What limits to harmonising justice?

This chapter is concerned with how tradition and change affect differences between jurisdictions within the European Union (EU), where supranational legal structures and ideologies appear to leave little room for the ‘insider perspective’. The principles of mutual recognition and harmonisation of criminal law and procedure in Member States have created a legal sphere transcending the national. It presupposes a common legal order in which a shared conception of fair trial is the norm and provisions of substantive law are, if not identical, then at least totally compatible and based on common notions of harm. Whether or not harmonisation is desirable is not the issue here. My concern is with the assumptions that underlie an ongoing process and their effect on criminal justice in the national sphere. Can we assume a common legal order of criminal justice in which conceptions of fair trial and harmonised substantive law are shared across the European Union? Or do different social constructions and legal cultures at the national level (and the resulting supranational political compromise) pose limits to how far we can approach this purportedly ideal state of affairs? And, if that is the case, how do they make themselves felt and what are the consequences

Truth-finding, procedural traditions and cultural trust in the Netherlands and England and Wales: when strengths become weaknesses

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

Culpability compared: Mental capacity, criminal offences and the role of the expert in common law and civil law jurisdictions

This article compares the situation in which an individual with diminished mental capacity is prosecuted for a criminal offence in England and Wales and in the Netherlands, with a particular focus on the role of the expert medical witness. It is not unreasonable to assume that, whatever the jurisdiction, the existence of a condition affecting the mental capacity of the defendant may affect how the culpability of the accused is assessed by the courts and translated into a verdict. By comparing culpability in the context of the role of experts, consideration will be given to how substantive and procedural law hang together in the different jurisdictions. A comparison between England and Wales (as an example of a common law jurisdiction) and the Netherlands (as an example of a civil law jurisdiction) may reveal very different outcomes with regard to the verdict and the way it is reached that have far-reaching consequences for the person involved. This article will examine why such differences may occur, in particular whether they are the result of the common law’s reliance on just two possible reasons for the absence of culpability in such cases (insanity or automatism, or, conceivably, diminished responsibility if murder is the charge), while the civil law is based on a theoretically underpinned doctrine that allows for a greater range of defences with regard to culpability (and its relative absence) in general. The topic not only has possible practical implications, but could also contribute to the growing body of comparative scholarship: comparisons of substantive criminal law, unlike its many procedural aspects, are few and far between. One of the reasons is that substantive law is shot through with moral considerations that are very difficult to ascertain and muddy the comparative waters considerably. In this case, however, the issue is not the offence itself, but whether and how a mental condition may affect culpability. While it could be said that the recognition of such conditions is also contingent on their social and moral connotations, the effect of this is likely to be much less than in a comparison of (perpetrators) of sexual offences per se

Transitional justice and the public sphere: engagement, legitimacy and contestation

- Divulgação dos SUMÁRIOS das obras recentemente incorporadas ao acervo da Biblioteca Ministro Oscar Saraiva do STJ. Em respeito à Lei de Direitos Autorais, não disponibilizamos a obra na íntegra.- Localização na estante: 351.87 T772j- Chrisje Brants e Susanne Karstedt são os editores da obra

A comparative Analysis of Anglo-Dutch approaches to “cyber policing”: checks and balances fit for purpose?

This article examines two contrasting approaches to the governance of police investigations for ensuring that cybercrime-policing is lawful and ethical. The Netherlands has a national police force working under the direction of an equally centralised prosecution service according to specific laws on the use of special powers of surveillance, with evidence tested judicially when added incrementally to the case file. Theoretically, the process of adapting to the novel features of cybercrime policing should be much easier than within the much more fragmented policing structure in England and Wales, where unreliable evidence is challengeable only at the trial stage and the laws governing police action are equally fragmented. The Dutch police, however, have not found it easy to adapt concepts of covert policing developed in the 1990’s to their on-line investigative activities, despite the existence of comparatively detailed guidance and case law for undercover policing in the ‘real’ world. In the UK, the police seem unsure which requirements and concepts actually apply to their different on-line-investigations. More generally, it is concluded that legal comparisons of the kind undertaken in this article can identify general bottlenecks and barriers to adapting to the cyber environment, but such analysis cannot identify best practices that are readily transferable from one country to another. Legal transplants are a potentially hazardous undertaking because any practices and policies that work successfully will do so because they are necessarily compliant with the underlying systemic legal-cultural factors that make each legal system unique. Indeed, we make no attempt to identify best practices, other than to remark that the centralised nature of Dutch policing seems to afford some advantage, although, for historical and legal-cultural reasons, centralisation is unlikely to be an option for the UK police forces

Alternative Systems of Crime Control. National, Transnational, and International Dimensions

The typical trial-oriented systems of criminal justice that are primarily based on the strict application of substantive criminal law have reached their functional and logistical limits in most parts of the modern legal world. As a result, new sanction models, less formal, administrative, and discretionary case disposals, plea bargaining arrangements, and other alternative procedural and transitional justice mechanisms have emerged at unprecedented levels in national and international legal orders affiliated both with the civil law and the common law tradition. These normative constructs and practices aim at abbreviating, simplifying, or circumventing the conventional criminal investigation and prosecution. They seek to enhance the effectiveness of conflict resolution proceedings and to shift the focus of crime control from repression to prevention. The present volume explores these alternative, informal, preventive, and transitional types of criminal justice and the legitimacy of new sanction models in the global risk society from the perspective of national and international justice and by focusing on the special regimes of anti-terrorism measures and security law. The authors of the papers are experts and internationally acclaimed scholars in this field. Their research results were presented and discussed at an inter-national conference held on 26-27 January 2018 at Middle Temple in London, UK, which was organized by the School of Law of the Queen Mary University of London, the Max Planck Institute for Foreign and International Criminal Law (Freiburg), and the European & International Criminal Law Institute (Athens)

Complicated Legacies of Justice: The Netherlands and World War II

After the Second World War, a process of what we now call transitional justice was initiated in The Netherlands to deal with crimes committed during the German occupation. ‘Extraordinary justice’ (bijzondere rechtspleging) as it was called, had criminal, administrative and disciplinary courts and tribunals with special jurisdiction over collaboration, treason and their consequences. It was based on the assumption that the good could be clearly separated from the bad, and aimed at ridding the country of all who had made the ‘wrong choice’. This right–wrong dichotomy persisted for many decades and is even present in public discourse in The Netherlands today. Concomitantly, it has been very difficult to publicly debate sensitive issues such as the permanent shunning of collaborators, the virtual destruction of Dutch Jewry, the cold reception of the few Jewish survivors and the bystander-role of the Dutch population during the deportations. This contribution asks how, in the socio-political context of the time, extraordinary justice coloured perceptions of events, allowing some to flourish and creating a great silence and social division around others. How did those perceptions change, and with them, the nature of public debate? With the benefit of hindsight, the legacy of extraordinary justice may help us understand more about the significance — and limits — of criminal law in processes of transition