Adversarial vs inquisitorial systems: is there still such a difference?

Abstract

The article responds to the common perception that the English system of criminal procedure is ‘accusatorial’ whilst those in continental Europe are ‘inquisitorial’ and that these categories are distinct. On closer inspection, what were different traditions have been modified on both sides, so that pure systems no longer exist. The position on the United Kingdom is further confused in public discussion by equating the European Convention on Human Rights and the United Kingdom’s membership of the European Union, with the latter especially being seen in some circles as an unwelcome force for harmonisation.

Keywords:

• adversarial
• inquisitorial
• criminal process

Acknowledgements

This is a heavily abridged and lightly edited version of the author's introduction to (Mireille Delmas-Marty and John R. Spencer, eds, European Criminal Procedures (Cambridge: Cambridge University Press, 2002). The material is reproduced here by kind permission of the publishers. European Criminal Procedures was based on a study of five systems: those of England and Wales, France, Belgium, Italy and Germany.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

John R. Spencer is Professor Emeritus of Law at the University of Cambridge. His areas of expertise include criminal law, criminal evidence, comparative criminal procedure and EU criminal law. His publications in this area include European Criminal Procedures (with Delmas-Marty, Cambridge: Cambridge University Press, 2002), La Procédure Pénale Anglaise (Paris: PUF, 1998) and many articles related to the EU and criminal law and comparative criminal law and criminal procedure. He was a consultant to Lord Justice Auld's Review of the Criminal Courts (2001) and a member of the group that produced the Corpus Juris Project (1997). He holds a Cambridge LLD. He is also an honorary QC, an Academic Bencher of the Inner Temple and has an honorary degree from the University of Poitiers.

Notes

1. Frederick Pollock and Frederic William Maitland, The History of English Law, revised by S.F.C. Milsom (London: Cambridge University Press, 1968), vol. II, 578–9.

2. Although forms of it survived surprisingly late: for the ‘Halifax gibbet law’ that survived into the seventeenth century, see James Fitzjames Stephen, History of the Criminal Law of England (London: MacMillan, 1883), vol. 1, 265 ff.

3. For an account of these, see John H. Baker, Introduction to English Legal History, 3rd ed. (London: Butterworths, 1990), 5.

4. Raoul C. Van Caenigem, The Birth of the English Common Law, 2nd ed. (Cambridge: Cambridge University Press, 1988), Ch. 3.

5. Although it seems that the jurors were originally encouraged to make their own inquiries before the trial: see Pollock and Maitland, The History of English Law, 622, 625.

6. No one knows exactly when, but by the end of the fifteenth century it had become the usual practice: see Theodore Plucknett, A Concise History of the Common Law, 5th ed. (London: Butterworths, 1956), 129–30.

7. As in the prosecutions of Miller and Woodfall in 1770 arising out of the ‘Letters of Junius’; see 20 Howell's State Trials 870 and 895.

8. For a brief account, see Adhémar Esmein, History of Continental Criminal Procedure (Boston, MA: Little, Brown and Company, 1913), 251 ff and Appendix B.

9. John H. Langbein, Torture and the Law of Proof (Chicago: University of Chicago Press, 1977).

10. See fn.8 above, 351 ff.

11. Until the Civil War it was sometimes practised unofficially, whereby the king signed a ‘torture warrant’ giving express permission: see Langbein, Torture and the Law of Proof. Contrary to popular belief, the Star Chamber did not use torture as part of its pre-trial procedure, though it certainly imprisoned uncooperative defendants for contempt of court and in several famous cases imposed sentences of mutilation following conviction.

12. See fn.8 above, 408 ff.

13. Ibid., 462 ff.

14. New, that is, in title; the pre-revolutionary procedure had a juge instructeur.

15. High-profile examples include the former President, Jacques Chirac, who on 15 December 2011 was convicted and given a suspended prison sentence for misuse of public funds; see http://www.lefigaro.fr/assets/chiracp156.PDF.

16. Interestingly, arguments against the juge d’instruction in France have been paralleled by arguments in favour of the introduction of the equivalent in the United Kingdom (UK). The case for a juge d’instruction as a bastion against miscarriages of justice was argued by Sir Ludovic Kennedy (see ‘Europe v. England’: Lecture to the Howard League for Penal Reform on 15 November 1989, http://flac.htmlplanet.com/news/kennedy89.htm) and has also been put forward by Michael Mansfield QC (see Michael Mansfield and Tony Wardle, Presumed Guilty (London: Heinemann, 1993)). From the opposite perspective, the existence of a specialised group of anti-terrorist juge d’instructions in France has also led to suggestions that a British juge d’instruction could be a useful weapon in the fight against terrorism: Home Office, Terrorist Investigations and the French Examining Magistrates System (London: Home Office, 2007).

17. Where it was reintroduced when Spain returned to democracy at the end of the Franco regime. For a useful summary of the different modes of lay participation in the criminal justice systems of the world, see Jean Pradel, Droit Pénal Comparé, 3rd ed. (Paris: Dalloz-Sirey, 2008), paras 156–64.

18. See generally Leon Radzinowicz, A History of English Criminal Law (London: Stevens and Sons, 1956), vol. 3; David Hay and Francis Snyder, Policing and Prosecution in Britain, 1750–1850 (Oxford: Oxford University Press, 1989).

19. Prosecution of Offences Act 1985, s.3(1).

20. For centuries, a necessary step on the way towards a trial on indictment was the decision by the magistrates to ‘commit the case for trial’. By a series of reforms that began with the Criminal Justice Act 1967 the scope of committal proceedings was progressively reduced, and they have now been abolished by the Crime and Disorder Act 1998, s.51, and the Criminal Justice Act 2003, s.41, Sch.3, para.18.

21. On this subject, see generally the extensive writings of John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003) and his articles ‘The Criminal Trial before the Lawyers’, University of Chicago Law Review 45 (1978): 263; ‘Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources’, University of Chicago Law Review 50 (1983): 1; ‘The Prosecutorial Origins of Defence Counsel in the Eighteenth Century’, Cambridge Law Journal 58 (1999): 314.

22. The Macdaniel scandal attracted great attention. Macdaniel and his associates made a living by falsely accusing innocent persons of highway robbery and pocketing the official rewards payable to those whose evidence secured the conviction of highwaymen. As a result of their activities, a number of innocent persons were sentenced to death and executed. When they were eventually detected there was an unsuccessful attempt to prosecute them for murder, followed by successful proceedings for perjury. Their sentences included standing in the pillory, where the mob set upon them and stoned one of them to death. The story is told by Sir Leon Radzinowicz in Volume 2 of his History of English Criminal Law (London: Macmillan, 1957).

23. See Mireille Delmas-Marty and John R. Spencer, eds, European Criminal Procedures (Cambridge: Cambridge University Press, 2002), 265–6.

24. Ibid., Ch. 7.

25. Ibid.

26. A position emphasised in England and Wales by the Criminal Justice Act of 2003, Pt.XI, which codified and reformed ‘rule against hearsay’ instead – as some had advocated – of abolishing it.

27. Although the rule of evidence excluding bad character evidence was significantly relaxed by the Criminal Justice Act 2003. See generally, J.R. Spencer, Evidence of Bad Character, 2nd ed. (Oxford: Hart, 2009).

28. For a discussion of the common objections and an attempt to answer them, see Sir Robin Auld's Review of the Criminal Courts (London: The Stationery Office, 2001), Ch. 10, para. 91 onwards.

29. C.J. Hamson and R. Vouin, ‘Le procès pénal en Angleterre et en France’, RIDP (1952) : 177.

30. On this, and the related issue of ‘Newton hearings’, see Archbold, Criminal Pleading, Evidence and Practice (London: Sweet and Maxwell, 2015), para. 5.90 et seq.

31. See inter alia R v. Wellingborough Justices, ex parte Francois (1994) 158 Justice of the Peace 813 and R v. Haringey Justices, ex parte DPP [1996] QB 351.

32. See Delmas-Marty and Spencer, European Criminal Procedures.

33. A prominent example is the German Strafbefehlsverfahren, whereby in minor cases the public prosecutor sends to the court, with a copy to the defendant, a written statement with his version of the facts and his recommendation as to penalty; which, unless the defendant enters an objection, the court is then likely to impose. See ibid., 316–17.

34. The details of which are to be found in article 495–7 et seq. of the CPP (Code de procédure pénale).

35. The reason is historical. Summary trial was originally introduced as a substitute for the type of procedure which defendants were normally entitled to expect – and it was therefore thought essential when introducing it to offer defendants who were dissatisfied with the results the chance to take the matter to a higher court.

36. Mirjan A. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, CT: Yale University Press, 1986).

37. Howarth v. UK, App. No. 38081/97, 21 September 2000, where the UK was condemned over an apparently needless two-year delay in dealing with an appeal.

38. Germany: Eckle v. Germany, App. No. 8130/78, Ser A 51, (1982) 5 EHRR 1; fraud proceedings, before the German courts from 1959 to 1977; France: Tomasi v. France, App. No. 12850/87, Ser A 241-A, (1992) 15 EHRR 1 (proceedings for murder and firearms offences which took over five years to pass through the French courts, whilst the defendant remained in prison; Italy – see the following note).

39. E.g. Ferantelli and Santagelo v. Italy, App. No. 19847/92, 1996-III, (1996) 12 EHRR 288 (proceedings for murder, which took 16 years to work their way through the Italian courts).

40. When the book on which this chapter is based appeared (see Delmas-Marty and Spencer, European Criminal Procedures), in the magistrates’ courts the average time from the initiation of proceedings (charge or summons) to final disposal was around 11 weeks for either-way offences and for summary offences rather less. For cases eventually heard in the Crown Court, the average time from commencement of proceedings to trial was around four-and-a-half months. But public spending cuts in recent years have slowed things down. As this chapter goes to press, the waiting time in Cambridge Crown Court for a trial involving a defendant out on bail is 15 months.

41. See for example A v. France, App. No. 28213/95, 1998-VII, where a man accused of murdering his wife was held for five years in prison pending trial. This cost France a condemnation from the Strasbourg Court from infringement of Article 5 of the European Convention on Human Rights.

42. See J.R. Spencer, ‘Le mythe de l’habeas corpus’ in UMR de recherche de droit comparé de Paris, Mireille Delmas-Marty et les années UMR (Paris: Societé de législation comparée, 2005).

43. For a general discussion, see John Spencer, ‘Who's Afraid of the Big, Bad, European Public Prosecutor?’, Cambridge Yearbook of European Legal Studies 14 (2011–2012): 363.