The UK follows an adversarial system of justice whereby the partiesto proceedings investigate the case before them and produce their own evidence whilstthe judge and jury remain neutral. The adversarialsystem requires that the parties, within the limits of the law, put forward argumentsand evidence to demonstrate the guilt of the defendant whilst the opposingparty puts forward their arguments and evidence in a bid to prove the defendant’sinnocence. The judge has the ability to ask questions of the witness or lawyersfor clarification rather than for the purpose of arguing or investigating thecase. The judge’s role is also to summarise the facts of the trial and to advisethe jury on any relevant law.
The roleof the jury is to make a decision of whether guilt has been proved beyondreasonable doubt or on a balance of probabilities based on the arguments andevidence presented to them. In civil cases, the claimant must prove on a balance of probabilitiesthat the defendant breached their legal duty of care whilst the defendant arguesthat they did not breach the said duty. The Civil Procedure Rules 1999 allows amore interventionist judicial case management role as cases are managed by thecourt to ensure that they follow the correct procedure, the court also weigh upwhether the proceedings will justify the cost. Regardless of this, the judge’srole primarily remains passive. The main advantage of an adversarial system is that itprotects the rights of individuals by eliminating scope for bias and maintainsthe presumption of innocence until proven guilty which is a fundamental humanright. However, there are some potential disadvantages which can arise from theuse of this system. 1.
Disclosure ofevidence A party is required to disclose to the other party anydocuments it seeks to rely on and any documents which may adversely affect theopposing party. In an adversarial system, the lawyers have the choice of whatevidence they will present, in some cases this may lead to one party suppressingevidence which may in fact prove a defendant’s guilt/innocence thus deprivingthe other party of key evidence which can lead to injustice. In aninquisitorial system, this would be avoided as any distortion of evidence bythe lawyers would be easily detected by the courts who play a moreinvestigatory role in the proceedings. 2. Judgements may becompelled by the most ‘convincing’ argument rather than evidence In an adversarial system, the role of the lawyers is to presentthe supporting arguments and evidence to the judge/jury, however in instanceswhere the evidence is not clear cut, whether the defendant is found guilty orinnocent will be based upon the most convincing argument presented. This methodof deciding guilt may not always be the correct result where the defendant mayhave actually been innocent but based on good argument, they were convicted. 3.
Vulnerablewitnesses The adversarial process means that lawyers cancall up witnesses & victims for cross examination. The lawyer’s role is tointerrogate the witnesses/victims in a manner which helps expose holes in thewitness/victim story or in a way which helps the lawyer in question support hiscase. Cross examination by lawyers can be distressing particularly in casesinvolving young children. Commentators have suggested an inquisitorial systemwould be more effective as only the judge