Criminal Justice System: Concept and Modes

Criminal Justice System, hereinafter CJS, is a system of law which deals with the arrest, prosecution, defence or sentencing and punishing of the individuals— who are suspected to have violated some penal law.[1] According to Black’s Law Dictionary, it is considered as a network of courts, tribunals and institutions— which deals with the enforcement and adjudication of criminal law.[2] Experts say that ‘criminal justice’[3] is a generic term/noun used to describe the procedure, which is based upon the fundamentals of:

·         Investigation of criminal conduct, by

·         Making arrests,

·         Gathering evidences,

·         Filing charges,

·         Examining witnesses,

·         Raising defences,

·         Conducting trials,

·         Rendering sentences, and

·         Punishing convicts,

In common parlance, it is a system used for the ‘implementation and adjudication’ of criminal law in a particular legal system. Though, the aims and objectives are same, but different countries apply different modus oprendi to ‘implement and adjudicate’ the criminal law. Ordinarily, there are two modes of seeking truth in a CJS, which are—

1.      Adversarial Criminal Justice System, (ADS)

2.      Inquisitorial Criminal Justice System, (IQS)

Before discussing the duo, let’s first make it certain that not even a single system among them is considered as absolute. Both form as a methodology to do the justice, and depend, mostly on the nature of a legal system. That is to say, ‘adversarial and inquisitorial’ criminal justice systems are found in ‘common law’ countries like— England, USA, Australia and ‘civil law’ countries like— France, Spain, Germany.

An adversarial system is a scheme of jurisprudence, wherein a judge, jury or presiding officer comes to a decision in an openly contested (criminal) conflict/controversy among the parties, asserting contradictory positions, during a formal judicial examination loosely called as ‘a trial’.[4] In simple words, it a method of establishing truth by way of structured and well controlled trial through the implementation of definite criminal procedural guidelines. The ultimate dogmatism of this system is akin to moto of a sports game, ‘who wins and who loses’. It is said to have come into existence in 1600s in England; after sixth amendment in USA, and in India after the codification of CRPC, 1898[5].

Take an example of India, state enters into the shoes of a victim and takes an accused to the court where ultimately charges are filed and evidence is produced to prove the guilt or innocence, by way of a contest. In order to give the decision, courts act as a referee, or a non-partisan party between the prosecution and defence. Both parties are given a so called equal opportunity to prove their stand. Same position is in the USA, and other common law countries as well as the most Asian countries like Pakistan, Bangladesh etc.

Critics believe that adversarial system has an inherent flaw of being lazy and slow. It takes years to reach to a decision, and after the considerations like right to appeal/review— years are wasted for the final determination of the guilt/innocence. It is viable to be misused. The party who could afford/engage efficient lawyer has more chances to win, even if it is guilty, in a real sense.[6] Whereas the proponents argue that such a system ensures the impartiality, fairness, rigidity and allows no procedural leakages, or arbitrary discretion to prevail.

As compared to above, an inquisitorial system is an application of criminal jurisprudence wherein a judge investigates the facts, interviews the witnesses, adduces the evidences and renders a decision after a proper application of mind. He doesn’t act as referee, but a judicial officer, whose discretion/satisfaction is most valued for the sake of administration of justice. Most Western European countries have this system in place, and it is said that until the first fall of 17^th century inquisitorial system was prevalent. The criminal trials were unstructured, and defendants had an opportunity to produce their counsel.[7]

The search to carve out the truth, according to the inquisitorial system, needs more active role of the judge. They believe that people have the tendency to manipulate the third person, thus, to arrive a decision— a judge must have everything, from an investigating agency to enforcement authority, at his disposal. It is also said, this system is least influenced by the corruption and is isn’t influenced by bribery.

In order to understand where these two systems are poles apart, let’s go through this comparison:

1.      Nature of Investigation: The ADS aims to get the truth through an open contest between the prosecution and the defence. The IQS generally aims to get the truth of the matter through extensive investigation and examination of all evidence.

2.      Trial: In an ADS parties determine what witnesses they should call, and what evidence they adduce. In an IQS the conduct of the trial is in hands of the court, and a trial judge determines what witnesses to call & order, in which they are to be heard.

3.      Value of Precedents: In ADS previous decisions by higher courts are binding on lower courts. Each case is determined according to its own facts, in an IQS.

4.      Role of Lawyers: The lawyers are known as officers of court. They file litigations, and represent the parties very actively. In an IQS the rule of lawyers is passive.

5.      Role of Judges: The judges pronounce judgment depending on the hearing, evidence or, on the basis of examination & cross-examination, in an ADS. Whereas, the judges, play an active rule for questioning & hearing the parties directly, in an IQS. In the former, the rule of the judges is merely passive in nature, and in latter the rule of the judges is very active. The case management does not depend upon the judges, so the judge’s contribution is very low for the disposal of any case in an ADS. The case management depends upon the judges, so the judges’ contribution is very high for the disposal of any case in an IQS.

6.      Priority: Parties, in ADS, producing the evidence, or witnesses get priority to analyse and examine that in front of the court. In an IQS documents and information about the real facts get priority.

7.      Case Management & Communiqué: Case management doesn’t involve interactions in ADS, and is not effective under this system, because the judges cannot exchange views with the parties for taking any decision. So no initiative can be taken for speedy disposal of any case. Whereas, case management is effective under IQS. The judge sits with the parties. And, can exchange views for taking any decision for speedy disposal of any case. In an ADS, judge has a discretionary power, but that is controlled by the evidence. In an IQS, judges have wide discretionary power. 

After the brief discussion, and arguments, it becomes evident to say that ‘both ADS and IQS are basically a sense of systematic understanding/belief to ensure that an offender shouldn’t escape the clutches of penal procedure, once he has faulted it. A close examination reveals that both systems should be transformed to create a Hybrid Criminal Justice System, wherein the scope of justice isn’t discretionary, but natural, swift, certain and fair too.

 

 

 

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[1] Oxford Languages Definition

[2] https://blacks_law.enacademic.com/6659/criminal_justice_system

[3] https://legal-dictionary.thefreedictionary.com/Criminal+justice+system

[4] https://legal-dictionary.thefreedictionary.com/Adversary+System

[5] The Code of Criminal Procedure, 1898. (Act No. V of 1898). [22nd March, 1898]

[6] ibid

[7] Ibid, https://www.unodc.org/e4j/en/organized-crime/module-9/key-issues/adversarial-vs-inquisitorial-legal-systems.html