The primary aim of this work has been to establish a foundation for further study rather than to examine any detailed problem in depth. The foremost part of the conclusions must consequently be devoted to pointing out those areas where in my opinion further study is warranted.
For the Danish lawyer the greatest benefit to be had from Anglo-American law is without any doubt knowledge of the structure of the law of evidence which has been developed to a detail beyond our imagination. It does not necessarily mean that I think we should copy Anglo-American evidence law, but awareness of the questions that will arise if we do develop a structure of evidence rules is a sound basis on which to decide whether we want them. In fact, I do believe that the relaxed Danish rules of evidence may be a great help in obtaining the right outcome of the trial.
To give an example, it was noticeable how after the release of the Guilford-four a public demand for restrictions on the use of confession evidence was heard. It is my honest belief that a corroboration requirement would be to cure the symptom rather than the disease. Is it not plausible that confessions are so widely used because in the experience of the police confessions do result in convictions whereas time after time other evidence which might be of equivalent or better value is ruled inadmissible. And is it not possible that interrogations may be tough for the simple reason that the police has to get the confession before they charge, as they cannot normally question after the accused has been charged.
One reform is long overdue in English criminal procedure and that is the abolition of old fashioned committal procedures. It cannot be beneficial for the quality of the evidence that witnesses have to tell their story, not only to the police and the court of trial, but also to the Magistrates’ Court. Of course, questions such as bail will still have to be considered before the trial, but it ought to be a prosecution decision to require a man to stand for trial and not a judicial and that would fit with a presumption of innocence on the part of the courts. Similarly, it ought to be the responsibility of the prosecution to draw up and sign the indictment, the court only adding the time and place of trial.
A further institution that English law might benefit from learning about is the minor appeals procedure for ancillary matters, which for convenience I termed a query. It seems incomprehensible to me that a man can get his conviction quashed on appeal when a ruling given during his trial was adverse, not to him, but to somebody else who can not appeal. A development of judicial review in the civil courts to cover these matters is in my opinion inappropriate, because it divides the way of appeal. Furthermore, the Danish solution is cheap and fast, something that does not characterize English court procedure.
Finally, English lawyers may gain from the Danish experience with a special tribunal considering possible miscarriages of justice. The idea of a special tribunal has been promoted by some prominent jurists recently, and perhaps a study of one such tribunal that has proved itself very successful would be worthwhile.
It will always be arguable that a comparative study must reach a certain degree of specialisation, because to establish simply that both countries have courts does not broaden our knowledge very much. On the other hand, problems should never be seen too isolated, because often rules solving the same factual problem are to be found under different labels. An example is that in Denmark privacy law is notionally within the field of criminal law, but in reality, it is merely an instance of civil procedure where prison is included amongst the remedies.
Pursuing a comparative study to a greater depth may also in some circumstances have other effects. An interesting example is the difference in attitude between Glanville Williams in The Proof of Guilt (3rd ed.) and me towards the Danish way of appointing judges. Glanville Williams favours it, because Danish judges have a separate career structure. I on the other hand am very concerned that judges in the superior Danish courts get their hands soiled by receiving too much of their training by prosecuting and none by defending. Even if years of working as a prosecutor did not influence their future behaviour, this must be one of the instances where the appearance is as important as the fact. The point is of some importance, because it must be expected that the Crown Prosecution Service at some stage in the future will press for judicial appointments to be made from among its best personnel. Again, awareness of the problem goes some way towards its solution.
A more general lesson to be drawn from this example is that comparative lawyers must be very cautious not just to pursue their studies far enough to substantiate ideas they already hold.
In a number of places the relative weight accorded to different subjects in this paper is out of proportion to that which they are given in the national literature. One of the reasons is that I have felt it interesting to highlight differences rather than similarities.
A number of areas, some of which are developing rapidly in these years, have not been considered in this paper at all, mainly for want of space. One that must be of interest to British lawyers who are only slowly developing the idea of compensation orders made during criminal trials is the merging of civil torts and criminal cases in the continental countries.
Secondly, the rules on the position of the victim in so far as representation and compensation is concerned are developing rapidly and inter alia resulting in the Council of Europe Convention on compensation to victims of violent crime. In Denmark this development seems to be mainly due to strong and successful lobbying from womens’ groups. One concern could be that the resources spent on counsel for the victim have to be taken from the general legal aid budgets, and few defence lawyers would consider them too ample at the present.
Thirdly, on the question of compensation for unjustified prosecution Danish law with its strict liability for the police differs greatly from Britain where suing for malicious prosecution is the only way to obtain compensation. One possible criticism of Danish law is that too much is paid in minor cases and too little in the very serious, an example of perhaps trying to be too good and thus spreading resources too thinly.
In all these three cases, I have had to leave them out of my work for want of space and for the lack of any previous general survey of Danish law written in English. It is my biggest hope that my work is substantial enough to allow others to get beyond the basics.