Sunday, 29 May 2011

The Inadequacy of Adversarial Justice

Recently I wrote a piece on the failings of the jury system as a way of delivering justice. However, juries are just the secret voting system which decides the winner of a battle between two champions and we also need to consider whether the adversarial court system is the best way of doing things.

It is worth noting that the reason we do things this way is a hangover from the medieval practice of trial by combat. This allowed disputants who were not in a position to physically fight their own cause (women for example) to appoint a champion to represent them. The barrister in a wig with a silver tongue is the equivalent of a knight on a horse with a lance.

In this piece I am only exploring possible improvements in the criminal justice system. In the UK we also have an adversarial system for civil matters where it is often even less appropriate than in the criminal courts.

Neutral third party mediation offers many advantages over the adversarial system in civil matters. It should be less formal and time consuming and my preference would be for it to be run by a private organisation rather that the government. The process involves a mediation that evaluates the circumstances and attempts to come to a fair outcome that benefits all parties that are involved. The outcome is not necessarily a one-sided judgement, so there is not a winner or a loser. Mediation is an excellent process for working through civil matters such as divorce, child custody disputes, neighbour dispute, debt and financial disputes, etc.

Mediation is more desirable than traditional litigation to resolve matters such as custody. The “win-lose” approach of the adversarial system often does not promote the best interests of the child. Private mediators require qualifications in psychology and social work for family or neighbour matters or financial qualifications for debt cases. They have an advantage over most judges because of their training in the specific field. Child custody involves a lifetime of cooperation. As people change over time they can return to the mediator to work through changes that benefit all parties. This can be done in a much quicker manner than in an adversarial court system.

Another advantage to private mediation is the substantial saving to the individuals involved because they do not necessarily need a lawyer to represent them. The taxpayer also benefits because participants must cover the costs of their own cases.

Returning to criminal law, shouldn’t it be self-evident that instead of a battle taking place between prosecution and defence over who can win twelve people to their side, the objective of a court should be to uncover the truth and protect society by ensuring that criminals are dealt with and innocent people do not suffer injustice. Apart from the problem of the outcome being dependent on the the most persuasive lawyer rather than the truth of what happened, the adversarial system also has ‘rules of combat’ which can only get in the way of exposing everything that needs to be known. We could probably agree that an accused person should be presumed to be innocent until they have been found to be guilty of a crime, but why should that include a right to silence? If a person has been wrongfully accused of a crime they ought to be eager to give every assistance in establishing their innocence. Silence from the accused only has the purpose of allowing the battle between the barristers can go on without the defence lawyer having his lance blunted. It has nothing to give to the discovery of truth.

Some might object that a defendant should not be forced to say that he was committing one crime in order to show that he could not have done the one of which he is accused. Why not? More justifiably it might be said that there may be alibi evidence that an accused person is entitled to keep private. Quite so and that is no problem. Although there should be no right to silence, there is also no requirement that all evidence is revealed in open court. If an investigating judge is provided with solid evidence that an accused could not possibly have committed a crime due to a strong alibi, that is all that the world needs to know. The key point is that all citizens have a responsibility to assist the pursuit of justice and an accused person is not excused from that duty.

As with the right of silence, the double jeopardy rule must be discarded. In recent years in the UK a second trial of an acquitted person has been allowed in a few circumstance of new evidence as it is increasingly recognised that dangerous criminals should not enjoy lifelong impunity because of a failed trial. The rule needs to go completely, along with the whole mindset that a trial can be tripped up on procedural challenges and a criminal acquitted unjustly.

So how would an alternative to the battleground court work? The alternative to adversarial trials is usually described as an inquisitorial method. Systems in use vary in their detail, but the basic principle is that crimes brought before the courts are first handled by an investigating judge or magistrate. It is the responsibility of this person to uncover as much evidence as possible about the crime and the possible responsibility for it. When sufficient evidence has been gathered to indicate that a person or persons have a case to answer, charges are laid and the case goes to hearing before a trial judge. The investigating judge will continue to gather evidence, if necessary, right up to trial. All parties are required to provide honest cooperation with the investigator at all stages and there is no right to withhold information. Giving false information or concealing evidence is a crime irrespective of whether it is done by a defendant, the police or lawyers.

When the case comes to trial, instead of examination and cross examination in a theatrical performance before a jury, prosecution and defence lawyers present their case to the judge in a verbal statement to add to the written submission already passed on by the investigating judge. The trial judge can ask questions of anybody involved in the case and if he or she wants to explore the quality of expert evidence or require additional expertise, they are able to do so.

One of the most important aspects is that even if a defendant has confessed or pleaded guilty, the trial must continue until the judge is satisfied that guilt is established or the accused is acquitted. This is an essential protection for people who are vulnerable to police pressure or who have mental difficulties that pre-dispose them to take responsibility for things they haven’t done.

I have referred throughout to the trial judge in the singular, but this is an oversimplification. One judge is satisfactory for cases where the possible custodial sentence is no greater than one year. Where there is a possibility of custody of between one and ten years there should be three presiding judges and for the most serious crimes a panel of five senior judges is appropriate.

Unlike jury trials in which no reason is ever given for the verdict and there is no way of knowing what reasoning the jurors undertook in reaching their conclusion, the judgements in an inquisitorial system must always be supported by written reasons. If the reasoning is faulty that is a basis for appeal.

Related articles

Abolish the Jury System (

Malpoet's Blog

Saturday, 28 May 2011

Original Sin

Through coition came cognition,

so we’re told.

From serpentine perdition,

to the eve of our condition,

is a line of pulchritude.

The serpent was lascivious.

Tempting Eve to coitus,

by offering an apple

to consume.

His squirming, so voluptuous,

slithering, conceptuous,

lured her to

perfidy and sin.

From thus, homo erectus

was hetero in his genius,

until, through nostra damus,

came il papa’s mighty plan.

By immaculate deception,

came the godhead

to reception

as a naked babe in straw.

Lacking sign of all suspicion,

or hint of malefaction,

the lord had sired offspring,

but no genitals engorged.

Through countless generation,

from Adam and creation,

had the genesis of

humankind been drawn.

By fervent copulation,

foregoing masturbation,

the race had been

expanded and preserved.

In coitus emeritus,

no interruption hindered us

and life was passed

by orgasmagic down.

From primeval broth evolving,

through complex myths contriving,

the human creature

comes to speculate.

No! It surely is apparent,

that our knowing was descendant,

and did not come

from falling to a snake.

All the love and joy

in breeding, should be guiltless,

not conceding any merit

to the fantasists of god.

Deus non magnificat,

and coitus cum laude.

Shagging is not sinful,

but bonding beautiful.

Malpoet's Blog

Thursday, 26 May 2011

Abolish the Jury System

It is regularly pointed out that juries have difficulty dealing with the evidence in complex fraud cases. Expert witness evidence is commonly given inappropriate weight by juries, such as in the Sally Clarke case where she was convicted of murdering her baby which had actually died from natural causes. As society, and crime, have become more complicated, trials have got longer and tying up members of the public for weeks and months is not only unsatisfactory for their lives, it means that they are being asked to apply an expertise that they do not have.

The crucial flaw in the jury system is its susceptibility to the public mood. Whenever some atrocity takes place whether it is terrorist mass murder or child rape and murder for example, the pressure to apprehend and convict somebody is intense. This has led to horrible miscarriages of justice. The Birmingham six and the Guildford four are examples in the case of terrorism. Stefan Kiszko's wrongful imprisonment is just one example of the sex murder of a child. (Ref: ). What happens is that the ferocity of opinion conveyed by tabloid media and court gate crowds causes jurors to feel that they must convict and they do convict even if the evidence is weak or suspect. To get a feeling for this, consider the recent murder of Joanna Yeates. Her landlord was arrested and immediately subjected to character destruction and crowds baying for his conviction. Had he been charged at an early stage, the investigation to find the real killer would have ceased and his chances of aquittal would have been minimal. That is despite the fact that there was no evidence to link him to the crime, there was only the circumstance of him having had the opportunity and the prejudice that he was a likely candidate.

In the USA there are large numbers of cases of executions having taken place of people who have subsequently been proved to be innocent or whose convictions were unsafe. There are good indications of racial, class and lifestyle bias playing a part in the jury decisions that sent these people to their deaths.

In recent decades, justice has improved substantially in developed nations. This owes nothing to justice systems which have remained trapped in very poor historic processes. The improvements have come from the emergence of DNA evidence, progress generally in forensics and most of all, the spread of mobile phone video and photography. Without the video there is not a chance that Ian Tomlinson's death would have been examined and the brutal police behaviour given any credibility at all.

Again the US gave us an early and shocking example with the severe beating of Rodney King. This kind of racist assault by police had been common practice and gone without redress until video evidence from the public forced some accountability. (Ref: ).

The origin of juries is when fixed courts and police did not exist. When a crime was committed in a community a jury of responsible people would apprehend a suspect. They put that person in the local lock-up and waited for a circuit judge to come round. The jurors would then tell the judge why their detainee was known to be guilty and the judge passed sentence. This kind of 'trial' would take a few minutes, even when the sentence might be death. It can be seen here that the respectable sounding jury is the equivalent of the posse and lynching where no process exists at all. To that extent it was progress towards justice by due process. It has changed over time, but it can no longer meet the needs of justice.

This has been recognised where very difficult situations exist. For example, from 1973 to 2007 jury trials had to be abandoned in northern Ireland for many cases because the sectarian divide and the influence of paramilitaries meant that it was not safe for jurors and they could not be relied on to overcome sectarian bias. So called Diplock courts were established in which judgement was given by a judge. These courts were phased out as part of the peace process, but trial without jury may still take place in special circumstances. The concern in these cases is of 'perverse acquittals' rather than the wrongful convictions which I have described above.

In grand crimes such as those handled by the Nuremberg hearings of the Nazis or the International Criminal Court and its trials of Charles Taylor and others it is taken for granted that a panel of judges must produce the verdict.

It is time for us to recognise that the evaluation of evidence and the establishment of guilt beyond reasonable doubt requires a degree of skill and objectivity which can only come from professional training and substantial experience. The whole of the lay magistracy needs to be abolished as well for similar reasons.

What is needed is for the summary hearings which are now handled by magistrates to be conducted by a single district judge. Middle range cases carrying potential sentences of between one and ten years custody need to be adjudicated by a panel of three senior judges. Above that level of seriousness the judging panel should be five. The appeal system doesn't need radical reform because juries have no part in it

Moving from a jury and magistracy system to a properly professional system for determining guilt or innocence is only one part of the restructuring the judicial system requires. It is also necessary to move away from the adversarial court system. This is just a continuation of trial by combat and should be discontinued.

Our present theatrical joust of two be-wigged posers competing to see whose eloquence can win the favour of a jury for their client is a pathetically inadequate substitute for a genuine investigation into whether a person may or may not have committed a specific crime. But that is a whole other subject which must wait for now.

Friday, 13 May 2011

The Tour de France

I may be an apathetic person, but its almost time for the Tour de France and you'll find no apathy from me here folks! I am really looking forward to it this year. To many Brits of my age the Tour de France is the sport that ushered the 'slick' presenting skills of Richard Keys into our homes, and introduced us to house hold names such as Chris Boardman and Lance Armstrong. However in the days before every house had sky - let alone sky sports, just about any sporting event that was shown on tv was something to get excited about. Now this may explain why I began watching it, but it does not explain why I have continued to watch it faithfully, every year, since 1993.

The Tour de France spans 21 days of racing, covering more than 2,000 miles of mountain climbs and flat roads, with one ultimate result. Every other sporting event, be it the London marathon, test match cricket match, or the olympic triathlon is brief in comparison. Riders must finish each stage or be disqualified. At least a full quarter of those who start usually can’t finish, as a result of injury or fatigue. None of the other professional stage races in the world are equal to the length and demands of the Tour! It is not only the ultimate test in cycling, it is among the most epic of human endeavors. Even the rider placed last on the final day, dubbed the lanterne rouge, earns ubiquitous respect for merely completing the entire course.

Personally I am nothing more than a amateur hobby cyclist and I average around ten miles an hour. However At the Tour de France level, the average speed, sustained over hours of riding in a day, can be more than 30 miles an hour or more. Mountain descents can hit more than 60 miles an hour! Danger is an obvious, ever present possibility. More than one professional cyclist has lost his life on a road, as was demonstrated this week in Italy by the tragic death of Wouter Weylandt, who was an undeniable talent and a fantastic human being.Very often, when we see cyclists going down descents we fail to realize that they really are like tightrope walkers and sometimes the walkers do fall off the rope. On the Tour de France anything can happen, and it usually does.

Many perceive the Tour de France as an event that is dominated by Europeans due to the success of cyclists like Eddy Merckx, Bernard Hinault, and Sean Kelly. However this is a long way from reality. The great Greg Lemond, the 1986, 1989 and 1990 Tour champion, was a great American pioneer who bucked the trend of European dominance of the event. His 1989 and 1990 victories came after a tragic gunshot accident that left him nearly dead, requiring an amazing recovery. Then there is Lance Armstrong, his comeback from an advanced testicular cancer is one of the greatest inspirations in human history. With Seven consecutive Tour wins from 1999 to 2005, he is without doubt finest cyclist ever.

A true Tour de France fan finds love and appreciation while cycling, often struggling, carried along in disbelief at the achievements of the Tour de France competitors. Last summer I went to the lake district to attempt to cycle up into the hills on my old lightweight Peugeot. It was a dam hot day, however I started the more than two-hour ascent. It was unbelievably steep in the last few miles! So steep that I knew if I stopped I’d never get the bike going again, and walking was not an option. So I kept digging the pedals up the hill, chanting a mantra to myself near the end: “allez! allez! allez!”, as I imagined the old Channel 4 Tour de France theme tune in my mind. When I finally reached the summit, with tears in my eyes from exhaustion, there was only one thought screaming through my head, “I love cycling"!

And here is the original theme from channel, I know my good mate The Rabbit will appreciate this

Why Work?

I'll get the dirt over with before it is thrown at me. I'm an idler, a parasite, a non-voting apathetic moron who defines all that is wrong with a generation. OK? Now that I have no secrets, let us begin.

I wasn't made redundant; I gave up work voluntarily. For me, and people like me, the Protestant work ethic never existed. The problem is that to counter this apparently simple choice not to work, we have against us the whole of industrialised western society, and possibly the east as well.

'So-and-so is doing well for himself'. That sentence will always ring ominously in my ears. I know then, without a doubt, that I am about to be subjected to a catalouge of some imbecile's achievements. It's usualy my mum, who takes sadistic pleasure in gleefully reciting the exploits of Mrs Whatername's progeny. They appear to be under the impression that the result will be to inspire me to reach the top in the business world. Sorry mum, no chance!

It's a confusing situation to be in. On the one hand I do want some of the material wealth which a steady job could bring. On the other hand I already have some treasure of my own. I have empty parks on sunny days, long walks with my dog, the library, watching my village rugby or cricket team play on saturdays, an afternoon pint, the 2.15pm play on BBC Radio 4, peace and freedom. I thought for a long time that I was alone with this attitude towards work, success etc. However, on talking to freinds I have discovered what could be a whole new social movement - a civil society if you will.

There is a swing towards the opinion that work is for donkeys and cowards. Only fools work voluntarily, all the rest are bribed or blackmailed. As a rough guide I would say that single people are bribed and married people are blackmailed.

Lets look at someone who fits into this world in the way expected of him. Bob is an accounts assistant. For six years he has worked faithfully for his employer, and for what? The communting is exhausting and the poor bloke is always overdrawn at the bank. To live up to the image a young working man is required to present, he is forced to live beyond he means......

So why does he do it? He's not a fool, he's like all the others on that morning train; he's scared. The consequences of being a non-worker terrify him.

I can feel only sorrow for those school-leavers scouring those dreadful little machines down at the job centre. They think a job will be the answer to all their problems. Someone has been misinforming them, such dreams they have! The money, the wife/husband, the clothes, a car, a flat! I would point out to them that the drudgery of work, and the agony of labouring, and the unending grind of repetition. Work is not the answer to any problems, not even financial ones.

This may just be sour grapes because I am unemployable. There isn't a job out there good enough for me. There isn't a job good enough for anyone. It never fails to astound me that in this world where so much is possible, and where there is so much to take your breath away, so many are prepared to settle for so little.

It makes my day when I sit outside a high street bar on a hot sunny afternoon. There I am in shorts and a t-shirt, sipping a nice pint and reading the sports page, and there are the beasts of burden. The men all sweaty in their crumpled suits, the girls ridiculous in their heels and trouser suits. Go on, buy that new car, get that 'nice' home. You're quite welcome to it, but it's not for me.

Welcome to OutspokenRabbit

Hiya - it's been a hell of a week - once the Libertarian Party went into a Monday meltdown, I pondered the next move and came to the conclusion that party politics is not really for people who believe in something. Whatever your affiliation, the shit always seems to rise to the top, with the good, decent and well-meaning people left as mere foot soldiers to enhance the ego and standing of one twat or another.

Something you will have noticed straight away is that unlike the sanitised blogs, our commitment to an adult, grown-up debate means yes swearing is perfectly ok on here from both posters and those making comments - it does annoy me how the discussion of everyday issues is filtered in such a way so everyday language is forbidden.

What we're trying to do on here is simple - it's not a question of endorsing one political party or another, or pushing a certain manifesto. A couple of us are committed Libertarians, but this is not a blog exclusively for one set of social or political views. It's about breaking the cycle of tired, centre ground politics that has sent millions to sleep while attempting to steal the independence of the rest of us to think for ourselves. If you've got a nice, safe opinion then go somewhere else!!

Nor is this simply another political blog - it covers current affairs and whatever is in the news, but wanders into other areas such as everyday observation, sport, humour - I just hope that all of our writers and contributors enjoy the site.

Two quick things before I go - the sites I refer you to here - is a superb football site which gave me my break as a writer and I totally appreciate what Rob Paton and Tim Doel did in terms of enabling me to hone my craft. There was no fallout - I just got a bad dose of 'footballitis' and couldn't watch enough to be an expert anymore.

The other is the channel of Bernard Chapin, an outspoken rabbit in his own right from the US - if you're looking to break from conventional wisdom he's a good place to start, and his observations on feminism are (in my view) uncanny.

Many thanks for reading and - enjoy!!