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far-reaching proposal met with intense opposition, especially from the press
and eventually the Government dropped “ or at least suspended “ the proposal
in so far as it a¬ected victims and witnesses. The Bill was amended to require
that the provision a¬ecting witnesses and victims be activated by a speci¬c
Order in Council and the indications were that this was not likely to happen.
The Youth Justice and Criminal Evidence Act 1999, s. 44 maintained the previ-
ous rule that a child cannot be identi¬ed as the alleged perpetrator of the o¬ence
unless the court gives permission on grounds of public interest. It also provided
for a new right of appeal against court decisions to lift or not to lift reporting
restrictions in the interests of justice and for a right of appeal to the Crown
Court against such decisions made in the magistrates™ courts.
The Youth Justice and Criminal Evidence Act 1999, s. 46 also gave the court
the power to prohibit the reporting of information that would lead to an adult
witness being identi¬ed in any criminal case if the court considers that cover-
age will lead to him being intimidated or that his co-operation or his evidence
would be adversely a¬ected by fear or distress. The Explanatory Notes to the Act
stated: ˜neither “fear” nor “distress” was intended to cover a disinclination to
give evidence on account of simple embarrassment™. Nevertheless this provision
is obviously very far-reaching. The court can lift the restrictions on grounds of
the interests of justice.
Chapter 4

The trial process




This chapter deals with the trial itself. The ¬rst section considers the particular
characteristics of the English adversary method of trial as compared with the
so-called inquisitorial method followed on the Continent and, in particular,
examines the role of the judge. The second and third sections concern the
advantages of representation and the di¬culties faced by the unrepresented
person in an English trial. The following sections look at the orality of proce-
dure and the evidence of social psychologists that evidence on questions of fact
is more apt to be unreliable than the participants appear to realise. The sixth
section deals with the most important problems of the rules of evidence.


1. The adversary system compared with the inquisitorial
The common law method of trial has often been described as ˜adversary™ or
˜accusatorial™ “ as distinct from the continental ˜inquisitorial™ method. The
essence of the distinction is that, whereas in the inquisitorial system the domi-
nant role is played by the court, in the adversary system it is played by the
parties. In the adversary system the judge is supposed to remain a mainly passive
and silent umpire listening to the evidence produced by the two parties. The
parties prepare their respective cases, they decide what witnesses to call and in
what order and they examine and cross-examine the witnesses. If both sides
decide not to call a witness who has potentially relevant evidence, normally the
court will do nothing about it. The burden of preparing the case and of pre-
senting it falls on the parties themselves, which means that a party without a
lawyer is at a distinct disadvantage. By contrast, in the inquisitorial system the
judge calls the witnesses and examines them, while the parties or their lawyers
play a supporting or subsidiary role.
To be sure, as already seen and as will be noted further, the ˜pure™ adversary
system as it has been conducted in England in modern times has been a¬ected
as regards civil trials by the implementation of the Woolf reforms with their
emphasis on the active judge. Active case management is also now supposed
to be a feature of criminal trials and the new Criminal Procedure Rules
require the defence to be more helpful to the prosecution than was previously
the case. So change is afoot, but despite such developments, the role of the
380 The trial process


English judge is still very di¬erent from that of his continental opposite
number.


The adversary system
Judicial intervention
A classic statement of the pure adversary system was given by Lord Denning
deciding that the trial judge, Mr Justice Hallett, had intervened too often:

Jones v. National Coal Board [1957] 2 QB 55, CA
We are quite clear that the interventions, taken together, were far more than they
should have been. In the system of trial which we have evolved in this country,
the judge sits to hear and determine the issues raised by the parties, not to
conduct an investigation or examination on behalf of society at large, as
happens, we believe, in some foreign countries. Even in England, however, a
judge is not a mere umpire to answer the question ˜how™s that?™ His object, above
all, is to ¬nd out the truth, and to do justice according to law; and in the daily
pursuit of it the advocate plays an honourable and necessary role. Was it not
Lord Eldon LC who said in a notable passage that ˜truth is best discovered by
powerful statements on both sides of the question™? See ex p Lloyd1 and Lord
Greene MR who explained that justice is best done by a judge who holds the
balance between the contending parties without himself taking part in their dis-
putations. If a judge, said Lord Greene, should himself conduct the examination
of witnesses, ˜he, so to speak, descends into the arena and is liable to have his
vision clouded by the dust of con¬‚ict™: see Yuill v. Yuill.2
Let the advocates one after the other put the weights into the scales “ the
˜nicely calculated less or more™ “ but the judge at the end decides which way the
balance tilts, be it ever so slightly . . . The judge™s part in all this is to hearken to
the evidence, only himself asking questions of witnesses when it is necessary to
clear up any point that has been overlooked or left obscure; to see that the advo-
cates behave themselves seemly and keep to the rules laid down by law; to
exclude irrelevancies and discourage repetition; to make sure by wise interven-
tion that he follows the points that the advocates are making and can assess their
worth; and at the end to make up his mind where the truth lies. If he goes beyond
this, he drops the mantle of a judge and assumes the robe of an advocate; and
the change does not become him well. Lord Chancellor Bacon spoke right when
he said that:3 ˜patience and gravity of hearing is an essential part of justice; and
an overspeaking judge is no well-tuned cymbal™.
For a comparable criminal case see R v. Perks.4 In Gunning5 the conviction was
quashed where the judge asked 165 questions compared with 172 from counsel.
In Matthews 6 by contrast the Court of Appeal declined to quash a conviction
where the judge put 524 questions to counsel™s 538. On any view, the court said,

1 2
(1822) Mont 70 at 72n. [1945] P 15 at 20, [1945] 1 All ER 183, 61 TLR 176.
3 4
˜Of Judicature™, Essays or Counsels Civil and Moral. [1973] Crim LR 388.
5 6
[1980] Crim LR 592. (1983) 78 Cr App Rep 23.
381 The adversary system compared with the inquisitorial


the number of judicial interventions and questions was excessive but they did
not quite go so far as to divert counsel from his own line of questioning. The
court said that a large number of interruptions put the appeal court on notice
of the possibility of a denial of justice but the critical issue was not the number
but the quality of the interventions ˜as they relate to the attitude of the judge as
might be observed by the jury and the e¬ect that the interventions have either
upon the orderly, proper and lucid deployment of the case for the defendant by
his advocate or upon the e¬cacy of the attack to be made on the defendant™s
behalf upon vital prosecution witnesses by cross-examination™.7 Nor will the
court interfere merely on the ground that the judge has been guilty of discour-
tesy, even gross discourtesy, to counsel: R v. Ptohopoulos.8
In Hamilton9 Lord Chief Justice Parker said the Court of Appeal would over-
turn a conviction on account of excessive intervention (1) where the interven-
tions invited the jury to disbelieve the defence evidence in such strong terms
that they could not be cured by the usual formula that the facts are for the jury;
(2) where they prevented defence counsel from carrying out his duty to present
the case for the defence; and (3) where the defendant himself was prevented
from telling his own story.10
For the role of the judge in in¬‚uencing or directing the jury to convict or
acquit, see pp. 523“26 below.
In recent years the traditional English concept of the judge as a passive
umpire, as in a tennis match, simply ˜hearkening to the evidence™ has with
regard to civil cases become greatly altered. One reason is that whereas in former
times it was normal for the judge to come into court with little knowledge of
the case, today far more material is supplied to the court and pre-reading is
normal, which means that the judge will form provisional views on the basis of
which he can ask questions on matters of evidence as well as questions of law.
The Woolf reforms were largely built on the concept of a more active, interven-
tionist judge. No doubt, the primary focus of the reforms was on making the
court more active in the pre-trial stage but the reforms have had their impact
on the trial stage too. Pre-Woolf, the idea of the judge who played an active role
at trial was well established in small claims trials. Post-Woolf, it has become a
feature of other civil trials too.
It is important also to appreciate that the nature of the role of the judge
described in Lord Denning™s judgment in Jones v. National Coal Board only
applied to the evidence. It had no application to legal argument. Legal argu-
ment in a common law case has always involved the judge very actively.
Counsel makes his points and submissions but the judge feels free to engage
him in discussion by asking questions, raising objections and putting contrary

7 8
At pp. 32“3. [1968] Crim LR 52.
9
[1969] Crim LR 486 (quoted more fully in (1973) 58 Cr App Rep 378 at 382).
10
See, for instance, Rabbitt (1931) 23 Cr App Rep 112; Clewer (1953) 37 Cr App Rep 37;
Renshaw [1989] Crim LR 811; Sharp [1993] 3 All ER 225 and generally S. Doran, ˜Descent to
Avernus™, 139 New Law Journal, 1 September 1989, p. 1147.
382 The trial process


points. The process sometimes almost resembles a seminar. The same is even
more true on appeal. As Dr11 Kate Malleson wrote of the Court of Criminal
Appeal: ˜The role of the judges in the Court of Appeal is not that of neutral
referees but active participators in the proceedings. They ask questions of
counsel, make comments, discuss problems, suggest answers, express their
opinions and raise new matters in a way which more closely resemble an
inquisitorial hearing™.12
The higher in the system, the more extensive the exchanges between counsel
and the court. (In The Law Lords Professor Alan Paterson reports that in Cassell
v. Broome there were ninty-nine judicial interventions on the ¬rst day of argu-
ment alone, sixty-one of which came from the presiding judge.13)
Even on points of law, however, the adversary system works on the basis that
the court is not supposed to undertake its own research and is not supposed to
go beyond the arguments presented by the parties.14

Calling witnesses
The basic common law rule was and remains that it is for the parties, not the
court, to call and to examine the witnesses. The parties decide what witnesses
to call, in what order and what questions to ask them. In civil cases the court
cannot call a witness unless the parties agree.15 In criminal cases the judge tech-
nically has the right to call a witness but rarely does so,16 though it can happen
when the purpose is to assist the defence.17 In Grafton18 doing so led to the con-
viction being quashed. The Court of Appeal said that the judge™s role was to
hold the ring impartially and to direct the jury on the law. By acting as he had
done, he had in e¬ect taken over the prosecution.
The basic rule is that each party is bound by the evidence of his own witness.
One cannot impeach the evidence of one™s own witness by cross-examination
to show that he is in error, unless the court is persuaded to allow cross-
examination on the ground that the witness is ˜hostile™.19 As a result, each side
may suppress a witness for fear of what he may say.
The possibility that the parties may suppress evidence that they do not intend
to call was illustrated in Causton v. Mann Egerton.20 The plainti¬ was consider-
ing suing his employers for injuries to his eye su¬ered through their alleged

11
Now Professor.
12
˜Decision-making in the Court of Appeal: The Burden of Proof in an Inquisitorial Process™, 1
International Journal of Evidence and Proof, 1997, p. 175 at 178.
13
Macmillan, 1982, p. 70; Toth v Jarman [2006] EWCA Civ 1028 discussed by J. Levy, in ˜Will
They Ever Learn?™, 156 New Law Journal, 3 November 2006, pp. 1671“3.
14
For consideration of the weaknesses of this rule see N.H. Andrews, ˜The Passive Court and
Legal Argument™, 7 Civil Justice Quarterly, 1988, p. 125.
15
See for instance Briscoe v. Briscoe [1966] 1 All ER 465, Div Ct.
16
For an example that was upheld by the Court of Appeal see Bowles [1992] Crim LR 726.
17
R v. Haringey Justices, ex p DPP [1996] 1 All ER 828. See also Oliva [1965] 1 WLR 1028 and
18
Brown and Brown [1997] 1 Cr App R 112. [1992] Crim LR 826.
19
See M. Newark, ˜The Hostile Witness and the Adversary System™, Criminal Law Review, 1986,
20
p. 441. [1974] 1 All ER 453.
383 The adversary system compared with the inquisitorial


negligence. He agreed to be examined by the insurers™ doctors. They were
pessimistic about the prospects of his regaining his sight. He was also examined
by doctors on his own behalf. On request from the defendants™ solicitors, the
reports of his doctors were disclosed to them, but when the plaintiªs solicitors
asked for reciprocal disclosure of the reports prepared by the insurers™ doctors,
this was refused.
The Court of Appeal by a majority held that the refusal was legitimate.
Disclosure could be compelled if a party was intending to rely on the evidence
but neither the opposite party nor the court could require a party to produce
privileged testimony which it did not intend to call. Lord Justice Roskill said that
to decide otherwise would be to ride roughshod over the clear rule that, in the
absence of the parties™ consent, the court could not order the production of
privileged documents. (˜So long as we have an adversary system a party is enti-
tled not to produce documents which are properly protected by privilege if it is
not to his advantage to produce them and even though their production might
assist his adversary if he or his solicitor were aware of their contents or might
lead the court to a di¬erent conclusion from that to which the court would come
in ignorance of their existence™.21)
Lord Denning, dissenting, said that the insurers™ doctors apparently took a
more serious view of the plaintiªs injuries than did his own doctors. The defen-
dants accordingly wished to keep their own reports away from the court and the
plainti¬. This would be unfair:
Counsel for the defendants sought to excuse their conduct by saying that litiga-
tion in this country is based on the adversary procedure. By that he means, I
suppose, that it is permissible for an insurance company to refuse to co-operate
in the doing of justice. It can play with a poker face with the cards hidden from
view. I cannot subscribe to that view. Although litigation is based on the adver-
sary procedure, we require the adversaries to play it fairly and openly. The
defendants have made the plainti¬ put his cards on the table. They should put
theirs too.22
In the Crown Court Study judges were asked: ˜Were you aware of any important
witness(es) who were not called by either side?™ In nearly a ¬fth (19 per cent) of
743 cases the judge answered yes.23 The Royal Commission recommended that
judges be prepared in suitable cases, where they become aware of a witness who
may have something to contribute, to ask counsel in the absence of the jury why
the witness has not been called and, if they think appropriate, urge them to
rectify the situation. In the last resort judges should be prepared to exercise their
power to call the witness themselves.24 (There is no sign that judges have
adopted either recommendation.)

21
At p. 460. See also Air Canada v. Secretary of State for Trade (No 2) [1983] 1 All ER 910 and
22
General Mediterranean Holdings SA v. Patel [1999] 3 All ER 673. At p. 458.
23
M. Zander and P. Henderson, The Crown Court Study (Royal Commission on Criminal
24
Justice, Research Study No 19, 1993) section 4.3.12. Runciman, Ch. 8, para. 18, p. 123.
384 The trial process


Lord Justice Auld in his report said that judges were right to use the power
to call witnesses only in exceptional cases. The parties might have good
reasons, which they could not divulge, consistent with justice and the inter-
ests of a fair trial, for not calling a witness. Also, if the witness helped the pros-
ecution, the judge might be thought to be playing the role of auxiliary
prosecutor.25
There are, however, some situations where the normal principles of the
adversary system “ that the court is basically passive and it is for the parties to
make the best case they can “ do not apply.


Modifications or exceptions to the adversary system
Civil court acting of its own motion
The pre-1999 rules had some provisions permitting the court to act of its own
motion,26 but there were few of these. The new rules have many such powers.27

Small claims hearings
In small claims cases in the county court the judge is given complete control
of what rules of evidence and procedure to adopt. For the ¬rst years many of
the judges followed the traditional approach of leaving it to the parties to make
their case, but gradually and increasingly they took a more active role in
getting the parties to make their case. By 2002, Professor John Baldwin
reported28 that ˜almost all™ the district judges who were interviewed in his
study were ˜thoroughly enthusiastic about playing a pro-active, intervention-
ist role at hearings™.29
The small claims court now handles roughly four out of ¬ve contested cases in
the county court. (In 2005, 47,521 cases (or 73 per cent) were disposed of as small
claims, compared with 17,318 (27 per cent) as ordinary contested hearings.30)
Nature of hearing From the outset, one of the most important features of the
small claims system has been its informality. The Civil Procedure Rules31con-
tinue this approach:
The court may adopt any method of proceeding at a hearing that it considers to
be fair.
...

25
Auld, Ch. 11, para. 36, p. 528.
26
For example the power to transfer a case from High Court to county court or vice versa.
27
The court may for example extend or shorten the time for compliance with any rule, Practice
Direction or court order, adjourn or bring forward a hearing, require a party or a party™s legal
representative to attend the court and stay the whole or any part of a case (CPR 3.1(2)).
28
Lay and Judicial Perspectives on the Expansion of the Small Claims Regime (September 2002,
LCD Research Series No. 8/02) p. 89.
29
See generally J. Baldwin, Small Claims in the County Court in England and Wales: The Bargain
Basement of Civil Justice (Clarendon, 1997) and ˜Litigants™ Experiences of Adjudication in the
County Courts™, 18 Civil Justice Quarterly, January 1999, pp. 12“40.
30 31
Judicial Statistics, 2005, Revised Table 4.8. CPR 27.8(1).
385 The adversary system compared with the inquisitorial


(2) Hearings will be informal.
(3) The strict rules of evidence do not apply.
(4) The court need not take evidence on oath.
(5) The court may limit cross-examination.
(6) The court must give reasons for its decisions.
The judge therefore has complete discretion as to the conduct of the case.
It is true that in Chilton v. Saga Holidays Plc32 the Court of Appeal held that
the special rules for small claims did not mean that the basic principles of the
adversary system could be set aside. The registrar who heard the case had
refused to allow solicitors for the defendants to cross-examine the plainti¬ and
his wife. (˜In cases where one side is unrepresented, I do not allow cross-
examination. All questions to the other side will be put through me™.) The
county court judge upheld the registrar™s decision, but the Court of Appeal held
that their view was wrong. The Master of the Rolls said that, although the pro-
cedure was designed to be informal, it was fundamental to the adversary system
˜that each party shall be entitled to ask questions designed to probe the accu-
racy or otherwise, or the completeness or otherwise, of the evidence which has
been given™.
The Courts and Legal Services Act 1990, s. 6, provided that county court rules
may prescribe the procedure and rules for small claims cases and that such rules
˜may, in particular, make provision with respect to the manner of taking and
questioning evidence™. The Explanatory Notes speci¬cally related this provision
to the problem created by the Court of Appeal™s decision in Chilton v. Saga
Holidays Plc. The right to cross-examine lay on the border between procedural
rules and the law of substantive evidence, and an enabling power was therefore
needed to permit a rule to be made which gave the court the right to dispense
with the right, but although CPR r. 32.1(3) states that the court may ˜limit™
cross-examination it does not say that it may prevent it altogether.
Professor Baldwin was full of praise for district judges:
. . . district judges have made enormous strides in the past twenty years in pro-
viding a pleasant and relaxed setting in which litigants can present their cases at
small claims hearings, with or without legal representation . . . It would not be
much of an exaggeration to say that what district judges in England and Wales
have achieved in providing a congenial arena in which litigants in person can
function e¬ectively at hearings has not been equalled at other levels of the judi-
ciary. Moreover, the writer™s knowledge of what happens at small claims hear-
ings in other jurisdictions leads him to believe that the judiciary of no other
country has achieved a comparable measure of success in this regard.33

32
[1986] 1 All ER 841.
33
Lay and Judicial Perspectives on the Expansion of the Small Claims Regime (September 2002,
LCD Research Series No. 8/02) pp. 88 and 89 “ www.lcd.gov.uk. For a less satisfactory verdict
see P. Lewis, ˜Litigants in Person and their Dif¬culties in Adducing Evidence: a Study of Small
Claims in an English County Court™, 11 International Journal of Evidence and Proof, 2007,
pp. 24“48.
386 The trial process


The judge is expected to be interventionist Despite the decision in Chilton, judges
in small claims cases are encouraged to take an active role. The 1999 Practice
Direction stated, for instance, that the judge may ˜ask questions of any witness
himself before allowing any other person to do so™.34 This would be regarded as
completely unacceptable in ordinary cases.
Unsurprisingly, the judges vary in their willingness to take on this kind of
activist role. Professor Baldwin, writing about this, said:
The interventionist role is not, however, always easy to play, particularly for
judges who (as in this country) have been used to practising within an adver-
sarial setting. It is in fact a role that bears remarkable similarities to the inquisi-
torial judge. Yet unless adjudicators play this role “ and what is more, play it
competently and enthusiastically “ small claims procedures simply will not
work.35
Any observer, he said, ˜is likely to be struck by the enormous variations between
district judges in their interpretation of what it means to be interventionist™.36
It was rare for the judge to read the papers beforehand. Most did not explain the
purpose of the hearing or the nature of the procedure they intended to adopt,
whereas some took great pains over the introduction,37 but most of the judges
showed evident relish in playing an interventionist role.
It can, indeed, be said that the judicial shift from the traditional adversarial
approach to active interventionism has been achieved in small claims and,
however reluctant they may have been in the past, few district judges now show
much hesitation about intervening at hearings or express misgivings about
doing so.38
Baldwin identi¬ed four main approaches to being interventionist. One was
˜going for the jugular™ “ identifying the central issues and insisting that the
parties stick to them. A second was to allow the parties to say what they want to
say. A third was to sit passively and then just ask a few questions. A fourth was
to try to achieve a compromise solution like a mediator.
The di¬erent styles could a¬ect the outcome of cases. Thus, for instance,
judges vary in their approach to the frequent failure of litigants in person to
bring all the evidence they need. Preliminary hearings are rare and are discour-
aged by the rules. It is rare for parties to come with witnesses. (In one of his
many studies, in ninety-one out of 109 hearings observed by Baldwin, there
were no witnesses.39) To avoid an adjournment, a robust judicial approach
tended to be adopted, but judges di¬ered widely in their ability and their incli-
nation to ask the pertinent question and to ¬ll in the gaps in the evidence. They

34
PD 27, 4.3(1).
35
J. Baldwin, ˜Small Claims Hearings: The “Interventionist” Role Played by District Judges™, 17
Civil Justice Quarterly, January 1998, pp. 20 and 21.
36
Ibid, p. 22. The same had been the ¬nding in an earlier study of the small claims system in
thirty courts “ George Appleby, Small Claims in England and Wales (Birmingham Institute of
Judicial Administration, 1978) pp. 30“3.
37 38 39
Baldwin, 17 Civil Justice Quarterly, January 1998, p. 23. Ibid, p. 24. Ibid, p. 28.
387 The adversary system compared with the inquisitorial


varied also in whether they felt bound to apply the law. A minority thought they
should: ˜A majority said they were entitled to disregard the law in making deci-
sions if in their view strictly applying it would produce injustice™.40 In his
Interim Report Lord Woolf said (p. 109): ˜it is questionable whether such
di¬erences are acceptable even in a jurisdiction limited to £1,000™ and that any
inclination to follow common sense rather than the principle of law should be
resisted in the interests of consistency. Baldwin agreed with Lord Woolf:
While there is little doubt that the district judges who compromise the appli-
cation of law in the broader interests of ˜doing justice™ act out of laudable
motives, it can be dangerous to apply common sense notions even in small
claims. Decision-making can easily become inconsistent, capricious, uncer-
tain, even biased, and in the process, the substantive legal rights of individuals
may be undermined. Moreover, while ¬‚exibility is doubtless desirable in
dealing with small claims, it can create great uncertainty for lay litigants and
their advisers.41
For Baldwin, the variable approaches adopted by district judges ˜inevitably
weakens one™s enthusiasm for the small claims procedure™.42 Lord Woolf had
argued for more guidance and training for district judges in playing the inter-
ventionist role to achieve greater consistency.43 Baldwin suggested that:
With the trebling44 in the small claims limit, it is surely no longer acceptable
simply to allow the parties to prepare their cases in whatever way they think
appropriate and then ask the district judges to make the best of it at hearings. If
endless adjournments are to be avoided, then careful attention needs to be paid
at an early stage in proceedings to ensure that cases are adequately prepared and,
where they are not, that proper directions are given to rectify de¬ciencies. This
tends at present to be done in only a super¬cial way in many courts, yet it can
have a critical bearing upon the fairness of the court procedure.45
However, in a further study carried out only a few years later, Baldwin was much
reassured at the way the courts had adapted to the increase in jurisdiction and
he no longer considered that the way the court handled the case was much, if at
all, in¬‚uenced by the amount involved.46
Research on small claims hearings in Canada found, just as Professor Baldwin
found, that judges varied greatly in their approach, from the strict legalists to
those who seek rather to do justice.47

40 41 42
Ibid, p. 29. Ibid, p. 31. Ibid, p. 33.
43
Access to Justice, Interim Report, pp. 108“10; Final Report, p. 98.
44
As has been seen, the limit has since been further increased to ¬ve times what it was in 1995.
45
Baldwin, n. 35 above, p. 34.
46
Baldwin, Lay and Judicial Perspectives on the Expansion of the Small Claims Regime (September
2002, LCD Research Series No. 8/02) p. 64.
47
R.A. Macdonald, ˜Judicial Scripts in the Dramaturgy of the Small Claims Court™, 11 Canadian
Journal of Law and Society, 1996, p. 63. The study was described and discussed by the writer:
M. Zander, ˜Consistency in the Exercise of Discretionary Powers™, 146 New Law Journal, 1
November 1996, p. 1590.
388 The trial process


Litigants™ perspective Research has con¬rmed that the small claims system is
popular amongst those who use the civil courts. Professor Baldwin interviewed
352 county court litigants who had used either ordinary or the small claims pro-
cedure. The interviews took place in 1996 and 1997. The respondents were a
cross-section of plainti¬s and defendants, business and lay, regulars and ¬rst
timers, winners and losers. The main purpose of the study was to examine the
two kinds of county court procedures through the eyes of the litigants.
Most of the litigants in both samples (whether they were private individu-
als, the representatives of businesses or court ˜regulars™) said they very much
favoured informality of procedures in resolving their disputes. The great
majority of small claims litigants accepted without much question the rela-
tively simple and crude methods adopted by district judges and welcomed the
opportunity to participate directly in the resolution of their disputes. There
were few complaints from the small claims litigants, but these high levels of sat-
isfaction, Baldwin said, ˜were certainly not paralleled in the interviews with lit-
igants who had experienced “open court” trial. Almost every interview with
litigants in the latter category produced complaints of varying degrees of seri-
ousness. Some produced a veritable catalogue™.48 Individual litigants com-
plained about the formality and the wigs and gowns. Many were greatly
a¬ected by the costs and especially the threat of having to pay the other side™s
costs if they lost. (˜Even though the sums in dispute were in all cases in the
sample under £3,000, the costs incurred by some individuals ran into thou-
sands of pounds™.49) They were more likely than the small claims litigants to
complain about their lawyers and the legal advice they had received. (Whereas
87 per cent of small claims litigants were satis¬ed with their lawyers, only 45
per cent of ˜open court™ litigants were.50) In short, ˜no matter what criterion of
litigant satisfaction was adopted, the small claims regime came out ahead “ and
by a wide margin™.51
Baldwin™s positive view was con¬rmed by his further study published in 2002
which ended: ˜Although there may be continuing problems and dilemmas in
small claims that are yet to be satisfactorily tackled, the small claims procedure
is widely acknowledged to be the great success story of civil justice in England
and Wales™.52 He thought it would be worth considering transferring at least a
proportion of personal injury claims from the fast track “ ˜even if such moves
would require modi¬cation of existing arrangements and would in any event be
resisted by sections of the legal profession™.
Had the increase in jurisdiction made any di¬erence? Baldwin suggests that
although the threefold increase in the small claims jurisdiction from £1,000 to
£3,000 had produced some changes “ in the kind of litigant using the system,
increases in the level of claim and changes in legal representation “ ˜one is

48
J. Baldwin, ˜Litigants™ Experience of Adjudication in the County Courts™, 18 Civil Justice
49 50
Quarterly, January 1999, pp. 12“40 at 20. Ibid, p. 28. Ibid, p. 24.
51 52
Ibid, p. 39. Note 000 above at p. 91.
389 The adversary system compared with the inquisitorial


nevertheless struck . . . by how little things are changing, not by how much™.53
It was especially disappointing that there had been no real increase in the overall
number of litigants using the county court. The main consequence of increas-
ing the jurisdiction seemed to be to shift a certain proportion of ordinary
county court cases to the small claims system.
He reached much the same conclusion in the study published in 2002 which
focused on the increase in jurisdiction from £3,000 to £5,000: ˜What has been
striking about recent developments is, therefore, how little di¬erence they have
made, not how much. The e¬ects of the dramatic increases in the small claims
limit, insofar as they have been noticed at all, have been absorbed without
serious disruption™.54
Most people won™t use the courts “ even the small claims court Professor Baldwin
asked why all the changes in court procedure to make the small claims system
more ˜user-friendly™ had had such little success in attracting would-be litigants.
The answer, in his view, lay in the nature and the image of the courts themselves:
Although there is a hard-core of regular court users “ for the most part busi-
ness people for whom an occasional county court appearance is an inevitable,
if somewhat disagreeable, part of commercial life “ for most of the rest of the
population, the courts are regarded as institutions that are to be avoided at all
costs. It is, it seems, only idealists . . . who see the county courts as providing a
mechanism through which legal wrongs can be remedied. For most people, it is
more accurate to say that a situation has to become desperate before legal action
in the county courts would ever be contemplated.55

Where the interests of children are concerned
The courts have held that the ordinary principles of the adversary system do not
necessarily apply in wardship or care proceedings where the primary concern is
the welfare of children. The policy was re¬‚ected in a dictum of Lord Scarman in
Re E (SA)56 in which he pointed out that in wardship proceedings the court was
not exercising an adversarial jurisdiction:
Its duty is not limited to the dispute between the parties: on the contrary, its duty
is to act in the way best suited in its judgment to serve the true interest and
welfare of the ward. In exercising wardship jurisdiction, the court is a true family
court. Its paramount concern is the welfare of its ward. It will, therefore, some-
times be the duty of the court to look beyond the submissions of the parties in
its endeavour to do what it judges to be necessary.57

53
J. Baldwin, Monitoring the Rise in the Small Claims Limit (1997, LCD Research Series No.
54 55
1/97) p. 116. Note 46 above at pp. 85“6. Ibid. at p. 88.
56
[1984] 1 WLR 156 at 158“59.
57
See to the same e¬ect Oxfordshire County Council v. M [1994] Fam 151, [1994] 2 All ER 269
per Sir Stephen Brown; and Re L (a minor) [1996] 2 All ER 78. Both cases raised the question
whether legal professional privilege applied to reports of experts prepared for the purpose of
litigation. The court in both cases ordered the disclosure of the reports. For other cases see
Livesey v. Jenkins [1985] AC 424 at 437, HL; and O¬cial Solicitor to the Supreme Court v. K
[1965] AC 201 at 240, HL.
390 The trial process


Prosecution disclosure
As has been seen, the prosecution must reveal to the defence material that tends
to undermine the prosecution™s case (see p. 296 above).

Duties of the defence
In addition to the duties of defence disclosure, the defence has increasingly been
placed under pressure to be forthcoming in ways that are unfamiliar in the
adversary system.58 Traditionally, for instance, if the defence spotted a fatal ¬‚aw
in the prosecution™s case it could wait to take the point on appeal and hope that
it would result in the conviction being quashed. In recent years the courts have
indicated that this is no longer acceptable59 and the Bar™s Code of Conduct now
re¬‚ects that view.60

Duties of an expert witness
Traditionally the expert witness in the adversary system played his role as a
hired gun. In civil cases, as has been seen, this has changed. CPR r. 35.3 pro-
vides that an expert witness in a civil case has a duty ˜to help the court™ which
overrides any obligation to those instructing him.61 This also operates in a
criminal case. In the 1993 case of The Ikarian Reefer62 Mr Justice Cresswell
listed the requirements for expert witnesses as including independence, objec-
tivity and being non-partisan. An expert™s evidence should show the limits of
his expertise and make it clear when his report was provisional. These remain
the basic principles.63
The Criminal Procedure Rules 2005, Part 3364 states that an expert must help
the court to achieve the overriding objective ˜by giving objective, unbiased
opinion on matters within his expertise™ and that this duty overrides any

58
For discussion see E. Cape, ˜Rebalancing the Criminal Justice Process: Ethical Challenges for
Criminal Defence Lawyers™, Legal Ethics, vol. 9, Pt. 1 2006, pp. 56“79.
59
See for instance Gleeson [2003] EWCA Crim 3357, [2004] Crim LR 579. (˜For defence
advocates to seek to take advantage of such errors by deliberately delaying identi¬cation of an
issue of fact or law in the case until the last possible moment is, in our view, no longer
acceptable given the legislative and procedural changes to our criminal justice process in
recent years. Indeed we consider it to be contrary to the requirement on an accused in s. 5(6)
of the Criminal Procedure and Investigations Act 1996, in particular para. (b), to indicate “the
matters on which he takes issue with the prosecution”, and to their professional duty to the
court “ and not in the legitimate interests of the defendant™, per Lord Justice Auld.) For
critical commentary see [2004] Crim LR 579 at 581.
60
A barrister ˜must bring any procedural irregularity to the attention of the court during the
hearing and not reserve such matters to be raised on appeal™ (Code of Conduct of the Bar of
England and Wales, 8th edn, 2004, para. 708(d)).
61
For an Australian development that takes the concept even further see G.L. Davies, ˜Court
Appointed Experts™, 23 Civil Justice Quarterly, 2004, pp. 37“78 “ proposed Queensland rules
providing for the appointment of independent court appointed experts prior to litigation.
62
[1993] 2 Lloyd™s Reports 68.
63
See Harris [2005] EWCA Crim 1980 at [271]“[273]; B [2006] EWCA Crim 417, [2006] Crim
LR 745.
64
Part 33 was added to the Rules by the Criminal Procedure (Amendment No 2) Rules, SI
2006/2636, Sch. 1, which became operative as from 6 November 2006.
391 The adversary system compared with the inquisitorial


obligation to the person from whom he receives instruction or by whom he is
paid.65 Where more than one party wants to introduce expert evidence, the
court may direct the experts to discuss the expert issues in the case and to
prepare a statement for the court of the matters on which they agree and dis-
agree, giving their reasons.66 If the experts refuse to cooperate, their evidence is
not admissible without the leave of the court.
An extreme case illustrating the expert™s duty is Crozier67 in which the Court
of Appeal held that a psychiatrist instructed by the defence in a criminal trial
might in exceptional circumstances be justi¬ed in showing his report to the
prosecution “ even though that would be contrary to the wishes of the defence.
The circumstances must be such that the public interest in the disclosure of his
views to the prosecution was stronger than his duty of con¬dentiality to his
patient. The defendant had pleaded guilty to the attempted murder of his sister.
The psychiatrist thought that the defendant was a serious danger to his family
and should be detained in Broadmoor. When he came into the courtroom, he
found to his consternation that the judge was in the process of imposing a nine-
year prison sentence. He told prosecution counsel of his report and as a result
the prosecution applied for the sentence to be altered. The judge quashed the
sentence of imprisonment and substituted a hospital order with an unlimited
restriction of time on release. The Court of Appeal held that the public interest
in having the information divulged was greater than in the con¬dential rela-
tionship between doctor and patient.68

Professional rules of conduct
Lawyers arguing a point of law in court have always been subject to the rule that
they must put before the court all relevant authorities regardless of whether
they help or hinder the advocate™s case.
Another exception to the adversary principle is the rule of professional
conduct that places limits on the extent to which a lawyer can knowingly lend
himself to deception of the court. In one instance, sentence of suspension from
practice was con¬rmed on a prominent Queen™s Counsel for misleading the
court in an action for damages against the police. The QC had put his witness,
a police o¬cer, on the stand and examined him as Mr G without alluding to the
fact that he had been demoted for misconduct.69
If his client confesses his guilt to his own barrister, the barrister is not required
to report the fact to the authorities nor need he give up the case, but he may not
˜assert as true that which he knows to be false™. He may take points by way of
objection to the jurisdiction of the court, to the admissibility of evidence or to
the form of the proceedings, but he may not call evidence which he knows to
be false. He is entitled to test the prosecution™s case by cross-examination and

65 66 67
Rule 33.2. Rule 33.5. [1991] Crim LR 138.
68
See to like e¬ect W v. Egdell [1990] 1 All ER 835.
69
The Times, 24 November 1961 and 12 January 1962. The original sentence of three-year
suspension from practice was later reduced to one year.
392 The trial process


he may argue that the prosecution have failed to produce enough evidence to
establish their case. Further than that he should not go.70
In Vernon v. Bosley (No 2)71 just before the judge gave judgment, defendant™s
counsel received information anonymously that showed that his opponents had
knowingly presented a false picture as to their client™s medical/psychiatric state,
a material matter in the litigation. The Court of Appeal allowed an appeal based
on the new material. Lord Justice Stuart said that it was the duty of counsel to
advise his client to make the appropriate disclosure, failing which he should
withdraw from the case. Lord Justice Thorpe went further and said that in such
circumstances counsel should himself disclose the material to his opponent.72
A more robust approach still was adopted by Jacob J in a patent case
Honeywell Ltd v. Alliance Components Ltd.73 Jacob J said that where parties relied
on experiments they should notify the opponent of any experiments they had
conducted which did not support their argument or which undermined it. But
in Electrolux Northern Ltd v. Black and Decker74 his colleague in the Patent
Court, Justice Laddie, disagreed. If Honeywell was right, other potentially fruit-
ful avenues would have to be disclosed and costs and delay would be increased.75
Another example of the duty to disclose is where an application is made in
the absence of the other side (˜without notice™ “ formerly ex parte). In that sit-
uation, by de¬nition, the adversary system is not operating and it is therefore
the lawyer™s duty to make full disclosure to the court so that the decision is made
on a fully informed basis.76 The same is true where an application is made for a
˜freezing™ (formerly Anton Piller) order (p. 101 above). The lawyer making such
an application is under an especially high duty to take care to see that his lay
client realises the need for candour and full disclosure.77
However, the duty of con¬dentiality to the client (legal professional privilege)
overrides the duty of disclosure. (See p. 90 above.)
As has been seen, under CPR 1.3 the parties are required to help the court
to further the overriding objective by co-operating with each other. In
Hertsmere Primary Care Trust v. Administrators of Balasubramanium™s Estate78
Lightman J held that the defendants had been under an obligation to assist the
opponent by informing them in what respect they had not complied with CPR
Part 36.
See generally D.A. Ipp, ˜Lawyers Duties to the Court™, 114 Law Quarterly
Review, 1998, pp. 63“107, especially pp. 67“76.

70
Code of Conduct of the Bar of England and Wales (8th edn, 2004), Written Standards for the
71
Conduct of Professional Work, para. 12. [1999] QB 18, [1997] 1 All ER 614.
72
For analysis and comment see A. Speaight QC, ˜A Change of Expert Opinion™, 147 New Law
Journal, 7 February 1997, pp. 163“6. See also J. Goodli¬e, ˜Fair Play Between Lawyers™, 147
73
New Law Journal, 5 September 1997, p. 1268. 22 February 1996, unreported.
74
[1996] FSR 595.
75
See B. McConnell, ˜Opposing Views™, 147 New Law Journal, 28 November 1997, p. 1754.
76
Brinks-Mat Ltd v. Elcombe [1988] 1 WLR 1350.
77
Chappell v. United Kingdom [1989] FSR 617.
78
[2005] EWHC 320 Ch, [2005] 3 All ER 274.
393 The adversary system compared with the inquisitorial


Lord Woolf and the Runciman Royal Commission on the adversary system
As has been seen, Lord Woolf ™s Interim Report Access to Justice published in June
1995 blamed the excesses of the adversary system for much of the cost, delay
and complexity of the civil justice system:
3. By tradition the conduct of civil litigation in England and Wales, as in other
common law jurisdictions, is adversarial. Within a framework of substantive
and procedural law established by the state for the resolution of civil disputes,
the main responsibility for the initiation and conduct of proceedings rests with
the parties to each individual case, and it is normally the plainti¬ who sets the
pace. The role of the judge is to adjudicate on issues selected by the parties when
they choose to present them to the court.
4. Without e¬ective judicial control, however, the adversarial process is likely
to encourage an adversarial culture and to degenerate into an environment in
which the litigation process is too often seen as a battle¬eld where no rules apply.
In this environment, questions of expense, delay, compromise and fairness may
have only low priority. The consequence is that expense is often excessive, dis-
proportionate and unpredictable; and delay is frequently unreasonable.
5. This situation arises precisely because the conduct, pace and extent of liti-
gation are left almost completely to the parties. There is no e¬ective control of
their worst excesses. Indeed, the complexity of the present rules facilitates the
use of adversarial tactics and is considered by many to require it. As Lord
Williams, a former Chairman of the Bar Council, said in responding to the
announcement of this inquiry, the process of law has moved from being ˜servant
to master, due to cost, length and uncertainty™.
At various points in the Report, Lord Woolf called for the parties to behave in
a more co-operative and less combative or adversarial manner. He stated that
one of the objectives of judicial case management would be ˜the encouragement
of a spirit of co-operation between the parties and the avoidance of unneces-
sary combativeness which is productive of unnecessary additional expense and
delay™ (p. 30, para. 17(c)).
The famous proceduralist Sir Jack Jacob wrote: ˜The passive role of the
English court greatly enhances the standing, the in¬‚uence and the authority of
the judiciary at all levels and may well account for the high respect and esteem
in which they are held™.79 Lord Woolf, by contrast, proposed that the judge
should exercise control both before and during trial not only to marshall the
case but to control the quantity and quality of evidence received by the court.80
This policy was enshrined in the CPR. Part 32.1 starts: ˜(1) The court may
control the evidence by giving directions as to “ (a) the issues on which it
requires evidence; (b) the nature of the evidence which it requires to decide
those issues; and (c) the way in which the evidence is to be placed before the
court™. Part 32 continues: ˜(2) The court may use its power under this rule to
exclude evidence that would otherwise be admissible. (3) The court may limit


79 80
The Fabric of English Civil Justice, 1987, p. 12. Page 178, paras. 14 and 15.
394 The trial process


cross-examination™. Thus, the judge, if he chooses to exercise it, now has great
power to decide which witnesses of fact are called and how they are to give their
evidence. Similarly he has some power over the evidence of the expert witnesses.
In particular, no expert can be called without the court™s permission.
In the view of some this imperils both the search for the truth and the court™s
appearance of impartiality “ see for instance the severe criticisms of C. Dehn, QC,
˜The Woolf Report: Against the Public Interest?™ in Reform of Civil Procedure “
Essays on Access to Justice (A. Zuckerman and R. Cranston, eds., Clarendon, 1995)
p. 162; and of N. Andrews, ˜The Adversarial Principle: Fairness and E¬ciency
Re¬‚ections on the Recommendations of the Woolf Report™, ibid, pp. 171“183.
See also J.A. Jolowicz, ˜The Woolf Report and the Adversary System™, 15 Civil
Justice Quarterly, 1996, pp. 198“210. Professor Jolowicz showed how the French
civil justice system which, contrary to popular belief, traditionally was mainly
adversary, had in recent years become more and more inquisitorial. He suggested
that the Woolf reforms would push the English system in the same direction.
For a powerful piece supporting Professor Jolowicz™s view, see Lightman J, ˜The
Case for Judicial Intervention™81 published a few months after the Woolf reforms
had gone live. In the ˜old days™, he said, the parties did not have to give advance
disclosure of their case. The only information the other side had was what little
was revealed by the pleadings, the judge did no pre-reading because, apart from
the pleadings, there was nothing to pre-read. In those circumstances it was natural
and right for the trial judge to be basically silent and passive. Now there was full
advance disclosure of the evidence and a requirement of skeleton arguments in
which each side set out their submissions and authorities. The judge usually found
time to read these before the trial. In Lightman™s view it was not merely acceptable
but positively desirable that the judge should ask questions based on his reading
of the skeleton arguments. This showed the advocate the issues on which the court
needed to hear argument. Having read the witness statements in advance the judge
was also in a position to ask questions of the witnesses. (˜He does not need to wait
to see if the question is asked and then what answer is given, and he need not accept
the su¬ciency of an answer just because the advocate does™.82) However, the judge
needed to tread very carefully. (˜His questioning out of turn may frustrate a
planned cross-examination, and if he asks (as he is entitled to) leading questions
(questions suggesting their own answer), the witness may psychologically ¬nd it
di¬cult to resist the perceived judicial pressure to give that answer™.83)
However, it is noteworthy that the CPR do not include a new power for the
judge to call witnesses nor did Mr Justice Lightman urge such a power.
The position with regard to criminal cases remains much more in the
traditional mould. By contrast with Lord Woolf ™s view, the Runciman Royal


81
149 New Law Journal, 3 December 1999, p. 1819. For his later assessment of the adversary
system in light of recent developments see Lightman J, ˜The Civil Justice System and Legal
Profession “ the Challenges Ahead™, 22 Civil Justice Quarterly, 2003, pp. 235“47.
82 83
149 New Law Journal, 3 December 1999, at p. 1835. Ibid.
395 The adversary system compared with the inquisitorial


Commission on Criminal Justice did not call for any move towards a less adver-
sary procedure “ though it did make some relatively minor proposals for alter-
ations in the way that expert evidence is prepared. It rejected the idea of the
court calling its own expert.84 It equally rejected the concept of judicial super-
vision of the pre-trial stage of a criminal investigation. Partly its reason was cul-
tural, but partly it was substantive:
Every system is the product of a distinctive history and culture, and the more
di¬erent the history and culture from our own the greater must be the danger
that an attempted transfer will fail. Hardly any of those who gave evidence to the
Commission suggested that the system in another jurisdiction should be
adopted in England and Wales; and of those who did, none argued for it in any
depth or with any supporting detail.85
Our reason for not recommending a change to an inquisitorial system as
such is not simply fear of the consequences of an unsuccessful cultural trans-
plant. It is also that we doubt whether the fusion of the functions of investiga-
tion and prosecution, and the direct involvement of judges in both are more
likely to serve the interests of justice than a system in which the roles of police,
prosecutors, and judges are as far as possible kept separate and the judge who
is responsible for the conduct of the trial is the arbiter of law but not of fact.
We believe that a system in which the critical roles are kept separate o¬ers a
better protection against the risk of unnecessarily prolonged detention prior
to trial.86
For the research evidence on the inquisitorial system done for the Royal
Commission, see p. 397 below.
As has been seen, Lord Justice Auld equally accepted that a judge should call
a witness in a criminal case only in exceptional circumstances.


The inquisitorial system
In the continental inquisitorial system the main burden of presenting the case
at court falls on the court itself. The court calls the witnesses and there is, there-
fore, not the same danger as exists in the common law systems of the evidence
of a particular witness being suppressed because neither side wishes to call him.
The witnesses are questioned (˜examined™) by the presiding judge. The role of
the lawyers is supplementary. They can suggest the names of further witnesses
that the court should call. They can ask questions of witnesses after the court
has ¬nished asking its questions, but the lawyers play a subsidiary role.
The essential di¬erences between the two systems with regard to the taking
of evidence was captured ¬fty years ago by the Evershed Committee:87
250. (a) There is no doubt that the di¬erence between the English and the con-
tinental systems with regard to evidence, i.e. with regard to the rules of evidence

84 85 86
Runciman, p. 160, para. 74. Ibid., p. 4, para. 13. Ibid, para. 14.
87
Final Report on Supreme Court Practice, 1953, Cmnd. 8878.
396 The trial process


and the way in which evidence is taken, is very marked; and equally there is no
doubt that the di¬erence is one of the main reasons for the fact that litigation in
England is substantially more costly than (for example) in France or Germany.
(b) In both France and Germany all (oral) witnesses are the court™s witnesses,
though generally speaking they are tendered by the parties. In both countries the
system is (as has been said), unlike the English system, ˜inquisitorial™. There is
substantially no cross-examination and for practical purposes none at all by the
parties or their legal representatives. The witness in e¬ect makes a deposition
before the examining judge who decides what witnesses shall be summoned.
The process of taking evidence is almost invariably at an early stage of the pro-
ceedings, long before the ˜trial™ proper.
(c) The witness makes his statement in his own words “ there being no
˜hearsay™ rule. It is for the court to decide the value of what has been said. It is,
however, to be noted that the parties themselves are, generally, not competent
witnesses in Germany; and in France parents, relatives and servants of the
parties and certain other categories of persons are not competent.
(d) In both France and Germany, oral testimony is regarded as of far less sig-
ni¬cance than in England.

One of the points frequently made in comparisons between the English and the
civil law systems of trial is their di¬erent approach to the ˜search for the truth™.
This was the theme of a leading practitioner who is also a scholar, in a book
about a famous murder case:

Louis Blom-Cooper, The A6 Murder, 1963, pp. 72 and 80“2
In the Continental trial system the starting point of the trial is the accused man.
The ¬rst thing the court learns about is his medical and criminal antecedents;
the court then feels more able to adjudge the man™s conduct in relation to the
crime, both for testing his culpability in arriving at a verdict and his responsi-
bility for the crime in assessing the treatment he should receive.
The English form of trial is more professional, more aseptic, than the
Continental system, a kind of surgical operation, a great deal less painful to the
public who are immune from the range of a Continental system of inquiry. The
English trial is precise and coldly analytical within the narrow con¬nes marked
out by the accusatorial system. Every piece of the puzzle is ¬tted into a framework
which is delineated by the nature of the trial, an accusation on a speci¬c charge
against a speci¬c person with all else ruthlessly excluded. The rapier of the pros-
ecution is thrust out; the defence™s task is merely to parry it, with no concern other
than that the rapier thrust should not strike home. A successful parry means an
acquittal and that is that. This precision is claimed to be the English virtue, and
certainly the construction of the English trial system does mean that the rules of
the game are well de¬ned, and that an accused can prepare himself for it. A more
roving inquiry means that the accused may ¬nd himself out¬‚anked and may
mean also that other suspects may ¬nd, in the course of the judicial process, that
the pointer of guilt as it swings away from the major suspect shifts towards them.
The Continental system of law, called by contrast the inquisitorial system,
believes that a human being is on trial and that the acts of a human being, judged
397 The adversary system compared with the inquisitorial


to be criminal, are highly complex. To a¬x criminal responsibility on an
accused, it is not enough to inquire: did this man do the speci¬c act alleged
against him? The Continental lawyer wishes to probe deeper in order to deter-
mine the full criminal responsibility and the certainty, so far as certainty can be
achieved, that the crime is laid at the door of the right perpetrator. It is in essence
a search for the truth about the crime.
If your system searches for the truth of the crime, what better start can be
made than that the chief suspect ˜the accused™ should be examined by the court?
He must, if any one does, know most about the crime. And so immediately at
the outset the scope of the trial is altogether wider. The stage of the trial is taken
a step further by the defence and prosecution being allowed to show the real,
extended context of the act with which the accused is charged. This intense
search for the truth is wholly commendable, since the public, through the
agency of the judicial system, is entitled to know not only the criminal but the
nature of the crime. For to ¬nd out the crime is to make absolute at one fell
swoop the nature of responsibility without quali¬cation, and to hamstring the
power of the court when determining the sentence. In English law the two func-
tions are kept quite distinct. The mitigating features of the accused™s acts are kept
away from the eyes and ears of the court “ except when . . . the defence chooses
to put in a record of the accused™s character . . .
The Continental system is therefore fairer to the public, in whose name the
trial is being conducted, than it is to those who are the personalities engaged in
the trial.
The Runciman Royal Commission on Criminal Justice looked at the question
whether it should recommend a move toward the inquisitorial system as pro-
posed by some of those who submitted evidence. It invited Professor Leonard
Leigh and Dr (now Professor) Lucia Zedner, both at the time of the London
School of Economics, to advise it upon the suitability of the French or German
models of procedure for adoption or adaptation in England and Wales. In their
report88 Leigh and Zedner rejected the notion that the inquisitorial model was
˜better™ or that it should be adopted: ˜We do not believe that adoption, certainly
in the crude form which is sometimes suggested in respect of the examining
magistrates, is either feasible or desirable™ (p. 67). In some respect the protec-
tions a¬orded to the suspect in England and Wales were already more extensive
than those in France and Germany. ˜To reproduce the best features of a foreign
system in this country would require much more than the introduction of an
o¬ce found in the foreign jurisdiction. It would be expensive and time-
consuming and would not in our submission, produce better results than could
be achieved by an intelligent adaptation of the existing English system™ (ibid).
Most writing in English contrasting the adversary/inquisitorial features of
the common law and continental systems focuses on criminal cases. The extract
that follows describes the operation of the civil justice system in Germany from


88
A Report on the Administration of Criminal Justice in the Pre-trial Phase in France and Germany
(Royal Commission Research Study No. 1, 1992).
398 The trial process


which it appears that some of the basic inquisitorial features already observed
above seem to operate in civil cases there as well. The procedure has been
described by an English lawyer writing about the German system:

John Ratliff, ˜Civil Procedure in Germany™, 2 Civil Justice Quarterly, July
1983, p. 257
The absence of a ˜day in court™
There is no single, continuous, oral hearing in German law. Instead proceedings
take the form of a series of meetings interwoven with the taking of evidence.
German law adheres to the principle that o¬cials should direct the case. This
means that the court itself, or an o¬ce thereof, is responsible for the initial service
of the writ and subsequent exchange of pleadings. Pleadings are sent to the court,
which keeps one copy for the o¬cial ¬le and sends on two copies to the oppos-
ing side, one for the party and one for his lawyer. There is an initial meeting at
which the court, after discussion with the parties and on the basis of the written
pleadings, decides on what points it will take evidence. The court is not bound to
take evidence in any particular order and often hears what it considers to be the
decisive evidence ¬rst. The actual examination of witnesses takes place in a sep-
arate hearing. After the taking of evidence there will be a discussion on what the
evidence proves and further appointments for the taking of evidence may be
made. This process of taking evidence in instalments succeeded by discussion
continues until the court considers the case adequately clari¬ed. One judge is del-
egated the task of ˜reporting™ the case, compiling a factual summary of the evi-
dence. At the ¬nal hearing the court asks the parties™ lawyers if they wish to make
any concluding remarks, however, usually a lawyer makes only a ˜ritualised ref-
erence™ to his pleadings. A short discussion on one or two points may follow. The
court then retires to come to judgment. The principle of collegiality renders
judgment ˜o¬ the cu¬™ impossible. Judgment is later given in court and sent to
the parties or their lawyers by registered post or placed in the ˜postboxes™ which
many lawyers™ ¬rms have at the courts for receipt of o¬cial communications.
In recent years it has increasingly been appreciated in Germany that there may
be value at least in some cases in having a trial more in the English sense instead
of a series of meetings and written communications between the parties, their
lawyers and the court. A new method of handling civil cases (called ˜the
Stuttgart procedure™) was therefore developed. Its essence is to prepare the case
so thoroughly beforehand that it can be determined conclusively in one hearing
“ possibly with the support of a single preliminary meeting. Under the Code of
Civil Procedure the judge can if he wishes adopt this mode of proceeding.
See also C.N. Ngwasiri, ˜The Role of the Judge in French Court Proceedings™, 9
Civil Justice Quarterly, 1990, p. 167.


Tribunals
For an evaluation of the tribunal system as to its ˜adversary™and ˜inquisitorial™fea-
tures see G. Ganz, Administrative Procedures (Sweet & Maxwell, 1974) pp. 29“35.
For a very critical view of the decision-making process in industrial tribunals see
399 The adversary system compared with the inquisitorial


A. Leonard, Judging Inequality (Cobden Trust, 1987). Leonard studied 300 indus-
trial tribunal cases relating to sex discrimination and equal pay over a three-year
period. Her conclusions were disturbing. She found considerable ignorance and
misunderstanding about the relevant legislation in the decisions. Many tribunals
applied the wrong legal standard. Tribunals were found to be super¬cial in their
analysis of the evidence, too ready to accept vague and generalised statements
even when these were inconsistent with other evidence or based on irrelevant
considerations. There was a great lack of uniformity in the quality of decision-
making as between di¬erent tribunals. Some were much more expert than others.
The lack of uniformity applied also to the expertise of those assisting applicants.
Most claims failed because of the failure by the complainant and his representa-
tive to present relevant evidence. The usual pattern was for the parties to present
only oral evidence with no more than one or two pre-existing documents. They
failed to call supporting witnesses, failed to cross-examine witnesses e¬ectively
and made little or no use of statistical or comparative evidence. Complainants
who had representatives who were more experienced and knowledgeable about
the legislation had much better success rates.
Leonard adopted the view of a previous study89 that the tribunal should
perform an inquisitorial rather than an adversarial function, but in addition to
an expert tribunal there would be a need for some form of expert to help the
tribunal by organising the presentation of the cases, ˜an individual expert in the
legislation who in each case reviews the available information, determines what
evidence and witnesses would be appropriate and ensures that they are pro-
duced by the parties™ (p. 147).


F U RT H E R R EA D I N G

For further reading about the English system of trial see: Glanville Williams™ classic work,
The Proof of Guilt (3rd edn, Stevens, 1963); S. Bedford, The Faces of Justice (Collins,
1961) and The Best We Can Do (Collins, 1963; Penguin, 1961); see also R. du Cann,
The Art of the Advocate (revised edition, Penguin, 1993); P. Devlin, The Judge (OUP,
1979) pp. 54“85; and Sir J. Jacob, The Fabric of English Civil Justice (Sweet and
Maxwell, 1987) pp. 5“19.
For the history see S. Landsman, ˜The Decline of the Adversary System™, 29 Bu¬alo Law
Review, 1980, p. 487 and ˜A Brief Survey of the Development of the Adversary
System™, 44 Ohio State Law Journal, 1983, p. 713; J. Langbein, The Origins of
Adversary Criminal Trial (OUP, 2003) and ˜The Prosecutorial Origins of Defence
Counsel in the Eighteenth Century: The Appearance of Solicitors™, 58 Cambridge
Law Journal, 1999, pp. 314“65; T.P. Gallanis, ˜The Mystery of Old Bailey Counsel™,
65 Cambridge Law Journal, 2006, pp. 159“73.
On the inquisitorial system see S. Bedford, The Faces of Justice (Collins, 1961); B. Kaplan
et al, ˜Phases of German Civil Procedure™, 71 Harvard Law Review, 1957“8, pp. 1193

89
J. Corcoran and E. Donnelly, Report of a Comparative Analysis of the Provisions for Legal
Redress in Member States of the EEC in respect of Article 119 of the Treaty of Rome and the Equal
Pay, Equal Treatment and Social Security Directive, 1984.
400 The trial process


and 1443 and ˜Civil Procedure “ Re¬‚ections on the Comparison of Systems™, 9
Bu¬alo Law Review, 1959“60, p. 409; M. Damaska, ˜Evidential Barriers to
Conviction and Two Models of Criminal Procedure: A Comparative Study™, 121
University of Pennsylvania Law Review, 1973, p. 506 and ˜Structures of Authority
and Comparative Criminal Procedure™, 84 Yale Law Journal, 1975, p. 480; and J.
Langbein, ˜The German Advantage in Criminal Procedure™, 52 University of Chicago
Law Review, 1985, p. 230. Langbein™s article provoked S.R. Gross, ˜The American
Advantage: The Value of Ine¬cient Litigation™, 85 Michigan Law Review, 1987,
p. 734; and R.J. Allan et al, ˜The German Advantage in Civil Procedure: A Plea for
More Details and Fewer Generalities in Comparative Scholarship™, 82 Northwestern
Law Review, 1988, p. 705 and his reply ˜Trashing the German Advantage™, 82
Northwestern Law Review, 1988, p. 763.
For the position of the defence lawyer in the inquisitorial system see J. Hodgson, ˜The
Role of the Criminal Defence Lawyer in an Inquisitorial Procedure: Legal and
Ethical Constraints™, 9 Legal Ethics, 2006, pp. 125“44.
For the position of the lawyer in the English civil system see D. Webb, ˜Civil Advocacy
and the Dogma of Adversarialism™, 7 Legal Ethics, 2004, pp. 210“30.
For an American view that the two systems are not in fact as di¬erent as is often thought
because the juge d™instruction is only rarely involved and, even when he is, there is
still much scope for independent police action see A. Goldstein and M. Marcus,
˜The Myth of Judicial Supervision in Three Inquisitorial Systems: France, Italy, and
Germany™, Yale Law Journal, 1977, pp. 240“83. For a comment on this article and a
reply to the comment see Yale Law Journal, 1978, pp. 1549 and 1570. See also A.
Goldstein, ˜Re¬‚ections on Two Models: Inquisitorial Themes in American Criminal
Procedure™, 26 Stanford Law Review, 1974, pp. 1009 and 1016“25.
See also H. Kötz, ˜The Role of the Judge in the Court Room: The Common Law and Civil
Law Compared™, Journal of South African Law, 1987“91, p. 35; C. Menkel-Meadow,
˜Is the Adversary System Really Dead? Dilemmas of Legal Ethics as Legal
Institutions and Roles Evolve™, Current Legal Problems, 2004, pp. 85“116.
On the advantages of court control of fact-¬nding in the context of the systems of South
Australia and Germany see A.J. Cannon, ˜E¬ective fact-¬nding™, 25 Civil Justice
Quarterly, 2006, pp. 327“48.
On the French system see J.R. Spencer, ˜French and English Criminal Procedure: A Brief
Comparison™ in The Gradual Convergence (ed. B.S. Markesinis, Clarendon, 1994)
pp. 33“45 and M. Delmas-Marty, ˜The Juge d™instruction: Do the English Really
Need Him?™, ibid, pp. 46“58.
On the French system since the reforms of 200090 see Jacqueline Hodgson, French
Criminal Justice: A Comparative Account of the Investigation and Prosecution of
Crime in France (2005, Hart).91

90
Loi no 2000-516 du 15 juin 2000, Renforcant la protection de la pr©somption d™innocence et
les droits des victimes.
91
Dr Hodgson previously published a series of articles based on her research into the French
system: ˜The Police, the Prosecutor and the Juge d™Instruction™, 41 British Journal of
Criminology, 2001, pp. 342“61; ˜Reforming French criminal justice™, Legal Action, November
2001, pp. 6“8; ˜Suspects, Defendants and Victims in the French Criminal Process: The
Context of recent reforms™, 51 International and Comparative Law Quarterly, 2002, pp
781“816; ˜Heirarchy, Bureaucracy, and Ideology in French Criminal Justice: Some Empirical
Observations™, 29 Journal of Law and Society, 2002, pp. 227“57; ˜Constructing the pre-trial
401 The adversary system compared with the inquisitorial


For a comprehensive review and comparison of the criminal procedure of England,
France and Germany originally prepared in the context of the Runciman Royal
Commission™s inquiries see Comparative Criminal Procedure (eds. J. Hatchard, B.
Huber and R. Vogler, British Institute of International and Comparative Law,
1996).
For a comparison of the English and Dutch systems see N. Jorg, S. Field and C. Brants,
˜Are Inquisitorial and Adversarial Systems Converging?™ in Criminal Justice in
Europe: A Comparative Study (eds. P. Fennell, C. Harding, N. Jorg and B. Swart,
Clarendon, 1995) pp. 41“56.
On convergence see B.S. Markesins (ed.), The Gradual Convergence (Clarendon Press,
1994).
For a description (by two of its chief authors) of radical reform of the Italian system in
1988 see E. Amodio and E. Selvaggi, ˜An Accusatorial System in a Civil Law
Country: The 1988 Italian Code of Criminal Procedure™, 62 Temple Law Review,
1989, p. 1211. The article was the subject of M. Zander, ˜From Inquisitorial to
Adversarial “ The Italian Experiment™,141 New Law Journal, 17 May 1991, p. 678.
See also E. Amodio, ˜The Accusatorial System Lost and Regained: Reforming
Criminal Justice in Italy™, American Journal of Comparative Law, 2004, pp. 489“510.
For a lengthy consideration of the adversary/inquisitorial spectrum and where on the
spectrum Diplock non-jury trials in Northern Ireland (p. 541 below) should be
placed see J. Jackson and S. Doran, Judge Without Jury: Diplock Trials in the
Adversary System (Clarendon, 1995) especially Chs. 3 and 10. The conclusion of the
study was that judges in Diplock courts did not act in a more inquisitorial manner
than when sitting with a jury. They varied somewhat in the extent to which they
were interventionist but the di¬erences arose from individual characteristics and
not from the method of trial.
The Trial on Trial (vol. 1, Oxford, 2004)92 has two chapters bearing on this topic: P. Du¬,
˜Changing Conceptions of the Scottish Criminal Trial: The Duty to Agree
Uncontroversial Evidence™, pp. 51“70; and J. McEwan, ˜Ritual, Fairness and Truth:
The Adversarial and Inquisitorial Models of Criminal Trial™, pp. 71“84. In the same

role of the defence in French criminal procedure: an adversarial outsider in an inquisitorial
process?, 6 International Journal of Evidence and Proof, 2002, pp. 1“16.
Hodgson™s ¬ndings regarding the French system included: (1) Interviews with juveniles
must be video-recorded but apart from that there is no requirement of tape or video
recording; (2) the defence lawyer has the right to 30 minutes with the suspect at the start of
detention and again after 20 hours and 36 hours “ previously it was 30 minutes after 20 hours;
(3) the police must inform the suspect, at the start, of the date and nature of the o¬ence being
inquired into; (4) in cases being supervised by the juge d™instruction the suspect and his lawyer
have the right of full access to the dossier “ however this a¬ects only some 7 per cent of all
cases; (5) in all other cases supervision of the police inquiry is by the prosecutor (procureur) “
normally conducted over the telephone and by fax; (6) the Ministry of Justice circular says
that the suspect should not be told his right to silence at the start of the questioning (neither
desirable nor legally required and to do so would encourage the suspect to be silent which
would be against his own interest); (7) there is no requirement of an appropriate adult; (8)
duty solicitors (avocat commis d™o¬ce) are mainly young and inexperienced doing it as part of
their training; (9) the maximum period of pre-trial detention (d©tention provisoire) is two
years or four years depending on the gravity of the o¬ence.
92
Edited by A. Du¬, L. Farmer, S. Marshall and V. Tadros. The essays were the outcome of two
workshops under the title of ˜Truth and Due Process™ and ˜Judgment and Calling to Account™.
The four editors were due to publish their own book as a ¬nal volume.
402 The trial process


volume see also J. Jackson, ˜Managing Uncertainty and Finality: The Function of
the Criminal Trial in Legal Inquiry™, pp. 120“45 especially at 134“9; and H. Jung,
˜Nothing but the Truth? Some Facts, Impressions and Confessions about Truth in
Criminal Procedure™, pp. 147“56 especially at 151“4.
For consideration of the e¬ect of the European Convention on Human Rights see J.D.
Jackson, ˜The E¬ect of Human Rights on Criminal Evidentiary Processes: Towards
Convergence, Divergence or Realignment?™ 68 Modern Law Review, 2005,
pp. 737“64.
For a wide-ranging international comparative study see R. Vogler, A World View of
Criminal Justice (Aldgate, 2005).


2. Does being represented make a difference?
It would appear obvious that in an adversary system the party who is unrepre-
sented is likely to be at a disadvantage.93 There is however remarkably little UK
statistical evidence on this important question based on court cases. Most of the
studies that have statistics on the matter have been of tribunal cases where gen-
erally the full adversarial model of trial procedure does not operate.
In 2006 the Association of British Insurers said that a study they had done of
100,000 claims showed that personal injury claimants received more compen-
sation and their claims were settled more quickly when they did not have
lawyers. Needless to say, the study was dismissed as self-serving nonsense by the
lawyers.94

Representation in magistrates™ courts
In a 1983 study by the Lord Chancellor™s Department in some sixty magis-
trates™ courts there were 566 criminal cases in which the defendant pleaded not
guilty. The proportion acquitted of those who had legal aid was 42 per cent,
for those who were refused legal aid but who were represented privately
was 52 per cent and for those who were not represented was virtually the
same, 51 per cent. This suggested that representation was not necessarily so
signi¬cant.95

Representation in small claims cases
In its original 1973 pamphlet which ¬rst proposed a small claims court,
the Consumer Council recommended that legal representation not be permit-
ted in the small claims court, but this recommendation was not adopted.
Representation by a lawyer was permitted from the start in 1973 and represen-
tation by a non-lawyer has been permitted since 1992.96 (Representation by


93
For the surprising suggestion by the Master of the Rolls that lawyers might ˜be taken out of
the loop™ in lower-value, less complex litigation where defendants are insured see J. Robins,
˜Say it with Flowers™, Law Society™s Gazette, 27 January 2005, p. 22 at 23.
94
R. Rothwell, ˜Solicitors hurt PI claims, say insurers™, Law Society™s Gazette, 13 July 2006, p. 1.
95
Report of a Survey of the Grant of Legal Aid in Magistrates™ Courts, LCD, 1983, Table 17.
403 Does being represented make a difference?


non-lawyers seems to be very rare. Professor Baldwin reported that in 109 hear-
ings he observed in one of his studies there were only ¬ve that featured a lay rep-
resentative.97)
Baldwin compared legal representation in the 1996 sample of over 2,500 cases
with his 1993 sample of just under 2,000 cases. There were some striking
di¬erences with regard to the frequency of representation. In 1993, in 82 per
cent of the cases neither side was legally represented; in 1996, that ¬gure had
dropped to 55 per cent. In both 1993 and 1996, only the plainti¬ was legally rep-
resented in 12 per cent of cases. In 1993, only the defendant was legally repre-
sented in 4 per cent of cases. The 1996 ¬gure of 5 per cent was virtually the same,
but whereas in 1993 both sides had been legally represented in only 2 per cent
of cases, in 1996 that ¬gure had risen to 27 per cent.98 This was an astonishing
change over so short a period.
In a previous study for the LCD, Baldwin had established that increases in
legal representation were not occurring across the board but were con¬ned to
road accident cases. 80 per cent of litigants involved in such cases were legally
represented compared with only 14 per cent in other categories of cases.99 The
increase in legal representation seemed therefore to be the result of the fact
that many more road accident cases were being handled in the small claims
system.
According to the 1996 sample, plainti¬s were signi¬cantly more likely to be
legally represented than defendants. When the plainti¬ was a company or a
¬rm they were legally represented in, respectively, 51 per cent and 41 per cent
of cases whereas individuals as plainti¬ were legally represented in a third of
cases. This di¬erence was less marked in the case of defendants. (27 per cent of
companies, 30 per cent of ¬rms and 33 per cent of individual defendants were
legally represented.100) It is worth noting that even ¬rms and companies are not
legally represented in the majority of cases in which they are involved “ though
they may, of course, be represented by a sta¬ member who is familiar with
court procedures.
Baldwin™s 1996 ¬gures suggest that legal representation improved a litigant™s
chances of success by about 10 per cent. He had reached the same conclusion in
his earlier study.101 A more important question is whether legal representation
makes a di¬erence when the other side is unrepresented. The 1996 ¬gures
showed that in small claims cases it made little di¬erence.102 Baldwin re¬‚ected

96
The Lay Representation (Rights of Audience) Order 1992 giving e¬ect to s. 11 of the Courts
and Legal Services Act 1990.
97
17 Civil Justice Quarterly, January 1998, pp. 20 and 31, n. 31.
98
J. Baldwin, ˜Increasing the Small Claims Limit™, 148 New Law Journal, 27 February 1998, p. 275.
99
J. Baldwin, Monitoring the Rise in the Small Claims Limit (1997, LCD Research Series
100 101
No. 1/97). Baldwin, n. 98 above, p. 275. Ibid, p. 276.
102
In 87 per cent of the 2,563 cases the plainti¬ got an award. When both sides were legally
represented the ¬gure was 90 per cent. When neither side was legally represented it was 86 per
cent. When the plainti¬ alone was legally represented it was 87 per cent. When the defendant
alone was legally represented it was 86 per cent (ibid).
404 The trial process


that this con¬rmed his earlier research which had indicated how problematic
the legal representative™s role is likely to be in the small claims context where the
court is encouraged to be interventionist. (He had found that the lawyers in
small claims cases tended to take a back seat and were sidelined by district judges
who preferred to talk directly to the parties.103)

Representation in tribunals
Another set of statistics regarding the bene¬t of representation relates to pro-
ceedings before national insurance tribunals and supplementary bene¬t appeals
tribunals. In a now somewhat dated study by Professor Kathleen Bell and col-
leagues conducted in Scotland and the northern region of England in the 1970s,
it was found that out of 4,456 cases in national insurance tribunals, the appel-
lant was represented in just over 20 per cent. Representation in three-quarters
of the cases was by a trade union representative, in 19 per cent by a relative or
friend and in only 3 per cent by lawyers. Overall, the success rate of appeals was
21 per cent, but the success rate was distinctly higher for those who had been
represented, regardless of who was the representative.104
The Benson Royal Commission on Legal Services in 1979 cited evidence to
similar e¬ect with regard to the success rate in over 50,000 supplementary
bene¬t appeal tribunal cases in 1976.105
Hazel and Yvette Genn™s, The E¬ectiveness of Representation at Tribunals
(DCA, July 1989) showed that the presence of a representative ˜signi¬cantly
increases™ the probability that cases will be won. In social security appeals the
presence of a representative increased the probability of success from 30 per
cent to 48 per cent. In hearings before Immigration Adjudicators it went up
from 20 per cent to 38 per cent. In Mental Health Review Tribunals it increased
the success rate from 20 per cent to 35 per cent. In Industrial Tribunals the
impact depended on whether the respondent was represented. When he was
not, the presence of a representative for the applicant pushed the success rate
up from 30 per cent to 48 per cent. Where the respondent was represented and
the applicant was not, the success rate went down to 10 per cent.
What was as striking as the statistical di¬erence in success rate between
those who were represented and those who were not was that, again, the
nature of the representation made little di¬erence. Thus in immigration
appeals, solicitors, barristers and the United Kingdom Immigrants™ Advisory
Service, which used mainly non-legally quali¬ed advocates, succeeded with
virtually identical rates.106
Professor Hazel Genn returned with colleagues to the issue in a rich subse-
quent study, Tribunals for Diverse Users, based on three tribunals “ the Appeals

103
J. Baldwin, Small Claims in the County Court in England and Wales: The Bargain Basement of
Civil Justice (Clarendon, 1997) pp. 116“20.
104
K. Bell, ˜National Insurance Local Tribunals™, 4 Journal of Social Policy, 1975, p. 16. See to like
e¬ect House of Commons, Hansard, 1 May 1973, vol. 885, cols. 264“5.
105 106
Cmnd. 7648, 1979, para. 15.9, p. 169. Ibid, p. 84.
405 Handicaps of the unrepresented


Service (TAS), Criminal Injuries Compensation Appeals Panel (CICAP) and
Special Educational Needs and Disability Tribunal (SENDIST).107 Taking all
cases together those who were represented were more successful than those who
were unrepresented (73 per cent against 61 per cent). However regression analy-
sis showed that once case type was controlled for, whereas in TAS cases repre-
sentation (and ethnicity) in¬‚uenced the outcome of hearings, in CICAP and
SENDIST cases representation did not greatly a¬ect outcome.


3. Handicaps of the unrepresented
The formality of English proceedings is often referred to by commentators.
Where both parties are legally represented, as they normally are in the High
Court or the higher criminal courts, this may not be quite so important, but
where they are not legally represented it may be of great signi¬cance. There are
no ¬gures as to the proportion of defendants in the magistrates™ courts who are
unrepresented but it is certainly several hundred thousand each year. The
essence of the situation was captured by Susanne Dell™s study based on inter-
views with a random sample of 565 prisoners at Holloway prison. The study was
conducted many years ago but it would be surprising if the situation of an
unrepresented defendant today is very di¬erent.

In the lower courts
Susanne Dell, Silent in Court, 1971, pp. 17“19
Many of the women who were unrepresented were seriously handicapped by the
lack of legal help. An inexperienced defendant is at a disadvantage in court even

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