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4.1 The most significant development must surely be the establishment and operation of international criminal tribunals, which have had to grapple with the contending modes of procedure. Important changes have also occurred in some foreign domestic jurisdictions where the effectiveness and fairness of both the adversarial and inquisitorial systems were questioned.
4.2 International law praxis suggests that the adversarial process has become the dominant mode of criminal procedure. In the international criminal law tribunals set up for the former Yugoslavia and Rwanda, the first after Nürnberg, the mode of procedure was decidedly adversarial. While the International Criminal Court, envisaged by the international treaty concluded in Rome in 1998, also adopted a predominantly adversarial approach, some inquisitorial elements have been included. To the extent that the international human rights instruments[68] lean toward the adversarial process,[69] this outcome was to be expected.
4.3 The structure of the pre-trial and trial procedures greatly resembles adversarial proceedings. A significant exception is the use of a free system of evidence; the admission of evidence falls within the discretion of the tribunal.[70] Hearsay evidence is thus admissible.[71] The tribunals have also some inquisitorial powers. A judge may at any stage put any question to a witness[72] and "may order either party to produce additional evidence".[73] It may also summons witnesses and order their attendance. Moreover, the tribunals are not bound by the parties' view of proof. In the Tadic case one of the issues was whether there was sufficient evidence to link certain injuries to the causation of death.[74] Although the defence did not raise the inadequacy of proof on this issue, the tribunal held that it was nevertheless duty-bound to consider it mero motu, and in the event found that the prosecution failed to establish the link beyond reasonable doubt.
4.4 The statute of the ICC establishes a predominantly adversarial mode of procedure.[75] The investigatory process is entrusted to the prosecution, which searches and collects evidence. The evidence is then presented by the prosecution in oral proceedings before a tribunal. The detailed trial procedures, including evidential rules,[76] are yet to be formulated.
4.5 The envisaged adversarial system reflects also the recent development in common-law countries of reciprocal discovery duties on both parties.[77] The presiding judicial officer may require from the prosecution "the disclosure to the defence within a sufficient time before the trial to enable the preparation of the defence, documentary or other evidence available to the Prosecutor, whether or not the Prosecutor intends to rely on the evidence".[78] The presiding officer may also make an order "providing for the exchange of information between the Prosecutor and the defence, so that the parties are sufficiently aware of the issues to be decided at the trial."[79]
4.6 More than in the case of the international tribunals for the former Yugoslavia and Rwanda, there was an attempt to weld elements of the inquisitorial mode into the adversarial system.[80] Cassese, a presiding judge in the International Criminal Tribunal for the former Yugoslavia, identifies a few fundamental elements typical of an inquisitorial system which have been included in the procedure.[81] First, the prosecutor is obliged to be an impartial truth seeker. Article 54(1)(a) provides that
[i]n order to establish the truth [the prosecutor] shall extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute and, in doing so, investigate incriminating and exonerating circumstances equally.
4.7 Second, during the pre-trial stage, the prosecutor acts under the scrutiny and authorisation of a judicial officer (called the Pre-trial Chamber) with regard to matters such as initiating an investigation, preserving evidence and so forth.[82] Third, victims are given standing in the proceedings. In particular, they may use the trial to claim reparation for injuries sustained. Fourth, a presiding judicial officer may "order the production of evidence in addition to that already collected prior to the trial and presented during the trial of the parties."[83]
4.8 In Europe, the home of both the common-law adversarial and the continental inquisitorial systems, changes are occurring in both systems, which "point more to convergence than to divergence."[84] The continental systems have assimilated adversarial due process procedures during both the pre-trial and trial stages, while Britain is using increasingly inquisitorial instruments of truth-finding.[85]
In the former systems the jurisprudence of the European Court of Human Rights has had a profound effect; secret pre-trial inquiries have been banned[86] and "in principle, all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument".[87] The jurisprudence of the European Court of Human Rights may have the converse effect with regard to the inquisitorial elements introduced in Britain. These elements may not fall foul of the Court's jurisprudence, which is embedded in the continental tradition of inquiry.[88]
4.9 Italy radically reformed its criminal procedure in 1988, superimposing an adversarial mode of procedure on an inquisitorial system.[89] This reform was driven by perceived problems of corruption and intimidation of judges and the inefficiency of the Italian legal system.[90] A key feature of the Criminal Code of 1988 is the disappearance of the investigating judge (giudice istuttore) and the emergence of the prosecutor as the principal actor in the pre-trial stage.[91] The system of compulsory prosecution has been relaxed and a system of plea agreement is explicitly accepted.[92] The trial process has also become more adversarial, ascribing to the presiding officer a predominantly passive role of ensuring respect for the new rules of evidence; a court may adduce additional evidence after the parties have closed their cases only when it is "absolutely necessary".[93]
4.10 The crisis in the expeditious completion of proceedings, which prompted the reform, has not been solved. This has been attributed not to the new procedure but to the "chronic incapacity of the politicians to devote adequate resources to the system coupled with the equally chronic incapacity within the system to organize itself, given the available resources."[94]
* Adversarial system is becoming more truth-seeking
4.11 Developments in Britain have been dominated by a crisis in confidence that the criminal process can produce the truth. The miscarriages of justice, evidenced by the Birmingham Six, the Guildford Four and other cases in which possibly innocent persons were convicted as a result of biased pre-trial investigations, questioned the adversarial pre-trial process. At the same time there is the perceived increase in crime. A Royal Commission on Criminal Justice,[95] chaired by Viscount Runciman, was appointed. While no drastic changes to the common-law system were proposed, greater transparency in the system was advocated. The legislation that followed included more truth-finding measures by imposing disclosure duties on accused persons. With the passing of the Human Rights Act of 1998, which obliges English courts to interpret domestic law in compliance with the European Convention on Human Rights,[96] these developments will be judged not only in Strasbourg but also domestically.
* Police questioning
4.12 Commencing with the Northern Ireland Evidence Ordinance of 1988, the Criminal Justice and Public Order Act 1994 has introduced in England and Wales the provision that in certain circumstances adverse inferences can be drawn from an accused's silence under police questioning.[97]
4.13 In Murray v United Kingdom,[98] the European Court of Human Rights, dealing with the Northern Ireland provision, held that drawing adverse inferences from pre-trial silence was not necessarily incompatible with the right to remain silent, as the right was not absolute. The court held that the way the accused behaved or has conducted his defence was relevant in evaluating the evidence against him. However, the prosecutor must have first established a prima facie case against him before any inference could be drawn from his silence. Furthermore, a conviction cannot be based "solely or mainly" on the accused's silence or on a refusal to answer questions or to give evidence. On the basis of this decision, Lord Steyn[99] is of the opinion that it is debatable whether the Human Rights Act will necessarily have much effect on pre-trial disclosure because many continental countries have more far-reaching duties of disclosure.[100]
* Judicial questioning
4.14 The judicial questioning of accused soon after arrest was first introduced in Scotland in 1980[101] as a result of the Thomson Committee on Criminal Procedure.[102] The Committee argued that if an accused could remain silent, he or she could come forward with a defence which might have been shown to be false had he or she been examined at an early stage of the proceedings. The aim of judicial questioning was thus, first, to afford an accused an opportunity at the earliest possible stage of stating his or her position as regards the charge; second, to prevent the later fabrication of a defence; and, third, to protect the interests of the accused by ensuring that any answers or statements given to the police are fairly obtained.[103]
4.15 The Criminal Procedure (Scotland) Act of 1995 repeated the provisions relating to the questioning of an accused before a judicial officer. In petition proceedings, an accused may be brought on arrest by the prosecutor before a sheriff (a judicial officer) for judicial examination.[104] The questioning by the prosecutor must be directed towards "eliciting any admission, denial, explanation, justification or comment" which the accused may have with regard to the charge.[105] The questioning must aim, inter alia, at determining whether any accounts which the accused gives "ostensibly disclose a defence", and the nature and particulars of the defence.[106] The questions may thus include those aimed at achieving self-incrimination.[107] The accused may be represented at the examination[108] and may consult with his or her lawyer before answering a question.[109] As the role of the judicial officer is to control the reasonableness of the questioning,[110] the lawyer's role is limited to asking questions in clarification.[111] The accused may decline to answer any question but then an adverse inference may be drawn "only where and in so far as the accused (or any witness called on his behalf) in evidence avers something which could have been stated appropriately to that question."[112] The other side of the coin is that the prosecutor must secure the reasonable investigation of any ostensible defence disclosed by the accused,[113] a duty to which no sanctions are coupled for non-compliance.[114]
* Defence disclosure
4.16 The Runciman Commission was of the opinion that the judicially imposed duties of prosecution disclosure went too far. Not only did the prosecution have to disclose all material which it intended to adduce as evidence, but also all "unused material". This not only imposed a heavy burden on the prosecution to comb through large masses of material, but also allowed the defence to cause delays by successive requests for more material.[115] To strike a "reasonable balance"[116] between the duty of prosecution disclosure and the rights of the accused, the Commission proposed, first, an automatic primary duty of prosecution disclosure of "all material relevant to the offence or to the offender or to the surrounding circumstances of the case, whether or not the prosecution intends to rely upon that material";[117] second, a duty on the defence to disclose its line of defence; and third, depending on disclosure by the defence, secondary disclosure by the prosecution.
4.17 The Commission advanced the following reasons for defence disclosure:
If all the parties had in advance an indication of what the defence would be, this would not only encourage earlier and better preparation of cases but might well result in the prosecution being dropped in the light of the defence disclosure, and earlier resolution through a plea of guilty, or the fixing of an earlier trial date.[118]
4.18 It would also keep "ambush defences" to a minimum.[119] Defence disclosure would entail the "disclosure of the substance of their defence in advance of the trial or to indicate that they will not be calling any evidence but will simply be arguing that the prosecution has failed to make out its case."[120] As a sanction for non-disclosure, adverse inferences could be drawn.[121] The Commission was convinced that the duty did not compromise the accused's right against self-incrimination. It was merely disclosing the substance of a defence sooner rather than later.[122]
4.19 These recommendations were endorsed by the Home Office. In a consultation document[123] defence disclosure was couched essentially in a truth-finding framework:
By clarifying the issues before the trial starts, these proposals should help to ensure that those who are guilty are convicted, without prejudicing the acquittal of the innocent. If the Defendant is telling the truth in the line of argument he discloses, that will trigger prosecution disclosure of any material which tends to support that defence and thereby enable the defence to run its case more effectively.[124]
4.20 The recommendations were duly enacted in the Criminal Justice and Investigations Act of 1996 (CPIA). This extended the disclosure duty already existing in serious or complex fraud cases[125] to all Crown Court trials.[126] The prosecution duty of disclosure with regard to unused materials is restricted to such material as in its view "might undermine the prosecution case".[127] The defence is then compelled to provide a statement setting out the defence in general terms, the matters in dispute, and the reasons why the matters are placed in dispute.[128] Upon such disclosure, the prosecution is subject to a duty of secondary disclosure of any further material "which might be reasonably expected to assist the accused's defence as disclosed by the defence statement."[129]
4.21 The Act provides no sanction against the prosecution for failing to act properly.[130] For the success of prosecution disclosure, Corker[131] remarks that the CPIA "assumes that prosecutors will act in a more fastidious and counsel-like manner, acting in a detached objective way as ministers of justice." This assumption is, of course, highly contested. Sharpe writes that an adversarial system "should not operate on the premise that the Crown is a neutral seeker of the truth and that there will therefore be a total transparency between police, prosecutors and the courts."[132] In contrast, the sanction of defence failure to disclose is that adverse inferences can be drawn.[133] However, a defence statement does not become evidence on which the prosecution case can be built.[134]
4.22 In specific cases the defence disclosure must go even further. In the case of an alibi defence the accused must give particulars of the alibi, including the name and address of any witness the accused believes is able to give evidence in support of the alibi.[135] In the case of long or complex cases a judge may order a preparatory hearing, in which case statements may be required from the prosecution and the accused.[136] The defence case statement must include in general terms, the nature of the defence, and indicate the principal matters on which issue is being taken with the prosecution, objections to the prosecution case statement and any points of law it intends taking.[137] The obligation does not, however, include the disclosure of the identities of defence witnesses.[138]
4.23 The question remains whether defence disclosure is compatible with the European Convention on Human Rights, now directly applicable through the Human Rights Act of 1998. Although some argue that the duty runs "fundamentally counter to adversarial theory in weakening the privilege against self-incrimination",[139] others regard it as legitimate in view of full prosecution disclosure.[140] In the light of the European Court's decision in Murray v United Kingdom,[141] which holds that the right to remain silent is not absolute and silence through the proceedings has implications for the evaluation of inculpating evidence, the conclusion is that compelled defence disclosure after primary prosecution disclosure will not fall foul of article 6(2) of the Convention.[142]
4.24 Sprack[143] commented in 1998 that the question whether there should be defence disclosure is no longer on the legal or political agenda; there is consensus that defence disclosure is desirable "particularly because of its powerful potential as a tool for trial management."[144] The question has moved to the limits of the duty and how to make it compatible with the "golden thread of English criminal justice" that the burden of proof rests squarely on the prosecution.[145]
* Strengthening inquisitorial powers
4.25 The Runciman Commission also recommended that judges play a more active role in the production of evidence and the management of trials. A study conducted on behalf of the Commission revealed that in 19% of contested cases trial judges reported that they knew of one or more important witnesses who had not been called by either side.[146] The Commission noted that if the power to call witnesses is exercised more often, it "might constitute an incentive to counsel to ensure that the jury is allowed to hear all the relevant witnesses in a case."[147] The following recommendation was thus made:
Judges should be prepared, in suitable cases, to ask counsel why a witness has not been called and, if they think it appropriate, urge counsel to rectify the situation. In the last resort judges must be prepared to exercise their power to call the witness themselves.[148]
4.26 It also recommended that the hearsay evidence should be more readily admitted[149] and that presiding officers exercise greater control over cross-examination.[150]
4.27 From the cursory review of international law and some European jurisdictions, four important conclusions can be drawn. First, the adversarial system certainly dominates the international law scene. If anything, a similar process is occurring with respect to continental systems under the influence of international human rights instruments. Second, the adversarial system is becoming more transparent, demanding full disclosure by both parties. The notion of a trial as a game is giving way to a quest for greater truth-finding. Third, in the adversarial system the passive role of the court is being transformed into a more pro-active one with regard to both truth-finding and procedural fairness. Fourth, developments in Europe indicate growing trends towards hybrid systems in pursuit of greater efficiency. Italy moved towards the adversarial system to make their process more efficient. Common law jurisdictions make the presiding judicial officer more active with the same goal. In conclusion, the confluence of these tendencies seems to suggest that the optimal system is a hybrid one; it is only through the collective effort of all the role players that the three goals of criminal justice system can be achieved.
[68] Universal Declaration of Human Rights of 1948; International Covenant of Civil and Political Rights of 1966.
[69] Bassiouni 1993, 277.
[70] See Rules of Procedure and Evidence, Section 3 Rules of Evidence, rule 89:
"(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence which it deems to have probative value.
(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
(E) A Chamber may request verification of the authenticity of evidence obtained out of court."
See also Mann 1995, 368.
[71] Jones 1998, 300.
[72] Rule 85B.
[73] Rule 98(A) ICTY, Rule 98(A) ICTR.
[74] Tadic Opinion and Judgment Trial Chamber II on 7 May 1997, quoted in Jones 1998, 299.
[75] Cassese 1999, 168; Sweeney 1998, 254.
[76] Cassese (1999, 171), a lawyer in civil law tradition, expresses the hope that when the Rules of Procedure and Evidence will be drafted, the best features of the inquisitorial model would be welded into the adversary process. This would probably include a free system of evidence. On the difficulties that hearsay evidence poses in war crimes trials, see Mann 1995.
[77] See Sweeney 1998, 253.
[78] Art 27(5)(b).
[79] Art 27(5)(c).
[80] Cassese 1999, 168-171.
[81] Cassese 1999, 168-9.
[82] See arts 15(3), 18(2), 18(6), 19(6).
[83] Art 64(5)(d).
[84] Jorg, Field & Brants 1995, 54.
[85] Jorg, Field & Brants 1995, 54.
[86] Lamy v Belgium 30 March 1989 Series A no 151. See Tulkens 1995, 9.
[87] Kostovski v the Netherlands 28 Nov 1989 series A no 166 § 20.
[88] See Sharpe 1999, 278-9; Steyn 1999, 56.
[89] See generally Cirese & Bertucci 1993.
[90] McEwan 1998, 8. The numerous violation of the right to a speedy trial in the case law of European Court of Human Rights exemplified the problem. See Pizzi & Marafioti 1992, 6; Chiavario 1995.
A similar process is underway in South and Central America, where the drive towards a more adversarial process is motivated by the experienced inefficiency of the received inquisitorial system dating from the previous century.
[91] Chiavario 1995, 35.
[92] Pizzi & Marafioti 1992, 11.
[93] Chiavario 1995, 37.
[94] Chiavario 1995, 38.
[95] Report of the Royal Commission on Criminal Justice, July 1993, cm 2263.
[96] S 3.
[97] Ss 34-38. See McEwan 1998, 173ff.
[98] Decision of 8 Feb 1996, (1996) 22 EHRR 29.
[99] 1999, 56.
[100] See also Ashworth 1999, 267; Pattenden 1998, 161-4.
[101] Criminal Justice (Scotland) Act 1980.
[102] Criminal Procedure in Scotland (Second Report) Cm 6218, October 1975.
[103] See Scottish Home and Health Department 1994, § 8.18.
[104] S 36(1).
[105] S 36(1).
[106] S 36(2).
[107] Bradley & Shiels 1996, 46-50.
[108] S 35.
[109] S 36(6).
[110] S 36(5).
[111] S 36(7).
[112] S 36(8).
[113] S 36(10).
[114] Brown 1996, 47; Bradley & Shiels 1996, 46-50.
[115] Ch 6 § 42.
[116] Ch 6 § 50.
[117] Ch 6 § 51.
[118] Ch 6 § 59.
[119] Ch 6 § 59.
[120] Ch 6 § 66.
[121] Ch 6 § 70.
[122] Ch 6 § 60.
[123] Home Office Disclosure. A Consultation Document (1995) cm 2864, quoted in Corker 1996, § 5-02.
[124] § 27. See also McEwan 1988, 18-9.
[125] Section 9(5) of the Criminal Justice Act 1987 permits the judge to order an accused in a case of serious or complex fraud to provide a statement in writing setting out in general terms the nature of his or her defence. See Corker 1996 § 2-07.
[126] S 1 CPIA.
[127] S 3(1)(a) CPIA.
[128] S 5(6) CPIA.
[129] S 7(2)(a) CPIA.
[130] Corker 1996, § 5-24; Sharpe 1999, 280-1.
[131] 1996, § 5-23.
[132] 1999, 281. See also Corker 1996, § 5-46.
[133] S 10(3) CPIA.
[134] S 11(5) CPIA. On the evidential difficulties surrounding the defence statement, see Sprack 1998.
[135] S 5(7) CPIA.
[136] S 29 CPIA.
[137] S 31(6) CPIA.
[138] S 33(1) CPIA.
[139] Sharpe 1999, 277.
[140] Jackson & Doran 1995, 62; McEwan 1998, 18-9.
[141] Decision of 8 Feb 1996, (1996) 22 EHRR 29.
[142] 1999, 285.
[143] 1998, 230.
[144] Sprack 1998, 230.
[145] Sprack 1998, 231.
[146] Study by Zander and Henderson Crown Court Study, Royal Commission on Criminal Justice Research Study 19, 1993; Royal Commission Report ch 8 § 18.
[147] Ch 8 § 18.
[148] Recommendation 185.
[149] Recommendation 189.
[150] Recommendations 180, 181 and 182. The recommendation were not dissimilar to those contained in the South African Law Commission's interim report of 1995.
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