Home / Articles & Publications

International criminal justice reform - A Barrister's Perspective

We spend years at the Criminal Bar dealing with all aspects of crime, whether we prosecute, defend or like myself, do both. Occasionally, if we allow ourselves to be dragged into dinner party conversations, we may talk about why crime occurs and how it might be reduced. We inhabit this world on the boundary of human behaviour; we observe a great deal and analyse it, yet we do not often really seek hard, practical answers to those questions.

As legal adviser on organised crime in the Organization for Security and Co-operation in Europe Mission to Serbia from 2003-07 I had to suddenly come up with solutions. How to reduce organised crime, transnational crime and major crime? How might the institutions within the criminal justice system, in particular the prosecution, work more effectively? What laws needed changing and how? If changed, how would these laws be successfully implemented?

These questions are not unique and are asked in all transitional countries. They are also asked in the UK today. How does one reduce crime or at least stop the slide to greater crime without throwing the baby out with the bath water, without losing our cherished liberties? I considered these questions when I was Director of Public Prosecutions of Belize from 1999-2001 and was asked to consider them again more recently in the summer of 2007 when I was the Foreign and Commonwealth Office expert on the EU Needs Assessment Mission to the Philippines, looking at how to reduce a spate of extra judicial killings.

The Bar is a world replete with opportunities for seeking wise counsel, which probably sits next door in your own chambers in the form of a more senior barrister who is generously willing to give his time and advice to you, if you want it. It is quite a challenge to be away from that pool of knowledge and to realise that the only person who might understand many of the issues or have some solutions to offer is oneself.

Criminal barristers bring some strong skills to this kind of work. We have spent almost every day in court and know from a practical perspective how things work. We have also seen various forensic techniques in operation and know what evidence they produce, its weight and how to present it. We have looked at and thought about sentencing and know what a good court system is. However, there are areas where we are not usually so skilled. These might include working within organisations where we have to be part of a team and thus have to temper our wish to be goal driven. This becomes more challenging when the group is multinational and communication issues and differences in fundamental legal principles may arise.

Serbia and its particular challenges

Belgrade is a large city where fluent English is spoken by only a relatively small percentage of those within the legal establishment. As the capital of an historically sophisticated area, sensitivity was crucial in conveying ideas to senior and experienced legal professionals who would have been very unreceptive to being lectured at by an outsider. Recent history also meant that it was wise for an outsider to build up some local respect for his worth and trust in his motivations before moving forward too fast in advocating his ideas. There was also the immediate challenge of dealing with a system based on civil law. This meant codified laws, no juries and prosecutors having a less adversarial court role than I was used to. Indeed one of the main lessons I learnt was that any reform must be based on the specific and unique requirements of the particular state in question and simply "cutting and pasting" what works somewhere else is unlikely to be successful.

Reforms

Assistance with the introduction of witness protection was a prime example of the need to look at the local picture. This included the introduction of witness collaborators and the issue of how to deal legally and practically with these ‘super grasses'. High-end witness protection, that is witness relocation, was challenged by lack of financial resources on one side and the homogenous nature of the Serbian population on the other. Although the population approached 10m, they are a very close-knit and family centric people, so only a few questions would be needed to relate one Serbian to another through family, school or other link, making the problems in hiding Serbians readily apparent. Likewise, introducing asset seizure and confiscation immediately ran into historic questions about the danger of misuse of such powers, which are universally recognised as being liable to abuse. In contrast, money laundering developments were affected by capacity questions in dealing with this complex field of work.

There were other reforms which did not have such obvious dangers but were potentially difficult due to recent history. These included developing all forms of regional and international cooperation. In fact, I was impressed that the Serbian authorities showed great imagination and commitment to moving forward and it was possible to develop many international links using different methodologies.

The process began with bringing a high level Serbian delegation focused on witness protection to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague in 2003. It also included providing assistance with the setting up of a regional prosecutors network-the South Eastern European Prosecutors Advisory Group (SEEPAG) which was initially chaired in Belgrade. I also assisted in developing links with the Italian Anti Mafia Prosecution (DNA), the Swedish prosecution, prosecution bodies in the UK (CPS, SFO and AR A) and asset seizure agencies in Ireland (CAB) and Belgium (COSC) to mention a few.

Useful links developed with the International Association of Prosecutors (IAP) which resulted in the attendance of high level Serbian delegations at IAP annual conferences (Copenhagen 2005 and Paris 2006) and a regional conference (Sofia 2006) as well as the IAP providing speakers to two prosecutors' conferences in Belgrade and providing expertise to develop a Serbian Prosecutors Code of Ethics. These international links proved invaluable in training prosecutors and other relevant lawyers in special investigative techniques made available by new organised crime laws.

Developing law

Involvement in the area of developing law was also a challenge and I found myself deeply involved with the Criminal Code, Criminal Procedure Code and Law on Organised Crime, as well as advising on other laws, including the Police Law. These legal developments required greater coordination with the Ministry of Justice which created different challenges than those associated with working with legal professionals such as prosecutors.

A particular challenge was being appointed the Mission member dea ling with terrorism which resulted in focus on ratification of the UN Conventions on Terrorism. For me this threw up issues which relate to the great specialisation needed now in sub divisions of criminal law and the difficulties of being a jack-of-all-trades even within the field of criminal law. I introduced and championed a push towards developing capacity to fight high-tech crime, in particular cyber crime. This required developing fully trained experts, as well as advocating for a law and for the setting up of a small institution consisting of a cyber crime prosecutor and dedicated staff.

Privileged opportunity

My experience was that there is a great deal of inherent respect for the professionalism and high principles of the Bar of England and Wales overseas. This means that one is immediately at an advantage of being viewed positively. It also confers the responsibility of upholding that privileged position. Barristers have considerably more to give than we imagine. London, where I usually practise, is full of clever, dedicated, principled and hard working criminal barristers. It is all too easy to lose sight of the gifts we individually have within this pool of talent.

We tend to take our remarkably fair and decent legal system for granted when living in the UK. Look further afield, however, at what happens when the Rule of Law is not the norm and one is confronted with fearful consequences in the loss of human security, economic safety and basic rights. For these reasons, what we can give and how important that gift is, I would encourage any criminal barrister who has the opportunity to serve in a legal capacity overseas to grasp it with both hands and energetically contribute as much as you can to effective reform and strengthening of the Rule of Law in whichever country you have the privilege to work.

Rory Field is a tenant of 15 New Bridge Street Chambers. He is currently serving as DPP of Bermuda. From 1998-99 he was Treasurer of the Bar Human Rights Committee of England and Wales (BHRC).

This article is reprinted from the 2008 issue of Counsel Magazine.

1 February 2008

Top of page