Adversarial and inquisitorial legal systems
prosecution. Furthermore, more evidence was also found to be withheld, including the criminal records of others involved in the trial. During the appeal hearing, it was accepted by the courts that such evidence could have influenced the jury’s verdict, leading to the convictions being quashed. This demonstrates the darker consequences of disclosure failing and begs the question of how many more undiscovered victims of ‘ justice ’ have been unsafely convicted under the adversarial system. The combative nature of the adversarial legal system also gives rise to inequality and restricts access to justice. As the state does not intervene directly in the proceedings of the case, defence and prosecution barristers are relied upon instead. This means the quality (and thereby cost) of legal representation plays a huge role in the outcome of a trial. The effect of this is clear when linked to government cuts to legal aid over recent years. Notably, the government’s 2012 legal aid reforms w ere thought to cause a 30% increase in the number of family law cases in which neither party had any legal representation at all. 9 This was because cuts like this caused the threshold for legal aid to increase, meaning many low- income earners are no longer eligible for free representation. As a result, they are forced to pay for legal representation. If they cannot afford such services, they must represent themselves as litigants in person. The merits of the case and quality of evidence bear significantly less weight in court without the legal knowledge needed to use them. Against a professional barrister, the chance of success in court plummets for many of those unfortunate enough to be denied legal aid. Effectively, this creates a pay- to-win system rather than the justice system that it is claimed to be.
How the inquisitorial system does it better
Unlike in an adversarial system, the distortion of evidence is much less of an issue for an inquisitorial system, because the state pursues objective truth rather than a story construed by the prosecution or defence. An inquisitorial system prioritizes building a complete picture of events, securing evidence impartially and regardless of which side it may help. Any evidence secured will be by the direct instruction of a judge, who oversees the entire investigative process, making it difficult to conceal any findings. This places less importance on the prosecution being forthcoming with evidence, ensuring that evidence disclosure will be carried out properly. Therefore, the defence is put at less of a disadvantage in terms of securing key evidence that could influence their case, decreasing the likelihood over unsafe convictions. Furthermore, the inquisitorial system is more capable of delivering a fair trial than the adversarial system. Due to its investigative nature, the quality of representation the parties can afford is much less important than the merits of the case. This is demonstrated by the right to cross-examine witnesses. In predominantly adversarial legal systems the defence and prosecution are given the right to cross- examine witnesses. However, in an inquisitorial system, this right is typically held by the judge. If a judge cross-examines, they do so impartially and with the aim of finding the objective truth. This means that witnesses can tell their full version of events rather than one that can be twisted by the prosecution or defence barristers and sometimes even alleged perpetrators of the crime. In the UK perpetrators were given the right to cross-examine their victims, leading to potential use of intimidation tactics to
9 National Audit Office. Implementing reforms to civil legal aid. (https://www.nao.org.uk/reports/implementing- reforms-to-civil-legal-aid/). Accessed August 22 nd , 2023.
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