Is Our Adversarial System Fit for Purpose?

Master Geoffrey Nice: Welcome to this event tonight dealing with the question of the adversarial process. Is it fit for purpose? We live in the best parliamentary democracy in the world, which also uses, in large part, the adversarial system, as does the judicial system, which the Lord Chief Justice regularly tells us is the best judicial system in the world.

Maybe there are reasons at least to question the adversarial system when we come to the criminal side, or the criminal trials side of it. Who can have any doubts that in 1950 when Timothy Evans approached, as he did, with the chaplain on his one side reading from the book, the noose ahead of him for a crime he did not commit, he said, “Well, at least I’ve been tried to death by the best legal system in the world.” Something that maybe some of the Birmingham bombers also might have said. It is undoubtedly a system that needs consideration.

The adversarial system has, of course, been sensitive to the need to change, and it has changed over time in very significant ways, which have diminished what might be thought the disadvantages of the adversarial system – the sweeping away that some of us will remember of technical rules about corroboration; about the evidence of wives and matters of that sort, happened, and thus technical arguments within the adversarial system that stopped trials going ahead came to an end. Perhaps the greatest single change of all which has changed the nature of the adversarial British jury trial was the abolition of the absolute right to silence of an accused person, which means that our system and America’s are completely divided. In America, no defendant gives evidence, in England more or less every defendant does. So, the trials have become much more like inquiries into truth, but they still carry with them the single continuing line of belief in the adversarial process, which goes back the best part of a thousand years.

Master Iain Bonomy: Initially, I was thrown by the reference to ‘our’ adversarial system in the question. I’m not sure that all are the same, however, there’s no point in debating that, so I decided not to dwell on it and instead concentrate on the systems with which I am familiar – that’s in Scotland and also in the international criminal justice system.

Our Law Reports in Scotland are littered with judicial expressions of frustration at the lack of control judges have over proceedings, and the absence of a dedicated aim to ascertain the truth, that are core weaknesses of the system. We know that the absence of judicial control is recognised as a core weakness because of all the efforts over the years that have been made to introduce judicial case management and then to develop it.

The adversarial system has, of course, been sensitive to the need to change, and it has changed over time in very significant ways, which have diminished what might be thought the disadvantages of the adversarial system.

Probably the best example I can give of the expression of that frustration was the opinion of the Lord Justice Clerk Thomson in a case in 1961, when he said: “Judges sometimes flatter themselves by thinking that their function is the ascertainment of truth. This is only in a very limited sense. Our system of administering justice and civil affairs proceeds on the footing that each side, working at arm’s length, selects its own evidence. It’s on the basis of two carefully selected versions that the judge is finally called upon to adjudicate.” He cannot make investigations on his own behalf and he cannot call witnesses.

Litigation is in essence a trial of skill between opposing parties conducted under recognised rules, and the prize is a judge’s decision. We’ve rejected inquisitorial methods and prefer to regard our judges as entirely independent. Like referees at boxing contests, they see that the rules are kept and count the points.

We know also the very fact that control of the proceedings lies in the hands of the parties, up to 50 per cent or so of whom have reason to conceal the truth, means that elements in the system may be used – indeed are used – to frustrate the quest for the truth. One of the prime tools deployed for that purpose is of course cross-examination, with its ever-attendant risk that attention, particularly that of a jury, will be focused on the performance of the cross-examining counsel, and on his leading questions, both frequently distractions from the only real meaningful subject matter of the case: the evidence.

Law Courts have over many years doubled as performance spaces for many who would find themselves very much at home on the stage. The content, delivery and timing of a leading question on an important issue in the case can often have an impact on the result way beyond the significance of the answer. So, it is my first submission, that that point alone is sufficient to demand a negative answer to the question posed tonight.

And just as you are blessed in the courts of England and Wales with many very talented advocates skilled in the art of stretching the rules to their advantage, the same is the case in Scotland. Let me give you an example from 2014. A case involving 17 historic charges of sexual abuse in the early 90s. The two-day cross-examination of the complainer by senior counsel opened with this exchange: “You are a wicked, deceitful, malicious, vindictive liar?”

In the end of the day, the appeal was dismissed. After refusing the appeal, the court said: “Due regard must be had to the right or privilege under domestic law to test the witness’s evidence by properly directed and focused cross-examination. That right, however, does not extend to insulting or intimidating a witness. It also requires to be balanced against the right of a witness to be afforded some respect for her dignity and privacy. The court must be prepared, (where) appropriate, to interfere when cross-examination strays beyond proper bounds.” So, my second submission is that the actual damage done and the potential for damage to be done to witnesses in the course of cross-examination also demands a negative answer to the question.

Transport that style of cross-examination to the International Criminal Court set-up and try to imagine the state of confusion and shame engendered in the minds of Albanian women, victims of sexual assault and rape in the course of the conflict by Serbian soldiers. For reasons related to social mores, many delayed reporting these attacks for fear of being ostracised by family and friends. Counsel and accused – who often conducted their own defences – nevertheless repeatedly accused them simply of lying or giving evidence that was completely unbelievable without establishing any basis for the accusation.

In fairness to the judges, it’s a difficult situation to handle, when you can’t actually anticipate exactly what the question coming will contain. Similarly, even with a proper foundation, calling an Albanian farmer, a peasant farmer, a liar – that was instantly perceived as a personal insult of the gravest kind. The initial reaction of the witness was confusion, then when told that the accused was simply putting his case in this way as an assertion because that was part of the system – there followed a tirade of offensive abuse of counsel. Witnesses were even seen to collapse – female witnesses, accused in the way that they were, on two occasions I was present, simply collapsed in the witness box.

So, that’s my third point – it’s unfair to a witness who is genuinely unfamiliar with the system, and again, demands a negative answer. And my fourth and final point is that the fact that we, with the aim of protecting vulnerable witnesses, have been modifying our ordinary adversarial rules – specifically for sexual offence and rape trials since the 1970s, and now in the 2020s are contemplating more radical changes than ever before – proves not only that the system is not fit for purpose, but also that it is beyond repair.

I note that the Law Commission of England and Wales is hard at work here, and that in Scotland a pilot study of judge-only courts, to be followed by a Civil Service evaluation of the results, is proposed. Every association in Scotland representing solicitors throughout the country has vowed to boycott the pilot. That’s not surprising because it follows a statement by the Justice Secretary that he would consider any radical reforms to trial procedures if they would improve conviction rates for sex crime. So, for these reasons, I beg to move the question be answered in the negative.

Litigation is in essence a trial of skill between opposing parties conducted under recognised rules, and the prize is a judge’s decision. We’ve rejected inquisitorial methods and prefer to regard our judges as entirely independent. Like referees at boxing contests, they see that the rules are kept and count the points.

David Perry KC: I will be contending that the Anglo-American adversarial trial is among the chief glories of the common law system. It has stood the test of time. It has the common law’s genius for evolution and adaptation, and it is the system for which we would all contend if, behind a veil of ignorance, we were asked to design a system in which we ourselves might stand accused of crime. The motion raises two issues. First, what is the adversarial system? And second, what is its purpose?

The defining feature of the English adversarial system is that it involves trials conducted by skilful professionals on both sides of the case. We can thank the adversarial system for the fact that this jurisdiction has such brilliant lawyers, who are themselves responsible for bringing about legal change. Nowhere else in Europe, or anywhere in the world, will you find such skilful practical professionals on both sides of the case.

In the European systems, by contrast, evidence is gathered by judges or judge-like investigators, public officers, who are charged with the duty to investigate, and the facts and the criminal investigation becomes the judicial function. This is the very reason we moved away from that sort of system to the adversarial system because our experience was that judges bullied defendants into pleading guilty, or they didn’t give them a trial. In the European trial, the presiding judge examines the witnesses. The lawyers for the prosecution and the defence play subordinate roles, mostly recommending lines of inquiry, sometimes supplementing the court’s questioning of witnesses.

As for the second issue, the purpose of adjudication in the adversarial system is to do justice. And what does justice mean in every case? It means the guilty are convicted and the innocent go free. But those aren’t the only values that we recognise in our system. There are normative aspects to a criminal trial. The adversarial trial is not simply about the prevention of crime. The conviction of the guilty and the acquittal of the innocent should also take place in a fair and open manner, which commands public confidence, and where the parties participate on equal terms – this is the adversarial system.

The adversarial system took shape relatively late in English legal history. Until the late 1600s trials were largely do-it-yourself affairs. The main purpose of the trial, this contest of amateurs, was to give the accused an opportunity to speak in person, and there was no room for defence counsel, the defendant was expected to clear himself. Like the presiding judge in Europe, the judge would take control of the proceedings. It all sounds absolutely fine until you get to the Monmouth Rebellion, and Judge Jeffreys goes to the West Country and has batches of verdicts. About 600 people are convicted in less than a week, the average time of the trials is about eight minutes.

So, what did parliament do? It knew that the inquisitorial system, the European system, wasn’t working. You needed to have protection against judges. So, they passed the Treason Trial Act 1696 – an act which Sir James Fitzjames Stephen called “the most unprincipled piece of class legislation ever enacted by the English parliament”. The reason why it was so unprincipled and class-based is it only applied to treason, and who was being charged with treason but the nobility? Although the Treason Trials Act 1696 allowed legal representation for those charged with treasonable intrigues, defence counsel began to appear in ordinary cases over the course of the 1700s. Until 1836, you were prohibited from having defence counsel; until that time, there’d never been a right to it. The progressive rationalisation of the law has continued to this day, but the structure of the trial has remained remarkably resilient.

I’m going to give various reasons as to what we have to thank the adversarial system for. First, we have to thank the adversarial system for a law of evidence that ensures that decision-making is rational and structured. That is what the law of evidence is designed to achieve: structured, rational decision-making. Second, it’s thanks to the adversarial system that we have a right to silence. Third, it’s thanks to the adversarial system of trial that we have the confessions rule, that excludes suspect or pre-trial confessions from consideration by a court. Unlike in Europe, where torture was countenanced, the common law set its face against torture. Fourth, it’s thanks to the adversarial system of trial that we do not allow cases to be decided by overbearing, bullying judges whose sympathies lie with the state. Fifth, it’s thanks to the adversarial system of trial that we have a ‘beyond reasonable doubt’ standard of proof – it was developed in the common law system.

We have to thank the adversarial system for a law of evidence that ensures that decision-making is rational and structured. That is what the law of evidence is designed to achieve: structured, rational decision-making.

And, above all, the adversarial system has played a role in the creation of a specialised legal profession with practical forensic skills. Anyone who practices in Strasbourg or Luxembourg will know from the judges in those courts that they always look forward to being addressed by English advocates rather than advocates from the Continental jurisdictions. The simple reason for that is that the English advocates have honed their skills to put forward their cases in the most structured and compelling way that they can. This is another value that you would lose if you changed the adversarial system. The adversarial system has reinforced the independence of the judiciary, because it is lawyers who are blamed for the problems in the law, not the judges. That is why judges are always asked to come to the rescue, to chair public inquiries.

And the system has certainly not outlived its purpose. It permits rigorous testing of testimony through cross-examination, the best mechanism yet devised for exposing mistaken or malevolent evidence. And if there are criticisms about the way that cross-examination is conducted, the fault lies with judicial management of the trial and control. The adversarial system fosters a sense of equality between the state and the citizen, as it did originally in the later Stuart times between the Crown and the subject. There is no imbalance in our system between the prosecution and the defence, and the judge is the neutral umpire. The system remains vigorous. It is fit for purpose. All litigation is an inquiry into contested truth, which in the absence of advocates would suffer from imperfect understanding. We need a strong legal profession, and we need an adversarial system. I would suggest that the answer to the motion is, the adversarial system IS fit for purpose, and it has been fit for purpose since it was introduced as a counterweight to Stuart tyranny.

For the full video recording: innertemple.org.uk/adversarialsystem

The Rt Hon Lord Bonomy LLD

David Perry KC

Sir Geoffrey Nice KC

With contributions from Caroline Willbourne during the Q&A