The International Journal of Evidence & Proof

Criminal justice systems in different jurisdictions are based on different accounts as to how facts and truth are to be found. Because these accounts are often linked to procedural traditions they tend to draw normative weight from the past. Thus different criminal justice systems develop their own particular and critical points of trust where fundamental assumptions are made upon which the fact-finding capacity of the system is based. For jurisdictions from the inquisitorial tradition, trust is invested in the active truth-finding judge and the dossier. Thus in the Netherlands, the assumption is that thorough investigation led by an impartial prosecutor, the existence of a complete dossier and the active fact-finding role of the inquisitorial judge at trial preclude the necessity of strong defence rights and guarantee accurate truth-finding. Within the adversarial tradition in England and Wales, along with the jury and cross-examination at trial, the assumption is that, advance prosecution disclosure and independent active investigation by the defence provide a basis for strong defence narrative building and thus something like the equality of arms upon which accurate adversarial fact-finding is thought to depend. But what if the investigation in the Netherlands is neither thorough nor impartial, the dossier is incomplete and/or the judge unwilling to fulfil an active role? And what if the defence in England and Wales in fact lack the capacity or will either to conduct active independent pre-trial investigations or to make sense of the ‘unused materials’ disclosed by the prosecution? At this point, cultural trust in what are seen as systemic strengths can conceal points of weakness that not only render miscarriages of justice more likely but more difficult to identify and redress.

The reform of the Italian Code of Criminal Procedure (ccp) in 1989 was an ambitious attempt to transplant adversarial principles in a Criminal Justice System (CJS) that was rooted in its inquisitorial structure. From the pure legal perspective, the reform failed because the CJS appears now as a superimposition of adversarial values on a structure that remains inquisitorial. From the socio-legal comparative perspective, however, there are other contextual issues that deserve to be analysed. Following the introduction, I will focus on the changes that have taken place in the Italian ccp in 1989. This part of the article will explain the new semi-adversarial legal structure of the Italian CJS and the reasons why the current procedural system appears very complicated. The second part of the article will concentrate on the inquisitorial cultural resistance that Italian legal actors use to oppose the adversarial reform. The cultural analysis will be emphasised through the contextualisation of the 1989 reform in the Italian distinctive socio-political environment. In the third part I will analyse prosecutors’ legal culture to discuss the internalisation of adversarial principles in the Italian CJS. The conclusion will emphasise the importance of socio-legal asymmetrical comparisons to study the evolution and harmonisation of European procedural traditions.

Diverse criminal procedural traditions across Europe are undergoing a process of being drawn to gether by two strong forces: the EU Area of Freedom, Security and Justice and the European Court of Human Rights. Increasingly, Member States are reforming their criminal procedural systems to take account of the developments in both arenas. Since 2003, Poland has been amending its Code of Criminal Procedure in an effort to make it more ‘adversarial’. A recent reform, the strongest move yet towards developing an adversarial system, came into force in July 2015. The 2015 reform introduces procedures that look adversarial. The reforms in this jurisdiction, and indeed those of other Member States, towards a more ‘adversarial’ system challenge us (again!) to examine what we understand by ‘adversarial’, whether it is understood differently from the common law perspective versus the Continental (so-called ‘inquisitorial’) perspective and whether, if so, the convergence of procedural traditions is more imagined than real. The article will approach this question taking Poland as an example, drawing comparisons between its approach and that of Italy, and using Ireland as exemplar of the common law adversarial procedural tradition. It traces the reforms to Poland’s criminal procedure and questions whether it can really be described as ‘adversarial’.

It is clear that Ireland has witnessed evidence of a ‘tooling up’ of the state in the fight against crime over the last two decades. Crime control analyses—often relying upon the use of stark juxtaposition—are very useful in describing this trend. They can, however, also conceal the complexities that exist underneath the illusory comfort of binary labels such as ‘crime control’, ‘security state’, ‘actuarial justice’ or ‘Rule by Law’ governance. In employing examples of recent case-law relating to terrorism and sexual offending, this article will argue that crime control analyses fail to properly account for particular legal liberal properties such as rights as trumps, deontological reasoning, fidelity to precedent, the coordinated and hierarchical features of law, and the last ‘authoritative voice’ possessed by the judiciary in dispute resolution. These properties continue to possess institutional and epistemic authority in Ireland, and need to be written in to any ‘history of the present’ of the Irish criminal justice system.

The rise in secret courts or ‘closed material proceedings’ (CMPs) in recent years has called into question our commitment to long-cherished principles of open justice and due process. This debate has somewhat overshadowed the role of special advocates, who are appointed to represent the interests of parties excluded from such hearings. These advocates pose a challenge to the traditions of advocacy in the adversarial system but an international consensus across the common law world appears to be emerging that they may be justified on human rights grounds of fairness in that they bring a measure of procedural fairness to closed material proceedings. This paper examines this claim and considers the extent to which the rise of special advocates poses a threat to the adversarial tradition.