The Adversarial System Flashcards
Where did we inherit the adversarial system from?
We inherited our adversarial nature of adjudication from Britain.
What is an adversarial system?
Two opposing sides who argue their case in a court presided over by a third neutral party (eg a judge).
one side will win, one wide will lose.
What are the standards of proof in an adversarial system?
Civil - on the balance of probabilities,
Criminal - beyond reasonable doubt
The role of a judge in an adversarial system:
remains impartial and objective;
is a passive role;
a decision maker;
little control over evidence produced and witness called - minimal power in procedural justice
Procedural protections in our adversarial systems:
- impartial decision makers (to avoid bias)
- high standards of proof
- rules of evidence/standing
- value on presumption of innocence
What are some non-adversarial methods?
- tribunals (informal, rules of evidence don’t apply, specialist bodies for particular area of law)
- ombudsmen (independent person who investigates complaints between parties)
- alternative dispute resolution (negotiation, collaborative law, mediation and arbitration)
Advantages of an adversarial system?
1) fair and less prone to abuse by state bias
2) emphasis on the rights of d and p
3) allows parties to support their decisions (witness, evidence, challenge arguments)
Disadvantages of an adversarial system?
1) sets parties up to contest with each other
2) injustice as lots of case are settled, not litigated
3) judgements compelled by argument instead of evidence
4) accessibility - cost
Advantages of an inquisitorial system?
1) no lawyer advantage
2) eliminates emotionally driven judgement
3) one legal expert - untainted decision rather than fancy flowery arguments
4) state bears cost
5) relaxed, informal, less complicated
6) efficiency
7) private nature
8) win win approach
Disadvantages of an inquisitorial system?
1) chance of bias
2) lengthy - court uncovers information instead of party
3) limited opp to defend self
4) not binding
5) not appropriate for some circumstances, eg domestic violence
6) no procedural safeguards
Why is access to justice important?
1) upholding rule of law/democracy
2) enable people to protect their rights against infringement
3) allows party to bring action against government to limit executive power/ensure accountability from gov
what is access to justice?
1) equal access to legal services
2) correcting structural inequalities within the system (eg procedural)
3) preventing disputes from occurring/escalating (use of non-adversarial)
4) competition policy (cost, legal profession rules)
What are the barriers to access of justice?
economic factors
lack of information/knowledge of system
geographical access
delays (opportunity & emotional cost)
Is there a right way for people to access to justice and solution to legal disputes?
no. results of the Access to Justice report by Attorney-General shows that individuals may achieve greater outcomes through self help mechanisms/inquisitorial services. Therefore, access to justice must be multifaced to cater for different needs.
