The word ‘game’ hangs in the air.
Because that is often what adversarialism amounts to. It does not seek to take a cool, impartial look at all available evidence. It does not calmly invite differing interpretations of a comprehensive fact-gathering exercise. The police, conscious of the political imperative to achieve convictions, investigate alone, under their own steam. They pass what they find to the CPS, which selects the evidence that points towards guilt. The defence try to exclude parts of that evidence, throw in some of their own, equally partial, while lobbing smoke bombs into the arena in the hope that some may damage the prosecution witnesses, or at the very least distract the jury. Who, let us not forget, we cannot trust in possession of the full facts, lest they misapply them or otherwise disgrace themselves.
It is difficult to see how, in that framework, truth is ever supposed to emerge. Particularly in contrast to the alternative, European model – inquisitorialism. Which, whatever variant of system you alight upon, is premised on and marketed as a neutral search for objective truth.
There are many and varied inquisitorial systems, but it is worth a whistlestop tour of some of the main common features. The headline is that rather than equip two adversaries with the means to present their own partial evidence to an independent fact finder, all roles are vested in the state.
Typically, the criminal investigation is carried out by judicial police officers, under the supervision of the prosecutor, who decides whether to pursue the matter to a trial. Evidence is gathered both for and against the accused in a disinterested and objective manner, and the investigation and its findings are documented in a file, or dossier. The prosecutor’s objective is not to obtain a conviction – unlike the CPS, under political pressure to deliver acceptable, although ever-undefined, conviction rates: – her public duty is to search for and uncover the truth. In some jurisdictions, the prosecutor is supplanted by an investigating magistrate who takes responsibility for the investigation. Witnesses will be examined and their testimony recorded in the investigative stage, with all evidence placed in the dossier.
The defence will be entitled to inspect the dossier before trial and offer representations on any further investigation that should be instigated. Once the prosecutor or investigating magistrate is satisfied that all necessary investigative measures have been exhausted, the completed dossier, containing all the evidence, is put before the trial court. This is usually a single judge, or a mixed panel of professional judges and laypersons.
Trial itself takes on a very different, almost anti-climactic feel. And there will be a trial. Guilty pleas and plea bargains do not exist, capable as they are of obscuring truth. While a defendant can admit his misdeeds in evidence, the court must still establish exactly what took place. The trial is judgeled. In most cases, the crucial decision is reached solely by reference to the hundreds of pages of witness statements, expert reports and photographs that comprise the dossier. While the witness evidence should theoretically be repeated orally, the judge may dispense with the requirement that witnesses attend. The role of the lawyers is therefore marginalised. There is no hostile cross-examination for the edification of a rapt jury; little cross-examination, in fact, at all. While there will be a defence lawyer, their role is usually limited to handing in written submissions on the law and evidence, and suggesting questions that the judge might wish to ask of a witness. In jurisdictions where oral questioning is allowed, it tends to be perfunctory and non-aggressive. No Garrows enlarging their role and demolishing terrified witnesses in a verbal frenzy. No Georges teasing out the inconsistencies in the evidence of first Mysha and then Tamara, clobbering them relentlessly with a club of bad-character evidence as they thrashed around on the video monitor, their eyes searching desperately, fruitlessly for help. In some inquisitorial jurisdictions, including Germany, Austria, Norway and Sweden, complainants are permitted to assist the prosecutor as a ‘subsidiary prosecutor’. Rather than being viewed as a powerless appendix to the prosecution case, served on a plate to a salivating defence lawyer, a victim can assume a meaningful role in their own right. Their dignity is preserved both by the manner of questioning and the significance accorded to their status.
Crucially, exclusionary rules of evidence are anathema. The only test for admissibility is relevance. Hearsay is a non-concept. The judge is trusted to weigh up the evidence, distinguish between primary and secondary accounts and attach appropriate significance to what appears in the dossier. Previous convictions of the defendant are not only admissible but considered important to the determination of guilt or innocence. If there is any evidence which the court considers ought to have been obtained, further inquiry can be ordered. Note the contrast to the jury, which, if it meekly approaches the judge and asks for more evidence, is told firmly that, ‘You’ve had all the evidence there is,’ and ordered to get on with reaching a verdict. In inquisitorialism, no relevant questions go tactically unasked. No reasonable avenues of inquiry lie uncharted due to the awkwardness they might portend to the parties. The finder of fact is not, as juries are here, prosecuted and gaoled for undertaking extra-curricular research into the case; it is encouraged to amass whatever information it feels it needs to get to the bottom of the case.
When the court retires to consider whether guilt is proved to the standard of in-time conviction – roughly translated as ‘deeply and thoroughly convinced’* – it must provide not only a one- or two-word verdict, but reasons for its conclusions**. Whereas the sanctity of the jury’s verdict renders it a criminal offence in England and Wales to ask for or disclose details of a jury’s deliberations, leaving the Court of Appeal to speculate as to what a jury might have been thinking, the truth, as the court finds it to be, is clearly and publicly set out and justified.
If the court found the witnesses credible, but in light of the lack of supporting evidence could not faithfully hold themselves out as sure to the requisite standard, that crumb of comfort could be offered to the devastated complainants as the not guilty verdict was returned. If the court was satisfied that a complaint was malicious, they could set out on public record the words that the acquitted defendant could forever embrace when faced with the inevitable, ugly, no-smoke-without-fire whispers that are invited by a blank, expressionless Not Guilty.
The adversarial model – or at least our version of it – eschews narrative verdicts. Instead of the verdict being the conclusive answer, it is often the catalyst for furt her questions that can never be resolved. Win or lose, that’s your only certainty. And so, after George, with the aid of that damned schedule, tossed grenade after grenade after grenade into the evidence of the two girls – the word ‘liar’ bouncing around the courtroom on a loop as he softly and politely tore each complainant apart – and after Jay went into the witness box and gave a fumbling, evasive performance in his defence, and after the jury returned with their verdicts, the foreman repeating ‘Not Guilty’ 17 times as we advocates maintained our poker faces, no one could say where the truth lay; or even where it began.
All we had – and all we, for Jay, needed – was that inscrutable, favourable answer to those 17 binary questions. But that was far from the truth. And that verdict and its obnoxious unknowability, although satisfactory for our client, didn’t get to the truth of what had taken place over the last 20 years.
Why do I say that I think Jay was guilty? Just a hunch. There was the material in the Social Services’ records, none of it conclusive, but much of it painting a clearer, darker picture than that achieved by the prosecution at trial. There was the way Jay presented in his evidence; his lukewarm denials contrasted to the raw hysteria of the complainants when challenged. There was his demeanour in that very first conference. The way he said, as we shook hands at the end, ‘Just get me off, yeah?’, delivered with the same casual arrogance I’d seen a hundred times before in career burglars who know they’re playing the game. There was the way he didn’t seem burdened in the way that I imagine I would be burdened if my children – my flesh and blood – accused me of those unspeakable, monstrous things. There was his reaction on acquittal; not so much screaming blessed relief as shrugging pleasant surprise. All those little tells.
They could be wrong, of course, and possibly speak louder to my own prejudices than anything else. But something about the evidence, about him, about them, made the acquittal feel, if not wrong, at least not right. As we watched the victorious Jay drag a glazed Farah out through the front revolving door of the court precinct and back to their cursed normality, George turned to me.
‘He did it, didn’t he?’
I nodded. ‘I think so.’
‘Those poor fucking girls.’
George’s practice was these cases. He did little else. When he spoke of them normally in chambers, it was with the learned indifference and gallows humour that sex barristers adopt out of self-preservation. He, like so many of his call, was impervious to cloudy emotion. He was just a player of the game. But as we dragged our suitcases in tandem over the cobbles towards the station, he was oddly withdrawn. His jolly, polished, public-school charm had slipped, replaced with a grimace of pursed reflection.
‘Have you ever before . . . ?’ I began.
He shook his head. And we walked on in silence. As we did, the questions that we rarely confront, whether through training or simply lack of time to give them proper thought, started percolating through my mind, melding together in a sticky ball of inseparable, unanswerable interrogations. Can we say that justice has been done in this case? What will happen to those vulnerable, broken girls, disbelieved by their family and now formally disbelieved by the state? What happens to the thousands like them? The many genuine victims of abuse, punished repeatedly in a vicious circle of institutional torture. Those children who are failed by the state, are abused and damaged, and who act like children who are abused and damaged, only to grow up and find that the justice system will use that damaged behaviour as reason to disbelieve them. The agony of their cross-examination, the final nails hammered into their remaining vestiges of dignity – is this the way to establish the truth? Is any of this, any of what we tacitly accept as Our Way of Justice, justifiable in the modern era, when other countries find ways to dispense criminal justice without so much overt public pain?
And today, as I look back over the arguments that speak for themselves, if I were to ask myself whether I agree with the caustic observations of one academic who scorns the notion of truth emerging through adversarialism – opining that:
‘The adversary dynamic invited distortion and suppression of the evidence, by permitting abusive and misleading cross-examination, the coaching of witnesses, and the concealment of unfavourable evidence...***’
– I would have to say yes. Professional ethics of course prohibit abusive cross-examination and witness coaching, and concealment of evidence is a bit value-laden for my taste, but the distortion and suppression of evidence is undeniable. It is integral to the process. And, to me, it is impossible to say, with a straight face, that our method is the best truth-seeker, or the best guarantor of the dignity of witnesses. It isn’t. We prize a system that often deliberately frustrates primary enlightenment principles and accepts the obliteration of human dignity as its market price, with the consequence that people who are probably guilty get away with it.
But does it follow that I would entertain replacing it with something akin to inquisitorialism? Pulling down the scaffolding and starting construction anew, with a collective focus on neutral and objective state truth-seeking?
My answer to those latter questions is, on balance, no. And the next chapter sets out why.
*Lerner R L, ‘The Intersection of Two Systems: an American on Trial for an American murder in the French Court d’Assises (2001) 19 University of Illionois Law Review 791, at 796;
**J Doak, C McGourlay and M Thomas, Evidence in Context, 3rd edition, 2012, Routledge pp 34-42)
***J H Langbein, The Origins of Adversary Criminal Trial, OUP, 2005
Extracted from The Secret Barrister: Stories of the Law and How It’s Broken by the Secret Barrister, published by Macmillan at £16.99