The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?

28 Pages Posted: 5 Sep 2005

See all articles by John D. Jackson

John D. Jackson

University of Nottingham - School of Law

Abstract

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.

Suggested Citation

Jackson, John D., The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence, Divergence or Realignment?. Modern Law Review, Vol. 68, No. 5, pp. 737-764, September 2005, Available at SSRN: https://ssrn.com/abstract=785444

John D. Jackson (Contact Author)

University of Nottingham - School of Law ( email )

Law and Social Science Building
University Park
Nottingham, NG7 1BB
United Kingdom

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