The truth is out there

Criminal Justice in Europe
February 28, 1997

This book is a joint product of the University of Wales and the Willem Pompe Institute of Utrecht, although some of the contributors come from elsewhere. It affords a comparison of the English and Dutch systems of criminal justice, rather than with criminal justice systems in Europe generally. A pan-European dimension is given to the study by the invocation of the European Convention on Human Rights, and the evolving case law of the common market. Furthermore, the drugs problem discloses an Anglo-Dutch policy within the setting of a broadly European approach.

The authors have chosen interesting themes to pursue. One of these is the convergence of inquisitorial and accusatorial systems in the face of common pressures. Another is the issue of Europeanisation. If we are a long way from a system of European law and procedure, we have, nonetheless, instituted far-reaching procedures for cooperation in criminal justice matters. A third theme is the influence on criminal justice of the pan-European factors noted above and, as well, the influence of Council of Europe inspired treaties on inter-state cooperation.

The essays presented in this book fall into identifiable groups. One such concerns criminal policy generally. Another concerns such matters as diversion, prosecution standards and prosecution systems. A third concerns sentencing and issues of penal and sentencing policy. A fourth, and very valuable group, concerns modalities of interstate cooperation in the administration of criminal justice. Essays on evidence, drug enforcement, and victim compensation also make a welcome appearance. Issues of substantive law hardly appear, though C. Kelk's essay on criminal justice policy does mention two such developments in Netherlands law.

English observers have often commented upon the broad tolerance exhibited by the Dutch system. This has, as Kelk makes clear, come under strain. While the humane tradition of the post-war period has not vanished, there is in the Netherlands a "new realism" marked by diminishing tolerance and an emphasis on managerial concerns. Similar strains are, of course, visible in England where policy has become increasingly repressive, perhaps because the Government, having decided that there is no association between social factors such as poverty and unemployment and crime, is left with little else. Unfortunately, the English contribution to this theme (by G. Dingwall and A. Davenport) is neither well organised (ordinary criminal policy and terrorism are treated in parallel with no attempt to connect the influence of the latter upon the former) nor as perceptive.

The inquisitorial/accusatorial theme is well discussed. As the authors note, both systems search for truth. They differ fundamentally in how to go about it. A particularly astute critique of the adversarial system is advanced. It is, as the authors say, difficult to sustain the traditional view of the adversarial process as a contest between two equal parties. Nor is the guilty plea system particularly satisfactory. The defendant is, increasingly, in a difficult position as the English system, for managerial reasons, puts increasing pressure on the defendant to enter an early plea of guilty. Yet, as the authors point out, there are disadvantages to the inquisitorial system as well, in particular a propensity on the part of courts to decide matters on the papers.

Of the European Convention on Human Rights much is rightly said. Bert Swart and J. Young devote an essay to the topic, but it permeates virtually the whole of the book. The convention is not part of internal English law as it is of Dutch law, but it has, through the obligation of the Government to remedy domestic rules and practices found to be inconsistent with it, a profound influence on English law as well. To take but one example noted in the book: the European Convention has transformed the legal rights of prisoners. Without it, prisoners would have virtually no rights at all. But the convention also serves to set limits to pretrial detention (of greatest importance in terrorist cases) and, increasingly, it is having an influence on conceptions of what is meant by a fair trial.

Intergovernmental cooperation has long been a particular interest of Christopher Harding and Swart. It is conspicuously well dealt with by them, and by others. In some respects the Netherlands has embraced such devices more readily than has England where principles of territoriality and sovereignty appear to have been and to be more strongly emphasised. The Schengen Agreement to which England is not a party operates across contiguous land boundaries and sets common and comprehensive standards of cooperation in criminal matters, and the Maastricht Agreement, to which the United Kingdom is a party, contains provisions also in relation to common market fraud. The European Community's impact on national criminal laws is more muted, but community rules increasingly serve as a negative block to certain prosecutions, particularly where the free movement of goods is concerned. The UK has already felt this in relation to trade in allegedly pornographic articles.

The essays on prosecution discretion, diversion and the mentally disordered offender, and diversion and juvenile offenders, are particularly interesting. Diversion, we are told, means different things in the English and Dutch systems. There is a fear of discretion in England and Wales and the diversion rate for adults is much higher in the Netherlands. Reservations about adult cautioning in England and Wales have, as the authors note, resulted in a 1994 circular which has, as a purpose, to reverse the upward trend in cautioning. Since the book was compiled, the English fear of discretion has led to the adoption of gravity scales for use within police forces in determining whether to caution or not. The Netherlands also shows to advantage in its treatment of mentally disordered offenders where Dutch institutions appear to be better found and more therapeutically oriented. In England diversion of juveniles means, primarily, diversion from court. The Netherlands appears to lay stress on community-based programmes.

Field and others on prosecutors, judges and police discretion offers an apt comparison of English and Dutch practices. The English system offers safeguards in the form of tape-recorded interviews with a solicitor present, albeit these are imperfectly realised. How imperfectly is no doubt a matter upon which views may legitimately differ. My limited personal experience suggests that some of the criticism of police practices is overblown, but it is possible that marked differences may exist in different parts of the country. Defence lawyers in the Netherlands are not, however, allowed in to police interrogations, and issues concerning the composition of the dossier might, one supposes, benefit from empirical research. The Netherlands does, however, benefit from the formal control of impartial prosecutors. Davenport and P. Baauw on police detention is disappointing in its treatment of English practices. It is almost wholly descriptive and lacks reference either to statistical data on numbers held, etc., or to empirical research.

I pass rapidly over the contributions on evidence. They are interesting, not least in their discussion of the limitations of access to such evidence and to forensic science facilities in the UK. The Netherlands appears to deal with these matters better via a court-appointed expert. J. Morgan et al on victims is of very high quality, and thoroughly sensitive to theoretical as well as practical issues. It is a pity that the authors were not able to discuss the home secretary's scheme for a fixed tariff in order to accelerate procedures (which in England are slow) and to save money (a pervasive Treasury theme).

Finally, sentencing. It is unfortunate that the English contribution was unable to address the retreat from the 1991 "reforms". In both systems courts enjoy wide sentencing discretion. In the Dutch system prosecutors demand a particular sentence, a practice which does not seem to result in inflexibility. In England, although this appears not to be mentioned, not only does the prosecutor not make representations as to sentence, but he does not see the presentence report. Much could have been made of the attitude of trial judges to pressure to impose more severe sentences. Judges vary in their approach, but few seem to embrace with enthusiasm the slogan that "prison works". The authors wish to curb judicial discretion in order to limit the numbers going to prison. The home secretary wishes to do so for the opposite reason. The judges, thankfully, seem impervious to governmental fads.

Prisoners' rights and the transfer of prisoners continue this theme. The Netherlands always has emphasised resocialisation. It is hard to see what policy the English system now reflects save that of blind repression. Underlying views differ concerning the transfer of prisoners, with the UK considering that we should enforce the foreign sentence as nearly as possible according to its terms, while the Dutch prefer to convert the foreign penalty to its Dutch equivalent. Again, the discussion skilfully draws out the competing theoretical arguments.

In sum, then, this is a useful book which will be of interest to lawyers and criminologists alike. It is flawed in certain respects. Some of those I have noted above, others are less obvious. There appears, for example, to be no treatment of pretrial release, or of the right to speedy trial, both of which are matters of concern. If nowhere else, these might have been mentioned in the essay on criminal policy. Furthermore, the cut-off date of May 1993 and the two-year delay in publication has meant that quite striking developments have been overlooked, though some authors, whether more or less virtuous than their fellows it would be indelicate to enquire, allude to them. Notwithstanding, the book will serve as a standard work on the topic and, one may hope, an impetus to other comparative studies.

L. H. Leigh is professor of criminal law, London School of Economics.

Criminal Justice in Europe: A Comparative Study

Editor - C. Harding, P. Fennell, N. Jorg, B. Swart
ISBN - 0 19 825807 0
Publisher - Clarendon Press, Oxford
Price - £45.00
Pages - 404

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