Legal Justice in England and Wales - Essay Example

The legal system obtaining in England and Wales is based upon the adversarial system of justice this is in marked contrast to the system prevalent inthe Netherlands and Germany, which is inquisitorial. In an adversarial system the trial is reminiscent of a combat between two warring parties and the “relationship between the prosecutor and the judge is distant and hierarchically separated with a judge as neutral but passive referee1. Despite the action of the courts were by the qualities of an accusatorial system to adversarial adjudication the latter is founded on sharing of responsibilities amidst the decision maker and the contesting parties. In such a system a decision is arrived at by a neutral decision maker on the basis of the details furnished by the parties. In respect of criminal cases two decision makers will be present, namely the judge and the jury; the duty of the former is to decide on the legal aspects whereas the duty of the latter is confined to factual issues.2 Moreover, the large number of legal commentators has designated the Australian and American legal systems as being adversarial legal systems. “Such classification is made because the primary and dominant legal procedure in this system is adjudication on legal disputes defined by the parties who bring those disputes to court for adjudication”3. The adoption of an adversarial system in England has been attributed to first, the practice of compurgation. This practice was an Anglo-Saxon defence in which several persons were made to testify in respect of a person’s innocence and second, the culmination of the extant English legal procedures like trial by jury and private prosecution4. In respect of the adversarial system of legal justice, Baroness Kennedy of The Shaws stated that, I believe strongly that our adversarial process is the most effective way of trying criminal issues. However, the legal system has begun to recognise that pure adversarialism does not always produce justice, and more effort is now going into establishing areas of consensus between prosecution and defence. For example, judges are reining in needless, destructive cross-examination which puts people such as rape victims on trial, and procedures are being invented to prevent ambush tactics which involve one side taking the other completely by surprise5. The English legal system is primarily adversarial in composition. In this system resolution of issues is achieved by means of argument between the disputing parties in the presence of the presiding judge. This organization is methodical but costly and a considerable amount of time is taken in deciding cases. This system also entails the involvement of a significant number of professionals, like solicitors, barristers, expert witnesses and a presiding judge. The issues in dispute are treated to lengthy debates and subjected to rules that vary amongst the different courts. The legal procedure is subject to widespread disagreement in interlocutory proceedings and in addition the system does not lend itself to straightforward management. Moreover, the scheduling of a case is determined, to a major extent by the opposing lawyers. Further, the exact date when a case will be ready for hearing is very difficult to predict. In addition, it is an onerous task to decide as to how long the trial of a case will last. Therefore, in practice, all efforts are made to ensure that the valuable time of the judges is fully utilized. Lord Woolf conducted an analysis of the civil court system, in respect of its present organization and management and recognized several important subjects; some of these are dealt with in the sequel. First, the issue of disproportionate delay in the progress of several cases and the reason for this extreme delay is mainly due to the existence of complicated procedures and the delay caused by lawyers. Second, the exorbitant cost incurred in bringing or defending a legal action, not only in absolute terms but also in terms of the magnitude of matter under dispute. The reason for this high cost of litigation can sometimes be attributed to tactical reasons involving elaborate and unreasonably intricate procedures, by the amount of lawyers fees. Third, the unwarranted convolution of the procedures adopted by the law and the court are major factors that result in escalating costs and postponements. Fourth, the complexity of legal and procedural requirements necessitates the compulsory employment of lawyers. Fifth, the ambiguity in respect of the amount of time and money that would be necessary for the resolution of the case can operate as a serious deterrent against the commencement or continuation of a case that would otherwise be valuable. Sixth, there is a measure of unfairness in this system in as much as that a financially better off party can take advantage of delay, expenditure and ambiguity to dissuade a weaker adversary from pursuing a meritorious case. In addition to recognizing these issues inherent in the civil court system, Lord Woolf also put forth a considerable number of proposals to deal with these predicaments. The quintessence of the solution proposed by him is that there should be a larger measure of control by the court in respect of the conduct and progress of cases in order to guarantee that they are dealt with in a manner commensurate with the cost and significance of the issues concerned. In order to achieve this objective, it is essential for power to be relocated from lawyers to judges. The recommendation is for a restricted judicial administrative function, buttressed by a cohesive set of court rules and that the judges should apportion cases to different tiers or tracks, and vigorously supervise the cases involving complexity. The detractors to these proposals have been vociferous in their contention that, “the intended changes are unlikely to be delivered in practice, because they cut against the deeply ingrained culture of lawyers and judges; if the changes do materialize, they will not have the desired effect; cost and delay will, if anything, be increased; and the quality of justice would be reduced6.” Negotiation constitutes a very ancient and much employed system of dispute resolution and in the opinion of several authorities, mediation is considered to be the same process as negotiation. The area encompassed by dispute resolution has been extended due to the enhanced interest displayed by many parties in the process of alternative dispute resolution or ADR. This ADR is of several types and some instances of it are early neutral evaluation, conciliation and arbitration. Mediation constitutes a specific type of ADR, which in respect of housing disputes has had significant success. Basically, mediation entails “a neutral third party with no power to impose a resolution help[ing] the disputing parties to reach a mutually acceptable settlement.”7 This idea of mediation has many adherents, who have announced its benefits in comparison to court-based adjudication. One such advocate has been Lord Woolf who extolled the use of ADR. He made these recommendations in his several reports on Access to Justice, which resulted in the adoption of several reforms to the civil procedures contained in the Civil Procedure Rules 19988. However, mediation has to be kept in perspective and the fact remains that it has its detractors. The process of mediation has gained several supporters due to the fact that litigation is exorbitant, adversarialism is widely prevalent and court processes are not congenial. On the other hand mediation proffers a chance to the parties to the dispute an occasion to resolve their differences by resorting to a voluntary, competent and considerate dispute resolution process. The latest trend in courts has been that they have accorded greater importance to mediation and several courts have started to employ their own mediation schemes. In this context a very important development that has taken place recently is that of the creation of the National Mediation Helpline, which is “a call centre operation that brings those who are willing to mediate a dispute together with an appropriate mediator. An increasing number of courts are taking advantages of this service9.” This participation of the courts in furthering the cause of mediation has embroiled them in controversy. It is the contention of those who oppose the involvement of the courts in mediation that when judges encourage parties to consider mediation a measure of coercion is involved and that this might detract from the voluntary nature of the process. “The potential imposition of costs penalties on parties for failing to consider mediation appears at odds with this voluntary ethos10.” In R v Karl Goodyear11 the appellant had been charged with corruption. Prior to the commencement of the trial the judge had indicated that a custodial sentence would not be imposed, however, later on this judge imposed a custodial sentence. The Goodyear guidelines, symbolize a better balance between allowing defendants to make more fully informed decisions on plea with the possible benefit of avoiding a costly trial, both in terms of public expenditure and increased sentence, whilst not offending the fundamental principle that no defendant should be pressurized into pleading guilty. With the advent of better control of legal aid, there is bound to be an increase in the allocation of resources so that more funds will be available for “alternative dispute resolution, information services, court-based advice, and targeted help for litigants-in-person. All this will encourage cases to find the most cost-effective place in the civil justice system, and enable them to be dealt with efficiently12.” The decision by the Court of Appeal in Goodyear13 has important connotation in respect of sentencing. The main issue is that at the request of a defendant, a judge may hint at the maximum sentence to be inflicted and the judge may also draw counsel’s attention to the defendant’s entitlement to such an indication. The Goodyear decision amends the principles established in R v Turner14, wherein the judge was proscribed from giving any prior suggestion of sentence to a defendant’s guilty plea. The case of R v Turner dealt with plea bargaining and endeavoured to elucidate and streamline the practice of seeking judicial indications on sentence. The “Turner Principles” were formulated because the defendant had been misled by his counsel into believing that the trial judge would award him with a non – custodial sentence if he admitted that he was guilty. The appellate court opined that this was tantamount to improper pressure forcing the defendant to admit guilt and that therefore it was to be nullified. The Appellate Court held that a judge should never indicate the sentence that he is going to impose, except where the sentence would be unaffected by the manner in which the defendant pleaded. Before the Goodyear judgment a conviction could be set aside if the Turner directions had been clearly violated15. The adversarial system is now utilized in pre trial screening and hearings affecting the pre trial status of the accused, like incompetency hearings and preventive detention hearings, also utilize an adversarial process. In instances of rape the patriarchal narratives, gendered language, and the adversarial system there is a commingling, which results is an overwhelming system of patriarchal domination. A major drawback with the adversarial system is that it functions “as an aspect of male culture: aggressive, hostile, confrontational, and dominational rather than compassionate, conciliatory and sensitive, instead of being a gender-neutral system16.” Bibliography Andrew Taslitz, 1999, Rape and the Culture of the Courtroom, New York: New York University Press. Constitutional Change: Cross-party Co-operation, available at http://www.parliament.the-stationery-office.co.uk/pa/ld199798/ldhansrd/vo971119/text/71119-08.htm. Dr. Mark Nolan, 2004, The Adversarial Mentality versus the Inquisitorial Mentality, Legaldate. July 2004. Vol 16. Iss 3. Warringal Publications, Victoria. ISSN: 1034- 229X. Dunnett v Railtrack PLC (2002) 2 All ER 850. Halsey v Milton Keynes General NHS Trust (2004) 1 WLR 3002. Jerold H. Israel, 1993. CORNERSTONES OF THE JUDICIAL PROCESS, Kansas Journal of Law and Public Policy. Spring, 1993. Julia Fionda, 1995. Public Prosecutors and Discretion: A Comparative Study. Oxford University Press. ISBN: 0198259158. Mediation UK website: http://www.mediationuk.org.uk. R Bush and J Folger, 1994, The Promise of Mediation: responding to Conflict through Empowerment and Recognition. R v Karl Goodyear (2005) EWCA 888, CA. R v Turner (1970) 2 Q.B. 321. R v Grice, 66 Cr.App.R.167. R v Pitman (1991) 1 All E.R. 468. THE CIVIL JUSTICE REFORMS available at http://www.dca.gov.uk/middle/chpt2.htm. The relationship between the civil justice and legal aid reforms available at http://www.dca.gov.uk/middle/chpt4.htm. Read More