Obstacles to Fairness in Criminal Proceedings ― Individual Rights and Institutional Forms

This volume considers the way in which the criminal law's current focus on individual rights may constitute an obstacle to ensuring fairness in criminal proceedings. Scholars from the disciplines of law, philosophy, and sociology challenge various normative assumptions underpinning our understanding of fairness in criminal proceedings. The increasingly cosmopolitan nature of criminal justice forcing different legal systems to interact with each other as they attempt to combat crime beyond national borders has accentuated the need for systems to seek legitimacy beyond their domestic traditions. Procedural fairness expressed in terms of the right to a fair trial in provisions such as Article 6 of the European Convention on Human Rights (ECHR) has emerged across Europe as the principal means of guaranteeing the legitimacy of criminal proceedings. The consequence of this is that criminal procedure doctrines are framed overwhelmingly in 'constitutional' terms-the protection of defence rights is necessary to restrict and legitimate the state's mandate to prosecute crime. Yet there are various problems with relying solely, or predominantly, on defence rights as a means of ensuring that proceedings are 'fair' or legitimate. These issues are rarely discussed in the academic literature. [Subject: Criminal Law, Human Rights Law]

John D Jackson is Professor of Comparative Criminal Law and Procedure, School of Law, University of Nottingham.Sarah J Summers is Professor of Criminal Law, Criminal Procedure and Criminology, Faculty of Law, University of Zurich.