Select Committee on Foreign Affairs Appendices to the Minutes of Evidence


APPENDIX 8

Memorandum submitted by The Rt Hon Lord Justice Otton

UK-CHINA LEGAL EXCHANGE IN CHINA

  1.1  I have been involved in discussions with Chinese legal professionals from 1998. I was asked to lead the UK delegation of senior lawyers and judges from England, Scotland and Northern Ireland to take part in a week of activities, British Law Week. The week coincided with the visit of the Prime Minister to China and was an opportunity to promote the relationship between China and the UK in a key area.

  1.2  British Law Week was the result of a partnership between the Chinese Ministry of Justice, the Great Britain—China Centre and the British Council and aimed to strengthen the bonds, which had already been formed between Chinese and British legal experts, and to develop and initiate many new contacts. It represented a milestone in Sino-British legal exchange.

  1.3  At British Law Week I led the largest delegation of overseas legal experts ever to visit China and presided over the gathering of over 400 lawyers, judges, legislators and academics from Britain and China. Talks and seminars over five days covered a whole range of issues associated with both criminal and commercial law. The demonstration of a trial in an English court, opened by Cherie Booth QC, was the starting point for a series of discussions on different aspects of the criminal justice system. At the same time a series of commercial law seminars were run to discuss the way commercial law was developing in China and abroad, and the implications of these developments for legal practice and business in China.

  1.4  As a direct result of discussions at British Law Week and again at the invitation of the Ministry of Justice I led a second, smaller delegation to China in September 1999 and visited Beijing, Chongqing and Shanghai. We ran a seminar on criminal court procedure and discussed with our Chinese colleagues points of difference and similarity between our two systems. I attach a report of the seminar at Appendix 10. This visit coincided with the visit by the Lord Chancellor whilst he was in Beijing. Once again the atmosphere between the two sides was excellent, we were received at a very senior level and we had some very interesting and fruitful discussions.

IN THE UK

  2.1  As a result of the co-ordinated approach taken at British Law Week it was agreed that legal and judicial exchange between Britain and China had reached the stage where a senior steering group could usefully advise on future direction and activities. I was asked therefore to chair the UK-China Legal Exchange Group which involves the legal profession at a senior level and in particular those individuals who have long-standing ties with China, the British Council, the GBCC, the Joint Working Party of the Law Society and Bar Council, the Lord Chancellor's Department, the FCO and DFID.

  2.2  This group meets on an occasional basis to review existing activities between Britain and China, and to plan and co-ordinate forthcoming events. Most recently the Group was instrumental in planning for the visit of the Chinese Minister of Justice and a seminar at which both the Chinese Minister and the Master of the Rolls, the Director of Public Prosecutions and other distinguished lawyers spoke.

  2.3  I have been involved in a number of visits by Chinese delegations to the UK in hosting meetings and lunches for example for the Deputy Prosecutor-General, and other high-level groups.

THE ROLE OF THE FCO

  3.1  Through my involvement in this area for the last two years I am convinced that the strength of the relationship between our legal experts contributes very clearly to the overall bilateral relationship. I am further persuaded that it is an area where much more can be done to the benefit of both sides.

  3.2  The FCO has not only funded two major events that I have led, British Law Week, and the Criminal Court Procedure Seminar, through its Human Rights Project Fund but it has also provided a very high degree of support and encouragement for the work we have been doing in both Beijing and in London. I have been particularly grateful to the Ambassador, Sir Anthony Galsworthy, for his understanding of what we are trying to do.

  3.3  I and my colleagues have met our Chinese equivalents and engaged in a dialogue that is fundamental not only to the Sino-British relationship but also increasingly to the globalisation of law and international relations. Through these visits and exchanges we are able to meet China's legal professionals at a very senior level and thereby exchange views, and in a spirit of mutual understanding, deliver some key messages on areas of concern such as the death penalty, the independence of the judiciary and the role of a defence lawyer.

  3.4  I always ensure that members of our delegation are fully alive to the fact that there continue to be areas of great concern in the human rights fields. At the same time those that have been involved with China over some time cannot but be impressed by the extent to which human rights considerations are infiltrating all aspects of development in civil and criminal procedures as well as in substantive law.

  3.5  There may well be many who see the need for international acceptability as being critical to China's emergence as a successful player on the world stage. At the same time we have encountered highly intelligent and enlightened people in positions of influence who have a genuine desire to grapple with human rights issues and the importance of the rule of law.

  3.6  I have come to the very firm view, which I know is shared by other members of the delegations that I have led, that these programmes of legal exchange have the very important results of keeping human rights and public law principles on the agenda.

  3.7  It is my perception (reinforced by information conversations with the Chinese) that they are more receptive to our style and approach to the dissemination of human rights information than to representatives from other countries who have a similar agenda.

  3.8  I am very keen to maintain the momentum of our visits at this senior level and believe that the Chinese appreciate how clearly we value the relationship in this area because of the standing of the British experts taking part in our activities. Under the framework of discussions, whether on commercial, public or criminal law, we have continuing scope for probing some of these sensitive areas. It is the development of this relationship of trust that allows, and will continue to allow, this process to take place, and I believe Britain is extremely well placed at the moment to build on the existing relationship and make a significant and definitive contribution to China's understanding of the rule of law.

  3.9  In summary I advise:

    (i)  that the dialogue at this level should be maintained and extended;

    (ii)  that the principal areas of exchange should cover;

    (a)  criminal law procedure and sentencing;

    (b)  commercial law and practice covering the law of contract and dispute resolution etc;

    (c)  public law with emphasis on the rule of law and the role of a strong and independent judiciary.

CRIMINAL COURT PROCEDURE SEMINAR
Beijing, Chongqing and Shanghai, 13-17 September 1999

1.  The Criminal Court Procedure Seminar was a co-operative project between the Great Britain-China Centre and British Council on the British side and the Ministry of Justice on the Chinese side. It arose directly out of the holding of the mock trial at British Law Week held in October 1998 and is a directly linked follow-up to that week. The UK delegation was led as it had been in British Law Week by Lord Justice Otton, and consisted of Robert Seabrook QC (a British Law Week participant and long-term exchange partner of China), Philip Havers QC (also a member of the British Law Week team) and Tracy Ayling, Barrister.

  The aim of the seminar was to build on the exposition of British criminal justice in the mock trial and the subsequent seminars of British Law Week, and show in more detail how a criminal trial was conducted. The seminar programme for the three venues is attached at Appendix A.

PRACTICAL ARRANGEMENTS

  2.  The British Council was responsible for all the logistical arrangements in China including the booking of the seminar venues, interpreters, provision of seminar packs and for liasing with the Ministry of Justice on the Chinese participation in the seminar. It was also responsible for the involvement of the Lord Chancellor at the opening of the seminar in Beijing, and for his participation in the report back session of the workshops also held in Beijing.

  3.  The Great Britain-China Centre was responsible for the recruitment and organisation of the UK delegation, for the design of the seminar programme, the collection and translation of papers into Chinese and for the overall budget control.

  4.  The Ministry of Justice was the official host for the seminar which coincided with their hosting of the visit by the Lord Chancellor. The seminars in Chongqing and Shanghai were hosted by the local bureaux of Justice. The delegation was accompanied by Kang Yu from the Department of Judicial Assistance and Foreign Affairs at the Ministry of Justice.

5.  EVALUATION

Beijing

The seminar was very well attended in Beijing and a number of interesting points came out of the discussion periods after the formal presentations. Professor Chen Weidong, Law Faculty Renmin University voiced the opinion that as judges in China were still not free of government influence the criminal process had not yet been perfected; he advocated complete independence for Chinese judges. Other points made were that at present in China the prosecution has the dominant position over the defence and therefore the role of the defence lawyer needs to be strengthened (for example better access to the case file before the trial begins); defendants should have the right to silence; expert witnesses and witnesses in general should be used more in court; and China should have some defined rules and regulations regarding the appearance of witnesses in court. Other points made (listed here in no particular order) were that there needed to be more protection for the defence lawyer—China's legislation has no clearly defined immunity for lawyers at present—and that it was time for there to be a review of criminal evidence.

  A question that came up in Beijing but also in the other two centres was what do defence lawyers do when their client pleads guilty to a crime the lawyer knows he did not commit.

  Some of these issues were pursued at greater length in the workshop sessions the following morning. Because of the extra time for meeting and discussion in Beijing there was a feeling that more ground was covered and in greater depth. It was also felt that the seminar came at a time of great debate amongst China's legal professionals on these issues and that our UK experts were part of that process.

Chongqing

  In some contrast to the audience in Beijing the participants in Chongqing at first appeared more reticent in asking questions but soon warmed up. A university professor from the South Western University of Politics and Law, Sun Changyong, was very well briefed in common law and lad a number of questions on the role of the defence lawyer and the recent changes in the absolute right to silence. In general the questions were less sophisticated than in Beijing and Shanghai and the practical exercise showing the rule of the Police and Criminal Evidence Act codes on the admissibility of evidence produced no reaction from the Chinese side. It was important to visit Chongqing as it undoubtedly is more representatives of the situation in China generally than the sophisticated and developed centres of legal thinking, Beijing and Shanghai.

Shanghai

  The presentations on the Chinese side were much more formal than they had been in Beijing and the atmosphere overall was more challenging. The Shanghai audience was critical of some of what was being said by the British side. In the politest way they voiced their doubts about our system and in particular the rules of evidence as being unworkable on a practical level. They also asked the UK delegation where they thought reform should take place in the UK's system of criminal justice. There were a number of Chinese lawyers in the audience who carry out defence work and there was a definite feeling of professional interest talking to professional interest. There was however less of a feeling of dissatisfaction with the system than in Beijing. There were questions again on the admissibility of evidence and the comment that China needed stricter rules of evidence. There were questions to understand the role of magistrates and some concern shown that they might be too influenced by local concerns. The UK experts tried to show how rigorous were the safeguards against the miscarriage of justice, and how strong professional ethics are in the UK. It is hard to know how much of these messages resonated with the Chinese side.

6.  THEMES

  A number of points came out in each seminar. First that the role of the defence lawyer needs to be strengthened in China, in particular access to all the evidence available to the prosecution; secondly that China has a very inadequate system for procuring the appearance of witnesses in court; and lastly that defence lawyers in the audience were very concerned about how the UK dealt with a defendant who said he was guilty when he was not. The message that came across from the UK side is that there are a number of safeguards built into the criminal justice system which aims to avoid the miscarriage of justice.

  It also became clear that in spite of the changes brought about by the new Criminal Procedure Law (1996) there are still significant differences between our two systems, for example that in the UK the prosecution can never appeal against a verdict whereas in China it can and that China still has 67 offences which carries the death penalty.

7.  CONCLUSION AND RECOMMENDATIONS

  This seminar continued to strengthen the existing good relations between Britain and China in the area of legal exchange and allowed a frank discussion of similarities and differences in the two systems of criminal justice. The Ministry of Justice received the UK delegation at a very senior level in both Beijing (the Minister of Justice hosted a dinner), and Chongqing (the Vice-President of the local People's Congress hosted a dinner), and at a senior level in Shanghai (the Director of the Bureau of Justice hosted a dinner). It was very encouraging to hold a follow-up activity to British Law Week so soon (within the year) and served to underlie the special relationship in this area.

  8.  The audience in each venue was largely very well informed on the theoretical differences between our two systems. It would be valuable now to provide more of an opportunity for debate and discussion. It is recommended that any follow-up in this areas choose a more narrow range of topics and highlights key points for a workshop approach rather than a straight presentational approach thereby facilitating a deeper exchange of ideas. One area that could usefully be treated in this way is pre-trial procedures and the working of Britain's Police and Criminal Evidence Act. Another area would be the work of the defence lawyer and could involve some very practical discussions, possibility even the shadowing of a defence lawyer in Britain to see how the theory works in practice.


 
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