Striking the Balance


Flawed Justice Needs Fix

Government is a trust, and the officers of the government are trustees. And both the trust and the trustees are created for the benefit of the people.

- Henry Clay

We have a court system in serious need of repair.  So has said many an individual ensnared in a legal domain that seems not only incomprehensible but to bear little relation to everyday realities.  Now, encouragingly, similar sentiments have been echoed by the Law Commission.  In a discussion paper, entitled Striking the Balance, it portrays the court system as too slow, too expensive, mysterious and unhelpful.  Indeed, so flawed is the system that the commission says it is debatable whether the principle of justice for all is being achieved.  Such frankness is the hallmark of the Government-commissioned paper, making it a document of considerable public interest.

Underpinning many of the issues raised by the commission is the complexity of the court system.  Serious criminal trials, for example, have become so intricate and lengthy that hardly anyone can afford their own defence.  This means virtually all criminal trials involve legal aid, a situation that raises public scepticism.  Yet in both criminal and civil cases, much time is wasted.  The system does not allow most cases to be distilled to basic issues.  Lengthy periods might even be spent establishing that a crime occurred when that is not in doubt.  As well, both sides are bent on producing "rabbits out of hats" to influence the jury.

The commission is effectively questioning aspects of the adversarial system that has always ruled the roost in our courtrooms.  It asks whether cases could be speeded up by early disclosure of evidence, so both sides would enter a trial knowing each other's strengths and weaknesses.  This implies a shift, however subtle, towards the French system, which is based on the search for truth.  This would be sensible.  The adversarial system can remain the backbone of our court system, but it need not be so all-embracing that it produces needless delays and confusion.

The discussion paper also asks whether people should be allowed to have a lay person represent them.  This could lead to lower costs, especially as another of the commission's suggested remedies to barriers to justice - that lawyers charge lower fees - will never take flight.  But having untrained representatives in court would create more problems than it would solve.  As the commission suggests, judges may feel compelled to help poorly represented people in the interests of a fair trial.  That would heighten the risks of an appeal, and yet further delays.

There need, however, be little debate about the commission's questioning of the way in which some courts and tribunals, such as the Family Court, are closed to the public.  We know nothing of the working and effectiveness of these courts because of the policy of secrecy.  That mocks the principle that justice must be open.  As the commission suggests, orders prohibiting publication of certain information could be used in such courts, rather than an all-encompassing exclusion of the public.

Such is the value of the commission's work that it seems almost carping to criticise.  But the public have been given only two months to make submissions on the paper.  On a matter of such fundamental importance and interest, it would have been better to allow three months.  Then there could be no accusation of insider capture when the commission presents its second paper, suggesting options for reform, and its final report next April.  The public must have every opportunity to have a say in making justice fairer, faster and less expensive - especially those who no longer feel equal before the law.

Source: 10 May 2002

It is very difficult to devise a legal system whereby justice doesn't equal money (the more money you have available, the more chance you have of the outcome swinging in your favour).  By this I don't mean to imply the existence of something like bribery or corruption but that better lawyers do better jobs - and generally charge more money.  If a more suitable system were obvious, I presume it would be widely in use.  Perhaps legal insurance could help - rather like an HMO: if you could convince a board of the validity of your claim, you would be assigned a lawyer paid for by the insurance company.  This lawyer's remuneration would be significantly increased if he wins.  It seems to me that a machine that could absolutely tell if the speaker were saying the truth would help keep costs down.  But that's not available.  Yet.

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