Obstacles to fairness in criminal proceedings : individual rights and institutional forms / edited by John D Jackson and Sarah J Summers.
2018
KZ7364 .O27 2018 (Map It)
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Details
Title
Obstacles to fairness in criminal proceedings : individual rights and institutional forms / edited by John D Jackson and Sarah J Summers.
Published
Oxford, UK ; Portland, Oregon : Hart Publishing, 2018.
Copyright
©2018
Call Number
KZ7364 .O27 2018
ISBN
9781782258353 hardcover ; alkaline paper
1782258353 hardcover ; alkaline paper
9781782258377 (ePDF)
9781782258360 (ePub)
1782258353 hardcover ; alkaline paper
9781782258377 (ePDF)
9781782258360 (ePub)
Description
xi, 325 pages ; 26 cm
System Control No.
(OCoLC)987793621
Bibliography, etc. Note
Includes bibliographical references and index.
Available in Other Form
Online version: Obstacles to fairness in criminal proceedings. Oxford [UK] ; Portland, Oregon : Hart Publishing, 2018 9781782258360 (DLC) 2017051419
Record Appears in
Table of Contents
Acknowledgements
v
List of Contributors
xiii
1.
Introduction / Sarah J Summers
1
I.
Fair Trial Standards
1
II.
Obstacles to Fairness
4
III.
Individual Rights and Institutional Forms
10
2.
Character of the Right to a Fair Trial / Stefan Trechsel
19
I.
Introduction
19
II.
Rank of the Right to a Fair Trial
20
A.
Within the Hierarchy of International Human Rights
20
B.
Within the Framework of the ECHR
21
III.
Scope of the Right to a Fair Trial in Article 6
22
A.
Various Ambits of the Right to a Fair Trial
22
B.
Relationship between the Right to a Fair Trial under Article 6(1) ECHR and the Specific Rights of the Accused under Article 6(3) ECHR
23
C.
Relationship between the Right to a Fair Trial and the Other Convention Guarantees Connected to Criminal Proceedings
26
i.
Specific Rights
26
ii.
Fair Trial and the Right to an Independent and Impartial Tribunal
26
iii.
Fair Trial and the Requirement of `Adversarial' Proceedings
28
iv.
Fair Trial and Equality of Arms
28
v.
Fair Trial and the Right to a Reasoned Judgment
29
vi.
Fair Trial and the Right to a Public Hearing
30
vii.
Fair Trial and the Right to a Judgment within Reasonable Time
30
viii.
Fair Trial and the Presumption of Innocence
30
ix.
Fair Trial and the Protection of the Privilege against Self-Incrimination
31
IV.
Is the Right to a Fair Trial a Straightforward Individual Human Right?
32
V.
Conclusions
35
3.
Autonomy and Agency in American Criminal Process / David Alan Sklansky
37
I.
Autonomy
37
II.
Agency
42
III.
Waiver
46
A.
Waiving Post-Conviction Review
46
B.
Waiving Confrontation
49
C.
Waiving Non-Discriminatory Jury Selection
50
D.
Waiving Discovery
51
E.
Waiver and Effective Assistance of Counsel
53
IV.
Reform
54
4.
Innocence, the Burden of Proof and Fairness in the Criminal Trial: Revisiting Woolmington v DPP (1935) / Lindsay Farmer
57
I.
Introduction
57
II.
Woolmington v DPP (1935)
58
III.
Woolmington in Context
61
IV.
Scope of the Presumption of Innocence
66
V.
Conclusion
72
5.
Right of Silence in England and Wales: Sacred Cow, Sacrificial Lamb or Trojan Horse? / Hannah Quirk
75
I.
Sacred Cow?
77
II.
Sacrificial Lamb?
81
III.
Trojan Horse?
86
A.
Section 35 of the CJPOA
87
B.
Section 34, 36 and 37 of the CJPOA
90
C.
ECtHR Jurisprudence
94
D.
Criminal Justice Policy
95
IV.
Conclusion
97
6.
Seeking Core Fair Trial Standards across National Boundaries: Judicial Impartiality, the Prosecutorial Role and the Right to Counsel / Sarah J Summers
99
I.
Introduction
99
II.
Searching for Core Values
101
A.
Individual Interests: Dignity, Autonomy and Liberty
101
B.
Accuracy
104
C.
Judicial Impartiality and the Prosecutorial Role
106
III.
Right to Counsel
109
A.
Waiver
111
B.
Self-Representation
113
C.
Acting on Instructions
115
IV.
Meeting Challenges to the Fair Trial Standards
117
A.
Trial Avoidance
117
B.
Sensitive Information
120
C.
Need to Protect Witnesses and Victims
122
V.
Conclusion: Towards a Shared Understanding of Fairness
123
7.
Role of Counsel in Criminal Proceedings / Wolfgang Wohlers
127
I.
Role of Counsel in Criminal Proceedings: Differences between Common Law and Civil Law Systems
127
II.
Thinking outside the Box: The Challenges and Promises of a Transnational View of Criminal Proceedings
129
A.
Practice of the International Criminal Tribunals: Common Law, Civil Law, or Something in Between?
129
B.
Case Law of the ECtHR: Is There Common Ground between Common Law and Civil Law Systems?
131
III.
Effects of the Exercise of the Right to Legal Assistance on the Procedural Role of the Accused
134
A.
English Law
134
i.
Origins of the Counsel-Driven Adversarial Trial
134
ii.
Role of Counsel in the Modern Criminal Trial
135
B.
US Law
138
i.
Bifurcated Model of Full Representation and Self-Representation as Mutually Exclusive Rights
138
ii.
Hybrid Representation
142
C.
German Law
144
i.
German Law as an Example of Hybrid Representation
144
ii.
Is Full Representation Possible under German Law?
147
D.
Swiss Law
149
E.
Some Conclusions from the Comparative Analysis
151
8.
`Falling on Deaf Ears': Looking for the Salduz Jurisprudence in Greece / Dimitrios Giannoulopoulos
155
I.
Seminal Salduz Jurisprudence
157
II.
Court-Centred and Contracting Party-Centred Explanations of Acceptance of, or Resistance to, ECHR Jurisprudence
159
III.
Custodial Legal Assistance in Greece: A Liberal Legislative Framework
162
IV.
Suspects' Rights in Practice
164
V.
Salduz's Negligible Effect in Greece: `Paying Lip Service' and Avoiding the Cost of Putting up Resistance
166
VI.
Greek Responses to International Pressures for Human Rights Reform: The Wider Context
169
VII.
Role of Effective National Implementation of ECHR Rights
174
VIII.
Concluding Observations
176
9.
Fairness and Expediency in International Criminal Procedure / Kai Ambos
179
10.
International Criminal Procedure and the False Promise of an Ideal Model of Fairness / Yvonne McDermott
191
I.
Introduction
191
II.
International Criminal Procedure's Potential as an Ideal Model
193
III.
Some Aspects of International Criminal Procedure that Fall Short of an Ideal Model of Fairness
196
A.
Judicial Notice
196
B.
Extension of Fair Trial Rights to Actors other than the Accused
197
IV.
International Criminal Law's Inability to Create a Universally Acceptable Procedural Model
199
V.
Conclusion
203
11.
Written Records of Statements and Fairness / Nadja Capus
205
I.
Introduction
205
II.
Is Direct Knowledge Required Instead of Reading Authority-Generated Written Records?
206
A.
Written Records and the Principles of Orality and Immediacy
206
B.
Written Records in the Light of Article 6 ECHR
210
III.
Written Records as a Guarantee of Fairness
210
A.
Written Records as a Means of Ensuring Judicial Control
210
B.
Written Records and the Right to be Heard
211
IV.
Turning Points: Under which Circumstances do the Production or Reception of Written Reports Constitute Obstacles to Fairness?
213
A.
Obstacles to Fairness within the Production of the Written Record
213
B.
Obstacles to Fairness in the Use of the Written Record (as Evidence): Signs of Hazards to Fairness
214
i.
Modified Presentation of the Interaction
214
ii.
Language Issues
215
V.
Use of Written Records
217
VI.
Conclusion
219
12.
Regulating and Limiting Plea Concessions: Towards Fairness in Charge Adjudication / Richard L Lippke
221
I.
Problems with Unfettered Plea Bargaining
224
II.
Constraining and Regulating Plea Concessions
228
III.
Back to the Misdemeanour Case-Processing World
232
IV.
Concluding Remarks
236
13.
Fair Cop and a Fair Trial / Eric J Miller
239
I.
Introduction
239
II.
What Police Do
244
III.
Police Role
250
A.
Values and Duties
254
B.
Duties to Investigate and Intervene
258
C.
Moral Dangers of Policing
260
D.
Separating Duties
261
IV.
Mass Policing and Mass Adjudication
263
A.
Policing, Public Welfare, and Criminal Trials
265
B.
Police Permission to Decline Trial Punishment
270
V.
Conclusion
271
14.
Rights-Analysis in Addressing Pre-Trial Impropriety: An Obstacle to Fairness? / Kelly M Pitcher
273
I.
Introduction
273
II.
Reductionist Nature of Rights-Analysis
276
III.
Malleability of Rights-Analysis
284
IV.
Rights-Analysis as an Obstacle to Fairness
292
V.
Proper Role of `Rights' in Addressing Pre-Trial Impropriety
298
15.
Fairness in Criminal Proceedings: Concluding Thoughts and Further Questions / RA Duff
301
I.
Fairness in Criminal Proceedings
301
II.
Aims of the Criminal Process
303
III.
`Criminal Proceedings'
305
IV.
Fairness to Whom?
307
V.
Institutions and Roles
309
Index
315