Wrongful Convictions and the State Risk Harm Paradigm

17 Pages Posted: 29 Apr 2012 Last revised: 4 May 2019

See all articles by Dr. Myles Frederick McLellan

Dr. Myles Frederick McLellan

Anglia Ruskin University; Osgoode Hall Law School

Date Written: April 6, 2019

Abstract

What has been seen in the last thirty-five years is a significant shift in the psyche of contemporary society. Beck’s theory of “risk society” has captured the concerns of governments and its institutions to focus fears on risks and insecurity. Within the criminal justice context, this has led to the pervasive consciousness that crime has become part of the everyday experience to be controlled by risk management techniques framed within Foucault’s concept of “governmentality.” Crime has become a ubiquitous risk that must be routinely assessed and managed. This shift in criminological thought has also been seen in the move away from the liberal ideals of due process to the favoring of public protection over the rights of individuals found within the normative model of crime control. The problem in this devaluation of due process is the consequent imbalance of power between the individual and the State. Due process rights are enshrined in the Charter to protect against this imbalance and are never more important than when loss of liberty is at stake, most particularly when the errors due to the constriction of these rights contribute to the acknowledged systemic factors that lead to wrongful convictions.

Keywords: risk, innocence, presumption of innocence, social contract, rights, due process, crime control, fundamental justice, mistaken identification, false confessions, jailhouse informants, wrongful acquittal, state harm, malicious prosecution, negligent investigation, Charter damages

Suggested Citation

McLellan, Myles Frederick, Wrongful Convictions and the State Risk Harm Paradigm (April 6, 2019). Available at SSRN: https://ssrn.com/abstract=2047453 or http://dx.doi.org/10.2139/ssrn.2047453

Myles Frederick McLellan (Contact Author)

Anglia Ruskin University ( email )

Bishop Lane Hall
Chelmsford
United Kingdom

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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