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Law in Context: The Internationalisation of Criminal Evidence

Law in Context: The Internationalisation of Criminal Evidence Beyond the Common Law and Civil Law Traditions

Author: John D. Jackson; Sarah J. Summers
Publisher: Cambridge University Press
ISBN: 9780521688475
Published In: January 2012
Format: Paperback , 442 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Although there are many texts on the law of evidence, surprisingly few are devoted specifically to the comparative and international aspects of the subject. The traditional view that the law of evidence belongs within the common law tradition has obscured the reality that a genuinely cosmopolitan law of evidence is being developed in criminal cases across the common law and civil law traditions. By considering the extent to which a coherent body of common evidentiary standards is being developed in both domestic and international jurisprudence, John Jackson and Sarah Summers chart this development with particular reference to the jurisprudence on the right to a fair trial that has emerged from the European Court of Human Rights and to the attempts in the new international criminal tribunals to fashion agreed approaches towards the regulation of evidence.

• Proposes a new conception of the law of criminal evidence across different legal traditions that gives students and practitioners a fresh perspective on the topic

• Systematic analysis of the way in which international bodies and courts such as the European Court of Human Rights and the international criminal tribunals have been developing the law of criminal evidence provides students, practitioners and policymakers with a detailed knowledge and critique of the international jurisprudence on criminal evidence

• Examines the impact of international jurisprudence on the law of criminal evidence in both common law and civil systems, thus shedding light on the development of the law of criminal evidence across the common law/civil law divide

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