COMPARATIVE ANALYSIS OF ADVERSARIAL SYSTEM IN UK AND INQUISITORIAL SYSTEM IN FRANCE

This article has been written by Ashu Shukla, Advocate on Roll – Lucknow High Court.

***This article has been selected for LegalOnus Law Journal (LLJ) Volume 1 Issue 9 2025

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Abstract

This paper undertakes a comparative analysis of two foundational models of criminal justice: the adversarial system of the United Kingdom and the inquisitorial system of France. While both aim to uphold the rule of law and ensure fair trials, they embody distinct philosophical and procedural frameworks rooted in their historical and cultural contexts. The UK’s adversarial system emphasizes the contest between two opposing parties, with the judge acting as a neutral arbiter, and places a strong premium on the rights of the accused, evidentiary rules, and oral advocacy. In contrast, France’s inquisitorial system vests investigative powers in judicial authorities, particularly the examining magistrate, and prioritizes a truth-seeking, dossier-driven approach over adversarial confrontation. Through doctrinal analysis, case law review, and procedural comparison, this study highlights the strengths and limitations of both models in ensuring due process, transparency, efficiency, and public confidence in the criminal justice system. The paper further explores recent reforms in both jurisdictions that reflect a convergence of principles, such as victim participation, pre-trial rights protection, and cross-examination practices. By assessing these systems through a comparative lens, the paper contributes to the ongoing discourse on criminal justice reform and the global quest for balancing individual rights with societal interests in the pursuit of justice.

Keywords: Adversarial system; Inquisitorial system; United Kingdom; France; Criminal justice; Comparative law; Due process; Legal procedure; Judicial role; Evidentiary standards; Criminal trial; Legal traditions; Truth-seeking; Cross-examination; Legal reform.

Introduction

Adversary Judicial System is mainly practiced in common law countries like Australia and United Kingdom. The adversarial system works on the common law tradition. The parties to the case investigate, finds the facts of the case on their own. Oral evidences are admissible in adversarial judicial system. The duty of the judge in adversarial judicial system is to be neutral throughout the proceedings and until he delivers the judgment. The judge becomes referee to the party i.e, Prosecution and Defendant. It is the sole duty of the judge to endorse equity and fair-mindedness. Whereas, in the inquisitorial system empowers the role of Judge in the Proceeding. The judge in the inquisitorial system is actively involves in collecting of evidence and recording of statements in his file which is kept with himself. The judge plays the fact-finder role in inquisitorial judicial system. In inquisitorial judicial system the control lies in the hands of Judge. But in adversary system the opportunity to present is given equally to both the party. The confession of guilt by defendant in Adversary system is the end of proceedings and granting of sentence. But in inquisitorial system confession by defendant is recorded as evidence and the prosecutor is still needed to present the case.

Adversarial Judicial System

In adversary system, two adversaries compete to each other over a case to persuade the jury that their facts and evidences are best. The lawyers are given absolute freedom over choosing what evidence should be given in support of their submission. The questions are asked by judge only to the witnesses. The judge is not an active participant in adversary system as judge is not given power to enquire beyond the evidences and facts produced before them. The obligation of challenging the evidences against the defendant is upon the lawyer. It is the duty of lawyer to win through legal and ethical ways, preventing the conviction of their client. The system is more in favour of winning rather than truth finding. The adversary system maintains public trust by providing equal opportunity to expose their side of truth. Parties are more satisfied with the outcomes if they have control over the presentation of case. To ensure that proper procedure is followed and rule of evidence is monitored properly judge sits over the Court. If the jury system is followed by the court, it is the role of Judge to describe laws to them. A judge is expected to be fair and impartial in throughout the proceeding until the judgment is delivered.

Adversarial Judicial System in UK

Adversarial Judicial system is followed by many common law countries. UK follows adversarial judicial system. This system gives power and responsibility to the contesting party for investigation, selection of witnesses, and presentation of evidences. The case trial in adversarial system is based on orally submitted evidences in front of an unbiased judge and jury for delivery of judgment. There are no clear traces of adversarial system in history. The adversarial system is the result of steady development of American and English judicial system. The actual origin of the adversarial system derived from the ancient way of resolving the dispute popularly known as ‘Trial by Combat’ or ‘Trial by Battle’. Trial by combat was used as a dispute settling mechanism through physical fight and the one who wins is right. This is concept of German Law. In trial by combat, the person who brought accusation had to enter into a physical combat with the accused to prove his point. The trial by combat was prevalent in British courts even during 1773 which was attempted to outlaw by British parliament in response to Boston Tea Party. The Trial by Combat was one of the many substitutes used for settling of dispute in medieval times.

Stages of Criminal Trial in UK

1. Arraignment – Out of eleven stages of the trial in criminal court, arraignment is the first stage. The indictment will be read out by the clerk.
2. Detention beyond 24 hours cannot be legally allowed unless the authorization is obtained from the Superintendent to expand the time by 12 hours not exceeding 36hours in total. In the matters related to terrorism the accused can be held in police custody for 28days.
3. Bail can be granted by providing securities and sureties as a condition. Bail Act 1976 was enacted to widen the parameters of fulfilling of bail. The right guaranteed by the act does not necessarily grants the bail but places the burden on the prosecution to reveal the reasons for the bail to be rejected.
4. The defendant is given right to produce his evidences after the prosecution’s case is heard by the court. The court may conduct Pre-trial if the court foresees a guilty plea. To give directions for constructive trial court is required to conduct pre-trial hearings.
5. Sentencing in England and Wales- once the sentence is granted various factors should be taken into consideration. Reduction in sentence for those pled guilty or those who help prosecution. In case of grave offences, it should be decided to give life imprisonment or life sentence for protection of public. Once these factors are considered court is required to give reasons for, explain the effects of such sentencing.

Criticisms of Adversarial Judicial System

• Adversarial system gives power to lawyers to search out all facts and evidences this will make lawyer destroy all unfavorable evidence and to press the most convincing law for his client.
• Benefit of doubt and presumption of innocence will lead to release of criminal.
• Parties intentionally delay in presenting evidences.
• Only the evidences that are to be presented by party will be heard by the judge.
• To distort the truth parties may even present fake witnesses.
• Sufficient evidences against the accused may not be found by the police because they cannot expect any support from the accused. This will lead to case being dropped out.

Inquisitorial Judicial System

Inquisitorial judicial system is followed by many countries across the world including France, Italy and China. The process of investigation is done by Judge in inquisitorial system. Matter from both the party is investigated to achieve the truth. It is the duty of Magistrate to collect the evidences. The Question of law and Question of Fact is decided by the Judge. Inquisitorial system is found to be followed in Civil Law countries. This system is cost-effective as it relies more upon identifying and investigating the applicable facts which is used while proceedings of trial. The judge is the investigator who supervise the Police to gather information from both the sides. The inquisitorial system focuses mainly on public welfare and trust by convicting the accused guilty of the crimes. Inquisitorial system of courts binds everyone to comply with the Administration of Justice. The judges in inquisitorial system of civil laws are highly trained and are impartial as the main objective of the system is to investigate the truth. In this system, judges have on paper records and background of the criminal. This will help judge to have beforehand knowledge of the criminal.

Inquisitorial Judicial System in France

 French Inquisitorial System, is a type of system which comprises of more zestful and investigative judge. The concept of Inquisitorial system is derived from Latin word ‘Inquiere’ ‘inquisitum’: to investigate or to ask. In ancient times in France ‘Questioning’ means ‘to torture’. La Question- a book which was banned right after it was published in 1960 following the reason that it gives references about the torture inflicted upon the Algerian rebels by the France Army. The active role of judge lays more emphasis on Inquisitorial System. The role of judge in inquisitorial system is of truth seeking.

Inquisitorial system in France, the investigating judge may act like a deterrence to heinous crimes or crimes with severe cruelty. In severe crimes judges have absolute authority to out and order his investigations. Under the investigating judges the complex enquiries conducted may lead to early discovery of the facts of a committed crime, which will unable the criminals to cover up the crime or commit another crime. As an independent judge and a competent member of the judiciary separated from the executive branch completely may work decisively and effectively to deter crimes yet to be committed. The Office of the Public Prosecutions in France has no right to intervene into the judicial affairs carried out by the investigating judges, who can seek help from the Minister of Justice, which controls the activities of the public prosecutors.

Steps of Criminal Trial in France

• Arraignment (accusation)- In France arraignment is a formal reading of the charges before the defendant to inform them about the charges. In response accused is awaited to enter ‘plea’ which includes ‘guilty’ and ‘no-guilty’. ‘Nolo Contendere’ ( no contest) and ‘Alfors Plea’ are allowed under some circumstances only. In France, no detention for more than 24 hour under the police custody from the time he/she was arrested. However, in some circumstances where more time is required for investigation which comprises of the offence with one year imprisonment or when the accused are traffickers, terrorist than the consent of prosecutor should be obtained by the Police.
• Bail Hearing in France– The examining magistrate within the Judicial framework of French Law may order the Bail. On some conditions the person accused may be released on bail if there is no objection from the prosecution. New charges may be imposed if the accused fails to observe the conditions.
• Preliminary inquiry- On grounds of sufficient evidences against the defendant the case is taken to the court and the trial starts after that. The charges imposed against the accused will be let go of if there is no sufficient evidences against the accused at the preliminary trial. Preliminary trial is conducted by the pre-trial magistrate as a part of routine Judicial Process. The criminal procedure in France provides that once the trial starts the magistrate can investigate any person who may be involved in the case.
• Sentencing – Sentence will be given to the accused if found guilty. Pre- trial report is required to be made by the Parole officer which will have the conduct of the accused by which he will be dealt in the society and which will help the victim to know the seriousness of crime.

Criticisms of Inquisitorial Judicial System

• Unchecked Power of the Judge to investigate the case.
• In interrogation if court participates it may lead to impartial attitude of judge and there will be injustice to the aggrieved party.
• Denial of privacy to accused.
• Police and prosecutor have separate law to deal with, which will lead to misuse of power.
• Own expert is not allowed to be call by the parties.

Conclusion

Adversarial and Inquisitorial system both have their merits and demerits and their own set of procedure. Both judicial systems have same objectives of providing justice to the victims through their own features and criticisms. Both the systems are highly criticized but they are still prevailing. Accused and state are parties in Adversarial Criminal Case whereas victim is also party to the case in Inquisitorial system.

References

1. Brief Survey of Development of Adversarial System:
   Brief Survey of Development of Adversarial System, CORE (2010), https://core.ac.uk/download/pdf/159591916.pdf.
2. Bail in the UK (Bail Act 1976):
   Bail Act 1976, c. 63 (UK), https://www.legislation.gov.uk/ukpga/1976/63/contents.
3. Preparation for Trial in Crown Court – Criminal Procedure Rules:
   P.R. 3.21, SI 2020/759 (UK), https://www.legislation.gov.uk/uksi/2020/759/part/3/crossheading/3/made.
4. Sentencing Guidelines – England and Wales:
   Library of Congress, Sentencing Guidelines: England and Wales, Library of Congress (May 2019), https://www.loc.gov/law/help/sentencing-guidelines/englandandwales.php.