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The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?
Author(s) -
Jackson John D.
Publication year - 2005
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/j.1468-2230.2005.00559.x
Subject(s) - adversarial system , jurisprudence , scope (computer science) , transformative learning , human rights , political science , convergence (economics) , divergence (linguistics) , criminal procedure , law , law and economics , common law , criminal law , criminal justice , sociology , computer science , economics , pedagogy , linguistics , philosophy , programming language , economic growth
This article examines the contribution which the European Court of Human Rights has made to the development of common evidentiary processes across the common law and civil law systems of criminal procedure in Europe. It is argued that the continuing use of terms such as ‘adversarial’ and ‘inquisitorial’ to describe models of criminal proof and procedure has obscured the genuinely transformative nature of the Court's jurisprudence. It is shown that over a number of years the Court has been steadily developing a new model of proof that is better characterised as ‘participatory’ than as ‘adversarial’ or ‘inquisitorial’. Instead of leading towards a convergence of existing ‘adversarial’ and ‘inquisitorial’ models of proof, this is more likely to lead towards a realignment of existing processes of proof which nonetheless allows plenty of scope for diverse application in different institutional and cultural settings.