Introduction
The term “inquisitorial,” in a legal context, describes a mode of procedure where the adjudicating body, often a court or tribunal, assumes an active role in investigating the facts of a case. This contrasts with an adversarial system, where the parties themselves present evidence and arguments. Inquisitorial processes place the responsibility on the court to gather information, question witnesses, and assess evidence, rather than relying solely on the parties' presentations. A core principle in such systems is that the court determines the truth of the matter through its investigation. Key requirements for an inquisitorial approach include judicial impartiality, a comprehensive investigation, and the application of legal standards to the facts as established by the court. The system also needs clearly defined procedures to ensure fairness and avoid bias.
Defining the Inquisitorial Role in Legal Proceedings
Inquisitorial systems are characterised by an active judiciary responsible for fact-finding. This responsibility extends beyond simply evaluating arguments presented by opposing sides. The judge directs the investigation, questions witnesses directly, and may order the production of additional evidence. This active role allows the court to seek out the truth independent of party strategy, often utilising legal mechanisms to procure evidence. Such mechanisms might include subpoena power, the use of experts, and direct interviews with relevant persons. Unlike an adversarial system, the judge does not act as an impartial referee but as a key investigator. The aim is to ascertain the objective truth through meticulous and court-led investigation, placing a higher degree of responsibility on the judiciary.
Precedent Facts and the Inquisitorial Role: R (CJ) v Cardiff City Council
The case of R (CJ) v Cardiff City Council [2011] EWCA Civ 1590 provides a clear example of a court performing an inquisitorial function in determining a precedent fact. In this case, the claimant sought housing under the Children Act 1989, claiming to be a child under 18. The court was tasked with determining whether he was indeed a child at the time of his illegal entry into the UK. The High Court initially placed the burden of proof on the claimant, who was unsuccessful.
However, upon appeal, the Court of Appeal clarified its role as not merely reviewing party evidence but as determining the precedent fact independently. Citing R (A and M) v Croydon and Lambert Borough Councils [2009] UKSC 8, Pitchford LJ stated that the question of whether a person is a child under section 20 of the 1989 Act is a precedent fact for the court to determine. Importantly, the court concluded that “[n]either party is required to prove the precedent fact. The court, in its inquisitorial role, must ask whether the precedent fact existed on a balance of probability." The court was not limited to the evidence presented by the claimant or the defendant, but rather it had an active duty to investigate and determine the facts. This case illustrates that even within a common law jurisdiction, elements of the inquisitorial function can be present when a court must establish foundational facts necessary for the legal resolution of a case.
Inquisitorial Elements in Tribunal Systems
Administrative tribunals frequently exhibit inquisitorial characteristics, which contrasts with adversarial court procedures. Tribunals, established by statute to resolve specific disputes, often require an active approach to gather pertinent information. As highlighted by Curzon, tribunals operate outside the standard court hierarchy, handling cases in fields where specialized expertise or unique procedures are required.
In the UK, the unification of the tribunal system under the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) has standardized some aspects of procedure, while retaining the specialist expertise. First-tier tribunals, for example, frequently apply a more inquisitorial process due to their role as direct fact-finders from decision-makers, such as from government departments. The tribunal may actively seek information and question parties to ascertain the facts, as opposed to simply evaluating submissions. Such practice promotes a more direct and often more efficient form of dispute resolution. While tribunals are not traditionally bound by strict rules of evidence, they are expected to maintain minimum standards, with some following inquisitorial procedures to uncover truth rather than merely presiding over adversarial arguments.
The Leveson Inquiry: A Hybrid Approach
The Leveson Inquiry, which investigated the ethics and practices of the British press, exemplifies a quasi-inquisitorial model in a public inquiry setting. It did not operate as a typical court case with opposing parties, but as an inquiry aimed at a public interest. The inquiry sought to establish facts about the behavior of the media through evidence collection and direct questioning of witnesses, placing Lord Justice Leveson as the lead investigator. Although not a judicial process, it demonstrates an inquisitorial approach where an investigator, appointed by the state, directs the investigation, rather than relying solely on the contentions of opposing sides.
The stated purpose of the inquiry, which arose due to actions of News International, was to address systemic issues within the press, and to propose reforms that balance the freedom of the press and the rights of individuals. Evidence given by individuals such as Charlotte Church illustrates the detailed nature of the investigation. The inquiry's format involved direct questioning, evidence analysis, and a final report detailing the facts and recommendations, which mirrors an inquisitorial style of procedure. The inquiry's approach showed that a hybrid of investigative methods can be used to uncover facts and inform policy, while operating outside the traditional adversarial court structure.
Balancing Inquisitorial and Adversarial Systems
The application of inquisitorial methods in common law jurisdictions, which are mostly adversarial, presents challenges and calls for careful balance. While adversarial processes promote fairness by presenting multiple sides of a case, inquisitorial methods focus on uncovering the factual truth through active judicial participation. The R (CJ) v Cardiff City Council case exemplifies how common law courts can assume an inquisitorial role in specific circumstances, particularly when determining precedent facts.
To ensure a fair legal procedure, the blend of adversarial and inquisitorial elements requires a strict definition of the court’s role. When judges take an active part in seeking evidence, clear standards are needed to avoid bias and guarantee impartiality. Furthermore, robust mechanisms for appeals are necessary to mitigate any potential problems arising from judicial investigation. The adoption of inquisitorial elements is contingent upon clearly defined procedural frameworks within the legal system. The balance between the two systems remains a key consideration in modern legal practice.
Conclusion
The term "inquisitorial" refers to a legal process where the court assumes an active investigatory role, contrasting with the adversarial model where parties lead the presentation of evidence. Inquisitorial processes prioritize the court's responsibility to discover the truth by actively gathering evidence and questioning witnesses, with R (CJ) v Cardiff City Council serving as a case where common law adopts this approach to establish precedent facts. The tribunal system in the UK also incorporates aspects of the inquisitorial approach, with a central objective of ensuring fair resolution of disputes within specialized areas of law. Public inquiries, like the Leveson Inquiry, also showcase how investigative methods can lead to the uncovering of information to inform policy. Balancing inquisitorial and adversarial principles is important for promoting fairness and ensuring access to justice. The blend of these systems requires rigorous procedural mechanisms to maintain impartiality and avoid bias, thereby upholding the rule of law.
