The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00559.x |
| Date | 01 September 2005 |
| Published date | 01 September 2005 |
| Author | John D. Jackson |
The E¡ect of Human Rights on Criminal Evidentiary
Processes:Towards Convergence, Divergence or
Real ig n ment?
John D. Jackson
n
This article examines the contribution which the EuropeanCourt of Human Rights has made to
the developmentof 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’ tode scribe models ofcrimi nal proofand procedure has obscured the genuinely
transformative nature of the Court’s jurisprudence. It is shown that overa number of years the
Court has been steadily developing a new model of proofthat is better characterised as ‘partici-
patory’than as ‘adversarial’ or ‘inquisitorial’. Instead of leading towards a co nvergenceof existing
‘adversarial’and‘inquisitorial’models of proof, this is more likely to lead towardsa realignment of
existing processes of proof which nonetheless allows plenty of scope for diverse application in
di¡erent institutional and cultural settings.
INTRODUCTION ^ CONVERGENCE OR DIVERGENCE?
The debatewithin comparative lawscholarship as towhether legalsystems within
the common law and civil law traditions are converging has been revitalised
within the ¢eld of criminal procedure and evidenceby a combination of pressures
which would seem to be supporting the co nvergence thesis.
1
National legal sys-
tems plagued by common problems of rising crime, concern for victims and the
growingcost and delay in processing cases through the courts seemto have been
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 ¢nd com-
mon solutionsto deal with the problemsof organised crime, drug tra⁄cking and,
most recently and urgently, international terrorism.
2
Allthishasledtoarenewal
of interest among teachers and students in comparative criminal justice and
n
Queen’s University Belfast.This paper is a much developed version of a paper delivered atthe MLR
‘Teaching Evidence Scholarship’seminar atthe University of Nottingham in September 2004.Thanks
are due to participantsat the semi nar forcomments and criticisms. Special thanks are owed to Maximo
Langer,Bil lPizz i,Paul Roberts and Sarah Summers fortheir wr itten comments.
1 On the convergence thesis generally,se e B. S. Markesinis (ed),The Gradual Convergence (Oxford:
Clarendon Press, 1994) 30. Others have been equally adamant that convergence is not taking
place. See P. Legrand,‘European Legal Systems Are NotConverging’ (199 6)45 ICLQ 52.
2 Particularly since 9/11, however,a tens ion has opened up between those who would seek to deal
with the problems of international terrorism throughwar and those who would seek to deal with
it through internationalcooperation and law which makes the search forcommon legal solutions
among the latter all the more urgent. See P. B. Heymann,Terrorism, Freedom and Security (Boston:
MIT Press, 2003).
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(2005) 68(5)MLR 737^764
evidence as a ¢eld of study.
3
Some commentators have detected a slow, gradual
convergence in the evidentiary processes of common law and civil law systems
towards a‘middle position’ as the respective oral‘adversary’a nd written‘inquisitor-
ial’traditions within each system are borrowed from each other.
4
The trends that
have been identi¢ed in civil law countries are an increasing prominence given to
parties and their lawyers, the diminishing authority of professional judges, a shift
from pre-trial to trial phase s of adjudication which has led to greater importance
given to oral evidence and the right to confrontation, with less reliance on the
accused as a source of testimonial evidence, and, ¢nally, greater pressures to ¢nd
alternatives to traditional trial processes.
5
Trends away from adversary excesses in
certain common law countries, on the other hand, have been said to include
greater judicial management over the criminal process, greater disclosure require-
ments on prosecutio n and defence, in some cases a curtai ling of the right of silence
and greater relianceon pre-trial evidence for vulnerable witnesses.
6
While these developments would appear to lend credence to the convergence
thesis, othershave pointedto counter-in£uences atwork that are actually moving
the systems furt heraway from each other. Although it is acknowledged that there
have been a number of attempts at convergence, there is a growing scepticism in
much recent comparative scholarship about the e¡ects of ‘transplanting’ processes
and procedures from one national and legal culture into another.
7
Many trans-
plants may not have the e¡ects that are intended. Institutional and cultural resis-
tance within the receiving system sometimes proves too strong to achieve the
impact intended, with the result that the character of the imported practice or
3 See, forexample, R. S. Frase,‘Main-StreamingComparative Criminal Justice: Howto Incorpo-
rate Comparative and International Concepts and Materials into Basic Criminal Lawand Proce-
dure Courses’ (1998) 100 West Virginia Law Review 773; P. Roberts, ‘Rethinking the Law of
Evidence: ATwenty-First CenturyAgenda for Teaching and Research’ (2002) 55 CLP 297.
4 Markesinis, n1 above,30. See eg C. Bradley, Criminal Procedure: A Worldwide Study (Durham, NC:
Carolina Academic Press,1998)xxi; G.Van Kessel,‘EuropeanTrendsTowards Adversary Styles in
Procedure and Evidence’ in M. Feeleyand S. Miyazawa (eds),TheJapaneseAdversary Systemin Con-
text (Basingstoke:MacMillan, 2002) 225.
5 Van Kessel, ibid, 227. These trends are by no means self-evident in the practices of all civil law
countries. Acounter-tende ncy to the shift from pre-trial to trial phases of adjudication, for exam-
ple,i s that the police havebe en gaining additional powers in certain jurisdictions at the expense of
judicial authorities. See E. Mathias, ‘The Balance of Power between the Police and the Public
Prosecutor’ in M. Delmas-Marty and J. Spencer (eds), European Crim inal Procedures (Cambridge:
CambridgeUniversity Press, 20 02) 459,481.
6 Van Kessel, ibid;J. McEwan,‘Cooperative Justicea ndthe Adversarial Criminal Trial: lessons from
theWoolf Report’in S. Doranand J. Jackson (eds),TheJudicialRolein Criminal Proceedings(Oxford:
Hart, 2000),171; J. Jackson,‘The AdversaryTrial andTrial by JudgeAlone’ in M. McConville and
G.Wilson (eds), Handbookof the CriminalJustice Process (Oxford: Oxford University Press, 2002),
335; A.T. H.Smith, ‘CriminalLaw ^ The Future’ [2004] CrimLR971,972^973. Notall common
law countries have been so susceptible to such changes, however. For the limited impactof con-
tinental-inspired reforms on the UScr iminal justice system,se eJ. H. Langbein,‘The In£uence of
Comparative Procedure in the United States’ (1995) 43 AmericanJournalof Comparative Law 545.
7 On the notion of ‘transplants’from one legal system to another, see A.Watson, LegalTransplants:
An Approach to ComparativeLaw (Athens, GA: Universityof Georgia Press, 2
nd
ed,1993). For scep-
tical views,s ee eg N.Boari,‘On the E⁄ciency of Penal Systems: SeveralLessons from the Italian
Experience’ (1997) 17 International Review of Law and Economics 115; G. Teubner, ‘Legal Irrita nts:
Good Faith in British Law or How Unifying Law Ends Up in New Divergences’ (1998) 61
MLR11.
Human Rights and Criminal Evidentiary Processes
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