Legal practice

In 2005, after She Xianglin had spent over 11 years in a mainland prison for the alleged murder of his wife in Hubei , the woman was discovered still alive, and living with a new husband in Shandong. The missing woman's relatives had previously identified a female body found in a pond as hers, and She was forced by investigators to confess to a non-existent crime of murder.

When his conviction was overturned by an appeal court, She blamed the investigators for his ordeal, and said, magnanimously, that 'it was not a problem with the law itself'. His case, however, was far from isolated, and the reform of the mainland's criminal procedure law is now a national priority.

Although, in 2010, the Supreme People's Court adopted rules to prevent coerced evidence being used in court, very few confessions have, in practice, been excluded by the courts. Even when they have, prosecutors have invariably lodged appeals. This has underscored the need for legislative change.

Last month, the National People's Congress, after years of tortuous debate, adopted significant amendments to the Criminal Procedure Law of 1996. In particular, the concept of 'respecting and protecting human rights' is added to the law's second article, although not, unfortunately, to the first, which defines the objects and principles of the law.

The new law does, however, flesh out notions of criminal justice, in a way familiar to Western jurists. These include provisions for the exclusion at trial of coerced confessions and other forms of illegally obtained evidence, the privilege against self-incrimination, better arrangements for the attendance of witnesses at trial, and improved access by lawyers to clients and case files.

These amendments, while welcome, are not perfect, and contradictions abound. How, for example, is the new right against self-incrimination to be reconciled with the old requirement for the suspect to 'truthfully answer the questions raised'? Does it mean that there is a right to silence, but if the right is waived, the answers provided by the suspect to the investigator must be true?

Is it, moreover, incumbent upon the investigator to advise the suspect of his or her rights? While some of the amendments contain laudable statements of principle, it is not always obvious how these amendments will work in practice.

Whereas the new law entitles lawyers to provide 'legal assistance' to their clients, it is unclear if they may themselves interview potential witnesses, as can be done, for example, in Hong Kong. The better view is that lawyers do not have a proactive right to gather evidence, and even if they do, there are restrictions.

In any event, the law requires lawyers to reveal certain types of information to the authorities, which can obviously hinder the client-lawyer relationship. There is no right of privacy, and the law lacks protection for private communications.

The amended law contains some protections for defence lawyers, which are welcome. After all, some lawyers have, in recent times, found themselves in difficulty for what the authorities see as an overzealous regard for their clients' interests. In future, if any action is to be taken against a lawyer, it cannot be by prosecutors or investigators involved in the same case, and an independent assessment by outsiders is required.

If a lawyer's liberty is restricted, his or her law firm must now be informed. It is unclear, however, if the law firm is to be notified before or after the arrest, and within what time frame. Also uncertain is what remedy, if any, is available to the firm.

Although the law now allows judges to direct witnesses to attend the trial, if this is necessary, the criteria are unclear. Is the issue simply one for judicial discretion, after the judge has made his own assessment of the necessity? Or is the decision one to be reached after the defence lawyer has satisfied the judge that the witness must be called, perhaps for cross-examination?

In any event, unless additional funding is provided to the cash-strapped judiciary, it may simply not be possible to arrange for a witness to attend court, particularly if large distances are involved.

Under the mainland's legal system, it is by no means unusual for important areas of statute law to be left imprecise, particularly when different organs wish for different things. Much is left for subsequent interpretation, and last month's amendments are no exception.

Over the coming months, the judiciary, the prosecutors and the police will develop their own interpretations of the amendments, and then seek to produce agreed guidelines. If this can be achieved by January, when the amended law takes effect, this will improve the prospects for a smooth transition from the old law to the new. If a consensus can be reached on implementation among the major players, the new law holds out the real prospect of a better deal for suspects in criminal cases.

This will, however, also require comprehensive legal training for enforcement personnel, and an understanding by investigators that the end can never justify the means.

Judges, for their part, must have the courage to exclude illegally obtained evidence, as this will bring home to investigators that it is simply not worth their while to deploy underhand techniques to combat crime. It will also show that the legal system has, hopefully forever, turned its face against such travesties of justice as befell She Xianglin.

Grenville Cross SC, an adjunct professor of law at the China University of Political Science and Law, Beijing, advises the Institute of Procedural Law Research on criminal procedure law reform