Conceptions of the Trial in Inquisitorial and Adversarial Procedure

Abstract

This chapter will compare and contrast aspects of the rituals and procedures which take place in the (mainly lower ranking) criminal courts in England and Wales and in France, highlighting some of the problems in extracting core normative principles for the conduct and functioning of criminal trials across different jurisdictions. Rooted in an inquisitorial procedural tradition, the trial in France is different from that in England and Wales: the court room players are not the same and those that appear to be similar (judge, prosecutor and defence) enjoy a different professional status and role from their broad counterparts in the more adversarial tradition that exists in England and Wales. Any explanation of the trial must also necessarily be linked to the pre-trial phase: the ways in which the case is investigated and evidence gathered will impact on the ways in which it is then scrutinised by the court, just as the nature of the trial process will itself influence the way in which evidence is prepared during the pre-trial phase. These distinctions are part of a wider difference in the process and function of the trial in the two jurisdictions : between the French model of a state-centred, unified inquiry into ‘the truth’, centring upon the pre-trial investigation, and that in England and Wales of a legally regulated debate between the parties, with the trial as its centre piece.