The Challenge of Universal Norms: Securing Effective Defence Rights Across Different Jurisdictions and Legal Cultures
| Date | 01 October 2019 |
| Published date | 01 October 2019 |
| DOI | http://doi.org/10.1111/jols.12185 |
| Author | Jacqueline Hodgson |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, ISSUE S1, OCTOBER 2019
ISSN: 0263-323X, pp. S95±S114
The Challenge of Universal Norms: Securing Effective
Defence Rights Across Different Jurisdictions and Legal
Cultures
Jacqueline Hodgson*
This article considers the contribution of comparative empirical
research in shaping best practice norms for custodial legal advice, and
helping to address challenges in their implementation. It traces the role
of ECtHR decisions and EU Directives in developing transnational
norms to strengthen suspects' right to legal assistance. Recognizing
how these norms are translated into the national context, it considers
the value of comparative empirical and socio-legal research in helping
to develop legislative and training measures; how roles and respon-
sibilities are shared out in different legal systems and traditions; and
practical arrangements that facilitate or inhibit the effectiveness of
custodial legal advice in practice. There is a tension between framing
transnational norms that are sufficiently universal to attract support,
without being so broad as to lack any transformational force, and
sufficiently detailed to ensure respect for core protections without
imposing legal requirements too rigid and difficult to be absorbed into
diverse processes of criminal justice.
INTRODUCTION
Taking the example of custodial legal advice, this article considers the
contribution of comparative empirical research in the shaping of trans-
national best practice norms, and in understanding and helping to address the
challenges faced by those responsible for their implementation. It traces
briefly the roles of the European Court of Human Rights (ECtHR) and the
European Union (EU) in developing the parameters of standards designed to
strengthen suspects' rights in polic e custody, before considering the
contribution of comparative empirical research in helping to define and to
S95
*School of Law, University of Warwick, Coventry CV4 7AL, England
Jackie.Hodgson@warwick.ac.uk
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
translate legal norms into practices that are effective on the ground. Com-
parative studies play an important part in this process, providing accounts of
the structure and functioning of different legal systems. However, where
these rest on descriptive and formal accounts, grounded in the text rather
than the practice of law, their value is limited. I argue that a comparative,
socio-legal empirical approach provides a deeper knowledge and under-
standing of the ways that legal systems operate, comparing roles and
procedures, and exploring what motivates and constrains the daily practices
of legal actors in different jurisdictions. By learning from the experiences of
different jurisdictions in this way, we are better able to shape the develop-
ment of reforms and to offer suggestions for effective implementation across
different processes of criminal justice.
The discussion draws on my own experience as a socio-legal and com-
parative researcher, conducting observational fieldwork, focus groups and
interviews across several jurisdictions, over several decades. England and
Wales and France formed the initial comparative focus of my research,
1
with
later studies more explicitly oriented towards improving the procedural rights
and protections in place for suspects across a range of jurisdictions and
identifying the conditions under which they might be adopted elsewhere. Two
particular empirical studies are discussed here: Inside Police Custody and
Interrogating Young Suspects. These were collaborative, cross-country studies
funded by the European Commission, designed to identify and understand best
practices in order to inform the development of effective EU-wide procedural
protections for adult and juvenile suspects and accused persons.
2
DIFFERENT WAYS OF COMPARING
Conducting legal research across different jurisdictions provides useful
baseline information for any study that aims to identify, understand or
develop transnational best practices. When assessing the safeguards provided
for suspects, for example, our starting point might be whether or not different
jurisdictions make legal provision for suspects to have access to a lawyer
whilst in police custody. However, a simple yes/no response is of limited
value. Going beyond a relatively static, multi-country collection of informa-
tion, actively to compare the nature of provision across systems, provides a
S96
1 See, especially, J. Hodgson, French Criminal Justice: A Comparative Account of the
Investigation and Prosecution of Crime in France (2005).
2 J. Blackstock et al., Inside Police Custody: An Empirical Account of Suspects' Rights
in Four Jurisdictions (2014); M. Vanderhallen et al., Interrogating Young Suspects:
Procedural Safeguards from an Empirical Perspective (2016). In addition to con-
ducting research studies, I have also been involved in a range of EU impact
assessments of new and existing measures such as legal aid, legal advice, pre-trial
detention, and the impact of Brexit on criminal justice cooperation.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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