The Transformative Criminal Trial Emerges
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This chapter will argue that the modern criminal trial is less adversarial and increasingly decentralised than is currently realised. The criminal trial is emerging as an institution of transformative justice. As Lord Rodger of Earlsferry indicates, the criminal trial need not be organised around the principles of adversarialism to the exclusion of other pathways to justice. As demonstrated in Chapter 3, this decentralisation takes effect through a range of criminal justice policies that challenge the notion that the adversarial trial takes a prescribed form. Such policies not only come to affect the scope of the conventional trial by indictment before a ‘judge and jury’, but affect the pre-trial and sentencing processes as well. The need for expediency, the law and order debate, the rise of terrorism, victim’s rights, and the rise of new court procedures to bind persons over to prevent offending, have each challenged the conventional means by which persons are being held to account for their wrongdoing. The liability of the offender is now dealt with through an array of processes, across a number of tribunals, each of which dislocate the trial experience from a nominal adversarial process. A number of common law jurisdictions are therefore modifying the conventional approach to the adversarial criminal trial to connect individuals, such as victims, and groups, such as the community and service organisations, to effect a different, perhaps less centralised criminal process.
KeywordsRestorative Justice Rape Victim Criminal Trial Fair Trial Injured Party
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