As criminal procedure systems, particularly in Europe, evolve under the influence of international norms and adapt to modern circumstances and needs, they seem to lose many of their traditionally ...characteristic differences. One aspect of this process pertains to the way systems seek to ensure that the truth is found. In adversarial systems, truth finding is traditionally achieved through debate between equal and autonomous parties who each investigate and present their own case. That has changed significantly over the past fifty years. But that change does not, as is often suggested, reflect a process of convergence towards the inquisitorial or realignment towards a new procedural type. Using the recent development of some seemingly inquisitorial elements in Scottish criminal procedure—the disclosure of prosecution evidence and the duty on the state to investigate all incriminating and exculpating evidence—this Article argues that procedural tradition and legal culture are resilient. Systems of criminal procedure will try to hold on to their traditional principles, guarantees, and mechanisms for truth finding. However, there are limits to what the adversarial tradition can accommodate. If those limits are crossed, systems do not simply converge on the continuum between inquisitorial and adversarial ideal types. Instead, the interaction between conservative tradition and converging trends can cause incoherence in a procedural system's approach to truth finding. Such incoherence can result in an ambiguous allocation of responsibilities between prosecution and defense and a lack of procedural guarantees for fair and reliable truth finding.
This article discusses whether a rule that requires the defence to give prior notice of its strategy and arguments to the prosecution has any bearing on the role of the prosecutor being inquisitorial ...or adversarial. The rule of special defences in Scottish criminal procedure, which combines inquisitorial and adversarial characteristics, is analysed. On the basis of the historical background of this rule and of Scottish criminal procedure in general, it is submitted that the rule exemplifies inquisitorial ideology, while Scottish procedure is by and large adversarial. The prosecutor may well be expected to use the information gained from an advance notice in an impartial manner, requiring him to investigate exculpatory evidence for the defence. Even though no clear legal duty to that effect exists, the Scottish prosecutor has considerable discretion to engage in informal cooperation with the defence. It is argued that a duty to act impartially may exist within this context of informal cooperation. The Scottish example shows that a rule on special defences need not imply an inquisitorial role for the prosecutor, but it can do so. As prosecutorial discretion and informal cooperation are pivotal for this inquisitorial role, the coherence of the criminal process may change if this discretion is limited by prosecution directives. The resulting loss of the magisterial role of the prosecutor may have to be compensated by a stronger position for the defence, as it may be dependent on the prosecutor’s impartiality for a fair trial.
Crimes that are committed with bias motives are categorised as ‘hate’ or bias crimes and are punished more severely than nonbias crimes. However, bias crime laws are often applied to offences where ...there is no clear evidence of a bias motive. Based on the results of 318 case studies into bias crime prosecutions in the Netherlands, this paper demonstrates that the causes of net-widening should be sought in the action-oriented nature of criminal law reasoning. Decision makers rely on objective behavioural indicators to infer motives. However, these are rarely reliable. We argue that this process results in a transformation of bias crime laws. They are no longer used to punish harmful motives. Rather, they are used to combat behaviour that is considered socially harmful on account of its perceived intolerant, racist or xenophobic message. This forces us to reconsider the justification behind trying to punish motive.
The Co-Reach Workshop on ISP Liability on December 7, 2010 was organised by the Co-Reach IPR in New Media at the Herbert Smith Conference Center in London. The policy-making workshop was co-hosted by ...Computer Law and Security Review, as part of its aim to position itself at the forefront of policy discussion drawing upon the high quality scholarly contributions to the journal from leading experts around the world.
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