THE Department of Justice argues against a switch from the adversarial system practised in Irish courts to the inquisitorial system in operation in some other countries.
Under the inquisitorial system, a judge can act as an investigator who tries to establish the facts of a case before the trial by questioning suspects and assembling evidence.
The Department recognises that the adversarial system is sometimes seen as "more a contest between opposing lawyers than a search for the truth". But it warns that the inquisitorial system is also questioned in some countries where it is practised, and "in many instances there is evidence of a shift towards a more adversarial system".
It notes that under the inquisitorial system there can be long delays in a case coming to trial, during which time defendants may be remanded in custody.
There are also constitutional concerns. The roles of defence, prosecution and judge are constitutionally separate. Were a judge to have investigative powers also, this could "impinge upon the right of an accused to test the evidence offered against him or her."
The Department also notes that the Royal Commission on Criminal Justice in Britain decided against recommending a change to the inquisitorial system.
The Department recognises that there have been recurring calls for "codification" of the law, which would bring the multiplicity of legislation and judgments together in a more easily understood form.
Codification "would not be easily achieved", the document says particularly if it also encompassed the reforms of existing laws already under way. It would take many years and a lot of resources.
The document notes that an effort towards codification was made in Britain, but even after eight years the project was only partly completed, and parliament did not act upon it.
The document concludes that the Department ought to continue with its existing practice, which is "to tackle, as a priority, the individual areas of criminal law that are most in need of attention and modernisation".