Beyond tradition

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