Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

often than not, and at the expense of the--innocent--witness. It is to be expected that the increase of responsiveness of the criminal justice system to victims being cross-examined as witnesses will go at the expense of some traditional instruments thought to embody due fairness to the defendant.

The pure logic of the adversarial trial has been substantially qualified by duties of disclosure of evidence between parties. The extensive obligations placed on the prosecution may be seen as merely redressing inequality of arms in pre-trial accumulation of evidence, but the duties recently imposed upon the defence in relation to expert and alibi evidence are clearly prompted by fears that trial by ambush undermines truth-finding. In relation to expert evidence new proposals go further, suggesting a full-scale move to the inquisitorial tradition of neutral experts' reports with duty to report the truth. While these rules of evidence are being relaxed, other rules of evidence seem to become more strict. The exception to the hearsay prohibition, to wit the confession made at the police station, is seen as requiring an increasing number of safeguards in connection with its reliability.

The idea of the trial as a contest is reinforced by its very finality: rights of appeal are restricted. Indeed, under normal circumstances a new examination of the facts is regarded as double jeopardy. The number of appeal cases is further reduced by the high percentage of guilty pleas.


CONCLUSIONS

Our argument has been that fairness of procedure and the establishment of truth must be seen as distinct but related aspects of criminal justice which, at their most abstract, share no necessary relationship: they are neither necessarily complementary nor contradictory. The outcome of the relationship between partisan rights and truth-finding in a particular case depends on the effects of partisan intervention. Sometimes intervention by defence or prosecution will reveal truth; sometimes it will obscure it. The assumption that truth will usually surface of its own accord, if parties have been given a fair chance to challenge each other's version of it, is unproven. But if one places a responsibility upon the state for direct truth- finding, there is equally the potential for tension between the effective pursuit of truth and fairness of procedure. If there are distinctive values supporting both truth-finding and fairness of procedure, minimum standards for the pursuit of each must be established as explicit objectives.

In practice, at some level each system aspires to both the truth and a fair trial. Increasingly the Dutch legal system is acknowledging that there is a need to ensure that systems provide minimum standards of both truth- finding and procedural fairness (though truth-finding seems to remain the priority). English and Welsh acceptance of this aspiration may develop but

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