Foreword
|
xiv |
Preface and acknowledgements
|
xvi |
Abbreviations
|
xix |
Table of international cases
|
xxii |
Part I Evidentiary contexts
|
1 |
1 Evidence across traditions
|
3 |
1.1 Introduction: the convergence debate
|
3 |
1.2 Comparative evidence scholarship
|
9 |
1.3 The rationalist tradition and the rights tradition
|
14 |
1.4 Towards shared evidentiary principles
|
19 |
1.5 Beyond the common and civil law traditions
|
27 |
2 The common law tradition
|
30 |
2.1 Introduction: free proof and the common law
|
30 |
2.2 Common law conceptions of the law of evidence
|
34 |
2.3 Evidence law adrift?
|
38 |
2.4 Challenges to free proof
|
40 |
2.4.1 The epistemic challenge
|
41 |
2.4.2 The scientific challenge
|
45 |
2.4.3 The constitutional challenge
|
50 |
2.5 Conclusion
|
55 |
3 Evidential traditions in continental European jurisdictions
|
57 |
3.1 Introduction
|
57 |
3.2 The development of criminal evidence law and the movement towards ‘freedom of proof’
|
58 |
3.3 The importance of the nineteenth-century procedural reforms
|
66 |
3.4 Freedom of proof and restrictions on the doctrine in modern evidence law
|
69 |
3.5 Excluding or prohibiting the use of evidence
|
72 |
3.6 Recent developments in evidence law
|
74 |
3.7 Conclusion
|
76 |
4 The international human rights context
|
77 |
4.1 Introduction
|
77 |
4.2 The evolution of evidentiary human rights norms
|
79 |
4.2.1 The right to a fair trial
|
79 |
4.2.2 The equality of arms principle
|
83 |
4.2.3 The right to an adversarial trial
|
86 |
4.3 The process of proof and the regulation of the investigation/pre-trial phase
|
95 |
4.3.1 Defence rights and the importance of the procedural environment
|
97 |
4.3.2 Potential for pre-trial activities to impinge on defence rights
|
99 |
4.4 Towards convergence or realignment?
|
101 |
4.5 Conclusion
|
106 |
5 Evidence in the international criminal tribunals
|
108 |
5.1 Towards an international system of justice
|
108 |
5.2 Problems of legitimacy
|
110 |
5.2.1 Function and purpose of international criminal trials
|
111 |
5.2.2 The evidentiary context
|
112 |
5.2.3 Reaching agreed rules of procedure and evidence
|
115 |
5.3 Common law foundations
|
116 |
5.4 The ad hoc tribunals
|
119 |
5.5 Rubbing points between the common law and the civil law
|
124 |
5.6 The need for realignment
|
131 |
5.6.1 The right to equality of arms
|
133 |
5.6.2 The right to an adversarial trial
|
136 |
5.7 Towards the future and the International Criminal Court
|
140 |
5.8 Conclusion
|
145 |
Part II Evidentiary rights
|
149 |
6 Fair trials and the use of improperly obtained evidence
|
151 |
6.1 Introduction
|
151 |
6.2 Theories explaining the exclusion of improperly obtained evidence
|
153 |
6.3 Evidence obtained by way of torture, inhuman or degrading treatment
|
158 |
6.3.1 Evidence obtained by way of torture
|
160 |
6.3.2 Evidence obtained by way of inhuman or degrading treatment
|
163 |
6.3.3 Fairness and evidence obtained by recourse to torture or ill-treatment
|
166 |
6.4 Deception, coercion, traps and tricks
|
169 |
6.4.1 Wiretapping and covert surveillance
|
171 |
6.4.2 De facto ‘interrogation’ of suspects in custody
|
175 |
6.4.3 De facto ‘questioning’ of suspects not in custody
|
179 |
6.4.4 Fairness and the use of evidence obtained by deception and coercion
|
181 |
6.5 Entrapment
|
188 |
6.6 Fruit of the poisonous tree
|
191 |
6.7 Conclusion: improperly obtained evidence, fairness and the under-regulated pre-trial/investigative process
|
194 |
7 The presumption of innocence
|
199 |
7.1 Introduction
|
199 |
7.2 The meaning of the presumption of innocence
|
200 |
7.2.1 The presumption as an evidentiary protection
|
200 |
7.2.2 Treating defendants as innocent
|
205 |
7.2.3 Substantive innocence
|
208 |
7.3 The presumption of innocence and the rationalist tradition
|
211 |
7.4 The presumption and fair trial standards
|
215 |
7.5 The scope of the presumption of innocence under human rights law
|
217 |
7.6 Reversal of the burden of proof
|
221 |
7.7 Avoiding prejudice
|
228 |
7.7.1 An independent and impartial tribunal
|
229 |
7.7.2 Participatory rights
|
233 |
7.7.3 The right to a reasoned judgment
|
237 |
7.8 Conclusion
|
239 |
8 Silence and the privilege against self-incrimination
|
241 |
8.1 The historical and transnational importance of the right of silence
|
241 |
8.2 The scope of the privilege in international law
|
246 |
8.2.1 The international instruments
|
246 |
8.2.2 Funke v. France
|
248 |
8.2.3 Charged with a criminal offence
|
250 |
8.2.4 Incrimination
|
251 |
8.2.5 Compulsion
|
252 |
8.2.6 Defiance of the will of the suspect
|
253 |
8.3 Exception to the rights against self-incrimination and of silence
|
256 |
8.3.1 The public interest
|
256 |
8.3.2 Other factors
|
258 |
8.3.3 Inferences from silence
|
260 |
8.4 Rationale of the privilege and the right of silence
|
266 |
8.5 The right of silence as a necessary condition for active defence participation
|
273 |
8.6 Incorporating fair trials standards from the point of being called to account
|
277 |
8.7 Conclusion
|
283 |
9 Defence participation
|
285 |
9.1 Introduction: legal representation and self-representation
|
285 |
9.2 The right to effective legal assistance
|
289 |
9.2.1 Early legal assistance
|
289 |
9.2.2 Communication with counsel
|
289 |
9.2.3 Right to private communication and legal professional privilege
|
291 |
9.2.4 Balancing away the privilege
|
293 |
9.3 The right to full disclosure of evidence
|
295 |
9.3.1 The case against the accused
|
295 |
9.3.2 The scope of the right to disclosure: Jespers and Edwards
|
297 |
9.3.3 Uncertainties as to scope
|
301 |
9.3.4 An absolute right?
|
304 |
9.4 Common law shortcomings
|
307 |
9.5 Beyond disclosure: access to evidence outside the possession of the prosecution
|
310 |
9.5.1 Defence investigations
|
310 |
9.5.2 Application to the court
|
312 |
9.6 Public interest immunity
|
316 |
9.6.1 The principle of judicial scrutiny
|
317 |
9.6.2 Adversarial argument
|
319 |
9.7 Conclusion
|
323 |
10 Challenging witness evidence
|
325 |
10.1 Introduction
|
325 |
10.2 Justifying the right to challenge incriminatory witness evidence
|
327 |
10.3 The regulation of the right to challenge witness evidence: the human rights perspective
|
334 |
10.3.1 The importance of the witness evidence: the sole or decisive test
|
338 |
10.3.2 An adequate and proper opportunity to challenge the witness
|
342 |
10.3.2.1 The significance of the procedural environment: principal versus preliminary proceedings
|
342 |
10.3.2.2 The circumstances of witness hearing: the importance of an impartial judge and the right to counsel
|
345 |
10.3.2.3 Obligation to organise the witness examination hearing
|
349 |
10.3.2.4 Restrictions on the defence's opportunity to challenge the witness
|
351 |
10.3.2.5 The substantive sufficiency of the opportunity to challenge the witness
|
356 |
10.3.3 Defence obligations, waiver and forfeiture
|
359 |
10.3.4 Challenging expert witnesses
|
361 |
10.4 Conclusion
|
362 |
11 Towards a theory of evidentiary defence rights
|
367 |
11.1 Beyond tradition
|
367 |
11.2 Prospects for evidentiary defence rights
|
371 |
11.3 Victims’ rights and participation
|
372 |
11.4 State security and terrorism
|
380 |
11.5 Cost and expedition
|
384 |
11.6 Legal culture and tradition
|
387 |
Index
|
392 |