Truth-finding, procedural traditions and cultural trust in the Netherlands and England and Wales

Abstract

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.