The Effect of Human Rights On Criminal Process

The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence,
Divergence or Realignment?
Author(s): John D. Jackson
Source: The Modern Law Review , Sep., 2005, Vol. 68, No. 5 (Sep., 2005), pp. 737-764
Published by: Wiley on behalf of the Modern Law Review
Stable URL: http://www.jstor.com/stable/3699056
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The Effect of Human Rights on Criminal Evidentiary
Processes: Towards Convergence, Divergence or
Realignment?
John D. Jackson*
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 'partici-
patory' 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.
INTRODUCTION - CONVERGENCE OR DIVERGENCE?
The debate within comparative law scholarship as to whether leg

the common law and civil law traditions are converging ha
within the field of criminal procedure and evidence by a combin
which would seem to be supporting the convergence thesis.' N
tems plagued by common problems of rising crime, concern fo
growing cost and delay in processing cases through the courts
led to a willingness to seek 'foreign' solutions to similar proble
these internal pressures there have been external pressures on s
mon solutions to deal with the problems of organised crime, drug t
most recently and urgently, international terrorism.2 All this h
of interest among teachers and students in comparative cri
*Queen's University Belfast. This paper is a much developed version of a paper

'Teaching Evidence Scholarship' seminar at the University of Nottingham in Se
are due to participants at the seminar for comments and criticisms. Special thank
Langer, Bill Pizzi, Paul Roberts and Sarah Summers for their written comment
1 On the convergence thesis generally, see B. S. Markesinis (ed), The Gradual
Clarendon Press, 1994) 30. Others have been equally adamant that conve
place. See P. Legrand,'European Legal Systems Are Not Converging' (1996)
2 Particularly since 9/11, however, a tension has opened up between those w
with the problems of international terrorism through war and those who wo
it through international cooperation and law which makes the search for com
among the latter all the more urgent. See P. B. Heymann, Terrorism, Freedom
MIT Press, 2003).
? The Modern Law Review Limited 2005 (2005) 68(5) MLR 737-764
Pubhshed by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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Human Rights and Criminal Evidentiary Processes
evidence as a field of study. 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' and written'inquisitor-
ial' traditions within each system are borrowed from each other.4 The trends that
have been identified 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 phases 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, finally, greater pressures to find
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 prosecution and defence, in some cases a curtailing of the right of silence
and greater reliance on pre-trial evidence for vulnerable witnesses.6
While these developments would appear to lend credence to the convergence
thesis, others have pointed to counter-influences at work that are actually moving
the systems further away 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 effects of 'transplanting' processes
and procedures from one national and legal culture into another.7 Many trans-
plants may not have the effects 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, for example, R. S. Frase,'Main-Streaming Comparative Criminal Justice: How to Incorpo-

rate Comparative and International Concepts and Materials into Basic Criminal Law and Proce-
dure Courses' (1998) 100 West Virginia Law Review 773; P. Roberts, 'Rethinking the Law of
Evidence: A Twenty-First Century Agenda for Teaching and Research' (2002) 55 CLP 297.
4 Markesinis, n 1 above, 30. See eg C. Bradley, Criminal Procedure: A Worldwide Study (Durham, NC:
Carolina Academic Press, 1998) xxi; G. Van Kessel,'European Trends Towards Adversary Styles in
Procedure and Evidence' in M. Feeley and S. Miyazawa (eds), TheJapaneseAdversary System in 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. A counter-tendency to the shift from pre-trial to trial phases of adjudication, for exam-
ple, is that the police have been 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 Criminal Procedures (Cambridge:
Cambridge University Press, 2002) 459, 481.
6 Van Kessel, ibid; J. McEwan,'CooperativeJustice and the Adversarial Criminal Trial: lessons from
theWoolf Report' in S. Doran andJ. Jackson (eds), TheJudicial Role in Criminal Proceedings (Oxford:
Hart, 2000), 171; J. Jackson,'The Adversary Trial and Trial by Judge Alone' in M. McConville and
G. Wilson (eds), Handbook of the CriminalJustice Process (Oxford: Oxford University Press, 2002),
335; A. T. H. Smith,'Criminal Law - The Future' [2004] CrimLR 971, 972-973. Not all common
law countries have been so susceptible to such changes, however. For the limited impact of con-
tinental-inspired reforms on the US criminal justice system, seeJ. H. Langbein,'The Influence of
Comparative Procedure in the United States' (1995) 43 AmericanJournal of Comparative Law 545.
7 On the notion of 'transplants' from one legal system to another, see A. Watson, Legal Transplants:
An Approach to Comparative Law (Athens, GA: University of Georgia Press, 2nd ed, 1993). For scep-
tical views, see eg N. Boari,'On the Efficiency of Penal Systems: Several Lessons from the Italian
Experience' (1997) 17 International Review of Law and Economics 115; G. Teubner, 'Legal Irritants:
Good Faith in British Law or How Unifying Law Ends Up in New Divergences' (1998) 61
MLR 11.
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John D. Jackson
procedure is altered in the new procedural environment. As Dama'ka has put it,
'the music of the law changes, so to speak, when the musical instruments and the
players are no longer the same.' To take one example, in Italy where a new crim-
inal procedure code was drafted along adversarial lines, commentators have high-
lighted a number of institutional obstacles that this transplant encountered.9 One
of them has concluded that the failure to import into the Italian system a bifur-
cated mode of adjudication combining judges and juries meant that the new
'adversarial' elements produced effects diametrically opposed to those expected,
with the defendant less protected than before."1 But it is not merely the institu-
tional context in which a transplant is introduced that determines its success but
also the willingness with which the actors involved are prepared to embrace it. In
a recent article Langer has argued that the procedures that operate in common law
and civil law systems may be understood not only as two ways of arranging legal
procedure but also as two different procedural cultures reflecting normative con-
ceptions of how proceedings should be organised.11 Attempts to import 'foreign'
solutions often lead to practices being 'translated' in a different way and this can
lead to fragmentation and divergence rather than convergence within the systems
concerned.
We appear, then, to have arrived at a paradox whereby evidentiary processes are
said to be converging, yet may also be said to be diverging through attempts at
convergence. The thrust towards convergence would seem to be at its strongest
within Europe where supranational institutions such as the Council of Europe
and the European Union provide a vehicle for strengthening cooperation within
a framework of common procedural rights and guarantees laid down by the Eur-
opean Convention on Human Rights and, more recently, the EU Charter of
Rights.'2 This article examines the particular impact of the jurisprudence of the
European Court of Human Rights, which has been attempting to fashion com-
mon standards of process and procedure across the two European legal traditions
for a number of years.
It has been suggested that this emerging jurisprudence is promoting a sort of
convergence between the two traditions by compelling systems to become more
'adversarial'.' But it will be argued that although terms such as 'adversarial' and
8 M. Damaika,'The Uncertain Fate of EvidentiaryTransplants: Anglo-American and Continental

Experiments' (1997) 45 AmericanJournal of Comparative Law 839, 840.
9 See, most recently, W T. Pizzi and M. Montagna, 'The Battle to Establish an Adversarial Trial
System in Italy' (2004) 25 MichiganJournal of International Law 429.
10 E. Grande,'Italian Criminal Justice: Borrowing and Resistance' (2000) 48 AmericanJournal of Com-
parative Law 227, 232.
11 M. Langer, 'From Legal Transplants to Legal Translations: The Globalisation of Plea Bargaining
and the Americanization Thesis in Criminal Processes' (2004) 45 Harvard International LawJournal 1.
12 See generally Delmas-Marty and Spencer, above n 5.
13 B. Swart andJ. Young,'The European Convention on Human Rights and CriminalJustice in the
Netherlands and the UK' in P Fennell, C. Harding, N. Jorg and B. Swart (eds), CriminalJustice in
Europe: A Comparative Study (Oxford: Clarendon Press, 1995) 57, 86. See also I. Dennis, 'Human
Rights and Evidence in Adversarial Criminal Procedure: The Advancement of International
Standards' in J. E Nijboer and J. M. Reijntjes (eds), Proceedings of the First World Conference on New
Trends in Criminal Investigation and Evidence (Lelystad: Koninklijke Vermande, 1997) 523, 529.
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'inquisitorial' have continued to dominate the debate on processes of proof,14 there

is a danger in seeing procedures of proof exclusively through this binary opposi-
tion. Despite difficulties in their application, these terms still seem capable of
encompassing a broad range of diverse practices but they can never hope to pro-
vide a comprehensive picture of all evidentiary processes. It will be argued that
the signs of harmonisation that can be detected from the jurisprudence of the
European Court are better viewed not as an attempt to converge existing 'adver-
sarial' and 'inquisitorial' models of proof but as an attempt to move beyond these
towards a vision of proof that can be claimed to be genuinely suigeneris. This may
be seen as the beginnings of the development of a new rights-based model of
proof. Neither traditionally adversarial nor inquisitorial in character, the new
model is better classified as 'participatory' on the ground that it seeks to enable
all those capable of giving relevant evidence in the proceedings to do so in as least
a coercive manner as possible. Consequently, we may be witnessing a realignment
of the two existing models of proof rather than simply a convergence of the two
but one which gives plenty of scope for diverse application in different institu-
tional and cultural settings. Before we come to the European jurisprudence, we
will first try to identify the features and limitations of the traditional adversarial-
inquisitorial dichotomy.
THE ADVERSARIAL AND INQUISITORIAL DICHOTOMY
Comparative scholars have drawn attention over the years to the dangers of using
adversarial or inquisitorial labels to characterise legal processes in the common
law and civil law tradition. One of the problems is that across the common law-
civil law divide, the terms have been used differently and there has not been agree-
ment about their meaning. For example, scholars have attached different mean-
ings to the term'accusatorial' which has often been used interchangeably with the
term 'adversarial'. Within the Anglo-American tradition, there has been a ten-
dency to use this term in an ideological manner to refer to a series of idealised
features of common law proceedings, including the presumption of innocence,
the privilege against self-incrimination and the use of oral testimony, which are
then contrasted with counter-tendencies to be found in continental proceedings."
Within the continental tradition, on the other hand, the term 'accusatorial' has at
times been used to describe the reformed continental procedures of the nine-
teenth century whereby the separate functions of prosecuting and ascertaining
14 See most recently the collection of essays in A. Duff, L. Farmer, S. Marshall andV. Tadros (eds), The
Trial on Trial: Truth and Due Process (Oxford: Hart, 2004).
15 M. Damaika, 'Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A
Comparative Study' (1973) 121 University of Pennsylvania Law Review 506, 569. A recent example
of this 'Manichaean' tendency is to be seen in Crawford v Washington (2004) 124 S Ct 1354, 8, where
the US Supreme Court stated that '[t]he common law tradition is one of oral testimony in court
subject to adversarial testing, while the civil law condones examination in private by judicial offi-
cers'. For commentary, see S.J. Summers,'The Right to Confrontation after Crawford v Washington:
A "Continental European" Perspective' (2004) 2 International Commentary on Evidence, Article 3, at
http://www.bepress.com/ice (last visited 23 May 2005).
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John D. Jackson
facts were severed, with the former entrusted to the prosecutor and the latter to
the investigating judge.16 Similarly, the term'inquisitorial' is more frequently used
by Anglo-American commentators to characterise continental procedures while
continental commentators have considered it to be quite inappropriate to use the
term 'inquisitorial' to cover the different European continental legal jurisdic-
tions.17 The latter have tended to see modem continental procedures instead as
'mixed' systems which ought to be placed midway between the accusatorial and
inquisitorial models. Recent reforms such as those in Italy have even caused some
commentators to claim that some continental jurisdictions have'crossed the Rubi-
con into the zone of accusatorial systems.18 Conversely, certain American com-
mentators have taken such a pure view of adversarial procedures that they have
been unwilling to consider that even common law countries such as England
truly belong within the adversarial camp.19
In his path-breaking work on comparative criminal procedure, Dama'ka has
illustrated how problematic it can be to use historically-based taxonomies in order
to determine whether a system is adversarial or inquisitorial.20 In his view, the
concepts of continental and Anglo-American legal traditions are too vague and
open-ended to determine what is fundamental to the accusatorial and inquisitor-
ial type.21 Some scholars have tried to adopt a common denominator approach to
find those features which are universal within each tradition. But this proposed
test of pedigree appears circular: we call a common denominator 'adversarial' or
'inquisitorial' simply because we find it across a number of systems and we then
label the system adversarial or inquisitorial.22 Another problem is that it is difficult
to explain what should happen when one of the common denominators no
longer inhabits a particular jurisdiction. Do we say that that system no longer
belongs within the adversarial or inquisitorial camp or do we hold that this
denominator is no longer common? As Dama'ka says, the meaning of adversarial
or inquisitorial remains'hostage' to procedural change in a single country assigned
to the tradition.23
In the second part of the twentieth century the historical approach was super-
ceded by an approach which tried to find a series of ideal-type features that may
be classified as adversarial or inquisitorial. These are not abbreviated descriptions
of actual procedures but are rather opposing ideal-types in the Weberian sense,
depicting patterns that can be found within the generality of Anglo-American
and continental procedures. Rather than being descriptive of actual procedures,
16 Damaika, ibid, 558-559.

17 See, for example, J. E Nijboer,'Common LawTradition in Evidence Scholarship Observed from a
Continental Perspective' (1993) 41 AmericanJournal of Comparative Law 299, 305; Dama'ka, ibid, 559.
18 M. Damaika,'Models of Criminal Procedure' (2001) 51 Zbornik 477, 485. (hereafter referred to as
'Models').
19 See, for example, R. Posner,'An Economic Approach to the Law of Evidence' (1999) 51 StanLR
1477,1500 n 49.
20 M. Damaika,'Adversary System' in S. H. Kadish (ed), 1 Encyclopedia of Crime andJustice (London:
MacMillan, 1983) 24; The Faces of Justice and State Authority (New Haven: Yale University Press,
1986) 4-6; 'Models', n 18 above, 478-482.
21 'Models', ibid, 481.
22 ibid.
23 ibid. For other difficulties with this approach, see Langer, n 11 above.
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they represent particularly distinctive trends and features that contain enough
essential elements of Anglo-American and continental processes to enable any
particular system to be located somewhere along a spectrum of the two extremes.
Although these models are simplistic, it is widely assumed that this approach is
not only a valuable heuristic tool for theorising about different influences at play
in Anglo-American and continental processes but that it also provides a useful
independent standard for comparing different systems and determining how
convergent or divergent they are.24 The difficulty once again, however, lies in
determining how these ideal types should be characterised and what level of
detail should go into them.
There is a broad consensus that the essence of the contrast in the context of
criminal proceedings lies in arranging proceedings around the notion of a dispute
or contest between two sides - prosecution and defence - in a position of theore-
tical equality before a court which must decide on the outcome and arranging
them around the notion of an official and thorough inquiry driven by court offi-
cials.25 From this essential contrast two different models of proof can logically be
constructed. In the contest model the prosecution prepares the case, brings the
charge and is responsible for presenting the evidence and proving the offence
charged. If contested the defendant attempts to rebut the charge by presenting
evidence and arguments against the prosecution. The proceedings are presided
over by a neutral adjudicator whose function is to see that the parties play by the
rules of the contest but not to take an active part in the presentation of the evi-
dence. In the inquest model the court takes centre stage in the handling of the
evidence. The prosecution may first decide the charge but officials of the court
then have the responsibility for gathering, testing and evaluating the evidence.
Any role the prosecution and defence play in the proof process is minimal and
subordinate to the court's function of finding the truth.
Although these are familiar and simple models, there is considerable uncer-
tainty beyond this as to whether other features commonly associated with the
models should be included within them. Some features are commonly included:
for example, the notion of the contest model is said to require a continuous trial
while the inquest model is said to require a series of inquiries; oral evidence is a
feature of the contest model, while written evidence is a more common feature of
the inquest model.26 Other contrasts, on the other hand, are not usually consid-
ered essential characteristics of the models. These include the fact that in the con-
test model the proceedings are in public whereas in the inquest model they are
more often in private and the fact that a lay jury sitting separately from the pro-
fessional judge in a divided trial court will often decide the outcome of the case in
24 For defences of the use of adversarial and inquisitorial models in order to analyse criminal proce-
dure systems, see N. Jorg, S. Field and C. Brants,'Are Inquisitorial and Adversarial Systems Con-
verging?' in Fennell et al, n 13 above, 41; L. Ellison, The Adversarial Trial Process and the Vulnerable
Witness (Oxford: Clarendon Press, 2001) 142; Langer, n 11 above, 5; P. Duff, 'Changing Concep-
tions of the Scottish Criminal Trial: The Duty to Agree Uncontroversial Evidence' in Duff et al, n
14 above, 31.
25 See, for example, Damaika, n 15 above, 563-565; P. Roberts and A. A. S. Zuckerman, Criminal
Evidence (Oxford: Oxford University Press, 2004) 45.
26 See, for example, Roberts and Zuckerman, ibid, 47.
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John D. Jackson
the contest model whereas in the inquest model judges sitting in a unitary court
with or without lay judges will decide the case.27 Decisions as to what factors
should and should not be included are not easy to make on the basis of logic.28
Logic does not dictate that we should include a continuous trial as a necessary
feature of the contest model but conclude that a jury system is not necessary. It
would be possible to divide proceedings arranged around the notion of a contest
into a series of phases of proof. Conversely, it could be argued that ajury is a more
essential feature of the contest model as this imposes a necessary restraint onjudi-
cial fact-finding which might otherwise overwhelm the principle of party pre-
sentation.
Another feature which is commonly considered to be an essential chara

of the contest model in contrast with the inquest model is the need for
evidence. Logic may dictate that in a party dominated system there is a
rules to allocate the burden of proof and to regulate the contest. But beyond
is unclear how essential other rules are. Disclosure rules are commonly ju
the contest model in order to ensure 'equality of arms' between the parti
cularly in the criminal context where there is such an imbalance of re
between prosecution and defence.29 But there is a natural tendency in a
model for parties to be reluctant to disclose all evidence material to the
these rules inevitably rub up against this more natural inclination to h
cards close to one's chest. Other means of improving the imbalance such
viding for strong defence representation might prove just as effective.30 A
of exclusionary rules including hearsay are also sometimes said to be jus
the adversary system as they provide incentives for parties to adduce the be
dence.31 But there are structural difficulties in making these rules effective
we import into such a system a bifurcated structure of decision making,
judges as the tribunal of law to screen the evidence from a specially ap
tribunal of fact. Mandatory directions can also be used to try to influ
manner in which fact-finders should reason but again it is not so clear t
need to be exclusive to fact-finders in the contest model. Although fr
proof is closely associated with continental fact-finding,32 again there is no
why this should be a necessary feature of an inquest model.
All this serves to make the point that it is very difficult to add fea
the core contrast between proof by contest and proof by inquest that
27 ibid. Others, however, would include the jury within the adversarial system: see, egJorg
Brants, n 24 above, 42; Langer, n 11 above, 10.
28 Damaika,'Models', n 18 above, 483.
29 A. S. Goldstein,'The State and the Accused: Balance of Advantage in Criminal Proced
69 YaleLJ 1149; R. J. Traynor,'Ground Lost and Found in Criminal Discovery' (1962) 39
University Law Review 228, 249; J. Jackson and S. Doran, Judge without Jury: Dipl
in the Adversary System (Oxford: Clarendon Press, 1995) 62; Roberts and Zuckerman, n
52-56.
30 In Scotland, for example, there has been a tradition which is now changing of non-disclosure by
the Crown of any evidence helpful to the defence case: see A.V. Sheehan and D.J. Dickson, Crim-
inal Procedure (Edinburgh: Butterworths, 2nd ed, 2003) para 164.
31 D. Nance,'The Best Evidence Principle' (1988) 73 Iowa Law Review 227. On the wider relation-
ship between rules of evidence and the adversary system, see M. Dama'ka, Evidence Law Adrift
(New Haven: Yale University Press, 1997) ch 3.
32 M. Damaika,'Free Proof and its Detractors' (1995) 43 AmericanJournal of Comparative Law 343.

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said to be essential characteristics of the two models. As soon as we start to flesh

out the models, we tend to ascribe features to them either on an empirical basis
from what we see happening in the Anglo-American or continental tradition or
on a normative basis from what we believe ought to be included within each
model. But this inevitably leaves scope for different views as to what should
or should not be included within each model with the result that there will be
scope for disagreement when it comes to locating particular systems within the
spectrum.
Even if we could agree on what represents the core features of adversarialism
and inquisitorialism, difficulties can arise in reaching agreement on how these
concepts are to be applied. Certain non-common law countries, for example,
insist that they now have adversary systems.33 But Anglo-American commenta-
tors are much less likely to view the recent changes in a number of reformed con-
tinental processes as 'Copernican'.34 Pizzi has observed that there are features of
German trials that are deeply adversarial in the sense that witnesses' versions of
events are strongly contested by defence lawyers, yet judges retain considerable
procedural control.35 Are these trials adversarial or non-adversarial? He has also
taken the example of Norway where the parties have the responsibility for pre-
senting the evidence, yet at the beginning of the trial defendants are asked to
respond to the charges, quite unlike Anglo-American trials. Again, are these trials
adversarial or non-adversarial? There can also be considerable variation within sys-
tems as to the way in which proceedings are organised, with the result that it
becomes even more difficult to locate the system as a whole on the adversarial/
inquisitorial spectrum. It is commonly said, for example that many of the pre-
trial proof processes in the Anglo-American criminal systems are just as inquisi-
torial as continental systems.36 How then are we to place systems which manifest
extreme characteristics of inquest pre-trial followed by extreme characteristics of
contest at trial? There can also be a different emphasis put on 'adversarial' and
inquisitorial' features depending on the type of trial within any one system. It
has been suggested, for example, that although there are similarities between the
process of proof in the tribunaux correctionnels and the cours d'assises in France, in
practice more oral testimony is heard in the proceedings of the higher court.3
Similarly, in Anglo-American trials it has been suggested that the absence of the
jury causes an adversarial deficit even though the rules of procedure and evidence
remain the same in both jury and non-jury trials.38 Some have even detected con-
33 W T. Pizzi,'The American "Adversary System"' (1998) 100 University of West Virginia Law Review
847, 848. See also C. Brants and S. Field,'Legal Cultures, Political Cultures and Procedural Tradi-
tions: Towards a Comparative Interpretation of Overt and Proactive Policing in England and
Wales and the Netherlands' in D. Nelken (ed), Contrasting CriminalJustice (Aldershot: Dartmouth
Ashgate, 2000) 77, 79.
34 'Models', n 18 above, 491.
35 n 33 above.
36 See, for example, A. S. Goldstein,'Reflections on Two Models: Inquisitorial Themes in American
Criminal Procedure' (1974) 26 StanLR 1009.
37 B. McKillop,'Readings and Hearings in French Criminal Justice: Five Cases on the Tribunal Cor-
rectionnel' (1998) 46 AmericanJournal of Comparative Law 757, 779.
38 S. DoranJ. Jackson and M. Seigel,'Rethinking Adversariness in Non-Jury Criminal Trials' (1995)
23 AmericanJournal of Criminal Law 1.

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John D. Jackson
flicting forces at work within the same trial, with judges taking both passive and
active stances towards the evidence presented at various stages of the process.39
All this does not mean that 'adversarial' and 'inquisitorial' models of proof can-
not contain some explanatory power in our attempt to determine the extent to
which processes of proof are converging or diverging. If we limit our definition
of these terms to those features that flow logically from the contest-inquest polar-
ity, the contrast would seem to be incapable of encompassing the diversity of pro-
cesses of proof that are evident across the many Anglo-American and European
systems. But if we take a more expansionist view, the models can be used to cover
quite a wide variety of practices, ranging beyond the degree to which the proof
process is driven by party contest or court officials to other factors such as the
concentration of criminal proceedings on the trial stage as opposed to the pro-
ceedings being spread over a number of different stages, the reliance at trial on oral
as opposed to written testimony, the extent to which decision making is orga-
nised in a bifurcated or unitary manner and the use of exclusionary rules of evi-
dence as opposed to free proof. In recent times there has been a tendency on the
part of scholars to associate the models even more broadly with other typologies
which are less concerned with rules of procedure and proof and more with the
positions that key actors such as police officers, prosecutors and judges occupy
within organisational structures and the roles they play in the processes of proof.
Dama'ka, for his part, contrasted two ideals of officialdom which he labelled
'hierarchical' and 'coordinate', the former exaggerating certain features of conti-
nental judicial organisation with its emphasis on officials organised in a hierarchy
applying technical norms, and the latter based on certain tendencies within
Anglo-American justice to hand over decision making to lay persons applying
community norms with considerable discretion.40 More recently, a number of
scholars have concentrated on whether police officers and prosecutors are moti-
vated by considerations of case-building or with truth-finding.41 'Coordinate'
and 'case construction' models have tended to be associated with adversarial pro-
cesses and 'hierarchical' and 'truth-finding' models with inquisitorial processes,
although there can be differences of view as how to categorise particular stages
of a criminal investigation. When we probe the processes of proof in Anglo-
American justice, for example, we find that at a certain stage of an inquiry a pro-
cess can be transformed from one in which actors are primarily interested in
truth-finding to one more interested in constructing a case against the suspect.
But it may not be easy to determine at what point a process moves from the
'inquisitorial' zone into the 'adversarial' one.42
39 See, eg., Pizzi, n 33 above.

40 M. Damaika, 'Structures of Authority and Comparative Criminal Procedure' (1975) 84 YaleLJ
480.
41 For case construction in England, see eg M. McConville, A. Sanders and R. Leng, The Casefor the
Prosecution (London: Routledge, 1991). For recent analysis of the roles of police officers, prosecu-
tors and judges in the French criminal justice system, see J. Hodgson,'The Police, the Prosecutor
and theJuge d'Instruction' (2001) 41 BritishJournal of Criminology 342. For a recent comparative ana-
lysis of the role of prosecutors in evidentiary processes, seeJ. Jackson,'Legal Culture and Proof in
Decisions to Prosecute' (2004) 3 ournal ofLaw, Probability and Risk 109.
42 Commentators have differed as to how to characterise police questioning in England and Wales,
some referring to it as an'adversarial' process and others as'inquisitorial'. Cf R. Evans, The Conduct

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The imposition of these extra dimensions on to models that are already laden
with opaque meaning can lead to disagreements as to whether systems are con-
verging or diverging. An analysis which focuses simply on the rules and proce-
dures of proof is more likely to accept at face value some of the 'transplants' or
changes that have been made away from the extreme of either model and more
likely to conclude that we are seeing a convergence in proof processes somewhere
closer to the centre of the two poles than at either extreme. Conversely, however,
an analysis which probes deeper into what the rules mean to the actors themselves
is more likely to detect cultural resistance to the changes that are being made and,
as these are translated into the local culture, is more likely to encounter diver-
gences rather than convergences occurring.
The real limitation in using 'adversarial' and 'inquisitorial' models as bench-
marks for determining the extent to which systems are converging or diverging,
however, is not that the models cannot encapsulate a wide variety of evidentiary
processes evident across the common law and civil law divide, nor that there can
be disagreements on how the terms 'adversarial' and 'inquisitorial' should be used
and applied. There are difficulties endemic in any exercise which attempts to make
cross-cultural comparisons between legal systems and so long as we are careful to
explain what we mean by these terms, they can still be useful in analysing shifts in
direction within and between systems. The limitation is that, however broadly we
attempt to use the terms, they cannot claim to be comprehensive, all-inclusive
categories and that by using them as though they were we may lose sight of cer-
tain processes at work which cannot be categorised as either 'adversarial' or 'inqui-
sitorial' at all, no matter how broad or deep our perspective. It has been argued, for
example, that some of the developments that have taken place within United
States civil processes in the last 20 years, and more latterly, within the procedures
of the International Criminal Tribunal for the former Yugoslavia, are better
described through a third procedural model labelled 'managerial' rather than as
falling into either of the traditional adversarial or inquisitorial models of proce-
dure.43 Similar trends may be discerned within the English civil process in the
aftermath of the Woolf reforms and increasingly also within English criminal
procedure.44 Others have detected processes at work at the sentencing stage of
common law processes which are hard to categorise within either traditional
model.45 Another recent development which does not fit easily into either tradi-
tional model is the growth in restorative justice processes where offenders are
brought face to face with victims in order to find ways of addressing offender
behaviour.46 Although these processes look forward to changing the offender's
of Police Interviews with]Juveniles (London: HMSO, 1993); and E. Cape,'The Revised PACE Codes of
Practice: A Further Step towards Inquisitorialism' [2003] Criminal Law Review 355.
43 M. Langer,'The Rise of Managerial Judging in International Criminal Law' (2005) 53 American
Journal of Comparative Law (forthcoming).
44 See Access tojustice: Final Report by Lord Woolf MR to the Lord Chancellor on the CivilJustice System in
England and Wales (1996). On the rise of managerialism in England criminal procedure, see
McEwan, n 6 above; Smith, n 6 above.
45 J. Shapland, Between Conviction and Sentence: The Process of Mitigation (London: Routledge & Kegan
Paul, 1981).
46 There is a very large and expanding literature on restorative justice processes: see G. Johnstone,
Restorative Justice: Ideas, Values and Debates (Cullompton: Willan, 2001), K. McEvoy, H. Mika and

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John D. Jackson
behaviour, they can involve trying to reach a consensus covering the circum-
stances of the offence. This process of proof is not easily categorised as 'adversarial'
or 'inquisitorial' and might be better described as 'problem solving'.47 The point
here is that the traditional adversarial/inquisitorial dichotomy may not always
prove a useful framework for analysing the complexity of real-life processes of
proof. As one critic has put it,'dichotomies provide only two-dimensional slices
through reality: they give us black and white and - depending upon their degree
of refinement - innumerable shades of grey ... But they do not give us the reds
and greens and blues'.48
As we turn to examine the evidentiary jurisprudence that has been evolved by
the European Court of Human Rights, we will argue that the adversarial/inqui-
sitorial dichotomy has obscured the truly transformative nature of the Court'sjur-
isprudence. Although the Court has commonly referred to'adversarial' rights and
principles, its conceptions do not match existing practices within the adversarial
tradition and it is misleading to consider that these are leading to a convergence in
the direction of traditional adversarial processes.We have seen that on the broadest
interpretation of the adversarial model, we would expect to see one or more of
the following characteristics: party control of the proof process, concentration on
a climactic trial and reliance on oral testimony, trial by jury and exclusionary rules
of evidence. Yet we shall see that the European Court has not required contracting
parties to adopt any of these practices. Instead it will be argued that they are being
required to realign their processes in accordance with what is better described as a
new model of proof altogether.
THE EVOLUTION OF EVIDENTIARY HUMAN RIGHTS NORMS
The right to a fair trial
A number of countries have long included within their constituti

fundamental rights, but after World War II 'a constitutional and c
lution' occurred when these rights began to be enforced through j
ery at a national and international level.49 States not only began
common human rights norms, they also acceded in various treat
forms of review that would be exercised by international author
Inter American Court is tasked with applying the American
Human Rights, the African Commission applies the African Cha
and People's Rights and the UN Human Rights Committee applie
tional Covenant on Civil and Political Rights. The most advan
supra-national application of human rights norms, however, has b
European Convention on Human Rights by the (now abolish
B. Hudson (eds), Practice, Performance and Prospects for Restorative Justice (2002) 42
Criminology 469.
47 Shapland, n 45 above, 141.
48 I. Markovits, 'Playing the Opposites Game: On Mirjan Damaika's The Faces of
Authority' (1989) 41 Stanford Law Review 1313,1340-1341.
49 M. Cappelletti, TheJudicial Process in a Comparative Perspective (Oxford: Clarendo

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Commission of Human Rights and by the European Court of Human Rights.50

Over a number of years these bodies have attempted to apply common standards
to legal systems within the common law and civil law traditions. Although the
Court was established in 1959, it took some time for its judicial machinery to exert
a material impact on the national legal systems of member countries because of
the delay by a number of states in granting the right to individual petition to the
Court and in accepting the jurisdiction of the Court. Today, however, it is esti-
mated that taken together both the text of the European Convention and the jur-
isprudence of the Commission and Court have inspired several hundred national
constitutional court decisions.51 It is true that the Convention and Court can
hardly be said to have created a truly independent legal order as their role has been
merely to correct rather than supplant national legal norms. But it can be argued
that this distinction has become blurred as the jurisprudence of the Commission
and Court has come to complete and enrich the often vague text of the Conven-
tion and in this manner arrive at a set of norms that seems more and more to be
that of a true supranational legal order.52
The key vehicle in the development of evidentiary human rights norms has
been the fair trial right in Article 6 of the European Convention. The right to a
fair trial finds its roots deep in the history of human rights and is given expression
in the UN Universal Declaration of Human Rights.j3 Article 6(1) of the Conven-
tion contains a general definition of the right which closely follows Article 10 of
the Declaration, whilst Article 6(2) enshrines the presumption of innocence
which is contained in Article 11 of the Declaration. But Article 6 goes further than
the Declaration by enumerating a number of other specific safeguards, including
in Article 6(1) the right to be brought to trial within a reasonable time and in
Article 6(3) a number of defence rights for those charged with a criminal offence,
including the right to have adequate time and facilities for the preparation of the
defence, the right to legal assistance, the right to examine or have examined wit-
nesses against the defence and to obtain the attendance and examination of wit-
nesses under the same conditions as prosecution witnesses.
In many respects the inclusion of these specific rights may be seen as a triumph
for those British lawyers steeped in the common law tradition who argued
against their civil law counterparts in favour of a more specific set of rights in
preference to a mere restatement of the principles in the Universal Declaration.
In his masterly account of the formation of the Convention, Simpson has shown
how the final draft of the Convention was a compromise between civil law and
common law approaches towards the protection of individual rights.54 The civil
50 The Commission was abolished in 1998 under Protocol 11 and the Court now has sole jurisdiction
to determine applications: see http://www.echr.coe.int/ENG/EDocs/HistoricalBackground.htm
(last visited 23 May 2005).
51 M. Delmas-Marty, Towards a Truly Common Law (Cambridge: Cambridge University Press, 2002)
67.
52 ibid, 63-64.
53 A. H. Robertson and J. G. Merrills, Human Rights in Europe (Manchester: Manchester University
Press, 3rd ed, 1993) 87.
54 A.W. B. Simpson, Human Rights and the End of Empire (Oxford: Oxford University Press, 2001) chs
13 and 14.
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John D. Jackson
law approach favoured setting out the enumerated rights in brief general terms,
leaving the detailed working out to be done by member states with a Court of
Human Rights responsible for elaborating a jurisprudence of rights. The com-
mon law approach, on the other hand, was distrustful of bills of rights and reluc-
tant to place its trust in the evolution of a jurisprudence derivative from very
general principles of law. Instead it put its weight behind a more precise specifica-
tion of the rights and limitations to the rights and in the provision of effective
remedies. The resulting compromise was one which appeared to favour both
sides. On the one hand, the ultimate text that was agreed appeared to favour the
common law approach of a more specific delineation of the rights than that out-
lined in the Universal Declaration. On the other hand, the establishment of a
Commission and Court to enforce the rights was a victory for the civil law
approach, albeit that the Convention did not require member states to accept
either the right of individual petition or the jurisdiction of the court.
Taken at face value, the specific rights incorporated in Article 6, drafted as they
were largely by the British, not unnaturally appeared to favour an approach which
had greater resonance in the common law than in civil law tradition. Although
the right to a trial within a reasonable time has not been an independently recog-
nised right in either tradition, the emphasis in Article 6(3) on the rights of the
defence and in particular the concern to buttress the role of the parties in present-
ing and challenging evidence appears to give the Convention a decidedly adver-
sarial mould.55 Any victory which the common law tradition was able to claim
from the enumeration of defence rights in the Convention, however, was over
time reined back by the interpretation that came to be given to these rights by
the Commission and the Court in subsequent jurisprudence. The very develop-
ment therefore that the British had resisted at the time of the drafting of the Con-
vention, namely that the rights would come to be interpreted by an international
court with binding effect on national courts, was one that came to pass. In the
process, some of the adversarial purity of the written text was sacrificed.
Although the European Commission and Court have emphasised that the
right to a fair trial holds a prominent place in a democratic society with the result
that Article 6 must be given a broad construction,56 a number of limiting princi-
ples have taken hold to prevent the Strasbourg authorities being over-prescriptive
about the evidentiary procedures that should be adopted in the member states.
First of all, from the beginning the Commission established that the Strasbourg
authorities do not constitute a further court of appeal from the national courts.57
This fourth instance doctrine together with the doctrine of the margin of appre-
ciation has meant that the national courts are given considerable discretion con-
cerning the evaluation of evidence. Secondly, as a general principle the member
states enjoy considerable freedom in the choice of the appropriate means of ensur-
55 Swart and Young, n 13 above, 84; Nijboer, n 17 above, 311; J. E Nijboer,'Vision, Abstraction and
Socio-Economic Reality' (1998) 49 Hastings LawJournal 387, 394.
56 Delcourt v Belgium (1979-1980) 1 EHRR 355, Moreira de Azevedo v Portugal (1992) 13 EHRR 731 at
[66].
57 Xv FRG (1957) 1 Yearbook 150, 152.
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ing that their judicial systems comply with the requirements of Article 6.58 The
Court does not require states to adopt any particular rules governing the admissi-
bility of evidence, although we shall see that it has embraced certain evidentiary
principles that have had to be translated into national systems. Instead it has con-
sidered that it is for the competent authorities to determine the relevance of pro-
posed evidence and that rules on the admissibility of evidence are 'primarily a
matter for regulation under national law'.59 The Court's unwillingness to pre-
scribe rules of evidence or concepts such as admissibility was a clear signal that it
had no wish to impose a common law system of evidence on member states.
Thirdly, the Commission and Court both said at an early stage that their task is
to determine whether they can be satisfied that the proceedings taken'as a whole'
were fair.60 On the one hand, this has enabled the Court to give an expansive
interpretation to Article 6, and to hold that the rights accorded to defendants in
Article 6(2) and 6(3) are'specific aspects of the general principle stated in paragraph
1 and are to be regarded as a non-exhaustive list of "minimum rights" which form
constituent elements amongst others, of the notion of a fair trial in criminal pro-
ceedings'.61 This expansionist principle has enabled the Court to read other
important protective rights into Article 6 such as the privilege against self-incri-
mination.62 On the other hand, however, it has given the Court a certain leeway
to consider that it is not essential for the special rights to be respected in every case
if measures restricting the rights of the defence are'strictly necessary' and there are
adequate compensating measures taken to protect the accused at trial.63 This has
permitted inroads to be made by domestic jurisdictions into the specific rights
provided that the trial as a whole may be considered fair.64 Finally, the Court has
given the Convention an evolutionary interpretation according to which the
Convention is 'a living instrument which must be interpreted in the light of pre-
sent day conditions'.65 On the one hand, this has enabled some of the rights and
principles developed under Article 6 to be given an expansionist interpretation in
the light of present day conditions; on the other hand, it has also enabled these to
be balanced, as we shall see, against other competing concerns that come to dom-
inate the criminal process landscape.66
The equality of arms principle
These limiting principles have enabled the Court to be quite flexible about the
evidentiary principles and processes that are to be equated with Article 6, permit-
58 Hadjianastassiou v Greece (1993) 16 EHRR 219 at [33].

59 Engel v Netherlands (1979-1980) 1 EHRR 647, at [46], Schenk v Switzerland (1991) 13 EHRR 242,
Delta v France (1993) 16 EHRR 574, at [35].
60 Nielson v Denmark (1957) 4 Yearbook 518, Barbera, Messegue' and abardo v Spain (1989) 11 EHRR 360,
Delta v France, ibid.
61 Deweer v Belgium (1979-80) 2 EHRR 439, at [56].
62 See, eg., Funke v France (1993) 16 EHRR 297.
63 See, eg., Van Mechelen v Netherlands (1998) 25 EHRR 647 at [58].
64 See, eg., Brown v Stott [2001] 2 All ER 97.
65 Tyrer v United Kingdom (1979-1980) 2 EHRR 1 at [31].
66 This balancing approach has been evident when the court has come to balance the interests of
victims and witnesses against the interests of a defendant in a fair trial: see text at notes 125-133
below.
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John D. Jackson
ting it when necessary to depart from the strait jacket of the specific rights in
Articles 6(2) and (3) and to develop its own distinctive principles of fairness.
Instead of adopting a fully-fledged adversarial position requiring party control
over the presentation of evidence, the Commission and Court from an early stage
chose to develop the principle of 'equality of arms', an old principle with roots in
both common law and civil law traditions.67 It is a principle that has been
expressed as affording every party to the proceedings 'a reasonable opportunity
to present his case in conditions that do not place him at substantial disadvantage
vis-a -vis his opponent'.68 Although this principle was enunciated early on in the
jurisprudence of the Commission and Court,69 it has undergone development
and refinement over the years. In 1970 for instance, the Court upheld an old Bel-
gian practice whereby the procureur general would retire with the Court having
expressed a view as to whether the appellant's appeal should be heard.70 Over 20
years later, however, the Court reached a different conclusion. Once the procureur
general had expressed an opinion on the merits of the appeal, he became the appli-
cant's opponent and the procureurge'nrual's participation in the private deliberations
of the Court gave him an unfair advantage over the appellant." In emphasising
the importance of the appearance of justice, the Court drew attention to the
increased sensitivity of the public to the fair administration ofjustice. This empha-
sis on the importance of equal participation by the parties has underlined the
necessity of distinguishing between those responsible for prosecuting or appear-
ing to be prosecuting and those responsible for judging and, in doing so, has bro-
ken with the old continental practices which tended to blur the distinction.
It is not only equality in presenting arguments that is required, but also equal-
ity in being able to present evidence as well. Thus in Bonisch v Austria72 a court
appointed expert provided a report that meat prepared by the applicant contained
an excessive concentration of a carcinogenic substance called bezopyrene. The
European Court considered that he was more like a witness against the accused
than an impartial expert. As a court witness, he could attend throughout the hear-
ings, put questions to the accused and to witnesses with the leave of the court and
comment on the evidence. Since he was given much greater control over the pro-
ceedings than a defence expert witness would have been given, Bonisch had not
been accorded equal treatment.
The principle has gone beyond ensuring that the parties are accorded a formal
equality during the presentation of evidence at the trial and appeals process. In
order to be able to contest on equal terms, the Commission and Court have
recognised that as a result of the disparity in the resources between prosecution
and defence, the principle of the equality of arms requires that the facilities which
everyone charged with a criminal offence should enjoy under Article 6(3)(b)
include the right of the accused to have at his disposal all relevant information that
67 The principle is an expression of the old natural law principle, audi alteram partem, which was first
formulated by St Augustine: seeJ. R. Lucas, OnJustice (Oxford: Clarendon Press, 1980) 84.
68 Kaufman v Belgium (1986) 50 DR 98,115, Foucher v France (1998) 25 EHRR 234 at [34].
69 See, for example, Xv FRG, n 57 above.
70 Delcourt v Belgium, n 56 above.
71 Borgers v Belgium (1993) 15 EHRR 92.
72 Bonisch vAustria (1987) 9 EHRR 191.

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has been or could be collected by the competent authorities.73 The Strasbourg

authorities have here recognised the disparity of resources between prosecution
and defence. Since the prosecution enjoys considerable facilities derived from its
powers of investigation, equality demands that the results of these investigations
be shared with the defence.
Despite the significance that the principle of the equality of arms attaches to
party information and party presentation, however, there are limitations in
regarding it as an adversarial principle. These were illustrated in the civil case of
Feldbrugge v Netherlands74 where the applicant had been denied an opportunity to
appear either in person or through her lawyer in making her claim for health
insurance benefits. The Court held that there had been no breach of the principle
of the equality of arms because Mrs Feldbrugge's opponents were equally disad-
vantaged under the procedures of the Appeals Board. It is true, of course, that
Article 6(3) specifically guarantees certain defence rights in criminal cases such as
the right to call witnesses but even here the equality of arms principle serves to
limit adversarialism as the Article provides that parties have the right to obtain the
attendance and examination of witnesses on their behalf only 'under the same
conditions' as their opponent. It follows that the defence have no right under this
principle to call any witness of their choosing. The competent national authorities
are therefore able to decide upon the relevance of the proposed evidence of each
witness.7" In addition it would seem that where a system proceeds on the basis of
experts being called by the court, parties have no right to call their own expert to
challenge this evidence unless there are objectively justified fears concerning the
court expert's impartiality.76
The right to an adversarial trial
Although there was no inequality of arms in the Felbrugge case, the Court went on
to hold that there had nevertheless been a breach of Article 6(1) because the failure
to hear Mrs Feldbrugge meant she had not been allowed proper participation in
the proceedings. Towards the end of the 1980s, the Court began to develop this
right to be heard and to speak notjust of the principle of equality of arms but also
of the principle that 'all the evidence must be produced in the presence of the
accused at a public hearing with a view to adversarial argument'.7 A number of
decisions ruled that the right to an adversarial trial means, in a criminal case, that
the prosecution and defence must be given the opportunity to have knowledge
and comment on the observations filed and the evidence adduced by the other
party.78 It is important to see, however, that in developing this adversarial right
the European Court fell short of prescribing the kind of adversarial trial that is
associated with common law jurisdictions where procedural control is largely in
73 Jespers v Belgium (1981) 27 DR 61.

74 (1986) Series A 99.
75 Engel v Netherlands, n 59 above at [91], Vidal v Belgium (1992) Series A 235-B.
76 Brandstetter vAustria (1993) 15 EHRR 378.
77 Barbera, Messegue andJabardo, n 60 above at [78].
78 Brandstetter vAustria, n 76 above at [67], Rowe and Davis v United Kingdom (2000) 30 EHRR 1 at [60].
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John D. Jackson
the hands of the parties rather than the judge. Under the label of une procIdure con-
tradictoire it has long been considered important in continental procedure that the
defendant should be present when procedural activities are under way and should
be entitled to offer counterproofs and counter-arguments.79 The Commission
and Court sought to 'translate' the defence rights prescribed in Article 6 into a
vision of adversarialism that was as compatible with the continental notion of
uneprocddure contradictoire as with the common law adversary trial. Defendants have
to be guaranteed rights to legal representation, a right to be informed of all infor-
mation relevant to the proceedings, a right to be present and to present arguments
and evidence at trial. But this does not rule out considerable participation by
judges in asking questions or even calling witnesses.
The Strasbourg authorities have not self-consciously tried to squeeze the Arti-
cle 6 defence rights into a continental mould and imposed this across the contract-
ing states. The one right that would seem to stretch the notion of une procidure
contradictoire is the right to examine witnesses, expressly safeguarded in Article
6(3)(d). In a series of decisions beginning in 1986,80 the European Court began
to interpret Article 6(3)(d) to mean that convictions should not be substantially
based upon the statements of witnesses whom the defence were unable to cross-
examine. There would seem to be little doubt that these decisions, although not
always consistent with one another,81 were a major factor in some of the changes
that began to take effect in a number of continental jurisdictions which were more
firmly associated with the old inquisitorial tradition.82 As a result of the Kostovski
decision against the Netherlands, for example, in which the Court ruled that there
was a breach of Article 6 where the conviction was based to a decisive extent on
the statements of two anonymous witnesses who gave evidence in the absence of
the accused, the Dutch Supreme Court was forced to retreat from earlier case law
that had permitted the use of anonymous hearsay evidence.83 In France the Court
of Cassation held that Article 6(3)(d) requires the trial court to grant the defen-
dant's request to summon and question a witness unless the witness is clearly una-
vailable, or his testimony would be irrelevant, or the accused has had an adequate
opportunity to confront and question the witness in prior proceedings, or there is
a serious risk of witness intimidation or retaliation.84 The adversarial defence
rights in Article 6 had a strong influence upon the Delmas-Marty Commission
79 Damaika, n 15 above, 561.

80 See eg Unterpertinger v Austria (1991) 13 EHRR 175, Kostovski v Netherlands (1990) 12 EHRR 434,
Windisch v Austria (1991) 13 EHRR 281, Delta v France (1993) 16 EHRR 574.
81 Although the court has generally considered that cross-examination must be permitted where the
evidence plays a substantial, or a decisive, or main part in the conviction, on occasions it has varied
this standard, narrowing it at times to apply where the evidence is the only item of evidence (see
eg Asch vAustria (1991) 15 EHRR 597 and Artner vAustria (1992) 242 Series A 3) and widening it in
other cases to apply where the evidence has'played a part' in the conviction (see eg Ludi v Switzer-
land (1993) 15 EHRR 173). See D. J. Harris, M. O'Boyle and C. Warbrick, Law of the European Con-
vention on Human Rights (London: Butterworths, 1995) 212.
82 Nijboer has singled out Spain, France, Belgium and the Netherlands in this category: n 17 above,
311. See also M. Chiavario,'The Rights of the Defendant and the Victim' in Delmas-Marty and
Spencer, n 5 above, 548.
83 See P. T. C. van Kampen, Expert Evidence Compared (Leiden: E M Meijers Instittue, 1998) 105-06.
84 J. Pradel,'France' in C. van denWyngaert (ed), Criminal Procedure Systems in the European Community
(London: Butterworths, 1993) 120.

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which proposed that a list of basic principles should be placed at the head of a new
code of criminal procedure and in reforms in 2000 the principle that criminal
procedure should be fair and 'contradictoire' was given pride of place in the list
of guiding principles.85 In Italy the new code of criminal procedure in 1988 gave
expression to these principles and Article 111 of the Italian Constitution was
amended to provide that every trial should be based on giving the parties the right
to offer counterproofs and counterarguments against unfavourable evidence
(including contradittorio tra le partii) on an equal standing in front of an impartial
judge.86
Although the European Court seems to have played a significant role in
prompting these changes, it again fell short of prescribing the need for anything
like a fully- fledged common law adversarial trial.8" First of all, as we have seen,
the Court has steered well clear of imposing any common law concepts on mem-
ber states such as the notion of admissibility or hearsay. It has put much more
emphasis on the use that is made of evidence than on the question of its admissi-
bility as evidence. Thus in the first major decision on Article 6(3)(d) the Court
stressed that in itself the reading out of statements cannot be regarded as inconsis-
tent with Article 6 but the use made of the statements as evidence must neverthe-
less comply with the rights of the defence.88
Secondly, it would seem that it is not necessary for the right to examine wit-
nesses to be exercised at the trial. In the Kostovski case the Court made it clear that
the right to confrontation does not mean that in order to be used as evidence
statements of witnesses should always be made at a public hearing:89
to use as evidence such statements obtained at the pre-trial stage is not in itself
inconsistent with paragraphs (3)(d) and (1) of Article 6, provided that the right of
the defence has been respected.
As a rule, these rights require that an accused should be given an adequate and
proper opportunity to challenge a witness against him, either at the time the witness
was making his statement or at some later stage in the proceedings.
This again is an illustration of accommodation towards a civil law approach

which has been much more receptive towards the idea of reviewing evidence
before the trial.90 So long as opportunities exist for challenging witnesses before
trial, the absence of an opportunity to examine these witnesses at trial is not fatal
to compliance with Article 6 standards. This could pose difficulties for common
law processes where there is no properly organised pre-trial phase of procedure
85 SeeV. Dervieux,'The French System' in Delmas-Marty and Spencer, n 5 above, 218, 220-22.
86 A. Perrodet,'The Italian System' in Delmas-Marty and Spencer, ibid, 348, 368-69.
87 J. R. Spencer,'Introduction' in Delmas-Marty and Spencer, ibid, 45.
88 Unterpertinger vAustria, n 80 above at [31] (emphasis added).
89 n 80 above at [41] (emphasis added).
90 Note, however, that the German immediacy principle attempts to put a fetter on the use of deri-
vative sources at trial by restricting the use of hearsay evidence when better sources of informa-
tion are easily accessible. For an explanation of this principle, see M. R. Damaika,'Of Hearsay and
its Analogues' (1992) 76 Minnesota Law Review 425.
754 , The Modern Law Review Limited 2005

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John D. Jackson
taking place under judicial control at which witnesses may be examined.91 Where
vital witnesses become unavailable at trial and there has been no pre-trial oppor-
tunity for cross-examination, the European jurisprudence suggests that prosecu-
tion cases may fail in the absence of other evidence against the accused.
Thirdly, not all witnesses need to be examined on the defence's request in order
to meet the fair trial standards of Article 6. In some cases the Court would seem to
have taken into account the difficulty in producing witnesses at the trial where
they have gone missing or where the witnesses exercise their right not to testify.92
In these instances the Court will look for any compensating safeguards which
might include the fact that the witness has already been questioned by ajudge or
that the defence have had an opportunity to view the demeanour of the witness or
an opportunity to cast doubt on the witness's credibility.93 Whatever the compen-
sating safeguards, however, the Court has tended to insist that the right to exam-
ination should be available where the testimony concerned constitutes the
main',94 decisive',95 only'6 or 'sole'97 basis for the conviction.
This again implies that the European Court has construed the right as much to
accommodate continental systems of justice as common law systems. Indeed it
may be argued that it is common law judges rather than their civil law counter-
parts who are likely to have to change their perspective in the light of these stan-
dards. Judges in the common law tradition are used to ruling on the admissibility
of evidence in a piecemeal,'atomistic' manner, although once the prosecution case
is completed, they have had a role in screening out weak cases before factual dis-
putes are sent to the jury for decision. By contrast the European Court has con-
sidered that a much more 'holistic' approach needs to be taken towards the
evidence by considering how decisive or substantial the unexamined witness evi-
dence is to the case as a whole.98 This requires that judges are in a position to make
some assessment of the strength of the other evidence against the accused and it
has been argued this is likely to bring about a considerable change of perspective
and practice in the English criminal process.99 It would seem to mark a shift away
from the traditional focus on deciding on the admissibility of evidence on a piece
by piece basis towards considering whether there is a sufficient basis under Article
6 for sending a case to the jury. Such judgments of sufficiency would require a
much more probing assessment of the evidence as whole than the traditional
approach taken at the end of the prosecution case, which has been to consider
whether on one possible view of the facts there is evidence on which a jury could
91 J. R. Spencer,'French and English Criminal Procedure: A Brief Comparison' in Markesinis, n 1

above, 33.
92 See, for example, Asch vAustria and Artner vAustra, n 81 above: see B. Emmerson and A. Ashworth,
Human Rights and CriminalUustice (London: Sweet & Maxwell, 2000) para 5-115.
93 Van Mechelen v Netherlands, n 63 above at [62].
94 Unterpertinger, n 80 above at [33].
95 Kostovski, n 80 above at [44].
96 Asch v Austira, n 81 above at [30], Artner v Austria, n 81 above at [24].
97 Saidi v France (1994) 17 EHRR 251 at [44].
98 For the contrast between'atomistic' and 'holistic' approaches to evidence, see M. Damaika,'Ato-
mistic and Holistic Evaluation of Evidence' in R. Clark (ed), Comparative and Private International
Law: Essays in Honour ofJohn Merryman (Berlin: Duncken and Humblot, 1990).
99 A. Ashworth,'Article 6 and the Fairness of Trials' [1999] CrimLR 261, 272.

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conclude that the defendant is guilty.100 This in turn points towards a more active
fact-finding role for the common law judge. The trial judge is there not just to
referee a contest in the traditional common law mould, making atomistic rulings
of evidence, but to take a more proactive and dominant role in the proceedings in
deciding whether fairness requires that particular witnesses need to be exam-
ined.'0o
The upshot of all this is that the adversarial principle of defence examination of
witnesses has been accommodated by the European Court to meet continental
processes without too much disturbance. Although the right to examine wit-
nesses would seem to have stretched the continental notion of une procedure contra-
dictoire beyond its traditional boundaries, this right has not required any full scale
transition towards a party-controlled trial. Indeed so great has been the accom-
modation that it may be argued that traditional common law approaches, so long
associated with the adversarial right of cross-examination,102 have been as much
disturbed by the European Court's jurisprudence as civil law traditions. There are
other respects as well in which it may be said that the 'adversarial' requirements
that have been interpreted by the European Court as necessary in the light of
Article 6 standards of fairness have stretched common law adversary traditions
beyond their comfort zone.
We have seen that one of the conditions for meeting the principle of equality of
arms is the right of the defence to have access to relevant information before the
trial. This effectively predicates fairness at the trial upon fair disclosure before trial
and once again elevates the significance of pre-trial procedures. In continental eyes
the principle of disclosure of evidence through a shared dossier which is con-
structed by judicial or prosecutorial officials charged with gathering evidence, in
favour as well as against the accused, is an essential condition to be met before the
defence can have any chance of exercising 'adversarial rights' because there is no
tradition of the defence having the resources to find evidence for itself.103 But the
notion of sharing information is not so easy to assimilate into the common law
tradition with its emphasis on each side gathering and presenting 'its own' evi-
dence. Although the Court has claimed that the requirement of fairness under
Article 6 that the prosecution authorities disclose to the defence all material evi-
dence for or against the accused is one which is recognised under English law,104
this is not a principle that has been deeply embedded in the English tradition. It is
true that the notion of inspecting the depositions on which the accused was to be
committed for trial dates back to the nineteenth century,105 but it has taken much
longer for the principle of 'unused' prosecution material to be disclosed.106 Even
today the notion that evidence is used by one side or the other rather than shared is
retained in the notion of two sides holding on to'their' evidence unless required to
100 Rv Galbraith [1981] 1 WLR 1039.

101 J. Jackson,'The Impact of Human Rights on Judicial Decision Making' in Doran andJackson, n 6
above, 109, 118.
102 J. H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003).
103 Jespers v Belgium, n 73 above, 87-88.
104 Edwards v United Kingdom (1993) 15 EHRR 417 at [36].
105 P. Devlin, The Criminal Prosecution in England (London: Oxford University Press, 1960) 6.
106 See Rv Ward (1993) 1 WLR 619.

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John D. Jackson
do so by rules of disclosure. Meanwhile English procedure has fallen foul of the

European Court on issues of disclosure in a number of cases."07 Disclosure is now
governed by a statutory regime which determines what material needs to be dis-
closed by each side in a two stage process of disclosure.108 But it has been pointed
out that it falls short of European jurisprudence both in failing to require the
prosecution to disclose all material evidence and in failing to provide the defence
with recourse to judicial review at the first stage of prosecution disclosure.109
Besides, the disclosure obligations only come into play at the stage when a case
has been investigated. There is no obligation on the prosecution to disclose infor-
mation while investigations are ongoing."1
TOWARDS CONVERGENCE OR REALIGNMENT?
It has been seen that traditional common law and civil law approach
have been challenged by some of the rulings of the Strasbourg a
principle of equality of arms has required civil law countries to
differentiation between those exercising judicial functions and th
'party' functions. The principle of an adversarial trial has also req
tems to give greater weight to defence rights to examine witnes
some commentators have argued that this move towards adversa
moting some sort of convergence between the two legal traditions
that the European Court's idea of adversarial proceedings does not
respond in every respect with the notion as it is understood in c
countries. The Court itself did not set out with any presumption
mon law concept of a fair trial is superior to the civil law concept
superior to the former."' We have seen that the common law trad
equally discomforted by the 'adversarial' principle of open disclosu
evidence. The Court has steered clear of imposing any abstract mod
contracting parties.112 Instead, as we have seen, it has tried to'translat
ples in Article 6 in such a manner as to make them amenable to ac
within both common law and civil law traditions.
It is tempting to see in this some sort of gradual convergence of party and court
dominated procedures towards a mixed model of proof, more party-orientated
than traditional continental criminal procedure but falling short of the party con-
trol exercised in the common law adversarial trial. But we would argue that rather
than attempt to piece together the various strands of both traditions, borrowing
from each tradition where possible to reach a compromise between the two, the
107 See, for example, Rowe and Davis v United Kingdom, n 80 above; Atlan v United Kingdom (2001) 19
June, Edwards and Lewis v United Kingdom (2003) Applic nos 39647/98 and 40461/98.
108 See Criminal Procedure and Investigations Act 1996.
109 S. D. Sharpe, 'Article 6 and the Disclosure of Evidence in Criminal Cases' [1999] Criminal Law
Review 273. New changes to the regime enacted in the Criminal Justice Act 2003 will remedy
some of these defects. See M. Redmayne,'CriminalJustice Act 203: Disclosure and its Discontents'
[2004] CrimLR 441,444-445.
110 See Spencer,'Evidence' in Delmas-Marty and Spencer, n 5 above, 594, 632.
111 Swart and Young, n 15 above, 86.
112 Chiavario, n 82 above, 542.

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Court has developed its own distinctive brand ofjurisprudence through the prin-
ciples of the equality of arms and the right to an adversarial trial which is trans-
forming rather than merely mixing together the two traditions. As explained, the
notion of adversarialism is far removed from that which is evident in common
law countries. Delmas-Marty has argued that the great lesson of the European
jurisprudence is that no model of criminal procedure - accusatory, inquisitorial
or mixed - has escaped censure by the Strasbourg tribunals.'3 Instead the Com-
mission and Court have over the years developed a vision of participation in the
decision-making of the justice system which is rooted both in common law prin-
ciples of natural justice and due process and in what is known on the continent as
la theorie de la procdure contradictoire. At the heart of this vision is what Delmas-
Marty has called the 'contradictory debate' - the rejection, as she has put it, 'of
revealed, uncontested truth replaced by facts which are contested and only then
established as truths'.114 Her own Commission in France went some way towards
attempting to realise this ideal in practice when it recommended that defence law-
yers be given enhanced rights of access to their clients in custody, access to the
official dossier, a right of attendance at judicial hearings and the power to request
investigative acts of thejuge d'instruction.15
But if this vision is rooted in both common law and civil law traditions of
criminal justice, the Court's jurisprudence has shown that it has not always been
evident in the practice and procedure of national systems. In drawing attention to
shortcomings in the procedures of national systems, the Court has had to develop
its vision in a piecemeal fashion, case by case, proceeding on the basis, as the Court
has done throughout its jurisprudence, that the Convention is a living instrument
that requires adaptation as circumstances change. Nevertheless, it is possible to
identify four broad strands in the development of its vision of defence participa-
tion in the criminal processes of proof that require to be accommodated within
national systems. First, defendants cannot be required to participate in the proof
process. Although Article 6 makes no mention of the privilege against self-incri-
mination, the Court made it clear in 1993 that the right of anyone charged with a
criminal offence to remain silent and not contribute to incriminating himself flo-
wed directly from Article 6 of the Convention.16 At first glance it may seem that
the principle of participation sits uneasily with a principle that permits defendants
to refuse to participate. But if participation is viewed broadly as the right of the
individual to choose to participate in the fact - finding process, then this must be
compatible with a right to choose not to do so."' This does not mean, however,
that in situations which clearly call for an explanation from the accused, accused
113 M. Delmas-Marty,'Toward a European Model of the Criminal Trial' in M. Delmas-Marty (ed),

The Criminal Process and Human Rights: Towards a European Consciousness (Dordrecht: Martinus Nijh-
off, 1995) 191,196. See also Fennell et al, n 13 above, 384.
114 ibid, 197.
115 For recent studies on how far these participatory principles are challenging and reforming pre-
trial practice in France, seeJ. Hodgson,'Constructing the Pre-trial Role of the Defence in French
Criminal Procedure: An Adversarial Outsider in an Inquisitorial Process' (2002) 6 International
Journal of Evidence & Proof1; S. Field and A. West,'Dialogue and the Inquisitorial Tradition: French
Defence Lawyers in the Pre-trial Criminal Process' (2003) 14 Criminal Law Forum 261.
116 Funke v France, n 62 above.
117 Chiavario, n 82 above, 570.

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John D. Jackson
persons should not be strongly encouraged to answer questions provided appro-

priate safeguards are put in place."18 This analysis implies a second principle: that
any participation must be on an informed basis. This would seem to require the
assistance of counsel at pre-trial stages when the accused is being questioned, full
disclosure of relevant information to the defence and the right to comment on the
evidence."19 Thirdly, the defence must be given an opportunity to challenge this
evidence including, as we have seen, the right to examine decisive witnesses at
some stage during the proceedings. Finally, the national courts must indicate with
sufficient clarity the grounds on which they base their decisions. This requires
some form of reasoned judgment which can be challenged by the defence.120
The Court has given states considerable leeway in translating these principles
into national law in an attempt to accommodate established procedures within
the two prevailing traditions. It may seem, for example, that jury trial offends
against the principle of a reasoned judgment, but the Court has accepted that
one way of compensating for the lack of a reasoned judgement is by a carefully
framed direction from the judge."21 It is also true that each principle in isolation
may not measure up to the degree of participation permitted in one or other of
the established traditions. For example, the right to examine witnesses in the
adversarial tradition has not been confined only to decisive witnesses. By contrast,
however, the second principle requiring informed defence participation before
trial goes much further than traditional adversarial or inquisitorial procedure.
Collectively, it may be said that the principles extend the boundaries of participa-
tion beyond those that have been traditionally permitted within each of the tradi-
tions and the established procedures have had to be realigned upon a more
participatory footing.
It is no longer possible for proof processes to be dominated entirely by judicial
inquiry but neither is it possible for them to be dominated entirely by a trial con-
test between partisan parties refereed by a passive judge. Instead defence participa-
tion has come to enable defendants to play an active role in the proof process
throughout the course of the proceedings, with access to legal advice when sus-
pects are being questioned and material evidence disclosed to the defence well
before trial. This seems to call for more than just a realignment of procedures. It
requires a change in legal culture on the part of public authorities. In the common
law tradition judges have long had a responsibility to guarantee a fair trial but
what is now required is a much more protective stance towards defendants on
the part of those acting on behalf of public authorities - including police officers
and prosecutors, as well as judges - throughout the criminal process. It requires
those responsible for examining defendants in the preparatory phase of procedure
to ensure that rights to legal access are safeguarded. In the course of criminal
investigations it requires police and prosecutors to search for evidence, a charge et
118 Murray v United Kingdom (1996) 22 EHRR 29.

119 The precise parameters of the right of access to counsel before trial, like the right of silence, remain
uncertain. Cf Murray v United Kingdom, ibid, Brennan v United Kingdom (2002) 34 EHRR 507; Ocalan
v Turkey (2003) Application no 46221/99.
120 Hadjianastassiou v Greece (1993) 16 EHRR 219 at [33].
121 Saric v Denmark (1999) Applic no 31913/96.

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Sdcharge, and then to share this information with the defence.122 Then in the
course of the trial itself prosecutors must consider whether to rely on evidence
that has been tainted by coercion or illegality and judges must adopt a vigilant
approach to ensure that convictions are not based substantially on unexamined
or otherwise suspect evidence. Although all this requires a considerable change
of culture on the part of public authorities, particularly where prosecutors and
judges are unused to monitoring investigative activities,123 it would also seem to
entail a change of culture on the part of defence lawyers who have been accus-
tomed within the common law tradition to focus their proof-gathering activities
on the trial. Now they are obliged to represent their clients at earlier vital stages of
the proof process and, with greater rights to disclosure, they are being encouraged
to participate in this process at a much earlier stage.124
The culture change necessary to align procedures towards a participatory
model of proof is not one that merely requires active protection of defence rights.
Although the Court has been incrementally widening the scope of defence parti-
cipation throughout its jurisprudence, in doing so it has also had to take cogni-
sance of other Convention rights. One issue that has come to exercise the Court in
recent years has been how to protect the interests of particularly vulnerable wit-
nesses and victims in the course of criminal proceedings. In the landmark decision
of Doorson v Netherlands'125 in 1996 the Court accepted that although Article 6(3) (d)
guarantees the right of a defendant to examine or have examined witnesses
against him, steps may be taken to limit this guarantee in the interests of witnesses
where, for example, their life, liberty or security of person may be threatened or
their interests affected within the ambit of Article 8. The Court concluded that
contracting states should organise their criminal proceedings in such a way that
those interests are not unjustifiably imperilled, issuing the following important
statement:
Against this background, principles of fair trial also require that in appropr
the interests of the defence are balanced against those of witnesses or vict
upon to testify.126
This statement appears to require the interests of victims and witnesses to b

into the principles of fair trial. The Court is not suggesting that the pr
fair trial be balanced against other Convention rights. The principle of a
remains absolute. However, the principles of fairness enshrined in Arti
122 This has not traditionally been a requirement on the police conducting criminal inve
the UK. However, the Code of Practice under the Criminal Procedure and Investigat
1996, s 23 (1) provides that the police are now expected 'to pursue all reasonable lines
whether these point towards or away from the suspect' (para 3(4)).
123 In the UK prosecutors have been said to occupy a quasi-judicial role but this has fallen f
becoming actively involved in monitoring criminal investigations: see S. Field, P. All
N. Jorg,'Prosecutors, ExaminingJudges and Control of Police Investigations' in Fennell e
above, 227; Brants and Field, n 13 above, 77; Jackson, n 41 above.
124 For the different role that defence lawyers play in the Netherlands and England an
Field, Alldridge andJorg, ibid, 246-247.
125 (1997) 23 EHRR 330.
126 ibid at [70].
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John D. Jackson
to take account of the interests of victims and witnesses as well as defendants. To

date, whilst account must be taken of other Convention rights such as the right to
life, liberty, security of the person and privacy, the Court has not directly consid-
ered that victims are entitled to any direct rights of participation in the criminal
process.127 Nonetheless, the effect of some of the decisions since Doorson has been
to protect the ability of vulnerable witnesses to participate in the process of giving
evidence without undue coercion on the part of the defence.
In Doorson itself the identity of two witnesses was withheld from the defence in
a drugs case where there was concern about threats of violence being used against
them. A number of counterbalancing safeguards had been established. Witnesses
had been questioned in the presence of counsel by an investigating judge, and the
defence were allowed to put certain questions to the witnesses. Consistent with its
previous jurisprudence, however, the Court held that even when counterbalan-
cing procedures were found to compensate the handicaps under which the
defence had laboured, a conviction should not be based either wholly or to a deci-
sive extent on anonymous witnesses.
Some more recent cases involving allegations of sexual abuse, however, would
appear to have severely tested the principle that convictions should not be based
on 'decisive' testimony, whether anonymous or not, that has not been examined
by the defence.128 Certain decisions have reiterated the principle that where a con-
viction is based solely or to a decisive degree on depositions made by a person
whom the accused has had no opportunity to examine or have examined, the
rights of the defence are restricted to an extent that is incompatible with the right
to a fair trial.129 But other decisions would appear to be weakening the principle.
One approach involves apparently diluting the meaning of 'decisive evidence',
accepting that the complainant's evidence is not decisive where there is some sup-
porting evidence against the accused.'30 A more direct inroad into the principle
was made, however, in SN v Sweden1'3 when a conviction was based on the'deci-
sive' but unexamined evidence of a child. The child had been videotaped in the
absence of the defence and although, on his request, the defendant's counsel was
given an opportunity to attend a second interview with the child, in the event the
defendant was not represented at this interview because counsel was unavailable.
Instead, counsel agreed to the interview going ahead in his absence, and certain
questions drafted by him were put to the child by the police. The Court consid-
ered that the criminal proceedings were fair and laid much store by the fact that
counsel had been given an opportunity to attend an interview with the child
before trial and that he was able to have questions put to the child. The Court
appeared to be suggesting that defence rights are satisfied by counsel being
127 On the rights of victims within the European Convention on Human Rights, seeJ. Doak,'The
Victim and the Criminal Process: An Analysis of Recent Trends in Regional and International
Tribunals' (2003) 23 Legal Studies 1; E Leverick,'What has the ECHR done for Victims? A United
Kingdom Perspective' (2004) International Review of Victimology 177.
128 For recent commentary, see Summers, n 15 above.
129 See, eg., AM v Italy (1999), 14 December, PS v Germany (2003) 36 EHRR 61.
130 See, eg., Verdam v Netherlands (1999) Application no 35353/97, NFB v Germany (2001) Application no
37225/97.
131 (2004) 39 EHRR 13.

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allowed to put questions indirectly to the witness. The two minority judges
appeared to agree that the interests of minors may require that the principle of
cross-examination can be 'left aside', but insisted that this should be possible only
in cases where there is neutral corroborating evidence.'32 The authorities had not
done everything that could have been done in this case to offset the risk of unfair-
ness. One possible step that would in the dissentients' view have served as a coun-
terbalancing procedure which would have compensated sufficiently the handicaps
under which the defence laboured would have been to call for forensic psychol-
ogy experts who could have helped in the assessment of the victim's behaviour and
testimony.
The emphasis given to the needs of particularly vulnerable witnesses in the
light of modern day concerns surrounding effective sexual abuse prosecutions is
an example of Article 6 being interpreted as a living instrument. The Court
would appear to have accepted that in these cases direct examination by counsel
may not be appropriate. Its decisions have been criticised on the ground that the
Court has succumbed to a zero sum calculation according to which safeguarding
the interests of witnesses must mean diminishing the rights of the defence.33 But
the principle of the need for compensating safeguards, such as the involvement of
independent experts in the assessment of witness evidence, has meant that the
Court has not lightly sacrificed the rights of the defence. All this puts a heavy
onus on public authorities to arbitrate fairly between the interests of witnesses
and the interests of the defence. A culture of safeguarding witness and defence
participation would seem to be required but this need not translate itself into
common procedures across the European systems. On the contrary, the flexibility
which the Court has given states to organise their procedures to meet the stan-
dards of fairness in Article 6 means that states are encouraged to think imagina-
tively of the various ways in which the rights of defendants and witnesses may be
respected in their indigenous systems. This may require some significant modifi-
cation to traditional approaches. The attendance of defence lawyers at pre-trial
witness interviews in order that the demeanour of the witness may be observed
and questions may be put indirectly, the pre-trial questioning of the witness by a
judge and the involvement of court-appointed or independent forensic psychol-
ogy experts are all procedures that are alien to the common law tradition. Yet it
may be that these and other measures will have to be contemplated if the autho-
rities wish to find ways of protecting particularly vulnerable witnesses from direct
cross-examination.
Another area where imaginative solutions are called for would s

cases where sensitive information needs to be kept away from the
Court again would seem to have accepted that this is another area
defence participation rights may need to be qualified. In Rowe and
the Court considered that there were competing interests such as na
or the need to protect witnesses at risk of reprisals or to keep secr
132 ibid (dissenting opinion ofJudges Tiirmen and Maruste).

133 R. K. Kirst,'Hearsay and the Right of Confrontation in the European Court of
(2003) 21 Quinnipiac Law Review 777, 806-07.
134 n 78 above.
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John D. Jackson
police investigation of crime which must be weighed against the rights of the
accused. Once again, however, the Court applied the rule that any departures
from the defence right to disclosure must be 'strictly necessary' and must be ade-
quately compensated by other procedures."35 In two other decisions handed down
on the same day as Rowe and Davis,136 the Court appeared to accept that it would
be sufficient to submit the sensitive material to a judge at an ex parte hearing in
order that the judge could rule on the issue of disclosure. In these cases, however,
the information withheld played no part of the prosecution case and in two more
recent cases the Court held that where the undisclosed evidence may have been
taken into account by the judge on an issue of fact requiring his determination -
such as, in these cases, allegations of entrapment - the procedures employed to
determine issues of disclosure did not comply with the requirements to provide
adversarial proceedings and equality of arms.137 This would seem to increase the
pressure on the UK to appoint special counsel in public interest immunity hear-
ings, a procedure that jars with the principle that communications between coun-
sel and client should be frank and open. The pressure to deal effectively and fairly
with terrorist cases is prompting other practices alien to UK tradition to be con-
sidered, including the use of non-jury trials - already established in Northern Ire-
land - and even the appointment of an investigating judge to be responsible for
gathering and evaluating evidence before trial.'38
All this suggests that, as the European Court refines and develops its vision of
participatory proof in the light of modern day conditions and takes criminal pro-
cedure beyond the traditional boundaries of adversarial/inquisitorial discourse,
the European states are given considerable freedom of manoeuvre in realigning
their procedures in a manner that respects the rights of the defence. This means
that while countries may naturally try to hold on to procedural traditions indi-
genous to their system as best they can, they are encouraged to develop distinctive
processes which diverge from the traditional norm for particular kinds of case. It
follows that there may be considerable divergence in the manner in which the
participatory principles developed by the Court are translated from one system
to another and even from one category of case to another within the same system.
CONCLUSION
The debate on whether European systems of criminal proof ar

diverging has continued to be dominated by 'adversarial' and 'in
of proof, with some suggesting that European models are conv
'adversarial' model. The article began by attempting to identify
'adversarial' and 'inquisitorial' features of criminal proof an
although it is not easy to find agreement on what these should
135 ibid at [61].

136 See Fitt v United Kingdom (2000) EHRR 1;Jasper v United Kingdom (2000)
137 Edwards and Lewis v United Kingdom, n 107 above.
138 See eg Privy Counsellor Review Committee, Anti-Terrorism, Crime and Secur
Report (2004); House of Lords and House of Commons Joint Committee
Review of Counter-Terrorism Powers (2004), Eighteenth Report of the Session 2

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model would encompass one or more of the following characteristics: a high

degree of party control over the fact-finding process, a concentrated and climactic
trial, a heavy reliance on oral testimony, a bifurcated tribunal involving judge and
jury and exclusionary rules of evidence. Through an analysis of the jurisprudence
of the European Commission and Court the article went on to show that the
Strasbourg institutions have been steadily developing a model of proof which
requires none of these traditionally adversarial features to be adopted. Although
the Court has referred to 'adversarial' rights, the model of proof that has been
developed is better characterised as 'participatory' than as 'adversarial' or 'inquisi-
torial'. Contracting parties to the Convention are having to realign their processes
and procedures, and indeed the attitudes of the professional actors concerned
must adapt, to meet the standards of fairness that this model entails.
The Court is unable through its practice to impose any detailed evidentiary
rules upon contracting parties, since it has always proceeded upon the basis that
contracting parties should be given as much freedom as possible to organise their
systems in order to meet the Convention standards of fairness. It is therefore unli-
kely that human rights law will lead to any clear convergence of evidentiary prac-
tices. On the contrary, it has been argued that we may witness further
fragmentation of existing processes as particular countries adapt their procedures
to meet the demands of fairness laid down by the Court. This is not to say that
other external pressures of the kind mentioned at the beginning of this article,
such as the need for transnational cooperation in the fight against crime and ter-
rorism will not induce greater convergence, difficult as this may be to accomplish.
So long as the present machinery of human rights protection continues in Eur-
ope, however, states will have to comply with the standards of fairness laid down
by the Court. If the Court continues to evolve its jurisprudence towards the kind
of participatory model described in this article, this will mean that any conver-
gence that is achieved will have to meet the participatory standards of proof
required by this model.
764 p The Modern Law Review Limited 2005

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The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence,

Stable URL: http://www.jstor.com/stable/3699056

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INTRODUCTION - CONVERGENCE OR DIVERGENCE?

The debate within comparative law scholarship as to whether leg

*Queen's University Belfast. This paper is a much developed version of a paper

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evidence as a field of study. Some commentators have detected a slow, gradual

3 See, for example, R. S. Frase,'Main-Streaming Comparative Criminal Justice: How to Incorpo-

738 0 The Modern Law Review Limited 2005

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8 M. Damaika,'The Uncertain Fate of EvidentiaryTransplants: Anglo-American and Continental

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'inquisitorial' have continued to dominate the debate on processes of proof,14 there

THE ADVERSARIAL AND INQUISITORIAL DICHOTOMY

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16 Damaika, ibid, 558-559.

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Another feature which is commonly considered to be an essential chara

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said to be essential characteristics of the two models. As soon as we start to flesh

744 C The Modern Law Review Limited 2005

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39 See, eg., Pizzi, n 33 above.

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746 C The Modern Law Review Limited 2005

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THE EVOLUTION OF EVIDENTIARY HUMAN RIGHTS NORMS

The right to a fair trial

A number of countries have long included within their constituti

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Commission of Human Rights and by the European Court of Human Rights.50

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o The Modern Law Review Limited 2005 749

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The equality of arms principle

58 Hadjianastassiou v Greece (1993) 16 EHRR 219 at [33].

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has been or could be collected by the competent authorities.73 The Strasbourg

The right to an adversarial trial

73 Jespers v Belgium (1981) 27 DR 61.

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79 Damaika, n 15 above, 561.

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This again is an illustration of accommodation towards a civil law approach

754 , The Modern Law Review Limited 2005

91 J. R. Spencer,'French and English Criminal Procedure: A Brief Comparison' in Markesinis, n 1

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100 Rv Galbraith [1981] 1 WLR 1039.

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do so by rules of disclosure. Meanwhile English procedure has fallen foul of the

TOWARDS CONVERGENCE OR REALIGNMENT?