In 1968 Herbert Packer published a text that described two different ways of looking at the criminal justice system: The crime control model vs The due process model.

The crime control model is one which people tend to adopt when crime is prevalent and they have started to think that criminals enjoy more rights than victims. This is a perspective that says that if I see a crime being perpetrated in front of me, I don’t need to wait for a judge to tell me that the perpetrator is guilty. Packer calls this “factual guilt”. Its significance is that it was the model which the justice system in 1968 – under apartheid – adopted. People did not enjoy the rights that they do now, under the Bill of Rights in the Constitution. We lived in a police state and the justice system did pretty much what it wanted to do with people.

The due process model is one which is deeply rooted in a rights based culture. On this model, a person is not guilty until they have been afforded a fair trial and a judge has ultimately pronounced that the accused is guilty – Packer calls this “legal guilt”. On this model – crucially – it doesn’t matter how many people “saw” the perpetrator commit the deed that is, how “factually guilty” a person is. She or he is only “legally guilty” when a judge – after a proper process – says so. In a rights based democracy, the due process model must prevail.

The value of this analysis is that Packet explains why we may argue about the rights of the Dros rape suspect – how some are ready to drag him into the street and shoot him, while others insist that he deserves a fair trial – and that even his identity must be protected until he has been charged. Let me say, as a father of two young girls, I have asked several police officers, if ever any of my girls are harmed in this most despicable way, to track me down first and to lock me away before I can track down the suspect. This is because I know I will not be thinking straight. But we need to talk about what we can expect of people who are thinking straight, and of the society we want to live in.

For Packer, I may see someone gun another person down in front of me, in the cold light of day, but I cannot pronounce the perpetrator guilty until a court says so. This is because, in that moment, I might not be aware of several considerations that a court would need to take account of, which I, witnessing a shooting, would not know, or even think of. The most obvious is whether I would identify the right person. It is shocking that eyewitness identification is utterly fallible. Elizabeth Loftus – in her ground breaking research – tried to teach us some humility when if comes to what we can remember. The sad fact is that, asked “correctly” we will “remember” that the shooter was green and purple, wore a polar neck, used a “ray gun” and had parked his UFO on top of the stop sign. But its worse: was the shooter acting in self defence? Was he or she acting in a state of automatism, had he been provoked, or had he gone mad? Did he maybe think he was shooting the devil? One can see that Packer has a point – there are some decisions that we are not qualified to make – even as “factual” witnesses. What about the name of the person. What is the point here.

Let me share with you a snippet out of the life of a client who had the audacity to tell the police to slow down and drive more carefully. The officers did indeed slow down, only to stop and assault my client. They “found” a tiny amount of cannabis in his back pocket and arrested him. It doesn’t matter that the police did not pursue criminal charges against him or that they could not and never did produce the cannabis they say they found on him. He is now an outsider. In the eyes of his community, he is a snake, a drug dealer. His life is that of a loner, when he finishes work he heads straight home and locks himself inside his room. This false accusation of the possession of drugs has stolen his life – and no one seems to care that he was actually standing up for his community when he told the police to slow down.

What does the law say: Section 153(3) is long, but serves, in this context to identify the type of crime with which one is dealing. Its relevance is only that it triggers the provisions of section 154 because it includes sexual offences. The real work is done by section 154 (2) (b). The entire section is included here: Section 154 (2) (b) No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153 (3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question.

So what does this mean? It means that, until an accused (charged with a sexual offence) pleads, no one may publish “any information relating to the charge in question”.

In addition – arguably – until a charge has been properly formulated none of the prohibitions in section 154(2)(b) can apply (see S v Zululand Observer (Pty) Ltd and Another 1982 (2) SA 79 (N)).

Is there any reason not to expose the accused in the Dros child rape case for the monster he is? Yes, several. Do you and I know that the person who was dragged into court is the “right” person?

In the chaos that ensued, is it possible, just possible, that the police arrested the wrong person. But, one may object, the person that was arrested was reportedly full of the victims blood. Do we know that this is even true? And if it is, do we know whether, instead of being the perpetrator, this person had tried to help the victim – had tried to pick her up to carry her. And then, it seems that the police have not settled on this person as the perpetrator.

There is a level at which we may say we know enough to make a social or moral judgment. Sometimes – I agree – this may be enough. But there are times when so much is at stake that we should defer to our courts.

If we recognise anything that Packer argues as at least something we should aspire to, we may worry that the public display permitted yesterday was driven by a perception of the role of the courts as some nicety that we simply can’t have time or patience for anymore. Packer conceives of a shift in perspective from “due process” to more of a “crime control” model, the more crime gets out of control. We may even declare that we want to be more “due process”, but resort to “crime control” in order to bring crime under control. What remains necessary though is that we at least remain aware of the two possible perspectives and that we are deliberately choosing one – with all of the risks that living under that model brings.

James Grant

3 October 2018