Tipping the scales : the reduction of procedural protection for the accused in inter-jurisdictional cases
Within mature criminal justice systems there exists a range of procedural mechanisms designed to provide the accused with protection from unlawful and unfair treatment by prosecuting authorities. Whilst some systems insist on judicial involvement in the investigation of crime, others grant the court discretionary powers to reject evidence or stay proceedings. Complex evidentiary rules flourish in common law systems, whereas civil law systems abide by the principle of the free evaluation of evidence. Judicial responses to the reception of irregularly obtained evidence vary, even within systems sharing a common tradition. Given the strong utilitarian tradition of the English and Scottish courts, judges tend to reason pragmatically rather than articulate principles. Theory and principle relevant to the exclusionary discretion are considered in Chapter 2. The extent of the general powers given to the prosecuting authorities in England and Scotland to gather real evidence, and the range of safeguards designed to protect the rights of suspects are examined in detail in Chapter 3. The fourth Chapter considers the admissibility of irregularly obtained evidence in both jurisdictions and questions whether, and to what extent, the procedural rules permit the court to balance effectively countervailing public interest considerations. The rules operating in France and Germany are examined in outline and used as comparative examples. Police investigative powers do not generally extend beyond the jurisdiction of the national court, thus prosecuting authorities requiring access to evidence located abroad seek assistance through operational police co-operation and mutual legal assistance procedures. These mechanisms are examined in Chapter 5, and consideration given to the differing approaches taken by the English and Scottish courts to the admissibility of regularly and irregularly obtained foreign evidence. The assumption is challenged that evidence obtained abroad can be assessed in the same manner as evidence obtained in breach of national rules without disturbing the fairness of the proceedings. Incorporation of the European Convention on Human Rights has potential for changing the court's response to questions of admissibility and is considered in Chapter 6. This thesis concludes with a critical analysis of the problems identified, and questions whether criminal justice systems can achieve a fair balance without understanding the complex interplay between procedural rules. Only by understanding the function of the procedural rule within each system can the risk of reducing the procedural protection to the accused be avoided. I have endeavoured to state the law as it stood at the end of July 2000.