Introduction: the convergence debate

Within the last 30 years there has been a renewal of interest among teachers and students in comparative criminal justice as a field of study. With growing pressure on legal systems to respond to the demands of globalisation and cosmopolitanism, penal law has become one of a growing number of areas of law that is engaging with comparative legal studies. Much of the debate has centred on whether or not these demands are driving legal systems towards convergence. A combination of pressures would seem to be supporting the convergence thesis within criminal justice. National legal systems plagued by common problems of rising crime, concern for victims and the growing cost and delay in processing cases through the courts would seem to have led to a willingness to seek ‘foreign’ solutions to similar problems. In addition to these internal pressures, there have been external pressures on states to find common transnational solutions to deal with the problems of organised crime and drug trafficking.

In addition to this, international terrorism and the growing ethnic and religious conflicts around the world pose a particular challenge for international law as to whether these problems can be resolved by international legal co- operation or whether as protagonists of the ‘war on terror’ would have it they are better met through the exercise of hegemonic power with international law being reduced to accommodate the demands of the most powerful states. Those who would seek to deal with these problems through international law need to develop common legal solutions. An example of this is the effort made by the international legal community to deal with those who have committed war crimes and crimes against humanity through international criminal tribunals applying international criminal law. But if this new international regime is to work successfully, there needs to be a consensus on the appropriate rules of evidence and procedure for holding such trials.

Beyond tradition

This book has sketched a theory of positive evidentiary rights around the notion of effective defence participation which it has been argued is emerging, not always coherently, from international human rights law and within domestic and international criminal processes. The theory does not require systems to model their evidentiary processes upon any particular legal tradition. It has been argued that the principles of equality of arms and the right to adversarial procedure developed in particular by the ECtHR can be accommodated across the common law and civil law traditions. The development of these principles is better portrayed in terms of realigning and transforming the established procedural traditions of the common law and the civil law than as representing a convergence of the two traditions. So the notion of ‘adversarial procedure’ developed by the ECtHR does not require systems to organise procedural control entirely around the prosecution and defence with a passive judge or jury deciding cases purely upon the facts and arguments adduced by the parties. Indeed, one of the themes that emerges in the human rights jurisprudence is the importance of judicial activism in ensuring the fairness of the proceedings. At the same time, the notion of an active defence which has been increasingly stressed in the jurisprudence as important in the pre-trial process, as well as at trial, rubs against any old ‘inquisitorial’ notion of the court exclusively dominating the procedural action. In this final chapter, we assess the impact that a theory of evidentiary defence rights has on the established common law and civil law traditions and what prospects there are for such a theory taking hold in the future.

Introduction: legal representation and self-representation

We have seen how through concepts such as the equality of arms and the right to an adversarial procedure, human rights jurisprudence has been developing a theory of effective defence participation which not only allows for the participation of the accused in the criminal proceedings, but also gives institutional rights to the defence as a party entitled to be treated on an equal basis as the prosecution. These institutional rights have their foundation in what the ECtHR has described as the ‘minimum’ rights laid down in Article 6(3) of the ECHR and also set out in the other human rights instruments – the right to be informed of the charges, to have adequate time and facilities to prepare the defence, the right to defend oneself or to have the assistance of counsel, the right to test witness evidence and, finally, the right to the free assistance of an interpreter.

At the core of the right to defence participation lies the right to defend oneself in person or through legal assistance of one's own choosing. This right has been described as ‘practically absolute’, although as we saw in the last chapter there has been some uncertainty about the stage in the criminal process at which legal assistance can come 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 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. 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.

Towards an international system of justice

In the last chapter we discussed the attempts that have been made to fashion a common law of criminal evidence within international human rights regimes and we argued that the European Court of Human Rights in particular has been developing within its jurisprudence a participatory model of proof that is rooted in both common and civil law traditions, but may be genuinely classified as sui generis. These regimes marked an important turning point for international law, as they shifted the focus away from the interests of states towards the interests of individuals. The individual rights theories that developed during the Enlightenment were re-invigorated within the international arena as the treatment of individuals by states became a matter of international concern. But these regimes were still state-centred in the sense that their rulings were concerned with whether states had met their obligations towards individuals, such as the obligation to ensure a fair trial. For our purposes, we have seen that they tolerated a fair degree of divergence between states as to how fair trials could be achieved. When international law took a further step towards recognising the significance of the individual by making individuals responsible for international crimes, however, agreement had to be reached not only on the principles of fair trial, but also on detailed rules of procedure and evidence for trying persons charged with such crimes.

Introduction

Although the maxim ‘presumption of innocence’ can be traced in common law history as far back as the days of Bracton and in continental history as far back as three centuries later, it is only in recent times that it has acquired considerable constitutional prominence. We have seen that it was enshrined in the Déclaration des droits de l'homme et du citoyen and in his study of human rights in national constitutions conducted some years ago Bassiouni found that it was contained in at least sixty-seven national constitutions across the common law and civil law world. The presumption of innocence has also been recognised in a wide range of international instruments such as the ICCPR, the ECHR, the ACHR and the African Charter on Human and Peoples’ Rights and by the international criminal tribunals and courts.

Before we examine how this principle has been applied across the two dominant legal traditions and by international human rights regimes, however, it will help our analysis if we are clear about what we mean by the presumption. Despite becoming so accepted, there is often a lack of clarity about what it means and we will argue that this can serve to obscure its central importance. As we shall see, it is commonly discussed exclusively within the context of a rule of evidence requiring a high standard of proof before conviction. But it is sometimes used in terms which make it almost synonymous with the right to a fair trial encompassing the fair trial standards we have discussed so far. In broader terms, it is also used to signify the right of individuals to be protected against coercive measures by the state or the right not to be convicted for crimes of which one is ‘morally’ innocent. In the first section we consider three rather different fields of application which can be viewed on a sliding scale from the particular to the general. We then go on to consider how the presumption has been regarded across the common law and civil law divide and by international human rights regimes.

Introduction

In the last chapter we saw that there is a common view that the legal systems influenced by the continental tradition do not have rules of criminal evidence. Occasionally this general notion is expressed more precisely as reflecting the fact that such systems lack exclusionary evidential rules or in the notion that exclusionary rules are unique to the common law or even US law. These claims are based on quite a particular understanding of both evidence law and of the differences between the common law and civilian traditions and merit closer examination. In order to understand better the principles underpinning modern criminal evidence law and to consider the relationship between the evidential traditions, it is useful to examine the development of the principles of criminal evidence in some of those legal systems influenced by the civilian legal tradition. The aim here is not to conduct a comparison of the various rules of evidence and procedure in the various European legal systems, but rather to consider broad themes which have been, and which continue to be, of relevance in the majority of continental European jurisdictions in the context of the regulation of the decision-making process in criminal cases. In this context it makes sense to consider countries like Austria, Belgium, France, Germany and Switzerland together, not because their modern laws of evidence are the same (because they quite clearly are not), but because in the development of the laws of criminal evidence, fashioned as they are by reciprocal influences, the countries share something of a common history. The primary focus of this chapter is the development of evidential principles in the two largest and most influential legal systems, namely France and Germany, but reference will also be made to other European jurisdictions.

Introduction

The manner in which evidence is collected, regulated and assessed has the potential to impact on the fairness of the criminal trial. Most legal systems, irrespective of their exclusionary or ‘inclusionary’ tendencies, provide for rules which prohibit in certain circumstances the use of particular types of evidence, regardless of its probative value. Explaining the nature of the relationship between fairness and improperly obtained evidence and determining when the use of such evidence will undermine the fairness of the proceedings is less than straightforward. These difficulties are reflected in the reluctance of the international bodies responsible for regulating the fairness of criminal proceedings expressly to develop principles to regulate the use of evidence. That is not to say that the potential for matters involving criminal evidence to impact on the fairness of the trial has been completely ignored, only that in many respects these international bodies have been slow to explain the connection between improperly obtained evidence and fairness and that this has necessarily had an impact on the nature of the regulation.

The relationship between the treatment of criminal evidence and the fairness of criminal proceedings is expressly recognised in provisions such as Article 6(3)(d) of the ECHR and in the ECtHR's case law on the privilege against self-incrimination, which has been interpreted as lying at the heart of Article 6(1) of the ECHR. The ECtHR nevertheless seems ill at ease in its role as a regulator of evidential matters. It is not uncommon to read statements in its case law to the effect that, ‘[w]hile Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law’; or that ‘it is not the role of the ECtHR to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible, or indeed, whether the applicant was guilty or not’. Such statements are often cited in the literature on the subject as substantiating the claim that the ECtHR has little to say about the regulation of criminal evidence.

Introduction

The previous chapters have drawn attention to the manner in which the common law and civil law traditions have adopted different approaches towards the regulation of evidence in criminal proceedings. Although we have seen that common beliefs in the importance of reaching accurate decisions and accommodating individual rights have underpinned each tradition, there was no conscious attempt to find common ground between the various systems until the second half of the twentieth century, when in the aftermath of the Second World War efforts were made to forge closer links between nations on the basis of shared rights and values. Since then, common principles of fairness have assumed considerable importance in the regulation of the process of proof in criminal proceedings. The development in the second half of the twentieth century of a number of international fair trial provisions forced states to reconsider their national evidential principles, and the values on which these were based, in the light of the right to a fair trial.

This reliance on fairness has not met with universal acceptance. Some have questioned whether fairness is the most satisfactory basis for a theory of the criminal process, while others have drawn attention to the necessary limitations of framing fairness in terms of individual rights. More recently, there has been considerable philosophical debate on the justification for human rights norms, such as the right to a fair trial. Although human rights can be justified on the fundamental moral premises of autonomy and personhood, it can be argued that certain rights such as the right to a fair trial can only be given meaning within the development of social practices and political institutions. Hence, just as we have seen that the notion of defence participation within the context of the criminal process may be better viewed as an institutional right or safeguard within a political system heavily weighted in favour of the state apparatus, so the right to a fair trial may be similarly better viewed as an ‘institutional’ right. Whatever the philosophical justifications, fairness is currently the principal frame of reference for regulating criminal proceedings. The international bodies responsible for interpreting and applying the fair trial principles have amassed a considerable body of case law and this provides an ideal basis on which to reassess some of the major premises of comparative evidence law.

Introduction

Witnesses, famously said to be the eyes and ears of justice, play a special role in criminal proceedings. Their significance transcends legal systems and is not restricted to a particular type of procedural system or period in the development of a legal system. Although acknowledged across different jurisdictions and times as an important and legitimate basis on which to found a criminal conviction, witness evidence has also traditionally been viewed with suspicion. Witnesses may lie, forget important points, remember things wrongly or simply misinterpret a situation. Witnesses may also be manipulated and their evidence may depend on the questions which they are asked. This explains why witness evidence is not only much discussed, but also separately regulated in the various conventions and constitutional provisions which guarantee the right to a fair trial.

The principal means of regulating witness evidence in modern times is to control the manner in which the evidence is heard and challenged. Notions such as confrontation and cross-examination are thus often characterised in terms of procedural stipulations and defence opportunities: the authorities are required to ensure that the accused is afforded the procedural opportunity to cross-examine, or ‘confront’, witnesses who make incriminatory statements. These principles also have a significant evidential dimension. If an accused is not, or is not sufficiently, afforded the opportunity to challenge the witness evidence, the question arises as to what extent, if at all, that evidence can be used in the determination of the verdict. In some circumstances, it may be necessary to refrain from basing a conviction on untested witness evidence.

The historical and transnational importance of the right of silence

In Chapter 4 we noted that one of the strands developed by the European Court of Human Rights in its vision of defence participation is the right to choose not to participate in the proof process. In this chapter, we explore this principle which the court has referred to as ‘the right to remain silent and not to contribute to incriminating oneself’. The principle is commonly believed to have its origins in the common law and is generally traced back to 1641 when the Star Chamber and the High Commission were abolished in England along with the ex officio oath procedure under which accused persons were required to take an oath to answer all questions. The precise origins of the privilege remains obscure, with some tracing it back to ancient Christian writings and to Talmudic law. The maxim ‘nemo teneter prodere se ipsum’, which served as a guarantee that no one would be required to become the source of their own prosecution, has been traced back to medieval canon law and the European ius commune.

The growing consensus that the privilege has a broader and older ancestry than the English common law may explain why it has gained acceptance not only in the English speaking world, but around the globe, as well as in various human rights instruments. Although the privilege was not part of the charters that established the Nuremberg or the Tokyo tribunals, it is expressly recognised, as we shall see, in the ICCPR and the ACHR. It has been estimated that no less than forty-eight national constitutions provide for a privilege against self-incrimination, although over half of these instruments expressly limit it to testimony at trial, many in former British colonies with common law roots. Although the right is not expressly mentioned in the ECHR, the ECtHR has described the privilege and the right of silence as ‘generally recognised international standards which lie at the heart of the notion of a fair trial procedure’.

Although the law of evidence has traditionally been treated as a common law subject confined to national borders, there has been a growing awareness across the common law and civil law world about the need for different systems to adopt common approaches towards criminal evidence as national systems cooperate with each other to combat transnational crime. The subject is also attracting growing recognition in international human rights law as bodies such as the European Court of Human Rights (ECtHR) have begun to develop common evidentiary standards to be applied across national boundaries. At the same time, the conflicts that led to grave crimes against humanity in the Balkans, Rwanda and other conflict zones have compelled the international community to bring those responsible to justice by developing systems of procedure and evidence that are acceptable across different legal traditions.

This book examines these attempts to find common approaches towards issues of criminal evidence across different national boundaries and legal traditions. Each of us has been following these developments for some time. As a teacher of the law of evidence at Queen's University Belfast John Jackson became interested in them as he witnessed the impact that the ECtHR was having on common law systems of evidence. Sarah Summers began to become interested in criminal evidence when she was working on her published doctoral thesis on the development of fair trials rights in Europe. Although originally from Scotland, she presently teaches criminal law and procedure at the University of Zurich. We decided to bring our experience of common law and civil law jurisdictions together to examine the evolution of common evidentiary standards in Europe and in the international criminal tribunals. We have tried to reflect case law and other legal developments up to the end of December 2010.