The UK follows an adversarial system of justice whereby the parties
to proceedings investigate the case before them and produce their own evidence whilst
the judge and jury remain neutral. The adversarial
system requires that the parties, within the limits of the law, put forward arguments
and evidence to demonstrate the guilt of the defendant whilst the opposing
party puts forward their arguments and evidence in a bid to prove the defendant’s
innocence. The judge has the ability to ask questions however this must only be
done for the purpose of clarification rather than for purposes of investigating,
arguing or proving the case. The judge concludes the trial by summing up the
facts of the case to the jury and where required, advising them on the law. The role of the jury is to make a decision of whether
guilt has been proved beyond reasonable doubt or on a balance of probabilities
based on the arguments and evidence presented to them.
In civil cases, the claimant must prove on a balance of probabilities
that the defendant breached their legal duty of care whilst the defendant argues
that they did not breach the said duty. The Civil Procedure Rules 1999 allows a
more interventionist judicial case management role as cases are managed by the
court to ensure that they follow the correct procedure, the court also weigh up
whether the proceedings will justify the cost. Regardless of this, the judge’s
role primarily remains passive.
The main advantage of an adversarial system is that it
protects the rights of individuals by eliminating scope for bias and maintains
the presumption of innocence until proven guilty which is a fundamental human
right. However, there are some potential disadvantages which can arise from the
use of this system.
1. Disclosure of
A party is required to disclose to the other party any
documents it seeks to rely on and any documents which may adversely affect the
opposing party. In an adversarial system, the lawyers have the choice of what
evidence they will present, in some cases this may lead to one party suppressing
evidence which may in fact prove a defendant’s guilt/innocence thus depriving
the other party of key evidence which can lead to injustice. In an
inquisitorial system, this would be avoided as any distortion of evidence by
the lawyers would be easily detected by the courts who play a more
investigatory role in the proceedings.
2. Judgements may be
compelled by the most ‘convincing’ argument rather than evidence
In an adversarial system, the role of the lawyers is to present
the supporting arguments and evidence to the judge/jury, however in instances
where the evidence is not clear cut, whether the defendant is found guilty or
innocent will be based upon the most convincing argument presented. This method
of deciding guilt may not always be the correct result where the defendant may
have actually been innocent but based on good argument, they were convicted.
The adversarial process means that lawyers can call up witnesses
& victims for cross examination. The lawyer’s role is to interrogate the witnesses/victims
in a manner which helps expose holes in the witness/victim story or in a way
which helps the lawyer in question support his case. Cross examination by
lawyers can be distressing particularly in cases involving young children.
Commentators have suggested an inquisitorial system would be more effective as
only the judge would question the witnesses as opposed to a number of lawyers
which may well be less intimidating.
The ability for lawyers to tailor their arguments as they wish
and the freedom to disclose evidence of their choice can lead to
competitiveness between the parties, although on one hand, competitiveness can
be seen as an advantage in the eyes of the respective defendants, it can also
lead to injustice where the parties are deliberately not disclosing all the
materials of the case. The competitive nature could also possibly encourage
deception or the use of undesirable legal tactics in order to win the case.