Adversarial versus inquisitorial legal systems

The Oxford Dictionary defines the word ‘adversary’ as ‘one’s opponent in a contest,
conflict, or dispute’. That definition goes some way to explaining the adversarial legal
system in the England and Wales under which, essentially, representatives from each
party take opposing positions to debate and argue their case, whilst the Judge's role is
to uphold principles of fairness and equality and to remain neutral until the very end
when he gives judgment. This contrasts with the inquisitorial legal system (commonly
found in civil law countries e.g. France / Italy) which sees the Judge take a much more
active role in preparing evidence, questioning witnesses and finding the truth.

In an adversarial legal system, previous decisions made by higher Courts form a

precedent which will bind the lower Courts. In contrast, Judges in an inquisitorial legal
system tend to be free to make decisions on a case-by-case basis.

The principle behind the adversarial legal system is to place distance between the
investigation taking place and the person who ultimately decides the outcome. The
system empowers the parties to the dispute to take control of their own case on the
basis that they (as opposed to a judge) are better placed to present their best case.

However, even though an English Judge may not decide what matters to investigate
and how to do so, his role is by no means passive. Under the Civil Procedure Rules
("CPR") which came into force in 1999, the Court has very wide case management
powers which are used to ensure that the dispute is resolved efficiently and in
accordance with the CPR’s overriding objective of enabling the Court to deal with cases
justly and at a proportionate cost. The Court will do so by excluding superfluous
evidence, managing the parties' costs, and setting a strict timetable to Trial under threat
of sanction should any of the dates be missed.

There is, however, a perceived unfairness in the adversarial legal system in situations
where the parties do not have 'equality of arms'; a better resourced party may be more
able to gather evidence and present a stronger case to the Judge than their opposition.
Furthermore, because the parties have near complete conduct of the case from start to
judgment, they are able to choose what evidence they put before the Court. In
comparison, in an inquisitorial system the Judge is involved throughout the process and
actually steers the collation and preparation of evidence. He is therefore able to decide
what evidence is admitted by both parties, before questioning the witnesses himself and
going on to make an informed decision on the outcome.

That said, given the importance placed on the investigative role of an inquisitorial
Judge, the risk of bias is (arguably) greater in an inquisitorial system.
Adversarial and Inquisitorial Systems of
Justice
Adversarial and inquisitorial systems of justice represent two different means of
conducting trials with adversarial systems used in common law jurisdictions such as
England and the inquisitorial system being prevalent in mainland Europe. This essay will
outline the characteristics of each system and consider which one is best suited to the
assessment and evaluation of facts.

The adversarial system is based on the opposing sides acting as adversaries who
compete to convince the judge and jury that their version of the facts is the most
convincing. The lawyers are given free choice in terms of which issues are presented,
what evidence to adduce in support of their submissions and what witnesses to call. The
judge presides over the trial and rules on disputed issues of procedure and evidence,
asking questions of the witness only to clarify evidence, and concludes the trial by
summing-up the facts for the jury and advising them of the relevant law. It is not open
to the judge in an adversarial system to enquire beyond the facts and evidence that are
presented by the opposing lawyers; his role is largely passive; he is an impartial referee
who advises the jury on matters of law.

This differs dramatically to the role of the judge in an inquisitorial system which is based,
as the name suggests, on an inquiry into the case thus the judge is not limited to
hearing the submissions of the parties but can direct the lawyers to address specific
points or to call particular witnesses. The title of the presiding judge as ‘juge
d’instruction’ which translates as ‘investigating magistrate’ in the French criminal justice
system gives in indication of the role of the judge in directing proceedings. Unlike the
adversarial system, the role of the inquisitorial system is not to determine guilt or
innocence of one particular person but to find the truth. As such, the judge, as
investigating magistrate, conducts an inquiry that involves the questioning of witnesses
and suspects, the issue of search warrants and an examination of the evidence with the
aim of discovering both incriminating and exculpatory evidence. The prosecution and
defence lawyers will keep a close eye on the judge’s investigation and can request that
he considers specific evidence or takes a particular course of action but the ultimate
responsibility for the line of inquiry remains that of the judge. If, at the conclusion of the
investigation, the judge decides that there is a case against a particular suspect, the
matter will proceed to trial which will take an adversarial format.
An inquisitorial system involves a preliminary investigation conducted by an
investigating magistrate as a means of seeking the truth. It is accepted that the
adversarial system does not do this:

A trial does not involve the pursuit of truth by any means… the judge’s role in that
system is to hold the balance between the contending parties without himself taking
part in their disputations. It is not an inquisitorial role in which he seeks himself to
remedy the deficiencies of the case on either side (R v Whithorn (1983) 152 CLR
657 per Dawson J at 682).

As the respective lawyers for the Crown and the defendant in an adversarial system have
the freedom to choose what evidence to present to the court, there is a possibility that
the truth in its entirety will not emerge at all. Although the adversarial system does
operate within a system of rules of disclosure, this does not compel both sides to be
entirely open with regards the evidence that they possess; it merely requires that they
disclose any information that is specifically requested by their opponent. Of course, this
operates to restrict the emergence of evidence; if it is not known to exist, it will not be
requested. Therefore, in an adversarial system, if the defence is in possession of negative
evidence, they can merely ignore it and hope that it is not requested by the prosecution
(and vice versa).This would not occur in an inquisitorial system as the investigating
magistrate is in charge of an examination of all of the evidence, although he can be
directed towards evidence by the lawyers on both sides but they do not have the ability
to withhold or obscure evidence from him. This approach, then, seems to be a more
effective way of finding the truth in a particular case as there are no restrictions on the
emergence of key evidence thus all the facts and evidence are available for scrutiny.

This means that a thorough review of the facts has occurred prior to the
commencement of a trial thus it is thought to be a cost-effective means of dispensing
justice as the pre-trial investigation will reduce the number of contested trials. This can
be subject to trenchant criticism for its erosion of a fundamental principle of criminal
justice; the presumption of innocence. A defendant in an inquisitorial system is only on
trial as the investigating magistrate believes that the evidence suggests that he is guilty.
As such, how is it that his subsequent trial can be said to take place within the context of
a presumption of innocence when all those involved in the process, including the jury,
know that the defendant is only there because the investigating magistrate is convinced
of his guilt?

The inquisitorial system appears to be more adept at identifying and investigating the
relevant facts and ensuring that this is all taken into account when deciding to proceed
with a trial. As such, it seems to be a more cost-effective method of conducting a
criminal trial. The central question, however, is whether it dispenses justice. An
investigating magistrate may reach an erroneous conclusion that leads to the wrong
individual being tried in circumstances where his presumption of innocence is eroded.
An adversarial system protects against wrongful convictions by ensuring that the
process is slanted in favour of the defendant in the belief that it is better for ten guilty
men to walk free than for one innocent man to be imprisoned.