Fairness in Criminal Proceedings: Concluding Thoughts and Further Questions

Abstract

First paragraph: A first, careless, glance at this book ’ s title — Obstacles to Fairness in Criminal Proceedings — might suggest an important but quite limited inquiry: authors are to identify a range of obstacles that inhibit or undermine the fairness of criminal proceedings in the various jurisdictions from within which they are writing, and perhaps go on to think about whether and how such obstacles could be overcome. That kind of inquiry does indeed play a central role in some of the chapters. For instance, Kelly Pitcher asks whether rules concerning the exclusion of improperly obtained evidence efficiently serve (and are best understood as serving) the ends of procedural justice. John Jackson and Sarah Summers, Dimitrios Giannoulopoulos, Wolfgang Wohlers and David Sklansky discuss aspects of the right to legal assistance, and the ways in which its institutional actualisations can serve or hinder fairness. Hannah Quirk focuses on the ways in which the right of silence has been curtailed in recent years, and explores the effects of such curtailments on the ‘ normative expectations ’ that are laid on defendants. Nadja Capus discusses whether a reliance on written records, rather than on oral testimony, is inimical to fairness. However, as the editors and contributors make clear, the book ’ s title actually leads us into several much larger questions. One question concerns the extent of the problem of ‘ obstacles to fairness ’ : just how radical, how deep, is the ‘ irrelation between the professed fair trials standards to which numerous domestic and international systems subscribe and the reality that many criminal proceedings end without these standards being adhered to ’ ? 1 How might this gap (or gulf) between professed standards and actual practice be narrowed ? But other questions take us beyond the problems of even a radical mismatch between professed standards and actual practice.