Patrick Robinson | Analysing common law adversarial and civil law inquisitorial legal systems

Recently, the Court of Appeal overturned a murder conviction on the ground that the Presiding Judge, the chief justice, descended, quite extensively, into the arena to elicit evidence that ought to have been left to the prosecution.

This decision triggered a discussion of the differences between the common law adversarial legal system, (CLALS) – sometimes called the accusatorial system – followed in Jamaica and the civil law inquisitorial legal system (CLILS) in which there is no arena, or if there is one, the judge is always immersed in it. This discussion has prompted me to share my own experience with a legal system that was a hybrid of both legal systems.

In 1998, I left the Attorney General’s Department to sit as a Judge of the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY, the Tribunal). The Tribunal was established in 1993 by the Security Council to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. The Tribunal was the first war crimes tribunal to be established after the Nuremberg and Tokyo Tribunals, 1945.

In Jamaica, I was also a Crown Counsel in the DPP’s Office.

The main difference between the two systems is that the CLILS is driven by the judge and the CLALS is driven by the parties, i.e. the prosecution and the defence. In general, the CLALS is followed in the UK and its former colonies and dominions. In general, the CLILS is followed on the European continent and in Latin America.

Shortly after arrival at the Tribunal, my colleague judge from the United Kingdom and I decided to attend a criminal trial in The Hague, Netherlands, in which the accused had been charged with what in Jamaica would be described as motor vehicle manslaughter. This was our first encounter with a trial in the CLILS. We were surprised that the first witness was the accused and that the judge spent three hours questioning him extensively.

PARTIES

In our system, it is the parties, the prosecution and defence, not the judge, who drive the case by their examination, cross-examination, and re-examination of witnesses. The system is adversarial because it sets up a contest between the prosecution and the defence. The judge is expected to stand aside and hold the scales of justice evenly between the prosecution and the defence.

While the judge in the CLALS may ask questions of witnesses, he or she should not descend into the arena, which is the province of the adversaries, the prosecution and the defence.

On the other hand, the CLILS is inquisitorial in that it is driven by the almighty judge who conducts an enquiry to ascertain the truth and for that purpose, has extensive powers to gather evidence and ask questions.

While in general, there is a jury in the CLALS, there is, in general, no jury in the CLILS. Trials were conducted at the Tribunal by a Trial Chamber of three judges, who functioned as the tribunal of law and fact.

At the Tribunal, the collection and presentation of evidence followed the CLALS: there was an independent prosecutor responsible for investigations and the prosecution of crimes, and witnesses were examined, cross-examined, and re-examined. Set against the prosecutor was the accused and between them was the Trial Chamber of three judges. This was, mainly, a party-driven system. On the other hand, in the CLILS,the collection of evidence is predominantly in the hands of the judge.

The CLALS has a distinct preference for the orality of evidence while the CLILS is more amenable to the use of written statements in lieu of oral evidence. The Tribunal was forever trying to find ways to expedite its proceedings, which, with trials lasting years, were long and expensive. One device was the use of written statements in lieu of oral evidence. At the Tribunal, admissibility of evidence was based on the more relaxed civilian model in which there are professional judges as arbiters of law and fact: evidence that was relevant and of probative value was admissible. Thus, hearsay evidence was admissible and a determination made at the end of the case of the weight to be attached to it.

TRACES OF THE OTHER

Notwithstanding the differences between the two legal systems, neither system exists in a pure form as each has traces of the other. In the view of one commentator, F. Tulkens, “as a system adds, superimposes or eliminates certain features, one can now only say that it reflects a dominant model”. This is true of Jamaica in which, while the dominant model is assuredly the CLALS, there is a feature of the CLILS in the Gun Court, which has functioned very well with a single judge and no jury.

I support the chief justice’s suggestion to replace jury trials with trials by judges (bench trials). From the vantage point of working in systems with jury trials and bench trials, I am convinced that the latter possess, to a greater degree than jury trials, all the elements, including efficiency, necessary to achieve a fair trial.

Readers may be interested in the article, Rough Edges in the Alignment of Legal Systems in Proceedings at the ICTY 3 Journal of International Criminal Justice 1037 (2005). In this article, I examined how transplanting features from one legal system into the work of the Tribunal could affect the fairness of its trials. I had this concern because under Article 14 of the International Covenant on Civil and Political Rights, which reflects customary international law, the right of an accused to a fair hearing does not depend on whether the accused is tried in the CLILS or the CLALS.

We must put an end to the legal oddity of the possibility of a decision of the chief justice being overturned by the Court of Appeal. The chief justice is the chief judge of Jamaica and is, therefore, chief among all judges, including those in the Court of Appeal. It should not be possible for a Jamaican court to overturn a decision of the chief justice. On appointment, the chief justice should sit in the Court of Appeal as its president. Any amending legislation should take into account regional practice. Of course, judgements of the Court of Appeal may be overturned by Jamaica’s highest court, which at this time is the United Kingdom Privy Council – another legal oddity of which we need to rid ourselves.

Judge Patrick Robinson is the former president of the United Nations International Criminal Tribunal and former judge of the International Court of Justice. Send feedback to columns@gleanerjm.com.