Adversarial Justice Systems and Learning Disability

Adversarial Justice Systems and Learning Disability

Having been invited to participate in the Open Society Foundation’s London Meeting exploring “Access To Justice For Persons With Disabilities: Building A Knowledge Base” last week, I decided to write this post. It explores the adversarial nature of the UK’s Justice System and the implications of such a system for witnesses and defendants who have cognitive disabilities or differences.

An adversarial system is one where the court acts as a referee between the prosecution and the defence. The whole process is a contest between the state and the person accused where the court takes a non-partisan / largely noninterventionist role. In contrast, an inquisitorial system is a legal system where the court is actively involved in determining the facts by investigating the case. England and Wales, and the majority of ‘Common Law’ countries, have an adversarial system. Civil Law countries, such as France and the Netherlands, have an inquisitorial system. Scotland has a bit of a hybrid system. The possible results can differ too, with an inquisitorial system finding you guilty or innocent of the alleged crime, whereas an adversarial system finds you guilty or not guilty, where not guilty can mean not proven beyond reasonable doubt.

The metaphor of blind justice is meant to convey the image of a system that applies fairly to all - but is this the case with adversarial justice systems and with vulnerable witnesses or defendants, such as those with Learning Disabilities in particular?


Differences Between Adversarial and Inquisitorial Justice Systems

Adversarial System 

Inquisitorial System

  • The adversarial system aims to get the truth through the open competition between the prosecution and the defence.
  • The inquisitorial system generally aims to get the truth of the matter through extensive investigation and examination of all evidence.
  • In an adversarial system parties determine what witnesses they call and the nature of the evidence they give. The court oversees the process by which evidence is given.
  • In an inquisitorial system the conduct of the trial is in the hands of the court. The trial Judge determines what witnesses to call and the order in which they are to be heard.
  • In an adversarial system previous decisions by higher courts are binding on lower courts.
  • There is little use of judicial precedent in inquisitorial systems. This means Judges are free to decide each case independently of previous decisions by applying the relevant statutes.
  • In an adversarial system the role of lawyers is active.
  • In an inquisitorial system the role of lawyers is passive.
  • The Judges pronounce judgment depending on the hearing, evidence or on the basis of examination and cross-examination.
  • The Judge plays an active role for questioning and hearing the parties directly.
  • In an adversarial system the role of the Judges is merely passive in nature.
  • In an inquisitorial system the role of the Judges is very active.


Communication as Combat

In the adversarial system, justice is sought through communicative gladiatorial combat pitching barristers against witnesses and using language as the weapons. This is most reflected in a Crown Court case, where the barristers are the gladiators, the Judge is the neutral emperor and that jury play the role of the crowd – thumbs down for guilty, thumbs up for not-guilty.

The system operates a conflict-based resolution to allegations in which each side collects and presents their own evidence and cross examination is used as a means to comment on the evidence, refute and discredit your opponent’s case. It is therefore less about a testing scrutiny of the evidence and more about the barristers attempts to persuade the magistrate, or judge and jury that their version or perception of the truth is the correct one. It has been described by a QC as “a very unfair contest as a complainant, already unnerved by the courtroom, [is] often no match for skilled and experienced counsel”. The barrister is in a position of power being communicatively adept in their natural environment, whereas the witness is communicatively inept in an alien environment.

So, whilst the adversarial system perceives the right to challenge a witness’s testimony as the keystone of the essence of a fair trial, it is debateable whether it actual fair at all. To be fair, all witnesses, and defendants would need to be equally capable of constructing descriptive narrative, delivering it in a credible manner, and withstanding the rigours of cross-examination designed to identify inconsistencies in that narrative. Thus, the adversarial system is biased towards social competent people with excellent recall and social communication skills.


Communication and Memory Skills

Many people with learning difficulties experience communication problems that affect their ability to understand and respond to questions. They may have a poor ‘working memory’ which can make it hard to process and make sense of complex sentence structures. They may recall memories in more pictorial fashion, and struggle to then put them into words, and those memories may take them a lot longer to recall. These problems can make their descriptions of events sound confused or confusing, idiosyncratic or inconsistent.

Given the gladiatorial nature of cross-examination, weakness is often exploited to highlight inconsistencies and make the witness or defendant appear unreliable. Difficulties in comprehension are thus compounded by the design of the adversarial trial that makes it difficult for a witness to articulate a lack of comprehension in a manner which
does not detract from his or her credibility.

If I was a gladiator manager, I would not choose to put someone who was unlikely to ‘put up a good fight’ and potentially more likely to inflict damage on themselves than on the other person. Similarly, in court, witnesses may be seen as unreliable and not called, even though their testimony can be equally valid if reasonable adjustments are made and special measures taken. Equally defendants may decide not give evidence in their own defense (often at the suggestion of their legal team). They are quite entitled to do this. However, the Criminal Justice and Public Order 1994 (part of Michael Howard’s ‘tough on crime’ policy) states that, provided there is no physical or mental reason why a defendant shouldn’t give evidence, then if they don’t “the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question“. In legal speak, they can take an adverse inference.
In this way defendants with communication difficulties may find that they are ‘damned if they do and damned if they don’t’. Looking at the frequency with which trials involving vulnerable victims do not reach court, compared to those involving vulnerable victims, it would suggest also that witness ability and credibility is not viewed in the same way in each situation.


Useful Links

The Criminal Justice Pathway For People With Learning Disabilities: Challenges And Opportunities For Change

People with learning disabilities and the criminal justice system: Useful information 

Positive Practice Positive Outcomes




About Hugh Asher


Hugh is an author, practitioner, trainer, researcher and consultant.

He keeps rare breed sheep and cows.

He also shares his house with the world’s largest puppy, called Charlie.

Although he was told from a young age that “Life isn’t fair” he has refused
to give up on his goal to make other people’s lives as happy as he can.

His vision for a better world involves giving people the skills and
confidence to make a positive change to other people’s lives.

To learn more about Hugh and the mission of Soma, click here.​




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