English Law of Evidence: Adversarial System After Government Changes

This essay analyzes the English law of evidence, focusing on whether it predominantly resembles an adversarial or inquisitorial system following governmental changes since 1994. The essay begins by defining the adversarial and inquisitorial systems, highlighting the roles of judges, lawyers, and parties involved in legal proceedings. It then delves into the historical context, tracing the evolution of the English legal system and the influence of precedents and legislation, including the Civil Procedure Rules of 1999. The study examines key cases, such as Jones v National Coal Board and Evitts v Lucey, to illustrate the court's adherence to the adversarial system. The essay argues that despite some modifications, the English law of evidence continues to operate within an adversarial framework, emphasizing the importance of party-led investigations, cross-examination, and the neutrality of judges in presenting evidence. The conclusion reaffirms that the adversarial system remains the core approach in the English legal system, with judges primarily ensuring procedural compliance and allowing parties to present their arguments and evidence.

Running head: LAW OF EVIDENCE
Law of Evidence
Name of the Student
Name of the University
Author Note

1LAW OF EVIDENCE
The successive government since the year 1994 has made several changes in the law
of evidence in England and Wales. The English legal system has been established based on
the certain subject matter heard or decided in previous cases. During the rule of King Henry
II, new national laws replaced many customary laws. The judges working in a common legal
system have the authority to interpret the laws but precedent binds them. Following the
European Communities Act, 1972, the Parliament was declared to the only body having the
right of enacting a new law in the English legal system1. The Government has introduced
several changes, gradually, in the English legal system. Mostly, the English law of evidence
has followed the adversarial system since its beginning. However, there have been various
incidents where the inquisitorial system was followed to decide a case. Earlier the English
law of evidence was based on an adversarial system of law where the judges used to give the
decision of a case based on the report or findings of the investigation made by the parties and
respective lawyers of the case2. Later on, the English legal system adopted the inquisitorial
system of law where the one or more judges decided the case on their own, without any
juries. In such cases, the judges tried to inquire into the case and find the truth. Therefore, this
study required to identify as to which system of trial does the English law of evidence
resembles, after the changes introduced to the system by the Government since 1994. In this
study, the adversarial and inquisitorial system will be discussed in light of the English legal
system. This study will critically analyse whether the English law of Evidence resembles a
true adversarial or inquisitorial system after the changes adopted by the successive
governments since 1994.
As per Lynch, the word adversary means an opponent of a person in a dispute, contest
or conflict3. The adversarial legal system can also be defined in the same context. In the
1 European Communities Act, 1972
2 Kim, Chulyoung. "Partisan advocates." Bulletin of Economic Research 66.4 (2014): 313-332.
3 Lynch, Gerard E. "Our administrative system of criminal justice." Fordham L. Rev. 83 (2014): 1673.

2LAW OF EVIDENCE
adversarial legal system, the parties of the case are represented by their respective lawyers to
opposing the position of the other party, argue, and debate their case. The role of judges in
this system is to uphold the principles of fairness, equality, and equity to maintain their
neutral position while giving his judgment. The main principle of the adversarial legal system
is that it places a distance between the investigation and the person to decide the outcome.
Under the adversarial system, the parties are empowered to be in control of their cases
because the parties are always placed in a better position to present their cases as opposed to
the judge. In this system, the prosecution against the defendant brings an accusation of certain
crime. The prosecution tries to prove the defendant guilty before the judge or the jury. The
lawyers representing the respective parties try to argue their points to prove what the
defendant did or did not do. Witnesses are called upon before the judge and the jury and they
may ask a question to the parties to clarify and not to investigate4. Once the examination of
witnesses is finished by the prosecution as well as by the defence attorney, the juries and the
judges will come to a decision. The prosecution must prove that the defendant is guilty
beyond the reasonable doubt while presenting their points of argument. If the judges and the
juries have a doubt, which they consider to be reasonable, they will consider the defendant to
be not guilty. The lawyers are given the maximum liberty to identify, analyse, present, and
challenge the evidence to find the truth. The judicial system in the English law countries is
organized in such a way that the Courts interpret, uphold and apply the law in the country and
the sovereign state.
Most of the common law countries, if not all, have an adversarial system. Adversarial
system has traced its heritage to the English common law system. As per Gillespie (2013),
the adversarial system is followed in the English law of evidence5. As per the decision of the
4 McElrea, F. "Restorative justice as a procedural revolution: some lessons from the adversary
system." Civilizing Criminal Justice: An International Restorative Agenda for Penal Reform(2013): 81.
5 Gillespie, Alisdair. The English legal system. Oxford University Press, 2013.

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case, Jones v National Coal Board [1957] 2 QB 55, the adversarial approach to the law of
evidence enables the judge to ask a question but limits him from becoming an investigator6. It
requires that the judges concentrate on ensuring the compliance of procedural rules by both
parties while presenting their case. Additionally, under the Civil Procedure Rules, which
came into existence in 1999, the Court has the power to ensure that the matter of dispute
between the parties of the case is effectively and efficiently resolved in accordance to the
Civil Procedure Rules7. The Courts have the power to case management. The Civil
Procedure Rules have the objective to enable the Court to deal with the cases at proportionate
costs. The Courts are responsible for excluding the superfluous evidence in order to do so.
It has been found in several cases that English law of Evidence has regarded that the
parties play an important role in establishing and developing the claim for a remedy. They are
majorly responsible for the presentation of the facts and the legal issues to be determined by
the Court. In this framework, the parties have the freedom to bargain for their settlements,
with or without the availability of the court procedure. They have the authority to withdraw
the case at any time. In the English law of evidence, the Court remains neutral while
representing the public interest in resolving the disputes. The judges regulate the way that the
disputant must proceed with if they are willing to obtain the decision in this action. In the
case of Piro v. W. Foster & Co. (1943) 68 C.L.R 313 Ltd the Court applied the precedent of
the House of Lords to decide the dispute8. It has been observed that while deciding a case
based on precedent, the English law of evidence has faced certain conflicts. For example, the
decision of the Court in Bourke v Butterfield & Lewis Ltd (1926) 38 C.L.R. 3549 was in
conflict with the decision of the case Caswell v. Powell Duffryn Associated Collieries Ltd
given by the House of Lords.10 Despite all the fact, the English law of evidence has
6 Jones v National Coal Board [1957] 2 QB 55
7 Civil Procedure Rules 1999
8 Piro v. W. Foster & Co. (1943) 68 C.L.R 313 Ltd
9 Bourke v Butterfield & Lewis Ltd (1926) 38 C.L.R. 354
10 Caswell v. Powell Duffryn Associated Collieries Ltd

4LAW OF EVIDENCE
consistently relied on the decision of the higher Courts, on the basis that such decision shall
be most appropriate and acceptable to decide a case.
In accordance to the adversarial system, it has been widely accepted in the English
Courts that the guilty people also have the right to present their side. The English law of
evidence govern the way the cases are managed and provides the Courts with explicit power
to manage the preparation of cases. The Courts in England and Wales assume that the most
efficient way to unearth the truth is to follow the adversarial system. The courts rely on the
assumption that the truth shall prevail if the two opposing parties are given with the
opportunity to fairly argue their point of the case. The main point for following the
adversarial system in the English courts is the fact that witnesses will appear in person in the
Court to present their oral evidence. The English law of evidence has redefined the capability
of the parties to control and proceed with the progress of their own case. The English law of
evidence does not protect the innocent from the possibilities of an unjustified conviction.
The continuous use of the adversary system in the English law of evidence is
supported by the fact that the judges are to remain neutral in this system. In Evitts v Lucey
(1985) the Court has found that the English law of evidence relies on the advocacy of both
sides of a case for the promotion of the ultimate objective to set free the innocent and convict
the guilty11. The courts have considered the trial of a case to be a contest between the two
equally situated contestants, both of which are striving to prevail. The judges have played a
limited role to develop the evidence in England and Wales than the witnesses. In Platt [1981]
the Crown Court, supporting the adversary system, concluded that the actual admissibility of
an evidence will be determined by the jury along with the cross-examination of the witnesses
and the other expert evidence produced by an opposing party. Further in Gilfoyle (No 2)
[2001] 2 Cr App R 5 (57) 12the Court, reiterating the decision of the case, Davie v Edinburgh
11 Evitts v Lucey (1985)
12 Gilfoyle (No 2) [2001] 2 Cr App R 5 (57)

5LAW OF EVIDENCE
Magistrates 21953 SC 34, stated that the judge or jury should depend on the argument of the
advocates of both parties to prove evidence and provide judgment.13 In Frye v United States,
the Court of Appeal in the District of Columbia has established that the Court is not bound by
the expert opinion, rather it shall apply the knowledge and opinion of the judges and the
juries to admit the expert opinions.
After the changes introduced by the successive government since 1994, the English
law of evidence has still relied on the adversarial system. In the Youth Justice and Criminal
Evidence Act 1999, the law has required that expert evidence is also admissible for deciding a
case, which means that the Court should carry on the adversary system to examine the
witness as an evidence14. Even in the modern cases have accepted the approach, as in the case
of Luttrell [2002] EWCA Crim 1344, the Appellate Court has accepted that cross-
examination should be conducted by the representatives of both the parties to consider an
expert opinion to be admissible15. The system which is followed by the English adversarial
procedure adheres to the equity of the parties.
According to Feeley (2017), the English law of evidence has long accepted that the
adversarial system is best for gathering evidence and its trial16. It can be seen from observing
the various case studies that the judges have to play an important role in pre-trial assessment
or investigation of the facts of a case. Judges are responsible for making the decision about
whether the particular issues are legally proper. However, they are not responsible for
deciding what evidence should be produced and which witnesses will be called upon. This
responsibility is solely given to the lawyers. There is no such example that the judges of an
English law Court are actively interacting with the witnesses. The parties and their
13 Davie v Edinburgh Magistrates 21953 SC 34
14 Youth Justice and Criminal Evidence Act 1999
15Luttrell [2002] EWCA Crim 1344
16 Feeley, MalcolmM. "The adversary system." Crime, Law, and Society. Routledge, 2017. 105-118.

6LAW OF EVIDENCE
representatives determine the significant issue and the evidence required to prove or disprove
them. It is one of the significance of the English law of evidence that the judges come to
decision by the live oral testimony, which is followed only in the adversary system. The
English law courts have considered that the parties are competent witness by themselves in
their own cases. Following the adversary system, the English law of evidence has given a
greater emphasis on the oral argument. The direct evidence is only admissible in the English
Court of law. Additionally, there have been no incidents of an independent evaluation of the
evidence, which are collected through an investigation by an independent agency. In addition
to it, section 144 of the Criminal Justice Act 2003 has provided the opportunity for plea
bargaining17. The concept of plea bargaining only prevails in the adversarial system, which
proves that English law of evidence resembles the adversarial system only irrespective of the
changes made by the government.
Spencer (2016), contradicted the idea that English law of evidence resembles the
adversarial system18. He has found that English rule is deemed to be arbitrary in certain
situations. He has argued that cross-examination of young and vulnerable children should
happen at the time of achieving the best evidence. In the absence of the best advocate
practice, the evidence collected from the vulnerable groups may be manipulated19. The Royal
Commission on Criminal Justice has found that a huge number of common law
countries have removed their connection with the adversarial system and adopted the
inquisitorial system of justice. The Royal Commission on Criminal Justice has considered
after an investigation that adversarial system is the root cause of miscarriage of justice in the
England and Wales because of the practice of examining the witness and interviewing the
17 Sentencingcouncil.Org.Uk, 2018, https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-
Sentence-for-Guilty-plea-Definitive-Guide_FINAL_WEB.pdf. Accessed 21 Nov 2018.
18 Spencer, John R. "Adversarial vs inquisitorial systems: is there still such a difference?." The International
Journal of Human Rights 20.5 (2016): 601-616.
19 Bowden, Phoebe, Terese Henning, and David Plater. "Balancing fairness to victims, society, and defendants in
the cross-examination of vulnerable witnesses: An impossible triangulation." Melb. UL Rev. 37 (2013): 539.

7LAW OF EVIDENCE
victims. It has been argued by the Ministry of Justice that the practitioners of the adversarial
system should justify in the Courts the reason for a departure from the good practice of cross-
examination. In addition, it needs to be pointed out the tribunals of the UK do not adopt
adversarial or inquisitorial approach strictly. They seem to adopt an approach, which is user-
friendly. However, it is evident that the tribunals have the tendency to step beyond its
boundaries of judicial role and assists the parties to prepare their case or collect evidence.
This phenomenon is a diversion from the traditional adversarial system. It is evident that
Special Educational Needs Tribunal do not proceed strictly as per the adversarial basis, and
has a responsibility to act as per the inquisitorial system when it is required, as they do not
rely on the evidences produced by the parties. Therefore, it can be held that the tribunals
indulge more in inquisitorial approach, yet cannot reject the adversarial approach entirely.
They use the adversarial process with a dominant touch of inquisitorial system.
However, it has been argued that the principle of cross-examination is a major
disadvantage of the adversarial system, following which the English legal system has adopted
the inquisitorial system. As argued by Gleeson CJ in the famous case of Doggett v the
Queen20, the trial system in the adversarial process is a contest between the prosecutor and the
accused and the intervention by the judges are minimal. As argued by Gunn and Mevis
(2018), the evidence of the witnesses are often manipulated, suppressed, destroyed or
debarred at the time of cross-examination by the representatives of the parties. The basic
tradition is that one side of the parties must gain victory because of the cross-examination.
The witness lies as much as possible as lies are more likely to be produced than the truth. It
was stated by Sutherland, J, in the case of Fulton Bank v Stafford 1829, that a witness, when
called for cross-examination, may be examined for not only the point for which he was called
20 Doggett v. The Queen, [2001] 208 CLR 343, 346 (High Court of Australia, 2001)

8LAW OF EVIDENCE
but also for any material connected to the issue. This may sometime lead the witness to be
embarrassed in the Court.
Section 41 of the Youth Justice and Criminal Evidence Act 1999 provides that no
evidence regarding the history of the accused should be adduced in the Court except with its
permission21. It has been observed in certain cases that while at the time of the investigation,
the history of the defendants is dragged in the cross-examination. Further, it has been
observed that the pre-trial examination leads to inappropriate questioning, which is a major
drawback of the adversarial system. As argued by Judge Pigot, intermediaries have an
important role and Section 29 of the YJCEA 1999 permits the full replacement of the
advocate by intermediaries if appropriate, as they can construct the entire argument.
Intermediaries are not to be entrusted with their role, as they are not properly trained to
collect evidence. The questioning made about the history of the complainant is another
drawback of the adversarial system. The past record of the complainant and the accused must
not be adduced as an evidence unless it is leading to an evidence associating with the
behaviour of the parties in the current case. The Heilbronn Committee argued that this
practice in the adversarial system should be challenged22. Following these issues, the
adversarial system has gradually left its trace in the English legal system. Since 1994,
several reforms have been introduced by the successive Governments, which encouraged the
English law countries to consider the benefits of adopting the inquisitorial system, and
developing and adopting the system in it.
An inquisitorial system includes a preliminary inquiry conducted by the investigating
Magistrate for finding the truth, unlike the adversarial system. In the viewpoint of Kim,
Inquisitorial system, in the contrast with the adversarial system, empowers the judge to play
21 Youth Justice and Criminal Evidence Act 1999
22 The Heilbron Report

9LAW OF EVIDENCE
an active role to prepare evidence and question the witness to find the truth23. In an
adversarial system, the judges’ role is to maintain a balance between the parties without
involving himself in the disputation24. While in the inquisitorial system of justice, the judges
part serious part in the investigation procedure as well, along with holding an impartial
ground. The inquisitorial system is more adept at finding out and inquiring the facts that are
relevant to the case and ensuring that they are taken into consideration.
The Lord Chief Justice has opined that an inquisitorial system of justice, mainly a
judge-led system is a better and improved way of conducting civil litigations, where the
parties to the suit are unrepresented. In a quest of years of British legal system, which has
been based on the adversarial system, Lord Thomas has directed the system to consider and
come out with unconventional perspective pertaining to the system in which justice is
delivered in an era of rigor and austerity. The senior judges of England and Wales have
opined for a critical review as to whether the bulk of criminal cases need to be addressed to
the crown court; a change which is required to restrict the right to trial by jury significantly25.
Lord Thomas, however, declined to support any type of system, be it adversarial or
inquisitorial, but demanded that a fundamental review or assessment is required in response
to the changes within the legal system brought in by the governments over the years. Lord
Thomas argued that the conventional procedure to conduct suits and cases is not appropriate
for a dispute, which involves a custody battle of a child where the parents of the child as
‘adversaries' are supposed to raise the matters that may have caused them emotional stress.
While in an inquisitorial system, it is the lawyer or the court officer who raises the issues in
question to the court of law. An inquisitorial system may be preferred over adversarial for
23 Kim, Chulyoung. "Adversarial and inquisitorial procedures with information acquisition." The Journal of
Law, Economics, & Organization 30.4 (2013): 767-803.
24 R v Whithorn (1983) 152 CLR 657
25 Owen Bowcott, 'Inquisitorial System May Be Better For Family And Civil Cases, Says Top Judge' ( the
Guardian, 2018) <https://www.theguardian.com/law/2014/mar/04/inquisitorial-system-family-civil-cases-
judge-lord-thomas> accessed 21 November 2018.

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unrepresented litigants for receiving a secure and fair trial within limited and reduced
resources. The change would require a greater involvement of the judges to inquire in the
cases and the evidence, which would be produced before the court26. Some advocates would
see the changes as a complete alien to the traditional adversarial system.
As argued by Bagaric and Dimpoulos, inquisitorial system is superior to the
adversarial system as the essence of it is in the fundamental ethics of telling the truth. As per
their argument, when a person has committed an offense for which he has been charged, there
is no moral difference as to when he gives false witness in the court or when he pleads
innocence. In either way, it infringes the principle of morality of speaking the truth. They
concluded their argument with the notion that inquisitorial system would be a better means
for delivering justice as it the judges who would be gathering evidence and not the parties as
the latter involves bias and preconceived notion. It is pointed out that the inquisitorial system
is far more strong in terms of morality as its primary objective is to seek the truth. The
inquisitorial system supports the principle laid down under Article 6 of the European
Convention on Human Rights (ECHR), which strives to protect the right of individuals to
receive a fair trial. The superiority and the unique nature of the inquisitorial system makes it
possible.
The Coroner's Court of the United Kingdom is inquisitorial in nature and it has its
impact on the adversarial system. The coroner holds a responsibility to conduct a complete
and fair investigation without the intervention of any other authority. This creates a sense of
discrimination among the other authorities, which are bound by the norms of the adversarial
system27. The inquisitorial nature of the coroner's court makes it unique. The coroner needs to
26 Owen Bowcott, 'Inquisitorial System May Be Better For Family And Civil Cases, Says Top Judge' ( the
Guardian, 2018) <https://www.theguardian.com/law/2014/mar/04/inquisitorial-system-family-civil-cases-
judge-lord-thomas> accessed 21 November 2018.
27 'Guide To Coroner Services And Coroner Investigations – A Short Guide' (GOV.UK, 2018)
<https://www.gov.uk/government/publications/guide-to-coroner-services-and-coroner-investigations-a-short-
guide> accessed 26 November 2018.

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answer the following four questions to carry out his duty: who was deceased, when and
where did they die, how did they die, lastly how the deceased came by their death. These four
corners of investigation help the coroner reach a conclusion. The fact that the decision of the
coroner is final without entertaining any intrusion from other authority or department makes
the coroner's court an example of the inquisitorial system.
Further research would be needed to ascertain whether the inquisitorial
system would need more judges or a new panel of junior judges. Presently, the crown court is
involved with a range of criminal proceedings, from highly serious to less serious cases
where the severity of the injury and compensation involved is low. In such situation,
inquisitorial system of justice would thrive the best. The past rejected policies of the
government, which had proposed for an intermediate court between the Magistrate and the
Crown Court, would lower the burden of the crown court can be considered now through the
advent of inquisitorial system28. Presently, where the Crown court is heavily burdened while
the Magistrate has a lesser volume of work, it is time to consider the inquisitorial system of
justice. It is time to consider the rejected proposal due to the financial constraint in which the
system is stuck29.
Therefore, from the above analysis, it can be concluded that the adversarial system is
followed in the English law of evidence to determine cases. The role of judges in limitation
of their active part in the investigation, the opportunity of plea bargaining, examination of a
witness before the court, the part of the prosecution to prove the defendant guilty in various
cases are the facts that support that adversarial system is only followed in the English system
of law. The base of the English legal system is to find the truth by the decision of the judges
28 'Expert Evidence In Criminal Proceedings | Law Commission' (Lawcom.gov.uk, 2018)
<https://www.lawcom.gov.uk/project/expert-evidence-in-criminal-proceedings/> accessed 21 November 2018.
29 Owen Bowcott, 'Inquisitorial System May Be Better For Family And Civil Cases, Says Top Judge' ( the
Guardian, 2018) <https://www.theguardian.com/law/2014/mar/04/inquisitorial-system-family-civil-cases-
judge-lord-thomas> accessed 21 November 2018.