Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms

Description

This volume considers the way in which the focus on individual rights may constitute an obstacle to ensuring fairness in criminal proceedings. The increasingly cosmopolitan nature of criminal justice, forcing legal systems with different institutional forms and practices to interact with each other as they attempt to combat crime beyond national borders, has accentuated the need for systems to seek legitimacy beyond their domestic traditions. Fairness, expressed in terms of the right to a fair trial in provisions such as Article 6 of the European Convention on Human Rights, has emerged across Europe as the principal means of guaranteeing the legitimacy of criminal proceedings. The consequence of this is that criminal procedure doctrines are framed overwhelmingly in ‘constitutional’ terms—the protection of defence rights is necessary to restrict and legitimate the state’s mandate to prosecute crime. Yet there are various problems with relying solely or predominantly on defence rights as a means of ensuring that proceedings are ‘fair’ or legitimate and these issues are rarely discussed in the academic literature. In this volume, scholars from the disciplines of law, philosophy and sociology challenge various normative assumptions underpinning our understanding of fairness in criminal proceedings. Acknowledgements Table of Contents List of Contributors 1. Introduction I. Fair Trial Standards II. Obstacles to Fairness III. Individual Rights and Institutional Forms 2. The Character of the Right to a Fair Trial I. Introduction II. The Rank of the Right to a Fair Trial III. The Scope of the Right to a Fair Trial in Article 6 IV. Is the Right to a Fair Trial a Straightforward Individual Human Right? V. Conclusions 3. Autonomy and Agency in American Criminal Process I. Autonomy II. Agency III. Waiver IV. Reform 4. Innocence, the Burden of Proof and Fairness in the Criminal Trial: Revisiting Woolmington v DPP (1935) I. Introduction II. Woolmington v DPP (1935) III. Woolmington in Context IV. The Scope of the Presumption of Innocence V. Conclusion 5. The Right of Silence in England and Wales: Sacred Cow, Sacrificial Lamb or Trojan Horse? I. A Sacred Cow? II. A Sacrificial Lamb? III. A Trojan Horse? IV. Conclusion 6. Seeking Core Fair Trial Standards across National Boundaries: Judicial Impartiality, the Prosecutorial Role and the Right to Counsel I. Introduction II. Searching for Core Values III. The Right to Counsel IV. Meeting Challenges to the Fair Trial Standards V. Conclusion: Towards a Shared Understanding of Fairness 7. The Role of Counsel in Criminal Proceedings I. The Role of Counsel in Criminal Proceedings: Differences between Common Law and Civil Law Systems II. Thinking outside the Box: The Challenges and Promises of a Transnational View of Criminal Proceedings III. Effects of the Exercise of the Right to Legal Assistance on the Procedural Role of the Accused 8. ‘Falling on Deaf Ears’: Looking for the Salduz Jurisprudence in Greece I. The Seminal Salduz Jurisprudence II. Court-Centred and Contracting Party-Centred Explanations of Acceptance of, or Resistance to, ECHR Jurisprudence III. Custodial Legal Assistance in Greece: A Liberal Legislative Framework IV. Suspects’ Rights in Practice V. Salduz’s Negligible Effect in Greece: ‘Paying Lip Service’ and Avoiding the Cost of Putting up Resistance VI. Greek Responses to International Pressures for Human Rights Reform: The Wider Context VII. The Role of Effective National Implementation of ECHR Rights VIII. Concluding Observations 9.
Fairness and Expediency in International Criminal Procedure 10. International Criminal Procedure and the False Promise of an Ideal Model of Fairness I. Introduction II. International Criminal Procedure’s Potential as an Ideal Model III. Some Aspects of International Criminal Procedure that Fall Short of an Ideal Model of Fairness IV. International Criminal Law’s Inability to Create a Universally Acceptable Procedural Model V. Conclusion 11. Written Records of Statements and Fairness I. Introduction II. Is Direct Knowledge Required Instead of Reading Authority-Generated Written Records? III. Written Records as a Guarantee of Fairness IV. Turning Points: Under which Circumstances do the Production or Reception of Written Reports Constitute Obstacles to Fairness? V. The Use of Written Records VI. Conclusion 12. Regulating and Limiting Plea Concessions: Towards Fairness in Charge Adjudication I. The Problems with Unfettered Plea Bargaining II. Constraining and Regulating Plea Concessions III. Back to the Misdemeanour Case-Processing World IV. Concluding Remarks 13. A Fair Cop and a Fair Trial I. Introduction II. What Police Do III. The Police Role IV. Mass Policing and Mass Adjudication V. Conclusion 14. Rights-Analysis in Addressing Pre-Trial Impropriety: An Obstacle to Fairness? I. Introduction II. The Reductionist Nature of Rights-Analysis III. The Malleability of Rights-Analysis IV. Rights-Analysis as an Obstacle to Fairness V. The Proper Role of ‘Rights’ in Addressing Pre-Trial Impropriety 15. Fairness in Criminal Proceedings: Concluding Thoughts and Further Questions I. Fairness in Criminal Proceedings II. The Aims of the Criminal Process III. ‘Criminal Proceedings’ IV. Fairness to Whom? V. Institutions and Roles Index