In the coming months, we will be publishing a series of ‘module reviews’, providing a brief outline of our first-year modules at Newcastle University to help students get a basic understanding of each topic. In the month of September, we will be looking at the module typically labelled by most universities as ‘English Legal System’ but named ‘Legal Institutions and Methods’ at Newcastle.
In the second in this series, we will be examining three key justice system models: adversarialism, inquisitorialism and managerialism. Not only will we be looking at what these mean and which best fit the justice system of England and Wales, we will also be reflecting on some of the positives and negatives of each model and how close they come to uncovering the “truth” when put in practice.
Disclaimer: all information in these Module Reviews is taken from our own notes and research. Please do not cite this article in your own work.
Adversarialism
Adversarialism is arguably the justice system model that best mirrors the justice system in England and Wales. Whilst adversarialism has an overarching aim of ensuring fairness between parties, there is no strict definition, rather a series of characteristics that can be used to identify it:
The trial is a ‘contest’ between parties – the parties choose whether to enter the ‘contest’ by choosing to press charges, sue, etc. and battle it out to win.
The judge acts as an umpire, ensuring that rules are followed and the ‘contest’ is fair.
A number of evidential barriers are put in place in an adversarial system to ensure fairness, for example:
Standard of proof – a reasonable degree of proof is required to reach a verdict. For example, in criminal trials, the prosecution must prove that the defendant is guilty ‘beyond reasonable doubt.’
The confession rule – confessions gained under torture, degrading treatment, etc. are not admissible.
Right to silence – the defendant has the right to remain silent, it is the job of the prosecution to prove guilt.
Advantages and Disadvantages of an Adversarial Model
Damaška argues that the adversarial model is inspired by distrust of public officials (i.e. judges); the evidentiary barriers in place in an adversarial system limit the state and ensure a fair fight.
However, Langbein’s ‘Combat Effect’ suggests that the fight is not in fact fair, but rather forces parties to undergo unfair and unnecessary means to achieve victory rather than the truth (e.g. coaching witnesses or withholding information)
Langbein also suggests that the adversarial model is dominated by the ‘Wealth Effect’; the quality of a party’s defence will always be proportional to their wealth, as the most successful lawyers will also be the most expensive, tilting the system in favour of more wealthy litigants.
Inquisitorialism
A justice system model mirroring those found on continental Europe, inquisitorialism seeks an accurate outcome from trials over one that is fair:
Judges play a more prominent and inquisitive role – they examine witnesses, put together a dossier of facts pre-trial and order police to carry out investigations
No tradition of juries, unlike England and Wales
Fewer rules of evidence and a more flexible system of proof results in a greater focus on accuracy
Advantages and Disadvantages of an Inquisitorial Model
The system is much more efficient – unlike the system in England and Wales, with reported backlogs of up to four years, in countries using an inquisitorial system like the Netherlands, even the largest of cases can take a maximum of two days.
Damaśka argues that a system more focussed on accuracy results in an outcome that corresponds more with reality
One might also argue that the trained legal professionals of the state are better qualified to find the truth than allowing parties to argue over the truth as in an adversarial model
However, Damaška also argues that the inquisitorial model gives too much power to the state (i.e. judges), allowing room for bias and prejudice. For example, a jury would be much more representative and empathetic of society than a judge, the majority of whom in England and Wales are white and privately educated.
The lack of evidential barriers in an inquisitorial model could also result in more miscarriages of justice, for example confessions gained under oppression would be admissible.
Managerialism
A more modern justice system model, managerialism reflects an increasing shift in responsibility on to the courts and giving judges more control in the trial process.
In the civil justice system, we can see the emergence of managerialism in the Woolf Reforms (1996). For example, under the Civil Procedure Rules, judges must carry out active case management, such as encouraging the use of Alternative Dispute Resolution (ADR).
In the criminal justice system, managerialism has manifested itself in practices under the Criminal Procedure Rules. This includes the introduction of early defence disclosures to undermine the adversarial ‘Combat Effect’ (mentioned above) and the use of guilty plea incentives.
Which Model Works Best?
If we look at the quality of each model inn regard to finding the “truth” at trial, there are two major opposing theories that help highlight the advantages and disadvantages of each: correspondence and coherence.
Correspondence Theory, established by Jerome Frank, is concerned with making the outcome of a trial correspond to what actually happened. This focusses greatly on proving what happened through factual evidence and goes against the concept of adversarialism. Frank argues that “to treat a law-suit as, above all, a fight, surely cannot be the best way to discover the facts” – this seems to suggest that the adversarial model with its ‘Combat Effect’ takes away from discovering the truth and leads to an outcome that does not correspond with reality.
Conversely, Coherence Theory, as described by Neil MacCormick, instead argues that we can only hope for an account of the facts that is coherent with reality – we cannot come to an accurate outcome. In this case, adversarialism is the best model to achieve the “truth” – the prosecution must prove the case ‘beyond reasonable doubt’, and if they cannot do this, then their version of events cannot cohere to the truth at all.
Packer’s Models of the Criminal Justice System
In line with the justice system models explained above, Herbert Packer theorised two separate models that could be used to describe the criminal justice system; these too offer critiques of the various justice system models as they correspond to the various features.
The Crime Control model highlights the primary aim of the criminal justice system as being to supress crime. There are several features of this that mirror the inquisitorial justice system model; a justice system aiming to supress crime arguably requires a high level of efficiency, which can be reflected by the fast trial process in countries adhering to the inquisitorial model. Furthermore, the removal of evidential barriers such as the confession rule and right to silence and the judge’s role in assembling all of the facts prior to trial also promote efficiency and aim to quickly determine guilt or acquittal.
Alternately, the Due Process model paints an image of the criminal justice system as an assembly line, with obstacles in the way to prevent abuse of power and erroneous decisions. This clearly aligns with the adversarial model, removing power from the state by placing judges in an umpire role and adding evidential barriers to ensure fairness and ward away miscarriages of justice.
This is just a basic outline of the key justice system models within the English Legal System, providing a starting point for your studies on this topic. Next week's post will focus on judges, juries and alternative dispute resolution (ADR).
References
Mirjan Damaška, ‘Evidentiary Barriers to Conviction and two Models of Criminal Procedure: a comparative study’ (1973) 121 U Penn L Rev 506
Herbert L Packer, The Limits of the Criminal Sanction (Stanford UP 1968)
Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon 1978)
Jerome Frank, Courts on Trial: myth and reality in American justice (Princeton UP 1949)
John Langbein, The Origins of Adversary Criminal Trial (OUP 2005)
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