Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms 9781782258353, 9781782258384, 9781782258377

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OBSTACLES TO FAIRNESS IN CRIMINAL PROCEEDINGS This volume considers the way in which the focus on individual rights may constitute an obstacle to ensuring fairness in criminal proceedings. The increasingly cosmopolitan nature of criminal justice, forcing legal systems with different institutional forms and practices to interact with each other as they attempt to combat crime beyond national borders, has accentuated the need for ­systems to seek legitimacy beyond their domestic traditions. Fairness, expressed in terms of the right to a fair trial in provisions such as Article 6 of the European ­Convention on Human Rights, has emerged across Europe as the principal means of guaranteeing the legitimacy of criminal proceedings. The consequence of this is that criminal procedure doctrines are framed overwhelmingly in ‘constitutional’ terms— the protection of defence rights is necessary to restrict and legitimate the state’s mandate to prosecute crime. Yet there are various problems with relying solely or predominantly on defence rights as a means of ensuring that proceedings are ‘fair’ or legitimate and these issues are rarely discussed in the academic literature. In this volume, scholars from the disciplines of law, philosophy and sociology challenge various normative assumptions underpinning our understanding of fairness in criminal proceedings.

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Obstacles to Fairness in Criminal Proceedings Individual Rights and Institutional Forms

Edited by

John D Jackson and Sarah J Summers

OXFORD AND PORTLAND, OREGON 2018

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2018 © The editors and contributors severally 2018 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, ­electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-78225-835-3 ePDF: 978-1-78225-837-7 ePub: 978-1-78225-836-0 Library of Congress Cataloging-in-Publication Data Names: Jackson, John D., 1955- editor.  |  Summers, Sarah J., editor. Title: Obstacles to fairness in criminal proceedings : individual rights and institutional forms / edited by John D. Jackson and Sarah J. Summers. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2018.  |  Includes bibliographical references and index. Identifiers: LCCN 2017051102 (print)  |  LCCN 2017051419 (ebook)  |  ISBN 9781782258360 (Epub)  |  ISBN 9781782258353 (hardback : alk. paper) Subjects: LCSH: Fair trial.  |  Criminal procedure (International law)  |  Due process of law.  |  Pre-trial procedure.  |  Evidence, Criminal. Classification: LCC KZ7364 (ebook)  |  LCC KZ7364 .O27 2018 (print)  |  DDC 345/.056—dc23 LC record available at https://lccn.loc.gov/2017051102 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Acknowledgements The essays in this collection are the result of two workshops held in Zurich in September 2014 and in Nottingham in September 2016. The first workshop was hosted by the Faculty of Law at the University of Zurich and we are grateful to the Swiss National Science Foundation for its generous financial support for the workshop. We would like to thank Lorenz Garland and Aline Scheiwiller in ­particular for taking care of the administrative arrangements. The second workshop was hosted by the University of Nottingham School of Law’s Centre for Criminal Justice Research and funded by the Modern Law Review’s Scholarly Seminar Series. We gratefully acknowledge the School of Law for its administrative support and the Modern Law Review for its financial support. We would like to thank the Centre’s administrator, Kobie Neita, for her help in the organisational arrangements and for ensuring that the workshop ran so smoothly. For the first exploratory workshop scholars from a number of different disciplines were asked to challenge various normative assumptions underpinning our understanding of fairness in criminal proceedings. Participants were asked to submit their papers to discussants in advance of the workshop so that there was plenty of scope for discussion of the papers at the workshop. For the second workshop participants were asked to revise their papers to address one of a number of themes that were identified at the exploratory workshop and some participants submitted completely new papers in order to engage with these themes. Once again discussants were appointed to comment on the papers. We would like to thank the discussants to each of the workshops for their intellectual effort which greatly assisted in the development of the ideas and arguments to be found in this collection. The authors of each of the papers submitted to the second workshop were asked to revise their papers into a draft chapter for this collection and each chapter was then subjected to editorial review and further revision. We would like to thank all the authors for engaging so willingly with the themes of the book and for sticking so patiently with the project throughout its development. The collection could never have been brought to fruition without their commitment and dedication. We would like to thank Kristof Reber, Luca Ranzoni, Elena Biaggini and David Scott for the editorial assistance they gave us before we handed over copy to the publishers and to Egbert Clement for his inspirational design of the cover. Bill Asquith was very enthusiastic about the project from the outset and we would like to thank all at Hart/Bloomsbury for their production and marketing of the book. In addition to Bill, we would like to thank in particular Francesca Sancarlo and our copy editor, Victoria Broom. John D Jackson and Sarah J Summers October 2017

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Table of Contents Acknowledgements������������������������������������������������������������������������������������������������ v List of Contributors�������������������������������������������������������������������������������������������� xiii 1. Introduction���������������������������������������������������������������������������������������������������� 1 John D Jackson and Sarah J Summers I. Fair Trial Standards��������������������������������������������������������������������������������� 1 II. Obstacles to Fairness������������������������������������������������������������������������������� 4 III. Individual Rights and Institutional Forms��������������������������������������������� 10 2. The Character of the Right to a Fair Trial����������������������������������������������������� 19 Stefan Trechsel I. Introduction������������������������������������������������������������������������������������������ 19 II. The Rank of the Right to a Fair Trial���������������������������������������������������� 20 A. Within the Hierarchy of International Human Rights�������������������� 20 B. Within the Framework of the ECHR���������������������������������������������� 21 III. The Scope of the Right to a Fair Trial in Article 6��������������������������������� 22 A. Various Ambits of the Right to a Fair Trial������������������������������������ 22 B. The Relationship between the Right to a Fair Trial under Article 6(1) ECHR and the Specific Rights of the Accused under Article 6(3) ECHR��������������������������������������������������������������� 23 C. The Relationship between the Right to a Fair Trial and the Other Convention Guarantees Connected to Criminal Proceedings������������������������������������������������������������������������������������ 26 i. The Specific Rights���������������������������������������������������������������� 26 ii. Fair Trial and the Right to an Independent and Impartial Tribunal�������������������������������������������������������������������������������� 26 iii. Fair Trial and the Requirement of ‘Adversarial’ Proceedings��������������������������������������������������������������������������� 28 iv. Fair Trial and Equality of Arms�������������������������������������������� 28 v. Fair Trial and the Right to a Reasoned Judgment����������������� 29 vi. Fair Trial and the Right to a Public Hearing������������������������� 30 vii. Fair Trial and the Right to a Judgment within Reasonable Time������������������������������������������������������������������� 30 viii. Fair Trial and the Presumption of Innocence������������������������� 30 ix. Fair Trial and the Protection of the Privilege against Self-Incrimination����������������������������������������������������������������� 31 IV. Is the Right to a Fair Trial a Straightforward Individual Human Right?��������������������������������������������������������������������������������������� 32 V. Conclusions������������������������������������������������������������������������������������������� 35

viii  Table of Contents 3. Autonomy and Agency in American Criminal Process����������������������������������� 37 David Alan Sklansky I. Autonomy��������������������������������������������������������������������������������������������� 37 II. Agency�������������������������������������������������������������������������������������������������� 42 III. Waiver��������������������������������������������������������������������������������������������������� 46 A. Waiving Post-Conviction Review���������������������������������������������������� 46 B. Waiving Confrontation������������������������������������������������������������������ 49 C. Waiving Non-Discriminatory Jury Selection����������������������������������� 50 D. Waiving Discovery������������������������������������������������������������������������� 51 E. Waiver and Effective Assistance of Counsel������������������������������������ 53 IV. Reform�������������������������������������������������������������������������������������������������� 54 4. Innocence, the Burden of Proof and Fairness in the Criminal Trial: Revisiting Woolmington v DPP (1935)���������������������������������������������������������� 57 Lindsay Farmer I. Introduction������������������������������������������������������������������������������������������ 57 II. Woolmington v DPP (1935)������������������������������������������������������������������ 58 III. Woolmington in Context����������������������������������������������������������������������� 61 IV. The Scope of the Presumption of Innocence������������������������������������������ 66 V. Conclusion�������������������������������������������������������������������������������������������� 72 5. The Right of Silence in England and Wales: Sacred Cow, Sacrificial Lamb or Trojan Horse?��������������������������������������������������������������������������������� 75 Hannah Quirk I. A Sacred Cow?�������������������������������������������������������������������������������������� 77 II. A Sacrificial Lamb?�������������������������������������������������������������������������������� 81 III. A Trojan Horse?������������������������������������������������������������������������������������ 86 A. Section 35 of the CJPOA���������������������������������������������������������������� 87 B. Section 34, 36 and 37 of the CJPOA���������������������������������������������� 90 C. ECtHR Jurisprudence��������������������������������������������������������������������� 94 D. Criminal Justice Policy������������������������������������������������������������������� 95 IV. Conclusion�������������������������������������������������������������������������������������������� 97 6. Seeking Core Fair Trial Standards across National Boundaries: Judicial Impartiality, the Prosecutorial Role and the Right to Counsel������������������������ 99 John D Jackson and Sarah J Summers I. Introduction������������������������������������������������������������������������������������������ 99 II. Searching for Core Values������������������������������������������������������������������� 101 A. Individual Interests: Dignity, Autonomy and Liberty�������������������� 101 B. Accuracy�������������������������������������������������������������������������������������� 104 C. Judicial Impartiality and the Prosecutorial Role��������������������������� 106 III. The Right to Counsel�������������������������������������������������������������������������� 109 A. Waiver������������������������������������������������������������������������������������������ 111 B. Self-Representation���������������������������������������������������������������������� 113 C. Acting on Instructions������������������������������������������������������������������ 115 IV. Meeting Challenges to the Fair Trial Standards����������������������������������� 117 A. Trial Avoidance���������������������������������������������������������������������������� 117

Table of Contents ix B. Sensitive Information����������������������������������������������������������������� 120 C. The Need to Protect Witnesses and Victims������������������������������� 122 V. Conclusion: Towards a Shared Understanding of Fairness���������������� 123 7. The Role of Counsel in Criminal Proceedings���������������������������������������������� 127 Wolfgang Wohlers I. The Role of Counsel in Criminal Proceedings: Differences between Common Law and Civil Law Systems����������������������������������������������� 127 II. Thinking outside the Box: The Challenges and Promises of a Transnational View of Criminal Proceedings����������������������������� 129 A. The Practice of the International Criminal Tribunals: Common Law, Civil Law, or Something in Between?����������������� 129 B. The Case Law of the ECtHR: Is There Common Ground between Common Law and Civil Law Systems?������������������������ 131 III. Effects of the Exercise of the Right to Legal Assistance on the Procedural Role of the Accused���������������������������������������������� 134 A. English Law������������������������������������������������������������������������������� 134 i. The Origins of the Counsel-Driven Adversarial Trial���������� 134 ii. The Role of Counsel in the Modern Criminal Trial������������� 135 B. US Law�������������������������������������������������������������������������������������� 138 i. The Bifurcated Model of Full Representation and Self-Representation as Mutually Exclusive Rights��������������� 138 ii. Hybrid Representation�������������������������������������������������������� 142 C. German Law������������������������������������������������������������������������������ 144 i. German Law as an Example of Hybrid Representation������� 144 ii. Is Full Representation Possible under German Law?����������� 147 D. Swiss Law���������������������������������������������������������������������������������� 149 E. Some Conclusions from the Comparative Analysis�������������������� 151 8. ‘Falling on Deaf Ears’: Looking for the Salduz Jurisprudence in Greece������ 155 Dimitrios Giannoulopoulos I. The Seminal Salduz Jurisprudence���������������������������������������������������� 157 II. Court-Centred and Contracting Party-Centred Explanations of Acceptance of, or Resistance to, ECHR Jurisprudence������������������ 159 III. Custodial Legal Assistance in Greece: A Liberal Legislative Framework��������������������������������������������������������������������������������������� 162 IV. Suspects’ Rights in Practice��������������������������������������������������������������� 164 V. Salduz’s Negligible Effect in Greece: ‘Paying Lip Service’ and Avoiding the Cost of Putting up Resistance�������������������������������� 166 VI. Greek Responses to International Pressures for Human Rights Reform: The Wider Context������������������������������������������������������������� 169 VII. The Role of Effective National Implementation of ECHR Rights����������������������������������������������������������������������������������������������� 174 VIII. Concluding Observations������������������������������������������������������������������ 176 9. Fairness and Expediency in International Criminal Procedure��������������������� 179 Kai Ambos

x  Table of Contents 10. International Criminal Procedure and the False Promise of an Ideal Model of Fairness�������������������������������������������������������������������������������������� 191 Yvonne McDermott I. Introduction�������������������������������������������������������������������������������������� 191 II. International Criminal Procedure’s Potential as an Ideal Model�������� 193 III. Some Aspects of International Criminal Procedure that Fall  Short of an Ideal Model of Fairness��������������������������������������������������� 196 A. Judicial Notice��������������������������������������������������������������������������� 196 B. Extension of Fair Trial Rights to Actors other than the Accused�������������������������������������������������������������������������������� 197 IV. International Criminal Law’s Inability to Create a Universally Acceptable Procedural Model������������������������������������������������������������ 199 V. Conclusion���������������������������������������������������������������������������������������� 203 11. Written Records of Statements and Fairness���������������������������������������������� 205 Nadja Capus I. Introduction�������������������������������������������������������������������������������������� 205 II. Is Direct Knowledge Required Instead of Reading Authority-Generated Written Records?��������������������������������������������� 206 A. Written Records and the Principles of Orality and Immediacy������206 B. Written Records in the Light of Article 6 ECHR������������������������ 210 III. Written Records as a Guarantee of Fairness�������������������������������������� 210 A. Written Records as a Means of Ensuring Judicial Control���������� 210 B. Written Records and the Right to be Heard������������������������������� 211 IV. Turning Points: Under which Circumstances do the Production or Reception of Written Reports Constitute Obstacles to Fairness?�����213 A. Obstacles to Fairness within the Production of the Written Record��������������������������������������������������������������������������������������� 213 B. Obstacles to Fairness in the Use of the Written Record (as Evidence): Signs of Hazards to Fairness�������������������������������� 214 i. Modified Presentation of the Interaction������������������������������ 214 ii. Language Issues������������������������������������������������������������������� 215 V. The Use of Written Records�������������������������������������������������������������� 217 VI. Conclusion���������������������������������������������������������������������������������������� 219 12. Regulating and Limiting Plea Concessions: Towards Fairness in Charge Adjudication����������������������������������������������������������������������������� 221 Richard L Lippke I. The Problems with Unfettered Plea Bargaining���������������������������������� 224 II. Constraining and Regulating Plea Concessions��������������������������������� 228 III. Back to the Misdemeanour Case-Processing World��������������������������� 232 IV. Concluding Remarks������������������������������������������������������������������������� 236 13. A Fair Cop and a Fair Trial����������������������������������������������������������������������� 239 Eric J Miller I. Introduction�������������������������������������������������������������������������������������� 239 II. What Police Do��������������������������������������������������������������������������������� 244

Table of Contents xi III. The Police Role��������������������������������������������������������������������������������� 250 A. Values and Duties����������������������������������������������������������������������� 254 B. Duties to Investigate and Intervene��������������������������������������������� 258 C. Moral Dangers of Policing��������������������������������������������������������� 260 D. Separating Duties����������������������������������������������������������������������� 261 IV. Mass Policing and Mass Adjudication����������������������������������������������� 263 A. Policing, Public Welfare, and Criminal Trials����������������������������� 265 B. The Police Permission to Decline Trial Punishment�������������������� 270 V. Conclusion���������������������������������������������������������������������������������������� 271 14. Rights-Analysis in Addressing Pre-Trial Impropriety: An Obstacle to Fairness?����������������������������������������������������������������������������������������������� 273 Kelly M Pitcher I. Introduction�������������������������������������������������������������������������������������� 273 II. The Reductionist Nature of Rights-Analysis�������������������������������������� 276 III. The Malleability of Rights-Analysis�������������������������������������������������� 284 IV. Rights-Analysis as an Obstacle to Fairness���������������������������������������� 292 V. The Proper Role of ‘Rights’ in Addressing Pre-Trial Impropriety������� 298 15. Fairness in Criminal Proceedings: Concluding Thoughts and Further Questions������������������������������������������������������������������������������� 301 RA Duff I. Fairness in Criminal Proceedings������������������������������������������������������� 301 II. The Aims of the Criminal Process����������������������������������������������������� 303 III. ‘Criminal Proceedings’���������������������������������������������������������������������� 305 IV. Fairness to Whom?���������������������������������������������������������������������������� 307 V. Institutions and Roles������������������������������������������������������������������������ 309 Index������������������������������������������������������������������������������������������������������������������ 315

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List of Contributors Kai Ambos, Professor of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law, University of Göttingen; Judge, Kosovo Specialist Chambers Nadja Capus, Professor of Criminal Law and Criminal Procedure, University of Neuchâtel RA Duff, Professor Emeritus, University of Stirling Lindsay Farmer, Professor of Law, University of Glasgow Dimitrios Giannoulopoulos, Senior Lecturer, Brunel University London John D Jackson, Professor of Comparative Criminal Law and Procedure, University of Nottingham Richard L Lippke, Professor of Criminal Justice, Indiana University Yvonne McDermott, Associate Professor of Law, Swansea University Eric J Miller, Professor of Law, Loyola Law School, Los Angeles Kelly M Pitcher, Assistant Professor of Criminal Law and Criminal Procedure, Leiden University Hannah Quirk, Senior Lecturer, University of Manchester David Alan Sklansky, Stanley Morrison Professor of Law, Stanford Law School Sarah J Summers, Assistant Professor of Criminal Law, Criminal Procedure and Criminology University of Zürich Stefan Trechsel, Professor Emeritus, University of Zürich; Former President of the European Commission on Human Rights; Former Ad Litem Judge, International Criminal Tribunal for the Former Yugoslavia Wolfgang Wohlers, Professor of Criminal Law, University of Basel

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1 Introduction JOHN D JACKSON AND SARAH J SUMMERS

I.  FAIR TRIAL STANDARDS

T

HE FAIR TRIAL standards enshrined in various human rights instruments that were agreed in the post-World War II settlement have proved remarkably influential as a basis for legitimising criminal proceedings. The increasingly cosmopolitan nature of criminal justice forcing different legal systems to interact with each other as they attempt to combat crime beyond national borders has accentuated the need to rely upon common standards for building trust in each other’s systems and the human rights instruments have provided a ready tool for doing this. The drive towards closer cooperation in criminal justice has been particularly acute in Europe within the European Union’s area of ‘freedom, justice and security’. In recognition of the differences between different jurisdictions, the principle of ‘mutual recognition’ has been developed whereby decisions taken in one Member State are accepted as valid in other Member States.1 But for this to work there needs to be an element of trust in each other’s systems and this has been based on the assumption that Member States meet the human rights requirements set out in the European Convention on Human Rights (ECHR) and in particular the minimum standards of procedural rights for suspects and accused persons set out in Article 6 of the ECHR. The European Union has since adopted its own Charter of Fundamental Rights which cannot fall below the protection of those afforded by the ECHR.2 Beyond the attempts to create closer cooperation between European criminal justice systems, the even more ambitious attempts to create an international criminal order by making individuals responsible for international crimes have again called upon human rights instruments and in particular the fair trial standards set out in the International Covenant on Civil and Political Rights (ICCPR) to lend them legitimacy. Amid the difficult task of finding agreement on the aims of international criminal justice and on what rules of procedure and evidence should govern the international tribunals and courts, there has been a consensus on the need for them to apply these fair trial norms. The report which the Security Council requested the Secretary General to prepare on the International Tribunal for the prosecution of persons relating to violations of international humanitarian law committed in 1  2 

See Treaty on the Functioning of the European Union Art 82 [2008] OJ C115. See Charter of Fundamental Rights of the European Union Art 52 [2012] OJ C326.

2  John D Jackson and Sarah J Summers the former Yugoslavia—the first international criminal tribunal to be created since Nuremberg—considered that it was ‘axiomatic’ that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings.3 In the view of the Secretary General, such standards were contained in Article 14 of the ICCPR and this Article was incorporated, almost verbatim, into Article 21 of the draft Statute which the Security Council approved for the Tribunal. The same standards have been incorporated into the statutes of the other international criminal tribunals including that of the I­ nternational Criminal Court (ICC).4 There were good pragmatic grounds for doing this. International t­ribunals have been dependent on the cooperation of states to execute their requests for assistance but without the tribunals adhering to internationally recognised human rights standards, states would run the risk of not complying with their own human rights obligations if they were to comply with these requests.5 But, more importantly, it would be difficult for the international tribunals to maintain legitimacy and to avert the charge of ‘victor’s justice’ if they did not sign up to standards that have long been recognised by national states as constituting a fair trial.6 It would be wrong, however, to consider that the fair trial standards in the various post World War II human rights instruments were somehow an ‘add-on’ to the procedural traditions of the states that signed up to these instruments. While subscribing to the instruments enshrining these standards helps states to provide external legitimacy to their justice systems, the standards were already embedded as professed standards within many domestic systems. Some of the values underlying them go back as far as the ancient world. Support for the right to be heard, for example, can be traced in biblical passages and in the writings and speeches of notorious playwrights and orators of the ancient Greek world.7 The right found its way into Roman law and found expression in the inquisitorial regimes of continental Europe that existed up to the end of the eighteenth century which are better known for their unrestrained use of torture to extract confessions.8 The right to a fair trial is more commonly traced back to the common law tradition and finds its expression most famously in Article 39 of King John’s thirteenth century Magna Carta, which prescribed that no action shall be taken against a free man except by the lawful ­judgment of his peers.9

3  Report of the Secretary General pursuant to para 2 of Security Council Resolution 808, s/25704 [106], cited in V Morris and M Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis (Irvington-on-Hudson, Transnational ­Publishers, 1995) 23. 4  See, eg, in addition to International Criminal Tribunal for former Yugoslavia (ICTY) Statute Art 21; International Criminal Tribunal for Rwanda (ICTR) Statute Art 20; The Special Court for Sierra Leone (SCSL) Statute Art 17; Special Tribunal for Lebanon (STL) Statute Art 16; and ICC Statute Art 67. Internationalised tribunals have similarly subscribed to the fair trial standards in Art 14 of the ICCPR. See, eg, Art 12(2) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) Agreement. For further elaboration, see Ambos, ch 9 in this volume. 5  S Zappalà, Human Rights in International Criminal Proceedings (Oxford, Oxford University Press, 2003) 6. 6  ibid. See also C Warbrick, ‘International Criminal Courts and Fair Trial’ (1998) 3 Journal of Armed Conflict Law 45, 48 f. 7  See R Summers, ‘A Plea for Process Values’ (1974) 60 Cornell Law Review 1. 8  M Damaška, ‘The Quest for Due Process in the Age of Inquisition’ (2012) 60 American Journal of Comparative Law 919. 9  See A Arlidge and I Judge, Magna Carta Uncovered (Oxford, Hart Publishing, 2014).

Introduction 3 Basic procedural safeguards that we now associate with the right to a fair trial did not, however, take hold until the Enlightenment when the notion of citizens as subjects of a democratic national state evolved. The underlying driver of this shift from persons as objects of state authority to persons as subjects in their own right was the need to respect the dignity of the human person, that subjects must at all times be treated with the concern and respect to which they are entitled by virtue of their humanity.10 A number of ‘inalienable’ rights were accordingly enshrined in such transformative instruments as the American Bill of Rights and the French Déclaration des Droits de l’Homme et du Citoyen which included many now commonly associated with the right to fair trial such as the right to silence, the right to be informed of the accusations and have the time to prepare one’s defence and the right to be presumed innocent.11 Although many of these rights came to be constitutionalised in criminal justice systems throughout the nineteenth and twentieth centuries, it took the ‘human rights revolution’ after World War II to give them truly universal effect, transforming them into human rights, applicable to all citizens and non-citizens alike.12 Although finding their inspiration in the universal value of human dignity, the actual content of the fair trial standards has been in a constant state of evolution, changing not only from one century to another but also sometimes from one decade to another.13 Taking Article 6 of the ECHR as a guideline, Hildebrandt has summarised its constitutive principles as follows: 1) the judge of the ‘fair trial’ is impartial and independent; 2) the trial is public; 3) the defendant will not suffer punitive actions as long as her guilt is not legally established (presumption of innocence); 4) the defendant is provided with equality of arms; 5) the judgment will be based on evidence presented in court (principle of immediacy, connected with a normative preference for oral testimony); and 6) the proceedings are contradictory (either adversarial or contradictory in the continental sense).14 To this can be added the privilege against self-incrimination which the E ­ uropean Court of Human Rights (ECtHR)—the authoritative source of the ECHR’s i­ nterpretation—has declared to be ‘one of the generally recognised international standards which lie at the heart of the notion of a fair procedure under Art 6’.15 As Hildebrandt explains,

10  P Roberts, ‘Theorising Procedural Tradition: Subjects, Objects and Values in Criminal Adjudication’ in RA Duff, L Farmer, S Marshall and V Tadros (eds), The Trial on Trial (2): Judgment and Calling to Account (Oxford, Hart Publishing, 2006) 37, 41 citing I Kant, The Metaphysics of Morals [1797] ed M Gregor (Cambridge, Cambridge University Press, 1996) 209. 11  CJM Safferling, Towards an International Criminal Procedure (Oxford, Oxford University Press, 2001) 21. 12  Roberts (n 10) 43. 13  T Bingham, The Rule of Law (London, Allen Lane, 2010) 90 f. See also his own judgment in R v H and C [2004] UKHL 5, [2004] 2 AC 134 [11]. 14  M Hildebrandt, ‘Trial and “Fair Trial”: From Peer to Subject to Citizen’ in Duff et al (n 10) 15, 25. 15  John Murray v United Kingdom [GC] (1996) 22 EHRR 29 [45]; Saunders v United Kingdom [GC] (1997) 23 EHRR 313 [68].

4  John D Jackson and Sarah J Summers these standards are primarily addressed to how a defendant can challenge the ­criminal charge. They do not address how other participants such as victims and witnesses should be treated during the trial and one of the evolving questions that both domestic and international courts have had to deal with is how to incorporate the legitimate expectations of these participants as subjects within the criminal trial. Using the Rawlsian ‘veil of ignorance’ as a device to answer this question, Hildebrandt argued that while indeed victims are entitled to be treated with respect within the criminal justice system, this does not mean that within the confines of the democratic constitutional state to which we give the authority to prosecute defendants on our behalf as citizens, the victim is entitled to any legal standing in the strong sense. But this is precisely what has been contested from other perspectives which question the state’s authority to act on behalf of the victim, especially in the international legal order where the state has itself no status to participate and where there is arguably a more direct role for victims in the quest to achieve its restorative and reconciliatory aims.16 Human rights bodies have inevitably been drawn into these controversies. In a famous enunciation of the need to recognise the rights of witnesses and victims, the ECtHR has held that ‘the principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify’.17 But in stopping short of proclaiming any status rights for victims, over and above the rights to which all persons are entitled under the Convention, especially in this context the need to protect the victim and respect her private life, the ECtHR has been able to maintain this balance without treading too deeply into the defendant’s procedural rights.18 Where, on the other hand, victims are given greater rights to have crimes against them vigorously pursued and to have the perpetrators brought to justice and punished, as has been suggested in certain decisions of the Inter-American Court of Human Rights,19 then the interests in guilt determination would seem to collide more directly with the rights of the defence.20 II.  OBSTACLES TO FAIRNESS

The continuing evolution of what fairness requires points to a difficulty in reaching a state where we can say that fairness has ever been achieved.21 The impression given in much of the human rights jurisprudence, however, is that we are at least marching 16  H Friman, ‘Participation of Victims in the ICC Criminal Proceedings and the Early Jurisprudence of the Court’ in G Sluiter and S Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (London, Cameron May, 2009) 205. 17  Doorson v The Netherlands (1996) 22 EHRR 330 [70]. 18  JD Jackson and SJ Summers, The Internationalisation of Criminal Evidence (Cambridge, ­Cambridge University Press, 2012) 378 f. 19  See, eg, Bulacio v Argentina, 18 Sept 2003, Series C no 100; Alban-Cornejo v Ecuador, 22 Nov 2007, Series C no 171. 20 See M Sorochinsky, ‘Prosecuting Torturers, Protecting “Child Molesters”: Towards a Power Balance Model of Criminal Process of International Human Rights Law’ (2009) 31 Michigan Journal of International Law 158. 21  Bingham (n 13) 91.

Introduction 5 in the right direction and that while much remains to be contested and developed, certain core principles are well established. Turning away from the normative perspective of what fairness requires and adopting instead an ‘institutional’ perspective towards the practice of criminal justice across domestic and international systems,22 much greater scepticism would seem to be warranted about whether fairness is being achieved in the vast majority of criminal proceedings. Instead of the bulk of proceedings adhering to the fair trial standards enunciated in Hildebrandt’s summary, we seem instead to be increasingly moving towards the position where in a number of domestic jurisdictions most proceedings are concluded without any significant intervention from an ‘impartial and independent’ judge, without any publicly contested trial, without the presumption of innocence bearing any significance in the proceedings, without the defendant being provided with any meaningful ‘equality of arms’ in terms of access to the assistance of counsel at the crucial moment of confession, without evidence presented in court and without any contradiction in the adversarial or contradictory sense. As Weigend has put it, the trial which was long ago regarded as the apex of the criminal process, has now become if not an ‘endangered species’ certainly a ‘minority phenomenon’.23 This would seem to have occurred across the dominant procedural traditions. While plea bargaining was once perhaps considered a haven of American exceptionalism, it now appears to have become the norm, albeit that it takes different institutional forms in countries that were once characterised as ‘lands without plea bargaining’.24 Weigend records that in 2001 only 15.6 per cent of cases with a known suspect were disposed of by trial in Germany.25 The US figures remain much lower, with under three per cent of federal criminal cases going to trial and less than five per cent of state cases.26 Even when cases go to trial the fair trial standards which are professed are not by any means practised. In some jurisdictions such as the US there has been a decline in confidence in the competence and effectiveness of counsel.27 In others cuts in legal aid are leading to a decline in the number of cases where defendants are legally represented at all.28 Even if an effective counsel is available to combat the prosecution case at trial, the ability to achieve fairness at trial may be undercut by unfairnesses that have been perpetrated upon the defendant before trial. ­Unfairnesses before trial can be hard to locate as they tend to take place in environments closed to the ­public eye and, despite the requirement of a public trial, there would appear to be an increasing tendency for even criminal trials in some jurisdictions to take place

22 See Roberts’s characterisation of different perspectives or approaches to conceptualising criminal procedure and evidence in P Roberts, ‘Groundwork for a Jurisprudence of Criminal Procedure’ in RA Duff and S Green (eds), Philosophical Foundations in Criminal Law (Oxford, Oxford University Press, 2011) 379. 23  T Weigend, ‘Why have a Trial when you can have a Bargain?’ in Duff et al (n 10) 207. 24  M Langer, ‘From Legal Transplants to Legal Translation: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure’ (2004) 45 Harvard International Law Journal 1. 25  Weigend (n 23). 26  JS Rakoff, ‘Why the Innocent Plead Guilty’, The New York Review of Books, 10 Nov 2014. See also Lippke in this volume, ch 12, 222 n 2. 27  See Sklansky in this volume, ch 3. 28  See with reference to England and Wales, P Gibbs, Justice Denied? The Experience of Unrepresented Defendants in the Criminal Courts (London, Transform Justice, 2016).

6  John D Jackson and Sarah J Summers in camera out of the eye of the public as sensitive information is withheld from the ­public.29 In the interests of preserving informants’ sources, information that is relevant to the case may even be withheld from the parties.30 Against such disregard for fair trial standards, it is not surprising that revelations of miscarriages of justice have come to light in a number of jurisdictions. To invert the famous maxim, not only is justice not being seen to be done, it is not actually being done. Such has been the level of anxiety at the number of wrongful convictions in the US that there have been calls for radical reforms to protect the innocent, ­including the idea that instead of pleading guilty or not guilty, defendants should have the option of pleading innocent.31 But such procedures come only at the price of ­foregoing key constitutional and internationally recognised fair trial standards such as the privilege against self-incrimination.32 This book aims to explore the irrelation between the professed fair trials standards to which numerous domestic and international systems subscribe and the reality that many criminal proceedings end without these standards being adhered to. We asked specialists across the disciplines of law, philosophy, sociology and criminology to engage with these questions as it became apparent that a greater understanding would be achieved by adopting a pluralist methodology towards these issues. In this we are aligning ourselves with a long line of traditions that resist the idea of legal scholarship as autonomous and insist on the importance of studying law and legal practices in a social, historical and institutional context.33 But we also considered it important to take a ‘normative’ perspective towards these issues in order to address the normative assumptions that underpin understandings of fairness in criminal proceedings. The aim was therefore to foster a greater engagement between the growing legal literature on the cosmopolitan jurisprudence that is emerging on the development of fair trial rights, the sociological and criminological literature on the importance of administrative and legal cultures within criminal justice systems and the normative literature that is emerging on criminal adjudication.34

29  There was an outcry a few years ago in England and Wales when it was discovered that an entire trial involving allegations against two men, one a law student, of planning terrorist attacks, was going to be heard in secret. The Court of Appeal later ruled that while the core of the case must be heard in camera, accredited journalists would be allowed into the trial. See Guardian News and Media v AB and CD [2014] All ER (D) 88 (June). 30  There has been an increase at least in England and Wales in the number of cases where claims of public interest immunity are made by the prosecution to exclude evidence that may be relevant to the case. See P Roberts and A Zuckerman, Criminal Evidence, 2nd edn (Oxford, Oxford University Press, 2010) 323. 31  See, eg, DM Risinger and LC Risinger, ‘Innocence is Different: Taking Innocence into Account in Reforming Criminal Procedure’ (2011–12) 56 New York School Law Review 869. 32  For discussion, see P Ferguson, ‘Pleading “Innocent”? Implications for Adversarial Criminal Procedure’ (2018) 1 Journal of Comparative Law (forthcoming). 33  N Lacey, ‘Comparative Criminal Justice: An Institutional Approach’ (2014) 24 Duke Journal of Comparative & International Law 501, 502 f, highlighting the Process School in the United States, Law and Society and socio-legal scholarship. 34  For different normative perspectives on criminal adjudication, see RA Duff, L Farmer, S Marshall and V Tadros, The Trial On Trial (3): Towards a Normative Theory of the Criminal Trial (Oxford, Hart Publishing, 2007) and HL Ho, A Philosophy of Evidence Law (Oxford, Oxford University Press, 2008), both discussed in Roberts (n 22).

Introduction 7 So, for example, while those versed in studying the institutional forms and practices that have developed in actual criminal justice processes may be able to provide compelling explanations as to why fair trial standards do not apply in many cases, a failure to engage sufficiently with normative questions that seek to uncover the way fair trial standards are characterised may fail to address the full extent to which there are obstacles to fairness and how they might be overcome. Conversely, however, an undue concentration on normative questions such as the characterisation of the fair trial rights within a ‘trial-oriented’ perspective may, in the words of one contributor, ‘miss the woods for the trees’ by failing to pay enough attention to the roles of the various actors charged with delivering fairness within the institutions of criminal justice.35 To explore these methodological issues a little further, a number of explanations may be put forward as to why trials and by necessary implication fair trial features, no longer dominate the criminal justice landscape of many criminal justice systems. First of all, we can point to trends that undermine the emphasis that the standards put upon the dignity and autonomy of the individual accused. Although we can differentiate between those who participate as subjects in the criminal process and the ends or objects of criminal process, there is an affinity between the need to respect human dignity and one of the dominant purposes of the criminal process which is that it serves retributive justice. Underlying both is what has been described as a ­‘liberal conception’ of criminal justice that provides for censure and punishment and the need to respect the dignity of individuals in the criminal process.36 But this paradigm has come under challenge as other priorities assume increasing importance. A number of these can be attributed to changing functions of the modern state as the state responds to demands for greater public protection and greater economy, leading to what has been variously described as the ‘punitive turn’, the ‘preventive turn’, or the ‘managerial’ turn in criminal justice.37 While these shifts in direction have been more prevalent in certain systems than others,38 there would seem to have been a discernible trend favouring efficacy, economy and outcome over justice.39 Beyond the confines of the modern state, we also see a preoccupation with expediency at the international level as courts struggle with wide-ranging indictments

35 

See Miller in this volume, ch 13, 239. A Ashworth and L Zedner, ‘Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions’ (2008) 2 Criminal Law and Philosophy 21. 37  On the ‘punitive turn’ away for ‘penal welfarism’, see D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford, Oxford University Press, 2001). For the ‘preventive turn’, see A Ashworth and L Zedner, Preventive Justice (Oxford, Oxford University Press, 2014). On the rise of managerialiam, see J McEwan, ‘From Adversarialism to Managerialism: Criminal Justice in Transition’ (2011) 31 Legal Studies 519. 38  L Zedner, ‘Dangers of Dystopia in Penal Theory’ (2002) 22 Oxford Journal of Legal Studies 341; D Downes, ‘Comparative Criminology, Globalisation and the “Punitive Turn”’ in D Nelken (ed), ­Comparative Criminal Justice and Globalisation (Fanham, Ashgate, 2011). 39  Ashworth and Zedner (n 36) 40 fn 85 citing Feeley’s observation that there has been a trend in the 20th century that has moved law further along a continuum, away from a concern with morality and towards policy in M Feeley, ‘Actuarial Justice and the Modern State’ in G Bruinsma, H Elffers and J de Keijser (eds), Punishment, Places, and Perpetrators: Developments in Criminology and Criminal Justice Research (Cullompton, Willan Publishing, 2004) 64. 36 

8  John D Jackson and Sarah J Summers concerning events spanning many years and questions have mounted about the international community’s commitment and ability to end impunity for human rights violations.40 The unique context that the international tribunals operate in has led to calls for the ‘abandonment, or relaxation, of some cherished domestic procedural arrangements’ and a modification of defence rights which some have claimed has already taken place in the prosecution of defendants in ‘leadership trials’.41 At the same time, victim-oriented theories of restorative or reparative justice which directly challenge the very conception of retributive justice as a proper end of justice have gathered force particularly in states undergoing transition and in international criminal justice, putting a strain on due process rights.42 While these phenomena challenge the liberal conception of criminal justice, however, they do not in themselves explain why the fair trial standards on which so much store has been placed in normative terms can melt away so easily under such pressures. After all, those who push for greater public protection from crime and who advocate for restorative and reparative justice do not reject the core concepts of dignity and autonomy that underlie the fair trial standards. At this point we need to look closer at the characterisation of the fair trial standards themselves. What makes them so vulnerable to challenge? One theme that is explored by various essayists in this collection is that the fair trial standards are not just a series of prescriptions as to how trials should be conducted across the various criminal justice systems. They have been increasingly conceived in the form of rights or constitutional guarantees available to the accused, enforceable against the state.43 Some of the rights such as the presumption of innocence or the right to silence may be characterised as protecting the accused against the power of the state and the various organs that are charged with investigating and prosecuting crime. Others, such as the right to have adequate time and facilities to prepare a defence and the right to legal assistance counsel, may be seen as providing opportunities for the accused to participate in the criminal process.44 But whether the rights are viewed as protective or participatory, in each case they are characterised as ‘belonging’ to the accused from which it follows that it is up to the accused to invoke them. This raises the question as to what happens when the rights are not exercised, as they frequently are not, and suggests a tension between the autonomy of the accused—the accused’s right to exercise the rights—and the institutional need for the rights to be exercised so that the proceedings as a whole are fair and legitimate. How this tension gets resolved may depend very much on the relative significance that is given to the importance of the accused exercising rights within the procedural

40 G Boas, The Milosević Trial: Lessons for the Conduct of Complex International Criminal ­Proceedings (Cambridge, Cambridge University Press, 2007). 41  See MR Damaška, ‘Reflections on Fairness in International Criminal Justice’ (2012) 10 Journal of International Criminal Justice 611, 612. cf A Zahar, ‘Pluralism and the Rights of the Accused’ in E van Sliedregt and S Vasiliev (eds), Pluralism in International Criminal Law (Oxford, Oxford University Press, 2013) 225. 42  J Doak, Victims’ Rights, Human Rights and Criminal Justice (Oxford, Hart Publishing, 2008). 43  Duff et al (n 34) 51. 44 On participatory rights more generally, see A Owusu-Bempah, Defendant Participation in the ­Criminal Process (Abingdon, Oxon, Routledge, 2017).

Introduction 9 traditions and institutional practices of different systems. Although the ECtHR has chosen, for good reason, not to influence a state’s choice of a particular criminal justice system and has tended to assume that the procedural standards can be applied uniformly irrespective of the procedures involved,45 the reality is that the standards have to be given meaning within the procedural traditions, cultures and institutional practices that are embedded within particular criminal justice systems.46 At a time when economic, political and cultural systems across different jurisdictions are increasingly perceived to be part of a global whole,47 there has been much scholarly debate on the extent to which procedural systems themselves are converging or whether the diffusion of legal institutions from one dominant system is taking over the whole.48 But there would still seem to be considerable procedural diversity across jurisdictions and categories such as ‘adversarial’ and ‘inquisitorial’ which are used to differentiate procedural traditions and legal cultures still exercise considerable influence on comparative criminal procedure scholarship.49 So, for example, it has been claimed that adversarial systems which put a premium on the parties controlling procedure operate on the assumption that litigants know what is best for them.50 It follows that parties are left to invoke or waive their rights, whether this is seen in terms of objecting to inadmissible evidence or in terms of waiving their right to trial altogether. Conversely, in inquisitorial systems it is more the court’s responsibility to guard against the infringement of the accused’s fundamental human rights and evidentiary regulation in Europe as opposed to the US is by and large the province of the judge both as regards searching for the truth and protecting the defendant. Another problem with characterising fairness in terms of individual rights lies in the fact that the rights are necessarily limited in terms of reach and content. There has been a slow acceptance that the fair trial rights cannot just be limited to the trial process as what happens at the pre-trial stage has an important impact on the fairness of the trial. Although concerns about the under-regulation of the pre-trial phase have existed since the origins of the modern system of European criminal procedural law,51 the ECtHR has been slow to accept that evidence obtained during the investigation phase can determine the framework in which the offence charged will be considered at trial.52 But there is a limit to how far away from the trial process the fair trial standards extend, as any unfairness must be shown to have 45 

See, eg, Taxquet v Belgium [GC] (2012) 54 EHRR 26 [83]. an examination of the different forms of legal and cultural resistance that have been offered by Member States to the European harmonisation process, see R Colson and S Field (eds), EU Criminal Justice and the Challenges of Diversity (Cambridge, Cambridge University Press, 2016). 47 See V Mitsilegas, P Alldridge and L Cheliotis (eds), Globalisation, Criminal Law and Criminal ­Justice (Oxford, Hart Publishing, 2015). 48  There is massive literature on globalisation, convergence and diffusion. For a penetrating d ­ iscussion, see W Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge, ­Cambridge University Press, 2009) ch 9. 49  M Langer, ‘The Long Shadow of the Adversarial and Inquisitorial Categories’ in MD Dubber and T Hörnle, The Oxford Handbook of Criminal Law (Oxford, Oxford University Press, 2014) 887. 50  E Grande, ‘Legal Transplants and the Innoculation Effect: How American Criminal Procedure Has Affected Continental Europe’ (2016) 64 American Journal of Comparative Law 583. 51  See SJ Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Oxford, Hart Publishing, 2007); Jackson and Summers (n 18) 100. 52  But see Can v Austria (FS), 30 Sept 1985, Series A no 96 and now Salduz v Turkey [GC] (2009) 49 EHRR 19 [54]. 46  For

10  John D Jackson and Sarah J Summers prejudiced the accused’s fair trial rights before there can be any remedy for breach of Article 6. A further limitation is to be found in the content of the fair trial standards which cannot possibly encompass the full range of legal and ethical standards that actors are required to live up to in order to be fair to persons caught up in the criminal justice process. III.  INDIVIDUAL RIGHTS AND INSTITUTIONAL FORMS

The essays that follow then adopt a pluralist methodology in seeking to identify obstacles to fairness, examining both the normative limitations of viewing fairness in terms of individual rights and the institutional limitations that inhibit effective regulation of the actions of the police and prosecutors before trial in criminal justice systems. In his chapter Stefan Trechsel discusses the characterisation of the human right to a fair trial. The essay starts with an attempt to place this right within the hierarchy of international human rights’ norms before addressing its role within the framework of Article 6 of the ECHR. His argument is that the right to a fair trial is not a ‘normal’ human right which protects the individual against the abuse of power by the state. In his view, the notion of fairness by its nature cannot be conceived as the right of an individual in isolation as fairness presupposes interaction between parties and requires more than one actor. The essay argues that fairness is concerned rather with regulating relations between participants ‘in the game’ and it would be absurd to claim fairness for one participant (the accused) alone. Other interests have to be taken into account in doing fairness—those of the public prosecutor and the victim. Al Khawaja and Tahery v UK53 is quoted to show that the ECtHR recognises that the right to a fair trial is not an absolute guarantee but one which is open to balancing the competing interests of the defence, the victim, witnesses and the public interest in the administration of justice. Trechsel’s conclusion that in the final analysis the right to a fair trial is a ‘fuzzy panacea, a cluster of rights, not exclusively reserved for the accused, a vague ideal, more a shell than a guarantee of substance’ appears to suggest that the concept of fairness is a nebulous one.54 But his argument that in the criminal justice context it cannot be confined to the rights of the accused is one that is in stark contrast to the characterisation of fairness discussed by David Sklansky in his chapter. Drawing upon US jurisprudence rather than the jurisprudence of the ECtHR, Sklansky identifies two assumptions that shape the way fairness is pursued in American criminal procedure both of which view fairness as centred on the accused’s autonomy and agency. The first assumption that is arguably a characteristic of ‘adversarial’ systems more generally is that fairness is best advanced through a series of procedural rights that defendants can invoke or waive at their discretion. The second assumption is

53 

Al Khawaja and Tahery v UK [GC] (2012) 54 EHRR 23. Trechsel in this volume, ch 2, 35. See also Y McDermott, Fairness in International Criminal ­ rials (Oxford, Oxford University Press, 2016) 44. T 54  See

Introduction 11 that the choices made by defence attorneys can be fairly attributed to their clients. Although Sklansky regards each of these assumptions as defensible and strongly rooted in national political culture, he concludes that when the principles of autonomy and agency interact with each other in American criminal procedure they produce results that are justified on the basis of defendant choice but do not in reality reflect defendants’ actual choice at all. The next four chapters pick up on the theme that the characterisation of certain fair trial rights may end up becoming an obstacle to fairness. In their essays, ­Lindsay Farmer and Hannah Quirk each hark back to recent history to reflect upon the ­status and impact of particular rights—the presumption of innocence and the right of silence respectively—that have become associated with a fair trial. Using the House of Lords’ decision in Woolmington v DPP55 as a backdrop, where Viscount Sankey famously declared that one golden thread of English law that is always to be seen is the duty of the prosecution to prove the prisoner’s guilt, Farmer’s essay explores the way that the connection has been made between ideas of responsibility and individual mens rea and fairness in the criminal trial, to ask whether responsibility (or at least a particular conception of it) can under certain circumstances become an obstacle to fairness. He identifies two modern versions of the presumption. A wide version associates it with the presumption of ‘material’ innocence in the sense of not having committed a wrongful act, while the narrow version is more procedural and focuses on ‘probative’ rather than ‘material’ innocence. But while both these versions are motivated by the desire to address the important issues of protecting those accused of crimes and limiting the scope of the criminal law, Farmer points out they have developed alongside a criminal justice system that has become increasingly punitive. Drawing upon an argument that is developed in his recent book, Making the Modern Criminal Law,56 that the commitment to moralised responsibility while promising limits and fairness to the individual has in fact been accompanied by extensions to the criminal law, he suggests that the focus on innocence as a moral quality has taken place in a cultural context where there is greater stress on the rights of the victim and the justified punishment of the guilty which is actually broadening rather than limiting the scope of the criminal law. He concludes by suggesting that in contrast to the versions of innocence which have linked together innocence, guilt and responsibility, it may be more productive to think about fairness in the criminal justice process in terms which disentangle the idea of procedural rights from moral claims about innocence and guilt so as to maximise liberty and secure civil order. Like the presumption of innocence, the right of silence has been regarded as an article of faith by many who have seen it as an essential feature of a fair criminal justice system. Quirk’s essay explains why the right has been invested with so much importance by both its supporters and critics despite the fact that even before it was curtailed in England and Wales, it was rarely relied upon by suspects who were questioned by the police. Like the presumption of innocence with which it is often

55 

Woolmington v DPP [1935] AC 462. Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (Oxford, Oxford University Press, 2016). 56  L

12  John D Jackson and Sarah J Summers linked, the right of silence has stood for much more than a practical procedural right to be considered alongside other procedural rights, but as symbolically giving force to the more substantive right that defendants should not have to account to the state for their actions. Unlike the presumption of innocence, however, which would seem to have gained in stature by being linked to the concepts of material innocence and responsibility, the right to silence as an expression of the legitimacy of noncooperation with the state would seem to have lost ground. Quirk argues that the curtailment of the right should be seen as a critical turning point in the ‘culture of control’ that developed in the 1990s altering the balance of power between the state and giving rise to a ‘normative expectation’ that defendants must cooperate fully in the investigation and trial process. The following two chapters focus on another right that is strongly associated with fair trial—the right to counsel. In their essay, Jackson and Summers argue that while the fair trial rights are grounded in the first order values of autonomy, dignity and liberty, they should be viewed in an institutional context in which state monopoly on the punishment of crime and the need to avoid wrongful convictions requires that assessments of guilt are made in an environment that protects judicial impartiality by instituting a strong defence to test the prosecution case. In their view, the right to counsel is not only a personal right of the accused but an expression of the institutional need to mount an effective case against the prosecution. The essay then illustrates how this institutional account of fairness which takes a broader view of counsel than simply acting as an agent of the accused, provides a more secure basis for meeting challenges such as the pressure to avoid trials altogether, the need to withhold sensitive sources of information and the need to protect witnesses and victims. In his chapter, Wolfgang Wohlers extends the discussion in Jackson and Summers’s essay by examining the role of defence counsel in various criminal justice systems and considers whether the models of defence participation that are seen in common law and civil law systems are as far apart as is commonly assumed or whether there is common ground for developing an understanding of counsel’s role on the transnational level. One way in which these models are commonly differentiated is by asking whether counsel are required to assist the accused person or whether they are expected to act as the accused person’s representative. After a detailed examination of the impact of the right to counsel on the procedural role of the accused in English, US, German and Swiss law, he concludes that the all-or-nothing approach in common law systems whereby either counsel acts as the representative of the accused or the accused must defend herself unaided by counsel puts the accused between ‘a rock and a hard place’.57 Instead, he argues that a model of hybrid representation of the kind seen in Germany and more recently developed at the International Criminal Tribunal for the former Yugoslavia would seem to put the accused in a better position. At the same time he questions the fairness of the German approach whereby in certain appeal cases an accused who is not present is denied the right to be represented by counsel. At stake here is whether the pragmatic reasons against

57 

See Wohlers in this volume, ch 7, 152.

Introduction 13 hybrid representation in adversarial proceedings or against full legal representation in German proceedings should prevail over the need to recognise the accused’s interest in the assistance of counsel at all proceedings where the accused is representing himself or is absent from the proceedings. Wohlers’s argument that fairness requirements cannot be dismissed by reference to the traditional structure of national criminal procedure leads to the theme of the next three chapters which are concerned with the challenges of integrating transnational fair trial rights into diverse procedural environments at the national or international level. In his essay Dimitrios Giannoulopoulos builds on his previous work which used the ECtHR decision in Salduz v Turkey to explore the interaction between Strasbourg jurisprudence and the jurisprudence of courts in the contracting states.58 He examines the case of custodial legal assistance in Greece to provide further insights into the role of the ECtHR in effecting change in national jurisdictions. While his previous examination of five countries found that Salduz has had a major impact, its effect has been hardly identifiable in Greece. He argues that this is not the result of ideological or cultural resistance to change. Rather, Salduz fell on deaf ears in Greece as a result of complacency in meeting the baseline requirements set by the Strasbourg jurisprudence. Before Salduz was decided, Greece had already legislated on the basic tenets of the right to consult with a lawyer prior to interrogation and the right to have a lawyer present when questioned by the police, although reports by the European Committee for the Prevention of Torture highlight a contrast between legislative protection and the exercise of the rights in practice. In the light of this, one would have expected Salduz to have generated at least some debate. Yet Salduz failed to ignite any dialogue on the need to effect change. Greece represents a classic example of the gulf that can emerge between the ‘law in the books’ and the ‘law in practice’ and the failure of transnational justice to effect any change in practice. Unlike certain national systems like Greece which have been able to ignore taking rights seriously, the international community cannot afford to do so for the reasons explained above. The international criminal tribunals and the ICC have faced formidable obstacles in bringing to justice those accused of international crimes without the investigative and enforcement powers that are taken for granted in domestic systems. Yet, as each of the following two chapters illustrate, the ‘mixed’ procedural model developed by the international criminal tribunals has been heavily influenced by international human rights standards. In his essay, Ambos illustrates how the fair trial framework derived from human rights instruments is deeply embedded in the statutes of the international criminal tribunals. He argues that international criminal procedure must be guided by the two principles of fairness and expediency, positing that these principles do not contradict but complement each other and that a procedural model informed by them is fully in line with the historical experience and goals of international criminal justice. In her essay, McDermott considers the extent to which the procedures developed by the international criminal tribunals can claim to represent a universally acceptable model for ensuring the rights of the accused.

58  See D Giannoulopoulos, ‘Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries’ (2016) 16 Human Rights Law Review 103.

14  John D Jackson and Sarah J Summers She argues that international criminal tribunals have the opportunity to inform best practice in their interplay with domestic legal systems. As such, then, international criminal procedure has the potential to act as a model to be followed by domestic courts in ensuring the rights of the accused. Using a number of practical examples, however, she argues that international criminal procedure has been unable to fully live up to this potential. She discusses the possible reasons for this inability, and asks whether international criminal procedure can rise beyond these difficulties in time to provide a universal model of fairness. One way in which the international criminal tribunals and the ICC can try to live up to the fair trials standards they profess is by making their processes as transparent as possible. The next three chapters focus on the manner in which certain nontransparent and unfair pre-trial processes can have a decisive effect on the outcome of the proceedings. One feature that is common to both domestic and international criminal procedures is their heavy reliance upon the written records of witnesses and suspect interviews conducted before the trial. In her essay, Nadja Capus considers the manner in which written records are generated from police and prosecutorial investigative interviews and how their production and use can have a distorting effect upon the decision making process. She begins by explaining how, despite the emphasis on orality and immediacy at the trial process in both common law and civil law jurisdictions and the ECtHR’s insistence on evidence being examined at trial, summarised or verbatim written records form the foundation of much evidence at trial. Although she accepts that good written records may be substituted for oral testimony without impacting on fairness, the production of written records is influenced in practice by expectations in relation to the manner in which the documents are likely to be used with the result that their content is tightly controlled by the police or prosecution. She uses examples from empirical research to highlight how writing styles and formal features of the written record can impact upon the decision making process and how the written record has a decisive influence in assessing the credibility of persons questioned. She concludes that the distorting effect of the written record upon the decision making process calls into question the most basic principle of fair process—the principle of impartiality and the separation of powers—and she makes a plea for more empirical studies on how investigative ­interviews are recorded and used as evidence. Richard Lippke’s chapter considers another opaque process that has become increasingly common in criminal proceedings across both common law and civil law proceedings—the role of concessions in exchange for admissions of guilt. Instead of advocating the abolition of such practices which appear to undermine the right to a public trial, however, Lippke proceeds on the premise that while plea bargaining, especially the excesses of US-style plea bargaining which proliferate in misdemeanour cases, might be a dubious practice, appropriately constrained and judicially monitored plea concessions might be more defensible. He considers constraints that would limit the size of the sentencing discounts that those who plead guilty receive which can amount to 50 per cent reductions in some cases and ways of encouraging judges to more actively and vigorously scrutinise the charges that have been lodged against persons who are prepared to enter guilty pleas and the evidence in support of those charges. He concludes on the rather pessimistic note, however, that

Introduction 15 while ­limited and more carefully regulated plea concessions would produce more ­procedural fairness for the mostly poor persons who are the denizens of the misdemeanour case-processing world, they would not do so in the absence of a broader societal commitment to provide competent defence counsel to poor offenders and without re-thinking the use of the criminal sanction altogether for certain low-level offences such as vice crime. Lippke’s call to rethink the criminalisation of vice crime is aimed at reducing the process costs inflicted on the socially and politically marginalised who tend to be at the receiving end of the policing of such crime. Improved adjudication procedures, he admits, would do little to affect the policing of vice crime as they do not address discriminatory police practices that take place before adjudication. This takes us to the argument made in Eric Miller’s chapter that the focus on adjudication procedures as a means of ensuring fairness in the criminal process is misplaced as such procedures are far removed from the central concerns of police activity. In his view the adjudication-oriented view of the police as participants in the process of criminal adjudication who gather evidence for prosecution, trial and punishment takes too narrow a view of their role which encompasses taking full advantage of their powers to investigate, arrest, search and interrogate and perhaps even punish without resorting to prosecution and trial. A wider, more pluralist account of the policing role in Miller’s view entails recognition that much police activity on the street is not aimed at criminal prosecution or the imposition of punishment, but at achieving public order and social control. This role requires that they be given special powers, that they be under special obligations and be given special permissions to impose themselves on the public in ways that have significant material and normative consequences, albeit consequences that do not always result in trial. This view has implications not only for normative claims that trials are the proper place for holding individuals responsible for their wrongs.59 If police officers are not required to bring offenders to trial, then questions must be asked about the merits of trialoriented theories of criminal justice as part of a philosophy of punishment or criminal law. But questions also need to be asked about making trial fairness the central concern of the criminal process and making the trial the forum for ensuring that the police are held accountable for their actions. If many of the standards that govern police conduct are not related to the adjudicative process of gathering evidence and individuals for criminal prosecution and punishment, then how are the police to be made accountable for the non-investigative aspects of their job? Miller’s argument that trials are conceptually, pragmatically and normatively independent of policing may suggest that there is no role at all for the trial in regulating police conduct. But if it is true that much that goes in the name of policing never makes it into the adjudicatory domain, it nevertheless remains the case, as Miller concedes, that some police conduct does make it into this forum and the question then arises as to how the judiciary should respond when there has been a failure to comply with the fair trial standards. One approach is to adopt what has been called

59  See, eg, Duff et al (n 34) 167 f and RA Duff, ‘Relational Reasons and the Criminal Law’ in L Green and B Leiter (eds), Oxford Studies in Philosophy of Law (Oxford, Oxford University Press, 2013) 175.

16  John D Jackson and Sarah J Summers the ‘separation thesis’ which argues that the actions of the police are entirely separate from those of the judiciary and should be addressed through other means such as complaints against the police, disciplinary proceedings, actions for damages, or perhaps more effectively by requiring prior authorisation for activity that impacts upon individual rights.60 Another approach which is discussed in Kelly Pitcher’s chapter is that the courts should exclude evidence obtained in breach of a right in order to prevent the right holder being disadvantaged as a result of the violation.61 Although the question as to what rights should come within the ambit of this doctrine has been much discussed in the literature,62 Pitcher advances the hypothesis that framing criminal procedure doctrine solely or predominantly in terms of individual rights, in particular, those set out in written constitutions or in international human rights instruments, is problematic because it oversimplifies matters, suggesting as it does that complex questions of criminal procedure can be resolved by reference to a single ‘variable’. With its focus on a single variable, a rights-based approach may be an obstacle to achieving certain criminal procedure or criminal justice objectives, in particular, to preserving ‘fairness’ within the meaning of the right to a fair trial. Drawing upon the law and practice of jurisdictions which do not adopt a robust rights-based approach to the question of pre-trial violations, she illustrates how, on the one hand, the ‘rights thesis’ can be employed to achieve a more restrictive approach to pre-trial procedural violations thus allowing the courts to pursue crime control objectives under the guise of protecting rights (as in the Netherlands where it would appear to be the case that no consequences attach to violations that do not cause prejudice to the actual accused’s defence rights) and how, on the other hand, the thesis can operate to unduly limit consequences being attached to pre-trial violations where fairness is the overriding criterion (as in the case of England and Wales and at the international criminal tribunals where the notion of fairness lies at the heart of the determination whether to stay criminal proceedings). Apart from critiquing the ‘rights thesis’, Pitcher also points to how there can be various meanings attached to fairness when it is considered to be the central criterion for deciding how to respond to pre-trial impropriety. She suggests that fairness is such a diffuse concept that it is able to accommodate a variety of different values including epistemic and non-epistemic considerations and, seemingly, each of the rationales commonly advanced for attaching legal consequences to pre-trial impropriety (the reliability, deterrence, protective and integrity rationales). While a more explicit recognition of the different meanings that attach to ‘fairness’ would help to differentiate the ‘rights’ approach from fairness as a whole, others who profess to adopt a more pluralist approach towards the question of how to address pre-trial impropriety have steered away from using the term ‘fairness’ and preferred to use the term ‘integrity’ to encompass the full range of activity that should come within

60 A Ashworth, ‘Exploring the Integrity Principle in Evidence and Procedure’ in P Mirfield and RJ Smith (eds), Essays for Colin Tapper (Oxford, Oxford University Press, 2003) 107. 61 The argument was made originally by A Ashworth, ‘Excluding Evidence as Protecting Rights’ [1977] Criminal LR 723. 62  See, eg, P Roberts, ‘Excluding Evidence as Protecting Constitutional or Human Rights?’ in L Zedner and J Roberts (eds), Principles and Values in Criminal Law (Oxford, Oxford University Press, 2012) 171.

Introduction 17 the ambit of an exclusionary rule preventing the use of evidence obtained by unfair means.63 When the concept of integrity is viewed in terms of normative coherence, it has been argued that criminal proceedings must be viewed as a continuous whole for which the state is ultimately responsible so that when there is gross impropriety in a criminal investigation, this so taints what comes later in the process that it is impossible, normatively speaking, to justify punishment even when the offender is guilty.64 It is this thinking rather than any attachment to fair trial rights which would seem to be attributable to the recent judicial trend in common law procedures towards staying proceedings or excluding evidence on the basis of improperly obtained evidence. Whether ‘fairness’ or ‘integrity’ is used as the operating criterion, however, what would seem to be important is that the courts articulate, as transparently as they can, the reasons for the legal consequences that they believe should attach to particular pre-trial improprieties. A fair process is ultimately one that encourages dialogue with those who are subject to it and seeks to justify the decisions that are taken. In the closing chapter, Antony Duff offers some thought-provoking conceptual and normative reflections on the preceding chapters in the collection. Returning to the question as to how fairness should be characterised, he points to the temptations and dangers in giving the term a broad meaning and questions whether it should be interpreted as a distinctive value standing alongside, and perhaps sometimes conflicting with, other values that bear on the criminal process or whether we should see it as an ‘over-arching meta-value given determinate content by other more substantive values or principles’.65 Building on Trechsel’s insight that fairness cannot be narrowly conceived as an individual right as it presupposes an interaction between different parties, he posits that fairness in criminal proceedings can be taken to be (very roughly) a matter of giving all the different actors in the proceedings their due, so that to say that a provision is fair to the accused must also be to say that it is fair to the other parties affected by it (the witness, the complainant, the public, etc). This leads him on to the suggestion that when we think about the public interest in criminal proceedings, we need to think not only about the effective investigation and prosecution of crime but also about doing justice by paying proper regard to the interests and rights of all those who are affected by crime and the criminal justice system and of maintaining a set of legitimate institutions that can pursue these aims. In inquiring into the fairness of our criminal proceedings, or into obstacles to such fairness, Duff argues that we must inquire more deeply than most theorists have done into the fairness of those institutional practices that enable the criminal law to function in the way that it does. This call for criminal law theorists to take ­institutions seriously mirrors the call others have made to political theorists to take institutions seriously.66 It prompts Duff to make one final reflection which points the way to further inquiry and ties in well with some of the other chapters in the

63  See, eg, Roberts and Zuckerman (n 30) 189 and more generally J Hunter, P Roberts, SNM Young and D Dixon (eds), The Integrity of Criminal Process (Oxford, Hart Publishing, 2016). 64  J Hunter, P Roberts, SNM Young and D Dixon, ‘Introduction’ in Hunter, et al (n 63) 20. 65  See Duff in this volume, ch 15, 303. 66  J Waldron, Political Political Theory: Essays on Institutions (Cambridge MA, Harvard University Press, 2016).

18  John D Jackson and Sarah J Summers c­ ollection. A focus on institutions means that we must attend to the range of roles that parcel out the various patterns of responsibilities, duties and rights of the various actors in the criminal justice system and together contribute to the fairness, or otherwise, of the institutional practices that are embedded in the criminal process and the criminal law. In the end, it would seem that institutional roles, not individual rights, offer a better explanatory and normative framework for understanding ‘fairness’ in criminal proceedings.

2 The Character of the Right to a Fair Trial STEFAN TRECHSEL*

I. INTRODUCTION

I

WAS FORTUNATE to attend the colloquium organised by Sarah Summers and John Jackson in Zurich in 2014. The quality of the papers which were presented and discussed impressed me enormously. I cannot help but confess, however, that in the aftermath I found myself somewhat confused. I asked myself: what kind of a human right is this right to a fair trial? The question is directed not so much at the substance of the right, nor at its operation in the proceedings, which is the question which we normally focus on and which is of particular interest to practising lawyers. It is of a more theoretical, academic nature, seeking to delineate the right, to examine its rank in the hierarchy of norms, its relation to other rights, and its quality as an individual right. Having given this some thought, I will now present some results which aspire ­neither to be sensational nor even definitive, but which instead may serve to inspire further analysis. I have certainly not found a simple answer. I am tempted to compare the ‘right to a fair trial’ to a rather popular Swiss dish called Birchermüesli. In fact, it is so well known that ‘muesli’ is also a word in the English language. ­Birchermüesli consists of some kind of porridge, mainly raw oat flakes and milk, in which you will find morsels of raw fruit, strawberries, other berries, apple, pear, oranges or hazelnuts—there are endless varieties. I can recommend it; it is both healthy and tasty! In comparison with the right to a fair trial the morsels of fruit represent the specific aspects of the right to a fair trial—the right to be informed of the charge, the right to defend oneself, the right to be assisted by counsel, the right to confrontation, the privilege against self-incrimination, the right to be heard, and so on. The remainder of the dish, the porridge part, is a relatively tasteless pulp and constitutes in this comparison as the framework of the fair trial: a right without contour which, while focusing primarily on the accused, can serve a variety of interests, a vessel into which the European Court of Human Rights (ECtHR) fills whatever it

*  In these pages I shall make a number of critical observations addressed to the European Court of Human Rights. I wish to stress that this ought not to be read as a generally negative appreciation of the Court’s work. On the contrary, it has my full support and admiration.

20  Stefan Trechsel sees fit. Sometimes it is the expression of wishful thinking, particularly on the part of the defence. In approaching my subject, I shall start by attempting to situate this right within the hierarchy of international human rights’ norms; I will then go on to analyse its position among the other rights set out in the European Convention on Human Rights (ECHR), and finally its role within the framework of Article 6 ECHR. In a last part, I will go on to compare it to other, dare I say, ‘ordinary’ human rights. II.  THE RANK OF THE RIGHT TO A FAIR TRIAL

A.  Within the Hierarchy of International Human Rights What place does the guarantee of a fair trial occupy in the hierarchy of norms? We know that there are very important rights, important ones and less important ones. On which step of the ladder do we find the right to a fair trial? The strongest rights are of course those considered to be ius cogens. They are binding upon all states and do not depend on the ratification of a treaty or other instrument as they form part of customary international law. Article 53 of the Vienna Convention on the Law of Treaties1 refers to such rights as peremptory norms: a norm of general international law is a norm accepted and recognised by the international community of states as a whole, as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

The Treaty does not say which norms belong to that category, it just mentions it as an ‘empty box’; Linderfalk understandably speaks of a ‘fuzzy’ norm.2 Is the right to a fair trial such a norm? Certainly not in the traditional sense of the term. The prohibition of torture and slavery, for example, are generally considered as ius cogens, but not the right to a fair trial. There are, however, tendencies to further ‘fill the box’. A Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), in Kupreškić et al, proposed including most norms of international humanitarian law.3 Some support for this theory can be found in the text of common Article 3 of the Geneva Conventions of 1949, which reads as follows: … the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: … d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.

1 

Vienna Convention on the International Law of Treaties of 23 May 1969. Linderfalk, ‘Normative Conflict and the Fuzziness of the International ius cogens Regime’ (2009) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 961, 976; see also A Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) European Journal of International Law 491–508. 3  Kupreškić et al, Trial Judgement, IT-95-16, 14 Jan 2000 [520]. 2  U

The Character of the Right to a Fair Trial 21 Yet, this norm is very broad and general. It is really too fuzzy to be afforded peremptory character. Indeed, I have found no evidence that the international community has accepted such a broad notion of ius cogens which would include the right to a fair trial which, as will be demonstrated, is a very nebulous matter in itself. Other considerations confirm this result. B.  Within the Framework of the ECHR We shall now look at the hierarchy of norms within the ECHR. One rather reliable indication can be found in Article 15 ECHR which says that derogations from the obligations of a state under the Convention are acceptable under certain conditions. There are formal requirements which in the present context have no relevance. As far as the substance is concerned, the condition is that there exists in the state, for specific reasons, such as war or a natural catastrophe, a state of necessity. Certain fundamental rights and freedoms, however, cannot be subject to derogation even if a state of necessity prevails. This applies in respect of the rights set out in Articles 2, 3, 4 and 7 ECHR;4 similar lists can be found, with some variations, in other international human rights conventions.5 None of these instruments, however, include the right to a fair trial or even the right to personal liberty. The fact that any derogation must be ‘strictly required by the exigencies of the situation’ does not change that result. This may be regrettable—in particular as regards the fact that the right to be tried by an independent and impartial tribunal, which is of particular importance, can be subject to derogation. One may also refer to Article 57 ECHR (formerly Article 64 ECHR) which deals with reservations. Schabas suggests that there are no limitations on the right of a state to make a reservation to the Convention.6 This means that a reservation regarding Article 3 ECHR would be permissible. Frankly, I find this proposition rather absurd. After all, the prohibition of torture is without any doubt ius cogens; how could a state possibly free itself of this obligation by ratifying a human rights convention and making a reservation? The contrary is true: a reservation concerning Article 3 ECHR would be null and void. On the other hand, reservations to Article 6 ECHR and in particular to the detailed rights of the defence as guaranteed in Article 6(3) ECHR, are numerous7 and have not been objected to for substantive reasons.8

4 

See Art 15(2) ECHR. in particular Art 4 International Covenant on Civil and Political Rights (ICCPR) and Art 27 American Convention on Human Rights (ACHR). 6 WA Schabas, The European Convention on Human Rights: A Commentary (Oxford, Oxford ­University Press, 2015) 930. 7  These derogations can be found at last accessed 11 September 2017>. 8  See, eg, D Harris, M O’Boyle, EP Bates and CM Buckley, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, 3rd edn (Oxford, Oxford University Press, 2014) 24 ff; B Rainey, E Wicks and C Ovey, Jacobs, White and Ovey: The European Convention on Human Rights, 6th edn (Oxford, Oxford University Press, 2014) 107ff. 5  See

22  Stefan Trechsel This leads to the conclusion that the right to a fair trial, even though it is of fundamental importance, does not occupy a preferential position in the hierarchy of human rights norms. III.  THE SCOPE OF THE RIGHT TO A FAIR TRIAL IN ARTICLE 6

Let me now turn to Article 6 ECHR. Here, there is no issue of rank, but rather a question concerning the relationship between the different general and specific rights. I want to examine the role of the right to a fair trial in relation to the other guarantees set out in Article 6(1) ECHR, and between the general guarantee of a fair trial and the specific rights of the accused in paras 2 and 3 of Article 6 ECHR. A.  Various Ambits of the Right to a Fair Trial Article 6 ECHR was relatively recently given a title, ‘right to a fair trial’, words that also figure in the text of Article 6(1) ECHR. The title is without normative value as it was not the subject of an additional protocol but was added more than half a century after the adoption of the text of the Convention. The term ‘right to a fair trial’ can be understood as encompassing at least three circles of meaning. The narrowest one corresponds to the text of Article 6(1) ECHR and is limited to that text with the exclusion of more specific guarantees set out in the Article. Then we can distinguish a wider one which includes all the specific rights of the accused, in other words, and in accordance with the title, a notion which refers to all the guarantees of Article 6 ECHR, including also Articles 2–4 of Protocol No 7 ECHR. Finally, in a very broad sense, the notion of fair trial could be understood as including all the guarantees which protect individuals in procedural matters, including those attaching to restriction and deprivation of liberty in the sense of Article 5 ECHR or the protection of private life as set out in Article 8 ECHR. I shall not comment further on this very wide approach which is too nebulous to allow precise delineation or be of any use. When I wrote, over 10 years ago, about human rights in criminal proceedings,9 I included a chapter entitled ‘The General Right to a Fair Trial’. Then I added chapters each for Article 6(2) ECHR and the five sub-paragraphs in 6(3) ECHR. It meant that I gave weight to the narrowest ambit of the term. Today, I might abandon this structure. It may be useful for the reader, but I’m afraid it is not entirely correct, from a systematic perspective. In fact, it is rather obvious that ‘fair trial’ is a superordinate concept which encompasses the specific guarantees set out in Article 6(3) ECHR. The specific nature of Article 6(3) ECHR relates to the fact that the rights are only available to persons ‘charged with a criminal offence’ and that these are ‘minimal rights’, while Article 6(1) ECHR also applies to persons in the determination of their civil rights and obligations. This seems logical enough. On closer scrutiny, however,

9 

S Trechsel, Human Rights in Criminal Proceedings (Oxford, Oxford University Press, 2005).

The Character of the Right to a Fair Trial 23 there are reasons to doubt this model. On the one hand, a number of the specific guarantees set out in Article 6(3) ECHR also apply under the ‘civil branch’ of the right to a fair trial. This is the case, for instance, in relation to legal aid as was at issue in Airey v Ireland.10 At any rate, for the purposes of this discussion I shall now focus on the ‘­middle’ ambit of the term which includes the ‘general guarantee’ of Article 6(1) ECHR and the specific guarantees set out in Article 6(3) ECHR and Protocol No 7 of the Convention. B. The Relationship between the Right to a Fair Trial under Article 6(1) ECHR and the Specific Rights of the Accused under Article 6(3) ECHR Primarily, the right to a fair trial under Article 6(1) ECHR should be considered as a lex generalis, those in 6(3) as leges speciales. The ECtHR says so expressly: ‘… the requirements of paragraph 3 of Article 6 constitute specific aspects of the right to a fair trial, guaranteed under paragraph 1’.11 This finds strong support in the French text: Article 6(3) ECHR is introduced with the words: ‘Tout accusé a droit notamment à:’ in a sense, it is slightly weaker than the English version which speaks of ‘minimum rights’. But the French version, which could be translated literally as ‘in particular’ or ‘inter alia’, not only makes it clear that the rights set out constitute examples of elements of a ‘fair trial’, it also stresses that the list is non-exhaustive; that these are only examples. This analysis would lead to a jurisprudential technique which first examines whether there has been a violation of one of the special guarantees. If this is the case, then Article 6 ECHR has been violated. There is no room for any further examination. If this is not the case, there remains the question whether the general guarantee has nevertheless been violated. Unfortunately (in the eyes of an academic hoping for jurisprudential clarity and consequence), the ECtHR seems to follow a different logic; if there is any logic behind its jurisprudence, it is well hidden. Some judgments answer straightforwardly the question whether one of the specific rights of Article 6(3) ECHR was violated. An example is Luedicke, Belkacem and Koç v Germany12 in which the ECtHR found a violation of Article 6(3)(e) ECHR. In another case, Can v Austria,13 the European Commission of Human Rights came to the conclusion that there had been a violation of Article 6(3)(c) ECHR. On the other hand, in Goddi v Italy,14 the ECtHR declared that: … it has to be ascertained whether and to what extent this factual situation is attributable to the Italian State. In order to determine whether there was a breach of Article 6(3)(c)

10 

Airey v Ireland (1979–80) 2 EHRR 305 [24] f. Hadjianastassiou v Greece (1993) 16 EHRR 219 [31]. 12  Luedicke, Belkacem and Koç v Germany (1979–80) 2 EHRR 149. 13  Can v Austria (FS), 30 Sept 1985, Series A no 96 (annex to the judgment). 14  Goddi v Italy (1984) 6 EHRR 457 [28]. 11 

24  Stefan Trechsel the guarantees contained wherein are constituent elements, amongst others, of the general notion of a fair trial stated in 6(1), the Court has examined separately each limb of the complaint and then made an overall assessment.

There is no explanation for this and when we turn to the operative part of the judgment, we see that the ECtHR only declared a violation of Article 6(3)(c) ECHR. It is unclear what the ‘overall assessment’ refers to. In addition, the Court does not clarify what it means when it refers to other elements—‘amongst others’: which ­others? I have found no answer to this question. The ECtHR regularly declares that it will examine a case where the violation of a specific guarantee is alleged in conjunction with the general guarantee of the right to a fair trial set out in Article 6(1) ECHR. A typical example is the judgment in ­Hadjianastassiou:15 ‘As the requirements of Article 6(3) constitute specific aspects of the right to a fair trial, guaranteed under paragraph 1, the Court will examine the complaint under both provisions taken together’. Yet, unless I have missed something, there is never any explanation as to what this actually means. It is worth trying to detect a logical nexus. The facts of the case suggest that a specific rule of Article 6(3) ECHR might have been broken. Now, the ECtHR does not limit itself to this synallagmatic analysis, but also refers to the general rule. What does that mean? Does the specific rule lack clear contours? Or is it incomplete? Are there aspects it was intended to cover but does not, so that a lacuna must be filled by the general rule? I confess that I find these hypotheses rather nonsensical. Is not a specific rule, embedded in the general rule, so to speak per definitionem, always tied to the context of the general rule? Logically the difference between a general notion and a specific notion lies in the fact that while the general notion consists of a certain number of elements, let us say A, B, C, and D, the specific notion also has the same elements, A, B, C, D plus another notion, eg X. This means, if one goes by what the ECtHR itself says of the relationship between the guarantees of Articles 6(3) ECHR and the right to a fair trial in Article 6(1) ECHR, that examining a case under the specific rule and the general rule makes no sense at all, because there is nothing in the general rule which one does not find in the specific rule. One must suppose that the ECtHR attaches some ‘holy aura’ to the notion of ‘fair trial’. With regard to the solution of a specific case, this lack of clarity, even of logic, is not really problematic. In the eyes of the scholar, however, it becomes frustrating. We would like the ECtHR to specify the meaning of each right with increasing precision and interpret with great clarity each relevant term of the Treaty, would we not? Instead the ECtHR remains evasive; rather than clarify, it blurs the issue. One reason which might explain why the ECtHR shies away from clear definitions is the desire to ensure that the Convention law is compatible with the various procedural systems to which it applies. This is a legitimate concern. I fail to see, however, how this consideration could justify this departure from sheer logic. Now, a generalising approach is not necessarily wrong. Cases do exist in which the proceedings raise several questions in the light of specific guarantees, but none

15 

Hadjianastassiou (n 12) [31].

The Character of the Right to a Fair Trial 25 of these issues, taken alone, could justify the finding of a violation of the specific guarantee as such. It may be acceptable for the Court, in the presence of several weak points in a process, not necessarily linked directly to the trial stage, to conclude that, even if none of the specific guarantees were disregarded, the procedure as a whole, in view of the accumulation of critical defects, was unfair. The classical example for such a judgment is the case of Barberà, Messegué and Jabardo v Spain.16 The applicants were suspected of having committed a particularly hideous murder. Their complaints included the allegations that they were not tried by an independent and impartial tribunal, that they were transferred only a few hours before the opening of the trial over hundreds of kilometres to the courtroom in debilitating transportation, that there were problems with the evidence, etc. After a thorough examination of all these complaints, the ECtHR concluded: Having regard to the belated transfer of the applicants from Barcelona to Madrid, the unexpected change in the court’s membership immediately before the hearing opened, the brevity of the trial and, above all, the fact that very important pieces of evidence were not adequately adduced and discussed at the trial in the applicants’ presence and under the watchful eye of the public, the ECtHR concludes that the proceedings in question, taken as a whole, did not satisfy the requirements of a fair and public hearing. Consequently, there was a violation of Article 6 para. 1.17

This does not call for any criticism. There are, however, a number of cases in which the ECtHR first found that one of the specific guarantees had not been complied with but that the trial, when examined as a whole, had nevertheless been fair. This is certainly not an interpretation which can be reconciled with the English text— ‘minimum rights’; the French ‘notamment’ is slightly less compelling. Still, the accused has a right to a fair trial; in particular, he or she has certain minimum rights. How can a trial be fair if a minimum right was disregarded? This is only possible if fairness is not understood as a clear-cut right, but rather as some sort of an ideal or ‘non-epistemic’ consideration.18 I am not aware of any rule of interpretation which would permit such flagrant disregard of the unambiguous text of a treaty. In Miailhe v France (No 2),19 the applicant complained that he had been convicted on the basis of documents, which had been unlawfully obtained; this was by no means a spurious argument if one bears in mind that the same Court had found, in Miailhe v France, that the taking of these papers had occurred in violation of Article 8.20 Still, the ECtHR found no violation of the right to a fair trial: It is not for the Court to substitute its view for that of the national courts which are primarily competent to determine the admissibility of evidence. It must nevertheless satisfy itself that the proceedings as a whole were fair, having regard to any possible irregularities before the case was brought before the courts of trial and appeal and checking that those courts had been able to remedy them if there were any.

16 

Barberà, Messegué and Jabardo v Spain (1989) 11 EHRR 360. ibid [89]. 18  See Pitcher in this volume, ch 14. 19  Miailhe v France (No 2) (1997) 23 EHRR 491. 20  Miailhe v France (1993) 16 EHRR 332. 17 

26  Stefan Trechsel Here, while the notion of fairness is, as it were, in the air, no half-way rational argument is provided for the conclusion. The reference to ‘any possible i­rregularity’ is disconcerting—can the taking of evidence occur in violation of a Convention guarantee without this constituting an irregularity? The term ‘fair’ loses any contour with such an interpretation. It could be replaced by ‘good’, ‘without problems’ or simply, sloppily, ‘okay’. Returning to the question raised at the beginning of this chapter, what is the relationship between the right to a fair trial under Article 6(1) ECHR and the specific rights of the accused under Article 6(3) ECHR? I have come to the conclusion that ‘fair trial’ as used in Article 6(1) ECHR encompasses the ­specific rights set out in Article 6(3) ECHR as special rights. Contrary to the wording of the Convention, the ECtHR does not respect these specific rights as minimal guarantees in their own right, but rather as exemplifying typical features of a fair trial. As we well know, there are other guarantees, at least as important, in particular, the right to be heard, and the right usually referred to under the title of ‘equality of arms’. C. The Relationship between the Right to a Fair Trial and the Other Convention Guarantees Connected to Criminal Proceedings i.  The Specific Rights The European institutions responsible for the implementation of the Convention have now been interpreting Article 6 ECHR for more than half a century. This caselaw has led to the recognition of some fundamental rights which are not expressly set out in the text of Article 6 ECHR. Some rights have been added by additional protocols. This leads me to the question as to their relationship to the ‘general’ right to a fair trial. I think that it is legitimate to ask this question in view of the fact, that the accused, according to the title of Article 6 ECHR, has the ‘Right to a Fair Trial’, even if this title, as I have already mentioned, has no normative value. I shall deal with these rights in the order in which I examined them in my book,21 namely the right to be tried by an independent and impartial court, the right to adversarial proceedings, the principle called ‘equality of arms’, the right to a reasoned judgment, the right to a public hearing, the right to be tried within a reasonable time, the right to be presumed innocent, the protection against any pressure to incriminate oneself, the right to appeal, the right to compensation for wrongful conviction and the protection from double jeopardy. ii.  Fair Trial and the Right to an Independent and Impartial Tribunal In my view, the right to be tried by an independent and impartial tribunal is the most important procedural guarantee; it is the very pillar stone of the rule of law. Unless

21 

Trechsel (n 10).

The Character of the Right to a Fair Trial 27 this prerequisite is fulfilled, there will be no reliable control of the executive, no dam to the arrogance of power. However, this evaluation is not linked in any way to the question whether a trial before a deficient tribunal is unfair. In everyday language one might say: ‘My trial was not fair, the judge was biased’. In technical terms, that sentence is not correct. Independence and impartiality of a tribunal are prerequisites of a fair trial. If there is no independent and impartial tribunal, it is pointless to examine whether the trial was fair: In Ergin, for instance, the ECtHR observed that it had ‘already held in similar cases that a court whose lack of independence and impartiality has been established cannot, in any event, guarantee a fair trial to the persons subject to its jurisdiction.’22 Bravo! This is a clear and correct statement. Unfortunately, however, the ECtHR sometimes disregards its own case-law. There are cases in which it found that a tribunal had not fulfilled the requirements of independence and/ or impartiality, but nevertheless examined at length issues of fairness. The ECtHR has followed this line of argument on a number of occasions;23 now and then, we come across judgments which nevertheless examine whether elements of fairness were also disregarded. In my view, this is simply wrong. A trial may in itself be quite fair, respecting the guarantees set out in Article 6. Nevertheless, the judgment is null and void if something is wrong with the judging authority. This does not call for further elaboration. It seems to be the concept to which the ECtHR itself adheres—to the extent that it does adhere to concepts at all. While this is a somewhat formalistic argument, let me add what I regard to be the fundamental reason why the guarantee of an independent and impartial court does not belong to the concept of fairness. It lies in the distinction between static and dynamic elements in the drama of criminal proceedings. The static element, in drama, at least as a norm, is the stage set; the dynamic elements are the spoken text and the action. The tribunal, in the drama of a criminal trial, is a static element. One could compare it to the road along which the process proceeds. The accused, of course, has an interest that the road is well constructed and does not have bumps or holes. But this is not only in the interest of the parties to the proceedings, it is also in the interests of society as a whole—it is a guarantee of the rule of law. As a matter of principle, the right to an independent and impartial tribunal established by law cannot be waived. In practice, however, the vast majority of criminal cases do not even reach the trial phase but end in one of the many transactional solutions that the states have developed, in hybrid, primarily administrative proceedings. If a case goes to trial, the judges must sit in the same composition from the first day until the adoption of the judgment.24 The concept of a fair trial, on the other hand, is obviously the dynamic part of the proceedings, the movement from step to step.

22 

Ergin v Turkey (No 6), no 47533/99, ECHR 2006-VI [55]. eg, Demicoli v Malta (1992) 14 EHRR 47 [43]; Findlay v United Kingdom (1997) 24 EHRR 211 [80]; Incal v Turkey [GC] (2000) 29 EHRR 449 [74]; Özertikoglu v Turkey, no 48438/99, 22 Jan 2004 [25]. 24  For example, when Judge Harhoff was declared to have been biased, the trial against Vojislav Šešelj had to be started again from scratch. 23  See,

28  Stefan Trechsel I apologise for recalling a banality: the very notion of ‘process’ derives from the latin procedere, proceed. This procedere must be fair. While an accused can waive the right to a proper criminal trial, I believe that he or she cannot generally waive the right to fairness. However, accused persons do have considerable freedom with regard to deciding how to exercise defence rights. In a way, they have the possibility to shape their own specification of fairness. They can even freely decide whether they want to challenge the impartiality of a judge, if they consider it to be doubtful; they may, at least to some extent,25 waive their right to be assisted by counsel or, within limits, determine how much time they want to ask for the preparation of their defence. iii.  Fair Trial and the Requirement of ‘Adversarial’ Proceedings Adversarial proceedings are an essential element of fairness just like the right to be heard, time-honoured in the Latin adage audiatur et altera pars.26 It is, as it were, the dialectical aspect of the trial, essentially dynamic, at the core of the principle of fairness. iv.  Fair Trial and Equality of Arms Equality of arms is a rather complicated and complex issue.27 Again, the closeness to ‘fair proceedings’ is obvious, a specification of the right to be heard—namely under the same conditions as the opposing party. Here we are confronted with a metaphor which recalls one of the cradles of the very notion of fairness—sports. In this connection, I have to refer to a very strange formulation in some judgments: the ECtHR calls the principle of equality of arms ‘one of the elements of the broader concept of a fair trial/ l’un des éléments de la notion plus large de procès équitable’.28 Most of the examples referred to in this regard concern civil proceedings, only Gryaznov concerns criminal proceedings. This affirmation is rather astonishing. Logically, if there is a broader concept of fair trial, there must also be a narrower one. What is the difference? What does the ‘broader concept’ refer to? I could not find even the beginnings of an answer in the case-law. I find it difficult to imagine what the ECtHR means. Certainly, it cannot be referring to fairness directly. The notion of ‘fair’ is not increasable. It is a dichotomic

25  cf my critical assessment of the practice of the ICTY: S Trechsel, ‘Rights in Criminal Proceedings under the ECHR and the ICTY Statute—A Precarious Comparison’ in B Swart, A Zahar and G Sluiter (eds), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Oxford, Oxford University Press, 2011) 174 ff. 26  Of course, this formula pertains primarily to civil proceedings. 27  It has inspired a considerable amount of scholarly writing; I shall limit myself to M Fedorovna, The Principle of Equality of Arms in International Criminal Proceedings (Utrecht, Intersentia, 2012). 28 See, eg, Niederöst-Huber v Switzerland (1998) 25 EHRR 709 [23]; Kress v France [GC], no 39594/98, ECHR 2001-VI [72]; Hudakova and Others v Slovakia, no 23083/05, 27 April 2010 [25]; Wynen and Centre hospitalier interrégional Edith-Cavell v Belgium, no 32576/96, ECHR 2002-VIII [32]; Gryaznov v Russia, no 19673/03, 12 June 2012 [53].

The Character of the Right to a Fair Trial 29 matter: proceedings are either fair or they are not. One fair trial cannot be fairer than another fair trial—‘a little fair’ is like ‘a little pregnant’. Perhaps the ECtHR has in mind the fact that the right to adversarial proceedings and to equality of arms are not expressly mentioned in the Convention text. I cannot exclude the possibility that this endemic formula is the result of sloppy drafting the first time it appears and thoughtless ‘cut-and-paste-technique’ in the ­following judgments. The ECtHR might be well advised to re-examine the use of this formula. v.  Fair Trial and the Right to a Reasoned Judgment Is the right to a reasoned judgment part of the right to a fair trial? I suggest that the answer must be: distinguo. To the extent that the reasoning is only understood as an answer to the curiosity of a party as to why the tribunal reached a particular conclusion, no issue of fairness is involved. The reasoning comes only after the end of the proceedings and is not, therefore, part of the dynamic process which led to the judgment. This should by no means be understood as diminishing the right. It is of particular importance because the quality of a judicial decision can only be verified by analysing the reasoning followed by the judge. If we look at the case-law in this matter, we see, however, that complaints do not concern the frustration of parties’ curiosity. They address in fact two different problems. The first one is in essence identical to the right to be heard. Applicants complain that arguments they raised were not answered by the tribunal. The core of the problem is not really the lack of reasoning. This is only the outer appearance, an indication, a clue. The essence lies in the allegation that the court omitted to take into account one or several of the applicant’s arguments. In Van de Hurk,29 the applicant proposed another method of calculating the compensation he had claimed, this was not discussed. Similarly, in Hirano Balani30 and Ruiz Torija31 the Supreme Court failed to consider arguments presented by the applicant which could have led to a different outcome. Finally, in Higgins and others,32 the Court of Cassation simply forgot to address one of the complaints. This is all clearly unfair. A different matter was at issue in Hadjianastassiou.33 In this case, the applicant had not received the reasoned judgment a quo in time to present his arguments for the appeal within the statutory time limits. Again, there can be no doubt that this resulted in clear unfairness. In essence the right to adequate time for the preparation of the defence, Article 6(3)(b) was violated. It can therefore be safely affirmed that whenever the ECtHR was called upon to address a problem of insufficient reasoning, it dealt with issues of fairness.

29 

Van de Hurk v The Netherlands (1994) 18 EHRR 481. Hiro Balani v Spain (1995) 19 EHRR 566. 31  Ruiz Torija v Spain (1995) 19 EHRR 553. 32  Higgins and others v France (1999) 27 EHRR 703. 33  Hadjianastassiou (n 12). 30 

30  Stefan Trechsel vi.  Fair Trial and the Right to a Public Hearing These two elements appear in juxtaposition in Article 6(1) ECHR: ‘fair and public hearing’. This is already an indication that the Convention speaks of two different matters. I believe that this hypothesis can be verified: the two values do not intrinsically belong together. Fairness is an element which, as it were, concerns the internal aspect of criminal proceedings, the relationship between the different actors, enquirers and investigators, prosecutors, defendants, the judge, and even, according to some, victims and witnesses. The guarantee of a public hearing, on the other hand, concerns an external aspect, the relation between the administration of justice and the public at large. What links the two guarantees is the function of publicity as a means of allowing the public to observe whether fairness is observed in practice. The differentiation between static and dynamic elements leads to the same result. Publicity is a static element. The door to the court room is open and remains open. This is actually part of the framework within which the trial takes its course, the screen on which the drama of the trial proceeds. It is definitely not an aspect of fairness. vii.  Fair Trial and the Right to a Judgment within Reasonable Time The right to be tried within reasonable time is clearly not an element of the right to a fair trial. On the contrary, it is not extraordinary to find that an element of fairness hinders the timely conclusion of proceedings. At the ICTY, for example, the parties, not only the defence, regularly ask for a considerable, sometimes rather unreasonably large amount of evidence, documents, witnesses, experts; they also demand long periods of time to familiarise themselves with the objects of disclosure.34 Here, the judge will inevitably have to enter a balancing exercise, weighing the interests of the defence against the exigencies of a speedy trial. The right to a fair trial, and in particular the right to adequate time for the preparation of the defence, clashes here with the right to be tried within reasonable time. This shows with sufficient clarity that the latter right cannot be an element of fairness. In contrast, if you consult the HUDOC case-law database, you find in the list of cases presented in answer to your query a very succinct description of what the case is about. When you read: ‘Violation of Article 6—Right to a fair trial (Article 6— Criminal proceedings; Article 6-1—Reasonable time)’,35 and then consult the judgment, you will find that the only issue arising is that of the length of proceedings. One must conclude that the ECtHR does not share the view expressed here nor does it pay attention to details of the (otherwise excellent) search facility. viii.  Fair Trial and the Presumption of Innocence Does the right to be presumed innocent, as set out in Article 6(2) ECHR, belong to the elements of a fair trial? There is not an easy answer to this question. First, the

34  This observation is based on my personal experience as judge ad litem in the case of Prlić et al, ­Judgment, IT-04-74, 29 May 2013. 35  See, eg, the description of Tychov v Russia, no 56097/07, 11 June 2015.

The Character of the Right to a Fair Trial 31 guarantee as construed by the ECtHR has two distinct dimensions. One is linked to the trial; the other mainly protects the right of applicants to respect for their person, their reputation. In fact, while the ECtHR is eager to establish whether the applicant in these cases can be regarded as ‘charged with a criminal offense’, in practice the link to this element is thin, if not downright spurious. In Minelli36 the applicant had already been convicted; argumentative acrobatics were needed to nevertheless ­examine whether he could continue to claim that he was ‘accused of a criminal charge’ and benefit from the presumption of innocence once the proceedings themselves had been terminated. Yet, the ECtHR accepted his claim and found a violation. On the other hand, proceedings had not really started in the case of Allenet de ­Ribemont37 where the applicant had not even been formally accused. Again, the ECtHR accepted that he could claim to be a victim of his right to be presumed ­innocent. This ‘reputation-related’ aspect is definitely not linked to criminal proceedings and can hardly be regarded as an element of fairness. Primarily, however, the presumption of innocence relates to the burden of proof and has at its core the famous adage in dubio pro reo. This variation is a much more convincing candidate for admission to the realm of the right to a fair trial. If someone were convicted in clear disregard of the benefit of doubt that would probably prompt the reader of a newspaper to exclaim: ‘This is simply not fair’. On a level of everyday language, I would agree. But is this principle really an aspect of fairness within the meaning of Article 6(1) ECHR? My answer to this question is in the negative. The presumption of innocence is a static guarantee. It has no part in the mechanics of the proceedings, the procedere from suspicion to judgment, including its consequences (in Minelli the issue was the imposition of costs). It is rather part of the framework of the proceedings, a steady companion of the accused, a protective shield against unjustified conviction and ­sentence. I recall what I said regarding the right to an impartial tribunal, another static right. In fact, the presumption is closely linked to the impartiality of the judge. Is not a judge who presumes the accused to be guilty a non-impartial judge? While the guarantee of Article 6(1) ECHR excludes any partiality, the guarantee of Article 6(2) ECHR protects only the accused from bias. Basically, the two guarantees overlap. Neither can be said to be part of the notion of fair trial. ix.  Fair Trial and the Protection of the Privilege against Self-Incrimination This guarantee, which is found in Article 14(3)(g) International Covenant on Civil and Political Rights (ICCPR) and, although it is not mentioned in the Convention or in Protocol no 7,38 is recognised by the ECtHR,39 is clearly an element of the fair

36 

Minelli v Switzerland (1983) 5 EHRR 554. Allenet de Ribemont v France (1995) 20 EHRR 557. 38  It was not included, because it was thought that it was part of the right to a fair trial and could be recognised by the case-law; had it been included, states could have omitted to ratify the Protocol and argue that they were not bound by it. 39  See, eg, Saunders v United Kingdom [GC] (1997) 23 EHRR 313; John Murray v United Kingdom [GC] (1996) 22 EHRR 29. 37 

32  Stefan Trechsel trial. It is a complex guarantee which includes, of course, the right to remain silent and the prohibition on the drawing of adverse conclusions from that silence. In a way, the right not to be coerced to speak can be regarded as the verso of the ‘right to be heard medal’, the negative aspect of that right. I am aware that this discussion could be extended to other issues such as the right to appeal (Protocol no 7, Article 2), the right to compensation after wrongful conviction (Protocol no 7, Article 3) or the right not to be tried or punished twice (Protocol no 7, Article 4), but I do not intend this modest contribution to become encyclopaedic. While, so far, I have looked at the right to a fair trial in its ‘horizontal dimension’, as it were, let me now turn directly to the object of these reflections. IV.  IS THE RIGHT TO A FAIR TRIAL A STRAIGHTFORWARD INDIVIDUAL HUMAN RIGHT?

I want next to look at any specifics of the right to a fair hearing as a human right. To detect particularities, it is necessary first to describe the unspecific, the ‘normal’ human right, so to speak. Human rights protect the individual against abuse of power by the state and its authorities. They can be ‘freedoms from’, such as the protection against torture, or ‘rights to’, such as the right of the accused to be assisted, where necessary, by legal aid counsel. A third dimension may appear where the fundamental right of an individual stands in conflict to that of another individual. Here the state may be under an obligation ‘to secure’ the right of one group or individual against the right of another. To give an example: the state may be called upon to protect demonstrations in favour of restrictive rules on abortion against demonstrations of groups of opponents to such restrictions;40 or the right to protection of a public figure’s private life may call for a limitation on the rights of the publisher of a magazine as in von Hannover v Germany.41 Specific rights of the defence generally can be easily perceived in this ­categorisation. The protection against torture or the limitations of the possibilities to deprive a ­suspect of her or his personal liberty are clearly freedoms from. On the other hand, the right to be informed of the accusation, the right to adequate facilities for the preparation of the defence, and the right to the assistance by an interpreter or a translator are rights to, ie positions which oblige the state authorities to act in a certain way. Typically, the fundamental rights are not guaranteed in absolute terms. As the reference to a third, horizontal dimension has already intimated, the state, under certain conditions, may interfere with a fundamental right in the interests of other, higher values. Such interferences must have a basis in law, pursue a legitimate aim and be considered ‘necessary in a democratic society’—in other words, it must be proportionate to the aim pursued.

40  41 

Plattform ‘Ärzte für das Leben’ v Austria (1991) 13 EHRR 204. von Hannover v Germany (2005) 40 EHRR 1.

The Character of the Right to a Fair Trial 33 Does the right to a fair trial also fit into this pattern? At first sight, yes. It is a right to, as the text unequivocally states. But what about the right to adequate time for the preparation of the defence? Time is running ceaselessly—it does not need the state pushing. Adequate time, then, means that the authorities must, for a certain period abstain from going ahead, leave the accused and counsel alone. This is an abstention; the right is in fact a freedom from; which must again be applied in moderation having in mind the right to be tried within reasonable time—a right to. The right to question witnesses, the right to confrontation is a right to. But when the trial court accepts the statement of a witness whom the defence could never cross-examine, this could be regarded as a freedom from being convicted on the basis of untested evidence. However that may be, I find this distinction neither helpful nor convincing in the present context. Criminal proceedings are a phenomenon far too complex to be approached in such simplistic terms. If we then focus on the general right to a fair trial, we are completely lost. This is not a situation where the individual falls to be protected against the power of the state. There is definitely no fundamental right not to be prosecuted if there is a reasonable suspicion that the individual has committed a criminal offence. Inquiry, examination, investigation, prosecution, trial and execution of sentence could well be regarded as an interference with rights of the individual, the right to respect for private life in particular, but also personal freedom or property, as the case may be. Under the procedural aspect of Articles 2 and 3 there is even a convention-based obligation to investigate and prosecute. That interference can be justified in the light of the Convention. Fairness, however, is concerned with the quality of the interference. From the outset the binary pattern of a ‘normal’ human right is absent. The meaning of the very notion of fairness cannot, almost by definition, be conceived as the right of an individual in isolation. Fairness presupposes interaction. The term ‘fair’ has many different meanings—in Cassell’s New German Dictionary42 I counted no less than 20 corresponding German words. Essentially, in the context of ‘fair proceedings’, it means equitable, balanced, giving each side an equal chance to present its point of view. I would also include an element of respect. With an analogous meaning the term ‘fair’ is used in sports. In all cases, the framework regulates some kind of competitive interaction between two or more actors. In ‘solo-sports’, for example artistic skating, fairness may refer to general conditions, always as compared to the competitors, but it has normally no practical effect. Musicians who play together rock-, chamber- or folk music have no issue of fairness. But fairness not only requires more than one actor. Fairness, as a matter of course, concerns all participants in the game. In my understanding it would be grotesque, absurd, completely illogical to claim fairness for one participant alone. This may have been understood by the drafters of the Statute of the ICTY, who, in Article 20(1), charged the Trial Chamber with ensuring ‘that (…) proceedings are conducted (…) with full respect for the rights of the accused and due regard for the protection of victims and witnesses’. The following Article, then (for practical purposes I simplify)

42 K Breul and HT Betteridge, Cassell’s German & English Dictionary, 8th edn (London, Cassell, 1963).

34  Stefan Trechsel copies the procedural rights of Article 14 ICCPR, rights which are, of course, only granted to the accused. At first glance, one could be tempted to find a contradiction here. Closer scrutiny reveals, however, subtle differences. The Statute mentions ‘rights’ only with regard to the accused, whereas victims and witnesses are merely entitled to ‘respect’. Furthermore, Article 20(1) is limited to generally describing the duties of the Trial Chamber and does not bestow rights. Surprisingly, victims and witnesses are mentioned in the same breath although their roles in the trial are completely different. Nevertheless, the drafters are to be complimented for having thought of these persons even though they are not parties to the proceedings before the ICTY. If we agree that the right to a fair trial is not really an individual right, such as the right to liberty or property, who else is involved? In the first place one will think of the state, represented by the public prosecutor. The concern of the state is that justice can be done, that the substantive criminal law can be reliably applied and that the general goals of criminal justice—retribution, rehabilitation, deterrence— which I will not discuss here, can be attained or at least effectively approached. Also a likely candidate is the victim. I have always felt that one of the flaws in procedural human rights is the fact that it neglects the victims of criminal offences. The ECtHR’s approach to this problem in Perez v France43 is a rather weak substitute. Yet, to the extent that the right to a fair trial has a dimension beyond the individual interests of the accused, it can hardly be doubted that the interests of the victim merit consideration. The fact that this was not taken into consideration may be explained by the historical context of the drafting process: Of great concern at that time was the ruthless abuse of power by the totalitarian regimes of Nazi Germany and Stalinist Russia in fighting people regarded as dangerous or otherwise unwelcome. This directed the focus towards those persecuted and may have drawn the attention away from the victims of ordinary crimes. True to its pragmatic approach to the interpretation of the Convention, the ECtHR does not analyse the right to a fair trial in abstracto in the way I deal with the subject. Nevertheless, it is sensitive to the tension which prevails in criminal proceedings. In Al-Khawaya and Tahery44 the question was whether an untested ­witness statement could be considered by the Tribunal even though it was the ‘sole and decisive’ evidence. That would have been in conflict with the earlier interpretation of Article 6(3)(d) ECHR and would have resulted in the finding of a violation of that rule, rendering the trial unfair. Yet, the ECtHR allies itself to the view that … [i]t would not be correct, when reviewing questions of fairness, to apply this rule in an inflexible manner. Nor would it be correct for the ECtHR to ignore entirely the specificities of the particular legal system concerned and, in particular its rules of e­ vidence, notwithstanding judicial dicta that may have suggested otherwise. To do so would transform the rule into a blunt and indiscriminate instrument that runs counter to the traditional way in which the ECtHR approaches the issue of the overall fairness of the proceedings,

43  44 

Perez v France [GC] (2005) 40 EHRR 39. Al-Khawaya and Tahery v United Kingdom [GC] (2012) 54 EHRR 23.

The Character of the Right to a Fair Trial 35 namely to weigh in the balance the competing interests of the defense, the victim, and ­witnesses, and the public interest in the effective administration of justice.45

How surprising! Every accused has the ‘minimum right’ to ‘examine or have examined witnesses against him’? Not really. The ECtHR bluntly disregards the clear wording of the Convention. It uses the guarantee of a fair trial to diminish the protection of an accused below the limits set by Article 6(3)(d) ECHR. A clear rule becomes a ‘blunt and indiscriminate instrument’. ‘Fairness’ must be applied in a flexible manner. This shows that the ECtHR recognises, in principle, that the right to a fair trial is not an absolute guarantee but one which is open, to a certain limited degree, for balancing against the interests of victims and the administration of justice. Where are the limits to such balancing? So far, they are not visible. The right to a fair trial may not even be as solid as a Birchermüesli, but rather an ephemeral cloud, changing its shape to adapt to the vague concept of overall fairness. Furthermore, balancing is called for in proceedings in absentia: one requirement is that the tribunal tried to establish the defendant’s whereabouts. To this effect the authorities must take the measures which can reasonably be expected of them. Fairness, here, depends on thorough detective work. An unexpected turn of the guarantee. I can only rally behind the proposition of Sarah Summers and John Jackson who found that it is necessary to conceptualise the fair trial standards not only as personal rights of the accused but also as operating within an institutional framework that protects the rule of law. … V. CONCLUSIONS

This text does not purport to present a comprehensive analysis of the characteristics of the right to a fair trial. However, it might make a small contribution to the understanding of this important and popular notion. In the first section, it was shown that the right does not occupy any preferential position in the hierarchy of human rights or other internationally protected rights. It also does not belong to the rights protected in a qualified manner under the ­Convention. We have seen that the right to a fair trial falls to be regarded as a general right in relation to the special rights of the defence set out in Article 6(3) ECHR, something the ECtHR seems not to recognise as a stringent element in the structure of those guarantees. The other procedural rights set out in Article 6 do not belong to the topos of fair trial which is of a dynamic character. Finally, the right to a fair trial goes beyond the interests of the individual and includes a structural element. While there is certainly a dichotomy, nothing between fair and unfair proceedings, the demarcation line allows for a degree of flexibility, comparable perhaps to a reed fence which, within limits, changes its shape according to how the wind blows. To conclude, I find that the right to a fair trial is a fuzzy panacea, a cluster of rights, not exclusively reserved for the accused, a vague ideal, more a shell than a guarantee of substance. 45 

ibid [146].

36 

3 Autonomy and Agency in American Criminal Process DAVID ALAN SKLANSKY*

T

HIS IS AN essay about the interaction of two assumptions that shape the way fairness is pursued in American criminal procedure. The first assumption is that fairness is best advanced through a series of procedural rights that defendants can invoke or waive at their discretion. The second assumption is that the choices made by defence attorneys can fairly be attributed to their clients. The first of these assumptions reflects a strong national commitment to individualism; the second reflects a heavy reliance on lawyers to safeguard defendants’ interests. Both reflect a deeply rooted distrust of government. Each of these two assumptions is defensible, and each relates to fundamental aspects of the national political culture. Taken together, though, they have narrowed what fairness means in American criminal adjudication. It is not news to anyone familiar with American criminal process that waiver rules can operate in ways that seem unfair. Nor is it novel to suggest that it can be unjust to hold defendants responsible for their lawyers’ mistakes. What I want to stress is the way that these two features of American criminal procedure—the heavy presumption that procedural protections should be waivable, and the reflexive attribution of defence attorneys’ choices to their clients—combine with a kind of negative synergy, making each harder to defend than it might be without the other. Legal s­ ystems are sometimes described as complex ecologies, collections of rules that depend on each other for their sensible operation. But sometimes deeply rooted features of a legal system can work together in less happy ways. I. AUTONOMY

Suppose you are trying to design a set of procedures. One decision you face is how much significance to give to the expressed wishes of the people who likely care most about the outcome, the people the procedures may wind up benefitting or

*  Nell Munro, Daniel Richman, Andrea Roth, Shirin Sinnar, Robert Weisberg, and workshop participants at the University of North Carolina School of Law and the University of Nottingham School of Law gave helpful comments on earlier drafts, and Gina Elliott provided skilful research assistance.

38  David Alan Sklansky ­ urdening. Procedural systems can be arrayed along a spectrum in this regard. b At one extreme are sets of procedures that operate the same, no matter what the people affected by the outcomes want. When I assign grades for a course that I teach, for example, I follow the same procedures, regardless whether particular students like them: I grade the final exams anonymously, I assign points according to a rubric established in advance, and I give extra credit for essays that are especially well w ­ ritten. It makes no difference if a student tells me that she does not care about anonymity, or that she is not interested in receiving extra credit based on the quality of her writing. We could call a system of rules that operate in this way non-elective. At the other end of the spectrum are elective systems: sets of procedures that operate only if and to the extent they are requested (or not objected to) by those whose fates are being determined. An elective system might be preferred for either or both of two different ­reasons. First, an elective system might be instrumentally preferable. People might be thought to be the most reliable judges of their own fair treatment, at least when they determine that they do not need or do not want a particular protection.1 Second, an elective system might be intrinsically preferable. It might be thought important to give people some control over the procedures that will determine their fates, not because those people are good judges of what would be best for them, but because it is inherently desirable.2 Perhaps giving people this kind of a say is part of what fairness means, or perhaps the autonomy it protects is important even if it winds up undermining fairness in some narrower sense. Criminal adjudication in the United States is very much an elective system in the sense I have been describing.3 The conception of fairness that motivates and shapes American criminal process is a conception of elective rights, trump cards that a defendant can choose to use or to waive. This was not always the case. In the nineteenth century, criminal procedure protections in the United States, albeit less extensive than today, generally were thought to be unwaivable.4 ‘That which the law makes essential in proceedings involving the deprivation of life or liberty’, the Supreme Court explained, ‘cannot be dispensed with or affected by the consent of the accused’.5 Today, though, American lawyers and judges find it ‘natural … to talk about rights belonging to the defendant—his to do with what he will’.6 It seems natural in part because of the language of the United States C ­ onstitution. By its explicit terms, the Sixth Amendment to the Constitution—the provision that

1  See, eg, M Tonry, ‘Prosecutors and Politics in Comparative Perspective’ in M Tonry (ed), Prosecutors and Politics: A Comparative Perspective (Chicago, Chicago University Press, 2012) 1, 18 f. 2  See, eg, JW Berg, ‘Understanding Waiver’ (2003) 40 Houston Law Review 281, 288 f; J Christman, ‘Constructing the Inner Citadel: Recent Work on the Concept of Autonomy’ (1988) 99 Ethics 109, 120 f. 3  cf DK Brown, Free Market Justice (Oxford, Oxford University Press, 2016) 120, noting that ‘interstitial rules of criminal process [in the United States] shift responsibility for the integrity of judgments … away from the judiciary and ultimately from the state,’ reinforcing ‘a normative vision of fair process in which defendant bear significant responsibilities for their own fate in that process’. 4  See, eg, NJ King, ‘Priceless Process: Nonnegotiable Features of Criminal Litigation’ (1999) 47 UCLA Law Review 113, 119–30; RE Toone, ‘The Incoherence of Defendant Autonomy’ (2005) 83 North ­Carolina Law Review 621, 644–46. 5  Hopt v Utah 110 US 574, 579 (1884). 6  King (n 4) 120.

Autonomy & Agency in American Criminal Process 39 serves as the source for much of the constitutional law of criminal adjudication in the United States—does not dictate procedures; instead it protects the right of criminal defendants to insist on certain procedures. ‘In all criminal prosecutions’, the Sixth Amendment provides, the defendant ‘shall enjoy the right to a speedy and public trial’, to ‘an impartial jury of the state and district wherein the crime shall have been committed’, to ‘be informed of the nature and cause of the accusation’, to ‘be confronted with the witnesses against him’, to ‘have compulsory process for obtaining witnesses, and—last but, as it turns out, very far from least—to ‘the assistance of counsel’.7 The Supreme Court has made clear that a defendant can waive virtually any or all of these protections. When defendants do not object, trials can be delayed indefinitely or held without a jury.8 If a defendant does not want to be informed of the nature of the charges against him, the notice does not need to take place. Defendants can give up the right to confront prosecution witnesses and to call their own ­witnesses.9 They can proceed without lawyers too, if they so choose; in fact, the Supreme Court has said that forcing a lawyer on a defendant who does not want one is itself a constitutional violation.10 The right to a public trial is unusual in this regard. The Supreme Court has held that criminal trials generally must be public even if defendants prefer otherwise: the public has an independent right of access to trials, rooted in the First Amendment freedoms of speech, press, and assembly.11 But this is the only Sixth Amendment right that functions in this way. And no one can force a public trial on a defendant who wishes to give up a trial altogether and plead guilty.12 Not all constitutional rules governing criminal trials in the United States are rooted in the Sixth Amendment. Some are based instead on the commandments of the Fifth Amendment that ‘[n]o person’ shall be tried for a felony without first being charged by a Grand Jury, that a defendant cannot ‘for the same offense … be twice put in jeopardy’, and that a criminal defendant ‘shall not be compelled … to be a witness against himself’.13 Others trace to the guarantees in the Fifth and Fourteenth Amendment that no person shall be deprived of ‘life, liberty, or property, without due process of law’.14 (Technically, all federal constitutional restrictions on state criminal trials rely on the Due Process Clause of the Fourteenth Amendment, because the first ten amendments to the United States Constitution, the ‘Bill of Rights’, originally restricted only the federal Government. The Supreme Court has found that the ‘due process’ protected against the states by the Fourteenth Amendment ‘incorporates’ virtually all of the provisions of the Bill of Rights, including all but one of the

7 

US Constitution, amend VI (emphasis added). See, eg, Patton v United States 281 US 276, 299 (1930), allowing waiver of jury trial. eg, Bullcoming v New Mexico 131 S Ct 2705, 2718 (2011); Melendez-Diaz v Massachusetts 557 US 305, 314 n 3 (2009). 10  Faretta v California 422 US 806 (1975). 11  Richmond Newspapers, Inc v Virginia 448 US 555 (1980). 12  In theory, ‘[a] criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court’, North Carolina v Alford 400 US 25, 38 n 11 (1970), but in practice a voluntary plea of guilty or ‘no contest’ will be rejected by a judge only if the defendant simultaneously insists that he or she is factually innocent—and often not even then, at 37. 13  US Constitution, amend V. 14  Ibid; US Constitution, amend XIV. 8 

9  See,

40  David Alan Sklansky ­ rovisions of the Fifth and Sixth Amendments. The exception is the right to have a p criminal prosecution commended by a Grand Jury indictment—a procedural protection the Supreme Court has found inapplicable in state proceedings.) The provisions of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment appear on their face to dictate procedures rather than give defendants rights. But for the most part they have been interpreted and applied in a manner parallel to the provisions of the Sixth Amendment: they entitle a criminal defendant to a range of procedural protections, but only if the defendant wants those protections.15 Much of criminal adjudication in the United States is governed by rules found outside the federal Constitution: state constitutional rules, federal and state statutes, and unwritten traditions of trial practice. These, too, are largely effective only if and to the extent that litigants invoke them; there is a ‘presumption of waivability’.16 Federal and state rules of evidence, for example, usually prohibit prosecutors from trying to show that a defendant has a criminal propensity—by, for example, introducing proof of other bad things the defendant has done. Like other rules of evidence, though, this prohibition is generally ignored unless the party disadvantaged by the proof complains about it. American judges typically intervene in the proof process only to rule on objections raised by the parties; this is thought to be part of what distinguishes the adversarial system from the inquisitorial system.17 So evidentiary rules aimed at ensuring a fair trial, like other procedural protections provided to criminal defendants,18 can be invoked or waived at the defendant’s discretion. Of course, the vast majority of criminal defendants in the United States never have a trial. They plead guilty instead, generally pursuant to an agreement with the prosecutor. With or without an agreement, a guilty plea is not just an admission of guilt. It functions automatically as a waiver of the ‘constitutional rights that inhere in a criminal trial’—including, the Supreme Court has made clear, ‘the right to trial by jury, the protection against self-incrimination, and the right to confront one’s ­accusers’.19 Furthermore, even protections that apply before or after trial—for example, the right to pre-trial disclosure of exculpatory evidence, or the right to appeal an adverse procedural ruling—can be and often are waived as part of a plea agreement. Prosecutors increasingly insist on these waivers; they can do so because their charging discretion gives them so much bargaining power.20

15  See, eg, J Rappaport, ‘Unbundling Criminal Trial Rights’ (2015) 82 University of Chicago 181, 191 and 194, discussing the Supreme Court’s presumption that ‘even the most vaunted criminal procedure rights are waivable’ because they ‘exist to benefit the defendant’; Toone (n 4) 628–35, noting that courts have allowed defendants to waive their constitutional entitlements to present mitigation evidence in a capital sentencing hearing and to raise mental health defences at trial. 16  United States v Mezzanatto 513 US 196, 202 (1995). 17  See, eg, DA Sklansky, ‘Anti-Inquisitorialism’ (2009) 122 Harvard Law Review 1677; JW Strong, ‘Consensual Modifications of the Rules of Evidence: The Limits of Party Autonomy in an Adversary ­System’ (2001) 80 Nebraska Law Review 159. 18  See, eg, Mussacchio v United States 136 S Ct 709 (2016), reasoning that a statute of limitations or other filing deadlines ordinarily ‘becomes part of a case only if a defendant raises it in the [trial] court’. 19  Florida v Nixon 543 US 175, 187 (2004); see also Boykin v Alabama 359 US 238, 243 (1969). 20 See, eg, SR Klein, AS Remis, and DL Elm, ‘Waiving the Criminal Justice System: An Empirical and Constitutional Analysis’ (2015) 52 American Criminal Law Review 73; RE Barkow, ‘Separation of ­Powers and the Criminal Law’ (2006) 58 Stanford Law Review 989, 1046.

Autonomy & Agency in American Criminal Process 41 The elective nature of criminal adjudication protections in the United States is commonly defended as a necessary correlate of the national commitment to ­individualism. ‘[R]espect for the individual’, the Supreme Court has explained, ‘is the lifeblood of the law’.21 Therefore a defendant must have ‘free choice … to ­dispense’ with at least some of the safeguards erected for his protection; to deny him that choice would be ‘to imprison a man in his privileges and call it the Constitution’.22 That language comes from cases involving the waiver of the right to counsel, but the point can be and has been applied more broadly. Professor Nancy King nicely articulates the consensus view of American judges, lawyers, and legal scholars. Refusing to allow defendants to waive procedural protections is, she says, ‘[p]aternalism’;23 it ‘resembles drafting the accused as an unwilling soldier in the fight against error in the criminal process’.24 Here as elsewhere, paternalism seems objectionable on both instrumental and intrinsic grounds. Instrumentally, if a defendant does not want a particular procedural protection, there is reason to believe the protection is not required for the defendant’s fair treatment. It is different, of course, if a defendant seeks to waive a procedure designed not for his own benefit but for the benefit of the alleged victim or the public at large. Professor King and others have suggested that waivers of criminal procedure protections became more widely accepted in the United States as the protections came to be understood as serving only the defendant’s interests, not the interests of society.25 The Supreme Court assumes that a defendant generally is ‘capable of weighing his own best interest’ and may ‘reasonably deem himself the best advisor for his own needs’.26 That is the instrumental argument for allowing defendants to waive procedural protections: if they believe the protections are unnecessary, the protections probably are unnecessary. The intrinsic argument against procedural ‘paternalism’ is different; it is based on the value of individual autonomy. Even if a particular procedure does protect against erroneous convictions, it still seems wrong to make the defendant ‘an unwilling soldier in the fight against error’. Respecting the defendant’s individuality seems to require giving that choice to the defendant. At least it does under the prevailing view of American judges, lawyers, and legal scholars. Both the instrumental and the intrinsic arguments against procedural paternalism gain strength when government is distrusted, and distrust of government runs deep in American political culture. Deferring to the defendant’s judgment about his

21  Faretta (n 10) 834, quoting Illinois v Allen 397 US 337, 350 f (1970) (Brennan J, concurring); see also, eg, McKaskle v Wiggins 465 US 168, 176 f (1984), explaining that the ‘right to appear p ­ ro se,’ recognised in Faretta (n 10) 834, ‘exists to affirm the dignity and autonomy of the accused’; EJ ­Hashimoto, ‘Resurrecting Autonomy: The Criminal Defendant’s Right to Control the Case’ (2010) 90 Boston ­University Law Review 1147, 1154 f, arguing that ‘the concept of autonomy—the right to make and act upon one’s one decisions free from government intervention—lay behind the Court’s recognition [in Faretta] of the right of self-representation’. 22  See, eg, Montejo v Louisiana 556 US 778 (2009); Michigan v Harvey 494 US 344, 353 (1990); Faretta (n 10) 815; Adams v United States 317 US 269, 280 (1942). 23  King (n 4) 130. 24  King (n 4) 131. 25  King (n 4) 120 f; Toone (n 4) 647 f. 26  Adams (n 22) 280.

42  David Alan Sklansky own best interests seems particularly sensible when the alternative is placing faith in the judgments of the legal system, which amount to the judgments of an arm of the Government. And rhetoric about ‘drafting the accused as an unwilling soldier’ resonates particularly strongly when distrust of government comes as naturally as it does in the United States.27 II. AGENCY

Most waivers of rights by criminal defendants in the United States—like most other procedural choices by criminal defendants—are made not by the defendants themselves but by their lawyers on their behalf. Defendants usually are bound by decisions made by their lawyers, including decisions to waive procedural protections. The Supreme Court views this ability of lawyers to bind their clients as a necessary component of the nation’s ‘adversarial system’ of criminal adjudication. That system, the Court believes, ‘could not function effectively if every tactical decision required client approval’.28 It was not always thus. Two centuries ago, waivers of procedural protections— when they were allowed29—generally were made by defendants themselves. They had to be, because most defendants lacked counsel. The Sixth Amendment to the United States Constitution protects a criminal defendant’s right to ‘the Assistance of Counsel’, but in the eighteenth and nineteenth centuries most criminal defendants proceeded without a lawyer.30 The Sixth Amendment applied only in the minority of cases prosecuted by the federal government rather than by the states, and it protected only the right to hire a lawyer at the defendant’s own expense. In the first half of the twentieth century, though, the Supreme Court gradually expanded the category of state cases in which it thought ‘due process of law’ included a right to counsel, and the categories of cases, both state and federal, in which it thought the right to counsel must also include, for impoverished defendants, the right to appointed counsel.31 The key idea—taken as obvious by the Supreme Court as early as 1932, and repeatedly reaffirmed since—is that the system of criminal

27 

cf MR Damaška, The Faces of State Authority (New Haven, Yale University Press, 1986) 104 f: [T]he reactive state, reluctant to embrace any philosophy of the good life, allows individuals to be sovereign in the management of their own concerns. Translated to the administration of justice, this sovereignty requires that a party be recognized as the master of his lawsuit (dominus litis), entitled to conduct it as he pleases, in most cases choosing even the form of the proceedings. Whether he conducts his case well or not is hard for presiding officials to determine. A state that recognizes no index veri is ill-suited to proclaim that any particular action of a litigant is harmful to his interests … Assume nevertheless that an official of the reactive state is convinced that a litigant is not competent to realize his self-interest. Should the official now engage in some corrective action to protect the party from his own foolishness or ineptitude? Even here the price of corrective action can be too high: the reactive ideology is wary of permitting any move that might lead to an overbearing officialdom bent on ‘corrective paternalism’.

28 

Gonzalez v United States 553 US 242, 249 (2008); Taylor v Illinois 484 US 400, 418 (1988). See text accompanying nn 4 f. See, eg, Hashimoto (n 21) 1163–69. 31  The capstone decision was Gideon v Wainwright 372 US 335 (1963). 29  30 

Autonomy & Agency in American Criminal Process 43 adjudication is too complicated for a criminal defendant, whether innocent or guilty, to navigate without the guidance and assistance of a trained lawyer: Even the intelligent and educated layman has little and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.32

The complexity of the Anglo-American adjudicatory system, including but not limited to the arcane rules of evidence, can be blamed in part on lawyers: the legal profession appears to have played a significant role in making itself increasingly central to the criminal process.33 But courts and legislatures in the United States have rarely paused to ask whether the rules of criminal process could or should be made less dependent on ‘the guiding hand of counsel’.34 The dependence has been taken as a given, and it has been thought to require not only a robust right to retained or appointed counsel but also the practice of imputing counsel’s decisions to the defendant. Because ‘[t]he presentation of a criminal defence can be a mystifying process even for well-informed laypersons’, the Supreme Court has explained, [i]n most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume … To hold that every instance of waiver requires the personal consent of the client himself or herself would be impractical.35

In the Court’s view, absolving a client of responsibility for the defence counsel’s decisions, ‘strikes at the heart of the attorney-client relationship’.36 Waiving a few particularly ‘fundamental’ procedural protections—such as the right to jury trial and the right to counsel—does require a direct and explicit statement from the defendant.37 In theory, moreover, the ‘ultimate decision’ regarding trial strategy ‘belongs to the defendant’.38 But ‘good defense attorneys probably rarely, if ever, have much difficulty persuading a defendant to go along with the lawyer’s view of sound strategy’.39 And many if not most strategic decisions, including decisions

32  Powell v Alabama 287 US 45 (1932); confirmed in, eg, Gideon, ibid, 344 f; Luis v United States 136 S Ct 1083, 1088 f (2016). 33 See JH Langbein, The Origins of Adversary Criminal Trial (Oxford, Oxford University Press, 2003); TP Gallanis, ‘The Rise of Modern Evidence Law’ (1999) 84 Iowa Law Review 499; DA Sklansky, ‘­Hearsay’s Last Hurrah’ (2009) 2009 Supreme Court Law Review 1, 25 ff. 34  cf DA Sklansky, ‘What Evidence Scholars Can Learn from the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict’ (2013) 61 University of California Los Angeles 150, 158–62, making a parallel point about civil procedure and the rules of evidence. 35  Gonzalez (n 28) 249 f. 36  Taylor (n 28) 417. 37  See, eg, Jones v Barnes 463 US 745, 751 (1983); PR Metzger, ‘Fear of Adversariness: Using Gideon to Restrict Defendants’ Invocation of Adversary Process’ (2013) 122 Yale Law Journal 2550, 2556 f. 38  RJ Allen, WJ Stuntz, JL Hoffman, DA Livingston and AD Leipold, Comprehensive Criminal Procedure, 3rd edn (New York, Aspen, 2011) 270. 39 Ibid; cf Damaška (n 27) 144, ‘[U]ninitiated in the complexities of practice and evidence, litigants readily defer to the judgment of resourceful and skillful counsel … [S]ervants easily end up dominating their masters.’

44  David Alan Sklansky that forfeit procedural objections, can be and typically are made by defence counsel, not by the defendant.40 Norms of professional conduct require a defence attorney to comply with his or her client’s decision ‘as to a plea to be entered, whether to waive jury trial and whether the client will testify’;41 but the Supreme Court has made clear that ‘[w]ith the exception of these fundamental decisions, an attorney’s duty is to take professional responsibility for the conduct of the case, after consulting with his client’.42 Furthermore, when a defence attorney fails to consult with his client, or fails to follow his client’s wishes with regard to one of the ‘fundamental’ protections that require, in theory, express approval from the client (for example, giving up the right to testify on one’s own behalf),43 courts generally still treat the defendant as bound by the decision, unless the attorney’s conduct can be shown to have been so bad that it denied the ‘effective assistance of counsel’ guaranteed to the defendant under the Constitution.44 And that kind of denial is found only if the defendant can demonstrate both that defence counsel’s conduct fell below ‘the wide range of reasonable professional assistance’, and that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’.45 These are rules applied in hindsight; they do not come into play if a defendant objects, speaks up at trial and complains about his counsel’s choices. But that virtually never happens, in part because neither the rules of trial procedure nor the customs of the courtroom provide for it. The upshot is that decisions to waive procedural protections in criminal proceedings are generally decisions by defence counsel, not decisions by defendants. The Supreme Court recognised as much in 2006, when it held in United States v ­Gonzalez-Lopez that an erroneous interference with a defendant’s right to hire the lawyer of his own choosing is grounds for automatic reversal of any ensuing criminal conviction.46 Defendants too poor to hire their own lawyers—which is to say, most defendants—have no right to pick their counsel; within very broad limits, they must be satisfied with the lawyers the state provides to them. But defendants wealthy enough to retain their own lawyers generally have a right—again, within broad limits—to hire the counsel of their choice, and wrongful interference with that right

40 

See, eg, Metzger (n 37) 2556 f. ABA Rules of Professional Conduct, r 1.2(a). 42  Jones (n 37) 753 n 6; cf Strickland v Washington 466 US 688, 689 (1984), stressing ‘the wide latitude counsel must have in making tactical decisions’. 43  See, eg, United States v Chapman 593 F3d 365, 369 (4th Cir 2010). 44  See, eg, Metzger (n 37) 2570–72, citing cases. 45  Strickland (n 42) 694. It is worth noting not just that Strickland holds defence attorneys to a low standard of effectiveness, but that the standard to which it holds them has to do with the quality of their performance in the abstract, not the degree to which they carried out their clients’ wishes. The rule is aimed entirely at securing what Jeremy Waldron calls ‘forensic accountability’, not ‘agent accountability’, ie enforced fidelity to objective norms, not the duty to provide someone with an accounting for actions carried out in his or her name, see J Waldron, ‘Accountability and Insolence’ in J Waldron (ed), Political Political Theory: Essays on Institutions (Cambridge, Harvard University Press, 2016) 167 f. The ­American legal system makes virtually no effort to impose agent accountability on lawyers representing indigent criminal defendants. Indigent criminal defendants cannot fire their lawyers just because they are dissatisfied with them, and they are not entitled to an accounting of what their lawyers have done and why. 46  United States v Gonzalez-Lopez 548 US 140 (2006). 41 

Autonomy & Agency in American Criminal Process 45 invalidates any verdict against the defendant.47 The reason for that, the Supreme Court explained, is that so much rides on the selection of defence counsel—including decisions about waiver of procedural protections: Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of the defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial … It is impossible to know what different choices the rejected counsel would have made, and to quantify the impact of those different choices on the outcome of the proceedings.48

The telling language here is the reference to the ‘choices the rejected counsel would have made’—not just recommended, but made. No one remarked on that language, not even the four dissenting Justices in Gonzalez-Lopez; it reflected an obvious truth about criminal adjudication in the United States.49 Criminal defendants in the United States depend so heavily on their lawyers today that the one procedural protection the Supreme Court has made increasingly hard to waive is the right to counsel. The right to proceed pro se, recognised by the Supreme Court 40 years ago, has been weakened over the past couple of decades.50 Judges, prosecutors, and defence attorneys share a deep discomfort with defendants representing themselves, or even participating actively in the case presented on their behalf.51 There is reason for the discomfort. Defendants generally make a hash of representing themselves, often spectacularly so. Mentally ill defendants—the most likely defendants to choose to forego counsel—can be so feckless in presenting their cases that the proceedings take on the appearance of farce.52 Even perfectly sane defendants regularly prove utterly incapable of navigating the criminal process on their own. The rules are too arcane and the pitfalls too numerous. But turning over the defence case to the accused’s lawyer has its own problems. First, letting counsel decide what is best for the defendant can seem just as ‘­paternalistic’ as 47 

See, also Luis (n 32) 1089. Gonzalez-Lopez (n 46) 150. data point: Before accepting guilty pleas, trial judges are required to inform defendants of the rights they would enjoy at trial. But if a judge fails to do so, it is the defendant’s obligation to object; without an objection, the Supreme Court has ruled, the error will be grounds for reversal only if the defendant can later prove that the error affected his or her decision to plead guilty. United States v Vonn 535 US 55 (2002). As Darryl Brown has pointed out, this rule can escape absurdity only if the defendant acts through counsel; otherwise it amounts to saying that ‘a lay person who may not know his rights must remind the court of its duty to tell him about those rights’. See Brown (n 3) 126. 50  See, eg, Indiana v Edwards 554 US 164 (2008), holding that mentally ill defendants may be deemed incompetent to represent themselves even if they are competent to stand trial; Martinez v Court of Appeal 528 US 152 (2000), denying a right to self-representation on appeal; McCaskle v Wiggins 465 US 168 (1984), authorising the appointment of ‘standby counsel’, even if the defendant objects; Hashimoto (n 21) 1249 f and 1163; and Toone (n 4) 625–28 and 665, noting the Supreme Court’s growing scepticism about Faretta (n 10). 51  ‘Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge’s charge while the client “plucks at the attorney’s sleeve” offering gratuitous suggestions.’ ABA Standards for Criminal Justice Prosecution Function and Defense Function 4–5.2, Commentary (3rd edn, 1993), quoted in Hashimoto (n 21) 1159 fn 51. 52  See, eg, Toone (n 4) 628. 48 

49  Another

46  David Alan Sklansky letting judges and legislators make that decision.53 It sits uneasily with the autonomybased argument for allowing waiver in the first place. Second, lawyers make lots of mistakes. Among other things, they waive procedural protections they should assert. Even the best lawyers are imperfect, and the average quality of the legal representation provided to poor defendants is notoriously low. As a consequence, it is easy to wind up with procedures in a criminal case that are neither obviously fair nor meaningfully attributable to the defendant. III. WAIVER

Ill-considered or negligent waivers are not the only ways that bad lawyering hurts criminal defendants, and maybe not the most important ways. Attorneys can undermine their clients’ chances by investigating cursorily, by questioning witnesses ineffectively, and by arguing unpersuasively. The lawyers appointed to represent indigent criminal defendants damage their clients’ cases too often in all of these ways.54 A distressing number of privately retained defence attorneys fail their clients in similar fashion. The waiver problem nonetheless deserves special attention, because it highlights with particular clarity some limits on the fairness to which American criminal adjudication aspires. A few examples will illustrate the point. A.  Waiving Post-Conviction Review There is no constitutional right to review of a criminal conviction,55 and there was a time, in America as well as in England, when appeals were rare.56 But a multi-tier system of post-conviction review has long been an established feature of criminal adjudication in the United States. By statute, convicted defendants generally can have their convictions reviewed by an intermediate appellate court, and then seek discretionary review of any adverse appellate ruling in the state supreme court, or, for defendants convicted in federal court, in the Supreme Court of the United States. If they are unsuccessful in these ‘direct’ appeals, they can petition for a writ of habeas corpus on the ground that their conviction was procedurally flawed. That petition will be heard in a trial court, and if the writ is denied, the ruling can be appealed to the appropriate intermediate appellate court, and if that ruling, too, is adverse, discretionary review can again be sought in the state supreme court or, for federal prisoners, in the United States Supreme Court. Finally, if a defendant

53 

See, eg, Hashimoto (n 21) 1174–79. skilful and conscientious lawyers appointed to represent indigent clients can wind up serving them poorly due to excessive caseloads and inadequate support. See, eg, CS Steiker, ‘Gideon at Fifty: A Problem of Political Will’ (2013) 122 Yale Law Journal 2694. 55 See Jones (n 37) 751. 56  See, eg, LM Friedman, Crime and Punishment in American History (New York, Basic Books, 1993) 255 f; P Handler, ‘The Court for Crown Cases Reserved, 1848–1908’ (2011) 29 Law & History Review 259. 54  Even

Autonomy & Agency in American Criminal Process 47 convicted in state court loses his or her direct appeals and is unsuccessful in seeking habeas review in state court, the defendant can seek a federal writ of habeas corpus, initially in a federal trial court, and then, if necessary, in a federal intermediate court of appeals and possibly in the United States Supreme Court. This last layer of review—federal habeas review of state court convictions—is controversial, and its popularity has ebbed and flowed. In the mid-twentieth century, the Supreme Court and legal scholars embraced federal habeas review as a way to provide all state prisoners with an opportunity for federal judicial review of their federal constitutional claims.57 More recently, Congress and the Supreme Court have sharply limited the availability and scope of federal habeas review, and the Court has suggested that the point of federal habeas review is not to assure every state defendant a federal forum, but simply to encourage state courts to be diligent in enforcing federal constitutional rights.58 Still, habeas review remains an important safeguard of the fairness of American criminal adjudication, and direct appeals are even more central in this regard. It is ‘unthinkable that a convicted defendant would be denied the right to appeal’.59 Even trial judges, despite their occasional complaints about being second-guessed on appeal, rely on the availability of post-conviction review to rest easy about the justice they dispense. ‘If I am wrong’, a trial judge will frequently say, ‘the appellate court will tell me’. Nonetheless, like most criminal procedure protections, the right to post-conviction review can be given away. Waivers of the right to appeal and the right to seek habeas review are common features of plea agreements.60 At least some of these rights may also be forfeited, the Supreme Court has made clear, by attorney negligence. In 1991 the Supreme Court rejected an appeal from a convicted murderer named Roger Keith Coleman, paving the way for his ultimate execution, without ever considering plausible arguments that Coleman had been deprived of effective assistance at trial and that the prosecution had failed to disclose exculpatory evidence.61 Those claims were raised for the first time in Coleman’s petition for state habeas relief, in part because state law barred them from being raised on direct appeal, and in part because—like most claims of ineffective assistance of counsel—they required additional fact finding, something that appellate courts in the United States are not set up to pursue. (For this reason, claims of ineffective assistance of counsel are almost always raised for the first time on habeas review.) The state trial judge denied habeas relief, and Coleman’s appeal from that ruling was rejected because the new lawyers who stepped in to represent him in his habeas proceedings accidentally filed

57 

See, eg, Fay v Noia 372 US 391 (1963). See, eg, Allen et al (n 38) 1606. 59  Allen et al (n 38) 1565. 60  See Allen et al (n 38) 1565; Klein et al (n 20) 5. 61  See, eg, TE Pettys, ‘Killing Roger Coleman: Habeas, Finality, and the Innocence Gap’ (2007) 48 William & Mary Law Review 2313, 2328: ‘By any reasonable account, Coleman’s inexperienced, courtappointed attorneys did a poor job of representing him at his trial. They did not prepare well for crucial motions; they failed to thoroughly investigate all of the available exculpatory evidence; they presented a remarkably weak opening statement; and their questioning of the witnesses was frequently unfocused and ineffective.’ See also JC Tucker, May God Have Mercy: A True Story of Crime and Punishment (New York, WW Norton, 1988). 58 

48  David Alan Sklansky his petition for appeal one day late.62 The United States Supreme Court subsequently ruled that this same failure also barred the federal courts from considering C ­ oleman’s new claims on habeas review.63 In order to protect the ‘finality’ of state court judgments, the Court had earlier held that claims deemed procedurally defaulted by state courts are also barred on federal habeas review, unless the defendant can show both ‘cause’—ie, a good excuse for the failure to comply with state procedural rules—and ‘actual prejudice’ from the refusal to consider his claims.64 Now the Court held that ‘[a]ttorney ignorance or inadvertence is not “cause”’ because ‘the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must “bear the risk of attorney error.”’65 Attorney error is ‘cause’ if it rises to the level of an unconstitutional denial of effective assistance of counsel,66 but that kind of violation requires a particularly egregious mistake,67 and the Court reasoned in Coleman that no error of any kind suffices on habeas review, because there is no constitutional right to counsel on habeas review.68 The upshot was that Coleman gave up the right to seek federal review of his claim of ineffective assistance (and the other new claims he had presented to the state habeas court), because his lawyers made a mistake about the filing deadline.69 Dissenting from the Supreme Court’s rejection of Coleman’s claims, Justice B ­ lackmun called this result ‘patently unfair’, and it is easy to see why. There is something odd about using an attorney’s incompetence to justify depriving a defendant of procedures that ordinarily are thought important for ensuring the fairness of a criminal judgment. Defendants suffer all the time because of their attorneys’ incompetence; that is the natural if disconcerting result of allowing a procedural system to place great weight on lawyerly skill. But it is one thing to tolerate a system in which a lawyer’s feckless performance can hurt his client’s chances; it is another to choose—as the Supreme Court did in Coleman—to attach formal, legal consequences to a defence attorney’s mistakes, consequences that penalise not the lawyer but the defendant. The Court explained in Coleman that ‘“cause” … must be something external to the petitioner, something that cannot fairly be attributed to him’.70 It takes a remarkably formal view of attorney–client agency to treat an attorney’s mistake as something

62 

See, eg, Pettys, ibid, 2329. Coleman v Thompson 501 US 722 (1991). 64  Wainwright v Sykes 433 US 72 (1977). 65  Coleman (n 63) 753. 66 See Coleman (n 63) 753 f. 67  See text accompanying n 45 above; Brown (n 3) 138 f. 68 See Coleman (n 63) 754–58. In subsequent cases the Court clarified that ineffective assistance by a habeas lawyer can, in fact, constitute ‘cause’ for overlooking a procedural default in a narrow but important category of cases: where the claim defaulted pertains to ineffective assistance at trial, and the state either requires that a claim of this kind be raised initially in a habeas petition, see Martinez v Ryan 132 S Ct 1309 (2012), or denies a ‘meaningful opportunity’ to raise it on direct appeal, Trevino v Thaler 133 S Ct 1911, 1921 (2013). To obtain relief via this exception, though, a defendant must be able to demonstrate that his legal representation both at trial and on habeas fell below the notoriously low floor for effective assistance of counsel set by Strickland (n 42). Moreover, the defaulted claim must pertain to ineffective assistance of trial counsel, not of appellate counsel. See Davila v Davis, 582 US ___ (2017). 69  Coleman was executed in 1992. DNA tests completed in 2006 appeared to confirm his guilt. See Pettys (n 61) 2316–20; G Frankel, ‘Burden of Proof’ Washington Post (14 May 2006) W8. 70  Coleman (n 63) 753. 63 

Autonomy & Agency in American Criminal Process 49 ‘internal’ to the defendant, something ‘fairly … attribut[able]’ to him. And that kind of view of the attorney–client relationship is difficult to square with the ideal of autonomy that underlies the broad commitment in American criminal procedure to making rights waivable in the first place. The commitment to making rights waivable and a broad view of attorney–client agency were not the only things motivating the Supreme Court to deny Coleman relief. The Court reiterated its concern for the finality of state court judgments,71 and strongly suggested—as it had in earlier cases—that it had come to view federal habeas review of state convictions as redundant and unnecessary in most cases, something of a procedural indulgence. (Even absent ‘cause’ and ‘prejudice’, the Court reaffirmed in Coleman that a procedural default should be overlooked on federal habeas review if failing to consider the underlying claims ‘will result in a fundamental miscarriage of justice’.72 The Court made clear, though, that it thought cases of this kind will be rare.) Still, the Court feels obliged to defend the fairness and not just the efficiency of the constraints it places on habeas review, and the fairness argument in Coleman was rooted in the rhetoric of waiver and agency. B.  Waiving Confrontation The Sixth Amendment to the United States Constitution guarantees every criminal defendant ‘the right … to be confronted with the witnesses against him’, and in recent years the Supreme Court has given this provision a new and demanding interpretation. The Court reads the Confrontation Clause to provide criminal defendants with nearly absolute protection against the introduction of ‘testimonial’ statements made out of court unless the maker of the statement is made available for ­crossexamination under oath.73 The Court has not fully defined ‘testimonial’ statements, but it has made clear that the category is broad. It includes, for example, evidence in a homicide case that before her death the victim reported being attacked or threatened by the defendant,74 and a report by a forensic chemist in a drug prosecution, identifying the material found in the defendant’s possession as a prohibited substance.75 The Court has applied the confrontation requirement strictly, because it views the requirement as a ‘bedrock procedural guarantee’ critical to the fairness of trials.76 Confrontation is valued not just as a guarantor of accuracy but because ‘something deep in human nature’ regards it as ‘essential’ to the fair adjudication of criminal charges.77 Nonetheless, the Court has also insisted that the right to confrontation can be waived: by explicit abandonment, by failing to object when unconfronted

71 See

Coleman (n 63) 748. Coleman (n 63) 750 and 748; Murray v Carrier 477 US 478, 496 (1986); Engle v Isaac 456 US 107, 129 (1982). 73  The leading case is Crawford v Washington 541 US 36 (2004). 74  Giles v California 554 US 353 (2008). 75  Bullcoming (n 9); Melendez-Diaz (n 9). 76  Crawford (n 73) 42; see also, eg, Pointer v Texas 380 US 400, 405 (1965); DA Sklansky, ‘Confrontation and Fairness’ (2012) 45 Texas Technology Law Review 103, 104. 77  Coy v Iowa 487 US 1012, 1015-19 (1988). 72 

50  David Alan Sklansky statements are introduced into evidence, or by failing to comply with state rules requiring a pre-trial demand for confrontation.78 In this respect confrontation rights are like other restrictions on the evidence presented at trial.79 And regardless in what manner the right to confrontation is waived, the waiver can be and typically is made by counsel, without the defendant’s consent or even his input. Confrontation cannot be waived without the defendant’s consent if the result is a trial so truncated as to be ‘the equivalent of a guilty plea’,80 but otherwise the Court permits confrontation to be ‘exercised or waived at counsel’s discretion’.81 In this respect, too, confrontation rights are like rules of evidence more generally. In fact, the ability of defence counsel to waive the right to confrontation has been critical to the recent expansion of the right. The Court has expressed confidence that enforcing confrontation rights strictly—entitling defendants, for example, to cross-examine forensic chemists whose reports are introduced into evidence—will not prove disruptive, because in most cases the right will be waived. As Professor Pamela Metzger has pointed out, that confidence has stemmed ‘not from a belief that defendants would want to relinquish their confrontation rights, but from a belief that defence attorneys would cabin defendant-driven adversariness’82—in part because, as the Court has explained, counsel will not ‘want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defence counsel does not intend to rebut in any fashion’.83 Waivers by defence counsel have served, Professor Metzger argues persuasively, as a ‘salve to … judicial anxieties’ about burdensome invocations of the right to confrontation—and about excessive ‘adversariness’ more broadly.84 C.  Waiving Non-Discriminatory Jury Selection The Supreme Court has held that the Constitution prohibits discrimination on the grounds of race or gender in the selection of jurors at a civil or criminal trial, and that this prohibition applies not only to the removal of potential jurors ‘for cause’, but also to the limited number of jurors each side is allowed to strike through the use of ‘peremptory challenges’, ie challenges that need not be accompanied by any showing of prejudice or even with an explanation of the basis for the objection.85 This prohibition applies to challenges of particular jurors by defence attorneys as well as by prosecutors,86 because the constitutionally protected interest against invidious discrimination is held not just by the criminal defendant but also by potential

78  See cases cited above n 9; PR Metzger, ‘Confrontation Control’ (2012) 45 Texas Technology Law Review 83, 88. 79  See n 17 and accompanying text. 80  Brookhart v Janis 384 US 1, 7 (1966). 81  Metzger (n 78) 88. 82  Metzger (n 37) 2562. 83  Melendez-Diaz (n 9) 328 and n 13. 84  Metzger (n 37) 2561. 85  JEB v Alabama 511 US 127 (1994); Batson v Kentucky 476 US 79 (1986). 86 See Georgia v McCollum, 505 US 42 (1992).

Autonomy & Agency in American Criminal Process 51 jurors, by the state, and by the public.87 A potential juror ‘excluded from jury service because of race suffers a profound personal humiliation heightened by its public character’,88 and the state suffers a comparable injury ‘when the fairness and integrity of [the] judicial process is undermined’.89 The right against invidious discrimination in jury selection—often called a ­Batson right, after the leading case—is thus a perfect example of the kind of ‘­publicregarding’90 protection that the Supreme Court once was reluctant to allow defendants to waive.91 Nonetheless it is well established that Batson rights are forfeitable: a prosecutor’s violation of Batson will be grounds for relief only if the matter is raised during jury selection.92 As a practical matter, whether the matter is raised depends almost entirely on the discretion of defence counsel. The Supreme Court has acknowledged that excluded jurors will rarely if ever be able, or even motivated, to raise a legal challenge to their removal from the jury panel.93 So discrimination by a prosecutor in the course of jury selection will be challenged, if at all, by a criminal defendant, which is to say it will be challenged by defence counsel. Few criminal defendants will be savvy enough even to participate in the decision whether to raise a Batson challenge. One might imagine that judges would raise Batson claims on their own, to protect public confidence in the ‘fairness and integrity of [the] judicial process’. That rarely if ever happens, though, because it is at odds with the passive role assigned to the trial judge in American legal culture—which is to say that it is at odds with what American lawyers and judges think the ‘adversarial system’ requires. D.  Waiving Discovery Criminal defendants in the United States are entitled to disclosure of certain material in the hands of prosecutors. At a minimum, statutes typically give a defendant rights to copies of his own statements, access to physical evidence on which the prosecutor intends to rely, and summaries of expert testimony the prosecutor intends to introduce.94 Moreover, the Supreme Court has held that the Constitution requires police and prosecutors to turn over any ‘material’ exculpatory evidence in their possession,95 including information that could be used to cast significant

87 

See ibid; Powers v Ohio, 499 US 400 (1991). Powers, ibid, 413 f. 89  McCollum (n 86) 56. 90  T Meares, ‘What’s Wrong With Gideon’ (2003) 70 University of Chicago 215, 219; see also Toone (n 4) 644 and 647 f. 91  See text accompanying n 25 above. 92  See, eg, BJ Serr and M Maney, ‘Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance’ (1998) 79 Journal of Criminal Law & Criminology 1, 19, noting that ‘[b] oth federal and state courts have consistently held that the failure to make a timely objection effectively waives any arguments based on improprieties in jury selection which the defendant might urge pursuant to Batson’. 93 See Powers (n 87) 414 f. 94  See, eg, Federal Rules of Criminal Procedure, 16. 95  Brady v Maryland 373 US 83 (1963). 88 

52  David Alan Sklansky doubt on the reliability of government witnesses.96 These obligations are waivable, though. The statutory disclosure obligations often are triggered only by an explicit request from defence counsel.97 The constitutional obligation to disclose exculpatory e­ vidence—the so-called ‘Brady’ obligation—is automatic,98 but does not apply in full, or possibly at all, unless the defendant elects to proceed to trial rather than to plead guilty.99 Moreover, Brady claims, like other claims of trial error, generally are forfeited unless they are raised at the first available opportunity, or there is ‘cause’ for and ‘prejudice’ from the failure to raise the claim.100 Consequently, a defence attorney’s decision not to seek discovery, or a defence attorney’s failure to diligently pursue discovery, can forfeit the defendant’s ability to complain down the road about evidence the police or prosecutors suppressed.101 The disclosure obligations placed on police and prosecutors in the United States are particularly important because of the passive role assigned to judges in the American adversarial system. There is a fair amount of ambiguity to the adversarial/ inquisitorial divide,102 but the heart of the distinction is often thought to be that the adversarial system relies on the parties and their lawyers rather than on judges to develop the facts. American judges do not investigate. They rarely issue subpoenas not requested by the parties, they generally rely on the lawyers to question witnesses, and they almost never consult experts not retained by the parties. In criminal cases as in civil cases, the evidence that forms the basis for the judgment—either at trial or negotiated before trial—is the evidence collected and brought to bear by the parties and their lawyers. In a criminal case, though, the parties have vastly different investigatory resources. The prosecution has the police; the defence does not.103 That oversimplifies the situation, but not by much. Defence attorneys do employ private investigators in some cases, but in most cases they do not. Lawyers representing indigent defendants, in particular, often lack the means to conduct any kind of independent investigation.

96  Kyles v Whitley 514 US 419 (1995); United States v Bagley 473 US 667 (1985); Giglio v United States 405 US 150 (1972). 97  See, eg, Federal Rules of Criminal Procedure, 16. 98  United States v Agurs 427 US 97 (1976). 99 See United States v Ruiz 536 US 622 (2002). Ruiz held that prosecutors were not obliged to turn over impeachment information relating to government witnesses before entering into a plea agreement; it is unclear whether the same rule applies to other categories of exculpatory evidence. 100  On the meaning of ‘cause’ and ‘prejudice’, see above nn 64–66 and accompanying text. A showing of ‘prejudice’ is required not just to excuse the failure to raise a Brady claim but to make out the violation in the first instance: ‘there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result.’ Strickler v Greene 527 US 263, 281 (1999). 101 See, eg, United States v Kennedy 9 F3d 103 (5th Cir 1993) (unpublished opinion), concluding that ‘[i]f the [defendant] did not obtain the materials [before trial] that was due to his own lack of due diligence and does not preserve a Brady claim’; State v Gary 120 Conn App 592, 992 A2d 1178, 1186 (Conn App 2010), finding that the defendant ‘waived his right to raise a Brady claim on appeal’ because his counsel ‘had a fair opportunity to raise [the] claim at trial but deliberately chose to address the alleged late disclosure by a different avenue’. 102  See Sklansky (n 17). 103  cf DA Sklansky and SC Yeazell, ‘Comparative Law Without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa’ (2005) 94 Georgia Law Journal 683, 691 f and 694.

Autonomy & Agency in American Criminal Process 53 The police are supposed to carry out an impartial investigation, allied neither with the prosecution nor the defence, but in practice the police and prosecutors wind up working in loose partnership. The police generally do not think of themselves as agents of prosecutors, but prosecutors often think of the police in this way, and the police themselves certainly identify more with prosecutors than with defence attorneys. Law enforcement agents may sometimes wonder whether prosecuting attorneys are truly ‘on their side’, but they do not even entertain that question about defence attorneys. The upshot is that defence attorneys generally rely heavily on disclosures from prosecutors to inform themselves. Beyond what their clients can tell them, what defence attorneys learn about a criminal case they generally learn from the prosecutors. For the adjudicatory system to function as a genuine clash of adversaries—for it to do more than simply ratify the conclusion reached by the prosecutors—the defence must have access to exculpatory evidence uncovered by the police. Defence attorneys depend heavily in this regard on prosecutors. Prosecutors are the ones who decide, at least in the first instance, whether information should be handed over to the defence, and the decisions they make are often ones that courts never have an opportunity to review.104 The Brady doctrine is the judicial backstop to the prosecutor’s obligation to disclose exculpatory evidence. Allowing defence counsel’s strategic judgments— or neglect—to result in the waiver of Brady claims therefore amounts to allowing defence counsel to give away, deliberately or by accident, a defendant’s right to a full, adversarial review of the evidence. E.  Waiver and Effective Assistance of Counsel John Jackson and Sarah Summers point out that, regardless of how easy it is to waive procedural protections, a criminal defendant’s autonomy within a system of criminal adjudication is significantly and inherently constrained. They argue plausibly that adjudicatory fairness is rooted in a commitment to particular institutional arrangements, and that those arrangements should not be sacrificed for marginal and often illusory increases in a defendant’s procedural autonomy.105 But suppose every criminal defendant had a smart, well trained, highly competent lawyer. There would then be a substantial argument for allowing defence attorneys to waive their clients’ procedural rights, even if those waivers did not reflect decisions made in any meaningful way by the defendants themselves. The argument would be grounded less in autonomy than in the anti-bureaucratic ideal of professionalism. That is to say, it would appeal to virtues of relying on diffused expertise and decentralised judgment, insulated from state control. If defendants are unable to make their own intelligent choices regarding the value to them of various procedural protections, there are reasons to prefer that choices be made for them by independent, skilled professionals, rather than by politicians, government bureaucrats, or jaded judicial officers.

104  105 

See ibid 713–15. See Jackson and Summers in this volume, ch 6.

54  David Alan Sklansky That argument, though, relies on every criminal defendant receiving a reasonably high level of legal representation. Precisely how high is difficult to say; it turns on how strongly we distrust politicians, bureaucrats, and judges. The worse the alternative looks, the lower the demands on the system we actually have. Distrust of government runs famously high in the United States, which means that the antibureaucratic argument for giving defence attorneys control of a defendant’s rights depends on a lower level of defence attorney competence than it otherwise might. Still, the quality of legal representation provided to indigent criminal defendants in the United States—which is to say, most criminal defendants in the United States—is very often so abysmal that it is hard to feel comfortable that the waivers made on their behalf are genuinely and reliably in their interest, even when the alternative is giving the Government itself more responsibility to safeguard the fairness of the proceedings. And that is the alternative: giving the Government (legislators, judges, or other officials) more responsibility for the fairness of criminal proceedings, not exclusive responsibility. It is a mistake to think that the defendant’s interests must be entrusted either to his lawyer or to the state. No system, not even the American system, makes fair treatment of an individual defendant a matter of complete indifference to the Government, and no modern, democratic system of criminal adjudication, not even the most ‘inquisitorial’, dispenses with the need for defence counsel. The question is how the responsibility should be divided. The Supreme Court recognises that attorney waivers of criminal procedure protections make sense only if the level of defence lawyering is reasonably high. That is why waivers can be challenged on the ground that the defendant failed to receive the ‘effective assistance of counsel’ required by the Constitution. Violations of that requirement are notoriously difficult to establish, though. Demonstrating ineffective assistance of counsel requires showing, in part, that the lawyer’s conduct fell below ‘objective standards of professional competence’, which in practice means that lawyering no worse than average is constitutionally adequate—and the average quality of indigent defence lawyering is scandalously low. Moreover, even if a defendant succeeds in showing that his lawyer’s performance fell below objective standards of professional competence, finding a violation of the Constitution also requires a showing of ‘prejudice’, which means in this context that the defendant must prove that there is a ‘reasonable probability’ that, but for the lawyer’s mistakes, the result of the proceeding would have been different.106 Unfortunately, the worse a defendant’s lawyer is, the more likely it is that the record will be shaped in a way that makes the defendant’s guilt seem obvious and any mistake by the lawyer seem, accordingly, inconsequential. IV. REFORM

American criminal process seeks to ensure fairness largely through procedural protections that are waivable by defendants. Many of these protections can be forfeited 106 

See text accompanying n 45 above.

Autonomy & Agency in American Criminal Process 55 simply by failing to invoke them: they are ‘opt in’ rather than ‘opt out’. And most of the forfeiting of procedural protections in American criminal process is done not by defendants themselves but by their attorneys, acting as their proxies. The result is that the procedures followed in a particular case often are difficult to justify as fair except by reference to the defendant’s choices—which may not actually be the defendant’s choices in any meaningful sense. It is an unsatisfying state of affairs. How could things be improved? One obvious, and critically important task is to improve the quality of lawyering provided to criminal defendants in the United States, especially those defendants—a majority—who are too poor to hire their own counsel. These defendants are represented by lawyers hired by the Government, and the resources devoted to this task are scandalously inadequate. The problem is well known and persistent. It deserves even more attention than it receives. But progress on this front is likely to remain slow, which makes several other implications of the foregoing discussion especially important. First, more scepticism is warranted when autonomy and agency are invoked to justify aspects of American criminal procedure. More worry is warranted about how principles of autonomy and agency interact in American criminal procedure to justify results that do not seem fairly attributable to a defendant’s actual choice and seem hard to defend on any other grounds. Considered separately, each of these principles may be defensible—although even then the American system of criminal adjudication may be too willing to let defendants sabotage their own cases and too ready to attribute actions and decisions by defence counsel to their clients.107 ­Especially ­serious problems arise, though, from the intersection of the two principles. Second, more thought should be given to making procedural protections unwaivable, or at least harder to waive. These assessments should reflect the realities of American criminal adjudication and not just its aspirations. That change of focus will often dramatically alter what seems sensible and fair. In some cases this may help to explain existing rules. For example, defendants can waive the right to crossexamine witnesses whose out-of-court statements are introduced against them, but they must do so affirmatively, not simply by failing to subpoena the witnesses.108 In theory, it could be the other way around: prosecutors could be allowed to introduce out-of-court statements as long as defendants were free to subpoena the witnesses so that they could be cross-examined under oath. The right of confrontation could be opt-in instead of opt-out. The problem with that system would be practical, not theoretical. Defendants rely on defence attorneys to subpoena witnesses, and too many defence attorneys would fail to subpoena the witnesses they should subpoena. Considerations of this kind are likely to justify, at a minimum, making many criminal procedure protections opt-out rather than opt-in, and they may well justify ­making more criminal procedure protections unwaivable, or at least significantly more ­difficult to waive than is currently the case.

107  cf Brown (n 3) 135 and 137, noting that most criminal defendants are ‘poorly suited to monitor their lawyers … and ensure adversarial process functions adequately’, but that ‘[d]espite the depth of defense-side agency problems, the law’s first response is largely to ignore them’. 108 See Melendez-Diaz (n 9) 324.

56  David Alan Sklansky The third and final point generalises from the second. More thought should be given to making American criminal adjudication less dependent on attorney skill. I say ‘more thought’, but really any thought at all would be an improvement: this is a reform agenda that is all but non-existent. Over the past several decades health care reformers have worked, in many cases with considerable success, to ‘doctor-proof’ medicine: not to make a doctor unnecessary or a doctor’s skill unimportant, but to make decent outcomes less dependent on the participation of a superb rather than simply a very good physician. There is no parallel movement to ‘lawyer-proof’ adjudication. American lawyers take it as unexceptional, in the natural order of things, for litigation outcomes to depend to a very large degree on attorney skill.109 Professor Catarina Sjolin Knight recalls that when she was starting out as an English barrister, a senior colleague told her, ‘Most of the time what you do won’t matter, because it shouldn’t matter’. It is difficult to imagine a novice trial lawyer in the United States hearing anything of the kind. It is too far contrary to the professional self-conception of the American trial bar and the ideology of the American adjudicatory system. Not only is a fair trial generally unimaginable without competent defence counsel, in part because the process is so opaque to non-lawyers, but it is widely believed—by prosecutors, defence attorneys, judges, defendants, and the general public—that in many if not most cases having a superb attorney instead of just a very good one can mean the difference between acquittal and conviction or at least can significantly alter the likely sentence. Making adjudication so dependent on attorney skill means making it turn on something other than the considerations that most people think should determine the outcome of criminal cases: the defendant’s guilt or innocence and, if the defendant is guilty, the appropriate punishment. So no one advocates, in the abstract, ­making a defendant’s treatment depend on the quality of defence counsel. That would sound too much like trial by champion. But the question is rarely posed in this way. Instead, the exquisite sensitivity of American criminal process to the skill level of defence counsel (and, for that matter, of prosecutors as well) is almost always treated as an obvious, necessary consequence of a commitment to the adversary system. It is one reason the Supreme Court has been so comfortable treating decisions by defence counsel—even obvious mistakes by defence counsel—as choices attributable to the defendant, choices that render acceptable procedures and outcomes that otherwise would seem unfair.

109 

See Sklansky (n 34) 158–62.

4 Innocence, the Burden of Proof and Fairness in the Criminal Trial: Revisiting Woolmington v DPP (1935) LINDSAY FARMER*

I. INTRODUCTION Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge, or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.1

T

HIS RINGING DECLARATION by Viscount Sankey about the ‘golden thread’ of English law is one of the most famous statements of the presumption of innocence, routinely cited in judgments, textbooks and other discussions of the common law. Yet for all its prominence it remains a puzzling claim. At one level it is simply untrue, at least in the sense that there was little evidence of a ‘golden thread’ in the specific form identified by Viscount Sankey.2 As we shall see, there was extensive authority to support the rule that malice was presumed from the fact of a deliberate killing, and that it was not necessary for the prosecution to establish further evidence of mens rea. Or, putting this point slightly differently, it was established practice in English criminal law that in cases of murder the burden of proof lay on the defendant to prove that their conduct was unintentional. The statement would thus appear to be, at best, an attempt to gloss over the fact that the *  An earlier version of this article was presented at the Obstacles to Fairness workshop in Nottingham and at a Criminal Law Forum at the University of Glasgow and I am grateful to the participants for their comments and encouragement. I would also like to thank Antony Duff, Chloe Kennedy, Niki Lacey, Fiona Leverick and Julia Quilter for providing detailed comment on an earlier draft. 1  Viscount Sankey in Woolmington v DPP [1935] AC 462, 481. 2  It is also worth noting that he added the further disclaimer that anything he said about the presumption of innocence was ‘subject to what I have already said as to the defence of insanity and subject also to any statutory exception’, Woolmington, ibid, 481.

58  Lindsay Farmer House of Lords was changing the law by presenting it as unchanged or, at worst, ­simply a fiction or an attempt to mislead. At the same time, however, it seems clear that this was more than a judicial sleight of hand. There is an important sense in which there was an existing older tradition in the common law of respect for the presumption of innocence, and so Viscount Sankey’s statement can be read as an attempt to articulate and develop this tradition. The puzzle, then, is how these two meanings can sit alongside each other: how can the presumption of innocence be both ancient and unchanging and something that was newly established in Woolmington? This puzzle is in part a historical question about the meaning and scope of the presumption of innocence prior to the decision in Woolmington. Given that the decision in Woolmington so clearly states the principle of the presumption of innocence in a new form, how do we make sense of older claims about the existence of a presumption of innocence and the fairness of criminal trials? It is also a matter of asking how the meaning of the presumption of innocence in the common law has changed over time, and what these changes tell us about changing ideas of fairness in criminal trial. However, this discussion can also contribute to contemporary debates about the scope and significance of the presumption of innocence.3 Should it extend to pre- and post-trial processes? Or does it have implications for criminal ­legislation? This article then is not so much looking at obstacles to fairness, but at how we think about fairness in the context of the criminal trial in the first place and its relation to the presumption of innocence. More specifically, I want to explore the way that Woolmington established a particular kind of connection between proof of mental states and the presumption of innocence, and to ask whether there might be alternative ways of understanding the presumption that might offer better ways of understanding fairness in the criminal process. The article is in three main parts. In the first part I shall outline the facts of ­Woolmington. In the second part I shall then explore the reasoning in Woolmington and place the decision in a historical context which shows how the decision was linked to changes in criminal law and procedure in the early part of the twentieth century, as well as exploring some of the older senses of fairness to the accused in criminal procedure. In the third part I shall go on to look at some of the contemporary debates about the scope of the presumption of innocence, before turning to the question of the relationship between fairness and different conceptions of the presumption of innocence. II.  WOOLMINGTON v DPP (1935)

On 14 February 1935 Reginald Woolmington was convicted of the murder of his wife, Violet Woolmington (or Smith), at Bristol Assizes.4 The couple had been m ­ arried

3  These are discussed in R Lippke, Taming the Presumption of Innocence (Oxford, Oxford University Press, 2016) Ch 1; see also the special issue of Criminal Law and Philosophy on the Presumption of ­Innocence: L Campbell, J Chalmers and A Duff (eds), (2014) 8 Criminal Law and Philosophy. 4  This account of the facts is drawn from the case report Woolmington v DPP [1935] AC 462 ff. There are further accounts in The Times (London, 24 May 1935); BP Block and J Hostettler, Famous Cases

Woolmington v DPP  59 in August 1934, when he was 21 and Violet was 17; a baby was born to the couple on 14 October 1934. In November 1934, after about three months of m ­ arried life, Violet had left him and returned to her mother’s house with their young child. On 10 December 1934 Woolmington took a shotgun from the farm where he worked. He sawed off the barrels of the gun and devised a means of carrying the gun suspended under his overcoat with electric cable. He then cycled to his mother-in-law’s home in the nearby town of Milborne Port where he confronted Violet. She told him that she was not going back to him but had decided to go into service. There was then an altercation which ended with Violet being killed by a single shot to her heart. Woolmington returned to his house in Sherborne where he threw the gun away in a nearby river. He then told his mother and his employer that he had shot his wife. He was arrested shortly afterwards and, when he was charged with murder, stated: I want to say nothing, except I done it, and they can do what they like. It was jealousy I suppose. Her mother enticed her away from me. I done all I could to get her back, that’s all.

As Woolmington had admitted the killing, the argument in the trial concerned the question of malice, and there was some discussion of his motives. Woolmington gave a number of different, and conflicting, accounts. He claimed, first, that he had intended to frighten his wife into returning by threatening to kill himself. He subsequently claimed that the gun had gone off by accident as he had tried to pull it out from under his coat. There was then some discussion over the significance of an ambiguous ‘suicide’ note found in the pocket of his overcoat in which he said goodbye to his family, but also that ‘They ruined me and I’ll have my revenge’ and that he had two bullets, one for Violet and one for himself, and so could not also kill her mother whom he held responsible for turning Violet against him. The prosecution alleged that this was written before the killing, thereby showing intent to kill, while he claimed that the note had been written after he killed Violet, and that he had intended to kill himself until his father had talked him out of this. He was convicted at trial on the basis of the established rule that, if the Crown proved the fact of killing, there was an inference of malice unless the accused could displace this. In a passage that was to lie at the heart of the future appeals, Swift J directed the jury that once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes the death can satisfy a jury that what happened was something less. …5

He went on: [The Crown] must satisfy you [that the victim died at the prisoner’s hands] beyond any reasonable doubt. If they satisfy you of that then he has to show that there are­ circumstances … which alleviate the crime so that it is only manslaughter, or which excuse the homicide altogether by showing that it was a pure accident.6

(Bristol, Waterside Press, 2002). Although he was convicted at Bristol Assizes he had earlier been tried at Taunton on 23 Jan 1935 where the jury had been unable to reach a decision. 5  6 

Woolmington (n 1) 465. Woolmington (n 1) 465.

60  Lindsay Farmer After deliberating for a mere 69 minutes, the jury returned a verdict of guilty of murder and Woolmington was sentenced to death. Woolmington was given leave to appeal to the Court of Appeal, where his appeal was heard, and rejected, on 18 March 1935.7 In the appeal, counsel for the appellant sought to lead evidence that the gun had an unusually sensitive trigger, but when this was rejected the discussion focused on the trial judge’s directions on the burden of proof. Counsel for Woolmington argued that the trial judge should have directed the jury that if they had any reasonable doubt on the whole of the evidence it was their duty to acquit; they did not need to be convinced by the explanation of the prisoner. Giving the judgment of the Court of Appeal, Avory J stated that while the trial judge might have given a clearer direction on the point of the duty of the jury to acquit in the case of reasonable doubt, he had properly stated the law and that the decision of the jury was reasonable on the facts. Following this, though, Woolmington was given leave to appeal to the House of Lords as his case was considered by the Attorney-General to raise a point of exceptional public importance.8 His appeal was heard on 4 April 1935 (three days before his scheduled execution) before Viscount Sankey LC, Lord Hewart LCJ and Lords Atkin, Tomlin and Wright. The House of Lords quashed the conviction, ruling that the burden of proof always rested on the prosecution—even in cases of accidental killing or where excuse was claimed— and that it was necessary to prove both the fact of killing and the intention of the accused. The older cases accordingly could not be understood as holding that the burden of proof was on the accused to prove his innocence for the burden of proof always lay upon the prosecution.9 Remarkably, this was the first time since its establishment as the court of final appeal in 1907 that the House of Lords had quashed a conviction for murder.10 It is worth also noting a couple of other points about the appeal. First, neither the Court of Appeal nor the House of Lords had the power to order a retrial.11 The courts did have the power to substitute a verdict of guilty of a lesser crime, but this appears not to have been considered in this case where the options before the original jury were either guilty of murder or treating the incident as an accident.12 This explains the, perhaps surprising, outcome that Woolmington was not considered to be guilty of at least manslaughter on the facts. Second, there is the unusual fact that Lord Hewart LCJ, one of the judges sitting on the appeal in the House of Lords, wrote a short article explaining the decision which was published in The Sunday Times on the Sunday following the publication of the outcome.13 This recognised that the law was

7  The Times (London, 19 Mar 1935) 4, Court of Criminal Appeal. One of the things that is striking about the case is the speed of the appeals process. 8  Criminal Appeal Act 1907 (7 Edw.VII c.23) s 1 (6); On background to the process of giving leave see JLIJ Edwards, The Law Officers of the Crown (London, Sweet & Maxwell, 1964) 246–56. 9  Woolmington (n 1) 475. 10  The Times (London, 6 Apr 1935) 12. 11  Criminal Appeal Act 1907, s 20. This power was only given to the Court of Criminal Appeal by the Criminal Appeal Act 1968, s 7. 12  Criminal Appeal Act 1907, s 5(2); see also AC Forster Boulton, Criminal Appeals under the Criminal Appeal Act of 1907 (London, Butterworth & Co, 1908) 19 ff. 13  Lord Hewart LCJ, ‘Innocent until Proved Guilty’ The Sunday Times (London, 26 May 1935).

Woolmington v DPP  61 being changed by the decision, and suggests that (amongst other things) the Court was well aware of the significance of its decision. Following his release Woolmington returned to his home, enjoying a brief period of celebrity, which apparently included music hall performances (or at least ­appearances), before disappearing into obscurity. The child of the ill-fated marriage was i­nitially adopted but, on the adoptive parents learning of his origins, was then rejected and grew up in a Barnardo’s home. III.  WOOLMINGTON IN CONTEXT

One of the major issues facing the House of Lords was the abundant authority apparently supporting the view that it was enough for the Crown to establish the fact of killing from which a presumption of malice would follow.14 Central to this was a passage from Sir Michael Foster’s, Crown Law (1762): In every charge of Murder, the Fact of Killing being first proved, all the Circumstances of Accident, Necessity, or Infirmity are to be satisfactorily proved by the Prisoner, unless they arise out of the Evidence produced against him: for the Law presumeth the Fact to have been founded in Malice, until the Contrary appeareth.15

This well-known statement of the law of murder had been cited directly in a ­number of leading authorities throughout the nineteenth and early part of the twentieth ­centuries, up to and including the edition of Halsbury’s Laws of England published in 1933.16 Viscount Sankey thus sought to dismantle the authority of this proposition, engaging in a lengthy, and somewhat rambling, discussion of the history of malice and of the law of evidence in which he sought to discredit or undermine earlier authorities in which it appeared to have been held that a prisoner had to ‘prove his innocence’.17 I do not propose to go through the steps of his argument in any detail here; it is not completely coherent and seems to me systematically to misrepresent the older authorities that are discussed. What is more important is to consider how and why the architecture of criminal law and evidence was being changed by this decision. Central to the decision was the dismantling of presumptions around mens rea, particularly in relation to murder.18 Older authorities were based on various kinds of presumptions which were linked to substantive rules of law, such as the ­presumption of malice in the case of deliberate killing in murder, and the presumption that a ­person intended the natural consequences of their acts. In cases where these ­presumptions 14  This is discussed fully in L Farmer, Making the Modern Criminal Law (Oxford, Oxford University Press, 2016) at 172–5 and 239–40; see also G Binder, ‘The Act of Killing’ in MD Dubber and L Farmer (eds), Modern Histories of Crime and Punishment (Stanford, Stanford University Press, 2007). 15  M Foster, Crown Law (Oxford, Clarendon, 1762) discourse 2, 255. 16  The other authorities noted by Viscount Sankey were Archbold, Criminal Pleading, Evidence and Practice, 29th edn (London, Sweet & Maxwell, 1934) 873; JF Stephen, A Digest of the Criminal Law, 7th edn (London, Sweet & Maxwell, 1926) 235; and WO Russell, A Treatise on Crimes and Misdemeanours, 8th edn) (London, Stevens & Sons, 1923) I, 615. The Court also cited R v Greenacre (1837) 8 C & P 35. 17  See, eg, the discussion of Mawgridge’s Case (1706) at 479. 18  See the discussion in Farmer (n 14) 181–8.

62  Lindsay Farmer operated, the burden of proof lay on the prosecution to prove the initial facts (which did not include specific kinds of foresight or intention) and once these facts had been proved a jury might find an accused person guilty as a matter of law. In the case of murder, if there were justifying or mitigating facts—such as that the killing was accidental, in self-defence or under provocation—this might either appear on the facts, in which case a jury had to consider whether it raised doubts about the prosecution case, or if it did not it was for the defence to present such evidence to the court in order to defeat the presumption. And if the consequences were unforeseen or unintended then an accused person might only try and displace the presumption of malice by arguing that they were not ‘natural’ consequences—in other words that the chain of causation had been broken. This was, as Fletcher has argued, a system of criminal law that was based on an ‘exculpatory’ model; it was, though, a practice that was arguably well adapted to what Langbein has described as the ‘accused speaks’ criminal trial where an accused was not represented by counsel and where there was little professional machinery of fact-finding.19 The accused was expected to try and demonstrate to the jury, on the basis of information which likely only the accused possessed, that they were innocent or that they did not have the necessary degree of malice for murder.20 In place of this, the House of Lords in Woolmington held that in cases of murder malice was not to be presumed: even in cases of accidental killing or where excuse was claimed, the burden of proof always rested on the prosecution. If the defence wished to rely on other evidence which was not before the court then they bore the evidential burden of raising it, but the legal (or probative) burden always remained on the prosecution. This articulated the developing distinction between probative and evidential burdens of proof, hardening distinctions between fact and law, offences and defences and evidence and procedure.21 This was, in its turn, based on the hardening of a second distinction; that between proof of an act and proof of an intention, as the criminal law moved towards an ‘inculpatory’ model of liability.22 The older authorities did not distinguish clearly between act and mental state (and did not need to), as proof of an act brought various presumptions about malice into play. Proof of an act was, in many instances, equivalent to proof of malice. Woolmington, by contrast, was drawing on arguments that conduct might provide only evidence of an intention—and that it was necessary for the prosecution to prove both the fact of killing and the intention of the accused, rather than to presume the latter.23 Viscount Sankey’s famous state-

19  G Fletcher, Rethinking Criminal Law (Boston, Little Brown, 1978) Ch 4.1; J Langbein, The Origins of the Adversary Criminal Trial (Oxford, Oxford University Press, 2003) 48–61. 20  See J Beattie, Crime and the Courts in England 1660-1800 (Princeton, Princeton University Press, 1986) 341; see also N Lacey, In Search of Criminal Responsibility (Oxford, Oxford University Press, 2016) Ch 4 on the links between institutional forms and conceptions of responsibility. 21  JB Thayer, ‘The Burden of Proof’ (1890) 4 Harvard Law Review 45; Lord Denning, ‘Presumptions and Burdens’ (1945) 41 LQR 379; N Bridge, ‘Presumptions and Burdens’ (1949) 12 MLR 273. 22  Fletcher (n 19) Ch 4.1. 23  See, eg, JWC Turner, ‘The Mental Element in Crimes at Common Law’ in L Radzinowicz and JWC Turner (eds), The Modern Approach to Criminal Law (London, Macmillan, 1948) (originally published in the Cambridge Law Journal in 1936 and 1938); see also the slightly later discussion in G Williams, Criminal Law. The General Part (London, Stevens & Sons, 1953) 77–81 and 703–6.

Woolmington v DPP  63 ment that ‘throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt’ must thus also be understood in terms of a shift in the understanding of what was entailed in proving guilt.24 A precondition for the restatement of the presumption of innocence in these terms is that the idea of malice (as a mental state) can be separated from proof of an act—and that the prosecution has to prove both beyond reasonable doubt.25 If this were the case it followed that traditional rules, such as that the accused was presumed to intend the natural consequences of their actions made no sense as they cut against the idea that an intention had to be proved. It was for this reason that Glanville Williams referred to Woolmington as extirpating this ‘heresy’ from the law.26 The key point is not so much that this was a recognition of the ­burden of proof than that it was a reformulation of what the burden of proof entailed. The burden of proof was thus on the Crown to establish not only conduct but also the necessary mental state. Overall it is thus possible to see that Woolmington was central to the establishment of a novel linkage between responsibility and guilt—or perhaps more accurately a reconception of legal guilt in terms of a shift towards the need to prove the specific mental element of each crime.27 While for commentators like Fletcher this has been traced in terms of its implications for the development of rules of subjective liability in the substantive criminal law, it is also important to note its important implications for criminal procedure. First, and most obviously, conceiving the presumption of innocence in terms of a link between proof of mental state and guilt reformulated the link between the presumption of innocence and the burden of proof. The burden of proof on the prosecution now included the requirement of proving the mental state of the accused, even in cases where a defence was raised.28 It is for this reason that Sir John Smith hailed the decision, saying ‘Never, in my opinion, has the House of Lords done more noble a deed in the field of criminal law than on that day’.29 Such a ringing endorsement must, however, be received with a certain degree of caution as the rule was seen, at the time, as primarily a matter of the law of evidence, rather than as the expression of a right of the accused or a constitutional principle.30 Second, it is worth noting that the decision was not viewed by the Court as having any implications for the standard of proof, with the Court merely repeating the conventional position that the accused was to get the benefit of any reasonable doubt in those cases where the mental element was in dispute. Finally, the decision had implications for the distinction between the roles of judge and jury, and between 24 

Woolmington (n 1) 481 (capitals in original). See Fletcher (n 19) 537 f. (n 23) 703 ff; JWC Turner, Kenny’s Outlines of Criminal Law, 19th edn (Cambridge, ­Cambridge University Press, 1966) 460 f. This was only formally recognised with the passing of the Criminal Justice Act 1967, s 8. 27  Fletcher (n 19) 537. 28  With the exception of the defence of insanity. See also Mancini v DPP [1942] AC 1. This, as I shall discuss below, was then central to the development of what came to be known as ‘subjective’ tests of criminal liability. 29  JC Smith, ‘The Presumption of Innocence’ (1987) 38 Northern Ireland Legal Quarterly 223, 224. 30  See, eg, CS Kenny, Outlines of Criminal Law, 15th edn (GG Phillips, ed) (Cambridge, Cambridge University Press, 1935) 387 ff. 25 

26 Williams

64  Lindsay Farmer fact and law—distinctions that had been blurred by the existence of the traditional presumptions. The judge was to articulate the rules of substantive law; but the jury were to be the ultimate fact-finders, and judges should not be able to direct them to convict.31 This was a distinction that was further reinforced by the development of appellate courts in the early twentieth century, in which questions of law were increasingly discussed in isolation from their procedural context in criminal trials and as these courts reflected on and formally distinguished between different kinds of rules.32 Overall, this linked the idea of subjective responsibility to the conduct of the fair trial.33 If hitherto (as I shall argue below), the idea of fair trial had been conceived in terms of certain procedural rights that protected individual liberties, this new formulation made the presumption of innocence the nexus between ideas of procedural fairness and individual responsibility in the substantive criminal law. Recognition of this point can help us to shed light on the historical question— how had trials been seen as fair (or what did the presumption of innocence mean, if anything) pre-Woolmington? As historians have pointed out, criminal trials in the early eighteenth century did not always clearly distinguish between prosecution and defence cases and, as we noted above, presumptions of law combined points of evidential and substantive law with the effect that guilt was ‘presumed’ in certain circumstances.34 There was, moreover, as Pennington has pointed out, no formal recognition of the maxim ‘innocent until proven guilty’ in English or American common law until the end of the nineteenth century.35 The case can thus clearly be made that the presumption of innocence (at least in English and American jurisprudence) was a nineteenth-century innovation.36 However, this does not mean that there was no recognition of the significance of innocence or no conception of procedural fairness before this, only that it was not articulated around a modern understanding of responsibility. Ideas about the significance of innocence were instead organised around different areas of the institution of the trial, and there are three areas in which we can see this operating.37 The first area is that of failure of proof, or that an accused should get the benefit of any reasonable doubt, as expressed in the maxim

31 

See, eg, Bridge (n 21) 275–7. eg, Thayer (n 21) 46: ‘we may see that questions will be introduced into legal discussion as to the respective duties of the parties in producing evidence at different points of the trial, and in meeting evidence produced against them, which may be wholly absent from another system where there is no such judicial revision of the method of using and estimating the evidence’. 33  See TA Green, ‘The Jury and Criminal Responsibility in Anglo-American History’ (2015) 9 Criminal Law and Philosophy 423–42, tracing separate and overlapping trajectories of political liberty and criminal procedure, through the jury, and freewill and responsibility in substantive criminal law. 34  Langbein (n 19) refers to these trials as an ‘unstructured bicker’ at 259; see also BP Smith, ‘The Presumption of Guilt and the English Law of Theft, 1750-1850’ (2005) 23 Law and History Review 133–99; Beattie (n 20). 35  K Pennington, ‘Innocent until Proven Guilty: The Origins of a Legal Maxim’ (2003) 63 The Jurist 106–24, noting that the maxim had an older history in continental civilian jurisprudence. 36  See the discussion in JB Thayer, ‘The Presumption of Innocence in Criminal Cases’ (1897) 6 Yale Law Journal 185; CK Allen, ‘The Presumption of Innocence’ in Legal Duties (Oxford, Clarendon Press, 1931). 37  For a more general discussion of the development of ideas of fairness in nineteenth century trials see S Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Oxford, Hart Publishing, 2007) chs 2 and 3. 32  See,

Woolmington v DPP  65 in dubio pro reo.38 This was the principle that in all cases, whether civil or criminal, the burden of proving a claim lay on the person bringing the claim. While not strictly speaking a legal presumption (of innocence or anything else), in criminal law this was understood to favour the individual liberty of the subject. As is well known, English writers from Fortescue to Blackstone had expressed the idea that it was ­better that some number of guilty persons go free rather than an innocent ­person suffer punishment.39 These were not a general expression of a presumption of innocence, but attempts to express the idea that where there was some uncertainty, the accused person ought to be given the benefit of the doubt. This sentiment was articulated by MacNally, in one of the first treatises on evidence in 1802, writing about the number of witnesses required in treason trials: In Beccaria’s judgment, one witness is not sufficient; for whilst the accused denies what the other affirms, truth remains suspended, and the right that every one has to be believed innocent turns the balance in his favour.40

As the law of evidence developed during the nineteenth century this eventually took the form of an evidential presumption, linking the general idea of a probative burden to articulations of the standard of proof, particularly where the courts were relying on circumstantial evidence.41 Thus, for example, Best, in his work on presumptions declared: Rule 1. The onus of proving every thing essential to the establishment of the charge against the accused lies on the prosecutor(s). This rule is derived from the maxim of law, that every person must be presumed innocent until proved to be guilty, and is founded on the most obvious principles of justice and policy.42

This kind of general claim about the burden of proof and the protection of liberty was related to the second area which was the idea of a right to a (jury) trial. Both Fortescue and Blackstone made their statements about innocent persons in the context of claims about the right of an accused person to have their claims brought before a jury of their peers—an institution that Blackstone famously referred to as the ‘palladium of liberty’.43 The broader point is that these principles of the right

38 

This was the narrower point that was affirmed in Woolmington (n 1) 462; see also Kenny (n 30) 453 ff. Fortescue, On the Laws and Governance of England (Cambridge, Cambridge University Press, 1997) Ch XXVII, 40–1 (20 guilty men); W Blackstone, Commentaries on the Law of England (1769) (Chicago, Chicago University Press, 1984) 352 (ten guilty persons); For further sources see A Volokh, ‘n Guilty Men’ (1997) 146 University of Pennsylvania Law Review 173–216. This, however, was primarily an argument about the standard of proof, which was solidifying into the beyond reasonable doubt standard in this period; see B Shapiro, Beyond Reasonable Doubt and Probable Cause (Berkeley, University of California Press, 1991) Ch 1; JQ Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven, Yale University Press, 2008). 40  L MacNally, The Rules of Evidence on Pleas of the Crown (London, J Butterworth, 1802) 19, c ­ iting C Beccaria, On Crimes and Punishments (Cambridge, Cambridge University Press, 1995) Ch 13 (on witnesses). 41  See, eg, SM Phillips, Treatise on the Law of Evidence Volume I, 3rd edn (London, A Strahan, 1817) Ch 7, s 2. 42  W Best, Treatise on Presumptions of Law and Fact (London, S Sweet, 1844) 267 f (emphasis in original); see also JF Stephen, Digest of Evidence (London, Macmillan, 1876) Art 94 expressing it as a presumption of evidence. 43  Blackstone (n 39) iv, 343. 39  J

66  Lindsay Farmer to a trial, or to be heard, were governed by the older law of habeas corpus and its connection to the liberty of the subject.44 The third area was the argument against torture and forced confessions. Here again there was a clear principle that no one should be punished for refusing to make a confession of guilt, which had developed in response to practices of interrogation or torture that had been sanctioned by the Star Chamber.45 Once again, the content of this principle was limited in practice by the form of the trial in the eighteenth century, but over the course of the nineteenth century this was to develop into a right to silence (otherwise known as the privilege against self-incrimination) as lawyers gradually entered the criminal trial.46 While in each of these areas we might question the extent to which practice matched principle, it is nonetheless clear that these articulated important values about how persons accused of crimes should be treated, and that these were increasingly formally recognised in law.47 These lend some support to Viscount Sankey’s claim that there is a ‘golden thread’ in the common law, even if these discrete areas were not brought together into the form of a unifying principle like the presumption of innocence until the decision in Woolmington. The evolution of these rules and ­values into the modern presumption of innocence, however, was not simply a matter of the correcting of errors or the development of a more refined or better understanding of the criminal law, but was underpinned by some of the changes outlined above. Overall, then, the point that I am making here is that the particular conception of the presumption of innocence established in Woolmington, and the linkage that it draws between the proof of subjective mental states and the fair trial is recent, and based moreover on certain kinds of institutional developments. In the next s­ ection I shall outline some of the ways in which this connection has increasingly been taken as central to thinking about the presumption of innocence, arguably to the detriment of the older tradition of thinking about fairness. IV.  THE SCOPE OF THE PRESUMPTION OF INNOCENCE

If the preceding discussion has shed some light on the historical puzzle posed by Woolmington, it is now necessary to turn to the normative question—how the ­presumption of innocence should be understood, and how this historical insight might assist in thinking about this. A first point to note is that in contemporary law the presumption of innocence is, if anything, formulated in even stronger terms. For ­Roberts and Zuckerman, in addition to being a ‘cherished part of English legal 44  See H Berman, Law and Revolution II. The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, Harvard University Press, 2003) 494, fn 54. 45  This was to become an important part of the self-mythologising of the common law as later writers contrasted the right to silence under adversarial procedures with the inquisitorial practices of continental (especially French) criminal procedure. See, eg, Allen (n 36) 253. 46  See, eg, JF Stephen, A General View of the Criminal Law of England (London, Macmillan, 1863) 190–203; see also HE Smith, ‘The Modern Privilege: Its Nineteenth-Century Origins’ in R Helmholtz et al, The Privilege Against Self-Incrimination (Chicago, University of Chicago Press, 1997); CJW Allen, The Law of Evidence in Victorian England (Cambridge, Cambridge University Press, 1997) Ch 5. 47  See, eg, 11 & 12 Vict c42 s 18 on the right of the accused to remain silent; R v White (1865) F&F 363 on the presumption of innocence and reasonable doubt.

Woolmington v DPP  67 heritage’, the presumption can be described as a ‘constitutional principle’ of English criminal law.48 Thus, in addition to the rule established in Woolmington that the prosecution must prove each element of the crime beyond reasonable doubt, it has now also been identified in the European Convention on Human Rights (ECHR) as an aspect of the right to a fair trial.49 It is routinely defended in terms of political morality or constitutional rights as central to the protection of the liberty, d ­ ignity and privacy of the individual against the coercive power of the state, and as foundational to other rights such as the right to silence.50 This has led to a more extensive view of the implications of the presumption both in law and in academic ­commentary. In a series of decisions, the European Court of Human Rights has held that Article 6(2) extends to the protection of the reputation of individuals charged with or suspected of a crime.51 And in the academic literature it has been argued that the protections provided by the presumption should extend not only to the trial, but also pre-trial and even post-arrest procedures, as well as to the treatment of convicted persons at the post-sentencing stage and to the prevention of other forms of state censure or labelling of individuals suspected of having committed crimes.52 The presumption of innocence has thus become increasingly central to understandings of how state power might be limited in a range of areas connected to criminal justice. It is also, in an important sense, non-contentious, in that few, if any, would argue against the presumption and framing issues in terms of the presumption has a huge rhetorical power. Current debates are thus concerned less with the issue of whether or not it should be recognised, than with the implications of recognition, or the scope of the presumption.53 Broadly speaking, we can characterise the contemporary debate as being between wide and narrow versions of the presumption.54 The wide version should be understood as such, less because of claims about the scope of the application, than in terms of the expansive nature of the rationale which is claimed for the presumption.55 The argument for this wide rationale begins with the idea of ‘material’ innocence.56 In a negative sense this is contrasted with ‘­probative’ or legal innocence, in the sense of the case against a person failing to 48  P Roberts and A Zuckerman, Criminal Evidence, 2nd edn (Oxford, Oxford University Press, 2010) Ch 6 at 222—although it might be commented that such claims are surely at odds with what they also describe as the common law preference for ‘understated pragmatism’. 49  See Art 6(2) ECHR; the earliest expression in these terms is probably the French Declaration of the Rights of Man and the Citizen, Art 9; I Dennis, The Law of Evidence, 5th edn (London, Sweet & Maxwell, 2013) 11.8–11.10; A Stumer, The Presumption of Innocence: Evidential and Human Rights Perspectives (Oxford, Hart Publishing, 2010). 50 Roberts and Zuckerman (n 48) (s 6.3): ‘Its significance derives directly from the neo-Kantian, ­deontological requirement that, at least in broadly liberal societies, the interests of individual citizens must be afforded a high priority … sometimes at the expense of maximizing aggregate social welfare.’ 51  S and Marper v UK [GC] (2009) 48 EHRR 50; see discussion in L Campbell, ‘Criminal Labels, Human Rights and the Presumption of Innocence’ (2013) 76 MLR 681, 684–8. 52  See A Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241; Lippke (n 3) 19; Campbell (n 51). 53  R Lippke (n 3) Ch 1 contains a succinct discussion of the issues. 54  cf Ashworth (n 52) 243–4, drawing a distinction between wide and narrow versions of the p ­ resumption on the basis of its scope rather than the underlying rationale. 55  Though in most cases this also supports an argument for a wider application. 56  The terms material and probative are from L Laudan, ‘The Presumption of Innocence: Material or Probatory?’ (2005) 11 Legal Theory 333.

68  Lindsay Farmer satisfy the criminal standard of proof: in other words, that a person might in fact be guilty, but this has not been proved to the satisfaction of the court. The concern, though, is that a recognition that a person is not guilty is not the same as a recognition that they are innocent. This leads, then, to the claim that persons should be treated as ‘in fact’ or materially innocent: that citizens should be presumed to be ‘without reproach’ or in ‘good standing’ with the criminal law unless it is proved beyond reasonable doubt that they are guilty.57 This, it is argued, is the only way that the presumption of innocence can be made consistent with respect for persons in liberal legal order.58 In the context of the criminal law, this claim about respect for persons is seen as underlying other substantive and procedural rights, notably the right not to be punished. The criminal law only has title to censure (and to punish) if there is reason to believe that the conduct was wrongful, and only to the degree of the wrongfulness (proportionality and seriousness)—a position which is defended as reflecting the structure of moral agency.59 This opens the door to a number of wider implications, as it is argued that institutional structures should conform to the form of moral agency. Stewart argues that this understanding should ‘condition the entire pre-trial process’ because ‘it must also affect the content of the procedural rights that apply in the determination of whether the person has done wrong’.60 Others have argued on a similar basis that the presumption of innocence should be understood as a ‘substantive’ principle, which would then have implications for the definition of criminal wrongs in law.61 Thus, if the prosecution must prove all elements that make conduct wrongful, then the definitions of crimes must meet the minimum standards of being based on (serious) wrongful conduct which has been culpably inflicted. This critique of criminal law has ranged from the criticism of forms of strict liability and reverse burdens of proof to the claim that the presumption of innocence must be respected in forms of criminal legislation more generally.62 And it has been argued that the presumption of innocence should limit punishment or even ­post-punishment.63 This version thus reaches out from the trial to the pre- and post-trial, to the legislative process and even to claims about how the media or other members of the community should treat those suspected of, or acquitted of, crimes. The narrow version is more procedural and focused on ‘probative’ rather than material innocence: knowing that an accused person may be factually guilty, but demanding that in the criminal process they should be treated as if they were

57  See Lippke (n 3) 14; H Stewart, ‘The Right to be Presumed Innocent’ (2014) 8 Criminal Law and Philosophy 407. 58  Stewart (n 57) 408–10. 59 A von Hirsch, Censure and Sanctions (Oxford, Oxford University Press, 1993) 24; for further ­discussion of the centrality of culpability, see Farmer (n 14) 103–115 and 188–92. 60  Stewart (n 57) 408 and 412. 61  cf D Husak, Overcriminalization (Oxford, Oxford University Press, 2008) 92–103 arguing that the burden should be on the state to justify the decision to criminalise. 62  See V Tadros and S Tierney, ‘The Presumption of Innocence and the Human Rights Act’ (2004) 67 MLR 402; V Tadros, ‘The Ideal of the Presumption of Innocence’ (2014) 8 Criminal Law and Philosophy 449; P Tomlin, ‘Extending the Golden Thread: Criminalisation and the Presumption of Innocence’ (2013) 21 Journal of Political Philosophy 44. 63  P Tomlin, ‘Could the Presumption of Innocence Protect the Guilty?’ (2014) 8 Criminal Law and Philosophy 431.

Woolmington v DPP  69 i­nnocent until such point as they are proved guilty beyond reasonable doubt of the elements of a criminal offence—with the standard of proof being seen as a way of reinforcing the importance of the presumption.64 The focus is thus primarily on the duties of state actors during the trial and pre-trial process as it is argued that the state has a ‘duty to recognise the defendant’s legal status of innocence at all stages prior to conviction’.65 It is recognised that suspects identified and accused by police may in practice be guilty, but argued that it is necessary within the criminal process to treat individuals in a certain way because punishment only starts following the determination of guilt by a properly constituted court. Thus, as Weigend argues, a recognition of the vulnerability of the suspect when faced with the power of the state gives rise to the demand that ‘any interference with the suspect’s rights is illegitimate unless it can be based on valid grounds distinct from any assumption that he is in fact guilty’.66 Or, as Ashworth argues, ‘respect for individual dignity and autonomy requires that proper measures are taken to ensure that … censure does not fall on the innocent’.67 This account focuses on pre-trial processes, such as bail conditions or the right to silence, and occasionally on some post-conviction processes, such as confiscation orders, where these are penal in force but where the suspect has not received the benefits of procedural protections under the criminal law.68 On some accounts this version will still give rise to the demand that fault should be specified in the definition of crimes, but these are more limited, and reflect the practice of the courts which has been to argue that reverse burdens of proof are nonetheless consistent with the presumption of innocence as expressed in the ECHR.69 What is striking about these arguments is less the differences between them, than what they share. The structure of both arguments is based on the particular version of the presumption of innocence that was established in Woolmington. Both arguments link the presumption of innocence to the standard of proof; both are focused on the need to protect the innocent person from the consequences of their contact with the criminal justice system; both are built around the centrality of the connection between proof of the distinct elements of any criminal offence and the status or quality of innocence; and, most importantly, both share a focus on the status of innocence as the normative core of the presumption, building out from this to make claims about responsibility, punishment and the fair criminal trial. Both produce a version of fairness in which ‘we share an almost instinctive orientation that rests on the belief that the most serious threat to justice is the threat that the innocent will be targeted’.70

64  See Ashworth (n 52); RA Duff, ‘Presuming Innocence’ in L Zedner and JV Roberts, Principles and Values in Criminal Law and Criminal Justice (Oxford, Oxford University Press, 2012); R v G [2006] EWCA Crim 821. 65  Ashworth (n 52) 244. 66 T Weigend, ‘Assuming that the Defendant is Not Guilty: The Presumption of Innocence in the ­German System of Criminal Justice’ (2014) 8 Criminal Law and Philosophy 285, 287. 67  Ashworth (n 52) 251. 68  See, eg, Ashworth (n 52). 69  For an early defence of the distinction between probative and evidential burdens see G Williams (n 23) Ch 23; see also Ashworth (n 52) 252–7. 70  JQ Whitman, ‘Presumption of Innocence or Presumption of Mercy? Weighing Two Western Modes of Justice’ (2016) 94 Texas Law Review 1, 16 citing H Packer, The Limits of the Criminal Sanction (­Stanford CA, Stanford University Press, 1968).

70  Lindsay Farmer While there is no question that those who see the presumption of innocence in these terms are driven by the desire to address the very real and important issues of protecting those accused of crimes and limiting the scope and impact of the criminal law, I want to question whether thinking about the presumption of innocence in this way is necessarily the best way of approaching the diverse challenges facing our criminal justice system. My first concern here is the focus on the quality of innocence, as this is taking place in a cultural context where there is greater stress on the rights of the victim and the justified punishment of the guilty—and this might lead us to question the significance of the focus on innocence. This point can be illustrated by considering what Lacey has described as the ‘resurgence of character’.71 Lacey’s argument is that the contemporary criminal law is increasingly marked by the use of a form of culpability which is based on bad character which, she argues, is in practice probative of guilt.72 This is contrasted with normative accounts of culpability which are largely grounded in a ‘capacity’ conception of responsibility—understood in terms of the cognitive and volitional capacities of the subject and the burden on the prosecution to prove these for a finding of guilt. She sees evidence for this resurgence in three areas. First, the criminal law in practice frequently falls back on ideas about character to supplement or give content to mens rea requirements that are, superficially at least, formulated in terms of capacity. Thus, judgments of reasonableness or motive, she argues, often collapse into judgments of character.73 To this we might add the emergence of new offences in the area of domestic abuse or stalking and harassment which are based on a course of conduct, where the understanding of the character of offenders as systematic abusers underpins findings of guilt.74 Second, Lacey points to the relaxation on character evidence under English law, and the fact that character evidence is now frequently used to establish the propensity of certain people to ­commit offences.75 Third, there is the creation of de facto status offences through the use of preventive orders, such as ASBOs, sexual offender notification orders, football spectator banning orders and so on, which place restrictions on the liberty of certain categories of people on the basis of a judgment of criminal propensity.76 This particular conception of character is based on institutional practices which track prior conduct and predict risk; character becomes, in effect, a presumption of guilt. Thus, the person of bad character may be punished, or have their liberty restricted, in ways which are entirely consistent with respect for the presumption of innocence; and going further, it has frequently been the innocence and vulnerability of the victim, and the need to protect this which has justified the creation of new offences and new laws. The problem then is that a presumption of innocence which is focused

71  N Lacey, ‘The Resurgence of Character: Responsibility in the Context of Criminalization’ in RA Duff and S Green (eds), Philosophical Foundations of Criminal Law (Oxford, Oxford University Press, 2011); see also N Lacey, In Search of Criminal Responsibility. Ideas, Interests and Institutions (Oxford, Oxford University Press, 2016) Ch 2. 72  Lacey, ‘Resurgence of Character’ (n 71) 153. 73  Lacey, ‘Resurgence of Character’ (n 71) 161–5. 74  See Farmer (n 14) 259. 75  Criminal Justice Act 2003 s 101(1). 76  Lacey, ‘Resurgence of Character’ (n 71) 167–9.

Woolmington v DPP  71 on the character of innocence based around capacity conceptions of responsibility does not begin to engage with these kinds of practices. Furthermore, as Whitman has argued, laying stress on the protection of the innocent might lead us to lose focus on the treatment of the guilty.77 This leads to my second concern which is whether, paradoxically, our normative understanding of the presumption of innocence should be based around the idea of guilt rather than innocence. As we have seen, both narrow and wide theories are based on the protection of the presumptively innocent person, with innocence, postWoolmington, being understood particularly in terms of the absence of subjective culpability. Both wide and narrow approaches seek, to varying degrees, to extend the scope and significance of the presumption of innocence beyond the criminal trial and to draw connections to deeper underlying accounts of dignity and autonomy as they underpin other areas of the criminal law. However, the historical reconstruction I have offered here suggests that it is possible to think differently about fair trials, and that it is not necessary to seek to tie our understanding of substantive and procedural protections to a single unifying account of the presumption of innocence. The commitment to individual liberty in the criminal law has different dimensions: fairness in the definition of rules and responsibilities; fairness in the attribution of liability; fairness in the trial of an accused person; and fairness in punishment. Due process rules might thus respect liberty in the trial process, but need not necessarily be related directly to conceptions of responsibility in the definition of the criminal law, just as the aims of the criminal trial are different from the aims of legislation.78 The aim of trials is justifying the application of a norm in a particular instance, whether or not punishment is justified, while legislation is laying down general standards of conduct. Thus, rather than defending a single version of fairness understood in terms of protecting the innocent, fairness might mean different things in each different context. We might illustrate this point by considering two further and different ways of articulating the presumption.79 On the first version the prosecution bears the burden of proving guilt beyond reasonable doubt. Here the burden flows from the nature and severity of the sanction (criminal punishment) and the desire to protect the (material or probative) innocent—and is therefore taken potentially to extend through all aspects of criminal law that engage questions of guilt and punishment. This is the Woolmington version in both its wide and narrow versions. The second version lays stress not on the question of guilt or innocence but on the institutional role of the presumption at different points in the criminal justice process with the aim of addressing how every person ought to be treated in a particular institutional context so as to maximise liberty and secure civil order. It is, in other words, not only about rights for the innocent but rights for all.80 Where defenders of the p ­ resumption of

77 

See Whitman (n 70). cf HM Hart, ‘The Aims of the Criminal Law’ (1958) 23 Law and Contemporary Problems 401–41. 79  This is an adaptation of the versions presented in D Nance, ‘Civility and the Burden of Proof’ (1994) 17 Harvard Journal of Law & Public Policy 647, 656; cf also Whitman (n 70) and his critique of the strong presumption of innocence in the adversarial process from a comparative perspective. 80  cf Whitman (n 70) 50–54. 78 

72  Lindsay Farmer innocence are frequently distracted by the question of how to treat those who are in fact guilty, with the guilty being seen as the beneficiaries of protections that are primarily deserved by the innocent, this second approach starts from the point that the guilty must be protected throughout the criminal justice process—and that the (materially) innocent would benefit equally from this. The question would then be that identifying the appropriate procedural protections at each stage.81 While this is beyond the scope of this article we should note that there would remain a role for the presumption of innocence in the criminal trial, but it would be in the much more limited sense defended by Schwikkard where it is understood simply as a rule regulating the burden of proof in the criminal trial, and which does not engage the question of actual (or material) guilt or innocence at all.82 This, clearly, is not to disregard the question of the protection of the innocent, but it is to understand that the protection of the innocent is only part of a respect for all.83 The presumption of innocence on this account does not flow from the severity of the censure or from the dignity or autonomy of an individual accused, but from a more general account of civility, or the social obligations that we owe to each other, and the way that this broader understanding is institutionalised at different points in the criminal justice system.84 V. CONCLUSION

In this article I have sought to do two things. The first is to recover something of the historical context of the decision in Woolmington in order to answer the historical puzzle that Viscount Sankey’s judgment poses: was his judgment creating a novel presumption of innocence, or was it a reformulation of the content of an already existing rule? My answer to this is ambivalent. In a limited sense the judgment can simply be understood as clarifying the scope of an existing ­presumption.85 ­However, it also became much more than this because the linkage that was established between responsibility, guilt and innocence and ideas of the fair trial in W ­ oolmington established a new way of thinking about the significance of the presumption and its application that has been enormously influential in common law systems. In reconstructing the historical context of the decision I have also sought to clear away some

81  While Ashworth (n 52) 256 continues to frame his argument in terms of innocence, his conclusion is similar to this when he notes that the fact that two rules might promote the same ends does not mean that they are necessarily linked. 82  PJ Schwikkard, ‘The Presumption of Innocence: What is it?’ (1998) 11 South African Journal of Criminal Justice 396, 401. 83 Not restating the presumption of innocence but arguing that it is more likely to be powerful if instead of stretching the meaning of the principle it is better to focus on the institutional sphere where it can have greatest weight—and to draw on other principles. Note also that both Ashworth (n 52) and Duff (n 64) try to see the Presumption of Innocence as one principle amongst others. 84  cf Nance (n 79) 652: ‘Our duty to respect others entails a duty to presume their compliance with serious social obligations’; see also Duff (n 64) 54–5, grounding arguments about the operation of the presumption in the normative expectations attaching to citizens in certain roles. 85  See, eg, Lord Hewart LCJ (n 13) arguing that it was about the removal of an exception about the need to prove malice in cases of homicide.

Woolmington v DPP  73 of the more extravagant claims about the age of the presumption of innocence in this form in English law, while also linking Viscount Sankey’s claims to the existence of an older tradition of respect for individual liberty. In the second part of the article I then went on to show how the linkage between innocence and the proof of culpability that Woolmington established has come to be the dominant (if not quite the only) form of thinking about the presumption of innocence in contemporary debates. While, as Ashworth observes, the privileged position of the presumption of innocence ultimately depends less on its age (supposed or real) or its historical development, than on the reasons for recognising it in the present day, I have sought to argue that understanding the history can help us to see what is at stake in some of the contemporary debates.86 This is both because understanding the history can help us to see the contingency of some of the specific characteristics of contemporary understandings of the presumption, but also because in thinking about the question of whether we might think differently about fairness in criminal trials we can see the existence of an older tradition of respect for liberty which disentangles the idea of procedural rights from moral claims about innocence and guilt—which might offer different ways of engaging with challenges posed to contemporary criminal law by developments such as the resurgence of character responsibility. The significance of the claims made in the latter part of the article is that they potentially seek to connect thinking about the presumption of innocence to the pre-Woolmington tradition where the focus was not on a ‘unifying’ account but the different ways that liberty of the subject might be respected at different stages in the criminal justice process. Finally, I want to say something about the case of Woolmington itself. The case is routinely celebrated in common law jurisprudence, with the principle that the case stands for being abstracted, from both the judgment and the facts of the case. But these facts are troubling, involving as they do the death of a young mother at the hands of her estranged husband—who is subsequently acquitted of the crime. It is a serious case of gendered violence, the reality of which has not been recognised either by commentators at the time or in later explorations of the significance of the case. In discussing this I believe that it is essential that this be acknowledged.

86 

Ashworth (n 52) 246.

74 

5 The Right of Silence in England and Wales: Sacred Cow, Sacrificial Lamb or Trojan Horse? HANNAH QUIRK*

T

HE RIGHT OF silence in England and Wales has never been a purely domestic issue. This jurisdiction has had a disproportionate effect on the development of this ‘fundamental principle of the criminal law.’1 First as part of the nation that exported the principle across the common law world and—most significantly for this chapter—in its decision to curtail the right of silence. The right of silence is ‘a disparate group of immunities, which differ in nature, origin, incidence and importance, and also to the extent to which they have already been encroached upon by statute.’2 The definition for the purposes of this chapter is from Lord Mustill’s taxonomy, ‘[a] specific immunity …, possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial.’3 The right of silence first came under serious attack in England in 1972 following the report of the Criminal Law Revision Committee (CLRC).4 It was considered and endorsed by both the Royal Commission on Criminal Procedure (RCCP) and the Royal Commission on Criminal Justice (RCCJ).5 The right was curtailed in N ­ orthern Ireland in 1988,6 then in England and Wales by the Criminal Justice and Public Order Act 1994 (CJPOA). These debates attracted worldwide attention and led to reconsideration of the right in countries such as Malaysia, Singapore and Australia.7 *  I would like to thank Candida Saunders for her detailed comments as a respondent to this article, to the participants of the Nottingham seminar for the helpful discussion that followed, and to John Jackson and Sarah Summers for inviting me to take part and for their editorial expertise. 1  R v Beljajev [1984] VR 657, 662 per Starke J. 2  R v Director of the Serious Fraud Office ex parte Smith [1993] AC 1, 30 f, per Lord Mustill. 3 ibid. 4 Criminal Law Revision Committee, Eleventh Report: Evidence (General), Cmnd 4991 (London, HMSO, 1972). 5  Report of the Royal Commission on Criminal Procedure, Cmnd 8092 (London, HMSO, 1981); Report of the Royal Commission on Criminal Justice, Cm 2263 (London, HMSO, 1993). Report of the Royal Commission on Police Powers and Procedure, Cmd 3297 (London, HMSO, 1929) had earlier endorsed the right of silence. 6  Criminal Evidence (Northern Ireland) Order 1988. 7  See H Quirk, The Rise and Fall of the Right of Silence (Abingdon, Routledge, 2016) ch 6.

76  Hannah Quirk The CJPOA was a bitterly contested piece of legislation, but the protests against it dissipated quickly and, once the case law was fairly settled, its effects received surprisingly little scholarly attention until recently.8 The CJPOA allows the judge and prosecution to comment upon, and the jury to draw such inferences as appear proper from: —— The failure of the accused to mention when questioned or charged any fact relied on in his or her defence which, in the circumstances existing at the time, the accused could reasonably have been expected to mention; —— A defendant choosing not to give evidence or, having been sworn, refusing to answer any question without good cause; —— The failure of the accused when questioned to account for the presence of any object, substance or mark about his or her person; —— The failure of the accused when questioned to account for his or her presence at a particular place.9 The right of silence illustrates many of the themes of this collection. Sir Rupert Cross mockingly described the right of silence as ‘a sacred cow’10 and the first s­ection explores why it was held as almost an article of faith by many. What was not recognised, however, was that the symbolic value of the right of silence had become almost as great to its critics as to its supporters. The second part of the article examines why the police and some politicians were so determined that the right of silence should be sacrificed on the altar of crime control—even though the evidence available before the CJPOA was enacted showed that almost half of the few suspects who made no comment interviews were convicted anyway.11 The pressure to curtail the right was part of a sustained campaign begun by the police in the 1970s at a time of rapidly rising crime rates and social unrest. It then became part of a backlash—driven by the police, certain politicians and senior members of the judiciary—against the increased protections given to suspects by the Police and Criminal Evidence Act 1984 (PACE), in particular legal advice at the police station. The curtailment of the right of silence was a significant, unexamined12 component of the ‘culture of ­control’13 that developed in the 1990s; criminal justice policy characterised by aggressive law enforcement measures, harsher sentencing policies and populist, punitive rhetoric. The CJPOA was the first example of ‘re-balancing’ the criminal justice system against the ‘criminals’ who were allegedly exploiting its protections. This false calibration, used repeatedly throughout the 1990s and early 2000s, marked a new development in fair trial provisions. Previous incursions into suspects’ rights or extensions of

8  S Easton, Silence and Confessions: The Suspect as the Source of Evidence (Basingstoke, Palgrave MacMillan, 2014); A Owusu-Bempah, Defendant Participation in the Criminal Process (Abingdon, Routledge, 2017) ch 6; Quirk, ibid. 9  Criminal Justice and Public Order Act 1994, ss 34–37. 10  ARN Cross, ‘The Right to Silence and the Presumption of Innocence: Sacred Cows or Safeguards of Liberty’ (1970–71) 11 Journal of the Society of Public Teachers Law 66. 11  R Leng, The Right to Silence in Police Interrogation: A Study of Some of the Issues Underlying the Debate, RCCJ Research Study (London, HMSO, 1993). 12  Quirk (n 7) ch 6. 13  D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Oxford, Oxford University Press, 2001).

Right of Silence in England and Wales 77 police powers had been presented as crime-fighting measures. The CJPOA was the first time that a decision had been taken to remove safeguards from the accused on the basis that they had too many rights. This was a significant ­ conceptual adjustment that has facilitated further, previously inconceivable, encroachments on the protections for suspects. The anaemic response of the European Court of Human Rights (ECtHR) contrasts sharply with the enthusiastic expansion of the law by the domestic courts to a level unimaginable in 1994. The chapter concludes that there is no evidence that the Act brought about the direct consequences— positive or n ­ egative—that either side had predicted. It is argued rather that, whilst the effects have been limited in terms of individual fairness, they have led to a significant cultural change in the conduct of the investigation and trial process which has diminished the overall fairness of the system. I.  A SACRED COW?

It has been claimed that the maxim nemo tenetur seipsum accusare (‘no man is bound to accuse himself’) ‘goes back to the very origins of Western legal tradition’.14 There is a Talmudic precept ein adam meissim atsmo rasha (‘no man shall show himself as wicked’)15 and in England there was held to be a common law ‘ancient and deep-rooted privilege against self-incrimination’.16 The right of silence and the privilege against self-incrimination are ‘two closely related but discrete rights.’17 The terms may be used interchangeably—which the ECtHR tends to do—but there are ­significant differences between them. The right of silence applies only to verbal communication by the accused. The extent of the privilege is ‘problematic’.18 It is restricted to incriminating evidence but it applies also to witnesses and extends beyond testimony to include, for example, documentation. By the late twentieth century, the privilege against self-incrimination was generally regarded—at least in theory—as an essential feature of a fair criminal justice system. It is protected in no fewer than 48 national constitutions19 and enshrined in the criminal codes of other countries. It is included in every international human rights document after the ­European Convention on Human Rights (ECHR),20 including the 1966 I­ nternational Covenant on Civil and Political Rights and the 1969 American ­Convention on Human Rights. 14 

Jalloh v Germany [GC] (2007) 44 EHRR 32, 702 per Judge Zupanĉiĉ. Cited in J Jackson and S Summers, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge, Cambridge University Press, 2012) 241. 16  R v Director of the Serious Fraud Office ex parte Smith [1993] AC 1, 42. 17  A Jennings, ‘Self-incrimination and the Right to Silence’ in K Starmer, M Strange and Q Whitaker (eds), Criminal Justice and Police Powers (Oxford, Oxford University Press, 2001) 207; The focus of this chapter is the right of silence. For a recent account of the privilege against self-incrimination, see A Choo, The Privilege Against Self-Incrimination (Oxford, Hart Publishing, 2013). 18  R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All ER 403. 19  MC Bassiouni, ‘Human Rights in the Context of Criminal Justice: Identifying International ­Procedural Protections in National Constitutions’ (1992–93) 3 Duke Journal of Comparative and I­ nternational Law 235, 265, fn 138. 20  P Roberts and A Zuckerman, Criminal Evidence, 2nd edn (Oxford, Oxford University Press, 2010) 555. It is not in the main text of the African Charter on Human and Peoples’ Rights but it is included in the associated (non-binding) Principles and Guidelines (ss M, N & O). 15 

78  Hannah Quirk It is ­specified in the founding statutes of the International Criminal Court, the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda and the special court for Sierra Leone.21 The case for the right of silence can be made on the grounds of both its symbolic association with the presumption of innocence and the instrumental protection22 it offers individuals and the courts from false confessions made in the ‘disorientating and intimidating’23 situation of police custody. It may encourage the police to seek evidence from other sources, improving the robustness of any conviction, and it makes clear the prohibition on torture (‘essential in preserving the distinction between mind and body on which human freedom depends’).24 The right of silence is an expression of Viscount Sankey’s ‘golden thread’ that runs ‘[t]hroughout the web of the English Criminal Law … that it is the duty of the prosecution to prove the prisoner’s guilt’,25 notwithstanding any answer by the defendant. Allowing adverse inferences from a defendant’s failure to answer questions ‘may well have a strong impact on the presumption of innocence, by effectively reducing the prosecution’s burden in matters of proof’.26 The criminal justice system is founded on the notion that the conviction of the guilty is a greater wrong than the acquittal of the innocent.27 Many of the arguments against the right of silence assume the guilt of the accused and ignore the presumption of innocence, such as Bentham’s ‘fox hunter’s reason’ (that it is only sporting to give the quarry a chance to escape) and his ‘old woman’s reason’ (‘tis hard upon a man to be obliged to ‘criminate himself’). This ignores the need for compensatory measures in an adversarial system to ensure that suspects have ‘­equality of arms’ against the prosecution.28 The contemporary ‘re-balancing’ argument, (­discussed below) fails for the same reasons. The equating of silence with guilt makes a ­number of untested assumptions about the ‘natural’ behaviour of suspects in the alien ­environment of the police station or courtroom. There are many reasons that may influence an individual’s decision to answer questions or to testify: they may not know the answer (if they are innocent, or cannot remember what happened due to the passage of time, substance misuse or intellectual disability); they may not want to reply (if they are hostile to the police due to their arrest or for personal or political reasons—in a much quoted headline, an Irish Republican newspaper advised its readers, ‘Whatever you say, say nothing’);29 or they may fear the consequences

21  International Criminal Tribunal for former Yugoslavia (ICTY) Statute Art 21(4)(g); International Criminal Tribunal for Rwanda (ICTR) Statute Art 20(4)(g); ICTR RPE 42A(iii); and The Special Court for Sierra Leone (SCSL) Art 17(4). 22  S Greer, ‘The Right to Silence: A Review of the Current Debate’ (1990) 53 709, 712. 23  Report of the Royal Commission on Criminal Justice (n 5) 52. 24  LM Seidman, Silence and Freedom (Redwood City CA, Stanford University Press, 2007). 25  Woolmington v DPP [1935] AC 462, 7. See further Farmer in this volume, ch 4. 26  A Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241, 256. 27  The 10:1 ratio mentioned by Holroyd J in R v Hobson (1823) 1 Lew CC 261 is most commonly cited. 28 J McEwan, Evidence and the Adversarial Process—The Modern Law, 2nd edn (Oxford, Hart ­Publishing, 1998) 2 f. 29  An Phoblacht (6 Feb 1986).

Right of Silence in England and Wales 79 of speaking, whether for themselves or others. Defendants may also have physical, mental, linguistic or c­ ultural difficulties in communicating. Such factors may have no bearing on their guilt, but allowing inferences to be drawn may make a conviction more likely (although some practitioners argue that jurors drew such inferences anyway). There are conflicting accounts of the origins of the right of silence in England. It was frequently appealed to as part of the birth right of every English citizen, wrapped up in the legend of defiance against the oppressive, arbitrary powers of the seventeenth century courts of Star Chamber and High Commission.30 Many of the Puritan dissenters interrogated and tortured by the Star Chamber left for America and the right appeared in state constitutions and as the Fifth Amendment to the US Constitution. For many of its supporters, the right of silence ‘is thus bound up ­historically with a rejection of authoritarian, “foreign”, methods of criminal investigation, and consequently stands for the victory of freedom and justice over ­tyranny and despotism.’31 This view has great emotional resonance, but historians now favour Langbein’s32 more prosaic account.33 He dates the emergence of the right of silence to the rise of adversary criminal procedure at the end of the eighteenth century, in particular the transition from the ‘accused speaks’ system of trial to one of ‘testing the prosecution’. This was made possible by the involvement of lawyers in trial preparation and the examination of witnesses.34 Before the Criminal Evidence Act 1898, defendants were forbidden from testifying and the facility to refuse to answer a judge’s questions was merely ‘a right to commit suicide’.35 In this debate, however, historical accuracy as to the origins of the right of silence is of less importance to the protagonists (as Lord Gardiner observed, ‘a noble principle often transcends its origins’).36 As I have argued: Defenders of the right tend to claim its long heritage as a protection against state oppression and coercive questioning; its opponents point to its obscure origins and obsolete concerns as a reason for regarding the right as rather like the appendix—a redundant evolutionary remnant that is occasionally troublesome, and can be removed without ill effects.37

Many of the pronouncements on the right of silence have been mocked for ­hyperbole. It is noteworthy, however, how often claims about the right speak to a higher goal— in particular a sense of national identity or fair play. Lord Devlin considered that

30  LW Levy, Origins of the Fifth Amendment: the Right against Self-Incrimination (Oxford, Oxford University Press, 1968). 31  Roberts and Zuckerman (n 20) 538. 32  JH Langbein, ‘The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries’ in RH Helmholz, CM Gray and AW Alschuler (eds), The Privilege Against Self-Incrimination: Its Origins and Development (Chicago, University of Chicago Press, 1997). 33 P McInerney, ‘The Privilege against Self-Incrimination from Early Origins to Judges’ Rules: Challenging the “Orthodox View”’ (2014) 18 International Journal of Evidence and Proof 101, 108 f. 34  JH Langbein, ‘The Historical Origins of the Privilege against Self-Incrimination at Common Law’ (1994) 92 Michigan Law Review 1047. 35  AW Alschuler, ‘A Peculiar Privilege in Historical Perspective: The Right to Remain Silent’ (1996) 94 Michigan Law Review 2625, 2654. 36  HL Deb 14 February 1973, vol 338, cols 1567–68. 37  Quirk (n 7) 14.

80  Hannah Quirk ‘[t]he law on this matter reflects the natural thought of England.’38 The Northern Territory Law Reform Committee39 noted that ‘every Australian has a right to privacy and independence and can tell any officious enquirer to jump in the lake’. The US Supreme Court held that the Miranda decision (that requires suspects should be told of their right to remain silent) had become ‘embedded in routine police practice to the point where the warnings have become part of our national culture’.40 The US Supreme Court has made it clear that the right of silence is more than merely an evidential rule: It reflects many of our fundamental values and most noble aspirations; our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or ­contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load’ … our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life’ … our distrust of ­self-deprecatory statement; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent’.41

The ECHR does not mention the privilege against self-incrimination explicitly (‘presumably because the Convention was something of an international human right [s] law prototype and the privilege was overlooked’).42 The Committee of Experts charged with considering the differences between the international and European treaties concluded that the privilege was the ‘very essence’ of a fair trial.43 A g­ eneral right of silence was first recognised as the negative counterpart of the freedom of expression protected under Article 10,44 but subsequent consideration has been under the fair trial provisions of Article 6. The first major ECtHR decision relating to the privilege against self-incrimination in Funke v France45 and expanded in Saunders v UK46 ‘was an important symbolic statement of the importance of the right across European jurisdictions straddling both common law and civil law ­traditions’.47 It was held in Saunders v UK that: … the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.

38 

P Devlin, Easing the Passing: The Trial of Doctor John Bodkin Adams (London, Faber, 1986) 176. Territory Law Reform Committee, Report on the Right to Silence (Northern Territory Law Reform Committee, 2002) 19. 40  Dickerson v US 530 US 428 (2000). 41  Murphy v Waterfront Commission 378 US 52, 55 (1964). 42  Roberts and Zuckerman (n 20) 555. 43 Council of Europe, Report of the Committee of Experts to the Committee of Ministers on the ­Problems arising from the Co-Existence of the U.N. Covenants on Human Rights and the European Convention on Human Rights (Strasbourg, Council of Europe, 1970) [141] (vi). 44  K v Austria, 2 June 1993, Series A no 255-B. 45  Funke v France (1993) 16 EHRR 297. 46  Saunders v UK [GC] (1997) 23 EHRR 313. 47  J Jackson, ‘Re-conceptualising the Right of Silence as an Effective Fair Trial Standard’ (2009) 58 International and Comparative Law Quarterly 835. 39  Northern

Right of Silence in England and Wales 81 Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6(2) of the Convention.48

It should be remembered that, despite the hyperbole, the right of silence did not prevent the notorious miscarriages of justice, such as the Guildford Four and ­ ­Birmingham Six, which resulted in part from false confessions. Nevertheless, its symbolic value had been recognised as a reason for retaining the right of silence;49 what has not been explored previously was how this symbolism was as powerful a motivator for its curtailment—what I term Symbolic Abolitionism.50 II.  A SACRIFICIAL LAMB?

The right of silence always had its detractors. In the nineteenth century, Jeremy Bentham wrote that if a team of criminals was invited to design a legal system in its own interests, the right of silence would be the first feature it would include for ‘[i]nnocence never takes advantage of it; innocence claims the right of speaking, as guilt invokes the privilege of silence.’51 Lord Mustill noted that, ‘it is clear that statutory interference with the right is almost as old as the right itself’.52 Encroachments on the right had been made for particular types of offences (such as fraud and serious financial misconduct);53 certain situations (such as requiring the keeper of a vehicle to confirm who was driving a car when it was recorded speeding);54 some defences (alibi notices55 and expert evidence)56 must be served in advance of trial; and exemptions were created in response to war or terrorism.57 These exceptions were justified because of the difficulties for the prosecution in obtaining particular types of evidence and in dealing with ‘ambush defences’. So-called ‘reverse onus’ provisions make it difficult for a defendant not to testify. In summary proceedings,

48 

Saunders (n 46) [68] (footnotes omitted). D Dixon, ‘Politics, Research and Symbolism in Criminal Justice: The Right to Silence and the Police and Criminal Evidence Act 1984’ (1991) 20 Anglo-American Law Review 23; Greer, ‘The Right to Silence, Defence Disclosure and Confession Evidence’ (1994) 21 Journal of Law and Society 102. 50  Greer divides views on the right of silence into ‘utilitarian abolitionism’, ‘exchange abolitionism’, ‘instrumental retentionism’ and ‘symbolic retentionism’. He mentions in a footnote that ‘[e]xchange ­abolitionism could also be considered a form of symbolic abolitionism’ but does not expand the point, see Greer (n 22) 712. 51  J Bentham, A Treatise on Judicial Evidence (edited by E Dumont) (London, Baldwin, Craddock and Joy, 1825). 52  R v Director of the Serious Fraud Office ex parte Smith [1993] AC 1, 40. 53  See, eg, Companies Act 1985, s 447; Insolvency Act 1986, s 219; Financial Services Act 1986, s 105; Banking Act 1987, s 41; and Criminal Justice Act 1987, s 2. 54  Road Traffic Act 1988, s 172(2)(a). 55  Criminal Justice Act 1967, s 11. 56  Police and Criminal Evidence Act 1984, s 81. 57  See C Walker, The Anti-Terrorism Legislation, 3rd edn (Oxford, Oxford University Press, 2014). 49 

82  Hannah Quirk ‘the burden of proving the exception, exemption, proviso, excuse or qualification shall be on [the defendant]’.58 One survey59 found that 40 per cent of offences triable in the Crown Court put a legal burden (where the statute provides that ‘it is a defence to prove’) or persuasive burden on the defendant (where (part of) the offence is proved unless the accused can raise doubt, such as a lawful excuse for possessing a bladed article in public). Judges did not share the opposition of the barristers and solicitors to restrictions on the right of silence.60 The Court of Criminal Appeal made clear in the first case after the Criminal Evidence Act 1898 allowed defendants to testify, that the prohibition on prosecutorial comment on silence did not extend to the bench.61 The case law on what comment could be made from failure to answer police questions or to testify was conflicting.62 Judges could not direct the jury that the accused’s silence was evidence of guilt63 or detract from the proper direction by saying an innocent man was likely to answer questions,64 but they could ‘remind’ the jury if a defence was produced for the first time at trial.65 Some senior judges repeatedly expressed the view that forbidding juries and magistrates to draw inferences was contrary to common sense and gave an unnecessary advantage to the guilty without helping the innocent.66 These calls became more vociferous following PACE, with Lord Chief Justice Lane stating that ‘the balance of fairness between prosecution and defence cannot be maintained unless proper comment is permitted on the defendant’s silence in such circumstances’.67 Indeed Lord Lane was so outspoken on the issue that he had to recuse himself from the appeal of the Winchester Three,68 a case based in part on comments the retired Master of the Rolls, Lord Denning, had made to Channel 4 News during their trial about the right of silence.69 As Greer concluded: The reality is that ‘the law’ is vague and judges have interpreted it more or less restrictively according to their personal assessment of the proper balance between two conflicting considerations: (a) the view that in certain circumstances even the silence of suspects under caution may have some probative value; and (b) the basic assumption of accusatorial

58 

Magistrates’ Courts Act 1980, s 101. Blake and A Ashworth, ‘The Presumption of Innocence in English Criminal Law’ [1996] Crim LR 306. 60  Report of the Royal Commission on Criminal Justice (n 5) 52. 61  R v Rhodes [1899] 1 QB 77, 83. 62  R v Gilbert (1977) 66 Cr App R 237, 244. 63  R v Leckey (Dennis Edmund) [1944] KB 80; (1944) 29 Cr App R 128. 64  R v Sullivan (1966) 51 Cr App R 102. 65  R v Gilbert (n 62). 66  R v Gilbert (n 62) 245; R v Sparrow [1973] 1 WLR 488; R v Mutch [1973] 1 All ER 178. 67  R v Alladice (1988) 87 Cr App R 380, 385. See also AAS Zuckerman, The Principles of Criminal Evidence (Oxford, Clarendon, 1989) 327; M Zander, ‘You Have No Right to Remain Silent: Abolition of the Privilege against Self-Incrimination in England’ (1996) 40 Saint Louis University Law Journal 659, 672. 68  R v McCann, Cullen & Shanahan (1991) 92 Cr App R 239. 69 C Dyer, The Guardian (London, 28 Apr 1990). Other extra-judicial comments included Lord ­Denning, ‘Free Justice from Silence’ The Sunday Times (London, 20 Sept 1987); Lord Chief Justice Taylor, ‘Tom Sargant Memorial Lecture’ (1994) 144 New Law Journal 125. The Director of Public Prosecutions (Sir Thomas Hetherington QC) expressed similar views in a personal capacity in F Gibb, ‘New DPP Faces Uphill Fight’ The Times (London, 2 Oct 1987). 59 M

Right of Silence in England and Wales 83 s­ ystems that the accuser should be obliged to prove his case without any assistance from the accused.70

The CLRC Report71 ‘provide[d] the “law and order” lobby with one of its most powerful intellectual supports’72 in curtailing the right of silence. The CLRC started from the premise that ‘the object of a criminal trial should be to find out if the accused is guilty’.73 A wrongful acquittal was regarded as an equivalent harm to a wrongful conviction, with ‘fairness’ being due to both sides.74 It did not commission any research, but referred to a ‘large and increasing class of sophisticated professional criminals’ who were exploiting the system to evade justice. The CLRC argued that the historic disadvantages faced by the defence no longer existed and that ‘the law of evidence should now be less tender to criminals generally’.75 The furious response to the Report meant that its proposals were ‘strangled at birth’,76 but ‘the mode of thought exemplified by the proposals [had not] been eradicated’.77 The Report gave credence to a previously almost unthinkable idea and led to the right being curtailed in Singapore78 and Malaysia.79 The Criminal Evidence (Northern Ireland) Order 1988 and CJPOA also followed its draft legislation. The police were the primary force in campaigning for the right of silence to be curtailed. They acted as ‘moral entrepreneurs’,80 actively lobbying the Conservative Party for legislation that advanced their ‘crime control’ interests.81 Sir Robert Mark (Commissioner of the Metropolitan Police, 1972–1977) was ‘[t]he first to realise the potential political role which could be played by Chief Constables’.82 He took the view that, post-war, the role of the police had changed from law enforcement to ‘contributors in the moulding of public opinion and legislation’.83 He and his successors sought to change views in relation to the right of silence. Sir Robert raised the subject in the Dimbleby Lecture in 197384 and the deliberations of the RCCP were ‘accompanied by a concerted police campaign for further powers including for the curtailment of the right of silence’.85 Whilst the problems of rising crime

70 

Greer (n 22) 712. Criminal Law Revision Committee Report (n 4). 72  L Christian, Policing by Coercion: the Police and Criminal Evidence Bill (Greater London Council, Police Committee Support Unit, 1983) 10. 73  Criminal Law Revision Committee Report (n 4) 14. 74  Criminal Law Revision Committee Report (n 4) 27. 75  Criminal Law Revision Committee Report (n 4) 21. 76  Report of the Royal Commission on Criminal Procedure (n 5) 9. 77  R Thoresby, ‘Is Due Process Fleeing Its English Home?’ (1973) 59 American Bar Association Journal 1046, 1047. 78  Criminal Procedure Code [Amendment] Act No 10 of 1976. 79  Criminal Procedure Code [Amendment and Extension] Act 1976. 80  Thoresby (n 77) 1047. 81  Thoresby (n 77) 1047; R Reiner, The Politics of the Police, 4th edn (Oxford, Oxford University Press, 2010) 89. 82  Christian (n 72) 9. 83  Sir Robert Mark, foreword to TA Critchley, History of the Police in England and Wales, 2nd edn (London, Constable, 1978) xiii. 84  Sir Robert Mark, ‘Minority Verdict’ (The 1973 Dimbleby Lecture), BBC Books (1973), available www.sirrobertmark.co.uk/the-dimbleby-lecture/ (last accessed 15 September 2017). 85 A Friend and A Metcalf, Slump City: the Politics of Mass Unemployment (London, Pluto Press 1981) 165. 71 

84  Hannah Quirk and ­terrorism were well demonstrated—police expenditure and recorded crime rose inexorably between the 1960s and early 1990s—the claims made by opponents of the right of silence were not supported by evidence. Dworkin argued that the ­criminal procedure rules were being used as a scapegoat for the increase in crime, diverting attention from its social causes.86 The campaign against the right of silence gained momentum after PACE introduced a package of reforms that balanced increased powers for the police with improved protections for suspects. Although now generally regarded as a measure that has transformed the treatment of suspects in police custody, at the time even the rightwing newspaper, the Daily Mail,87 took the view that the proposals gave too much power to the police. Nevertheless, the backlash against the protections provided by PACE was immediate. The broad thrust of the criticisms was that improvements in the investigation and trial process had rendered the right of silence redundant as a protection and an unfair handicap to the police and prosecution. The police directly attributed a fall in the number of crimes ‘cleared up’ in 1986 to the effects of PACE, in particular the presence of legal representatives.88 This re-balancing exercise was based upon a flawed premise as the RCCP had included the right of silence in the compromise it struck between the rights of suspects and the needs of the police. The critics also failed to consider the effectiveness of the PACE measures in practice. Whereas the increased police powers were utilised, less than a third of suspects was legally represented in the police station when the changes were mooted89 and take up rates are still below 50 per cent.90 The quality and adversarialism of this representation had been criticised repeatedly.91 Nevertheless, within 18 months of PACE coming into effect, the Home Secretary announced plans to re-examine the right of silence. As Zander argued, ‘[t]his was distinctly odd … The signs were that the police had persuaded the Home Secretary to reopen the topic’.92 The right of silence was curtailed unexpectedly in Northern Ireland by the Criminal Evidence (Northern Ireland) Order 1988.93 It was justified in terms of removing the right from those involved in terrorism and other serious violence, particularly ­racketeering94 but extended to all offences. Whilst the security situation had worsened in 1987, the ‘emergency provisions’ meant that suspects in Northern ­Ireland already had fewer protections than those in England, in particular, access to a 86 

The Times (London, 4 Dec 1972). ‘Too Much Power for the Police’ Daily Mail (London, 15 Mar 1983) 6. Home Office, Report of the Working Group on the Right to Silence (London, HMSO, 1989) 17. 89  D Brown, Detention at the Police Station under the Police and Criminal Evidence Act 1984, Home Office Research Study No 104 (London, HMSO, 1989). 90  P Pleasence, V Kemp and NJ Balmer, ‘The Justice Lottery? Police Station Advice 25 Years on from PACE’ (2011) Crim LR 3. 91  J Baldwin, The Role of Legal Representatives at the Police Station, RCCJ Research Study (London, HMSO, 1993); L Bridges and S Choongh, Improving Police Station Legal Advice (London, Law Society and Legal Aid Board, 1998); M McConville, J Hodgson, L Bridges and A Pavlovic, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford, Oxford University Press, 1994). 92  Zander (n 67). 93 See JD Jackson, ‘Recent Developments in Criminal Evidence’ (1989) 40 Northern Ireland Legal Quarterly 26. 94  HC Deb 8 Nov 1988, vol 140, cols 183–187 (Tom King). 87  88 

Right of Silence in England and Wales 85 s­ olicitor was routinely denied. The proposal emerged from comments made to the independent review of the counter-terrorism legislation95 by the police about an increase in suspects remaining silent and the difficulty in obtaining convictions. Although the S­ ecretary of State for Northern Ireland claimed that the G ­ overnment ‘had before them a formidable body of persuasive evidence for change’,96 the changes were based on unpublished statistics provided by the police. The Government’s own figures showed a conviction rate of over 90 per cent of those charged during the 1980s.97 The Government had to suspend its plans to introduce corresponding legislation for England and Wales following concerns about miscarriages of justice. It established the RCCJ on the day the convictions of the Birmingham Six were quashed. It was thus a surprise to many, and regarded as a success for the police and the Crown Prosecution Service,98 that the RCCJ’s terms of reference included consideration of whether changes were necessary to the right of silence. The RCCJ was given only two years to report. It commissioned a number of research studies that did not support curtailing the right of silence and highlighted deficiencies in legal ­representation.99 It summarised the available research findings as follows: The right of silence is exercised in only a minority of cases. It may tend to be exercised more often in the more serious cases and where legal advice is given. There is no evidence which shows conclusively that silence is used disproportionately by professional criminals. Nor is there evidence to support the belief that silence in the police station leads to improved chances of an acquittal. Most of those who are silent in the police station either plead guilty later or are subsequently found guilty.100

The RCCJ, unlike the RCCP, considered the right of silence only in instrumental terms of protecting the vulnerable.101 It did not refer to the ECHR or examine the effects of the Northern Ireland Order. It interpreted its terms of reference in a way that afforded equal weight to the conviction of the guilty, the acquittal of the innocent and the efficient use of resources. The RCCJ recommended retaining the right of silence at the police station but that, once the prosecution case had been disclosed fully, defendants should be required to answer any charges made against them or risk adverse comment at trial. It also recommended that the prosecution and the judge should be allowed to comment upon any explanation advanced at trial where the defendant does not give evidence. David Garland has examined how governments reacted to their limited ability to reduce crime by ‘acting out’ through aggressive law enforcement measures and

95 Colville Report, Review of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987, Cm 1115 (London, HMSO, 1987) recommendation 67. 96  HC Deb 8 Nov 1988, vol 140, col 184 (Tom King). 97  HC Deb 8 Nov 1988, vol 140, col 215 (Seamus Mallon). 98  R Leng, ‘The Right to Silence Reformed: A Re-Appraisal of the Royal Commission’s Influence’ (2001) 6 Journal of Civil Liberties 107, 108. 99  Baldwin (n 91); Leng (n 11); M Zander and P Henderson, Crown Court Study, RCCJ Research Study (London, HMSO, 1993); M McConville and J Hodgson, Custodial Legal Advice and the Right to Silence, RCCJ Research Study (London, HMSO, 1993). 100  Report of the Royal Commission on Criminal Justice (n 5) 53 f (footnotes omitted). 101  Zander (n 67) 667.

86  Hannah Quirk harsher sentencing policies.102 Criminal evidence rules have played a significant and under-examined role in the spread of this ‘culture of control’. By the time the RCCJ reported, ‘there was a cross-party search for punitive policies, and particularly punitive rhetoric, that could be used to convince an electorate to cast their vote for those who could be trusted to be toughest on crime’.103 The Government decided to override the view of the RCCJ and to legislate to curtail the right of silence. As Zander noted, ‘[t]he government relied on what the police told them more than what the empirical evidence showed, because when one got down to the statistics it did not support the government’s position’.104 At the 1993 Conservative Party conference, Home Secretary, Michael Howard, announced his 27 point ‘crackdown on crime’ that he claimed would correct the 30-year in-built bias in favour of the criminal against the public. He declared: The so-called right to silence is ruthlessly exploited by terrorists. What fools they must think we are. It’s time to call a halt to this charade. The so-called right to silence will be abolished. The innocent have nothing to hide and that is exactly the point the prosecution will be able to make in future.105

III.  A TROJAN HORSE?

Given how few suspects made no comment or did not testify, the CJPOA was never likely to have the seismic effects, positive or negative, that were predicted when it was enacted. Whilst more suspects now answer police questions and most defendants testify, charge and conviction rates have not altered noticeably, and no miscarriage of justice has been directly attributed to the changes.106 The real mischief of the Act has arguably been how it has altered the prevailing climate in which suspects are investigated and tried. This may be seen both in the way in which the courts have interpreted the law, developing it to an extent inconceivable in 1994, and in subsequent legislative and administrative innovations that further extended the effects of the CJPOA, discussed below. Despite Lord Bingham’s assertion that, since the provisions ‘restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice they should not be construed more widely than the statutory language requires’,107 the prevailing view of the Court of Appeal has been that it will not ­permit a ‘coach and horses’ to be driven through the provisions.108 Whilst section 38(6)

102 

Garland (n 13); Quirk (n 7) ch 6. Newburn and T Jones, ‘The Convergence of US and UK Crime Control Policy: Exploring S­ ubstance and Process’ in T Newburn and R Sparks (eds), Criminal Justice and Political Cultures (­London, Willan, 2004) 188. 104  Zander (n 67) 675. 105 A Travis, ‘Right to Silence Abolished in Crackdown on Crime’ The Guardian (London, 7 Oct 1993). 106  T Bucke, R Street and D Brown, Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994 (London, HMSO, 2000) 66 and 110. 107  R v Bowden [1999] 1 WLR 823, 2 Cr App R 176 [181]. 108  R v Cowan, R v Gayle, and R v Ricciardi [1995] 3 WLR 818, [1995] 4 All ER 939. 103 T

Right of Silence in England and Wales 87 of the CJPOA preserves the right of the court ‘to exclude evidence (whether by preventing questions being put or otherwise) at its discretion,’ this will happen only in ‘the most exceptional case’.109 Some safeguards have been developed. The judge must direct the jury that: the burden of proof remains on the prosecution; that the defendant has a right to remain silent; that an inference from a failure to give evidence cannot, of itself, prove guilt; that the prosecution must have established a prima facie case before any inference can be drawn; and that the jury may draw an inference if it concludes that silence can only sensibly be attributed to the defendant having no answer, or none that would withstand cross-examination.110 There have been some interpretations of the CJPOA that are favourable to the defendant. These include: the requirement to consider ‘the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time’;111 examples where inferences should not be left to the jury, such as following an unlawful arrest or insufficient disclosure of the police case;112 or withdrawing inferences from failure to testify for reasons other than damage to health.113 In practice, however, such expressions have been honoured more in the breach than in observance. Overall, the Court has shown itself ‘so committed to crime control that at almost every turn— even when an interpretation favourable to the defence is plausible—the legislation has been construed in the prosecution’s favour.114 A.  Section 35 of the CJPOA The submission that ‘section 35 is so at variance with established principle that its use should be reduced and marginalised as far as possible’, was rejected in the first appeal to test the provisions and confirmed by the House of Lords.115 Inferences under section 35 can elevate a prima facie case to a finding of guilt. Unlike section 34 there are no triggering conditions for section 35: Consequently, the inferences may go straight to the issue of guilt rather than the likelihood of any specific facts …, s 35 as a whole promotes the assumption that an innocent defendant would be prepared to assert his innocence. This link which s 35 maintains between silence and guilt has been exacerbated by an expansive interpretation of the provision in the Court of Appeal and a judicial reluctance to interfere with its operation by reference to asserted excuses. The result is a potentially pervasive use of inferences connecting incourt silence to guilt, creating a danger that some of these inferences might be incorrect.116

109 

R v Condron (Karen) and Condron (William) [1997] 1 Cr App R 185, 196. R v Cowan, R v Gayle, and R v Ricciardi (n 108). 111  R v Argent [1997] 2 Cr App R 27, 33. 112  R v Roble [1997] Crim LR 449. 113  R v Dixon [2013] EWCA Crim 465, [2014] 1 WLR 525; R v Tabbakh [2009] EWCA Crim 464. 114  R Pattenden, ‘Silence: Lord Taylor’s Legacy’ (1998) 2 International Journal of Evidence and Proof 141, 164. 115  R v Cowan, R v Gayle, and R v Ricciardi (n 108); R v Becouarn [2005] 1 WLR 2589. 116  A Owusu-Bempah, ‘Judging the Desirability of a Defendant’s Evidence: An Unfortunate Approach to s 35(1)(b) of the Criminal Justice and Public Order Act 1994’ (2011) Crim LR 690, 691 (footnotes omitted). 110 

88  Hannah Quirk As section 35 contains no scope for limiting its interpretation other than ‘where the mental or physical condition of the accused makes it undesirable for him to give evidence,’117 the provisions should be of otherwise general application.118 It is insufficient that the defendant merely suffers from some physical or mental condition, or that the condition may cause some difficulty in giving evidence. As the Court of Appeal has put it: Extreme difficulty in giving evidence is quite common among defendants and other w ­ itnesses who give evidence in criminal trials. That does not in itself make it ‘undesirable’ that that person should give evidence.119

Most of the examples given where inferences should not be drawn, such as triggering an epileptic fit or a florid episode of schizophrenia,120 relate to the personal effects of testifying rather than on the fairness of the trial. Inferences from failure to testify have been permitted in cases such as where the defendant had profound intellectual disabilities,121 was subsequently sentenced under the Mental Health Act 1983,122 and was arguing diminished responsibility with no recollection of the crime.123 The Court has been anxious that section 35(1) ‘should not be operated to give too wide a loophole’124 as difficulties in giving evidence do ‘not justify a comprehensive failure to give evidence’.125 The language used illustrates the Court’s focus on the potential deviousness of defendants rather than showing any understanding that those accused may be afraid, trying not to damage their defence, or—as is still their right—wanting to put the prosecution to proof. This is demonstrated by other comments such as not allowing a defendant to ‘shelter behind the suggestion that there may be some compelling reason for his failure to give evidence other than fear of cross-examination’126 and ‘flushing out innocence at an early stage’.127 The safeguard that defendants had to be at least 14 years of age before inferences could be drawn from failure to testify was repealed in 1998.128 There now needs to be some additional evidence or exceptional factors beyond youth to justify withdrawing inferences from the jury.129 There has been no apparent consideration of the additional measures that should be afforded to young defendants following V and T v UK130 to assist their understanding of, and participation in, proceedings and to prevent their avoidable intimidation, humiliation or distress.131

117 

CJPOA 1994, s 35(1)(b). Owusu-Bempah (n 116) 691. R v Ensor [2009] EWCA Crim 2519, 262. 120  R v Friend [1997] 2 Cr App R 231. 121  R v Dixon (n 113). 122  R v Charisma [2009] EWCA Crim 2345. 123  R v Barry (Adrian) [2010] 1 Cr App R 32, CA. 124  R v Lee (John) Crown Court (Harrow) 17 April 1998, [1998] CLY 906. 125  DPP v Kavanagh [2005] EWHC 820 (Admin) [18] (emphasis added). 126  R v Becouarn (n 115) [24] (emphasis added). 127  R v Hoare and R v Pierce [2004] EWCA Crim 784, [2005] 1 WLR 1804, [2005] 1 Cr App R 22 [53]–[54] (emphasis added). 128  Crime and Disorder Act 1998, s 35. 129  Owusu-Bempah (n 116) 690. 130  V and T v UK [GC] (1999) 30 EHRR 121. 131  R v AC [2001] EWCA Crim 713 [40]–[41]; R v Dixon (n 113) [57]. 118  119 

Right of Silence in England and Wales 89 Some of the judgments in this area appear unfair, if not directly discriminatory. Muslim women who refuse to remove their niqabs, will not be allowed to give evidence, yet adverse inferences may be drawn from this.132 In the case of R v G ­ ledhill,133 the defendant, who was suffering from Battered Women’s Syndrome, did not give evidence, as this would inculpate her abusive co-accused and she feared ‘I could be at the bottom of the block tomorrow morning’.134 The Recorder concluded: … one returns to the position time and time again that her position is a difficult one, not an impossible one … One has a degree of personal sympathy with anybody in those circumstances, but the fact that she would find it undesirable, it seems to me, is not the test at all and I have to take a much more objective view. The Act is designed to prevent those who, by reason of their physical or mental condition, would not do themselves justice from going into the witness box. It does not extend, in my judgment, to excuse those who would find it difficult and would rather not face cross-examination and the ordeal of giving evidence.

Those with disabilities that inhibit their understanding, expression or communication may face inferences if they do not testify. Whilst legally such cases are regarded as fair, there is a danger that they may not appear so to those involved in or ­witnessing them. The details in the case of R v Dixon135 are striking. The defendant was convicted of murder on the basis of joint enterprise. He had a combination of difficulties including hyperkinetic conduct disorder, an IQ of around 70, dyslexia, and a poor working memory. He had language levels of a seven- or eight-year-old— he did not understand words such as ‘jury’ ‘defence’ or ‘evidence’. He was unable to follow information given at normal speed but would often pretend to do so. He had high levels of suggestibility and compliance, and a severe stammer that could render him unable to speak. An expert report stated that the stresses associated with a trial would heighten his vulnerability and communication difficulties and he could become challenging, suspicious, confused and deceitful when put under pressure. Nevertheless, the Court held that, having given the defendant the help of a trained intermediary, it was permissible to leave inferences to the jury. In R v Tabbakh,136 the Court explicitly balanced the wellbeing of the defendant (a self-harming asylum seeker with post-traumatic stress disorder following torture in his home country) against the importance of establishing whether he had been involved in the preparation of terrorist acts. The Court of Appeal accepted the judge’s view, that: … in an ideal world, with no other factors to be considered, one would want to avoid a situation arising where anyone was put under stress to self-harm. But his own health and welfare is not the only issue, in my judgment, which I should take into account in reaching a judgment as to whether it is undesirable for him to give evidence …

Advocates now face a similar dilemma to police station legal representatives (­discussed below) whereby calling the client might undermine their case, but the inferences from

132  Judicial College, The Crown Court Compendium (May 2016) 17:5 [10]; R v D (R), Crown Court (Blackfriars) 16 Sept 2013. 133  R v Gledhill [2007] EWCA Crim 1183. 134  ibid 7. 135  R v Dixon (n 113). 136  R v Tabbakh (n 113) [8].

90  Hannah Quirk not testifying may be enough to secure their conviction. The decision whether or not to give evidence is ultimately for the defendant, and counsel must now obtain written confirmation of their client’s decision whether or not to testify.137 This seems to assume a craftiness on the part of defendants and a desire to ‘appeal proof’ any convictions. Similar objections may be expressed about this as against legal representatives asking clients to endorse their notes before a ‘no comment’ interview at the police station and to sign defence statements.138 Suspects may sign without fully understanding the consequences, then have no redress post-conviction. At the close of the prosecution’s case, the court must satisfy itself, in the presence of the jury, that defendants who have not indicated that they intend to give evidence understand the consequences of not doing so.139 The warning that is used for unrepresented defendants is more than twice as long and is in much more coercive terms than the one given to those who are represented.140 The judge or magistrate may remind the accused of his or her ‘duty’ to answer all proper questions or risk the drawing of inferences, although this should not be done in an oppressive manner.141 As the police have been criticised for amplifying the caution at the police station to increase the pressure on suspects, the wording approved by the court goes beyond that required by the statute. B.  Section 34, 36 and 37 of the CJPOA Section 34 gives no guidance as to what inferences may be ‘proper’ but there is now a presumption that any inference drawn will be adverse.142 The Court of Appeal rejected the argument that a ‘proper’ inference is one that is relevant in determining whether the accused is guilty and not one that is simply adverse to the defendant, as such a limited construction would thwart the intention of the Act.143 Inferences are no longer restricted to subsequent fabrication but can be used essentially as ­punishment144 against suspects for not cooperating with the police at the earliest opportunity. The Crown Court Compendium,145 a reference source for judges preparing summings-up for juries, explains that the object of section 34 is ‘to deter late fabrication of defences and to encourage early disclosure of genuine defences’. In an earlier incarnation, it stated that the basis of section 34 ‘is an assumption that an innocent defendant—as distinct from one who is entitled to require the prosecution to prove its case—would give an early explanation to demonstrate his ­innocence’.146 The Compendium identifies permissible inferences (or ‘conclusions’ 137  R v Chatroodi [2001] EWCA Crim 585, [2001] 3 Archbold News 3, CA. This had been a growing convention before the CJPOA (R v Bevan (1993) 98 Cr App R 354). 138  H Quirk, ‘The Significance of Culture in Criminal Procedure Reform: Why the Revised Disclosure Scheme Cannot Work’ (2006) 10 International Journal of Evidence and Proof 42. 139  CJPOA, s 35(2); Criminal Practice Directions 2015 [2015] EWCA Crim 1567, CPD, 26P.2. 140  Criminal Practice Directions 2015 [2015] EWCA Crim 1567, CPD, 26P.5. 141  R v Ackinclose [1996] Crim LR 747. 142  R v Condron (Karen) and Condron (William) (n 109); R v Napper [1996] Crim LR 591. 143  R v Beckles and Montague [1999] Crim LR 148. 144  R v Hoare and R v Pierce (n 127) [53]–[54]. 145  Judicial College, Crown Court Compendium (2016) 17–1 [2]. 146  Judicial Studies Board, Crown Court Bench Book: Directing the Jury (2010) 258.

Right of Silence in England and Wales 91 as it describes them) as: that the fact now relied on is true but the defendant chose not to reveal it earlier; the fact is irrelevant; the fact is of more recent invention; the fact is ­fabricated; or that the defendant is guilty.147 The Court did not, however, ‘think it incumbent on a judge or appropriate for him to embark or invite the jury to embark on possible speculative reasons consistent with innocence which might theoretically prompt a defendant to remain silent’;148 a restriction that Leng argues ‘runs counter to the adversarial tradition’ and illustrates the punitive use of the ­provisions.149 Inferences can be drawn from a suspect’s failure to mention a fact, even where no relevant question was put in interview. Inferences may also be drawn if a suspect refers to facts from which a positive defence might be drawn but the account is insufficiently detailed.150 The provisions make the testing of the prosecution case at trial more difficult as section 34 can be triggered even if no evidence is given or called.151 A ‘fact relied upon’ may be established by the defendant submitting a written statement to the police, a pre-trial defence case statement, or cross-examining witnesses. Even a suggestion put to a witness by the defence that is not adopted can fall within the ­section,152 as can evidence given by a co-defendant that is adopted by counsel or any explanations or supporting detail. Even if evidence of the interview is excluded so that no inference can be drawn from silence when questioned, inferences may still be drawn from silence when charged, as long as this is not unfair.153 Sections 36 and 37 have no reasonableness requirement,154 so inferences may be drawn even where no inference under section 34 is allowed or appropriate.155 Checks that exist within the legislation have been evaded: ‘there is a presumption that the investigator’s belief [that the subject, object or mark may be attributable to the suspect’s participation in the commission of an offence] is a reasonable one’156 and inferences were allowed even where the interviewing officer had given a special warning in relation to the wrong offence.157 Protections have been further undermined in practice, as a conviction will not necessarily be rendered unsafe by a defective direction,158 or the absence of a Bathurst direction (the pre-CJPOA warning required for suspects who have been denied access to a lawyer).159

147  Judicial College (n 145) 17–4 [15]. See also R v Argent (n 111); R v Daniel (Anthony Junior) (1998) 2 Cr App R 373; R v Milford [2002] EWCA Crim 1528 [33], approved in R v Webber [2004] UKHL 1, [2004] 1 WLR 404 [30]. 148  R v Cowan, R v Gayle, and R v Ricciardi (n 108) 949. 149  Leng (n 98) 132. 150  R v Compton [2002] EWCA Crim 2835. 151  R v Bowers Taylor and Millan [1998] Crim LR 817. 152  R v Webber (n 147). 153  R v Dervish [2002] 2 Cr App R 105. 154  R v Roble (n 112) 3. 155  R v Milford (n 147). 156  R v Milford (n 147) [36]; A Marks, ‘Expert Evidence of Drug Traces: Relevance, Reliability and the Right to Silence’ [2013] Crim LR 810, 824. 157  R v Compton (n 150) [33]. 158  Adetoro v UK Application no 46834/06, 20 April 2010; R v Chivers [2011] EWCA Crim 1212. 159  R v Collins [2014] EWCA Crim 773; R v Francom and Others [2000] Crim LR 1018.

92  Hannah Quirk The ECtHR held that it is essential to a fair trial that the judge should direct the jury carefully as to the drawing of inferences, particularly given the inscrutability of the jury’s verdict.160 To the House of Lords, however, ‘the object of ­section 34 is to bring the law back into line with common sense’.161 As Easton notes, ‘[c]ommon sense may be unreliable, impressionistic and unsystematic. It is because of the ­weaknesses of common-sense thinking that clear judicial guidance is so ­important’.162 Inferences from silence are one of the few types of evidence to require specific judicial directions. Section 34 has been condemned as ‘a headache for the conscientious jury, and a tool with which the slapdash, incompetent jury may wreak injustice’.163 Allowing jurors to draw inferences from speculation about the absence of evidence or the defendant’s refusal to participate in the process ‘may result in inconsistent, unreasoned and unappealable decision making’.164 Judges have repeatedly asserted their confidence in the abilities of ‘a fair-minded jury’,165 but no empirical research has been conducted in England and Wales on jurors’ understanding of these ­directions.166 Thomas found that fewer than a third of jurors understood the—much simpler—judicial direction on self-defence.167 Contrary to the expectation of many commentators, the Court of Appeal held that reliance on legal advice, of itself, would not avert inferences as this ‘would render section 34 wholly nugatory’.168 Whilst legal advice is ‘a very relevant’ circumstance to be taken into account by a court in deciding whether the defendant could reasonably have been expected to mention the fact relied on at that time,169 a reliance on legal advice ‘does not give a licence to a guilty person to shield behind the advice of his solicitor’.170 Such a ‘policy driven’ decision ignores the empirical evidence of the low rates of legal advice and silence before the changes.171 The Court considered that ‘[i]t is not so much the advice given by the solicitor, as the reason why the defendant chose not to answer questions that is important’.172 It was asserted in R v Sakyi173 that a lay person being advised by a solicitor would not be expected merely to follow that expert advice in the same way as one would accept the advice of a doctor or accountant. The jury should consider ‘whether or not he is able to decide for himself what he should do or having asked for a solicitor to advise him he would not challenge that advice’.174 This reasoning fails to consider the pressure

160 

Condron v UK (2001) 31 EHHR 1. R v Webber (n 147) [33]. 162  S Easton, ‘Legal Advice, Common Sense and the Right to Silence’ (1998) 2 International Journal of Evidence and Proof 109, 114. 163  D Birch, ‘Suffering in Silence: A Cost-Benefit Analysis of Section 34 of the Criminal Justice and Public Order Act 1994’ (1999) Crim LR 769, 772. 164 S Sharpe, ‘Judicial Discretion and Investigative Impropriety’ (1997) 1 International Journal of ­Evidence and Proof 149, 153. 165  R v Dixon (n 113) [55]; R v Charisma (n 122). 166  Bucke et al (n 106) 66 and 110. 167  C Thomas, Are Juries Fair? MOJ Research Series 1/10 (London, Ministry of Justice, 2010) 35. 168  R v Condron (Karen) and Condron (William) (n 109) 191. 169  R v Argent (n 111). 170  R v Betts; R v Hall [2001] 2 Cr App R 257 [54]. 171  Leng (n 98) 127. 172  R v Condron (Karen) and Condron (William) (n 109) 192. 173  R v Sakyi [2014] EWCA Crim 1784. 174  R v Howell [2002] EWCA Crim 1 [10]. 161 

Right of Silence in England and Wales 93 of being in police custody or that the majority of suspects in police custody are of below average intelligence, under the influence of drugs, alcohol or both, and have some kind of psychiatric, psychological or conduct disorder.175 Inferences have been allowed against a suspect who was advised to make no comment as his solicitor could not understand his instructions and considered his grasp of English to be insufficient to deal with difficult legal concepts.176 It was held that, as the solicitor did not give evidence of all the facts her client had told her, the judges did not know the basis upon which she had formulated her advice. Such analysis suggests the application of double standards by the courts: reasons for the legal representative’s advice are deemed irrelevant when they are adduced to avoid inferences or to support excluding the interview (it is the defendant’s reasons for silence that are significant), but the lack of reasons may be used as justification for drawing inferences.177 While the ECtHR has stated that the fact that an accused has remained silent on legal advice must be given ‘appropriate weight’ by the domestic court as there may have been a good reason for such advice,178 the repeated reference to bona fide advice by lawyers by the Court of Appeal and the ECtHR is troubling as it chimes with the pre-CJPOA rhetoric by politicians and the police that unscrupulous lawyers collude with guilty clients to thwart justice. The Court of Appeal has re-interpreted the role of the legal representatives at the police station in a manner that is incompatible with the function envisaged under PACE ‘only … to protect and advance the legal rights of their client’.179 This has undermined the protective benefit of legal advice, a fundamental requirement of a fair trial. Representatives now have to assess whether the risk of providing the police with information that may be used to charge or convict the client is outweighed by the potential risk of inferences being drawn from a ‘no comment’ interview, should the case be brought to trial. The provisions have removed the bargaining chip of a ‘no comment’ interview that legal representatives sometimes used to gain disclosure of the police case. By making custodial legal advice of potential evidential significance, perhaps requiring representatives to testify why they gave such advice, the CJPOA has compromised the lawyer–client relationship. The provisions can drive a wedge between the solicitor and client—the police may tell the client that they are getting bad advice and the solicitor has conflicting interests (they have to protect their own position and may not be able to act for the client in the magistrates’ court if required to give evidence). The Court has essentially incorporated the police interview into the trial but without the benefit of the safeguards or the rules of natural justice that attend a fair trial.180

175 S Young, EJ Goodwin, O Sedgwick and GH Gudjonsson, ‘The Effectiveness of Police Custody Assessments in Identifying Suspects with Intellectual Disabilities and Attention Deficit Hyperactivity ­Disorder’ (2013) 11 BMC Medicine 248. 176  R v Roble (n 112). 177  E Cape, ‘Sidelining Defence Lawyers: Police Station Advice after Condron’ (1997) International Journal of Evidence and Proof 386, 402. 178  Condron v UK (n 160) [60]. 179  Home Office, PACE Code C: Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (London, TSO, 2017) N 6D. 180  JD Jackson, ‘Silence and Proof: Extending the Boundaries of Criminal Proceedings in the United Kingdom’ (2001) 5 International Journal of Evidence and Proof 145, 147.

94  Hannah Quirk Legal professional privilege has been held to be almost sacrosanct; ‘a fundamental condition on which the administration of justice as a whole rests’.181 Despite early protestations that this was not affected by the CJPOA,182 in its desire to ensure that suspects do not evade inferences, another principle of a fair trial has been undermined by the silence provisions.183 The giving of evidence at a voir dire as to the ­reasons for legal advice to make no comment at the police station operates as a waiver of privilege at trial even if the evidence is not repeated before the jury: The defendant cannot at any stage have his cake and eat it; he either withdraws the veil and waives privilege or he does not withdraw the veil and his privilege remains intact. But he cannot have it both ways.184

The prosecution, however, would appear to be able to enjoy the best of both worlds, as suspects either have an unexplained silence from which inferences may be drawn or, if they seek to explain it, have to waive privilege and risk exposure of everything said in consultation—as well as perhaps still facing an adverse inference. C.  ECtHR Jurisprudence The European jurisprudence concerning the privilege against self-incrimination is ‘somewhat inconsistent and problematic’.185 In earlier cases the ECtHR had emphasised that the privilege against self-incrimination, and the closely allied principle of the presumption of innocence, ‘reflects the expectation that the state bear the general burden of establishing the guilt of an accused’.186 Contrary to the early expectations of many commentators, however, the ECtHR declared that the drawing of inferences from the failure of suspects to answer police questions or from their refusal to ­testify, does not breach Article 6 per se.187 The Northern Ireland provisions and their CJPOA equivalent place the suspect under only ‘indirect compulsion’188 which is not sufficient to destroy the essence of the right.189 No explanation was given as to why it should be ‘obvious’ that: … These immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.190

As Jackson notes, the ECtHR has addressed the right as ‘primarily a procedural right attached to the right to a fair trial rather than a substantive right expressing 181 

R v Derby Magistrates’ Court ex p B [1996] AC 487, 507. R v Bowden (n 107); R v Webber (n 147) [27]. 183  R v Seaton [2010] EWCA Crim; H Quirk, ‘Twenty Years On, the Right of Silence and Legal Advice: The Spiralling Costs of an Unfair Exchange’ (2013) 64 Northern Ireland Legal Quarterly 465. 184  R v Bowden (n 107) [51]. 185  I Dennis, ‘Silence in the Police Station: The Marginalisation of Section 34’ (2002) Crim LR 25, 27; LH Leigh, ‘The Right to a Fair Trial and the European Convention on Human Rights’ in D Weissbrodt and R Wolfrum (eds), The Right to a Fair Trial (Berlin, Springer-Verlag, 1997) 645, 660. 186  Saunders (n 46). 187  Murray (John) v UK [GC] (1996) 22 EHRR 29; Condron v UK (n 160). 188  Murray (John) v UK (n 187) [65]. 189  Funke v France (n 45). 190  Murray (John) v UK (n 187) [60]. 182 

Right of Silence in England and Wales 95 the principle that individuals generally should not have to account to the State for their actions or activities’.191 Whilst the Strasbourg decisions have resulted in slight restrictions upon the interpretation of the Act,192 the decisions of the ECtHR that the silence sections do not necessarily breach the fair trial provisions in Article 6193 have facilitated the expansion of the CJPOA by the domestic courts. The Court of Appeal has ‘had some difficulty in giving effect to [the ECtHR] ruling’194 on silence and legal advice—essentially it has ignored it. As with the ‘instrumental’ endorsement of the right of silence given by the RCCJ, the ‘common sense’ judgments of the ECtHR in determining the fairness of proceedings fail to explore how suspects experience, and criminal justice practitioners implement, these provisions. D.  Criminal Justice Policy The CJPOA marked the start of what Shami Chakrabarti has described as ‘the modern law and order arms race’.195 It was the first Act based on the premise that the accused have too many rights and should cede some of them in ‘fairness’ to the prosecution. This re-balancing narrative reinforced the ‘populist punitiveness’196 of criminal justice policy that subsequently took hold. Within two years of the CJPOA being enacted, the Criminal Procedure and Investigations Act 1996 had passed which required further pre-trial disclosure from the defence,197 a measure that would arguably have been more difficult to enact in the absence of the CJPOA.198 Parliament then made it easier to admit hearsay and bad character evidence.199 Following the Court of Appeal’s decision to allow inferences from silence in interviews that breached the PACE Codes by taking place after the police had sufficient evidence to charge,200 the PACE Codes were redrafted201 to allow inferences from silence after this point had passed. The Criminal Procedure Rules 2005 are administrative directions for case ­management.202 They have effected a ‘sea change’ in the way in which criminal cases should be conducted.203 Judges are now under a duty to manage cases actively and to ensure that evidence is presented in the shortest and clearest way. The Rules extend the expectations of the CJPOA and arguably would be very different had the CJPOA not been enacted. Before the CJPOA, judges rarely refused to admit alibi

191 

Jackson (n 47) 841. Murray (John) v UK (n 187); Condron v UK (n 160). 193  Condron v UK (n 160). 194  Lord Phillips of Worth Matravers ‘Trusting the Jury’—The Criminal Bar Association Kalisher Lecture, 23 October 2007. 195  S Chakrabarti, ‘A Thinning Blue Line? Police Independence and the Rule of Law’ (2008) 2 Policing 367, 369. 196  AE Bottoms, ‘Philosophy and Politics of Punishment and Sentencing’ in C Clarkson and R Morgan (eds), The Politics of Sentencing Reform (Oxford, Oxford University Press, 1995) 17–49. 197  Criminal Procedure and Investigations Act 1996, Pt I. 198  R Leng, ‘Defence Strategies for Information Deficit: Negotiating the CPIA’ (1997) 1 International Journal of Evidence and Proof 215. 199  Criminal Justice Act 2003, Pt 11. 200  R v Pointer [1997] Crim LR 676; R v McGuinness [1999] Crim LR 318. 201  See PACE Code C, 2003 revision, 11.6 (and subsequent revisions). 202  SI 2005/384. 203  R (on the application of DPP) v Chorley Magistrates Court [2006] EWHC 1795 (Admin) [24]. 192 

96  Hannah Quirk or expert evidence that had been submitted late, as to do so could be so damaging to the defence. That attitude has now changed and defendants have been prevented from calling medical evidence explaining their failure to testify if it was not submitted on time.204 The strength of the presumption that defendants will now testify is exemplified by the refusal to withdraw inferences from the jury in R v Cameron,205 in which the judge in a rape case took the unprecedented measure of c­ ross-examining the complainant in a ‘non-adversarial and non-searching’ manner after she refused to answer further questions from the defence counsel. Together with changes such as the credit given for early guilty pleas and case management procedures, the CJPOA provisions have forced defences to be produced earlier. As Jackson argues, this has effectively made the police station interview part of the trial.206 Whilst in administrative terms this may be convenient, such an expectation inhibits the defence in testing the strength of the evidence of the police before deciding whether or not to answer questions. There is no corresponding requirement upon the police to disclose their case and the prosecution is entitled to change its case without censure. This disciplinary approach is illustrated by the refusal of some judges to refund legal aid contribution orders to acquitted defendants who made no comment at interview.207 The Court of Appeal has developed a ‘normative expectation’208 that defendants should cooperate fully in the criminal process, and that those who do not have something to hide.209 This assumption of ‘coerced participation’ runs contrary to the presumption of innocence and the principle that it is for the prosecution to prove its case.210 The vocabulary used by the judges, suggests that they ‘have imported to the courtroom the traditional police suspicion of defendants and their legal ­representatives’.211 This has led to the Act being interpreted more broadly and the protective benefit of legal representation being undermined. Together with statutory restrictions on suspects’ rights, this has left the accused ‘trebly disadvantaged’ by the infringement of the right of silence.212 The courts have emphasised that the burden of proof, far from being altered or watered down, remains on the prosecution; the effect of section 35 is simply to add a further evidential factor in support of the prosecution case.213 Whilst technically this is true, it must make it easier for the prosecution to discharge the burden. The judgment in R v Howell214 has received surprisingly little attention, given its suggestion of a shift from the presumption of innocence to the presumption 204 

R v Anwoir and others [2008] EWCA Crim 1354, [2009] 1 WLR 980; R v Ensor (n 119). R v Cameron [2001] Crim LR 587. 206  J Jackson, ‘Silence Legislation in Northern Ireland: The Impact after Ten Years’ (2001) 6 Journal of Civil Liberties 134. 207  Ashendon v UK; Jones v UK (2012) 54 EHRR 13. 208  R Leng, ‘Silence Pre-trial, Reasonable Expectations and the Normative Distortion of Fact Finding’ (2001) 5 International Journal of Evidence and Proof 240, 246. 209  R v Howell (n 174). 210  Leng (n 98) 128. 211  Quirk (n 183) 468. 212  Quirk (n 183) 467; see also Cape (n 177) and R Leng, ‘The Right to Silence Reformed: A Re-Appraisal of the Royal Commission’s Influence’ (2001) 6 Journal of Civil Liberties 107, 108. 213  R v Cowan, R v Gayle, and R v Ricciardi (n 108). 214  R v Howell (n 174). 205 

Right of Silence in England and Wales 97 that the innocent have nothing to hide. The Court held that an innocent person will generally be expected to seize the chance of denying the allegations. The only ‘good’ reasons for remaining silent will be those approved of by the Court. It considered the purpose behind the legislation, in a judgment that abruptly re-drew the adversarial system and gave scant consideration of the effects on the solicitor– client relationship: [Section 34] … is one of several enacted in recent years which has served to counteract a culture, or belief, which had been long established in the practice of criminal cases, namely that in principle a defendant may without criticism withhold any disclosure of his defence until the trial. Now the police interview and the trial are to be seen as part of a continuous process in which the suspect is engaged from the beginning … This benign continuum from interview to trial, the public interest that inheres in reasonable disclosure by a suspected person of what he has to say when faced with a set of facts which accuse him, is thwarted if currency is given to the belief that if a suspect remains silent on legal advice he may systematically avoid adverse comment at his trial. And it may encourage solicitors to advise silence for other than good objective reasons.

Few suspects are likely to recognise this characterisation of the benignity of the process. The CJPOA provisions have been interpreted boldly and in accordance with earlier judicial notions of deserving and undeserving defendants. This ‘defendantcentred subjectivity’215 is dangerous as it is easiest to erode the rights of unpopular groups. The character of the defendant is considered in such cases in order to assess the effects of the breach of provisions on the suspect and the reliability of the evidence obtained. To apply such judgments when considering whether evidential sanctions should be applied to the failure of the accused to cooperate, however, is to short-circuit the process of determining guilt. The expectation of cooperation is incompatible with principles of adversarialism, sits uneasily with the presumption of innocence, and assists the prosecution in discharging the burden of proof. This ‘disciplinary’ attitude contrasts with the reluctance of the courts to exclude evidence in order to punish improper police conduct.216 As Mirfield notes, ‘[t]hese provisions do seem to change the climate—as they were intended to—such that in law, the suspect is recruited as an active part of the investigation process.’217 IV. CONCLUSION

Judicial decisions affect the climate in which defendants are tried, and what happens earlier in the criminal justice process.218 The CJPOA provisions ‘have contributed more to the complexity and cost of the criminal process than to justice’.219 The provisions have been used to create a culture of expectation that suspects should

215 

Sharpe (n 164) 155. R v Sang [1980] AC 402. 217  P Mirfield, ‘Two Side Effects of Section 34 to Section 37 of the Criminal Justice and Public Order Act 1994’ (1995) Crim LR 612, 616. 218  R v Howell (n 174). 219  Leng (n 212) 125; see also R v Bresa [2005] EWCA Crim 1414 [4]. 216 

98  Hannah Quirk cooperate with their investigation and trial and that failure to do so, is indicative of guilt. The provisions have been interpreted widely by the courts and have altered fundamentally the climate in which the accused is questioned and tried.220 This has effectively made the police interview a part of the trial but without the benefit of the safeguards or the rules of natural justice that attend a fair trial.221 The interpretation by the courts of the CJPOA provisions hinders the adversarial preparation of the defence and is part of the armoury of increasingly inquisitorial powers given to the police, evidence from which may then be deployed in an adversarial context.222 Despite the repeated insistence of the Court of Appeal, that the provisions do not affect the burden of proof, it is argued that the CJPOA provisions sit uneasily with the presumption of innocence, in some cases making it easier for the Crown to discharge the burden of proof. The right of silence, once a proud ‘bench-mark of British justice’ was curtailed as part of the ‘acting out’223 that governments may do in order to appear tough on crime. The changes in England and Wales have reverberated across the common law world, leading to the right of silence being reconsidered or restricted in several jurisdictions.224 Many proponents explicitly cited the ECtHR findings that the CJPOA was consistent with the right to a fair trial to ­dismiss ­opposition.225 Whilst, on the surface, defendants appear better protected than ever, the removal of the right of silence has hollowed out some of those safeguards and facilitated the introduction of other measures that have undermined defendants’ right to a fair trial.

220  J Jackson, M Wolfe and K Quinn, Legislating against Silence: The Northern Ireland Experience, Northern Ireland Statistics & Research Agency (Belfast, Northern Ireland Office, 2000); Leng (n 212). 221  Jackson (n 180) 147. 222  E Cape, ‘The Revised PACE Codes of Practice’ (2003) Crim LR 355, 369. 223  Garland (n 13). 224  See Quirk (n 7) ch 6. 225  For example, Northern Territory Law Reform Committee, Report on the Right to Silence Northern Territory Law Reform Committee (Darwin, NT 2002) 3.

6 Seeking Core Fair Trial Standards across National Boundaries: Judicial Impartiality, the Prosecutorial Role and the Right to Counsel JOHN D JACKSON AND SARAH J SUMMERS*

I. INTRODUCTION

O

NE OF THE striking successes of the emergence of the ‘human rights ­revolution’ that began after World War II in the attempt to require states to commit themselves to human rights instruments has been the degree of consensus around the notion that trial processes must accord with certain fundamental fair trial norms.1 These guarantees and the jurisprudence of the ­international human bodies rights associated with them are now being developed further both across and beyond Europe.2 Yet just at the time when fair trial standards are b ­ roadening

*  The authors would like to thank the participants of the obstacles to fairness workshops in Zurich and Nottingham and Lindsay Farmer, David Sklansky and Stefan Trechsel, in particular, for their helpful comments. 1 See Universal Declaration of Human Rights (UDHR) Art 10; European Convention on Human Rights (ECHR) Art 6; International Covenant on Civil and Political Rights (ICCPR) Art 14; ­American Convention on Human Rights (ACHR) Art 8; African Commission on Human and Peoples‘ Rights (ACHPR) Art 7. 2  Within the EU the European Council has sought to strengthen the jurisprudence of the European Court of Human Rights (ECtHR) by proclaiming the intention to adopt legislation on a number of procedural rights of suspected and accused persons. See European Council, The Stockholm Programme—an Open and Secure Europe Serving and Protecting Citizens [2010] OJ C115/1. The European Commission has also funded a number of studies into criminal procedural rights; See, eg, J Blackstock, E Cape, J ­Hodgson, A Ogorodova and T Spronken, Inside Police Custody: An Empirical Account of Suspects’ Rights in Four Jurisdictions (Antwerp, Intersentia, 2014); T Spronken and G Vermeulen, EU Procedural Rights in Criminal Proceedings (Antwerp, Intersentia, 2009); E Cape, J Hodgson, T Prakken and T Spronken, Suspects in Europe (Antwerp, Intersentia, 2007). Beyond the EU, efforts have been made to create a new international criminal order, making individuals liable before international tribunals for international crimes, which has also relied for its legitimacy on the fair trial standards developed in the international human rights instruments, see International Criminal Tribunal for the former Yugoslavia (ICTY) Statute Art 21; International Criminal Tribunal for Rwanda (ICTR) Statute Art 20; Special Tribunal for Lebanon (STL) Statute Art 16; International Criminal Court (ICC) Statute Art 68; and G Sluiter, ‘International Criminal Proceedings and the Protection of Human Rights’ (2003) 37 New England Law Review 935.

100  John D Jackson and Sarah J Summers their reach at both the domestic and international level, they are facing a number of challenges as states and international bodies struggle to bring individuals to justice. First, within the domestic arena, the sheer number of persons charged with criminal offences encourages states to seek ways of avoiding fully-fledged trials which guarantee the fair trial standards.3 Second, the global threat of terrorism has caused policy makers and state bodies to consider how the standards may be diluted to protect sensitive information in terrorist trials so that the criminal process can continue to be used without resort to counter-terror measures that avoid the use of criminal trials altogether.4 Third, the growing awareness of the harm that can be done to vulnerable victims and witnesses when they are called to testify has led to calls for reforms which would serve to diminish the effect of the standards.5 A strong convergence of measures designed to protect and empower victims and witnesses is to be seen across many common law jurisdictions and while many of these do not impact significantly on defendants’ rights, others restrict their right to challenge the case against them.6 The need to protect victims’ rights has loomed particularly large in international trials where the spectre of defendants, such as Slobodan Milošević, representing themselves has prompted a re-evaluation of the right to conduct one’s own defence.7 This has precipitated discussion of the need to ‘re-balance’ fair trial standards against other interests. These developments challenge us to re-consider the key values that underlie the fair trial standards. This chapter argues that the right to a fair trial cannot adequately be explained solely by reference to the dignity or autonomy of the accused or by reference to the need for accurate verdicts. Instead it will be argued that it is necessary to conceptualise the fair trial standards not only as personal rights of the accused, but also as operating within an institutional framework that protects the rule of law through guaranteeing judicial impartiality and an adversarial process. This is not to contest the development of human rights as a means of safeguarding the dignity or autonomy of the individual, but rather to argue that in relation to criminal proceedings the rights of the accused must be understood in the context of a distinctive institutional framework. Before coming to this it will be useful to highlight some of the first order values that underpin notions of a fair trial.

3 For a review of the steps taken across a range of jurisdictions to avoid trials, see S Thaman, ‘­Plea-Bargaining, Negotiated Confessions and Consensual Resolution of Criminal Cases’ in K BoeleWoelki and S van Erp (eds), General Reports of the XVII Congress of the International Academy of Comparative Law (Utrecht, Eleven International, 2007). For the argument that managerialism of this kind is indifferent to fair trial rights, see J McEwan, ‘From Adversarialism to Managerialism: Criminal Justice in Transition’ (2011) 31 Legal Studies 519. 4 For a review of trial-avoidance measures, see F De Londras, Detention in the War on Terror (­Cambridge, Cambridge University Press, 2011). 5  See, eg, E Cape (ed), Reconcilable Rights?—Analysing the Tension between Victims and Defendants (London, Legal Action Group, 2004); G Hogan (Chair), ‘Balance in the Criminal Law Group’, Final Report (Dublin 2007). 6 For comparative discussion see L Ellison, The Adversarial Process and the Vulnerable Witness (Oxford, Oxford University Press, 2001); L Hoyano and C Keenan, Child Abuse: Law and Policy Across Boundaries (Oxford, Oxford University Press, 2007). 7  G Boas, The Milošević Trial: Lessons for the Conduct of Complex International Criminal ­Proceedings (Cambridge, Cambridge University Press, 2007).

Seeking Core Fair Trial Standards 101 II.  SEARCHING FOR CORE VALUES

A.  Individual Interests: Dignity, Autonomy and Liberty A useful starting point in discussing the key values at stake in the right to a fair trial is to see them grounded in the other individual ‘first generation’ rights founded on the duty to respect the dignity and autonomy of the human person. Safferling provides a good account of the historic development of the right to a ‘fair trial’, alongside the other rights of the first generation.8 As he puts it, before the age of Enlightenment, accused persons were dependent on the grace and favour of the monarch or the colonial power, but during the Enlightenment the ontological understanding of a ‘citizen’ changed from being an object of state authority to becoming the reason for statehood and to being treated as a subject. As a result, the power of the executive over the liberty and security of the person had to be constrained. A person could only be legally detained in cases where there was strong suspicion that he or she had committed a criminal offence or following his or her conviction by a criminal tribunal. A number of inalienable rights, which derived from the duty to respect the dignity of the human person, were formulated within the criminal process such as the right to silence, the right to be informed of the accusations and to have the time to prepare one’s defence and the right to be presumed innocent until proved guilty. Liberty against arbitrary conviction by state authorities was to be guaranteed by participation of the public through the jury system and publicity of the proceedings. Punishment was only justified where strictly necessary and where previously established by law. These tenets made their way simultaneously into the American and French Bill of Rights and most of them came to be adopted in other European criminal justice systems. Concepts such as dignity, autonomy and liberty of the person have also played a major role in the development of international human rights law and would consequently seem to play an important part in the justification of the international right to a fair trial. Although there is considerable disagreement about what these terms mean and what scope they should have in judicial decision making at both the domestic and international level,9 dignity in particular has formed such a foundational concept for the international legal order of human rights that it would seem unimaginable to do away with the concept altogether.10 The use of the c­ oncept of dignity has been at the forefront of discourse on human rights ever since its ­articulation in

8  CJM Safferling, Towards an International Criminal Procedure (Oxford, Oxford University Press, 2003) 21; See also J Marshall, Personal Freedom through Human Rights Law? (The Hague, Martinus Nijhoff, 2009). 9  On dignity, see C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 64. On the different meanings that are attached to autonomy, see G Dworkin, The Theory and Practice of Autonomy (Cambridge, Cambridge University Press, 1988); J Raz, The Morality of Freedom (Oxford, Oxford University Press, 1988). 10  M Mahlmann, ‘Human Dignity and Autonomy in Modern Constitutional Orders’ in M Rosenfeld and A Sajo (eds), Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 370, 372.

102  John D Jackson and Sarah J Summers the Universal Declaration of Human Rights (UDHR).11 Although it does not feature expressly within the terms of the European Convention on Human Rights (ECHR), the European Court of Human Rights (ECtHR) has considered that the very essence of the Convention is respect for human dignity and human freedom.12 It has been suggested that at its minimum core dignity expresses the idea that every human being is worthy of respect and consequently should be respected by others and the state which should be seen to exist for the sake of the individual rather than vice-versa.13 The dignitarian notion that the state should be seen to exist for the sake of the individual introduces a liberal bias into much human rights discourse. Individual rights are often viewed in terms of negative obligations on the state not to intrude on the private life and liberty of the individual—not to take life, not to take liberty, not to interfere with freedom of expression. The right to autonomy has been characterised as a constitutional value defining the relationship between the individual and the state as the ‘private space within which a person can make and act upon decisions free from government intervention’.14 This approximates to Berlin’s notion of negative liberty and Raz’s notion of negative freedom.15 But both Berlin and Raz also characterised liberty or freedom in positive terms requiring the state to provide individuals with the environment necessary to lead an ‘autonomous’ life. On this view governments can create conditions which enable their subjects to enjoy greater dignity, autonomy or liberty than they otherwise would.16 Thus it can be argued that dignity plays a role in the concretisation not only of rights that protect the individual from government state interference—the prohibition of all types of torture, inhuman or degrading treatment, for example—but also of positive rights such as the assurance of the possibility of individual choice in issues such as privacy and abortion, equality and non-discrimination rights and even economic and social rights in so far as it is recognised that human dignity requires that certain basic needs are met.17 The realisation of these rights may involve restrictions on individual freedom for the sake of ensuring equal concern for each individual so that everyone can share in the ‘good life’.18 In social contract terms this may be seen as individuals sacrificing their freedom in the ‘state of nature’ to preserve the greatest possible liberty over all. Once governments are entrusted with creating the conditions of the ‘good life’ then the rights associated with them require governments to create institutions to give them effect. What distinguishes the right to a fair trial from other human rights,

11  UDHR Art 1: ‘[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’; There are also several other references to dignity elsewhere in the text. See Arts 22, 23(3). For discussion see McCrudden (n 9) 667. 12  Pretty v United Kingdom (2002) 35 EHRR 1 [65]. 13  See McCrudden (n 9) 679 f. 14 EJ Hashimoto, ‘Resurrecting Autonomy: The Criminal Defendant’s Right to Control the Case’ (2010) 90 Boston University Law Review 1147, 1153. This is also the definition favoured by the US Supreme Court (USSC), see, eg, Faretta v California 422 US 806, 834 (1975). 15 See I Berlin, ‘Two Concepts of Liberty’ in I Berlin, Four Essays on Liberty (Oxford, Oxford ­University Press, 1969); Raz (n 9) 409. 16  See Raz (n 9) 18. 17  See Mahlmann (n 10) 380 f; McCrudden (n 9) 686–94. 18  See R Dworkin, Justice for Hedgehogs (Cambridge, Harvard University Press, 2013).

Seeking Core Fair Trial Standards 103 however, is that it is constituted rather than just given effect by an institutional framework. The rules governing the fairness of the trial may be underpinned by notions of dignity but the degree to which the trial is ‘fair’ depends entirely on the rules structuring the trial and the process leading up to it. Waldron has argued that to do justice to this essential notion of dignity, the application of the laws to individuals requires a procedure whereby an opportunity is given to individuals to participate in the proceedings to which they are subject.19 This requires a trial structure whereby there is a first party, a second opposing party and an impartial officer with the authority to make a determination.20 His discussion of dignity and procedure is largely focused on civil proceedings but it also provides a basis for the fair trial standards in criminal proceedings required by the international instruments. What is missing from his account, however, is what one might call the protective as opposed to the participatory aspects of these standards, notions such as the presumption of innocence and the privilege against self-incrimination. Within any civil dispute it may not be so necessary to provide for how exactly the parties should participate and much can be left to them and to the judicial tribunal to decide how the dispute should be resolved. Within the criminal context, however, there is an immense power differential between the state and the individual facing criminal charges. Whether the accused person’s freedom is invaded by being placed under arrest or not, once a criminal charge is brought the accused is called upon to answer the charge and this requires that he or she is compelled to participate in the proceedings. The full might of the state bears down on the accused and his or her capacity to exercise wise choices in this environment may be questioned. Beyond the position of the accused within criminal proceedings, there is also the grave threat of punishment hanging over the accused if he or she is found guilty as a result of the proceedings. Criminal proceedings are therefore coercive in two particular respects: first, in terms of the manner in which defendants are required to participate in them and, second, in terms of the punishment they will suffer at the hands of the state if found guilty. An important indicator of trial fairness then becomes how the accused is protected within this coercive framework. This points to a further aspect in which the right to a fair trial differs from other human rights. Other rights such as the right to life, the right not to be subjected to torture, inhuman or degrading treatment and the right to privacy endure for all regardless of the position in which they are placed. But there are, in addition, certain protections specific to the fair trial rights that pertain to defendants by reason of their status as defendants. Searle has argued that institutions come into existence when there is a collective will to impose status functions on objects and people and certain rights, duties and entitlements flow from an object or person having a particular status.21 When individuals are charged with a criminal offence, the criminal justice enterprise bestows on them the status of ‘defendant’ which means that they 19  J Waldron, ‘The Rule of Law and the Importance of Procedure’ (2010) New York University Public Law and Theory Working Paper, Paper 234, 10–11; J Waldron, ‘How Law Protects Dignity’ (2012) 71 CLJ 1. 20  Waldron, ‘The Rule of Law’ (n 19) 13. 21 See JR Searle, Making the Social World: The Structure of Human Civilization (Oxford, Oxford University Press, 2010).

104  John D Jackson and Sarah J Summers become a party to the proceedings. Although as individuals they continue to exercise individual rights under the Convention, from the point of the ‘charge’ they also become subject as a party to certain entitlements as well as obligations which are collectively imposed on them and which continue to be imposed until the case is determined. These entitlements and obligations are part of an elaborate framework which society demands all defendants must be subjected to by virtue of their status as ‘defendants’. There is thus an important public interest attached to the right to a fair trial ­missing from other rights which requires that the rights are exercised within a particular procedural framework that operates not just for the benefit of defendants but for the benefit of society as well. This framework must, first, provide some epistemic standards to give assurance that only the guilty are punished and must, second, provide for institutions to counterbalance the power of the state in the process of guilt determination. We will consider the epistemic standards first of all. B. Accuracy One aspect of the fair trial standards in criminal cases that has come under criticism by growing numbers of commentators is that they are too defendant-centred. The first order values of dignity, autonomy and liberty are not there just to protect defendants in the criminal process but other individuals affected by crime and required also to participate in the proceedings. As already mentioned, there has been growing recognition of the need to respect the rights of victims and witnesses caught up in the criminal process. So although defendants are entitled to be treated with dignity and respect throughout the pre-trial and trial processes, it is recognised that victims and witnesses are also entitled to dignity and respect. As Dennis has argued, the principle of fair treatment forms part of the justification of the defendant’s right to a fair trial but this principle does not apply uniquely to the defendant.22 Reliance on the notions of dignity and autonomy then can do little in themselves to justify why the accused should be accorded certain process rights such as a right to disclosure of information or the right to examine witnesses when such rights risk impacting unfairly on other participants. One way of justifying these rights above those of others in the criminal process is to argue that there are consequentialist reasons beyond due process which justify different treatment for the accused as there is more at stake for accused persons who may lose their liberty if they are convicted. To prevent fair trial standards being simply balanced away against the rights of other participants in the criminal process, consequentialist arguments may be advanced to give them extra weight. On this analysis the standards do not merely express process rights defining how ­defendants should be treated in the criminal process but are aimed at certain objectives which are considered fundamental to criminal justice. One objective which is often referred to is the need to safeguard the accuracy of verdicts. A differentiation

22  I Dennis, ‘The Right to Confront Witnesses: Meanings, Myths and Human Rights’ [2010] Crim LR 255, 260.

Seeking Core Fair Trial Standards 105 can be made here between the general interest of the community and the interest of victims and witnesses in the accuracy of the verdict and the special interest of the defendant not to be wrongly convicted. The interests at stake between the community and victims and witnesses, on the one hand, and the defendant, on the other hand, are of a d ­ ifferent order when it comes to safeguarding accuracy and this justifies an asymmetrical approach being taken towards them.23 When defendants are wrongly convicted they suffer blame and punishment which Dworkin has described as a moral harm distinguishable from the ‘bare’ harm suffered by the community when a wrongdoer escapes justice.24 The need to avoid this harm not only entitles defendants to a presumption of innocence but also to procedures or standards which aim to avoid this outcome. Where the right to examine and cross-examine witnesses therefore serves to assist the accused in testing the accuracy of the evidence, it may be said to be given a special weighting which can offset other interests. In a case where in accordance with the rape shield laws in England and Wales the defence had been denied leave to cross-examine the complainant and lead evidence relating to her alleged sexual relationship with the defendant, the House of Lords held that the right of a defendant to call relevant evidence where the absence of such evidence may give rise to an unjust conviction is an absolute right which cannot be qualified by considerations of public interest no matter how well founded that public interest may be.25

There is, of course, a need to respect the rights of victims and witnesses as well as defendants. The stakes can be particularly high where witnesses fear that revealing their identity will result in a threat to their life but defendants claim that they need to know the identity of their accuser in order to mount their defence. Ultimately, the need to protect the witness and avoid an unjust conviction may result in the case being dropped. The community as a whole will be the loser but the rights of the ­witness and the accused will be safeguarded. Another way of looking at the need to protect against wrongful convictions which speaks more to the community interest is to see the safeguards as building confidence in the administration of justice. No defendant can be given a guarantee against wrongful conviction. While the fair trial standards may assist in avoiding such an outcome, when looked at in the round they are neither necessary nor sufficient conditions for assuring the accuracy of the verdict in every case. Rawls famously described the criminal trial as an example of ‘imperfect procedural justice’ where there is an independent criterion for the desired outcome—declaring the defendant guilty only if he or she committed the crime—but no feasible way of ­guaranteeing it.26 What the safeguards can do, however, is provide confidence that such an outcome is ­maximised as much as possible. This again emphasises the important c­ ollective or public aspect to the fair trial standards which are designed to do more than protect the interests

23  See J Jackson, ‘Justice for All: Putting Victims at the Heart of Criminal Justice?’ (2003)30 Journal of Law and Society 309, 317. 24 RM Dworkin, ‘Principle, Policy, Procedure’ in A Matter of Principle (Cambridge MA, Harvard University Press, 1985) ch 3. 25  R v A (no 2) [2001] UKHL 25, [2002] 1 AC 45 [161] per Lord Hutton. 26  J Rawls, A Theory of Justice (Oxford, Oxford University Press, 1999) 74 f.

106  John D Jackson and Sarah J Summers of defendants. A wrongful conviction does more than harm the accused; it harms all citizens, first because it means that the guilty defendant is still at large in society but also because it undermines the legitimacy of institutions such as the courts which are essential for upholding the rule of law. The need for public confidence in the rule of law leads us back to consider what further institutional features are required to safeguard a fair trial. C.  Judicial Impartiality and the Prosecutorial Role So far we have seen that fair trial standards are underpinned by first order values of dignity, autonomy and liberty and by the need to avoid wrongful convictions. These account for the need for a trial structure with an opportunity for the accused to make submissions and examine witnesses before an impartial tribunal which has the power to make an authoritative determination of guilt only on the basis of a high standard of proof. Recall, however, that within the criminal context there is an immense power differential between the state and the individual facing criminal charges. Where the state has a monopoly over the prosecution there is a particular danger of the process becoming contaminated through the monopoly of state power, hence the need to build in strong institutional safeguards to counteract this danger. While autonomy is an underpinning fair trial value, the participatory role that this entails for defendants is an incomplete account of what fairness requires in the criminal context because it does not take account of the coercive framework of criminal proceedings and the need to establish institutional safeguards to protect defendants. The nature of these safeguards can change and evolve over time, but during the course of the nineteenth century a consensus emerged across civil and common law countries that defendants should no longer be tried within a framework consisting purely of judges taking on the roles of prosecution, defence and judge or, as in ­England, of judges and juries taking on these roles.27 In civil law countries there was recognition of the need to separate the function of prosecuting from the function of judging and this in turn led to the need for an effective defence to represent the interests of the accused. In England, the absence of the prosecutor at trial was seen as problematic in that it had the potential to force the judge into acting as p ­ rosecutor.28 Tracing these developments within the work of nineteenth century jurists, it becomes clear that the roots of many of the fair trial standards that are to be seen in the human rights instruments rest upon the need to create an effective system of criminal justice which could be presented as legitimate and fair.29 Fairness, under this conception, requires more than simply providing the accused with the opportunity to exercise participatory rights; it requires that these rights be exercised within a particular procedural context. This framework consists of a

27  SJ Summers, Fair Trials: The European Criminal Procedural Tradition and the European Convention of Human Rights (Oxford, Hart Publishing, 2007). 28  D Bentley, English Criminal Justice in the Nineteenth Century (London, Hambledon Press, 1998) 65. 29  ibid 61.

Seeking Core Fair Trial Standards 107 (public) hearing, presided over by an independent and impartial judge. The interpretation of the requirement of judicial impartiality has had a particular impact on the structure of criminal proceedings.30 One of the inevitable consequences of insisting on judicial impartiality is to define the other non-judicial participants in the process as ‘parties’. This is of particular relevance in the context of the role of the ­prosecutor. On the one hand, the prosecutor as a state authority will often be obliged to display a certain degree of ‘neutrality’ in that he or she will be expected to consider exculpatory as well as incriminatory evidence31 or to observe certain ethical rules designed to ensure that accused persons are informed of their rights or made aware of the evidence.32 On the other hand, the prosecution is by its very nature defined by its institutional bias.33 The ethical obligations binding the prosecution do not imply that the prosecution is impartial. The role of the prosecution at trial thus takes on particular relevance. The presence of a strong prosecutor at trial might make it more likely that the judge is forced into the role of advocating for the accused; the absence of a prosecutor on the other hand might force the judge into the role of a prosecutor. In both these scenarios, the problem is ‘solved’ by securing the presence of another ‘party’ charged with advocating for the interests of the accused, thereby freeing the judge from obligations with regard to the prosecution or defence. There are certainly parallels here between this idea of the importance of balance in the proceedings as a means of ensuring judicial impartiality and the ‘equality of arms’ notion developed by the ECtHR in its case law.34 But equality of arms is a nebulous concept which is difficult to defend from an empirical perspective. Further, the equality of arms principle in Article 6 ECHR applies to both criminal and civil cases and therefore might be said to be incapable of capturing the complex dynamic between the state and the individual which is central to criminal proceedings. It is perhaps more useful to think of this requirement of balance in criminal proceedings as emphasising the separation of the functions of judging and prosecuting and the principle that the prosecution should not be able to profit from its proximity to the judiciary as an organ of the state. These basic structural requirements—impartial judiciary (which as we have suggested requires the involvement at trial of both the prosecution and counsel for the defence) and a public hearing—are, of course, ‘rights’ of the accused, and the accused is entitled to seek legal redress to ensure that they are enforced, but they also represent the essence of an effective and fair system of criminal justice and must therefore also be considered to be part of the architecture within which the accused’s rights are exercised. This means that the accused’s right to participate in the trial is set within particular parameters which he or she is unable to dispense with. In

30  Karttunen v Finland (dec), no 387/1989, 5 Nov 1992 [7.2]: ‘Impartiality of the court implies that judges must not harbour preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties’. 31  See, eg, Swiss Code of Criminal Procedure Art 6 (2). 32  American Bar Association, Model Rules of Professional Conduct, Rule 3.8. 33  For a case on the institutional bias of the prosecutor, see Piersack v Belgium (1983) 5 EHRR 169 [30] f. 34  JD Jackson, ‘The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?’ (2005) 68 MLR 737.

108  John D Jackson and Sarah J Summers the United States there has been a long debate as to whether defendants should be able to trade away procedural rights in order to secure more lenient punishment.35 In the nineteenth century there was a strong view that the public has an interest in a defendant’s life and liberty and that neither can be lawfully taken except in a mode prescribed by law. As the US Supreme Court (USSC) put it, ‘that which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused’.36 A number of commentators have remarked upon how the presumption in the nineteenth century that procedural rights were inalienable shifted in the twentieth century towards a presumption that they are alienable and that in many cases they can be traded away on the grounds that procedural rights belong to the defendant.37 The ECtHR has been less than clear on the extent to which key procedural rights can be waived. It has said that a waiver of a right guaranteed by the Convention must not run counter to any public interest, as well as being established in an unequivocal manner and be attended by minimum safeguards commensurate to the waiver’s importance.38 But it is unclear whether the institutional framework of a fair and public hearing by an impartial and independent tribunal established by the Convention, can be waived by the accused.39 We would argue that the accused should not be entitled to waive the structural aspects of the trial, namely the public nature of the hearing and the right to an independent and impartial judge—and as a corollary the presence of the prosecutor. The question whether the accused should be entitled to waive the right to the assistance of counsel, however, is more complicated. On the one hand, it can be said that it is self-evidently in the accused’s interest to be provided with a ‘mouthpiece’, allowing his or her ‘voice’ to be represented more effectively to the court. As well as this, however, it can be argued that the role of legal counsel is crucial to the legitimacy of the system as a whole because counsel can 35  See NJ King, ‘Priceless Process: Nonnegotiable Features of Criminal Litigation’ (1999) 47 University of California Los Angeles Law Review 113. 36  Hopt v Utah 110 US 574, 579 (1994). 37 See, eg, King (n 35); J Rappaport, ‘Unbundling Criminal Trial Rights’ (2016) 82 University of ­Chicago Law Review 181; Sklansky, ch 3 in this volume. 38  See, eg, Hakansson and Sturesson v Sweden (1991) 13 EHRR 1 [60]. See also the approach of the USSC in Zedner v United States 547 US 489 (2006) where it held that a defendant was not entitled to prospectively waive the right to a speedy trial as the requirement served to protect both the accused and the public interest. 39  The ECtHR has left the question whether applicants can validly waive the right to an independent and impartial tribunal open in a number of cases. See Pfeifer and Plankl v Austria (1992) 14 EHRR 692; Oberschlick v Austria (1995) 19 EHRR 389 [51]; and Bulut v Austria (1997) 24 EHRR 84 [30]; but see Suovaniemi v Finland (dec), no 31737/96, 23 Feb 1999 in which the Court seemed to imply that waiver was not possible. See further A Power, ‘Judicial Independence and the Democratic Process: Some ECtHR Case Law’ (International Bar Association Conference, 2012) (considering that the right cannot be waived). See also McGonnell v United Kingdom (2000) 30 EHRR 289; and Öcalan v Turkey (2003) 37 EHRR 10 in which the Court stated that acceptance by the defendant that a court had jurisdiction is not a waiver of this requirement. The UK courts appear to have accepted that it is possible to waive the right to an impartial court, see, eg, Millar v Procurator Fiscal, Elgin [2001] UKPC D4 (PC) per Lord Bingham; BTA Bank v Ablyazov [2012] EWCA Civ 1551, [2013] 1 WLR 1845. It has been suggested that the accused can waive the right to a public trial. See S Trechsel, Human Rights in Criminal Proceedings (Oxford, Oxford University Press, 2005) 121 f. However, it does not seem that the court has to accept a purported waiver. It would seem that the accused can request in camera proceedings but the court is entitled to weigh up the competing interests. It does not simply have to accept the accused’s request.

Seeking Core Fair Trial Standards 109 provide the necessary institutional support to counter-balance the prosecution and thereby ensure that the judge remains and is seen to be impartial. This suggests that it is problematic to consider the right of counsel as capable of being waived by the accused. On the other hand, imposing counsel on an unwilling defendant interferes with the accused’s presentation of his or her case. Given the fact that he or she will have to bear the consequences for the outcome of the case, this appears to be a grave intrusion on individual autonomy. We propose now to examine in more detail the specific right to counsel, which is particularly illustrative of the way in which the tension between the individual’s right to define the limits of his or her participation in the proceedings and the need for adversariality to protect a fair process can be reconciled. III.  THE RIGHT TO COUNSEL

In its interpretation of the fair trial standards that are contained in Article 6 of the ECHR, the ECtHR has given weight to both the accused’s autonomy rights and the need for principles of judicial impartiality and adversariality. The right to silence or the right against self-incrimination is now recognised universally in human rights law. The ECtHR has declared that this right, which is primarily concerned with respecting the will of an accused to remain silent, is at the heart of a fair trial and the emphasis on voluntariness is evident in much of the case law of the ECtHR.40 The minimum rights laid down in Article 6(3) ECHR are also couched in terms of personal rights of the accused: the right to be informed of the charge, to have adequate time and facilities to prepare the defence, to defend oneself or to have the assistance of counsel, to test witness evidence and, finally, to have the free assistance of an interpreter. But the ECtHR has also developed these rights by putting particular emphasis on the importance of the institutional principles of equality of arms and adversarial trial procedure.41 The values of individual autonomy and adversariality are linked together by the right to counsel, described in human rights instruments as the right to defend oneself in person or through legal assistance of one’s own choosing.42 This right has been described as ‘practically absolute’,43 although there has been some uncertainty about the stage in the criminal process at which legal assistance comes to the aid of defendants. Built into the wording is a strong notion of individual participation by the accused. Defendants can choose to defend themselves or through legal assistance of their own choosing. The suggestion is that counsel is there at the personal choice and as the personal representative of the accused. In this sense the right to legal assistance can be depicted as an expression of the principles of individual ­dignity and autonomy that have overlain so many of the individual rights in human

40  Saunders v United Kingdom [GC] (1997) 23 EHRR 313 [69]. See also Allan v United Kingdom (2003) 36 EHRR 12 [50]. 41  See Jackson (n 34). 42  See ECHR Art 6(3)(c), ICCPR Art 14(3)(d), ACHR Art 8(2)(d). 43  Trechsel (n 39) 266.

110  John D Jackson and Sarah J Summers rights ­instruments. Legal assistance serves to promote individual dignity by helping to ­alleviate the stress of facing charges and helping to supervise and control the activities of the law enforcement officers, ensuring that accused persons are treated ­properly.44 As well as acting in a protective capacity, counsel can also give expression to defendants’ participation more effectively than defendants themselves provided they faithfully adhere to carrying out their clients’ instructions and act in accordance with their wishes.45 The old adage that a defendant who tries to represent him or herself has a ‘fool for a client’ is an expression of the fact that even the most sophisticated defendants—even lawyers who are specialists in criminal law—can lose sight of the objectivity needed to put their defence effectively. Waldron argues strongly for legal representation to ensure that all have equal access to the law and can participate equally in its proceedings. Just as a non-English speaker must be ­provided with an interpreter, so a non-legally versed litigant should have a ‘mouthpiece’ through legal counsel so that their case can be put as effectively as possible.46 Counsel then acts as the mouthpiece through which an opportunity is given to litigants to make submissions and present evidence and to confront the other party with their evidence. But seen through the lens of an institutional ‘party’ right, counsel not only act as the defendant’s own ‘voice’ but also ensure that the most effective case is mounted against the prosecution, providing the ‘key’ which opens the door to all the rights and possibilities of defence in the substantive sense.47 Counsel not only act as a conduit for the defendant, they provide advice and assistance on how to mount the best case against the prosecution and are crucial therefore for the principle of ‘­adversarial’ testing of the prosecution case to take effect. In this sense, the right to counsel can be seen as guaranteeing both the rights of the accused and the institutional need for the prosecution case to be challenged. In many cases defendants will be happy to permit counsel to put their most effective defence on their behalf. There is room, however, in certain situations for conflict between the wishes of an individual and the interests of the defence. In order to resolve such tension it is necessary to consider again the nature of autonomy in the context of the exercise of criminal procedural rights. Once charged with a criminal offence, the autonomy of the accused person is necessarily qualified as he or she is subjected to an institutional, coercive process. The accused will be subjected to questioning, may be detained, and will be required to attend pre-trial hearings and the trial. More than this, however, the accused as a party will have to make strategic choices that affect his or her case—how to plead to the charges, what defences to present, whether to testify or remain silent, what evidence should be presented to the jury, what objections and legal arguments to make. It has been argued that these choices are a far cry from the positive vision of liberty that Berlin contemplated when he said that to be free an individual must be able to make decisions to realise personal goals unfettered by external forces or from Raz’s notion

44 

Trechsel (n 39) 245. Duff, L Farmer, S Marshall and V Tadros, The Trial on Trial vol 3: Towards a Normative of the Criminal Trial (Oxford, Hart Publishing, 2007) 211. 46  Waldron, ‘How Law Protects Dignity’ (n 19) 216 citing D Luban, ‘Lawyers as Upholders of Human Dignity (When They Aren’t Busy Assaulting It)’ (2005) University of Illinois Law Review 815, 819. 47  Trechsel (n 39) 245. 45  A

Seeking Core Fair Trial Standards 111 of autonomy which requires that a person must be independent and have an adequate range of options.48 The defendant may be afforded an opportunity to present certain evidence or register certain objections during a trial but he or she is not free to shut the trial down. In reality the kind of autonomy afforded to defendants in criminal trials can be likened to Raz’s Hounded Woman, hunted perpetually by a carnivorous animal on a small desert island which is in effect no real autonomy at all: even if she can choose between survival and death, it cannot be said that this choice has anything to do with autonomy.49 It is useful again to invoke here the distinction between the accused as an individual and the accused as a party. If not confined to custody, the accused may be free to continue to pursue his own goals outside the perimeters of the criminal justice system. But as a party within the proceedings, the accused’s options are much more limited and without the knowledge of how these may affect the outcome of the case provided by counsel, he or she will be unable to act autonomously as a party to the proceedings. These considerations help to inform questions such as the extent to which accused persons should be able to waive the right to counsel, whether they should be able to represent themselves in the proceedings and whether they should be able to insist on counsel carrying out their instructions. A. Waiver In view of the importance of defence counsel as a means of counterbalancing the weight of the prosecutor and thereby ensuring institutional equality in the proceedings, it is questionable whether accused persons should ever be entitled to waive the right to counsel. Allowing the accused to refrain from appointing counsel might result in an imbalance which could destabilise the proceedings and result in unfairness. In this sense, the ECtHR has frequently cautioned that fairness may well require that state authorities take steps to ensure that the accused is afforded the assistance of counsel.50 The assistance of counsel might be considered, in view of its status as an institutional guarantee, to serve an ‘important public interest’.51 It is true that insisting in all cases that accused persons are represented by counsel would seem to constitute a considerable intrusion into their personal autonomy to conduct their case as they wish.52 But it does not constitute such an intrusion if their autonomy as a party to criminal proceedings has already been considerably diminished by the

48  RE Toone, ‘The Incoherence of Defendant Autonomy’ (2005) 83 North Carolina Law Review 621, 655–59. 49  Raz (n 9) 374–76. 50  Panovits v Cyprus, no 4268/04, 11 Dec 2008 [66], ‘The lack of legal assistance during an applicant’s interrogation would constitute a restriction of his defence rights in the absence of compelling reasons that do not prejudice the overall fairness of the proceedings.’ 51  Håkansson and Sturesson (n 38) [66]; Sejdovic v Italy [GC] (2006) 42 EHRR 17 [86]: the waiver of a right guaranteed by the Convention—in so far as it is permissible—‘must not run counter to any important public interest’, must be ‘established in an unequivocal manner’, and must be attended by ‘minimum safeguards commensurate to the waiver’s importance’. 52 See J Chalmers and F Leverick, ‘“Substantial and Radical Change”: A New Dawn for Scottish ­Criminal Procedure?’ (2012) 75 MLR 837, 847 commenting that ‘it would be offensive to notions of freedom of choice and personal autonomy to force assistance upon someone who does not want it’.

112  John D Jackson and Sarah J Summers nature of the proceedings they are subjected to and if the choices that they are forced to make as a party require the assistance of counsel to act in their best interests. In resolving this matter it would seem that the state authorities must ensure that the accused makes the decision to waive the right to counsel in his or her guise as a party to the proceedings in full knowledge of what it means as a party to proceed without the assistance of counsel. Without the capacity to act autonomously as a party in full knowledge and understanding of the options and choices that are required to be made, a waiver cannot be valid.53 The ECtHR has recognised this by increasingly placing burdens on state authorities to demonstrate not just that the waiver was voluntary but also that the accused was aware of the legal and procedural consequences of waiver.54 Similarly, the EU Directive on the right of access to legal advice makes the acceptance of a waiver contingent on the suspect or accused person being provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right and the possible consequences of waiving it.55 The UK Supreme Court (UKSC) has recognised that where there is reason to believe that the suspect does not understand the right that is being waived, he or she may require legal advice before there can be a valid waiver.56 In a powerful dissent, Lord Kerr went further and considered that in any particular case it is for the prosecuting authorities which seek to rely on an alleged waiver to establish that it is effective: they must show not only that the suspect was made aware of the right to legal counsel and of the circumstances in which it could be provided, but also that he or she appreciated what was at stake and what the consequences of the absence of a lawyer might be for the viability of any defence the suspect might have to the charges about which he or she was questioned.57 His ­lordship correctly considered that the most obvious and easiest way of showing that the suspect has a proper insight into the significance of the decision to waive the right to counsel is for the suspect to be advised by a lawyer as to whether he or she should waive the right.

53  In this regard it is notable that the ECtHR has proven particularly unwilling to accept waiver in the context of various categories of accused persons, notably young people, people who do not speak the language of the proceedings and those with mental health problems. See, eg, Panovits v Cyprus (n 50). 54 In relation to implied waiver cases, see Talat Tunç v Turkey, no 32432/96, 27 Mar 2007 [59]; and Jones v United Kingdom (dec), no 30900/02, 9 Sept 2003. In relation to express waiver, see Paskal v Ukraine, no 24652/04, 15 Sept 2011 [77], where the ECtHR referred to the test as being whether the waiver constituted ‘an act of the accused’s free will and informed procedural choice’. 55  Directive 2013/48/EU of 22 Oct 2013 on the right of access to a lawyer [2013] OJ L294/1, Art 9(1); cf Proposal for a Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest, Brussels, COM (2011) 326/3, Art 9(1)(a). 56 See McGowan (Procurator Fiscal, Edinburgh) (Appellant) v B (Respondent) (Scotland) [2011] UKSC 54 reversing Jude, Hodgson and Birnie v HM Advocate, 2011 SLT 722, [2011] HCJAC 46 and remitting the question whether the Lord Advocate’s reliance at the trial of the respondent upon evidence of answers that the respondent gave during his police interview was compatible with his rights under ECHR Art 6(1) and 6(3)(c) in circumstances where the respondent was informed of his Art 6 rights of access to legal advice and without having received advice from a lawyer he indicated he did not wish to exercise such rights. 57  McGowan (n 56) [103] and [108].

Seeking Core Fair Trial Standards 113 B. Self-Representation Tensions can also occur between the defendant’s autonomy and the need for effective testing of the prosecution case when accused persons insist on representing themselves. The risk in permitting self-representation is that the defendant’s defence may not be conducted as effectively as it might otherwise be. The right to s­elfrepresentation is specifically referred to in human rights instruments as an alternative to the right of legal assistance,58 although there was little mention of its importance in the official drafting records of Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR) where discussion on representation centred instead upon the right of access to counsel, the choice of counsel and the problem of indigent defendants.59 This tension can be illustrated by the different attitudes which US justices took towards the right to self-representation in the US Supreme Court decision of Faretta v California.60 The majority upheld the right to self-representation as a constitutional right which could not be taken away by a state or one of its courts, although it is a right that could be forfeited when a defendant acts in a disruptive manner.61 In his dissenting opinion in Faretta, however, Justice Blackmun brought out the stark implication of an extreme attachment to the right of self-representation when he drew attention to the obvious ­dangers of unjust convictions that could result. The right to self-representation detracted from the importance of the right to counsel. Just as the right to counsel ensures a fair trial, the right to waive representation threatened to undermine the right to a fair trial. Human rights law has given mixed signals about the importance to be attached to the right to self-representation. The UN Human Rights Committee has held that there was a breach of the Covenant when the applicant claimed that the Court had denied his request to defend himself through an interpreter.62 The European C ­ ommission and ECtHR, however, have stated that the requirement that a defendant be assisted by counsel at all stages of the proceedings cannot be deemed incompatible with the ECHR.63 The ECtHR’s approach might be understood as leaving a ‘proper margin of appreciation’ to states to determine whether the appointment of counsel contrary to the wishes of the accused is justified.64 But equally it can be read as being in line with an adversarial conception of criminal proceedings in which the interests of the accused are understood principally in the context of the rights of the defence as a party. 58 

See n 42. M Scharf, ‘Self-Representation versus Assignment of Defence Counsel before International Criminal Tribunals’ (2006) 4 Journal of International Criminal Justice 31, 34; see also D Weissbrodt, The Right to a Fair Trial under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (Martinus Nijhoff, The Hague, 2001) 57. 60  Faretta v California (n 14). 61  Arguments such as that the accused lacks technical legal competence or the inability to mount an effective defence, will not constitute legitimate reasons for denying the right of self-representation. The court must however ensure that the accused is aware of the nature of the charges, the possible penalties and the dangers and disadvantages of self-representation, United States v Hernandez 203 F3d 614 (9th Cir 2000). The court must ensure though that the accused is capable of making an ‘intelligent’ choice to proceed without counsel, see Iowa v Tovar 541 US 77, 124 (2004). 62  Michael and Brian Hill v Spain, no 526/1993, 2 Apr 1997, UN Doc CCPR/C/59/D/526/1993. 63  Croissant v Germany (1993) 16 EHRR 135; Lagerblom v Sweden, no 26891/95, 14 Jan 2003. 64  Trechsel (n 39) 265 f. 59 See

114  John D Jackson and Sarah J Summers The issue of self-representation has created difficulty in the international criminal tribunals where the tribunals have been unable to reach a consistent position, although this might be explained by the particular context in which the courts and tribunals are operating.65 Initially the approach of the International Criminal ­Tribunal for the former Yugoslavia, for instance, reflected the view that where at all possible, opportunities should be given to accused persons to address the court and, if they wish to, protest against the political regime and justice system that has put them on trial.66 This was well illustrated by the ruling of the Appeals Chamber in the Milošević case which referred to the drafters’ view of self-representation ‘as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent’.67 This approach was subject to considerable criticism,68 and was altered by the creation of a new rule which allowed for the Registrar to assign counsel ‘if it decides that it is in the interests of justice’.69 One way again of preserving the accused’s autonomy as a party in making the choice to represent oneself is to ensure that this is only permitted when he or she is made fully aware of what representation as a party requires. In common law systems in particular where counsel either act as the representative of the accused or the accused must defend herself unaided by counsel,70 it would seem that the accused should be given legal advice on what self-representation requires before embarking on such a treacherous journey. Assuming, however, that the accused has the c­ apacity to represent him or herself, he or she should not be prevented from doing so. The reason why the accused in Faretta v California wished to represent himself was because he believed he could present his case better than the state appointed counsel appointed on his behalf.71 If having taken legal advice on what self-representation requires, an accused who continues to persist in this belief should have his or her wishes respected. However, if the accused decides to go ahead and represent him or herself, this should not prevent the court additionally appointing counsel where this is necessary to ensure that the interests of the defence are effectively represented and that the public interest in a fair trial is assured.72 A number of common law

65  M Damaška, ‘Assignment of Counsel and Perceptions of Fairness’ (2005) 3 Journal of International Criminal Justice 3 arguing that an adolescent criminal justice system with fragile legitimacy must be ­sensitive to the demand that individual accused persons are given a voice in the proceedings. 66 One of the most effective examples of this is Nelson Mandela’s statement from the dock in the ­Rivonia trial where Mandela was also represented by counsel: see N Mandela, Long Walk to Freedom (Little, Brown, Boston, 1994) 432–38. 67  Slobodan Milošević v Prosecutor, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, IT-02-54-AR73.7, 1 Nov 2004. 68 See, eg, S Trechsel, ‘Rights in Criminal Proceedings under the ECHR and the ICTY Statute— A ­Precarious Comparison’ in B Swart, A Zahar and G Sluiter (eds), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Oxford, Oxford University Press, 2011) 180. 69  ICTY RPE 45ter. 70  See Wohlers, ch 7 in this volume. 71  The USSC has acknowledged that in the US there is no evidence that defendants who have represented themselves have fared significantly worse than represented defendants. See Indiana v Edwards 128 S Ct 2379 (2008) and Hashimoto (n 14). 72  Trechsel (n 39) argues that it is important to distinguish between the right of the accused to act in his or her own defence which is ‘relatively absolute’ and the right not to be assisted by counsel which is much more debatable, 251 f, 263–66. See also Wohlers, ch 7 in this volume.

Seeking Core Fair Trial Standards 115 j­urisdictions have resorted to appointing standby counsel when accused persons insist on representing themselves who can play a role in assisting defendants when they need help.73 There is a particular justification for appointing counsel to conduct the cross-examination of complainants in place of an accused who is representing himself in order to protect complainants from being subjected to degrading or humiliating treatment by the accused and to protect their right to privacy.74 Such provisions might be seen as restricting the autonomy of the accused but they give full force to the principle of adversariality. C.  Acting on Instructions Another potential conflict between the accused’s individual autonomy and the need for adversariality arises in the context where there is a disagreement about how the defence should be conducted. Much of the literature on the legal ethics of the defence lawyer is predicated upon the notion that the defence lawyer must respect the wishes of his or her client and act upon his or her instructions.75 At the same time, lawyers are given considerable freedom to conduct the case and the defendant’s final word would seem to be confined to two decisions—whether to plead guilty and whether to give evidence.76 Under present procedures which give considerable scope for plea bargaining, lawyers can be drawn into trying to reduce a charge or to obtain some indication of sentence without giving due attention to the evidence against the accused.77 To preserve client autonomy ethical rules are needed to require that ­counsel do not put their clients under pressure to plead guilty.78 But the kind of discounts that can be secured often means that the client is understandably willing to accept the discount whether guilty or not.79 If these discounts were less dramatic, greater attention might be given by lawyers to the strengths and weaknesses in the case before advising their client on whether to seek an indication of sentence. Much ­attention has been given over the years to the classic dilemma of what a lawyer should do when a client privately admits to the offence charged but wishes to contest it publicly in court.80 Given the present level of discounts for pleading guilty,

73  See AB Poulin, ‘The Role of Standby Counsel in Criminal in Criminal Cases: In the Twilight Zone of the Criminal Justice System’ (2000) 75 New York University Law Review 676. 74  See Youth Justice and Criminal Evidence Act 1999 s 34 (prohibiting defendants charged with sexual offences from cross-examining in person a witness who is a complainant in connection with that offence). Section 35 also prohibits the cross-examination of children in person in cases that extend beyond sexual offences and s 36 empowers the court to prohibit cross-examination in person of other types of witnesses. Section 38 provides for the appointment of counsel to undertake the questioning of such witnesses. 75 M Freedman, ‘Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions’ (1966) 64 Michigan Law Review 1480 f; cf D Luban, Lawyers and Justice (Princeton, ­Princeton University Press, 1988). 76  M Blake and A Ashworth, ‘Ethics and the Defence Lawyer’ (2004) 7 Legal Ethics 167, 183. 77  M McConville, ‘Plea Bargaining: Ethics and Politics’ (1988) 25 Journal of Law and Society 572 and in S Doran and J Jackson (eds), The Judicial Role in Criminal Proceedings (Oxford, Hart Publishing, 2000) 67. 78  Blake and Ashworth (n 76) 181 f. 79  RL Lippke, The Ethics of Plea Bargaining (Oxford, Oxford University Press, 2011) 82. 80  This dilemma has become the subject of much popular fiction. See, eg, AM Dershowitz, The ­Advocate’s Devil (New York, Warner, 1994).

116  John D Jackson and Sarah J Summers ­ owever, it is perhaps surprising that less attention has been given to the situation h where the client claims that he or she is innocent of the charge but nevertheless wishes to plead guilty. An approach which emphasises client autonomy would suggest that counsel should let the client do as he or she wishes. But this can conflict with the interests of justice.81 As Blake and Ashworth have put it, ‘the defence advocate represents more than the client—she or he is simultaneously responsible for maintaining fundamental guarantees central to the justice system’.82 The ethical dilemma which can arise in such situations was graphically illustrated by the situation in which the narrator in Bernhard Schlink’s novel, The Reader, found himself in when he was observing the trial of a number of women who were SS guards during World War II in a camp where they allegedly allowed a number of prisoners in their care to be burned to death after an explosion in a church.83 The doors of the church had been locked and the women could have unlocked them but did not. The trial turns its attention to one particular accused who falsely admitted writing a report which seemed to point to her being primarily responsible for the deaths. The book turns on the dilemma of the narrator who realises from a previous relationship with the woman that she is illiterate and could not have written the report. Suddenly thrust into the role of a participant and not merely a spectator, he has to decide whether to intervene and tell the court the truth, gaining a lighter punishment for the woman but in the process exposing the secret she had tried to keep from the court—that she was illiterate. The narrator goes to his father, a ­philosopher, who instructs him on the individual, freedom and dignity—the human being as subject and the fact that one must not turn him into an object. His father advises that there is no justification for setting other people’s views of what is good for them above their own ideas of what is good for themselves. While this would seem to solve the dilemma for the narrator—a bystander with no obligation to the court—the defence lawyer with an institutional responsibility to put forward an effective defence is in a different role. In order to ensure that ­justice is done by way of proper testing of the evidence, he or she must take steps, if necessary against the wishes of the defendant, to ensure that an effective defence is put. The proper course may be for counsel to refrain from continuing to represent his or her client in such circumstances. Counsel should respect the client’s wish to plead guilty but cannot as a representative of the interests of the defence collude in an unjust outcome.84 Where there is a clash between protecting the autonomy of the accused as an individual and protecting the institutional interests of the accused as a party, the wider obligation of counsel to protect the latter should prevail. Ultimately, the accused in such a case may appear unrepresented before the

81 

See L Bridges, ‘The Ethics of Representation on Guilty Pleas’ (2006) 9 Legal Ethics 80. Blake and Ashworth (n 76) 189. B Schlink, The Reader (translated by CB Janeway) (London, Phoenix, 1997). 84  Certain ethical codes suggest that there may be circumstances in which it would be improper to continue to represent a client who privately asserts innocence but intends to plead guilty just as there are circumstances when a lawyer may not continue to represent a client who insists on denying guilt in court after having privately admitted his guilt. See Bridges’ commentary on Bar Council, Written Standards for the Conduct of Professional Work (1998) [11.5.1]–[11.5.3] (n 81) 90–91. 82  83 

Seeking Core Fair Trial Standards 117 court which would create an institutional imbalance that may need to be corrected by a court-appointed counsel representing the interests of the defence rather than merely the interests of the accused. The institutional will of the public to ensure that no injustice is done should ultimately prevail over the personal preferences of the individual. IV.  MEETING CHALLENGES TO THE FAIR TRIAL STANDARDS

We have argued that there is an important institutional aspect to the fair trial standards which requires, in the nature of all public institutions, that the public interest is taken into account as well as the interests of the individual defendant caught up in the criminal process. There is a public interest and not merely an individual interest in promoting fair trial standards and this public interest comprises the need to ensure that the rule of law prevails through the institutional safeguards of judicial impartiality and adversarial testing. When the participation of the defence as a party to the proceedings is given a value beyond the right of the individual accused to participate in criminal proceedings, and is seen as a vital means of ensuring the rule of law through a process of judicial impartiality aided by adversarial testing of the prosecution case, then the rights of the defence cannot be easily balanced away by other interests. This is not to say that respecting the autonomy of the accused in the criminal process is not important. It is just that it should not be the key value underpinning the fair trial standards. Instead attention should focus on the need for adversarial testing of the case against the accused, requiring that defendants are provided with institutional assistance, invariably the assistance of counsel, in order to offset the role of the prosecution. Key decisions should not be taken without the participation of counsel, as it is counsel who provides the key to opening the door to the rights and possibilities of the defence. As we saw earlier, this is not because defence participation guarantees or assures a factually accurate outcome. The prosecution may produce evidence in any particular case that is considered perfectly reliable by the tribunal of fact. But if we exclude the defence from being able to test it, we exclude a core party from the machinery that has been accepted as part of the way in which truth finding is conducted and justified in criminal trials. The institutional need to offset the role of the prosecution provides a sounder basis then than the notion of defendant autonomy for an understanding of what is at the core of a fair trial. This can be illustrated when we re-visit some of the challenges mentioned earlier that have been mounted against the fair trial standards in recent years and how these might be met. Of particular concern in this regard is the ­pressure to avoid trials altogether, the need to withhold sensitive sources of information and the need to protect witnesses and victims in criminal trials.

A.  Trial Avoidance We take as a first example the substitution of the oral public trial by processes of negotiated justice which are now increasingly common across both common law

118  John D Jackson and Sarah J Summers and civilian processes.85 It is problematic to permit any waiver of trial purely on the basis of the accused’s consent, since an accused should not be able to consent to fundamentally unfair processes. In this regard it seems to be irrelevant whether trial waiver takes place in the coercive atmosphere of the police station after an admission to an offence and an agreement to a community order of some kind or in the aftermath of plea negotiation with the prosecution after an indication has been given to the accused as to what his or her sentence will be if he or she pleads guilty. It is hard to see how consent procured through a bargaining process that is more usually than not conducted between unequal parties can provide the basis for the claim that there has been a fair trial.86 What would provide some assurance of fairness, on the other hand, would be if some opportunity were provided for testing the prosecution case that was built into the process before cases were finally disposed on the basis of consent. In order for such an opportunity to be provided, it would seem that at the very least the suspect or accused should be able to access legal advice prior to being questioned by the police. In Salduz v Turkey the ECtHR expressly linked the right of access to a lawyer to the fulfilment of the aims of Article 6, notably ‘equality of arms between the investigating or prosecuting authorities and the accused’.87 The ECtHR underlined the importance of the investigation stage for shaping the evidential framework in which the offence charged will be considered at trial. Furthermore: an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the gathering and use of evidence.88

In the ECtHR’s view, this particular vulnerability could only be properly compensated for by the assistance of a lawyer. An opportunity for legal advice on the evidential aspects of the case accompanied by early disclosure so that defence lawyers receive sufficient information about the case and the evidence would allow for some evidential scrutiny by the defence. As argued above, this opportunity should not be susceptible to waiver except on the basis that the accused as a party to the proceedings was made fully aware of the implications of the case proceeding without such scrutiny. Uncertainty remains in relation to the situation of suspects who are questioned prior to their detention. In Zaichenko v Russia the ECtHR, in a majority decision, seemed to suggest that the right to assistance of counsel prior to questioning could be restricted to cases where the accused was in custody.89 This judgment appears 85 M Langer, ‘From Legal Transplants to Legal Translations: The Globalisation of Plea Bargaining and the Americanization Thesis in Criminal Process’ (2004) 45 Harvard International Law Journal 1. See the arguments in T Weigend, ‘The Decay of the Inquisitorial Ideal: Plea Bargaining Invades German Criminal Procedure’ in J Jackson, M Langer and P Tillers (eds), Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaška (Oxford, Hart Publishing, 2008) 39. 86  T Weigend, ‘Should We Search for the Truth, and Who Should Do It?’ (2011) 36 North Carolina Journal of International Law and Commercial Regulation 389, 411. 87  Salduz v Turkey [GC] (2009) 49 EHRR 19 [53]. 88  ibid [54]. 89  Alexsander Zaichenko v Russia no 39660/02, 18 Feb 2010.

Seeking Core Fair Trial Standards 119 unduly narrow and seems to encourage the undesirable practice of questioning suspects outside of the formal interview context. As Judge Spielmann noted in his dissent: Nothing should have prevented the police officers from apprising the applicant immediately … of his right to legal assistance and asking him to accompany them to the police station, where the interview could have been conducted in conditions complying with the requirements of Article 6(3) (c).

In Ambrose v Harris,90 the UKSC followed the ruling in Zaichenko in holding that there was a distinction between interrogation within and outwith the custodial setting. In a strong dissenting opinion, however, Lord Kerr concurred with the argument that the right to a fair trial ‘should not be viewed solely as a measure for the protection of individual interests’. Instead, it was argued, it was in the interests of society as a whole that those whose guilt or innocence may be determined by reference to admissions that they have made in moments of vulnerability are sufficiently protected so as to allow confidence to be reposed in the reliability of those confessions.91

In Lord Kerr’s view, the ‘role that a lawyer plays when the suspect is participating in what may be a pivotal moment in the process that ultimately determines his or her guilt is critical.’ Consequently, he argued, correctly it is submitted, that it was immaterial ‘whether someone is over the threshold of a police station door or just outside it when the critical questions are asked and answered’; equally it was irrelevant ‘whether, at the precise moment that a question is posed, the suspect can be said to be technically in the custody of the police or not’.92 Another ‘pivotal moment’ that ultimately determines the accused’s guilt is when the accused decides to plead guilty. Here it can be asked whether enough adversarial testing of the prosecution case is built into the process simply by the accused having access to legal assistance and advice. Even if the incentives to plead guilty were minimised well below the present levels of discount that can be given for guilty pleas, accused persons may be all too willing—rationally or otherwise—to take any incentives that are offered. Although this may well satisfy the requirement of individual autonomy, it hardly satisfies the need to ensure that the case against the accused is effectively tested. One way of instilling some degree of testing into the process ­without going to the length of a full trial or even a ‘slow plea’ (as an abbreviated trial is sometimes called)93 would be to provide for settlement hearings in cases where accused persons are disposed to plead at which there would be an opportunity for counsel to question the state’s charges and the evidence for them in a public arena before the defendant decides to plead on the basis of any indication of sentence offered.94 As with decisions to waive the right to counsel, the principle of autonomy

90  Reference: HM Advocate v Ambrose (Procurator Fiscal, Oban) (Scotland) [2011] UKSC 43, [2011] 1 WLR 2435. 91  ibid [132]. 92  ibid [133]. 93  See SJ Schulhofer, ‘Is Plea Bargaining Inevitable?’ (1984) 97 Harvard Law Review 1037. 94  See the procedure sketched by Lippke (n 79) 17–20.

120  John D Jackson and Sarah J Summers is preserved by allowing the accused to plead, but at least the decision would be made after the case had been probed at a public hearing with the judge having to be satisfied that at least the relevant sufficiency standards had been met.95 B.  Sensitive Information Thus far it has been argued that the notion of defendant autonomy does not provide a complete basis for an understanding of what is at the core of a fair trial. Other challenges that have been made to the fair trial standards illustrate that the notion can actually serve as a barrier to promoting an adversarial testing of the prosecution case. The need to protect sensitive information in terrorist and other trials poses a challenge to the principle of full disclosure which requires that all relevant evidence should be disclosed to the defence. The principle of counsel–client confidentiality which puts a premium on client autonomy in its prescription that all information must be shared between counsel and client, has led prosecutors to argue that it is not possible to disclose particularly sensitive types of information to the defence. It is well established as a fundamental requirement of a fair hearing that the accused must be made aware of the evidence against him.96 Any information that may prove a defendant’s innocence or avoid a miscarriage of justice also needs to be disclosed or the case must be withdrawn.97 But difficulties occur where the information is more ambiguous. The ECtHR has held that there must be judicial scrutiny of such evidence in order to decide whether there should be disclosure or not, but it has been less clear about whether there needs to be an adversarial procedure at these disclosure hearings.98 However, in Edwards and Lewis v United Kingdom,99 a purely ex parte application excluding the defence fell foul of Article 6. One compensating safeguard would be to appoint a special counsel advocate to represent the interests of the defence at these disclosure hearings. Special advocates are now used in a variety of other situations in the UK to represent the interests of parties who are excluded from closed hearings where sensitive material is used to help determine the case.100 They were first used in special immigration hearings after the ECtHR ruled in Chahal v United Kingdom that the system for reviewing deportation decisions in immigration and asylum cases involving national security was in breach of Article 5(4) of the ECHR.101 Following the ruling in Edwards and Lewis the House of Lords accepted that the procedure could be adopted in ‘cases of exceptional difficulty’ in ex parte disclosure hearings in criminal cases where the

95 

Lippke (n 79) 24. See, eg, Rowe and Davis v United Kingdom [GC] (2000) 30 EHRR 1 [60]; D Corker and S P ­ arkinson, Disclosure in Criminal Proceedings (Oxford, Oxford University Press, 2009) [5.15]. 97  See, eg, Marks v Beyfus (1890) 25 QBD 494, 498. 98  See, eg, Fitt v United Kingdom [GC] (2000) 30 EHRR 480; Jasper v United Kingdom [GC] (2000) 30 EHRR 441. 99  Edwards and Lewis v United Kingdom [GC] (2005) 40 EHRR 24. 100  See J Jackson, ‘The Role of Special Advocates: Advocacy, Due Process and the Adversarial T ­ radition’ (2016) 20 International Journal of Evidence & Proof 343. 101  Chahal v United Kingdom [GC] (1997) 23 EHRR 413. 96 

Seeking Core Fair Trial Standards 121 prosecution claims public interest immunity from disclosure.102 But the House of Lords was reluctant to encourage the procedure more generally in such cases on the ground that special advocates cannot take instructions from the defendant once the closed security file has been disclosed to them for fear that its contents might be inadvertently leaked to the defendant.103 As Lord Bingham put it, a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession.104

Special advocates are certainly handicapped in presenting an effective defence in such circumstances, but it is important to see that their function in public interest immunity applications in criminal cases is limited to making arguments about disclosure which would not otherwise be made on behalf of the defence. This disclosure function of special advocates is quite different from the function that has been assigned to special advocates in immigration cases and which the UK Government has extended to a range of other civil cases where secret evidence as part of the case against a party is withheld from the party; in these cases the special advocate’s function is to represent the interests of the party in the substantive hearing which determines the merits of the case.105 The quite natural reluctance of the UKSC in Al Rawi and others v The Security Service and others106 to extend this procedure to other civil cases in the absence of statutory authority should not therefore be equated with judicial reluctance to extend the use of special advocates in public interest immunity applications in criminal cases.107 The former procedure erodes fairness standards by excluding the party from knowing the case against it, whereas the latter procedure enhances procedural fairness by introducing an ­element of adversariality into a procedure where there would otherwise be none. It is hard to see why a curtailment of the principle of confidentiality should be used as an argument for restricting the use of special advocates when the alternative is that there is no adversariality at all in public interest immunity applications.108 The principle of individual autonomy is qualified to the extent that there is no counsel–client confidentiality between the security-cleared counsel and the accused person. Such counsel are required to protect the interests of the accused but are not professionally responsible to him. But

102 

R v H and C [2004] UKHL 3, [2004] 2 AC 134 [36] per Lord Bingham. discussion in A Boon and S Nash, ‘Special Advocacy: Political Expediency and Legal Roles in Modern Judicial Systems’ (2006) 9 Legal Ethics 101. 104  R v H and C (n 102) [22]. 105 The difference between the special advocate’s disclosure role and substantive role is stressed in Justice, Secret Evidence (London, 2009) [445]. Provision is made for secret substantive hearings in Part 2 of the Justice and Security Act 2013. 106  Al Rawi and others v The Security Service and others [2011] UKSC 34, [2012] 1 AC 531. 107  Lord Bingham himself emphasised the limited role for special advocates in criminal cases in Roberts v Parole Board [2005] UKHL 45, [2005] 2 AC 738 [31] where he said that it was not suggested or contemplated in R v H that any part of the prosecution case could be properly withheld from the defendant and his legal representative. 108  See the recommendation for a ‘public interest’ advocate to perform such a role in Justice (n 105) [44] f. 103  See

122  John D Jackson and Sarah J Summers the system facilitates a degree of adversarial testing as to whether evidence should be disclosed in the interests of the defence that would otherwise be lacking. C.  The Need to Protect Witnesses and Victims We have seen that defendants have a right to be treated with respect and dignity within the criminal process but so also do victims and witnesses. The principles of dignity and autonomy thus cannot explain how the fair trial standards should be met when the personal rights of witnesses and defendants come into conflict. We have also seen that the need to avoid a wrongful conviction may provide a more secure grounding for the standards in such circumstances. Avoiding a wrongful conviction may require that a prosecution is abandoned where knowledge of the witness’s identity is necessary to mount the accused’s defence but it is too dangerous to disclose the witness’s identity. But this does not justify a defence right of disclosure of the witness’s identity in every case where the witness’s contested evidence constitutes the sole or decisive evidence in the case, as required in some of the jurisprudence,109 nor does it justify the right of the defence to examine witnesses in every case where their contested statements constitute the sole or decisive evidence of guilt. In R v ­Horncastle,110 the UKSC took issue with the proposition that in the case of either absent or anonymous witnesses, the demands of a fair trial require that a sole or decisive test should apply regardless of the particular circumstances and of the cogency of the evidence. In Al-Khawaja and Tahery v United Kingdom, the ECtHR Grand Chamber drew back from insisting upon the right to examine sole or decisive witnesses in every case.111 The UKSC’s concern was that, if applied uncritically, such a rule would result in the acquittal or failure to prosecute defendants where there is cogent evidence of their guilt. In its view the right to cross-examination is not sacrosanct: everything depends on the presumptive reliability of the statements that have been made. Reliability is, of course, important but fairness in the sense of Article 6 cannot be understood as being synonymous with reliability. A fair verdict is more than simply a reliable verdict.112 Fairness as we have explained demands that the defence is afforded the opportunity to challenge contested evidence in an adversarial environment. This is the manner in which the reliability of the evidence is to be determined and indeed ensured. This opportunity cannot be substituted by judicial confidence that the evidence is reliable and the conviction is safe, even if the judges in question have years of experience in assessing the credibility of witnesses.

109 See Doorson v Netherlands (1996) 22 EHRR 330; cf R v Davis [2008] UKHL 36, [2008] 1 AC 1128; R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47. 110  R v Horncastle (n 109). 111  Al-Khawaja and Tahery v United Kingdom [GC] (2012) 54 EHRR 23. For commentary see M Redmayne, ‘Human Rights and Hearsay: Al-Khawaja in the Grand Chamber’ (2012) 75 MLR 865; L Hoyano, ‘What is Balanced on the Scales of Justice? In Search of the Essence of the Right to a Fair Trial’ (2014) Crim LR 4; J Jackson and S Summers, ‘Confrontation with Strasbourg: UK and Swiss Approaches to Criminal Evidence’ (2013) Crim LR 114. 112  See Hoyano (n 111) 20 f.

Seeking Core Fair Trial Standards 123 Only the principle of adversarial testing, giving the defence an opportunity to challenge crucial incriminating evidence before it is evaluated by the judge or jury, would seem capable of doing justice to fair standards in these circumstances. This may not entitle the defence to examine important witnesses in every case when their statements can be adequately tested by other means. In Al-Khawaja and cases subsequent to it, the ECtHR has accepted that the existence of other corroborative evidence can constitute a ‘counterbalancing safeguard’.113 But the more a case rests upon witness statements in respect of which there is an absence of supporting or undermining evidence, the more it can be said that fairness demands that there should be an opportunity to examine these witnesses. The point, again, is not that the witness needs to be questioned in order to determine whether the statement is reliable. Despite the epistemic claims sometimes made for cross-examination, it is questionable how effective it is in determining the truth.114 The question is rather whether, as a matter of fairness, the defence ought to be given an opportunity to put a version of events directly to an important witness which is different from that advanced by the prosecution. If the prosecution has been able to question a witness and rely on a statement which is clearly inculpatory, why should the defence not be able to probe the witness who made it to see how reliable it is? Institutional equality between the parties in order that the judge can reach an impartial evaluation of the evidence would seem to demand this. If the judge has to rely on evidence adduced by a prosecutor in the pre-trial phase which the defence has not had the opportunity of testing, it is difficult to see how the judge can conduct any impartial evaluation of the evidence. As the ECtHR has recognised, this need not necessarily be done in the full publicity of an oral trial.115 What is required is that the defence is given an opportunity at some stage to question a witness whose evidence is pivotal to the prosecution’s case. V.  CONCLUSION: TOWARDS A SHARED UNDERSTANDING OF FAIRNESS

This chapter has argued that where the state has a monopoly on prosecution and punishment, the rule of law on which the legitimacy of the exercise of state power depends demands that there are institutions that provide an independent and impartial means of evaluating the guilt of the accused. Simply giving the responsibility of

113 See Al-Khawaja and Tahery (n 111) [156]; Vidgen v Netherlands, no 29353/06, 10 July 2012; Hümmer v Germany, no 26171/07, 19 July 2012; Schatschaschwili v Germany (GC), no 9154/10, ECHR 2015 [126]–[131]; see too AG v Sweden (dec), no 315/09, 10 Jan 2012; Chmura v Poland, no 18475/05, 3 Apr 2012 [50]; Gani v Spain, no 61800/08, 19 Feb 2013 [48]; and Brzuszczyński v Poland, no 23789/09, 17 Sept 2013 [85] f and [89]; Bobeş v Romania, no 29752/05, 9 July 2013 [46]; Prăjină v Romania, no 5592/05, 7 Jan 2014 [59]; and Nikolitsas v Greece, no 63117/09, 3 July 2014 [35], [37]; Sellick and Sellick (dec), no 18743/06, 16 Oct 2012 [55]. 114  Wigmore’s famous dictum that cross-examination is ‘beyond any doubt the greatest legal engine ever invented for the discovery of truth’ has been subjected to much critical scrutiny over the years. See JH Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, rev JH Chadbourn (Boston MA, Little, Brown, 1974) V [1367] 32. 115  Kostovski v Netherlands (1990) 12 EHRR 434 [41].

124  John D Jackson and Sarah J Summers determining guilt to an independent judge (or jury) within a procedure where the parties should be heard and guilt determined on the basis of a high standard of proof is not sufficient to guarantee the impartiality of the verdict without instituting an adversarial environment where the defence is able to test the case against the accused in a position of institutional equality with the prosecution. The verdict that emerges cannot be guaranteed to be reliable but it can be accepted by the public as well as the accused on the basis that it is fair. This framework is one that can be accommodated across both common law and civil law systems. Some consider that these systems adopt fundamentally inconsistent methodologies, objectives and epistemologies.116 But in today’s procedural ­systems which do not reflect adversarial or inquisitorial ideal types in their pure form, a great deal of consensus can be reached on fundamental values.117 One can discern a greater emphasis in common law systems on respecting an accused’s autonomous right to decide whether and how to participate in defending herself while civilian systems have traditionally placed greater emphasis on a more ‘social’ approach which obliges states to take positive action to protect the rights of the accused.118 This difference of approach would seem to be reflected in different political ideologies underpinning the two systems—classical laissez-faire liberalism versus a more paternalistic attitude.119 But there is a consensus across both systems that in the enforcement of the criminal law, there is a strong public interest in ensuring that the exercise of state power is legitimated by institutions that underpin the need for independent and impartial scrutiny. This framework also helps explain why certain rights such as the right to c­ ounsel and the right to confrontation cannot be easily balanced away by other interests. Consensual disposal of cases out of court may be permitted but there must be mechanisms in place which permit a degree of adversarial testing of the prosecution case to take place. This would seem to require that an early opportunity is given for counsel to be appointed to represent the interests of the defence with the accused free to refuse legal assistance only after being advised of the strength of the prosecutor case and of his or her defence rights. There can then be at least some assurance that any admission of guilt or consent to a particular disposal is based on an assessment of the strength of the prosecution case. Similarly, it has been argued that there must be some opportunity for the case to be tested before a defendant exercises the choice to plead guilty to the offence. If the case proceeds to trial, the guarantee of a fair verdict requires that there is an adversarial testing of the charges. If the accused refuses the assistance of counsel, the court should have the power to appoint counsel to ­represent the interests of the defence, if need be against the wishes of the accused. The need to ensure that the charges against the accused are properly probed may

116  See R Vogler, ‘Making International Criminal Procedure Work: From Theory to Practice’ in R H ­ enham and M Findlay (eds), Exploring the Boundaries of International Criminal Justice (Ashgate, Farnham, 2011) 105, 114. 117  Weigend (n 86). 118  Trechsel (n 39) 263 f. 119  Damaška (n 65) 5.

Seeking Core Fair Trial Standards 125 also require special counsel to be appointed where other interests are at stake, such as the need to protect national security by preventing sensitive information from being disclosed to the accused or where the need to protect witnesses prevents their direct examination by the accused. Finally, the defence must be given an opportunity to examine witnesses whose evidence is crucial to the case against the accused and there is an absence of independent corroboration to support it. Without an opportunity to test the evidence in this manner, there cannot be the assurance of a fair trial.

126 

7 The Role of Counsel in Criminal Proceedings WOLFGANG WOHLERS

I.  THE ROLE OF COUNSEL IN CRIMINAL PROCEEDINGS: DIFFERENCES BETWEEN COMMON LAW AND CIVIL LAW SYSTEMS

T

HERE CAN BE little doubt that the right of the accused to be assisted by a lawyer is of crucial importance to ensuring the fairness of criminal ­proceedings. Those accused of criminal offences will only be able to make effective use of their procedural rights if they are assisted by defence counsel. This is particularly true in common law criminal justice systems, in which the defence counsel plays a more active role in the proceedings. The assumption that a non-legally qualified accused will be able to present his or her case in accordance with the procedural rules seems downright absurd. This becomes even more apparent in those cases in which the accused is expected to cross-examine witnesses and object to procedurally improper activities undertaken by the prosecution. The US Supreme Court has rightly noted that it is—at least within the context of an adversarial trial1—virtually impossible to ensure the fairness of the proceedings without granting the accused the assistance of defence counsel.2 The same holds true for the criminal proceedings of continental Europe, notwithstanding the important role played by the judge: a lay person is likely to be overwhelmed by complex rules, such as those concerning requests for the t­ aking of evidence,3 or when faced with complex questions such as when to make effective use of the right to confrontation. This is true regardless of whether the right to ­confrontation is to be exercised at trial4 or during preliminary proceedings.5 1  Taylor v Illinois 484 US 400, 410 f (1988) per Stevens J; DD Ntanda Nsereko, ‘Ethical Obligations of Counsel in Criminal Proceedings: Representating an Unwilling Client’ (2001) 12 Criminal Law Forum 487, 488. 2 See Powell v Alabama 287 US 45, 69 (1933) per Sutherland J; Gideon v Wainwright 372 US 335, 343 f (1963); see also Faretta v California 422 US 806, 832 f (1975) per Stewart J, 838–40 (Brennan J, dissenting), 851 (Blackmun J, dissenting); D Luban, ‘Lawyers as Upholders of Human Dignity (When They Aren’t Busy Assaulting it)’ (2005) University of Illinois Law Review 815, 819 ff; WM Beaney, The Right to Counsel in American Courts (Ann Arbor, University of Michigan Press, 1955) 155 and 234 f. 3  See, eg, the Beweisantragsrecht in the German Code of Criminal Procedure (Strafprozessordnung, dStPO). 4  B Schmitt ‘Art. 6 EMRK’ in L Meyer-Gossner and B Schmitt (eds), Strafprozessordnung und Nebengesetze, 58th edn (München, Beck, 2015) N 22b. 5 Art 147 StPO Swiss Criminal Procedure Code (Strafprozessordnung, StPO); W Wohlers, ‘Das A ­ nwesenheits- und Fragerecht der Verfahrensparteien bei Einvernahmen im Vorverfahren’ (2013) forumpoenale 160.

128  Wolfgang Wohlers Despite consensus regarding the importance of the role of defence counsel in ensuring the fairness of criminal proceedings, there is no uniform understanding in the various legal systems of the role and function of defence counsel.6 In some jurisdictions (such as Germany or Switzerland), the role of defence counsel is to assist the accused in conducting the defence. But even if the accused are assisted by counsel, they are still entitled to exercise their procedural rights themselves.7 This gives rise to the question whether defence counsel are obliged to respect the wishes of their clients. Further, as an accused who is assisted by counsel is also entitled to exercise his or her procedural rights during the trial, questions arise as to whether and how defence counsel and the accused are to coordinate their activities. Additionally, if it is possible for defence counsel to be appointed against the will of the accused—as is the case in German and Swiss criminal proceedings—the question arises as to whether defence counsel are obliged to respect the wishes and interests of the accused or whether they are entitled to act in accordance with what they deem to be the best interests of their client.8 In other jurisdictions (such as England or the USA), accused persons are required to decide whether to defend themselves or to have their defence conducted by a lawyer, in which case they are afforded a passive role in the proceedings.9 In such systems, it is important to consider whether defence counsel or the client is responsible for determining the aims of the defence and for deciding how these aims are to be attained.10 Should defence counsel restrict themselves to providing their clients with the ability to determine their interests and effectively make use of their defence rights? Or should defence counsel be entitled to determine the defence strategy and the manner in which the defence is to be conducted? Are defence counsel entitled to act against the wishes of their clients, for instance by pleading in favour of diminished responsibility or deciding to call someone as a witness? In other words: must the defence strategy be aligned with the actual interests of the client or simply with those interests that the client should reasonably have? And finally, should defence counsel take other interests into account when conducting the defence, such as the determination of ‘the truth’ or procedural efficiency?

6  A Eser, ‘Verteidigung in der internationalen Strafgerichtsbarkeit’ in H Schöch, H Satzger, G Schäfer, A Ignor and C Knauer (eds), Strafverteidigung, Revision und die gesamten Strafrechtswissenschaften— Festschrift für Gunter Widmaier zum 70. Geburtstag (München, Carl Heymanns Verlag, 2008) 147, points out that even though the right of defence is generally recognised as a human right, there are still a lot of questions which need to be answered regarding its extent and perception. 7  See below, at section III. C. and D. 8  See also S Trechsel, Human Rights in Criminal Proceedings (Oxford, Oxford University Press, 2006) 263 ff, especially 265; for more information regarding the duties and functions of so-called imposed counsel, see W Wohlers, ‘Vor § 137’ N 42 ff and ‘§ 140’ N 3 with further references in J Wolter (ed), Systematischer Kommentar zur Strafprozessordnung, Vol. III (§§ 137–197 StPO), 4th edn (Köln, Carl Heymanns Verlag, 2011). 9  See below at section III A. and B. 10  A Boon, The Ethics and Conduct of Lawyers in England and Wales, 3rd edn (Oxford, Hart ­Publishing, 2014) 301 ff, emphasises as well that this is the core issue of the defence; see also W Wohlers, ‘Die ­Pflicht der Verteidigung zur Wahrung der Interessen der beschuldigten Person’ (2012) 130 Schweizerische Zeitschrift für Strafrecht 55, 64 ff.

The Role of Counsel in Criminal Proceedings 129 In this chapter, I will examine the role of defence counsel in various legal systems: Are counsel required to assist the accused person or are they expected to act as the accused person’s representative? In particular, I will examine the relationship between the accused and defence counsel: can both the accused and defence counsel make use of the rights of defence at the same time or is the accused’s role essentially that of a passive spectator? Consideration of whether there can be said to be a model of defence participation in common law systems which stands in opposition to that in continental Europe, as is often claimed, provides the basis for analysing whether there is common ground for developing a transnational understanding of the role of defence counsel. II.  THINKING OUTSIDE THE BOX: THE CHALLENGES AND PROMISES OF A TRANSNATIONAL VIEW OF CRIMINAL PROCEEDINGS

Lawyers are socialised in national legal systems and generally accept the organisation of these systems as binding. The focus on one’s own legal system may, however, lead to blindness towards different perspectives and solutions and often serves as an excuse for so-called legal chauvinism.11 This tendency is caused or exacerbated by linguistic difficulties; by a lack of foreign language skills, which would allow for examination of other legal systems.12 Consideration of different approaches can, however, provide a basis for challenging traditional dogmas and practices. The practices of other systems might—leaving aside objections to so-called ‘legal transplants’13—at the very least prompt reflection about the ways in which traditional practices can be modified. Indeed, there are areas where the search for common ground is not only of academic interest but also of considerable practical importance: Should the procedural rules of the international criminal courts, for instance, be oriented towards the common law, the civil law, or is there a third way? And how can an international court of human rights, such as the European Court of Human Rights (ECtHR), implement the rights of defence as codified in international conventions if there is no common ground between those criminal justice systems?14 A. The Practice of the International Criminal Tribunals: Common Law, Civil Law, or Something in Between? The procedural codes of the ad hoc tribunals for Rwanda (ICTR) and Yugoslavia (ICTY), as well as the regulations for the permanent International Criminal Court (ICC) provide the accused with both the right to the assistance of counsel and

11 See SJ Summers, Fair Trials—The European Criminal Procedural Tradition and The European Court of Human Rights (Oxford, Hart Publishing, 2006) 11 ff for examples. 12  Regarding the language barrier, see ibid 14. 13  A Watson, Legal Transplants—An Approach to Comparative Law (Edinburgh, Scottish Academic Press, 1974). 14  See Summers (n 11) 17.

130  Wolfgang Wohlers with the right to defend themselves (ie to appear pro se).15 In proceedings before the ICTY, for instance, several accused, including notably Milošević, Šešelj, and Karadžić, made use of the right to represent themselves.16 These cases demonstrate that it is virtually impossible for the accused to defend him or herself adequately in the absence of counsel,17 even if, as in the cases of Milošević and Šešelj, the accused is legally trained.18 Furthermore, these cases demonstrate that it is highly problematic if the accused is not assisted by counsel in those cases in which victims have to face cross-examination by the accused.19 The proceedings before the ICTY made it clear, that it was impossible for the accused to prepare his or her defence within a reasonable time and to conduct the case before the Court without the assistance of counsel.20 The difficulties encountered by the accused were due in no small part to the particular scope and complexity of the proceedings.21 The situation was also complicated by the fact that the accused—all former high ranking soldiers and political leaders—used the proceedings to present themselves to the public and also to their supporters as victims of victor’s justice.22 The special factors relating to the cases before the international criminal tribunals make it dangerous to extrapolate from these cases to ‘ordinary cases’ before the national courts. But complex cases and problematic defendants are also to be found in the national courts and the national courts have to deal with similar problems. The ICTY initially used the American model, according to which the assistance of counsel and self-representation are mutually-exclusive forms of defence. If the accused opted to appear pro se, he or she had to act as his or her own lawyer and was only entitled to receive legal advice ‘behind the scenes’.23 In reality, however, such court-appointed advisory defence counsel were not only active in a subsidiary, advisory capacity, but were also actively involved in trial proceedings before the court. Their activity was not restricted to handling legal and administrative issues; the lawyers were also involved in the taking of evidence.24 In view of this, the trial veered away from the model of pure self-representation towards a model that might

15  C Harvey, Self-Representation in International Criminal Procedure (Hamburg, Dr. Kovač, 2016) 67 ff; S Raveling, Self-Representation before International Criminal Tribunals (Baden-Baden, Nomos, 2014) 54 ff; B Petersdorf, Eigenverteidigung und aufgedrängte Pflichtverteidigung im formellen Völkerstrafrecht (Baden-Baden, Nomos, 2010) 53 ff. 16  Harvey (n 15) 103 ff; Petersdorf (n 15) 58 ff; Raveling (n 15) 66 ff; Urs Sutter, Verteidigung im formellen Völkerstrafrecht (Zürich, Dike, 2012) 91 ff. 17  Raveling (n 15) 122 ff, 216 ff; Sutter (n 16) 152 ff. 18  Raveling (n 15) 281 ff; Sutter (n 16) 97 ff; for a less critical view, see G Sluiter, ‘Fairness and the Interests of Justice’ (2005) 3 Journal of International Criminal Justice 9, 13 ff. 19  Raveling (n 15) 121; Sutter (n 16) 158 f. 20  Raveling (n 15) 167 ff; Sutter (n 16) 152 ff. 21  Raveling (n 15) 131 ff; Sutter (n 16) 154 ff. 22 Raveling (n 15) 265 ff; concerning the likelihood of disruptive behaviour, see MP Scharf, ‘SelfRepresentation versus Assignment of Defence Counsel before International Criminal Tribunals’ (2006) Journal of International Criminal Justice 31, 36 ff. 23  See below at section III. B. i. 24  Ntanda Nsereko (n 1) 506; Raveling (n 15) 246 ff, 349 ff; concerning the different forms of legal assistance, see Jarinde Temminck Tuinstra, ‘Assisting an Accused to Represent Himself’ (2006) 4 Journal of International Criminal Justice 47, 51 ff.

The Role of Counsel in Criminal Proceedings 131 be seen as constituting some kind of hybrid representation.25 In the case of Prlić, the ICTY even went so far as to allow the accused, in addition to counsel, to participate in the taking of evidence.26 The ICTY has essentially abandoned the notion that the assistance of counsel and self-representation are mutually exclusive; this approach may well serve as a suitable model for the ICC.27 While all of this might be viewed as ground-breaking by Anglo-American observers, it is—from the perspective of a continental European lawyer—in no way revolutionary, but merely a step toward the kind of trial commonly conducted on the continent. B. The Case Law of the ECtHR: Is There Common Ground between Common Law and Civil Law Systems? The ECtHR has—in the context of its dynamic interpretation of the Convention as a living instrument28—set some standards that are difficult to meet, even in the legal systems of the Member States which can be classified as ‘constitutionally unobjectionable’. Special problems arise when decisions of the ECtHR interfere with the basic structures of a Member State’s legal system and/or the traditional practices of national law enforcement agencies or courts. Given the fundamentally different procedural structures, it is—or at least seems to be—especially problematic if the ECtHR creates defence rights, through its interpretation of Article 6(1) European Convention of Human Rights (ECHR) in conjunction with the third paragraph of the Convention, that are borrowed—or which at least appear to be borrowed—from one of the two dominant procedural traditions. This quite obviously has the potential to cause disquiet in those Member States which adhere to the other procedural tradition. An example in this regard is the decision in Neziraj v Germany.29 The case concerned the practice of the German criminal courts according to which, under § 329 ­paragraph 1 sentence 1 of the German Code of Criminal Procedure (­Strafprozessordnung, dStPO), an appeal filed by the accused was to be rejected if the accused failed to appear at the beginning of appeals proceedings without adequate excuse. According to the practice of the courts, the appeal was to be rejected ­without any hearing on the merits, even if counsel for the accused was present and duly instructed to lead the defence.30 In Neziraj, the accused, who had been sentenced 25 

Harvey (n 15) 129 ff, 150 ff; see also below at section III. B. ii. Raveling (n 15) 390 ff. 27  Eser (n 6) 173 ff; Raveling (n 15) 395 ff; Sutter (n 16) 408 ff. 28 See Tyrer v United Kingdom (1979–80) 2 EHRR 1 [31] and since then settled case law, see for example Zolotukhin v Russia [GC] (2012) 54 EHRR 16 [8]; Karsten Gaede, Fairness als Teilhabe— Das Recht auf konkrete und wirksame Teilhabe durch Verteidigung gemäss Art. 6 EMRK, Ein Beitrag zur Dogmatik des fairen Verfahrens in europäischen Strafverfahren und zur wirksamkeitsverpflichteten ­Konventionsauslegung unter besonderer Berücksichtigung des Rechts auf Verteidigerbeistand (Berlin, Duncker & Humblot, 2007) 79 ff. 29  Neziraj v Germany, no 30804/07, 8 Nov 2012; see also R Esser, ‘(Nichts) Neues aus Strassburg—­Effektive Verteidigung bei Nichterscheinen des Angeklagten zu Beginn der Hauptverhandlung in der B ­ erufungsinstanz (§ 329 Abs. 1 S. 1 StPO)’ (2013) Strafverteidiger 331, 337 f. 30 Oberlandgericht Oldenburg NStZ 1999, 156; W Frisch, ‘§§ 296–332 StPO’ in J Wolter (eds), Systematischer Kommentar zur Strafprozessordnung, Vol. VI (§§ 296–332 StPO), 4th edn (Köln, Carl Heymanns Verlag, 2013) N 12. 26 

132  Wolfgang Wohlers by the district court to a fine, did not attend the appeal proceedings. The Court of Appeal rejected his appeal on the basis that the accused was not entitled to choose to be absent and instead be represented in court by counsel. While the constitutional complaint against this decision was unsuccessful at the German Supreme Court (­Bundesverfassungsgericht),31 the ECtHR ruled that there had been a violation of Article 6(1) ECHR in conjunction with Article 6(3)(c) ECHR: if counsel appears for an absent accused on appeal, he or she must be given the opportunity to put forward the accused’s defence.32 For observers of the ECtHR’s case law, the finding of a violation was not at all ­surprising.33 Indeed, the ECtHR simply stated that legal principles, which it had consistently adhered to in its case law since 1993, also applied in the context of ­German law. These principles originated in the case of Poitrimol v France.34 In this case, the accused was sentenced to imprisonment in absentia. During the proceedings he had been represented by two defence counsel. On appeal, the accused, against whom a warrant of arrest had been issued, requested that he be represented in his absence by his defence counsel. The Court of Appeal rejected this request and simply confirmed the judgment of the first instance on the basis that the accused had failed to appear without valid excuse. The fact that defence counsel had been present at the hearing and was prepared to argue for the defence did not alter the decision of the French Court. In the proceedings before the ECtHR, the French Government expressly argued that the wording of Article 6(3)(c) ECHR guaranteed the right to the assistance of a counsel but not the right to be ‘represented by’ a lawyer.35 The ECtHR rejected this argument, pointing out that it could not accept the narrow interpretation of the term ‘assistance’ suggested by the French Government.36 ­Furthermore, the ECtHR stressed that the accused should not lose their right to present their case in technical and legal terms at the second instance simply because they did not want to participate in person in the appeal proceedings as a result of an arrest warrant pending against them.37

31 

See Bundesverfassungsgericht StraFo 2007, 190 ff. Neziraj (n 29) [51]. 33 See HJ Gerst, ‘Die Konventionsgarantie des Art. 6 IIIc und die Abwesenheitsverwerfung gemäss para 329 I 1 StPO—Ein kleiner Schritt für Strassburg, ein zu grosser Schritt für Deutschland?’ (2013) 33 Neue Zeitschrift für Strafrecht 310; T Weigend, ‘Das erledigt mein Anwalt für mich—Hat der Angeklagte ein Recht darauf, sich in der Hauptverhandlung vertreten zu lassen?’ in M Heger, B Kelker and E Schramm (eds), Festschrift für Kristian Kühl (München, C.H. Beck, 2014) 948; W Wohlers, ‘Der Strafverteidiger: Rechtsbeistand oder (auch) Vertreter des Beschuldigten?’ in CF Stuckenberg and KF Gärditz (eds), Strafe und Prozess im freiheitlichen Rechtsstaat—Festschrift für Hans-Ulrich Paeffgen zum 70. Geburtstag am 2. Juli 2015 (Berlin, Duncker & Humblot, 2015) 624. 34  Poitrimol v France (1994) 18 EHRR 340. 35  ibid [33]; concurring Weigend (n 33) 955. 36  ibid [34]; confirmed in Krombach v France, no 29731/96, ECHR 2001-II [89]: ‘The Court cannot adopt the Government’s narrow construction of the word “assistance” within the meaning of Article 6(3)(c) ECHR. It sees no reason for departing from the opinion it expressed on that subject in Poitrimol, in which the Government had already suggested that a distinction should be drawn between “assistance” and “representation” for the purposes of proceedings in the criminal court.’ 37  Poitrimol (n 34) [35] ff. 32 

The Role of Counsel in Criminal Proceedings 133 In the aftermath of this judgment, the ECtHR confirmed and cemented its approach in a number of cases against various Member States.38 The ECtHR has consistently stated that the presence of the accused at the hearing is of fundamental importance to the fairness of the criminal proceedings. But it has also held that the right to an effective defence is of fundamental importance to the fairness of the trial and that in the event of conflict the latter takes priority39—even if the accused has been duly summoned and fails to attend without due excuse.40 Therefore, defence counsel who appear in court to defend an absent accused must be given the opportunity to conduct the defence.41 According to the ECtHR, the authorities are entitled to require the accused to appear in appeal proceedings but they are not entitled to attempt to compel attendance by threating the accused with an adverse decision if he or she does not appear in court at the beginning of the appeals proceedings.42 German commentators criticised the ECtHR for not properly observing the regulatory structure of German criminal proceedings. The Court’s decision was said to be based, inter alia, on ‘an inaccurate understanding of the position of the defence counsel in German criminal procedural law’.43 The recognition of the role of defence counsel as a representative of the (absent) accused was considered to be consistent with the approach of common law systems which differentiate between ­self-representation on the one hand and representation by defence by counsel on the other. But the adoption of this understanding of legal representation in interpreting the human rights standard was deemed problematic because it forced continental European criminal justice systems to adopt an understanding which stood in opposition to the system.44 In the words of Thomas Weigend, such a ‘dictate from ­Strasbourg’ was inappropriate for a human rights court. The ECtHR could precipitate ‘unwanted consequences if it meddles too intensively and without sufficient cause in the details of a national criminal procedure code. It is possible to achieve the same goal in different ways’.45 The strong criticism evoked by the decision in the Neziraj case makes it necessary to

38  Lala v Netherlands (1994) 18 EHRR 586; Pelladoah v Netherlands (1995) 19 EHRR 81; Van ­ eyseghem v Belgium [GC] (2001) 32 EHRR 24; Pietiläinen v Finland, no 13566/06, 22 Sept 2009; G Neziraj (n 29). 39  Lala v Netherlands (n 38) [33]; Pelladoah v Netherlands (n 38) [40]; Van Geyseghem v Belgium (n 38) [33] f; Pietiläinen v Finland (n 38) [31]; Neziraj (n 29) [47] ff. 40  Regarding appellate courts see: Lala v Netherlands (n 38) [33]; Pelladoah v Netherlands (n 38) [40]; Van Geyseghem v Belgium (n 38) [33]; Pietiläinen v Finland (n 38) [31]; see also Krombach v France (n 36) [82] ff (regarding proceedings at first instance). 41  Lala v Netherlands (n 38) [34]; Pelladoah v Netherlands (n 38) [40]; Van Geyseghem v Belgium (n 38) [33]; Pietiläinen v Finland (n 38) [31]; Neziraj (n 29)[51]. 42  Van Geyseghem v Belgium (n 38) [34]; Pietiläinen v Finland (n 38) [32]; Neziraj (n 29) [51]; see also Krombach v France (n 36) [89]. 43  Oberlandgericht München StV 2013, 301, 302. 44  Weigend (n 33) 955 ff; Despite this criticism, it is notable that the legislator had little trouble drafting a new provision (§ 329 dStPO) which was compatible with the principles set out by the ECtHR, see on this point W Frisch, ‘Verwerfung der Berufung ohne Sachverhandlung und Recht auf Verteidigung—Zur Änderung des § 329’ (2015) 35 Neue Zeitschrift für Strafrecht 69; H Pollähne, ‘Zwischen Vertretungsmacht und Abwesenheitsohnmacht’ in F Herzog, R Schlothauer and W Wohlers (eds), Rechtsstaatlicher Strafprozess und Bürgerrechte, Gedächtnisschrift für Edda Wesslau (Berlin, Duncker & Humblot, 2016) 235, 239 ff. 45  Weigend (n 33) 960.

134  Wolfgang Wohlers consider whether the representation of the accused by counsel is a legal transplant emanating from an adversary system, which cannot be reconciled with the German criminal trial and which ought therefore to be rejected. III.  EFFECTS OF THE EXERCISE OF THE RIGHT TO LEGAL ASSISTANCE ON THE PROCEDURAL ROLE OF THE ACCUSED

A.  English Law i.  The Origins of the Counsel-Driven Adversarial Trial In England, defence counsel used to be admitted in criminal proceedings concerning minor offences but not in felony trials.46 At the end of the seventeenth century defence counsel were admitted in trials for high treason (Treason Act 1696) and since 1730 were permitted to appear in normal felony trials. The presence of defence counsel only became the usual practice after 1780.47 The restrictive attitude towards the admission of lawyers as defence counsel was based on the assumption that, at least with respect to factual questions, a layman was able to defend himself properly without the assistance of counsel.48 An additional factor was the fear that the involvement of professional lawyers would tend to obscure the truth.49 The shift toward the counsel-driven trial, initiated through the Treason Act 1696, was not due to the recognition of the value of defence rights as a tool for strengthening the procedural position of the accused; rather, the aim was to create an opponent who could act as a deterrent against the abusive practices of the professional (but private) prosecutor,50 which were subject to considerable criticism.51 The general admission of defence counsel in all criminal proceedings was finally achieved in the first half of the nineteenth century by the Prisoner’s Counsel Act 1836.52 The defence counsel was originally restricted to providing opinions on legal issues, in relation to other matters it was considered wise to prevent the accused from speaking through their lawyers.53 Over time, lawyers were allowed to take charge of the questioning of witnesses but they were not allowed to speak for the accused on factual matters or to speak directly to the jury.54 These limitations, however, were circumvented by

46  JH Langbein, The Origins of Adversary Criminal Trial (Oxford, Oxford University Press, 2003) 36 ff; EJ Hashimoto, ‘The Criminal Defendant’s Right to Control the Case’ (2010) 90 Boston University Law Review 1147, 1164 f; AR Leventon, ‘Independent Right of Self-Representation in Sixth Amendment Permits Defendant to Act As Own Lawyer at State Criminal Trials’ (1975–76) 61 Cornell Law Review 1019, 1023. 47  JM Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’ (1991) 9 Law and History Review 221, 226 ff; Langbein (n 46) 92 ff and 167 ff. 48  Beattie (n 47) 223; Langbein (n 46) 34. 49  Langbein (n 46) 35 f. 50  Beattie (n 47) 224 f; Langbein (n 46) Ch 3. 51  See Langbein (n 46) 255 ff. 52 Beaney (n 2) 8 ff; Petersdorf (n 15) 187; regarding the history of origins of the law, see Beattie (n 47) 250 ff. 53  Langbein (n 46) 253, 268 ff. 54  Beattie (n 47) 230 ff; Langbein (n 46) 171 ff, 254 f, 266 ff.

The Role of Counsel in Criminal Proceedings 135 lawyers, who were nonetheless able to make statements, disguised as questions, on the accused’s behalf.55 ii.  The Role of Counsel in the Modern Criminal Trial In the modern English criminal trial, the accused is required to choose between defending him or herself or putting his or her defence entirely in the hands of defence counsel.56 After the commencement of the trial, a change from one form of defence to the other is only possible with the approval of the trial judge, who has considerable discretion in the matter.57 Mandatory appointment of counsel, which is wellknown in continental European legal systems,58 only exists in English law in special cases.59 Mentally incompetent accused are assigned counsel ex officio on the basis of the Criminal Procedure (Insanity) Act 1964.60 Legal aid61 exists to ensure that the right to the assistance of counsel is also available to less well-off accused.62 Nevertheless, 50 per cent of those accused of criminal offences do not have a lawyer in the magistrate courts. It is rare, however, for the accused to appear without legal representation in the crown courts—in practice this occurs mostly in cases in which the accused fires defence counsel before the beginning of the trial.63 If the accused chooses to have the assistance of counsel, he or she is not permitted to intervene in the trial proceedings.64 If the accused pleads ‘not guilty’, his or her role is effectively confined to that of a spectator. The accused will not be asked in any way about the matter of the case and remains purely passive during the ­taking of evidence by the prosecution; the cross-examination of prosecution witnesses is undertaken solely by defence counsel.65 As regards the taking of evidence for the defence, the accused’s role is dependent on whether or not he or she takes the stand as a witness. If the accused takes the stand he or she is heard as a normal witness under oath and will be cross-examined by counsel for the prosecution; otherwise the accused remains completely passive, even during the presentation of the defence case.66

55 

Beattie (n 47) 233 f; Langbein (n 46) 291 ff. R v Woodward (1944) All ER 159, 160. 57  R v Lyons (1978) Cr App R 104, 108; Petersdorf (n 15) 179 f. 58  See below at section III. C. and D. 59 E Cape, Z Namoradze, R Smith, and T Spronken (eds), Effective Criminal Defence in Europe (­Antwerpen, Intersentia, 2010) 126. 60  Petersdorf (n 15) 188. 61  About the origins see Beaney (n 2) 12 ff. 62  M McConville, J Hodgson, L Bridges and A Pavlovic (eds), Standing Accused—The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford, Oxford University Press, 2003) 2 ff, 299 ff; E Cape, ‘The Rise (and Fall?) of a Criminal Defence Profession’ (2004) Crim LR 401, 403 ff. 63  N Padfield, ‘The Right to Self-Representation in English Criminal Law’ (2012–13) 83 International Review of Penal Law 357, 361 ff. 64  Petersdorf (n 15) 179. 65  JR Spencer, ‘The English System’ in Mireille Delmas-Marty and JR Spencer (eds), European ­Criminal Procedures (Cambridge, Cambridge University Press, 2005) 182. 66  ibid 183. 56 

136  Wolfgang Wohlers In accordance with section 72, sub-section 1 of the Criminal Justice Act 1982, the accused may only give evidence under oath. If the accused does not take the oath, he or she may only make statements in connection with questions and explanations that would have been given by defence counsel if the accused had chosen the assistance of counsel. Because the defence counsel cannot submit explanations on factual matters for the accused, the accused is permitted to testify about factual matters—even if he or she does not have counsel—only as a witness under oath and with the duty to face cross-examination by the prosecution. According to section 34a of the Criminal Justice Act 1988, an accused who defends him or herself has no right to question child witnesses in cases of physical violence and sexual abuse. This provision was modified by sections 34–37 of the Youth Justice and Criminal Evidence Act 1999. According to these provisions, cross-examination in cases in which the judge does not conduct the cross-examination must be conducted by counsel, who is ­temporarily appointed by the court (s 38) and paid for by the state (s 40).67 The solicitor or barrister acting as defence counsel68 has, as an officer of the court, the duty to act in the interests of justice and in accordance with the codes of conduct adopted by the professional organisations. The fact that the obligations of counsel as an officer of the court69 are deemed to be more important than the obligation towards the client70 may lead, for instance, to the defence counsel having to comply with conflicting obligations, such as the duty to disclose the defence strategy on the one hand and to ensure the confidentiality of communications with the client on the other.71 If defence counsel knows that his or her client is guilty or that certain pieces of evidence are false, he or she is restricted to a point whereby the accused is left virtually defenceless.72 On the other hand, defence counsel must accept the guilty

67  Cape et al (n 59) 126; J McEwan, ‘Ritual, Fairness and Truth’ in RA Duff, L Farmer, S Marshall and V Tadros (eds), The Trial on Trial Volume 1: Truth and Due Process (Oxford, Hart Publishing, 2004) 56 f; Padfield (n 63) 369; Petersdorf (n 15) 188 pointing out that rule 31.1-31.4 of the Criminal Procedure Rules 2005 now cover these rules. 68 In general, barristers still appear in court in cases with grave accusations even though solicitors are now also allowed to do so (see Access to Justice Act 1999). The term ‘counsel’—which is quite a specific one in the English system and denotes a barrister rather than a solicitor with higher courts advocacy rights—is used in this chapter to mean any lawyer who represents a defendant within the criminal proceedings. 69  This description expresses the ‘public element in the lawyer’s duties’, see M Blake and A Ashworth, ‘Ethics and the Criminal Defence Lawyer’ (2004) 7 Legal Ethics 167, 169. According to Blake and ­Ashworth, these duties can entail, eg, the duty to alert the court to legal and factual mistakes, see at 176–79 and 187 f. 70  Rondel v Worsley [1969] 1 AC 191, 227 per Lord Reid; Blake and Ashworth (n 69) 182 ff; M ­ cConville et al (n 62) 86; R Munday, ‘The Duties of Defence Counsel’ (1983) Crim LR 703, 705 ff; Petersdorf (n 15) 183 f; Boon (n 10) 317, 320 and 327 f. 71 See R v Gleeson (2004) 1 Cr App R 29, 34 per Auld LJ; Cape et al (n 59) 130 f. 72  Blake and Ashworth (n 69) 172 ff and 184 ff; L Bridges, ‘The Ethics of Representation on Guilty Pleas’ (2006) 9 Legal Ethics 80, 86 f; emphasising the obligation to the truth: HJ Subin, ‘The Criminal Lawyer’s “Different Mission”: Reflections on the “Right” to Present a False Case’ (1987) Georgetown Journal of Legal Ethics 125 ff; in favour of exceptions in cases of criminal defence, see D Luban, ‘Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Replay to Stephen Ellimann’ (1990) 90 Columbia Law Review, 1004, 1019 f.

The Role of Counsel in Criminal Proceedings 137 plea of his or her client even if he or she knows it is false.73 This may be viewed as an indication that the assistance of counsel is not so much about truth and justice but more about efficiently concluding cases.74 At least in cases in which legal aid is granted,75 trials take the form of proceedings in which the professional parties work together to conclude the case, rather than an adversarial trial.76 Defence counsel are not required to pursue the individual interests that their ­clients may have but instead must serve those interests which they consider to represent the best interests of the client and in accordance with their duty as an officer of the court.77 For barristers appearing before the court, it is in fact not unusual for them to be unaware of the real interests of their clients. Barristers can have direct contact with their clients through consultation in the presence of the solicitor, but equally it is not uncommon for them to be instructed by the solicitor alone78 who—at least in legal aid cases—does not necessarily represent the interests of his or her actual c­ lient, but the interests that—from his or her point of view—a reasonable person in the situation of his or her client should have.79 Legal aid cases are managed solely by the defence counsel, with counsel sometimes even deciding unilaterally if necessary.80 If the defence counsel files a petition he or she does not really want to file—perhaps because he or she deems it to be useless—it is apparently not unusual for the defence counsel to communicate this by his or her choice of words to the other (professional) parties to the proceedings.81 In summary, the accused in English criminal proceedings has to decide whether he or she wants to organise the defence without the assistance of a counsel—if necessary, with the help of a solicitor who does not appear before the court—or whether to request the assistance of counsel, in which case the counsel makes the most of the key forensic decisions and the accused’s function is confined to that of a witness under oath, open to cross-examination by the prosecution.

73  Bridges (n 72) 87 ff; M McConville, ‘Plea Bargaining: Ethics and Politics’ (1998) 25 Journal of Law and Society 562, 567 ff. 74 J Hodgson, ‘Conceptions of the Trial in Inquisitorial and Adversarial Procedure’ in A Duff, L Farmer, S Marshall and V Tadros (eds), The Trial on Trial Volume 2: Judgement and Calling to Account (Oxford, Hart Publishing, 2006) 239; McConville (n 73) 576 ff. 75  More information on how private and legal aid clients are treated differently in McConville et al (n 62) 152 f. 76  See McConville et al (n 62) 272 f and regarding cooperation of professionals at 185 ff. 77  Boon (n 10) 333; Cape et al (n 59) 130 f; Petersdorf (n 15) 183 f; criticism regarding the application of the model of a ‘reasonable person’ in Blake and Ashworth (n 69) 181 f. 78  McConville et al (n 62) 63 f; Petersdorf (n 15) 182. 79  Strictly speaking, the solicitor like the barrister represents the best interests of the actual client not the interests of the reasonable client (see A Boon (n 10) citing the Solicitors Regulation Authority (SRA) Handbook, Principle 5). But according to McConville et al (n 62) 63 f, 129 f, 153, in legal aid cases the accused does not have any influence on the defence strategy; According to Cape et al (n 59) 113, claims of the client to be innocent are often ignored in practice; see also McConville et al (n 62) 136 ff, 276 f: defence counsel operate based on the assumption that their client is guilty and a conviction is inevitable, and manage the case within the framework provided by the police and the accusation. See also at 41 ff, 132 ff, according to McConville et al legal aid clients only get to see their solicitor in court; otherwise they are only in contact with clerks. There is not really any personal assistance, even during the contact in court, see at 161 ff. 80  McConville et al (n 62) 170 ff. 81  ‘I’m instructed to make a bail application …’, McConville et al (n 62) 180 f.

138  Wolfgang Wohlers B.  US Law i. The Bifurcated Model of Full Representation and Self-Representation as Mutually Exclusive Rights In the USA, the participation of defence counsel in criminal proceedings was always possible at least in theory. In practice, however, the participation of counsel represented the exception rather than the rule, as few lawyers were available and those that were did not enjoy the trust of the general public.82 The right to defend oneself (self-representation) was codified in the constitutions of several states,83 but it was only following the decision of the Supreme Court in the case of Faretta v California in 1975 that self-representation became widely recognised as a constitutional right84 rather than simply a form of defence for those who did not want to make use of the assistance of counsel or who could not afford to pay for a lawyer.85 Pioneering decisions by the Supreme Court led to the right to the assistance of counsel becoming an effective right in the course of the twentieth century.86 The Sixth Amendment to the US Constitution guarantees every accused the right to the assistance of counsel in criminal proceedings. In Faretta v California, the Supreme Court ruled that the right to self-representation was enshrined in the Sixth Amendment.87 Following this judgment, the courts have adhered to the assumption that the right to the assistance of counsel enshrines two mutually exclusive rights:88 the accused can either completely delegate the defence to counsel (full representation) or he can appear pro se (self-representation).89 If the accused choose to make use of the right to defend themselves, they are obliged to act as their own lawyer and as such have to comply with the procedural rules in the same way as a lawyer would. On the other hand, accused who do not appear pro se but who make use of counsel can—as in English criminal proceedings—actively participate in the presentation of the evidence only when they take the stand and give evidence as a witness under oath.90 In the case of full representation, the role of the accused is limited. There are only four decisions which clearly remain within his or her competence: the accused 82  Beaney (n 2) 14 ff; Hashimoto (n 46) 1166 ff; Leventon (n 46) 1022 ff; see also Faretta v California (n 2) 826 f per Stewart J. 83  Faretta v California (n 2) 812 f per Stewart J; see also Beaney (n 2) 18 ff, 80 ff. 84  Leventon (n 46) 1025 ff. 85  E Cerruti, ‘Self Representation in the International Arena: Removing a False Right of Spectacle’ (2008–09) Georgetown Journal of International Law 919, 933. 86  ibid 935 ff. 87  Regarding this case and its consequences, see also Cerruti (n 85) 940 ff; Leventon (n 46) 1031 ff; S Livingston Allen, ‘Faretta: Self-Representation, or Legal-Misrepresentation?’ (2004/05) 90 Iowa Law Review 1553, 1560 ff. 88  JF Decker, ‘The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After Faretta’ (1995–96) 6 Seton Hall Constitutional Law Journal 483, 538; J Welcom, ‘Assistance of Counsel: A Right to Hybrid Representation’ (1977) 57 Boston University Law Review 570. 89  Confirmed in Faretta v California (n 2) 818 per Stewart J; but see also Martinez v Court of Appeal of California 528 US 152 (2000): not applicable in appeal proceedings; Indiana v Edwards 554 US 164 (2008): not applicable with mental illness. 90  Petersdorf (n 15) 163.

The Role of Counsel in Criminal Proceedings 139 is entitled to decide whether to plead guilty; whether to waive the right to trial by a jury; whether to testify as a witness under oath and under cross-examination by the prosecution (taking the stand); and, if convicted, whether to appeal against the judgment.91 As regards the other decision making competencies of the accused, the situation is unclear and appears to be treated quite differently in the practice of the lower courts.92 In principle all tactical decisions and in particular all decisions concerning the handling of the proceedings fall within the sole responsibility of defence counsel.93 The decisions of counsel are binding even if they do not comply with the wishes of the client94 and even if counsel did not discuss the issue with his client.95 The exclusive competence of counsel includes, for instance, decisions regarding the witnesses who are to be called96 and the complaints which are to be raised on appeal.97 In his dissenting opinion in Jones v Barnes, Mr Justice Brennan argued that it was the task of defence counsel to enable the accused to conduct the defence.98 This point of view, however, has not found support in the practice of the criminal courts.99 In fact, the model of full representation leads to the conclusion that defence counsel is not an assistant to the accused but rather takes on the role of master,100 with the accused at his or her mercy.101 The rule that the lawyer takes the tactical decisions in such cases is justified by the consideration that lawyers are—or at least should be—more competent to take these decisions due to their training and practical experience.102 This justification is surprising not just because it seems somewhat contradictory to grant lawyers the competence to decide smaller tactical issues on the basis of their superior knowledge, while allowing major tactical issues to remain

91  Jones v Barnes 463 US 745, 751 (1983) per Burger CJ; Wainwright v Sykes 433 US 72, 93 (1977) per Burger CJ; Taylor v Illinois (n 1) 418 per Stevens J; JA Colquitt, ‘Hybrid Representation: Standing the Two-Sided Coin on its Edge’ (2003) 38 Wake Forest Law Review 55, 62 f; HR Uviller, ‘Calling the Shots: The Allocation of choice Between the Accused and Counsel in the Defense of a Criminal Case’ (2000) 52 Rutgers Law Review 719, 721 f and 757 ff with references to the regulations of professional associations. 92  See Hashimoto (n 46) 1158 ff; WR LaFave, JH Israel, NJ King and OS Kerr, Criminal Procedure, West’s Criminal Practice Series, Vol 3 s 8.1 to 11.10, 3rd edn (St Paul, Thomson West, 2007) 777 ff. 93  See RH Chused, ‘Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics’ (1977) 65 California Law Review 636, 638 ff; Colquitt (n 91) 62 f; M Strauss, ‘Toward a Revised Model of Attorney-Client Relationship: The Argument for Autonomy’ (1987) 65 North Carolina Law Review 315, 318 ff; for a comprehensive presentation of the case law, see LaFave et al (n 92) 779 ff. 94  LaFave et al (n 92) 786 f deem it necessary to substantiate that the defence counsel can implement the will of the client (even when the defence counsel has a different opinion). 95  Wainwright v Sykes (n 91) 93 per Burger CJ; see also Henry v Mississippi 379 US 443 (1965); Hashimoto (n 46) 1161 ff. 96  See the example in Chused (n 93) 658 ff, discussing United States v Bridgeman 523 F2d 1099 (DC Cir 1975), cert denied 425 US 961 (1976). 97  Jones v Barnes (n 91) 751 ff per Burger CJ. 98  Jones v Barnes (n 91) 755 f (Brennan J, dissenting); but see also Jones v Barnes (n 91) 754 f (­Blackmun J, dissenting): no legal duty but an ethical duty. According to Luban (n 2) 824–830, paternalistic behaviour like this violates the human dignity of the accused. Uviller (n 91) 765 ff and 769 ff is in favour of the client deciding on the defence strategy; see also Strauss (n 93) 331 ff. 99  LaFave et al (n 92) 784. 100  See VO Berger, ‘The Supreme Court and Defence Counsel: Old Roads, New Paths—A Dead End?’ (1986) 86 Columbia Law Review 9, 30 ff. 101  Welcom (n 88) 574 f. 102  Jones v Barnes (n 91) 751 per Burger, CJ; sceptical Strauss (n 93) 330 f.

140  Wolfgang Wohlers within the responsibility of the accused,103 but also because a large number of the lawyers practising criminal law are considered to be of doubtful competence.104 The leading textbook by LaFave et al indicates that delimitation of the areas of competence of the accused and defence counsel have never really been satisfactorily explained; the lines have been drawn by the case law, in which the focus is on pragmatic reasoning which is designed to make sure that the lawyer can efficiently conduct the defence at trial.105 From a purely practical point of view it is not possible for counsel to discuss each and every decision with their clients. The main reason for adhering to the model of full representation, therefore, is the fear ‘that an actively participating accused may lead to havoc in the courtroom’.106 Furthermore, reference is made to the fact that the model of full representation corresponds to the self-image of lawyers working as defence counsel who as experts are eager to stay in control of the proceedings.107 As a result, it is difficult to object to Welcom’s claim that within the model of full representation the smooth running of the trial prevails over the interests of the accused.108 Because disputes over tactical issues are not ­recognised as a valid reason for a change of counsel,109 the only way for the accused to opt out of the situation of being held hostage by their lawyer is to dispense with legal counsel and to choose to represent themselves. Indeed, the majority in Faretta v California held that the main function of self-representation was to allow the accused to maintain their autonomy.110 The decision to represent oneself is generally considered to be a bad choice. Even if one does not go as far as some critics of the Faretta decision—according to which self-representation is chosen only by idiots, those who refuse to comply with the rules, or those who try to sabotage the proceedings for ideological or political reasons111—it is generally accepted that inexperienced accused, who—due to their own involvement—do not have sufficient distance from the case, do themselves no favours by deciding to appear pro se. This point of view, however, is based solely on anecdotal evidence.112 The main argument is the ancient proverb cited by

103  Chused (n 93) 655; for a sceptical take, see Strauss (n 93) 324 ff: the differentiation between strategic and tactical decisions is questionable. 104  See Berger (n 100) 10 f, 25 f and especially 60 ff; Hashimoto (n 46) 1177 f. 105  Taylor v Illinois (n 1) 418 per Stevens J; see also the sceptical analysis in LaFave et al (n 92) 796 ff. 106  Welcom (n 88) 574; for a more sceptical take, see P Marcus, ‘The Faretta Principle: S ­ elf-Representation versus the Right to Counsel’ (1982) 30 American Journal of Comparative Law Supp 551, 572; Strauss (n 93) 327 f. 107  Berger (n 100) 34; Welcom (n 88) 574; see also Eser (n 6) 162: a professional defence counsel will not easily appreciate the degradation inherent in the role of the assistant. 108  Welcom (n 88) 581; see also Chused (n 93) 652 f; M Burnham, ‘Ruchell and Angelina Want to Represent Themselves’ in AY Davis (ed), If They Come in the Morning: Voices of Resistance (New York, The Third Press, 1971) 229 f. 109  Chused (n 93) 645 ff. 110 See Petersdorf (n 15) 165 referring to Faretta v California (n 2) 819 ff per Stewart J and 834; see also Hashimoto n 46 1152 ff, especially 1163 ff. 111  See Cerruti (n 85) 947 ff; Decker (n 88) 485 ff; see also references in EJ Hashimoto, ‘Defending the Right of Self-Representation: An Empirical Look at the pro se Defendant’ (2006–2007) 85 North Carolina Law Review 423, 434 ff. 112  Hashimoto (n 111) 437 f.

The Role of Counsel in Criminal Proceedings 141 Mr Justice Blackmun in his dissenting opinion in Faretta: ‘One who is his own ­lawyer has a fool for a client’.113 The only real empirical study which has been conducted in this field showed that self-representation is actually not a significantly worse choice compared to full representation, at least when measured with regards to the outcome of the trial.114 This study also demonstrated that there may well be good reasons to choose self-representation: first, there are legitimate concerns and lack of satisfaction with the poor quality of court-appointed lawyers and, second, there may—in certain cases—be ideologically and/ or politically motivated interests which force the lawyer to implement a specific strategy for the defence even if this is not, from a professional legal perspective, in the best interests of the accused.115 There is, in addition, the particular problem of loyalty towards the client for defence counsel who is appointed by the court.116 As mentioned above, the pro se accused is obliged to respect and adhere to the same procedural rules as professional counsel.117 The risk that the accused who represent themselves might paralyse the trial, either because they cannot adhere to the rules (eg because of lack of intellectual capacity) or because they do not want to play according to the rules (eg because they want to sabotage the trial) can be countered by the court denying or withdrawing the right to self-representation.118 The further problem that direct contact with the accused may be unreasonable for witnesses and victims (‘the defender as abuser’), may be addressed by removing the accused’s right to self-representation in whole or in part, ie for certain stages of the trial.119 The risk that even a basically good-willed accused may not play by the rules or would be unable to make effective use of his or her rights due to a lack of sufficient knowledge of the rights may—if one rejects an active intervention by the court on the grounds of maintaining the impartiality of the court120—be solved by appointing advisory counsel and/ or standby counsel. While advisory counsel is restricted to giving advice to the accused and does not actively participate in the proceedings,121 the role of standby counsel—in principle favoured by the Supreme Court122—can include active intervention in the proceedings. The role of standby counsel is still

113 

Faretta v California (n 2) 851 (Blackmun J, dissenting). (n 111) 446 ff; Hashimoto (n 46) 1176 f; see also AB Poulin, ‘The Role of Standby Counsel in Criminal Cases: In the Twilight Zone of the Criminal Justice System’ (2000) 75 New York University Law Review 676, 687 ff. 115  Hashimoto (n 111) 473 ff, referring to cases such as threats against the president or refusal to pay taxes. Older examples would be black civil-rights activists or communists; see also Livingston Allen (n 87) 1556. 116  Hashimoto (n 46) 1179 ff. 117  See Marcus (n 106) 569 f. 118  Faretta v California (n 2) 834 f, fn 46 per Stewart J; Marcus (n 106) 570 f. 119  See Cerruti (n 85) 956 ff. 120 Especially in the US: see Decker (n 88) 551 ff, Canadian courts grant a lot more support: see J Goldschmidt, ‘Judicial Assistance to Self-represented Litigants: Lessons from the Canadian Experience’ (2008–09) Michigan State International Law Review 601. 121  Colquitt (n 91) 71; see also Chused (n 93) 660 f where he refers to some exceptional cases. 122  See Leventon (n 46) 1038 referring to Faretta v California (n 2) 834, fn 46 per Stewart J; see also McKaskle v Wiggins 465 US 168, 170 (1984) per O’Connor J. 114  Hashimoto

142  Wolfgang Wohlers unclear123 and in practice oscillates between complete passivity and quite extensive activity.124 ii.  Hybrid Representation The more activity permitted, the more the involvement of the standby counsel tends to move in the direction of a model of hybrid representation.125 The concept of hybrid or mixed representation describes a model ‘in which the accused has active assistance of counsel but may also participate himself as co-counsel’.126 The basis of this model is a partnership between the accused and counsel that is similar to the relationship between doctor and patient;127 in cases of conflict the accused must always have the last word.128 Mr Justice Brennan propagated such a model in his dissenting opinion in Jones v Barnes,129 but this opinion has not found much support in the practice of the criminal courts. US criminal courts have recognised, to a certain extent, hybrid representation, but solely on the basis of voluntary accommodation by the respective courts and not as a consequence of a corresponding legal entitlement.130 The basis of this practice is the assumption on the one hand that there is no legal basis for hybrid representation in federal law,131 and on the other hand that hybrid representation is not explicitly prohibited and therefore the particular court has the competence to admit hybrid representation within the context of its discretionary power to organise the trial.132 Given the generally-accepted importance of the assistance of counsel for the fairness of criminal proceedings, it is questionable whether an accused who wants to take an active part in his or her own defence ought to be denied the support of counsel.133 According to Welcom, the model of hybrid representation is ‘the ­correct

123 See

McKaskle v Wiggins (n 122) 176 ff per O’Connor J and 189–199 (White J, dissenting). Decker (n 88) 523 ff; LaFave et al (n 92) 761 ff; see also Hashimoto (n 111) 431 and 485 f; Poulin (n 114) 678 ff and 735 f: both authors propagate clarification and strengthening of the role of the standby counsel; for an extremely sceptical view, see Cerruti (n 85) 948 ff, 961. 125  Colquitt (n 91) 71 f; see also Petersdorf (n 15) 176 f. 126  LaFave et al (n 92) 765; Colquitt (n 91) 56 f; Welcom (n 88) 570; see also Chused (n 93) 656 ff (implemented by a partial waiver 663 ff). 127  Jones v Barnes (n 91) 759 f (Brennan J, dissenting); see also Chused (n 93) 669 ff, as well as Berger (n 100) 34 f, 39 f with more references but refuting the model of hybrid representation due to it being impractical, see 41 ff. The continental European law, however, proves that it is in fact practical— especially in Germany. 128  McKaskle v Wiggins (n 122) 178 per O’Connor J; Colquitt (n 91) 73 f. 129  Jones v Barnes (n 91) 759 ff (Brennan J, dissenting). 130  See LaFave et al (n 92) 766; Colquitt (n 91) 76 f; Decker (n 88) 538 ff; references in Welcom (n 88) 570 as well as Berger (n 100) 40 f; Chused (n 93) 652 and 656 ff; see also the case against A Davis as an example: Burnham (n 108) 226 ff and A Davis, ‘Notes for Arguments in Court on the Issue of SelfRepresentation’ in Davis (n 108) 237 ff. 131  McKaskle v Wiggins (n 122) 183 per O’Connor J. It is disputed whether there is a legal basis on the level of the different countries, see Colquitt (n 91) 80 ff; JA DeFoor II and GH Mitchell, ‘Hybrid Representation: An Analysis of a Criminal Defendant’s Right to Participate as Co-Counsel at Trial’ (1981) 10 Stetson Law Review 197. 132  Colquitt (n 91) 77 ff, 95 ff. 133  See also Colquitt (n 91) 98 f. 124 

The Role of Counsel in Criminal Proceedings 143 model for implementation of the Sixth Amendment guarantee’:134 Seen from a ­historically-informed point of view, the Sixth Amendment cannot be understood as an instrument to impose procedural restrictions on the accused, but must be considered instead as a guarantee of the right to have ‘as much assistance of a counsel as the accused desires’.135 ‘If a counsel is a master rather than an assistant the purpose and logic of the Sixth Amendment are violated.’136 The model of hybrid representation allows the accused to determine the direction and leadership of the defence and also gives the accused the opportunity to engage actively in the proceedings, which is important as regards the conception of an accused as a subject in the p ­ roceedings137 138 and also for factual-procedural reasons. At the same time, the involvement of professionally-trained counsel helps to ensure that the defence is conducted in a professional manner and that the fairness of the proceedings is upheld.139 The reluctance of the criminal courts to recognise the right of the accused to hybrid representation is based essentially on pragmatic reasons: the fear that hybrid representation may impair the efficient operation of the proceedings and the concern that it might be more difficult for the court to maintain order in the courtroom and to stay in control of the trial proceedings.140 In reality, however, the opportunities of the court to stay in control in cases involving hybrid representation are no worse and potentially even better than in the case of a pro se accused.141 Another reason is the desire to avoid the accused addressing the jury without being sworn in and facing cross-examination.142 In respect of this concern, however, it should be noted that this risk is the same in the case of a pro se accused conducting his or her defence alone.143 The concern that hybrid representation might confuse the jury may be mitigated by pointing out that this risk may be countered by appropriate instructions by the court.144 Nevertheless, the management of the proceedings of the court may be more complex and the conduct of the defence may be considerably more complex than in the case of full representation.145 Particularly in those cases in which disagreement emerges between the accused and counsel, the latter cannot—as in the model of the full representation—decide against the will of his or her own client, but must either give convincing arguments or surrender to the will of the accused.146 As it will not

134  Welcom (n 88) 576 ff; see also Chused (n 93) 651 refering to Faretta v California (n 2) 820 f per Stewart J. 135  Welcom (n 88) 578 f. 136  Welcom (n 88) 576. 137  Colquitt (n 91) 120; DeFoor II and Mitchell (n 131) 191, 216 ff. 138  Colquitt (n 91) 121 f; DeFoor II and Mitchell (n 131) 213 ff. 139  Colquitt (n 91) 109 f. 140  Colquitt (n 91) 99, 103 ff; see also for cases of pro se defendants Decker (n 88) 489. 141  Colquitt (n 91) 104 ff; see also LaFave et al (n 92) 767. The point is to ultimately guarantee the smooth operating of the adversary trial, which is also the main critique regarding the right of ­self-representation: see especially Cerruti (n 85) 919, 962 ff: If the adversaries are not capable of behaving as such, the system simply implodes. 142  LaFave et al (n 92) 769. 143  Colquitt (n 91) 113 f. 144  Colquitt (n 91) 114 ff; see also DeFoor II and Mitchell (n 131) 226. 145  Chused (n 93) 668 f. 146  Chused (n 93) 670 f.

144  Wolfgang Wohlers always be possible to terminate the mandate, defence counsel might be forced, in certain cases, to endorse a defence strategy that he or she considers inappropriate.147 In summary, it may be stated that the central problem for US criminal proceedings is that the counsel-driven adversary trial has become so complicated that it may be handled only by professional parties. The rationale behind the rejection of the model of hybrid representation is the fear of additional complications in the proceedings. In other words, the professionals want to maintain control of the trial: the accused, who actively participates in the proceedings, is considered to be something of a nuisance and his or her role is to be restricted to the greatest extent possible. C.  German Law i.  German Law as an Example of Hybrid Representation In continental Europe the accused was for a long time little more than an object of criminal proceedings conducted by an inquisitor whose only mission was to seek the truth. The inquisitorial proceedings did not require the defence as a formal institution and while the defence was not unknown, it had no real impact on the p ­ roceedings.148 This situation changed when in the course of the nineteenth century the inquisitorial proceedings (gemeinrechtlicher Inquisitionsprozess) were replaced by a new type of proceedings (reformierter Strafprozess). The separation of the functions of prosecution, defence and the judge—functions which had all been undertaken in the old inquisitorial system by the investigator—together with the introduction of the public, oral trial led to the creation of the prosecution, which in turn led to the introduction—in the oral, immediate and public trial—of the formal defence as a dialectic opponent. Of particular importance in this regard was a change in perspective: the accused was not to be understood to be simply an object of the investigation, but rather was to be considered to be a subject of the proceedings equipped with a variety of rights, albeit one that required professional assistance in the guise of defence counsel in order to enable him or her to appreciate and enforce these rights.149 In modern times, the right to the assistance of counsel in criminal proceedings is not explicitly enshrined in the German Constitution (Grundgesetz, GG), but is acknowledged to constitute part of the right to be heard before the court (­Rechtliches Gehör) and/ or of the right to a fair trial (faires Verfahren),150 which is classified in 147 

Chused (n 93) 669. Schmidt, Einführung in die Geschichte der deutschen Strafrechtspflege, 3rd edn (Göttingen, Vandenhoeck & Ruprecht, 1983) 194 ff; W Wohlers, Entstehung und Funktion der Staatsanwaltschaft (Berlin, Duncker & Humblot, 1994) 50 ff. 149  Wohlers, ‘Vor § 137’ (n 8) N 1; on the extent of the procedural role of the defence in the criminal procedure codes of the different German States (‘Partikularstaaten’) before the unification of Germany in 1871, see K Armbrüster, Die Entwicklung der Verteidigung in Strafsachen (Berlin, Duncker & Humblot, 1980) 110 ff; G Heinicke, Der Beschuldigte und sein Verteidiger in der Bundesrepublik Deutschland (München, Florentz, 1984) 126 ff; A Jolmes, Der Verteidiger im deutschen und im österreichischen Strafprozeß (Paderborn, Schöningh, 1982) 16 ff; on the developments following the introduction of the RstPO, see Armbrüster, ibid, 125 ff. 150  Wohlers, ‘Vor § 137’ (n 8) N 30 ff and N 2. 148 E

The Role of Counsel in Criminal Proceedings 145 turn as part of the rule of law (Rechtsstaatsprinzip; Article 20, paragraph 3 GG).151 The German Code of Criminal Procedure (Strafprozessordnung, dStPO) only expressly refers to the right to counsel (§§ 137–149 dStPO), but the wording of § 137, which states that the accused ‘can’ make use of a counsel at any stage of the proceedings, allows the accused to defend him or herself.152 German law also sets out provisions on the mandatory appointment of counsel (§§ 140 et seq dStPO). If the appointment of counsel is deemed necessary, the participation of defence counsel is mandatory, ie counsel has to be appointed even if the accused does not want to be assisted (Zwangsverteidigung).153 The scope of the mandatory appointment of counsel extends, inter alia, to all trials that take place at first instance before the District Court (Landgericht) or the Court of Appeal (Oberlandesgericht) (see § 140 paragraph 1 No 1 dStPO); all cases in which the indictment contains a more serious crime (see § 140, paragraph 1 No 2 dStPO); certain proceedings in which the accused is in custody (see § 140 paragraph 1 No 4 and 5 dStPO); and all proceedings in which ‘because of the gravity of the act or because of the difficulty of the factual or legal issues the participation of a defence counsel is necessary’ or ‘it is evident that the accused cannot defend him or herself’ (see § 140 paragraph 2 dStPO). The pure form of self-representation is therefore a priori no option in cases in which the defence is classified as mandatory in terms of § 140 dStPO. In fact, self-representation as provided for in England or in the US can only take place in Germany in cases before the local courts (Amtsgerichte)—and even then only if the facts and the law are not difficult and the accused is classified as being able to defend him or herself adequately without the assistance of counsel. If the appointment of defence counsel is deemed necessary in terms of § 140 dStPO, the question whether the accused may waive the participation of counsel does not arise. The only questions concern the accused–counsel relationship. Following the prevailing view of German commentators, it makes no difference whether the counsel is chosen by the accused or appointed by the court—at the request of the accused or even against his or her will.154 The defence counsel does not represent the accused, but acts only as an adviser (Rechtsbeistand).155 As such, he has to protect the interests of the accused against the law enforcement authorities and courts, ensure that the prosecution is pursued in a fair manner, and that all circumstances favourable to the accused are taken into consideration.156 Defence counsel has no obligation to be objective; in fact he or she must only act in the interests of the accused.157 According to prevailing opinion, however, defence counsel is also 151 BVerfGE 26, 66, 71; BVerfGE 34, 293, 302; BVerfGE 38, 105, 111; BVerfGE 46, 202, 210; BVerfGE 63, 380, 390; BVerfG StV 2001, 601, 602; Eser (n 6) 153; S Walther, ‘Zentralpflichten des Strafverteidigers im Lichte des Grundrechts des Beschuldigten auf effektive Verteidigung’ in T Weigend, S Walther, and B Grunewald (eds), Strafverteidigung vor neuen Herausforderungen—Denkanstösse aus sieben Rechtsordnungen (Berlin, Duncker & Humblot, 2008) 329 ff. 152  Eser (n 6) 153 f. 153  Wohlers, ‘Vor § 137’ (n 8) N 36, 42 ff; Wohlers, ‘§ 140’ in Wolter (n 8) N 3 f. 154  RGSt 17, 315 f; Oberlandgericht Frankfurt StV 1994, 288 f; disagreeing Wohlers, ‘Vor § 137’ (n 8) N 39 ff. 155  BGHSt 9, 356, 357; BGH NStZ 2011, 294, 295; BGH NStZ 1992, 140. 156 BVerfG StV 1996, 620; BGHSt 2, 375, 377 f; BGHSt 15, 326, 327. 157  Oberlandgericht Hamburg NStZ 1998, 586, 587.

146  Wolfgang Wohlers an independent ‘organ of the criminal justice system’ (Organ der Rechtspflege).158 As such, although defence counsel are not under the supervision of the public­ prosecutor or the court, they are obliged not to impede the proceedings through their own behaviour and are expected to counteract the abusive use of procedural rights by the accused.159 The obligation to monitor the behaviour of the accused is of particular practical importance because the accused can always actively participate in the proceedings, even if defence counsel is also involved.160 Defence counsel is not bound by the instructions of the client161 and is entitled to act against the wishes of the accused.162 Unlike the position in English and US law, self-representation and representation by counsel are not mutually exclusive rights.163 The accused usually lets counsel make motions, interview witnesses, and give opinions, etc, but the accused is never prevented from offering evidence, participating in the questioning of witnesses, or commenting on procedural or factually relevant questions.164 This means that it is necessary for counsel to develop the defence strategy together with the accused.165 The aim is to establish a basis of trust that allows the accused to put the practical conduct of the defence in the hands of counsel. The fact that the accused always has the opportunity to play an active part in the proceedings means that counsel continuously has to maintain the relationship of trust and to prevent interventions of the accused which may be counterproductive and which sometimes may even have disastrous results. The model of defence under German Law can be described in the terminology of US law as one of hybrid representation. This model, which is viewed within the US literature as being impossible to implement in practice,166 is in fact considerably more complex, at least for defence counsel, than the model of full-representation practiced in England and the US. But the German approach demonstrates that hybrid representation is a model that can work, at least in those cases in which the accused wishes to have the assistance of counsel. In these cases problems may arise in relation to different opinions on defence strategies, the appropriate measures for attaining objectives, or purely tactical questions. If such differences cannot be settled, counsel only has two options:167 bow to the will of the accused or withdraw

158 

BVerfGE 34, 293, 300; BVerfG StV 1996, 620; BGHSt 9, 20, 22; BGHSt 39, 310, 316. BVerfGE 34, 293, 302; BVerfGE 63, 266, 284; BGHSt 15, 326, 327; BGHSt 35, 200, 203. 160  BGHSt 38, 111, 115; BGH NStZ 2005, 341; Oberlandgericht Hamburg NStZ 1988, 586, 587. 161 BGH NStZ 2011, 294, 295. 162 BGHSt 12, 367, 369; BGHSt 13, 337, 343; H Schneider, ‘Strafbarkeit des Verteidigers wegen Strafvereitelung durch Stellen von Beweisanträgen zum Zwecke der Prozessverschleppung’ in C Geisler, E Kraatz, J Kretschmer, H Schneider and C Sowada (eds), Festschrift für Klaus Geppert zum 70. Geburtstag am 10. März 2011 (Berlin, De Gruyter, 2011) 607; R Schlothauer, ‘Verteidigung, Vertretung, Verständigung’ in C Fahl, E Müller, H Satzger and S Swoboda (eds), Ein menschengerechtes Strafrecht als Lebensaufgabe—Festschrift für Werner Beulke zum 70. Geburtstag (Heidelberg, C.F. Müller, 2015) 1029. 163  Eser (n 6) 168 f. 164 MD Dubber, ‘The Criminal Trial and the Legitimation of Punishment’ in RA Duff, L Farmer, S Marshall and V Tadros (eds), The Trial on Trial Volume 1: Truth and Due Process (Oxford, Hart ­Publishing, 2004) 95 f. 165  Wohlers, ‘Vor § 137’ (n 8) N 50 ff. 166  See above at section III. B. ii. 167  Wohlers, ‘Vor § 137’ (n 8) N 52. 159 

The Role of Counsel in Criminal Proceedings 147 from the case. Special problems arise when counsel is not chosen (and paid for) by the accused him or herself (Wahlverteidigung), but is appointed by the court. In these cases, the defence counsel is not entitled to withdraw, but must apply for dispensation, which—in cases of mandatory appointment of counsel—is only granted in exceptional circumstances.168 If the request is refused despite the argument that cooperation between counsel and the accused is no longer possible—which happens quite regularly in those cases where counsel is appointed against the will of the accused—counsel has two options: pursue a defence strategy which conflicts with the behaviour of the accused or remain passive and confine him or herself to controlling the procedure of the court. ii.  Is Full Representation Possible under German Law? In German law, defence counsel is—at least normally—an adviser to the accused. Counsel’s function is to enable the accused to make effective use of their procedural rights.169 Although defence counsel normally is not the representative of the accused, he or she may become so under certain circumstances. Representation of the accused by defence counsel is first and foremost permitted according to section 234 of the Code of Criminal Procedure in cases in which a trial takes place in the absence of the accused (see sections 231, 231a, 231b, 232, and 233 dStPO). It is unclear whether representation in these cases is possible if the accused is present at trial.170 Furthermore, representation of the accused by counsel is permitted according to section 411, paragraph 2 of the Code of Criminal Procedure if the proceedings began following the issuing of a summary punishment order (Strafbefehl) that the accused did not accept. In these cases, the mandate to represent the client applies to the proceedings at first instance before the district court, as well as to the appeal proceedings.171 In these cases the appointment of counsel as a representative cannot be terminated even if the accused does not obey an order to appear in front of the court in person.172 In contrast, in cases concerning § 234 of the Code of Criminal Procedure, representation on appeal is not possible. This means that the accused’s appeal is rejected pursuant to § 329 paragraph, 1 sentence 1 of the Code of Criminal Procedure in cases of a ‘no show’, even if defence counsel is present.173 168 

Wohlers, ‘Vor § 143’ in Wolter (n 8) N 13 ff; BGHSt 39, 310, 312 ff; BGH NStZ 1995, 296. Wohlers, ‘Vor § 137’ (n 8) N 29. on the one hand JP Becker, ‘§ 234’ in V Erb et al (eds), Löwe-Rosenberg, Die Strafprozessordnung und das Gerichtsverfassungsgesetz, Grosskommentar (Sechster Band, Erster Teilband, §§ 213–255a) (Berlin, De Gruyter, 2010) N 4; and on the other hand M Deiters, ‘§ 234’ in J Wolter (ed), Systematischer Kommentar zur Strafprozessordnung, Vol. IV (§§ 198–246 StPO), 5th edn (Köln, Carl Heymanns Verlag, 2015) N 3. 171 RGSt 66, 68, 69 ff; Oberlandgericht Dresden StV 2005, 492; Oberlandgericht Düsseldorf NStZ 1984, 524; Oberlandgericht Hamm StV 2008, 401, 402; E Wesslau, ‘§ 411’ in J Wolter (ed), Systematischer Kommentar zur Strafprozessordnung (Vol. VIII, §§ 374–495 stopp) (Köln, Carl Heymanns 2013) N 21. 172  Oberlandgericht Celle NJW 1970, 906, 907; Oberlandgericht Hamburg NJW 1968, 1687, 1688; Oberlandgericht Karlsruhe NStZ 1983, 43. 173  A Grube, ‘§ 234’ in H Satzger, W Schluckebier and G Widmaier (eds), StPO—­Strafprozessordnung, Kommentar (Köln, Carl Heymanns, 2014) N 3; see also E Schmidt ‘§ 411’ in E Schmidt (ed), ­Lehrkommentar zur Strafprozessordnung und zum Gerichtsverfassungsgesetz Teil II: Erläuterungen zur Strafprozessordnung und zum Einführungsgesetz (Göttingen, Vandenhoeck & Ruprecht, 1960) N 11 with further references. 169 

170  See

148  Wolfgang Wohlers This practice not only conflicts with the case law of the ECtHR,174 it also raises the question of why representation of an absent accused in appeal proceedings is deemed to be possible in some cases and not in others. In addition, the further question arises as to the grounds on which it is legitimate to actually deny the accused the right to be represented by counsel. If and in so far as one takes the status of the accused as the subject of the trial seriously, there must be good reason to deny representation if the accused wishes to be represented. The inadmissibility of the representation of the accused by counsel is sometimes justified in terms of protecting the autonomy of the accused.175 This argument is, however, not convincing when it comes to cases of representation that are desired by the accused.176 Even the prevailing doctrine acknowledges that representation must in principle be possible in criminal proceedings ‘unless its nature calls for necessary restrictions—as regular for representation at trial’.177 The possibility of representation at trial is denied because—in parallel to English and US law—the accused should not have the opportunity to make statements on factual points through a representative.178 The personal statement of an accused before the court is seen as particularly important, because only through such direct interaction the court is able to form a personal impression of the accused and assess his or her credibility.179 It should also be noted that the accused is not obliged to participate actively in any way in the proceedings (nemo tenetur se ipsum acussare).180 The presence of the accused, therefore, is only relevant if an ‘external inspection’ of the accused is needed in order for a decision to be reached—which is rarely the case.181 And the hypothesis that the mere presence of the accused is important for the trial court to assess the credibility of the accused182 is not especially convincing: the ability of lawyers to draw conclusions from the non-verbal behaviour of a person—be it a witness or the accused—is highly overestimated.183 If the non-verbal conduct of a person who is in an unfamiliar and stressful situation is evaluated from a psychological perspective 174 

See above at section II. B. K Lüderssen and M Jahn, ‘Vor § 137’ in V Erb et al (eds), Löwe-Rosenberg, Die ­Strafprozessordnung und das Gerichtsverfassungsgesetz, Grosskommentar (Vierter Band, §§ 112–150) (Berlin, De Gruyter, 2007) N 106. 176  Wohlers (n 33) 628. 177  RGSt 66, 209, 211. 178  See also RGSt 44, 284, 285: The accused has to personally give statements about the case; see also Oberlandgericht Celle NStZ 1988, 426. 179 W Beulke, ‘Äusserungen des Strafverteidigers in der Hauptverhandlung als Einlassung des Angeklagten?’ in W Beulke and E Müller (eds), Festschrift zu Ehren des Strafrechtsausschusses der ­Bundesrechtsanwaltskammer (München, Luchterhand Verlag, 2006) 89 and 92. 180  Wohlers (n 33) 628 f. 181  Deiters, ‘§ 230’ in Wolter (n 8) N 1; Ulrich Stein, ‘Die Anwesenheitspflicht des Angeklagten in der Hauptverhandlung’ (1985) 97 Zeitschrift für die gesamte Strafrechtswissenschaft 303, 323; H Kamp, ‘Der Haftbefehl nach § 230 Abs 2 StPO aus der Sicht der Praxis’ in K Rogall, I Puppe, U Stein, and J Wolter (eds), Festschrift für Hans-Joachim Rudolphi zum 70. Geburtstag (München, Luchterhand ­Verlag, 2004) 662. 182  W Gollwitzer, ‘Die Verfahrensstellung des in der Hauptverhandlung nicht anwesenden Angeklagten’ in HH Jescheck and T Vogler (eds), Festschrift für Herbert Tröndle zum 70. Geburtstag am 24. August 1989 (Berlin, De Gruyter Verlag, 1989) 456. 183  For a sceptical take, see W Wohlers, ‘Die formelle Unmittelbarkeit der Hauptverhandlung’ (2013) 131 Schweizerische Zeitschrift für Strafrecht 318, 332; W Wohlers, ‘Die Unmittelbarkeit der Beweiserhebung im Strafprozess’ (2014) 132 Schweizerische Zeitschrift für Strafrecht 424, 438 ff. 175 

The Role of Counsel in Criminal Proceedings 149 by a lay person, this may result in conclusions which are at best unreliable. In view of this, it is not surprising that—subject to the above-mentioned cases in which an ‘external inspection’ of the accused is necessary—there are no findings to support the hypothesis that the presence of the (silent) accused may promote the finding of truth in any way.184 The obligation on the accused to appear may, however, induce him to waive his or her right to remain silent. Compelling the accused to appear as a form of subtle pressure to encourage him or her to waive the right to remain silent raises the objection that this is diametrically contrary to the purpose of the right not to incriminate oneself (nemo tenetur se ipsum accusare).185 D.  Swiss Law Swiss criminal procedure law shares many similarities with German law both as regards structure and in relation to many details. Nevertheless, there are still several distinct differences between the codes. For the purposes of this article, the similarities outweigh the differences—at least at first sight. As in German law, the right to the assistance of counsel in criminal proceedings is not explicitly mentioned in the Swiss Constitution, but is implicitly included in the guarantee of the right to a fair trial and the right to be heard (Article 29, paragraph 1 of the Swiss Constitution (­Bundesverfassung, BV)).186 While the right to appear pro se and the right to the assistance of counsel are both guaranteed in Article 6(3)(c) ECHR, the Swiss ­Criminal P ­ rocedure Code (Strafprozessordnung, StPO)—as with the German Code of Criminal Procedure—only mentions the right to the assistance of counsel (see Article 128 et seq, StPO). Just as in German law, the provision that the accused person is ‘entitled to entrust in any criminal proceedings and at each stage of the proceedings a lawyer […] with their defence’ (Article 129, paragraph 1 StPO) and the option for mandatory appointment of counsel (Article 130 StPO) makes it clear that the accused has the right to defend him or herself only in cases in which the appointment of defence counsel is not deemed necessary under Article 130.187 Important differences from German law—as well as remarkable parallels in particular in relation to US law—become apparent when we take a look at the role of the defence counsel at trial and the relationship between counsel and the accused. The defence is neither a party to the proceedings (see Article 104 StPO, which refers to ‘the accused’) nor another institution involved in the proceedings within 184  S Hüls and T Reichling, ‘Der abwesende Angeklagte in der (Berufungs-) Hauptverhandlung nach der EGMR-Entscheidung Neziraj vs Deutschland’ (2014) 4 Strafverteidiger 242, 246; K Volk, ‘Die Anwesenheitspflicht des Angeklagten—ein Anachronismus’ in H Schöch, R Helgerth, D Dölling and P König (eds), Recht gestalten—dem Recht dienen, Festschrift für Reinhard Böttcher zum 70. Geburtstag am 29. Juli 2007 (Berlin, De GruyterRecht, 2007) 215; see also U Eisenberg, ‘Sich-Entfernen bzw. Fernbleiben während der Hauptverhandlung (para 231 II StPO)’ (2012) 32 Neue Zeitschrift für Strafrecht 63, 64; according to Stein (n 181) 303, 326, possible findings due to purely non-verbal behaviour (fascial expressions, gestures, etc) are not of much importance. 185  See also Wohlers (n 33) 629. 186  Art 3(2)(c) StPO and Art 6 ECHR. 187  V Lieber, ‘Art. 130’ N 1 f, 6 ff and ‘Art. 129’ N 1 in A Donatsch, T Hansjakob and V Lieber (eds), Kommentar zur Schweizerischen Strafprozessordnung (StPO), 2nd edn (Zürich, Schulthess, 2014).

150  Wolfgang Wohlers the meaning of Article 105 StPO (Verfahrensbeteiligte).188 Defence counsel is—as in German law189—‘legal counsel’ to the accused who can call upon one or more lawyers ‘to protect his or her interests’ (see Article 127 StPO). As in German law, defence counsel is not a representative of the accused, but is obliged in accordance with Article 128 StPO to advise and support the accused in the exercise of his or her procedural rights ‘within the bounds of law and rules of professional conduct’.190 In accordance with Article 128 StPO, defence counsel is ‘committed solely to the interests of the accused person’, ie counsel is neither required nor even allowed to do anything that is detrimental to the client’s interests (Treuepflicht).191 This duty is breached, for example, when the defence counsel of an accused, who has not confessed, insinuates that he or she thinks his or her client is guilty.192 But according to the Federal Court, it is ‘a matter for the legal representative to determine the defence strategy’.193 Counsel must act in the interests of the accused194 but, according to the Federal Court, counsel is not the uncritical mouthpiece of the accused and is not bound to obey the accused’s every wish. This position follows from the fact that ‘par définition le défenseur d’office sait mieux que l’accusé quels sont les moyens propres à assurer la défense et à contrebalancer l’action du Ministère public’.195 Defence counsel also have ‘a high degree of freedom of choice’ as regards the practical implementation of the defence strategy.196 It is, for instance, within the competence of defence counsel—and not that of the accused—to decide whether and which supplementary questions are to be asked when questioning a witness.197 As regards the independence of defence counsel from the instructions of their clients, the High Court of the Canton of Schaffhausen has rejected the interpretation of the function of counsel as being designed to merely ensure enforcement of the personal will or instructions of the accused; instead, counsel must be considered to have the right to make motions, which may not correspond to the wishes of their clients, if they believe them to be in the best interests of the accused, as well as in the common interests of society.198 And the Supervisory Commission on Lawyers of the Canton of Zurich has stated that even court-appointed counsel cannot be expected to identify themselves completely with their clients and fulfil their

188  Lieber, ‘Art. 105’ in Donatsch et al (n 187) N 9: due to its role as an assistant to the accused, the defence counsel receives a position similar to a party of the procedure even though the law does not explicitly name the defence counsel as such. 189  See above at section III. C. i. 190  Wohlers (n 10) 55 f; Lieber, ‘Art. 128’ in Donatsch et al (n 187) N 2. 191  See P Noll, ‘Die Strafverteidigung und das Disziplinarrecht der Rechtsanwälte’ (1981) 98 Schweizerische Zeitschrift für Strafrecht 179, 181; Wohlers (n 10) 56 f. 192  BGE 138 IV 166; V Lieber, ‘Ungenügende Verteidigung und die Folgen—Streiflichter zur neueren bundesgerichtlichen Rechtsprechung’ (2013) forumpoenale 51, 52 f. 193  BGE 126 I 211; disagreeing Wohlers (n 10) 64 ff; regarding the doctrine see Lieber, ‘Art. 128’ in Donatsch et al (n 187) N 5a. 194  Lieber, ‘Art. 128’ in Donatsch et al (n 187) N 4. 195  BGE 105 Ia 304; see also BGer plädoyer 3/1995, 63, 64. 196  BGE 103 Ia 105; BGE 116 Ia 105; Lieber, ‘Art. 128’ in Donatsch et al (n 187) N 5; see also BGE 106 IV 91; BGE 138 IV 166. 197  Kassationsgericht Zürich (1983) 82 Blätter für Zürcherische Rechtsprechung 200, 201. 198  Obergericht Schaffhausen (1990) 86 Schweizerische Juristen-Zeitung 261, 262.

The Role of Counsel in Criminal Proceedings 151 every wish.199 Although counsel is not allowed to worsen the position of their client, they cannot be expected to act against their better judgment and their own convictions. Counsel, therefore, cannot be blamed if they make it clear in written and oral statements that they are not presenting their own personal opinion, but the instructions and views of the client.200 The opinion that defence counsel must act in the best interests of the client is widely shared,201 but the point is that it does not matter which interests the client actually has, but what interests he or she reasonably should have had in the eyes of his or her lawyer.202 At the end of the day the assignment of counsel serves to incapacitate the accused. In those cases which do not involve the mandatory appointment of counsel as set out in Article 130 StPO, the accused is entitled to dismiss counsel and to appear pro se in order to regain control over his or her defence. The situation is different in cases of the mandatory appointment of counsel: since the courts are very reluctant to agree to replace counsel in those cases in which solely a difference of opinion is at stake,203 the accused is held hostage by his or her courtappointed counsel. Because all serious cases constitute cases of mandatory appointment of counsel, Swiss criminal proceedings are de facto based on the concept of full representation—but without the possibility to appear pro se. E.  Some Conclusions from the Comparative Analysis Despite their quite different basic structures, the Anglo-American adversarial trial and the Continental-European judge-centred trial are confronted with the same problems when it comes to the role and function of defence counsel. The basic questions are who has the competence to determine the defence strategy and how the defence should proceed during the proceedings. Is the accused in charge of his or her defence as an autonomous subject who can call on defence counsel for assistance and support in the implementation of his or her choices? Or does the responsibility lie with counsel who is entitled to decide which interests are relevant and which measures are appropriate? The answer to these questions demonstrates whether or not the accused is in fact treated as a subject or as a mere object of the proceedings. The decisive point is how much value is put on autonomy and self-determination of the accused204 and how this value is weighed in proportion to the pragmatic interest

199  Aufsichtskommission über die Rechtsanwälte (1961) 60 Blätter für Zürcherische Rechtsprechung Nr 10, 30. 200  For a sceptical take: Wohlers (n 10) 57 f, referring to the contradiction with the fiduciary duty of the defence counsel; regarding the doctrine see Lieber, ‘Art. 128’ in Donatsch et al (n 187) N 5a. 201  See also BGE 103 Ia 304 ff. 202 See F Caputo, ‘Rolle und Funktion der Verteidigung in einem politischen Prozess’ (2015) 133 ­Schweizerische Zeitschrift für Strafrecht 167, 175 ff; Wohlers (n 10) 55, 63 ff. 203  See S Bernard, ‘Wechsel der amtlichen Verteidigung: gesetzeswidrige Rechtsprechung’ (2013) 131 Schweizerische Zeitschrift für Strafrecht 87; WM Haefelin, Die amtliche Verteidigung im schweizerischen Strafprozess (Zürich, Dike, 2010) 25; S Heimgartner, ‘Amtliche Mandate im Vorverfahren—Zürcher Praxis’ (2012) forumpoenale 167. 204  According to Luban (n 2) 824–830, the relationship between defence counsel and his client is a marking point for our understanding of human dignity.

152  Wolfgang Wohlers in maintaining order in the proceedings, in avoiding unnecessarily long trials, and in getting as close to the truth as possible in order to allow a just decision.205 It is important to note that the differences between the various legal systems are of no importance in those cases in which the aims of the accused are also considered by the defence counsel to be reasonable. Provided that the accused have confidence in their defence counsel, they are likely to be happy to leave it to counsel to determine the means in which the aims of the defence are to be achieved. The situation is quite different, however, in relation to those cases in which the accused is intent on following an aim, which the defence counsel is not prepared to follow. In such cases, it has to be determined whether the defence counsel is entitled to reject the will of the accused and to follow other aims which he deems to be in the best interests of the client. Differences are also clearly visible in relation to the question whether counsel is obliged, in addition to acting in the interests of the client, to act to further other interests and in determining how such competing interests are to be reconciled. In common law systems it would seem that in cases of conflict the duty to the court prevails over the duty to the client.206 In civil law systems on the other hand, the duty to the client takes precedence. Another big difference concerns the influence which the accused is able to exert over the proceedings. Whereas in Anglo-American proceedings an accused who is represented by counsel has practically no opportunity to conduct procedural activities him or herself, an accused in Switzerland or Germany is entitled to actively participate in the proceedings alongside defence counsel. But the Swiss and German experience shows that even within proceedings following the same basic structures, the solutions may be quite different. While in Swiss criminal proceedings counsel is afforded so much power that it is appropriate to speak of a kind of disguised model of full representation, German criminal proceedings provide the accused with considerably more competence for determining the defence strategy and influencing the manner in which the defence is to be conducted. The extent of the opportunity to influence the proceedings is determined in large part by the nature of the proceedings themselves. The experience from criminal proceedings in England and Wales and in the USA and the proceedings before the ICTY suggest that it is basically impossible for a layperson to defend him or ­herself. Full representation seems to be a suitable model of defence at least within the ­lawyer-driven adversarial trial, not least because the prosecution and the defence are expected to lead the proceedings. The problem with the concept of full representation is that it essentially deprives the accused of their autonomy, forcing them to put their fate in the hands of counsel and hope for the best. Attempting to address this deficiency by providing the option of self-representation as a mutually exclusive alternative puts the accused between a rock and a hard place: either abandon any professional support in the design and implementation of the defence or renounce

205  For an opinion that the seeking for truth and justice has to trump autonomy—at least when the death penalty and mental illness are in the picture—see M Sabelli and S Leyton, ‘Train Wrecks and Freeway Crashes: An Argument for Fairness and Against Self Representation in the Criminal Justice System’ (2000) 91 Journal of Criminal Law and Criminology 161, 196 ff. 206  Ntanda Nsereko (n 1) 499 f and 507.

The Role of Counsel in Criminal Proceedings 153 the right to self-determination and give up the possibility of being able to influence the defence at all. This all-or-nothing approach does not serve the interests of the accused. In fact, it seems clear that a model of hybrid representation would, in principle, be a suitable remedy for the deficiencies mentioned above. The vehement rejection in the US of the idea that there might be a legal right to hybrid representation is solely based on pragmatic considerations: the proceedings—especially in the context of a technically demanding trial like the adversarial trial—are much easier to h ­ andle if the professional parties maintain full control and interventions of laymen—especially the accused—are restricted to a minimum. The added complexity caused by the model of hybrid representation is evident when the practice of the ICTY and German criminal proceedings are examined. Nevertheless, these proceedings demonstrate that hybrid representation can work, not only within continental European models but also when trials are more adversarial in nature. On the other hand, the model of the accused as a subject of the proceedings is— contrary to a widely held but erroneous assumption on the part of common law ­lawyers—not an element that belongs solely to the adversarial trial. Because of this, it is quite dangerous to connect the mandatory appointment of counsel with the view that counsel is independent from the instructions of his or her own client. ­Nevertheless, this is still the prevailing view in Switzerland. If one takes the role of the accused as a subject seriously, it must be the accused who decides. For the same reason, the decision of the accused to be represented by counsel cannot be considered to constitute a legal transplant from the adversarial procedural tradition but is instead something that is in fact indigenous to continental European systems of criminal procedure. The reasons that are invoked in Germany against the right to choose full representation are—in parallel to the rejection of hybrid representation in the US—mainly of a pragmatic nature, and it seems very doubtful that these should prevail. This means that the requirements arising from the case law of the ECtHR cannot be dismissed by Germany, or indeed by other signatories to the ECHR, ­simply with reference to the traditional structure of national criminal procedure.

154 

8 ‘Falling on Deaf Ears’: Looking for the Salduz Jurisprudence in Greece DIMITRIOS GIANNOULOPOULOS*

T

HE UNANIMOUS DECISION of the Grand Chamber of the European Court of Human Rights (ECtHR) in Salduz v Turkey (‘Salduz’)1 has led to dramatic reforms of custodial legal assistance rights across Europe, most notably in countries that had long resisted giving full effect to the right of access to a lawyer in police interrogations such as France, Belgium, Malta, Scotland, the Netherlands and Ireland. In Malta, for instance, breaches of the right to access to a lawyer have been haunting the state, and reforms remained pending, for many years.2 Scotland and Belgium were denying suspects the right to consult with a lawyer prior to interrogation, while suspects in France and the Netherlands were entitled to a brief consultation with a lawyer prior to, but not during, questioning.3 Irish jurisprudence was recognising access to a lawyer as a constitutional right,4 but did not ‘require that advice from a requested solicitor actually be made available to the relevant suspect prior to questioning’5 and rejected the possibility of having a lawyer present during questioning.6 In undertaking a contextual study of reforms of custodial legal assistance in five European countries (Scotland, France, Belgium, the Netherlands and Ireland), in an

* I am most grateful to the discussant, Vicky Kemp, for her comments on a written version of this article, and to John Jackson and Sarah Summers for their outstanding editorial assistance. 1 Salduz v Turkey [GC] (2009) 49 EHRR 19. 2 See generally A Spitieri, ‘The Right to Access to a Lawyer in Malta: A Few Steps Forward, a Few Steps Back’, Fair Trials International blog, 21 Dec 2016, www.fairtrials.org/the-right-to-access-to-a-lawyer-in-malta-a-few-steps-forward-a-few-steps-back/ (last accessed 25 September 2017). 3 See generally J Spencer, ‘Strasbourg and Defendants’ Rights in Criminal Procedure’ (2011) 70 CLJ 14; C Brants, ‘The Reluctant Dutch Response to Salduz’ (2011) 15 Edinburgh Law Review 298; N Questiaux, ‘Much Ado About Justice’ (2011) 15 Edinburgh Law Review 432; Committee against Torture, Followup Replies from the Government of Belgium to the Concluding Observations of the Committee against Torture, 28 Mar 2011, CAT/C/BEL/CO/2/Add.1, para 74; A Dorange and S Field, ‘Reforming Defence Rights in French Police Custody: A Coming Together in Europe?’ (2012) 16 International Journal of Evidence and Proof 153; WJ Verhoeven and L Stevens, ‘The Lawyer in the Dutch Interrogation Room: Influence on Police and Suspect’ (2012) 9 Journal of Investigative Psychology and Offender Profiling 69; and D Giannoulopoulos, ‘“North of the Border and Across the Channel”: Custodial Legal Assistance Reforms in Scotland and France’ (2013) Crim LR 369. 4 See DPP v Healy [1990] 2 IR 73. 5 DPP v Gormley, DPP v White [2014] IESC 17 [5.7]. 6 See Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390; and JM v Member in Charge of Coolock Garda Station [2013] IEHC 251.

156  Dimitrios Giannoulopoulos article that took its inspiration in the context of the ‘Obstacles to Fairness’ project (the article is hereinafter referred to as ‘RLA in five countries’),7 I offered evidence of the central role of the ECtHR in effecting change in national jurisdictions. At the same time, I highlighted considerable variations in national responses to Salduz, and argued that these illustrate that cosmopolitan influences for reform are mediated by competing judicial and legislative agendas, local resistance and a variety of other political, institutional and economic factors. The article used these observations as an opportunity to discuss, and then propose qualifications to, the thesis developed by Jackson and Summers that when the ECtHR articulates its rules clearly, it can lead Member States to accept its position.8 More specifically, the article argued that Court-centred explanations of acceptance of ECtHR jurisprudence should go hand in hand with contracting party-centred explanations of acceptance of (or resistance to) such jurisprudence. This chapter aims to take this line of argumentation further, by undertaking a contextual study of the right to custodial legal assistance in Greece. Greece offers an intriguing contrast to developments studied in ‘RLA in five countries’ as regards the influence of Salduz in domestic jurisdictions. While Salduz has had a major impact in these five countries, there has been virtually no engagement with it in Greece. S­ alduz rather seems to have fallen on deaf ears there, arguably because of complacency with meeting the baseline requirements set by this Strasbourg jurisprudence. Greece had long legislated the basic tenets of Salduz, the right to consult with a lawyer prior to interrogation and the right to have a lawyer present when questioned by the police. Perhaps this is why Salduz and the ECtHR case law that followed it have been ignored there. Salduz failed to ignite any dialogue on the need to effect change in practice, and yet one would have reasonably expected that continuing problems with custodial legal assistance in Greece would have made Salduz an ideal platform to revisit the implementation of custodial interrogation rights in practice. Apathy towards Salduz rather brings to the surface a culture of failing to address human rights challenges in a pragmatic way, and points to a country that may be taking its international human rights obligations lightly. It is instructive to note in this regard that Greece has a particularly poor track record in relation to responding to recommendations made by the European Committee for the Prevention of Torture, many of which are directly related to custodial interrogation rights recognised by the Salduz jurisprudence, and in relation to implementing ECtHR judgments more generally. From this vista, the example of Greece allows further exploration of contracting party-based explanations for the reception and effective implementation of Strasbourg jurisprudence.

7  D Giannoulopoulos, ‘Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries’ (2016) 16 Human Rights Law Review 103. A first draft of this article benefited from presentation at the first workshop on ‘Obstacles to Fairness’ (Faculty of Law, University of Zurich, 4–5 Sept 2014). 8  JD Jackson and SJ Summers, ‘Confrontation with Strasbourg: UK and Swiss Approaches to Criminal Evidence’ (2013) Crim LR 114.

Looking for the Salduz Jurisprudence in Greece 157 I.  THE SEMINAL SALDUZ JURISPRUDENCE

The Grand Chamber’s decision in the momentous Salduz case departed from the previous approach of assessing fairness with regard to the entirety of the proceedings when a violation of the right to legal assistance had occurred, holding that Article 6(1) of the European Convention on Human Rights9 (ECHR or ‘the Convention’) requires that ‘as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police’,10 and that ‘[t]he rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction’.11 The Court rejected the argument that the assistance provided subsequently by a lawyer or the adversarial nature of the ensuing proceedings could cure the defects occurring during police custody.12 Salduz quickly generated a strong line of Chamber judgments providing confirmation of this revolutionary jurisprudence while also penetrating a number of areas that Salduz had not touched upon. In Panovits v Cyprus,13 the ECtHR repeated the key Salduz tenet that ‘Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation’,14 before bringing more precision in Dayanan v Turkey, where it explained that a suspect should be assisted by a lawyer ‘as soon as he or she is taken into custody … and not only while being questioned’.15 Dayanan still provides today a bold vision of the role of the lawyer prior to and during police interrogation, in mandating that the suspect should be able to ‘obtain the whole range of services specifically associated with legal assistance’.16 In other words, Dayanan found that the right to legal assistance was going beyond the mere right to legal advice during police interrogation to cover other aspects of the lawyer’s role during the entire interrogation phase.17 In an equally fascinating development—which does not seem to have received much attention however—the Court found a breach of Article 6 in Aras v Turkey (no 2), in a case where the suspect’s lawyer had been ‘allowed to enter the hearing room during the questioning’ of the suspect, but ‘this was a passive presence without any possibility at all to intervene to ensure respect for the applicant’s rights’.18 Dayanan and Aras bring to light the Court’s desire to transform the lawyer’s presence into a substantive guarantee, ensuring that Salduz-generated reforms will bring about much more than just a cosmetic change to protecting suspects’ rights at the police station. 9 

Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5. Salduz v Turkey (n 1) [55]. Salduz v Turkey (n 1) [55]. 12  Salduz v Turkey (n 1) [58]. 13  Panovits v Cyprus, no 4268/04, 11 Dec 2008. 14  ibid [66]. 15  Dayanan v Turkey, no 7377/03, 13 Oct 2009 [32]. 16 ibid. 17  For a discussion of the distinction between the right to legal advice and the right to legal assistance, see F Leverick, ‘The Right to Legal Assistance During Detention’ (2011) 15 Edinburgh Law Review 352, 354. 18  Aras v Turkey (no 2), no 15065/07, 18 Nov 2014 [40]. 10  11 

158  Dimitrios Giannoulopoulos They are both underpinned by the logic that the mere presence of a lawyer at the police interrogation stage does not suffice in itself to secure the rights of the suspect. Taking another important step in the direction of safeguarding the application of the right to legal assistance in practice, the Court found in Pishchalnikov v Russia that a suspect ‘who had expressed his desire to participate in investigative steps only through counsel, should not be subject to further interrogation by the authorities until counsel has been made available to him’,19 while in Brusco v France the Court again clarified that the right to be assisted by a lawyer applied from the beginning of his detention and during questioning.20 In Navove and Others v Monaco it removed any remaining doubts on the issue of the lawyer’s presence during police ­interrogation;21 the Court explained that it had on many occasions already specified that the right to legal assistance during police detention should be particularly understood as assistance ‘during questioning’.22 Then, in AT v Luxembourg, the Court clarified that the lawyer’s presence during questioning will not suffice for the right to fair trial to be respected, and that national legislation must also provide for private consultation with a lawyer prior to the beginning of the interrogation.23 Taken together this jurisprudence now mandates that the suspect be afforded the right to legal assistance as soon as he is taken into custody, the right to consult with a lawyer prior to interrogation as well as the right to have a lawyer present—and be actively assisted by him or her—during interrogation. Equally worthy of note is the Court’s recent jurisprudence on the critical issue of waivers of the right to legal assistance. Zachar and Čierny v Slovakia provides a key illustration. The Court reiterated there that waivers ‘must be established in an unequivocal manner and must be attended by minimum safeguards commensurate with the waiver’s importance’, and that ‘before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen the consequences of his conduct’.24 In finding that the waiver in this case had not been attended by the minimum safeguards required,25 the Court specifically paid attention to the fact that the suspects had been notified of their rights ‘via the first pages of […] pre-printed [police questioning] forms’—which were ‘informing the applicants, without providing any commentary or further explanation, that they had the right to remain silent and the right to choose a lawyer’—and the fact, conversely, that ‘no individualised advice about their situation and rights was provided to the applicants’.26

19 

Pishchalnikov v Russia, no 7025/04, 24 Sept 2009 [79]. Brusco v France, no 1466/07, 14 Oct 2010 [45]; see also Boz v Turkey, no 2039/04, 9 Feb 2010; and Adamkiewicz v Poland, no 54729/00, 2 Mar 2010. 21 Interestingly, despite prior clear pronouncement by the ECtHR, the issue was still being hotly debated in the Netherlands. See generally Giannoulopoulos (n 7) 114 ff. 22  Navove and Others v Monaco, nos 62880/11, 62892/11 and 62899/11, 24 Oct 2013 [79]. The Court cited the examples of Karabil v Turkey, no 5256/02, 16 Jun 2009 [44]; Ümit Aydin v Turkey, no 33735/02, 5 Jan 2010 [47]; and Boz v Turkey (n 20) [34]. 23  AT v Luxembourg, no 30460/13, 9 Apr 2015 [87]. 24  Zachar and Čierny v Slovakia, nos 29376/12 and 29384/12, 21 July 2015 [60], citing Aleksandr Zaichenko v Russia, no 39660/02, 18 Feb 2010 [40] with further references. 25  Zachar and Čierny v Slovakia (n 24) [74]. 26  Zachar and Čierny v Slovakia (n 24) [70]. 20 

Looking for the Salduz Jurisprudence in Greece 159 The Salduz line of jurisprudence continues to evolve at a very fast pace and to exert considerable influence in European countries. It has been presented in some detail above, so that it can be demonstrated later on how Greece was already meeting the minimum standards set by this jurisprudence, but also how, on the other hand, Greece could have meaningfully engaged with it, to enhance the protection of the right to legal assistance in practice. First it is useful to revisit the point about how the Salduz jurisprudence offers a valuable interpretative tool with regard to the factors that facilitate acceptance of (or, conversely, lead to resistance to) Strasbourg jurisprudence in contracting parties. II.  COURT-CENTRED AND CONTRACTING PARTY-CENTRED EXPLANATIONS OF ACCEPTANCE OF, OR RESISTANCE TO, ECHR JURISPRUDENCE

In work published in 2013, Jackson and Summers used Salduz as a paradigm drawing support for the thesis that ‘when the ECtHR articulates clear rules and a ­coherent rationale for its approach, it can win acceptance for its position even when this may have far-reaching consequences for national law’.27 The article ­ contrasted ­Strasbourg’s success in gaining acceptance for its position on custodial legal ­assistance in the United Kingdom and Switzerland (the two comparative points of reference in the article)—as a direct result of Salduz setting clear rules and having a coherent ­rationale—with Strasbourg’s failure to advance its thesis on confrontation (in the same legal systems), precisely because the relevant jurisprudence lacked a ­coherent rationale and was not providing national courts with clear rules.28 Though not applicable to confrontation evidence, the analysis in ‘RLA in five countries’ offered a u ­ seful opportunity to scrutinise the Salduz part of Jackson’s and Summers’ argument. At an empirical level, developments in the five systems examined there conformed with Jackson’s and Summers’ observations about the effect of Salduz. In these European systems Strasbourg had in principle gained acceptance for its position on custodial legal assistance. There is also evidence that where this was not immediately so, it was the specifically grey—not so clear—areas of Salduz that may have fuelled resistance or given rise to a more reluctant approach.29 Attention was moreover drawn to the

27 

Jackson and Summers (n 8) 115. regard to the reception of ECtHR jurisprudence in England and Wales, the argument can be seen in combination with Dennis’ observation that English courts have not accepted Strasbourg’s jurisprudence on evidential matters uncritically, where they have found it ‘wanting in terms of clarity, consistency or coherence’, I Dennis ‘The Human Rights Act and the Law of Criminal Evidence: Ten Years On’ (2011) 33 Sydney Law Review 333, 337. 29  In Belgium, for example, Salduz’s (Salduz v Turkey (n 1) [54] f) interchanging references to ‘the assistance of a lawyer’ and ‘access to a lawyer’ gave rise to contrasting interpretations as to its precise effect: a ‘minimalist’ interpretation, according to which access to a lawyer did not go any further than a right to consultation prior to questioning, and a ‘maximalist’ interpretation, which also encompassed the physical presence of the lawyer during questioning. The controversy at the national level was resolved when the ECtHR specified in Brusco v France (n 20), that the suspect has the right to be assisted by a lawyer during questioning, which provides a good illustration of the strength of the argument developed by Jackson and Summers in this volume, ch 6; see MA Beernaert, ‘La jurisprudence européenne Salduz et ses répercussions en droit belge’ in C Guillain and A Wustefeld (eds), Le rôle de l’avocat dans la phase préliminaire du procès pénal (Limal, Anthemis, 2012) 45 f; Lack of clarity in Salduz also ‘helped’ the 28  With

160  Dimitrios Giannoulopoulos variations in the national responses to Salduz. These variations considerably influence the application of Salduz rights in practice to such a degree that they cannot be dismissed as routine or insignificant. From this angle, I claimed in ‘RLA in five countries’ that the argument that clarity gains acceptability needed to be qualified. Variations in national responses signify variable degrees of acceptance. Despite its clear rationale, Salduz was not adopted with the same urgency or enthusiasm across different contracting parties, and, even today, there remain important differences as to the extent to which the right to have a l­awyer present during questioning in ­particular has been written into national legislation.30 Divergent attitudes also came to the fore when one distinguished between the responses of national courts and those ultimately provided by national legislation.31 The above observations led me to the conclusion, in ‘RLA in five countries’, that Jackson and Summers’ analysis needed to be situated in a wider context where sufficient consideration could be given to a more diverse set of factors that determine national responses to Strasbourg jurisprudence. Their argument that when ­Strasbourg articulates clear rules and a coherent rationale for its approach it can enhance adherence to Convention jurisprudence no doubt provides a convincing explanation for the reception of ECHR jurisprudence. But, by the same token, it is difficult to see how such a Court-centred explanation of acceptance of ECtHR jurisprudence could possibly stand alone, in isolation from contracting party-centred explanations of acceptance of (or resistance to) such jurisprudence. By ‘­Court-centred explanations’ I mean those that may offer an account of acceptance mainly by reference to the actions of the Court, such as in its bringing precision and coherence to its jurisprudence or in its pursuing a more active dialogue with national supreme courts and national judges. ‘Contracting party-centred explanations’ may focus, on the other hand, on indigenous forces shaping national responses to the Court’s jurisprudence. These contracting party-centred explanations may, for instance, locate acceptance primarily in the national jurisdiction’s cosmopolitan attitudes or, conversely, link resistance with the perceived need to defend the national legal tradition against external influences.32 They may reveal a pragmatic approach to the relationship

Supreme Court in the Netherlands and the ‘Working Group’ in Ireland to read the relevant jurisprudence as not necessarily providing a right to have a lawyer present during questioning: See HR 30 June 2009, NJ 2009, 349; and Report of the ‘Working Group to Advise on a System Providing for the Presence of a Legal Representative during Garda Interviews’, July 2013 last accessed 25 September 2017. 30  See, eg, recent developments in the Netherlands in D Giannoulopoulos and K Pitcher, ‘The Shifting Terrain for Suspects’ Rights in Europe—the Right to Legal Assistance Saga in the Netherlands’, Guest blog post at Fair Trials International, 23 May 2016, www.fairtrials.org/the-shifting-terrain-for-suspectsrights-in-europe-the-right-to-legal-assistance-saga-in-the-netherlands/ (last accessed 25 September 2017). 31  See in detail Giannoulopoulos (n 7) 122. 32  For, eg, Bjorge interpreted Horncastle [2009] UKSC 14 as a manifestation of the Supreme Court’s ‘­exceptionalist’ approach to ECHR jurisprudence, which he contrasted with the ‘internationalist’ approach adopted by the same Court in Cadder v HM Advocate [2010] UKSC 43. See E Bjorge, ‘Exceptionalism and Internationalism in the Supreme Court: Horncastle and Cadder’ [2011] PL 475. Lord Hope explained the ­different outcomes in Cadder and McLean [2010] SLT 73; [2009] HCJAC 97 as a result of the ‘difference of approach between the two courts to the Convention’ and ‘its effect on the domestic system’. Lord Hope of Craighead, ‘Scots Law Seen from South of the Border’ (2012) 16 Edinburgh Law Review 58, 73.

Looking for the Salduz Jurisprudence in Greece 161 with Strasbourg33 or bring to the surface simple logistical considerations relating to the ability of the Member State to accommodate the European jurisprudence in practice.34 It was from this angle that I argued in ‘RLA in five countries’ that Jackson and Summers’ analysis can help the Court be more vigilant in elaborating precise rules and a coherent rationale for its approach—and perhaps even incorporating a reflection on the type of practical measures needed to ensure their effective implementation in practice—precisely when it hands down innovative judgments on controversial areas of criminal justice, where a common European position may have not yet fully crystallised and where national resistance may thus slow down, if not seriously obstruct, acceptance of the Court’s positions.35 In a recent article investigating the links between procedural traditions and ­domestic responses to the Salduz case law, Jackson provided a refined model for the acceptance of ECHR jurisprudence. This now places substantial emphasis on contracting party-based explanations. More specifically, Jackson argues that unless Strasbourg—and by implication the other European institutions as well—can put forward a rationale for a procedural right which can be justified as coming within a broad domestic procedural tradition, it may not be able to secure the endorsement of member states for it. The lesson here for European institutions is that in trying to command consensus on procedural rights, they must be able to communicate with the procedural traditions of member states as these traditions can be influential in determining whether the rights will be accepted.36

In an analysis of the Belgian response to Salduz v Turkey (n 1), Beernaert located in the country’s attachment to the inquisitorial legal tradition its reluctance to legislate a fully ECHR-compliant right to legal assistance, despite wide recognition of the ‘mandatory’ effect of Salduz. See Beernaert (n 29) 66 f. 33 In Cadder v HM Advocate (n 32) [46], the UK Supreme Court (UKSC) made much of the fact that Salduz v Turkey (n 1) was ‘a unanimous decision of the Grand Chamber’, which was ‘a formidable reason for thinking that [it] should follow it’. Writing extrajudicially, Lord Hope specified that, in contrast to an appropriate case like Horncastle (n 32), where the Supreme Court would ask the Strasbourg Court ‘to “think again” on a particular point’, Cadder was a case where ‘no amount of dialogue with Strasbourg would result in a change of view on its part’. Interestingly, such pragmatism by the Supreme Court was largely the result of Strasbourg having based Salduz on a principle ‘strongly embedded in the European jurisprudence’ (the privilege against self-incrimination), which left ‘no room for a decision based on ­expediency’. Lord Hope’s analysis provides much support to the thesis developed by Jackson and ­Summers in this volume, ch 6; see Lord Hope of Craighead (n 32) 74. 34  In Belgium, it was argued that affording the right to legal assistance to all suspects, even when they were not detained by the police, would not be possible for logistical reasons, and that the reform should be implemented at different stages, prioritising the more serious cases where the suspect was detained by the police first: See Circulaire n° 8/2011 du Collège des procureurs généraux, 23 Nov 2011 at 17. The Conseil constitutionnel referred to the need to put in place a system that ‘could in practice be organised in a satisfactory way’, which militated against expanding the scope of the right to legal assistance to include less serious offences: Conseil constitutionnel, Decision No 7/2013 of 14 Feb 2013 [B.23.3]. 35  As Judge Kovler explains, it is precisely when the ECtHR ‘adopts a novel approach without the basis of an existing consensus’ that the question of its acceptability in national and international courts becomes ‘of particular importance’: A Kovler, ‘The Role of Consensus in the System of the E ­ uropean Convention on Human Rights’ in ECtHR, Dialogue between Judges (Strasbourg, 2008) 11, 19 last accessed 25 September 2017>; Conversely, an ‘emerging European consensus’ or ‘common understanding’ can be a convincing justification for judicial creativity by the ECtHR, as submitted by Ashworth, see A Ashworth, ‘A Decade of Human Rights in Criminal Justice’ (2014) Crim LR 325, 335. 36  JD Jackson, ‘Responses to Salduz: Procedural Tradition, Change and the Need for Effective Defence’ (2016) 97 MLR 987, 1005.

162  Dimitrios Giannoulopoulos Jackson then concludes, in agreement with ‘RLA in five countries’, that [i]t is not enough for the court to provide a rationale purely in terms of ‘Strasbourg’ jurisprudence, what has been described as a ‘court-centred’ explanation of acceptance of ECtHR jurisprudence. ‘Court-centred’ explanations have to be considered together with ‘member state-centred’ explanations that offer an account of acceptance in terms of indigenous traditions and other forces shaping national responses.37

With all this in mind, we can now move to the study of the (lack of) effect of Salduz in Greece as an illustration of further contracting party-based explanations for the acceptance and implementation of Strasbourg jurisprudence. We will start by looking at the state of custodial legal assistance in Greece prior to Salduz. III.  CUSTODIAL LEGAL ASSISTANCE IN GREECE: A LIBERAL LEGISLATIVE FRAMEWORK

The right to custodial legal assistance and other fundamental custodial interrogation rights were enacted into legislation in Greece more than 15 years prior to the Salduz ‘revolution’ in Strasbourg. Law 2408 of 199638 brought an end to the exceptional powers that allowed the police to deprive suspects of the ability to exercise their rights, particularly in relation to investigations for serious offences.39 This terminated a regime that was seen as ‘judicially and politically unacceptable’ and an ‘amputation’ of suspects’ rights.40 The 1996 legislation was of paramount importance for the protection of suspects’ rights, by bringing into the police station the fair trial guarantees that were previously only applied to interrogations by the Investigating Judge. It also sought to eliminate the highly controversial practice of examining suspects as witnesses, which was designed to stop them from exercising basic custodial interrogation rights, notably the right to legal assistance and the right to silence. Deprived of any protection at the police station, suspects would routinely confess. Then faced with their incriminating statements at later stages of the interrogation, this time possibly in the presence of a lawyer, they would repeat the unlawfully obtained confession thus giving it full legal effect.41 The suspect was, in other words, ‘morally coerced’ into confessing,42 as a result of arbitrary violations of his human dignity.43 To combat this continuing issue, the 1996 legislation mandated the

37 ibid.

38  Law 2408/1996 reforming provisions of the Penal Code, the Code of Penal Procedure, the Code for the Treatment of Detained Persons and other provisions. See ΦEK A' 104, 4 June 1996. 39  Code of Penal Procedure (CPP) (Greece) Arts 105–106 prior to Law 2408/1996. 40  L Margaritis, ‘The Rights of the Accused in the Preliminary Phase’ in Association of Legal Scholars of the North of Greece, The Protection of the Accused and the Victim in the Criminal Process (­Thessaloniki, Sakkoulas, 1991) 30 (in Greek). 41 N Androulakis, ‘Concerning the Problem of Confessions Obtained during Police Interrogation’ (1974) 22 Nomiko Bima 1345, 1348 (in Greek). 42  G Kaminis, Illegally Obtained Evidence and Constitutional Guarantees of Human Liberties (The Exclusion of Evidence in the Criminal and Civil Process) (Athens-Komotini, Sakkoulas, 1998) 215 (in Greek). 43 Arios Pagos 129/ 2006, 56 Poinika Chronika 712; see also Arios Pagos 1/ 2004, 55 Poinika ­Chronika 113.

Looking for the Salduz Jurisprudence in Greece 163 presence of the lawyer in custodial interrogations and introduced an ‘exclusionary rule’ that imposes the removal from the investigation file of any incriminating statements obtained in the absence of a lawyer during this preliminary phase of the proceedings.44 Following the legislative reform of 1996, suspects in Greece now have the right to be assisted by a lawyer,45 and communicate freely with him,46 when questioned by the police and in other pre-trial examinations, including the examination by the Investigating Judge. The lawyer can ask questions and make observations, which have to be noted in the relevant report,47 and has the right to access the investigation file in its entirety.48 Since 1996 the police were obliged to notify the suspect about the charges and the right to legal assistance, while legislation enacted in 2014 extended this duty to notifying the suspect about his right to translation and interpretation and, importantly, the right to silence.49 In addition, a suspect cannot be detained for questioning at the police station for more than 24 hours.50 Since these provisions all relate to the exercise of the rights of the defence, any violations must be remedied through the pronouncement of an absolute nullity.51 The Code also specifically mandates that interviews that are conducted in violation of the aforementioned rights of the suspect, and in violation of the duty to notify the suspect of these rights, are ‘null and void’ and are ‘not taken into consideration’ by the court,52 and that they should be removed from the investigation file.53 In brief, in marked contrast to strong resistance in many Western European legal systems to write suspects’ rights into legislation, Greece has possessed, for more than 20 years now, a progressive legislative framework which prioritises the protection of the right to legal assistance at the police station. The Hellenic regime of custodial interrogation rights is, of course, far from being complete. There remain important legislative gaps, such as in relation to the right of the suspect to request to be submitted to a medical examination or the right to notify a third person,54 and there is no provision for the audio-visual recording of police interrogations either. Much more worrying though is the fact that legal aid does not apply at the police interrogation stage, and that there are no duty solicitor

44 

CPP (Greece) Art 31, para 2. CPP (Greece) Art 100, para 1. 46  CPP (Greece) Art 100, para 4. 47  See N Androulakis, Fundamental Notions of the Criminal Process, 2nd edn (Athens-Komotini, Ant N Sakkoulas Publishers, 1994) 273 (in Greek). 48  CPP (Greece) Art 101. 49  CPP (Greece) Art 99A introduced with Law of 11 Feb 2014 implementing Directive 2010/64/EU of 20 Oct 2010 on the right to translation and interpretation [2010] OJ L280/1 and Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings [2012] OJ L142/1. The right to silence is protected by CPP (Greece) Art 273 para 2. 50  CPP (Greece) Art 279. 51  CPP (Greece) Art 171. 52  CPP (Greece) Art 105. 53  CPP (Greece) Art 105 refers to CPP (Greece) Art 31, para 2 in that respect. 54 These rights are only provided by a Code of practice, and relevant violations are not followed by the pronouncement of procedural nullities. See, eg, Art 3 of Presidential Decree 254/2004, ΦΕΚ 238/3.12.2004. 45 

164  Dimitrios Giannoulopoulos schemes, which arguably makes a parody of custodial interrogation rights.55 Still, for the purposes of the argument that this chapter aims to develop, the preceding analysis highlights that, many years prior to Salduz, Greece had adopted most of the key custodial interrogation rights recognised with this jurisprudence. IV.  SUSPECTS’ RIGHTS IN PRACTICE

It emerges from the above that Greece has long possessed a particularly progressive and liberal legislative framework of custodial interrogation rights, recognising a key role for lawyers at the police station at a time when key European jurisdictions were reluctant to let suspects who were detained at the police station come anywhere near their lawyers. But it is also clear at a first glance that many of these rights are devoid of much substance in reality. The fact that legal aid is reserved for later stages of the criminal process, and there are no duty solicitor schemes, cannot but significantly undermine the exercise of these rights in practice, and there are other major concerns as regards the law in action. We can take as a point of departure reports by the European Committee for the Prevention of Torture (CPT) which have time and again highlighted the contrast between legislative protection and the exercise of custodial interrogation rights in practice.56 The Committee has repeatedly noted, in particular, that the right to consult with a lawyer, and be assisted by a lawyer during interrogation, is rarely exercised in practice,57 and that suspects generally meet with a lawyer for the first time when they appear in court,58 after having been detained for a few days, mainly as a result of having been deprived of the ability to designate a lawyer.59 Other CPT reports contain testimony from police officers, according to which in most cases the suspect is not allowed to have any contact with a lawyer before he has made some incriminating statements60 and prior to appearing before the relevant prosecutor or Investigating Judge,61 while the situation is aggravated when the suspects are foreigners who are unlawfully in Greece.62 The CPT similarly identifies significant

55  See generally D Giannoulopoulos, ‘Legal Aid in Greece’ Fact Sheet (part of Open Society Justice Initiative on ‘Legal Aid in Europe’), www.opensocietyfoundations.org/fact-sheets/legal-aid-greece (last accessed 25 September 2017); see also CPT, Report to the Government of Greece on the visit to Greece, CPT/Inf (2016) 4 [47] (hereinafter referred to as ‘CPT Report 2016’), which finds, for example, that ‘theoretically’, suspects in Greece ‘have the right to consult with a lawyer prior to and during interrogation by the police, but, in practice, the unavailability of legal aid at this stage means that this right is ineffective for most people’. 56  See, eg, CPT, Report to the Government of Greece on the visit to Greece, CPT/Inf (2009) 20, 15. 57  CPT, Report to the Government of Greece on the visit to Greece, CPT/Inf (2010) 33, 24 [34]; see also Amnesty International, ‘Greece: Briefing to Committee Against Torture’, Oct 2011 last accessed 25 September 2017. 58  CPT, Report to the Government of Greece on the visit to Greece, CPT/Inf (2012) 1, 42 [91]; See also CPT Report 2010 (n 57) 24 [34]; CPT, Report to the Government of Greece on the visit to Greece, CPT/ Inf (2008) 3, 21 [38]. 59  CPT, Report 2012 (n 58) 42 [91]. 60  CPT, Report to the Government of Greece on the visit to Greece, CPT/ Inf (2002) 31, 27 [41]. 61  CPT, Report to the Government of Greece on the visit to Greece, CPT/ Inf (2001) 18 (Part 1), 35 [85]. 62  CPT, Report to the Government of Greece on the visit to Greece, CPT/ Inf (2001) 18 (Part 2), 24 [42].

Looking for the Salduz Jurisprudence in Greece 165 problems in the exercise of the right to notify a relative and be examined by a doctor as well as in relation to the duty of police officers to notify suspects of their rights.63 Criminal procedure experts in Greece have likewise been very critical of a practice whereby the waiver of the right to legal assistance was only being attested by a tick box within the police interrogation transcript. Anagnostopoulos argues that the fact that the vast majority of suspects were seen as waiving their rights by the simple act of signing the interrogation transcript created the suspicion that suspects were never notified of their rights in the first place.64 A member of the Committee for the reform of the Code of Penal Procedure has recently gone so far as to speak of the hypocrisy of the Greek custodial interrogation system on the issue of ­waivers, during a recent conference of the Hellenic Criminal Bar Association bringing together Supreme Court judges, prosecutors and defence lawyers from around the country. He characteristically argued that the suspect is presumed to have been notified of his rights simply by signing the interrogation transcript that makes reference to these rights, and then the police immediately presume that he has waived his rights ‘fully voluntarily’ and ‘with direct effect’.65 It should be added that more than any other issue demonstrating critical flaws with the exercise of suspects’ rights in Greece, troubling accounts of the continued use of threats and force speak volumes about the chasm between theory and practice. The Greek judge at the ECtHR, ­Linos-Alexandros Sicilianos,66 has noted that police violence in custodial interrogations is one of the most important questions raised by Greek cases in Strasbourg, adding that the details of some of the cases cause shock and alarm.67 It is equally instructive to take note of anecdotal evidence from defence practitioners in Greece that suggest that there is a long road to travel to improve custodial interrogation conditions and the exercise of suspects’ rights. During a recent working meeting of Greek defence practitioners–members of the Legal Experts Advisory Panel (LEAP)—which I have had the opportunity to chair—I succeeded in getting an impression of the harsh realities associated with custodial interrogation in Greece, in line with pre-existing impressions gathered from interactions with legal practitioners there.68 Notification of the right to legal assistance was one of the areas

63 See, eg, CPT Report 2008 (n 58) 21 [39]; CPT Report 2010 (n 57) 25 [37]; CPT Report 2012 (n 58) 42 [91]. 64  See Arios Pagos 2/1999 (plenary session), 49 Poinika Chronika 811, 813, obs I Anagnostopoulos. 65 V Dimakopoulos, Intervention in 7th conference of the Hellenic Criminal Bar Association, ‘The Right to Legal Assistance in Criminal Trials’, April 2016, para 15 f, www.youtube.com/watch?v=TBh6 9yu28tw&feature=youtu.be&list=PLf_ValJasomldlwNdr7wkyoFnNmECv52l&t=19904 (in Greek) (last accessed 25 September 2017). 66 F Oikonomidis, Interview of Prof LA Sicilianos, ‘Greece has Human Rights Issues’, Kiriakatiki Eleftherotipia, 29 Oct 2011 (in Greek). 67  See, eg, Bekos and Koutropoulos v Greece (2006) 43 EHRR 2; Zontul v Greece, no 12294/07, 17 Jan 2012. 68  LEAP is an EU-wide network of experts in criminal justice and human rights which works to promote fair trial rights and effective judicial cooperation within Europe. There are currently over 120 members, made up of lawyers, non-governmental organisations (NGOs), and academics, covering all 28 EU Member States. The working group meeting was organised as part of ‘Fair Trials International’ training on the EU Procedural Rights Directives (Athens, 4–6 April 2016); see also the guest post by Roksani Stan—one of the participants at the workshop—published on the Fair Trials International blog. R Stan, ‘A Greek Legal Practitioner on the Right to Interpretation, Information and Access to a ­Lawyer’, Fair ­Trials

166  Dimitrios Giannoulopoulos highlighted, with participants noting that it is often ‘extremely delayed’ and that the ‘letter of rights’ is hardly ever given to suspects. Significant problems with access to a lawyer were also pointed out. It was argued that there is often insufficient time to communicate with the suspect, lawyers doing police station work may be lacking the required experience and expertise, and there is very limited access to translators and interpreters. Some high profile cases were mentioned. It was pointed out that ­lawyers had been arbitrarily barred from meeting with and advising their clients prior to questioning, with the interrogation of the MPs of the far right ‘Golden Dawn’ party being a key illustration. Significant logistical problems with translation and interpretation were also reported, and there was a consensus that these are gravely affecting the exercise of the right to legal assistance in practice. Reference was made to a pivotal corruption case involving the ‘Siemens’ corporation, where the trial had been postponed, and there was a risk that time limits for holding the defendants to account would be surpassed, all as a result of the inability of the relevant administrative service to translate into German and French the decision committing the defendants to trial.69 Even more worrying was the observation, shared by nearly all participants, that police violence continues to be endemic in custodial interrogation in Greece. V. SALDUZ’S NEGLIGIBLE EFFECT IN GREECE: ‘PAYING LIP SERVICE’ AND AVOIDING THE COST OF PUTTING UP RESISTANCE

In view of the significant problems with the law in action, one might have expected Salduz to generate—at least some—debate around potential legislative reforms of suspects’ rights in Greece or the need to protect these rights more effectively in practice. One might have anticipated that the European awakening on suspects’ rights would have had some echoes in Greece. But this was not the case. Salduz and its progeny were hardly noticed in Greek criminal law scholarship,70 and there is no evidence so far that they have had any influence upon judicial practice.71 In spite of

blog, 19 July 2016 last accessed 25 September 2017. 69  See, eg, ‘The Siemens Case Fiasco: A Trial Lost in Translation’, Eleftherostypos.gr, 12 July 2016 (in Greek) last accessed 25 September 2017; the relevant documents were finally translated, even with great delay, and the trial started on 24 Feb 2017. See ‘Siemens Case: Trial Set for 24 February’ last accessed 25 September 2017; I have discussed these issues with one of the lawyers working in the Siemens case, who has confirmed the serious difficulties with translation of key documentation and the significant delays this had caused. 70  With a few notable exceptions. See, eg I Anagnostopoulos, ‘The Right of Access to a Lawyer in Europe: A Long Road Ahead?’ (2014) 4 European Criminal Law Review 3. 71 For example, a search of the electronic database of the longest running criminal law journal in Greece (Poinika Chronika), with the keyword ‘Salduz’, does not bring up a single result. There are 162 results when the keyword ‘suspects’ rights’ is used instead (62 results in the scholarship section and 87 results in the case law sections), which suggests that not a single one of these sources makes any reference to Salduz v Turkey (n 1). A similar search at another major point of reference for Greek criminal law and procedure scholarship (Poiniki Dikeosini) brings up six results; all except for one discussing wider procedural issues, making passing reference—most of them in footnotes—to Salduz, while one article

Looking for the Salduz Jurisprudence in Greece 167 well-known concerns about the exercise of the right to legal assistance, for instance, there was no reflection on Dayanan’s emphasis on the suspect’s ability to exercise the wide range of services associated with this right. It can be argued that such reflection would have led observers to revisit some of the problems identified above in the light of this powerful Strasbourg jurisprudence, for example the fact that custody officers are often not notifying suspects of their rights, are arbitrarily denying them access to lawyers, and are often presuming that suspects have waived their right to a lawyer by the simple act of signing the police interrogation transcript. Despite waivers constituting a major problem in guaranteeing suspects fair access to the right to legal assistance, there are no signs either of any engagement with post-Salduz case law bringing precision on requirements for waivers to be effective.72 Strasbourg jurisprudence has also failed to initiate any dialogue in Greece on whether the country needs to revisit the logistical and financial arrangements connected with the exercise of the right, most notably with a view, potentially, to putting in place a duty solicitor scheme and extending legal aid to custodial interrogations. In the wake of Salduz, lawyers went on strike in France and Belgium,73 and there was major concern in Scotland, about the practicalities of effectively delivering legal assistance across police stations in these countries. There was no debate in Greece, and yet the European developments—and European concerns—discussed above could have provided the momentum for a review of the practical arrangements around the delivery of the right to access to a lawyer. Alternatively, one might have expected a reaction from Greece about the substantial economic cost associated with delivering an effective system of legal assistance, as a result of the ECtHR considerably extending the scope of the right to access to a lawyer or the right to translation and interpretation for that matter.74 Again there was no reaction, either only concentrates on the right to access to a lawyer (though again it examines it from the viewpoint of EU law rather than ECHR jurisprudence). The article is authored by one of the eminent experts of EU criminal law in Greece, Prof Simeonidou-Kastanidou; see E Simeonidou-Kastanidou, ‘The Right to Access to a Lawyer in the Criminal Process. Proposal for a Directive COM (2011) 326 final of the Council and the European Parliament’ (2012) 8–9 Poiniki Dikeosini. It must be explained here that the vast majority of criminal law related scholarship, and all notable case law, appear in these two journals in Greece. This means that the above searches provide a good indication of the level of academic interest and judicial developments in this area. To contrast the above with the level of interest in other European jurisdictions, we can take the example of a search in the Westlaw UK database, which gives 125 results, many of which centre on Salduz and related developments, or the example of the Dalloz.fr database in France (the main electronic legal database there), where we get 229 results (all searches were conducted on 29 December 2016, using the keyword ‘Salduz’). See, eg, Zachar and Čierny v Slovakia (n 24). See, eg, ‘Arrêt Salduz: les avocats bruxellois seront en grève mardi’, rtbf.fr, 17 June 2011 last accessed 25 September 2017. 74  In contrast, when the ‘Salduz legislation’ was discussed in Belgium there were substantial concerns that affording the right to legal assistance to all suspects, even when they were not detained by the police, would not be possible for logistical reasons. This led relevant parties in the legislative process to accept that the reform should be implemented at different stages, prioritising the more serious cases where the suspect was detained by the police first. See, eg, Circulaire n° 8/2011 du Collège des procureurs généraux, 23 Nov 2011, 17; The Conseil constitutionnel explained, in that regard, that the need to put in place a system that ‘could in practice be organised in a satisfactory way’ meant it was impossible to legislate a right to legal assistance that would apply to less serious offences, Conseil constitutionnel, Décision n° 7/ 2013, 14 Feb 2013 [B.23.3]. 72  73 

168  Dimitrios Giannoulopoulos to the Salduz case law or to the EU Directives stemming from it which have now created considerable financial burdens for all EU states, regarding all aspects of custodial legal assistance, from translation and interpretation to notification of rights, the right of access to a lawyer and, most importantly, the provision of legal aid in custodial interrogations.75 Continuing with this line of reasoning, it is instructive to note that in the aftermath of Salduz, Brusco v France clarified that there was a violation of the right to legal assistance a fortiori in cases where the suspect had not been informed by the authorities of his right to silence.76 And yet, Greece hardly noticed this, even though the Code of Penal Procedure has long omitted to provide for a duty to notify suspects of this essential right. The right to silence was eventually added to the list of rights that interrogating officers have a duty to notify to suspects only when the Directive on the right to information in criminal proceedings was transposed into Greek law.77 Paradoxically, this law was transposed in Greece in a way that curtailed the existing rights of the defendant and other parties. More specifically, the transposing legislation introduced an exception to the procedural rule that previously allowed suspects to access the entirety of the investigation file. In other words, the transposition of a Directive that aimed to enhance suspects’ rights led instead to undermining the protection provided to suspects. The relevant legislative reports show that, in their rush to transpose the Directive, the Greek authorities probably failed to notice that its transposition would also have this negative outcome for suspects’ rights.78 This is further evidence of the lack of debate on, and serious engagement with, the Salduz jurisprudence, and, in this case, the EU directives that it inspired. At this point it may be wise to sound a note of caution. There is a risk that the preceding analysis might be interpreted as suggesting that there is either ignorance or indifference in Greek criminal scholarship and judicial practice towards Strasbourg jurisprudence. This chapter does not intend to make such a claim. Case reports in Greece are replete with references to ECtHR judgments,79 while law journals,

75 See, eg, Directive 2010/64/EU (n 49); Directive 2012/13/EU (n 49); Directive 2013/48/EU of 22 Oct 2013 on the right to access to a lawyer [2013] OJ L294/1; and Directive (EU) 2016/1919 of 26 Oct 2016 on the right to legal aid for suspects [2016] OJ L297/4; these EU directives stemmed from a 2009 Roadmap which set out a gradual approach towards establishing a full catalogue of procedural rights for suspects across the EU; see Resolution of the Council of 30 Nov 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [2009] OJ C295/1; for general information on progress with the implementation of the Roadmap directives, see European Commission, Rights of suspects and accused last accessed 25 September 2017. 76  Brusco v France (n 20) [45]; see also JF Renucci, ‘Garde à vue et CEDH: la France condamnée à Strasbourg’ (2010) 44 Recueil Dalloz 2950. 77  See Law of 11 Feb 2014 (n 49). 78  See, eg, Greek Parliamentary Report on the legislative Bill for the adoption of Directives 2010/64/ EU (n 49) and 2012/13/EU (n 49) (in Greek). 79  This is based on personal observations in relation to criminal law and procedure cases in particular, but see also Kaboglu and Koutnatzis who argue that it is common for Greek courts to cite the ECHR or to ‘proceed along identical lines of reasoning with respect to both the Greek Constitution and the ECHR’, I Ozden-Kaboglu and SI Koutnatzis, ‘The Reception Process in Greece and Turkey’ in H Keller and AS Sweet (eds), A Europe of Rights—The Impact of the ECHR on National Legal Systems (Oxford, Oxford University Press, 2008) 451, 500.

Looking for the Salduz Jurisprudence in Greece 169 i­ncluding criminal law and procedure journals, dedicate detailed analysis to key cases and publish annual reports bringing ECHR case law together.80 More generally, in Greek legal scholarship, domestic law is rarely seen in isolation. On the ­contrary, there are constant references to its relationship with international law, with the case law of the ECtHR and the Court of Justice of the European Union (CJEU) constituting primary points of reference.81 This chapter rather claims that it is the Salduz case law in particular that has failed to attract any attention in Greece, and that this merits attention considering the dramatic effect it has had in other European jurisdictions. We must now examine this claim in a wider context of Greek responses to international pressures for human rights reform, most notably, of course, in the area of custodial interrogation rights. VI.  GREEK RESPONSES TO INTERNATIONAL PRESSURES FOR HUMAN RIGHTS REFORM: THE WIDER CONTEXT

In seeking to contextualise the absence of any discourse on the Salduz case law in Greece, it is useful to draw upon the latest CPT report (2016) on the country.82 This makes for disturbing reading, among other things on the treatment of suspects by the police and the application of safeguards against ill-treatment, in terms of the extent to which the Greek criminal justice system falls short of implementing international human rights standards in practice. Equally frustrating is the continued inability of the relevant Greek authorities to positively engage with these matters, a realisation that runs through CPT reports on visits to Greece that go back to some of the first reports in the 1990s. Right from the outset, the 2016 report holds Greece to account for failing to act upon the CPT’s recommendations. It first points out that the treatment of criminal suspects by law enforcement officers ‘has been a long-standing concern of the CPT since its first visit to the country in 1993’, before making the startling observation that [r]egrettably, despite overwhelming indications to the contrary, the authorities have to date consistently refused to consider that ill-treatment is a serious problem in Greece and have not taken the required action to implement the Committee’s recommendations and combat this phenomenon.83

80 A search of the legal database of the criminal law journal Poinika Chronika with the keyword ‘ECHR’ brought up 1444 results (including 230 results in the scholarship section and 736 in the case law section), completed on 30 Dec 2016 at www.poinikachronika.gr/ (last accessed 25 September 2017). In 2009, the high profile generalist law journal in Greece dedicated an entire issue to a celebration of 50 years of jurisprudence at the ECtHR, with commentary from 24 contributors, including judges at the ECtHR and several Greek academics and members of the judiciary. See ‘A Tribute to the 50 Years of the European Court of Human Rights’ (2009) 57(8) Nomiko Bima 1821 ff (in Greek). 81  In the recent Hellenic Criminal Bar Association conference on the right to access to a lawyer, the vast majority of the papers touched upon international law. See the programme of the conference here: last accessed 25 September 2017. The relevant interventions made several references to ECHR and CJEU jurisprudence. 82  CPT Report 2016 (n 55) [4]. 83  CPT Report 2016 (n 55) [12].

170  Dimitrios Giannoulopoulos The report then emphatically states that ‘it is high time for the Greek authorities to acknowledge their responsibilities and to take resolute action to address this ­matter’.84 It brings to the surface ‘a significant number of credible allegations of physical ill treatment of criminal suspects (including of juveniles)’, particularly related to ‘­excessive use of force’,85 which is a ‘frequent practice’,86 both at the time of apprehension and during questioning,87 and ‘particularly against foreign ­nationals, including for the purpose of obtaining confessions’.88 The report pinpoints ‘a ­criminal justice system which places a premium on confession evidence’ and which, as a result, creates incentives for the use of ‘physical or psychological coercion’.89 It calls upon the Greek authorities to ‘promote a culture change’90 and to adopt ‘a ­fundamentally different approach towards methods of police investigation’.91 The report then moves on to discuss suspects’ rights and safeguards more generally against ill treatment. Here the CPT stresses that it must ‘reiterate the findings from its previous visits’: [f]ormal safeguards against ill-treatment (including the rights of notification of custody, access to a lawyer and access to a doctor) do not for the most part apply in practice from the very outset of a person’s deprivation of liberty and more generally remain ineffective, despite the existence of clear rules.92

Regarding the right of suspects to notify their next-of-kin, the CPT notes that it ‘once again’ has to call upon ‘the Greek authorities to take the necessary steps’ to ensure enjoyment of the right. In the same way, the Committee notes, in relation to the right to access to a lawyer, that the ‘right generally remains “theoretical and illusory” for those who do not have the financial means to pay for the services for a lawyer’.93 The CPT expresses similar concerns in relation to the poor quality of ex officio lawyers (in the exceptional cases where these are available), the respect of confidentiality in the lawyer–client relationship as a result of the lack of detailed facilities in police stations and limited access to doctors.94 This is followed by a number of recommendations, with the CPT finding, with apparent exasperation, that it ‘once again’ has to request that the Greek authorities ‘take immediate and effective steps to ensure that the right of access to a lawyer applies for any detained person as from the very outset of deprivation of liberty by the police’, also pointing out that

84 

CPT Report 2016 (n 55) [12]. CPT Report 2016 (n 55) [15]. 86  CPT Report 2016 (n 55) [21]. 87  CPT Report 2016 (n 55) [15]. 88  CPT Report 2016 (n 55) [21]. 89  CPT Report 2016 (n 55) [22]. 90  CPT Report 2016 (n 55) [23]. 91  CPT Report 2016 (n 55) [23]. To achieve this, the report stresses that the onus must be placed on more rigorous recruitment procedures, regularly providing opportunities for training on professional interviewing techniques, an intelligence-led and physical evidence-based approach and introducing the electronic recording of police interviews among other things. 92  CPT Report 2016 (n 55) [45], citing [27] ff. 93  CPT Report 2016 (n 55) [47]. 94  CPT Report 2016 (n 55) [48] ff. 85 

Looking for the Salduz Jurisprudence in Greece 171 this will ‘require the extension of the existing legal aid system to the police investigation stage or when the suspect is questioned by the police’.95 In the face of such adverse findings, and against the backdrop of the blatant realisation running through the 2016 report that Greece has failed to act upon the recommendations of the CPT, it is intriguing to explore the official response of the Greek Government. This, interestingly, provides an alarming confirmation of observations already made in this chapter, that external pressures to undertake human rights reforms of police interrogation, and to implement suspects’ rights in practice, seem to have fallen on deaf ears in Greece. In the face of the CPT findings of serious shortcomings in relation to the prompt notification of the suspect’s next-ofkin, access to a lawyer, the absence of legal aid, the poor quality of the work of ex officio lawyers, confidentiality of lawyer–client communications and access to a doctor, to take a few examples only, the Ministry of Justice had the following to offer as a response: the Greek authorities do not prevent suspects from informing a relative, ‘on the contrary [they] facilitate communication’, in compliance with the relevant legislation.96 The right of access to a lawyer ‘applies to any detainee from the outset of his/her deprivation of liberty’, and ‘the right for (sic) legal assistance has been established at all stages of the criminal and administrative proceedings’.97 Foreign nationals in particular are ‘entitled to free legal assistance and representation upon request’98 and the right to access a doctor ‘is provided to everyone’.99 Finally, ‘detained foreign nationals systematically receive information’ on their rights and obligations,100 while ‘[t]he presence of an interpreter is also established and efforts are made to meet the interpretation needs in all Services’.101 In other words, the Ministry of Justice dismisses with a wave the sustained—and evidencebased—criticism from the CPT, choosing to ignore the painful reality described in its reports. All that is offered as evidence is a circular order issued in 2003, which was aimed at giving effect to key custodial interrogation rights, as an illustration of efforts undertaken by the ­Government to improve existing conditions in response to CPT ­recommendations.102 It truly ­beggars belief that, despite another damning report from the CPT repeating the recommendations made in the many reports that preceded it, the Ministry’s response is more or less exhausted in a simple reference to a circular which has demonstrably had no effect in practice. Following this line of argument, it is difficult to ignore the fact that Greece remains one of the countries in the Council of Europe that has the ‘highest number

95 

CPT Report 2016 (n 55) [47]. Hellenic Republic, Ministry of Justice, Transparency and Human Rights, ‘Follow up to the recommendations included in the Report of the European Committee for the Prevention of Torture and ­Inhuman or Degrading Treatment or Punishment (CPT) following its visit to Greece from 14 to 23 Apr 2015’, CPT/ Inf (2016) 5, 36 last accessed 25 S­ eptember 2017. 97  ibid [37]. 98 ibid. 99 ibid. 100  ibid [39]. 101 ibid. 102  Circular order 4803/22/44, 7 Apr 2003. 96 

172  Dimitrios Giannoulopoulos of non-implemented judgments’, mainly as a result of ‘serious structural problems’ which have remained unresolved for years,103 and that, if historical data is taken into account, it features as one of the countries with the highest total number of judgments against it.104 It is equally instructive to draw upon scholarship that has exposed other areas where international pressure for human rights reform has failed to bring about substantive change in Greece. Cheliotis’ study of the politics of immigration detention in Greece is a case at hand.105 Cheliotis brings to the fore the use by Greek state authorities of rhetorical defence mechanisms to neutralise criticism from international human rights organisations, such as evoking ‘philoxenia as an innate and constant national trait’.106 He concludes that ‘[t]o date, the Greek state has essentially rebutted or otherwise circumvented domestic and international pressures to effectuate substantive progress changes to its treatment of immigrants’.107 The contextual study of the right to legal assistance in this chapter very much resonates with these findings. Before we proceed any further with this line of argument, we must, however, stress that the analysis in this chapter should not collapse into the simplistic—­ stereotypical—view that the discordance between the ‘law in books’ and the ‘law in action’ identified in Greece is intrinsic in the national—or perhaps SouthernEuropean—legal culture. Greece is an idiosyncratic case in the sense of combining a particular liberal and progressive legal framework with a worrying lack of implementation in practice, and in dismissing international criticism in this respect. But otherwise it is not too dissimilar from many other European systems in the sense of failing to effectively implement custodial interrogation rights in practice. Reference can be made, for instance, to the ‘Inside Police Custody’ project, which has provided an empirical account of suspects’ rights in four EU jurisdictions; England and Wales,

103  As highlighted in the report of the Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, on the ‘Implementation of Judgments of the European Court of Human Rights’, Doc 13864, 9 Sept 2015, Draft resolution [5]. The Parliamentary Assembly concentrated in this report on the nine countries with the highest number of cases pending execution, where Greece ranks sixth with 558 cases (2014 statistics); Explanatory memorandum by Mr de Vries, rapporteur [11], citing Committee of Ministers Report on ‘Supervision of the execution of judgments of the European Court of Human Rights—Annual Report 2014’. Similarly, Greece ranks eighth in the list of the 11 states with the highest number of cases under ‘enhanced supervision’, ie cases that reveal structural problems, Explanatory memorandum by Mr de Vries, rapporteur [12]. One of the four key issues detected as problematic concerning Greece related to the use of lethal force and ill treatment by law enforcement officers and the lack of effective investigation of such abuses, Explanatory memorandum by Mr de Vries, rapporteur [13.6]. 104  Data for the period since the Court was established (1959 to 2015) reveal that Greece is the country with the seventh highest total number of judgments finding at least one violation of the Convention (787 judgments), which can be compared—indicatively—with the total number of judgments against France (708), Germany (182), Italy (1,781), the Netherlands (85), Portugal (232), Spain (86), Turkey (2,812) or the United Kingdom (305) (but differences in population and the year in which these countries ratified the ECHR must be taken into consideration). See Overview 1959–2015 ECHR, Mar 2016, www.echr.coe.int/ Documents/Overview_19592015_ENG.pdf (last accessed 25 September 2017). 105  See L Cheliotis, ‘Seeing Like a Small State: Globalisation and the Politics of Immigration Detention in the Margins of Europe’ in V Mitsilegas, P Aldridge and L Cheliotis (eds), Theoretical, Comparative and Transnational Perspectives (Oxford, Hart Publishing, 2015) 113. 106  ibid 131. 107 ibid.

Looking for the Salduz Jurisprudence in Greece 173 France, the Netherlands and Scotland. In disclosing common problems in these jurisdictions, the project sought to identify the kinds of factors that need to be taken into account in ensuring that procedural rights are effectively implemented and entrenched so that they become routinized and commonplace—an accepted part of everyday practice—especially for police officers and lawyers.108

A recent empirical study on procedural safeguards for young suspects in five ­countries has brought to light similar problems. In Belgium, for instance, it was found that young suspects were in some cases interviewed without a lawyer, even though it is now mandatory for a young suspect to be provided with legal advice.109 In the Netherlands, lawyers were now able to attend interviews, but were allowed no participatory role in them.110 In Poland, where the similarities with Greece are even stronger, the study found that young suspects must now be told that they can have a lawyer present in the interview, but, with no mechanism to arrange for one—due to the absence of legal aid and duty solicitor schemes—the police seldom mentioned this right to suspects.111 The police also required suspects to sign an interrogation form stating that they had been given their rights. In England and Wales, which has long been seen as leading the way in the effective delivery of custodial interrogation rights, we cannot fail to notice an increasingly widening gap between rhetoric and reality, mainly as a result of an ever growing trend of assigning custodial legal assistance to non-solicitor staff112 and restricting opportunities for face-to-face consultation with legal counsel,113 coupled with an ever-shrinking legal aid budget114 and the use of a full-blown system of adverse inferences impacting upon lawyers’ ability to adopt an adversarial approach to police interrogation.115 It is equally intriguing that—according to a major 2011 empirical study—overall approximately 45 per cent of suspects request advice, ‘less than might have been expected 25 years on’ from the introduction of key custodial interrogation rights with the Police and C ­ riminal Evidence Act 1984.116 Police ploys and informal conversations with ­suspects also

108  J Blackstock, E Cape, J Hodgson, A Ogorodova and T Spronken, Inside Police Custody (­Cambridge, Intersentia, 2014) 426. 109  M Vanderhallen, M van Oosterhout, M Panzavolta and D de Vocht, Interrogating Young S ­ uspects— Procedural Rights from an Empirical Perspective (Cambridge, Intersentia, 2016) 71. 110  ibid 229. 111  ibid 297. 112 See J Hodgson and L Bridges, ‘Improving Custodial Legal Advice’ (1995) Crim LR 101, 102; RP ­ attenden and L Skinns, ‘Choice, Privacy and Publicly Funded Legal Advice at Police Stations’ (2010) 73 MLR 349, 352. 113  See L Bridges and E Cape, CDS Direct: Flying in the Face of the Evidence (London, Centre for Crime and Justice Studies, King’s College, 2008); P Pleasence, V Kemp and N Balmer, ‘The Justice ­Lottery? Police Station Advice 25 Years on from PACE’ (2011) Crim LR 6. 114 See A Edwards, ‘Legal Aid, Sentencing and Punishment of Offenders Act 2012—the Financial Procedural and Practical Implications’ (2012) Crim LR 584. 115  See E Cape, ‘The Rise (and Fall?) of a Criminal Defence Profession’ (2004) Crim LR 401, 414; see also Quirk in this volume, ch 5. 116 I Dennis, ‘Editorial—Legal Advice in Police Stations: 25 Years On’ (2011) Crim LR 1, citing Pleasence et al (n 113).

174  Dimitrios Giannoulopoulos continue to affect the use of the right to legal assistance, as recently highlighted in another important empirical study.117 VII.  THE ROLE OF EFFECTIVE NATIONAL IMPLEMENTATION OF ECHR RIGHTS

It becomes apparent from the above that while Greece is seemingly aligned with ECHR jurisprudence on the right to legal assistance, it only pays lip service to it. The country has failed to show any reflexes to the ground-breaking Salduz case law despite fundamental flaws in the Greek criminal justice system’s delivery of suspects’ rights, and despite pressure from international human rights organisations and domestic scholarship to address the gap between the law in theory and the law in action. The only reform to emerge in the aftermath of Salduz was the recognition of a duty to notify suspects of their right to silence in the light of the transposition of the EU Directive on the right to information. It is, of course, quite oxymoronic that the rushed transposition of this Directive rather prejudiced the rights of the defence in the end, by limiting pre-existing rights in relation to access to the investigation file. All this pinpoints the important limitations of Strasbourg jurisprudence, and even Strasbourg-inspired EU legislation, in terms of the implementation of fair trial guarantees in EU Member States and ECHR contracting parties. More specifically, while ‘RLA in five countries’ has pointed to local resistance as a factor obstructing the reception of ECtHR jurisprudence, the example of Greece illustrates that paying lip service to, or simply avoiding to engage with, Strasbourg jurisprudence and related EU legislation can have the same effect; it can obstruct the effective implementation of ECtHR jurisprudence in practice. Paying lip service, and sweeping the difficult issue of the implementation of human rights guarantees under the carpet, may in fact be helping Greece to avoid the cost of putting up resistance to the ECtHR, in relation to aspects of its case law that it may not in reality be willing, or able, to effectively implement in practice. If adopting ECHR and EU law compliant legislation is seen as the key indicator of the effective reception of these external influences, then paying lip service may be satisfying a cost-benefit analysis which means the country can continue with ‘business as usual’ while appearing to subscribe to its international human rights obligations. The example of Greece offers interesting new lines of inquiry concerning the fundamental question of ‘taking (Convention) rights seriously’ and the struggle to transform rights from illusory to pragmatic. These questions matter, as the varied implementation of rights across Europe can lead to a situation where countries see themselves as ‘winners’ and ‘losers’ in relation to acting consistently with their international human rights obligations, and where there is an inherent risk that the inability of the relevant international human rights organisations to address gaps

117 L Skinns, ‘The Right to Legal Advice in the Police Station: Past, Present and Future’ (2011) Crim LR 19, 34; See also V Kemp and N Balmer, Criminal Defence Services: User’s Perspectives, Research Paper No 21 (London, Legal Services Research Centre, 2008).

Looking for the Salduz Jurisprudence in Greece 175 in implementation in practice will ultimately undermine the European system for the protection of individual rights. Put differently, the more we turn a blind eye to contracting parties that take a ‘casual’ view to their international human rights obligations, the more we create the temptation for other countries to follow suit, especially at a time when populist anti-European rhetoric and nationalist tendencies are on the rise. Ultimately, this analysis reinforces the need to place significant emphasis on contracting party-based explanations for the reception of ECtHR jurisprudence. Indigenous legal cultures, combined with a variety of local conditions shaping ­ national responses, can demonstrably subvert the exercise of Convention rights in practice, even where a contracting party has formally accommodated the relevant ECtHR jurisprudence. If we are to avoid ECHR rights being transformed into empty rhetoric, the ECtHR must therefore do more to comprehend local conditions on the ground. But, by the same token, this contextual study brings to light the intrinsic limitations of ECtHR jurisprudence in effecting change in national jurisdictions, in cases where there is a culture of subscribing to the ECHR in theory but paying lip ­service in practice, often due to longstanding structural problems that contracting parties have proven unable—or have lacked the political will—to tackle. Here the locus of explanation for the reception of ECHR jurisprudence needs to move further away from the Court and be placed even closer to the contracting parties; we should not in any case forget that there is only so much that the Court can do to accommodate local variations without undermining the harmonious application of its jurisprudence across contracting parties. Equally, it must be stressed that responsibility for the implementation of the ECHR ultimately—and primarily—rests with the contracting parties,118 alongside the ECtHR, the Committee of Ministers119 and the Parliamentary Assembly of the Council of Europe.120 The vital role of national parliaments, in particular, as ‘guarantors of human rights in Europe’,121 has gained considerable momentum in recent years. The Brussels Declaration of 2015, which enumerates specific steps that national parliaments should take to enforce the ­Convention,122 118  See Parliamentary Assembly of the Council of Europe, ‘National Parliaments: Guarantors of Human Rights in Europe’, Resolution 1823 (2011), 23 June 2011, para 1. The Parliamentary Assembly recalls in this Resolution that ‘Council of Europe member states are responsible for the effective implementation of international human rights norms they have signed up to, in particular those of the European Convention on Human Rights … This obligation concerns all state organs, whether executive, judicial or legislative’. 119  See Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, ‘Ensuring the Viability of the Strasbourg Court: Structural Deficiencies in States Parties’, Report, Doc13087, 7 Jan 2013; see also Parliamentary Assembly of the Council of Europe, ‘The Effectiveness of the European Convention on Human Rights: the Brighton Declaration and Beyond’, Recommendation 2070 (2015) [1]. This urges the Committee of Ministers ‘to accelerate the implementation of the judgments of the European Court of Human Rights’, and to ‘take firmer measures in cases of dilatory, continuous or repetitive non-compliance’, working ‘towards reinforcing synergies with the Parliamentary Assembly and civil society’. 120 See, eg, Brighton Declaration, High Level Conference on the Future of the European Court of Human Rights, Part F, Execution of judgments of the Court, paras 26, 28 and 29e. 121  See Resolution 1823 (n 118). 122  See the Brussels Declaration adopted on 27 Mar 2015 by the High-Level Conference on the ‘Implementation of the European Convention on Human Rights, our shared responsibility’, discussed in draft resolution, Doc 13864 (n 103) [8]. This placed emphasis on the responsibility of contracting parties to implement the Convention, particularly through the creation of effective domestic remedies, the provision

176  Dimitrios Giannoulopoulos is the most recent indication of a new emphasis on reinforcing mechanisms for the national implementation of ECtHR jurisprudence.123 This development seems to follow on from an increasing realisation within the Council of Europe that unless ‘national mechanisms, including oversight by national parliaments, to ensure the implementation of Court judgments’, are adopted, ‘the future of the Convention system—and even the Council of Europe itself—are in jeopardy’.124 VIII.  CONCLUDING OBSERVATIONS

Following the formal incorporation of the Salduz jurisprudence in most European legal systems that were previously resistant to giving suspects access to a lawyer, and in parallel with the ongoing process of the transposition of the EU Roadmap directives, national legal systems and European institutions are now required to seek the logistical gateways to make these rights work in practice. This contextual study of custodial legal assistance in Greece demonstrates quite clearly that the procedural rights transformations now taking place in Europe will be devoid of substance until and unless we begin to find ways to ensure that suspects are not prevented or ­discouraged from exercising these rights. The adoption of the EU Directive on the right to legal aid is an important step in this direction,125 as it requires EU Member States to provide legal aid to suspects and accused persons at the latest before questioning and even before relevant investigative and evidence-gathering acts begin.126 The recent adoption by the Parliamentary Assembly of the Council of Europe of a draft resolution on ‘securing access of detainees to lawyers’ is moving in the same direction. It signposts free legal aid, guaranteeing the presence of the lawyer during questioning and prohibiting the use of confessional evidence obtained in the absence of a lawyer as key reforms that can help transform theory into practice.127 But as this chapter fully demonstrates, international influences on reform often do not suffice in themselves to effect change in practice, due to the significant obstacles to fairness that are intrinsic to legal c­ ultures. This observation pinpoints the need for greater synergy between domestic and international actors if these obstacles are to be overcome. The challenge of human rights reform cannot be left to the international actors alone: the ECtHR, the ­Committee

of sufficient resources to national stakeholders responsible for implementing Court judgments, ensuring a prompt response to judgments raising structural problems, raising awareness about Convention standards and holding parliamentary debates on the implementation of Court judgments. 123 See generally A Donald, ‘The Implementation of European Court of Human Rights Judgments Against the UK: Unravelling the Paradox’ in K Ziegler, E Wicks and L Hodson (eds), The UK and ­European Human Rights: A Strained Relationship (Oxford, Hart Publishing, 2015) 135. 124  Parliamentary Assembly of the Council of Europe (Committee on Legal Affairs and Human Rights), Report on the ‘Implementation of Judgments of the European Court of Human Rights’, Doc 12455, 20 Dec 2010. 125  Directive (EU) 2016/1919 (n 75). 126  Directive (EU) 2016/1919 (n 75) Art 4.5. 127 Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Report, ‘Securing access of detainees to lawyers’, para 6 last accessed 25 September 2017.

Looking for the Salduz Jurisprudence in Greece 177 of Ministers and Parliamentary Assembly of the Council of Europe and relevant EU institutions for that matter. The role of effective national implementation is paramount. Turning our attention back, then, in conclusion, to the example of Greece, it is perhaps encouraging that the Committee for the reform of the Code of Penal Procedure now appears to embrace the idea of the compulsory presence of a lawyer during the questioning of the suspect, and the provision of free legal aid at this critical phase of the criminal process.128 The viability of this measure is, of course, open to question, especially at a time when Greece finds itself between the Scylla of the economic crisis—which means an increasing number of people cannot afford to pay for their own lawyer—and the Charybdis of the refugee crisis, which creates a considerable strain on resources, including police station facilities which continue to be used to detain irregular migrants and asylum seekers.129 Still, a realisation that ‘all is not well’ with the right to access to a lawyer in Greece may prove an important first step in ensuring that custodial interrogation rights no longer remain an empty promise.

128 

See Dimakopoulos (n 65). eg, CPT Report 2016 (n 55) 12, which recognised ‘the significant challenges faced by Greece’ as a result of the refugee and economic crisis, in a report that addressed the detention of suspects, including foreign nationals held under aliens legislation. 129  See,

178 

9 Fairness and Expediency in International Criminal Procedure KAI AMBOS*

I

HAVE ARGUED elsewhere that international criminal procedure must be guided by the two principles of fairness and expediency.1 The relevant fair trial framework, as derived from human rights instruments,2 can be summarised—with the respective references to the relevant provisions of the International Criminal Court (ICC), International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Court for Sierra ­ Leone (SCSL) and Residual Special Court for Sierra Leone (RSCSL) Statutes3—as follows: —— Presumption of innocence;4

*  The text is based on the recently published volume III of my ICL Treatise on International Criminal Procedure, see (n 1) for a full reference. I thank Dr Alexander Heinze, LLM (TCD), Göttingen, and the editors of the volume for valuable comments. The views expressed in this chapter are those of the author and do not necessarily reflect the views of the Kosovo Specialist Chambers. 1  K Ambos, Treatise on International Criminal Law. Volume III: International Criminal Procedure (Oxford, Oxford University Press, 2016) 661. 2  cf International Covenant on Civil and Political Rights (ICCPR) Art 14; European Convention on Human Rights (ECHR) Art 6 and AddProt; EU Charter Arts 47 and 48; American Convention on Human Rights (ACHR) Art 8; and African Commission on Human and Peoples‘ Rights (ACHPR) Art 7(1); the latter lacking an efficient enforcement mechanism. While there are several commentaries on the ICCPR and the European instruments there is only one comprehensive commentary on the ACHR, cf C Steiner and P Uribe, CIDH Comentario (Bogotá, Konrad-Adenauer-Stiftung—Programa Estado de Derecho para América Latina, 2014). 3  I include here the tribunals I consider most important. For a full list see Ambos (n 1) 24 ff. At any rate, others, like the Special Tribunal for Lebanon, do not provide for different rules. 4 ICC Statute Art 66(1); ICTY Statute Art 21(3); ICTR Statute Art 20(3); SCSLS/RSCSL Statute Art 17(3); As to the human rights basis cf ICCPR Art 14(2); ECHR Art 6(2); EU Charter Art 48(1); ACHR Art 8(2) cl 1; ACHPR Art 7(1)(b); on ICC Statute Art 66(1) see WA Schabas and Y McDermott, ‘Article 66’ in O Triffterer and K Ambos (eds), Rome Statute of the International Criminal Court ̶ A C ­ ommentary, 3rd edn (München, Oxford, Baden-Baden, CHBeck, Hart, Nomos, 2016) 1635; WA Schabas, The International Criminal Court—A Commentary of the Rome Statute, 2nd edn (Oxford, Oxford University Press, 2016) 1002 ff; B Elberling, ‘Article 66—Applicable Law, The Rome Statute’ in M Klamberg (ed), The Commentary on the Law of the International Criminal Court N 540, last accessed 26 September 2017; see generally

180  Kai Ambos —— Prosecutorial onus to prove the guilt of the accused5 and judicial conviction of the accused’s guilt beyond reasonable doubt;6 —— Fair and public hearing in full equality;7 —— To be informed promptly and in detail of the nature, cause and content of the charges in a language which the accused fully understands and speaks;8

KAA Khan and DS Alagendra, ‘An Unbreakable Thread: The Presumption of Innocence in International Law’ in CC Jalloh and D Marong, Promoting Accountability under International Law for Gross Violations in Africa (Leiden, Brill/Nijhoff, 2015) 158 ff; PR Ferguson, ‘The Presumption of Innocence and its Role in the Criminal Process’ (2016) 27 Criminal Law Forum 131 ff. For a recent comparison of the American and European approach to the presumption of innocence, see JQ Whitman, ‘Presumption of ­Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice’ (2016) 94 Texas Law Review 933 ff, opining that common law countries such as the US opt for a ‘presumption of innocence’, while civil law countries in continental Europe are oriented towards a ‘presumption of mercy’, protecting the guilty rather than the innocent, at 934. Whitman makes the (for a common lawyer surprising) claim that ‘[t]he continental mode of justice, oriented more toward the presumption of mercy, certainly has its dangers and shortcomings, but on balance it is better suited to creating a just criminal justice order for the modern world’, at 935. 5 

ICC Statute Art 66(2). Statute Art 66(3); ICTY/ICTR/SCSL Rules of Procedure and Evidence (RPE), 8 July 2015, 87(A); Schabas and McDermott (n 4); Schabas (n 4) 1009 ff; on the proximity to the civil law standard of ‘conviction intime’ see A Zahar and G Sluiter, International Criminal Law: A Critical Introduction (Oxford, Oxford University Press, 2008) 391; for a critical view, however, see S De Smet, ‘Structural Analysis of the Role of the Pre-Trial Chamber in the Fact-Finding Process of the ICC’ in C Stahn and G Sluiter, The Emerging Practice of the International Criminal Court (Leiden, Brill/Nijhoff, 2009) 405, 421 and 430 f, who applies the ‘beyond reasonable doubt’ standard of proof only for the establishment of the defendant’s guilt or innocence, but not for the establishment (or not) of the material elements of the crime. See also D Jacobs, ‘Standard of Proof and Burden of Proof’ in G Sluiter, H Friman, S Linton, S Zappalà and S Vasiliev (eds), International Criminal Procedure—Rules and Principles (Oxford, Oxford University Press, 2013) 1145, 1149 in favour of the ‘intimate, personal’ conviction intime, rather than the ‘rational’ beyond reasonable doubt standard, as the former ‘corresponds more to the reality of international decision-making’. For more detail see Ambos (n 1) 462–64. For commentary on the applicable burden and standard of proof for defence challenges to jurisdiction as a novel legal issue, see M Vagias and J Ferencz, ‘Burden and Standard of Proof in Defence Challenges to Jurisdiction of the International Criminal Court’ (2015) 28 Leiden Journal of International Law 133, 135 ff. 7 ICC Statute Art 67(1); ICTY Statute Art 21(2); ICTR Statute Art 20(2); SCSL/RSCSL Statute Art 17(2); as to the human rights basis cf ICCPR Art 14(1) cl 2; ECHR Art 6(1); and EU Charter Art 47. According to Prosecutor v Šešelj, AC Public Redacted Version of Judgement, IT-03-67-R77.2-A, 19 May 2010 [32], ‘the established practice of the Tribunal to publish redacted public versions of documents’ or even judgments does not violate the right to a fair and public hearing. See also Schabas and McDermott (n 4) 1650; Schabas (n 4) 1022 ff. 8  ICC Statute Arts 55(1)(c) and 67(1)(a); ICTY Statute Art 21(4)(a); ICTR Statute Art 20 (4)(a); SCSL/RSCSL Statute Article 17(4)(a); as to the human rights basis cf ICCPR Art 14(3)(a); ECHR Art 6(3)(a); and ACHR Art 8(2)(b); cf also Office of the Prosecutor (OTP) Regulation 41 and Prosecutor v Muhimana, AC Judgment, ICTR-95-1B-A, 21 May 2007, AC Partly Dissenting Opinion [1] ff; for a comprehensive analysis see W Jordash and J Coughlan, ‘The Right to be Informed’ in S Darcy and J Powderly (eds), Judicial Creativity at the International Criminal Tribunals (Oxford, Oxford University Press, 2010) 286 ff; K de Meester, K Pitcher, R Rastan and G Sluiter, ‘Investigation’ in Sluiter et al (n 6) 228; B Elberling and P Acevedo, ‘Article 67—Applicable Law, The Rome Statute’ in M Klamberg (ed), The Commentary on the Law of the International Criminal Court N 545, last accessed 26 September 2017; Schabas and McDermott (n 4); Schabas (n 4) 1028 ff; ICC, Chambers Practice Manual, February 2016, last accessed 26 September 2017, 7; meaning ‘to be further refined in practice’. 6 ICC

Fairness and Expediency 181 —— Adequate time and facilities for the preparation of the defence and communication with counsel of the accused’s choosing,9 including, in principle, a right to self-representation;10 —— To be tried without undue delay,11 especially in the context of pre-trial detention;12 —— To be present, in principle, at the trial,13 and, when necessary, assigned legal assistance;14 —— To present evidence, especially to obtain the attendance and examination of exculpatory witnesses and to adequately examine the incriminating witnesses;15 disclosure of exculpatory or mitigating evidence by the Prosecution (Article 67(2) ICCS, Rule 68 of Rules of Procedure and Evidence (RPE) ICTY/ICTR/SCSL);16 —— Assistance of a competent interpreter;17

9 ICC Statute Art 55(2)(c), 67(1)(b) and (d); ICTY Statute Arts 18(3) and 21(4)(b); ICTR Statute Arts17(3) and 20(4)(b); SCSLS/RSCSL Statute Art 17(4)(b); as to the human rights basis cf ICCPR Arts 14(3)(b); ECHR Art 6(3)(b) and (c); ACHR 8(2)(c) and (d); and ACHPR Art 7(1)(c); see also ICTY/ ICTR/SCSL RPE 42(A)(i); Rule 42 is based on ICCPR Art 14(3) and ECHR Art 6(3); cf Prosecutor v Delalić et al, TC Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, IT-96-21-T, 2 Sept 1997 [60]; see also Schabas and McDermott (n 4); Schabas (n 4) 1032 ff; on defence counsel in international criminal law, see in more detail Ambos (n 1) 41 ff and the special issue on ‘Lawyering in The Hague’ (2016) 16 International Criminal Law Review 935 ff; and especially MG Karnavas, ‘Defence Counsel Ethics, the ICC Code of Conduct and Establishing a Bar Association for ICC List Counsel’ (2016) 16 International Criminal Law Review 1048. 10  ICC Statute Art 67(1)(d); ICTY Statute Art 21(4)(d); ICTR Statute Art 20(4)(d); SCSLS/ RSCSL Statute Art 17(4)(d); see also Schabas (n 4) 1037 ff; as to the human rights basis cf ICCPR Arts 14(3)(d); ECHR Art 6(3)(c); ACHR Art 8(2)(d); and ACHPR Art 7(1)(c). This issue is, of course, controversial, see Ambos (n 1) 165–67. 11  ICC Statute Art 67(1)(c); ICTY Statute Art 21(4)(c); ICTR Statute Art 20(4)(c); SCSL/ RSCSL Statute Art 17(4)(c); as to the human rights basis cf ICCPR Art 14 (3)(c); ECHR Art 6(1); EU Charter 47(2); ACHR Art 8(1); and ACHPR Art 7(1)(d); cf also Tochilovsky, The Law and Jurisprudence of the International Criminal Court and Tribunals, 2nd edn (Cambridge, Intersentia, 2014) 503 ff; Schabas and McDermott (n 4); Schabas (n 4) 103 ff; for criticism of the length of the proceedings before the ICC cf eg Y McDermott, ‘Right to a Fair and Expeditious Trial’ in Sluiter et al (n 6) 796–98 (Lubanga and Katanga trials); for a nuanced view see A Whiting, ‘In International Criminal Law, Justice Delayed Can be Justice Delivered’ (2009) 50 Harvard International Law Journal 323 ff. 12  As to the human rights basis cf ICCPR Art 9(3): ‘trial within a reasonable time or to release’; ECHR Art 5(3); and ACHR Art 7(5); on arrest and pre-trial detention in more detail see Ambos (n 1) 399 ff. 13  See also ICCPR Art 14(3)(d); on the presence requirement and the recent change of the ICC RPE (new Rules 134bis, ter and quater) by the Assembly of States Parties at its 12th session (Nov 2013) in light of the Kenya proceedings, see Ambos (n 1) 162–65; see also Schabas and McDermott (n 4); Schabas (n 4) 1035 ff. 14  ICC Statute Arts 55(2)(c), (d) and 67(1)(d); ICTY Statute Arts 18(3) and 21(4)(d); ICTR Statute Arts 17(3) and 20(4)(d); SCSL/RSCSL Statute Art 17(4)(d); See also ICCPR Art 14 (3)(d); ECHR Art 6(3)(c); and ACHR Art 8(2)(e); cf also S Zappalà, Human Rights in International Criminal Proceedings (Oxford, Oxford University Press, 2005) 59 ff; Schabas and McDermott (n 4); Schabas (n 4) 1037 ff. 15 ICC Statute Art 67(1)(e); ICTY Statute Art 21(4)(e); ICTR Statute Art 20(4)(e); SCSL/ RSCSL ­Statute Art 17(4)(e); see also Schabas (n 4) 1040 ff. 16  See in more detail Ambos (n 1) 520 ff. On the corresponding disclosure rule at the Special Tribunal for the Lebanon (STL) (Rule 113 RPE) see A Heinze, ‘Disclosure, not related to El Sayed’ in A Klip and S Freeland, Annotated Leading Cases of International Criminal Tribunals, Volume XLIX: The Special Tribunal for Lebanon 2009-2013 (Cambridge, Intersentia, 2017) 675 f. 17  ICC Statute Arts 55(1)(c) and 67(1)(f); ICTY Statute Arts 18(3) and 21(4)(f); ICTR Statute Arts 17(3) and 20(4)(f); SCSL/RSCSL Statute Art 17(4)(f); as to the human rights basis cf ICCPR Art 14 (3)(f); ECHR Art 6(3)(e); and ACHR 8(2)(a). Pursuant to ICC Statute Art 67 (1)(f) ‘the proceedings of or

182  Kai Ambos —— Comprehensive right to silence and non-self-incrimination, without such silence being interpreted to the detriment of the accused;18 —— Prohibition of a reversal of the burden of proof or any onus of rebuttal;19 —— Right to review of conviction and sentence by a higher tribunal (implicitly ­recognised by the existence of appeals procedures in the Statutes);20 —— Right not to be tried or punished twice for the same offence (double jeopardy rule, ne bis in idem).21 Fairness and expediency do not contradict, but complement each other for it is also in the interest of the suspect or accused that his or her legal situation is clarified as expediently as possible as long as this does not entail an inacceptable curtailment of his or her fair trial rights.22 Indeed, on the one hand, fairness does not only encompass, at its core, the principle of equality of arms but also the temporal element of a speedy procedure or trial in several rights23 (which entails that expediency must not go at the cost of fairness).24 On the other hand, efficiency or expediency relates to

­ ocuments presented to the Court’ shall be ‘in a language which the accused fully understands and d speaks’; see also ICTY/ICTR/SCSL RPE 42 (A)(ii); Schabas (n 4) 1043 f; KC Doughty, ‘Language and International Criminal Justice in Africa: Interpretation at the ICTR’ (2017) 11 International Journal of Transitional Justice 239 ff; L Swigart, ‘Linguistic and Cultural Diversity in International Criminal Justice: Toward Bridging the Divide’ (2017) 48 University of the Pacific Law Review 197 ff. However, the ICTY case law dissents explicitly from this standard, where it suffices that one ‘[understands the language] sufficiently in order to allow for the effective exercise of his right to conduct his defence’, see Prosecutor v Karadžić, AC Decision on Interlocutory Appeal of the Trial Chamber’s Decision on Prosecution Motion Seeking Determination that the Accused Understands English, IT-95-5/18-AR73.3, 4 June 2009 [11]. That is consistent with ICCPR Art 14 (3), ECHR Art 6(3) and ACHR Art 8(2); cf also I Rivas, ‘Articulo 8’ in Steiner and Uribe (n 2) 207 ff; Zappalà (n 14) 55 ff. 18  ICC Statute Arts 55(1)(a), (2)(b) and 67(1)(g); ICTY Statute Art 21(4)(g); ICTR Statute Art 20(4) (g); SCSL/RSCSL Statute Art 17(4)(g); as to the human rights basis cf ICCPR Art 14(3)(g) and ACHR Art 8(2)(g); FMW Billing, The Right to Silence in Transnational Criminal Proceedings (Berlin, Heidelberg, Springer, 2016) 43 ff; see also ICTY/ICTR/SCSL RPE 42 (A)(iii) and 63 (B); cf Schabas (n 4) 1044 ff; CJM Safferling and A Hartwig, ‘Recht zu schweigen und seine Konsequenzen Entwicklungen in nationalen und internationalen Strafverfahren’ (2009) 13 Zeitschrift für Internationale Strafrechtsdogmatik 784, 788 ff; K de Meester, K Pitcher, R Rastan and G Sluiter, ‘Investigation, Coercive Measures, Arrest, and Surrender’ in Sluiter et al (n 6) 224 ff, 243 and 245–47; G Boas, JL Bischoff, NL Reid and BD Taylor III, International Criminal Procedure (Cambridge, Cambridge University Press, 2011) 109 f; C Safferling and A Hartwig, International Criminal Procedure (Oxford, Oxford University Press, 2012) 289–91; Zappalà (n 14) 55, 77 ff; for a detailed comparative analysis, see M Damaška, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure’ (1973) 121 University of Pennsylvania Law Review 506, 521 ff; Billing (n 18) 97 ff. 19  ICC Statute Art 67(1)(i); cf Zahar and Sluiter (n 6) 360; Schabas (n 4) 1048 f. 20  As to the human rights basis cf ICCPR Art 14(5); ECHR AP VII Art 2(1); and ACHR Art 8 (2)(h); for a more detailed analysis see Ambos (n 1) 548 ff. 21  ICC Statute Art 20; see also Schabas (n 4) 502 ff; as to the human rights basis cf ICCPR Art 14(7); ECHR AP VII Art 4(1); EU Charter Art 50; and ACHR Art 8(4). 22  See along these lines also ICC, Second Court’s report on the development of performance indicators for the ICC, 11 Nov 2016, 7 ff, where expediency and fairness are formulated as the first goal of ICC proceedings. 23  See, eg, the above mentioned rights of a prompt information about nature and cause of the charge and to a trial without undue delay. For more detail cf Ambos (n 1) 73 ff and 90 f. 24  On the (alleged) negative effect of the ad hoc tribunals’ completion strategy on fair trial rights in this context, see Prosecutor v Milosevic, Dissenting Opinion of Judge David Hunt on Admissibility of Evidence-in-Chief in the Form of a Written Statement, IT-02-54-AR73.4, 21 Oct 2003 [20] ff, ‘consequential destruction of the rights of the accused’, ‘desire to assist the prosecution to bring the Completion

Fairness and Expediency 183 speedy and well managed investigations, prosecutions and trials and thus speaks to the need for pre-trial and trial management.25 In fact, the ICC’s procedural framework is flexible enough to allow for such management practices26 and efficiency has been at the core of reform efforts within and outside of the ICC.27 It is clear from these efforts that the necessary reforms can be more easily and quickly achieved by changes in practice (via practice manuals like the Chambers Practice Manual) than by—usually more cumbersome—normative reforms (via amendments of the RPE or even the Statute).28 The ensuing management needs do not only concern the Judges but also the Prosecutor who bears the main responsibility for the conduct of the— two-tiered29—investigation stage.30 Given the Prosecutor’s broad discretion at this

Strategy to a speedy conclusion’, ‘improper to take Completion Strategy into account … at the expense of those rights …’; ‘… Completion Strategy has been given priority over the rights of the accused …’; see also Prosecutor v Nyiramasuhuko, Decision in the Matter of Proceedings Under Rule 15bis (D), ICTR-9721-T, 24 Sept 2003, Dissenting Opinion of Judge David Hunt [17]: the completion strategy in Resolution 1503 should not be interpreted as an encouragement by the Security Council to the ad hoc tribunals to ‘conduct its trials so that they would be other than fair trials’; on this dissent cf F Donlon, ‘The Judicial Role in the Definition and Implementation of the Completion Strategies of the International Criminal Tribunals’ in Darcy and Powderly (n 8) 360; about the negative impact of completion strategies on the OTP see KJ Heller, ‘Completion’ in L Reydams et al (eds), International Prosecutors (Oxford, Oxford University Press, 2012) 900 ff, who generally opines that completion strategies have often ‘(1) promoted impunity, (2) undermined OTP independence, (3) damaged the OTP’s legitimacy, and (4) complicated post-closure projects’. 25 

Ambos (n 1) 352 ff and 493. Chambers Practice Manual (n 8) attempts to codify some of these management possibilities, see eg the considerations on temporal issues regarding ‘timing of the first appearance’ and the ‘date of the confirmation hearing’, at 7 and regarding ‘time limit for responses’ under Reg 24 Regulations Court, at 9 and on the conduct of the confirmation hearing, at 15 f. See also A Heinze, International Criminal Procedure, An Attempt to Better Understand and Regulate Disclosure and Communication at the ICC on the Basis of a Comprehensive and Comparative Theory of Criminal Procedure (Berlin, Dunker & Humblot, 2014) 248 ff and 489 ff; H Kuczynska, The Accusation Model before the International Criminal Court— Study of Convergence of Criminal Justice Systems (Cham, Springer, 2015) 355, ‘effective managerial judging system that led to adopting of a hybrid model between the adversarial and inquisitorial systems’. 27 See, on the one hand, ICC, Chambers Practice Manual (n 8); the various Reports of the Study Group on Governance (2011–2015), especially the most recent Report of the Working Group on Lessons Learnt in ICC-ASP, Report of the Bureau on the Study Group on Governance (2015), Annex II, 29 ff; and last but not least, ICC, performance indicators (n 22) 12 f, formulating as an autonomous second goal ‘[T]he ICC’s leadership and management are effective’; for a comprehensive overview of this Court-led initiative since its inception, see P Ambach, ‘A Look towards the Future—The ICC and “Lessons Learnt”’ in C Stahn (ed), The Law and Practice of the ICC (Oxford, Oxford University Press, 2015) 1277, 1284 ff, and ‘The “Lessons Learnt” Process at the ICC—a Suitable Vehicle for Procedural Agreements?’ (2016) 11 Zeitschrift für internationale Strafrechtsdogmatik (ZIS) 854, 857 ff. On the other hand, see G Mettraux, SA Fisher, D Groome, A Whiting, G McIntyre, J De Hemptinne and G Sluiter, Expert Initiative on Promoting Effectiveness at the International Criminal Court (December 2014), last accessed 26 September 2017; and the summary by J Lindenmann, ‘Stärkung der Effizienz der Verfahren vor dem Internationalen Strafgerichtshof’ (2015) 10 Zeitschrift für Internationale Strafrechtsdogmatik 529 f. 28  cf Lindenmann (n 27) 529, calling for ‘changes of practice’, and only subsidiary for normative changes; see also ICC-ASP Report (n 27) 3 [14]; and Ambach, ZIS (n 27) 862, referring to ‘practice adjustments short of the “article 51 threshold”’, that is ‘internally’ without an amendment of the ICCRPE and 864 ff, on the amendments of the RPE via Art 51(2)(a) and (3), especially highlighting the smoother avenue for the judges pursuant to Art 51(3). 29  On the stages of ‘preliminary examination’ and ‘formal investigation’, see Ambos (n 1) 335 ff. 30  For a critical discussion of the management structures of the OTP, see Mettraux et al (n 27) 51 [4] ff and recommending, inter alia, a streamlining of the prosecutorial investigations, 65 f [55]. 26 ICC,

184  Kai Ambos procedural stage, especially during the preliminary examination, with virtually no judicial supervision31 and great freedom to select situations and cases,32 a coherent and transparent prosecution strategy with the respective policies is, as a counterbalance, required.33 A procedural model informed by the guiding principles of fairness and expediency is fully in line with the historical experience and the goals of international ­criminal justice.34 From a historical perspective international criminal justice is informed by the Nuremberg and Tokyo precedents.35 The Nuremberg International Military ­Tribunal (IMT), albeit not a perfect role model for subsequent international criminal tribunals, had the biggest impact on the development of international criminal procedure.36 The main trials before the IMT and the International Military Tribunal for the Far East (IMTFE) have generally been considered as fair notwithstanding the obvious deficiencies of both tribunals.37 When the ICTY and ICTR were established, lessons learned from both the IMT and IMTFE played an important role, including as precursors of the problems and difficulties of modern international criminal procedure. In turn, both legacies and shortcomings of the first ad hoc tribunals informed the administration of later tribunals such as the SCSL, the Extraordinary ­Chambers in the Courts of Cambodia (ECCC), the East Timor Serious Crimes ­Panels, the ­Special Tribunal for Lebanon (STL) and the Kosovo Specialist ­Chambers (KSC).38 The establishment of the first permanent International Criminal Court would not have been possible without these previous experiences and, indeed, these ­experiences, especially the law and practice of the ICTY and the ICTR, have

31  cf Ambos (n 1) 381 ff; from a policy perspective against judicial oversight during investigation, see Mettraux et al (n 27) 8 [8] and 11 [36]. 32  cf Ambos (n 1) 376 ff; see also K Ambos, ‘The International Criminal Justice System and Prosecutorial Selection Policy’ in B Ackerman, K Ambos and H Sikirić (eds), Visions of Justice. Liber Amicorum Mirjan Damaška (Berlin, Duncker & Humblot, 2016) 33 ff; with a special focus on fairness, see also L May and S Fyfe, International Criminal Tribunals (Oxford, Oxford University Press, 2017) 177 ff. 33 See now—long expected—ICC-OTP, Policy Paper on Case Selection and Prioritisation, 15 Sept 2016, establishing general principles, repeating the legal criteria and—most importantly—proposing case selection (gravity of the crime, degree of responsibility of the accused and representativity of charges and prioritisation criteria) [34] ff and [50] f. 34  In a similar vein, see S Vasiliev, ‘Structure of Contested Trial’ in Sluiter et al (n 6) 543 and 642: ‘The experience of improvising and reforming procedures in international and hybrid criminal courts accumulated in the past decades, may attest that neither a predominantly “adversarial” nor “inquisitorial” style of conducting a trial is per se incompatible with the fundamental objectives of the enterprise of international prosecutions. By and large, the teleological parameter cast no ready preference for one or the other set of fact-finding arrangements. Both the trial format in which the evidence is presented alternately by each party before an unengaged and impartial fact-finder and that in which the bench actively steers and takes part in the evidentiary process … can effectively promote the broader institutional goals of international criminal justice. …’. See also Mégret, ‘The Anxieties of International Criminal Justice’ (2016) 29 Leiden Journal of International Law 197, 209: ‘International criminal justice was not created, fundamentally, to give a few accused a fair trial for the sake of it. Rather, it was created primarily to bring the guilty to justice, a goal that is rich with many other potentialities. In that context fair trials are merely a means, albeit conceivably a cardinal and central one’. 35  For a detailed analysis cf Ambos (n 1) 8 ff. 36  cf Zappalà (n 14) 244 with n 1; B McGonigle Leyh, ‘Nuremberg’s Legacy within Transitional ­Justice: Prosecutions Are Here to Stay’ (2016) 15 Washington University Global Studies Law Review 559, 560 ff. 37  Ambos (n 1) 19 ff. 38  S Katzenstein, ‘Hybrid Tribunals—Searching for Justice in East Timor’ (2003) 16 Harvard Human Rights Journal 245 ff; for further references see Ambos (n 1) 30 ff.

Fairness and Expediency 185 greatly influenced the procedural regime of the ICC, not least in terms of fair trial rights. In addition, recent tribunals have, to a certain extent, addressed some of the limitations of their predecessors.39 They do not only, as shown above, incorporate the right to fair trial with the ensuing concrete rights in a comprehensive manner but also ‘place at centre-stage the whole concept of international human rights protection and humanitarian law enforcement in their proceedings.’40 Of course, comparing the procedural rules of these tribunals, it becomes clear that a cut-and-paste mentality has largely dominated the drafting of their rules,41 with the KSC somewhat deviating from the previous practice.42 At any rate, the cut-and-paste mentality runs like a common thread through the history of international criminal procedure up to the creation of the ICC. Whether it served for the good of the course of international criminal justice remains an open question which can only be answered on a case by case basis. As to the goals of international criminal justice—defining goal as ‘[t]he object to which effort or ambition is directed’43—one should distinguish between the traditional goals derived from national criminal justice (retribution and prevention)44 and special goals amounting to basically three: creation of a historical record of adjudicated events, restoration of (international) peace and security, as well as satisfaction of victims.45 Of course, history and recent experience with the ICC teaches us

39 M Chiam, ‘Different Models of Tribunals’ in DA Blumenthal and TLH McCormack, Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance (Leiden, Nijhoff, 2008) 205. 40  PM Hassan-Morlai, ‘Evidence in International Criminal Tribunals: Lessons and Contributions from the Special Court of Sierra Leone’ (2009) 3 African Journal of Legal Studies 97. 41  cf D Terris, CPR Romano and L Swigart, The International Judge: An Introduction to the Men and Women who Decide the World’s Cases (Waltham MA, Brandeis University Press, 2007) 110 in relation to international justice. 42  The KSC’s Rules have been drafted with a profound involvement of their 19 Judges, who, after having made detailed written comments and submissions, met in The Hague in mid-March 2017 for their first plenary to discuss and adopt the Rules, cf last accessed 26 September 2017. Once the Rules were drafted, they have been referred twice to the Specialist Chamber of the Constitutional Court, which determined that they complied with the Kosovo Constitution and international human rights on 28 June 2017, Specialist Chamber of the Constitutional Court, Judgment on the Referral of Revised Rules of the Rules of Procedure and Evidence Adopted by Plenary on 29 May 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law no 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, KSC-CC-PR-2017-03, 28 June 2017; for a first analysis see A Heinze, The Kosovo Chamber’s Rules of Procedure and Evidence, EJIL: Talk! 17 Aug 2017, last accessed 29 October 2017. 43  JA Simpson and ESC Weiner, Oxford English Dictionary, 6th edn (Oxford, Oxford University Press, 1989) 632, see also at 644: ‘objective’ means ‘something aimed at, an object or end’ and at 276: ‘aim’ is ‘a thing desired to be effected’ or ‘an objective’, ie all three terms can be used interchangeably. In contrast see at 387: ‘ambition’ is ‘[t]he object of strong desire or aspiration’, rather describing the attitude of one’s own desire to achieve something; cf J Galbraith, ‘The Pace of International Criminal Justice’ (2009–2010) 31 Michigan Journal of International Law 84 ff, who, however, uses the terms ‘ambitions’, ‘goals’, and ‘objectives’ interchangeably: A ‘function’ is ‘the action of performing’, an ‘activity’, ‘the mode of action by which it fulfills its purpose’; Simpson and Weiner (n 43) 262 or ‘the manner in which a particular activity is directed toward its particular goal or objective’; in the same vein, see JD Ohlin, ‘Goals of ­International Criminal Justice and International Criminal Procedure’ in Sluiter et al (n 6) 55. 44  See K Ambos, Treatise on International Criminal Law. Volume I: Foundations and General Part (Oxford, Oxford University Press, 2013) 67 ff, using the label of ‘purposes of punishment; see also Ambos (n 1) 46 ff; A Riccardi, Sentencing at the International Criminal Court (The Hague, Eleven ­Publishing, 2016) 78 ff. 45  cf Ambos (n 1) 48 ff.

186  Kai Ambos that we should not over-emphasise these special goals and be aware of the tensions between them, for example, the most obvious one between peace and victims’ interests with a view to criminal justice46 as well as the limited truth-creating capacity of criminal tribunals, producing at best a sort of procedural truth determined by the subject matter of the concrete proceedings and entailing historical truth only as a by-product.47 Against this background we should not create unrealistic aspirations but rather modestly try to achieve the ‘socio-pedagogical’ mission of international criminal justice, that is, the goal ‘of strengthening the public sense of accountability for human rights violations’,48 in traditional criminal law terms captured by the idea of positive general prevention.49 The fulfilment of this goal, as of any other goal of international criminal justice, is predicated on fairness and expediency in international criminal proceedings. Again, the interdependence of these two principles becomes clear: people will only trust the results produced by criminal justice systems if they are a product of fair proceedings; at the same time these proceedings must not suffer from excessive delays, ie they must be expedient. A change of system, eg, from an adversarial50 to a mixed system, cannot be justified by mere recourse to the goals of international criminal justice51 but again needs to be compatible with the principles of fairness and expediency. There is no ‘­superiority’ of either system or model as such.52 In fact, the two major models in criminal procedure—the inquisitorial and adversarial model53—can, perhaps with some reforms, be merged and made compatible with fairness and expediency requirements. Both systems, taking into account their peculiarities and local differences, have advantages and disadvantages. One can test this thesis by looking at some more concrete examples, mainly from the law and practice of evidence, viewing the adversarial–inquisitorial dichotomy rather as a model of proof than as a historical or ideal model. 46 

cf Ambos (n 1) 54. cf Ambos (n 1) 55 f and 442 leaving production of historical truth to interdisciplinary truth commission. 48  M Damaška, ‘What is the Point of International Criminal Justice’ (2008) 83 Chicago-Kent Law Review 340, 346 ff; on Damaška’s important contribution in that regard cf Ambos, ‘International ­Criminal Justice System’ (n 32) 23 f and 33 ff. 49  cf Ambos, Treatise I (n 44) 67 f. 50  See Ambos (n 1) 4 ff and K Ambos and A Heinze, ‘Abbreviated Procedures in Comparative C ­ riminal Procedure: A Structural Approach with a View to International Criminal Procedure’ in M Bergsmo, Abbreviated Criminal Procedures (Brussels, Torkel Opsahl, 2017) 28 ff. on the different meanings of the term. 51  See also Vasiliev (n 34) 646: considering it ‘misleading … to rely on any conceptual inadequacies of adversarial procedure with regard to the goals of international criminal justice in advocating a departure from it’ and advocating more ‘experimentation and empirical research and analysis, ideally resulting in ‘hard data’ … before even tentative conclusions can be reached on the best procedure to meet the goals of international criminal justice.’ 52  See also Vasiliev (n 34) 648: ‘… there is no reliable and convincing empirical—as opposed to merely intuitive and speculative—basis on which to claim the “superiority” of either the inquisitorial or the adversarial model in terms of efficiency and expediency’. 53  cf Heinze (n 26) 117 ff; see also M Fedorova, The Principle of Equality of Arms in International­ Criminal Proceedings (Cambridge, Intersentia, 2012) 92; E Billis, Die Rolle des Richters im a­ dversatorischen und im inquisitorischen Beiveisverfahren (Berlin, Dunker & Humblott, 2015) 62 ff; K de Meester, The Investigation Phase in International Criminal Procedure (Cambridge, Intersentia, 2015) 82; see Ambos (n 1) 7 ff on other models of criminal procedure. 47 

Fairness and Expediency 187 (i) First of all, arguably, an investigation conducted as an official (judge-led) inquest may be better suited to produce the sort of procedural truth with some historical truth as a by-product mentioned above.54 More importantly, a judge-led examination of witnesses may be preferred to a party-driven approach (with examination in chief and cross examination) for basically two reasons. First, it is more inclusive (less selective) since the (inquisitorial) judge usually reviews all witness statements in the dossier55 first and then decides on this basis which witnesses should be ordered to appear for personal interrogation; there is no pre-selection by the parties.56 Second, it may also be more respectful of witnesses than the party-driven, contest-like crossexamination, especially if practised in an aggressive manner by counsel of one or the other side. The latter may rather alienate witnesses instead of instilling confidence in the criminal process and thus lead them to conceal information instead of sharing it with the interrogators and the chamber.57 However, from a broader perspective, it may be argued that the more dynamic features of the adversarial criminal process, especially the dialectical approach to truth-seeking, allows for a more communicative procedure which is more inclusive with regard to non-legally trained participants and the public in general.58 Such a procedure based on (horizontal) communication instead of a (vertical and hierarchical) inquest seems also to be more open to possible reforms.59 In addition, one should not underestimate the burden on a judge having to lead the evidentiary process throughout the trial phase in mega-trials with potentially more than 50 witnesses for either side.60 (ii) From the perspective of the importance of orality for communication and outreach, a departure from this principle can only be admitted exceptionally,61 namely

54  cf de Meester et al (n 18) 171, 210 f and 251, taking an ultimately sceptical view, leaving it open: ‘no definite answer’. 55 For a description of the role of the written dossier in inquisitorial systems, see R Schlesinger, ‘­Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience’ (1977) 26 Buffalo Law Review 361, 365 ff; see also Heinze (n 26) 264 ff and 514 ff. 56  See also C Safferling, International Criminal Procedure (Oxford, Oxford University Press, 2012) 279 ff. 57  For a discussion see Ambos (n 1) 467; especially with a reference to N Combs, Fact-Finding ­without Facts: the Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge, ­Cambridge University Press, 2010) 303 fn 201 who therefore proposes a sui generis mixed system which combines adversarial and non-adversarial presentation of evidence and also at 319 questioning: ‘grafting initial judicial questioning onto a system of evidence presentation that is otherwise adversarial. Witnesses would be called by the parties, and, after the judges conducted their questioning, the lawyers would be expected to examine and cross-examine their respective witnesses.’ 58  See Whitman (n 4) 958 relativising the importance of truth-seeking. 59  See also Safferling (n 56) 461, considering the ICC procedure conceptually as ‘communication and cooperation in the search for the truth’, thereby allowing for different trial structures. 60  See generally G Boas, The Milošević Trial (Cambridge, Cambridge University Press, 2007) 131 ff. It is worthwhile recalling in this context that the ICC Lubanga Chamber needed almost a year to prepare the opening of the trial, cf Prosecutor v Lubanga, TC Decision Regarding the Timing and Manner of ­Disclosure and the Date of Trial, ICC-01/04-01/06-1019, 9 Nov 2007 [29], setting the commencement date for 31 Mar 2008; see also Heinze (n 26) 501; S Ford, ‘The Complexity of International Criminal Trials Is Necessary’ (2015) 48 The George Washington International Law Review 151, 152. 61  Indeed, at the ICC the principles of orality, immediacy, and publicity demand that a Trial Chamber shall base its decision on a free evaluation of the evidence, discussed before it in an oral and immediate form during the trial, see H Olásolo, Corte Penal Internacional: ¿Dónde Investigar? Especial Referencia a la Fiscalía en el Proceso de Activación (Valencia, Tirant lo Blanch, 2003) 124. Generally, on the ‘free

188  Kai Ambos in the case of a witness who is no longer available—be it due to his passing or refusal to testify (again) due to pressure or for other reasons—, ie in the situation where there is only a prior recorded testimony of a witness or no evidence at all.62 Of course, such written evidence which cannot be verified in open court—given the absence of the respective witness as its source—needs to be treated with utmost caution and it is up to each Chamber, depending on the concrete circumstances of the case, to refuse or admit it, and what weight to give it. It is a different question whether and to what extent written evidence, eg, in the form of well-prepared written ­witness ­statements63 or as bar table evidence,64 should be admitted in addition to the ­witness’ potential oral testimony in order to have a broader and well documented basis for judicially controlled cross-examination.65 From a fair trial perspective this is acceptable as long as the other party, ie, normally the defence, has a fair chance to examine the respective evidence, especially to question the witness (which will be possible since this scenario is predicated on his presence). (iii) Another issue which has proved controversial is as to which point in time a Chamber has to decide on the admissibility of evidence. The ICC Statute does not give any explicit indications. Article 69(4) only refers to the criteria to take into account when deciding on the admissibility of evidence, namely relevance, probative value and a possible prejudice caused by the respective evidence.66 In practice, Chambers have taken two approaches in so far either taking this decision when the question comes up with regard to a specific piece of evidence or postponing it until the termination of the evidentiary stage, ie taking the decision at the end of the trial ‘in the context of all other evidence’.67 The latter approach appears to be more convincing since it avoids unnecessary delays at trial by time-consuming preliminary admissibility decisions and enables a Chamber to take into account the full record of the evidence presented when deciding on admissibility. The two approaches have their origin in the difference between the common law admissibility of evidence/ exclusionary rules and the civil law free evaluation system entailing, if the case so requires, a prohibition of use (but not an exclusion) of tainted evidence.68 In any event, the Statute leaves it to the judges to opt for one or the other approach.

proof principle’, see M Damaška, Evidence Law Adrift (New Haven, Yale University Press, 1997) 20 ff; M Damaška, ‘Free Proof and its Detractors’ (1995) 43 American Journal of Comparative Law 343; on the highly demanding task of evaluation of evidence at international criminal trials, due to their complexity, see MD Öberg, ‘Processing Evidence and Drafting Judgments in International Criminal Trial ­Chambers’ (2013) 24 Criminal Law Forum 115. 62 

See ICC RPE 68 and the respective discussion in Ambos (n 1) 495 ff. Ambos (n 1) 486 f. 64  Ambos (n 1) 500 f. 65  In this vein see F Gaynor, ‘Admissibility of Documentary Evidence’ in Sluiter et al (n 6) 1044, 1077 ff and 1082, proposing to ‘generally dispense with oral direct examination’ and rather rely on ‘well-­ organized, comprehensive written witness statements’ which would form the basis of a ‘tightly controlled’ cross-examination and advocating a rule regulating bar table evidence in order to encourage its use. 66  On the three steps test adopted by ICC Trial Chambers (relevance, probative value and weighing the latter against prejudicial effect) cf Ambos (n 1) 448 and for a discussion of the concepts see also at 456 ff. 67  See for a discussion and references Ambos (n 1) 449 f. 68  For a discussion cf Ambos (n 1) 514 ff. 63 

Fairness and Expediency 189 In general terms, one should not be too optimistic with regard to the expediency gains to be achieved by a shift to a predominantly judge-led and/or written procedure.69 The ICTY experience shows that such reforms must be accepted by the operators, especially the judges.70 They must be flexible and open to new ideas and approaches—no matter whether these are brought about by practice regulations or proper normative changes. If the judges stick to their old (inquisitorial or adversarial) national habits, basically ignoring the new and unique international normative framework they are operating in, nothing will change. Matters may even get worse if operators continue to act as if the old legal regime was still in place. Of course, an unreflected return to domestic or local procedures is no solution; it does not solve the particular fact-finding and evidence-gathering problems of international criminal proceedings.71 In sum, international criminal procedure cannot do without either fairness or expediency. It needs both to become a fully successful and credible system. Both principles complement each other and one cannot exist without the other. Fairness is a prerequisite for the production of reliable and truthful results, expediency guarantees a smooth production of these fair results.

69  See also Vasiliev (n 34) 648; ‘It cannot be guaranteed that sacrificing the “adversarial” mode of presentation, with its convoluted rules governing the examination of witnesses, for the chance to implement a purely “inquisitorial” unitary scheme would result in significant time-saving and increased decisional rectitude, thus making reforms worth the cost.’ 70  See the study by M Langer and JW Doherty, ‘Managerial Judging Goes International, but Its P ­ romise Remains Unfulfilled—An Empirical Assessment of the ICTY Reforms’ (2011) 36 Yale Journal of International Law 241, 252 ff; for a summary cf Ambos (n 1) 353 fn 191. 71  See also Combs (n 57) 297 ff: while ‘local procedures should be best suited to meet local needs and expectations’, they ‘are not necessarily better suited to eliciting clear, accurate testimony in international criminal trials, and, even if they were, other factors might counsel against their adoption’ (emphasis in original).

190 

10 International Criminal Procedure and the False Promise of an Ideal Model of Fairness YVONNE McDERMOTT

I. INTRODUCTION

I

NTERNATIONAL CRIMINAL LAW, the body of law developed to try those deemed most responsible for serious international crimes such as genocide, crimes against humanity, and war crimes,1 has developed exponentially over the past three decades. At the start of the 1990s, such trials before international courts were confined to the memories of the International Military Tribunals at Nuremberg and Tokyo, and early enthusiasm for the creation of a permanent International Criminal Court (ICC) was dampened by the realities of the Cold War. By today, international or hybrid criminal tribunals have been established to try individuals for atrocities committed in Rwanda, the former Yugoslavia, Sierra Leone, Cambodia, and Lebanon, amongst many other countries. Some of these tribunals have already completed their work and handed over their residual functions to pared-down international mechanisms that will replace them.2 The ICC was established in 1998 and became fully operational in 2002. The tribunals’ role in the development of international law cannot be overstated, and has been the subject of a large body of literature.3 The procedure espoused by these international criminal tribunals has also been the subject of a large amount of academic scrutiny.4 International criminal procedure, or

1  Some international criminal tribunals, such as the post-World War II international military tribunals and the ICC included the crime of aggression within their statutes, whilst others, such as the Special ­Tribunal for Lebanon and Special Court for Sierra Leone, also have (or had) jurisdiction over breaches of domestic criminal law. 2  Such as the Residual Special Court for Sierra Leone and the Mechanism for the International ­Criminal Tribunals. 3  eg, B Swart, A Zahar and G Sluiter (eds), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Oxford, Oxford University Press, 2011); S Darcy, Judges, Law and War: The Judicial Development of International Humanitarian Law (Cambridge: Cambridge University Press, 2014). 4  eg, CJM Safferling, Towards an International Criminal Procedure (Oxford, Oxford University Press, 2001); S Zappalà, Human Rights in International Criminal Proceedings (Oxford, Oxford University Press, 2003); CJM Safferling, International Criminal Procedure (Oxford, Oxford University Press, 2012);

192  Yvonne McDermott the body of rules that applies to the conduct of trials before international courts and tribunals, can now be said to be a fully-fledged discipline. The interest given to this procedure is hardly surprising, given the sheer scale and breadth of its development since the inception of the ad hoc criminal tribunals and its rather unique status as a sui generis model of criminal procedure, which borrows from a range of domestic procedural practices and incorporates them with some elements that are truly unique.5 By creating a mixed procedural model, international criminal tribunals have the potential to create and apply a criminal procedure that meets minimum fairness standards, is efficient, and is acceptable to practitioners, judges, and perhaps most importantly, accused persons from across a broad spectrum of legal traditions.6 This role is particularly pertinent in light of the convergence of criminal procedure systems domestically.7 In view of this general trend towards convergence, it is unsurprising that international criminal procedure has piqued the interest of comparative criminal law scholars.8 Debates on whether international criminal procedure is more reflective of the adversarial or inquisitorial legal tradition, or whether it can now be classified as a truly sui generis model, have abounded in the literature.9

C Schuon, International Criminal Procedure: A Clash of Legal Cultures (The Hague, TMC Asser Press, 2010); K Khan, C Buisman and C Gosnell (eds), Principles of Evidence in International Criminal Justice (Oxford, Oxford University Press, 2010); F Pocar and L Carter (eds), International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems (Cheltenham, Edward Elgar, 2013); Y McDermott, Fairness in International Criminal Trials (Oxford, Oxford University Press, 2016); G Sluiter and S Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (New York, Cameron May Publishing, 2009); G Sluiter, H Friman, S Linton, S Zappalà and S Vasiliev (eds), International Criminal Procedure: Principles and Rules (Oxford, Oxford University Press, 2013). 5  The role of fairness in shaping international criminal procedure is discussed further by Ambos, in this volume, ch 9. 6 Safferling, Towards an International Criminal Procedure (n 4); E Møse and J Aptel, ‘Trial without Undue Delay before the International Criminal Tribunals’ in LC Vohrah et al (eds), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague, Kluwer Law International, 2003) 539, 550 have argued that ‘[i]n practice, the Chambers will usually find a solution acceptable to legal minds from both systems, thereby contributing to the construction of a new international criminal jurisprudence’; cf JD Jackson and SJ Summers, The Internationalisation of Criminal Evidence (Cambridge, Cambridge University Press, 2012) 4. 7 JD Jackson, ‘The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment’ (2005) 68 MLR 737; JD Jackson, ‘Transnational Faces of Justice: Two Attempts to Build Common Standards Beyond National Boundaries’ in JD Jackson, M Langer and P Tillers (eds), Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan R Damaška (Oxford, Hart Publishing, 2008) 221; SJ Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (Oxford, Hart Publishing, 2007) 1–17; cf P Legrand, ‘European Legal Systems are Not Converging’ (1996) 45 ICLQ 52. 8  Jackson and Summers (n 6) Ch 5; M Delmas-Marty, ‘The Contribution of Comparative Law to a Pluralist Conception of International Criminal Law’ (2003) 1 Journal of International Criminal Justice 13; P Roberts, ‘Comparative Criminal Justice Goes Global’ (2008) 28 OJLS 369, 380 ff. 9 K Ambos, ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?’ (2003) 3 International and Comparative Law Review 1; F Pocar, ‘Common and Civil Law Traditions in the ICTY Criminal Procedure: Does Oil Blend with Water?’ in J Walker and O Chase (eds), Common Law, Civil Law and the Future of Categories (Markham, Ontario, Lexis Nexis, 2010); A Orie, ‘Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings Before the ICC’ in A Cassese, P Gaeta and JRWD Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol. 2 (Oxford, Oxford University Press, 2002); G Boas, ‘Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility’ (2001) 12 Criminal Law Forum 41; D Mundis, ‘From “Common Law” Towards “Civil

International Criminal Procedure & Fairness 193 This chapter seeks to examine to what extent international criminal procedure can be said to represent a universal model of fairness—a model based on human rights that is not founded in any one procedural paradigm. Section II examines international criminal procedure’s potential to play this role, as exemplified by its character as a blended model of criminal procedure with strong foundations in international human rights law and its influence on domestic criminal trials. Section III highlights some aspects of practice where international criminal trials have failed to live up to that potential, in some instances adopting practices that would not be acceptable in any domestic criminal procedure, and in others expressly reneging from the opportunity to apply and develop human rights standards. Section IV examines some of the practical and philosophical reasons why international criminal tribunals’ role in illustrating best practices remains a false promise, and considers whether that can change in the future. II.  INTERNATIONAL CRIMINAL PROCEDURE’S POTENTIAL AS AN IDEAL MODEL

The origins of international criminal procedure as a mixed procedural model, not founded on any one legal system or traditional adversarial or inquisitorial paradigm, can be traced back to the International Military Tribunal (IMT) at Nuremberg. Writing in 1945, US Prosecutor Robert Jackson noted: The significance of the Charter’s procedural provisions is emphasized by the fact that they represent the first tried and successful effort by lawyers from nations having profoundly different legal systems, philosophies, and traditions to amalgamate their ideas of fair procedure so as to permit a joint inquiry of judicial character into criminal charges.10

Thus, the idea was that the IMT could try its defendants through a procedure that was acceptable to all of the four Allied powers—the United States of America, the United Kingdom, Russia, and France—despite their very different domestic criminal procedures. Its Rules of Procedure and Evidence were drafted by the four Chief Prosecutors of the Tribunal and later adopted by the President of the Tribunal.11 Despite the emphasis on collaboration and mutual acceptance in its creation, the procedural framework of the IMT was broadly adversarial in nature.12 It is likely that this adversarial slant was influenced by the perceived need to present a strong prosecutorial narrative to the public, and that the traditional common law approach, where the trial is played out as a public contest between prosecution and defence, suited that need better.13 Law”: The ­Evolution of the ICTY Rules of Procedure and Evidence’ (2001) 14 Leiden Journal of International Law 367; P Robinson, ‘Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia’ (2000) 11 European Journal of International Law 569. 10  Report of Robert H Jackson, US Representative to the International Conference on Military Trials, London, 1945 (Washington, DC, US Government Printing Office, 1949) x. 11  Charter of the International Military Tribunal, Art 13; see further, V Tochilovsky, ‘The Nature and Evolution of the Rules of Procedure and Evidence’ in Khan et al (n 4) 157, 159. 12  The same is true for its sister tribunal, the International Military Tribunal for the Far East. 13 S Zappalà, ‘Comparative Models and the Enduring Relevance of the Accusatorial-Inquisitorial Dichotomy’ in Sluiter et al (n 4) 40, 44–46.

194  Yvonne McDermott In the early 1990s, when the ad hoc international tribunals for the former Yugoslavia and Rwanda were created, and as their procedural practice began to develop and adopt, there was again an emphasis on not being formally bound to any one procedural framework. Former President of the International Criminal Tribunal for the former Yugoslavia (ICTY), the late Judge Antonio Cassese, noted that the Tribunals’ procedure represented: [T]he gradual decanting of national criminal concepts and rules into the international receptacle. … It is therefore only natural that international criminal proceedings do not uphold the philosophy behind one of the two national criminal systems to the exclusion of the other; nor do they result from the juxtaposition of elements of the two systems. Rather, they combine and fuse, in a fairly felicitous manner, the adversarial or accusatorial system (chiefly adopted in common-law countries) with a number of significant features of the inquisitorial approach (mostly taken in States of continental Europe and in other countries of civil-law tradition).14

In addition to their mixed nature, which is notable in the light of convergence of procedural traditions domestically, the international criminal tribunals can play an important role in illustrating how human rights standards of due process can be practically applied. This is particularly so before the ICC, which is bound, under Article 21(3) of its Statute, to interpret and apply the law in a manner ‘consistent with internationally recognized human rights’.15 Before the ICTY was established, the areas of international human rights and criminal procedure converged only in the circumstances where an applicant brought a claim to an international human rights body claiming, ex post facto, that their fair trial rights had been breached by a domestic criminal justice system, and even then states were afforded a margin of appreciation over their domestic practices. Now, with the international criminal tribunals providing an enunciation of how criminal procedure ought to work in the light of international fair trial standards through their day-to-day practice, that is no longer the case. To this end, the ICTY’s former President, Theodor Meron, has remarked that, I do not believe, apart from the European Court of Human Rights and the American Court of Human Rights, that there has been any tribunal which devoted so much attention to elaborating and giving proper foundation to due process and fairness.16

As well as the illustrative function of international criminal procedure, which can, at its best, highlight good practices that can be followed by domestic criminal justice systems, the tribunals also have a degree of interplay with domestic courts, and

14  Prosecutor v Erdemović, Appeal Judgment, IT-96-22-A, 7 Oct 1997, Separate and Dissenting ­Opinion of Judge Cassese [4]. 15 ICC Statute Art 21(3). In Situation in the DRC, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 Mar 2006 Decision Denying Leave to Appeal, ICC01/04-168 [11], the Appeals Chamber noted that the right to a fair trial must accordingly ‘be construed and applied in accordance with internationally recognised human rights’. 16  ICTY Global Legacy: Conference Proceedings, The Hague, 15–16 Nov 2011 (The Hague, ICTY Outreach Programme, 2012), remarks of Judge Theodor Meron, ICTY Appeals Chamber, 46 last accessed 26 September 2017.

International Criminal Procedure & Fairness 195 this again shows the potential of international criminal procedure to act as an ideal model. Under their Rules 11bis, the Yugoslav and Rwanda tribunals could transfer trials to domestic courts if they were satisfied that the case was of appropriate gravity to be tried domestically as opposed to internationally, and that the accused person would receive a fair trial and would not be subject to the death penalty.17 As a consequence of this rule, and Rwanda’s desire to try the International Criminal Tribunal for Rwanda (ICTR) suspects in its domestic courts, Rwanda reformed its criminal procedure to allay the concerns of the ICTR, paving the way for cases to be transferred from the international tribunal.18 Unlike the ICTY and ICTR, the ICC does not have primacy over domestic courts; under the principle of complementarity, the ICC can only have jurisdiction where the state is unwilling or unable to put a person on trial. Many authors have discussed the idea of ‘positive complementarity’, whereby the Court can encourage states in putting perpetrators on trial domestically, and whether this could include highlighting fair trial practices.19 However, the ICC has refused to declare a case admissible where an accused was standing trial in a domestic state where there were concerns that the accused would not receive a fair trial domestically, finding that its role is not one of a human rights court.20 Nevertheless, international criminal procedure is clearly viewed as representing best practice by many external actors, who have relied on the standards embraced by the international criminal tribunals in devising manuals and model codes designed to ensure respect for fair trial rights.21 Thus, international criminal procedure does play a role in illustrating a model of criminal procedure, founded upon international human rights standards, which ought to be universally acceptable to observers from 17 This process is discussed extensively in Lorenzo Gradoni, ‘“You Will Receive a Fair Trial Elsewhere”: The Ad Hoc International Criminal Tribunals Acting as Human Rights Jurisdictions’ (2007) 54 Netherlands International Law Review 1; and McDermott (n 4) 151–55. 18 eg, Prosecutor v Uwinkindi, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, ICTR-2001-75-R11bis, 28 Jun 2011; upheld on appeal in Prosecutor v Uwinkindi, Decision on Uwinkindi’s Appeal against the Referral of His Case to Rwanda and Related Motions, ICTR-01-75AR11bis, 16 Dec 2011; Prosecutor v Sikubwabo, Decision on Prosecutor’s Request for Referral of the Case to the Republic of Rwanda, ICTR-95-1D-R11bis, 26 Mar 2012; Prosecutor v Kayishema, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, ICTR-01-67-R11bis, 22 Feb 2012; Prosecutor v Ndimbati, Decision on the Prosecutor’s Request for Referral of the case of Aloys Ndimbati to the Republic of Rwanda, ICTR-95-1F-R11bis, 25 June 2012; Prosecutor v Munyarugarama, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda; ICTR-02-79-R11bis, 28 June 2012; The European Court of Human Rights (ECtHR) later confirmed that fair trial rights were respected in Rwanda in the case of Ahorugeze v Sweden (2012) 55 EHRR 2. 19 WW Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum 59; R Rastan, ‘Complementarity: Contest or Collaboration’ in Morten Bergsmo (ed), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Oslo, Torkel Opsahl Academic EPublisher, 2010) 83; EC Rojo, ‘The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal Court: From “No Peace without Justice” to “No Peace without Victor’s Justice”?’ (2005) 18 Leiden Journal of International Law 829. 20  Situation in Libya: Prosecutor v Gaddafi and Al-Senussi, Judgment on the Appeal of Mr Abdullah Al-Senussi against the Decision of Pre-Trial Chamber I of 11 Oct 2013 entitled ‘Decision on the Admissibility of the Case against Abdullah Al-Senussi’, ICC-01/11-01/11, 24 July 2014 [229]–[231]. 21  eg, V O’Connor and C Rausch (eds), Model Codes for Post-Conflict Criminal Justice, Volume II: Model Code of Criminal Procedure (Washington DC, United States Institute of Peace Press, 2008); Amnesty International, Fair Trial Manual, 2nd edn, Apr 2014 last accessed 26 September 2017.

196  Yvonne McDermott any domestic legal system. However, as shall be shown in the next section, in a number of important areas of practice, this potential has not been fully realised. III.  SOME ASPECTS OF INTERNATIONAL CRIMINAL PROCEDURE THAT FALL SHORT OF AN IDEAL MODEL OF FAIRNESS

In a number of important respects, the international criminal tribunals have developed and applied nothing short of the highest standards of fairness to the accused. An example of this is the provision of translation and interpretation rights at the ICC. The ICC Statute provides that the accused is entitled to have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks.22

This standard appears to be even higher than the ‘understand or speak’ standard established by the European Convention on Human Rights (ECHR), for example.23 Even though the operation of this right has been costly and time-consuming in practice, especially in those cases where the accused speaks a language that is infrequently written and not widely spoken,24 it has nevertheless been respected in practice as a guarantee owed to the accused.25 On the other hand, international criminal procedure has also incorporated a number of practices, which, far from being universally acceptable to observers from a broad range of domestic legal backgrounds, would arguably be unacceptable in any legal system. For the sake of economy, the discussion below is limited to only two such areas of practice. A.  Judicial Notice The first notably unique area of international criminal procedure is the extensive use of the doctrine of judicial notice, before the ICTR and ICTY in particular. A remnant of the common law legal tradition, barely taught in law schools and very infrequently used in court, the doctrine was developed to prevent courts having to adjudicate ‘facts of common knowledge’, such as the fact that the sun rises in the morning or what day 22 

ICC Statute, Art 67(1)(f) (emphasis added). ECHR Art 6(3)(e); see also International Covenant on Civil and Political Rights (ICCPR) Art 14(3)(f). 24  In the Banda and Jerbo case, for example, the ICC has expended significant time and resources on translating materials into Zaghawa, a language without a written form and a vocabulary of fewer than 5000 words, Situation in Darfur, Sudan: Prosecutor v Banda and Jerbo, Prosecutions Response to the Trial Chamber’s Request for Written Submissions on issues to be addressed during the Status Conference on 19 Apr 2011, ICC-02/05-03/09, 14 Apr 2011 [10]. 25  Situation in the DRC: Prosecutor v Katanga, Judgment on the appeal of Mr Germain Katanga against the decision of the Pre-Trial Chamber I entitled ‘Decision on the defence request concerning languages’, ICC 01/04-01/07, 27 May 2008 [62]. However, the judges have proposed an amendment to the Rules of Procedure and Evidence that would allow for only partial translation of witness statements; this has, so far, been rejected by the Assembly of States Parties, which is ultimately responsible for Rule amendments. 23 

International Criminal Procedure & Fairness 197 of the week a particular date was.26 In international criminal procedure, judicial notice is rather a different beast and extends also to facts that have also been adjudicated before the court, placing the burden on the party that has not asked for such facts to be judicially noticed (usually the defence) to rebut such factual findings.27 The wide scope of the doctrine’s application is problematic in view of the nature of the facts that have been judicially noticed in this way, facts that can, in practice, go directly to the culpability of the accused.28 This form and use of the judicial notice doctrine cannot be said to have its origins in any domestic legal tradition; it instead appears to be a creation mandated by the particular exigencies of international criminal trials, the scope of their cases and the volume of evidence before international courts.29 It is thus unlikely that the doctrine of judicial notice, as interpreted in international criminal procedure, would be accepted as illustrating the highest standards of fairness.30 B.  Extension of Fair Trial Rights to Actors other than the Accused A large number of domestic legal systems have recognised some form of participatory rights for victims in criminal trials,31 and international criminal procedure has also incorporated victims’ participation in recent years.32 What is unique to the international criminal tribunals, however, is the extension of the rights of the accused to other procedural actors at trial. Most controversially, the Prosecutor has been recognised as being entitled to the right to a fair trial in practice, and this has not been without consequence. In Haradinaj, the ICTY Prosecutor appealed the acquittal of the accused33 on the basis that the Trial Chamber’s failure to take further measures to secure the testimony of two prosecution witnesses was a breach of the right to a fair trial.34 This argument was successful (although the Appeals Chamber,

26 

JB Thayer, ‘Judicial Notice and the Law of Evidence’ (1890) 3 Harvard Law Review 28. McDermott (n 4) 44–46. 28  McDermott (n 4) 44–46; In Karadžić, the ICTY Trial Chamber took judicial notice of over 2000 facts: Prosecutor v Karadžić, Decision on First Prosecution Motion for Judicial Notice of Adjudicated Facts, IT-95-5/18-PT, 5 Jun 2009; Prosecutor v Karadžić, Decision on Second Prosecution Motion for Judicial Notice of Adjudicated Facts, IT-95-5/18-PT, 9 Oct 2009; Prosecutor v Karadžić, Decision on Third Prosecution Motion for Judicial Notice of Adjudicated Facts, IT-95-5/18-PT, 9 July 2009; Prosecutor v Karadžić, Decision on Fourth Prosecution Motion for Judicial Notice of Adjudicated Facts, IT-95-5/18-T, 14 June 2010. 29  ICTY Global Legacy: Conference Proceedings, The Hague, 15–16 Nov 2011 (The Hague, ICTY Outreach Programme, 2012), Remarks of Judge Patrick Robinson, President of the ICTY, 99: ‘the provenance of these species of judicial notice is not entirely clear. Indeed its paternity might be said to be in dispute’. 30  See also McDermott (n 4) 45–46. 31 Y McDermott, ‘Victims and International Law: Remedies in the Courtroom?’ (2009) 4 Hague ­Justice Journal 199. 32  ICC Statute Art 68(3); STL Statute Art 17. 33  Prosecutorial appeal of acquittals is another controversial aspect of international criminal practice, and it is questionable whether it reflects international human rights law’s due process standards. See further, Prosecutor v Mrkšić and Šljivančanin, Review Judgement, IT-95-13/1-R.1, 8 Dec 2010, Partially Dissenting Opinion of Judge Pocar [1]–[13]. 34  Prosecutor v Haradinaj et al, Judgment, IT-04-84-A, 21 July 2010. I have discussed this case at length in Y McDermott, ‘Rights in Reverse: A Critical Analysis of Fair Trial Rights under International Criminal Law’ in WA Schabas, Y McDermott and N Hayes (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Aldershot, Ashgate, 2013) 165. 27 

198  Yvonne McDermott in a corrigendum issued shortly after its judgment, changed the phrase ‘the Prosecution’s right to a fair trial’ to ‘the fairness of proceedings’),35 and the case was sent back for a retrial as a consequence.36 This case is not unique—prosecutorial fair trial rights have been recognised broadly across the international criminal tribunals.37 The ICC Appeals Chamber showed somewhat more restraint in its Ngudjolo Chui judgment of 2015, when it refused to enter into the debate on whether the Prosecutor could rightly be said to be a beneficiary of the right to a fair trial, noting instead that, ‘It is commonly understood that the right to a fair trial/fair hearing in criminal proceedings, first and foremost, inures to the benefit of the accused.’38 In addition to the Prosecutor, other actors including victims and the international community have also been recognised as being entitled to the right to a fair trial.39 It is difficult to think of another legal system where such actors are recognised as being entitled to the right to a fair trial per se, as opposed to some status rights attached to their role in the trial (such as where victims participate as a partie civile in some domestic trials). By recognising that the right to a fair trial itself is not solely owed to the accused, international criminal procedure has developed a unique facet of practice that is unparalleled in either domestic law or international human rights law. Of course, it could be argued that this extension of fair trial rights to other parties is itself a more expansive definition of the notion of fairness, and as such, demonstrates a positive development of the right to a fair trial by the international criminal tribunals. However, as I have argued at length elsewhere,40 the extension of the right to a fair trial itself to other procedural actors is undesirable, as it results in the accused’s right to a fair trial being seen as something that must be balanced against other competing rights, and this leads to a dilution of fairness in practice. These examples are just two indicative areas of practice where international criminal procedure can be said to fall short of an ideal or universal model of fairness. There are other areas that could have been discussed, including some tribunals’ approaches to remedies for breaches of rights, evidentiary rules, and the right to trial without undue delay. However, these two examples have highlighted the key point of this chapter—that there are key facets of international criminal procedure that, rather than being taken from any discernible criminal procedural tradition, are unique creations of the tribunals themselves, and these practices often fall short of an idealised model of fair trial practice. Rather than being universally acceptable,

35 

Prosecutor v Haradinaj et al, Corrigendum to Judgment of 19 July 2010, IT-04- 94-A, 23 July 2010, 1. on retrial, the defendants were again acquitted: Prosecutor v Haradinaj et al, Judgment, IT-04-84bis-T, 29 Nov 2012. 37 eg, Prosecutor v Ayyash et al, Decision on Prosecution Motion to Amend its Exhibit List and Oneissi Defence Request to Stay the Proceedings, STL-11-01/T/TC, 13 Apr 2015 [47]; Prosecutor v Martić, Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, IT-95-11-AR73.2, 14 Sept 2006 [10]–[13]. 38  Situation in the DRC: Prosecutor v Ngudjolo Chui, Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled ‘Judgment pursuant to article 74 of the Statute’, ICC-01/04-02/12271, 7 Apr 2015 [255]. 39  Prosecutor v Norman et al, Decision on the Application for a Stay of Proceedings and Denial of Right to Appeal, SCSL-2003-09-PT, 4 Nov 2003 [8]; Prosecutor v Ademi and Norac, Decision for Referral to the Authorities of the Republic of Croatia Pursuant to Rule 11bis, IT-04-78-PT, 14 Sept 2005 [53]. 40  McDermott (n 34). 36 ibid;

International Criminal Procedure & Fairness 199 it is likely that some of the above aspects of practice would have been perceived as unacceptable in many (if not most) domestic criminal procedures. Thus, the idea that international criminal procedure somehow represents a system that is both mutually acceptable to lawyers, judges, victims, and, most importantly, accused persons hailing from a wide range of domestic penal systems and that best ensures the realisation of universal fair trial rights,41 is a myth. The next section of this chapter seeks to examine some of the reasons why international criminal procedure falls short of this promise. IV.  INTERNATIONAL CRIMINAL LAW’S INABILITY TO CREATE A UNIVERSALLY ACCEPTABLE PROCEDURAL MODEL

A number of reasons can be posited for international criminal procedure’s failure to fulfil the promise of reflecting a universal model of fairness. The first is the relative youthfulness of international criminal procedure as a model, compared to domestic procedural systems. International criminal procedure as we know it was really only born in 1994, with the first version of the ICTY’s Rules of Procedure and Evidence.42 Since that time, there has been a proliferation of international criminal tribunals, some of which have departed quite radically from others in issues such as victims’ participation,43 the structure of pre-trial proceedings,44 and the role of the Prosecutor.45 For that reason, some commentators have noted that it could be said that there are as many ‘international criminal procedures’ as there are international tribunals.46 There are inconsistencies not just between different tribunals, each with its own legal framework, but also between differently constituted chambers of the same tribunal on occasion. For example, the ICC Statute confers the power on each trial chamber to ‘confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings’.47 As a consequence, different trial chambers across the Court have adopted diverging practices on such issues as examination of witnesses48 and 41  In the words of Safferling, Towards an International Criminal Procedure (n 4) 2, ‘the aim must be a truly international criminal procedure which … stands solidly on the various traditions of criminal procedure’. 42  Rules of Procedure and Evidence, ICTY, IT/32/1, adopted 11 Feb 1994. 43  Early practice of the ICC identified an extensive suite of rights for victims: Situation in the DRC: Prosecutor v Katanga and Chui, Decision on the Set of Procedural Rights attached to Procedural Status of Victim at the Pre-Trial Stage of the Case, ICC-01/04-01/07, 13 May 2008, whereas other international criminal tribunals had no formal mechanism for victims’ participation. 44  The ICC includes a confirmation of the charges hearing, where the Prosecutor must establish ‘substantial grounds to believe’ that the accused committed a crime within the jurisdiction of the Court before the case can proceed to trial: ICC Statute Art 61. 45  The ICC’s Prosecutor bears a duty to investigate both incriminatory and exonerating circumstances equally, under ICC Statute, Art 54(1)(a). 46  S Vasiliev, ‘The Usage and Limitations of Comparative Law and the Methodology of International Criminal Procedure’ (2014) 2 Revista Eletrônica de Direito Penal 166, 168. 47  ICC Statute Art 64(3)(a). 48  cf Situation in Cote d’Ivoire: Prosecutor v Gbagbo, Decision adopting Amended and Supplemented Directions on the Conduct of the Proceedings, ICC-02/11-01/15, 4 May 2016 with Situation in Uganda: Prosecutor v Ongwen, Initial Directions on the Conduct of Proceedings, ICC-02/04-01/15, 13 July 2016.

200  Yvonne McDermott leading questions.49 Indeed, in Gbagbo, the Trial Chamber held that the Directions on the Conduct of Proceedings adopted at the start of the trial could even be amended mid-way through the trial, leading to divergence in practice by the same Chamber within the same trial.50 Relatedly, in the majority of international criminal tribunals, the power to amend and adopt Rules of Procedure and Evidence is conferred on the judges, and this has led to a rather reactive approach towards procedural rule amendment in practice.51 While some flexibility in the rules to deal with new issues as they arise might be seen as a positive aspect of the tribunals’ practice, some observers have warned that a reactive approach to rule-making risks the ‘loss of the abstract-general character constitutive of a law that is meant to apply to any situation’.52 Indeed, it is clear that practical developments arising from the case law have heavily influenced rule amendments before the ICTY and ICTR. For example, amendments to the rules on witness testimony that allow written witness statements to be admitted in lieu of oral testimony can be directly traced back to the case law on unavailable witnesses,53 and changes to the rules on contempt offences54 and judicial absence55 were the consequences of practical issues that arose over the lifetimes of the tribunals. This can lead to a perception of unfairness, especially where the judges have recently amended the rules and then decide that it is in the interests of justice to apply those new rules in a trial, even when this is against the wishes of the accused.56 The constantly changing nature of procedural rules again makes it difficult to speak of international criminal procedure as though it were one coherent framework, and the reactive nature of rule amendments suggests that such changes are driven more by the exigencies of the day than by a desire to create an ideal model of fair procedure.

49  Leading questions are expressly permitted in the Gbagbo Directions, ibid [28], ‘when they are conducive to the expeditiousness of the proceedings and the determination of the truth’, but the Trial Chamber in Ntaganda found that leading questions were permitted in very limited circumstances, such as to gain background information or where the witness is a hostile witness, Situation in the DRC: Prosecutor v Ntaganda, Decision on the Conduct of Proceedings, ICC-01/04-02/06, 2 June 2015 [26]. 50  Situation in Cote d’Ivoire: Prosecutor v Gbagbo, Decision adopting Amended and Supplemented Directions on the Conduct of the Proceedings, ICC-02/11-01/15, 4 May 2016. For a discussion on the need for procedural clarity, see Separate Opinion of Judge Henderson. 51 Y McDermott, ‘The Admissibility and Weight of Written Witness Testimony in International Criminal Law: A Socio-Legal Analysis’ (2013) 27 Leiden Journal of International Law 971; S Kay, ‘The Move from Oral Evidence to Written Evidence: “The Law is always Too Short and Too Tight for Growing Humankind”’ (2004) 2 Journal of International Criminal Justice 495. 52  P Ambach, ‘A Look towards the Future—The ICC and “Lessons Learnt”’ in C Stahn (ed), The Law and Practice of the International Criminal Court (Oxford, Oxford University Press, 2015) 1277, 1291. 53  For example, the adoption of Rules 92 bis, ter, and quater by the ICTY was a consequence of developments in the Kordić and Čerkez, Milošević, and Milutinović cases respectively (Prosecutor v Kordić and Čerkez, Decision on Appeal Regarding Statement of a Deceased Witness, IT-95-14/2-AR73.5, 21 July 2000 and Prosecutor v Kordić and Čerkez, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, IT-95-14/2-AR73.5, 18 Sept 2000; Prosecutor v Milošević, Decision on Interlocutory Appeal on the Admissibility of Evidence-in-Chief in the form of a Written Statements, IT-05-54-AR73.4, 30 Sept 2003; Prosecutor v Milutinović et al, Decision on Prosecution’s Rule 92bis Motion, IT-05-87-PT, 4 July 2006). 54  ICTY RPE 77; ICTR RPE 77; Special Court for Sierra Leone (SCSL) RPE 77. 55  SCSL RPE 15bis and 16bis; ICTR RPE 15bis; ICTY RPE 15bis and 15ter. 56  Prosecutor v Nyiramasuhuko et al, Decision in the matter of proceedings under Rule 15bis(D), ICTR 98-42-T, 15 July 2003.

International Criminal Procedure & Fairness 201 There is an additional risk with systems of judge-led procedural reforms that judges may be particularly wedded to the approach of their own legal system on a given issue, and might seek to transpose that approach to international criminal procedure without considering how it fits within the procedural construct of the tribunal as a whole.57 Further, the fact that judges in some tribunals are called upon to assess the legality or legitimacy of procedural rules that they have earlier drafted may give rise to some issues of perceived unfairness.58 However, even in those tribunals where the power to draft and amend procedural rules is not vested in judges, such as the ICC, procedure is far from constant, and the desire to create a universally acceptable procedural model is not always apparent. At the ICC, the Court’s Assembly of States Parties adopts and amends the Rules of Procedure and Evidence.59 This model has resulted in some recent difficulties, following the adoption of an amended Rule 68 by the Assembly of States Parties in 2013.60 The amended Rule changes the strict limits on the use of prior recorded testimony in the old Rule 68,61 and effectively incorporates the ICTY’s Rules 92bis-quinquies into the ICC’s procedural framework. At the time of the amended Rule’s adoption, Kenya sought reassurances that the amended Rule would not be used in ongoing cases before the Court (which is unsurprising, given that both its President and Deputy President were on trial before the ICC at the time); as a consequence, a reference to Article 51(4) was included in the amendment, thereby apparently clarifying that the amended Rule would not be applied retroactively to the detriment of accused persons before the Court.62 However, shortly thereafter, the Prosecutor sought to use the amended Rule to introduce material in the case against Kenya’s Deputy President, a move that was permitted by the Trial Chamber.63 This led to furious exchanges at the Assembly of States Parties,64 and, although the Appeals Chamber later reversed the Trial Chamber’s decision,65

57  M Damaška, ‘Epistemology and Legal Regulation of Proof’ (2003) 2 Law, Probability and Risk 117, 121: ‘Creating a successful mixture is not like shopping in a boutique of detachable procedural forms, in which one is free to purchase some and reject others.’ 58 G Sluiter, ‘Procedural Lawmaking at the International Criminal Tribunals’ in Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (Oxford, Oxford University Press, 2010) 315, 325. 59  ICC Statute Art 51. 60  Assembly of State Parties, Amendments to the Rules of Procedure and Evidence, ICC-ASP/11/Res.7, 27 Nov 2013. 61  Under the Rule prior to amendment, such evidence could only be admitted if the Prosecutor, Defence and Chamber had the opportunity to cross-examine the witness and, if the witness was present before the Court, if they did not object to the introduction of their prior recorded testimony in this manner. 62  Assembly of State Parties, Amendments (n 60) [2]. 63  Situation in Kenya: Prosecutor v Ruto and Sang, Decision on the Prosecution Request for Admission of Prior Recorded Testimony, ICC-01/09-01/11, 19 Aug 2015 [19]. 64 See Note Verbale from the Permanent Mission of the Republic of Kenya to the United Nations to the President of the Assembly of States Parties, 13 Oct 2015, www.jfjustice.net/userfiles/Kenya-Formalrequest.pdf (last accessed 26 September 2017); and Letter from President, Prosecutor and Registrar of the ICC to ASP President Sidiki Kaba, 13 Nov 2015 last accessed 26 September 2017. 65  Situation in Kenya: Prosecutor v Ruto and Sang, Judgment on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 Aug 2015 entitled ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’, ICC-01/09-01/11, 12 Feb 2016 [94].

202  Yvonne McDermott later proposed rule amendments at the Assembly of State Parties have been subject to rigorous debate and have not been passed.66 This experience highlights how the process of framing and re-moulding international criminal procedure can become drawn out when it rests in the hands of states, and that the creation of an idealised model of fairness may not be foremost in the minds of State Parties to the ICC when debating and agreeing upon rule amendments. A final possible reason for international criminal procedure’s failure to live up to the promise of creating an ideal model of fairness, strongly founded on human rights law principles of due process, is that there is no formal oversight mechanism for human rights courts. There was possibly an assumption at the inception of the more recent international criminal tribunals—particularly the ICTY—that there would be a greater interrelationship between the Tribunal and the European Court of Human Rights (ECtHR). However, early on, the ECtHR refused to take the mantle of an oversight function in ensuring that the rights of the accused guaranteed under Article 6 of the Convention were respected in the territory of a State Party (the Netherlands), albeit by an international criminal tribunal.67 In Galić, the ECtHR noted that ‘the basic legal provisions governing … [the ICTY’s] organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees’ and that it was not clear that it fell to the Netherlands, as a State Party to the ECHR, to ensure that the international tribunal respected the rights of those before it, simply because the tribunal was located on its territory.68 While the tribunals can assert that their procedures comply with international human rights standards, there is no objective means for defendants to test that assertion when they disagree. In practice, the international criminal tribunals frequently refer to international human rights standards in interpreting their law and formulating their procedures.69 However, this is essentially a voluntary exercise—with the exception of the ICC, which is statutorily bound to interpret its law in a manner that conforms to international human rights law,70 none of the international criminal tribunals are formally bound to take international human rights law into account. An early pronouncement of the ICTY Appeals Chamber noted the Secretary General’s comments that it was ‘axiomatic’ that the Tribunal would ‘fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings’,71 but the Tribunal later distinguished itself from domestic courts and instead likened the

66 See, eg, Assembly of State Parties, Official Records, 15th Session, 16–24 Nov 2016, Annex V, S­ tatement by Kenya concerning the report of the Working Group on Amendments to the Assembly at its seventh plenary meeting, on 22 Nov 2016, noting Kenya’s intention to continue ‘to engage robustly and in utmost good faith’ in the negotiations. 67  Milošević v Netherlands (dec), no 77631/01, 19 Mar 2002, 801; Naletilić v Croatia (dec), no 51891/99, ECHR 2000-V. 68  Galić v Netherlands (dec), no 22617/07, 9 Jun 2009; Similar findings were made concerning an ICC witness detained on the territory of the Netherlands in Djokaba Lambi Longa v Netherlands (dec), no 33917/12, 9 Oct 2012. 69  For an extensive overview, see K Zeegers, International Criminal Tribunals and Human Rights Law (The Hague, TMC Asser Press, 2016). 70  ICC Statute Art 21(3). 71  Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993) UN Doc S/25704 [106].

International Criminal Procedure & Fairness 203 ICTY to a military tribunal in its operation.72 Although the tribunals have clearly moved away from the paradigm of the military tribunal, it remains the case that they are free to essentially cherry-pick from international human rights law, and disregard elements of human rights judgments that are unfavourable. A remarkable example of this again comes from the early practice of the ICTY. In holding that anonymous witnesses could, in certain circumstances, be used, the ICTY purported to base its decision on the ECtHR’s judgment in Kostovski v Netherlands, which had essentially held the precise opposite.73 The ICTY’s former President, writing extrajudicially, later noted that: The Majority Opinion of the Trial Chamber was, of necessity, selective in its reliance on the Kostovski case. Indeed, it must be borne in mind that the finding of the majority … was that fair trial guarantees were not violated with anonymous witnesses, whereas the finding of the European Court in Kostovski was that such guarantees were violated.74

Such selectivity in the application (and perhaps it could be said, misapplication) of international human rights law is, of course, not precluded by the tribunals’ legal frameworks. However, the inconsistent and ad hoc use of human rights legal standards in practice means that international criminal procedure cannot fully claim to be a procedural system founded on or centred around those same standards, despite the fact that their statutory provisions on fair trial rights are closely based on the fair trial provisions of international human rights conventions. The absence of synergy and dialogue between human rights law and international criminal law means that the two systems will continue to develop as separate entities with diverging standards, like planets that orbit each other but never collide. V. CONCLUSION

The creation of the contemporary international criminal tribunals brought with it the potential of creating a mixed model of criminal procedure that was not founded on any one legal tradition, but rather based on best practices from across the globe, coupled with a strong desire to fully respect the rights of the accused to a fair and effective trial. To this end, this chapter sought to examine the extent to which international criminal procedure could be perceived to represent a universally acceptable model of fair procedure. It noted that several fair trial manuals refer explicitly to international criminal procedure in setting out best practice for respecting the rights of the accused, particularly in relation to prosecutions in post-conflict settings. However, this chapter argued that international criminal procedure has been unable to fulfil this potential to date. It illustrated this point with reference to a number of

72  Prosecutor v Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for ­ ictims and Witnesses, IT-94-1-T, 10 Aug 1995 [28] and [86]; For a critique, see N Affolder, ‘Tadić, the V ­Anonymous Witness and the Sources of International Procedural Law’ (1997-98) 19 Michigan Journal of International Law 445. 73  Tadić, ibid, citing Kostovski v Netherlands (1990) 12 EHRR 140. 74 A Cassese, ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’ (1997) European Human Rights Law Review 329.

204  Yvonne McDermott procedural practices that, far from representing ideal models of fair trial practice, would likely be unacceptable to observers from any domestic legal system. It argued that a number of reasons could be posited for international criminal procedure’s shortcomings in this regard. These include the flexibility of procedural rules, and the manner in which rule amendments to date have tended to be reactive to particular jurisprudential developments or practical challenges, as opposed to being driven by a desire to create a coherent and fair mixed procedural model. In addition, we might point to inconsistencies across (and sometimes even within) tribunals, and the lack of an independent oversight mechanism, as reasons for international criminal procedure’s failure to represent an ideal model of fairness. None of these barriers are insurmountable. International criminal law has developed rapidly since the 1990s, and is now at such an advanced stage that lawyers and judges have become duly socialised and experienced in international criminal practice as though it were a distinct legal system.75 Following a period of rapid evolution, where the tribunals’ Rules of Procedure and Evidence were amended significantly, at least annually, and sometimes several times in one year,76 their procedure has now begun to develop and change at a much steadier pace, bringing enhanced certainty as to the form and content of international criminal procedure. While international criminal procedure’s position on certain issues still remains to be clarified, there is good reason to believe that the future practice of the ICC will become more consistent across chambers in the future,77 and, provided that full respect for the rights of the accused remains the central focus of international criminal trials, this may well lead to the recognition of international criminal procedure as an ideal model of fairness in the future.

75  R Byrne, ‘The New Public International Lawyer and the Hidden Art of International Criminal Trial Practice’ (2010) 25 Connecticut Journal of International Law 243; EA Baylis, ‘Tribunal Hopping with the Post-Conflict Justice Junkies’ (2008) 10 Oregon Review of International Law 361; J Jackson and Y M’Boge, ‘The Effect of Legal Culture on the Development of International Evidentiary Practice: From the “Robing Room” to the “Melting Pot”’ (2013) 26 Leiden Journal of International Law 947. 76  For example, the ICTY Rules of Procedure and Evidence were amended three times in 2001, four times in 2002, three times in 2003, and four times in 2004. 77 Since 2015, the judges of the Court have written and updated annually a ‘Chambers Practice Manual’, intended to set out best practices before the Court. There is currently some debate between judges and divergence between chambers as to the weight to be given to this Manual, see, eg, Situation in Mali: Prosecutor v Al Mahdi, Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, 24 Mar 2016, separate Opinion of Judge Peter Kovacs; Situation in Uganda: Prosecutor v Ongwen, Decision on the confirmation of charges against Dominic Ongwen, ICC-02/0401/15, 23 Mar 2016, Partially Dissenting Opinion of Judge Marc Perrin de Brichambaut, and Situation in Cote d’Ivoire: Prosecutor v Gbagbo, Judgment on the appeal of Mr Laurent Gbagbo against the decision of Trial Chamber I entitled ‘Decision giving notice pursuant to Regulation 55(2) of the Regulations of the Court’, ICC- 02/11-01/15, 18 Dec 2015, but the principle of codifying practice in an attempt to ensure some measure of consistency across the Court is to be welcomed.

11 Written Records of Statements and Fairness NADJA CAPUS

I. INTRODUCTION

T

HE FOCUS OF this contribution is on written records of statements (­confessions, other statements of an accused person, witness testimony) and their relationship to fairness. In general, a number of recording formats exist, from various types of written records (content only or with non-verbal behaviour also included, verbatim or summarisation, with or without reference to the questions asked) to audio or video recordings. Each of these formats has advantages and disadvantages with regard to the aim of ensuring fairness. The research in this area has focused predominantly on investigating interviewing techniques and the related risks of producing false evidence, thereby infringing the fundamental standards of fairness. Methods of recording statements are discussed only marginally. In civil law jurisdictions, such as Switzerland, Germany, France or the Netherlands, the use of written records produced directly during the investigative interview, rather than audio or video recordings, is the rule.1 These records are generally summarised and only partially verbatim, if at all. There has undoubtedly been a strong movement towards audio or video recording of investigative interviews, especially of police interviews of suspects in custody.2 However, the use of electronic recordings is still 1  In Scotland too, there is no general published guidance to audio record police interrogations, contrary to England and Wales, where the Police and Criminal Evidence Act 1984 requires audio recording of offences which are indictable or triable. J Chalmers, ‘Recording of Police Interviews’ in J Chalmers, F Leverick and A Shaw (eds), Post-Corrobation Safeguards Review Report of the Academic Expert Group (The Scottish Government, Edinburgh, 2014) 118–23; G Roussel, Les procès-verbaux d’interrogatoire. Rédaction et exploitation (Paris, Harmattan, 2005); M Komter, ‘From Talk to Text: The ­Interactional Construction of a Police Record’ (2006) 39 Research on Language and Social Interaction 201; J ­Blackstock, E Cape, J Hodgson, A Ogorodova and T Spronken, Inside Police Custody: An Empirical Account of Suspects’ Rights in Four Jurisdictions (Cambridge, Intersentia, 2013) 371; N Capus, ‘“Ich ermördere Dich. Es gibt keine Gesetze für Vito. Vitogesetze”—Theorie und Empirie zur Herstellung von ­Schriftprotokollen’ (2014) 3 Richterzeitung 1. 2  AE Taslitz, ‘High Expectations and Some Wounded Hopes: The Policy and Politics of a Uniform Statute on Videotaping Custodial Interrogations’ (2012) Northwestern Journal of Law and Social Policy 400; S Thompson Guerra, ‘Judicial Gatekeeping of Police-Generated Witness Testimony’ (2013) Journal of Criminal Law & Criminology 329, 360; BL Garrett, ‘The Substance of False Confessions’ (2010) Stanford Law Review 1051 (promoting videotaping) 1059; RA Leo et al, ‘Bringing Reliability Back’ in False Confessions and Legal Safeguards in the Twenty-First Century (2006) Wisconsin Law Review

206  Nadja Capus not a general and customary practice in all countries within adversarial criminal law systems; even less so in inquisitorial countries. In reality, although audio or video recordings are the best way of authentically preserving what has been said and done during investigative interviews, it is questionable whether they will become the prevailing form in the future; it is far more time consuming to listen to or watch audio or video recordings than to read a written record. Hence, as summarised or v­ erbatim written evidential records generated through police and prosecutorial investigative interviews are widespread and common, and in view of the fact that they are likely to remain the most common recording technique in the future, I begin with an attempt to evaluate this recording technique with respect to the traditional principles of orality and immediacy. Whilst slightly comparative, the focus is on Switzerland as an example of a rather inquisitorial criminal law jurisdiction (section II. A.), and on the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights (ECHR) (section II. B.). I then go on to draw attention to Swiss academic opinion and jurisprudence as an example of the reasoning behind the production of written records within an inquisitorial criminal law system as an instrument for safeguarding the fairness of criminal proceedings (section III.). Finally, I explain how written records could potentially turn into obstacles to fairness (section IV.), and subsequently analyse the use of written records in the decision-making process (section V.) before drawing conclusions (section VI.). II.  IS DIRECT KNOWLEDGE REQUIRED INSTEAD OF READING AUTHORITY-GENERATED WRITTEN RECORDS?

A.  Written Records and the Principles of Orality and Immediacy Written records are a particularly important component of criminal case files. Once ‘preserved’, ie made permanent, written records can be recycled at every stage of the legal process, from the very first police questioning up until the final judgment.3 479, 524 N 301; RA Leo, Police Interrogation and American Justice (Harvard, Harvard University Press, 2008) 237, 291–305; RA Leo et al, ‘Promoting Accuracy in the Use of Confession Evidence: An Argument For Pretrial Reliability Assessments to Prevent Wrongful Convictions’ (2013) 85 Temple Law Review 759–838; American Bar Association (ABA), ‘Achieving Justice: Freeing the Innocent, Convicting the Guilty: Report of the ABA Criminal Justice Section’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process’ (Paul C Giannelli and Myrna S Raeder, eds, 2006) reprinted in (2008) Southwestern University Law Review 763, 11–22; The Justice Project, Electronic Recording of Custodial Interrogations: A Policy Review (2007). In 2014, the Department of Justice outlined new policies related to electronic recording, establishing a presumption in favour of electronically recording custodial interviews, with certain exceptions, and encouraging agents and prosecutors to consider taping outside of custodial interrogations. A slight move towards electronic recording can also be observed in continental European countries such as Germany, Switzerland and France: see, eg, A Nack et al, ‘Gesetzesvorschlag der Bundesrechtsanwaltskammer zur Verbesserung der Wahrheitsfindung im Strafverfahren durch den verstärkten Einsatz von Bild- und Tontechnik’ (2011) Neue Zeitschrift für Strafrecht 310; N Capus and M Stoll, ‘Lesen und Unterzeichnen von Einvernahmeprotokollen im Vor- und im Hauptverfahren’ (2013) Schweizerische Zeitschrift für Strafrecht 195; J Beaume, Rapport sur la procédure pénale « Rénovation de la procédure de l’enquête pénale », Report for the Minister of Justice (July 2014). 3 K Aronsson, ‘Social Interaction and the Recycling of Legal Evidence’ in N Coupland et al (eds), ‘­Miscommunication’ and Problematic Talk (Newbury Park, Sage Publications, 1991) 215, 238.

Written Records of Statements and Fairness 207 In many European jurisdictions, the court is presented with written records from the prosecution or the police of suspect or witness interviews. Because judges in civil law jurisdictions are assigned an active role, written records are regarded as suitable documents to allow the judges to prepare and familiarise themselves with the ­pre-trial records of the case file in advance.4 Continental judges may cite a witness to attend the trial, but will then question and weigh the oral testimony against the written records of previous statements. Similarly, they will also confront defendants with what they have said in their previous statements, according to the written record.5 Criminal law judges in civil law jurisdictions might even make decisions based exclusively on the written material, including the written records of previous statements, without hearing witnesses themselves.6 Indeed, written records take on even greater importance in criminal proceedings in which the principles of orality and immediacy are not strongly practised.7 In both common and civil law jurisdictions, the principles of orality and immediacy at the trial stage have traditionally been seen as an important way of countering the risk of imbalanced decision making, allowing judges to arrive at their own conclusions in an undistorted manner. The primacy of oral statements is intended to protect oral statements against the authority of written documents at the trial. However, both systems have undergone major changes within the last 30 years, in that oral (public) trials occur less frequently.8 This is not to say that common law jurisdictions adhere to the dossier (case file) system, which is the hallmark of inquisitorial or mixed justice systems.9 However, an American judge, for example, must read the confessions in the written records of police interviews as well formally endorse a plea bargain procedure,10 which is the procedure applied in the majority of criminal cases in the Anglo-American criminal justice ­system.11 In addition, within other common law jurisdictions without a dossier system, such as ­England and Wales,12 criminal law proceedings also comprise of a series of procedural events, which are basically linked by practices of reading and writing.13 Thus, while the orally staged testimony at trial is decisive, it is ­nevertheless variously

4  B Schuenemann and W Bandilla, ‘Perseverance in Courtroom Decisions’ in H Wegener et al (eds), Criminal Behavior and the Justice System: Psychological Perspectives (New York, Springer, 1991) 181; R Grunewald, ‘The Narrative of Innocence, or, Lost Stories’ (2013) 25 Law & Literature 366, 371, 381. 5  M Komter, ‘The Suspect’s Own Words: The Treatment of Written Statements in Dutch Courtrooms’ (2002) 2 Forensic Linguistics 168. 6 M Komter and M Malsch, ‘The Language of Trials in an Inquisitorial System: The Case of the ­Netherlands’ in P Tiersma, L Solan (eds), The Oxford Handbook of Language and the Law (Oxford, Oxford University Press, 2012) 408–409. 7  S Trechsel, Human Rights in Criminal Proceedings (Oxford, University Press, 2009) 305. 8  J Jackson and S Summers, The Internationalisation of Criminal Evidence Beyond the Common Law and Civil Law Traditions (Cambridge, Cambridge University Press, 2012) 28. 9  Blackstock et al (n 1) 84. 10  Grunewald (n 4) 369. 11  J Jedick, ‘A Change in the Environment of Plea Bargaining: Using the Inspiration of A ­ dministrative Procedural Safeguards Like NEPA to Add Process Protections’ (2014) Washington University Law Review 1325. 12  Blackstock et al (n 1) 362. 13  T Scheffer, ‘The Microformation of Criminal Defense: On the Lawyer’s Notes, Speech Production, and a Field of Presence’ (2006) 39 Research on Language and Social Interaction 303; T Scheffer, ‘The Duplicity of Testimonial Interviews: Unfolding and Utilising Multiple Temporalisation in Compound Procedures and Projects’ (2007) 8 Forum Qualitative Sozialforschung Art 15; T Scheffer et al, Criminal

208  Nadja Capus bound to written documents. The written mode prevails throughout the pre-trial, and the paper trail enters the trial in adversarial systems.14 Evidence introduced orally at trial is received with distrust, as is clearly revealed in the case law in ­England and Wales where courts are allowed to draw adverse inferences when suspects do not tell the police during the investigative interview a fact later relied upon by the defence at trial.15 Although tape recording has become mandatory with the introduction of the Police and Evidence Act in 1984,16 it is established that the written format does prevail in practice. Indeed, once produced, the ‘transcript’—not entirely verbatim17—is admissible as a ‘copy’ of the original evidence (ss 133 and 134(1) Criminal Justice Act 2003), and audiotapes are rarely played; the written, rather than the taped version, is relied upon.18 Both parties read the written record and prepare their interventions under the impression of the written record. Furthermore, parties know that their counterpart disposes of the police protocol and will crossexamine the defendant or the witness based on the agreed-on version: ‘Barrister and client, instead of breaking new ground, perform the original story that came out of the documented police interview as binding for the upcoming trial’.19 The same working procedure between client and lawyer is visible in the French pre-trial phase. The (re)construction of what occurred is conducted by comparing current client statements with the written statements in the file: ‘[…] the pre-trial relationship of lawyer and client during judicial investigation is built up around the dossier with ­client and lawyer negotiating a way between the relative truths and realities as set out in it and as asserted by the client’.20 A shift has also occurred in international criminal trials, where changes in procedural rules allow written transcripts or statements to be introduced in lieu of oral testimony, and has resulted in the gradual ­erosion of the preference for oral testimony at trial.21 A thorough and empirical investigation of the practical application of the principles of orality and immediacy alongside concrete recording practices would be

Defence and Procedure: Comparative Ethnographies in the United Kingdom, Germany, and the United States (Houndmills, Palgrave Macmillan, 2010); T Scheffer, Adversarial Case-Making. An Ethnography of English Crown Court Procedure (Leiden, Brill, 2010). 14 Scheffer,

Adversarial (n 13) xxvi. O’Reilly, ‘England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice’ (1994) 85 Journal of Criminal Law & Criminology 402, 404 f; Blackstock et al (n 1) 79. 16 For empirical findings about this audio recording practice, see J Baldwin, ‘Police Interview ­Techniques. Establishing Truth or Proof?’ (1993) British Journal of Criminology 325; see also Blackstock et al (n 1) with regard to England and Wales, 75 and with regard to Scotland, 370 f where records are mainly written due to a lack of ‘tape-trained’ police officers. 17  K Haworth, ‘Police Interviews in the Judicial Process. Police Interviews as Evidence’ in M C ­ oulthard and A Johnson (eds), The Routledge Handbook of Forensic Linguistics (London, Routledge, 2010) 169–81, 172. 18  Haworth (n 17) 169–170; J Baldwin and J Bedward, ‘Summarising Tape Recordings of Police Interviews’ (1991) The Criminal Law Review 671–672. 19  Scheffer, ‘The Microformation’ (n 13) 314. 20  S Field and A West, ‘Dialogue and the Inquisitorial Tradition: French Defence Lawyers in the ­Pre-Trial Criminal Process’ (2003) 14 Criminal Law Forum 261. 21  Y McDermott, ‘The Admissibility and Weight of Written Witness Testimony in International ­Criminal Law: A Socio-Legal Analysis’ (2013) 26 Leiden Journal of International Law 971; Jackson and Summers (n 8) 126. 15  GW

Written Records of Statements and Fairness 209 necessary to allow for an in-depth comparison amongst different countries to be conducted. Therefore, I will restrict my analysis to the law and practice of written recording in Switzerland. The criminal justice system of Switzerland is characterised as a hybrid system leaning towards the inquisitorial paradigm. Before the Federal Code of Penal Procedure (Schweizerische ­Strafprozessordnung, StPO) came into force in 2011, it was common in various Swiss cantons for live ­witnesses’ testimony to be substituted with summarised or verbatim written ­evidence. Following harmonisation on the federal level, the immediacy principle has been applied in an even more restrictive way in ordinary trials (Article 343 StPO): ‘The court shall only take new evidence and add to evidence already taken if it is ­incomplete’.22 Evidence already gathered by the police or the prosecutor shall only be taken again if it was not taken in the proper manner in the preliminary proceedings. Finally, evidence that was taken in the proper manner during preliminary proceedings might be taken again if direct knowledge of the evidence appears necessary to enable the court to reach a decision, for example because the credibility of the witness must be scrutinised or further inquiry is necessary.23 This practice is called the ‘restricted immediacy principle’.24 The Swiss practice shows quite clearly that many judgments, if not the majority, are based solely on written records. However, it must also be borne in mind that in many cases defence attorneys and prosecutors may be quite happy with the substitution of oral testimony with the written record. Indeed, the in-person appearance in court of the person testifying will not always be favourable, especially if a long period of time has elapsed. The giving of evidence is a high-risk matter in criminal proceedings, and both defence attorneys and prosecutors are often content to address the written version of the previous deposition—a version that is fixed and static. Finally, it must be considered that due to the current tendency to speed up criminal proceedings, records of investigative interviews become more important because in summary penalty order proceedings, prosecutors are entitled to reach a decision based on investigative interview records without conducting a hearing with the accused person.25 Obviously, the more judges rely on previous investigative interviews, the more important the written records become, and the more attention must be paid to questions such as how to ensure the reliable production and the diligent reception of written records.26

22  For example, with regard to a testimonial statement, the court might be of the opinion that the witness has not been questioned in relation to all relevant aspects; B Gut and T Fingerhuth, ‘Art 343’ in A Donatsch et al (eds), Kommentar zur Strafprozessordnung, 2nd edn (Zürich, Schulthess, 2014) N 27. 23 W Wohlers, ‘Die formelle Unmittelbarkeit der Hauptverhandlung: Notwendigkeit und Grenzen eigener Beweiserhebungen durch Strafgerichte’ (2013) 131 Schweizerische Zeitschrift für Strafrecht 318, 331, 333 f. 24  N Capus and P Albrecht, ‘Die Kompetenz zur Einvernahme im Vorverfahren’ (2012) f­ orumpoenale 361; P Albrecht, ‘Was bleibt von der Unmittelbarkeit?’ (2010) 128 Schweizerische Zeitschrift für ­Strafrecht 180; F Riklin, StPO-Kommentar, 2nd edn (Zürich, Orell Füssli, 2014) ‘Art 343’ N 1. 25  Given a confession or sufficiently clarified circumstances of the case, a further investigative interview is not necessary anymore; N Schmid, Handbuch des Schweizerischen Strafprozessrechts (Zürich, Schulthess, 2009) N 1357. 26 Report of the Swiss Government (Begleitbericht zur Vereinheitlichung für eine Schweizerische ­Strafprozessordnung) Bern 2001, 70.

210  Nadja Capus B.  Written Records in the Light of Article 6 ECHR Whether the right to a fair trial as guaranteed by Article 6 of the ECHR would be undermined by this type of evidence-taking, mediated through written records, is not clear. Article 6 ECHR guarantees everyone charged with a criminal offence a fair and public hearing; an independent and impartial tribunal; the presumption of innocence; the right to be informed promptly, in a language which they understand, and in detail of the nature and cause of the accusation; the right to defend themselves through legal assistance of their own choosing or, if they do not have sufficient means to pay for legal assistance, to be given free legal assistance when the interests of justice so require; to examine or have examined witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them; and to have the free assistance of an interpreter if they cannot understand or speak the language used in court. These are some of the basic fair trial guarantees which apply irrespective of whether the legal system of the country conforms to an adversarial model or an inquisitorial model. These guarantees constitute the minimum requirements for a trial. However, Article 6 ECHR does not explicitly say whether fairness is dependent on the direct knowledge of the testimony and whether the alternative—the written record of previous investigative interviews—meets the standards of fairness as well. The European Court of Human Rights insists, however, that evidence be examined at trial, and some commentators argue that this reflects the Court’s opinion that direct knowledge of testimonies is rooted in Article 6 ECHR.27 III.  WRITTEN RECORDS AS A GUARANTEE OF FAIRNESS

I will now describe the prevailing Swiss legal academic opinion and jurisprudence, according to which the function of written records is that they ensure the fairness of criminal proceedings. This legal point of view is based on the idea of reflection—the very foundation for using written records in criminal proceedings. According to this reflection approach, the spoken word is perceived as the ‘original’ version, which should be reflected as completely and literally as possible by the written record.28 A.  Written Records as a Means of Ensuring Judicial Control The following recorded information, in particular, is deemed to help ensure fairness: a written record should provide information about: —— the circumstances of the investigative interviews; —— in relation, for instance, to the person charged with a criminal offence, it should show that she or he has been informed promptly, in a language, which he or she 27 

Trechsel (n 7) 305. R Hauser et al, Schweizerisches Strafprozessrecht, 6th edn (Basel, Helbing Lichtenhahn, 2005) § 44 N 24a; J Aeschlimann, Einführung in das Strafprozessrecht (Bern, Haupt, 1997) N 723 ff; BGer 1P.399/2005 8 May 2006, E 3.1. 28 

Written Records of Statements and Fairness 211 understands, and in detail, of the nature and cause of the accusation against him or her (Article 6(3)(a) ECHR); —— that he or she was informed of the right to remain silent and to refuse to cooperate in the proceedings; and —— that he or she was informed of his or her entitlement to appoint a defence lawyer or if appropriate, to request the assistance of a duty defence lawyer as well as the assistance of an interpreter (Article 158, para 1 StPO, Article 6(3) (e) ECHR). Hence, according to criminal justice practice, written records provide a means of controlling whether the recorded investigative interviews have been conducted properly and also the manner in which the questioning was conducted (ie without undue pressure or suggestive questions). The written record can provide proof of any shortcomings regarding the aforementioned guarantees. Evidence obtained before a caution was provided, for instance, is inadmissible according to Swiss law (Article 158, para 2 StPO). Consequently, as it is presumed that written records allow for such control, they invoke the self-control of the interviewing persons. The same preventive effect is assumed of the reading and correction of the interviewee, an effect which is further enhanced by the fact that the interviewee must sign the record.29 In the literature, this preventive effect is called the ‘psychological effect’.30 B.  Written Records and the Right to be Heard The Swiss Federal Court has showed consistency in ruling that the duty to record investigative interviews is not only rooted in the legal duty to document all procedural steps not conducted in writing (Article 76, para 1 StPO) and to provide access to files, but also makes up part of the fundamental right to be heard according to Article 29, para 2 of the Swiss Constitution (Bundesverfassung der Schweizerischen Eidgenossenschaft, BV).31 In fact, the underlying idea is that all participants in criminal proceedings should not become objects of the procedure, but should remain subjects.32 Hence, as a free subject, the person subjected to an investigative interview is to be able to articulate what he or she wants to say, exercise the rights that are guaranteed to him or her and be capable of understanding the proceedings.33 One important aspect of this right to be heard is in fact to offer suspects the ability to express in their own words the facts that seem important to them. It seems natural to assume that interviewed persons tell their story.34 However, story-telling in c­ riminal

29 

Capus and Stoll (n 2) 205. Hauser, ‘Die Protokollierung im schweizerischen Prozessrecht’ (1966) 82 Schweizerische Zeitschrift für Strafrecht 158–159. 31  BGE 130 II 473 E 4.2; 124 IV 389 E 3; Capus and Stoll (n 2) 210; Y Jeanneret and A Kuhn, Précis de procedure pénale (Bern, Stämpfli, 2013) N 4056 referring BGE 126 I 15, E 2. 32  A Donatsch et al, Strafprozessrecht, 2nd edn (Zürich, Schulthess, 2014) 23 f. 33  PJA Ritter von Feuerbach, Betrachtungen über die Öffentlichkeit und Mündlichkeit der Gerechtigkeitspflege (Giessen, GF Heyer, 1821) 295. 34  E González Martínez, ‘Just Telling What is Going to Happen: The Initial Phase of a Judicial Social Investigation Interview’ (2011) 50 Nottingham French Studies 154, 161. 30 R

212  Nadja Capus proceedings is a sophisticated task. Stories are not just told by one person, but are interactively constructed and, in criminal proceedings, told in an institutional s­ etting. Stories are also not voluntarily told, with the questioner—policeman, prosecutor or judge—becoming a co-author.35 The actors must communicate effectively with one another, and many of the rules governing speech and action in a criminal proceeding are foreign to the central participants, ie the witness, the suspects or the accused person.36 Written records are very close to the social practice of story-telling and simultaneously fulfil various legal requirements; in view of this they can be regarded as constituting a core element in the necessary intermediation process between legal and social practices.37 Written records add an additional dimension to this story-telling setting: the story is not only being told to the people present at the investigative interview. There are always invisible others because the written version of the deposition will subsequently be distributed to others, such as the prosecutor or the judge. Hence, the particular setting is such that the stories are not only being spoken, but are also being recounted to be written down.38 The procedure of writing is at least the obvious signal that this is going to happen. The communication itself is conducted in an artificial way to ensure the quality of the written version of the communication: the protocol includes interruption, deceleration, repetition and even language changes in the German-speaking part of Switzerland from Swiss German to High German. The writing is interwoven with the speech. Given the fact that the record is taken in the context of this laborious procedure, the person being interrogated becomes aware of the invisible audience, the importance of his or her oral account, and the fact that certain things are selected and recorded while others are left aside. Thus, written records disclose to some extent the dual nature of investigative interviews because interviews in criminal proceedings are not only aimed at gathering information in the interview situation but also account for the manner in which they are later received. This gathering of information involves decisions about the inclusion or exclusion of information in the written record and the manner of presentation. The interviewer can thereby coordinate the interviewing style and the manner of record-taking following his or her specific objectives.39 Consequently, the aforementioned rule that written records must be read and signed by those being interrogated is apparently intended to make them aware of the receptive perspective and to allow them to control to some extent the manner in which the interview in the

35  TC van Charldorp, From Police Interrogations to Police Records (Oisterwijk, Uitgeverij BOXPress, 2011) 117 f. 36 L Bennett, ‘Storytelling in Criminal Trials: A Model of Social Judgment’ (1978) The Quarterly Journal of Speech 1, 1. 37  If not a social act in itself such as the ‘speech act’; see, with reference to the general act of documentary work, B Smith, ‘How to Do Things with Documents’ (2012) Rivista di Estetica 1–2 f. 38  van Charldorp (n 35) 119. 39  W Holly, ‘Der doppelte Boden in Verhören. Sprachliche Strategien von Verhörenden’ in W Frier (ed), Pragmatik. Theorie und Praxis (Amsterdam, Rodopi, 1981) 275 ff.

Written Records of Statements and Fairness 213 written version is being presented. It is, however, difficult if not impossible to control and compare the written version with what was effectively said.40 IV.  TURNING POINTS: UNDER WHICH CIRCUMSTANCES DO THE PRODUCTION OR RECEPTION OF WRITTEN REPORTS CONSTITUTE OBSTACLES TO FAIRNESS?

In the previous section, it was argued that according to Swiss criminal justice practice and legal thinking, good written records may substitute oral testimonies without impacting on fairness—in contrast, they might even have the potential to enhance fairness. However, written records could also turn at some point into obstacles to fairness. In the following subsections, I will exemplify how written records could potentially turn into obstacles to fairness, first, in the context of the production of written records, and second, in relation to their use as evidence. A.  Obstacles to Fairness within the Production of the Written Record Considering the aforementioned importance of records for the right to be heard and the power of the clerk or interviewer to construct a certain recording style, as well as the important probative function of written records, it follows quite naturally that the production should be as authentic as possible. However, the production of written records is undoubtedly influenced by expectations concerning the manner in which the documents are likely to be used: the interviewer anticipates the type of information that the prosecutor or the judge will need to make his or her decision about further investigation, the indictment or the discontinuation of the case.41 Hence, even if the interviewer is not in charge of writing the record him or herself, he or she will generally follow this process very closely and control the information that will be recorded and subsequently incorporated into the proceedings.42 Such anticipation of the future needs of the evidence-gathering process and the discontinuation of the proceedings is one (although not the only) source of various modifications, leading to a distorted picture of the investigative interview.43

40 See, for critics of this fiction especially related to the supposed verification of the cautioning, N Capus, M Stoll and D Studer, ‘Die Belehrung über das Schweigerecht. Ein leeres Versprechen?’ (2016) 1 Monatsschrift für Kriminologie 42. 41  E González Martínez, ‘The Interweaving of Talk and Text in a French Criminal Pretrial Hearing’ (2006) 39 Research on Language and Social Interaction 229; M Komter, ‘La construction de la preuve dans un interrogatoire de police’ (2001) 48 Droit et société 367; R Lévy, ‘Scripta manent: la rédaction des procès-verbaux de police’ (1985) 4 Sociologie du travail 408; T Scheffer, ‘Übergänge von Wort und Schrift: Zur Genese und Gestaltung von Anhörungsprotokollen im Asylverfahren’ (1998) Zeitschrift für Rechtssoziologie 230. 42  van Charldorp (n 35) 203 ff. 43 J Banscherus, Polizeiliche Vernehmung: Formen, Verhalten, Protokollierung (Wiesbaden, BKA Forschungsreihe, 1977) 86 f.

214  Nadja Capus For instance, written records might include precise information about the location of the offence that was not part of the conversation44 or information about the suspect’s psychosocial situation. Conversely, the events leading up to the criminal act that might be considered important from a real-life perspective might be given less weight in the written record because from the perspective of the police, they are not of relevance to the evidence-gathering procedure.45 In short, many empirical studies have identified processes of selection and modification of statements.46 In this context, it must be underlined that the competence to control what is included in or excluded from the written recorded rests one-sidedly upon the police or the prosecution, thereby seriously undermining the control of the judiciary. The above-mentioned duplicity has the effect that the interviewee might think that he or she is being questioned ‘here and now’, while at the same time the interviewer is feeding the wider process with durable discursive facts.47 Discourse is thereby circulated and used at different stages of the proceeding, in different contexts. This context can taint people’s perceptions and judgements, and the mere fact of the changes of format (from spoken word to text) and of the movement from the police interrogation room to the courtroom, presumably affects the integrity of the evidence.48 B. Obstacles to Fairness in the Use of the Written Record (as Evidence): Signs of Hazards to Fairness In the use of the written record as evidence, there are various details and potential hazard signs that should be considered with regard to possible negative impacts on fairness. i.  Modified Presentation of the Interaction The presentation of the interaction in the written record is a powerful instrument for framing statements. For instance, questions are not always typed fully— or typed at all. The lack of knowledge of the interviewer’s questions obscures the intended meaning of the answers and leads to opacity as the input of the interviewer is omitted. The same opacity occurs when questions and answers are interwoven, ie the question-answer-pair ‘Did you then take this knife from the table?’ ‘Yes’ appears then, for example, as one sentence: ‘Then, I took the knife from the table’.

44  F Rock, ‘Witnesses and Suspects in Interviews. Collecting Oral Evidence: The Police, the Public and the Written Word’ in M Coulthard and A Johnson (eds), The Routledge Handbook of Forensic ­Linguistics (London, Routledge, 2010) 126, 136. 45  L Jönsson and P Linell, ‘Story Generations: From Dialogical Interviews to Written Reports in Police Interrogations’ (1991) Text 419, 436. 46 See, for an overview of the state of research, N Capus et al, ‘Protokolle von Vernehmungen im Vergleich und Rezeptionswirkungen in Strafverfahren’ (2014) 34 Zeitschrift für Rechtssoziologie, 225. 47  Scheffer, ‘The Duplicity’ (n 13) para 2. 48  Haworth (n 17) 169 f even uses the wording ‘contamination’ of verbal evidence. See also S Kassin et al, ‘The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions’ (2013) 2 Journal of Applied Research in Memory and Cognition 42 speaking about ‘forensic confirmation biases’.

Written Records of Statements and Fairness 215 This ­process might result in the impression that the interviewee told his or her story smoothly and—when conducted excessively—in a narrative style, a fluent monologue. In ­Switzerland, for instance, this type of record was produced by the examination judges (juges d’instruction) in the French-speaking Cantons of Vaud and Geneva: the questioning appears entirely as a monologue on the part of the interviewee. ii.  Language Issues Studies have uncovered a tendency for vague statements and expressions m ­ arking insecurity (‘I do not exactly remember’, ‘perhaps’) to be excluded from written records, contrary to elements supporting the coherence of the story.49 This can have the effect of considerably changing the language and speech style. For instance, the person taking the record can include a blunt verbal statement literally without making changes, or he or she can make the person speak fluently and correctly in a standardised language.50 Moreover, speech pauses, pause fillers (such as ‘uh’, ‘am’, ‘ah’), break-off sentences and repetitions are usually not mentioned in written records. A written version of the investigative interview without signs of hesitation and problems of verbalisation implies that vague indications might have been transformed into precise information.51 The same results were obtained from omitting vague statements. In contrast to verbal speech, statements in written form are more clearly structured and presented in chronological order. Written records are limited in their ability to capture prosodic features (eg, volume and speed of the voice) and non-verbal communication (eg, laughing or shaking of the head).52 Because such information is largely missing in written records, they are less emotional compared to verbal speech.53 The importance of these modifications regarding the potential of written records to turn into obstacles for fairness in criminal proceedings becomes clear when considering that even the writing style and formal features of the written record itself (leaving aside the unequal level of information in the written record compared to the real investigative interview or to its audio or video recording) has an impact on the perception of the investigative interview, the interrogator and the interviewee. To understand the impact of writing styles and formal features of the written record on the perception and subsequent decision-making procedure, an interdisciplinary research group at the law faculty of the University of Basel sent various styles of the same police interrogation record to 2691 judges in Switzerland; 645 persons

49 

Jönsson and Linell, (n 45) 431 f; Scheffer (n 41) 253 f. D Eades, ‘Verbatim Courtroom Transcripts and Discourse Analysis’ in H Kniffka et al (eds), Recent Developments in Forensic Linguistics (Frankfurt am Main, Peter Lang, 1996) 241; J de Keijser et al, ‘Written Records of Police Interrogation: Differential Registration as Determinant of Statement Credibility and Interrogation Quality’ (2012) 18 Psychology, Crime & Law 613; Jönsson and Linell (n 45) 429; AG Walker, ‘Language at Work in the Law: The Customs, Conventions, and Appellate Consequences of Court Reporting’ in JN Levi and AG Walker (eds), Language in the Judicial Process (New York, Springer, 1990) 203, 217 f. 51  Jönsson and Linell (n 45) 431. 52  Walker (n 50) 208. 53  Jönsson and Linell (n 45) 432. 50 

216  Nadja Capus participated in this study (24 per cent).54 All of the judges received a questionnaire and a short case description, in which it is stated that the interrogation was led by a Swiss-German speaking policeman and that the written record (a real one) is ­written in German. The policeman interrogates a man. His wife—from whom he lives separately—has filed charges of bodily harm/ injury. According to her, the assault occurred a few weeks earlier while she was handing over the children. The original written record was distributed randomly to one group of judges. It contains the following sequence: Q: In addition, the files say that your wife prepared herself to face a further attack by adopting a ‘kickboxing’-position. You‘re reproted to have grabbed her foot and pushed her backwards. What do you say about that? A: Rubbish. She came at me with a stretched foot towards me. I was able to catch the fot and to push it aside. Thereupon she hit the floor.

This written record includes questions and answers, grammatical errors and a few other mistakes (‘reproted’ instead of reported; ‘fot’ instead of foot) in the writing as well as some informal language (‘hit the floor’ instead of ‘fell to the ground’). Another group of judges received a version of the record in the monologue style used in some Swiss cantons: in this style of transcript, the questions are interlaced into the answer of the interrogated accused person, so it finally appears as a type of monologue. The tone is rather official and institutional (‘You’re telling me …’), and features ‘re-contextualisation phrases’ that give the records a static and official style:55 You’re telling me that the files state that my wife prepared herself to face another attack from me and for this reason adopted a ‘kickboxing’-position and I‘m reported to have pushed her backwards. This is rubbish. She came at me with a stretched foot. I was able to catch the foot and to push it aside. Thereupon she fell to the ground.

A third group received a dialogue that was similar to the original, but the manner of the investigative interview has been enhanced; that is, the staging of the questions is more confrontational, such as ‘I don’t believe you …’: Q: I don’t believe you. Your wife describes the situation in a totally different manner: you’re saying that she attacked you with shear force. But your wife has stated that you attacked her first and that the ‘kickboxing’-position was a preventive measure in order to repel further attacks from you. You then took her foot and pushed her backwards, whereupon she fell to the ground. A: Rubbish …

Preliminary results show that when the interrogator presents him or herself as being harsh (in the confrontational style of dialogue), judges assess the fairness and competence of the investigative interview in a significantly less positive manner. With regard to the interviewee, the judges rated his credibility significantly lower when reading a confrontational style written record. In general, we concluded that indeed

54  N Capus and F Hohl Zürcher, ‘Einvernahmeprotokolle: Der Stil beeinflusst die Richter’ (2014) 32 Plädoyer 30. 55  See also van Charldorp (n 35) 86 ff.

Written Records of Statements and Fairness 217 even formal features of written records led to changes in the perception of its ­readers. Hence, written records are powerful instruments for casting oneself as the interrogator and the manner of the investigative interview, rather than for representing the person being interrogated. V.  THE USE OF WRITTEN RECORDS

As already mentioned, written records serve as pieces of evidence. In particular, when written by officials from criminal justice institutions, they are afforded a certificated status.56 Moreover, this status is enhanced by the fact that the interviewee is asked to counter-check and to sign the record (see section III. A.). In concrete terms, there are two documentary evidence assumptions at work: a negative and a positive one. According to the negative documentary evidence assumption, it is imperative that what is not recorded is undone (quod non est in actis non est in mundo).57 To overrule this assumption, one would have to prove the contrary, ie that something occurred or did not occur, even though it is otherwise recorded. According to the positive documentary evidence assumption, the real course of action is considered as having been recorded.58 This fictional approach is supported by the idea that records provide a one-to-one reflection of the events that occurred during the investigative interview. In fact, at least according to practice recommendations and law books, minute takers and clerks are asked to provide—even though it may not be complete— an unbiased account of the interview.59 These assumptions have the potential to turn (the use of) written records into obstacles to fairness. Indeed, against this background, it is unfair to bind the person being interrogated in such a strict way as required by the legal rules and scholars. By signing the written record, the interviewee declares that the record correctly reflects the statements made60—although in the asymmetrical setting in which investigative interviews are conducted, only a few clients are up to the task of counter-checking effectively and correcting the record (that is to demand that corrections be made) before signing.61 However, once the record has been signed, it is extremely difficult to appeal against the written record; if the interview claims, for instance, to have been ‘verballed’, he 56  A Steinwenter, Beiträge zum öffentlichen Urkundenwesen der Römer (Graz, Verlag von Ulr. Mosers Buchhandlung, 1915) 56. 57  N Capus, ‘Schriftprotokolle im Strafverfahren: “der todte Buchstabe ist noch immer nicht das lebendige Wort selbst"’ (2012) 6 Basler Juristische Mitteilungen 173, 188–90; J Estermann, ‘Quod non et in actis non est in mundo. Standards und Modi der Sachverhaltsfeststellung in gerichtlichen Verfahren’ in J ­ Estermann (ed), Interdisziplinäre Rechtsforschung zwischen Rechtswirklichkeit, Rechtsanlayse und Rechtsgestaltung. Beiträge zum Kongress in Luzern (Beckenried, Orlux Verlag, 2009) 180–181; C ­Vismann, Akten. Medientechnik und Recht (Frankfurt am Main, S. Fischer Verlag, 2000) 89. 58  Hauser (n 30) 180; P Naepfli, Das Protokoll im Strafprozess unter besonderer Berücksichtigung des Entwurfs zur Schweizerischen Strafprozessordnung und der Zürcher Strafprozessordnung (Visp, RottenVerlag, 2007) 2 f; Aeschlimann (n 28) 205; Capus (n 57) 188; Capus and Stoll (n 2) 206. 59  E Eschenbach, ‘Die Kunst des Protokollierens’ (1958) Kriminalistik 86; Capus and Stoll (n 2) 207. 60 U Donk, ‘Als ob es die Wirklichkeit wäre. Die formale Sicherung polizeilicher Beschuldigten-­ Protokolle’ in J Reichertz and N Schroeer (eds), Polizei vor Ort. Studien zur empirischen Polizeiforschung (Stuttgart, F. Enke, 1992) 85, 103. 61  van Charldorp (n 35) 17 ff.

218  Nadja Capus or she bears the risk of being assessed as lacking credibility.62 The consistency of depositions is of high value in criminal proceedings: changing previous statements is closely connected with the risk that the credibility of the person or if her or his deposition is lowered, and judges lose faith in the validity of the written statement. Deviating from previously recorded statements is therefore often to the person’s own disadvantage.63 Moreover, as stated above, the refusal to sign the record does not have the consequence that the written record becomes an inadmissible piece of evidence: by simply recording the refusal to sign, the refusal itself becomes incorporated, and the probative function of the document is not affected. The relevance given to the written records is also reflected in the fact that judges directly cite previous statements—even though the interviewed person did not type that statement, did not choose the words used, did not decide or realise what was included and what was excluded, and either might not have appreciated the significance of the word choices and omissions or could have been too resigned and overcome with mental fatigue to challenge the detectives. In spite of this, our own research indicates that judges consider written records to constitute useful instruments in assessing the credibility of statements and the credibility of the person who was interrogated. This is rather disturbing from a scientific point of view when we consider the whole process that occurs from spoken word to text! Uniquely relying on the credibility of the written records is highly problematic and unfair because converting a complex investigative interview into a written form within a short time is a very challenging process. As already exemplified above, empirical research has identified processes of selection and modification during transformations from spoken word to text.64 Moreover, psychologists emphasise that while the evaluation of the credibility of statements is possible to a certain extent, this must be performed exclusively on the basis of direct interviews, audio records or verbatim transcripts.65

62  M Coulthard, ‘The Official Version: Audience Manipulation in Police Records of Interviews with Suspects’ in CR Caldas-Coulthard and M Coulthard (eds), Texts and Practices: Readings in Critical ­Discourse Analysis (London, Routledge, 1996) 166–167. 63  N Luhmann, Legitimation durch Verfahren (Frankfurt am Main, Suhrkamp, 1969/1983) 44 f, 93 f. 64  R Cauchi and MB Powell, ‘An Examination of Police Officers’ Notes of Interviews with Alleged Child Abuse Victims’ (2009) 11 International Journal of Police Science and Management 505; M ­Coulthard, ‘Whose Voice Is It? Invented and Concealed Dialogue in Written Records of Verbal ­Evidence Produced by the Police’ in J Cotterill (ed), Language in the Legal Process, 3rd edn (Basingstoke, Palgrave Macmillan, 2004) 19; G Hyman et al, ‘A Comparison of US Police Interviewers’ Notes with their Subsequent Reports’ (2011) 8 Journal of Investigative Psychology and Offender Profiling 203; Komter (n 41) 367; ME Lamb et al, ‘Accuracy of Investigators’ Verbatim Notes of their Forensic Interviews with Alleged Child Abuse Victims’ (2000) 24 Law and Human Behaviour 699; M McLean, ‘Quality Investigation? Police Interviewing of Witnesses’ (1995) 35 Medicine, Science and the Law 311; R Lévy, ‘Scripta manent: la rédaction des procès-verbaux de police’ (1985) 4 Sociologie du travail 408; F Rock, ‘The Genesis of a Witness Statement, Forensic Linguistics, the International Journal of Speech’ (2001) 8 Speech, Language and the Law 44; Rock (n 434) 126; AG Walker, ‘Context, Transcripts and Appellate Readers’ (1986) 3 Justice Quarterly 409; Walker (n 50) 203. 65 V Kling, ‘Das fachgerechte Glaubhaftigkeits-Gutachten’ (2003) Aktuelle Juristische Praxis 1116; R Ludewig, D Tavor and S Baumer, ‘Wie können aussagepsychologische Gutachten Richtern, Staatsanwälten und Anwälten helfen?’ (2011) Aktuelle Juristische Praxis 1415, 1426.

Written Records of Statements and Fairness 219 VI. CONCLUSION

Without any doubt, the mode of record-taking can be decisive for the outcome of criminal proceedings and this can result, taking account of the various reasons that have been explored above, in unfairness. Moreover, a series of studies have shown that the way in which statements are recorded strengthens the position of law enforcement parties and weakens the position of the defence.66 In fact, recordtaking can even result in wrongful convictions, as was for example revealed by the Investigation Committee on the French Outreau case, in which criminal proceedings resulted in six wrongful convictions. The public became aware of the status of oral words in criminal proceedings, and scholars warned that if the status of oral words was not thoroughly reformed, situations similar to the Outreau case were likely to occur in the future.67 From the analysis, it follows that in relation to the impact of written records on the decision-making procedure of judges—the way in which the records are constructed, used, and impact on the perception of judges—the most basic principles of the fairness of the proceeding are at stake: the principle of impartiality and the separation of powers. There is no impartial decision-making on the part of judges if the ­decision-making process relies exclusively on the prosecutorial gathering of evidence because the gathering and appreciation of the evidence are accordingly mainly police- or ­prosecution-oriented.68 Although the law does foresee that suspects and their defence attorneys are allowed to counter the police and prosecutorial work, it is often not possible or even not reasonable from a defence point of view to react too actively before the indictment reveals the prosecutorial material. Hence, it is up to the court to ensure the revelation of the counter story during the trial and provide, in doing so, a fair and solid basis for judgment. It can be concluded that more empirical studies on the manner in which criminal proceedings are conducted and investigative interviews are produced and used are needed. Legal provisions regulating the writing of records should be based less on assumptions and speculation and more on the findings of empirical studies. Innovation with regard to the production of written records is restricted, but the use of written records as evidence should definitely be carefully rethought.

66  Coulthard (n 62) 166; Haworth (n 17) 173; A Hooke and J Knox, ‘Preparing Records of Taped Interviews’ (1995) Great Britain Home Office Research and Statistics Department Research Findings 1, 4 (prosecution bias, in particular when police officers instead of civilians typed the record); Jönsson and Linell (n 45) 437 f. 67  E Serverin and S Bruxelles, ‘Enregistrements, procès-verbaux, transcriptions devant la Commission d’enquête: le traitement de l’oral en questions’ (2008) 55 Droit et cultures 149–80, 149; For an account of similar miscarriages of justice in the UK, see Coulthard (n 62) 166–78. 68  A Kaufmann, Das Unmittelbarkeitsprinzip und die Folgen seiner Einschränkung in der Schweizerischen Strafprozessordnung (Zürich, Schulthess, 2013) 61 ff; additionally, this ‘affirmation bias’ has to be considered following Schuenemann and Bandilla (n 4) 181–92; Kassin et al (n 48) 42–52.

220 

12 Regulating and Limiting Plea Concessions: Towards Fairness in Charge Adjudication RICHARD L LIPPKE*

T

HE RIGHT TO trial is a fundamental procedural right, one that is ubiquitous in international human rights documents and in the constitutions, or longaccepted legal practices, of many countries.1 Public trials during which the state must present strongly convincing evidence of guilt of the individuals accused of crimes, while permitting the accused (with the aid of defence counsel) to challenge that evidence or present evidence of their innocence with respect to the charges, serve a number of important purposes. First and foremost, they assure us that basic legal rights cannot be curtailed by legal punishment without fair and rigorous public demonstrations that doing so is justified. It is not only the accused who have vital interests in such demonstrations; all of us, as persons who might one day be accused of crimes, or who are committed to the value of securing and honouring the basic rights of persons, share that interest. Second, public trials serve as crucial safeguards against carelessness, corruption, or malevolence in the exercise of state power. Knowing that the formally accused can force them to account for their actions in a formal, public setting, criminal justice officials will be less inclined to proceed arbitrarily or irresponsibly as they arrest or investigate individuals. Third, public trials, with their elaborate structures and procedures, protect the dignitary interests of the accused. Even if they are guilty as charged, the accused know, as do all of us, that they must be treated and addressed as persons who might have stories to tell about the accusations against them and who must not be punished unless a full airing of all of the evidence warrants a conclusion that they are guilty beyond a reasonable doubt. In spite of their serving such signally important interests, it is apparent that criminal trials are something of an endangered species. This is most spectacularly true in the United States, where upwards of 95 per cent of the persons accused *  My thanks to John Jackson and Sarah Summers for including me in the workshops that facilitated discussion of this paper at the University of Zurich and University of Nottingham. Also, thanks to the other participants in the workshops for their helpful comments on earlier versions of this paper. 1  See Universal Declaration of Human Rights, Art 10; International Covenant on Civil and Political Rights, Art 14; European Convention on Human Rights and Fundamental Freedoms, Art 6 and United States Constitution, Art III and Amend 6.

222  Richard L Lippke of crimes waive the right to trial and plead guilty in exchange for a variety of government concessions with regard to their punishment.2 Though plea concessions take robust and negotiable form in the United States, they exist in more modest and rule-constrained forms in many other countries.3 Even in Germany, where guilty pleas are not permitted, the willingness of the accused to admit their guilt can lead prosecutors to drop charges in minor cases (in exchange for which, the accused make contributions to charities) or can result in abbreviated trials, ones in which the state’s evidence is tested, albeit perhaps, not as rigorously.4 Historically, we have seen a shift from conceiving of the right to trial as one that the accused were compelled to exercise, or at least strongly encouraged not to waive, to a right that is exercised or not, to some extent or other, at the discretion of the accused.5 Accompanying this shift has been another one: While trials are public events in which the evidence for and against the accusations lodged by state authorities is brought forward for all to see, non-trial adjudication, or plea bargaining as it is more often known, is a more opaque process.6 Especially in the United States, where plea negotiations occur concerning sentences, charges, and even the facts of cases, these negotiations are usually cloaked until the final details are approved in brief and mostly perfunctory hearings before judges (known as ‘plea colloquies’).7 As a result, much less is made known to the public about the crimes of which persons were suspected or accused, the evidence for those crimes possessed by the authorities, and why adjudication outcomes took the final forms they did. Even the judges who oversee plea colloquies can be, to a considerable extent, kept in the dark about how the deals they approve came into being. Moreover, it is clear that in the negotiations that determine adjudicative outcomes, prosecutors generally have the upper hand. Their main trump card is the threat of longer sentences—and sometimes much longer ones—played against accused persons who might be reluctant to plead. Prosecutors can also manipulate process costs, particularly in the form of pre-trial detention, to convince the recalcitrant to see the virtues of admitting their guilt.8

2  More precisely, in the US federal courts, over 97% of accused persons plead guilty; in state courts, over 95% plead guilty. See SR Klein, ‘Monitoring the Plea Process’ (2013) 51 Duquesne Law Review 559, 561. 3  See Y Ma, ‘Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy’ (2002) 12 International Criminal Justice Review 22; M Langer, ‘From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure’ (2004) 45 Harvard International Law Journal 1; and JI Turner, Plea Bargaining Across Borders: Criminal Procedure (New York, Aspen Publishers, 2009). 4  See Turner (n 3) 73–136. 5  In the early history of the US, accused persons were discouraged from pleading guilty. On this, see A Alschuler, ‘Plea Bargaining and Its History’ (1979) 79 Columbia Law Review 1, 5. 6  JH Langbein, ‘On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial’ (1992) 15 Harvard Journal of Law and Public Policy 119, 124; S Bibas, ‘Plea Bargaining Outside the Shadow of Trial’ (2004) 117 Harvard Law Review 2463, 2475. 7  On so-called ‘fact bargaining’ and the difficulties it presents for judges overseeing plea bargained outcomes, see NJ King, ‘Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment’ (2005) 58 Stanford Law Review 293. 8  MM Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court (New York, Russell Sage, 1979) 201–08; J Bowers, ‘Punishing the Innocent’ (2007) 156 University of Pennsylvania Law Review 1117, 1132.

Regulating and Limiting Plea Concessions 223 All of these features of negotiated outcomes seemingly render them ill-suited to fulfil the vital functions of criminal trials. Instead of orderly, rule-governed public rituals during which the evidence for and against the accused with respect to charges formally lodged by prosecutors is the key to adjudicative outcomes, or is supposed to be, we have adjudicative outcomes whose origins are obscure and concerning charges which can themselves be manipulated.9 Further, only prosecutors and accused persons are privy to the evidence of the accused’s alleged misconduct, evidence which might play less of a role in producing adjudicative outcomes than the pressures to admit guilt that prosecutors can bring to bear on the accused. Those pressures can also weaken the resolve of the accused to challenge police or prosecutorial misconduct in the arrest and investigation of alleged crimes, even assuming that the accused are represented by competent counsel prepared to file motions on behalf of their clients, motions that would bring such misconduct before the scrutiny of a judge. In the US, unfortunately, the assumption that most persons accused of crimes are adequately represented by defence counsel is a shaky one.10 Finally, accused persons subject to prosecutorial threats of harsh sentencing outcomes or prolonged pre-trial detention, and perhaps ill-served, if served at all, by competent legal counsel, do not seem to be accorded much dignity by the plea bargaining process. It might seem that the best solution to the perceived inadequacies of plea bargaining as an adjudicative procedure is to abolish it and return to a conception of the right to trial according to which it is essentially inalienable. Even if the accused cannot, as a practical matter, be forced to participate in their own defence, we could appoint attorneys to act on their behalf during trials and refuse to allow them to plead guilty or to permit their admissions of guilt to be dispositive. However, not only is a blanket requirement of trials in all criminal cases very likely unfeasible, the excesses of plea bargaining should not be allowed to obscure the ways in which guilty pleas conserve scarce resources and might be structured and limited so that they come tolerably close to serving societal and defendant interests in trials. In short, plea bargaining might be a dubious practice, but appropriately constrained and judicially monitored plea concessions might be more defensible. The discussion that follows proceeds on this premise. In the first section, I briefly survey the well-known defects in robust and freewheeling forms of plea bargaining. The practice as it exists in the United States is my focal point, both because I know it best and because it is the poster child for all that is worrisome about non-trial adjudication. Particular attention is given to plea bargaining in misdemeanour cases, which involve mostly minor criminal offences but which make up close to 80 per cent of all the cases processed by the criminal

9  There is little judicial screening of charges in the US, with judges typically deferring to prosecutors. By contrast, in Germany, judges are authorised and more inclined to review charges, though more scrutiny occurs in serious than in non-serious cases. On the German system, see Turner (n 3) 105 f. 10  See Klein (n 2) 560; see also SB Bright and SM Sanneh, ‘Fifty Years of Defiance and Resistance after Gideon v. Wainwright’ (2013) 122 Yale Law Journal 2150.

224  Richard L Lippke justice system.11 The excesses of US-style plea bargaining are, I contend, most starkly visible in that context. In the second section, I propose various constraints on negotiated pleas. Many of them have been defended by other scholars; some are drawn from the practices of countries in which plea concessions exist but are more modest and regulated. These constraints have two principal aims: First, they are designed to strictly limit the size of sentencing differentials, that is, the differences in sentences assigned to those who plead guilty and those who exercise the right to trial and are convicted. I contend that we must limit the sentencing differential if we are to ensure that it is the evidence that the state can muster that plays the primary role in convincing accused persons to admit their guilt. Second, we should look for ways to encourage, if not require, judges to more actively and vigorously scrutinise both the charges that have been lodged against persons who are prepared to enter guilty pleas and the evidence in support of those charges. We should do the former to ensure that guilty pleas are not permitted to obscure or distort the crimes that the evidence suggests individuals have committed. We should do the latter in order to have a back-up safeguard against the possibility that whatever inducements to admitting guilt remain in place, they are not the main cause of guilty pleas. In other words, if we cannot entirely eliminate the rewards to admitting guilt, at least we should endeavour to make sure that there is convincing evidence that those prepared to plead are, in fact, very likely guilty. In the third section, I return to the misdemeanour case-processing world and examine whether and to what extent my proposed limitations on guilty pleas would improve adjudicative outcomes in such cases. I contend that in some ways they would; however, in other ways, the conclusions I reach are more pessimistic. Limited and more carefully regulated plea concessions would produce more procedural fairness for the mostly poor persons who are the denizens of the misdemeanour case-processing world. But they would not do so in the absence of broader societal commitment to provide competent defence counsel to poor offenders and to limit their process costs. More importantly, I suggest that improved adjudicative procedures can only do so much to limit the damage done to people’s lives by the existence of vice crimes and the ways in which such crimes tend to be policed. Even a requirement of full-on criminal trials would do little to alter outcomes in a world in which police and prosecutors focus much of their attention on the mostly minor illegal conduct of the socially and politically marginalised. I.  THE PROBLEMS WITH UNFETTERED PLEA BARGAINING

It is well understood that the fact that many accused persons, in the United States and elsewhere, seem eager to waive the right to trial does not show that

11 See J Roberts, ‘Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts’ (2011) 45 University of California-Davis Law Review 277; A Natapoff, ‘Misdemeanors’ (2012) 85 Southern California Law Review 1313.

Regulating and Limiting Plea Concessions 225 they do so voluntarily or wisely.12 Some accused persons are prepared to admit their guilt independently of what the authorities offer them to do so, or threaten them with if they decline to do so. But one of the most salient features of plea bargaining in the US is the ability of government officials to manipulate the sentencing differential. This manipulation takes three general forms: First, prosecutors can agree to make favourable sentencing recommendations that will likely reduce the punishment assigned by the courts to levels well below the statutorily available maximums. Such rewards for pleading guilty have been estimated to exceed 50 per cent reductions in some instances.13 Second, prosecutors can offer to reduce either the number or severity of charges. In jurisdictions which eschew concurrent sentencing, such reductions will result in accused persons receiving significantly less punishment in exchange for their guilty pleas. I shall refer to the punishment reductions offered to accused persons in exchange for their pleas as ‘waiver rewards’. Such rewards should be distinguished from ‘trial penalties’.14 It is clear that prosecutors (and sometimes judges) seek to vindictively punish accused persons who dare to exercise the right to trial and are convicted. Trial penalties are deliberately enhanced sentencing recommendations by prosecutors, or longer sentences assigned by judges, the aim of which is to punish persons for having exercised the right to trial. Trial penalties can also take the preemptive form of stacked charges to intimidate exercise of the right to trial or added charges subsequent to an accused person’s refusal to enter into a plea agreement. It is bad enough that accused persons who elect trial adjudication will lose out on the charge and sentencing concessions won by their counterparts who are willing to plead; it is worse that accused persons might encounter enhanced sentences for their ‘obstinacy’ in exercising a fundamental procedural right. In addition to the formidable sentencing differentials that US-style plea bargaining permits, accused persons sometimes are eager to waive the right to trial in order to minimise the process costs of contesting the charges against them.15 These costs take a variety of forms, from the inconvenience and public embarrassment of having to stand trial, to the financial burden of mounting a defence, to the possibility of having to pay bail or be held in pre-trial detention until charges can be adjudicated. Some accused persons—especially those with criminal records who are charged with relatively minor offences—elect to ‘get it over with’, as it were, by pleading guilty, largely to avoid having to endure such process costs.

12  See RL Lippke, The Ethics of Plea Bargaining (Oxford, Oxford University Press, 2011) especially chs 1 and 2. The literature on plea bargaining in the US is substantial. In addition to the articles cited elsewhere in this paper, the many articles by Albert Alschuler and Stephen Schulhofer are essential reading. Significant articles by Alschuler include ‘The Prosecutor’s Role in Plea Bargaining’ (1968) 36 University of Chicago Law Review 50; ‘The Changing Plea Bargaining Debate’ (1981) 69 California Law Review 652; and ‘Implementing the Criminal Defendant’s Right to Trial: Alternatives to the Plea Bargaining System’ (1983) 50 University of Chicago Law Review 931. Important articles by Schulhofer include ‘Is Plea Bargaining Inevitable?’ (1984) 97 Harvard Law Review 1037 and ‘Plea Bargaining as Disaster’ (1992) 101 Yale Law Journal 1979. 13  Bowers (n 8) 1144; As Bowers makes clear, the largest reductions are granted to individuals charged with relatively minor offences, since no one in the criminal justice system wants such cases to go to trial. 14  Lippke (n 12) 12–16. 15  Feeley (n 8).

226  Richard L Lippke Disturbingly, there is some reason to believe that more than a few innocents wrongly accused take this route.16 Further, plea bargaining in the US is characterised by a lack of independent and rigorous judicial oversight. By law, the judges who oversee the hearings at which plea bargains are ratified are supposed to determine whether there is a ‘factual basis’ for the accused person’s guilty plea. Yet in reality, this is a responsibility that seems to be only casually fulfilled. Most observers believe that judges are too busy to scrutinise the evidence carefully, or perhaps too willing to defer to the agreements worked out by prosecutors and defence attorneys.17 Also, to be fair to them, judges typically do not have access to evidence dossiers that would enable them to ask probing questions about negotiated settlements. In addition, the victims of crimes, if they are any, have few formal means to challenge plea agreements if they believe that those agreements distort the criminal conduct of the accused.18 Indeed, so dependent are judges on what prosecutors and the accused reveal to them, bargaining between prosecutors and defence attorneys about the pertinent legal facts of cases is something that judges will be largely unable to detect and do anything about, assuming they were inclined to act in a system that renders them little more than passive ratifiers of plea deals.19 Many of the distinctive features of US-style plea bargaining are manifest in the processing of misdemeanour cases. Misdemeanours are relatively low-level offences, typically resulting in sentences of no more than one year in a local jail, and often resulting in non-custodial sentences of various kinds. Although the sanctions attending misdemeanour convictions are mild by US standards, those convicted of misdemeanours will wind up with criminal records, with their stigmatising consequences, and suffer collateral consequences that hobble them when it comes to finding jobs (or keeping them), housing, or access to public goods and services.20 Also, in many jurisdictions, their previous criminal histories will count against them for sentencing purposes should they be convicted of subsequent crimes. Notably, the misdemeanour realm is far from a mere adjunct to the larger criminal justice system. In the United States, misdemeanours constitute the bulk of criminal cases (close to 80 per cent of them in many jurisdictions). To a substantial extent, misdemeanour case-processing is the work of the criminal justice system. The academic literature on misdemeanour case-processing paints a grim picture. The vice crimes, minor property crimes and personal assaults, and public order offences that make up the bulk of these cases are so numerous that they threaten to overwhelm the courts. Prosecutors respond to the deluge of cases by offering quick and often generous plea deals to the individuals charged with such offences, simply in order to resolve them and, at the same time, burnish conviction rates.21 Those accused of such crimes jump at these offers for a variety of reasons. First, the offers tend to be so attractive that it would be folly to refuse them and thereby risk 16 

See Bowers (n 8) 1125. Turner (n 3) 41. 18  Turner (n 3) 22. 19  King (n 7) 296–300. 20 On the consequences of misdemeanour convictions, see Roberts (n 11) 297–302; and Natapoff (n 11) 1323–27. 21  Bibas (n 6) 1143. 17 

Regulating and Limiting Plea Concessions 227 trials at which conviction might result in considerably longer sentences. Second, the process costs of going to trial tend to exceed the costs of the sentences on offer. Some individuals charged with misdemeanours, especially ones with previous convictions, will be held on remand until their cases are resolved. The accused who are held in pre-trial detention have powerful motivations to resolve the charges against them; prosecutors respond by offering them comely plea deals, sometimes involving sentences to ‘time served’ while on remand. Plead guilty and you get to go home today! Third, as already noted, some of the individuals charged with misdemeanours already have criminal records. Indeed, many of them do.22 For such individuals, pleading guilty, and thus adding another conviction to their records, is not too costly. Their names and reputations are already besmirched. Another conviction will not leave them much worse off, especially if it can be had without having to serve time in custody. Fourth, most of the individuals accused of misdemeanours are poor or otherwise marginalised members of society. So-called ‘poor policing’ is alive and well in the US, as are forms of racial profiling.23 Even in their absence, vice crimes by the poor are notoriously easier to police than vice crimes by the better off.24 The mostly indigent accused who come before the courts are poorly represented by defence counsel, if they are represented by them at all.25 And many of them are profoundly demoralised from their previous dealings with the police and criminal justice system.26 They do not expect to be treated or to fare well at the hands of its agents; they meekly accept prosecutors’ plea offers to ‘get it over with’. Fifth, plea deals in the misdemeanour world are consummated without much, if any, judicial scrutiny of the evidence against the accused. Many of the accused enter guilty pleas at their first court appearance, often without having consulted a defence attorney. As Alexandra Natapoff notes, the only ‘evidence’ in many misdemeanour cases is the fact of arrest by a police officer.27 Poor, demoralised defendants, offered generous plea deals by prosecutors, are eager to plead whether the state could prove them guilty or not; the courts oblige them with the briefest of hearings, ones that do not probe beyond a few statements by prosecutors and the accused about the events in question. The sense that plea bargaining procedures are little more than an ‘assembly line’ form of procedural justice aptly captures the reality of the misdemeanour caseprocessing world.28 Such brusque charge adjudication procedures are ripe for the production of errors; that much seems clear. How many errors they produce is less clear, although their tendency to do so will likely be greatest when the accused are recidivists who have little to lose by accruing further convictions and rather more to lose, and lower odds of success, by exercising the right to trial.29 It would be a mistake, it seems, to infer

22 

Bibas (n 6) 1125. Natapoff (n 11) 1364. 24  WJ Stuntz, ‘Race, Class, and Drugs’ (1998) 98 Columbia Law Review 1795, 1806. 25  Natapoff (n 11) 1340. 26  Natapoff (n 11) 1346. 27  Natapoff (n 11) 1346, who also notes that there is evidence that police lie with some frequency about the events leading to arrests, 1336. 28  HL Packer, The Limits of the Criminal Sanction (Stanford, Stanford University Press, 1968) 159. 29  Bowers (n 8) 1121. 23 

228  Richard L Lippke that most of the individuals charged with misdemeanours are, in fact, innocent of the charges against them. But it is apparent that plea bargaining in the misdemeanour world puts enormous pressure on the accused to plead guilty while providing little assurance that they are guilty or that the infractions of which they are convicted match the criminal misconduct, if any, in which they have engaged. In the next section, I outline a more defensible plea concession system, one that constrains prosecutors and requires more of judges. The question will then be whether, and to what extent, such a system would help with the problems of misdemeanour case-processing. II.  CONSTRAINING AND REGULATING PLEA CONCESSIONS

Again, US-style plea bargaining is characterised by substantial sentencing differentials, constituted, in part, by waiver rewards and, in part, by trial penalties. It is also characterised by lax judicial scrutiny of the evidence against the accused in cases in which they are prepared to enter guilty pleas. The former should concern us because it systematically reduces the salience of the evidence in producing pleas; the latter should concern us because no one is checking to see if there is much evidence against the accused, or if police and prosecutors have accurately captured the criminal misconduct of the accused in the charges to which they are ready to plead. There are different ways in which we might reduce the charging discretion of prosecutors, their influence over sentences, and encourage judges to more carefully monitor the plea process.30 In some countries, things like over-charging and the levying of trial penalties appear to go against the grain of deeply entrenched legal customs and norms. Although fostering such informal restraint of power remains an option, I prefer the adoption of more formal, institutional measures. Start with the elimination of trial penalties. Trial penalties, in my view, are always unjustified.31 Put simply, they punish persons for exercising the right to trial, not for their crimes. One way in which to discourage them is to provide accused persons with some advance indication of the sentence that they will receive if they go to trial and are convicted. We could do this in a number of ways, one of which is to hold settlement hearings for defendants who indicate a willingness to plead.32 Such hearings would be presided over by a judge and would be structured as follows: First, the evidence for any charges the government has filed would be briefly presented by prosecutors. Second, defence attorneys would be permitted to challenge both the charges and the evidence for them. Third, the accused would be questioned by

30  Schulhofer, ‘Is Plea Bargaining Inevitable?’ (n 12) urges the use of brief bench trials in contested cases, while accepting guilty pleas in uncontested ones, drawing upon a study of felony courts in Philadelphia. In some ways, my proposed settlement hearings are like such bench trials, though they serve different purposes. Also, Schulhofer does not extend his proposal to misdemeanour cases, or even to all felonies. I am grateful to David Sklansky for reminding me of Schulhofer’s proposal. 31  Lippke (n 12) ch 2. 32  For elaboration, see Lippke (n 12) 16–28. Similar proposals appear elsewhere in the plea bargaining literature. See AW Alschuler, ‘The Trial Judge’s Role in Plea Bargaining, Part I’ (1976) 76 Columbia Law Review 1059, 1122; AW Alschuler ‘Note: Restructuring the Plea Bargain’ (1972) 82 Yale Law Journal 286.

Regulating and Limiting Plea Concessions 229 the judge, both to ensure that any guilty plea is voluntary and that the accused’s account of the events in question is consistent with the evidence and charges. Fourth, judges would be required to find that there is at least a preponderance of evidence supporting any charges; charges not so supported should be dismissed. Fifth, judges would indicate a presumptive sentence for any remaining charges.33 This would be the sentence that an accused person could expect to receive if she elected to go to trial and was convicted. Most of the accused who sought settlement hearings would presumably plead guilty. But a few might ultimately decline to do so and insist on going to trial. In such cases, any post-trial change in the presumptive sentence would have to be explained by the sentencing judge and would be subject to appeal by the accused. Presumptive sentences articulated in advance of trials would make it difficult for prosecutors or judges to levy trial penalties. Waiver rewards are a different matter. They offer accused persons incentives to plead guilty but might result in their enduring less punishment than their crimes merit. If they are subject to negotiation, as they are in the US, this creates all manner of inconsistencies in sentencing.34 More sympathetic, better represented, or less risk-averse defendants might get better deals, compared with other defendants whose crimes are similar. Further, the magnitude of the waiver rewards on offer might overwhelm the influence of the evidence on the decisions of accused persons to admit their guilt. The solution to the latter problem is to limit the size of waiver rewards. Charge bargaining should be strongly discouraged—more on that in a moment—and sentence reductions should be kept in the 10–20 per cent range. Accused persons who understand that they are guilty and that the government has plausible evidence of their guilt should receive some small reward for sparing us the many costs and burdens of full trials.35 Limited plea concessions can be seen as fully consistent with voluntary waivers by the accused of the right to trial. Also, the requirement that judges at settlement hearings find that there is sufficient evidence to support a guilty plea would serve as a back-up guarantee that pleas are being entered because the accused are guilty and prepared to admit it. Only the most timid innocents charged with crimes would succumb to the ‘pressure’ of modest sentencing concessions. That is something I am prepared to live with, especially since even by eliminating plea concessions altogether, we might not be able to eliminate ‘process pleas’ by the innocent.36 To reduce inconsistencies in the punishment of like offenders, we should adopt fixed rather than negotiable waiver rewards. At the end of a settlement hearing, accused persons who wished to plead guilty would get the fixed discount. Those who elected instead to go to trial would face no worse than the presumptive sentence announced by the judge. If we assume a just sentencing scheme and conscientious judges, then those found guilty after trials would get no worse than their deserved punishment for their crimes.

33  The sentence would be ‘presumptive’ because we should allow for the possibility that trials will reveal an accused person’s criminal conduct to have been either more or less culpable than originally believed. 34  The best discussion of the many factors affecting plea bargained outcomes is Bibas (n 6). 35  Lippke (n 12) 69. 36  See Lippke (n 12) 60 f.

230  Richard L Lippke Process pleas could be made less attractive by reducing the costs of going to trial. Almost everyone who has looked at pre-trial detention in the US, for instance, agrees that it is badly overused.37 Persons arrested and charged with crimes are routinely kept on remand if they are recidivists or the charges against them are serious; since many accused persons are poor and cannot post bail, they too are kept in pre-trial detention. The liberal use of pre-trial detention should be curtailed, and not only for its tendency to encourage process pleas. Only those against whom the charges are serious, the evidence persuasive, and the risk of flight or further pre-adjudication crime provably substantial should be subject to pre-trial detention. Other steps to bring down process costs might be taken as well, such as reducing the number of times that the accused must appear before the courts prior to their trials. Still, it must be conceded that such reforms are unlikely to eliminate all process pleas. I come back to this point in the next section. The preceding steps will do little, however, to address the problems raised by charge and fact bargaining, especially when these work to distort what offenders have done and assign them less than their deserved or optimal sentences. As we have seen, both accused persons and prosecutors might be motivated to negotiate such agreements—accused persons for the obvious reason that they thereby minimise their punishment, prosecutors because they doubt that they can gain convictions on more veridical charges or because they are over-burdened with cases and seek to quickly dispose of some of them. If the right to trial is the accused person’s to exercise or not, how do we resist the conclusion that we ought to accept such outcomes? It will be noted that, in the civil context, settlements between plaintiffs and defendants are encouraged, though it is presumably understood that defendants can leverage exercise of the right to trial to unjustly evade or minimise their liability. If we assent to such manoeuvrings in the civil context, how can we avoid accepting them in the criminal context? In the criminal context, the public arguably has more urgent interests in the punishment of offenders, whether this interest is understood in terms of justice or the reduction of crimes. So do the victims of crimes, assuming that there are direct, or even indirect, ones. Tortious conduct might engender suffering and resentment in those victimised by it; but crimes, and especially serious crimes, excite much stronger and more volatile public and victim reactions. Add to this the important fact that the conduct with which the criminal law is concerned is prohibited, not tolerated so long as it is engaged in with sufficient concern for the interests of others.38 The criminal law’s censuring and hard treatment functions make sense only against such a backdrop.39 Homicide, assault, theft, and the like are non-negotiably out of

37  M Miller and M Guggenheim, ‘Pretrial Detention and Punishment’ (1990) 75 Minnesota Law Review 335; AW Alschuler, ‘Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process’ (1986) 85 Michigan Law Review 510; and LH Tribe, ‘An Ounce of Prevention: Preventive Justice in the World of John Mitchell’ (1970) 56 Virginia Law Review 371. 38  JC Coffee Jr, ‘Paradigms Lost: The Blurring of the Criminal and Civil Law Models—and What Can Be Done About It’ (1992) 101 Yale Law Journal 1875. 39  See A von Hirsch, Censure and Sanctions (Oxford, Clarendon Press, 1993).

Regulating and Limiting Plea Concessions 231 bounds and socially and legally marked as such. It is therefore much less acceptable for the authorities charged with the enforcement of criminal prohibitions to contrive with those whom they suspect of having breached them to distort or downplay their misconduct. What steps might be taken to ensure that society’s interest in the punishment of offenders is honoured by prosecutorial charging decisions? Go back to the settlement hearings that I earlier described. Again, accused persons who were willing to admit their guilt would request such hearings, at which judges would examine the evidence and charges against them, determine their fit, and indicate a presumptive sentence on any and all charges that were found to be sustainable. Earlier, I cast such hearings as having the dual purpose of discouraging trial penalties and ensuring that there is sufficient evidence of guilt to justify the acceptance of guilty pleas. Yet such hearings could also serve to encourage prosecutors to exercise their charging discretion in accordance with the public’s interest in the appropriate disposition of criminal cases. Toward this end, settlement hearing judges should be provided with complete case dossiers ahead of such hearings in which all of the evidence in a case is detailed and all of the charges filed and dropped or altered ahead of the hearing are disclosed.40 This would enable judges to compare the current charges against the evidence and existing record, and thus to detect charge or fact bargaining and query prosecutors about it if, in fact, it appears to have occurred. If judges were not satisfied with the responses of prosecutors, they could refuse to proceed further, effectively scuttling the resolution of cases until prosecutors redrew the charges. Also, the victims of crimes should be permitted to file affidavits challenging the charges prosecutors have filed, and therefore the depictions of the crimes in question.41 Such affidavits would help settlement hearing judges determine whether and how well the current charges match the facts of the case. Again, prosecutors would be expected to answer questions about any apparent mismatch between victims’ accounts and the charges filed. If settlement hearing judges were not satisfied that cases were being handled properly, then they should refuse to set presumptive sentences on the charges, thereby blocking the path to guilty pleas. If the judges deemed the charges to be warranted, they would indicate presumptive sentences for them. Accused persons would then have the right to demand trials or admit guilt in exchange for modest and fixed sentence discounts. There will be objections to adopting such constraints on prosecutorial charging discretion. In particular, there might be cases in which the evidence against accused persons is less than strongly convincing, in part because defence attorneys have managed to get more powerful evidence against their clients excluded by the courts. If the crimes of which individuals are suspected are grave and they are willing to plead to lesser charges, prosecutors might agree to reduce the charges in order to gain the proverbial ‘half loaf’.42 Getting such individuals off the streets for some

40  It is common practice in other countries for judges to have access to full case dossiers during the plea concession process. For the role of judges in the German system, see Turner (n 3) 76. 41  As is the norm in some European countries, see Ma (n 3) 34. 42  See Alschuler, ‘The Prosecutor’s Role’ (n 12) 60.

232  Richard L Lippke period of time and into prison might seem valuable enough to tolerate such ‘flexible’ charging by prosecutors. I am not convinced that we should grant prosecutors the licence to make half-loaf bargains.43 It will be difficult to cabin the authority to do so for the relatively few cases in which a plausible case for it can be made. More to the point, such grants of authority give prosecutors the power to impose legal punishment on individuals despite the fact that their guilt on veridical charges likely cannot be proven, in a court of law, beyond a reasonable doubt. It could also be argued that the dilemma posed by such cases is partly the product of unwise exclusionary rules, ones that make incriminating evidence against individuals unavailable if obtained by the authorities in ways that infringe important privacy rights. Many scholars have argued that such rules have at times been crafted by the courts in ways that unaccountably decline to weigh the value of the evidence and the seriousness of the crimes of which it is evidence against the extent to which privacy rights have been infringed.44 Importantly, even if a persuasive case can be made that prosecutors should be granted the authority to enter into ‘half-loaf’ plea agreements in some cases, it does not follow that accused persons have a moral right that they be granted such authority. I would argue that the right to trial should be conceived narrowly, as the right to put the government’s charges to the test of trial adjudication. It should not be conceived as the right of the accused to a case disposition to their liking. Of course, if we give prosecutors the authority to enter into half-loaf plea agreements, then accused persons might be able to leverage a moral right that they do have—to demand trial adjudication of the charges against them—to minimise their punishment. This is surely regrettable on the assumption that they are, in fact, guilty of more serious crimes and pose a continuing threat to others. Some will argue that it will be more regrettable still if we deny prosecutors the authority to reach compromises and dangerous individuals are acquitted outright after trials. We need not deny that but can insist that there are powerful reasons not to grant prosecutors the authority to engage in half-loaf plea negotiations in spite of this. III.  BACK TO THE MISDEMEANOUR CASE-PROCESSING WORLD

It might be objected that the settlement hearings I propose are warranted for more serious criminal allegations, but not for the vast majority of criminal charges which involve lesser kinds of misconduct. As we have seen, in the United States, minor offences make up the bulk of the crimes processed. The societal interest in the proper disposition of such cases is less pronounced, it might be argued, so we should grant government officials more leeway in disposing of them. Maybe in cases in which custodial sanctions are not an option, we should simply allow prosecutors and

43 

For a more thorough discussion of half-load plea bargaining, see Lippke (n 12) ch 8. L Laudan, Truth, Error, and Criminal Law: An Essay In Legal Epistemology (Cambridge, Cambridge University Press, 2006) 192; see also DH Oaks, ‘Studying the Exclusionary Rule in Search and Seizure’ (1970) 37 University of Chicago Law Review 665; and CA Wright, ‘Must the Criminal Go Free If the Constable Blunders?’ (1972) 50 Texas Law Review 736. 44 

Regulating and Limiting Plea Concessions 233 defence attorneys to work out some mutually agreeable ‘price’ for the accused person’s misconduct, without intrusive questions by judges or the ‘inefficiencies’ of settlement hearings. However, as we have seen, convictions for low-level offences hobble the lives of individuals and put them at risk of further official incursions into their lives and harsher penal outcomes further down the road. And it is arguably precisely in the processing of such charges that a casual approach to charge adjudication is most worrisome. Individuals charged with more serious crimes are, other things being equal, more likely to be represented by defence attorneys. Also, state officials will have had to do more than simply arrest and charge individuals in serious cases; they will have to have produced real evidence of probable cause to survive arraignments and preliminary hearings. Further, process costs loom less large in cases in which substantial prison sentences are a likely outcome of conviction.45 For all of these reasons, we should be disinclined to limit the adoption of constraints on plea bargaining to more serious cases. My focus in this section will therefore be on whether such constraints would help allay concerns about misdemeanour case-processing. On the positive side, settlement hearings at which judges were armed with complete case dossiers and had to make a determination that there was a preponderance of evidence in support of any charges to which the accused were willing to plead would constitute a substantial improvement over existing misdemeanour plea procedures. No longer would police and prosecutors be relieved of the burden of having to provide evidence of the guilt of the accused. Mere arrests would not suffice, or so one would hope. Also, if we assume that those accused of low-level crimes should not be allowed to appear at settlement hearings without defence attorneys, the current practice of quick plea deals without the advice of an attorney would be a thing of the past.46 If an accused person appeared at such a hearing and her attorney said nothing in response to the charge and evidence summary offered by the prosecutor, the judge should suspect that the attorney has neither had the time, materials, or inclination to review the case. Perhaps we could not require judges to refuse to proceed further with hearings in such cases, but we could strongly encourage them to do so. At the very least, judges should question defence attorneys regarding their silence. Equally as importantly, sentencing differentials would be reduced dramatically; this would assure us that the evidence had considerably more salience in inducing guilty pleas. Trial penalties would no longer exist and the plea concessions on offer would be fixed and modest. If, in addition, process costs were kept down, guilty pleas would be more apt to reflect provable criminal conduct. Moreover, the settlement hearing judge’s finding that a preponderance of the evidence supported a plea would provide back-up protection against guilty pleas not sustainable by the evidence. In cases in which there were victims, the possibility of victim affidavits would serve as a check on charge or fact bargaining. Likewise, requiring judges to have full

45 

Bowers (n 8) 1138. the United States, not all indigent defendants are entitled to have defence attorneys provided for them, especially ones the charges against whom are unlikely to result in a custodial sentence (or probation that can be revoked in favour of a custodial sentence). This seems a regrettable state of affairs given the many adverse social and legal consequences of misdemeanour conviction. 46  In

234  Richard L Lippke evidence dossiers ahead of settlement hearings would equip them with the means to query prosecutors and accused persons about discrepancies between the charges and evidence, thereby promoting the societal interest in the proper and accurate punishment of criminal misconduct. To the preceding, I would add that a plea process that actually was slower, more deliberate, and more concerned with the accuracy of outcomes, would send an important message to the mostly poor individuals who are charged with low-level crimes. As the literature on procedural justice demonstrates, how people are treated by the criminal justice system—whether they perceive themselves as treated fairly and with some dignity—matters significantly when it comes to strengthening, or at least not weakening, their commitment to abiding by the strictures of the criminal law.47 The hurried and incautious case-processing which is now the norm in misdemeanour cases, along with the considerable pressures on the accused to plead, would seem to be precisely the kinds of procedures that incur the distrust and contempt of already socially marginalised individuals.48 We need to lower the pressures to plead guilty and adopt procedures that treat the accused with respect while processing their cases more carefully. Settlement hearings at which the evidence against them would have to survive judicial scrutiny might encourage the socially and economically marginalised to believe that society is somewhat prepared to deal with them fairly. In spite of the ways in which regulating and constraining the plea process would improve low-level case-processing, improved adjudication procedures can do only so much to limit the damage done by a criminal justice system that is determined to police and punish people for minor forms of criminal misconduct. For one thing, if the indigent defence system remains as under-funded as it is currently, we might worry that those accused of low-level crimes will be cowed by prosecutors and judges into pleading guilty. The caseload pressures on such officials might induce them to cut corners with low-level case-processing if and when they can. Accused persons unaided by defence counsel might prove little match for legal officials who importune them to admit their guilt and get on with their punishment. Sadly, even when the poor have defence counsel, their attorneys have been known to bow to such pressures and to encourage quick pleas. One way in which to reduce that caseload pressure would be to rethink the kinds of low-level offences that we attempt to reduce through criminal sanctions. Many have questioned the legitimacy and effectiveness of our continued obsession with vice crime.49 Eliminating some misdemeanours, or converting them from criminal offences to violations that are sanctioned with fines and which do not contribute to a person’s criminal history score, would go some way toward reducing the crush of misdemeanour case-processing. This, in turn, would open up more time and other resources for more careful and fair processing of the remaining low-level offences.

47 

See TR Tyler, Why People Obey the Law (New Haven, Yale University Press, 1990). As Natapoff makes clear (n 11) 1362. 49 See D Husak, Drugs and Rights (Cambridge, Cambridge University Press, 1987); D Husak, Overcriminalization: The Limits of the Criminal Law (New York, Oxford University Press, 2008); see also M Tonry, Punishing Race: A Continuing American Dilemma (New York, Oxford University Press, 2011) 53–76. 48 

Regulating and Limiting Plea Concessions 235 Another benefit to reducing the societal focus on the criminalisation of vice is that we might wind up with fewer socially marginalised people in the criminal justice system whose lives are degraded by their encounters with it. Again, it is well-known that the policing of vice crime is skewed towards poor neighbourhoods, where it is easier for the authorities to detect and apprehend offenders.50 It is not that the better off in society do not commit vice crimes, only that they do so in locales that are harder for the authorities to penetrate. When the authorities do penetrate, they face obstacles to conviction borne of superior resources and political connections. Improved adjudication procedures can do little to affect the policing of vice crimes, except, perhaps, by making it marginally more difficult for the authorities to run roughshod over the poor in arresting and convicting them.51 A different kind of objection will be raised against my suggestion that the sentencing concessions for admitting guilt should be kept modest and fixed. It is apparent from the literature on misdemeanour case-processing that prosecutors are more in the way of ‘conviction-maximisers’ in such cases than ‘sentence-maximisers’.52 They offer generous concessions to attract pleas because they can do so; the crimes involved are not that serious to begin with and the public is not much concerned to monitor state officials in such cases to ensure that offenders are punished appropriately. My proposal would limit the magnitude of the plea concessions on offer and thus would likely produce longer sentences in misdemeanour cases. Whatever else might be said against unconstrained forms of plea bargaining in misdemeanour cases, they seem a source of some mildness in sentencing. Of course, that mildness comes at the cost of some, perhaps considerable, inaccuracy in charge adjudication, as well as at the cost of procedural unfairness with its pernicious effects on the perceived legitimacy of the criminal justice system. In spite of the ways in which the constraints I have proposed would improve charge adjudication in the misdemeanour realm, there is no use denying that they would probably reduce the plea concessions available to accused persons. Harshness in sentencing is a problem with the sentencing scheme itself. It can only be systematically addressed by reforming the entire scheme and thus diminishing the sentences attached to various kinds of offences.53 Granting authorities the power to manipulate the sentencing differential produces spotty and unprincipled leniency in sentencing. Again, better off and therefore better-represented persons accused of misdemeanours tend to get better deals. Similarly, the more brazen among the accused might negotiate better offers, as might those who face prosecutors with heavier caseloads. Meanwhile, accused persons who exercise the right to trial and are convicted wind up with fairly harsh sentences, though their counterparts who pled guilty might not have committed significantly less serious crimes. All of these

50 

Stuntz (n 24) 1806; Tonry (n 49) 53–76. course, the property crimes of the poor are apt to be easier to police and prosecute as well, yet I assume that most of these should remain criminal offences, albeit punished less harshly than they often are. 52  Bowers (n 8) 1141. 53 Also, the reforms I propose would do little to counteract the many collateral consequences of criminal conviction. Thanks to Nell Munro for making this point. 51 Of

236  Richard L Lippke and more will be the consequences of relying on robust forms of plea bargaining to produce mildness in the sentencing of low-level crimes. Finally, the settlement hearings I propose will not entirely eliminate the problem with the process costs of criminal trials and the unwillingness of accused persons to endure them. Suppose that we adopt measures to limit plea concessions and reduce the use of pre-trial detention, yet individuals against whom the government’s evidence is adequate, though barely so, still want to plead guilty. Though I would require sentencing hearing judges to find that the state’s evidence is persuasive up to the level of showing the accused to be more likely than not guilty, that evidence sufficiency standard falls considerably short of the reasonable doubt standard. Should we consider forcing accused persons to go to trial when, in the opinion of settlement hearing judges, the state’s case is sufficient albeit weak? Forcing them to do so would make them endure whatever process costs remain and they would lose out on (modest and fixed) plea concessions. Is the societal interest in avoiding unjust punishment weighty enough to override or limit individuals’ decisions about whether to exercise the right to trial in such cases? My view is that it is not, so long as we have instituted measures to curb process costs, contain waiver rewards, eliminate trial penalties, and inform accused persons that, at least in a settlement hearing judge’s view, the evidence against them falls short of satisfying the reasonable doubt standard. I suspect that there will not be that many accused persons who are innocent and who make process pleas under these conditions. Moreover, the cost to the public in the form of unjust punishment will be minimal and spread across many persons; the cost to accused innocents who are denied the option of pleading guilty and who might therefore suffer greater punishment will be borne entirely by them. I would, therefore, leave the decision in their hands. IV.  CONCLUDING REMARKS

I have argued that it is possible to devise guilty plea procedures that will serve effectively the purposes of criminal trials. To do so, we must structure guilty pleas so that they can be plausibly understood as resulting from the recognition on the part of the accused that the state has convincing evidence of their guilt. We must also attempt to see to it that the process costs of exercising the right to trial are not unduly burdensome. Further, to ensure that guilty pleas do not disguise or ignore significant criminal wrongdoing, we should equip judges with the means and authority to scrutinise the appropriateness of the charges to which accused persons indicate a willingness to plead. Settlement hearings are the lynchpin in a defensible plea process. Properly set up, they would give judges the opportunity to examine the sufficiency of the state’s evidence against the accused and the accuracy of the charges against them. The presumptive sentences I would have judges announce at the conclusion of such hearings could be used to discourage trial penalties and would serve as the benchmark for the modest and fixed sentence discounts that seem defensible when accused persons admit their guilt and spare us the burdens and costs of full-on trials. Settlement hearings would also ensure that accused persons were

Regulating and Limiting Plea Concessions 237 not simply cowed into pleading guilty by state officials eager to resolve cases, and thus would accord the accused a modicum of dignity. The modified plea procedures I propose were examined in the context of low-level criminal charge adjudication. There, state officials often resort to brusque charge adjudication of a kind that seems little concerned with accurate outcomes or the fair treatment of the accused. Changes in charge adjudication would address some, though not all, of the problems with misdemeanour case-processing. This conclusion should not be surprising. Even the best charge adjudication procedures cannot produce optimal outcomes in the absence of other needed reforms in the criminal justice system and society more generally.

238 

13 A Fair Cop and a Fair Trial ERIC J MILLER

I. INTRODUCTION

I

N THE CRIMINAL justice system, of the many obstacles to receiving a fair trial, the greatest may be receiving any trial at all. For the most part, fair trial ­advocates have targeted the plea bargain process as the core check on access to trials. But, in the American criminal justice system at least, this is to miss the woods for the trees: the single biggest obstruction to the trial is the police.1 The police obstacle to fair trials is not just a parochial feature of some criminal justice systems: it is a conceptually and normatively significant one as well. ­Conceptually, trials are an inessential part of policing. Trials occur after the police have finished doing their policing job. To the extent that the police are involved in the trial process, it is primarily in the roles of witness or jailer or cheerleader for justice. Prior to trial, however, the police role takes a variety of forms, from ensuring public welfare, to maintaining public order, to the more obviously trial-relevant one of investigating crimes. Each of these roles may require the police to enforce the criminal law using their characteristic police power. Viewed from the top down, it is easy believe that the core feature of the criminal law is felony prosecutions of serious crimes, with criminal trials as the conceptual centrepiece of that sort of system.2 From the top down, the roles of the police and prosecutor appear tightly tied together and oriented towards the trial: the police collect the evidence that the prosecutor uses to accuse and prosecute the d ­ efendant. From this adjudication-oriented perspective, trial fairness is and ought to be the central concern of the criminal process. This view of criminal procedure as trial

1  Perhaps the most influential proponent of this view was Kenneth Culp Davis, whose two magisterial works, Discretionary Justice: A Preliminary Inquiry (Louisiana, Louisiana State University Press, 1969) and Police Discretion (St Paul, West Publishing Co, 1975) rediscovered the role of discretion in policing. Davis argued, in part, that the police possessed the broad discretion to determine how to enforce the law. The police thus have an adjudicative as well as an executive role (really, all law-appliers have an adjudicative aspect to their role): to determine how the law is to apply. Indeed, as John Kleinig argues, the police role includes determining whether they are authorised to act at all: the discretion to determine the scope of their role. J Kleinig, ‘Introduction: Handling Discretion with Discretion’ in J Kleinig (ed), Handled with Discretion: Ethical Issues in Police Decision Making (Lanham, Rowman and Littlefield, 1996) 4. 2 See, eg, A Natapoff, ‘Misdemeanor Decriminalization’ (2015) 68 Vanderbilt Law Review 1055, 1116; A Natapoff, ‘Aggregation and Urban Misdemeanors’ (2013) 40 Fordham Urban Law Journal 1043, 1090; A Natapoff, ‘Misdemeanors’ (2012) 85 Southern California Law Review 1313.

240  Eric J Miller f­ airness is the one contained in the Fifth and Sixth Amendments of the United States Constitution, and Articles 5 and 6 of the European Convention on Human Rights. Things look very different from the bottom up. From the perspective of police interactions with civilians on the street, what matters is securing public order, or promoting welfare, not only investigating crime.3 Where police activity is directed towards maintaining or restoring public order, for example, that process may require some impartial state official to convey the seriousness of the infraction and the possible sanctions. But it does not automatically require a criminal trial. The criminal law is necessary to help justify police intervention and authority. But, from the perspective of policing on the street, the criminal trial is a costly and remote process. If more immediate and cost-effective crime-deterring and public-order-restoring ­practices could resolve low-level street problems, then these are normatively preferable to the formal trial process. On the street, what matters is a fair cop, not a fair trial. Taking this bottom-up approach to criminal justice, one reflected in the Fourth Amendment to the United States Constitution, or in Article 8 of the European ­Convention on Human Rights, the issue is not that trials rarely happen: the point is that trials are not essential to the police role. Criminal trials are disconnected from the police officer’s public order and public welfare imperatives, and only peripherally related to the police investigatory role, derived from the police duty to uphold the law. All of these duties—to maintain public order, promote public welfare, and uphold the law—would exist in the absence of criminal trials. And this disconnect is all the more important when policing is directed towards low-level and isolated disorderly conduct. At the lowest level of the criminal justice system, where wrongdoers are stopped for regulatory violations or minor misdemeanours, the system functions as a system of social control, rather than as a system of solemn, public, formal imposition of punishment. One way of accounting for these different aspects of criminal justice would attend to the different roles characteristic of the ways people participate in the system:4 ­defendant,

3  The point has been pressed by sociologists for quite some time. See, eg, JH Skolnick, Justice without Trial: Law Enforcement in Democratic Society, 2nd edn (New York, Wiley, 1975); E Bittner, ‘Florence Nightingale in Pursuit of Willie Sutton: A Theory of the Police’ in H Jacob (ed), The Potential for Reform of Criminal Justice (London, Sage, 1974) 17, 30; WK Muir Jr , Police: Streetcorner Politicians (Chicago, University of Chicago Press, 1977); JQ Wilson, Varieties of Police Behavior: The Management of Law and Order in Eight Communities (Cambridge, Harvard University Press, 1968). 4 The distinction between trial-oriented and role-oriented views of criminal procedure is broadly addressed by M Thorburn, ‘Calling Antony Duff to Account’ (2013) 9 Criminal Law and Philosophy 737, 739–45 (contrasting Hart’s process-based account with Duff’s morality-based account). Among adjudicative-oriented proceduralist theorists, perhaps the pre-eminent one is Antony Duff. See, eg, RA Duff, ‘Relational Reasons and the Criminal Law’ in L Green and B Leiter (eds), Oxford Studies in ­Philosophy of Law Vol 2 (Oxford, Oxford University Press, 2013) 196 (‘the authority that the criminal law claims resides in its procedural dimension, as the authority to identify those wrongs whose perpetrators will be called to account in this way, and to call them to account’). Others include Paul Roberts, see, eg, P Roberts, ‘Introduction’ in P Roberts (ed), Theoretical Foundations of Criminal Trial Procedure ­(London, Routledge, 2014); P Roberts, ‘Groundwork for a Jurisprudence of Criminal Procedure’ in RA Duff and SP Green (eds), Philosophical Foundations of the Criminal Law (Oxford, Oxford University Press, 2011). Role-based theorists include not only Antony Duff—see, eg, RA Duff, Punishment, Communication, and Community (Oxford, Oxford University Press, 2000); RA Duff, ‘Legal Reasoning, Good Citizens, and the Criminal Law’ (2015) Minnesota Legal Studies Research Paper No 15–18—but also John

A Fair Cop and a Fair Trial 241 prosecutor, juror, witness, and police, to name just a few.5 Foregrounding roles prompts a classificatory or conceptual question:6 which, of the various things the police do, do they do in their role as police officers (rather than, say, in the role of witness, or vigilante, or first responder)? These police-characteristic things may also serve various functions in our society, or have various purposes or points, or participate in various legal processes. But one way of asking what counts as a characteristic feature of the police role is to ask whether the police role would still exist in the absence of that feature.7 Stated this way, the nature and scope of the police role, and the normative powers, permissions, and duties characteristic of that role, determine what it is the police do when they act as police. The role-based perspective on criminal procedure takes a broad view of the criminal justice system. It seeks to address all ‘the institutions of the criminal justice system, and the roles and practices of those who work within them’.8 The police would still act as police in enforcing the criminal law in the absence of a system of criminal trials, or if some other process of social control were to substitute for the system of trials and criminal punishments. And in fact there are trial-independent functions and processes characteristic of the police role that nonetheless are justified by reference to the criminal law. It thus provides a different and more comprehensive approach to criminal procedure and the criminal justice system than process-based accountability.9 The process-based or proceduralist approach I target asserts that there is an absolute or conclusive reason for all of us, or at least for anyone acting in the police role,

Gardner—see, eg, J Gardner, ‘Criminals in Uniform’ in RA Duff, L Farmer, SE Marshall, M Renzo and V Tadros (eds), The Constitution of the Criminal Law (Oxford, Oxford University Press, 2013); see also M Thorburn, ‘Criminal Law as Public Law’ in Duff and Green, ibid, 21 f (discussing the various proponents of the role-based approach); other role-based theorists include Michelle Madden Dempsey—see, eg, MM Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis (Oxford, Oxford University Press, 2009)—and Leslie Green—see, eg, L Green, ‘Law and the Role of the Judge’ (2014) Oxford Legal Studies Research Paper No 47. 5  For a more fulsome list, see, eg, Duff, ‘Legal Reasoning’ (n 4). I have not included Duff’s central category, that of citizen, in my list of criminal-justice roles. See, eg, RA Duff, ‘Responsibility, Citizenship, and Criminal Law’ in Duff and Green (n 4) 141–45; Duff, Punishment, Communication, and Community (n 4) 112 f (discussing the duties owed by states to their citizens, and citizens to their states and to each other). I prefer the term ‘civilian’ to ‘citizen’, in part because I believe that many criminal procedure rights do not turn upon the citizenship status of the target of state intervention. 6  On classificatory or conceptual questions, see J Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford, Oxford University Press, 2012) 276. 7  An analogous question is to ask whether coercion is a necessary feature of law by imagining whether there could be law absent coercion, in a society of angels. See, eg, J Finnis, Natural Law and Natural Rights, 2nd edn (Oxford, Oxford University Press, 2011) 8; J Gardner, ‘Law’s Aims in Law’s Empire’ in S Hershovitz (ed), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (Oxford, Oxford University Press, 2006) 207. 8  A Ashworth, ‘Criminal Justice, Not Criminology?’ in M Bosworth and C Hoyle (eds), What Is Criminology? (Oxford, Oxford University Press, 2011) 335, 343. 9  For a similar claim in the European context, see, eg M Thommen, Kurzer Prozess–fairer Prozess? Strafbefehls- und abgekürzte Verfahren zwischen Effizienz und Gerechtigkeit (Bern, Stämpfli, 2013) 237: ‘Das eigentliche Problem besteht darin, dass die kurzen Prozesse weiterhin an Grundsätzen gemessen werden, die für das ordentliche Verfahren entwickelt wurden.’ (‘The problem is that modern criminal procedure is still measured against principles that have been designed for trial proceedings.’)

242  Eric J Miller to ensure all criminal wrongdoers are prosecuted by the state, perhaps at a criminal trial.10 The police are participants in the process of criminal adjudication: as the ­officials who gather evidence and suspects for prosecution, trial, and punishment. The police are, on this view, primarily prosecutorial adjuncts, collecting evidence for use at trial. However, the adjudication-oriented view of the police undersells the variety of police activity within the criminal justice system. A role-based approach, because it does not take an integrated or reductivist view of the criminal justice system as organised around one process or one value, contemplates a plurality of activities characteristic of criminal justice agents. These activities are limited: police-characteristic activities are different from ­prosecutor-characteristic activities or witness-characteristic activities. And some activities are associated with the trial, and some are not. When a police officer is investigating a crime and amassing evidence for the trial, she may engage in police-characteristic activities; when she testifies at the trial about what she found, she has switched roles, to that of a ­witness. Her testimony may gain additional authority because of her role-based status as a police officer. But so does a doctor’s testimony, and nobody suggests the latter is performing surgery when testifying at trial. Identifying the conceptual ­limits of these different roles, and in particular the irrelations between policing, prosecution, and testifying reveal that fair policing and fair trials are only contingently related, because policing and trials are only contingently related. On this pluralist view, the trial is not the root from which other branches of criminal procedure extend (pre-trial, post-trial, and in-trial). The police do not only serve to call criminal offenders to account. On the contrary, in many criminal justice ­systems, the overwhelming majority of civilians that have contact with the police will never meet a prosecutor or see the inside of a courtroom. Other features of the police role, not aimed at prosecution, take full advantage of police criminal j­ustice powers to investigate, arrest, search, and interrogate, and perhaps even ­punish. The pluralist approach to criminal procedure suggests that we should not ­primarily understand policing in its relation to trials and punishment (the adjudicative approach) but rather the practice of trials and punishment should be understood in its contingent relation to policing and the role of the police. Proceduralism is a prominent feature of the recent interest in elaborating a theory of criminal procedure as part of a philosophy of punishment or criminal law.11

10  While I do not claim that anyone holds the process-based view in the way I have articulated it, some come close. For example, one group of proceduralists claim that the trial ‘should play a central role in a liberal polity’s system of criminal justice.’; RA Duff, L Farmer, S Marshall, and V Tadros, The Trial on Trial Volume 3: Towards a Normative Theory of the Criminal Trial (Oxford, Hart Publishing, 2007) 167. On this view, ‘most cases should go to trial, and to a contested trial at that—a trial at which the defendant answers to the charge’, at 168. 11 For a statement of this programme, see, eg, SE Marshall and RA Duff, ‘Criminalization and ­Sharing Wrongs’ (1998) 11 Canadian Journal of Law and Jurisprudence 7, 12–15; SE Marshall and RA Duff, ‘Criminalization and Sharing Wrongs’ in PH Robinson, S Garvey and K Kessler (eds), Criminal Law Conversations (Oxford, Oxford University Press, 2009); RA Duff, ‘Theorizing Criminal Law: A 25th Anniversary Essay’ (2005) 25 OJLS 353; as well as the essays by D Dripps, M Thorburn, and P Roberts in Duff and Green (n 4); See also Y Lee, ‘What is Philosophy of Criminal Law?: Review of The Oxford Handbook of Philosophy of Criminal Law by John Deigh and David Dolinko, eds’ (2014) 8 Criminal Law and Philosophy 671.

A Fair Cop and a Fair Trial 243 The role-based approach suggests this proceduralist turn must be treated with caution. While there are important overlaps,12 there are also discontinuities between the concept and value of police and the concept and value of punishment.13 Proceduralism identifies a tight relationship, conceptually and normatively, between the sorts of police activity justified by the criminal law and prosecution (whether resulting in a trial or its substitute, the plea bargain). On one influential view, a primary purpose of the criminal law is to ensure that offenders who wrong the public in some relevant way are forced to account to the public for their wrongs, ideally in some formal public forum.14 On this view, the criminal trial is the core criminal justice institution to which policing under the criminal law is directed. Normatively, we might think that the purpose of public accounting is a good thing,15 such that every member of the public ought to ensure, or at least try to ensure, that criminal wrongdoers are brought to account.16 Criminal trials thus provide criminal wrongdoers and the public the right sort of opportunity to engage as responsible agents with their public wrongdoing. The proceduralist view asserts that normatively, there is a conclusive (and perhaps absolute) reason for the public to prosecute crimes through criminal trials. The role-based claim that policing—including policing under the criminal law— is trial-independent challenges these normative and conceptual claims. The rolebased approach includes the claim that the police permissibly use the criminal law to engage in public order policing and low-level criminal dispositions that avoid trial and sometimes even public censure. On this view, normatively, the police lack a conclusive or absolute reason to send people to trial even for the sort of wrongs typically characterised as public. Ensuring individuals are publicly prosecuted, let alone brought to trial, need not be a function of policing, even when policing under the criminal law. One reason for supposing the picture to be morally complicated in ways not captured by the procedural perspective, I shall argue, is the asymmetry of prosecution

12 See, eg, the important debate between Malcolm Thorburn and John Gardner, or the important contributions by François Tanguay-Renaud, Michelle Dempsey, and Alice Ristroph. The ThorburnGardner debate spans four articles: M Thorburn, ‘Justifications, Powers and Authority’ (2008) 117 Yale Law Journal 1070; J Gardner, ‘Justification under Authority’ (2010) 23 Canadian Journal of Law and ­Jurisprudence 71; M Thorburn, ‘Criminal Law as Public Law’ in Duff and Green (n 4); and Gardner (n 4). See also J Gardner and F Tanguay-Renaud, ‘Desert and Avoidability in Self-Defense’ (2011) 112 Ethics 111; Dempsey (n 4) 86 f; MM Dempsey, ‘Public Wrongs and the ‘Criminal Law’s Business’: When V ­ ictims Won’t Share’ in R Cruft, MH Kramer and MR Reiff (eds), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford, Oxford University Press, 2011) 254, 257; and A Ristroph, ‘Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure’ (2015) 95 Boston ­University Law Review 1555. 13  See, eg, Ristroph (n 12), arguing the role of the criminal defendant is one that has its place in the trial process, rather than the regulation of the police. 14  See, eg, Duff, ‘Relational Reasons and the Criminal Law’ (n 4) 196: ‘the criminal trial is perhaps the central feature of a system of criminal law, and provides the central justifying purpose of the substantive criminal law’. 15  Whether or not it is a conceptually necessary aspect of the criminal law. 16  See, eg, Duff, Punishment, Communication, and Community (n 4) 28, suggesting that the ‘moral weight’ of the ‘conceptual point’ about criminal law as a system of public censure consists in the value of providing victims with an avenue through which concern for their plight is publicly recognised, as well as a means of calling victims to account and atone for their wrongs.

244  Eric J Miller and policing. For a fair trial, it is always the case that the process of interrogating and bringing the defendant to trial must itself be fair, at least in the sense of following the rule of law.17 Accordingly, if the trial is to be fair, the police must act fairly in upholding the criminal law (at least, during the interrogation and apprehension stages of the trial). If the police act unfairly during the trial-relevant parts of the process, then the resulting trial is unfair. But the direction of implication does not go the other way; it is not the case that police action upholding the criminal law, fair or unfair, always results in a criminal trial, let alone a fair one. And this separation of the trial and the police is, I shall argue, a conceptual feature of the police role, one that has normative and empirical implications for the criminal justice system. I shall begin by briefly describing some examples of trial-independent policing. A feature of these examples is that the police intervention is justified by the criminal law. I shall then suggest that these features of police activity are not parochial aspects of local legal authorisation, but reflect conceptual features definitive of the police role in any society. The police role is characterised in part by the special powers police officers wield, the special obligations they are under, and the special permissions they are granted to act upon, in virtue of their role. And these normative features enable the police to impose themselves on the public in ways that have significant material and normative consequences, albeit consequences that do not always result in trial. I shall then argue that, while the powers of the police help identify those individuals that any society designates as occupying the police role, the obligations of the police define the standards that necessarily govern police conduct. Some of these standards are related to the adjudicative process of gathering evidence and ­individuals for criminal prosecution and punishment. Some are not. Of course, criminal procedure need not, and perhaps should not, attempt to delimit all the obligations of the police. Parochial legal systems can, and should, come up with locally specific, adequate ways of holding the police to account. There is, nonetheless, a danger that in reducing the criminal justice role of the police to that of pre-trial criminal investigation, the plural non-investigative aspects of policing will evade the law’s coverage. II.  WHAT POLICE DO

Much police activity on the street does not aim at criminal prosecution or the imposition of criminal punishment, but instead seeks to impose non-criminal sanctions, to identify individuals as subject to surveillance, to report individuals to coordinate state institutions outside the criminal justice system, to resolve petty disputes, to pre-empt public wrongdoing, to restore public order, and so on. The reasons for engaging in this sort of police activity are thus not reasons to prosecute or punish the targets of police activity—reasons that may, in turn, generate reasons to constitute these targeted individuals as criminal defendants. Nor are they even reasons to try

17 

See, eg, Ristroph (n 12).

A Fair Cop and a Fair Trial 245 to prosecute or punish, however unsuccessfully.18 Rather, the police often have adjudication-independent reasons for targeting certain individuals for surveillance, arrest, search, or interrogation, and these reasons serve the special interests of the police independent of the other aspects of the criminal justice system. The community maintains public order (or more insidiously, engages in social control) by, among other things, enacting laws that make it easy for the police to maintain the peace in public and semi-public spaces.19 A variety of low-level crimes help the police to control public and semi-public spaces: criminal trespass, vagrancy, loitering, and traffic offences. Each of these crimes makes it an offence to be up to no good when out and about. Each of these crimes typically imposes small but significant sanctions for engaging in the wrongful conduct. The ways in which individuals directly violate these laws are relatively minor. Nonetheless, given the criminal sanction imposed for such wrongdoing, arrests for any of these offences could, and on some views should, result in a public trial.20 In fact, however, many of these offences result in a less theatrical sanction, such as a public caution, or a sanction that is invisible to the general public, such as the issuance of a traffic-ticket, pleading guilty, and paying the fine. Here, criminal justice values clash: the state, acting on behalf of the public, holds the individual wrongdoer accountable in a manner that is swift and efficient and which may sufficiently signify to the wrongdoer that she has done a public wrong (and perhaps to atone to the cautioning officer for that wrongdoing). But if the criminal justice system is to serve its more-lofty expressive ambitions, or to provide the offender with more formal opportunities to contest her charge or sanction, then this efficiency is purchased at the cost of a core criminal justice proceeding: the trial.21 The gap between intervention and prosecution—between the policing aspect and the trial aspect of the criminal justice system—is consistent with a gap between the role of the police, on the one hand, and that of the prosecution (and the other

18  On the difference between reasons to try and reasons to succeed see, eg, J Gardner, ‘The Wrongdoing that Gets Results’ (2004) 18 Philosophical Perspectives 53, discussing the difference between reasons to try and reasons to succeed; Michelle Dempsey calls these reasons to try ‘telic’ reasons, Dempsey (n 4) 86 f. They need not be expressive reasons either. 19  See, eg, A Ristroph, ‘Responsibility for the Criminal Law’ in Duff and Green (n 4) 107 ff, discussing the criminal law and criminal justice as a collective, political enterprise. 20  For example, Antony Duff’s theory of criminal law is a process by which the public holds wrongdoers to account publicly for their wrongdoing. See, eg, Duff, Punishment, Communication, and ­Community (n 4). 21  Herbert Packer has famously contrasted these two types of process as ‘crime control’, serving the values of accuracy and efficiency, and ‘due process’, valuing the dignity and autonomy of the individual. HL Packer, ‘The Courts, the Police, and the Rest of Us’ (1966) 57 Journal of Criminal Law, Criminology and Police Science 238–239; For a more detailed treatment of the underlying values, see HL Packer, ‘Two Models of the Criminal Process’ (1964) 113 University of Pennsylvania Law Review 1, 6–23; see also HL Packer, The Limits of the Criminal Sanction (Stanford, Stanford University Press, 1968) 149–246. Packer’s approach is useful because he recognises that the criminal justice system contains a plurality of values. However, Packer unhelpfully suggests these values are polar opposites, which implies a ­unitary scale of value, when the values are better understood as plural: incommensurable or incomparable. ­Furthermore, his bifurcation of the criminal justice system into just two sorts of value is overly-simplistic: other values include public welfare, public order, and so on; For a nuanced, recent re-evaluation of the Packer model, see I Kohler-Hausmann, ‘Managerial Justice and Mass Misdemeanors’ (2014) 66 Stanford Law Review 611, 626 f.

246  Eric J Miller trial-relevant roles) on the other.22 However, for a proceduralist, who might believe there are absolute or conclusive expressive, defensive,23 and penitential24 reasons to process criminal offenders through the trial process, police use of low-level crimes to engage in non-trial-oriented police activity contravenes an important constraint on criminal justice. Because these laws involve relatively common but relatively minor sorts of wrongful conduct, they are easily violated. And because they are easily violated, they can be used as a proxy to sanction members of the public for other offences that are harder to detect, but that have a significant impact on p ­ ublic order. But this proxy use of criminal punishment, while helpful for legitimating police interventions to secure and restore public order, undermines the expressive or communicative function of the criminal law.25 While an individual officer may communicate to an individual offender the multiple (real and proxy) reasons for her punishment, the message communicated to the public (through a trial, or through crime statistics) is a partial or misleading one. Take, for example, a rather mundane case: People v Luke.26 In that case, the police arrested the defendant, Derek Luke, for third-degree criminal trespass, a crime punishable by a maximum fine of $50027 or three months in jail.28 Luke was ­wandering around a high-rise public housing apartment building, appearing first on the eighteenth floor, then the fourteenth, then the eleventh. The building was designated ‘drug prone’: the police encountered him during a ‘vertical sweep’ (a floor-by-floor patrol) of the apartment block.29 When he could not give the address of the person he claimed to be visiting, or otherwise account for his presence in the building, the police arrested him, leading to his criminal charge. While the police may have suspected Luke of drug dealing, they found no drugs on his person, and never charged him with a drug crime.30 Luke’s case is not an isolated one. The vertical sweep was part of a programme, run by the New York City Police Department, designed to bring public order to public housing projects located in high crime areas throughout the city. Anyone unable

22  I recognise that one way in which classes of police officers are separated out is by further specifying their role into trial-oriented and not-trial-oriented. So, for example, the office of detective separates out those officers who investigate crimes with one eye on the trial; and in the US federal system, federal agents typically operate in this detective-role capacity. Two points worth remembering, however, are that detectives are a subset of police officers (not the other way round); and that it is an open question whether even detectives are necessarily trial-oriented or merely arrest-oriented. For some evidence that even homicide detectives are permissibly arrest-oriented see, eg, D Simon, Homicide: A Year on the Killing Streets (New York, Henry Holt, 2006) 37. 23  See, eg, Ristroph (n 12) 1582, discussing constitutional criminal procedure as establishing the right to resist the police. 24  See, eg, Duff, Punishment, Communication, and Community (n 4) 175. 25  On the communicative function of the criminal law, see Duff, Punishment, Communication, and Community (n 4) 79–82. 26  People v Luke 37 Misc 3d 73; 955 NYS2d 465 (2012). 27  NY Penal Law § 80.05 (McKinney). 28  NY Penal Law § 70.15 (McKinney). 29  People v Luke (n 26) 78, 955 NYS2d 469. 30  Luke was under probation when arrested, which may have explained an unusual feature of the case: Luke’s decision to go to trial, and to appeal. People v Luke (n 26) 76, 955 NYS2d 468.

A Fair Cop and a Fair Trial 247 to account for their presence in a public housing building during one of those sweeps could be arrested for trespass.31 But the point of the trespass arrest was to restore public order in the housing projects and to combat drug dealing by getting strangers out of the building. The trial and conviction was a contingent feature of this public order process; under the public order rubric, the police were marginally, if at all, interested in whether Luke was convicted, or even brought to trial or to plea.32 Public order is restored once Luke is out of the building. Policing vagrancy provides another justification for low-level criminal justice intervention to secure public order.33 Perhaps the most famous use of a vagrancy statute to engage in low-level public order policing was Papachristou v City of ­Jacksonville,34 where a Florida vagrancy statute criminalising street conduct was condemned as constitutionally vague because it authorised the police to engage in what appeared to be little more than an act of aggressive racial profiling.35 When used as a tool for combating illegal street-dwelling,36 however, the crime of vagrancy also enables the police to forcefully intervene to prevent public nuisances on the street. Vagrancy laws (or one of the cognate crimes, such as loitering)37 may be designed to legitimise police interventions with the squeegee workers or ‘street performers’ or other aggressive panhandlers whose main source of income derives from hassling passers-by for cash. Creating low-level offences to capture this sort of behaviour seems to authorise police public-order interventions and resolutions of most of these problems on the street, rather than prosecutions of such activity through criminal trials.38 ­Papachristou and City of Chicago v Morales39 have placed

31  The programme had a major impact on the quality of life of the residents of such housing projects, and not always for the good. For example, the American Civil Liberties Project filed a lawsuit claiming, among other things, that ‘[m]any tenants who live in Clean Halls buildings are restricted in their ability to main-tain familial ties and friendships due to the use of aggressive police tactics in their homes. The program is part of a citywide practice of suspicionless police stops and arrests that primarily impact communities of color’. WJ Stuntz and J Hoffmann, Defining Crimes, 2nd edn (Alphen aan den Rijn, Wolters Kluwer Law and Business, 2014) 288. 32  Their marginal interest, from a public order perspective, is in whether Luke would be more permanently prevented from returning because incarcerated. 33  See, eg, RL Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (Oxford, Oxford University Press, 2016); MD Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York, Columbia University Press, 2005) 50–59; WJ Stuntz, The Collapse of American Criminal Justice (Cambridge, Belknap Press, 2011) 209, 219. 34  Papachristou v City of Jacksonville 405 US 156 (1972). 35 ibid. 36  Or whatever may be the best case for using the criminal law to target homelessness, on the assumption that there are occasions where street-dwelling may be, not simply a harm, but a wrong. 37  See, eg, City of Chicago v Morales 527 US 41 (1999) (invalidating a statute prohibiting loitering on street corners as a means of attacking gang conduct); Coates v City of Cincinnati 402 US 611, 615 f (1971), invalidating a city ordinance prohibiting loitering on the sidewalk because it is unconstitutionally vague and violates the right of free assembly and association. 38  Paradigmatically, this sort of public order policing is initiated by the police themselves, rather than a more traditional model of policing whereby the police respond to crime. For example, in elaborating their procedural model of crime and criminal law, Marshall and Duff suggest that ‘In practice, wrongdoing might be investigated only if the victim first complains to the police, and a charge might be brought and the case pursued only if she is willing that it should be’. Marshall and Duff (2009) (n 11) 229, 231. 39  City of Chicago v Morales (n 37).

248  Eric J Miller important limits on police discretion to engage in such interactions,40 but these cases do not e­xtinguish the continued availability of low-level crimes to authorise the police to engage in street-level public order policing as part of a comprehensive programme of social control. In the United States, at least, the racially-biased aspects of public order policing have added a layer of illegitimacy to this style of policing.41 Perhaps the most popular of the street-level interventions currently in use are ­traffic laws that permit the police to engage in low-level searches and seizures of vehicles and their occupants. Once again, there may be no question but that the individual has broken a traffic safety regulation. And crimes such as excessive speeding or driving without working signals do pose a danger to other vehicles on the street.42 Enforcing these laws is an important aspect of public order on our highways. But traffic laws may be misused: these laws have justifiably received a lot of negative attention as policing under these statutes has morphed (like the New York trespass programme) into a comprehensive police policy of stopping vehicles to engage in drug searches.43 And we are right to worry when perfectly ordinary criminal laws do double duty as proxies for other crimes. Thus (given the sheer volume of traffic prosecutions and low punishment meted out for most of them), we might rightly wish to keep the policing and punishment of traffic offences strictly separated from the sorts of investigatory activity that leads to high-level punishment by disempowering ­traffic police from accessing the adjudicative system and its penal process.44 Policing practices associated with trespassing, vagrancy, and traffic laws have recently formed part of the police practice of engaging in what, in the United States, is called ‘quality of life’ policing, and what in the United Kingdom is called ‘antisocial behaviour’ policing. In each country, the practice has proved controversial, in part because of the proxy nature of much of the use of the criminal law to justify that policing.45 40  See, eg, D Livingston, ‘Gang Loitering, the Court, and Some Realism About Police Patrol’ (1999) Supreme Court Review 141; D Livingston, ‘Police, Community Caretaking, and the Fourth Amendment’ (1998) University of Chicago Legal Forum 261; D Livingston, ‘Police Discretion and the Quality of Life in Public Places: Courts Communities, and the New Policing’ (1997) 97 Columbia Law Review 551. 41  See, eg, J Fagan, ‘Terry’s Original Sin’ (2016) 101 University of Chicago Legal Forum 43. 42  See, eg, J Gardner, ‘Relations of Responsibility’ in Cruft et al (n 12) 87, 98, discussing the way in which the criminal law applies to drivers of motor vehicles; Antony Duff frequently refers to this type of regulation as a core example of mala prohibita. See, eg, Duff, ‘Responsibility, Citizenship, and Criminal Law’ (n 5) 125, 129; Duff, ‘Relational Reasons and the Criminal Law’ (n 4) 175, 192. 43  See, eg, CR Epp, S Maynard-Moody and DP Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (Chicago, University of Chicago Press, 2014). 44  In America, the state of Virginia undertook just this policy, categorising traffic offences as subject to a non-custodial sanction. See Virginia v Moore 553 US 164 (2008). Where successful, such r­ e-categorisation could have a profound impact on policing and punishment; In terms of filing, traffic offences dwarf all other filings and amount to more than 50% of all cases before the state courts in 2010. See R LaFountain, R Schauffler, S Strickland and K Holt, Examining the Work of State Courts: An ­Analysis of 2010 State Court Caseloads (Williamsburg, National Center for State Courts, 2012) 3. As far back as 1972, the Supreme Court addressed the prevalence of traffic cases; In Argersinger v Hamlin 407 US 25, 34 (1972) the Court compared traffic and other criminal cases, noting that while there are ‘annually between four and five million court cases involving misdemeanors … extrapolations indicate that there are probably between 40.8 and 50 million traffic offenses each year’ (citations omitted). 45  M Thommen, ‘Tolerance and Antisocial Behaviour’ in A von Hirsch, K Seelmann and W Wohlers (eds), Mediating Principles, Begrenzungsprinzipien bei der Strafbegründung (Baden-Baden, Nomos ­Verlagsgesellschaft, 2006).

A Fair Cop and a Fair Trial 249 Historically, however, public order policing has not been part of a comprehensive policy of drug interdiction or neighbourhood improvement.46 The crimes of trespassing, vagrancy, traffic offences, and so on, are also part of the everyday process of keeping the streets safe and orderly. And that goes for historically more important crimes: the mala in se. Consider the case of ordinary assault. According to Ashworth and Horder, around 42 per cent of all incidents of violence involve no injury, and around 22 per cent involve an assault causing only minor injury.47 Many of these violent incidents may involve nothing more than an argument that has got out of control and escalated into a shoving match or a minor fight.48 For the most part, the police response may be simply to separate the individuals involved in the fight and ensure that each goes on their separate ways, or at most to issue a caution, at which point public order is restored. But in each case, the wrongdoer has also violated a criminal law making her liable to criminal prosecution and a trial. So far, I have claimed that, in the context of public-order policing, the trial is not the goal towards which criminal law enforcement is oriented. Instead, the public order policing example suggests that one purpose of the criminal law is its ability to provide the police with legal authorisation to engage in acts of social control so as to enforce public order.49 At the bottom of the system, where the goal is not to punish crime or disorder, but to control and discipline it, the relationship between policing and the trial comes apart. This separation of the policing and the trial is, I shall claim, more than a pragmatic feature of the law: it is also a conceptual one, and perhaps a normatively valuable one too. Policing and prosecution, though conceptually separate, are often pragmatically related. Though prosecution need not be the purpose of much low-level police activity, it may nonetheless be its result. One need not aim at a particular effect to produce it.50 Prosecutors, for reasons of their own, may treat the evidence g­ athered by police as a reason for pursuing criminal charges; in some legal s­ystems, such ­evidence may even operate as a mandatory reason for prosecutors to pursue ­criminal charges.51 In some legal systems, or in particularly high-stakes ­ circumstances, prosecutors may even take on the role of ‘investigator-in-chief’, and so assume part of the police role.52 Where matters are legally complex, and the targets of ­policing sophisticated and well-resourced, then the investigative role may have to be ­supplemented with some state official adopting the role of legal counsellor.53 Such arrangements may appear to reduce the police role to that of the prosecutor’s ­evidence-gatherer-in-chief—a feature of what Mirjan Damaška calls the hierarchical

46 

See, eg, Dubber (n 33). Ashworth and J Horder, Principles of Criminal Law, 7th edn (Oxford, Oxford University Press, 2013) 308. 48  But see ibid 309, discussing psychological harms that can result from physical assault. 49  See generally Wilson (n 3) 16 ff. 50  Dempsey (n 4). 51  See Dempsey (n 4). Dempsey thinks that mandatory prosecution undermines the prosecutorial role. 52 See, eg, D Richman, ‘Prosecutors and Their Agents, Agents and Their Prosecutors’ (2003) 103 Columbia Law Review 749, 768: ‘On the investigative side of the equation, tactical choices and enforcement agendas are inextricably intertwined, sometimes dramatically’. 53 ibid. 47  A

250  Eric J Miller structure of criminal p ­ rocedure.54 But that feature of policing is a pragmatic rather than conceptual one. This structural differentiation of roles has constitutional significance.55 Even when the police are subject to a certain amount of hierarchical prosecutorial control, the police role remains conceptually independent, in important ways, of the prosecutorial role.56 These different roles in turn enjoy different relations to trials and other parts of the legal process that cannot be reduced to each other. The conceptual independence of police and prosecutorial roles implicates the institutional interactions of different bodies within the criminal justice system, and as agents of the state more generally, along with the different legal normative statuses (if any) of civilians, and the rights that they can legally claim against the state through the criminal justice system. III.  THE POLICE ROLE

What is the role of the police? For the most part, attempts to provide an answer have emerged from parochial ethnographies that seek to understand the activities of the officer on the street of some particular town or country, and so emphasise features of policing in particular localities or jurisdictions.57 Others in this sociological tradition have attempted a somewhat more general account derived from the core functions of the police at the level of a given society, where that society could be defined geographically or temporally.58 But, quite apart from these moreor-less particularist accounts, we could attempt to describe features that all police must universally possess and aspire to:59 the bundle of powers, duties, permissions, and so on that are conceptually characteristic features of the police as a particular ‘social role’.60

54  M Damaška, ‘Structures of Authority and Comparative Criminal Procedure’ (1975) 84 Yale Law Journal 480; under the ‘legality’ model of prosecution popular in continental Europe, ‘[n]ot only is there to be no punishment unauthorized by law, but all punishment required by law is to be imposed’. D Dripps, ‘The Substance-Procedure Relationship in Criminal Law’ in Duff and Green (n 4) 409, 417. But even the legality model cannot preclude the need to make rulings on the street to determine whether a particular activity constitutes a crime. 55 European legal systems, and legal systems modelled on them, tend to follow the hierarchical ­structure. Anglo-American legal systems tend to take a different tack. Under these ‘coordinate’ modes of criminal justice organisation, different institutions and offices—for example, the prosecutor, the magistrate, and the police—are much more independent of each other. See Damaška (n 54); on the coordinate model, the police and the prosecutor establish a ‘bilateral monopoly’ over the investigation-and-charging process, in which each operates as mutually dependent semi-sovereigns. See, eg, Richman (n 52). 56  Dempsey (n 4). 57  Skolnick (n 3); Muir Jr (n 3); Wilson (n 3). 58  Bittner (n 3); Davis, Police Discretion (n 1); R Reiner, The Politics of the Police (Oxford, Oxford University Press, 2010). 59  See, eg, J-P Brodeur, The Policing Web (Oxford, Oxford University Press, 2010) 17–41. 60 L Green, ‘Law and the Role of a Judge’ (2014) Oxford Legal Studies Research Paper No 47/2014, 10.

A Fair Cop and a Fair Trial 251 Social roles are public, normatively structured ‘practical identities’:61 the occupations, statuses, stations, and so on62 by which we identify, organise, and pursue a variety of activities—from bell-ringer63 to school teacher to police officer. Social roles endow these activities or pursuits with a certain character or significance, based on the shared beliefs, values, conventions, and so on, associated with these roles.64 We identify social roles by ‘pick[ing] out [the] set of norms, values and expectations that apply to people in virtue of the fact that they hold that role’.65 On this view, a social role is ‘a cluster of norms (eg obligations, powers, permissions) that apply to its occupant, together with virtues and expectations that support those norms’.66 Roles are impersonal: role-norms apply to any of the role’s occupants just because they are acting in their role-based capacity. Put differently, they establish those ­distinctive responsibilities, powers, and permissions of the police as police—what their social role requires, enables, or allows them to do. Roles give agents agent-independent reasons for acting: reasons that are independent of the role-occupant’s prevailing personal goals.67 The school teacher ought to teach the science syllabus, whatever her religious objections; the police officer ought to protect all members of the public, whatever her religious, ethnic, or political affiliations. Some role-norms are also mandatory: they require the role-occupant to undertake certain acts, no matter that there are conflicting reasons weighing against that act. These duties exist over and above, or in the place of, those duties that any of us may have in our ordinary, non-role-based, moral capacity. While all of us have duties to uphold morally valuable laws, or help out or take control of some dangerous situation, or to remedy wrongdoing, and so on, the police have special duties to do so, derived from their role, that are distinct from the everyday ones. A core police duty is to protect the public from various misfortunes.68 The police also have a duty to uphold the law because it is the law (even when it is morally suboptimal);69 or to

61  CM Korsgaard, The Sources of Normativity (Cambridge, Cambridge University Press, 1996) 101: For Korsgaard, a practical identity is ‘a description under which you value yourself, a description under which you find your life to be worth living and your actions to be worth undertaking’. A social role is just one form of identity. Other types of practical identity which do not include social roles are class or ­ethnicity (though sometimes people mistakenly claim race or ethnicity or class to be a social role). 62  Green (n 60) 10; I am using the term ‘social role’ to identify those roles that have moral and e ­ thical obligations attached to them: something like what Christine Korsgaard calls a ‘practical identity’. Korsgaard (n 61) 101. 63  See J Raz, Engaging Reason: On the Theory of Value and Action (Oxford, Oxford University Press, 1999) 187–90, discussing the ‘social practice’ of bell-ringing. 64  J Raz, The Morality of Freedom (Oxford, Oxford University Press, 1986) 309–11. Social roles, on this view, are a type of ‘social form’, a pursuit or activity that is socially recognised such that an agent can adopt it as a life-shaping or ‘comprehensive’ goal, and others can recognise the pursuit as valuable. 65  Green (n 60) 10. 66  Green (n 60) 11. 67  J Gardner and T Macklem, ‘Reasons’ in JL Coleman, KE Himma, and SJ Shapiro (eds), Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, Oxford University Press, 2002) 440, 469. A more direct way of saying the same thing is to say that roles impose reasons for action upon role-occupants. 68  See, eg, Gardner (n 4) 104–08. 69  See, eg, Gardner (n 4) 97, 104.

252  Eric J Miller help out or take control even at risk to themselves; or to investigate crimes on behalf of others, especially the state.70 Roles also provide agents with exclusionary reasons for action. Exclusionary ­reasons are second-order reasons: reasons about other reasons.71 Exclusionary reasons are negative second-order reasons: they justify not acting for certain reasons that would ordinarily apply. In the case of roles, the reason that role-occupants do not act on reasons that ordinarily apply to the rest of us derive from the special features or values associated with that role. So roles not only make mandatory some reasons that would be supererogatory for ordinary individuals, for example, by requiring the police to act at risk to themselves; they may also pre-emptively preclude otherwise determinative reasons from having their usual weight in the balance of reasons. Thus, even if the rest of us might be able to rely on revenge-based reasons when determining whether to pursue someone who has wronged us, the police role peremptorily excludes such reasons as a justification for police action.72 Other role-norms, though impersonal, are not duty imposing, instead identifying the police official’s ‘special legal powers to do certain police-characteristic things’.73 These are powers the police necessarily possess, if the power-holder is to count as a police officer: the powers to arrest, search, interrogate, and so on.74 Picking out those individuals in possession of these special role-powers helps us identify who formally occupies the role, even if they fail to use their powers and do nothing; or even if they act in ways contrary to their role-characteristic duties.75 A further category of role-norms are permissive, enabling the police to exercise their powers without suffering the sorts of legal repercussions that would face nonpolice agents if they did the same sort of thing. For example, a police officer may use physical force to take a suspect into custody. Absent the role-based permission, that use of force would constitute a criminal assault.76 Permissive rules often protect the role-occupant when she exercises her special role-granted powers or acts pursuant to some role-imposed duty. All these role-norms (duties, powers, permissions) typically function as an interrelated package: exercising a role-based power may impose duties to act in certain ways while conferring permissions that protect the official in the exercise of their role-based obligations.77

70 

Dempsey (n 4). exclusionary reason is a second-order reason to refrain from acting for some reason. See, eg, J Raz, Practical Reason and Norms (Oxford, Oxford University Press, 1999) 39; Gardner and Macklem (n 67) 440. 72  See Gardner and Macklem (n 67) 440 (on prosecutors and retributivist reasons); see also J Gardner, ‘Crime in Proportion and in Perspective’ in Offences and Defences: Selected Essays in the Philosophy of Criminal Law (Oxford, Oxford University Press, 2007) 213–18. For a practical example of a police officer acting on reasons of revenge, see Atwater v City of Lago Vista 532 US 318 (2001). 73  Gardner (n 4) 97, 105. 74  Thus, the conceptual features of the police role are different from those empirical features that a particular legal system happens to grant its officers or those features that any legal system normatively ought to confer upon the police. 75  See Gardner (n 4) 97, 105. Gardner notes that these police powers ‘remain their legal powers even when they are systematically abused’. 76 See, eg, MD Dubber, ‘Criminal Police and Criminal Law in the Rechtsstaat’ in M Valverde and MD Dubber (eds), Police and the Liberal State (Stanford, Stanford University Press, 2008) 92, 95 (­describing various ways in which policing, without legal permission to interfere, would constitute a crime). 77  Green (n 60) 11. 71  An

A Fair Cop and a Fair Trial 253 The social role of the police is tied to their status as, primarily, an executive institution of the state.78 A core feature of the executive role is to ensure that the laws and, more generally, the state is ‘effective’79—that the state can ensure that its directives are followed by those legal subjects within its jurisdiction. Unlike the other branches of government, the executive, including the police, is tasked not only with interpreting the laws and issuing rulings, but also with making sure legal subjects materially conform to legal directives.80 To aid them in this enterprise, executive officials are empowered and permitted to deploy a whole arsenal of incentives, both causal and normative, to enforce conformity. The police officer’s conformity-inducing powers may be physical,81 ­psychological,82 or normative.83 Sociologists tend to emphasise the physical power of the police, and take it as definitive of the police role.84 More recently, some sociologists have emphasised the psychological power of the police to produce conformity with their directives.85 Legal theorists, at least in the analytic tradition, tend to steer clear of an analysis of physical power and instead focus on normative power.86 Nonetheless, historically and conceptually, the physical power wielded by the police—the ability to shoot, tase, hit with a baton, punch, slap, kick, cuff, frisk, deploy a dog to bite, and so on—has attracted most attention from the public; and for good reason. The physical power of the police represents the most direct way in which the police may do harm, and has social and practical repercussions that extend beyond individual acts of force. However, the physical power of the police can be wielded in ways that do not anticipate criminal trials. The material power of the police is not always attached to that normative power. Even in that most paradigmatic of police activities, the arrest, the physical and normative powers of the police are independent of each other. In effecting an arrest, the police often use their physical power to take a suspect into custody. Their material power to intervene is often accompanied by a legal permission to do so. It is this permission that separates the police officer from the gunman.87 While so doing, the police also often happen to transform the normative

78  Raz (n 71) 133 (executing the law is a law-applying function; and like other law-appliers, executive officials often need to interpret the law and in so doing may create new norms). Thus, the difference between legislative, adjudicative, and executive is often a matter of emphasis rather than the presence or absence of law-creating, -interpreting, and -applying competencies. 79  L Green, ‘The Duty to Govern’ (2008) 13 Legal Theory 165, 170. 80  These directives include orders by the police, on the street, designed to promote public welfare and public safety, as well as to enforce the law. 81  What Leslie Green calls ‘social’ or ‘causal’; Green (n 79) 169. 82  See, eg, TR Tyler, Why People Obey the Law (Princeton, Princeton University Press, 2006); J ­Jackson, B Bradford, B Stanko, and K Hohl, Just Authority?: Trust in the Police in England and Wales (London, Routledge, 2012). 83  See, eg, Gardner (n 4) 97, 111. 84  See, eg, Skolnick (n 3); Bittner (n 3). 85  See, eg, Tyler (n 82). 86  Green (n 79) 170 (‘We say that law consists not only of duty-imposing rules but also of powerconferring rules; but normative power is not the only sort of power that those rules confer. We hold that a society of angels could have still have need for law and thus that coercion is not of law’s essence; but there is also a pervasive association of the ultimate capacity for coercion with the concept of law.’) 87  See, eg, Gardner (n 4) 97, 111.

254  Eric J Miller status of the civilian from a member of the public into a defendant subject to the criminal justice attention of a prosecutor.88 What effects the change in status, ­however, is the normative power to hold a defendant answerable to the state, effectuated by custodial detention. However, not every seizure results in an arrest, and not every arrest converts a suspect into a defendant. By exercising their discretion to release offenders before certain normatively important criminal justice processes attach, the police can keep their material powers (and some of their normative ones) separate from those that are related to prosecutions and trials. A.  Values and Duties Social roles may be valuable or not—prison guard is a valuable social role; death camp torturer is not—but they also constitute certain ways of pursuing value. Becoming a prison guard may enable the role-occupant to participate in the values of camaraderie, teamwork, and professionalism, as well as promoting security and justice in ways that non-prison-guards cannot. Accordingly, one reason for adopting a social role is to realise certain values in ways unavailable to ordinary members of the public. While some values are shared among many social roles (teamwork, camaraderie, and professionalism may be values shared by the military and elementary school teachers alike), others are more directly constitutive of a particular social role. These values, whether general or specific, provide reasons for role-occupants to do rolespecific things. Where the reasons are agent-independent and mandatory, and apply to the role-occupant in her role-based capacity, then the role-occupant has ­distinctive role-based duties to pursue those values. For example, Michelle Dempsey has pointed out that some of the activities that prosecutors often engage in are characteristic of the prosecutor’s role while others are not. Features characteristic of the prosecutorial role include conducting grand jury hearings, filing criminal charges, and trying criminal cases.89 Features that are not include: … things such as taking toilet breaks and telling jokes to colleagues. Clearly, when prosecutors perform these acts, they do not act qua prosecutors but rather act in their p ­ ersonal capacity. Less obvious examples include prosecutors speaking at press conferences, developing public information campaigns, organizing papers with in case files, scheduling ­hearing times on the court’s docket, and interviewing alleged victims and witnesses.90

In separating out the activities of prosecutors from secretarial staff,91 ‘public information minister’,92 and the police (or investigators more generally),93

88 

See Jackson and Summers in this volume, ch 6 104. Dempsey (n 4) 53. 90  Dempsey (n 4) 51. 91  Dempsey (n 4) 54. 92  Dempsey (n 4) 53. 93  Dempsey (n 4) 54. 89 

A Fair Cop and a Fair Trial 255 Dempsey distinguishes activities that are distinctively the prosecutors’ special business from those that are not.94 Prosecutorial actions, on this view, constitute particular ways in which prosecutors can realise certain values, often because they are actions that the prosecutor is under a special duty to or has a special power to undertake. One of the values that structure legal officials’ roles is that of having a society governed by law. In service of that value, legal officials have, in addition to the reasons the rest of us might have to be law abiding,95 an additional set of reasons to be law abiding and to encourage others to be law abiding.96 Like other legal officials, the police have a duty, derived from the value of law more generally, to uphold the law in their community (even when it is morally wrong).97 And that duty goes beyond a civilian’s ordinary moral duty (such as it is) to obey the law.98 But the police also, as members of the executive branch, have a duty not only to encourage others to comply with the law, but also to ensure that they do so. More distinctively still, the police have a duty to intervene physically in the activities of the public to ensure that they comply with the law that applies in their jurisdiction, along with certain normative powers to arrest, search, and interrogate in service of that duty. The police officer’s role-based duty to uphold the laws extends not only to criminal laws, but also traffic laws, welfare laws, and even immigration laws. The police duty to uphold the laws may be limited by positive law: but often these limits are imposed precisely because the physical and normative might of the police is so overwhelming that certain vulnerable groups need protection from police powers. Thus, for example, in America, the police often lacked the permission to police immigration laws and to arrest undocumented aliens. That permission has increasingly been awarded to local police forces as part of the hardening of American immigration policy. Police duties to uphold non-criminal law derive, in part, from the values of security and beneficence that we all share.99 For example, the police have a duty to take action when confronted with some danger undermining public safety. Consider ­Leslie Green’s example of a traffic accident, in which some person, call her Jo Public, arrives at a crossroads and finds a serious automobile accident dangerously obstructing traffic. [Jo Public] could drive on but is in no rush and can without danger to herself pull off the road and safely wave oncoming traffic around the collision.100

94 

Dempsey (n 12) 254. See J Raz, The Authority of Law, 2nd edn (Oxford, Oxford University Press, 2009) 238 f. 96  See Gardner (n 4) 97, 109. 97  See Gardner (n 4) 97, 109. 98  There is a great deal of controversy surrounding the ordinary duty to obey the law. For a representative sample of this debate, see WA Edmundson, The Duty to Obey the Law: Selected Philosophical Readings (Lanham, Rowman and Littlefield Publishers, 1998). As Edmundson notes at 1, ‘Philosophers from Socrates to HLA Hart have struggled to give reasoned support to the thought that we do have a general moral duty to obey the law but, more recently, the greater number of learned voices has expressed doubt that there is any such duty, at least as traditionally conceived.’ 99  Gardner’s duty to protect in Gardner (n 4) 97, 104; Green’s duty of beneficence; all of which are part of a general duty to govern, in Green (n 79). 100  Green (n 79) 173. 95 

256  Eric J Miller In that case, Jo Public has a duty to help out: to stop and wave traffic around the ­collision. And this duty of beneficence is, Green thinks, one that all of us have so long as we are capable of intervening at no danger to ourselves.101 The bare duty of beneficence—to promote social welfare—does not, so far, distinguish the police from the public and so is not a duty characteristic of the social role of the police.102 However, the police in addition have a duty to intervene in the traffic situation even if doing so would pose a danger to their physical safety. This duty to direct traffic even at risk to themselves goes beyond the ordinary duty of the member of the public to help out. This extra-special duty marks out the police officer as having a special status distinct from ordinary members of the public. The duty to intervene even at risk to oneself, though supererogatory for members of the public, does not distinguish the police from other first responders. All this means is that the police role is a more specific instantiation of some more general role, and includes the more general role’s duties: the role of first responder (with the duty of acting, and doing so even at risk to oneself) or the role of public official (with the duty of neutrality as between different parties).103 To identify what is distinctive about the police role within these more general roles requires more distinctive duties than these. In the case of the car accident, some distinctive features of the police role are to protect the public and to ensure legal rules are implemented in the world and on the street, not simply on the books and in the courtroom. That distinguishes the police from the fireman (as first responder, the fireman is not concerned with legal rules) and the prosecutor (as public official, the prosecutor does not marshal physical power to implement legal rules on the street). One set of rules for which the police are especially responsible in this way are the traffic laws. Where there is a traffic accident, or the traffic lights fail, it is the police that we call on by virtue of their special duties to protect and intervene to ensure that people are able to follow the laws: to ensure that one line of traffic stops or alters course so that others can move safely through the intersection or around an obstruction. And this duty imposes other police-specific duties: to be competent at directing traffic, and so on. The non-criminal, welfare-promoting aspects of the police role bring with them related permissions and powers. For example, one normative power characteristic of the police is the ability to pre-empt the actions104 of individuals who themselves have ordinary duties of beneficence to help out at the scene of an accident. If both Jo Public and a police officer arrive at the traffic accident at the same time, the police officer has the normative power as well as the role-based duty to relieve Jo Public of her traffic-directing duties.105 Indeed, the police officer’s power to take over directing traffic is in the service of her role-based duty to do so: it establishes a hierarchical

101 

Green (n 79) 170. See, eg, Michelle Dempsey on the prosecutor’s characteristic activities: Dempsey (n 4). 103  See Gardner (n 72) 213–38; see also Dempsey (n 4). 104  More accurately, their reasons to act. See Raz (n 71), 39. 105  Youngjae Lee thinks this pre-emptive power is a particular feature of the criminal law. It is, ­however, a feature of law and authority more generally, and so while it is a power that is essential to the criminal law, it is not one that is distinctive of it. See Lee (n 11). 102 

A Fair Cop and a Fair Trial 257 relation between the police-as-skilled professionals and the public who generally lack such skills, so that we know who has priority when helping out in these dangerous situations. The power to relieve Jo Public establishes this sort of priority quickly and effectively, and so short-circuits argument even if Jo Public wants to continue to help out. But the power to pre-empt also imposes derivative duties: the police had better be more expert than the public in directing traffic or they will do more harm than good. And if they are not more expert than the public, then the police will undermine their social standing—they will have failed to live up to their obligations in ways likely to disappoint the public and to cause the public to question their legitimacy. Expertise provides its own reasons too. Sometimes, circumstances call for someone to act to promote or prevent harm to some value. Suppose I am promoting culinary values by making a soufflé for the delectation of the guests at my party. It would be better, all things considered, if the soufflé turns out well. But if I am not a soufflé expert, and make a hash of it, then the fact that there is an expert who could save the soufflé gives that person a reason to act. The fact that the culinary expert has special skill, and so could prevent harm to the culinary value of the part, is a reason for the expert to act. The expert’s reason need not be very strong, and may be defeated by other reasons, but it is a reason nonetheless. Thanks to her possessing a special skill set, what is supererogatory for the rest of us incompetents is mandatory for the expert. Indeed, it is this facility in traffic-direction that provides additional reasons for the officer to take charge at the accident scene—that makes directing traffic the police officer’s business. One reason is that the police officer, as better trained, is likely to make the situation safer than Jo Public could. But another reason is that, because the officer is situationally better equipped, then she has a special reason, by virtue of her training, to intervene. Necessity dictates that someone must do something to help out, and all things being equal, people who are better equipped to help out have a stronger duty to do so than those who are less well equipped to do so.106 The police officer thus has two separate types of reason to take charge: a content-independent, authority-based reason; and a content-dependent, n ­ecessityand-capability-derived reason, both of which defeat Jo Public’s reasons to continue helping out. These special duties to intervene thus derive, in part, from membership in an organisation specially trained to help people in distress. For example, the ordinary member of the public ordinarily lacks training in techniques for dealing with dangerous individuals. The police are trained to do so, and this training imposes a special duty of protection upon the police, one that requires them to respond when others threaten violence.107 The police officers’ task-efficacy in resolving dangerous situations not only provides a reason (one of many) that applies to the officer requiring her to intervene: it also provides a reason that applies to the rest of us requiring us to desist or retreat. Accordingly, precisely because the public lacks special c­ ompetence

106  Leslie Green, following John Finnis, calls this necessity-and-capability-derived duty the ‘duty to govern’. See Green (n 79) 169. 107  Gardner (n 4) 97, 104.

258  Eric J Miller to resolve dangerous situations quickly and efficiently, members of the public should respond to violent attacks by retreating, if they have the ability to do so. The ordinary person’s reason to retreat is bolstered because the police are trained in techniques for dealing with dangerous individuals. Rather than trying to use force to defend themselves, threatened members of the public should instead call upon police expertise in diffusing the situation and making it more likely that everyone gets out alive. Special duties distinguish the police from the public. But the features that pick out police duties as special are not limited to criminal law or criminal investigation. On the contrary, police duties to intervene and investigate may derive from non-criminal law values of beneficence and security. Furthermore, the police duty to uphold the law includes non-criminal laws. Catching criminals and developing evidence for trial is but one characteristic police function, serving but one characteristic police value. B.  Duties to Investigate and Intervene A quintessential police-characteristic activity is the investigation of unsafe, harmful, or criminal activity. Investigation connects the police to other agents in the process that prosecutes, adjudicates, and punishes criminals. The distinctively policecharacteristic activity of investigation often operates in service to the distinctively prosecutor-characteristic activities of charging criminal defendants and litigating criminal cases on behalf of the state. And both these duties are instantiations of the broader law-enforcement duty to uphold the law. The adjudication-oriented, process-based approach gives special emphasis to the duty to investigate as the first stage of the adjudicative process: the process of evidence-gathering in preparation for prosecution. However, the police-characteristic activity of investigation is not limited to evidence gathering for criminal prosecution on behalf of the state. The police also have protective, beneficence, and security-grounded duties to investigate. If a police officer hears a cry of pain, then she ought to check and see what is wrong, even if it turns out that the yelp comes from an injured dog caught in some wire, or from a child stuck up a tree, or some person bitten by a fox, none of which will result in a criminal prosecution. Similarly, if a business leaves its doors unlocked, or someone is sleeping in a broken-down car on a freezing night, duties of security or beneficence require the police to establish whether the building is secure or the sleeper is safe. None of these investigations need turn up trial-relevant contraband for them to impose duties upon the police to act. Thus, in addition to law enforcement, unsafe, harmful, or wrongful acts also trigger the police duty to intervene. Intervention is often required because of the duty to uphold the law; but on many occasions, intervention follows from duties of ­protection, beneficence or safety. Thus, the police have a duty to intervene to keep the peace when individuals become disorderly; or to secure an accident scene when there is a danger to the public, or to take criminals into questioning; and so on. Not only do the police have a duty to intervene, they have a derivative duty, as executive

A Fair Cop and a Fair Trial 259 agents, to ensure that they can intervene safely and effectively, in ways that promote the well-being of all involved. They thus have a duty to possess the professional and physical capability—the expertise and material power—to do the various things they are under a duty to do. The ordinary member of the public’s duty to intervene when a crime has been committed or an accident occurs is a limited and complex one. Confronted with some borderline harmful activity, the public may have a duty not to intervene: the moral propriety of another’s conduct may be none of our business. Even though you or I may have reasons to intervene with someone else—to promote their well-being, for example—you or I may be the wrong person to do so. Someone looks glum ­sitting across from us on the bus: because the duty of beneficence provides a reason that applies to all of us, then everyone (including you or I) has a weak reason to cheer her up. But having a beneficence-based reason to help out does not entail that we should act on that reason. Instead, we should also consider whether we are likely to make matters worse if we intervene. In some circumstances, a conflicting reason not to act on the beneficence reason may be quite strong. If I, as a male stranger, encourage a woman to ‘cheer up’, I am as likely to end up participating in a noxious sexist stereotype as I am actually to succeed in making her feel better. Even if I can avoid this sort of problem, my overtures, though well-meant, may be (given the woman’s personal circumstances) unwelcome. She may just want to be left alone. Worse, in interfering, I make it my business to cheer her up. Because cheering someone up is an act best performed by someone with the relevant expertise (in this case, someone who knows this woman and what will cheer her up, such as a family member or a friend), rather than a stranger, my intervention may in fact be an act of domination or aggregation—of imposing a relationship upon her that does not exist and that is not welcome. Here, while I have reasons to succeed in cheering the woman up, I have quite strong reasons not to try. Investigating, even more than helping out, is the police officer’s special business. The police have both legal authority and, on occasion, a legal permission or a duty to investigate in certain circumstances. It is the authority to investigate that makes it the police officer’s business to do so. Other relationships do not establish these sorts of police-characteristic, authority-based reasons or permissions to intervene or investigate. The police have both a practical authorisation and a special reason to investigate where the relevant activity is sufficiently harmful to the public. Many other public officials are given police-characteristic authorisation to investigate certain types of activity.108 For the police, however, the authority to investigate is a broad one. Their status as public authorities tasked with upholding the criminal law entails that the scope of their authority is broader than non-police agencies, and makes all criminal activity the police officer’s business. The duty to investigate is simply one part of the duty to uphold the law by inquiring into those harms of which the police are aware and which they have reason to believe violate the law.

108 

See, eg, Brodeur (n 59) 17–41 (discussing the ‘policing assemblage’).

260  Eric J Miller C.  Moral Dangers of Policing The duty to intervene is a special one in a variety of ways. I have already suggested a couple. First, the police operate under this duty to intervene despite physical d ­ anger. But it is worth noting that, second, they also operate under this duty despite the moral dangers they might face. The duty to uphold the law, or any of the other duties that require the police to investigate, may place the police in a morally precarious position. While the rest of us have the ability to avoid sticking our nose into other people’s business, the police often cannot. Policing is made even harder because the police must often decide whether to investigate or intervene—whether the law or morality requires them to act—in fraught situations with little time to weigh the options under pressure of time or physical danger. The choices facing the police are also complicated by conflicts among plural ­values. Sometimes the value-conflict also reflects a social or political conflict among partisans, where the partisans are demanding the police to adjudicate the situation. In choosing values, the police run the risk of appearing to choose sides. The best way to deal with such circumstances is to avoid them. Where possible, we ought to put state officials in a position to make the best possible decisions, and to avoid requiring, if at all possible, ‘Herculean’ police.109 We want the ordinary police to be able to act upon all their duties as often as possible; and we want the sorts of decision they have to make to be those that can be made accurately when under pressure. So another feature of the police duty to intervene is that we delegate this duty to the police as neutral state officials despite certain physical dangers or moral complexities advising against intervention. It is better that some neutral and dispassionate agent (such as the police) intervene than having Jo Public do so, because physically interfering to keep the peace or investigating suspected welfare cheats to ensure they do not defraud the public is not Jo Public’s business, and may give too much scope for the expression of prejudice, or prurience, or place Jo Public in danger of retaliation. The duties that derive from the duty to intervene are themselves special ones. Intervention requires that the police become expert in a variety of skills—pacifying the public, psychologically overcoming resistance, engaging in surveillance— that can make the police very powerful, in the material sense. Becoming materially ­powerful, at least to some extent, is an important feature of the police role. But becoming materially powerful in this way, when allied with a duty to intervene, creates significant political and moral hazards. It is why we—and the police—have an interest in limiting the nature of the dangers they face. For example, police officers may be tempted to use their powers to retaliate against recalcitrant offenders. A police officer may not target a civilian for reasons

109  See R Dworkin, Law’s Empire (Cambridge, Harvard University Press, 1986) 239 (describing his ideal adjudicator, Hercules, as a ‘judge of superhuman intellectual power and patience’).

A Fair Cop and a Fair Trial 261 of revenge;110 or arrest a civilian for recording the encounter;111 although officers may repeatedly target individuals for non-custodial encounters without evidence of criminal wrongdoing, on a hunch.112 These low-visibility acts of police intervention do not take as their goal the trial or punishment process.113 When the police are under a duty to investigate or intervene they must face up to the morally fraught (never mind the physically stressful) circumstances they confront when acting on these duties. Law, however, operates to solve or resolve ­morally complex problems by providing, among other things, a mandatory or advisory ­framework for law-abiders to follow. Part of the point of the criminal law (and the law of criminal procedure) is to provide communal standards for individuals, including public officials, to use to orient themselves.114 This will prove particularly helpful in morally contentious situations in which individuals cannot avoid acting because they operate under a legal duty to intervene. Regulating role-characteristic actions thus provides the police (among other legal officials) with some guidance in navigating the difficult situations in which they may find themselves. But legal regulation creates another way in which legal officials can go wrong: the vice of ‘legal hypocrisy—the failure of law to respond appropriately to its own declared values’.115 Legal hypocrisy heaps an extraordinary moral wrong upon an ordinary one: the legal official violates her obligations to the law (or the state or the community) as well as to the person she wrongs.116 So legal guidance may both direct the official in ways that minimise her moral exposure, but at the same time multiply the ways she could go wrong (by ignoring the law).117 D.  Separating Duties However, the duty to investigate is not the duty to prosecute. Most obviously, the police lack the normative power to prosecute: their powers are to investigate and to capture and contain criminals before trial. In high-stakes cases, or in hierarchically integrated systems of law-enforcement, the police may be answerable directly to a prosecutor, and so serve as the prosecutor’s investigatory agent, where the prosecutor performs a dual duty as both lawyer and chief investigative officer.

110 

Atwater v City of Lago Vista 532 US 318 (2001). Devenpeck v Alford 543 US 146 (2004). 112  Terry v Ohio 392 US 1 (1968). 113 See Duff, Punishment, Communication, and Community (n 4); See also J Goldstein, ‘Police ­Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice’ (1960) 69 Yale Law Journal 543. 114  See, eg, EN Yankah, ‘Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness’ (2012) 7 Criminal Law and Philosophy 61, 65: ‘When I encounter a complex problem of how to treat others justly, I do not typically start with my own conception of justice divorced from legal and communal standards’. 115  ibid; see also Gardner (n 4) 97, 104. 116  Gardner (n 4) 97, 104. 117  John Gardner notes that this situation can create a Hobson’s Choice. Gardner (n 4) 97, 109. 111 

262  Eric J Miller But in many instances, policing is not so tightly vertically integrated.118 Without close prosecutorial supervision, the police are still committed to ensuring ­compliance with the law. But at the lower level, policing is not individualised, but occurs by rote and en masse. The police encounter lots and lots of individuals, and face lots and lots of decisions about how to dispose of criminally culpable individuals. And at this level, where the police may exercise some autonomy, they need not, and perhaps should not, pass low-level offenders on to the prosecutor for trial and punishment.119 Indeed, the famous American case Terry v Ohio recognised that much policing is precisely not focused on prosecution and punishment, but on public order or public welfare. The defendants in Terry were arrested because a police officer spotted them casing a department store: they had not committed any crime, but appeared to be on the verge of doing so. The officer sought to question the defendants to see what they were up to, but suspected they were armed and so that such questioning would pose a threat to his safety. He thus engaged in the sort of seizure that does not amount to an arrest: he grabbed the defendants, spun them around, and patted down their clothing for weapons: what in the jargon is called a ‘stop and frisk’. Terry expressly addressed the ways in which an adjudicative process must inevitably fail to curtail this type of police activity. The central adjudicatory sanctions of exclusion fits the trial process because it denies the state (or the ‘people’)120 the evidentiary fruits of their wrongdoing, and so precludes the state from holding the offender accountable with that ill-gotten evidence. But Chief Justice Warren, writing for the Court in Terry, noted that: [t]he exclusionary rule has its limitations … as a tool of judicial control … [I]n some contexts the rule is ineffective as a deterrent. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece … Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. Doubtless some police ‘field interrogation’ conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.121 118  See, eg, in Bivens v Six Unknown Fed Narcotics Agents 403 US 388, 416 f (1971); Chief Justice Burger (dissenting) argued that Fourth Amendment doctrine:

‘vaguely assumes that law enforcement is a monolithic governmental enterprise. But the prosecutor who loses his case because of police misconduct is not an official in the police department; he can rarely set in motion any corrective action or administrative penalties. Moreover, he does not have control or direction over police procedures or police actions that lead to the exclusion of evidence. It is the rare exception when a prosecutor takes part in arrests, searches, or seizures so that he can guide police action.’ 119  Refusing to pass offenders on to the prosecutor is an example of the police discretion described by Kenneth Culp Davis. See, eg, Davis (1975) (n 1). 120 Duff, Punishment, Communication, and Community (n 4). 121  Terry v Ohio (n 112)13 f (emphasis added).

A Fair Cop and a Fair Trial 263 While the Terry Court has received a bad reputation in certain circles for this sort of exclusionary rule-scepticism, the Court at least recognises the contingent nature of the trial for the police in a plural system of criminal justice. If we focus primarily on trials and punishment, then we are likely to think that the adjudicative aspects of policing are the only relevant ones. However, a more pluralistic approach to the various values and functions of policing suggests that, as a conceptual matter, it is far from clear that the adjudicative process is the core aspect of policing. Terry addressed the plurality of police-characteristic activity, and the limitations of the adjudicative process, to address protective or beneficent policing head on. Policecharacteristic activity animated by these other values may, the Court suggested: be designed simply to help an intoxicated person find his way home, with no intention of arresting him unless he becomes obstreperous. Or the police may be seeking to mediate a domestic quarrel which threatens to erupt into violence. They may accost a woman in an area known for prostitution as part of a harassment campaign designed to drive prostitutes away without the considerable difficulty involved in prosecuting them. Or they may be conducting a dragnet search of all teenagers in a particular section of the city for weapons because they have heard rumors of an impending gang fight.122

The process of identifying offenders and amassing evidence against them is only one part of the policing process, though it may be a central part of the trial process. But these aspects of policing, although marginal to the trial, are not a peripheral part of the policing process; conceptually, these other aspects of policing depend upon the non-adjudicative duties characteristic of the police role. If all we focus on is the adjudicative process, we miss out on some core police-characteristic activities. IV.  MASS POLICING AND MASS ADJUDICATION

So far, I have argued that policing responds to a plurality of values, only some of which are trial-oriented. These non-adjudicative values, and the various processes through which the police pursue those values, are a proper concern of the criminal justice system, because of the way the police invoke their material and normative resources to achieve their goals. The proceduralist view I have targeted is a normative one about how a trial process should operate (not how it does operate). It might seem immune to a conceptual or functionalist point about the police role. However, the challenge presented by the conceptual or functional critic operates as a normative version of an error ­theory:123 even

122 

Terry v Ohio (n 112)13. For a paradigmatic discussion and presentation of an error theory, see JL Mackie, Ethics: Inventing Right and Wrong (London, Penguin Books, 1990) 35. Error theories have two premises. The first identifies a conceptual claim the central terms and concepts of some discourse; the second makes a metaphysical claim: that the terms or concepts identified in the first premise are not possible or realised in the world; and from these two premises draws the conclusion that the discourse using these terms or concepts systematically misleads us. The normative version of the error theory has the same structure: the first premise identifies a normative claim about the central reasons or duties imposed upon some agent and the sorts of normative demands these reasons make; the second premise makes an empirical claim: that the relevant 123 

264  Eric J Miller if trials should operate as proceduralists claim, they could not do so.124 The proceduralist reason for having trials is to make whole the community through a process of holding wrongdoers publicly accountable. The role-based point rests upon an empirical claim: that putting into practice a trial-requiring system actually undermines social welfare in ways that do in fact break apart the community.125 At the lowest levels of the criminal justice system, the proliferation of trials is a fragmentationary process that separates out groups into different communities and pits one community against another.126 Accordingly, the normative demand for criminal trials as an integrative social process is systematically unrealisable at the bottom of the system. The result is a turn to other criminal justice processes to do justice to the offender and the community as a whole. And this more pluralistic approach to criminal procedure questions both the centrality of the trial to the criminal justice process, as well as its location in the criminal justice system. The police-relevant projects of order-maintenance, public welfare, and even investigation are not uniquely or even primarily directed towards punishment understood as imprisonment or fine—that is, punishment after adjudication. It is also and perhaps most often a trial-independent process of social control.127 A night or two in jail, without charge or interrogation, may be one of the ways in which the police do—and perhaps should—dispose of low-level offenders. The trial is thus one, but only one, criminal justice process. It happens to be a particularly formal one, and may be a conceptually (if not practically) important one. Nonetheless, if we treat the central locus of criminal justice protections as the trial, or regard the core function of the police as the collection of evidence, or regard the protections against state action as bound up with the role of the criminal defendant, then we risk reifying what Sarah Summers calls the ‘trinitarian’ adjudicatory model—the judge, the prosecutor, and the defendant—as the core elements of the criminal justice system.128 In so doing, we fail to acknowledge the role of the police, and the plural ways in which state agents interfere with civilians through the criminal justice system.

agents cannot realise normative demands identified in the first premise; and so proceeds to the conclusion, based on the first two premises, that the normative demand advanced by the theory is systematically unrealisable by an agent in the world. 124  For a parallel point, see Duff et al (n 10) 168. The version of the empirical challenge discussed by Duff, Farmer, Tadros, and Marshall, is that of volume. My proceduralist version of their view is that proceduralists want as many criminals to go to trial as possible; however, empirically, putting that goal into practice would overload the system; accordingly, the normative demand for trial-based process is systematically unrealisable. 125  Indeed, the very public that the fair trial people seek to consolidate through the process of public communicative criminal justice ceremonies. 126  See, eg, Stuntz (n 33) 6 (discussing ways in which rich communities sit in judgement on poor ones in the USA). 127  See, eg, Terry v Ohio (n 112). 128  SJ Summers, Fair Trials: the European Criminal Procedural Tradition and the European Court of Human Rights (Oxford, Hart Publishing, 2007) (arguing that there is a common tradition of European Criminal Procedures that lies at the heart of the European Convention on Human Rights. She calls it the ‘accusatorial trinity’).

A Fair Cop and a Fair Trial 265 A.  Policing, Public Welfare, and Criminal Trials The public welfare and public order aspects of policing have an effect on trials. The criminal law, I have suggested, legitimises police interventions to secure order and pursue social welfare. But if the criminal law justifies intervention, it is because the police suspect the individuals they stop to have committed some crime: some wrong against the public or against the authority of the state to regulate public conduct. The classic way in which we sort these suspects out into law-abiders (innocents) and law-breakers (criminals) is through the trial. But because trials are a contingent aspect of policing, the police in practice can, and normatively ought to, weigh the desirability of the trial against the social, economic, and moral effects of the trial on the individuals the police adjudge as wrongdoers. In practice, the police may not pursue many of these people: but is this a morally appropriate choice? The proceduralist view asserts that there is an important normative link between criminal law and trials: that there is a conclusive or absolute reason to ensure that criminal wrongdoers (individuals who violate the criminal law) stand trial. But the police do not do wrong when they fail to ensure criminal offenders stand trial: they may actually do good.129 Put differently, the police do not necessarily fail as police when their investigatory actions do not result in them passing the criminal offender on for prosecution or punishment. In fact, much of the ‘new penology’ of criminal justice suggests that the guiding stars of criminal accountability are no longer guilt or innocence, but social control through risk management.130 In the United States, and perhaps elsewhere, we now have a two-tier system of criminal justice, in which those on the bottom are afforded a different system of social control than those at the top. As Issa Kohler-Hausmann describes it (echoing Malcolm Feeley’s work from a generation ago),131 there are two systems of criminal justice and adjudication: a high-end ‘adjudicative’ model that fits the trinitarian description of due-process or rule-of-law type proceedings, culminating in the punishment of the guilty offender; and a low-level ‘managerial’ model that identifies and supervises offenders over time as socially responsible or irresponsible and, if irresponsible, subject to particular, individualised, interventions.132 Kohler-Huasmann insists that the managerial model of criminal justice is not primarily aggregative, but retains certain individualising features: the whole point of this managerial process is to sort and assess individuals as liable for certain interventions based upon their response to supervision and social control.133 The system is

129  In Duff’s terms, they do not subvert the criminal law when they fail to ensure that criminal offenders stand trial. See RA Duff, ‘Perversions and Subversions of Criminal Law’ in RA Duff, L Farmer, SE Marshall, M Renzo and V Tadros (eds), The Boundaries of the Criminal Law (Oxford, Oxford ­University Press, 2010) 97–102. 130 M Feeley and J Simon, ‘The New Penology: Notes on the Emerging Strategy of Corrections and its Implications’ (1992) 30 Criminology 449, 452; see also J Simon, ‘Managing the Monstrous: Sex ­Offenders and the New Penology’ (1998) 4 Psychology, Public Policy, and Law 452–453. 131 I Kohler-Hausmann, ‘Misdemeanor Justice: Control without Conviction’ (2013) 119 American Journal of Sociology 351, 356. 132  Kohler-Hausmann (n 21) 623 f. 133  Kohler-Hausmann (n 21) 627.

266  Eric J Miller set up to identify offenders over time through their contacts with the criminal justice system, place certain performance obstacles in their way—compliance with court orders, turning up on time for hearings, and so on—and then to assess the individual offender’s performance in surmounting these obstacles.134 The goal, on the managerial model, is to identify which offenders are socially responsible and which are not, and then use a variety of remedies to engage in a process of self-transformation or ‘responsibilisation’ for the incorrigible or irresponsible.135 The low-level system is thus a system of social control that operates independently of the trial or of traditional punishment. The congenitally incorrigible may find themselves in the traditional, high-end system of adjudication; the responsible may find themselves avoiding the system altogether after an initial encounter; and the rest may go through a more-or-less lengthy period of criminal-justice empowered supervision by the police, the prosecutor, and the court. In this managerial system, guilt and innocence, and public accountability are external to the system. Policing in the shadow of these two systems presents real moral problems for the police, and especially for the community policing model of criminal justice. Jeffrey Fagan has discovered that the impact of high-level (as opposed to low-level) prosecution at the level of the community is profound.136 The practice of drug policing and conviction in New York City in the 1990s ensured the incarceration rate remained much higher than the crime rate, in part because incarceration and policing became an endogenous factor at the community level, driving crime and further ­incarceration.137 Incarceration became a reason why many former felons could not find work, and for employers to disinvest in communities identified by a toxic combination of crime, poverty, and race.138 In New York City, at the same time as the police force engaged in its policy of vertical sweeps, it was apparent that the impact of incarcerating people like Luke for crimes such as third-degree trespass would have a major negative impact, not only on him but on his community. In America, at least, the difference between felony and misdemeanour ­ caseprocessing and procedure is stark. The relationship between the two is succinctly summarised in Alexandra Natapoff’s image of the criminal justice system as a pyramid: At the top, where cases are serious or defendants are well represented, procedures are enforced by judges, prosecutors and defense counsel. As a result, law and evidence matter a lot … By contrast, at the bottom where offenses are petty and procedures are weak, law and evidence hold little sway over outcomes. Instead, convictions are largely a function of being selected for arrest.139

134  Kohler-Hausmann (n 131) 380 (using the terms ‘marking’ and ‘hassle’, for what I call ‘identification’ and ‘performance’). 135  EJ Miller, ‘Drugs, Courts, and the New Penology’ (2009) 20 Stanford Law and Policy Review 417, 441 (discussing responsibilisation and self-transformation in the context of drug courts). 136  J Fagan, V West, and J Holland, ‘Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods’ (2003) 30 Fordham Urban Law Journal 1551. 137  ibid 1589. 138  See, eg, L Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham NC, Duke University Press, 2009) 62 (discussing the relation between race, penal policy, and poverty). 139  Natapoff, ‘Misdemeanors’ (n 2) 1317.

A Fair Cop and a Fair Trial 267 The pyramid metaphor most obviously represents misdemeanours, and the courts that process them, as part of a unitary structure. The legal practice and procedure applicable to every part of the pyramid is part of a continuum of values that shape the law, or perhaps the criminal justice system, as a whole. Accordingly, misdemeanour courts are different in quality, but not necessarily in kind, from the felony courts at the top of the pile. Natapoff’s pyramid metaphor, however, warrants cautious handling. After all, Kohler-Hausmann’s work suggests that the base of the pyramid may be constructed using radically different materials from those at the apex: so different that the ­bottom may turn out to be a distinct sort of structure from that at the top. For example, Natapoff’s claim that lower-level-criminal-court process is distinguished by its more aggregative and informal style of decision-making suggests, not a unitary structure, but a bifurcated one that uses different materials for construction at the base (informality, risk, and surveillance) than at the summit (formality, guilt, and punishment). The worry about mass-case processing thus raises the worry that, at some point, the difference in volume becomes a difference in kind. At the top, the system is the traditional one of criminal punishment; at the bottom, it is one of surveillance and social control. The sorting of low-level risks from high-level crimes alters the provision of criminal justice at the bottom of the criminal justice pyramid. Certainly, the low-level system may be more dependent on plea bargains than trials. But, in addition, the process more rarely reaches the point of punishment: because the purpose of criminal justice at the low end is often supervision, the system stops short of a trial, instead tagging the individuals for further scrutiny and ‘responsibilisation’,140 and throwing them back into a large and growing pool of individuals under the criminal, but nonpenal, surveillance of the criminal justice system. The concept of the police raises a different problem in the face of this bifurcated system of criminal accountability. The different problem is that holding p ­ eople criminally responsible for what is essentially low-level disorder treats them as too ­responsible. Consider, once again, Luke’s criminal trespass charge. Trespass is a ­pre-legal wrong: it is an offence against property rights and so (on at least one definition) is a malum in se.141 But Luke’s conduct was minor: he was in the wrong building ­without privilege or licence to be there. Certainly, his presence may have contributed to a sense of insecurity felt by the occupants of that particular building, or New York City housing projects in general. And so arresting him for being in the building may be legally and morally justified. But the problem the policing is designed to deal with has roots that go beyond isolated acts of trespass; the failure of investment in public housing and in legal jobs for the residents of those housing schemes; the failure of welfare to support the unemployed; the absence of drug ­treatment programmes; the

140  Miller (n 135) 440; D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago, University of Chicago Press, 2001) 115–17. 141  Antony Duff has a similar account of the different styles of criminal accountability appropriate for different types of crimes: those that are wrong independent of the criminal law, and so directly wrong the public (malum in se) and those that are derivatively wrong because they wrong against the public’s right to regulate certain conduct (mala prohibita) see Duff (n 129).

268  Eric J Miller poor design and social isolation of the housing projects; and so on. Arresting Luke, and holding him responsible for his act of criminal trespass through a public trial individualises what is a communal failing, and places responsibility for that failing on the civilian and not the community or the punishing state. The worry is the same whether Luke was a drug dealer or not. If he was a drug dealer, Luke is punished on no evidence for a crime other than that of drug dealing. He is called to account for the wrong offence, and cannot provide the right excuses or justifications for his conduct, because it is not his conduct as a drug dealer that is on trial, but that of a trespasser. Calling him to account for the incorrect wrong is itself a wrong: in this case, it treats him as accountable in the wrong way for the wrong crime. But we can extend this argument: if Luke is innocent of drug dealing, but guilty of trespassing, the pre-textual nature of the prosecution does not disappear. He is a scapegoat, punished as a stand-in for everyone else. Once again, the crime is a proxy, but this time it is a proxy for the community’s failings, their inability to provide the circumstances of a flourishing life for its poor denizens. The repressive version of social welfare it peddles by governing through policing142 unfairly exonerates the state of responsibility while placing all the responsibility for low-level social disorder on the people at the bottom with the least power to do anything about it. The justification for prioritising the trial as the locus for calling to account criminal wrongdoers is communicative: individuals are answerable to the public for wrongs against the public, and the trial is the place in which that message is communicated. Calling offenders to account for their public wrong is, the trial-centric account proposes, a moral duty if we are to treat them as responsible members of our community. But this process of calling to public account appears to apply to all offenders indiscriminately, or certainly those who commit the malum in se sorts of public wrongs. But these sorts of public wrongs come in all sorts of shapes and sizes. And the smaller the size—the more low-end the crime—the looser may be the match between the calling to account and the goals of policing. The match between the calling (the law-enforcement reason for catching the offender) and the accounting (the charge the defender is required to answer) is attenuated or opaque. The process is no longer transparent. Given the problems of low-level criminal justice, if there are reasons to channel individuals from the stream to the rapid, then there may be reasons to channel the individuals away from the murky waters of the criminal trial altogether. Low-level trials may constitute perversions of the criminal law: they may fail to provide the appropriate sort of accountability or an adequate opportunity for the offender to respond. In these cases, fair policing may warrant steering individuals away from ­trials. On those occasions that the offender deserves only low-level sanctioning backed by the neutral authority of the state, then on many occasions the police will suffice as the sanctioning agent.

142  To adapt a phrase from Jonathan Simon. See J Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford, Oxford University Press, 2007).

A Fair Cop and a Fair Trial 269 To require holding individuals properly responsible for their wrongs by requiring them to answer through the trial process does not adequately sort between the variety of interests that policing serves. While the interests of policing and punishment are plural even when stakes are high, any conflict between those interests is generally obscured by the integrated institutional imperative to impose a traditional incarcerative punishment on the offender. The plural interests of policing and punishment come apart most clearly where the stakes are low, because the reasons justifying punishment, and so the trial, become less weighty or because the system of law enforcement no longer unites over the values advanced through the criminal law. One way in which the values advanced through the criminal law come apart is as follows. The crimes to which offenders must answer are individualising, and so are the available responses. But criminal law responses—the justifications and excuses available to criminal defendants—are similarly individualised or personalised. They do not allow for pointing to the failings of community as an excuse.143 The criminal law’s communicative model—at least as usually practiced—is thus one directional in important ways. It requires the offender to account to the community, not vice versa. Thus, in cases like Luke’s, individual failing there may be; but the individual failing occurs against a much larger social backdrop in which the community has failed to provide sufficient options for Luke—whether guilty or innocent. Pointing this out is not to excuse Luke if he is engaged in the business of drug dealing. But it is to suggest that our ways of holding him responsible may myopically excuse us while placing all the blame on Luke and those like him. This may be a consequence of governing through crime, or though policing: planting responsibility on the individual may serve to distract from the community.144 But this then returns us to the misdemeanour scholars’ argument that punishment for low-level criminal wrongdoing harms the community in significant ways; and the trial is part—indeed a temporally extended and financially expensive part—of that process. Trials are thus harmful in the way that Rachel Harmon has recently identified arrests are harmful: they impose material costs upon the community that are not captured by identifying only the major social value of the trial—calling offenders publicly and formally to account. Trials also operate against parochial systems of criminal justice, and the value of the trial ought to be assessed in that context. The harms of the trial are similar, in significant ways, to the harms of arrest: it undermines liberty, may be frightening and humiliating for the offender, and may have a significant impact upon family and work life.145 Trials, on my view, may undermine

143  The point is not a new one. See N Christie, ‘Images of Man in Modern Penal Law’ (1986) 10 Contemporary Crises 95. Hegel made the same point much earlier. See GWF Hegel, Elements of the Philosophy of Right (edited by AW Wood and translated by HB Nisbet) (Cambridge, Cambridge University Press, 2012) 265–67, §§240–45 (discussing the manner in which society is responsible for creating poverty and the potential of criminality that goes along with it). 144  Perhaps this is one way of understanding Alice Ristroph’s important point about who is responsible for the criminal law. She answers: all of us. See Ristroph (n 19) 107. Ristroph argues that ‘it is not just punishment, but also criminalization, policing, and prosecution that need to be subject to the analytical and evaluative scrutiny of political theory’ ibid 108. The trial focuses on one dimension of responsibility without considering these others. 145  RA Harmon, ‘Why Arrest?’ (2016) 115 Michigan Law Review 307, 311 f.

270  Eric J Miller social welfare and public order, just as arrests may do, and so the police and the public should exercise caution over referring individuals to trial. The upshot is that trials are not only conceptually independent of policing: a contingent feature of policing and not its point. Trials are pragmatically independent of policing: the police may have different organisational and social goals than bringing offenders to trial. And trials are normatively independent of policing: the police may have good reasons for refusing to place wrongdoers in the process that culminates in trial, because those trials are too costly, individually and socially, for the offender and for her community. B.  The Police Permission to Decline Trial Punishment So far, I have suggested that various social factors may entitle the police not to process offenders to trial. But there remains the question of whether the police role comes with a duty to process criminal wrongdoers in this way; and the independent question of whether, even absent the conceptual requirement, there is a normative requirement for the police to do so. Conceptually, police officers are not required to bring the relevant wrongdoers to account: the police role and bringing offenders to trial are conceptually separate. It is, from the police perspective, much of a muchness whether a criminal offender receives a trial, or pleads, or is pardoned before trial, or even commits suicide while in the custody of the gaoler. In each case, the proceedings are out of police hands.146 The police have done their job. And while they may have the same cheering interest in the result as the rest of us, they need not fail in police-characteristic ways if there is no trial or prosecution after the investigation process is complete. The police duty to obey and enforce the rule of law certainly includes the duty to engage in pre-trial investigation, interrogation, and arrest. But these duties to investigate, interrogate, and arrest do not include an absolute moral reason to ensure the offender is processed for trial, just as prosecutors do not have an absolute moral duty to prosecute. Even proceduralist advocates of the trial-centric process recognise that there may be occasions upon which criminal wrongdoers need not receive ­formal, public condemnation through the criminal trial.147 But once that concession is made, we are on the road to recognising that the duty to obey the law (by prosecuting relevant offenders), because not absolute, may conflict with other duties, such as public welfare. And even in an ideal system of criminal justice, the effect of a trial on the individual or the community may be too onerous given its effect on social welfare. We can acknowledge, along with Gardner, that ‘the moral duty of police officers to uphold the rule of law … includes, for example, a duty to apprehend lawbreakers and to take them through the first stages of accountability to the criminal

146  I recognise that police officers often act as gaolers: however, that is a distinct role—it is important that they act as gaolers because it reveals that the police are adopting a discrete role independent of their policing role. 147  See Duff (n 129) distinguishing between malum in se and mala prohibita.

A Fair Cop and a Fair Trial 271 law: arrest, search, questioning, and charge’.148 But acknowledging this relation of the police to the trial is not to acknowledge the more general, adjudication-oriented view that the role of the police is simply to catch criminals and gather evidence for ­prosecution and conviction. The police do a lot more than that, using the permissions and ­powers granted them by the criminal law. And even when the police are under a duty to apprehend law-breakers, they may face a conflicting, and more weighty duty to the community and the individual to channel them out of the criminal justice system—or at least the system of trials and punishment. That is especially the case where the system of criminal trials becomes a means by which the community dominates the vulnerable among them, and obscures its collective responsibility for failing to ensure social welfare by using the criminal law to blame individuals for their social exclusion. V. CONCLUSION

Roles matter. In the criminal justice system, the police role answers to a plural set of values, only some of which are oriented towards the process of prosecution, adjudication, and punishment. The trial is thus a contingent feature of policing, rather than a core one, and much that goes on in the name of policing never makes it into the adjudicatory forum. Rather than reducing criminal procedure to the trial and trial-centred processes (or to punishment and punishment-directed processes), criminal justice pluralism seeks to hold all the members of the criminal justice system accountable for the ways they carry out their roles. While many of the features of these roles are local and parochial, some are not: they are conceptually necessary features of the role (even if the role itself is a contingent feature of some criminal justice system). Regulating the police thus requires sensitivity to the role they play in general, and their place within a particular legal system’s constitutional order. Acknowledging the police’s conceptual, empirical, and normative independence from the trial may require us to re-evaluate the centrality of the trial in a system of criminal justice, and recognise that not only are the police often in practice obstacles to a fair trial, but that sometimes being a fair cop requires directing low-level criminals away from fair trials, and often out of the criminal justice system altogether.

148 

Gardner (n 4) 97, 111.

272 

14 Rights-Analysis in Addressing Pre-Trial Impropriety: An Obstacle to Fairness? KELLY M PITCHER*

I. INTRODUCTION

T

HIS CHAPTER EXAMINES the impact of ‘rights-analysis’ on a question of criminal procedure that has troubled many criminal procedural scholars, namely, whether the trial judge should attach legal consequences to procedural violations committed in the pre-trial phase of criminal proceedings, known as ‘pretrial impropriety’. It does so against the backdrop of the hypothesis that framing criminal procedure doctrine solely or predominantly in terms of individual rights, in particular, those set forth in written constitutions or in international human rights instruments, is problematic because it oversimplifies matters, suggesting as it does that complex questions of criminal procedure can be resolved by reference to a single ‘variable’.1 Rights-analysis in particular features in the debate surrounding the question of how to address pre-trial procedural violations, most commonly in one form or another of the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right,2 and here also the concern may be that such an approach represents too narrow a view. With the focus being on a single variable, a rights-based approach to the aforementioned question (along the lines of

*  This chapter draws on doctoral research by the same author. See KM Pitcher, Judicial Responses to Pre-Trial Procedural Violations in International Criminal Proceedings (The Hague, TMC Asser Press, 2017) (forthcoming). 1  Since a variety of ‘actors’ can claim individual rights in criminal proceedings, it may be more accurate to speak of a single conceptual framework. However, it bears observing that in the context of the question of how to address pre-trial procedural violations, ‘rights-analysis’ is by and large limited to the rights of the suspect or accused (so that it would seem appropriate to speak of a single variable, after all). 2  The wording ‘it is a reason …’ is meant to depict an approach to the question of how to address pre-trial procedural violations which depends on a single variable: whether the pre-trial impropriety in question violates an individual right. Roberts employs similar wording in ‘elucidating and complicating’ Ashworth’s protective principle, see for this principle below nn 8–14 and accompanying text; P Roberts, ‘Excluding Evidence as Protecting Constitutional or Human Rights?’ in L Zedner and JV Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford, Oxford University Press, 2012); As will be seen below, ‘rights-analysis’ may take another form in this context. See below nn 26–28 and accompanying text.

274  Kelly M Pitcher this argument) might lead to certain (fundamental) issues being overlooked; indeed, such an approach might constitute an obstacle to achieving certain goals of criminal procedure and/or criminal justice. The purpose of this chapter is to consider how rights-analysis, in the form of the argument that it is a reason to respond to pretrial impropriety that it violates an individual right,3 and how otherwise attaching significant importance to the question of whether the pre-trial impropriety violates such a right, might be an obstacle to achieving certain criminal procedure or criminal justice objectives, or to preserving certain fundamental values, in particular, ‘fairness’ within the meaning of the right to a fair trial. In considering such issues, this chapter will draw on the law and practice of several jurisdictions (and theoretical accounts of such law and practice), principally England and Wales, the Netherlands and the international criminal tribunals (ICTs), that is, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (‘the ad hoc Tribunals’) and the International Criminal Court (ICC). To those familiar with the relevant law and practice of the jurisdictions just mentioned, the choice may not be an obvious one; in contrast to certain other jurisdictions,4 none of these jurisdictions adopt a robust rights-based approach to the question of how to address pre-trial procedural violations based on the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right (so that the question may arise as to how instructive they are with respect to the issue under consideration). Nevertheless, as will be seen below, their law and practice, and, in particular, the theoretical accounts of such law and practice, are highly instructive with respect to the use of rights-analysis in the context of the question of how to address pre-trial procedural violations and its potential to be an obstacle to achieving certain criminal procedure or criminal justice objectives. As to other jurisdictions that do (purport to) adopt a rights-based approach to the aforementioned question, while they will not be addressed in this chapter as such, the approach itself, based on the argument that it is a reason to respond (in a particular way) to pre-trial impropriety that it violates an individual right, and the problems that may arise in adopting it, will be. In some jurisdictions, ‘fairness’ lies at the heart of the question of whether the trial judge should attach a (particular) legal consequence to the violation of procedural standards in the pre-trial phase of criminal proceedings, ie expressly constitutes the central criterion in this regard.5 In considering how rights-analysis (or how otherwise attaching significant importance to the question of whether the pre-trial impropriety

3  Unless otherwise indicated, in this chapter the term ‘rights-analysis’ shall refer to the argument that it is a reason to respond to pre-trial impropriety that it violated an individual right. 4  An example of such a jurisdiction is Greece. See in this regard D Giannoulopoulos, ‘The Exclusion of Improperly Obtained Evidence in Greece: Putting Constitutional Rights First’ (2007) 11 International Journal of Evidence and Proof 181. 5  In England and Wales, for example, s 78 of the Police and Criminal Evidence Act 1984 (PACE), provides for an exclusionary discretion in respect of (prosecution) evidence whose ‘admission … would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’, while the abuse of process doctrine, the basis of the power of a criminal court in England and Wales to stay the proceedings, is often rationalised in terms of fairness. At the international criminal tribunals also, the notion of fairness lies at the heart of the determination of whether to stay the proceedings.

Rights-Analysis and Pre-Trial Impropriety 275 violates an individual right) might be an obstacle to achieving fairness in particular, such law and practice would seem a logical starting point. However, with the notion of fairness being (notoriously) under-theorised, and it also being widely accepted that the notion is capable of covering a variety of different values,6 it is instructive to consider other approaches to the question of how the trial judge should respond to pre-trial procedural violations also, whereby the overriding criterion is not the preservation of fairness (within the meaning of the right to a fair trial) as such. It bears observing here, that in some jurisdictions, criminal procedure doctrine has been dominated not by the notion of fairness, but by other concepts. In the Netherlands, for example, criminal procedure doctrine has traditionally been framed in terms of the concepts of ‘individual legal protection’ (individuele rechtsbescherming) and truth-finding, whereby the former refers to the legal protection afforded to the citizen to have been drawn into the criminal process from improper interference by the public authorities charged with the investigation and prosecution of crime, and, in the doctrine at least, constitutes an important constraint on the court’s truth-finding endeavour. Section II. of this chapter will consider how what is arguably a necessary (if not unique) feature or implication of rights-analysis—its reductionist character—might be an obstacle to the achievement of certain criminal procedure or criminal justice objectives in the context of the question of whether the trial judge should attach legal consequences to pre-trial procedural violations. Section III. will consider how rights-analysis might otherwise be an obstacle to achieving such goals, that is, how it may be employed, in order to achieve a more restrictive approach to pre-trial procedural violations and in this way constitute such an obstacle. In other words, this second part deals with utilisations of rights-analysis (that might be an obstacle to the achievement of certain criminal procedure or criminal justice objectives), which, though common or familiar, are not intrinsic thereto. Section IV. considers how rights-analysis (or how otherwise attaching significant importance to the question of whether the pre-trial impropriety violates an individual right) might be an obstacle to fairness in particular, whereby consideration is given to the different meanings of fairness; here it may be recalled that fairness is a diffuse concept, capable of accommodating a variety of values. It examines the appropriateness of rightsanalysis (or otherwise attaching significant importance to the question of whether the pre-trial impropriety violates an individual right) in determining whether to attach legal consequences to pre-trial procedure violations where preservation of fairness is the overriding criterion, and whether the ‘characterisation’ of fairness matters in this regard. Finally, drawing on the previous sections, section V. reflects on the proper role of ‘rights’ in the determination of courts of how to respond to pre-trial impropriety. 6  For example, numerous authors have remarked that the notion of fairness is capable of accommodating each of the rationales commonly advanced for attaching legal consequences to pre-trial impropriety (the reliability, deterrence, protective and integrity rationales). See, eg, S Nash and AL-T Choo, ‘What’s the Matter with Section 78?’ (1999) Crim LR 929; and J Jackson, ‘Human Rights, Constitutional Law and Exclusionary Safeguards in Ireland’ in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 129 f, referring to IH Dennis, The Law of Evidence, 4th edn (London, Sweet & Maxwell, 2010) 317 f; see also IH Dennis, The Law of Evidence, 5th edn (London, Sweet & Maxwell, 2013) 319.

276  Kelly M Pitcher II.  THE REDUCTIONIST NATURE OF RIGHTS-ANALYSIS

As stated, framing criminal procedure doctrine solely or predominantly in terms of individual rights may be problematic because it suggests that complex questions of criminal procedure can be resolved by reference to a single ‘variable’ or, at least, a single conceptual framework.7 Put differently, rights-analysis is problematic in criminal procedure doctrine as in other areas because it is reductionist. An approach to the question of how the trial judge should respond to procedural violations committed in the pre-trial phase of criminal proceedings based on (one form or another of) the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right may therefore be criticised on the basis that it suffers from the vice of reductionism, as indeed it has been in the literature. Before turning to such criticism, it is instructive to consider this argument in some more detail. Perhaps the most well-known articulation of that argument is that offered by Ashworth. In advancing the ‘protective rationale’ (or ‘remedial’, ‘vindicatory’ or ‘rights’ rationale) as a novel rationale for excluding unlawfully obtained evidence in 1977,8 Ashworth constructed the argument as follows: If a legal system declares certain standards for the conduct of criminal investigation— whether they are enshrined in a constitution, detailed in a comprehensive code or scattered in various statutes and judicial precedents—then it can be argued that citizens have corresponding rights to be accorded certain facilities and not be treated in certain ways. If the legal system is to respect those rights, then it is arguable that a suspect whose rights have been infringed should not thereby be placed at any disadvantage: by ‘disadvantage’ is meant … that evidence obtained by the investigators as a result of the infringement should not be used against the suspect. And the appropriate way of ensuring that the suspect does not suffer this disadvantage is for the court of trial to have the power to exclude evidence obtained by improper methods. The presentation of evidence in court may in this context be viewed as the natural conclusion of a criminal investigation, and it is therefore fitting that the court should protect the defendant from disadvantages resulting from any infringement of his rights during that investigation.9

For Ashworth, the question was (and, indeed, has remained)10 ‘whether we are willing to recognise rights in suspects and accused persons and to protect them’,11 and the rationale for excluding unlawfully obtained evidence lies in the need to protect 7 

See n 1. Roberts (n 2) 171. 9  AJ Ashworth, ‘Excluding Evidence as Protecting Rights’ (1977) Crim LR 723, 725 (emphasis added), see also at 733: ‘A legal system must reach a decision on an acceptable demarcation between permissible and impermissible methods … once agreement has been reached the rights which flow from it should be respected and protected. An essential part of taking such an agreement seriously is to protect suspects and accused persons from any disadvantage which results from an infringement of the rights declared or implied. … where a legal system lays down certain standards or procedures for criminal investigation, it is both appropriate and desirable to protect defendants from any disadvantage resulting from the breach of a declared standard or procedure by excluding the evidence obtained as a result of that breach.’ 10  Ashworth continues to favour the protective rationale. See, eg, A Ashworth, ‘Exploring the Integrity Principle in Evidence and Procedure’ in P Mirfield and R Smith (eds), Essays for Colin Tapper (London, LexisNexis UK, 2003); and A Ashworth and M Redmayne, The Criminal Process, 4th edn (Oxford, Oxford University Press, 2010). 11  Ashworth (n 9) 735. 8 

Rights-Analysis and Pre-Trial Impropriety 277 recognised, that is, legal,12 rights of the suspect and accused (ie the rights underlying declared standards for the conduct of criminal investigation). In other words, it lies in the need to ‘take rights seriously’.13 Under the protective rationale, then, once it has been established that the evidence in question was obtained by a rights violation (specifically, by violation of the accused’s rights), that evidence should, in principle, be excluded.14 Accordingly, under the protective rationale exclusion is the primary response to pre-trial impropriety,15 and the sole predicate event to the exclusion of evidence is the fact that the evidence in question was obtained in violation of the accused’s rights (by the public authorities charged with investigating and prosecuting crime). A salient question, then, is what is to count as a ‘right’ under this rationale (other than that it must be a legal right). In other words, what rights do ‘declared standards for the conduct of criminal investigation’ (purport to) promote? Does the protective rationale apply only to criminal process rights, or does it also apply to substantive rights, which, unlike criminal process rights, ‘exist independently of any criminal investigation or prosecution’16 (such as the right to privacy)? Ashworth himself recognises the challenges of extending the rationale to breaches of (certain) substantive rights: It is one thing to say that deprivation of one of the ‘fair trial’ safeguards in art 6 [of the ECHR] should usually have a chilling effect on the trial. It is quite another to argue that a breach of art 8 [of the ECHR]—which declares a general right to respect for private life, not necessarily related to subsequent criminal trials—ought to be accorded the same effect.17

The protective rationale thus presents problems of definition and width, and this has been a major point of criticism in the literature.18 The contours of the protective rationale thus remain unclear and there appear to be numerous variations of this rationale.19 Depending on how the term ‘rights’ is defined, ie what is to count as a ‘right’ for these purposes, such an approach might cover a broad range of pre-trial impropriety and lead to a broad exclusionary response within the criminal trial to evidence obtained by such impropriety. It seems unlikely, however, that such an approach, even taken at its highest (to include not only criminal process but also substantive rights), is capable of fully capturing the

12  As Roberts (n 2) observes at 175, Ashworth only appears to have had legal rights in mind, to the exclusion of moral rights ‘which have not been recognised and enshrined in positive law’. 13  Ashworth (n 9) 731. 14  According to Ashworth (n 9) 729, the ‘most appropriate criterion’ for the admissibility of unlawfully obtained evidence is a ‘qualified protective principle’, whereby ‘evidence obtained by means of a departure from a declared standard or procedure should be liable to exclusion, unless the court is satisfied that the accused in fact suffered no disadvantage as a result of the breach’ (emphasis added). See also at 725: ‘The protective principle does not necessarily lead to the view that all improperly obtained evidence should be peremptorily excluded.’ 15  But it is not the only possible response. While Ashworth (n 9) 725, argues that exclusion is the most appropriate response, he also points to other possible responses, such as sentence reduction. 16  Roberts (n 2) 175. 17  Ashworth (n 10) fn 84. 18  See, most recently, Roberts (n 2); see also IH Dennis, ‘Reconstructing the Law of Criminal Evidence’ (1989) 42 Current Legal Problems 21, 30. 19  See generally Roberts (n 2).

278  Kelly M Pitcher complexity of the body of standards that applies to the conduct of the criminal investigation, and the values that underpin it.20 Thus, Roberts argues that: [l]egal and ethical standards in criminal investigations, in all their normative complexity, cannot be comprehensively vindicated by an exclusionary rule delimited by substantive legal rights, still less by an evidentiary remedy restricted to violations of the rights of the accused.21

Reductionism, it seems, is a necessary feature or implication of rights-analysis.22 More concretely though, under the protective rationale, it is not appropriate to take certain ‘factors’ into account in determining whether the evidence should be excluded. For example, while a relevant consideration under the deterrence rationale, whether the law enforcement officer acted deliberately in obtaining the evidence by improper means is not a relevant consideration under the protective rationale.23 As stated, the sole predicate event to the exclusion of evidence is the fact that the evidence in question was obtained in violation of the accused’s rights. Different rationales for responding to pre-trial impropriety require (or allow) different factors to be taken into account,24 so that when certain factors are excluded from consideration, apart from indicating that a certain rationale is or is not being pursued, this may lead to certain rationales and the values underpinning them being overlooked. Of course, to pursue one rationale may well be to give effect to another (and the value(s) underlying it), but this need not be the case. To make the point that rights-analysis suffers from the vice of reductionism may not merely be a criticism of the protective rationale; it may also be an argument for a (more) pluralist approach to the question of how to address pre-trial impropriety (or a more discretionary approach, at least), one that is better able to capture the complexity of the body of standards applicable to the criminal investigation and the values that underpin it. Thus, Roberts and Zuckerman favour the ‘moral integrity’ rationale over the protective principle (or, in their words, the ‘remedial theory’) precisely because it is capable of supporting a pluralist approach in this regard: Procedural integrity and moral legitimacy together constitute a more expansive rationale for evidentiary exclusion than the remedial theory, for the simple reason that not all immorality violates rights. This is significant, because certain official conduct—e.g. forms of race, class

20  Nevertheless, it is important to bear in mind that to apply one rationale or principle may well be to give effect to another, so that the ‘generous’ response generated by the pursuit of the protective rationale (when the rationale is taken at its highest) may well serve other rationales and, correspondingly, other values of criminal procedure or criminal justice. 21  Roberts (n 2) 183: by ‘rights of the accused’ is presumably meant: criminal process rights. See in this regard above n 16 and accompanying text; ‘If the admissibility of improperly obtained evidence is always a function of concatenated and irreducible moral and legal complexity (debatable facts, open-ended norms, and contested evidentiary rationales), commentators who hanker after a bright-line exclusionary rule or even any elaborate doctrinal framework articulated beyond the level of flexible general principles seem destined to be forever disappointed’, Roberts (n 2) 190. 22  But see n 1 and nn 26 ff and accompanying text, for a different form of rights-analysis, of which reductionism is not a necessary feature. 23  Ashworth (n 9) 731; see also P Mirfield, Silence, Confessions and Improperly Obtained Evidence (Oxford, Oxford University Press, 1997) 30: ‘One’s rights are no less damnified by the blundering police officer than by the malevolent one’. 24  See generally Mirfield (n 23) 28 ff.

Rights-Analysis and Pre-Trial Impropriety 279 or gender bias—may harm the integrity of criminal proceedings without actually breaching any identifiable rights. From the perspective of upholding the integrity of the administration of justice, therefore, the remedial theory is too narrowly focused on rights violations, and simultaneously, too broad in its apparent implication that any and every rights violation by law enforcement officials should automatically lead to the exclusion of evidence.25

While it bears observing that the examples cited by Roberts and Zuckerman— race, class and gender bias—could be construed in terms of the violation of an individual right (that is, when it amounts to a violation of the right to freedom from discrimination), the point is that in defining pre-trial impropriety for the purpose of determining whether to attach legal consequences to it, there is likely to be a point at which doing so in terms of ‘rights’ becomes laboured, or even tenuous. Moreover, to do so (even when not laboured) may be to miss the point, or at least to present too narrow a view of the impropriety and why it is that it is objectionable. Thus, the use of road traffic regulatory powers for criminal law enforcement purposes is objectionable not only because it may entail the use of racial or ethnic profiling, but also because it involves the authorities exercising power for improper purposes, in violation of the prohibition of détournement de pouvoir. A further point is that the approach favoured by Roberts and Zuckerman may also qualify as rights-analysis, albeit a different form thereof than has been addressed thus far (ie the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right). In that approach (and in so far as it is instructive to construe it in terms of rightsanalysis), it is not to the impropriety to which the descriptor ‘rights’ in ‘rights-analysis’ pertains, but rather to the response thereto, ie to the remedy. Thus, Roberts himself implies that an approach to the question of how to address pre-trial procedural violations based on the moral integrity rationale may be construed in terms of the argument that ‘it is a reason for excluding evidence in criminal trials that the evidence was obtained in such a way that the accused has a right that it be excluded, and that right would be violated if the evidence was admitted’.26 And this argument, in turn, reflects the ‘important idea that the accused may be afforded procedural rights to safeguard interests that are not merely, or at all, personal to him’;27 in the context of the approach advocated by Roberts and Zuckerman, that (collective) interest is safeguarding the moral integrity of (British) legal proceedings.28 With the descriptor ‘rights’ in ‘rights-analysis’ pertaining solely to the remedy, and the right to exclusion being grounded in the need to safeguard the moral integrity of legal proceedings (which may be ‘triggered’ by a wide range of pre-trial impropriety), reductionism would not seem to be a necessary implication of this form of rights-analysis. At first glance, reductionism would appear to lie at the heart of the objection of some Dutch scholars to an approach to the question of how to address pre-trial procedural violations whereby the nature of unlawfulness is sought in the violation

25  R Roberts and A Zuckerman, Criminal Evidence, 2nd edn (Oxford, Oxford University Press, 2010) 189 (emphasis added); see also Roberts (n 2) 182: ‘There may … be important values in criminal investigations that do not ground any rights, or at any rate no rights of the accused.’ 26  Roberts (n 2) 175, and also at 185 f. 27  Roberts (n 2) 185. 28  Roberts (n 2) 185.

280  Kelly M Pitcher of individual rights. At a time when Article 6 of the European Convention on Human Rights (ECHR) did not play as explicit a role as it does now in Dutch criminal procedure decision-making and doctrine, these authors argued for an approach whereby the nature of unlawfulness is sought instead in the failure on the part of the public authorities to fulfil their own obligation (eigen rechtsplicht) to observe the norms directed at them in their capacity as investigative and prosecutorial authorities,29 and the appropriate response to pre-trial procedural violations (defined in terms of such failure) is the exclusion of the evidence obtained thereby. Relying on the principle of legality for criminal procedure,30 pursuant to which the criminal investigation and prosecution of persons accused of having committed an offence may take place only in accordance with the law (that is, statutory law established by Act of Parliament), and on the understanding that the Dutch Code of Criminal Procedure (CCP) is a ‘closed system’ which exhaustively lists the powers that may be exercised for the purposes of the investigation and prosecution of crime and the conditions under which they may be exercised,31 Cleiren and Mevis constructed the argument as follows. The statutory regulation of the powers to be exercised in criminal proceedings reflects, on the one hand, the desire of the legislator to create and confer on public authorities powers in order to investigate and prosecute crime, and, on the other hand, the desire to regulate the exercise of such powers, with a view to safeguarding the rights and interests of citizens (and, in particular, the citizen suspected of having committed an offence).32 The ‘double-sided’ character of the statutory regulation of powers is grounded in the public nature of the exercise of powers in criminal proceedings (such powers are exercised by public authorities in respect of citizens), and the notion of the rule of law: in a state governed by the rule of law, the public authorities must act, ie exercise their powers, within the parameters set by the law for them, in their capacity as investigative and prosecutorial authorities.33 Accordingly, when in the course of criminal proceedings public authorities violate the norms that govern the exercise of powers,34 ie when they act ‘unlawfully’ (onrechtmatig), they violate their own rules (the norms directed at them) and, more 29 CPM Cleiren and PAM Mevis, ‘Het dubbelzijdig karakter van onrechtmatig strafvorderlijk overheidsoptreden’ in CPM Cleiren et al (eds), Voor risico van de overheid? Vooruitzichten van de aansprakelijkheid van de overheid in bestuurs-, straf- en civielrechtelijk perspectief (Deventer, Gouda Quint, 1996) 190; see also PAM Mevis, ‘De rechtsgevolgen van onrechtmatigheden in het vooronderzoek’ in JP Balkema and others (eds), Dynamisch strafrecht. Opstellen ter gelegenheid van het afscheid van Prof.mr. G.J.M. Corstens van de Katholieke Universiteit van Nijmegen (Arnhem, Gouda Quint, 1995) 257 f. 30  As enshrined in CCP Art 1. 31  Certainly, this can no longer be maintained, with the Dutch Supreme Court having expressly recognised that investigative acts that constitute only a ‘light’ infringement on constitutional rights do not require a specific legal basis in the CCP; such acts can be based on more general provisions in the CCP. See, eg, HR 1 juli 2014, ECLI:NL:HR:2014:1563, NJ 2015/114 m.nt. PHPHMC van Kempen. 32  Cleiren and Mevis (n 29) 189; see also TM Schalken, ‘Schending van wettelijke voorschriften en het redelijke belang van de verdachte: een redelijk criterium? Enkele inleidende opmerkingen’ in TM Schalken and EJ Hofstee (eds), In zijn verdediging geschaad. Over vormverzuimen en het belang van de verdachte (Arnhem, Gouda Quint, 1989) 7 ff. 33  Cleiren and Mevis (n 29) 189. 34  Those norms are not limited to those explicitly provided for by statute but also include unwritten norms, ie the norms that dictate how the powers provided for by statute should properly be exercised, such as the principles of proportionality and subsidiarity. See Cleiren and Mevis (n 29) 189.

Rights-Analysis and Pre-Trial Impropriety 281 importantly, they fail in their duty to observe the rules that bind them. Thus, the ‘nature of unlawfulness’ (ie the nature of the violation of procedural norms by public authorities in the course of criminal proceedings) is to be sought in the failure on the part of the public authorities to fulfil their own obligation to observe the norms directed at them in their capacity as investigative and prosecutorial authorities,35 rather than in the violation of fundamental rights. While it may seem natural or obvious to seek the nature of unlawfulness in the violation of rights, the danger inherent in doing so—so the argument goes—is that conduct on the part of public authorities will be deemed unlawful only where the rights of the particular accused on trial, ie if this particular accused’s rights, have been violated.36 According to Cleiren and Mevis, such an approach (whereby only where the subjective rights of the accused have been violated will the authorities’ conduct be deemed unlawful) fails to recognise the public nature of the norms that govern the exercise of powers, which are, by virtue of this fact, directed at those authorities.37 This is not to say that they are unconcerned with the position of the citizen: the public nature of the exercise of power in criminal proceedings implies, by definition, that the citizen as such and without more, ie not as the carrier of subjective rights (but the citizen as rechtsburger), has an interest in the observance by public authorities of the norms that bind them.38 This interest is best understood as a collective interest or right held by all citizens, ie a public interest, rather than an individual interest or right. In a manner of speaking, therefore, the nature of unlawfulness can also be sought in the violation of a right,39 but whether subjective rights have been violated (and, in particular, whether the rights of ‘this’ particular accused have been violated) is irrelevant.40 Not only does the citizen (again, as such and without more, ie not as the carrier of subjective rights) have an interest therein, he or she is entitled to such observance, meaning that he or she is entitled to have the lawfulness of an action, ie the exercise of power, performed by the public authorities reviewed and addressed.41 This entitlement can only be realised by ensuring that the lawfulness of that action is reviewed and addressed by a third, independent authority: a judicial authority.42 Accordingly, the approach to the question of how to address pre-trial procedural violations based on the (rule of law) notion that the authorities must also

35 

Cleiren and Mevis (n 29)190; see also Mevis (n 29) 257 f. Cleiren and Mevis (n 29) 190 ff. 37  Cleiren and Mevis (n 29) 192. 38  Cleiren and Mevis (n 29) 191. 39  Cleiren and Mevis (n 29) 191. 40  Cleiren and Mevis (n 29) 191; thus, both Buruma and Blom note that, from the rule of law perspective, the imposition of sanctions for procedural violations is a way to respond to improper conduct on the part of public authorities ‘as such’ (als zodanig), ie on its own and without more. See Y Buruma in his annotation to HR 30 maart 2004, ECLI:NL:HR:2004:AM2533, NJ 2004/376; T Blom, ‘Vormverzuimen’ in CPM Cleiren, Th A de Roos and MAH van der Woude (eds), Jurisprudentie Strafrecht Select, 3rd edn (Den Haag, Sdu Uitgevers, 2008) 124; and T Blom, Vormen verzuimd bij het politieverhoor (Amsterdam, Vossiuspers UvA, 2011) 14; see also Mevis (n 29) 255 f. 41  Cleiren and Mevis (n 29) 193 f and 204; see also G van Leijen, ‘Sanctionering van vormverzuimen en de betekenis van vormvoorschriften in het strafproces’, Recht en kritiek 1994/20, 236 ff. 42  Cleiren and Mevis (n 29) 194 and 199; see also Blom (n 40) 125. 36 

282  Kelly M Pitcher abide by the law is closely connected to the notion of ‘individual legal protection’,43 ie protecting the citizen from being drawn into the criminal process by improper interference on the part of the public authorities charged with the investigation and prosecution of crime, which in Dutch criminal procedure doctrine constitutes an important constraint on the truth-finding endeavour. According to Cleiren and Mevis, the combination of the nature of unlawfulness, the double-sided character of the statutory regulation of powers and the entitlement of citizens to observance by public authorities of the norms that bind them, points to a particular response to procedural violations committed in the pre-trial phase of criminal proceedings: the ‘non-use’ of the evidence thereby obtained.44 This response goes to the heart of what, from a rule of law perspective, is considered to be the problem (the failure of the public authorities to fulfil their own duty to observe the norms that bind them, rather than the violation of an individual’s rights), removing the ‘legal effect’ of the ‘product’ of the procedural violation.45 Not only does an approach whereby the nature of unlawfulness is sought in the violation of individual rights misrepresent the character of the (Dutch) CCP (which is a system of criminal investigation powers, not rights), so it might be argued, it also fails to capture the complexity—the interwovenness—of the body of standards applicable to the Dutch criminal investigation and, in particular, the institutional nature of the individual legal protection it—the CCP—was designed to afford. In case of unlawfulness in the investigative phase, that protection is afforded not to the individual accused seeking the exclusion of evidence, but to the public in general (through the accused, as a citizen). It seems, therefore, that an approach to the question of how to address pre-trial procedural violations whereby the nature of unlawfulness is sought only in the violation of individual rights may indeed be criticised on the basis that it is reductionist. At the same time, an approach whereby the nature of unlawfulness is sought only in the failure of the public authorities to fulfil their own obligation to observe the norms that bind them may suffer from the same flaw. Under that approach, the exclusion of evidence is predicated solely on a failure to observe the conditions that attach to the exercise of criminal investigation powers (ie violation of the provisions of the CCP, or of the ‘principles of proper administration of justice’ (beginselen van een behoorlijke procesorde)—the unwritten principles that operate ‘within the law’ to further define and limit the provisions contained in the CCP (for example, the principle of proportionality)).46 However, with Article 6 of 43  ‘Individual’ here is used to denote the distinction between the legal protection of the citizen from being drawn into the criminal process by improper interference on the part of the public authorities charged with the investigation and prosecution of crime and that of the general public from crime. See in this regard PPJ van der Meij, ‘De raadsman bij het politieverhoor en de audiovisuele registratie. De verdedigingsrol bij de materiële waarheidsvinding in het strafrechtelijk vooronderzoek’ in JH Crijns, PPJ van der Meij and JM ten Voorde (eds), De waarde van waarheid. Opstellen over waarheidsvinding in het strafrecht (Den Haag, Boom Juridische uitgevers, 2008) 61 f; and PPJ van der Meij, De driehoeksverhouding in het strafrechtelijk vooronderzoek. Een onverminderde zoektocht naar evenwicht in de rolverdeling tussen rechter-commissaris, de officier van justitie en de verdediging (Deventer, Kluwer, 2010) 21. 44  Cleiren and Mevis (n 29) 195. 45  Cleiren and Mevis (n 29) 195 ff; see, similarly, T Blom, ‘De meest passende sanctie: de Hoge Raad en onrechtmatig verkregen bewijs’ DD 2002/32, 1054 f; and AAG Peters, ‘Illegale radiozender ‘de Marconist’’ AA 1973, 249. Peters argues that where the authorities have failed to observe the ‘rules of the game’, the most effective way to deal with such failure is to respond within the ‘game’. 46  See Cleiren, in T&C Strafvordering 2015, art 1 Sv, aant 11 (online, laatst bijgewerkt op 1 juli 2015).

Rights-Analysis and Pre-Trial Impropriety 283 the ECHR—enshrining the right to a fair trial—having direct effect in the Dutch legal order,47 such an approach would seem too restrictive.48 Article 6 also prescribes norms for criminal investigation, ie is not limited in scope to the trial phase of criminal proceedings, so that it is only natural that unlawfulness should be defined in terms of the more specific rights enumerated in or otherwise flowing from Article 6 of the ECHR also. And while it may be true that, in the Netherlands, the regulation of the exercise of powers by the public authorities charged with investigating and prosecuting crime and with criminal adjudication aims to guarantee procedural fairness,49 so that addressing pre-trial impropriety solely from the perspective of the (failure to adhere to the) conditions that attach to that exercise may be understandable, such an approach is unlikely to suffice from the perspective of Article 6 of the ECHR and the more specific rights enumerated therein or otherwise flowing therefrom. In this regard it bears observing that the CCP does not (expressly) lay down any individual rights for the suspect or accused as such, but rather confers on the public authorities powers in order to arrest and detain suspects, to investigate and prosecute crime, and to adjudicate criminal cases, thereby stipulating the conditions under which such powers may be exercised, from which, arguably, both the notion of rights protection more generally and specific rights for the suspect may be inferred; in other words, it approaches the regulation of the criminal investigation (and the notion of fair trial) from the perspective of the public authorities charged with the investigation and prosecution of crime. An exclusive focus on rights-analysis is thus not the only way in which reductionism can operate to narrow the grounds for the exclusion of improperly obtained evidence. In this regard, it seems that the test at the ICC for excluding evidence on account of the manner in which it was obtained may also be criticised on the basis that it is reductionist. That test, enshrined in Article 69(7) of the ICC Statute, provides that: Evidence obtained by means of a violation of … [the ICC] Statute or internationally recognised human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

Not only does this test describe the ‘detrimental effects’ that the admission of the evidence would need to have in order to justify exclusion (the second limb of which, it may be observed, is capable of supporting a (more) pluralist approach to the question of how to address pre-trial impropriety),50 it also ‘stipulates

47  By virtue of Arts 93 and 94 of the Dutch Constitution (Grondwet). It is worth noting that the Dutch Constitution does not expressly provide for the right to a fair trial. However, calls have been made to incorporate a general right to a fair trial into the Dutch Constitution; see, eg, BJG Leeuw, Grondwet en eerlijk proces. Een onderzoek naar de eventuele meerwaarde van het opnemen van het recht op een eerlijk proces in de Nederlandse Grondwet (Oisterwijk, Wolf Legal Publishers, 2013). 48  It is important to note that Cleiren and Mevis wrote their article in 1996, at a time when Art 6 ECHR did not play as significant a role as it does now in Dutch criminal procedure decision-making or doctrine, so that it is questionable whether they would maintain that unlawfulness should be defined solely by the failure of the public authorities to fulfil their own obligation to observe the norms that bind them. 49  See PAM Mevis, ‘Constitutionalisering en strafprocesrecht’ Strafblad 2008/6, afl 5, 453; and Leeuw (n 47) 98 ff. 50  See n 25 and accompanying text.

284  Kelly M Pitcher specific predicate events regarding the manner of collection of the evidence’,51 seemingly to the exclusion of other events that cannot be defined in terms of violation of the ICC Statute or of internationally recognised human rights (or indeed of any positive law), with all that this entails.52 III.  THE MALLEABILITY OF RIGHTS-ANALYSIS

In the current section, consideration is given to how rights-analysis may be employed, in order to achieve a (more) restrictive approach to pre-trial procedural violations and in this way constitute an obstacle to fundamental goals of criminal procedure or criminal justice. It is concerned with approaches to pre-trial impropriety that, at first glance, may be accurately depicted in terms of ‘rights protection’ (because they reflect one form or the other of the argument that it is a reason to respond to pretrial impropriety that it violates an individual right), but which lead to so restrictive a response to such impropriety that it would seem naïve (if not misleading) to not rationalise them in terms of an altogether different set of objectives, ie those related to crime control. Indeed, such an approach may go no further than one based on the ‘reliability rationale’, pursuant to which ‘determining the truth of the criminal charges is the sole purpose of the criminal trial, and evidence should be admitted or excluded solely on that basis’.53 Also, an approach which puts crime control-related objectives at the forefront may constitute an obstacle to other, non-epistemic, objectives, such as the preservation of the integrity of the proceedings or the criminal justice system more generally. Whereas the previous section was concerned with the question of how what is arguably a necessary feature or implication of rights-analysis—its reductionist character—might be an obstacle to achieving certain fundamental goals of criminal procedure or criminal justice (in the context of the question of whether the trial judge should attach legal consequences to pre-trial procedural violations), the current section is concerned with utilisations of the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right, which, while common or familiar, are not intrinsic to rights-analysis. Indeed, rights-analysis would appear malleable enough to allow the trial judge faced with an instance of pre-trial impropriety and being called upon to provide relief in respect thereof ‘to legitimate decisions arrived at in other ways’.54 Put differently, rights-analysis may be utilised to achieve a restrictive response to pre-trial impropriety and (in this way) give effect to crime control or instrumentalist objectives, without expressly doing so.

51  DK Piragoff and P Clarke, ‘Article 69’ in O Triffterer and K Ambos (eds), Commentary on the Rome Statute of the International Criminal Court. A Commentary, 3rd edn (München, Oxford and BadenBaden, Verlag CH Beck, Hart Publishing and Nomos Verlagsgesellschaft, 2016) 1747 (emphasis added). 52  See n 21 and accompanying text. 53  Ashworth (n 9) 723. 54 LH Tribe, ‘Constitutional Calculus: Equal Justice or Economic Efficiency?’ (1985) 98 Harvard Law Review 592, 592, as cited in DJ Meltzer, ‘Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General’ (1988) 88 Columbia Law Review 247, 273. Meltzer makes the same observation in respect of the deterrence rationale, see at 272 f, and the same undoubtedly applies to the integrity rationale.

Rights-Analysis and Pre-Trial Impropriety 285 In this regard it may be noted that the argument that it is a reason to respond to pretrial impropriety that it violates an individual right may be interpreted in a variety of ways,55 and that the manner in which it is interpreted is liable to impact on the scope of the judicial response to such impropriety. For example, the argument may be interpreted in such a way that only where the accused’s rights have been violated will a response be required within the criminal trial. Ashworth’s protective principle appears to be limited to violations of the accused’s rights,56 so that where the violation concerns a third party’s (individual) rights, exclusion of the evidence in question need not follow.57 Finally, a discussion of the malleability of rights-analysis would be incomplete without addressing the problem of remedial deterrence, a phenomenon that may manifest in jurisdictions which purport to adopt a robust rights-based approach to the question of how to address pre-trial procedural violations. This issue is addressed at the end of this section. In the Netherlands, the response within the criminal trial to pre-trial procedural violations58 is, in principle, restricted to violation of the accused’s (individual) rights, on account of that response being ‘governed’ by the Schutz-norm. The Schutznorm, a doctrine that originated in private law (more specifically, the law of torts (onrechtmatige daad)), and has since found application in, among other areas, the law of criminal procedure,59 consists of two components: (i) the norm to have been violated must be aimed at protecting accused persons in general (which will certainly be the case when the norm to have been violated is a fundamental (constitutional or human) right); and (ii) the violation of that norm must have affected this particular accused (ie not a co-accused or other third party).60 According to the Dutch Supreme Court (Hoge Raad), if the Schutz-norm criteria are not fulfilled, as a rule, the trial court need not attach any of the consequences enumerated in the first paragraph of Article 359a of the Dutch CCP (the central provision in the Netherlands for responding to pre-trial procedural violations within the criminal trial)—sentence reduction, exclusion of evidence and a declaration that the prosecution is inadmissible (a procedural step akin to a stay of proceedings)—to the violation.61 While this falls short of a requirement, it is clear that the Supreme Court envisages a broad application of the norm. While not required to apply the Schutz-norm, the court is ‘cordially

55 

As Roberts (n 2) demonstrates. See n 9 and accompanying text; and see also Roberts (n 2), referring to the ‘simplest iteration’ of the protective rationale: ‘it is a reason for excluding evidence in criminal trials that the evidence was obtained in violation of the accused’s legal rights’. 57  See in this regard Ashworth and Redmayne (n 10) 347; and M Redmayne, ‘Theorizing the Criminal Trial’ (2009) 12 New Criminal Law Review 287, 310. 58 For a comprehensive overview and critical discussion of that response, see KM Pitcher, Judicial Responses to Pre-Trial Procedural Violations in International Criminal Proceedings (The Hague, TMC Asser Press, 2017) (forthcoming). 59  See DR Doorenbos, ‘Een absolute relativiteitstheorie?’ DD 1990/20. 60  See, eg, MCD Embregts, Uitsluitsel over bewijsuitsluiting. Een onderzoek naar de toelaatbaarheid van onrechtmatig verkregen bewijs in het strafrecht, het civiele recht en het bestuursrecht (Deventer, Kluwer, 2003) 124 ff; the Schutz-norm is comparable to the standing requirement in the US; see also R Kuiper, Vormfouten. Juridische consequenties van vormverzuimen in strafzaken (Deventer, Kluwer, 2014) 270 ff. 61  See HR 30 maart 2004, ECLI:NL:HR:2004:AM2533, r.o. 3.5, NJ 2004/376 m.nt Y Buruma. 56 

286  Kelly M Pitcher invited’ to do so,62 and while there are circumstances in which it will be justified to depart from this principle, these are rare.63 On top of this, there must, as a rule, be actual prejudice for the accused (whereby the exceptions to this rule correspond to the exceptions recognised by the Supreme Court in respect of the Schutz-norm).64 ‘Prejudice’ is one of three ‘weighing factors’ set forth in the second paragraph of Article 359a of the CCP that the court is required to take into account when determining whether to attach consequences to procedural violations committed in the course of a criminal investigation, and, if so, which (the others being the ‘interest that the violated provision purports to protect’ and the ‘seriousness of the violation’). Rather than treating the factors set forth in the second paragraph of Article 359a of the CCP as guidelines,65 the Supreme Court’s case law seems to treat them as cumulative criteria, in that it is not sufficient for the court to expressly acknowledge (all) such factors and their capacity to ‘guide’ the court; rather, the response to the pre-trial impropriety must be justified by a combination of the factors.66 Certainly, the response to such a violation must be justified by the existence of prejudice; in other words, the absence of prejudice cannot, it seems, be ‘compensated’ by either one, or both of the other factors. Moreover, pursuant to the case law, prejudice is to be defined narrowly: only actual, concrete prejudice to the accused’s ‘legitimate’ interests will suffice, that is, damage to fundamental rights (in particular, to defence rights),67 but not prejudice to the accused’s interest ‘not to be caught’,68 or not to have incriminating evidence gathered against him.69 Nor it seems will ‘expressive

62 

See Buruma (n 40). most notable exception is a case in which the Amsterdam Court of Appeal used privileged conversations between the co-accused and his lawyer to convict the accused. According to the Supreme Court, it should not have done so, in view of the interest served by the protection of legal professional privilege. See HR 12 januari 1999, ECLI:NL:HR:1999:ZD1402, NJ 1999/290. 64  See n 63 and accompanying text. 65 See in this regard AL-T Choo, Abuse of Process and Judicial Stays of Criminal Proceedings, 2nd edn (Oxford, Oxford University Press, 2008) 161–66, where the author explains the importance of ‘guidelines’ in structuring judicial discretion so as to be able to provide ‘individualised solutions’. According to Choo, ‘[t]he purpose of structuring … [discretion] is to control the manner of its exercise’, whereby discretion may be structured ‘through the recognition of guidelines for its exercise’, and/or the recognition of ‘factors’ to which the judge may attach importance in exercising the discretion. However, in order to ensure that discretion is exercised in order to provide ‘individualised solutions’, such guidelines and factors ‘should not be applied rigidly and mechanically in every case’; in other words, they should not be treated as rules which are never to be departed from. The ‘structuring’ of discretion, then, involves striking a compromise: ‘On the one hand guidelines must be developed, but on the other hand they must not be applied rigidly to every case’. 66 Kooijmans refers to the ‘cumulative character’ of the factors in the second paragraph of Article 359a in this regard, T Kooijmans, ‘Elk nadeel heb z’n voordeel? Artikel 359a Sv en de ontdekking van het strafbare feit’, DD 2011/78, 1102. 67  According to the Supreme Court in its leading decision of 2004, it is important to consider, ‘among other things whether, and, if so, to what extent the accused has been harmed in his or her defence’. HR 30 maart 2004, ECLI:NL:HR:2004:AM2533, r.o. 3.5, NJ 2004/376 m.nt. Y Buruma. 68  HR 4 januari 2011, ECLI:NL:HR:2011:BM6673, r.o. 3.2.2, NJ 2012/145 m.nt. MJ Borgers, and HR 19 februari 2013, ECLI:NL:HR:2013:BY5322, r.o. 2.4.1, NJ 2013/308 m.nt. BF Keulen. 69  Schalken has observed that while it may be self-evident that the accused’s interest not to be caught is not a legitimate interest, it does not necessarily follow that this truism may be invoked as a general and determinative argument to legitimise otherwise unlawful action on the part of the authorities by not attaching consequences to it. See TM Schalken in his annotation to HR 6 januari 2015, ECLI:NL:HR:2015:4, NJ 2015/109; Kooijmans similarly notes (and laments) the potentially far-reaching implications of this 63 The

Rights-Analysis and Pre-Trial Impropriety 287 harm’ suffice, ie the harm that is done when government actors disrespect individual rights, whereby such disrespect sends ‘demeaning messages about human worth’.70 The Dutch response within the criminal trial to pre-trial procedure violations (the application of the Schutz-norm and the requirement of prejudice to the accused’s legitimate interests) is often depicted in the scholarship in terms of ‘rights protection’.71 Specifically, it is depicted in terms of the ‘protection of the subjective rights of the accused’,72 with the emphasis on reparation of actual prejudice suffered by the accused.73 In depicting the response within the criminal trial to pre-trial procedural violations in these terms, commentators argue, on the basis of the Dutch Supreme Court’s case law on Article 359a of the CCP, that a distinction may be drawn between fair trial rights (the rights enumerated in or otherwise flowing from Article 6 of the ECHR, in so far as applicable to the investigative stage of criminal proceedings) and other rights, such as the right to privacy.74 In the case of a violation of the former set of rights it might well be possible to restore the situation before the violation occurred, ie to provide restitution,75 whereas in the case of the latter (assuming they are substantive rights) it will not be (although the violation of such rights can be compensated).76 Thus, commentators argue that an approach in which the point of departure is the need to protect the subjective rights of the accused envisages, in principle, a range of judicial responses to pre-trial impropriety depending on the nature of the right that has been violated.77 It is worth emphasising that, in so far as this approach is genuinely and primarily concerned with the protection of rights (and this is questionable, as will be argued below), it combines two distinct ideas or arguments, the first being that it is a reason for the trial judge in criminal proceedings to attach

finding, while simultaneously questioning whether it reflects the Supreme Court’s case law regarding the exclusion of evidence in years gone by (wherein the accused’s interest not to be caught may well have been considered a legitimate interest, or, at least, wherein the obvious illegitimacy of this interest was not generally considered to be fatal to an application for exclusion). Kooijmans (n 66) 1105–08. 70  SB Starr, ‘Sentence Reduction as a Remedy for Prosecutorial Misconduct’ (2009) 97 Georgetown Law Journal 1509, 1534 f. 71  See, eg, MJ Borgers, ‘De toekomst van artikel 359a Sv’ DD 2012/25. 72  The Dutch literature identifies four points of departure with respect to the question of how to address procedural violations committed in the pre-trial phase of criminal proceedings: the notion inherent to the concept of the rule of law that the authorities must also abide by the law (de rechtsstaatgedachte), the ‘(protection of the) subjective rights of the accused’ ((bescherming van) de subjectieve rechten van de verdachte), ‘ensuring the accused’s right to a fair trial’ (verzekering van verdachtes recht op een eerlijk proces) and the ‘primacy of crime control’ (het primaat van de criminaliteitsbestrijding). 73 Borgers (n 71) 260; see also GJM Corstens and MJ Borgers, Het Nederlands strafprocesrecht, 8th edn (Deventer, Kluwer, 2014) 820. 74 See R Kuiper, ‘Strafvermindering als reactie op vormverzuimen. Van Via della Conciliazione tot Afvoerpijp en verder’ in MJA Duker, LJA Pieterse and AJP Schild (eds), Welberaden. Beschouwingen over de rechtsontwikkeling in de rechtspraak van de Hoge Raad der Nederlanden (Nijmegen, Wolf Legal Publishers, 2009) 38; see also Borgers (n 71) 265. 75  Perhaps this is what Borgers means when he refers to herstel, as opposed to compensation: Borgers (n 71) 260; in this regard see also Corstens and Borgers (n 73) 820. 76  Borgers (n 71) 260; see also Corstens and Borgers (n 73). 77 See Corstens and Borgers (n 73) 817; see also Kuiper (n 60) 45, referring to the ‘compensation argument’ (het compensatieargument) in this regard. Accordingly, this approach should be distinguished from an approach to the question of how to address unlawfulness on the part of the police or the public prosecutor in the pre-trial phase of criminal proceedings based on the protective principle, in which the exclusion of evidence is the primary remedy.

288  Kelly M Pitcher legal consequences to pre-trial impropriety that a fundamental right of the accused has (thereby) been violated, and the second being that the relief to be provided in the case of violation of a fundamental right should correspond to the particular right that has been violated, and, in particular, whether it concerns a procedural, criminal process right, or a substantive right78 (a notion that seems to underlie the right to an effective remedy within the meaning of Article 13 of the ECHR). Accordingly, an approach that seeks to protect the subjective rights of the accused does not envisage one particular judicial response to the violation of a fundamental right of the accused that would vindicate rights in a more general sense; rather, it seeks to provide an effective remedy tailored to the particular right that has been violated. Given that the aforementioned responses are capable of providing restitution or compensation in respect of the accused’s violated rights, it is, perhaps, understandable that a judicial response which does, in fact, address the violation of the subjective rights of the accused is often explained in terms of the protection of such rights.79 Buruma, for example, explains that response in terms of the right to an effective remedy within the meaning of Article 13 of the ECHR and, more generally, in terms of the positive obligations resting on states to take measures to prevent human rights violations and to adequately address such violations when they occur.80 It is questionable, however, whether this is an accurate characterisation of such a judicial response. To begin with, it may be no more than a reflection of the (broad and/or strict) application of the Schutz-norm.81 There is an obvious overlap between the content of this norm82 and the point of departure with respect to the question of how to address pre-trial procedural violations identified in the literature as the ‘(protection of) the subjective rights of the accused’. This point of departure assumes that the norm that has been violated was aimed at protecting accused persons in general and further that this particular accused was affected by the violation of that norm. Given that the Schutz-norm was introduced in order to temper the (strict) application of the exclusionary rule,83 and that the approach whereby the violation of the subjective rights of the accused is addressed may be no more than a reflection of the application of that norm, the explanation of a judicial response that addresses the violation of the subjective rights of the accused in terms of the protection of such rights is, on a conceptual level, misleading: the fact that that response may have the (fortuitous) effect of providing an effective remedy or of discharging the state’s positive obligations does not make such protection of the accused’s subjective rights its primary aim. This has implications for how this point of departure is to be understood in terms 78  For the distinction between substantive and procedural rights, see W Strasser, ‘The Relationship between Substantive Rights and Procedural Rights Guaranteed by the European Convention on Human Rights’ in F Matscher and H Petzold (eds), Protecting Human Rights: The European Dimension (Köln etc, Carl Heymanns Verlag KG, 1988) 595–604. 79  See, eg, Borgers (n 71) 260; and Corstens and Borgers (n 73) 820. 80  See Buruma (n 40); see also Blom (n 40) 125. 81 In any case, a number of authors have observed that the application of the Schutz-norm in an approach to unlawfulness on the part of the police or the public prosecutor in the pre-trial phase of criminal proceedings that seeks to safeguard the rights of the accused, ie protect his or her subjective rights, is logical: see, eg Buruma (n 40); Blom (n 40) 125 and 133; and Kuiper (n 60) 269. 82  See n 60 and accompanying text. 83  See Doorenbos (n 59).

Rights-Analysis and Pre-Trial Impropriety 289 of broader objectives of Dutch criminal procedure. The desire to temper the (strict) application of the exclusionary rule (whereby unlawfully obtained evidence is more or less automatically ‘suppressed’) must surely be understood as being motivated by the goal of truth-finding (and, by extension, by crime control or instrumentalist objectives). Accordingly, in so far as the approach whereby the violation of the subjective rights of the accused is addressed is merely a reflection of the application of the Schutz-norm, the judicial response within that approach appears to be inspired primarily by the objective of truth-finding (and other associated goals), rather than by the (non-epistemic) objective of ‘individual legal protection’. While at first glance, then, the approach in the Netherlands to pre-trial procedural violations may be accurately depicted in terms of rights protection, it leads to such a restrictive response to impropriety that it would seem disingenuous not to seek to rationalise it in terms of ‘crime control’.84 It bears noting here that the legal framework pertaining to Article 359a of the CCP contains numerous other features that appear calculated to restrict the scope of the response within the criminal trial to pre-trial procedural violations. Among other things, after it has established that the procedural violation constitutes a violation within the meaning of Article 359a85 and the Schutz-norm criteria have been fulfilled, the court is required, before it does anything else, to expressly identify the circumstances set out in the second paragraph of Article 359a of the CCP (the interest that the violated provision purports to protect, the seriousness of the violation and the prejudice caused by it). This involves looking beyond the fact of the procedural violation to circumstances that may militate against attaching a (certain) consequence to it, and adhering to the ‘upward sliding-scale’ approach prescribed by the Supreme Court, whereby it must first consider whether a (mere) declaration that a violation has occurred suffices, before it considers the more far-reaching responses. Furthermore, the criteria for each response are strict.86 Regarding the exclusion of evidence in particular, the 84  As a number of commentators have done, some more explicitly than others. See, eg, T Schalken in his annotation to HR 9 september 2014, ECLI:NL:HR:2014:2650, NJ 2014/420; and Borgers (n 71) 265 f. 85  Not every instance of pre-trial impropriety falls within the scope of Art 359a CCP. Among other things, the violation must have been committed in the preliminary investigation against the accused regarding the offence for which he or she now stands trial. Nor is Art 359a applicable to violations not committed in the exercise of criminal investigation powers, so that unlawfulness in the extradition process does not fall within the scope of Art 359a. Nor does Art 359a apply to unlawful conduct on the part of public authorities for which the public prosecutor is not responsible, eg, the penitentiary authorities, or unlawful conduct on the part of private individuals. Art 359a is not applicable to procedural violations that are ‘reparable’, in the sense that, despite initial non-compliance, the rule in question can still be complied with, whereby the underlying norm—most often, a fundamental right of the accused—is not violated. It bears observing that outside of the scope of CCP Art 359a there is limited room to attach legal consequences to unlawful conduct, whereby the criterion for determining whether conduct that does not fall within the scope of Art 359a requires the court to attach a legal consequence to it, appears to be the need to ensure the accused’s right to a fair trial within the meaning of Art 6 ECHR. 86  Regarding the declaration that the prosecution is inadmissible, for example, the public authorities must have committed serious violations of principles of proper administration of justice, either intentionally or by gross negligence, as a result of which the suspect is prevented from receiving a fair trial. Sentence reduction may, according to the Supreme Court, be granted only if the accused has suffered actual prejudice, this prejudice was caused by the procedural violation and lends itself to compensation by way of sentence reduction, and if sentence reduction is justified also in light of the interest that the violated provision purports to protect and the seriousness of the violation.

290  Kelly M Pitcher enumeration of the categories of procedural violation that require or may require exclusion is exhaustive, while the categories themselves (there are three)87 are narrowly defined and a balancing exercise in the form of a ‘cost-benefit’ analysis may (in case of the second category of exclusion)88 or must (in case of the third)89 be performed. Notably, that cost-benefit analysis involves considering whether the (preventive or deterrent) benefits of exclusion90 outweigh the ‘negative effects’ that it may be expected to have on such ‘heavily weighted interests’ as truth-finding, the need to punish perpetrators of (‘possibly very serious’) crime and the rights of victims and next of kin (in light also of the positive obligations flowing from the ECHR of effective punishment).91 Regarding the positive obligations flowing from the ECHR, the point appears to be that certain responses to pre-trial procedural violations, ie a stay of proceedings, the exclusion of evidence and a significant reduction of sentence, may be inconsistent with the positive obligations arising from, for example, Article 2 (which protects the right to life) and Article 3 (which prohibits torture and inhuman and degrading treatment and punishment) of the ECHR, because they prevent the court from ‘punishing effectively’ the person responsible. Proponents of this argument therefore read into such positive obligations a ‘duty to punish’,92 which they argue constitutes a counterweight to the fundamental rights

87  These categories are set out in the Supreme Court’s second leading decision on CCP Art 359a (HR 19 februari 2013, ECLI:NL:HR:2013:BY5322, r.o. 2.4.5, NJ 2013/308 m.nt. BF Keulen). First, exclusion may be necessary to secure the accused’s right to a fair trial within the meaning of Article 6 of the ECHR, as also interpreted by the European Court of Human Rights (ECtHR). Second, where the accused’s right to a fair trial is not (directly) at stake but another important provision or principle (of criminal procedure) has been seriously breached, the exclusion of evidence may be necessary in order to prevent comparable violations in the future and to provide a strong incentive for public authorities to abide by the rules. In the words of the Supreme Court, exclusion may be necessary as a means of upholding the rule of law and of preventing the public authorities charged with the investigation and prosecution of crime from acting unlawfully. The Supreme Court refers to two types of situations that are likely to fall into this category: a ‘very intrusive’ breach of a fundamental right of the accused and cases in which the use of the evidence obtained ‘fundamentally devalues’ the interest served by the protection of legal and other types of professional privilege. Third, according to the Supreme Court, the exclusion of evidence is not ‘ruled out’ in all circumstances in the ‘highly exceptional’ situation in which the procedural violation in question forms part of a wider pattern (as apparent from objective facts and circumstances), such that its structural nature is evident, and whereby the responsible authorities have, from the moment that they must have become aware of the structural nature of this violation, failed to make sufficient efforts to prevent breaches of the provision in question. 88  See above n 87 and accompanying text. 89  See above n 87 and accompanying text. 90 Deterrence is the rationale cited by the Supreme Court in the second and third categories of exclusion. See in this regard above n 87 and accompanying text. 91 HR 19 februari 2013, ECLI:NL:HR:2013:BY5322, r.o. 2.4.5 and 2.4.6, NJ 2013/308 m.nt. BF Keulen. 92  Regarding the ‘positive obligations flowing from the ECHR of effective punishment’, however, it seems that the scope to invoke the state’s positive obligations as an argument against the imposition of a stay of proceedings or the exclusion of evidence on account of pre-trial procedural violations is limited. This is because, in so far as such a duty can be said to exist, its underlying rationale is general human rights protection in the interests of society as a whole, ie prevention, not provision of an effective remedy to the individual victim or next of kin. For a critical discussion of the criminal law (enforcement) measures that states are increasingly required to take in order to discharge their positive obligations under the comprehensive human rights treaties, see A Seibert-Fohr, Prosecuting Serious Human Rights Violations (Oxford, Oxford University Press, 2009).

Rights-Analysis and Pre-Trial Impropriety 291 of the accused. It bears observing, however, that there is one category of exclusion for which the Supreme Court does not prescribe a cost-benefit analysis, and that is the first category, whereby the underlying rationale is ensuring the accused’s right to a fair trial within the meaning of Article 6 of the ECHR. There is little to no room to consider facts and circumstances that might militate against the exclusion of evidence once it is established that the right of the accused to a fair trial is at stake.93 For the purposes of this section, it is worth noting that for its own approach to pre-trial impropriety, the Dutch Supreme Court expressly draws on the European Court of Human Right’s (ECtHR) approach to the question of how to address pretrial impropriety. Ensuring the accused’s right to a fair trial appears to be the primary rationale for responding to pre-trial procedural violations in the Netherlands,94 with the ECtHR’s case law on Article 6 serving as primary departure point in this regard. In particular, the Supreme Court expressly relies on the ECtHR’s position that reliance on evidence obtained through a violation of Article 8 of the ECHR does not necessarily render the trial unfair under Article 6.95 As some (Dutch) commentators have suggested, (constant) reliance on this aspect of the ECtHR’s case law may be indicative of a crime control-oriented approach to the question of how to address pre-trial impropriety.96 Similarly, commentators in England and Wales have suggested that the fact that the appellate courts have sought to draw an analogy between the application of section 78 of PACE—whereby the court may take a variety of factors into account, as seemingly supported by the wording of that provision97—and the way in which the ECtHR determines Article 6 of the ECHR98 should not be taken to mean that they are seeking to adopt an approach to exclusion based on the protective principle. Thus, Ormerod and Birch observe (or lament) that ‘the opportunity to take account of all factors in securing “fairness” has enabled the courts to claim that section 78 guarantees Article 6 compliance, without adopting an explicitly rights-based approach to exclusion’.99 Here it may be noted that it is

93  HR 19 februari 2013, ECLI:NL:HR:2013:BY5322, r.o. 2.4.4, NJ 2013/308 m.nt. BF Keulen. In this regard it may be observed that the case law cited by the Supreme Court in this category is based on, or otherwise draws on, case law of the ECtHR that adopts a principled, ‘interventionist’ approach to the admissibility (or use) of (unlawfully obtained) evidence. 94  The need to ensure the accused’s right to a fair trial is the rationale underlying the test for declaring the prosecution inadmissible and the first category of exclusion. While the Dutch Supreme Court does cite other rationales (in particular, with respect to the exclusion of evidence, where the Court cites the deterrence rationale), the scope for pursuing such rationales is extremely limited. It also bears observing that outside the scope of CCP Art 359a (see in this regard above n 85 and accompanying text) the room to nevertheless attach legal consequences to unlawful conduct is limited to ensuring the accused’s right to a fair trial within the meaning of ECHR Art 6. 95  HR 19 februari 2013, ECLI:NL:HR:2013:BY5322, r.o. 2.4.2, NJ 2013/308 m.nt. BF Keulen. 96  See, eg, Borgers (n 71) 265 f; see also Kuiper (n 60) 73. 97  Pursuant to s 78(1) PACE, ‘In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’ (emphasis added). 98  See, eg, R v Hardy [2003] 1 Cr App R 30 [18]–[19]. See also R v Rosenberg (2006) Crim LR 540. 99  D Ormerod and D Birch, ‘The Evolution of the Discretionary Exclusion of Evidence’ (2004) Crim LR 767, 780.

292  Kelly M Pitcher widely accepted that the ECtHR’s approach to the issue of improperly obtained evidence, whereby reliance on evidence obtained through a violation of Article 8 of the ECHR will not necessarily render the trial unfair under Article 6, does not reflect the protective rationale,100 although in a number of cases individual judges have advocated an approach based on this rationale.101 As stated above, a discussion of the malleability or manipulability of rightsanalysis would not be complete without addressing the phenomenon of ‘remedial deterrence’, a problem that may manifest in jurisdictions which purport to adopt a robust rights-based approach to the question of how to address pre-trial procedural violations, by attaching potentially far-reaching consequences thereto, for example, the exclusion of the evidence obtained thereby. Thus, some authors argue that the adoption of a (strong and inflexible) rights-based exclusionary rule might have the opposite effect of vindicating rights or, at least, might undermine human rights enforcement, since, in light of the ‘high costs’ of such an exclusionary rule (whereby ‘costs’ would appear to cover both financial costs, for example, the costs of a re-trial, and non-financial costs, ie the reputation of the criminal justice system being undermined), courts might be driven ‘to circumvent those costs by narrowing their substantive interpretations of rights’.102 Another ‘manifestation’ of ‘remedial deterrence’, according to which notion ‘if it is more costly to recognise a remedy, courts will be less likely to do so’,103 is where the court finds ‘some procedural reason to avoid reaching the merits of a rights claim in the first place’, for example, lack of jurisdiction. Put differently (strong and inflexible) rights-based exclusionary rules (combined with the absence of alternative remedies such as sentence reduction) may invite ‘doctrinal manipulation’.104 IV.  RIGHTS-ANALYSIS AS AN OBSTACLE TO FAIRNESS

This section considers how rights-analysis might be an obstacle to fairness in particular (whereas the two previous sections were concerned with how rights-analysis might constitute an obstacle to the achievement of fundamental goals of criminal procedure or criminal justice more generally). Consideration is given to the different meanings of fairness. It examines the appropriateness of attaching significant importance to the

100  See in this regard Jackson (n 6) 138; and JD Jackson and SJ Summers, The Internationalisation of Criminal Evidence. Beyond the Common Law and Civil Law Traditions (Cambridge, Cambridge University Press, 2012) 182. 101  See, eg, Judge Loucaides’ separate opinion in Khan v UK (2001) 31 EHRR 45: ‘I cannot accept that a trial can be “fair”, as required by Article 6, if a person’s guilt for any offence is established through evidence obtained in breach of the human rights guaranteed by the Convention. It is my opinion that the term “fairness”, when examined in the context of the European Convention on Human Rights, implies observance of the rule of law and for that matter it presupposes respect of the human rights set out in the Convention. I do not think one can speak of a “fair” trial if it is conducted in breach of the law.’ 102 See generally SB Starr, ‘Rethinking “Effective Remedies”: Remedial Deterrence in International Courts’ (2008) 83 New York University Law Review 693. 103  ibid 695 and 715, ‘borrowing from’ DJ Levinson, ‘Rights Essentialism and Remedial Equilibration’ (1999) 99 Columbia Law Review 857. 104  See generally Starr (n 102).

Rights-Analysis and Pre-Trial Impropriety 293 question of whether the pre-trial impropriety violates an individual right in determining whether to attach legal consequences to pre-trial procedure violations where preservation of fairness is the overriding criterion, and whether the ‘characterisation’ of fairness matters in this regard. As stated in the introduction to this chapter, ‘fairness’ sometimes expressly lies at the heart of the question of whether the trial judge should attach a legal consequence to the violation of procedural standards in the pre-trial phase of criminal proceedings, ie constitutes the central criterion in this regard. The abuse of process doctrine in England and Wales is an example of such an approach; that doctrine, the basis of the power of a criminal court in England and Wales to stay the proceedings, is often rationalised in terms of fairness. At the international criminal tribunals also, the notion of fairness lies at the heart of the determination of whether to stay the proceedings. And in the Netherlands, the question that must ultimately be answered in order to issue a declaration that the prosecution is inadmissible (a procedural step akin to a stay of proceedings) is whether the accused has been prevented from receiving a fair trial. The law and practice in these jurisdictions (and the theoretical accounts thereof in the scholarship) provide a suitable basis for addressing the issues raised at the beginning of this section. In England and Wales, there are two categories of case in which a court has a discretion to stay the proceedings on the ground that to try those proceedings will amount to an abuse of its own process: (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial; or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case.105 This test, formulated by Lord Lowry in the case of R v Horseferry Road Magistrates’ Court, Ex parte Bennett,106 is sometimes rationalised solely in terms of ‘fairness’; thus, it has been held that proceedings can be stayed in cases where it is impossible to give the accused a fair trial, and in cases ‘where the court concludes that it would be unfair for the defendant to be tried’107 (that is, where it would be unfair to try the defendant at all). While rationalising the abuse of process doctrine solely in terms of fairness may be ‘confusing’108 and, on account of the danger of blurring the distinction between the two, conceptually distinct, categories, problematic, it also illustrates that ‘fairness’ is a diffuse concept, able to accommodate a variety of different values and, seemingly, each of the rationales commonly advanced for attaching legal consequences to pre-trial impropriety (the reliability, deterrence, protective and integrity rationales).109 For current purposes, it bears observing that

105 

R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 74.

106 ibid. 107 

R v Beckford [1996] 1 Cr App R 94, 100–01; See also R (Ebrahim) v Feltham Magistrates’ Court [2001] 1 WLR 1293 [20]. 108  See in this regard Choo (n 65) 187. 109  Such rationales or principles have been used to rationalise the exclusion of unlawfully obtained evidence, although they may also be used to explain the judicial stay of criminal proceedings on account of pre-trial police and/or prosecutorial misconduct.

294  Kelly M Pitcher fairness may be concerned with epistemic as well as non-epistemic considerations, and that how fairness is construed may have a bearing on the appropriateness of attaching significant importance to the question of whether the pre-trial impropriety violates an individual right in the context of the determination of whether to attach a (particular) legal consequence to the violation of procedural standards in the pretrial phase of the proceedings. In England and Wales, a stay of proceedings imposed on the ‘impossibility of a fair trial’ ground (the first of the two limbs of the abuse of process doctrine identified by Lord Lowry in Ex parte Bennett), seeks to: ensure that the defendant does not in some way suffer from forensic prejudice or disadvantage at trial with the result that he or she may be unable to defend him- or herself properly, leading to the danger of a factually inaccurate verdict of guilty ensuing.110

Accordingly, a stay imposed on this ground is concerned with ‘considerations of intrinsic policy’,111 or epistemic considerations. In terms of broader objectives of criminal justice, a stay imposed on this ground seeks to protect the accused from wrongful conviction. It is widely recognised that, under this limb, it is appropriate neither to take into account the seriousness of any impropriety on the part of the police, nor the seriousness of the offence with which the defendant is charged. Once the court concludes that the accused cannot receive a fair trial, ie where the court is unable to properly determine the guilt or innocence of the accused (whereby to try the accused would be to subject him to an unacceptable risk of wrongful conviction), the proceedings must automatically, ie without further consideration or ‘balancing’, be stayed. Whether the prejudice suffered (ie the inability of the trial to determine the guilt or innocence of the accused properly) was caused by a violation of a (constitutional or human) right, the conduct that caused the prejudice was deliberate, or the offence with which the accused is charged is a particularly serious one, is immaterial. As Choo observes: In determining whether a stay of proceedings is warranted in the interests of the protection of the innocent from wrongful conviction (‘first limb’ abuse of process), it is important to appreciate what criteria it would not be relevant to consider, or at least would be relevant to consider only to the extent that they bear on the question whether the continuation of the proceedings might result in a factually erroneous conviction. These criteria include: whether there has been some serious violation of the defendant’s rights by the police or prosecution (was there, for example, a breach of a … right; whether the police or prosecution acted in bad faith or maliciously, or with an improper motive; and the seriousness of the offence with which the defendant is charged.112

Indeed, [a]ny defendant should be afforded adequate protection from a wrongful conviction; it does not matter, for example, that no serious breach of a right of the defendant was involved,

110 

Choo (n 65) 18. Choo (n 65) 18. 112  Choo (n 65) 189. See also 94 f, 102 and 132; nevertheless, courts do not always get it right. See in this regard S Martin, ‘Lost and Destroyed Evidence: The Search for a Principled Approach to Abuse of Process’ (2005) 9 International Journal of Evidence and Proof 158. 111 

Rights-Analysis and Pre-Trial Impropriety 295 or that the police or prosecution did not act in bad faith, or that the offence charged was a relatively serious one.113

Under the first limb of the abuse of process doctrine, then, it is ‘the effects of the conduct of the police with which the court should be primarily concerned’,114 ie whether the defence has been prejudiced. At the international criminal tribunals also, the impossibility of a fair trial is a ground for staying the proceedings. At the ad hoc Tribunals, the Appeals Chamber has stated that it is a reason to stay the proceedings permanently ‘where … a fair trial for the accused [has been made] impossible’, and confirmed that this limb of the abuse of process doctrine (the basis at the ad hoc Tribunals for staying the proceedings, drawn from Lord Lowry’s judgment in Ex parte Bennett)115 is concerned with protecting the accused from wrongful conviction.116 At the ICC, the Appeals Chamber has held that: Where fair trial becomes impossible because of breaches of the fundamental rights of the suspect or the accused by his/her accusers, it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped.117

Also in the same decision, the Appeals Chamber held that: Where the breaches of the rights of the accused are such as to make it impossible for him/ her to make his/her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed. … Unfairness in the treatment of the suspect or the accused may rupture the process to an extent making it impossible to piece together the constituent elements of a fair trial.118

ICC trial chambers have interpreted this ‘test’ as providing for two separate bases on which to stay the proceedings: (1) where it would be ‘“odious” or “repugnant” to the administration of justice to allow the proceedings to continue’, or (2) where ‘the accused’s rights [have] been breached to the extent that a fair trial has been 113  Choo (n 65) 189. Similarly, in cases in which exclusion of evidence unlawfully obtained is sought on the basis that it is unreliable, it would be inappropriate for the court to undertake a balancing exercise taking into account such factors. As has been succinctly put: ‘There can be no public interest in adducing unreliable evidence against the accused which has more potential for prejudice than for proof’, Mirfield (n 23) 141. 114  Martin (n 112) 181 (emphasis in original). 115  Drawing on Lord Lowry’s formulation of the categories of case in which a court in England has a discretion to stay the proceedings as an abuse of process in the (English) case of R v Horseferry Road Magistrates’ Court, Ex parte Bennett (nn 105 f) and accompanying text, the Appeals Chamber held that: ‘a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case.’ See Prosecutor v Barayagwiza, Decision, ICTR-97-19-AR72, 3 Nov 1999 [75]. 116  Prosecutor v Barayagwiza (n 115) [77]; see also Prosecutor v Stanišić and Župljanin, Decision on Mićo Stanišić’s Motion Requesting a Declaration of Mistrial and Stojan Župljanin’s Motion to Vacate Trial Judgement, IT-08-91-A, 2 Apr 2014 [35]. 117  Prosecutor v Lubanga, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 Oct 2006, ICC-01/04-01/06, 14 Dec 2006 [37]. 118  ibid [39].

296  Kelly M Pitcher rendered impossible’.119 At the ICC in particular, the impossibility of a fair trial is expressly linked to the non-observance of rights. To an extent, this strong rightsfocus is understandable.120 There is an obvious link between the fairness of the trial and the ability of the defence to exercise ‘defence’ or ‘fair trial’ rights, ie the more specific rights that flow from the broader right to a fair trial, such that the impossibility of a fair trial may well be the result of the inability of the defence to exercise such (specific) rights. However, it need not be, as Trechsel also observes in the context of the right to a fair trial enshrined in Article 6 of the ECHR: If any of the … [specific rights of the defence] are not respected, the trial cannot be viewed as having been fair … However, on the other hand, the fact that those rights have been respected does not yet guarantee that the trial was fair—there may be other aspects, which lead to a different result.121

While consideration of whether the accused’s defence or fair trial rights have been violated may well assist a chamber in determining whether a fair trial has become impossible, this question should not form the primary focus of the enquiry. Such a focus has the potential to distract chambers from the question they must ultimately answer: whether, in circumstances in which the accused has suffered forensic prejudice, to proceed to a verdict would be to expose the defendant to an unacceptably high risk of wrongful conviction. Accordingly, under the ‘impossibility of a fair trial’ limb of the abuse of process doctrine, courts should not approach the issue too formalistically, nor seek to reduce the question of fairness to respect for concrete defence rights. In this regard the objections raised by some Dutch scholars against the test in the Netherlands for declaring the prosecution inadmissible (a procedural step akin to a stay of proceedings) are worthy of note. In the determination of whether to issue such a declaration, the question that must be answered is whether the public authorities committed serious violations of ‘principles of proper administration of justice’, either intentionally or by gross negligence, as a result of which the suspect is prevented from receiving a fair trial.122 With the declaration that the prosecution is inadmissible being aimed at ensuring a fair trial by protecting the accused from wrongful conviction in circumstances in which the inability of the defence to exercise its fair trial rights has seriously hampered the court in ‘establishing the truth’,123 the test has been criticised for suggesting that it is not sufficient for issuing such a declaration that the accused is prevented from receiving a fair trial, ie that it is also necessary to show culpability on the part of the authorities.124 And it is worthy of

119  Prosecutor v Lubanga, Redacted Decision on the ‘Defence Application Seeking a Permanent Stay of the Proceedings’, ICC-01/04-01/06, T Ch I, 7 Mar 2011 [165] f (emphasis added). 120  At the ad hoc Tribunals, chambers also have, in the determination of whether to stay the proceedings on the ground that a fair trial has been rendered impossible, sometimes referred to the need for serious violations of the accused’s rights. See, eg, Prosecutor v Karadžić, Decision on Motion for Stay of Proceedings, IT-95-5/18-T, T Ch III, 8 Apr 2010 [4]. 121  S Trechsel, Human Rights in Criminal Proceedings (Oxford, Oxford University Press, 2005) 86. 122 As set out in HR 30 maart 2004, ECLI:NL:HR:2004:AM2533, r.o. 3.6.5, NJ 2004/376 m.nt. Y Buruma. 123  See BF Keulen and G Knigge, Strafprocesrecht, 12th edn (Deventer, Kluwer, 2010) 543. 124  See, eg, G Knigge, ‘Het Zwolsman-criterium op de helling’, RM Themis 2003, afl 4, 193–95, 194; and Kuiper (n 60) 368.

Rights-Analysis and Pre-Trial Impropriety 297 note that there are indications in the (Dutch) Supreme Court’s case law that if the procedural violation in question clearly prevents the accused from receiving a fair trial, whether the public authorities committed such violation intentionally or by gross negligence is less important.125 Where, in the context of the question of whether the proceedings ought to be stayed, ‘fairness’ is construed in terms of protection of the innocent against wrongful conviction, then, attaching significant importance to the question of whether the pretrial impropriety violates an individual right may be problematic. Where, however, it is construed in terms of preservation of the integrity of the proceedings (the second of the two limbs of the abuse of process doctrine identified by Lord Lowry in Ex parte Bennett), whether the pre-trial impropriety constitutes a rights violation is a valid consideration. The reason why, under the second limb, it is appropriate to take into account such criteria as whether the pre-trial impropriety constitutes a rights violation (and, for example, ‘whether the police or prosecution acted in bad faith or maliciously’) is that, under this limb, it is the ‘nature of … [the conduct of the public authorities] which should be the focus’,126 rather than the effects thereof.127 In this regard it may be recalled that the rationale underlying the second limb of the abuse of process is the integrity rationale,128 the general underlying idea which is that the integrity of the administration of justice might be compromised by allowing the proceedings to continue (or by admitting unlawfully obtained evidence). However, it is important to note that there are a number of variations of this rationale. Under the ‘court-centred’ variation of the integrity rationale, the court acts for reasons that are independent of (predicted) public reaction, and must ‘apply its own standards of propriety and decency in this respect’;129 under this variation of the integrity rationale, the judge acts for moral reasons stemming from his or her own conscience. By contrast, under the ‘public attitude’ variation thereof, the court acts on the basis of predicted public reaction, although it seems that under this variation of the integrity rationale, the likely public reaction should be determined by reference to the ‘views of the hypothetical, reasonable, well-informed and dispassionate person

125  See, eg, HR 18 februari 1997, ECLI:NL:HR:1997:ZD0643, r.o. 6.3, NJ 1997/484 m.nt. JM Reijntjes. In that case the defence had argued on appeal in cassation before the Supreme Court that the Court of Appeal had erred in rejecting the application for a declaration that the prosecution was inadmissible on account of it not having been shown that the public prosecutor had purposely prejudiced the defendant’s fair trial rights. The defence argued that ‘purpose’, ie intent, need not be shown for such a declaration and that gross negligence suffices. However, the Supreme Court, in finding that the Court of Appeal had indeed erred as regards the rejection of the application, said nothing of the prosecutor’s culpability, focusing instead on the Court of Appeal’s failure to respond to an important aspect of the defence’s argument regarding the prejudice caused to the defendant’s fair trial rights; See also Kuiper (n 60) 379 and 403. 126  Martin (n 112) 181 (emphasis in original). What would not be relevant to consider under the second limb is whether the defendant suffered forensic prejudice, ie prejudice at trial, in the sense that the absence of such prejudice cannot be a reason not to stay the proceedings under this limb. Thus, Dennis observes that: ‘If the prosecution should not have taken place because of the state authorities’ bad faith, then it is immaterial whether there was unfairness in the subsequent trial process. The focus is on the nature of the authorities’ conduct, not on its effect on the trial’; I Dennis, ‘Fair Trials and Safe Convictions’ (2003) 56 Current Legal Problems 211, 228. 127  See n 114 and accompanying text. 128  See n 105 and accompanying text. 129  Mirfield (n 23) 24.

298  Kelly M Pitcher in the community’,130 which are ‘a construction of the judiciary themselves’,131 so that it does not, actually, require the courts to ‘pander to public mood’.132 If that is so, then there may not be much between the public attitude variation of the integrity rationale and the court-centred variation thereof at all. Where they distinguish themselves is in the factors that may be taken into account under each;133 while the probative value of the evidence and the seriousness of the offence are relevant considerations under the public attitude variation of the integrity rationale, under the ‘court-centred’ variation thereof they are not.134 However, the seriousness of the procedural violation is a pertinent consideration under both variations, including, logically, whether the violation constitutes a (constitutional or human) rights violation,135 although taking into account this factor—the seriousness of the violation—should entail consideration of a wide range of facts and circumstances, including, for example, whether the police or prosecution acted in bad faith or maliciously. V.  THE PROPER ROLE OF ‘RIGHTS’ IN ADDRESSING PRE-TRIAL IMPROPRIETY

In the previous sections, consideration was given to how rights-analysis and how otherwise attaching significant importance to the question of whether the pre-trial impropriety violates an individual right, might be an obstacle to achieving certain criminal procedure or criminal justice objectives, in particular, to preserving ‘fairness’. It was seen that an approach to the question of how to address the violation of procedural standards in the pre-trial phase of criminal proceedings based on the aforementioned argument is reductionist, in that it suggests that the issue can be resolved by reference to a single variable—the fact of a rights violation—or single conceptual framework, at least, and, as such, is problematic, because such an approach is unlikely to be able to fully capture the complexity of the body of standards applicable to the criminal investigation and the values that underpin it. In not being able to

130 

Dennis, 5th edn (n 6) 108. 5th edn (n 6) 108; Mirfield is sceptical in this regard: ‘it would seem strange to regard the disrepute in which the administration of justice would be held as properly to be assessed by those who themselves administer it; one’s reputation is a reflection of what others think of one’, Mirfield (n 23) 369. 132  Choo (n 65) 112; see also P Duff, ‘Admissibility of Improperly Obtained Physical Evidence in the Scottish Criminal Trial: the Search for Principle’ (2004) 8 Edinburgh Law Review 152, 175: ‘… courts in operating a moral legitimacy rationale [which may be equated to the public attitude variation of the integrity rationale; see in this regard Mirfield (n 23) 27 f] need not simply reflect the allegedly right wing, “law and order” reflexes of the general citizenry but can take a more rational and liberal approach.’ Nevertheless, according to Duff, if courts ‘are to pay more than lip-service to the moral legitimacy rationale, they must attach considerable importance to the likely views of the body politic.’ 133  Presumably supporters of the public attitude variation of the integrity rationale would argue that that variation has the advantage of ‘locating the issues presented by … [unlawfully] obtained evidence in a wider context’, by treating the determination of whether to exclude evidence on account of how it was obtained as a ‘broad question of public policy’, Dennis, 5th edn (n 6) 107 f; and thereby ‘informing the public of the difficulty of choosing between admissibility and inadmissibility’, AAS Zuckerman, ‘IllegallyObtained Evidence—Discretion as a Guardian of Legitimacy’ (1987) 40 Current Legal Problems 55, 59. 134  Mirfield (n 23) 31–33. 135  Mirfield (n 23) 28–31. 131  Dennis,

Rights-Analysis and Pre-Trial Impropriety 299 capture this complexity, such an approach might be an obstacle to achieving certain fundamental objectives of criminal procedure or criminal justice. Further, it was seen that rights-analysis is malleable, and that an approach based on the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right may be utilised in order to achieve a restrictive response to such violations, allowing courts to pursue crime control objectives under the guise of protecting rights. Regarding the first issue, it was observed that implicit in the argument that rightsanalysis is reductionist and is to be criticised on this basis, is the argument for a pluralist approach to the issue of pre-trial impropriety. It is not the purpose of this chapter to argue what the approach to the question of how to address pre-trial procedural violations should be, ie what the proper rationale for responding to pretrial impropriety is,136 however, having pointed to the limitations of rights-analysis (including its reductionist character), a few observations are in order here. First, to point to the vice of reductionism seemingly inherent in rights-analysis is not to argue that the fact that an individual right has been violated will never be a reason to respond to pre-trial procedural violations. Indeed, it was not the purpose of this chapter to do so; it was to illustrate that despite its obvious attractions, rights-analysis (in the form of the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right) is not unproblematic. A pluralist approach to the aforementioned question could accommodate the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right, although it would not be constituted by it, so that, for example, where the procedural violation does not constitute a rights violation, the court may look to other facts and circumstances that might justify the response in question (on the assumption that may be said to underlie a pluralist approach that there can be a range of reasons for responding to pre-trial impropriety).137 Indeed, it is arguable that the fact of a rights violation, particularly where it concerns a right of an elevated status—a constitutional or human right—is a reason to attach a legal consequence thereto, for example, exclusion of the evidence obtained thereby. However, it will not always be appropriate to attach significant importance to the question of whether the pre-trial impropriety violates an individual right, and whether it is appropriate to do so depends on the rationale being pursued. Fairness sometimes constitutes the central criterion for, or underlying rationale of, a particular response to pre-trial impropriety, and it was seen above that how ‘fairness’ is defined matters in this regard. Where fairness is construed in epistemic terms, as being concerned with reliability or protection of the accused against wrongful conviction, it is inappropriate to attach significant importance to the question of whether the pretrial impropriety violates an individual right (although consideration of this question may well assist the court in determining whether the evidence is rendered unreliable by the procedural violation, or whether to proceed with the case would expose the accused to an unacceptably high risk of wrongful conviction). Accordingly, where ‘fairness’ constitutes the central criterion for determining whether a particular response should be attached to pre-trial impropriety, courts should be mindful of

136  137 

I have done so elsewhere, for international criminal proceedings, see Pitcher (n 58). Thanks to Professor Paul Roberts for drawing my attention to this point.

300  Kelly M Pitcher the notion’s different possible meanings. In this regard it may be observed that the ECtHR has been ‘less than helpful’ in explaining how pre-trial impropriety impacts on the fairness of the proceedings (within the meaning of Article 6 of the ECHR),138 so that where ‘fairness’ constitutes the central criterion for determining whether a particular response should be attached to pre-trial impropriety, it should not suffice to rely solely on the ECtHR’s case law in this regard, ie without theorising it. From this perspective, the reliance placed by the Dutch Supreme Court on the ECtHR’s case law in defining the scope of the exclusionary rule provided for under the first category of exclusion (the rationale underlying which, it may be recalled, is the need to ensure the accused’s right to a fair trial)139 is problematic. Indeed, the Supreme Court appears to be content to leave the scope of that exclusionary rule ‘in the hands of the ECtHR’, as the highest authority to interpret this provision.140 A further point is that underlying the criticism of an approach based on the argument that it is a reason to respond to pre-trial impropriety that it violates an individual right may simply be a preference for a (more) discretionary approach to the question of how to address pre-trial impropriety, allowing the court to ‘[tailor] results to unique facts and circumstances of particular cases’, ie to dispense ‘individualised justice’,141 or provide ‘individualised solutions’ to problems,142 which is the principal attraction of (the exercise of) judicial discretion, over (the application of) ‘blanket’ rules. As has been put: ‘… that the public believe justice is done is no less important than that it be done with the greatest possible precision’.143 Understood as the provision of ‘individualised solutions’, judicial discretion has intrinsic value. In this regard it bears observing that both variations of the integrity rationale referred to in the previous section (‘court-centred integrity’ and ‘public attitude integrity’) are capable of supporting a discretionary approach to the question of how to address pre-trial impropriety. However, different factors may be taken into account under each.144 As to the second issue—the malleability of rights-analysis—it is worth noting that this problem is not unique to rights-analysis.145 Accordingly, malleability does not provide a particularly convincing basis on which to distinguish between rationales, and to favour one rationale over another. However, it is an issue to which commentators should have due regard. To pursue one rationale may be to give effect to another, and, as was seen, a rationale might outwardly be pursued precisely in order to give effect to another; not being mindful of malleability may lead to the broader debate surrounding the question of how to address pre-trial procedural violations being distorted, and important questions being left unanswered.

138 

See Jackson (n 6) 138–42. See n 93 and accompanying text. 140  See Kuiper (n 60) 521. 141  KC Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge, Louisiana State University Press, 1969) 17. 142  See Choo (n 65) 157. 143  R Pound, Jurisprudence (Vol II) (St Paul, West Publishing Co, 1959) 367. 144  Both variations, it is worth noting, are malleable. However, in light of the balancing exercise that underlies it (which allows further variables to enter the ‘equation’), it would seem that the public attitude variation thereof is significantly more so. 145  See in this regard n 54 and accompanying text. 139 

15 Fairness in Criminal Proceedings: Concluding Thoughts and Further Questions RA DUFF

I.  FAIRNESS IN CRIMINAL PROCEEDINGS

A

FIRST, CARELESS, glance at this book’s title—Obstacles to Fairness in Criminal Proceedings—might suggest an important but quite limited inquiry: authors are to identify a range of obstacles that inhibit or undermine the fairness of criminal proceedings in the various jurisdictions from within which they are writing, and perhaps go on to think about whether and how such obstacles could be overcome. That kind of inquiry does indeed play a central role in some of the chapters. For instance, Kelly Pitcher asks whether rules concerning the exclusion of improperly obtained evidence efficiently serve (and are best understood as ­serving) the ends of procedural justice. John Jackson and Sarah Summers, Dimitrios ­Giannoulopoulos, Wolfgang Wohlers and David Sklansky discuss aspects of the right to legal assistance, and the ways in which its institutional actualisations can serve or hinder fairness. Hannah Quirk focuses on the ways in which the right of silence has been curtailed in recent years, and explores the effects of such curtailments on the ‘normative expectations’ that are laid on defendants. Nadja Capus discusses whether a reliance on written records, rather than on oral testimony, is inimical to fairness. However, as the editors and contributors make clear, the book’s title actually leads us into several much larger questions. One question concerns the extent of the problem of ‘obstacles to fairness’: just how radical, how deep, is the ‘irrelation between the professed fair trials standards to which numerous domestic and international systems subscribe and the reality that many criminal proceedings end without these standards being adhered to’?1 How might this gap (or gulf) between professed standards and actual practice be narrowed? But other questions take us beyond the problems of even a radical mismatch between professed standards and actual practice.

1 

Jackson and Summers, ‘Introduction’ in this volume, ch 1, 6.

302  RA Duff We need first to ask whether we have a clear and agreed conception of what constitutes ‘fairness’ in criminal proceedings—and whether we can apply the same conception of fairness across jurisdictional boundaries, and in international criminal proceedings (a question discussed sceptically by Yvonne McDermott, and with more optimism by Kai Ambos). It is a striking fact, at least to a non-expert’s eyes, that the European Court of Human Rights seems able to apply the ‘fair trial’ requirements of Article 6 of the European Convention on Human Rights to the diverse types of criminal process found across Europe, and to judge them all by the same standards of fairness. Is this because, at some deep level, we can see all these processes as serving the same aims and the same values, which thus generate what are fundamentally the same requirements of fairness; or because, despite their different aims, and the different institutional structures through which they pursue those aims, they are all subject to the same side-constraints of fairness; or is it because the Court is purveying a myth or illusion of normative consensus, to conceal a radical underlying ­diversity of conceptions and values? We must also, in the same vein, ask how much can or should be captured by the concept of fairness. Article 6 of the ECHR declares a right to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’, the presumption of innocence, and a list of five more specific rights, all under the heading of the ‘right to a fair trial’.2 Are all these rights properly understood as matters of fairness (Stefan Trechsel argues in this volume that they are not)? What other values bear on criminal proceedings—and can they conflict with fairness? If we appeal, for instance, to considerations of the autonomy, or dignity, or liberty of accused persons, can these be understood as dimensions of fairness? If we talk of the ‘integrity’ of the proceedings (a dimension emphasised by Pitcher), how does this relate to their fairness: could a fair trial lack integrity? Whenever a particular value, or value concept, acquires an iconic or formally authoritative status, there is a temptation to expand its scope so that it can cover, and thus protect, more and more of what we think is important. This might be said to have happened with, for instance, concepts of dignity and autonomy: given their central status in political and moral thought,3 we might be tempted to try to portray every kind of wrong against persons as a violation of their dignity or autonomy. So too with the presumption of innocence (as Lindsay Farmer points out in this volume): given its iconic, incontrovertible status as a central value in criminal proceedings (who could argue that we should not presume innocence?), we might be tempted to broaden its scope beyond the confines of the criminal trial, to try to bring within its protective embrace a wider set of the procedural protections to which we think people suspected or accused of

2  And see the 13 factors that Ambos identifies as requirements of fairness in international criminal procedure in this volume, ch 9, 179–82. 3  Not to mention the constitutional status of dignity as ‘inviolable’ in Art 1(1) of the German Basic Law. See also Art 1 of the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights’; Rao suggests that ‘the world community chose dignity in the Universal ­Declaration of Human Rights precisely because the term was open enough to hedge controversial judgments between different cultural values’, N Rao, ‘Three Concepts of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183, 185 fn 6.

Fairness in Criminal Proceedings 303 crimes should be entitled. The danger of such conceptual expansionism is that the value or principle in question begins to lose much of its determinate content, and to become a rhetorical device rather than a substantive normative standard: the more it is made to cover, the less substantive work it can do. As regards fairness in particular, one question is whether we should try to interpret it as a distinctive value standing alongside, and perhaps sometimes conflicting with, other values that bear on the criminal process and on the ways in which suspects and accused persons should be treated: or should we instead see it as an over-arching meta-value, which is given determinate content by other more substantive values or principles?4 If, for instance, we take fairness to be (very roughly) a matter of giving people what is due to them, we will then need to articulate a set of substantive principles to explain what is due to people in the context of particular practices or institutions: what constitutes fairness in criminal proceedings will be substantively different—different in the very concepts and values that come into play—from what constitutes fairness in other contexts. Tossing a coin would not count as a fair way to reach a trial verdict, but might be a fair way to determine the allocation of a scarce and not sufficiently divisible benefit or burden among a group, all of whom have an equal claim or liability to it. A patient who was told that his illness was to be diagnosed, and his treatment determined, by a randomly selected group of lay people would have good reason to complain that he was being treated unfairly, in comparison to a patient being diagnosed and treated by a trained doctor; a criminal defendant would not have similar cause for complaint at being judged by a lay jury, in comparison to people being judged by professionally trained judges (or so it is supposed, by those who favour lay juries; opponents of the jury system might take a different view). These considerations lead us on to three further questions, which I will explore briefly in the remainder of this chapter: they concern the aims of the criminal process; the scope of the idea of ‘criminal proceedings’; and the range of participants or players with interests in the process, to whom fairness might be owed. II.  THE AIMS OF THE CRIMINAL PROCESS

We cannot hope to determine what counts as fairness in the criminal trial, or in ‘criminal proceedings’, without having some idea of what the aims of this kind of institutional practice are meant to be: what makes some aspect of criminal proceedings fair or unfair is that it is, or is not, a fair way of pursuing the distinctive goals of such proceedings. Thus if we take the primary aim of a criminal trial to be the establishment of some truth in relation to an accusation of criminal wrongdoing, we will need to ask what kinds of trial procedure are fair or unfair in relation to the pursuit of that goal: what kinds of procedure will pay due regard to the rights and interests of the accused person?5 It will be natural then to think that the primary purpose

4  5 

Compare Trechsel’s comments on ‘lex generalis’ and ‘leges speciales’ in this volume, ch 2, 23–6. And of others with an interest or stake in the matter: see further below at section IV.

304  RA Duff of ‘fair trial’ principles must be to protect accused persons against unwarranted or over-hasty findings of guilt; and that a central kind of unfairness in a criminal trial will be that it exposes the accused to an unacceptably high risk of being mistakenly convicted.6 Such a view of the trial’s aim is of course compatible with a recognition that our pursuit of that aim is rightly subject to a range of ‘side-constraints’ that might inhibit its pursuit (‘seek the truth, but not by these means’); but it might also be over-simplified as an account of the trial’s primary aim. For one thing, given the central status of the presumption of innocence and of the requirement that guilt be proved to a very high standard if a formal finding of guilt is to be warranted, we might say that the truth to be established is not (as simple accounts of this aim might suggest) whether the accused person committed the crime as charged, but rather whether the accused person can be proved (by legitimate kinds of evidence) to have committed that crime: an acquittal based on reasonable doubt about the accused’s guilt thus marks not the trial’s failure to achieve its purpose (establishing whether he committed the crime), but its success in establishing that guilt could not be proved. More significant, however, is the question of the accused’s participation in the trial. The rights that are taken to bear on the fairness of a trial include ‘participatory’, as well as ‘protective’, rights:7 accused persons have a right to be effectively heard, and this seems crucial to the fairness of the proceedings. But can it plausibly be argued that the right to participate or to be heard matters only because it serves the aim of safely establishing the truth—that a verdict arising from a trial in which the accused was not allowed to participate is illegitimate because, and only because, there is an unacceptably high risk that it is mistaken? Or should we say, more plausibly, that the accused’s participatory rights are grounded not (or not only) in the right to a truthserving process, but (also) in a right to speak for herself or himself—to answer the charge, to challenge the prosecution’s evidence and witnesses? We might agree that the right of silence ‘express[es] the principle that individuals generally should not have to account to the State for their actions’:8 but we should surely also recognise that those accused of a crime should have the right to answer that accusation; this is part of what it is to treat people as responsible members of the political community.9 If that is right, it requires a more complicated account of the aims of a criminal trial: it must be seen not simply as an inquiry into the truth, or provability, of a charge of 6  It is worth noting that this way of putting the matter suggests that fair trial rights exist primarily to protect, to serve the interests of, innocent defendants: as Farmer suggests, however (in this volume, ch 4, 71–2), we should perhaps look for an account of fairness grounded in the need to protect all defendants, whether innocent or guilty. One who is actually guilty is still treated unfairly if convicted through an unreliable process. 7  See in this volume Jackson and Summers, ‘Introduction’, ch 1, 8. Recognition of such participatory rights then raises a question that Jackson and Summers, ch 6; Sklansky, ch 3; and Wohlers, ch 7 discuss: Should these be rights that the accused can decide whether to waive, and whether and how to exercise; or should defence counsel be able to exercise them on the accused’s behalf—and perhaps even against the accused’s will? I say a little more about this below, in section V. 8  J Jackson, ‘Re-conceptualizing the Right of Silence as an Effective Fair Trial Standard’ (2009) 58 ICLQ 835, 841; quoted by Quirk in this volume, ch 5, 94–5. 9  This is not to argue that the primary aim of the trial should be to call the accused person to answer the charge, see RA Duff, L Farmer, SE Marshall and V Tadros, The Trial on Trial (3): Towards a ­Normative Theory of the Criminal Trial (Oxford, Hart Publishing, 2007); only that the accused should be allowed and enabled to answer.

Fairness in Criminal Proceedings 305 criminal wrongdoing, but as an enterprise in which the accused must be able to play an active role in responding to that charge; and a trial’s fairness will be undermined to the extent that the accused is not allowed, or not enabled (for instance by the provision of legal assistance) to play that part. I will say a little more about the role of the accused in the criminal trial later, but turn now to the second of the three further questions noted above, about the scope of ‘criminal proceedings’. III.  ‘CRIMINAL PROCEEDINGS’

‘Criminal proceedings’ clearly extend further than the criminal trial, and the provisions of Article 6 apply well before any trial begins: thus, for instance, the ‘reasonable time’ referred to in Article 6 § 1 begins to run as soon as a person is ‘charged’, [and] this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened.10

But how far should the various requirements of fairness that are captured in the idea of a ‘fair trial’ extend? Leaving aside here the important question of their application at the sentencing stage (whether or not we should count that as part of the ‘trial’), we can focus on what precedes the formal trial. If we begin with the contested criminal trial as the—in theory—culmination of the criminal process (an ‘if’ to be questioned shortly), we can still see that the requirements of procedural fairness must apply well before the trial begins, and even if there is in the end no trial. They must apply, for a start, to the kind of negotiation or ‘bargaining’ that so often precedes trials in some jurisdictions, and that might remove the need for or possibility of a contested trial (if the accused waives the right to contest the charge that is, as a result of the negotiation, formally laid); and as Richard Lippke shows in this volume, there are serious questions about how negotiations of this kind can be made fair—as well as about whether the accused should always have a right to waive the right to a contested trial. We must also look at other kinds of case disposal that can halt the progress of cases towards a trial: for instance at cautions administered by the police, or penalties or sanctions (to call them ‘punishments’ would beg too many questions) that can be imposed by prosecutors on accused persons who admit their guilt.11 One crucial feature of these kinds of provision is the possibility for an accused who disputes the charge to refuse the disposal—and thus to go to trial if the case is not dropped. Such measures as these could be seen not so much as ‘diversions’ from the criminal process that culminates in a trial and formal verdict, but rather as etiolated versions of that process: guilt is still determined, through the accused’s admission; something at least analogous to a conviction and sentence is still imposed; the accused person is

10 

Hozee v The Netherlands, 22 May 1998, Reports 1998-III [43]. AJ Ashworth and M Redmayne, The Criminal Process, 4th edn (Oxford, Oxford University Press, 2010) Ch 6; see also P Duff, ‘The Prosecutor Fine’ (1994) 14 OJLS 565. 11  See

306  RA Duff still held to public account (to account, that is, by a public official) for the criminal wrong. Other measures are more properly portrayed as diversionary:12 instead of treating the matter as a crime that requires criminal investigation and that will in principle lead to a criminal process, the police or the prosecutor determine that it can be better treated as, for instance, a ‘conflict’ or ‘trouble’ to be dealt with through some kind of non-criminal ‘restorative justice’ process, or as a problem of physical or mental health to be dealt with through appropriate medical or social services. In all these kinds of case, so long as a person is being treated, if not as someone formally charged with a crime, at least as someone suspected of a crime, who might go on to face charges, requirements of fairness that belong with the idea of a fair trial must apply—though precisely what they entail will of course depend on the particular stage or aspect of this extended ‘criminal process’ that is in play. Eric Miller argues, in this volume, that this does not go far enough: that we ought to abandon this focus on the trial, as the natural or appropriate culmination of the processes through which criminal law is applied and enforced, and recognise that the police—even when they are using or applying or acting under the aegis of the criminal law—are often not focused on laying the basis for prosecution and trial; that their role is a broader and more varied one than that of acting as the servants or preparers of prosecution. He is surely right to focus on the roles that the police (and other officials) are to play—as both an empirical and a normative question; I will say a bit more about roles in relation to the criminal process later. He is also clearly right to emphasise both that the role of the police includes far more than investigating or responding to crime, and that even when police officers are responding to alleged crime, their focus will often, and rightly, not be on identifying perpetrators with a view to their prosecution: the criminal process, as a process that if completed culminates in prosecution and punishment, is just one of a range of possible responses to crime, and police officers and forces must often use their discretion in deciding which kind of response is appropriate. That what the law defines as a crime has (allegedly or apparently) been committed gives the police and other officials reason, perhaps good reason, to begin a criminal investigation with a view to prosecution; but that reason is—especially if the crime is relatively minor—not necessarily conclusive, and might be outweighed by stronger reasons in favour of a different kind of response.13 However, if our concern is with the rights of, or with what is due to, those facing ‘criminal charges’, that concern will be mobilised only once there is someone who can be said to face a criminal charge, and not by other aspects or stages of police activity. Article 6 must be taken to reflect the thought that being charged with a criminal offence puts one into a distinct, and distinctively vulnerable, position, which therefore requires the special protections provided by Article 6; and the extension of the reach of those protections to earlier stages of the criminal

12 See, eg, R Allen, ‘Alternatives to Prosecution’ and C Hoyle and R Young, ‘Restorative Justice: Assessing the Prospects and Pitfalls’ both in M McConville and G Wilson (eds), The Handbook of the Criminal Justice Process (Oxford, Oxford University Press, 2002). 13  There are of course familiar dangers in the exercise of this kind of discretion: a notorious example is that of the past (one hopes) tendency to treat cases of domestic violence as merely ‘domestic’ matters for which a criminal response was unnecessary or inappropriate.

Fairness in Criminal Proceedings 307 process, before a person has been formally charged, reflects a recognition that that vulnerability can begin before any formal charge. This seems right; but it is perhaps also misleading in its focus on the person who is accused, or suspected, of crime, or who is the subject of a criminal investigation. To be thus accused, or suspected, or subjected, is to be rendered distinctively vulnerable to the penal power of the state, and our human rights (which are at least paradigmatically rights against the state)14 will therefore properly include rights that protect us when we are thus vulnerable. However, there are others whose significant interests are at stake when crimes are committed: so must we not also consider what (moral) rights they have, and what (legal) rights they should have? This is the question that is often asked, often rhetorically, about victims of crime: but even if it is sometimes misused, in the service of a ‘war on crime’, it is a question that must be asked—not just about victims, but about a wider range of those with an interest or stake in the matter. I cannot pursue this general question, of who has what kind of stake in our responses to crime here; but it does lead into the third question noted above about the range of parties or participants to whom fairness might be owed in the criminal trial. IV.  FAIRNESS TO WHOM?

Article 6 of the ECHR is concerned with the fair trial rights of those facing criminal charges, and it is natural that discussion of what makes a trial fair or unfair should focus especially on the accused person’s rights. However, as several contributors to this volume point out, the accused is not the only participant in the trial whose interests and rights may be at stake, or the only party with a legitimate interest in the proceedings and their outcome: apart from the various officials involved in the process (who have role-related rights as well as duties),15 there are the witnesses who are called to give evidence; there is usually a complainant or victim, who even if not given an active role in the trial surely has an interest in the proceedings; and there is ‘the public’—the members of the polity in whose name or on whose behalf the proceedings are brought, who also have a stake in what happens. The status of the complainant or victim in the criminal process is of course controversial: at one extreme there is the view that the prosecution is, or should be, really brought on behalf of the victim (on this view the complainant is typically, and questionbeggingly, described as the victim), whilst at the other extreme it seems that the complainant has no essential role in the process—a process that might then be said, in Christie’s rhetorically powerful phrase, to ‘steal’ the ‘conflict’ from those to whom it properly belongs.16 We cannot pursue this issue here: the relevant question for

14  See R Cruft, SM Liao and M Renzo, ‘The Philosophical Foundations of Human Rights: An Overview’ in R Cruft, SM Liao and M Renzo, Philosophical Foundations of Human Rights (Oxford, Oxford University Press, 2015) 1, 7. 15  Their rights include, crucially, rights that enable them to discharge their duties, compare L Wenar, ‘The Nature of Claim-Rights’ (2013) 123 Ethics 202 on ‘role-based rights’. 16  N Christie, ‘Conflicts as Property’ (1977) 17 British Journal of Criminology 1.

308  RA Duff present purposes is whether we can properly talk about the fairness of criminal proceedings as a matter only of being fair to the accused. Trechsel is clear that we cannot. Fairness ‘concerns all participants in the game. … it would be grotesque, absurd, completely illogical to claim fairness for one participant alone’.17 But we should distinguish two claims here, one conceptual and one normative. The conceptual claim is that we cannot determine what counts as fair treatment of one participant in an enterprise without at the same time determining what counts as fair treatment of the others, since fairness is a matter of fairness between the different parties: to treat accused persons fairly is to treat them fairly in relation to others who have a role or stake in the enterprise, to weigh their interests fairly against the interests of those others. The normative claim is that we should not (or that we cannot, on pain of normative incoherence) insist on treating one participant fairly without also insisting that the others must be treated fairly. In a very simple case, in deciding on a fair distribution of some benefit, we can decide on A’s fair share only as part of a wider decision about what constitutes a fair share for each of the participants; and although it would then be practically possible to focus only on giving A her fair share, forgetting about the claims of the others, that would be clearly illegitimate in normative terms. A criminal trial is, of course, a far more complicated enterprise, but a similar point must apply there. A provision that is fair to the accused cannot be unfair to another party (a witness, the complainant, the ­public): for fairness to the accused is a matter of giving the accused what is due to him or to her, in relation to other participants in the process—a matter of weighing the accused’s claims against those of other parties, and striking a fair balance between them.18 To say that a particular provision (for instance about the kinds of question that may be put to a witness, especially to a complainant, in ­cross-examination) is fair to the accused must also be to say that it is fair to the other parties affected (for instance to the witness or the complainant): for if it is not fair to them, if it gives them less protection than is their due, or if it imposes undue burdens on them, it cannot give the accused what is due to him or her.19 Thus a fair trial must be fair to all those with a stake or proper interest in the matter—which includes at least the victim or complainant (when there is one), the witnesses, and the ‘public’, in whose name and to serve whose interest prosecutions are brought.20 We must therefore ask what stake or interest these other parties have—a question that is particularly problematic in relation to complainants. I ­cannot ­pursue the question of their status in the criminal process here, but want

17 

Trechsel in this volume, ch 2, 33. model or metaphor of balancing can be a dangerous one, implying that we are dealing with commensurable values that can be properly weighed against each other; but it is sometimes—as here— unavoidable, see Jackson and Summers in this volume, ch 6. 19  We should note that (un)fairness here might consist either in the (un)fairness of the formal rules and provisions of the process, or the (un)fairness of the way in which those rules and provisions are applied. 20  As is made clear in the second of two tests that English prosecutors must apply in deciding whether to bring a case to court: they must first ‘be satisfied that there is sufficient evidence to provide a realistic prospect of conviction’, but must then also ‘consider whether a prosecution is required in the public interest’, Code for Crown Prosecutors, www.cps.gov.uk/publications/code_for_crown_prosecutors (last accessed 02 October 2017) paras 4.4 and 4.7. 18  The

Fairness in Criminal Proceedings 309 to say a word about ‘the public interest’, before concluding with a suggestion about what might be a fruitful line of further inquiry. To judge from much of the political (and media) rhetoric around crime and punishment, ‘the public interest’ lies in, and is served by, the prosecution, conviction and punishment of criminals: in the meting out of retribution, and the protection of the law-abiding and innocent ‘us’ against a predatory and criminal ‘them’. On that view, the public interest in the trial lies in ensuring, as far as is possible, that the guilty are convicted and properly sentenced: the interests of the accused must then be weighed against the public interest,21 and such rights and protections as are allowed to the accused act as constraints on the pursuit of that public interest. Now it is no doubt true that some, perhaps many, members of ‘the public’ take this kind of interest in the criminal process, and are disposed to see acquittals, or the dropping of cases, as failures to achieve the proper aims of the process; but that is not to say, nor should we think, that that is what constitutes ‘the public interest’—when that is properly understood as what is in the interests of, serves the good of, the polity and its citizens (which is what constitutes ‘the public’ in this context). The public interest, as thus understood, certainly includes the effective investigation and prosecution of crime, when and to the extent that that serves the common good: but it also, we must hope, includes doing justice (which includes doing justice to those accused of crimes); paying proper regard to the interests and rights of all those who are affected by crime and the criminal justice system; and maintaining a set of legitimate institutions that can efficiently and justly pursue those aims.22 This essential reference to the institutions of criminal justice brings me to my ­suggestion for a direction for further work. V.  INSTITUTIONS AND ROLES

Whether our theoretical interest in criminal law is explanatory or normative, it must be an interest in criminal law as a set of institutional practices: we need to ask, in explanatory mode, how our existing institutions of law function; and, in normative mode, what kinds of institution we should aim to create—or, more plausibly, what ends our institutions can properly serve and how they could be reformed to better serve those ends. Thus in inquiring into the fairness of our criminal proceedings, or into obstacles to such fairness, we must be inquiring into the fairness of those institutional structures and operations.23 This point might seem obvious

21  Assuming that the accused’s interests are allowed any substantial weight in the matter: the political rhetoric of ‘popular punitiveness’ sometimes suggests (a) that accused persons are very probably guilty, and (b) that their interests should therefore carry little or no weight, since they have ‘forfeited’ their civic standing. 22  Compare Pitcher’s comments on our shared interest in duty-observance by officials, and in the protections provided by exclusionary rules (protections in which the accused shares as a citizen), in this volume, ch 14, 281; see also Jackson and Summers, on our collective interest in the legitimacy of the criminal process and the protections it affords the accused, in this volume, ch 6, 106. 23  This is a point emphasised by Jackson and Summers in this volume, ch 6.

310  RA Duff e­ nough—although normative theorists too often pay insufficient attention to it;24 but it has at least one important implication for our present purposes. Institutions create roles: they are staffed and operated by people who act not simply as individuals, but as the bearers of certain roles within the institution. Such roles consist in patterns of responsibilities, duties and rights, which together specify the distinctive goals and activities proper to the role; they are to be understood in terms of their distinctive contributions to the aims of the institutional practice within which they exist. One useful way to approach the study (explanatory or normative) of an institutional practice is thus to examine the roles that it creates, and through which its operations are carried out and its goals pursued: by asking what is (or should be) expected of, demanded from, or allowed to, those who fill the roles, we can gain a clearer picture of the institution, and its role in our lives. The criminal law, and the criminal process (as broadly understood), involve a wide range of roles, both professional and non-professional. Even if we leave aside the process of law-making, and focus on the application of the law and the investigation of crime, we can identify such roles as those of police, prosecutors, judges, and defence lawyers (as well as all those involved in the administration of punishment). These are all professional roles, but we must also add a number of roles that are played by lay people: some of these carry legal authority—most obviously those of juror and lay magistrate; others are played by lay people who have, or are thought to have, a relevant connection to a particular alleged crime—such roles as victim, witness, and offender in relation to an actual crime; and the roles of complainant, suspect, defendant, summoned witness, and convicted offender in relation to the criminal process of investigation and prosecution. Of each role (though of course we cannot consider them in isolation from each other) we must ask how it should be understood: what aims those who fill it should pursue, what responsibilities and rights they should have, how it should be acquired—and in some cases whether it should exist at all.25 Conceptions of fairness in criminal proceedings, and of the means by which fairness is to be secured (as well as of ways in which it might be undermined) must help to structure accounts of the various roles that are played in such proceedings. If we ask, for instance, what the role of the police should be,26 or how prosecutors (as key players in the criminal process) should understand their role,27 or what the proper role of defence counsel (and their proper relationship with their clients) should be,28

24  But see L Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (Oxford, Oxford University Press, 2016). 25 Would a decent system of law include the role of executioner, for instance? See CJ Bennett, ‘­Considering Capital Punishment as a Human Interaction’ (2013) 7 Criminal Law and Philosophy 367; for a useful initial discussion of officials’ responsibilities see K Brownlee, ‘Responsibilities of Criminal Justice Officials’ (2010) 27 Journal of Applied Philosophy 123. 26  See Miller’s discussion of the role of the police in this volume, ch 13. 27 See M Tonry (ed), Prosecutors and Politics: A Comparative Perspective, Crime and Justice: A Review of Research (Chicago, University of Chicago Press, 2012) 41; M Langer and D Sklansky (eds), Prosecutors and Democracy (Cambridge, Cambridge University Press, 2017); also Lippke’s discussion of plea-bargaining in this volume, ch 12. 28  See the chapters in this volume by Jackson and Summers, ch 6; Giannoulopoulos, ch 8; Wohlers, ch 7; and Sklansky, ch 3.

Fairness in Criminal Proceedings 311 our answer will have to depend on—and will thus also help to articulate—some conception of the aims of the criminal process, and of what would count as a fair (as well as an efficient)29 process. A fair trial, a fair criminal process, is one that accords their due to each of the participants or stakeholders in the process: but to work out what is due to them, we need to work out what their distinctive roles in the process are. We can see how a consideration of roles can help illuminate the idea of fairness in criminal proceedings by looking, finally and briefly, at the role of defendant, or accused person, and noticing two points that connect to issues raised in some of the articles in this volume. First, the rights of defendants or accused persons are rights that attach to that particular role: they are, that is, rights that I have not simply qua human being (even if they are human rights), or qua citizen, but rights that I have qua the bearer of this particular role; they are indeed rights that partly define that role. As such, they also help to structure that role as one that can serve or assist the proper aims of the criminal trial—aims that, as we saw earlier, cannot be understood simply in terms of establishing the truth: they help to protect the defendant, the person bearing that role, from various kinds of potential oppression or injustice to which defendants are vulnerable; they help to ensure that the prosecution case is challenged and tested, and that the defendant’s own voice can be heard. As role-related rights, however, which in this way contribute to the aims of the institution of which that role is part, they become to a degree detached, as it were, from the purely personal attitudes and interests of the individuals who fill that role: if we have a public, collective interest in the just and proper functioning of the institution (an interest in which the defendant shares, as a member of ‘the public’), we have an interest in those role-related rights being respected—and thus in their being asserted and claimed if they are in danger of not being respected. That is why we need to ask seriously, as Jackson and Summers ask, whether accused persons should always be able to waive their procedural rights at will; that is also why we need to ask about the role of defence counsel, as several contributors ask, and in particular whether the accused’s lawyer (whose role again is defined in a way that reflects and serves the institution’s aims) should always be obliged to act in accordance with the client’s personal wishes.30 To ask such questions, and to suggest that the accused should not be able, at will, to waive every procedural role-related right, is to suggest that defendants have duties or responsibilities as well as rights. Some of these are obvious and uncontroversial legal duties—such as the duty to appear for trial when summoned to do so,31 or to

29 

On the inter-relations between fairness and efficiency see Ambos in this volume, ch 9. might talk in this context of the interests of the defendant qua defendant, or of the defendant’s ‘role-based desires’, see Wenar (n 15) 214—what the defendant necessarily wants qua defendant: such interests and desires can diverge from what the individuals who fill that role might see as being in their personal interests, or might actually desire. A key question then will concern the extent to which other role-bearers in the practice should behave towards defendants solely on the basis of their role-based interests and desires, or should attend to the personal interests and desires of those who fill the role—I discuss a version of this question below. 31  For the English provisions concerning (and qualifying) this duty, see Bail Act 1976 s 7; Magistrates’ Courts Act 1980 ss 11–13: here as elsewhere, in discussing the criminal process, it is very hard to avoid parochialism. 30  We

312  RA Duff behave appropriately in court. Others, which were once enforceable duties, have become non-enforced expectations: defendants in English courts are expected, but no longer required or forced, to enter a plea in answer to the charge (a plea of ‘Not Guilty’ is entered for any defendant who refuses to plead).32 But we could suggest other responsibilities (civic rather than legal) that defendants might have, at least if (which is, of course, a very large ‘if’) they are facing a just trial in a just and decent legal system. For instance, we might suggest that a defendant should, in principle and as a matter of civic responsibility but not of legal duty, be willing to play an active part in the trial by giving evidence and answering questions: for if the trial does serve the aims of justice, and thus contributes to the common good of the polity of which the defendant is a member, and if the defendant’s active participation can assist that aim, surely it is a civic responsibility to play that role. This might seem a worrying suggestion to those who are rightly exercised by the ways in which the right of silence has been eroded, and by the growth of a ‘“normative expectation” that defendants should cooperate fully in the criminal process’:33 surely we should try to sustain ‘the principle that individuals generally should not have to account to the State for their actions or activities’.34 All I would suggest here is that we might see that principle, and the right of silence that it grounds, not as a foundational principle of the criminal process as it should aspire to be, but as a principle that provides us with a necessary protection against the ways in which that process can become oppressive. If we lived in a just society under a just criminal law, one that included a just criminal process and a humane and moderate penal system, we could say that we had a civic responsibility to answer to criminal charges that were brought against us—to appear in court and to respond to the charges: for this would be a surely uncontroversial responsibility to assist in the functioning of a criminal process that serves our common good as members of the polity. Even then, we should not turn this civic responsibility into an enforceable legal duty, given the dangers of oppression and injustice that such a duty would bring; but we could recognise it as an aspect of what we owe to each other as fellow citizens of the polity.35 Two further, perhaps yet more disturbing, implications follow.36 The first is that defendants who know that they are guilty of the offence charged have a civic responsibility to plead guilty: for as citizens they have a civic responsibility to assist in the criminal law’s enterprise of calling criminal wrongdoers to account; and a responsibility to answer for their crimes in the appropriate public forum—the criminal court.

32  On the ‘peine forte et dure’, by which pleas used to be coerced from any who refused to plead, see A Mckenzie, ‘This Death Some Strong and Stout Hearted Man Doth Choose’ (2005) 23 Law and History Review 279. 33  Quirk in this volume, ch 5, 96; quoting R Leng, ‘Silence Pre-trial, Reasonable Expectations and the Normative Distortion of Fact Finding’ (2001) 5 Evidence and Proof 240, 246. 34  See Jackson (n 8). 35  I have been talking as if defendants in criminal trials are always citizens, who can be said to have a civic, if not a legal, responsibility to assist the aims of the legal institutions of their own polity. Of course, many of those who appear in a polity’s criminal courts are not citizens: on their status as ‘guests’ in the polity, see RA Duff, ‘Responsibility, Citizenship and Criminal Law’ in RA Duff and SP Green (eds), Philosophical Foundations of Criminal Law (Oxford, Oxford University Press, 2010) 125, 141–43. 36  See RA Duff and SE Marshall, ‘Civic Punishment’ in A Dzur et al (eds), Democratic Theory and Mass Incarceration (Oxford, Oxford University Press, 2016) 33.

Fairness in Criminal Proceedings 313 A second is that defendants who know (or believe) themselves to be innocent of the charge should plead ‘Not Guilty’—that they should not accept plea bargains in order to avoid the burdens of going to trial and the risk of being mistakenly convicted: for to plead ‘Guilty’ when I know that I am not guilty amounts to perverting the course of justice—to helping to secure the conviction and punishment of an innocent person. I should emphasise again (to try to ward off at least some cries of horror) that I am not suggesting a legal duty of this kind; that even as a civic responsibility it depends on the justice of the society in which we live and by whose laws we are to be bound, as well as on the justice of its criminal law, its criminal process, and its system of punishments; and that if we were to assert such a responsibility, we would need also to make sure that defendants were supported in exercising it— which includes ensuring that they were not subjected to improper or oppressive incentives to plead ‘Guilty’; and that we should even then still allow guilty defendants to plead ‘Not Guilty’, and innocent defendants to plead ‘Guilty’,37 as a matter of legal right if not of civic responsibility. I do not have the space here for a thorough explanation and defence of these suggestions (their full defence requires a complete account of the role and authority of criminal law within a democratic polity), but would add just two clarificatory comments.38 First, a civic responsibility (as distinct from a legal duty) to participate actively in one’s trial, and plead ‘Guilty’ if one knows one is guilty, clearly cannot have any legal implications: it cannot be enforced as a matter of law; a failure to discharge it can have no legal implications. But this lack of legal efficacy does not render talk of such a responsibility pointless or empty: we should care about what we owe to each other as citizens, beyond the minimum that the law might require of us; a recognition of our civic responsibilities can and should guide our own conduct, and the term in which we address each other. Second, we might think that part of the point of the criminal trial is to put the prosecution to the test, to make sure that the charges against the defendant are not too readily accepted as true. One of the many objections to current practices of plea-bargaining is that they enable prosecutors to avoid (or evade) that challenge; the claim that offenders who know that they are guilty have a civic responsibility to plead ‘Guilty’ invites a similar objection—that it urges guilty defendants to enable the prosecution to avoid that challenge. Now it is certainly true that the prosecution’s case must—even when the defendant is willing to plead ‘Guilty’—be subjected to serious and public scrutiny; but that can be achieved, consistently with a defendant’s guilty plea and without the need for a full contested trial, by the kind of ‘­settlement hearing’ that Lippke proposes, at which the judge would examine and assess both the charges and the evidence.39

37  See Lippke in this volume, ch 12, 229–30. We might note too that a plea of ‘Not Guilty’ by a guilty defendant need not be interpreted as a lie: it could be interpreted instead as a challenge to the prosecution to prove guilt. 38  In response to helpful questions from the editors. 39  See Lippke, in this volume, ch 12, 228–9, 231; also Lippke, The Ethics of Plea Bargaining (Oxford, Oxford University Press, 2011) 17–28 and 231–32.

314  RA Duff All I have tried to show in this final section is that we can make progress in tackling some of the further and yet deeper questions raised by this rich collection of papers by attending (as some of the authors suggest we should attend) to the range of roles that belong to the criminal process—and that in examining such roles we must attend both to the rights and to the duties or responsibilities (civic and legal) by which they are structured.

Index Introductory Note References such as ‘128–29’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire work is about ‘fairness’, the use of this term (and certain others which occur constantly throughout the book) as an entry point has been restricted. Information will be found under the corresponding detailed topics. abbreviated trials  119, 222 abuse of process 10, 32, 80, 293, 293–97 acceptance  112, 156, 159–62, 231 account of  160, 162 mutual  193 access, right of  51, 53, 112–13, 118–19, 155, 157, 163, 166–68, 170–71, 177, 226 accountability  186, 268, 270 process-based  241 accuracy  49, 104–6, 234, 236 accusations  3, 32, 39, 101, 210–11, 221–22, 303–4 accusatorial system  80, 82, 194 ACHR (American Convention on Human Rights)  77, 181 acquittal  56–57, 78, 85, 122, 197, 304, 309 wrongful  83 Actuarial Justice  197–98 ad hoc Tribunals  129, 183–84, 274, 295 adjudication procedures  15, 227, 237 improved  15, 234–35 adjudicative process  15, 244, 258, 262–63 administration  10, 30, 35, 94, 105, 184, 295, 297 proper  282, 296 administrative proceedings  27, 171 admissibility  25, 188 admissions of guilt  14, 40, 124, 223 adversarial systems  9–10, 51–52, 117, 119–20, 123–24, 153, 186, 192–94 adversarial trials  127, 134, 137, 151–53 adversarialism  84, 97 adversariality  109, 115, 121 advice  87, 92–93, 110, 119, 155, 233 legal  85, 92–95, 97, 112, 114, 118, 130, 173 affidavits  231 agency  10–11, 37, 49, 55 attorney–client  48–49 moral  68 United States  42–46 agents  12, 53, 206, 227, 250–52, 258–59, 264 dispassionate  260 aggregation  259

agreements  40, 118, 162, 226, 230 aims  1, 6, 71, 128, 152, 156, 302–4, 309–12 of criminal process  303–5 American Convention on Human Rights, see ACHR American criminal process  37–56 anecdotal evidence  140, 165 anonymous witnesses  122, 203 appeal  25–26, 46–48, 59–60, 86–90, 92–93, 95–96, 131–32, 147 direct  46–47 proceedings  131–33, 147–48 arrest  221, 223, 233, 242, 245, 252–55, 261–62, 269–71 assistance, legal  108–12, 117–19, 127, 129–32, 134–38, 142–46, 149, 151, 155–59, 161–63, 165–68, 171–74, 176, 210–11 attorney-client relationship  43, 49, 93, 97, 170 attorney–client agency  48–49 attorneys  43, 45–46, 48–49, 55, 223, 233–34; see also counsel defence, see defence counsel/attorneys prosecuting  53 Australia  75 authorities prosecuting  112, 118 public  259, 275, 277, 280–83, 290, 296–97 state  3, 32, 101, 107, 111–12, 222 autonomy  7–8, 10–12, 71–72, 100–2, 104, 109–11, 114–17, 302 client  115–16, 120 and dignity  7–8, 71, 101, 122, 302 individual  41, 109, 115, 119, 121 and liberty  101, 104, 106 United States  37–42 bad character, see character evidence bad faith  294–95, 297–98 balance  4, 12, 35, 65, 82, 107, 252 balancing exercise  30, 290 bargaining  226, 230–31, 233, 305 power  40 barristers  82, 136–37, 208

316  Index Belgium  155, 161, 167, 173 beneficence  255–56, 258 best interests  41–42, 112, 128, 137, 141, 150–52 best practices  14, 193, 195, 203 bias  31, 86 gender  279 institutional  107 liberal  102 Birchermüesli  19, 35 Brady claims  52–53 burden of proof  31, 57, 60, 62–63, 65, 72, 87, 96–98 capacity  70–71, 103, 112, 114, 280–81, 286 personal  254 role-based  251, 254 caseload pressures  234 case-processing, misdemeanours  14–15, 223–24, 226–28, 232–37, 266 character evidence  70, 95; see also reputation characterisation  7–8, 10–11, 97, 275, 288, 293 charge adjudication  221–37 charges and evidence  233–34 veridical  230, 232 choices  11, 37, 41, 44–45, 53, 55–56, 110–14, 150–51 procedural  42–43 circumstantial evidence  65 civic responsibility  312–13 civil cases  52, 107, 121 civil law systems  12, 14, 106, 124, 127, 131, 205, 207 client autonomy  115–16, 120 client confidentiality  120–21 coerced participation  96 Committee for the Prevention of Torture (CPT)  13, 156, 164, 169–71 common law  12, 14, 57–58, 114, 124, 127, 129, 207 and civil law systems  12, 124, 131 community policing model  266 compensation  26, 29, 32, 288 competence  5, 138–40, 142, 150–52, 214, 216 professional  54 complementarity, positive  195 complexity  43, 97, 130, 153, 188, 278, 282, 298–99 concessions, plea  14–15, 221–37 confessions  5, 66, 119, 205, 207 forced  66 confidence, public  51, 106 confidentiality  120–21, 136, 170–71 confrontation  19, 33, 49–50, 55, 124, 127, 159 rights  50 waiving  49–50 consent  38, 43, 50, 108, 118, 124 constitutional guarantees  8 constitutional rights  40, 47, 67 constitutional rules  39–40

contested trials  5, 305, 313 contextual studies  155–56, 172, 175–76 continental Europe  2, 127, 129, 131, 135, 144, 153, 194 contracting parties  156, 159–60, 175 contribution orders, legal aid  96 control  38, 140, 143–44, 153, 211–14, 245, 249, 251–52 culture of  12, 76, 86 social  15, 240–41, 245, 248–49, 264–67 conviction  46, 60, 78–79, 85, 90–91, 227, 233, 266 rates  85–86, 226 unjust  105, 113 wrongful  6, 12, 26, 105–6, 122, 219, 294–97, 299 cooperation  1–2, 97, 147 cost-benefit analysis  174, 290–91 costs  166, 174, 182, 225, 227, 229–30, 235–36, 292 process  15, 222, 224–25, 227, 230, 233, 236 counsel  12, 42–45, 50, 53–55, 107–17, 119–21, 128–43, 145–53; see also attorneys appointment of  111, 113–15, 145, 147 mandatory  135, 145, 147, 149, 151, 153 assistance of  108–9, 111–12, 117–18, 129–31, 134–38, 142, 144–46, 149 court-appointed  117, 130, 141, 150–51 effective assistance of  44, 48, 53–54 right to, see rights, of/to access to a lawyer role in criminal proceedings  127–53 common law and civil law distinguished  127–29 European Court of Human Rights  131–34 transnational view of criminal proceedings  129–34 standby  115, 141–42 court-appointed counsel  117, 130, 141, 150–51 court-centred explanations  156, 160, 162 courtroom  25, 44, 78, 96, 140, 143, 214, 242 CPT, see Committee for the Prevention of Torture credibility  14, 122, 148, 209, 216, 218 crime control  16, 76, 83, 87, 284, 289, 299 criminal investigation  17, 79, 276–78, 280, 282–83, 286, 298, 306–7 criminal justice  1, 5, 7–8, 106–7, 240, 265–67, 269–71, 284 objectives  16, 274–75, 298 policy  76, 95 process  7, 10–11, 71–73, 97, 254, 264 systems  6–8, 10–12, 226–27, 234–35, 239–42, 244–45, 263–67, 271 Criminal Justice and Public Order Act 1994 (CJPOA)  75–77, 83, 86–87, 90, 93–98 criminal procedure  147, 192–95, 241–42, 273–76, 280, 284–85, 289–90, 298–99 American  10–11, 37, 49, 55 fundamental goals  284, 292 criminal proceedings, scope of term  305–7

Index 317 criminal process, American  37–39, 41, 43, 45, 47, 49, 51, 53–56 cross-examination  49, 87–89, 115, 122–23, 130, 135–37, 139, 143 culpability  70–71, 73, 197, 296 cultures  9, 80, 97, 156, 175 of control  12, 76, 86 legal  6, 9, 51, 172, 175–76 custodial interrogation rights  156, 162–69, 172–73, 177, 206 custody  111, 118–19, 145, 157–58, 170, 205, 227, 252–53 police  78, 84, 93, 157 dangerous individuals  232, 257–58 defence, effective  106, 110, 116, 121, 133 defence counsel/attorneys/lawyers  50–56, 127–29, 132–37, 139–41, 144–47, 149–52, 226–28, 233–34 role of  12, 128–29, 133, 311 defence rights  8, 16, 124, 128–29, 131, 134, 286, 296 defence strategies  128, 136, 144, 146–47, 150–52 deprivation of life or liberty  22, 38, 108, 170 derivative duties  257–58 detention immigration  172 pre-trial  181, 222–23, 225, 227, 230, 236 deterrence  16, 34, 134, 262, 278, 290, 293 remedial  285, 292 dignity  3, 7, 12, 67, 100–4, 234, 237, 302 and autonomy  7–8, 71, 101, 122, 302 first order values of  104, 106 individual  7, 69, 109–10 diminished responsibility  88, 128 direct effect  165, 283 direct knowledge  206, 209–10 Directives  112, 167–68, 174, 176, 253 disclosure  30, 51, 53, 87, 93, 97, 104, 120–22 early  90, 118 hearings  120 pre-trial  40, 95 discounts  115, 119 fixed sentence  229, 231, 236 discovery  45, 52 waiving  51–53 discretion  10, 37, 51, 87, 222, 254, 293, 306 charging  40, 228, 231 discrimination  50–51, 279 dissenting opinions  45, 113, 119, 139, 141–42, 183 domestic courts  14, 77, 93, 95, 194–95, 202 dossiers  187, 207–8 double jeopardy  26, 39, 182 drugs  93, 246–47, 268–69 duties  101, 136–37, 152, 163, 250–52, 254–61, 270–71, 310–12 of beneficence  256, 259 derivative  257–58 moral  255, 268, 270

police  240, 255, 258, 260, 270 role-based  252, 255–56 special  251, 255–58 duty solicitor schemes  163–64, 167, 173 ECHR (European Convention on Human Rights)  1, 20–24, 26, 30–31, 131–32, 174–75, 210–11, 290–92; see also Salduz; Strasbourg jurisprudence role of effective national implementation rights  174–76 and written records  210 ECtHR (European Court of Human Rights)  23–31, 34–35, 92–95, 107–9, 118, 131–34, 155–77, 290–91; see also Salduz; Strasbourg jurisprudence effective assistance of counsel  44, 48 and waivers  53–54 effective defence  106, 110, 116, 121, 133 effectiveness  5, 84, 234 electronic recordings  205–6 empirical evidence  86, 92 England and Wales  75, 77, 79–81, 83–85, 91–93, 97–98, 105–6, 293–94 enforcement  124, 150, 231 powers  13 equality of arms  3, 5, 26, 28–29, 78, 107, 109, 118 institutional  111, 123–24 errors  41, 48, 66, 227 unprofessional  44 ethical rules/standards  10, 107, 115, 278 European Convention on Human Rights, see ECHR European Court of Human Rights, see ECtHR European Union  1 Directives  112, 167–68, 174, 176, 253 evidence  87–98, 115–20, 122–23, 221–24, 226–34, 276–80, 282–85, 289–92 anecdotal  140, 165 and charges  233–34 circumstantial  65 convincing  221, 224, 236 dossiers  226, 234 empirical  86, 92 exclusion  181, 277–79, 282–83, 285, 287, 289–91, 301 exculpatory  40, 47, 52–53 expert  51, 81, 96 gathering  15, 213–14, 244, 258 giving  88–89, 312 incriminating  77, 123, 232, 286 law of  61, 63, 65, 83 medical  96 state’s  222, 236 written  188, 209 evidential burden  62; see also burden of proof examination  12, 23, 25, 33, 79, 129, 181, 187; see also cross-examination exclusion, of evidence  181, 277–79, 282–83, 285, 287, 289–91, 301

318  Index exclusionary rules  17, 163, 188, 262–63, 278, 288–89, 292, 300 exculpatory evidence  40, 47, 52–53 execution  20, 33, 47, 60 exercise of powers  280–81, 283 exercise of state power  123–24, 221 expectations, normative  12, 96, 301, 312 expediency  7, 13, 179–89 and fairness  13, 179, 181–87, 189 expert evidence  30, 51, 53, 75, 80–81, 96, 140, 166–67, 257, 259–60 fair hearing  30, 32, 120, 198 fair procedure  3, 80, 193, 200, 203 fair treatment  38, 41, 54, 104, 237, 308 fair trial  2–4, 10–12, 19–35, 100–4, 197–98, 239–71, 290–91, 293–97 practices  195, 198, 204 rank of right  20–22 rights  6–7, 9–12, 17, 19–35, 182, 185, 194–95, 296 extension to actors other than accused  197–99 scope of right in Art 6 ECHR  22–32 standards  1–3, 5–10, 14–15, 99–100, 103–6, 117, 120, 122 across national boundaries  99–125 core  99–125 meeting challenges  117–23 straightforward individual human right or not  32–35 fairness, see also Introductory Note and expediency  13, 179–89 ideal model of  191–204 notion of  10, 16, 26, 28, 33, 198, 275, 293 obstacles to  4–11, 57–58, 213–14, 217, 273, 275, 292–98, 301 procedural  15, 64, 121, 224, 283, 305 requirements of  13, 196, 302, 305–6 towards a shared understanding  123–25 universal model of  14, 193, 198–99 to whom  307–9 Woolmington  57–73 felonies  39, 134, 239, 266–67 Fifth Amendment  39–40, 79 finality  48–49 First Amendment  39 first order values  12, 100, 104, 106 fixed sentence discounts  229, 231, 236 force  39, 69, 106–7, 115, 141, 165, 209, 252–53 excessive use of  170 forced confessions  66 foreign nationals  170–71 former Yugoslavia  2, 12, 20, 78, 114, 129, 191, 194 Fourteenth Amendment  39–40 Fourth Amendment  240, 262 France  25, 34, 80, 155, 158, 167–68, 173, 205–6

free legal aid  176–77 freedom  1, 21, 32–33, 79–80, 102, 116, 150, 184 full representation  138–41, 143, 147, 151–53 fundamental rights  1, 21, 26, 32, 281, 286, 290, 295 gender bias  279 Germany  5, 12, 128, 131, 145, 152–53, 205–6, 208 Code of Criminal Procedure  131, 145, 147, 149 criminal proceedings  133, 152–53 law  132, 144–47, 149–50 procedural role of accused  144–49 goals  186, 249, 261–63, 266, 268, 274–75, 303, 310 personal  110, 251 social  270 special  185–86 golden thread  11, 57, 63, 66, 78 government  54–55, 80, 85–86, 98, 102, 171, 228–29, 253 distrust of  37, 41–42, 54 federal  39, 42 Grand Juries  39–40, 254 Greece  13, 155–77 Code of Penal Procedure (CPP)  165, 168, 177 custodial legal assistance  162–64 responses to international pressures for human rights reform  169–74 suspects’ rights in practice  164–66 gross negligence  296–97 guarantees  20, 22, 24–27, 30–31, 35, 39, 99–100, 124 general  22–24 guilt  11–12, 63–64, 69–73, 87, 122–24, 221–25, 231–36, 304–5 admissions of  14, 40, 124, 223 determination  4, 69, 97, 104, 124 guilty pleas  14, 40, 50, 96, 222–29, 231, 233, 236 habeas corpus  46–49, 66 hearings  25, 107–8, 131–33, 209, 226–28, 231, 233, 236 closed  120 fair  30, 32, 120, 198 public  25–26, 30, 107–8, 120, 180, 210, 302 settlement  119, 228–29, 231–34, 236, 313 hierarchy of norms  19–21 historical truth  186–87 human dignity, see dignity human rights  3–4, 22–23, 100–3, 129, 131, 193–94, 283–84, 290–91 instruments  1–2, 13, 99, 106, 109, 113, 179 law  109, 113, 202–3 international  101, 193, 198, 202–3 organisations, international  172, 174 reform  169, 171–72, 176

Index 319 standards  2, 193–94 international  13, 169, 195, 202 violations  8, 186, 288 hybrid representation  12–13, 131, 142–44, 146, 153 ICC (International Criminal Court)  129, 179, 183, 185, 194–96, 201–2, 283–84, 295–96 ICCPR (International Covenant on Civil and Political Rights)  1–2, 31, 34, 77, 113, 181 ICTR (International Criminal Tribunal for Rwanda)  129, 179, 181, 184, 195–96, 200, 274 ICTs, see international criminal tribunals; names of individual tribunals (ICTY, etc.) ICTY (International Criminal Tribunal for former Yugoslavia)  33–34, 129–31, 152–53, 179, 181, 184, 193–97, 200–3 ideal model of fairness  191–204 ignorance  168 veil of  4 immediacy  3, 14, 206–9 immigration  120–21, 172, 255 immunities  75, 94 public interest  121 impartial tribunal/court  21, 25–27, 31, 106, 210, 302 impartiality  14, 27–28, 31, 99, 124, 141, 219 judicial  12, 100, 106–7, 109, 117 impropriety  277, 279, 284–85, 289, 294 gross  17 pre-trial  16, 273–300 improved adjudication procedures  15, 234–35 IMT (International Military Tribunal, Nuremberg)  2, 184, 191, 193 IMTFE (International Military Tribunal for the Far East)  184 inalienable rights  3, 101 incriminating evidence  77, 123, 232, 286 incriminating statements  157, 162–64 indigent defendants  52, 54, 113, 234 individual autonomy  41, 109, 115, 119, 121 individual interests  34, 101–4, 117, 119, 137, 281 individual rights  9–10, 102, 104, 273, 276, 280, 282–83, 287 and institutional forms  10–18 inferences  59, 76, 78–79, 82, 87–96, 208 withdrawal  87–88 information, sensitive  6, 100, 120, 125 innocence  11–12, 30–31, 56–58, 63–73, 78, 87–88, 96–98, 302 material  11–12, 67–68 presumption of  3, 11–12, 30–31, 57–58, 63–73, 78, 96–98, 302 inquisitorial systems  9, 52, 54, 186–87, 189, 192–94, 206–7, 209–10 institutional equality  111, 123–24 institutional forms, and individual rights  10–18 institutional frameworks  35, 100, 103, 108

institutional practices  9, 17–18, 70, 303, 309–10 institutional roles  18, 71 institutional safeguards  106, 117 institutional structures  68, 302, 309 institutions  17–18, 64–65, 102–4, 106, 123–24, 149, 303, 309–11 of criminal justice  7, 217, 309 European  26, 161, 176 legitimate  17, 309 and roles  309–14 instructions  93, 110–11, 115, 121, 143, 146, 150–51, 153 instrumentalist objectives  284, 289 integrity  16–17, 51, 206, 214, 279, 283–84, 297, 302 moral  278–79 rationale  16, 278–79, 293, 297–98, 300 intentions  57, 60, 62–63, 90, 263 interests competing  10, 35, 152 of justice  116, 136, 200, 210 interference  32–33, 69, 81, 102 improper  44, 275, 282 International Covenant on Civil and Political Rights, see ICCPR International Criminal Court, see ICC international criminal justice  1, 8, 13, 184–86 international criminal procedure  13–14, 184–85, 189, 191–204 aspects falling short of ideal model  196–99 fairness and expediency in  179–89 and ideal model of fairness  191–204 inability to create universally acceptable procedural model  199–203 potential as ideal model  193–96 international criminal trials/proceedings  186, 188–89, 193–94, 197, 204, 208, 273, 302 International Criminal Tribunal for Rwanda, see ICTR international criminal tribunals (ICTs)  12–14, 16, 114, 129–30, 183–84, 191–200, 202, 274; see also names of individual tribunals (ICTY, etc.) international human rights law  101, 193, 198, 202–3 international human rights obligations  156, 174–75 international human rights organisations  172, 174 International Military Tribunal, Nuremberg, see IMT International Military Tribunal for the Far East, see IMTFE interpretation  25–26, 32, 87–88, 95, 98, 107, 109–10, 113, 163, 166–68, 171, 181, 196, 210–11 interrogation  13, 155–58, 162, 164–66, 173, 244–45, 264, 270 police  155, 157–58, 163, 171, 173 interrogators  187, 215–17

320  Index interviews  91, 93, 95–97, 160, 163, 173, 212, 217–18 no comment  90, 93 investigative  14, 205–6, 208–13, 215–19 police  93, 97–98, 205, 207–8 investigation  77, 84, 258, 264, 275–76, 280, 282–83, 310 criminal  17, 79, 276–78, 280, 282–83, 286, 298, 306–7 files  163, 168, 174 investigative interviews  14, 205–6, 208–13, 215–19 investigators  30, 91, 144, 254, 276 Ireland  23, 155, 160 isolation  10, 33, 64, 160, 169, 310 social  268 ius cogens  20–21 judicial impartiality  12, 100, 106–9, 117; see also impartial tribunal/court judicial notice  196–97 judicial scrutiny  120, 227–28, 234 juries  39–40, 59–60, 62–65, 82, 87–92, 123–24, 143, 303 jurors  50–51, 79, 92, 241, 310 justice interests of  116, 136, 200, 210 miscarriages of  6, 49, 81, 85–86, 120 natural  93, 98 procedural  105, 227, 234, 301 reparative  8 restorative  4, 8, 306 retributive  7–8 victor’s  2, 130 knowledge  43, 87, 111–12, 122, 141, 214 direct  206, 209–10 Kosovo Specialist Chambers (KSC)  179, 184–85 lawyer-client relationship, see attorney-client relationship lawyers, see attorneys; barristers; counsel legal advice  85, 92–95, 97, 112, 114, 118, 130, 173 legal aid  5, 23, 135, 137, 163–64, 168, 176 absence of  171, 173 contribution orders  96 free  176–77 legal assistance  109–10, 119, 155–59, 161–63, 165–68, 171–74, 176, 210 legal chauvinism, so-called  129 legal counsel, see counsel legal cultures  6, 9, 51, 172, 175–76 legal representation  13, 46, 54, 85, 96, 110, 133, 135 legal representatives  84, 89–90, 93, 96, 160 leges speciales  23 legislation  71, 83, 85, 87, 158, 160, 162–63, 174 legitimacy  1–2, 12, 106, 108, 123, 201, 234, 257 legitimate institutions  17, 309

legitimate interests  286–87, 307 lex generalis  23 liability  62, 71, 230, 303 strict  68 subjective  63 liberal bias  102 liberty  11–12, 38–39, 65–67, 70–71, 73, 101–2, 104, 108 and autonomy  101, 104, 106 deprivation of  22, 170 individual  65, 71, 73 personal  21, 32 low-level crimes  15, 233–34, 236, 245–48, 262, 264 magistrates  82, 90, 93, 135, 310 Malaysia  75, 83 malice  57, 59, 61–63 malleability of rights-analysis  284–85, 292, 300 mandatory appointment of counsel  135, 145, 147, 149, 151, 153 manslaughter  59–60 mass policing  263–71 material innocence  11–12, 67–68 medical evidence  96 mens rea requirements  70 mental state  58, 62–63, 66 minimum rights  23, 25, 35, 109 minimum safeguards  108, 158 minimum standards  1, 68, 159, 192 Miranda v Arizona  80 miscarriages of justice  6, 49, 81, 85–86, 120 misconduct  223, 231–32 misdemeanour case-processing  14–15, 223–24, 226–28, 232–37, 266 mixed procedural model  13, 192–93, 204 moral agency  68 moral duties  255, 268, 270 moral integrity  278–79 moral legitimacy  278 motives  59, 70, 294 murder  25, 57–62, 89 mutual acceptance  193 national security  120, 125 natural justice  93, 98 negligence, gross  296–97 negligent waivers  46 negotiations  222, 229, 305 nemo tenetur se ipsum accusare  149; see also self-incrimination Netherlands  155, 173, 202–3, 205, 274–75, 283, 285, 289 Code of Criminal Procedure (CCP)  280, 282–83, 286–87, 289 Supreme Court  160, 285–87, 289–91, 297, 300 non-discriminatory jury selection, waiving  50–51 non-trial adjudication, see plea bargaining non-verbal behaviour  148, 205

Index 321 normative expectations  12, 96, 301, 312 normative powers  241, 253–56, 261 norms  5, 10, 20–21, 27, 251, 280–83, 285, 288 fuzzy  20 hierarchy of  19–21 peremptory  20 Northern Ireland  75, 83–85, 94 Nuremberg International Military Tribunal, see IMT oaths  49, 55, 135–39 obstacles to fairness  4–11, 57–58, 213–14, 217, 273, 275, 292–98, 301 oppression  81, 90, 311–13 oral testimony  3, 14, 188, 200, 207–9, 213, 301 orality  14, 187, 206–8 outcomes  37–38, 56, 60, 105, 109, 111, 234, 237 out-of-court statements  55 participation  56, 88, 101, 109–10, 117, 145, 197, 199 coerced  96 of counsel  117, 138, 145 party-based explanations  156, 160–62, 175 paternalism  41, 45, 124 peremptory norms  20 permissions  241, 250–53, 255–56, 259, 271 legal  253, 259 role-based  252 personal autonomy  111 personal capacity  254 personal goals  110, 251 personal liberty  21, 32 personal rights  35, 100, 109, 122 physical power  253, 256 physical violence  136 plea agreements  40, 47, 225–26 half-loaf  232 plea bargaining  5, 14, 115, 222–23, 225–26, 228, 233, 235–36 problems with unfettered  224–28 US-style  14, 224–26, 228 plea bargains  45, 226, 243, 267, 313 plea colloquies  222 plea concessions  14–15, 221–37 constraining and regulating  228–32 pleas guilty  14, 40, 50, 96, 222–29, 231, 233, 236 process  229–30, 236 pluralist approach  6, 10, 16, 242, 263–64, 278, 283, 299 Poland  173 police  13–16, 51–53, 83–87, 239, 241–68, 270–71, 294–95, 305–6 activity  15, 240, 242–50, 253, 262, 306 conduct  15, 97, 244 custody  78, 84, 93, 157 duties  240, 255, 258, 260, 270 interrogations  155, 157–58, 163, 171, 173 intervention  240, 244, 261

interviews  93, 97–98, 205, 207–8 officers  164–65, 173, 240–42, 251–53, 255–60, 262, 270, 306 and prosecutors  10, 51–52, 228, 233, 239 role  239–42, 244, 249–63, 270–71 stations  76, 78, 84–85, 89–90, 93–94, 118–19, 162–64, 166–67 policing  15, 235, 239–40, 242–44, 248–50, 260, 262–63, 265–70 fair  242, 268 mass  263–71 public order  243, 247–49 quality of life  248 of vice crime  15, 235 positive complementarity  195 post-conviction review  46–47 powers  14–15, 32–34, 103–4, 106, 199–201, 250–52, 256–57, 279–80 exercise of  280–81, 283 material  253–54, 259 physical  253, 256 state  67, 106, 123–24, 221 prejudice  16, 49–50, 52, 54, 260, 286–87, 289, 294 forensic  294, 296 pressure  89–90, 92, 115, 117, 223, 228–29, 234, 260 international  169, 172 presumptions  11, 61–62, 64–65, 67, 69–73, 90–91, 96, 108 of guilt  70 of innocence  11–12, 30–31, 57–58, 63–65, 73, 78, 96–98, 302 scope  66–72 presumptive sentences  229, 231, 236 pre-trial detention  181, 222–23, 225, 227, 230, 236 pre-trial impropriety  16, 273–300 role of rights in addressing  298–300 pre-trial phase  9, 123, 208, 273–74, 276, 282, 293–94, 298 pre-trial procedural violations  16, 273–75, 279–82, 284–85, 287–93, 299–300 previous statements  207, 218 prior recorded testimony  188, 201 privacy  67, 80, 102–3, 115, 277, 287 rights  232 private life  4, 22, 32–33, 80, 102, 277 privilege against self-incrimination  3, 6, 19, 31, 77, 80, 94, 103 probative burden, see burden of proof probative value  82, 188, 298 procedural fairness  15, 64, 121, 224, 283, 305 procedural frameworks  104, 183, 193–94, 201 procedural justice  105, 227, 234, 301 procedural models  13, 184, 199–203 mixed  13, 192–93, 204 procedural rights  1, 4, 10–12, 68, 108, 110, 127–28, 146–47

322  Index procedural role of accused conclusions from comparative analysis  151–53 England and Wales  134–37 Germany  144–49 Switzerland  149–51 United States  138–44 procedural rules  127, 129, 138, 141, 181, 185, 199–201, 204 procedural standards  9, 274, 293–94, 298 violation  274, 293–94, 298 procedural systems  9, 24, 38, 48, 124, 199, 203 procedural traditions  2, 5, 9, 131, 153, 161, 194, 198 procedural violations  276, 286, 289–90, 297–99 pre-trial  16, 273–75, 279–82, 284–85, 287–93, 299–300 proceduralism  241, 243, 246, 263–65, 270 procedure, criminal  147, 192–95, 241–42, 273–76, 280, 284–85, 289–90, 298–99 international, see international criminal procedure process abuse of  293–97 pleas  229–30, 236 production of written records  14, 206, 213, 219 professional criminals  83, 85 profiling, racial  227, 247 proof  40, 57–58, 62–66, 68–69, 73, 78, 88, 106 burden of  31, 57, 60, 62–63, 65, 72, 87, 96–98 of mental states  58, 63 property  33–34, 39, 226, 267 proportionality  68, 282 propriety  293, 297 moral  259 prosecutorial role  99, 106–9, 250, 254 prosecutors  50–53, 55–56, 106–8, 197–99, 209, 222–23, 225–35, 254–56 and police  10, 51–52, 228, 233, 239 protective principle  278, 285, 291 protective rationale  276–78, 292 proxies  55, 246, 248, 268 public authorities  259, 275, 277, 280–83, 290, 296–97 public confidence  51, 106 public hearings  25–26, 30, 107–8, 120, 180, 210, 302 public interest  10, 17, 104–5, 108, 111, 114, 117, 309 immunity  121 public order  239–40, 244–49, 262, 265, 270 policing  243, 247–49 public trials  5, 14, 39, 117, 144, 221, 245 public welfare  239–40, 262, 264–65, 270 publicity  30, 101, 123 punishment  15, 71, 229–30, 242–44, 262–65, 269, 271, 309–10 philosophy of  15, 242

racial profiling  227, 247 reasonable time  26, 30, 33, 130, 302, 305 reasonableness  70, 91 re-balancing  78, 84, 100 recidivists  227, 230 recordings audio-visual  163 electronic  205–6 tape  208 video  205–6, 215 records  54, 113, 188, 205, 211–13, 215–19, 227 written, see written records reductionism  275–76, 278–79, 282–84, 298–99 reforms  155–56, 163, 165–66, 174, 176–77, 183, 186, 189 United States  54–56 reliability  16, 52, 97, 119, 122, 283, 293, 299 presumptive  122 rationale  284 remand  227, 230 remedial deterrence  285, 292 remedial theory  278–79 reparative justice  8 representation  84, 113–14, 133–34, 138, 141, 143, 146–48, 151–53 full  138–41, 143, 147, 151–53 hybrid  12–13, 131, 142–44, 146, 153 legal  13, 46, 54, 85, 96, 110, 133, 135 mixed  142 representatives, legal  84, 89–90, 93, 96, 160 Residual Special Court for Sierra Leone (RSCSL)  179 resources  52, 55, 85, 176–77, 223, 234–35, 263 responsibilisation  266–67 responsibility  11–12, 54, 63–64, 69–72, 170, 175, 268, 310–14 civic  312–13 diminished  88, 128 patterns of  18, 310 restitution  287–88 restorative justice  4, 8, 306 retrial  60, 198, 292 retribution  34, 185, 309 retributive justice  7–8 revenge  59, 252, 261 review  46–48, 53, 85, 167, 182, 233 rhetoric  42, 49, 67, 93, 173, 175, 303, 309 punitive  76, 86 rights to be heard, and written records  211–13 constitutional  40, 47, 67 to counsel, see rights, of/to access to a lawyer fundamental  1, 21, 26, 32, 281, 286, 290, 295 human rights, see human rights inalienable  3, 101 to legal assistance  109, 119, 157–59, 161–63, 165–68, 172, 174, 301

Index 323 minimum  23, 25, 35, 109 of/to access to a lawyer  12, 41–43, 45, 48, 109–19, 155, 167–68, 170–71 of/to self-representation  113, 138, 141, 181 of/to silence  11–12, 301, 304, 312 England and Wales  75–98 as sacred cow  75, 77–81 as sacrificial lamb  81–86 as Trojan Horse  86–97 personal  35, 100, 109, 122 procedural  1, 4, 10–12, 68, 108, 110, 127–28, 146–47 protection  283–84, 287, 289 role-related  307, 311 special  26, 35 subjective  281, 287–89 substantive  277, 287 rights-analysis  273–300 implications  275, 278, 284 malleability  284–92, 300 as obstacle to fairness  292–98 reductionist nature  276–84 rights-based approach  16, 273–74, 285, 291–92 role-based duties  252, 255–56 roles and institutions  309–14 social  250–51, 253–54, 256 RSCSL (Residual Special Court for Sierra Leone)  179 rules, procedural  127, 129, 138, 141, 181, 185, 199–201, 204 Rwanda  78, 129, 191, 194–95 safeguards  41, 54, 77, 87–88, 93, 98, 104–6, 169–70 institutional  106, 117 minimum  108, 158 safety  258, 262 physical  256 Salduz v Turkey  13, 118, 155–77 negligible effect in Greece  166–69 role of effective national implementation of ECHR rights  174–76 scepticism  5, 55 Schutz-norm  285–89 Scotland  155, 167, 173 scrutiny  22, 34, 118, 223, 267 judicial  120, 227–28, 234 SCSL (Special Court for Sierra Leone)  78, 179, 181, 184 security  1, 101, 185, 254–55, 258 national  120, 125 Security Council  1–2, 183 self-defence  62, 92 self-determination  151, 153 self-incrimination, privilege against  3, 6, 19, 31, 77, 80, 94, 103 self-representation  113–14, 130–31, 133, 138, 140–41, 145–46, 152 right of/to  113, 138, 141, 181

sensitive information  6, 100, 120–22, 125 sentences  31, 33, 115, 118–19, 214–15, 222, 224–29, 235 reduction  229, 285, 292 sentencing  224–25, 229, 235–36 recommendations  225 schemes  229, 235 separation of functions  107, 144 of powers  14, 219 of trial and policing  16, 244, 249 settlement hearings  119, 228–29, 231–34, 236, 313 Sierra Leone  78, 179, 181, 184, 191 silence  32, 75–98, 182, 233; see also rights, of/to silence Singapore  75, 83 Sixth Amendment  38–40, 42, 49, 138, 143, 240 social control  15, 240–41, 245, 248–49, 264–67 social roles  250–51, 253–54, 256 social welfare  256, 264–65, 268, 270–71 societal interests  27, 41, 119, 232, 234, 236 solicitors  82, 85, 92–93, 97, 136–37, 155; see also attorneys; lawyers Special Court for Sierra Leone, see SCSL special duties  251, 255–58 special rights  26, 35 Special Tribunal for Lebanon (STL)  184 standards  2, 4, 6–7, 100, 103–5, 202–3, 244, 276–77 fair trial, see fair trial, standards minimum  1, 68, 159, 192 procedural, see procedural standards standby counsel  115, 141–42 state authorities  3, 32, 101, 107, 111–12, 222 state power  67, 106, 123–24, 221 statements incriminating  157, 162–64 oral  151, 207 out-of-court  55 previous  207, 218 written  91, 208, 218 written records of  205–19 stays of proceedings  16, 285, 290, 293–94, 296 STL (Special Tribunal for Lebanon)  184 Strasbourg jurisprudence  13, 95, 156, 159–60, 162, 167–68, 174 explanations of acceptance or resistance  159–62 subjective rights  281, 287–89 subpoenas  52, 55 substantive rights  277, 287 surveillance  244–45, 260, 267 suspects  76–78, 84–86, 93–94, 96–97, 112, 157–58, 162–68, 170–74 treatment  84, 169 suspicion  31, 33, 101, 165 Switzerland  12, 128, 152–53, 159, 205–6, 209, 211–12, 215–16 Constitution  149, 211

324  Index criminal proceedings  128, 151–52 procedural role of accused  149–51 synergy  37, 176, 203 terrorism  81, 84, 86, 89, 100, 120 testimony  77, 164, 197, 209–10, 242; see also evidence oral  3, 14, 188, 200, 207–9, 213, 301 torture  2, 20–21, 32, 66, 78, 89, 102–3, 164 traditions  6, 9, 40, 58, 161, 193 traffic accidents  255–56 traffic laws  248, 255–56 traffic offences  245, 248–49 translation  32, 163, 166–68, 196 trial avoidance  117–20 trial judges  47, 51, 60, 135, 273–76, 284, 287, 293 trial process  9, 12, 14, 71, 99, 104, 239–40, 262–63 trials abbreviated  119, 222 adversarial  127, 134, 137, 151–53 contested  5, 305, 313 public  5, 14, 39, 117, 144, 221, 245 truth  116, 123, 134, 137, 144, 149, 152, 303–4 truth-finding  117, 275, 282, 289–90 Turkey  13, 118, 155, 157, 161 UDHR, see Universal Declaration of Human Rights unfairness  5, 9, 111, 200, 219, 295, 304; see also fairness clear  29 perceived  201 United Kingdom  120, 122, 159, 193, 208, 248 Criminal Justice and Public Order Act 1994 (CJPOA)  75–77, 83, 86–87, 90, 93–98 Criminal Law Revision Committee (CLRC)  75, 83 England and Wales  75, 77, 79–81, 83–85, 91–93, 97–98, 105–6, 293–94 House of Lords  11, 58, 60–63, 87, 92, 105, 120–21 Northern Ireland  75, 83–85, 94 Police and Criminal Evidence Act 1984 (PACE)  76, 82, 84, 93, 173, 291 procedural role of accused in English law  134–37 RCCJ (Royal Commission on Criminal Justice)  75, 85–86, 95 RCCP (Royal Commission on Criminal Procedure)  75, 83–85 Scotland  155, 167, 173 Supreme Court  112, 119, 121–22 United Nations, Security Council  1–2, 183 United States  5–6, 38–47, 51–52, 54–55, 145–46, 153, 221–27, 229–30 agency  42–46 autonomy  37–42 Constitution  38–39, 42, 49, 79, 138, 240

Fifth Amendment  39–40, 79 First Amendment  39 Fourteenth Amendment  39–40 Fourth Amendment  240, 262 Sixth Amendment  38–40, 42, 49, 138, 143, 240 criminal process  37–56 procedural role of accused  138–44 reforms  54–56 Supreme Court  29, 38–51, 54, 56, 80, 108, 127, 138 waivers  46–54 Universal Declaration of Human Rights (UDHR)  102 universal model of fairness  14, 193, 198–99 unlawfulness  279–83 unrepresented defendants  90 use of written records  205–6, 217–19 vagrancy  245, 247–49 values  242–43, 251–52, 254–55, 260–61, 263, 269, 278, 302–3 fundamental  80, 124, 274 plural  260, 263 probative  82, 188, 298 substantive  17, 303 vertical sweeps  246, 266 vice crimes  15, 224, 226–27, 234–35 victims  4, 10–12, 33–35, 70, 130, 197–99, 230–31, 307–8 alleged  41, 254 need to protect  122–23 vulnerable  100 and witnesses  4, 30, 34, 100, 104–5, 122 victor’s justice  2, 130 video recordings  205–6, 215 violation of procedural standards  274, 293–94, 298 violence  84, 249, 257–58, 263 gendered  73 physical  136 vulnerability  69–70, 89, 100, 118–19, 255, 307 waiver rewards  225, 228–29, 236 waivers  40–43, 94, 108, 111–12, 118, 158, 165, 167 confrontation  49–50 discovery  51–53 and effective assistance of counsel  53–54 negligent  46 non-discriminatory jury selection  50–51 post-conviction review  46–49 United States  46–54 weapons  262–63 welfare public  239–40, 262, 264–65, 270 social  256, 264–65, 268, 270–71 witnesses  33–35, 55, 104–6, 122–23, 134–39, 187–88, 207–10, 307–8 anonymous  122, 203

Index 325 examination  35, 79, 199, 210; see also cross-examination need to protect  122–23 and victims  4, 30, 34, 100, 104–5, 122 Woolmington v DPP  11, 57–73 case details  58–61 in context  61–66 scope of presumption of innocence  66–72 written evidence  188, 209 written records  14, 205–19, 301 and Art 6 ECHR  210 authority-generated  206 as guarantee of fairness  210–13 as means of ensuring judicial control  210–11

original  216 and principles of orality and immediacy  206 production  14, 206, 213, 219 production or reception as obstacles to fairness  213–17 and right to be heard  211–13 of statements  205–19 use  205–6, 217–19 written statements  91, 208, 218 wrongful convictions  6, 12, 26, 105–6, 122, 219, 294–97, 299 Yugoslavia, former  2, 12, 20, 78, 114, 129, 191, 194

326