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A HISTORICAL PERSPECTIVE ON
THE ACCUSATORY AND INQUISITORIAL SYSTEMS

Christa Roodt (University of South Africa)

Nothing behoves us so much, in these days of reconsideration of the

fundamentals of criminal procedure, as to consult experience, in the
shape of the history of that subject.
Editorial preface by WE Mikell
to Esmein History of Continental Criminal Procedure (1968) xxv

1 Introduction

In every criminal procedure framework, the scars of the past are ingrained.
Policies are distinctly geared to safeguard against past abuses, and the warnings
of history are unequivocally valuable for our own time. The study and integration
of the accusatory and inquisitorial models of criminal procedure in the twenty-first
century brought about radical shifts in respect of their characteristic features.
Without a broad historical perspective on these systems, we shall certainly also
fail to fully comprehend the social reality, purpose and significance of
contemporary law reforms in the South African system. The individual historical
building blocks of a system expose many of the hidden assumptions that underlie
modern principles of law.

Accusatory and inquisitorial systems rest on fundamentally different assumptions

about the best way of achieving speedy and fair criminal trials.1 The two systems
have always differed with regard to the roles ascribed to the judge in the
fact-finding phase of the trial, and the priority accorded to effective truth finding.2
The relationship between truth and fairness has a profound impact on the content,
scope and implications of fair trial rights. Much would be gained if, in some small
measure, an historical overview may set in place a deeper understanding and
appreciation of different systems of justice, indicating how the "crime control"

1 Jörg, Field & Brants "Are inquisitorial and adversarial systems converging?" in Harding
et al Criminal Justice in Europe: A Comparative Study (1995) 41 43. In general see Tamm
"Con-vergence of legal systems? — The legal historian in a changing world" 1999
Fundamina 1.
2 Sanders "The characteristic features of the civil law" 1981 Comparative and International
Law Journal of Southern Africa 196 207.
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model (inquisitorial system) and the "due process" model (accusatory system)3
could strengthen each other. Promoting the capacity of the South African system
for procedural differentiation based on the choice of the litigants is equally
important. Shifts should not come about haphazardly, and the knowledge of
historical antecedents stays such impulses.

Many Anglophone countries (common law systems) apply an accusatory process,

whereas civil law countries (states in Europe, South America and former Soviet
states in Central and Eastern Europe) apply an inquisitorial procedure.4
Nonetheless, the majority of modern criminal procedure systems are not single-
theory models but procedural hybrids that display a mix of typical features.5 High
levels of national and trans-national crime and the challenges of fair trial impel
some scholars to find the one "ideal model of criminal justice".6 Others are more
interested in finding the best combination of the accusatory and inquisitorial
models for a post-modern context. Research must remain respectful of both
classical forms and the enormous theoretical value of ideal types. For purposes
of this historical perspective, a brief summary of the leading features and basic
tenets of the two models is followed by a discussion of the roots of contemporary
accusatory and inquisitorial systems and the origins of the difference between
them. The role of Ecclesiastical Courts and the procedure of the Holy Inquisition
are highlighted. Traditional English procedure is treated separately, being marked
by several striking features that played an important role in shaping South African
criminal procedure.7

2 Leading features and basic tenets of the accusatory

system

"Accuser" or "adversary" denotes a participant in a contest between two equal,

private opponents at trial. Public, oral and contradictory, the trial takes place under
the formal guidance of the court. The popular if ancient image of the accusatory
system is that of witnesses rendering their competing accounts of events, entirely

3 Fick "'n Vergelyking tussen die akkusatoriese en inkwisitoriese strafverhoorstelsels: Die

belang daarvan" 2000 Tydskrif vir Regswetenskap 45 49.
4 Hodgson "Hierarchy, bureaucracy, and ideology in French criminal justice: Some empirical
observations" 2002 Journal of Law and Society 227; Jörg, Field & Brants (n 1) 41.
5 Frase "Fair trial standards in the United States of America" in Weissbrodt & Wolfrum (eds)
The Right to a Fair Trial (1998) 31 80.
6 Menkel-Meadow "The trouble with the adversary system in a postmodern, multicultural
world" 1996 William and Mary Law Review 5.
7 Malan et al "Transnational litigation in South African law (3)" 1995 TSAR 460.
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voluntarily, after having taken oaths before the elders of the tribe. The elders
ensure fair play towards the accused by protecting his or her procedural
interests.8 This image is still apt today in so far as adversarial protection lies in the
opportunity of the accused to participate in the proceedings. Whether this
opportunity also effectively prevents abuse of the right to prosecute leading to
unfair disadvantage, is another matter.

The adversarial system puts its faith in the assumption that partisan advocacy and
manipulation of evidentiary materials, coupled with equality of arms, can put a
neutral adjudicator in the position to determine the "truth". Advocacy has the
potential to keep judicial idiosyncrasies in check.

Some of the main characteristics of the system featured in this discussion are:

• A neutral and impartial decision-maker who for the most part remains a
passive umpire, regulates the contest. He or she ensures that the rules
of the "game" are observed during the proceedings.
• Adversaries take the responsibility for developing and giving shape to the
evidence, thereby controlling the length and complexity of the
proceedings.
• Partisan lawyers present and test the evidence (the prosecutor and
defence counsel examine the witnesses), as such dominating the trial.
• The judge puts an end to the conflict by deciding against one or the other
of the adversaries.9

3 Leading features and basic tenets of the inquisitorial

system

Inquisitorial systems conjure up images of red-robed men who ordered

incarcerations and extracted tortuous confessions, their methods carrying official
sanction for being aimed at extracting the "truth".

The inquisitorial process assumes that the truth can and must be discovered in
an investigative procedure. The procedural peculiarity from medieval Europe, that

8 Jörg, Field & Brants (n 1) 41; Van Caenegem Legal History: A European Perspective
(1991) 1.
9 Esmein History of Continental Criminal Procedure (1968) 4-7: McEwan Evidence and the
Adversarial Process (1992) 4-8.
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the judge is regarded as the only responsible functionary qualified to discover the
truth, was embedded in all the European countries.10 A judge-centred process
implies that every aspect — including the detection of offences, police questioning
in the pre-trial phase of the prosecution and the direction and conclusion of the
trial — is determined by the independent research, instructions, supervision and
authority of the investigating judge who acts in the public interest as agent of the
state.

During the pre-trial stage, an exhaustive preliminary inquiry is conducted on a

non-contradictory basis so as to give shape to the evidence. The judge identifies
potentially relevant witnesses, and summons, questions and screens them. Any
party may be ordered to produce additional evidence and the judge may ask
supplemental questions when the advocates have concluded their questioning.
The accused gives viva voce evidence at the inception of the trial. Early on in
inquisitorial proceedings the suspect is invited to make a statement in connection
with a case. The accused is free to respond to the testimony of other witnesses
throughout the proceedings and may speak last. Suspects and accused are
encouraged to participate and co-operate to clarify their position and to offer
evidence of their innocence, at their earliest opportunity, without being compelled
to incriminate themselves in doing so.11

The fact that the judge exercises both a police function and an enforcement
function underscores the active search for the material truth in the inquisitorial
system.

Proponents of the inquisitorial system believe that the state is the powerful
guarantor of the public interest, best equipped to investigate the truth parties may
want to conceal, and well-placed to implement policy. As such, the prosecution
and the defence (the parties) are not relied on to assist with fact-finding and they
are most certainly not allowed to control the fact-gathering process.

Both sides draw on a single common case file (the dossier) that contains a
pre-prepared version of the truth.12 Counsel for the defence mainly checks that the
state complies with formal rules.

10 Ullmann Jurisprudence in the Middle Ages (1980) XI 28.

11 Esmein (n 9) 8-11; McEwan (n 9) 8ff; Nugent "Self-incrimination in perspective" 1999
SALJ 501 509. In the wide-ranging examinations conducted by the ordinary common law
courts, the accused was never discouraged from replying to questions.
12 Jörg, Field & Brants (n 1) 47.
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It often happens that the judge goes beyond the evidence revealed by the parties
in order to establish the truth. The association between inquisitorial systems and
the ideology of torture is strong indeed, and not unfounded. Torture is an
institution of Roman origin. While it was not used against citizens during the
Republic, it became general practice in the course of examining Roman citizens
accused of treason at the beginning of the Empire. Revered Roman-Dutch
authors also supported the need for torture.13 Nevertheless, allowing these
negative images to prevail reveals only a lack of knowledge of the western
European systems and the procedural safeguards that apply in those systems
today.14

4 Origins of the accusatory procedure

The origins of the accusatory system are to be found in the legislation of Rome.15
In Rome, criminal process could only be initiated by a private party's action (the
so-called processus per accusationem) based upon the principle of a "formal
accusation". The case was limited to the formal allegations of the accuser. During
the period of the Republic (509-27 BC) inquisitorial influences were gradually
integrated into the system. Extraordinary quaestiones (officers presiding at judicial
inquests) were appointed for particular cases. Inquisitorial proceedings could be
triggered ex officio by the judicial system (the so-called processus per
inquisitionem). Nonetheless, the foundation of the procedures remained
accusatorial, and no attention was given to procuring confessions.16

Towards the end of the Principate and the commencement of the Dominate (c AD
284) criminal procedure was being used as a tool by the emperor in imperial
proceedings. When the distinction between judicial and executive powers
dwindled, instances occurred where emperors took the decision in criminal cases
upon themselves or delegated the investigation thereof to special officers. The
fact that the Senate frequently asserted jurisdiction over crimes by a summary
procedure did not contribute to the protection of civic freedoms.17

13 Voet Commentarius ad Pandectas 48 18 1; Van Leeuwen Roomsch Hollandsch Recht 5

28; Huber Hedendaegsche Rechtsgeleerdheyt 6 22; Fick (n 3) 49 n 12.
14 Dugard "1570 revisited: An examination of South African criminal procedure and the
'Hiemstra Proposals'" 1970 South African Law Journal 410 414.
15 Ullmann (n 10); Esmein (n 9) 13.
16 Esmein (n 9) 18.
17 Riddell "Introduction to this Volume" in Esmein (n 9) xiii; see also Esmein (n 9) 26-27.
142 A historical perspective on the accusatory and inquisitorial systems
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After the fall of the Western Roman Empire (AD 476), procedures based on
popular Germanic customs and customs from the first feudal age (c AD 470-1000)
also reflected the accusatory system, albeit in a rudimentary sense. Originally
most criminal offences were considered as violations of private rights, leading to
extra-judicial vengeance or compensation. When courts of law emerged, claims
were settled judicially. Penal cases split away from civil cases, and as far as penal
cases were concerned, a system of popular accusation prevailed. Each member
of the group to which the injured party belonged had the power to begin
prosecution in the name of the collective body. A formal complaint or information
usually set the criminal plea into motion. For centuries, the right to bring a private
complaint belonged to a victim or relatives of the victim. Later, representatives of
the general public took responsibility for instituting action to safeguard the general
welfare. Punishment became a public affair.18

5 Origins of the inquisitorial procedure

The jurisdiction of Church and State co-existed for centuries. Long before the
eleventh century, systematic collections of the laws and decisions of the Church
were in existence. The Roman Catholic Church had adopted Roman law from the
very beginning. It also developed canon law, which was all but limited to the
principles pertaining to the organization of the Church as an institution. Each
system influenced and shaped the other.19

Early canon law (fifth to eighth centuries)20 recognized only the accusatory
system; it also proscribed compelled self-incrimination by anyone in forum
externum. In this regard, it had been influenced both by Roman law and Germanic
custom.21

In France, things took a different turn in the ninth century. Those suspected of
crime by public opinion (the accused or infamatus) were obliged, when the judge
established such infamia, to exculpate themselves from crimes imputed to them.
The infamatus could exculpate him- or herself by an oath supported by
co-swearers or purgatio canonica, or by ordeals (purgatio vulgaris). If the
infamatus refused or failed, conviction on the charge brought could follow. This

18 Van Caenegem (n 8) op cit 1; Esmein (n 9) 405; Curzon English Legal History (1968) 224.
19 Van den Bergh Geleerdt Recht (1985) 27-28.
20 Curzon (n 18) 151.
21 Esmein (n 9) 79.
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was how the inquisitorial procedure began in France. In its earliest form, this
procedure did not allow the judge to bring witnesses against infamati and to
condemn them if they were convicted.22 Canon law did not yet recognise an
official prosecution because the inquisitor appeared in the twofold capacity of
accuser and judge.23

6 Origins of distinction

The "rational enquiry into the truth of the matter" assumed importance and
replaced the older irrational techniques of proof (such as ordeals24 and purgatory
oaths25) at roughly the same point the centralised state emerged. The distinction
between the systems as we know them today can be traced back to twelfth
century European law.26

It used to be a well-known rule of Roman law that the accuser had to subscribe
to the punishment he or she hoped to obtain for the accused (subscriptio). An
undertaking had to be made to suffer the same fate if the accused were found not
guilty. This requirement acted as a deterrent to otherwise justifiable prosecutions.
The public order could not be defended and maintained adequately by the fickle
and risky initiative of private avengers. Modern ideas about the state emerged
when the power of the state asserted itself more strongly. By the end of the 1300s
a new form, processus per inquisitionem, replaced the accusatory procedure. This
process entailed prosecution ex officio by an official organ, the judge, when the
accuser, being either unable or unwilling, abstained from further action.27 In
France the ancient inquisitio developed into a procedure called the vérité. In the
thirteenth century, the inquest combined the rules of the ancient administrative
inquiry instituted ex officio and the rules that applied in canonical examinations of

22 Esmein (n 9) 79.
23 Esmein (n 9) 80. He refers, among others, to Yves de Chartres Ep CXIX, CVIII, CCVI
(end of 1000s) and Bernard de Pavia Summa Decretalium written between 1191 and
1198.
24 Ordeal was trial by appeal to a supernatural power to intervene in the natural order by a
sign that would identify the guilt or innocence of an accused person. Van Caenegem (n
8) 1; Curzon (n 18) 229-230.
25 Purgatory oaths were sworn affirmations by the accused on their own innocence or the
justness of their cause. Van Caenegem (n 8) 77.
26 Parisi "Rent-seeking through litigation: Adversarial and inquisitorial systems compared"
2002 International Review of Law and Economics 193 194; Van Caenegem "The law of
evidence in the twelfth century: European perspectives and intellectual background" in
Proceedings of the Second International Congress of Medieval Canon Law (1965) 297.
27 Bartolus, lecture on D 25 3 3 (Quia Plautianum) fol 38 no 15; Esmein (n 9) 80; Ullmann
(n 10) XI 7-8; Van Caenegem (n 8) 1.
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contradictory evidence.28 At this point, canonists discouraged accusations,

maintaining that inquisitorial proceedings should be conducted without accusers.29

The ancient accusatorial principle was directly borrowed from Roman law, and the
inquisitorial principle was adapted to the needs of the time by way of
contemporary interpretation of relevant Roman passages by medieval professors.
Justinian's Corpus Iuris Civilis was the only basis for the establishment of
principles and consequently some measure of conformity was preserved in
different provinces. At first the accusatorial method was an "ordinary" method
(remedium ordinarium) of bringing a criminal to justice. The inquisitorial method
was recognised as the remedium extraordinarium, a disagreeable but necessary
procedure, since the rights of the accused were but vaguely formulated.30

In England, the Decretum of Gratian (c AD 1140) described the private accusation

and the communal accusation by synodal witnesses before the bishop as the
normal prosecutorial process.31 On the Continent, the Fourth Lateran Council of
121532 already brought the two into a more equal relationship by prescribing the
inquisitio as one mode among the older modes of proof.

The judge was entitled, upon establishing the infamia precedens, to summon the
accused, arrest him, bring witnesses against him and condemn him if proof could
be furnished that he should be convicted.33 Centralisation of state power facilitated
the dilution of the principle of accusation by means of legislation. Also, the
influence of Roman and Canon law culminated in the renunciation of Germanic
tendencies in criminal cases. The inquisitorial principle was gaining ground.

Whereas in pre-Bartolist doctrine, inquisitorial procedure denoted proceedings

where the formal requirement of "accuser" was in abeyance in respect of
notorious crimes,34 Bartolus' teachers were concerned about the justification for

28 Van Caenegem (n 8) 110.

29 Innocent IV states in his Commentaries on the Decretales that in inquisitione non est
accusator. Commentaries on i 6 32, fol 63 no 9. Not everyone preferred the inquisition to
the accusation, however. Dynus supported accusation. See Ullmann (n 10) XI 23-26.
30 Ullmann (n 10) XI 4.
31 Van Caenegem (n 8) 21.
32 Innocent III (1198-1216) called several councils to extend ecclesiastical activity in
persecution of heretics.
33 Decretals of Pope Innocent, eg 1198 c un X Ut ecclesiae vel beneficia sine diminutione
conferantur III, 12. See Esmein (n 9) 80.
34 See Ullmann (n 10) XI 12 18. Contra Esmein (n 9) 79-80 where he states that notorious
crimes could be prosecuted and condemnation pronounced by the judge in theory even
where an accuser was absent, although in practice it was difficult to determine what
constituted notorium.
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the absence of a legitimate accuser.35 Butrigarius provided the seed for the idea
that the fama took the place of the formal accusation.36 Having to establish the
infamia against the inquisitus before the inquisitio could proceed, was regarded
as equivalent to an accusation brought by an accuser from without. Supported by
all the great jurists of the fourteenth century, this became the classic theory.37 The
expansion of inquisitorial proceedings was aided when a number of crimes were
added to the category of crimes that could be investigated ex officio.38

The distinction between the two systems revolved in great measure around the
role of the judge in the proceedings.39 In the medieval trial, the judge was
regarded as an official truth-seeker.40 Bartolus argued in a well-known dictum that,
with or without a proposal by a party, courts could produce and examine
witnesses for the purpose of truthful discovery.41 He distinguished between the
inquisitio ad crimen inveniendum (inquisitio generalis) and the inquisitio ad crimen
puniendum (inquisitio specialis). The aim of the general inquisition was simply to
identify both crime and criminal, fulfilling the function of a preliminary investigation
(pre-trial phase) under the wakeful eye of the judge of the district. The special
inquisition was equivalent to the trial phase, which could be instituted in certain
cases only. In other instances, for example in so-called enormous crimes such as
forgery of money, the judge could proceed to the trial phase without conducting
a preliminary inquiry.42

Baldus de Ubaldis,43 pupil of Bartolus, still underlined the auxiliary character of

inquisitorial proceedings as de iure speciali, non de iure communi.44 However, on
the question as to whether the inquisitorial proceedings had to stop if the
legitimate accuser intervened, he responded that the inquisition was convenient
for the state and that the intervening accuser could not be permitted to collude
with other parties in inquisitorial proceedings.45 Baldus argued that medieval
courts were at liberty to hear those witnesses whose depositions they deemed

35 Bartolus from Sassoferrato 1314-1357.

36 Butrigarius relied on an analogical interpretation of Decretales v 3 31 and D 37 14 10 1.
See Ullmann (n 10) XI 23.
37 Panormitanus upon C 2 X "de accus". Esmein (n 9) 81; Ullmann (n 10) XI 24.
38 Ullmann (n 10) XI 19.
39 Parisi (n 26) 195.
40 Ullmann (n 10) XI 5 22.
41 Judex tamen potest ex officio suo testes producere ad inquirendam veritatem Bartolus a
Saxoferrato Comment to C 9 42 2 fol 124 no 2.
42 Ullmann (n 10) XI 20-21.
43 1327-1400.
44 Baldus Consilia, consilium 415 § iv fol 68 no 2.
45 Baldus C XI Rubrica fol 209 no 61; Ullmann (n 10) XI 26.
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necessary for establishing the facts at issue.46 The judge had the responsibility of
producing and evaluating the evidence, and was free to summon witnesses to
assist the court's fact-finding efforts. In Baldus' view, it was not part of the
prerogatives of the individual litigants to examine the witnesses or to produce
them.47

Gradually the inquisitorial procedure shed much of its character as an exceptional

process. The standard of the degree of suspicion necessary for the official to
initiate proceedings in lieu of the former private complaint became less strict.48

The inquisitus was compelled to reply to the interrogatories of the judge and reply
on the faith of his oath after having taken oath to tell the whole truth. In France,
part of the reason for changing early canon law in this regard was that
confessions became indispensable for capital sentence where other testimonies
were not numerous or conclusive enough. The important corrective of official
examination of the truth of a confession was often disregarded.49

Later modifications in the fourteenth century restricted the principle of subscriptio

to crimes in respect of which penitence admitted a remission of penalty.50 In
addition, the absence of a formal prosecutor did not last long. State officials filled
the vacancy of accuser where the ruling power of the state was strengthening.
Soon after the inquisitorial process supplanted the accusatorial model as
remedium ordinarium, the office of public prosecutor developed.

The inquisitorial procedure eventually came to apply in respect of all crimes. In the
fifteenth and sixteenth centuries there was precious little left of the accusatorial
principle in Europe since the judge could proceed without a formal accusation.
Moreover, by the middle of the sixteenth century the Church had substituted the
inquisitorial procedure for the accusatory procedure in every country in Europe.

7 Canon law, Ecclesiastical Courts and the Inquisition

46 In examinandis testibus officium judicis debbe esse curiosum, id est, judex debet esse
solicitus et ad curam judicis pertinent hoc scil. examinare, unde hoc non est in potestate
partis Baldus de Ubaldis Comment to C 4 20 19 fol 53 no 3; Parisi (n 26) 194.
47 Pone, quod testes non sunt producti, sed judex ex mero officio recipit eos. Baldus de
Ubalidis (1327-1400), Comment to C 1 3 8 fol 371 no 8; Parisi (n 26) 194.
48 Langbein (n 15) 137.
49 Esmein (n 9) 24 113.
50 Ullmann (n 10) XI 6.
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In late antiquity (c AD 800) the Church was governed by the emperor who
regarded himself as the head of the Church, even taking decisions in theological
disputes. By the time emperors disappeared in the West, the Church was a
loosely formed institution comprising a large number of dioceses, each one
functioning under a bishop. The bishop of Rome could promulgate rules
(decretals) and other bishops could do the same in their own dioceses. 51

The basic shape of the Roman-canon prototype had matured in the Ecclesiastical
Courts by the end of the thirteenth century. They played a definite part in the
spread of Roman-canonical procedure.52 The medieval inquisitorial procedure
rested on the Roman inquisitorial system and the canonical inquisitio of the
bishop, which meant that obstinate monks were summonsed and punished by the
bishop. The decretals that formed the basis for the strenuous procedure per
inquisitionem were most frequently aimed against clerical abuses in the course
of their ministries.53 Ecclesiastical criminal jurisdiction was both vast and dynamic,
receding only upon the rise of the late medieval monarchies interested in
centralised power. At the zenith of the power of the Church, Ecclesiastical Courts
of justice served as a model to secular courts.54 Where the inquisitorial procedure
took hold in secular practice, medieval tribunals sometimes placed a high
premium on confessions, and torture became an instrument of power.55 Overall,
secular inquisitions did not display the repulsive features that made the
ecclesiastical inquisition so infamous.56

A special application of the official prosecution in inquisitorial procedure was

originally employed for prosecutions of heresy.57 The right to proceed per
inquisitionem against heretics was delegated to special commissioners usually
selected from among the Franciscans or the Dominicans. The earliest case of
inquisition thus delegated took place in 1227.58

51 Van den Bergh (n 19) 27.

52 Langbein (n 15) 133.
53 Esmein (n 9) 81; Ullmann (n 10) XI 11.
54 Van Caenegem (n 8) 110 indicates that the Ecclesiastical Courts were not the first to
modernise methods of proof. When more effective methods of proof became
indispensable, Roman-canonical procedure was not yet current in English Ecclesiastical
Courts. The English resorted to the jury.
55 Esmein (n 9) 9.
56 Ullmann (n 10) 27-28.
57 Heresy literally meant heinously choosing and selecting beliefs instead of accepting the
whole faith of the Church. Turberville The Spanish Inquisition (1968) 1-2.
58 Esmein (n 9) 81; Langbein (n 15) 137.
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The Holy Inquisition was created in the south of France to quell the great heresies
and schisms that were disturbing the Church.59 The Inquisition assumed a strictly
ecclesiastical character when Pope Innocent III placed it in the hands of the
Church.60 Two inquisitors with equal authority — bestowed directly by Pope
Innocent III — were in charge of the Tribunals of Inquisition, aided by assistants,
notaries, police and counsellors. The most drastic rules of canon law were
employed. For example, the names of the witnesses were withheld from the
inquisitus, defence counsel operated within severe strictures and incompetent
witnesses were given the opportunity to be heard.61

Like secret examination, torturous confessions became a factor to be reckoned

with when Pope Innocent IV officially sanctioned the use of torture to extract the
truth from suspects in 1252.62 He did so under influence of the revival of Roman
law. This procedure was alien to the canonical tradition until this point, but it is
nonetheless surprising that among their contemporaries the inquisitors generally
had a reputation for justice and mercy despite being considered to be formidable
figures who could excommunicate even princes.63

From the 1300s onwards, the history of the Holy Inquisition took on a local colour
in each of the important European jurisdictions. While it lost its importance in
France at the end of the 1500s, the Spanish tribunal was sustained by different
forces and showed distinct functional peculiarities. Its superior organisation and
the consistency of the support it received from the Spanish monarchs assured a
greater impact on religion, politics and culture than comparable institutions
elsewhere.64

8 Developments in England

After Julius Caesar had invaded Britain in 55 BC, Roman rule was maintained.
However, its connection with the Roman empire gradually ended. The Norman
type of inquisition was introduced into England when William the Conqueror

59 Cathars, Gnostics, Waldenses, Boni Homines and others collectively known as the
Albigenses. Sabatini Torquemada and the Spanish Inquisition (1925) 32.
60 Sabatini (n 59) 36.
61 Esmein (n 9) 93; Sabatini (n 59) 33; Turberville (n 57) 97.
62 Trenholme in Esmein (n 9) xxxvi.
63 "Inquisition" in Consolidated Encyclopaedia (vol 5) (1947); O'Malley "Inquisition" in
Encarta96 Encyclopedia (Microsoft CD).
64 Beinart (ed) Records of the Trials of the Spanish Inquisition in Ciudad Real (vol 1) (1483-
1485) (1974); Sabatini (n 59).
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(formerly Duke of Normandy) was crowned as "King of the English" in 1066.65 The
Anglo-Norman monarchy fostered close links between Church and State and in
some instances, the same clerics served in royal and Ecclesiastical Courts.66

Prosecution ex officio by state officials was introduced into twelfth century

England. The transition was from the archaic procedure instituted by a private
plaintiff acting at own risk and relying on archaic modes of proof, to a modernised
procedure based on indictment under the aegis of the state and relying on rational
modes of inquiry.67 The Leges Henrici Primi,68 written during the rule of Henry I,
refer to the new procedure of prosecution ex officio by the local royal justices.
Henry II69 extended trial by inquisition, making it available to the government in
administrative cases and to private individuals. Henry II also introduced various
assizes and developed the early jury system.70 Local juries and the central body
of royal justices were welded together. The Assize of Clarendon of 1166 mentions
sheriffs and justices without specifying whether local or itinerant justices are
meant. The Assize of Northampton of 1176 does not refer to local justices,
because their enforcement actions proved ineffective and corrupt. Itinerant judges
took on their function and the sheriff continued to play a certain role in
empanelling juries.71

Since the royal enactment of Clarendon until the abolition of the grand jury in
1933, suspected criminals were convicted on the basis of an indictment
pronounced by a jury of their fellow citizens, and not on the basis of an indictment
pronounced by an official of the state.72 With the establishment of the office of
Director of Public Prosecutions in 1879 the process for the first time approximated
prosecution by an official of the State.

Medieval common law prohibited the assistance of counsel to persons accused

of capital crimes.73 Even in the late sixteenth century, complaints from defendants
notwithstanding, defence counsel was forbidden in all cases involving matters of
fact for fear that counsel would interfere with the ability of the court to have the

65 Curzon (n 18) 16.

66 Van Caenegem (n 8) 21.
67 Van Caenegem (n 8) 2 19.
68 Written by an anonymous cleric around 1116-1118. Van Caenegem (n 8) 21.
69 Henry II ruled from 1154 to 1189.
70 Curzon (n 18) 214. The origin of the jury of presentment is not entirely clear. It was the
forerunner of the grand jury of accusation whereas the trial jury had to pronounce a verdict
of guilty or not guilty. Van Caenegem (n 8) 4ff.
71 Van Caenegem (n 8) 34-35.
72 Van Caenegem (n 8) 2; Curzon (n 18) 214.
73 Cairns Advocacy and the Making of the Adversarial Criminal Trial (1998) 3.
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accused serve as an informational resource where a serious crime had been

committed. The accused were pressurised to speak in their own defence.74 In
treason trials, because the Crown was involved in what was often vigorous
prosecution, defendants were allowed to engage partisan helpers of their own.
The prohibition was eroded in the Renaissance, counsel being allowed to appear
to argue questions of law.

As early as 1360, leading local gentry were appointed as justices of the peace by
Royal Commission. When the Marian Statutes took effect in 1555,75 the role of
these lay justices was to help the accuser to build the case for the prosecution by
gathering evidence against the accused. Thus their participation was one-sided
and did not promote neutral adjudication.76 Public authority reinforced private
prosecution through the Marian procedure of investigation.77

The Ecclesiastical Courts in England embraced the inquisitorial system. These

courts were known to summon persons without any warning of the charge to be
made against them, exercising a jurisdiction and procedure similar to that adopted
by the Roman Senate under the late emperors. The history of common law, the
history of Parliament and the history of torture are closely connected. The practice
of torture prevailed during the brief absolutist period of the Tudors and the
Stuarts,78 but for the most part, the common law did not recognise torture.

The notorious "Star Chamber" frequently acted not as a statutory body but under
the original common law jurisdiction of the Privy Council, and by a procedure quite
as summary.79 The questioner would probe the private affairs of suspects at
random in search of misdemeanours of which to accuse them. The Star Chamber
adopted the worst practices of the inquisitorial procedure. It would often obtain
confessions through torture, causing great suspicion of and dislike for its
interrogation procedures and harsh sentences among Puritans and others.80

74 Langbein The Origins of Adversary Criminal Trial (2003) 2.

75 Named after the reign of Queen Mary (1553-1558). The German equivalent was known
as the Carolina (1532) and the French equivalent the Villers-Cotterets (1539). Langbein
(n 74) 40ff.
76 Langbein (n 74) 43.
77 Langbein (n 74) 21ff.
78 Van Caenegem (n 8) 101 n 110.
79 Riddell "Introduction" in Esmein (n 9) xiii.
80 Curzon (n 18) 180.
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English political and legal history reached a turning point in 1638, when the
unfortunate John Lilburn81 was interrogated by the inquisitorial Council of the Star
Chamber on a charge of treason. Lilburn was charged with having printed or
imported seditious material and heretical books. He resolutely refused to answer
questions regarding his alleged authorship of "treasonable writings" and
distribution of anti-clerical pamphlets, demanding that the prosecution prove its
case.82 His defiance can be viewed as an early emanation of the right to remain
silent. Although he denied the charges, he furnished answers when he was
tortured. When the interrogation shifted to matters outside the scope of the
charges he refused to answer and was whipped and pilloried. He received a
three-year prison sentence.

Owing in part to Lilburn's relentless efforts to petition Parliament, the Star

Chamber and the Court of High Commission for Ecclesiastical Cases were
abolished in 1641. At the same time, all Ecclesiastical Courts were prohibited from
using the ex officio oath procedure.83 Its system of practice died with it. Torture
also disappeared from England when absolutism ended.84

England enacted the Habeas Corpus Act of 1679 and the Bill of Rights of 1689,
securing individual liberties and the public weal.85

9 The modern English system

The accusatory system of criminal trial came to England at a relatively late stage,
from the 1690s.86 If common law criminal procedure was irrevocably changed by
this development, further progress was somewhat piecemeal, concentrating on
counterbalancing advantages for the prosecution with advantages for the
defence.87

Because England lacked a formal apparatus capable of routine judicial

investigations, the presentation of evidence became the exclusive task of the
parties.88 One of the most significant developments was the movement from

81 R v John Lilburn 4 St Tr 1269 1294-1296 1317 (1649); Salhany The Origin of Rights (1986)
91ff.
82 Langbein (n 74) 271; Curzon (n 18) 180.
83 Esmein (n 9) 341; Curzon (n 18) 176; Langbein (n 74) 278.
84 Van Caenegem (n 8) 101.
85 Curzon (n 18) 44 46.
86 Langbein (n 74) "Preface and Acknowledgements".
87 Langbein (n 74) 333.
88 Parisi (n 26) 195.
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lawyer-free to lawyer-dominated criminal trials, alluded to above, which occurred

during the later sixteenth and early seventeenth centuries.89 Judges started to
allow defendants to be assisted by lawyers in ordinary felony trials in the1730s.90
Defence counsel were admitted primarily to cross-examine for prosecution
perjury, thereby countering the institutional balance of power that favoured the
Crown. When this transition was complete, lawyers dominated the proceedings
in all felony trials.91 Thus, the "lawyerisation" of trials resulted from a defect in the
institutional structure, namely the absence of an effective system for pre-trial
investigation.92

In a trial of fact in the eighteenth century, English common law judges were
administrators rather than adjudicators, processing cases for jury verdicts. The
judicial function at trial became stunted and the situation was not helped by either
the absence of a thorough official pre-trial investigation, or by lawyers gaining
control over gathering and adducing evidence. Whereas the European judges of
the eighteenth century had a duty to clarify (Aufklärungspflicht), in the English
system neither judge nor jury was responsible for the evidence on which the
adjudication would turn.93

The common law eventually rebelled against the admissibility of "involuntary"

confessions, because it was unfair to be subjected to threats to induce an
accused to talk. Since the late eighteenth century, the rule has been that induced
or coerced confessions must be refused. Different approaches prevailing in
respect of the right of an accused to remain silent (as opposed to the role of
confession) originated at this point. In time, the accused became a competent
witness for the defence, but could not be compelled by the Crown. This
non-compellability applied to the pre-trial as well as the trial process.94

In the late 1900s the accusatory criminal procedure in the United Kingdom
incorporated a number of inquisitorial characteristics. Among these are the
fact-dependent provisions of the Police and Criminal Evidence Act of 1984,95 and
the procedural scheme for the investigation and prosecution of complex fraud

89 Langbein (n 74) 2.
90 A felony denotes a crime less serious than treason but more serious than trespass or
misdemeanor, see Curzon (n 18) 230; Cairns (n 73) 25.
91 Prisoners' Counsel Act of 1836; Cairns (n 73) 3; Langbein (n 74) 3.
92 Langbein (n 74) 333.
93 Langbein (n 74) 332-333.
94 Lamb v Munster [1882] 10 QB 110; Rice v Connolly [1966] 2 QB 414.
95 Ma "Comparative analysis of exclusionary rules in the US, England, France, Germany and
Italy" 1999 Policing: An International Journal of Police Strategies and Management 4.
 2004 (10) Fundamina 153
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cases in the Criminal Justice Act of 1987.96 This change of direction came as a
result of a crisis regarding the truth-seeking ability of the system after biased
pre-trial investigations resulted in the conviction of innocent people. The Criminal
Justice and Investigations Act of 1996 imposed disclosure duties on accused
persons,97 and the privilege against self-incrimination has been reconceived as
an instrumental protection of the interests of a defendant.98 The Human Rights Act
of 1998 obliges courts to interpret domestic law in compliance with the European
Convention of Human Rights. Against this background, most of the inquisitorial
elements introduced into the British system are likely to meet the jurisprudential
standards of the European Court of Human Rights.

10 Finding or defeating "truth"?

Judging the respective merits of the accusatory and the inquisitorial models is a
futile exercise, since they have always served different cultures and different
conceptions of truth. Yet, if various hidden assumptions influence the application
of the systems of procedure, they should not remain hidden and so remain
unchallenged.

The modern judge has a more complex role compared to that of the medieval
judge, having to balance various sub-dimensions of political morality. Procedural
fairness and factual truth are only two among many.99 The "truth" has an elusive
and complex nature. The premise that it is discoverable and immutable by the
inquisitorial mind is open to challenge (which truth?), but becomes particularly
dangerous if ends begin to justify means during an investigative procedure.
Furthermore, the possibility exists that the structure of the inquiry endangers
impartiality. The limited extent to which counsel for the defence is involved in the
search for material truth remains problematic.

A premise not easily trusted by common law lawyers is that criminal investigation
is a public good and the State in its benevolence is able to guarantee the public
interest. If no real guarantee exists that the State has and always will have an

96 Rozenes "Lessons from the criminal justice system?" Paper read at a Conference on Civil
Justice Reform, Brisbane, 7-8 March 1996. http://www/cdpp/gov/au [25.03.03].
97 S 1; s 5 (7).
98 AT & T Istel v Tully [1993] AC 45 per Lord Templeman 51-53; R v Director of Serious Fraud
Office, Ex Parte Smith [1993] AC 1 per Lord Mustill 30-32. See in general Dennis
"Instrumental protection, human right or functional necessity? Re-assessing the privilege
against self-incrimination" 1995 Cambridge Law Journal 342.
99 Roodt "Fact finding, fairness and judicial participation in criminal proceedings" 2003 vol
14 Codicillus 68.
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interest in the truth, who knows what may be done in its pursuit?100 The tortured
confession was known before and apart from particular inquests. Even if torture
were alien to the canonical tradition until 1252, and was not an invariable
concomitant of inquisitorial trials, history teaches many profound lessons about
exploitation of enforcement power by the State to place an individual in a
vulnerable position.

Proponents of the accusatory system often claim that because individual interests
receive high priority, rights are better protected. More relevant to this discussion
is the premise that the adversarial system will result in a more accurate
investigation of the facts compared to the inquisitorial system because
self-interest is a better motivation than official duty. A climactic, head-on clash of
proofs in a structured forensic setting is believed to best assist in the discovery of
truth, as the judge is provided with the information needed to resolve the conflict
or "appoint the winner" in the interest of the parties.101 It is also claimed that
decision-maker bias towards one or the other conclusion is effectively ruled out
or better controlled compared to the bias displayed by inquisitors.102

Contemporary studies have shown that, compared to inquisitorial systems, bias

in accusatory testimony is greater.103 The format of the accusatory trial is
conducive to an exacerbation of difference and a neglect of the common
ground.104 Indeed, the brief of the police and the defence lawyer is not to seek out
the truth, and what constitutes truth is often subject to negotiation by the parties.
Incentives to distort or conceal evidence can arise because partisan interest is in
winning and not in truth. If witnesses are coached, cross-examination becomes
abusive, and if the accumulation of wealth of the legal representative involved is
a primary factor, then a "truth deficit" can arise.105

The problem could be that truth-finding is a much-neglected goal of the

accusatory system, or that truth becomes an inconsistent side-effect where
institutional weakness prevails or the system is exclusively bent on fairness in the
sense of granting completely equal advantages to the opposing sides. Langbein
argues that older adversarial techniques were merely neglectful of the truth as the
system was not designed to accommodate it, but that "lawyerisation" further

100 Jörg, Field & Brants (n 1) 54.

101 Langbein (n 74) 332-333; Cairns (n 73) 165.
102 Platto (ed) Trial and Court Procedures Worldwide (1991) 217 (Canadian system).
103 Study by Thibaut & Walker; available at <http://www.copland.udel.edu> [25 March 2003].
104 Damaška Evidence and Law Adrift (1997) 100; Menkel-Meadow (n 6) 16.
105 Langbein (n 74) 331-333.
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worsened the truth deficit.106 On the other hand, the development of the
accusatory criminal trial in eighteenth century England discussed above certainly
bears out the thesis of truth as "by-product". Whichever way one looks at it, the
system does tend to allow calculated use of adversarial techniques to obfuscate
or defeat the truth and delay adjudication. Partisans who gather evidentiary
material can manipulate and contribute to witness bias, rendering it difficult to
determine the truth. Consequently, the pure accusatory system does not always
provide the neutral decision-maker with the information needed to resolve a
dispute in the interest of the parties and society.

The theory that the discovery of the truth was augmented by balancing
prosecutorial evidence-gathering with partisan evidence-gathering by defence
solicitors and the contentions of counsel, served as an important rationalisation
of accusatory procedure all along. The truth rationale certainly expanded the role
for advocacy in the criminal trial. Authority accumulated mostly by uncritical
repetition of this theory, causing it to become firmly embedded in legal thought.107
While two-sided partisanship is distinctly better than one-sided partisanship, it
remains a poor substitute for truth seeking.108

11 Both models are alive and well

Western civilisation has undergone a remarkable secularisation from the medieval

age to the present. The accusatory model continues in the common law courts of
England. In the realm of the criminal trial, the view that "too much truth brings too
much death"109 may explain why it is also tolerated in the American legal
landscape, where various inquisitorial procedures are used in the pre-trial phase.
Recent legislative changes in the Commonwealth amplify the role of judges in
controlling the proceedings ("case management") and bear witness to a greater
willingness to utilise certain elements of the inquisitorial model. Part of the
justification lies in cost and time saving, but perhaps judicial responsibility to find
the objective "truth", so essential to the achievement of justice, is also being taken
more seriously.110

106 Langbein (n 74) 334.

107 Cairns (n 73) 165-166.
108 Langbein (n 74) 332.
109 Langbein (n 74) 234.
110 Martin "The adversarial model in the criminal justice system: What change is happening?"
Paper read at the Heads of Prosecuting Agencies in the Commonwealth Conference, 23-
26 September 1997, Wellington, New Zealand; also <http://cdpp.gov.au/cdpp/speeches>
[25 Mar 2003].
156 A historical perspective on the accusatory and inquisitorial systems
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Similarly, the inquisitorial model has persisted across epochs. The consilia (formal
opinions) of the famous professors of medieval Europe gave eloquent testimonies
to their conviction that the judge was the only responsible functionary qualified to
discover the truth. However, early on many principles were adopted in the realm
of the inquisitorial model that belonged to the accusatory system: Inquisitio
accusationis naturam assumit.111 The model has undergone further refinement in
modern times by the addition of extensive adversarial protections to safeguard
individual liberty. In the mid-eighteenth century, leading inquisitorial systems in
Europe abolished judicial torture. In the nineteenth century, in order to improve
standards of fairness and the protection of civil liberties, compulsory
interrogations, secret trials based on an investigating judge or a magistrate's
written summary, and presumptions of guilt were abolished. As such, the
accusatory system never took a firm hold in the civil law systems on the European
continent, and the inquisitorial model of social control survived far-reaching
reforms.

12 South African law

Inquisitorial procedures are not entirely foreign to South African law. Traditional
courts have always adopted an inquisitorial approach. A number of amendments
to existing legislation, inquisitorial in nature,112 resulted from law reform proposals
made by the South African Law Commission. Nonetheless, there are instances
where the South African courts and the legal profession tend towards restoring the
essential features of the accusatory system and, at times, are reluctant to
implement reforms that move away from the accusatory model.113 Fundamental
conversion of South African criminal procedure law into a typical inquisitorial
model appears to be highly unlikely.

The South African constitutional framework of 1996 has added more duties of
fairness and guarantees of reliability of evidence, yet there are no rules of defence
discovery that demand information before trial and require responses from the
adverse party that may support truth finding to cut down on concealment and

111 Ullmann (n 11) X 25.

112 Among others ss 60(3); 112; 115(2)(b); 121; 123; 153; 167; 170A; 186; 209; 342A
Criminal Procedure Act of 1977; SA Law Commission Discussion Paper 96 Project 73
Simplification of the Criminal Procedure (A More Inquisitorial Approach to Criminal
Procedure — Police Questioning, Defence Disclosure, the Role of the Judicial Officers and
Judicial Management of Trials) (30 June 2001) xxx.
113 S v Viljoen (2002) (2) SACR 550 (SCA) (bail appeal) per Olivier AJ; Viljoen v The State
CC320/01-LS per Patel J (criminal trial). See also the proceedings in the lower courts,
discussed by Roodt (n 99).
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surprises at trial. Counterbalances are needed to lessen the truth deficit, either in
the form of a truth-finding duty for the police or a supervisory role for an examining
judge. The duties resting on state authorities and investigators to ensure fair trial
rights and greater judicial control over the unfolding of the litigation can become
convenient excuses for disregarding the importance of truth finding. Simpler and
cheaper than adding further complex detail to the pre-trial legal framework would
be to apply the inquisitorial procedures in support of the truth-finding function
already embodied in the Criminal Procedure Act 51 of 1977.

Accusatory and inquisitorial models continue to borrow from each other in an

effort to contain the problem-solving demands made on them. This is in order, as
long as there is appreciation for "the distinctive relation of the borrowed practice
to the premises of the system in which it has evolved and the living context in
which it has taken its form".114

As stated, the civil inquisitorial features of the South African system are resisted
at times. Given that they do not weaken or compromise adversarial protection,
their inquisitorial origin could be blamed; or perhaps there is a traditional
Anglo-Saxon unease concerning the benevolence of the State. Legal ethics must
keep up with shifts taking place from accusatory procedure to inquisitorial process
and other dispute-resolution processes. Inquisitorial features cannot guarantee
greater security if legal training and the legal ethos remain caught in a purist
accusatory mould. It is necessary to strengthen the system for dispute-resolution
and conflict management, even if this means establishing minimum standards for
the pursuit of each model as explicit objectives of the hybrid South African system.
If the viability and acceptability of specific mechanisms and processes are so
deeply associated with the norms, values and histories of the system they
originate from, greater care is needed to remove distortions from our thinking and
to guard against the importation of stereotypes.

13 Conclusion

One of the warnings of history most valuable for South Africa is the importance of
preventing discouraging remnants of the civil law that violate the dignity of the
individual from combining systemically with the blind spots of the common law

114 Goldstein "Converging criminal justice systems: Guilty pleas and the public interest" 1997
Israel Law Review 169 170.
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tradition. Both systems display vigorous points of growth as well as weaknesses.

Failing to understand the many dimensions of this "truth", the system will be less
effective than either of the two classic models, adrift on a sea of counterbalancing
techniques and sophistry.