decides which has the stronger case. The one with the more reliable evidence will win. In a criminal case, the state is pitted against the accused. Clearly, there is no equality of status or resources and so there are protections for the accused that help to redress the inequality. The judge will know little about the case before trial nor will he have had access to the evidence beforehand. The accused has the presumption of innocence, the right of silence, the right not to assist the prosecution prove their case, the right to challenge prosecution evidence through cross-examination and the right to appeal against conviction. There are relatively strict rules relating to the exclusion of unfair or prejudicial evidence although the Criminal Justice Act 2003 has introduced certain relaxations. The judge’s role is to ensure fair play, to maintain the rules of evidence and to direct the jury on the law, rather like an umpire. The police will have independently gathered the evidence which will be presented by lawyers or counsel for the Crown Prosecution Service. No trial can occur until the prosecution case and unused evidence has been disclosed to the defence. The defendant will usually have disclosed a brief defence statement concerning the nature and grounds of the defence and notice of alibis and expert witnesses. A search for the truth is played out on the basis of the factual evidence and legal arguments presented by the parties who will be portraying their own side of the truth, the reality of which may exist somewhere in between. The conviction rate in the Crown Court is roughly 56%.
The Inquisitorial System
By contrast, the civil law countries (most of Western Europe) have what is called an inquisitorial system which elevates the role of magistrates and judge at every level. An examining magistrate directs the police investigation and compiles the evidence which is provided to the judges before trial. It is they and not the advocates who question the defendant. There is no cross-examination and the role of the advocates is much reduced. The victim is also represented as a party. Hearsay evidence is tolerated to a greater extent than here. In France, the two highest courts, the Cours d’Assises and Tribunal Correctionel, have conviction rates of between 90 and 95%. A search for the truth is a far more explicit element of the procedure. But the European procedure tends to be slow. France, for example, has been criticised by the ECHR for cases where pre-trial procedure has lasted between four and five years and even thirteen years in one case.
The Criminal Trial
1.5.3
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Certain procedural and constitutional protections that exist in the common law countries, such as the right to silence and the presumption of innocence, are less readily observed under an inquisitorial system. On the other hand, the latter claims to overcome any inequality between the parties by elevating the role of the judges who are far more interventionist. It is generally agreed that the due process protections of our adversarial system are limited in many respects by practical matters. For example, access to experienced solicitors or barristers is dependent on available resources. With recent cuts to criminal legal aid, the supply of both who are willing to take on un-remunerative criminal defence work is dwindling. Legal aid in the magistrates’ courts is now means-tested and there are reports of people just above the eligibility limits being unable to afford to pay privately for representation.
1.5.4
Distinction between Criminal and Civil Proceedings
Criminal proceedings are distinguished from civil proceedings in the following ways: • They are public proceedings brought by the Crown Prosecution Service or other public authority on behalf of the state. Private prosecutions are possible (eg the unsuccessful trial for the murder of Stephen Lawrence). The parents of Charles Jean De Menezes would
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