MIXED AND HYBRID SYSTEMS OF JUSTICE AND THE DEVELOPMENT OF THE ADVERSARIAL PARADIGM: EUROPEAN LAW, INQUISITORIAL PROCESSES AND THE DEVELOPMENT OF COMMUNITY JUSTICE IN THE COMMON LAW STATES - DOI: 10.12818/P.0304-2340.2019v75p513

Resumo

This article considers the movement away from traditional adversarial processes in common law
jurisdictions by considering the influence of civil European law and procedure on the development
of adversarial justice. It does this by first considering aspects of adversarial procedure that preclude
alternative approaches to justice against the Framework Directives of the Council of Europe, the
jurisprudence of the European Court of Justice and the European Court of Human Rights, and the
practice and procedure of the International Criminal Court. Collectively, these European approaches
demonstrate how mixed and hybrid adversarial-inquisitorial systems address the needs of trial
participants in a participatory model of justice. The second part of this article considers the growth
in interventionist problem-solving and community-based justice across four common law jurisdictions
that traditionally identify as adversarial, namely the United States, Canada, England and Wales,
and Australia. The rise of interventionist community courts in adversarial jurisdictions demonstrate
that movement toward mixed and hybrid processes akin to the civil European experience is neither
radical nor alternative, but rather supported by a line of domestic authority that for some time has
recognised the benefits of alternative, inquisitorial and court supervised systems of justice.
KEYWORDS: Adversarial Justice. Adversarial Procedure. European Law. Common Law.