Criminal Justice in Europe: A Comparative Study

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

both, if they are to be viewed as acceptable in their present form, require great faith in the integrity and competence of professional role-playing. The Dutch must trust the judicial impartiality of the prosecutor despite the evidence of bureaucratic pressures; the British must trust to the combative competence of defence lawyers to ensure suspects' interests are preserved in the bargaining process. Dutch faith in their prosecutor may be more durable because of the absence of publicized scandals.43


CONCILUSION

The system of public prosecution in the Netherlands is the result of historical development, and confidence and trust in the prosecution service are still based on the idea that, when it comes to the crunch, the prosecutor is part of the judiciary and not of the executive. The desire to promote the development of some version of Continental conditional diversion in England and Wales is understandable, but there is a need to be clear-eyed about the dangers of borrowing from other countries. Sanders and others rightly recognize the key difficulties in conditional diversion: problems of consistency, visibility, due process, and public accountability in decision- making. But there is also a need to recognize that the way these issues are addressed in other countries may not be replicable; indeed it may not be desirable to do so. Dutch regulation of the process of conditional diversion relies, unthinkingly and too heavily, on informal procedures and historically- developed checks and balances to prevent it going off the rails. At the end of the day, it only works as it does because society probably accepts (although no one knows for sure because the question never really arises as a public issue) that the prosecution service can be trusted to do what is best in the public interest. This derives from completely different institutional and cultural frames of reference, from attitudes and training rooted in the career judiciary system.

The Dutch system suggests, as British advocates of conditional diversion acknowledge, that conditional diversion would require a more dominant CPS with a monopoly of prosecution and access to public interest information from welfare agencies.44 But more than this, there is the need for proper structures of accountability. If suspects are to be protected from arbitrary coercion, the Dutch experience suggests both strengths and weaknesses in faith in the image of prosecutors as judicial figures. Its strength

____________________
43
For scepticism about the role of defence lawyers, see J. Baldwin and M. McConville, Negotiated Justice ( London; Martin Robertson 1977); M. McConvilleet al., n. 9, above, 165-170 and A. Sanders, "'Reforming the Prosecution System" [ 1992] Political Quarterly 25at 33-4.
44
A. Sanders, n. 2, above, at 525-6.

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