Common Law and Civil Law Procedures: Which is the More Inquisitorial? A Common Lawyer's Response

Abstract

If a bishop were preaching on the duties of an English judge or arbitrator he might take as his text the Epistle of St James, Chapter 1, verse 19: > Each of you must be quick to listen, slow to speak, and slow to be angry. For a man’s anger cannot promote the justice of God. In broad outline those duties of a judicial person in England apply equally to judges both in civil and criminal trials, and to arbitrators. In particular, I see no ground for drawing any distinction between the conduct of a judge in the trial of a civil action, and that of magistrates at a criminal trial or of arbitrators at the hearing of a reference. Arbitrators have rather greater freedom to act on their own knowledge and expertise; and the degree of formality or dignity required is less in a civil dispute than at a criminal trial. But in general the judicial task is, under English law, the same in all three cases – to listen to the evidence and contentions of the parties and decide between them. Care proceedings relating to children before magistrates, and the wardship jurisdiction of the Family Division, are exceptions. Some differences also emerge when one is considering a criminal trial on indictment at the Crown Court, of a more serious offence. There the judicial function is shared between judge and jury, as also in those cases (now rare) where a civil dispute is tried with a jury. But even in a jury trial the judge’s function is, in the main, to assist the jury to choose between the contentions of the parties. Against that background one has first to ask what is meant by adversarial, and by inquisitorial, procedure. To my mind the essence of adversarial procedure is that the …