The Inquisitorial system

The Inquisitorial system

1. Exists in the non-English civil law nations in Europe, Africa, Asia and South America (the adversarial system is used in Britain, Australia, NZ and the United States – inherited from Britain) “Inquisitorial” arises from the word ‘inquire’ which means to seek the truth by discussion and investigation. When an offence occurs in an inquisitorial country, the state appoints a judicial officer (generally equivalent to a magistrate or judge) to investigate the offence The active role of an inquisitorial judge is in complete contrast to the adversarial system where the judge remains an independent agent of the state and is impartial to the two sides who will collect evidence and present it to court Some Australian systems incorporate elements of the inquisitorial system, such as the Coroner’s Court and some tribunals, where the arbiter takes an active role

2. The judge controls the investigation of the case and the examination of the witnesses at trial, and will also supervise the pre-trial process In the French inquisitorial system there are two judges – one is an investigating judge who works with the police to collect evidence, find and interrogate witnesses and prepare a case for trial. This judge will determine whether a case should continue to trial. The second judge will conduct proceedings based on the dossier of information provided by the first judge

3. The accused has the right to silence and will be presumed innocent until proved guilty; however the accused is expected to answer questions upon direction of the investigating or trial judge, and a failure to answer would paint the accused in a poor light in the eyes of the judge

4. Legal representatives of the accused can help the judge find the truth. Defence lawyers can ask for certain documents to be included in the dossier for the trial judge At trial, defence can question witnesses under the direction of the judge The defence lawyers main role is to ensure the accused gets a fair trial – but it is expected that the judge will be focussed on finding out the truth

5. Collection of evidence - As stated, a dossier will be kept by the examining judge that contains all statements and evidence, as well as the judge’s perceptions of them The accused is not committed to trial until a very strong presumption of guilt exists For this reason, there is a view that in the inquisitorial system the accused is considered guilty and has to prove his or her innocence at trial

6. In the adversarial system, a trial is one continuous (or one single) event In the inquisitorial system, the trial is a continuous event beginning with the investigation phase through to the verdict. The trial can also be postponed until more evidence is collected As the judge will likely have a view of the accused’s guilt based on the dossier, the trial serves to act as a public event so the public is aware of proceedings and can have confidence that justice is being done A prosecutor undertakes the role of presenting evidence; the judge is impartial but does participate actively in the trial, such as through questioning witnesses The judge delivers a verdict of guilty or not guilty (as is the case in the adversarial system) but may also give an intermediate verdict of ‘charge not proven’ so the accused can be released, but may at a later date be required to stand trial again

7. Rules of evidence - The system relies mainly on written statements, although witnesses are interrogated at the trial The rules of evidence and procedure are not as strict as in the adversarial system – there is no clear distinction between admissible and inadmissible evidence. The focus is on whether the evidence is relevant or not Unlike the adversarial system, reports on character, personality and past criminal record are included in the dossier, so the investigating judge will have thorough knowledge of the accused. This information may be passed on to the trial judge if it is deemed relevant

8. Witnesses may give evidence in narrative form, without interruption by questions. A written witness statement may also be accepted by the court This differs from the adversarial system, where witness evidence must be presented orally in the interrogatory style (question and answer)

9. Getting to the truth - The purpose of the inquisitorial system is to get to the truth It is the responsibility of the judges to accept all evidence, whether it favours the prosecution or the defence - Right to appeal - Grounds of appeal are much more restricted in the inquisitorial system, though court hierarchies exist to allow for appeals. The main grounds for appeal are on issues of fact - Civil claims - May also be heard at the same time as the criminal trial, if it arises from the same incident.