The news is beset by reports that the criminal justice system is breaking, damaged by decades of cutbacks to public legal services. There are calls for the review of disclosure failings in all kinds of CPS cases, not just rape and sexual assault; in April barristers took action seeking to draw attention not only to cuts to fees, but also to the deplorable state of courts and prisons. Other reports highlight overloaded lists; increasing delays; the growing numbers and plight of litigants in person; and the consequent risks to human rights protections.[1]
It is in this landscape that a further call for an inquisitorial system has been made by campaigner Richard Lomax.[2] Some may say not with a little irony given the context of Brexit, the inquisitorial system is the system commonly found in European jurisdiction and we in the English system have traditionally been the odd ones out. However, our justice system has always been admired the world over.
Richard Lomax is not the first to call for an inquisitorial system. When he was Home Secretary, Charles Clarke told a Commons committee that “a supervisory system and investigating magistrates’ regime is very superior to the system that we have in this country”. He conceded that his was a personal view, and that he doubted change would ever happen because of the conservatism of lawyers. A decade earlier, in 1993, a similar suggestion received little support when it was considered by a Royal Commission, and the faith many have in the adversarial system is firmly rooted.[3]
Richard Lomax is a veteran of both the CPS and defence practice who now campaigns for social charity Toynbee Hall (whose stated aim is to “work on the frontline of the struggle against poverty …. give some of the UK’s most deprived communities a voice, providing access to free advice and support and working together to tackle social injustice”). His discussion paper is one of the responses to the many problems
In his discussion paper, Lomax proposes that the solution to our present problems lie not with further attempts to persuade government to invest in the current system, but in the adoption of a cheaper inquisitorial system which would thereby do away with costly advocates and put case management squarely in the hands of a ‘juge d’instruction’.
The adversarial and inquisitorial systems reflect two very different philosophies of justice: in an inquisitorial system the aim of the criminal justice process is a search for the truth; in an adversarial system the purpose of the process is to rigorously test a prosecution case. The terms refer to the process only and do not denote any difference in substantive criminal law. The significant distinction is in the role of the judge or court. In the adversarial system the judge acts as a referee, ensuring procedural fairness between the prosecutor who initiates and pursues a case and the defender who represents a defendant, both of whom leave the fact-finding to a jury. In the inquisitorial system the judge or court can initiate a prosecution, identifies and causes actions to be taken to obtain evidence pointing either way, and ultimately finds facts. In Jones v National Coal Board [1957] 2 QB 55, Lord Denning expressed this dichotomy as follows:
“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, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question “How’s that?” His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L.C. who said in a notable passage that “truth is best discovered by powerful statements on both sides of the question”? … and Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in
their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have his vision clouded by
the dust of conflict”. (paras 63-4)
Recently however, aspects of the continental system have received judicial approval. Lord Thomas of Cwmgiedd speaking in 2014 about civil and family cases argued that an inquisitorial system “might be an improvement for litigants in person and secure a fair trial for all whilstddoing so within limited and reducing resources”.[4]
Sir Brian Leveson speaking at the Criminal Cases Review Commission Annual Lecture inApril 2018 suggested that the greater involvement of the prosecutor in the scrutiny and disclosure of unused material, as happens in the public prosecutorial system of France, might provide the independent oversight required of the presently plagued disclosure system.[5]
Whether a jurisdiction has an inquisitorial or adversarial process usually stems from the historical roots and developments of its legal system. While the former is commonly found in civil law systems and the latter in common law ones, it is possible for the two to co-exist. The US provides an example of a combined system where despite being a common law system which is typified by adversarial jury trials, uses an inquisitorial system for the less serious, administrative proceedings such as minor driving offences.
There are signs that the modern approach to the criminal justice process in England and Wales includes and has adopted features traditionally associated with the inquisitorial process. The difference is no longer as stark as historically it has been. Take as an example the obligation on both parties to ‘actively case manage’ and identify issues since the introduction of the Criminal Procedure and Investigations Act in 1996, followed by the Criminal Procedure Rules. The idea that the accused should co-operate in ensuring the Crown’s case is ready at trial was anathema to traditional adversarial practice, but it shows that we are moving closer to a system described by Lord Justice Auld in his review of English criminal procedure in 2010: “A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth...”.[6]
Likewise, reforms to law contained within the Youth Justice and Criminal Evidence Act 1999 (‘YJCEA’), and the vulnerable witness training being provided to the Bar by the Inns of Court College of Advocacy also suggest a move towards the continental, inquisitorial model. Materials provided in assisting advocates to formulate the new-style non-leading questions include a lecture by Professor John Spencer in which the obvious adversarial defence objection is dealt with head on: “The Court of Appeal has disarmed the defendant by blunting the only weapon by which he can defend himself in such a case. Is this true or false? It depends, surely, what the purpose of a cross-examination is. Is a cross-examination an instrument intended to help the court produce an outcome in accordance with the truth? Or is (it) a sort of card in a game that enables an advocate to win his client’s case whether that client be innocent or guilty? Surely it is the first conception that is correct”.[7]
This view is also endorsed in case law, namely R v E [2011] EWCA Crim 3028, in which the defence advocate was directed in the presence of the jury “that he can and should ask any question to which he actually wants answers, but he should not involve himself in any cross-examination of [C] by challenging her in a difficult way”.
Having been piloted in Kingston-Upon-Thames, Leeds and Liverpool Crown Courts, prerecorded cross-examination of child witnesses under section 28 of the YJCEA is now being introduced more broadly. This is yet another longstanding feature of other jurisdictions; in Norway, questioning is conducted by a specially-trained police officer after consultation with the judge and counsel to ensure that all topics and contradictions have been identified; and in Austria, the judge conducts the questioning.[8]
So far these piecemeal introductions of features of the inquisitorial system into our traditionally adversarial system represent gradual change, creating some tensions around what the goal of our justice system now is; are we now seeking out the truth through trial, or are we testing the
evidence of the state?
If Richard Lomax’s radical proposal is ever seriously considered, the first obvious flaw is where the vast numbers of new judge recruits would come from. England and Wales is in the middle of a judicial recruitment crisis, with a third of High Court posts left unfilled after the most recent recruitment round. Perhaps, following the French model again, a new cadre of young investigatory magistrates can be trained as a separate strand of the legal profession. Perhaps they could be drawn from the pool of surplus advocates? Nonetheless, no system is without its risks and difficulties. The inquisitorial system carries inherent disadvantages, seen most recently in France where a widely publicised series of scandals drew attention to the fact that presiding over a case you have yourself spent 4 years investigating brings an obvious risk of bias. Under former Prime Minister Nicolas Sarcozy, investigating judges were criticised for misusing their own powers, serious miscarriages of justice and lengthy pre-trial detention,leading to a parliamentary inquiry which later underlined the need for young, inexperienced judges not to work alone; and criticism from the European Court of Human Rights.[9]
Whatever change may come, it is unlikely to be quickly. Charles Clarke was right to say lawyers are typically conservative and resistant to change. When in 2014, an intermediate court between the Magistrates’ and Crown Court was proposed, consisting of a District Judge sitting with two Magistrates, it was rejected as too radical.10 And Lomax’s proposal of changing the model for our justice system as a whole will surely remain firmly in the realms of academia.[10]
1 ‘We Stand By The Criminal Bar Association And The Criminal Bar’ 29 March 2018 https://www.barcouncil.org.uk/media-centre/news-and-press-releases/2018/march/bar-council-we-stand-by-the-criminal-bar-association-the-criminal-bar/, accessed 13 August 2018.
2 Guardian article ‘Adopt inquisitorial criminal justice system in UK, charity think piece urges’ 2 August 2018 https://www.theguardian.com/law/2018/aug/02/adopt-inquisitorial-criminal-justice-system-in-uk-charity-urges, accessed 13 August 2018.
3 Telegraph article ‘Is there a case for the legal system to turn to European-style justice? 6 January 2014 https://www.telegraph.co.uk/news/uknews/law-and-order/10553643/Is-there-a-case-for-the-legal-system-to-turn-to-European-style-justice.html, accessed 13 August 2018
4 The Right Hon. The Lord Thomas of Cwmgiedd Lord Chief Justice of England and Wales ‘Reshaping Justice’
3 March 2014, delivered to the Organisation “Justice”.
5 Sir Brian Leveson President of the Queen’s Bench Division ‘The Pursuit of Criminal Justice’ 25 April 2018 Criminal Cases Review Commission Annual Lecture Faculty of Laws, University College London.
6 The Right Honourable Lord Justice Auld, ‘Review of the Criminal Courts of England and Wales’, September 2001 (para 54).
7 Professor John Spencer, Advocacy and the Vulnerable National Training Programme ‘Development of the Law’ (lecture transcript p7), delivered in 2017
8 Time to change the rules? Counsel magazine article by David Wurtzel in 2012
9 ‘A delicate judgement‘ The Economist 10 September 2009.
10 Telegraph article cited at 3 above.
