Society is changing. There is no social unity anymore, due to immigration and socialisation, we live with a lot of subcultural group. This causes friction between subcultural groups and the police. The majority of the police-officers in the Netherlands are mostly white, Dutch, etc. We try to change this, to prevent the friction of happening. (Mitch killed by police force). It is worrying that there are no go areas to the police, these areas are out of control (for example the suburbs in France). There is a lot of crime, organised crime. The police activities are broad and hard.

Coordinate model: Officials are more or less on the same level, bread discretionary powers, autonomous decision making, values; find the best solution in a given case.  This is the adversarial system.

Hierarchical model: Officials have no broad discretionary power, decisions are subject to review, values; certainty and uniformity in decision making, reliance on the documentation (file. This is the inquisitorial system.

Police tasks

‘Blue within the street’: there is a difference in two sorts of policing, the non-crime policing and the crime policing. The non-crime policing consists of public order maintenance and crime prevention due to visibility. The crime policing consists of oppression. This can be divided in community policing and administrative policing. 

• Community policing (England & Wales): they focus on local priorities, there is a high level of discretion. There is a joined communal responsibility for social control. There is an assumption of social homogeneity, however under pressure.
• Administrative policing (France & the Netherlands): In this concept the police is more a state organ, vertically organised and under the control of hierarchical supervision.

Organisation: Dutch Police

In the Netherlands we have one National Police Force, in 10 areas and 1 national unit. We have 1 Chief Constable. In the end, the Departure of Security and Justice is responsible politically for the National Police Force.

There is no police prosecution, although they have some leeway (dismissal, police penal order). The police has investigative powers, regulated by the Police Act 2012, the Code of Criminal Procedure and other special laws. The investigation is coordinated and supervised by the PPS.

Organisation: Police England & Wales

This is relative autonomous, there are 42 areas. There is Justice by Geography. The Supervision is laid down by the Inspectorate of Constabulary, Police & Crime Commissioners, Police & Crime panels. The Home Office issues guidelines.  Despite this overview, the local autonomy must be emphasized.

Society in the UK is changing, we want to supervise the activities of the police. Therefore we are in need for written statutes. Under these statutory acts there are the Codes of Practice. There is no protocol who supervises, who investigates etc. This is arranged within the police and it stays within the police.

The police in England & Wales have the competence to charge! In the Netherlands they don’t have this competence; they can make reports, but in the end it’s up to the prosecutor to decide. The police in England & Wales can charge and start a prosecution.

Police interrogation

This is an essential activity, this is of essence. An interrogation any words of actions extracted by police that police should know are reasonable to likely elicit an incriminating response. You should always ask yourself if there is an interrogation, will this invoke the right of the other person?

The paramount concern by interrogation is a fair trial. In the inquisitorial system it must be prevented that the state powers will be abused. In the adversarial system the equal parties should be protected.

Het USA has an Election of Head of Police & Public Prosecutor and autonomous police (state & federal). The procedural truth emerges from debate, there are equal parties so equal opportunities. Trickery and deceit is allowed in the police interrogation (false confessions). We cannot do this in the Netherlands. As a suspect you may lose the battle in the USA, because of false confessions.

The due process is about equality. Every man in his relationship to the authorities must be an equal and receive a fair trial.

The Miranda caution (1966). You should be informed the right to remain silence, about the consequence of non-use, access to a lawyer, active invocation of rights, waiver, all circumstances regarded.

In the Netherlands & Wales we have the presumption of innocence, and also the right to waiver. But this should be expressly or implied. In the Netherlands you have to do this actively. The police needs to caution, inform & grant the suspect the opportunity to legal assistance.