A World View of Criminal Justice

Richard Vogler

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351961394
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Criminal justice procedure is the bedrock of human rights. Surprisingly, however, in an era of unprecedented change in criminal justice around the world, it is often dismissed as technical and unimportant. This failure to take procedure seriously has a terrible cost, allowing reform to be driven by purely pragmatic considerations, cost-cutting or foreign influence. Current US political domination, for example, has produced a historic and global shift towards more adversarial procedure, which is widely misunderstood and inconsistently implemented. This book addresses such issues by bringing together a huge range of historical and contemporary research on criminal justice in Europe, Asia, Africa, Australasia and the Americas. It proposes a theory of procedure derived from the three great international trial modes of 'inquisitorial justice', 'adversarial justice' and 'popular justice'. This approach opens up the possibility of assessing criminal justice from a more objective standpoint, as well as providing a sourcebook for comparative study and practical reform around the world.

Chapter 1

Understanding Criminal Process: A Three-Dimensional World View

The Hunger for Justice

Over nine million people are today being held in penal institutions around the world¹ and this year nearly four thousand others will be judicially executed.² Nothing is more striking in criminal justice than the extraordinary variety of ways in which these individuals reached the prison cell or the execution chamber. Some were condemned after public adversarial trials, others by their own confession under torture, others by secret committees or officials acting alone. In some cases the decision was reached by professional lawyers, sitting together or singly, in other cases by lay people, by political, military or religious panels. The diversity of criminal procedure in different parts of the world is simply astonishing. Yet, despite the importance of the undertaking, there appears to be no agreement whatsoever on what constitutes a satisfactory criminal process.

What follows is an account of this diversity and the relentless progress of criminal justice reform around the world, which has accelerated dramatically in the last few years. It is an important and sometimes disturbing history. A few years before his death, the distinguished criminologist, Sir Leon Radzinowicz, warned of the scale of the problem of criminal justice. ‘There are at least four billion people in the world at present’, he argued, ‘as hungry for elementary criminal justice as they are for everyday essential commodities’ (1991a, p.428). He noted, despairingly, the inexorable progress towards ‘an authoritarian model of criminal justice’ (ibid., p.425) and went on:

(i)n very many parts of the world, including Europe, the system of criminal justice is amorphous, disjointed and stagnant. … Often there are pious proclamations of goals to be pursued which are flagrantly contradicted by ugly realities. … overshadowed by the impact of rising crime, by financial restrictions, and by the pressure to invest limited resources in attempts to alleviate other, more appealing, social problems (ibid., p.428).

Since this passage was written, the pious proclamations have redoubled. This is not to belittle the remarkable progress which has been made in the second half of the 20th century towards a global regime of human rights. Nor is it to undervalue the extraordinary achievements of contemporary criminal justice reform. In practice, however, the real impact of these changes is limited. Adherence to an idealised international or domestic code of rights will not necessarily prevent low-level, routine oppression, nor will it automatically transform authoritarian agencies or unfair procedures.

Some of the responsibility for this state of affairs must be attributed to the historical failure of the academic community to provide any consistent guidance on criminal justice process. In contrast to the extensive and innovative work on human rights, criminal law and criminology, the field of criminal procedure is largely undeveloped and continues to be dominated by sterile and atheoretical debates over the supposed opposition between different ‘systems’ of justice. Without a better and more sophisticated understanding of the working principles of criminal procedure, little progress can be made and national reform programmes will continue to be developed in isolation and without theoretical direction. The depressing result is that procedural integrity is eroded by undue pressure from donor nations, ill-advised transplants, haphazard or poorly thought-out reform and above all, the baleful influence of treasury-driven ‘audit’.

The purpose of this book is to suggest possible means of addressing these problems by identifying principles of criminal procedure, based upon a comparative and historical account of our different institutions around the world. Since it is quite impossible to undertake such an immense task as this on a strictly chronological or geographical basis without becoming overwhelmed by data, the approach which I have adopted here is thematic. I will argue that the development of criminal justice can best be understood in terms of the continuing interaction of the three great, global trial methodologies of the modern period; inquisitoriality, adversariality and popular justice. The body of the text will sketch the progress of these methodologies, arguing that their historical interaction has important implications for the contemporary reform process.

Equally, this project cannot be undertaken without first establishing a clear theoretical basis for the choices indicated. I will argue that a successful model for the analysis of criminal justice procedure must be firmly based upon comparative and historical analysis and must meet certain fundamental requirements. First it must embody the different ideas about justice which are contested both within the institutions of criminal justice themselves and in the wider community. Secondly it must represent, in some way, the real institutions of criminal justice, the courts, the different modes of procedure and collective practices. Finally, and most importantly, it must have immediate relevance to the personnel involved in the system; victims, defendants, police, lawyers and judges and reflect their different interests and outlooks. The failures of existing models have arisen predominantly from their being confined purely to one level, for example, to the level of institutional procedure, or to the level of ideology. They have also been developed in many cases, from research within a single jurisdiction and with no understanding of historical development. Criminal justice can no longer be seen as a purely local phenomenon. Its historical roots lie in the global communication of ideas and procedures in the great periods of imperial expansion and revolution. In the contemporary era of electronic communication, vastly increased international commerce and travel, our common interest in fair and efficient criminal procedure everywhere is all too apparent.

Before considering how any model of procedure could meet the requirements outlined above, it will be helpful to examine some of the existing attempts to analyse systems of justice, including criminal justice. I will review briefly some of the leading perspectives within the disciplines of comparative law and the sociology of law.

Genealogical Approaches: The Contribution of Comparative Law

At the 1900 Paris Congress of Comparative Law, Raymond Saleilles set out the project for comparative law for the new century:

…to extract from the ensemble of particular institutions a common basis or at least points of community to facilitate, beneath the apparent diversity of forms, the basic unity of the universal juridical life (cited in Delmas-Marty 1995a, p.27).

A century later, leading comparativists such as Zweigert and Kötz (1998) and De Cruz (1999) are still engaged in this Darwinian endeavour, basing their analysis on the genealogical concept of ‘families’ of legal systems. Ingraham, for example, looking at criminal justice systems, claims to have identified:

… a basic skeletal structure of the criminal procedural system … Here, as in the morphology of vertebrates, no matter how facially dissimilar, by which they can not only be recognized but also compared (1987, p.21).

This evolutionary model of legal development has led comparativists into more and more complex and bizarre typologies, grouping systems of law into patterns of family, racial, national or generic identity.³ Esmein, in 1905, proposed the division of ‘original systems of law’ into Romanic (French), Germanic, Anglo-Saxon, Slav and Islamic families.⁴ Arminjon, Nolde and Wolfe (1950-51) produced a modified typology, insisting on a division into seven family groups: French, German, Scandinavian, English, Russian, Islamic and Hindu, while David and Brierley (1985) reorganised the global heredity into three ‘major legal systems’ – ‘Romano-Germanic, Socialist and Common law’, with a residual category of orphans; Muslim, Indian, Far Eastern, African and Malagasy. Cole et al (1987), Reichel (2002) and Luna (2004), amongst others, have all adopted uncritically these or similar classifications for their own studies of criminal justice systems, claiming that David’s model offered a ‘scientifically-based theory of criminal justice’ (Cole et al 1987, p.23). Ancel, on the other hand opened up a serious rift amongst existing family members by insisting on a radical simplification of the dynastic arrangements into ‘western’ and ‘socialist’ variants (1984, pp.16-7).

As Langbein remarks, ‘once René David has written, once you have Zweigert and Kötz on the shelf, there seems to be less reason to keep doing it’ (1995, p.547). Before responding to this implicit question, it will perhaps be helpful to review the basis on which many of these jurisdictional children and their illegitimate siblings have been allocated to their appropriate families. The most striking feature in these genealogies is the lack of any consistent approach to classification. Sauser Hall, writing in 1913, insisted that ‘race’ was the fundamental factor (cited in Tobenas 1988, p.108). David and Brierley, after reviewing existing typologies (1985, p.20), propose two tests. First, can ‘someone educated in the study and practice of one law … be capable, without much difficulty, of handling another …’ Secondly, are they founded on broadly similar ‘philosophical, political or economic principles’ (ibid., p.23). Zweigert and Kötz, by contrast, suggest a typology based upon ‘styles’ of law (1998, p.67).

The first difficulty with most of these classificatory processes as guides to criminal justice around the world is that they focus primarily upon textual law rather than the real practices of justice systems. Secondly, they are based upon research which is almost exclusively concerned with private law (Reimann 1998, p.638; Zweigert and Kötz 1998, p.65). Moreover, the models are unremittingly Euro-centric (Reimann 1998; Mattei 1997, p.10) and frequently consign non-western systems to residual categories of ‘other’ or ‘mixed’ (ibid., pp.10-12). Above all the attempt to impose a single genealogical attribution on the ‘layered complexity’ of criminal process, let alone to an entire legal system, is fundamentally flawed. Even an author such as Mattei, who accepts that patterns of law within a legal system may derive from a variety of different sources, nevertheless insists upon the identification of a single ‘hegemonic’ pattern in each system. This conclusion leads him to attempt yet another macro-comparative typology, this time dividing the world between the ‘rule of professional law, rule of political law and rule of traditional law’ (1997, p.16).

Whilst these comparativists have sought to establish a universal typology for systems of law at the level of legal ideology, a further group have focused upon a similar project in respect of procedure and criminal justice institutions. The most significant practical manifestation of this unifying approach in criminal procedure is the development of the ‘grid’ or ‘template’ method of comparison. Whether universally or within families, ‘an underlying structure common to all procedural systems’ (Ingraham 1987, p.17) is presumed and laid out in a sequential series of categories as an analytical framework or ‘grid’ (ibid., p.20). Delmas-Marty, in one such project involving European Union states, calls for ‘une véritable grille d’analyse’ (a true analytical grid):

…written in a common language, partially inspired by the European Convention on Human Rights and neutral insofar as national judicial terminologies are concerned. The grid can be meaningful in all countries studied and each can apply its different procedure (1995a, p.44).

Adopting a standard methodology, teams of researchers administer questionnaires, undertake interviews and observations and review the legal codes and relevant literature in all the jurisdictions concerned in order to complete the common template for the country concerned.⁵

The problem with such projects is that the template is compiled using the norms, structures and procedures of an existing system or systems. Other systems may stubbornly refuse to be accommodated. Authors compiling particular sections are faced with the undesirable alternatives of either ignoring the common template or creating fictional equivalents for alien procedural stages or concepts. This is not to say that the ‘template texts’ which have proliferated in recent years have not contributed significantly to our understanding and awareness of different national forms of criminal justice. It is simply that accounts of different jurisdictions have inevitably been distorted by the dominant perspective. In the case of Van den Wyngaert (1993), Delmas-Marty (1995b) and Hatchard, Huber and Vogler (1996), the templates were drawn with continental European systems of procedure in mind, in the case of Ingraham (1987) and Bradley (1999) with that of the US. Quite simply, there is no universal global template for criminal justice procedure. For all that ‘the tasks of criminal procedure are basically the same’ (Ingraham 1987, p.20) the ways in which such tasks are accomplished are so various and so functionally different as to defy universal categorisation.

Parsons to Packer: the Contribution of the Sociology of Law

Much of the current research on criminal justice has adopted what John Baldwin has described as a ‘stubbornly atheoretical approach’ (2000, p.241), responding merely to the immediate requirements of funding and government agencies. This has not always been the case. A considerable body of work in the sociology of law, for example, has embraced the concept of the functional ‘system’ as the starting point for some very detailed theoretical approaches to criminal justice. The idea of viewing the different agencies of criminal justice collectively as a single ‘system’ is of relatively recent origin and derives largely from the work of Talcott Parsons (1949). Despite its complexities, the functionalist approach of Parsonian sociology has exercised an enormous influence on the analysis of criminal justice procedure.

By aggregating together the various different agencies of criminal justice into a coherent system with shared values, procedures and goals (Bottomley 1973, pp.217-9), Parsons’ successors opened up the possibility of a form of systems-analysis which could provide an overall and comparative assessment of procedure. Criminal justice could be viewed as a distributive system in which various inputs are processed and in which outputs could be measured and compared. With its tempting suggestions of productivity assessment and regulation and its apparent value-neutrality, this model has dominated both US and English writing on criminal justice process in recent years. Although Bredemeier (1962), Thibaut and Walker (1975; 1978), and Easterbrook (1983), for example, have all proposed system models of criminal justice, based on the apportionment of outcomes, systems theory has found its most enduring expression in the work of Herbert Packer.

Over the past 35 years Packer’s formulation has been cited repeatedly⁶ and uncritically by even the most radical and progressive of commentators.⁷ His influence pervades, for example, the 1999 United Nations Global Report on Crime and Justice (Newman 1999, pp.71-2) and a succession of influential government reports in both the US and England.⁸ Yet strangely his work is determinedly non-comparative and is unsupported by much in the way of evidence. Briefly, Packer presents two ideal types of criminal justice process; two normative models (1968, p.153) which he hopes will help explain the choices which underlie the details of criminal justice practice. The two alternative models are the ‘crime control model’ (CCM) and the ‘due process model’ (DPM). According to Packer, the CCM ‘requires that primary attention be paid to the managerial efficiency with which the criminal process operates to screen suspects, determine guilt and secure appropriate dispositions of persons convicted of crimes’ (ibid., p.158). The complete freedom of action of the investigators, enabling them to establish an accurate prediction of guilt or innocence, is essential. Indeed, the model requires a rigorous initial screening process so that subsequent stages can be significantly abbreviated. Above all, the process must not be ‘cluttered up with ceremonial rituals which do not advance the progress of a case’ (ibid., p.159). Although he does not mention it – and indeed ha...