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d clients and know how easy it is to slant them to suggest a particular interpretation it takes a conscious act of determination not to do so the ever present knowledge that your work will be exposed in open court imposes a strict and helpful discipline the inquisitorial system has no such safeguard worse the outcome of the trial is based largely on the writings and the accused has no formal right to challenge them in open court if you have a trained magistracy ostensibly expert in discerning and charged with discovering the truth there is the risk of over valuing their work moreover as we have seen the early involvement of a prosecuting magistrate is frequently bypassed this same phenomenon of over confidence in the expert is there in the adversarial system judges see crime day after day and mistakenly believe they observe a pattern convincing themselves that they are experts in truth in other words that they are able to assess proof beyond reasonable doubt better than the untrained in civil cases the standard of proof is on a balance of probabilities which is much easier to define the state ought not to arrogate to itself assumptions about human nature justice is the art of espying the exception and experts are too deeply immersed in detail to do so that then is why questions of fact save in civil cases ought to be determined by a jury with the active guidance from the expert judge free from the stultifying logic and sense of inevitability that can be so misleading i say this despite some evidence that juries are biased towards eyewitnesses confident witnesses and children and that they are influenced by pre trial publicity regardless of judicial guidance these observations do not take account of practicalities or abuse of the adversarial system thus small crime is dealt with summarily a full adversarial trial leads to expense and prolixity and so an efficient means of bringing the essentials of a case to the notice of parties in advance of trial is desirable and has long been implemented adversarial and inquisitorial differ only in degree in that regard adversarial trials would do well to encourage measured intervention by the judge to halt sophistry indulgence in obscure points of law and delaying tactics everything is a compromise in any event obscure laws damage the rule of law over specialisation and bureaucracy are weaknesses of both systems but they are written into the inquisitorial some english judges have in fact been severely criticised for their interventionist approach particularly noteworthy is that of lord chief justice goddard who tried craig and bentley for the murder of a policeman in 1952 the pair were on a warehouse roof in croydon preparing to burgle a factory when they were intercepted by pc miles and sergeant fairfax bentley who was of little intelligence called to craig to let him have it when fairfax asked for his gun craig shot miles dead and injured fairfax the two were arrested and charged goddard actively sped the trial along and directed the jury that bentley was guilty in law a guilty verdict was returned and bentley hanged in 1953 craig was under age and escaped the death penalty after 46 years of campaigning bentley s verdict was quashed by the court of appeal it was not a pardon a pardon is an act of prerogative mercy on behalf of the crown which does not reverse a verdict this is a lesson that the public s tolerance of directions to a jury and judicial restrictions upon an accused s right to make his case is strictly limited fairfax was a brave man he was unarmed he became a private investigator when he retired from the force and i used to instruct him in divorce cases i once asked him about the ambiguity in those vital words he was inscrutable he possessed that quiet stillness and humility characteristic of those who have faced mortal danger nobbling and perverse verdicts are obvious shortcomings of the jury in some instances they justify an expert sitting as judge of both law and fact retaining the other features of an adversarial system in other cases a more efficient system of appeal against unsatisfactory verdicts may be the answer ultimately preference for one or other system is a matter of temperament within the limits of human fallibility both adversarial and inquisitorial jury and non jury are capable of and do deliver a good level of workable justice it is important for each to learn from the other and this is happening what cannot be avoided and this is a significant issue in europe is the clash of ideology alluded to at the start of this post there is no point in unification it is an utterly pointless exercise why should not the systems exist side by side on balance however and taking its shortcomings into account i find in favour of the adversarial system with judge and jury this is not without misgiving i have much to learn about the inquisitorial systems around the world it would have been good to have had challenge and representations on their behalf to inform my conclusions any system relies in any event on how well those charged with responsibility do their job everything said in this thread is overarched by the art and science of sentencing which i have not even touched upon it is properly the concern of experts within the parameters set by law but again the factor of popular dissatisfaction has to be taken into account if an orderly society is to be maintained this indeed happens in practice thanks to openness and freedom of the press on a purely personal level for me the sheer joy of the adversarial system is that the accusing finger of the state is a mere party to proceedings posted in uncategorized tagged justice systems 12 comments criminal justice systems on trial the pursuit of fact june 17 2010 by glenys and richard previous post in thread the inquisitorial system what familiar hath sarah osborne she had a thing with a head like a woman with two legs and wings who doesn t deem their opinions to be factual considerations asked a perceptive reader it is axiomatic therefore that non expert witnesses speak as to fact whether they speak truth has to be established they may be lying in whole or part or they may be mistaken proof is therefore a demonstration of completeness and consistency in a witness s report of events according to pre set standards scientists have a very strict standard they rely only on repeatable events observation of repeatable events can only be subjective or flawed if all conditions are precisely the same the events are independent of time processes and therefore identical so the standard is unattainable those charged with establishing fact in court rely on the reports of experts and accounts of non repeatable events whatever the standards the accounts can only be either subjective or flawed any determination of fact artificially penetrates this inevitable veil of uncertainty nor may fact be determined by complete and consistent human thought through logic as we have seen broadly the adversarial system leaves the ascertainment of fact to the layman while the inquisitorial system reserves it to trained professionals inquisitorial systems rely mostly on written evidence adversarial on oral in england lay magistrates receive training after appointment and it is they who try the vast majority of cases deciding both law and fact in the normal course fact is otherwise decided by a jury in the rare instances of a jury in france it swears to the following message from the judge you swear and promise to examine with the most scrupulous attention the charges that will be laid against the defendant to betray neither the interests of the defendant nor the interests of the society that accuses him nor the interests of the victim not to communicate with anybody until you declare your verdict not to listen to hatred malice fear or affection to remember that the defendant is presumed to be innocent and that doubt must benefit him to decide for yourself according to the charges and the means of defence according to your conscience and intimate conviction with the impartiality and firmness that befits an honest and free person and to keep the secret of the deliberations even after you cease to be a juror in england criminal juries are selected randomly from the electoral roll and are 12 in number at the start and must remain at a minimum of 9 until very recently lawyers and judges were banned from criminal juries in england the defendant has defined rights of challenge with and without cause whilst an english trial is in form a contest between parties and the task of the jury is to determine guilt or non guilt they swear to reach an honest verdict based only on the evidence heard in court and that evidence is given by witnesses who swear to tell the truth the whole truth and nothing but the truth a jury in england may not divulge the proceedings in the jury room free from scrutiny the jury is free to follow intuition and shed the constraints of consistency a release from the remorseless supposed logic in the public presentation of the case it either acquits or convicts it may be directed to acquit but not to convict its verdict may be perverse according to evidence and law but still stand thus in 1985 clive ponting was charged with revealing secrets under official secrets act 1911 s 2 his defence was that he did so in the public interest the judge told the jury that the government decides what is the public interest but the jury still acquitted again in 1989 pat pottle confessed in open court to springing soviet spy george blake from jail he asked the jury to assert its ancient right to throw out a politically motivated prosecution the judge directed them to consider only whether the defendant was guilty or not guilty according to law despite the confession they acquitted a jury may be an arbiter of public morals and censorship at the trial of penguin books for obscenity on the publication of lady chatterley s lover a jury had to consider whether despite the use of obscene words the work had literary merit as we all know they acquitted and the case became a benchmark for subsequent prosecutions normally juries have to be unanimous in their verdicts although there is provision on failure for a single dissenter defendants may appeal a conviction as contrary to law only recently has a limited right of appeal been extended to prosecutors much concern has been expressed in recent times about the competence of juries and interference by means of bribery and threats there is also the additional cost of complex fraud cases and directions for retrial judge only trials have already been a feature of terrorist trials in northern ireland but now they are being introduced in england there is no constitutional rule requiring jury trial only statutory provision for specific crimes it is being tested whether any jury can provide a reasoned verdict in accordance with european convention on human rights article 6 i am interested to see whether readers of this post agree that a verdict should be reasoned and if so whether this excludes verdicts by intuition remembering that cg jung regarded intuition superior to thought when science perceives poetry in human observations it is called beauty when justice perceives poetry in human accounts it is called truth a personal evaluation of this thread will appear in the final post succinct conclusions on 25 june 2010 posted in uncategorized tagged enquiry international considerations jung justice systems law 9 comments bp june 17 2010 by glenys and richard would my american friends please explain to me whether bp responds to president obama in his executive or his judicial capacity posted in uncategorized tagged international considerations law 98 comments criminal justice systems on trial the inquisitorial system june 14 2010 by glenys and richard previous post in thread the adversarial system we have seen that under the adversarial system the accused has to be made aware of the facts and crime alleged and brought before a court at the earliest possible time or he must be released that is not the priority of the inquisitorial system whose roots are ancient and varied the object there is to ascertain the truth the continuing detention of the suspect is justified by high status control and involvement of the state at the outset it is not confined to civil law or other codified systems the oldest judicial office in england is the coroner or crowner it is first mentioned in saxon times during the reign of alfred the great 871 879 and revived under the absentee monarch richard i to help finance the crusades its modern version has been widely adopted in other jurisdictions in mediaeval times it was a powerful and wide ranging office within the general eyre an inquisitorial court now it deals only with deaths it is an offence not to report a dead body to a coroner and specific circumstances for report are defined he then investigates through his officers decides according to the rules whether to conduct an inquest and calls and questions the witnesses there is little or no restriction on admissibility of evidence and hearsay is allowed although an appeal in 2007 in relation to the inquest into princess diana s death ruled that hearsay in a written statement could not be read to a jury if he sits with a jury either mandatory or discretionary he often makes clear which of the prescribed verdicts is to be returned before 1977 he could commit a person for trial by judge and jury for murder manslaughter or infanticide a strange coexistence of the adversarial and the inquisitorial and widely criticised inquisitorial systems vary from jurisdiction to jurisdiction they reflect the culture in which they operate there is a philosophical influence in the german system and italy is experimenting with an adversarial approach the following description of civil law codifications of the system must therefore be viewed with circumspection there are four agencies of the state involved in the criminal process the judicial police the prosecutor the investigating magistrate and the trial judge or judges judges are career judges and have security of tenure thus all are equipped to pursue the truth not a conviction and gather evidence for and against by fair process of law so there is no need for complex rules of admissibility of evidence only questions of relevance and the antecedents and character of the suspect are regarded as relevant throughout as is hearsay biased presentation of facts is excluded the prosecutor is subject to a disciplinary hierarchy every stage in the system is prescribed by law the judicial police decide when to begin an investigation and make written notification to the prosecutor who can either drop the case or order more investigations a dossier is gradually built up piece by piece according to the mandatory steps and when it is finished it is sent to the prosecutor if the case is complex a major crime or has political implica...