The role of the defence in criminal justice has been interpreted differently across jurisdictions. Existing research indicates that this is related to differing cultural assumptions about attempting to find “truth”, and the importance afforded to procedural rules. Effective legal representation for defendants is generally considered to be a key safeguard against miscarriages of justice.
This project will undertake a comparative review of the construction and implementation of the role of the defence in England and Wales and Germany, in order to investigate the relationship between the role of the defence, cultural beliefs surrounding the process of “truth-finding”, and miscarriages of justice.
Initially, the research will provide an in-depth review of the scope, powers, limitations and duties of the defence in Germany and in England and Wales. This detailed evaluation will consider the role of the defence at each stage of both jurisdictions’ criminal justice process, and will concentrate on examining doctrinal sources. This will be supplemented by interviews with defence practitioners from both jurisdictions, in order to gain insight into their training, their professional cultures, and the practical restrictions they face in carrying out their work. I will apply the concept of “legal culture” to my findings, to consider whether differences in the role of the defence indicate cultural assumptions about how we uncover truth and the importance of upholding procedural traditions in adversarial and inquisitorial justice systems.
The project will then progress to an analysis of existing quantitative data regarding miscarriages of justice for both jurisdictions. My findings here will be considered alongside my initial conclusions about the role of the defence in England & Wales and Germany, to examine whether there are identifiable causes of miscarriages of justice linked to the role of the defence.