Adversarial and inquisitorial legal systems
discredit the prosecution’s case. This would affect victims answering openly and honestly in the court out of fear. Although this was recently changed by the Domestic Abuse Act (2021) in the UK, this further demonstrates the inherent flaws of the adversarial format in a legal system, 10 whereas the inquisitorial system does a much better job at protecting vulnerable witnesses and ensures that your financial situation bears less relevance in the court room. Obtaining justice shouldn’t solely be based on the eloquence of your barrister. In contrast, being able to hear the entirety of a witness’ evidence is vital in helping a judge or jury to make a more informed decision and deliver judgment more fairly.
Drawbacks of the inquisitorial system
However, the inquisitorial system, which places much more responsibility on an individual judge, relies on the assumption that they will carry out their investigative duties without bias. Humans are subject to subconscious bias that could easily influence the direction of the investigation process. As the judge controls what evidence can be submitted and the direction of the investigation, they may choose to secure more evidence for a certain side, thereby strengthening their case. Though imbalance of evidence can inevitably occur in an adversarial system, the impact of this may be minimized. This is because both parties (prosecution and defence) take charge of their own investigations, and therefore they are allowed to secure as much evidence as possible to help their case, with little interference from the courts. As a result, it is more likely that both parties will secure evidence to the fullest extent possible, which may build a fuller picture of the case in court than if the judge had investigated. Furthermore, the judge’s separation from the investigative process in an adversarial legal system avoids a pre-determined trial outcome. This is because in an inquisitorial system the judge may form an early opinion on the case from the evidence found during the investigation, an inevitable consequence of human-problem solving. As a result, they judge may be less receptive to the arguments made in court, having already chosen their stance on the matter. This risks the merits of the case being overlooked and creating a legal system that relies more on personal opinion than the application of the law. However, it should be noted that the adversarial system is also susceptible to judge bias, as in both systems the judge typically makes the final decision (barring cases involving a jury). Therefore, their individual opinions (such as those rooted in prejudice), are also capable of distorting the case’s outcome before the trial begins.
Final remarks
The phrase ‘ justice is blind ’ is one commonly used by the law to allude to fairness for all in the courtroom. None of our protected characteristics should change how we are judged by the tribunal. Yet the adversarial system ensures that justice remains far out of reach for many. Though the judgement may be impartial, the competition in the courtroom can still be weighted heavily against you. The inquisitorial system may not be perfect but it proves to be a system that cares for the full truth, not a manufactured one. It is only with the full truth that we should feel confident judging our counterparts, especially when such a simple decision is capable of uprooting and destroying livelihoods. There will
10 GOV.UK. Domestic abusers barred form cross-examining victims in family and civil courts . (https://www.gov.uk/government/news/domestic-abusers-barred-from-cross-examining-victims-in-family- and-civil-courts). Accessed August 23 rd , 2023.
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