Miscarriages of Justice From a Comparative Legal Perspective

Chrisje Brants, University of Utrecht

Drawing on studies from Great Britain and The Netherlands, this paper will address the question of whether there are systemic factors that render miscarriages of justice in the one country more likely than in the other. It is often thought in Continental Europe that the adversarial system, with its reliance on two party procedure and trial by jury, is more likely to produce a miscarriage than an inquisitorial system, which relies on a non-partisan public prosecutor or magistrate to gather, and on a professional judiciary to evaluate, the evidence. Certainly at first sight, there seem to have been relatively fewer miscarriages of justice in the Netherlands than in Great Britain (although, for a number of reasons, that is not necessarily the case). There does, however, seem to be pattern to why wrongful convictions occur in the way that they do that is differenbt in the two countries -- differences that can be attributed to a number of factors deriving from socio-political arrangements, legal culture, specific features of criminal procedure and the relationship between them.

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Updated 05/20/2006