Towards a System of European Criminal Justice

The Problem of Admissibility of Evidence

Andrea Ryan

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317671176
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

With the developing landscape of a European criminal justice sphere comes an increasing imperative for scholars and practitioners to gain some insight into the diversity that exists in the criminal justice systems of European Union Member States.

This book explores the mutual admissibility of evidence; a facet of EU criminal justice that is proving difficult to realise. While the Lisbon Treaty places the issue of mutual admissibility of evidence squarely on the agenda, the EU instruments to date have not succeeded in achieving this goal. Andrea Ryan argues that part of the reason for this failure is that while the mutual recognition instruments have focussed on the issue of gathering evidence and safeguarding suspects' rights, they have not addressed how evidence is to be presented and contested at trial.

Drawing upon case studies from Ireland, France and Italy, and adopting a legal cultural perspective, and enriched by the author's observations of criminal trials, the book presents a detailed analysis of the developments to date in EU criminal justice and evidence law. By examining evidence practices the book asks whether the inquisitorial and accusatorial traditions within the EU systems are too irreconcilable to achieve a system of mutual admissibility of evidence.

The book will be of great interest and use to academics and practitioners with an interest in European and comparative criminal justice, criminal procedure, human rights and socio-legal studies.

1 Introduction

1.1 General background

It has long been acknowledged that common law jurisdictions differ in their method of investigation, trial and approach to proof of criminal offences from their civil law counterparts. In Europe the common law system is followed in the jurisdictions of Ireland and Britain while the majority of countries in continental Europe follow a civil law model.¹ The common law system is generally associated with an accusatorial/adversarial procedural tradition, while the civil law system is associated with an inquisitorial tradition. In relation to proof, the common law systems adhere to a distinct ‘Law of Evidence’, a discrete discipline developed in the nineteenth century in the treatises of jurists who isolated the study of evidence from the study of procedure and substantive law.² Evidentiary rules, most pertinently the hearsay rule, propensity rules and rules regarding unlawfully obtained evidence, are essentially common law constructs that embrace an exclusionary principle. Laws relating to evidence in continental systems are more commonly contained within the general codes of criminal procedure rather than as a discrete discipline, and while also placing limitations on some types of proof that may be produced, since the close of the eighteenth century these systems have eschewed a rigid system of ‘legal proof’ and embraced a system of ‘free proof’.

In response to the problem of trans-European crime faced by all Member States of the EU, the past decade has seen a developing body of law in the field of EU criminal justice relating to both substantive criminal law and criminal procedure, and while we cannot yet speak of a fully developed EU criminal justice system, it certainly exists in fledgling form. Criminal justice is typically a sovereign matter for each national system. As such, the development of a common justice system is faced with the challenge of finding solutions that do not radically alter individual systems; any solution must try to accommodate the different approaches of national systems so as not to impinge too greatly on their sovereign patch.

In recognition of the differences between jurisdictions, a principle of ‘mutual recognition’ has been adopted in an effort to achieve a common approach to dealing with the problem of trans-European crime whereby decisions taken in one Member State are to be accepted as valid in any other Member State so that they may be acted on, regardless of whether that decision would have been arrived at in a different way or would have reached a different outcome in a national context.³ The mutual recognition principle is also dependent on the acceptance by all Member States of common minimum standards of procedural rights for suspects and accused persons. Fundamental to the mutual recognition principle is the idea that it proceeds from a basis of tolerance of diversity of legal systems.

Far-reaching reforms have occurred over the past decades within jurisdictions stemming from the two traditions, to no small degree as a result of the interpretations by the European Court of Human Rights (ECtHR) of the European Convention on Human Rights (ECHR) to which all Member States must conform. It has been suggested that the jurisprudence of the ECtHR may be bringing about a convergence or ‘realignment’ of the two traditions.⁴ The greatest obstacle to achieving meaningful convergence appears to be in the area of proof. The ECtHR has time and again insisted that its primary concern is to assess whether the criminal proceedings overall have been fair,⁵ and considers that it has no role in deciding whether evidence should or should not be admissible; rather, the proper forum for deciding that issue is the national court in accordance with national law.⁶

There has been an ongoing effort to achieve a position of mutual admissibility of evidence across the EU, but so far there has been little progress in realising the aspiration. The Lisbon Treaty requires minimum rules to be established by the Council and Parliament regarding ‘mutual admissibility of evidence between Member States’. ‘Mutual admissibility of evidence’ is not defined. On the basis of references to mutual admissibility found in various Commission documents, the definition offered here is that the principle of mutual admissibility of evidence that is being aspired to embraces the objective that ‘evidence lawfully gathered by one Member State’s authorities should be admissible before the courts of other Member States’, and that it should embrace all types of evidence: real evidence, forensic evidence, documentary evidence and statements, including statements of suspects made to authorities.

The negative response by Member States to the attempt by the Commission to establish a EU-wide rule on inadmissibility of evidence where statements of suspects are taken in the absence of a lawyer⁷ serves to highlight that the area of proof is one that accentuates the sharpest divergence between the two procedural traditions, embracing as it does complex layers of values reflecting legal cultural preference which inform the procedural practices. There is a perception that the continental systems place a priority on seeking truth while the common law systems are primarily committed to the value of fairness in the process, even where it has the effect of losing some truth along the way.

The starting hypothesis of this work is that the most acute difference between the criminal justice systems of the common law and those of the civil law lies in their approach to proof, in terms of the collection of, receiving of, presentation of and opportunity to challenge evidence, differences that arise as a result of diversity in procedural arrangements, the evidence rules themselves and different conceptions of ‘admissibility’, ‘inadmissibility’ and ‘exclusionary’ rules of evidence. This difference between jurisdictions of the Member States makes the development of a EU-wide mutual admissibility system a problematic proposition.

Taking as a starting point the idea that a mutual admissibility design involves three facets: the gathering of evidence; the rights of suspects; and the receiving, presentation and challenge of evidence, three broad questions correspondingly arise:

1. Is there a difference between the systems in the way that they gather evidence? If so, do such differences militate against a convergence of evidence law on that score?

2. Is there a difference between the systems in the rights that are afforded to suspects during the evidence-gathering process? Have such differences now been reconciled by the jurisprudence of the ECtHR making convergence towards mutual admissibility a realistic proposition as far as that aspect is concerned?

3. Is there a difference between the systems in their approach to the reception, presentation and provision of opportunity to challenge evidence? Is it the case that the ECtHR has resolved any differences that might have existed historically in this regard by requiring that all evidence be presented ‘with the view to adversarial argument’⁸ and have thus brought about a convergence of trial practice across Member States in so far as they should follow an ‘adversarial’ format? Or is it an incorrect assumption to make that ‘adversarial argument’ is equivalent to un débat contradictoire, the terms used in the official translated versions of the ECtHR cases, and a further fallacy to take from this translation any impression that the concepts of adversarial trial and un procédure contradictoire are one and the same?

Do the differences posed by these two procedural arrangements relating to inadmissibility of evidence present the greatest obstacle for achieving convergence? Is this an irreconcilable difference, because of the fact that one procedure takes an exclusionary position of concealing the evidence from the ultimate fact-finders while the other generally reveals all the evidence and simply directs the fact-finder not to use it? Is it irreconcilable because the latter procedural practice accords a higher priority to truth and is the expression of a divergence of view between continental and common law legal cultures on the prominence that truth-seeking should hold in the criminal process?

Is the aspiration for a EU-wide mutual admissibility system therefore caught between two stools in that a design that would contain an exclusionary orientation would be intolerable to the continental legal culture while a system designed in such a way that would reveal inadmissible evidence to the fact-finders would be intolerable to the common law culture?

1.2 Perceptions of difference and convergence

1.2.1 Perceptions of difference

Some commentators have downplayed differences between the criminal procedural systems of common law and civil law jurisdictions. Goldstein and Marcus have argued that one of the key perceived differences between the two traditions, judicial supervision of pre-trial investigations, in reality is a ‘myth’; they suggested that in practice, officials in the European systems left the task of investigation of offences to the police and were no more likely to leave their offices than their American counterparts.⁹ This argument was later rebuked when it was suggested that the ‘Americanize...