Book Reviews Hatchard, John, Barbara Huber, and Richard Vogler (eds). Comparative Criminal Procedure. London: The British Institute of International and Comparative Law, 1996. Pp. xii, 256. £29.50. Crime may be a universal problem, but the process by which criminals are brought to justice varies widely around the world. It is reasonable to hypothesize that the convergence of global economic, monetary and commercial systems will eventually bring greater consistency to criminal justice codes as well. Such consistency would be welcome, particularly with regard to providing defence for the indigent, since it will facilitate a neglected area of international law currently fraught with contradictions. Comparative Criminal Procedure contributes a valuable first step in this process by surveying the criminal processes of several major European legal systems. As European legal systems evolve with the European Union, practitioners and academics are paying more attention to the way their neighbours process criminal cases and the principles of justice that guide their decisions. Only two other major texts on comparative criminal procedure have been published in English in this decade. The first addresses the regulation of police investigation (C. Slobogin, Criminal Procedure: Regulation of Police Investigation: Legal, Historical, Empirical, and Comparative Materials (1993)); and the second, addresses international comparative criminal procedure (C. Bradley (ed.), Comparative Criminal Procedure: An International Study (1998)). Hatchard, Huber and Vogler's book is a clear window into the most influential criminal justice systems in Europe: France, Germany, and England and Wales. The value of this book is that it is like a 'Michelin Guide' that will walk the traveller through the criminal legal process in three most influential European systems. As a useful reference guide for the international practitioner and legal academic it explains how specific processes have developed historically, and where future efforts at procedural reforms are heading. In most chapters the text moves beyond the black-letter procedural rules. For example, it describes how different police agencies are structured, the scope of judicial authority, overviews of legal education and practical training, histories of the jury trial and even references to a web site or two. But, don't be misled. This is not a 'how to' trial practice manual. The practitioner should be aware that more complex questions of criminal procedure require further research and informed comparisons than those provided in this text. The book enlightens the reader as to how closely procedures are tied to social and institutional undulations. As societies and governments change, institutions evolve and procedural reforms must keep pace. For example, in Europe, pressures to reform criminal procedures come from many corners, especially rising crime rates and decreasing public confidence in process. As one author explains, in England and Wales the absence of any effective judicial scrutiny of the prosecution's case before trial wastes precious resources and undermines the public confidence in the efficacy of the administration of criminal justice. From the start, the authors note that the 'aim of this examination of the three great European criminal justice systems is not to provide a stock of materials for potential transplant surgery but to demonstrate how the laws of motion of different forms of procedure are complex and operate in radically different ways in different environments' (at 13). The book does achieve this stated goal. The book also provides candid assessments of procedural realities for a criminal defendant. For example, a defendant in France 'cannot escape continual interrogation'; thus, it is rare for an accused to remain silent at the pre-trial stage. But one learns that the French have an absolute requirement of a trial in all cases, and because there must always be a trial, plea negotiations are practically non-existent. The French believe this is a more effective means of ensuring fairness than procedures that protect the English concept of the right of silence. This text illustrates how most French jurists believe 'that the English concept of the "guilty plea" encourages the police to extort confessions by improper means, safe in the knowledge that the resulting pragmatic decision to plead guilty will effectively hide their activities from judicial enquiry' (at 72). From an American perspective where pervasive plea bargaining allows for police abuses to go unchecked with little, if any, judicial review, this is a deeply persuasive argument, particularly for the indigent defendant. In several places, the authors demonstrate how some of the oldest legal systems still struggle to close the schism between theory and practice. For example, although each system provides the right to counsel, the reality associated with providing an adequate defence for the indigent is a universal problem. In the French system, free legal advice is 'available generally but the under-funding of the scheme and the low status of participating lawyers has led to serious difficulties in practice' (at 33). Similarly, the aspirational function of the defence lawyer in Germany is to safeguard the defendant's interests and to ensure that the proceedings are conducted legally pursuant to the Criminal Procedure Code. Although there is this right to legal representation at all stages in the German system, the defence lawyer does not 'enjoy the same central position as his counterpart in Anglo-American criminal procedure' (at 140). Rethinking one's basic presumptions about criminal justice procedures is the value of comparative work, and this book easily moves the reader into that process. Through the succinct paragraphs and clear headings, the authors establish major guideposts for understanding the basics of each country's criminal process. Each chapter follows the same framework of issues, which include: the sources of criminal procedure, overview of criminal procedure, general principles governing criminal procedure, rights of the accused, phases of the criminal process, agencies involved in the criminal justice system, other participants in the criminal process, sources of evidence, finality, special forms of procedure, consensual disposal, and proposals for reform. Although there is no index, the consistent use of the same headings within each chapter makes it easy to compare one topic heading in all three systems by merely flipping through the outlines provided at the beginning of each chapter. Bibliographies at the end of each chapter, as well as flow diagrams and charts all aid in conceptualizing each criminal justice system. The weakest chapter is on 'Comparisons between the Jurisdictions'. Seven issues are discussed almost too succinctly in this final chapter: (1) independence of and control over the police; (2) the position of the defendants vis-à-vis the prosecution enquiry and the absence of a formal pre-trial phase; (3) the status and function of the public prosecutor; (4) the place and significance of the right to silence; (5) the selection and operation of experts; (6) consensual disposal; and (7) appeals. This is the chapter where the reader expects the authors to radiate comparative expertise. It seems that the major omission in this last chapter was the lack of practical examples, real cases and hypotheticals to illustrate important comparative links. Nevertheless, this text well deserves a place on the library shelf as a reliable reference book for understanding the history and current developments in the criminal procedures of France, Germany, England and Wales. As borders are relaxed, Internet transactions flourish, and crime becomes more transient throughout Europe, practitioners from other countries will need to educate themselves on the different approaches to investigation, trial, judicial decision-making, evidence, and the consensual disposal of cases. Comparative Criminal Procedure is a good place to start. Cait Clarke Harvard Law School
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