Abstract
Concerning criminal procedure, this book takes a closer look at the interaction between converging tendencies and legal culture and tradition. It does so by studying the development of criminal procedure in the Netherlands and England and Wales. I have selected England because it is the birthplace of the adversarial tradition
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and therefore the most obvious place in Europe to look at if one wants to know how that tradition has fared in recent times. The inquisitorial tradition is represented by the Netherlands. The Dutch system has historically been a clear and strong exponent of the inquisitorial tradition, and it also the jurisdiction that is most accessible to me: the language is my mother tongue, and having grown up there and having been trained as a Dutch lawyer also means that I know the legal culture intimately. The present research covers the development of the procedural systems in both jurisdictions between the 1960s and 2010. Procedural systems change constantly, and convergent tendencies are by no means a new phenomenon. But the developments after the second World War are of particular significance for the theme of convergence and tradition. The 60s mark the beginning of the influence of the ECHR, the expansion of the welfare state featuring active state intervention in and regulation of society, the general emancipation of citizens, and the emergent focus on individual rights and liberties. I have ended the research coverage in the year 2010 for practical reasons: it is recent enough to include the latest major reform projects in both jurisdictions, while it is also sufficiently long ago to allow the fundamental impact of those reforms to be assessed. As a consequence, this book does not intend to give an overview of Dutch and English criminal procedure as it stands today; while I have described the most recent state of the law wherever possible and relevant, the book is best approached as a historical work that takes a close, analytical look at one particularly interesting period of the recent history of criminal process. The focus of this book is on the prosecutor. Due to the internal and external influences mentioned before, his role and position in the evidentiary process has been particularly affected in both countries. Therefore, it is with regard to the prosecutor that clues for convergence are the strongest: in how the prosecutor is expected to contribute to truth finding and fairness, how that contribution is guaranteed procedurally, and how his role is checked and balanced by the involvement of other participants such as the courts and the defence. This inquiry therefore concerns the prosecutor’s role and position in the evidentiary process: his involvement in investigating evidence, his determining relevance and reliability, his duties with regard to the lawfulness and completeness of the investigations, and his presenting the evidence at trial. The traditional roles and positions of the prosecutor in England and in the Netherlands up to the 1960s show significant differences, owing to the adversarial and inquisitorial traditions. In the Netherlands, he is traditionally positioned as a quasi-judicial figure acting in concert with the judge, committed to ensuring that all relevant incriminating and exculpating evidence is found and heard in a reliable and lawful manner. In that way, the prosecutor is traditionally expected to give effect to the inquisitorial ideal of an official inquest into the truth. In England, the prosecutor – in practice often the police, though in theory almost always a private citizen – is traditionally viewed as essentially partisan, his task limited to finding and presenting the incriminating evidence with a view to adversarial debate with the defence. Obviously, the traditional role and position of prosecutors in the Netherlands and England is almost diametrically opposed, reflecting the distinct legal-cultural approaches to fair truth finding in both countries.
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