Issues of Convergence: Inquisitorial Prosecution in England and Wales
Issues of Convergence: Inquisitorial Prosecution in England and Wales, Wolff Legal Publishers, 2011
108 Pages Posted: 21 Dec 2013
Date Written: 2011
Abstract
This book reports the results of an exploratory study of the development of the role of the Crown Prosecution Service in England and Wales. The English criminal procedure system is firmly rooted in the historical adversarial tradition, which means that its mechanisms of truth finding are construed around the notion of two equal parties who investigate and present their own evidence and arguments in a debate before a passive tribunal of fact. This implies, firstly, that the defence has a strong, autonomous role to play, whereas any notion of a public prosecutor who conducts a full investigation into the alleged events and presents the results to the court is clearly absent. When the CPS was set up in 1986, its role was kept very limited to respect the adversarial principles of truth finding. However, in the course of time the powers and tasks of the CPS have gradually developed and by now show a striking resemblance to those of inquisitorial-style prosecutors as we find them, for instance, in the Dutch criminal procedure system. We argue that this development has implications for the type of truth finding on which the English system is predicated: it becomes more inquisitorial. Truth finding now requires that the police conduct an impartial investigation into all relevant incriminating and exculpating evidence, and that the CPS disclose the relevant results to the defence. This implies both an inquisitorial role for the prosecution and a less autonomous, thus less adversarial, role for the defence. The question, however, is whether the English procedural system is adapted to allow for such truth finding to take place, and whether it provides for sufficient guarantees. The institutional context and legal culture continue to be dominated by adversarial notions, causing incoherence and conflict with the more inquisitorial role for the prosecution.
Keywords: Criminal procedure; convergence; legal culture; legal tradition; prosecution
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