Identify the main distinguishing features of Adversarial system from Inquisitorial. Critically discuss what would be the main benefits or detriments of adopting the continental inquisitorial procedure in English law? Introduction: It is an established fact that all the civilized societies must embrace some degree of order to allow members of the society to flourish and interact over a sustained period of time; this is one of the most vivid and pivotal features of a normal society. The ways and procedures of adopting the order may not be universal and vary from one society to another.
Order in a society is only achieved by introducing "an obligatory rule of conduct" known as Law. Law is the formal mechanism of social control1. Every law requires a particular legal system to run, carry out and to implement the main body of rules and regulation incorporated in any law, this the point when any legal system demands certain procedures to be promulgated, both are essential parts of each other. It is like someone wants to buy a car but he does not want engine in it or wants engine and does not need body of the car then what kind of car he is after.
That is why, both are interconnected and are deemed to be integral parts with out which one or other cease to function. 1 Slapper & Kelly,The English Legal System,7th edn 2004 There is always a need of mechanism of interconnecting two different things in order to keep smooth functioning of any system with out interfering into others' sphere of authority or rendering one or other completely redundant and un-operational by making them two absolutely distinctive bodies, foreign to each other. So, a very care full cross matching balance would be required to provide ones' support for other e. g.
substantive law and procedure law are two separate bodies of the legal system but each has inherent support for the other (substantive law helps to recognize the crime or right and procedural law provides track how to punish and up hold a right ). Basically there are only two prevailing legal systems in the world, the Adversarial system and the Inquisitorial system. These systems are also known as Trial systems. Details of these systems are following; Adversarial system: An adversarial system is defined as a system where the role of the court is solely that of an impartial referee between parties.
It is up to parties to establish their cases before a court of Law. The adversarial method is one which gives the parties and their lawyers a great deal of control over the way in which facts are collected and presented. 2 An adversarial approach is used to investigate and adjudicate guilt or innocence. The adversarial system assumes that truth is most likely to result from the open competition between the prosecution and the defense. Primary responsibility for the presentation of evidence and legal arguments lies with the opposing parties, not with a judge.
Each side, 2John H. Farrar and Anthony M. Dugdale,Introduction to legal methods,3rd edn 1990 acting in its self-interest, is expected to present facts and interpretations of the law in a way most favorable to its interests. The approach presumes that the accused is innocent, and the burden of proving guilt rests with the prosecution. Through counterargument and cross-examination, each side is expected to test the truthfulness, relevancy, and sufficiency of the opponent's evidence and arguments.
The adversarial system places decision-making authority in the hands of neutral decision makers. The judge ascertains the applicable law and the jury determines the facts. The system emphasizes procedural rules designed to ensure that the contest between the parties is a fair fight. Adversarial approach has another argument that the pursuit of winning often overshadows the search for truth. Furthermore, inequalities between the parties in resources and the abilities of the Lawyers may distort the outcome of the adversarial contest.
In order to grasp essence of the Adversarial trial system one must look at the facts and outcome of a case between Whitehouse v Jordan 3 . In this case judge has to make up his own mind due to conflicting and incomplete evidence in some respects and he concluded on the basis of probabilities and held defendant liable, the court of appeal and House of lord over turned the decision and held that the evidence did not fully justify the conclusion, here the conflict of judicial opinions are more obvious than the conflicting and incomplete evidence.
In another case of Jones v National Coal Board4. The court of appeal held, that the judge had intervened unreasonably and excessively. Lord Denning MR, said in his judgment: 3White house v. Jordan 1 W. L. R 246 4Jones v. National Coal Board2 QB 55,CA "We are quite clear that the interventions taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large"
The above mentioned cases are of civil nature but they also provides guideline to courts to adopt the same view even in criminal matters There are few exceptions to the adversary system, where court can act at its own like transferring the case to a proper forum, before the Civil Procedure Code came to affect in 1999 these powers were very few in number, new rules have many of these powers.