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This paper explores select themes relating to legal culture in European criminal justice post-Brexit by focusing on aspects of the common law trial process in the Irish courts. The incorporation of EU law and the ECHR within the domestic legal order has necessitated the nurturing of a constructive co-existence with the country's longer standing constitutional and common law traditions. Ireland and the United Kingdom have collaborated closely as common law Member States and the departure of the UK from the EU will affect Ireland's position in EU criminal justice in many and varied ways. Using the examples of victim participation in criminal trials and pre-trial access of suspects to legal assistance, the paper seeks to illuminate trends of consonance and dissonance in Ireland's relationship with European law. Drawing on the shared commitment to the protection of fundamental rights in the EU and the ECHR, the discussion reflects on some of the longer term implications of Brexit for the common law presence in European criminal legal culture. [ABSTRACT FROM AUTHOR]

Directive 2012/29/EU, establishing minimum standards on the rights, support and protection of victims of crime, forms part of a package of measures designed to ensure that victims have the same basic level of rights throughout the EU regardless of their nationality or the location of the crime. One of the Directive's innovations is a suite of measures designed to facilitate the participation of victims in the criminal process. The provisions include a right on the part of victims to be heard and a right to have their dignity protected when giving evidence. Although there has been a gradual strengthening of victims' rights at national and international level, the concept of participation remains poorly defined and practice varies widely across the EU. The issue is particularly controversial in common law systems where victims are not assigned any formal role in the trial process. The traditional adversarial trial, designed to accommodate the prosecution and the defence, poses a structural obstacle to reform. However, recognising the limits of EU competence to legislate in the area of criminal justice, the member states have been afforded a wide margin of appreciation when implementing the Directive's provisions on participation. [ABSTRACT FROM AUTHOR]

In ‘Confronting Confrontation’, published in 2012, Professor Mike Redmayne elucidated a critique of the relatively strong confrontation rights embedded in the US constitutional and ECHR traditions. He argued in favour of an alternative, more narrow conceptualisation of confrontation as the positive right of an accused to cross-examine available witnesses. Drawing on some of the threads stitched in ‘Confronting Confrontation’, the present article explores the challenge of applying the ECHR confrontation right in common law courts. Particular emphasis is placed on the need within the Strasbourg doctrine to assess the potential significance of the evidence to the prosecution’s case at trial. [ABSTRACT FROM AUTHOR]

The article discusses on the reform of law and practices on juries and expert evidence in the U.S. It explains the relationship between empirical research of jury decision-making and reform of criminal justice and policy through the use of the amicus brief in the liability case of Kumho Tire Co. v. Carmichael. Innovations that can be used to enhance juror involvement and comprehension in court proceedings, which include interactive virtual simulations and computer animations, are discussed.

The problems associated with the use of expert evidence by the criminal courts have been the subject of ongoing controversy. The Law Commission of England and Wales has recently added its voice to the debate with the publication of a Consultation Paper on the admissibility of expert evidence. This article examines the current law governing the reliability of expert evidence. It analyses the Law Commission's recommendation for the creation of a new statutory rule which would require the trial judge to assess evidentiary reliability as a matter of admissibility. The authors chart the emergence of the US Daubert test, on which the recommendation is based, and consider the lessons to be learned from American experience. While welcoming the recommendation in principle, the authors argue that the crafting and implementation of the proposed admissibility requirement would present formidable challenges. [ABSTRACT FROM AUTHOR]

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This article focuses on the relationship between two perennial items on the reform agenda, direct access to the Community courts for private applicants, and requests by the national courts for preliminary rulings from the Court of Justice on questions of Community law. Ongoing developments suggest that the time is ripe for renewed debate concerning the ability of existing mechanisms to secure effective access to justice for the European citizenry. [ABSTRACT FROM AUTHOR]