11. Some principles are regarded as fundamental to, and an essential part of our criminal law. They are commonly referred to as the presumption of innocence, the standard of proof, the right to silence, and the privilege against self-incrimination. Other established rules, as distinct from these principles, are under challenge. They include the following:

• An accused person at his or her trial on indictment may make an unsworn statement without becoming a witness and liable to cross-examination.
• If an accused person opts not to give evidence, no comment on that fact may be made either by the trial judge or by the crown prosecutor.
• The spouse of an accused person is not a compellable witness.
• No comment maybe made upon an accused person’s failure to call his or her spouse.

12. If these rules, or any like them are to be changed, by reference to what tests or criteria should specific changes be proposed?

13. Is a general approach, based on balancing the need to protect the innocent from unacceptableriskofwrongfulconvictionagainsttheneedtoseek"efficiency” in the criminal justice system a proper approach. In this context, "efficiency” is used not only in the sense of avoiding unnecessary delay and expense, but also in the sense of facilitating the conviction of the guilty.

14. Is it feasible to go beyond "the balance" referred to and establish a framework of first principles as a means of measuring the adequacy of existing and proposed procedures, for example, by the use of criteria such as “fairness”, “openness and accountability”, and “efficiency”?

15. Criteria of fairness, openness and accountability, and efficiency may be relevant at different stages of our work on this reference, although not all of them need be relevant at the same stage, Considerations of efficiency are, for example, of importance in determining how any re-organisation of indictable and summary work might proceed. Considerations of fairness are also of basic importance in determining the procedures to be followed throughout a trial. On the other hand, considerations of accountability could not be allowed to impair judicial independence. In any event, criteria of this kind lack precision. What constitutes fairness in a particular instance may call for most detailed analysis and may attract vigorous debate. Perhaps, in the end, they add nothing to the instinctive process implicit in striking a balance between competing values. Nonetheless, criteria of this kind illustrate at least the possibility of framing broad alternative guidelines for evaluating the whole of criminal procedure or some of its constituent parts.

16. In asking the questions listed in paragraphs 13 and 14 above, we are seeking to encourage comment and submissions on the principles which underpin, or ought to underpin criminal procedure, and its reform.