A Public Law Conception of Integrity in the Criminal Process

Abstract

Integrity has become a prominent theme in current discourse on the criminal process. It is referred to in cases involving police or prosecutorial misconduct. Courts increasingly make reference to integrity as a ground for ordering relief against and for the government. Integrity lies at the heart of the entrapment and abuse of process doctrines. What more can be expected of the integrity principle will depend on a proper understanding of its scope and meaning. The principle is said to be ‘an influential but also a puzzling principle of criminal justice’. What is the relationship between integrity and human rights? And what is its relationship to notions such as public confidence in the administration of justice, disrepute, accountability and legitimacy? Does it mean anything more than having minimum standards of conduct (and if so, when and in what context), and again is this anything different from a rights-based approach to criminal process? Does it refer to having coherence in the system and if so, coherent by what underlying premises?

This chapter further explores the principle of integrity with reference to the views expressed by courts and scholars. It assesses whether the principle has relevance outside the stay of proceedings and exclusion of evidence cases, as a general and defining element of criminal process. I begin the chapter by reflecting critically on existing literature and case law on integrity theory which fit schematically around six characteristics. In the second half of the chapter, I construct a new way of thinking about integrity from an institutional perspective that may help to explain what courts and public officials do in practice. The new approach brings together ideas about judicial review, abuse of process and prosecutorial discretion. I argue that public law and judicial review concepts can be used to understand the stay and exclusion cases. From this survey of the landscape comes a broadly encompassing institutional approach to integrity in criminal process that springs from the concept of overriding public interest.