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.

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  1. Some interesting points - would profoundly disagree with you about double jeopardy though. Enabling people to be re-tried over and over for the same offence surely opens the door to state persecution under the guise of due process? It also takes away the finality of a 'not guilty' verdict that enables the genuinely innocent to move on with their lives.
    Would you have a limit on how many times someone can be tried, or would the authorities get as many cracks as they wanted?

  2. My response to the comments of Tom Paine and Daz Pearce:

    “As a libertarian, you might like to think about the reality of finding an alternative to the “people’s justice” of juries.”

    Freedom under the law is the opposite of people’s justice. As a libertarian I reject the posse and the lynch mob in favour of justice based on factual evidence and separation of the judiciary from the state. Of course juries are not hysterical or vengeful gangs, but they are unskilled in assessing evidence. Jury deliberations are secret and any aspect of criminal justice that is concealed is unsatisfactory and contains dangers. So long as this stays in place, appeal is not even a protection for a wrongly convicted person because the decision made by the jury cannot be challenged on appeal unless in can be shown to be perverse in law rather than simply wrong.

    “You would be trusting employees of the state in a way I suspect you would find hard in other contexts.”

    As I say above, justice depends on separation of powers in which the judiciary is independent of the executive and legislative arms of state. One of the ways of strengthening the separation that I would support is to have the courts privately owned and the judges self employed. At one time many people in this country thought that prisons had to be state owned, but many are now privately owned and run. General Practitioners, barristers and solicitors are self employed. Medical practice and legal chambers and partnerships have many similarities with the needs of judges and their administrative support.

    “truth is not nearly as easy to determine as most people imagine as they happily make snap judgements on the basis of press reports as to whether verdicts were right or wrong.”

    No it isn’t, and it remains difficult for a lay jury to determine the truth after a trial. In many cases they will have been presented with expert or scientific evidence which is very difficult to understand and whose weight they have absolutely no training or experience in assessing. There are masses of examples of this, but two high profile examples are Sally Clarke where an expert gave bad statistical evidence that was very influential and the Birmingham six where the scientific evidence of explosive residue was wrong, but given excessive importance. It is possible that judges would have made mistakes in these cases as well, but because they would have given written reasons for their judgement including the weight accorded to the unsafe evidence, correction of the error should have been much quicker.

    “There’s a big – and very important – difference between “widely thought to be guilty” and “guilty”.”

    There certainly is. Joanne Yeates’ landlord was thought to be guilty by much of the tabloid media and it was enough for crowds to turn out and bay for his blood. This is common and it cannot help but influence juries when the cases come to court. In the Yeates case the wrong suspect was not charged, but if he had been a more vulnerable person, like Stefan Kiszko, he might well have been in gaol by now.

    When Kenneth Noye killed a policeman in his garden and was acquitted on a surprising self defence verdict I think there was justifiable public doubt about the decision. Noye was a powerful man and that is sometimes the problem. Fame has similar consequences, as in the cases of O J Simpson and Michael Jackson. There is no way of knowing how influenced the jury may have been by extraneous factors in these cases.

  3. “As for your dismissal of the civilisational milestones of the right to silence and double jeopardy, I really counsel you to study them more closely. One day (God forbid) you might find them your protections. I am sickened by the extent to which they have already been eroded in Britain and saddened to see a fellow libertarian advocating their abolition.”

    “would profoundly disagree with you about double jeopardy though. Enabling people to be re-tried over and over for the same offence surely opens the door to state persecution under the guise of due process? It also takes away the finality of a ‘not guilty’ verdict that enables the genuinely innocent to move on with their lives.
    Would you have a limit on how many times someone can be tried, or would the authorities get as many cracks as they wanted?”

    To these two I would add the concealment from the jury of past history of charges and convictions of an accused person. I do not accept that these procedural devices are legitimate protections for innocent people. They are rules of combat which are supposed to provide a ‘fair’ battleground for the contending counsel to engage each other.

    It is true that double jeopardy and non-disclosure of criminal history have been reduced in recent years because of the extent of concern at what were regarded as perverse acquittals. Juries are also now allowed to draw inferences from the decision to remain silent by an accused person. I don’t believe this makes any real difference. However much juries may have been told to disregard silence in the past I doubt that they will have been able to do so.

    I do not accept that these rules are gains of of civilisation. A good society certainly protects the innocent from wrongful conviction, but it also ensures that the population are well protected from crime and it is a mark of civilisation to ensure both.

    Many of us will recall instances of a person being acquitted of a very serious crime and their history of having been previously convicted of similar crimes is revealed after the trial. This doesn’t mean that they were improperly acquitted, but it does mean that the inference of good character within which the jury assessed what they were told in the trial was a false one.

  4. I think I have already addressed the right of silence in my previous post so I won’t labour the point other than to reiterate that an accused person has just as much obligation to assist in uncovering the truth as all other participants in the investigation crime and pursuit of justice.

    I cannot see any merit in the double jeopardy rule and I am glad that it has been limited. In the first case after the change in the law William Dunlop was convicted of murder after having previously being acquitted following two inconclusive trials. Mark Weston is another murderer who has now been convicted after first being found not guilty. The law was changed as a consequence of enquiry into the Stephen Lawrence case and one of the original defendants in that case is now to be re-tried.

    It is not possible to repeatedly bring an acquitted person back to trial. There is a requirement to show new and compelling evidence to apply for consent for a new trial and it can only be done for serious crimes in which a wrongly freed person may represent a danger to the public. The genuinely innocent cannot face the risk of new and compelling evidence emerging and should not be fearful of being tried again.

    As for the possibility of state persecution we have to put in place better separation of powers than we have now and this is not really a problem of double jeopardy, but about better control of state interference across the board. In an inquisitorial system those lawyers, like Gareth Peirce and Michael Mansfield, who specialise in the defence of those who they regards as being targets of the state will still be able to act for this type of defendant. The difference will be that instead of the dramatic environment of the adversarial courtroom their advocacy will take place in the quieter context of submissions to experienced judges. However, the process will be fully open to the public.

    I find it interesting that in Australia and North America there has been a lot of good quality debate about improving justice systems, and in parts of both countries there has been a move towards replacing adversarial processes by mediation in civil matters and inquisitorial methods for the criminal law. In this country there is no equivalent debate and tinkering with the present system has given rise to disquiet about the perceived erosion of historic protections.