Adversarialism: a biased and brutal exercise? or Inquistorialism: a search for the truth?

Adversarialism: a biased and brutal exercise? or Inquistorialism: a search for the truth? Which court system is really the best for England and Wales?

The question of whether an adversarial system or inquisitorial court system should be used in England and Wales is one that as someone interested in the law, I keep asking myself. Although, before I address why this question keeps coming back to me, I’d like to outline why this is an important question to ask. In England and Wales, we have a predominantly adversarial court system (I’ll get onto defining these terms shortly), yet, it is under this system that major miscarriages and misapplications of justice are applied. Rather than attempting to fix a practically flawed system, that excludes evidence, paints two different pictures, and ultimately, tactfully makes the jury attempt to do so much mental parkour that they eventually forget how to think and automatically believe you as a defence barrister; In the interests of dispensing fair justice, would it not be easier to flip the court system on its head, and principally change it? This is what my post will attempt to answer.

In theory, an adversarial court system is fairly straightforward. Simply, when presented with a case, two advocates represent their parties’ position to the court, usually to a bench of magistrates in the magistrate’s court or in the crown court, a jury. The system has two main stages – what happens before the trial and what happens during the trial. Before the trial, using evidence gathered by the police, the prosecuting barrister will attempt to construct a case that proves beyond reasonable doubt that the defendant is guilty, on the other side of the coin, the defendant, using the same evidence, of which they can ask the police to investigate certain areas more, will do the opposite, and show that the evidence does not prove beyond reasonable doubt that they are guilty of the charge they are convicted of. This seems more than reasonable, and before the courtroom is entered, holds firm guiding principles, some of which are, exclusionary rules of evidence, resulting in hearsay not being used as permissible evidence (unless in special circumstances) and the rule that prevents barristers from misleading or lying to the court (attempting to convey that the defendant is innocent when they have told you otherwise). It is these two core rules that make the adversarial system so important, and before even stepping into the court, act as a safeguard to ensure that fair justice is dispensed. Within the court, the barristers, arguing that their own version of the story is true, will then call on witnesses. Here a process called cross-examination occurs, which has the aim of testing the evidence of a witness, to potentially expose weaknesses where they exist and, if so, to undermine the account the witness has given, including testing the reliability of their evidence and/or their credibility as a witness. The evidence is then left with the magistrates or jury, who deliberate and only provide a one-or two-word judgment, ‘guilty’ or ‘not guilty’. It is at this point that one may question the title of the post, and ask, ‘how is this anywhere near to a biased a brutal exercise?’, and this would be a valid question, but is one that can easily be challenged by looking at the first two words of this paragraph … ‘in theory’.

In actuality, this does not run as smoothly, and almost at every stage outlined in the process, does the system fail at ensuring that fair justice is dispensed. In my virgin eyes (not yet having stepped into a courtroom due to Covid19 and only watching cases from the comfort of my home), The Secret Barrister describes the reality of the situation best; ‘[the adversarial system] does not seek to take a cool, impartial look at all available evidence. It does not calmly invite differing interpretations of a comprehensive fact-gathering exercise.’ and it is apparent why that is so.

Before the case, is where in practice the adversarial system comes tumbling down to its knees, namely, in constructing the case. On both sides this happens; from the side of the prosecution, the police, conscious of the political imperative to achieve convictions, investigate alone, under their own steam. They pass what they find to the CPS, which carefully selects the evidence that points towards guilt – even if in some cases guilt is not apparent. The defence may choose to do the same, asking for evidence not to be used, but they are ultimately worse off. Having to ask the body prosecuting you, already under the pressure to secure a guilty conviction, to investigate a line of inquiry that would undermine their argument is not realistic, and as such, causes for a lack of documentation to defend your client. One may ask why the police find conviction figures so important ‘they are just numbers aren’t they?’ which is a wholly valid point, but it is this need for convictions coupled with systemic bias within the court system that explains this lack of fairness in sharing documentation. The answer to this is simple, prosecutors even with the best of intentions can become convinced of the guilt of a person who turns out to be innocent. In that case, they are liable to completely ignore any evidence that is exonerating and never ask the right questions. This causes for the police to refuse to want to make their case weaker and automatically makes the system ‘complainant leaning’.

The process within the courtroom also frighteningly frays from theory. Cross-examination is used in a hostile and forceful way, complainants may have to retell horrific stories, of which they must have to do in front of the court and likely months after the incident. It is this, and the greyhound barristers willing to attack any mistake made and convince the court that you as a complainant are not worthy of the jury’s consideration, that makes the process so defeating, and hugely adversely impacts the defendant. Following this, we have the most objective failure of the court, its obscurity in judgment. The adversarial model – or at least our version of it – eschews narrative verdicts. Instead of the verdict being the conclusive answer, it is a simple ‘guilty’ or ‘not guilty’ and is more often the catalyst for further questions that can never be resolved. And so, at the end of this paragraph, the limitations of the adversarial system in practice have been outlined: the limited evidence, the lack of trust in police impartiality, the degrading process of cross-examination and the obscure one- or two-word ruling are all huge impediments to dispensing fair justice. Although, does this really mean that the adversarial court system is a hugely biased a brutal exercise, and thus, one that is not fit for England and Wales? Well, to answer this question, we must first observe the inquisitorial system.

In a headline, the inquisitorial system is that rather than equip two adversaries (the defendant and complainant) with the means to present their own partial evidence to an independent fact-finder (the jury), all roles are vested in the state. Typically, the criminal investigation is carried out by judicial police officers, under the supervision of the prosecutor, who decides whether to pursue the matter to a trial. Evidence is gathered both for and against the accused in a disinterested and objective manner, and the investigation and its findings are documented in a file, or dossier, and the prosecutor’s objective is not to obtain a conviction – unlike the CPS – their public duty is to search for and uncover the truth. The trial is also judge­led. In most cases, the crucial decision is reached solely by reference to the hundreds of pages of witness statements, expert reports and photographs that comprise the dossier, and so, this means that rules of evidence and cross-examination are non-concept, the role of the lawyers is therefore marginalised, the judge is trusted to weigh up the evidence, distinguish between primary and secondary accounts and attach appropriate significance to what appears in the dossier. Previous convictions of the defendant are not only admissible but considered important to the determination of guilt or innocence. If there is any evidence which the court considers ought to have been obtained, further inquiry can be ordered. Crucially, when the court retires to consider whether guilt is proved to the standard of in conviction it must provide not only a one- or two-word verdict, but reasons for its conclusions. This seems brilliant. A system that irons out all the creases we have in our court system. But sadly, I feel that whilst the adversarial system has fallen to its knees in practice, an entirely inquisitorial led court system would break both its legs.

An inquisitorial system relies entirely on state impartiality, which, given the flaws pointed out in the adversarial system (the police having conviction rates etc.) would negatively affect defendants even harder. For whilst the adversarial system is more liberal towards victims, it would be hard to use such a light term to describe how potentially innocent suspects would be treated. Under an inquisitorial system, the accused are not entitled to a defence lawyer when being interviewed by the police, and the reason given for this is that “the presence of a lawyer would hinder the development of rapport between the interviewer and suspect’. This works in the opposite manner to the adversarial system, and to a degree, leaves suspect’s vulnerable to greater abuse from the state, particularly in terms of dirty interviewing techniques and the ability for a suspect to remain unpressured into telling a story. My point here is short because that’s all it needs to be. A system that does not allow defendants to properly defend themselves against the state opens a whole new can of worms that would not work with the guiding legal principles in England and Wales.

And here we are, establishing that an adversarial system isn’t necessarily a biased and brutal exercise, yet also that an inquisitorial system is not a pure and honest search for the truth, (here is where I can hear my A level teachers asking me to address the question – of which I will get onto doing now). One may feel that neither system is effective in practice and that we are in trouble. In this post, I have outlined how the systems work in theory and how they do in practice, some may find this irritating, because nothing works as well in practice as it ever does in theory, however, to compare these two systems theoretically would be to compare apples and oranges. It is important to understand the practicalities.

The question I asked was, ‘which system is really the best in England and wales?’, and I am afraid that the answer is, in fact, both. You see, to implement a hybrid system would be far more effective than jumping to each of the ‘court system vices’ and is likely to double stitch up any holes that have been ripped into our adversarial blanket. An independent state-run system would work far better in civil and family cases, particularly in which defendants are in deep conflict or do not have the means to pay for their own representation. This point does not come from my own head, but draws on ideas put forward as early as 2014 by Lord Thomas arguing that such a change was needed to deal with our financially squeezed system, that leaves the most vulnerable unrepresented, and has been to a degree implemented by providing family judges with greater power to intervene and ask for evidence. Although, more needs to be done. Whilst I do not advocate for flipping the system on its head, I do advocate for significantly increasing the inquisitorial input that we have. To reduce state favouritism and bias, particularly in a civil sense, that has now more than ever come under scrutiny.

And so, I now conclude; on paper, an inquisitorial system is far better, but in practice, it truly isn’t and is rather unrealistic to even assume that it would be possible to completely change the system, however, a new hybrid system, that further embraces inquisitorial influences is not, and is likely to work far better is dispensing equal and fair justice, something that I don’t feel that anyone could oppose. This new legal paradigm is an attractive one, and certainly, one that I hope to see in the future.

Thank you for reading my post! Please do comment below, I am more than happy to be challenged.

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