A comprehensive documentation of the performances conducted by Charles Mackerras over more than sixty years is beyond the scope of this book. The following lists include performances that Mackerras conducted with some of the opera companies and orchestras with which he worked closely, and they also relate to specific chapters in the book. Mackerras was an astonishingly busy conductor, so these lists can only give a snapshot of his activity with a few selected organisations. Each list is as complete as we have been able to make it with the information available.

A SWO/ENO performances, 1970–77

B Janáček opera performances, 1951–2010

C San Francisco Opera performances, 1969–2000

D WNO performances, 1950–2009

E ROH performances, 1955–2010

F Performances in Czechoslovakia and the Czech Republic, and with Czech orchestras abroad, 1961–2008

G OAE performances, 1987–2010

H SCO performances, 1993–2010

I Philharmonia performances, 2002–09

A SWO/ENO performances, 1970–77

(See Chapter 1)

The following is a list of operas conducted by Mackerras with SWO/ENO during his time as the company's Music Director. Figures in brackets represent the number of performances of each work Mackerras conducted, including those on tour (at home and abroad) as well as concert performances at the BBC Proms. Performances with the company after 1 January 1978 are not included.

1970

New productions: Beethoven: Leonore, p. Basil Coleman, d. Tony Abbott, Joan and Ann Bloomfield (7); Bizet: Carmen, p. John Copley, d. Stefanos Lazaridis and David Walker (5).

revivals: Mozart: The Magic Flute (1); Mozart: Don Giovanni (4); Mozart: Idomeneo (2); Puccini: La Bohème (1); Wagner: The Flying Dutchman (2). Total: 22

1970/1

New productions: Handel: Semele, p. and d. Filippo Sanjust (6); Beethoven: Fidelio, p. and d. as for Leonore in 1970 (5); Mozart: The Seraglio, p. Copley, d. Lazaridis (3).

revivals: Bizet: Carmen (4); Mozart: The Magic Flute (6); Puccini: Madam Butterfly (6); Rossini: The Barber of Seville (4); J. Strauss: Die Fledermaus (3); Janáček: The Makropulos Case (4); Wagner: The Valkyrie (2).

The idea for this book came originally from members of the Mackerras family, particularly Charles's widow, Judy, who saw the text in proof before her death on 13 December 2014, his daughter Catherine (Cathy) and his sisters Joan and Elizabeth. Since both authors have been passionate admirers of Mackerras's conducting for many years, it was an opportunity we relished. At our initial meeting with Cathy, she encouraged us to develop the project as we thought best, and offered generous support. This included access to her father's private papers, which has enabled us to publish a number of letters and documents for the first time, shedding light on several significant aspects of his career and his working methods. An important consideration from the outset was how our book could usefully complement Nancy Phelan's admirable 1987 biography, Charles Mackerras: A Musician's Musician. One obvious way was to concentrate on the years since Phelan's book was published, which included some of the busiest and most rewarding of Charles's career. Moreover, this book was an opportunity to evaluate the whole of a remarkable life in music. To do that more effectively, we decided to include chapters on specific composers and on his relationships with particular musicians, opera companies and orchestras.

This book is neither a conventional biography, nor is it a symposium, but it aims to combine elements of both: chapters on periods in Mackerras's career are interwoven with more specialised essays and shorter contributions which aim to illuminate his approach to music-making from those who saw it at close quarters. To do this effectively, we asked a number of people who worked closely with Mackerras to write about their collaborations with him. The response from all those we asked was unfailingly positive, and their contributions are informative as well as affectionate, helping the reader to understand more fully how he worked and some of the life-long musical enthusiasms that drove him.

Introduction: the convergence debate

Within the last 30 years there has been a renewal of interest among teachers and students in comparative criminal justice as a field of study. With growing pressure on legal systems to respond to the demands of globalisation and cosmopolitanism, penal law has become one of a growing number of areas of law that is engaging with comparative legal studies. Much of the debate has centred on whether or not these demands are driving legal systems towards convergence. A combination of pressures would seem to be supporting the convergence thesis within criminal justice. National legal systems plagued by common problems of rising crime, concern for victims and the growing cost and delay in processing cases through the courts would seem to have led to a willingness to seek ‘foreign’ solutions to similar problems. In addition to these internal pressures, there have been external pressures on states to find common transnational solutions to deal with the problems of organised crime and drug trafficking.

In addition to this, international terrorism and the growing ethnic and religious conflicts around the world pose a particular challenge for international law as to whether these problems can be resolved by international legal co- operation or whether as protagonists of the ‘war on terror’ would have it they are better met through the exercise of hegemonic power with international law being reduced to accommodate the demands of the most powerful states. Those who would seek to deal with these problems through international law need to develop common legal solutions. An example of this is the effort made by the international legal community to deal with those who have committed war crimes and crimes against humanity through international criminal tribunals applying international criminal law. But if this new international regime is to work successfully, there needs to be a consensus on the appropriate rules of evidence and procedure for holding such trials.

Beyond tradition

This book has sketched a theory of positive evidentiary rights around the notion of effective defence participation which it has been argued is emerging, not always coherently, from international human rights law and within domestic and international criminal processes. The theory does not require systems to model their evidentiary processes upon any particular legal tradition. It has been argued that the principles of equality of arms and the right to adversarial procedure developed in particular by the ECtHR can be accommodated across the common law and civil law traditions. The development of these principles is better portrayed in terms of realigning and transforming the established procedural traditions of the common law and the civil law than as representing a convergence of the two traditions. So the notion of ‘adversarial procedure’ developed by the ECtHR does not require systems to organise procedural control entirely around the prosecution and defence with a passive judge or jury deciding cases purely upon the facts and arguments adduced by the parties. Indeed, one of the themes that emerges in the human rights jurisprudence is the importance of judicial activism in ensuring the fairness of the proceedings. At the same time, the notion of an active defence which has been increasingly stressed in the jurisprudence as important in the pre-trial process, as well as at trial, rubs against any old ‘inquisitorial’ notion of the court exclusively dominating the procedural action. In this final chapter, we assess the impact that a theory of evidentiary defence rights has on the established common law and civil law traditions and what prospects there are for such a theory taking hold in the future.

Introduction: legal representation and self-representation

We have seen how through concepts such as the equality of arms and the right to an adversarial procedure, human rights jurisprudence has been developing a theory of effective defence participation which not only allows for the participation of the accused in the criminal proceedings, but also gives institutional rights to the defence as a party entitled to be treated on an equal basis as the prosecution. These institutional rights have their foundation in what the ECtHR has described as the ‘minimum’ rights laid down in Article 6(3) of the ECHR and also set out in the other human rights instruments – the right to be informed of the charges, to have adequate time and facilities to prepare the defence, the right to defend oneself or to have the assistance of counsel, the right to test witness evidence and, finally, the right to the free assistance of an interpreter.

At the core of the right to defence participation lies the right to defend oneself in person or through legal assistance of one's own choosing. This right has been described as ‘practically absolute’, although as we saw in the last chapter there has been some uncertainty about the stage in the criminal process at which legal assistance can come to the aid of defendants. Built into the wording is a strong notion of individual participation by the accused. Defendants can choose to defend themselves or through legal assistance of their own choosing. The suggestion is that counsel is there at the personal choice and as the personal representative of the accused. In this sense, the right to legal assistance can be depicted as an expression of the principles of individual dignity and autonomy that have overlain so many of the individual rights in human rights instruments. Legal assistance serves to promote individual dignity by helping to alleviate the stress of facing charges and helping to supervise and control the activities of the law enforcement officers, ensuring that accused persons are treated properly. As well as acting in a protective capacity, counsel can also give expression to defendants’ participation more effectively than defendants themselves, provided they faithfully adhere to carrying out their clients’ instructions and act in accordance with their wishes.

Towards an international system of justice

In the last chapter we discussed the attempts that have been made to fashion a common law of criminal evidence within international human rights regimes and we argued that the European Court of Human Rights in particular has been developing within its jurisprudence a participatory model of proof that is rooted in both common and civil law traditions, but may be genuinely classified as sui generis. These regimes marked an important turning point for international law, as they shifted the focus away from the interests of states towards the interests of individuals. The individual rights theories that developed during the Enlightenment were re-invigorated within the international arena as the treatment of individuals by states became a matter of international concern. But these regimes were still state-centred in the sense that their rulings were concerned with whether states had met their obligations towards individuals, such as the obligation to ensure a fair trial. For our purposes, we have seen that they tolerated a fair degree of divergence between states as to how fair trials could be achieved. When international law took a further step towards recognising the significance of the individual by making individuals responsible for international crimes, however, agreement had to be reached not only on the principles of fair trial, but also on detailed rules of procedure and evidence for trying persons charged with such crimes.

Introduction

Although the maxim ‘presumption of innocence’ can be traced in common law history as far back as the days of Bracton and in continental history as far back as three centuries later, it is only in recent times that it has acquired considerable constitutional prominence. We have seen that it was enshrined in the Déclaration des droits de l'homme et du citoyen and in his study of human rights in national constitutions conducted some years ago Bassiouni found that it was contained in at least sixty-seven national constitutions across the common law and civil law world. The presumption of innocence has also been recognised in a wide range of international instruments such as the ICCPR, the ECHR, the ACHR and the African Charter on Human and Peoples’ Rights and by the international criminal tribunals and courts.

Before we examine how this principle has been applied across the two dominant legal traditions and by international human rights regimes, however, it will help our analysis if we are clear about what we mean by the presumption. Despite becoming so accepted, there is often a lack of clarity about what it means and we will argue that this can serve to obscure its central importance. As we shall see, it is commonly discussed exclusively within the context of a rule of evidence requiring a high standard of proof before conviction. But it is sometimes used in terms which make it almost synonymous with the right to a fair trial encompassing the fair trial standards we have discussed so far. In broader terms, it is also used to signify the right of individuals to be protected against coercive measures by the state or the right not to be convicted for crimes of which one is ‘morally’ innocent. In the first section we consider three rather different fields of application which can be viewed on a sliding scale from the particular to the general. We then go on to consider how the presumption has been regarded across the common law and civil law divide and by international human rights regimes.