ABSTRACT
Traditionally, the adversarial paradigm has granted criminal advocates a considerable freedom in how they present their cases at court, and the manner in which they question witnesses. This freedom is not, however, unfettered. The conduct of the advocates, and the way in which evidence is elicited from witnesses, is subject to the oversight of the trial judge. However, judicial intervention is not regarded as a feature of the adversarial system, since control of the trial and evidence rests with the parties. Whilst the judge has a role in ensuring that proceedings are conducted in accordance with the rules of evidence and procedure, he or she will generally refrain from intervening when witnesses are being questioned by counsel. As Lord Denning famously stated in Jones v National Coal Board:489
The adversarial model of justice dictates that the decision-maker, whether judge or jury, must rely on the parties exclusively for all the material facts.491 Proactively seeking further information outside what the parties were presenting would heighten the risk of perceived partisanship. Indeed, an overly interventionist judge thus runs the risk of not just appearing to be partial to one side, but also of having a conviction overturned on appeal.492 This danger was recognised by the Court of Appeal in Sharp:493
While the role of the trial judge as an impartial and neutral umpire is often regarded as fundamental to the adversarial process, questions remain as the degree to which practice reflects theory.495 For example, judges occasionally exercise common law powers to question witnesses themselves,496 and may even call witnesses of their own motion.497
They are also under a duty to intervene in order to prevent over-zealous or protracted cross-examination of an offensive or oppressive nature.498 However, in contemporary criminal practice, the primary role of the judge lies in overseeing the enforcement of evidential and procedural rules. By contrast, the parties in the trial hold a nearcomplete autonomy to gather, select and present evidence before the tribunal of fact. The commencement, conduct and termination of proceedings rest largely in their hands. They will decide which facts are in issue and which are not, which proofs to generate and which witnesses will be called to aid them in the pursuit of victory. The high level of party control is not really surprising, given that the opportunity to present one’s arguments and then confront those of the opposing party lies at the heart of the adversarial process.499
