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.
Inquisitorial system:
.An inquisitorial system is defined as a legal system where the court or a part of the court is pro-actively involved in ascertaining the facts of the case. The inquisitorial system mainly applies to questions of criminal procedure as opposed to questions of substantive law; that is, it measures how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is already used in many, but not all civil legal systems. Some Jurists do not accept this division and advocate the theory that the procedue and substantive law are interrelated as a part of the theory of justice, which might varily apply according to various legal cultures.The most important nature of this method lies in the fact that the adjudication body has control over the way in which evidence is gathered and presented.
The inquisitorial process is characterized by a continuing investigation conducted initially by police and then more extensively by an impartial examining magistrate. This system assumes that an accurate verdict is most likely to arise from a careful and exhaustive investigation. The examining magistrate serves as the lead investigator or inquisitor who directs the fact-gathering process by questioning witnesses, interrogating the suspect, and collecting other evidence. The attorneys for the prosecution (the accuser) and defense (the accused) play a limited role in offering legal arguments and interpretations that they believe the court should give to the facts that are discovered. All parties, including the accused, are expected (but not required) to cooperate in the investigation by answering the magistrate's questions and supplying relevant evidence. Even in civil litigation inquisitorial method is much appreciated as well, in many cases the ordinary court and the tribunals have stressed that the principles of the natural cannot apply in the same way to inquisitorial proceeding as they do to adversarial proceedings of the civil litigation. The principle of Natural justice was set aside in the case of Ex p. Moore5. In this case the Court of appeal dismissed the plea by appellant that the tribunal acted against the principle of the natural justice, which require a fair hearing, Lord Justice drew the attention to the inevitable inquisitorial nature of the tribunal.
In civil matters there is legal Maxim Res Tpsa Loquitur which mean “Matter speaks for it self” in that kind of case the adversary nature of a trial system would diminish and the inquisitorial system would prevail, e.g. if the steering wheel of your brand new car comes off in your lap it signifies that the manufacturer was negligent and the presumption will
5R.v. Deputy industrial Injury Commision Ex Parte Moore[1965] 1 Q.B.456
that being a man of ordinary prudence you don’t know about manufacturing process as
well as it is hard to prove for one party the negligence of other party where as the matter it self has revealed the facts so the court adopting the inquisitorial approach can decide the case .
Critical Comparison:
The trial method in common law is described as ‘adversary’ or ‘accusatorial’ system as opposite to the trial system being followed in the continent know as inquisitorial legal system. The most important extract of the difference and distinction between these two different kinds of trial systems is based upon the extent of involvement of courts, legal representatives and parties to a particular case. If one can easily understand this element of division which is providing the clear cut line of demarcation, (although very thin) in two trial systems then it is very easy to comprehend the essence of adversarial and inquisitorial trial systems.
In continental inquisitorial system the predominant part is played by a court, where as in adversarial system, it is performed by parties. In adversarial trial system the judge plays character of a referee who silently observes the situation as it unfold before him, he is supposed to listen both parties with out any bias to any party, it is up to parties to decide what witnesses to call and what will be the order, the parties examine and cross examine the witnesses. If at any point both the parties agree not to call a witness who has potentially relevant evidence, the court will not do any thing in this respect because parties did this with their mutual consent.
In adversary system the onus of preparing and presenting the case lies on parties, which mean that a party with out adequate legal representation has already certain detriments attached to it, which is not the case in inquisitorial system because there is some one sitting in the court (judge) that is controlling and carefully examining the fair play. The judge will call the witnesses and examines them while the advocates merely play an auxiliary and subsidiary role.
There is a myth about the inquisitorial system that they have no parallels of the common law presumption of innocence in a criminal cases, which is not the case, the presumption of innocence is taken very seriously in inquisitorial system and it does allow the accused to plead guilty regardless of his own disposition and even if he signed a document of confession, the case must be decided on grounds of merit and proved by evidence. In common law system a confession is sufficient to prove guilt.
There are different varieties in inquisitorial systems i.e. France has juries in the trials but Dutch and German have not. The jury trial of inquisitorial system is different than in adversarial system. The selection, functions and the time span they spend during a trial differs than in adversarial system. Another important distinctive feature between these two trail systems is the previous history of the accused’s medical and social conditions. Before I can further move on and discuss the above point of antecedents of an accused taken in consideration in continental system, I would like to throw some light on how the trial commences in an inquisitorial system. As through out this comparison I have been focusing on criminal case that’s why I would confine my self to only criminal case once again, same principles are applied to civil case as well.
In criminal cases in continental inquisitorial system a dossier is prepared by an examining magistrate which is called le juged’instructuion (France), in Italy it is known as the giudice istruttore. The purpose of this document (dossier) is to make the court fully conversant with fact of the case, which contains the pre-trial investigation, the dossier is ready before the trial commences formally by a presiding judge who uses it on his disposal to call and question the witnesses. The accused himself is dragged into the process of making this dossier and as result of that the accused can be held in custody for exhausting length of time. The detention with out is not regard as the prerequisites of a trial in the inquisitorial system but the system itself assumes that it will quite handy for juged’instructuion to have suspect available whenever he needs.The examining magistrate (juged’instructuion) see the witnesses and record their statements. In France there are three tiers of criminal offences:
1: Gravity –crimes, with the punishment of five years or more.
2: delits, with the imprisonment of two months or more.
3: contraventions, with minor summary trials cases.
The juged’instructuion is operative in all gravity crimes and delits, the decision that in which cases the juged’instructuion can jump into is left with prosecutor, the behind this exercise of power is depending upon the nature of case. In certain case the prosecutor has absolute powers to investigate and involve the police with out the prior authority of the juged’instructuion. There are benefits and detriments attached with this system as there is always a case with each and every kind of legal system. If the juged’instructuion performing his legal powers they are impressive as well as alarming. The influence and control over police investigation is one of the paramount features of this system besides this there has been cases where the abuse of power was witnessed. One of the criticisms of particular system is that details of the investigation are leaked to press by juged’instructuion which causes the pre-trial publication of details of a case which is considered as grossly prejudicial towards chances of fair trial. Continental system has lenient views as compared to adversary system about the prejudice and bias of judicial proceedings because of press publications, the reason is that continental system don’t rely on lay man’s jury, on the other hand the common law selects jury through random picks from electoral list. Due to the controversial exercise of the powers and certain abuses in the system by juged’instructuion many continental states have completely got rid of that system which has been replaced by grave and radical reforms in the criminal justice system. This big change is not only limited to one aspect of the inquisitorial system but the interesting factor is derogation and lack of confidence showed by the continental countries in their own legal system and this departure from inquisitorial method has resulted in arrival to adversary method6.
Another feature of the inquisitorial system is that it is considered that accused has access to legal advice or a lawyer at all time but in many continental system this right is available only in Gravity –crimes or serious case and does not apply to earliest crucial stages of the investigation. As result of that in some case the accused end up in custody for 48 hours. Where as the common law provides right to access to solicitor from the very beginning of accused’s detention.
In order to complete this jigsaw puzzle I will go back to the above point of antecedents of the accused as this cover evidential process as well, continental inquisitorial system gives great importance to the history of the accused which also includes any criminal convictions or record in the past forming body of the dossier presented in the evidence from the outset of the trial. This is one of the detriments of the inquisitorial system that the presiding judge is cast with a filthy picture of the accused which eventually may lead to desired out come by prosecution.
The continental system has procedure where the victim can play a role at the pre trial and trial stage. The victim is allowed to join criminal proceedings as le parti civile . The adversary legal system has also adopted this principle and English system allows that a compensation award can be granted by criminal court on top of penalty in the shape of fine or other proper sentence. Adversary system does not give any recognized status to victim, he has no right of audience on subject of either guilt or of sentence.
In the above discussion I had tries to engulf mostly all the aspects of both legal systems, this comparison may be, was not in proper order but still it gives a picture of two different legal systems. In order to understand the merits or detriments of continental inquisitorial system in English law, it is most important to find out the advantage and disadvantages of each trial system separately, once these elements are on the surface then it is much easier to find the answer of above mentioned question. Discussion as to which is better than the other almost invariably focus on one single point of each system, rather than on a balanced appraisal of the system as a whole. The effect of the merits and demerits of each system on the quality of the administration of the justice is hard to find. So in that sense it is material that which system is good and which one bad, there is not even a single pure adversary or inquisitorial system in this world, both of them have been transformed. Every thing brings with it evils if its own, bearing in mind the evils only one can not leave fruits of it.
In adversarial system there are certain advantages, i.e. the parties to case has autonomy,
free from direct judicial control and the passivity of the courts which decreases the element of bias and prejudice in decision making. The adversary system is more acceptable to parties because of freedom available to parties and better chance to present their case whether it is criminal or civil. In adversary system even the parties with weaker case has strong hopes to win the case on the basis of skills of their lawyers and better presentation of evidence, strong arguments about the facts. In nature, the adversary system is not in rush to justice because then there are chances to miscarriage of justice and it not also creeping to justice because it will defeat the purpose of the justice. Adversary system provides better opportunity of coming to bottom of the truth by way of lack of unnecessary judicial intervention and most likely to result in a fair trial. Burden of establishing their case beyond any shadow of doubt lies on parties and the job of the court is evaluate every thing presented before the court, this protects the credibility of the judicial system which very important part of the any judicial system and strengthens the confidence of litigants6. There are some real disadvantages as well, the adversary method encourage the “sporting” theory of justice. Party with best lawyers are in the better position to win even from the start of the case they have edge on other side with out going into factual points, this is most likely to result in a rat race to engage best lawyers which may lead to financial problems for parties in the long run. In adversary system the is deemed to be playing a role of referee, this particular role prevents court to safe guard certain things which eventually can produce perverted kind of justice. The court activism or passivity has to reasonable. In adversary system the decision making authority which observing the entire case from the beginning may have certain doubts or questions to
6Thibaut & Walker,procedural justice:a psychological Analysis;
clarify but the inherent nature of the does not allow to go beyond certain limit which also may prevent the course of justice as it was held by the court in the case of Jones v National Coal Board7.
The merits of the inquisitorial system are mostly hidden in the fact that court control is going to cut the cost and wastage of time. Inquisitorial system is better for the society where the of litigation involving small sums is very high in volume. Best example of the inquisitorial system in practice in English legal system is Small claims courts, different kinds of tribunals, claims for industrial injury claims, are the best examples of the benefits of the continental inquisitorial system. It proves the advantages of the system. People are seeking remedies from this legal system with out going to highly paid lawyer wasting their hard earned money and precious time. The inquisitorial system does not take its jury from ordinary class of people but it consists of experts, fully conversant in their domain of knowledge, which puts the each case in an expert hand and gets expert treatment. Again like adversary system the confidence of the parties to case is not shaken they will know that they are in safe hands even if some how their lawyer are lacking behind to court fix that imbalance. The investigator manner of the courts in continental system to makes litigants think twice before they come to court and opens up the doors for Alternative disputes resolution, which has proved to very successful. Non- adjudicatory methods of resolving the disputes benefits in different respects, it lessens the burden on courts, government resources are well spent on other things apart form giving it away for legal aid, regarded as most amicable way to solve problem, less money and less time wasted. So in nut shall I could be right to say that inquisitorial system
7Jones v National Coal Board
provides a passage to ADR. Continental system in English law has already been incorporated to a certain degree since the Civil Procedure Code 1999 rules are amended. It has been laid down in the CPC rules that the courts can intervene and can control the proceedings with regard to what evidence to be presented and which not to be presented. In the case of Mathews(1983) 78 Cr App Rep23, the court of appeal quash the conviction where the judge has asked 524 questions as compared to counsel who has only put 538 questions .the court of appeal was of the view that the number of judicial interventions and questions was excessive but they did not go so far as to divert counsel from his own line of questioning.
The adversary system works on the basis that the court is not supposed to undertake its own investigation and should not go beyond the arguments presented be the parites8.
Conclusion
It is quite often observed that in some jurisdictions trial judge has
intevened or acted in order to find or ascertained a fact by questioning witnesses even in adversarial sytem. Matter of evidence admissability may also allow judge to behave like an enquirer than an arbiter of justice. So we can say that not either of the trial system are fully adversarial or inquisitorial,where ever the dispensation of the justice demand the help of any particular legal system can be sought with in resonable limits.None of the system is absolute in its nature that’s why the legal systems which follows the adversary methods some times has justfied the inquisitorial approach and vise versa. Being a
8 ‘The passive court and legal argument’ Civil Justice Quarterly, 1988,p125
student of law I see that legal systems are transfermed by evolutionary growth and course of justice,one can not sit and draw the logistics of a legal system,it is only by continuous process which shapes it up.
It will be impossible to restrain one legal system to purely one set of method,any system should be adaptable to changing needs and circumstance with in the boundaries of certain restrains, because drastic deviation from one system to other or too much of amalgamation of the legal systems may give rise to futher legal complications and we all know that “not all cocktails are good”. The complete transformation or the too much transformation may distort the real value and essence of any legal system which designed to server certain purposes and to meet certain objests. What is good in france may not be good English system,when ever these system are formulated there are few other considerations in the mind of creating body,they always keep in sight the cultural and traditonal values and usages of that society other wise that system is not going to last long. No system can last against the popular will of a society.Best systems are always those which are the product of evolutionary growth over a sustained period of time.English legal system is the best example of the evolutionary system over the periods of centurie,.even after the prolonged period of time If some thinks that continuous process change has to end, it is not possible because the only is permanent in this world and that is change.All the changes are not pleasant, so it must be done in a very carefull manner because if justice is not done and not seen to done this may endanger the integrity of the society.
BIBLIOGRAPHY
BOOKS
-
Slapper & Kelly,The English Legal System,7th edn 2004
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John H.Farrar and Anthony M.Dugdale,Introduction to legal methods,3rd edn 1990
- Thibaut & Walker,procedural justice:a psychological Anatysis;
- New law Journal,17 May 1991,p 678.
- ‘The passive court and legal argument’ Civil Justice Quarterly, 1988,p125
Cases
- White house v. Jordan[1981] 1 W.L.R 246
- Jones v. National Coal Board[1957]2 QB 55,CA
3. R.v. Deputy industrial Injury Commision Ex Parte Moore[1965] 1 Q.B.456