Abstract
This essay compares and contrasts the two main legal systems used in Europe. Every jurisdiction has a slightly different variation of the system it uses. These variations are not discussed in detail as the principles can be fairly well generalised without them. It is recognised that both systems are attempting to achieve the same result even though the approaches seem to be contrasting. Three key issues are discussed, the responsibility of the judge in a trial, the position of the accused and the influence of the pre-trial investigation. The usual distinction between the two systems is that the common law system tends to be case centred and thus judge centred, whereas the civil law system tends to be codified by the general abstract principles. However it is clear that within Europe, the two systems are to some extent converging partly because of the influence of the European Court of Human Rights. The historical roots of the two systems are briefly outlined. In this historical development, it is noted that the confession has full centuries been regarded as a gold standard of proof. This old certainty is now being questioned, particularly in the light of psychological investigations. The very difficult problem of the reduction of criminal liability because of mental ill health is discussed. The general conclusion is that, in the end, it is not the system of criminal procedure that decides whether the outcome of a trial is fair and just, but the way in which the lawyers and others work together.
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Notes
- 1.
Exclusion of illegally obtained evidence is, in the view of the European Court on Human Rights, not under all circumstances part of Article 6 (fair trial) guarantee of the convention.
- 2.
Packer constructed two models, the crime control model and the due process model, to represent the two competing systems of values operating within criminal justice [17].
- 3.
De auditu is the testimony of a witness obtained from third parties.
- 4.
Commission recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (2013/C 378/02).
- 5.
Probably an area of land containing a 100 dwellings.
- 6.
The presumption of innocence in criminal cases is part of the French ‘Déclaration des droits de l’homme’ et du citoyen’ from 1789.
- 7.
In distinction to ‘lack of criminal responsibility’ based on a lack in mental capacity.
- 8.
Dementia, impaired mental capacity.
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Gunn, J., Mevis, P. (2018). Adversarial Versus Inquisitorial Systems of Trial and Investigation in Criminal Procedure. In: Goethals, K. (eds) Forensic Psychiatry and Psychology in Europe. Springer, Cham. https://doi.org/10.1007/978-3-319-74664-7_1
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