Adversarial and inquisitorial legal systems
the Corpus Juris Civilis of Emperor Justinian and was later built upon by individual countries to create the distinctive laws we know today. 4
Unlike an adversarial system, the judge plays a more active role in the investigative side of the court process. The court attempts to create its own version of the case by directing the prosecution and defence on what evidence is needed (including which witnesses to call upon) and what aspects of the case should be investigated. Once the evidence is collated, the judge will decide the merit of the prosecution’s case and whether it should go to trial. Unlike in adversarial court, lawyers cannot choose what evidence is submitted; they can only recommend what evidence should be gathered during the investigative portion of the proceedings.
The flaws of an adversarial system
The adversarial system allows both the prosecution and defence to select and submit their own evidence for trial, without being directed by the judge (though the judge can determine what is or is not permissible as evidence). To combat the potential distortion of evidence, the prosecution is obliged to disclose any material that it intends to use in the trial. This is required by the Criminal Procedure and Investigations Act 1996 in the UK, with similar requirements existing in the US. 5 Despite this, the withholding of evidence remains an issue, leading to ‘ a possibility that the truth in its entirety will not emerge at all ’ . 6 In the case that key evidence is not disclosed, it may lead to the court and defence relying on incomplete facts of the case. As a result, the court is much more likely to arrive at an unsafe conviction, delivering a false sense of justice. Though the withholding of evidence may not always be malicious or intentional, relying on the prosecution to make full disclosure can still lead to unfair trials, as seen in R v Allan (2017). 7 In this case, a man charged with rape and assault was acquitted after it was found that 57,000 lines of message data had been withheld from the defence, casting reasonable doubt on the prosecution’s claim. It is unrealistic to assume that the prosecution will always disclose evidence, especially given the conflict this poses with the prosecution’s goal of convicting the defen dant . The court’s reliance on the defence to discover these breaches by chance should further shake any faith placed in the adversarial system. This complacency can cause huge miscarriages of justice that are not identified until years after a conviction, such as the recently discovered failings in Malkinson v R (2023). 8 Andrew Malkinson was convicted of rape and spent 17 years in prison. On appeal of his conviction, it was discovered that photographical evidence had been withheld that contradicted the evidence put forward by the 4 Civil Law (legal system). (https://www.newworldencyclopedia.org/entry/Civil_law_%28legal_system%29). Accessed August 15 th , 2023. 5 Legislation.gov.uk. Criminal Procedure and Investigations Act 1996. (https://www.legislation.gov.uk/ukpga/1996/25/section/3); accessed August 16 th , 2023. 6 Law Teacher. Adversarial and Inquisitorial Systems of Justice. (https://www.lawteacher.net/free-law- essays/criminal-law/adversarial-and-inquisitorial-systems-of-justice.php). Accessed August 16 th , 2023. 7 The Crown Prosecution Service. A joint review of the disclosure process in the case of R v Allan. (https://www.cps.gov.uk/sites/default/files/documents/publications/joint-review-disclosure-Allan.pdf) accessed August 16 th , 2023 . 8 Judiciary UK. Malkinson -v- R Courts and Tribunals Judiciary. (https://www.judiciary.uk/wp- content/uploads/2023/08/Malkinson-v-the-King-070823-judgment2.pdf). Accessed August 22 nd , 2023.
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