Gresham College Lectures

Does the Adversarial System Serve Us Well?

March 16, 2023 Gresham College
Gresham College Lectures
Does the Adversarial System Serve Us Well?
Show Notes Transcript

What is the adversarial tradition in English criminal and civil procedure, and how does it compare with the inquisitorial systems found in some civil law jurisdictions? What are the strengths and weaknesses of adversarial and inquisitorial jurisdictions? 

Does our adversarial system truly deliver equality of arms between the powerful and the powerless? Have modern fair trial standards, such as those required by the European Court of Human Rights, -and other developments - brought the two families of systems closer together?


A lecture by Leslie Thomas KC recorded on 9 March 2023 at Barnard's Inn Hall, London.

The transcript and downloadable versions of the lecture are available from the Gresham College website: https://www.gresham.ac.uk/watch-now/adversarial-law

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(screen wooshing)- Does the adversarial system serve us well? That's what I'm going to be looking at this evening with you. So what is the adversarial system? Well, it's a model of justice that is widely used in common law jurisdictions around the world. In theory, under this system you have two opposing sides represented by lawyers presenting their cases to an impartial judge or jury, who then decides the outcome of the case based on the evidence presented. The system is often presented as a way of ensuring that both sides are able to vigorously advocate for their positions, and the truth is ultimately revealed through the adversarial process. However, as you will hear critics argue that the adversarial system can be flawed and that it may not always promote justice. In this lecture, we will explore the question of whether the adversarial system really promotes justice, and if not, whose interest does it serve? In England and Wales, we have a predominantly adversarial system of justice. All criminal and civil trials are based on the adversarial system, and the same is true in other common law countries whose legal systems are, to a greater or lesser extent, derived from ours. In describing the essential elements of the English adversarial system, I can't improve on the words of Lord Denning in Jones against National Coal Board. Quote, "In the system of trial,"which we have evolved in this country,"the judge sits to hear and determine the issues"raised by the parties."Not to conduct an investigation or examination"on behalf of society at large."As happens, we believe in some juris"in some foreign countries."Even in England, however,"a judge is not a mere umpire to answer the question,"how's that?"His object, above all, is to find out the truth"and to do justice according to law."And in the daily pursuit of it,"the advocate plays an honorable and necessary role"that was it not Lord Chancellor Eldon"who said in a notable passage that"'truth is best discovered by powerful statements"'on both sides of the question'?"And the Master of the Rolls Lord Green"who explained that 'justice is best done by judge,"'who holds a balance between the contending parties"'without himself takin' part in the dispute'?"'If a judge,' said, Lord Green,"'should himself conduct examination of witnesses,""quote, 'He so to speak descends into the arena"'and is liable to have his vision"'clouded by the dust of conflict.'"Yes, he must keep his vision unclouded."It is all very well to point out justice is blind,"but she does better without a bandage around her eyes."Should she be blind, indeed, to favor or prejudice,"but clear to see which way the truth lies"and the less dust there is about the better."Let the advocates, one after the other,"put the weights into the scales,"the nicely calculated less or more."But the judge at the end decides"which way the balance tilts"be ever so slightly."So firmly is all of this established in our law"that the judge is not allowed in the civil dispute"to call witnesses whom he thinks"might throw some light on the facts."He must rest content with witnesses called by the parties."So, also it is for the advocates,"each in turn, to examine the witnesses"and not for the judge to take it upon himself,"less by doing so he appears to favor one side or the other."Especially, and it is for the advocate"to state his case as firmly and strongly as he can"without undue interruption,"lest the sequence of his argument be lost." End of quote. we can identify certain key features which characterize English adversarial system of justice. Firstly, as we've just heard from Lord Denning, it's for the parties to decide which witnesses they call, how to present their cases. The judge is meant to be a neutral arbiter. Although judges can and do intervene during the argument and ask questions of witnesses, it's considered inappropriate for a judge to intervene too much and to assume the role of an advocate. Second, a lot of emphasis is traditionally placed on oral evidence. Parties who rely on witness are generally expected to call them to give a oral evidence in court, and opposing counsel has the right to cross-examine the witness. Cross-examination skills by a skilled advocate is seen as both an opportunity for the witness to answer criticisms of the evidence and as a vital tool in getting at the truth. Third, there are technical rules of evidence. Just because evidence is relevant doesn't necessarily mean it is admissible. Nowadays the rules of evidence in civil cases have been significantly relaxed, but in criminal cases the rules of evidence continue to play an important role. Fourth, the system, at least in theory, strives for equality of arms. The prosecution and the defense and criminal case or the claimant and defendant in civil case are in theory supposed to be on a level playing field. In reality, we all know that this is not always the case, especially when one party is represented by skilled lawyers and the other party's unrepresented. But equality of arms is the theoretical underpinning of our system, even if it is sometimes more honored in the breach than in observance. And fifth, what follows from these principles is that the adversarial system places a lot of reliance on the professional skills of lawyers. The adversarial system is, at its fairest, when the lawyers on each side are evenly matched. If a lawyer makes errors, their opponent can, and often does, exploit those errors. So what are the flaws of the adversarial system? Look, I want to cut straight to the chase and look at some of the problems that are said to be with the adversarial system. You see, one of the main criticisms is that the adversarial system can be overly focused on winnin' and losin' rather than findin' the truth and promoting justice. In an adversarial system lawyers are often motivated by a desire to win their cases, rather than to uncover the truth or achieve justice. This can lead to a situation where lawyers are more concerned with scoring points and attacking the credibility of the opposing side rather than with presenting a fair and balanced case. Another problem with the adversarial system is that it can be heavily skewed towards those who have resources to mount a vigorous defense or prosecution. In an adversarial system, the outcome of the case can be often determined by the quality of legal representation that each side is able to secure. And this can result in situations where wealthy individuals or corporations are able to hire the best lawyers, and thus have an unfair advantage over less affluent individuals or groups. A further criticism of the adversarial system is that it can be adversarial to the point of being hostile and confrontational, and this can result in situations where witnesses and victims are poorly treated. And this can be particularly true in cases involving allegations of sexual assault, domestic violence, child abuse, where victims may be reluctant to come forward or may be subjected to aggressive cross-examination. So, given the flaws, whose interests does the adversarial system serve? It's worth askin' that question. Critics argue that the adversarial system primarily serves the interests of lawyers and the legal profession rather than the interests of justice or the wider community. In an adversarial system, lawyers are often able to charge high fees for their services, which can make the legal system prohibitively expensive for many people, and this can result in situations where justice is not available to all, but only to those who can afford it. In addition, the adversarial system can be seen as serving the interests of those who benefit from the status quo. In many cases, the adversarial system is used to protect the interests of large corporations or wealthy individuals who may be able to use their resources to defend themselves against legal challenges. And this results in situations where powerful interests are able to use the legal system to avoid accountability or to maintain their dominance over others. So what are the alternatives? Traditionally, the adversarial system is usually contrasted with the inquisitorial system, in which judges are responsible for investigatin' cases, callin' witnesses, gatherin' evidence. In England and Wales, we do use an inquisitorial system for certain proceedings. The best known example is a coroner's inquest. We looked at the coroner's inquest in detail in a previous lecture in a previous series, but in brief, coroners are responsible for investigatin' certain deaths, such as those where the cause of death is unknown or where the deceased died in custody or state detention. In an inquest, there are officially no parties, no one wins, no one loses, and the goal is to find out the cause of the death. The coroner carries out their own investigation, gathers the evidence, and decides which witnesses to call at the inquest. Another similar example of inquisitorial justice is the public inquiry, but as I've said, many times in the past, even though inquest and inquiries are formally inquisitorial processes, they are often, in reality, highly adversarial. The interested persons and their lawyers will fight hard to secure findings that they want. Whether a person is represented or unrepresented and how skilled and well resourced their lawyers are matters a great deal. The difference between an adversarial and an inquisitorial system is not a binary, but a spectrum. Many proceedings have features of both systems. The same is true when we look at countries outside the common law world. The most famous example of an inquisitorial system is the French criminal justice system and the numerous other criminal justice systems around the world that are derived from it. The origins of the French system line in Napoleon's 1808 Code of Criminal Instruction. The paradigmatic feature of this tradition is the investigating judge who oversees the preliminary investigation of the case against the accused. However, in France, there are only a small minority of criminal investigations are actually overseen by an investigating judge. Most French criminal investigations are instead overseen by prosecutors, who, in the French system, are also part of the judiciary. Some other systems that were originally based on the French model have abandoned the investigating judge altogether. Conversely, it was John Spencer who highlighted that the English system also has adopted many features over the past two centuries that once would've been regarded as inquisitorial. At the time when Napoleon laid the foundations of the French inquisitorial system, England and Wales did not have a professional police force or prosecutors, and most criminal cases were brought by the complainant themselves or their relatives. Professional policing was introduced in all parts of England and Wales in the mid 19th century, and in 1879 the post of the Director of Public Prosecutions was created. In 1985 the Crown Prosecution Service was created, creating a full-time core of professional prosecutors for the first time. The Police and Criminal Evidence Act in 1984 codified and extended the powers of the police, giving them power to detain suspects at police stations for questioning, and the traditional paradigm institution of English law, the jury trial, is now only used in a small percentage of all criminal cases. It's also the case that Article 6 of the European Convention on Human Rights, which prescribes the minimum standards of a fair trial has had an impact on both inquisitorial and adversarial systems in Europe. The court clearly accepts that the inquisitorial and adversarial systems can coexist in Europe, and that both can be compliant with Article 6, the right to a fair trial. However, there have been areas in which Article 6 jurisprudence has required changes in inquisitorial systems. For example, the court has taken the view that it is a breach of Article 6 for an investigatin' judge to sit as a judge in the same case. Similarly, although the court accepts that whether to call a witness at a trial is a matter for the domestic courts, it has, on occasions, found a refusal to call defense witnesses to be unfair. We can see, therefore, that the difference between the adversarial and the inquisitorial systems is a spectrum, rather than a binary. Continental European inquisitorial systems incorporate some elements of adversarial justice while our own system incorporates some elements that would once have been regarded as inquisitorial. Nonetheless, there are still significant differences between the two types of system. So that's going to beg the question, isn't it? Which is better, adversarial or inquisitorial? Many people have strong views on this question. The Australian judge, Ray Finklestein, argues that the adversarial system is bad at discovering the truth. He says, quote, "The party's self-interest"does not aid the search for the truth"in a system where it's routine."One, for opposing testimony to be discredited"regardless of whether it is true or not."Two, for the incompetence of opposing counsel"to be exploited."Three, for material facts to be omitted from pleadings"or withheld due to privilege."Four, for probative evidence to be excluded."Or five, for counsel to indulge"in sophistry or rhetorical manipulation"of which the primary aim is to obscure the truth." End of quote. Finkelstein's arguments are focused on civil cases. He recommends a number of reforms. He calls for judges to have a more active role, including the power to call witnesses where the interests of justice so require, the ability to question witnesses beyond their, the present restrictive role, and primary control over the question of witnesses. He also calls for judges to have the power, in appropriate cases, to appoint an independent examiner to question witnesses before the trial. And he calls for the court to control the appointment of expert witnesses. However, it is in the context of criminal cases where the adversarial versus the inquisitorial debate tends to be most heated. Richard Lomax in his report "Reforming Justice" for the charity Toynbee Hall robustly argues that the inquisitorial system of criminal justice is superior to the adversarial system. He argues that significantly more resources are expended on criminal defense in English and Welsh adversarial systems than in the continental inquisitorial systems. He states that the cost of legal aid in England and Wales is about 15 times higher than the European medium, and that whereas the European medium for the cost of the defense is about 25% of the cost of the prosecution. In England and Wales it's nearly 400% more. By contrast, he says, quote,"We spend significantly less on police prosecutism"and on professional judges."Evidence gatherers, case, presenters,"and assessors of evidence in comparative terms"are all starved of resources." He goes on to argue that England and Wales, and other common law systems, tend to have higher rates of imprisonment per capita than European civil law systems. Lomax argues that inquisitorial trials are capable of working much faster, given rise to higher conviction rates, higher public confidence, and less probability of being distracted by irrelevant considerations. Pausing there. You and I might wonder why Lomax sees higher conviction rates as a good thing. But Lomax addresses this in a footnote, where he asserts, quote,"It would be an error to imagine"that continental courts are all biased."Their systems commence fewer weak cases"and allocate the necessary resources"to those that they prosecute." He goes on to argue that the adversarial model means a lower probability of the truth being discovered, meaning that there are greater prospects of the innocent being wrongly convicted and the guilty being wrongly acquitted. He argues that in order to maintain the principles of deterrents, adversarial systems have to punish more severely, which he argues is why these systems tend to have higher prison populations. So what do we think of Lomax's argument? Is he right when he says that inquisitorial systems are better at getting at the truth? There are, perhaps, reasons to be skeptical about whether judicial supervision of the investigation makes the process any fairer. Jacqueline Hodgson, an academic at the University of Warwick, who has written extensively on the differences between the British and French justice systems, told the select committee on European Union in 2005, quote,"My own empirical research in this area suggests"that suspect in France are just as vulnerable"to the hostility of the judge environment... Sorry, "Of the police environment as in England and Wales."Judicial supervision, in most instances, is conducted by the prosecutor,"who also enjoys a judicial status as a magistrar,"and exists as a form of"bureaucratic and retrospective review."The police are required to inform the prosecutor"of a suspect's detention in custody,"and the file is later reviewed."The prosecutor remains in her office and is responsible for supervisin' tens of cases at any one time. And while this procedure is able to weed out obviously weak cases early on, and to review the outcome of investigations, it provides no real guarantee as to the reliability of the evidence gathered. The process of investigation and evidence gatherin' is shielded from scrutiny. In the 2001 article in which Hodgson reported findings from an empirical study of the French pretrial process, she described how the French prosecutors, who oversee the pretrial investigations, were tolerant of aggressive questionin' by police to pressure suspects to confess. She described the general tolerance of the kinds of pressure that the police might need to exert to make the suspect tell the truth. And the crime control ideology of the prosecutor means that in most instances the truth is a confession. She described a lack of interest in investigating whether the police had abused suspects. Quote, "In one area observed"there was concern that the suspects"were being brought to court blood stained and untidy."The police were instructed by the prosecutor"that this was not acceptable"and it did not look good before the court."No inquiry was made, however,"into why suspects arrived at court in such a state." End of quote. She went on to say that,"Even questioning, which might be classed"as overbearing or oppressive by a British court"is considered acceptable, and at times necessary,"to get at the truth." I acknowledge of course that Hodgson's studies, some two decades old, and is specific to France, inquisitorial judicial systems are widely varied, and the French system itself has undergone significant reforms. So I'm not saying that Hodgson's study is necessarily representative of how all inquisitorial systems operate, or even how the French system operates today, but the point is that judicial supervision of the pretrial investigations is not of itself a guarantee of justice. Both the inquisitorial and the adversarial system allow opportunities for oppression and miscarriages of justice. I would also question whether Lomax is right in his assertion that the inquisitorial systems tend to have lower rates of imprisonment. According to the Council of Europe, on the 31st of January, 2020, the English and Welsh prison populations was 138.8 per 100,000, only slightly ahead of the European average of 124. Numerous European countries with the civil law system had higher rates of imprisonment, including Poland, Czech Republic, Slovak Republic, Estonia, Latvia, and Lithuania. Conversely, the Republic of Ireland, which has an adversarial system based on the English model, had a rate of imprisonment of only 81.6, significantly below the European average. In my view, Lomax doesn't adequately justify his claim that there is a direct link between the adversarial system and higher rates of imprisonment. There are numerous other factors that we would expect to affect the rate of imprisonment, including sentencin' policy, judicial attitudes, crime rates, and social inequality. Lomax doesn't attempt to control for these factors. There is no doubt we imprison too many people in England and Wales, and many factors are to blame for this, but I for one am unconvinced that switchin' to an inquisitorial system would bring these numbers down. I want to turn to the question of cross-examination. You see, one of the distinctive features of the English adversarial system is the importance placed on cross-examination of witnesses. The traditional rule in both criminal and civil cases was that a party wishing to rely on the evidence of a witness had to call them to give evidence at trial. Hearsay was inadmissible, except in very limited cases, and an advocate cross-examining a witness had to put their case to the witness. And if the advocate failed to challenge the witness's evidence in cross-examination, they would not be able to ask the judge or the jury to disbelieve the evidence in their closing speech. To some extent, English law has departed from the traditional position. Hearsay is much more admissible in civil cases, and even in criminal cases there has been in recent years some departures, such as the curtailing of cross-examination for vulnerable witnesses and the use of achieving best evidence interviews. But, it is still the case, that in both criminal and civil cases, oral evidence in cross-examination are considered to be of great importance to the English system of justice. Cross-examination is one of the central skills in which English barristers are trained. There are, however, a number of reasons to be skeptical about the value of cross-examination in getting to the truth. The first is that cross-examination technique often relies on catching the witness out in inconsistencies. It relies on an assumption that if a witness contradicts themselves, they must be lyin'. But we know from decades of psychological research that this assumption is false. Human autobiographical memory is highly fallible. We have a very poor memory from temporal information such as dates, durations, and sequences, for proper names, and for exact words used in the conversation. And people can experience hypermnesia, remembering more over time, so that a witness's early account is not necessarily more accurate than the later account. And I pause there because I remember it being a typical cross examination technique that I deployed for years saying words to the effect,"Most people's memories diminish with the passage of time,"not improve," but studies today seem to cast doubt on that assertion. And we also know that all of these problems are exacerbated in people with mental health problems, depression and post-traumatic stress disorder, can cause over general memory, which makes it more difficult to remember specific events from one's past. The second is that the process of giving oral evidence may induce judges and juries to rely too much on a witness's demeanor, whether they look and sound credible when giving evidence. Such assumptions are unreliable, because many factors may affect a person's demeanor in court, such as cultural background, trauma, neuro divergence. In the past, appellate courts referred to the advantage that a trial judge gained from seein' and hearin' the witness. But today there is increase in judicial recognition that demeanor is an unreliable guide to credibility. The third is that cross-examination process relies heavily on the experience and skill of the advocate. A seasoned barrister who has cross-examined hundreds of witnesses will generally do a better job than a junior barrister doing their first trial. To an extent, it also depends on the witness. An expert witness who's been cross-examined hundreds of times will generally fare better than a nervous witness who's in court for the first time. In short, how well a witness performs under cross-examination is not a reliable guide to whether they are telling the truth. A particularly serious problem in this regard has been the proliferation of unrepresented litigants following the swinge in cuts made to legal aid made by the Legal Aid Sentencing and Punishment of Offenders Act 2012, a litigant in person cannot be expected to cross-examine effectively, and is therefore at a huge disadvantage. And in some cases this creates an even bigger problem. It is obviously inappropriate for that person accused in a case of sexual violence should cross-examine their victim in person. But in the family courts, many people accused of sexual violence are now unrepresented, and this sometimes forces the judge to descend into the arena by questioning the witness themselves, which can compromise the fairness of the proceedings. Now you might think that the solution is simple, just expand legal aid and fund it properly so that everyone who needs to be represented is represented. And I agree we certainly should do that, but it isn't a complete answer. It will still be the case that some counsel are better at cross-examination than others and that some witnesses withstand it better than others for reasons unrelated to the truth or falsehood of the evidence. On the other hand, this doesn't necessarily mean that the inquisitorial system would be better. As we've seen, that system suffers from its own problems, and it doesn't escape the fundamental problem, which is that decision makers are simply bad at assessing credibility. As Hilary Evans Cameron states, quote,"When it comes to assessing credibility,"police officers, prosecutors, and judges,"as well as laypeople have hit rates"just above the level of chance."This problem will persist"whether we have an adversarial system"or an inquisitorial one." Let's look ahead. I want to come back to the question I asked right at the very beginnin'. Does the adversarial system serve us well? You might think that my discussion so far has been somewhat conservative and Eurocentric. After all, I've only talked about the English adversarial system model and the French inquisitorial system, both essentially European ideals of justice, although the legacy of colonialism means that they will have been exported to many parts of the world. What about other conceptions of justice that are rooted in other traditions? As I stated earlier, the adversarial system of justice has been criticized for being overly focused on winnin' and losin' rather than promoting justice. This has led to calls for alternative models of justice that prioritize collaboration and restoration over confrontation and punishment. Restorative justice. Now this is a system of justice, which is victim-centered, a victim-centered approach that focuses on repairing the harm caused by the offense rather than punishing the offender. In a restorative justice model, victims, offenders, and community members come together to discuss the harm that has been caused and work together to find out a way to repair the harm. Restorative justice can have several benefits. It can provide victims with a greater sense of closure and satisfaction than traditional criminal justice processes. It can reduce recidivism rates by addressing the underlying causes of criminal behavior. It can foster a sense of community and promote healing amongst those affected by the offense. Some forms of restorative justice are rooted in non-Western traditions of justice and have been heralded as an antidote to punitive and fault-based European traditions. As Archbishop Desmond Tutu said,"We contend that there is"another kind of justice, restorative justice,"which has characteristics"of traditional African jurisprudence."Here, the central concern is not"of retribution or punishment,"but in the spirit of ubuntu,"the healing of breaches, the redressing of imbalances,"the restoration of broken promise, relationships."This kind of justice seeks to rehabilitate"both victim and the perpetrator,"who should be given the opportunity"to be reintegrated into the community"they have injured by their offense." Around the world restorative justice has increasingly been recognized in law, not as a replacement for the judicial system, but as an adjunct to it. There are numerous examples around the world of restorative justice programs in the criminal justice system. In some instances, criminal cases are referred to a restorative justice process as an alternative to prosecution. In other cases, a restorative justice process takes place before sentence, and is taken into account in sentencing. In New Zealand, the Maori people have been using restorative justice practices in their communities for centuries. Another example in the UK is the Youth Justice, the Youth Conference Service in Northern Ireland, which was introduced in 2003. The Navajo Nation Peacemaker Program is a good example of non-Western, non-adversarial tradition of justice coexisting with formal justice system. Within the Navajo Nation the Peacemaker Program coexists within the formal tribal court system. As described by the judicial branch of the Navajo Nation in 2004, the role of the peacemaker is to, quote,"bring the parties together to talk out disputes"and to reach a consensual agreement."A peacemaker is not an adjudicator"and does not sit in judgment."Rather, they facilitate and guide disputing parties"to reach and decide for themselves." Although rooted in a particular cultural tradition, the Navajo Peacemaker Program has inspired initiatives elsewhere. Another example of the voluntary dispute resolution in a non-Western cultural context is the Peace and Consensus Committee in Rojava, which responds to crime and conflict by seeking to reach a consensus between the parties. There are also separate women's committees, which deal with violence against women. For those of us who are worried about the impact of carceral justice systems on marginalized people and communities, restorative justice and peacemaking are attractive options. Clearly, these programs do have a great deal of promise in resolving conflicts and addressing harms outside the formal justice systems. But there are limitations. It's important to note that restorative justice process do have certain limitations. They may not be appropriate for all cases, particularly those involving serious offenses or repeat offenders. In these cases, the harm caused may be too severe or the offender may be unrepentant, making it difficult to achieve meaningful restoration of relationships. Moreover, restorative justice requires a willingness to participate from both offender and the victim. And restorative justice is not designed to settle factual disputes. It isn't equipped to deal with a situation where the accused denies that they did what they are accused of. Second, some feminists about have been critical of the use of restorative justice in the context of sexual and gender-based violence on the grounds that it might serve as an opportunity for the abuser to re-victimize and re-traumatize a victim and might not lead to effective action being taken against the perpetrator to protect other victims. On the one hand, that is not to say that restorative justice is always inappropriate in cases of sexual and gender-based violence. As I highlighted earlier, Rojava has adopted a system of women's peace committees that deal with violence against women. And in the West, other feminist legal scholars have identified a positive case for restorative justice in some cases of sexual and gender-based violence. It's also worth notin' that implementin' restorative justice can be challengin' in large, complex legal systems where resources may be limited, and there may be a resistance to change from those who have invested in the existing system. So, what can we learn from all of this? Restorative justice remains a promising alternative to traditional punitive approaches in cases where it's feasible and appropriate. We can say that restorative justice and peacemaking models have significant advantages as an alternative to punitive justice, but they aren't suitable for every case. And in the places where they have been deployed on a large scale, they've tended not to be a replacement for traditional justice systems, but an adjunct to it. While these alternative models of justice have their own advantages and disadvantages, they all share a focus on collaboration and problem solving and community involvement rather than adversarialism and punishment. There are also more radical alternatives. Some people on the anti-carceral left who believe in the full abolition of police and prisons have instead adopted the idea of transformative justice, which rejects this kind of integration into the carceral system. That's a whole topic in itself with a number of arguments for and against, and time doesn't permit me to do it justice today. That will be a topic in a later lecture in this series. We will be looking at restorative and transformative justice. And when I consider do we need criminal law? So, we come to the end. Conclusion. In conclusion, the adversarial system of justice in England and Wales has numerous flaws that have been extensively discussed in this lecture. And while it can be effective in certain cases, it's not universally effective in gettin' at the truth, and it can become profoundly unfair when one party is unrepresented or there is a significant inequality of resources between the parties. There isn't a level playing field. However, we should be cautious about replacing it with another system, as the inquisitorial system, because that may not necessarily lead to fairer trials or better outcomes. We should also be skeptical of the belief that the continental European systems are superior to our own. Restorative justice and peacemaking should be embraced. But it's important to recognize that they are not appropriate in every case and are not a complete replacement for the adversarial system. In many cases, we still need a means of resolving factual disputes and decidin' who is telling the truth. Therefore, mitigating some of the adversarial system's problems by increasing legal aid significantly is the most effective measure when it comes to mitigating inequality of arms. We must also strive to address the systemic biases and inequalities present in the current system and work towards a more equitable and just outcome for the parties involved. Thank you.(audience applauding)- Thank you. Thank you very much, Professor Thomas, for this fascinating lecture. So as usual, we'll start with question from our online audience. As you can guess, we have many of them, and then we'll open up the floor for questions. So first a question I suspect, perhaps, someone from the legal profession who wants your opinion on the oppositional view of the inquisitorial versus the adversarial system. And the person is asking and saying that"a key difference between the system"is that the adversarial system has"a separate sentencing hearing." Inquisite, sorry."Inquisitorial systems determine verdict and sentence at the same time."In my view, the adversarial system is superior."Do you have a view?"- Yeah, I do have a view. I think that a period of time, generally, after conviction, whereby you have a look at all the surroundin' facts and information and get reports in, I think that's a better system, personally, but I don't know whether there's a cultural bias, because that's a system that I'm so used to. So, as opposed to just going straight through and convicting and sentencin' straight afterwards.- Thank you. Another question actually in relation to technology, and a person asking is,"How much does forensing science and technology,"like CCTV, change the structure of cross-examination"and evidence reporting in criminal trials?"- That's a really interesting question. Now, I say this. I'm not a criminal practitioner, but I had a conversation with a very esteemed criminal practitioner the other day, and he was telling me that technology has really fundamentally changed some of the criminal cases that he's doing, in the sense that now, with mobile phone evidence, cell site evidence, CCTV, the nature of criminal trials is changing so much that the prosecution are just coming with piles and piles of this material. And it's leaving very little for defense counsels to say in terms of all evidence from their clients, because the evidence is location, positionin', and-- Sorry, they're all receivable then, because they're based on technology.- And it's all based on technology, so the answer is technology is making a significant impact on the nature of criminal trials than in the past whereby the prosecution was put very much to proof.- Interesting.- Technology's steppin' in and answering those questions.- [Audience Member] The Truth and Reconciliation Commission, is that a part of restorative justice?- Yes, the Truth and Reconciliation... Are you talking about South African model after apartheid? That was very much a very good example of restorative justice, whereby, you had, I dunno if you remember watching all these major figures during the apartheid regime come in and givin' an account in relation to their role and their involvement and how the theory goes, that was providing closure for many of the individuals, particularly many of the victims who had suffered. And it was very powerful, some of the testimony, and allowing some of the victims to speak and say what they went through was also a very, very important part of that restorative justice and closure and accountability. And in fact, we're beginning to see some of that comin' in. So in our criminal system, you have victim impact statements. So, after conviction, as part of the sentencing process, victims are able to make a statement and talk about the impact that the offense has had on their lives. And this is really important and something that I know makes a big difference to many victims, that ability to say to a judge,"This is what this offense has had on me." So this is all part of a process of restorative justice, and as I said, is it's part of an adjunct, isn't it, on our existing system.- [Audience Member] Is there an admission of guilt for the (indistinct)?- Well, as I indicated, restorative justice only works insofar as the offender is willing to participate and cooperate. That's one of the problems with a restorative justice approach. If you have an offender who isn't, continues to deny, even though they may have been convicted, as some defendants do, it makes it very difficult.- [Audience Member] In these days of increased or improved technology, social media and so forth, this might sound controversial, but can you see a shelf life to the conventional jury that we've become used to?- Wooie.(people chuckling) It's interesting because it's a debate that every few years comes up. And the last time that question arose was during lockdown as a result of the backlog of criminal trials, and, number one, and number two, because of the risk of infection from COVID and having jurors together. And so that was hotly debated in 2020 and 2021, certainly within my profession, the bar. And there's a strong objection to it. Now it should be remembered that juries make up a very tiny proportion of criminal cases. I think it's something like 3%. Something like 3%, if my memory serves me right. The vast majority of criminal cases are dealt with in the magistrate's court. But there is such passion about jurors and retaining them. And if you, didn't see, I, actually in this reimagining the law series, I think it was my second lecture, was, do we need juries? And you can watch that online if you haven't seen it and see what my conclusions are. But in short, I would say this, that I can't see jurors leavin' us anytime soon. This such strong feelin' for jury justice. And interestingly, can I just end on this? And it was interesting when I looked at some of the conviction rates comparing judges and juries, particularly when it comes to racial bias, and interestingly the 2017 Lammy report into disparity, racial disparities found that judges have a greater problem than juries when it comes to racial bias. That's interestin'.- [Audience Member] Thank you.- [Host] Couple of more questions, perhaps.- Yeah, couple more questions.- [Host] Yeah? Thank you.- [Audience Member] In overcoming the shortcomings of the adversarial system, do you see any role to be played in essentially making the police more truth focused rather than suspect focused through things like duty to disclose or duty to investigate alternate lines of inquiry, that kind of thing?- Yeah, interesting question. It would really take, as in this series, a re-imaginin', a real change of policing culture to do that. Given... It's an interesting question. I think it's something that certainly would be a step in the right direction. So I certainly believe, but given the fact that changin' the culture of an institution like the police is just so difficult, and we can see that, in several respects with issues about misogyny, homophobia, racism, and the list goes on. And that's, don't take that as an opinion. We just need to look at Sarah Everard, Wayne Couzens, the Charing Cross WhatsApp policing group messages, and the WhatsApp messages relating to Wayne Couzens and the indecent exposure case. There's tons of evidence that's shown that there's real difficulty in sort of changing this culture. I think that would... I think yes, certainly, I would certainly be advocating that's a road we should be going down. Whether it's achievable anytime soon, I doubt it.- Thank you-- Should we take one more question?- One more question.- One more question.- [Audience Member] Yeah, my question is a follow up to what you've just said. How much do you think there's any kind of culture of institutionalized racism or misogyny within the criminal justice system?- Again, (laughing) it's a question that I touched upon in the Re-imagining series. Do we need judges, do we need barristers? And I did that couple of lectures back, and the answer is I think there's a lot of misogyny and I think there's a lot of racism within the systems. because it's an institution, and if you just look at the institutions, and you just look at the numbers and you look at who's judging, the facts speak for themselves. Although there's a recognition... In fact, let me add some meat to the bone, so it's not just an opinion that it looks like I'm espousing. There was a Manchester University, a recent report on judicial bias and race, and that report came out in November of 2022 by K. Monteith, King's Council, and a group of academics at Manchester University. Fascinating reading. Absolutely fascinating reading about, shown clear evidence of judicial racial bias when it comes to the treatment, not only of individuals who happen to be caught up in the criminal justice system, but also of the practitioners and the experience of practitioners, black and brown practitioners within the system. I think we're going to have to leave it there.- Well, thank you very much. Thank you very much, Professor Thomas.(audience applauding)