Due Process

‘Due process’ is a central concept in Anglo-American criminal justice that safeguards the rights of those subject to the criminal process and guides state officials, vital to the authority of the criminal law and the legitimacy of the legal system. Comparison reveals what is distinctive about Anglo-American and German conceptions of due process, and how far their development is the product of their legal history and local legal culture. As Galligan observes of dispute over ‘whether the adversarial nature of the trial at common law is to be preferred to the more inquisitorial procedures of continental Europe … the real debate in comparing the two approaches is not about which will lead to more correct outcomes, but rather what values are relevant’. Comparative analysis permits a better understanding of what is distinctive in the respective systems. It reveals what commonalities exist and to what extent international developments, not least the important jurisprudence on the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR), foster convergence among signatory states.