Truth-finding, procedural traditions and cultural trust in the Netherlands and England and Wales
| Author | Stewart Field,Chrisje Brants |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| DOI | http://doi.org/10.1177/1365712716658893 |
| Subject Matter | Articles |
The International Journal of
Evidence & Proof
Truth-finding, procedural
2016, Vol. 20(4) 266–288
ª The Author(s) 2016
traditions and cultural trust in
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the Netherlands and England
DOI: 10.1177/1365712716658893
epj.sagepub.com
and Wales: When strengths
become weaknesses
Chrisje Brants
Northumbria University, UK; Utrecht University, The Netherlands
Stewart Field
Cardiff University
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 tra-
ditions 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 assump-
tions 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.
Corresponding author:
Stewart Field, Cardiff University, Law and Politics Building, Museum Avenue, Cardiff CF10, UK.
E-mail: FieldSA@cardiff.ac.uk
Brants and Field
267
Keywords
procedural tradition, truth-finding, miscarriages of justice, Netherlands, England and Wales
Introduction: Wrongful convictions, procedural traditions
and cultural trust
In this article we seek to assess the significance of what we term ‘cultural trust’ in relation to wrongful
convictions in England and Wales and the Netherlands, in the light of the adversarial and inquisitorial
procedural traditions which still underpin criminal process in the two countries. International surveys
identify many similarities across jurisdictions from both traditions in the direct causes of miscarriages of
justice: abuse of power, mistaken eyewitnesses, dubious or misunderstood expert evidence and diverse
professional failures by judges, defence lawyers, police and/or prosecutors (Huff and Killias, 2008,
2013). More broadly, there is evidence of the effect of the general psychological phenomenon, also
well-known from experimental research, confirmation bias or tunnel vision. This suggests that infor-
mation is filtered through an established lens. Where we have a pre-existing view about the facts
(for example a suspect’s guilt), we do not deal symmetrically with subsequent information. We tend
to seek to confirm our pre-existing hypothesis and have difficulty in ‘seeing’—or seeing the significance
of—facts pointing to alternative explanations (Brants, 2013: 163–166). This has been a key factor in the
story behind miscarriages of justice in many jurisdictions.
While there are clearly many similarities in the particular underlying causes of wrongful convictions
and in general psychological effects in play, a comparative study focused on procedural traditions can
nevertheless be fruitful. Jurisdictions from the adversarial and inquisitorial traditions differ significantly
in the guarantees that each offers against wrongful conviction in terms of expectations in professional
conduct, in ways of assessing and responding to potentially misleading and problematic evidence, and
thus also in the definition of the roles and relationships of professional actors. These key differences are
linked to different underlying theories as to how facts and truth are to be found. Sometimes these
concepts of truth-finding—or at least elements of them—are explicitly stated in policy documents and
legislation.1 But often they are set out, if at all, only in fragmented or incomplete terms and have to be at
least partly constructed by identifying the underlying assumptions of the particular procedural tradition.
For jurisdictions primarily influenced by the inquisitorial tradition, the emphasis has been on the
active truth-finding judge and the dossier. Thus in the Netherlands, a thorough investigation supervised
by an impartial prosecutor,2 with the resulting evidence both for and against guilt recorded in an official
file, is assumed to provide an active fact-finding judge with the capacity to find truth at trial. Within the
adversarial tradition in England and Wales, autonomous party rights to collect the evidence that suits
their case are said to provide a basis for strong defence narrative building and the opportunity to
effectively challenge prosecution witnesses at trial through cross-examination. This allows the equality
of arms in argument at trial upon which accurate adversarial fact-finding is thought to depend.
But because such underlying assumptions are linked to a particular procedural tradition, they have
accumulated normative weight over time. As H Patrick Glenn has put it (2010: 17):
That which has been captured from the past is inherently normative; it provides present lessons as to how we
should act . . . The judgment of many, down through time, confers authority, even legitimacy—at least pre-
sumptively—on the lessons of tradition.
1. For example, Art. 81, French CCP on the duties of the examining magistrate to seek out both exculpatory and inculpatory
evidence.
2. Originally this would have been an investigating judge comparable to the French juge d’instruction.
268
The International Journal of Evidence & Proof 20(4)
So these are not just assumptions into which individual practitioners have been socialised and by
which particular professional lives have been lived. The legitimacy of long-established collective prac-
tice is rooted in them.
One way of expressing this is in terms of cultural trust: different jurisdictions have their own
particular and critical points of trust where fundamental assumptions are made upon which the fact-
finding capacity of the system is based. These points of cultural trust are rooted in what are perceived
within the jurisdiction to be traditional strengths. However, these may become points of weakness when
the assumptions upon which they are built no longer correspond to reality. What if the investigation in
the Netherlands is neither thorough nor impartial, the dossier is incomplete and the judge unwilling or
unable to fulfil an active role? And what if the defence in England and Wales in fact lack the capacity or
will to conduct active independent pre-trial investigations? Here cultural trust can be damaging because
it may prevent acknowledging weaknesses where this contradicts established wisdom. Furthermore, the
assumptions of a particular procedural tradition, while not excluding change, may also make it difficult
to think through or accept new ways of constructing roles and relationships within criminal justice where
this runs contrary to what have come to appear as self-evident truths. This may make it more difficult to
reform systems coherently even where serious miscarriages of justice have been acknowledged as being
based on recurring problems.
It may seem counterintuitive to emphasise trust as potentially dangerous, because it is generally seen
as a positive, indeed essential, element in social relations in that it both expresses and reflects stability in
mutual expectations. Rasmus Wandall argues (2015: 285–286) that from a functional point of view, trust
can be described as a remedy for the inevitable uncertainty of social life—of what to expect from other
people, groups, institutions or from whole systems. But we also talk about ‘taking something on trust’ to
identify a situation where we assume something to be true without (sufficient) evidence. And in criminal
matters abusing trust leads to aggravated sentences exactly because it exploits vulnerability, often a
vulnerability generated by established expectations of a person or a role (Ashworth, 2015: 173).
If the vulnerability created by trust is linked to established expectations, then comparative analysis
illustrates how expectations and trust are culturally contingent. David Nelken emphasises the importance
of examining ‘decisions to trust, whom to trust, and the consequences of trusting’ in comparing the legal,
political and cultural relations of different criminal justice systems (1994, cited by Wandall, 2015: 286).
Trust relationships, he argues, are integrated in the design of criminal justice, in ‘its purposes and
functions, its institutional settings and structures of accountability, the limits of...
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