Opinion: Adversarial or Accusatorial Legal System: The Role of a Judge in the Common Law Adversarial System Generally
By P.L. Kabia, Esq.
In Sierra Leone, the common law forms part of our sources of law pursuant to Section 170(1)(e) and (2) of the 1991 Constitution (Act No. 6). The common law of Sierra Leone includes the rules of law generally known as the common law, the doctrines of equity, and the rules of customary law, including those determined by the Superior Court of Judicature as provided under the aforementioned provisions.
Section 74 of the Courts Act 1965 (Act No. 31) provides that the common law, the doctrines of equity, and the statutes of general application in force in England on January 1, 1880, shall be in force in Sierra Leone, subject to the provisions of the 1991 Constitution (Act No. 6).
The common-law mode of trial is often described as an "adversary or accusatorial system," as distinct from the continental "inquisitorial" method. The essence of the distinction is that while the court plays the dominant role in an inquisitorial system, the parties or their legal representatives play the primary role in an adversary system.
In the adversary system, as practiced in Sierra Leone, the judge is expected to remain a passive and largely silent umpire, listening to the evidence produced by the opposing parties. The parties decide which witnesses to call; if both sides decide not to call a witness who possesses potentially relevant evidence, the court will not intervene.
In an adversarial legal system, the burden of preparing and presenting the case falls on the parties themselves or their counsel. Consequently, a party appearing without a lawyer is at a distinct disadvantage.
The function of the judge is to hear both sides and deliver judgment, rather than to direct the gathering of evidence, dictate the issues, or attempt to effect a settlement between the parties. By contrast, in an inquisitorial system—such as that of France—the judge calls and examines the witnesses, while the parties and their lawyers play a supporting role.
Legal Issues
While several legal issues surround this topic, for the purpose of public policy considerations, I proffer an opinion on the following key questions:
The role of a common law judge in an adversarial system.
The legal effect of judicial over-involvement in the adversarial legal system.
The mixed or hybrid legal system and its application in Sierra Leone.
Documents Reviewed
In formulating this opinion, I reviewed the following authorities and texts:
The 1991 Constitution of Sierra Leone (Act No. 6).
The Courts Act 1965 of Sierra Leone (Act No. 31).
Penny Darbyshire, Nutshells: The English Legal System (3rd ed.).
P.F. Smith & S.H. Bailey, Smith and Bailey on the Modern English Legal System (2nd ed.).
Michael Zander, Cases and Materials on the English Legal System (7th ed.).
Jones v. National Coal Board [1957] 2 QB 55 (CA).
R v. Perks [1973] Crim LR 388.
R v. Gunning [1980] Crim LR 592.
R v. Ptohopoulos [1968] Crim LR 52.
R v. Hamilton [1969] Crim LR 486.
Prof. Lovemore Madhuku, Lectures on the Common Law Adversarial Legal System.
Legal Opinion
In evaluating this topic, I analyze the governing legal framework and its practical application within the Sierra Leonean legal system, drawing upon common law doctrines and constitutional provisions.
The Statutory and Constitutional Framework
Under Section 170(1)(e) and (2) of the 1991 Constitution (Act No. 6), the sources of law in Sierra Leone include the common law. This comprises the general common law, the rules of equity, and customary law rules as determined by the Superior Court of Judicature. Furthermore, Section 74 of the Courts Act 1965 (Act No. 31) provides that the common law, doctrines of equity, and statutes of general application in force in England as of January 1, 1880, apply in Sierra Leone, subject to constitutional supremacy and domestic enactments.
English common law serves as a foundational source of law in Sierra Leone, functioning primarily through judicial precedent under the doctrine of stare decisis. This system relies heavily on the adversarial model, where the burden rests on the litigating parties to prove their claims. The judge sits to observe the presentation of the case and ultimately determine whether a party has satisfied the applicable burden and standard of proof.
The Role of a Common Law Judge in an Adversarial System
In an adversarial system, the judge is meant to serve as a passive and largely silent umpire, hearing the evidence introduced by the competing parties. The primary judicial function is to listen to both sides and render a decision—not to direct evidence gathering, define the cause of action, or compel settlement.
The system rests on the foundational premise that an impartial judge ensures procedural fairness and adjudicates based strictly on the evidence and arguments submitted by counsel. In Sierra Leone, the judicial mandate is not to advocate for any position, but to manage proceedings, interpret the law, and uphold fundamental due process.
Truth in an adversarial setting is sought through competitive advocacy rather than a single judicial inquiry. The judge acts as a neutral arbiter, balancing opposing claims while enforcing statutory rules, evidence laws, and constitutional protections. Essential principles include strict neutrality, enforcement of fair procedure, and restraint against judicial overreach. Judges must resist political or public pressures to maintain a balanced forum for all litigants.
During trial, the judge establishes the evidentiary boundaries, oversees witness examinations, and ensures the orderly progression of the matter. Judges rule on interlocutory applications, determine the admissibility of evidence, and control courtroom decorum to maintain efficiency and prevent undue prejudice.
Judges maintain rigorous procedural control. They supervise jury selection (where applicable), instruct juries on the law, and safeguard the integrity of the process against coercion or misconduct. In criminal proceedings, the judge must actively protect constitutional rights—including the presumption of innocence and the right to a fair hearing—while balancing the public interest in justice.
Impartiality remains the cornerstone of public trust in the judiciary. A judge must disclose any potential conflicts of interest and recuse themselves where necessary to prevent even the appearance of bias. Adjudication requires an open mind, free from preconceived notions, grounded entirely on the admissible evidence.
Procedural due process guarantees predictable and fair hearings. Judges ensure that all parties receive adequate notice and a meaningful opportunity to present their defense. In criminal trials, this encompasses the right to cross-examine witnesses, access legal representation, and seek appellate review. In civil matters, it guarantees equal treatment and transparent deliberation.
Judicial rulings must reflect clear, logical reasoning, applying established legal standards to the factual findings while demonstrating fidelity to statutory provisions and binding precedent.
Communication inside the courtroom is equally vital. Judges must foster respectful dialogue, manage attorney conduct, and keep litigation focused on relevant issues. Clear and reasoned interlocutory rulings allow counsel to adapt their trial strategy effectively. Where applicable, judicial instructions must translate complex legal frameworks into accessible guidance for jury deliberation.
Judges also oversee case management and court administration in coordination with registry staff. In complex litigation involving technical or specialized fields, the court may receive expert testimony while remaining vigilant against over-reliance on technical experts or unvetted evidence.
The Legal Effect of Excessive Judicial Intervention
In Jones v. National Coal Board [1957] 2 QB 55 (CA), Lord Denning MR emphasized that "the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large." Lord Greene MR similarly observed that justice is best served when a judge holds the balance between contending parties without participating in their advocacy; if a judge descends into the arena, they risk "dropping the mantle of a judge and assuming the robe of an advocate."
Lord Chancellor Bacon famously remarked, "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal." In R v. Gunning [1980] Crim LR 592, a conviction was quashed after the trial judge asked 165 questions. The appellate court noted that excessive interruptions create a risk of a denial of justice, emphasizing that the critical test lies in the quality and impact of the judicial interventions rather than their number alone.
In R v. Ptohopoulos [1968] Crim LR 52, the court noted that appellate courts will not intervene solely due to judicial discourtesy toward counsel. However, as Lord Parker CJ affirmed in R v. Hamilton [1969] Crim LR 486, conviction will be overturned where judicial intervention becomes excessive and prejudicial. On questions of law, the adversarial system requires the bench to adjudicate strictly within the parameters of the arguments presented by the parties.
Exceptions to the Adversarial Rule
There are recognized exceptions where the court is not confined strictly to passive oversight:
Prosecution Disclosure Obligations: Criminal procedure rules require the prosecution to disclose material evidence that may undermine its case or assist the defense.
Actions Sua Sponte: Procedural rules empower the court to act on its own motion in specified circumstances, such as striking out improperly joined parties, ordering the joinder of necessary parties (subject to consent requirements for plaintiffs), or amending pleadings to resolve the true matters in dispute.
Professional Conduct Rules: Ethical rules limit party autonomy by prohibiting counsel from misleading the court or engaging in dishonest tactics.
Note: Pre-trial settlements and guilty pleas frequently resolve disputes outside the full machinery of the adversarial trial.
The Hybrid Legal System and Its Application in Sierra Leone
Mixed legal systems represent a dynamic convergence of legal traditions, blending elements of common law, civil law, and customary law within a unified national framework. This hybrid structure reflects a nation's historical evolution while shaping its modern legal administration.
Hybrid jurisdictions integrate distinct legal doctrines arising from historic interactions among diverse legal cultures.
In Sierra Leone, Section 170(1) of the 1991 Constitution (Act No. 6) specifies the recognized sources of law, comprising the Constitution, parliamentary enactments, statutory instruments, existing laws, and the common law (including customary law rules).
Conclusion
In my view, Sierra Leone operates a dual or hybrid legal framework combining common law, statutory law, and customary law. In such systems, judges play a central role in harmonizing diverse traditions to ensure coherent and equitable adjudication.
Their primary duty is to navigate and reconcile these interrelated legal sources. Judges must analyze and apply principles across traditions, carefully balancing potentially conflicting methodologies.
In doing so, they exercise structured judicial discretion, providing necessary flexibility across varied factual contexts.
Judicial adaptability is essential to achieving justice when statutory provisions require contextual interpretation or conflict with local practices. In practice, judges navigate this duality by enforcing statutory enactments while applying persuasive and binding precedents where appropriate.
Furthermore, judges in a hybrid framework must remain sensitive to the socio-cultural context influencing legal interpretation. By applying customary and indigenous norms alongside formal statutes, the judiciary balances modern legal standards with traditional customary practices.
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