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
BritainChina 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
lawyerChina's legislation has no clearly defined immunity
for lawyers at presentand 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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