Has the time come for the common law to be scrapped?

By Legal Eagle

A friend sent me an article from the Centre for Policy and Development entitled “Why Can’t Kevin Rudd Make Proper Legal Policy?” The title is a little misleading, as the piece doesn’t really deal with KRudd or specific instances of failure to make legal policy.

The central thesis of the article is that, although law schools adhere to legal positivism, and attempt to teach the content of law, it is impossible for anyone to say with any certainty what the common law is. Further, there is a lack of understanding of giant areas of the law by many practitioners, and most lawyers and others do not know the origins of the law.

There are a number of arguments made by the article:

  1. Truth does not matter to the common law, and thus it fails to deliver justice. It has an adversarial system whereby litigants are asked to prove the truth, rather than judges being asked to discover the truth.
  2. There is a cartel of lawyers and judges who seek to maximise their cashflow by making the law expensive and difficult to understand.
  3. The adversarial system means that truth is less likely to be discovered. Because it requires litigants to prove their point, it is expensive and time-consuming compared to inquisitorial jurisdictions. It also requires lawyers to take absurd positions on behalf of their clients.

The article suggests:

Russell Fox QC wrote: “… the public estimate must be correct, that justice marches with the truth.”

Reversal of the 1219 decision [to keep the adversarial system in Britain] will thus be welcomed by 99.8 per cent of the population, and by lawyers and judges who believe that law should be about justice. Once truth is accepted as the basis of justice, everything falls into place. The cartel and the adversary system can be abolished by:

  • Training judges separately from lawyers, as they do in Europe.
  • Giving judges back control of the process.
  • Having the trained judges search for the truth unhampered by six rules for concealing evidence and 14 other anti-truth devices.

It then argues that Australia should seek to introduce an inquisitorial system by 2015, or at the latest by 2019. Inquisitorial systems are generally used by civil law countries such as France, Germany, Italy and Japan. Broadly, inquisitorial systems give power back to the judge, who attempts to ascertain the “truth” by gathering evidence from all the parties. Judges are trained experts, separate from the rest of the legal profession. By contrast, in common law countries, each party is represented by an advocate who represents her particular party’s version of the truth, and the judge plays a more passive role, assessing each version on its merit.

This article is predicated upon a number of assumptions. I want to look at each assumption in turn.

1. Cartels and collusion

The allegation is that lawyers and judges form a cartel whereby they collude to maximise their cashflow. The example given is the notorious case of Jennens v Jennens in the Court of Chancery which devoured an entire estate over decades (and also formed the basis for Dickens’ Jarndyce v Jarndyce in Bleak House). As I have explained before, the Court of Chancery was an entirely separate jurisdiction to the common law. Interestingly, given the enthusiasm of the author of the article for the inquisitorial system, the Court of Chancery was in fact an inquisitorial jurisdiction, as it developed from ecclesiastical law. This in part led to its inefficiency because it took the judges so long to divine what had occurred. It’s not a particularly good example for the modern day – the Court of Chancery was abolished by the Judicature Acts in around 1880, and equity became part of the adversarial common law court system.

If the article is suggesting that judges and lawyers get together in secret rooms and collude to cost litigants as much as possible, then this is rubbish. However, it is true that knowledge is power, and that any group of skilled persons can charge the non-skilled liberally for the privilege of access to that specialised knowledge. It is also true that lawyers tend to wrap their knowledge in jargon and fancy words which mean that it is difficult for laypersons to understand or analyse. This is true of any profession. Sometimes there’s simply no way to describe a particular thing with the requisite precision without using technical or jargon terms.

But I think it is particularly true that some lawyers love to make things as verbose and complicated as they can. I think they believe this makes them look intelligent. Instead, I believe that this does their client and the court a disservice: as I’ve said before, it is much better to present a complicated dispute in a way that is easily understandable, and will lead the judge to conclude that your client is right.

Part of the difficulty of a trial is the necessity for due process: allowing each side to run all their arguments. Some lawyers just throw absolutely everything at the court – all the evidence, all the law, all the witnesses. It’s a bit like throwing a handful of darts at a dart board – and hoping one will hit the bullseye. A judge will be reluctant to prevent a party from ventilating an argument just in case it turns out to be relevant. Otherwise, an appeal may result which will give rise to further time and costs for the parties, so it’s better to deal with all issues at first instance. It is true that the common law tends to focus on due process much more than the civil law.

Some lawyers do engage in delaying tactics to make the case as difficult as possible for the person bringing the case. It makes it very hard if the person bringing the case lacks resources or finds litigation stressful – they are more likely to crumble, even though they may have a legitimate case. This is a fair critcism of the adversarial system.

Some lawyers are just not very good at seeing the woods for the trees. It’s not that they intentionally drag out cases, but they have difficulty discerning what is relevant or irrelevant, and so they just try everything. When I was a young lawyer, I once saw a witness cross-examined for three days. During the entire time, I could not discern a single relevant question. The judge gave counsel frequent warnings, but counsel insisted that his questions were leading to a relevant point. As far as I could tell, the questions never did get to that relevant point, but the judge had to let counsel proceed just in case.

Sometimes unexpected facts come out mid-trial which mean that everyone has to rethink their approach. I once saw a trial where allegations of forgery were made halfway through. Experts were consulted on both sides, and each concluded that there was forgery (although they differed as to the extent). Suddenly, the timeline for the trial blew out, because the whole ball game had changed. That’s not anyone’s fault – and the court has a duty to look at the allegations to discover the truth of the matter.

So the reasons why litigation takes a long time and is expensive are varied. It is partly to do with the way in which the common law concentrates on due process. Also, sometimes, litigation is drawn out by a particular side as a tactical ploy to force the plaintiff to give up his or her case. Sometimes, the lawyers just haven’t done their job properly in working out what is relevant. And finally, sometimes the unexpected occurs, and there’s nothing anyone can do about that. But I don’t think there’s a vast conspiracy of lawyers and judges plotting to squeeze as much money as they can out of the unsuspecting public by supporting the common law.

2. Adversarial system

It is undeniable that the adversarial system has drawbacks. Some of those drawbacks are already evident in the exploration above. One side can purposefully delay a case with the aim of persuading the other side to settle or withdraw. And it is very much dependent upon which counsel you get to represent you. If you can afford to get good lawyers, you have a much better chance of winning.

Therefore, our system is one in which the richest are more likely to get the result that they want, just because they have the better representation and can better survive the grinding down process of litigation. This is something touched upon by Nicholas Gruen in his recent exploration of civil procedure law, using the Max Moseley case as an example. This doesn’t seem fair, and leads people to feel that the law does not properly protect their interests. I agree that reforms have to be made which make litigation more affordable for ordinary people.

Another problem of the adversarial system is that it sets parties apart, rather than encouraging them to settle their differences. Lawyers have attempted to deal with this by instituting alternative dispute resolution in a less adversarial context.

In criminal trials, the adversarial system can lead to suffering for victims. I wrote a post a long time ago about the prosecution of the K brothers in which I wondered whether an inquisitorial element could be introduced to the criminal law in some cases. It makes an insult of justice that the victims of rape should have to put up with irrelevant and unpleasant questions from their attackers in the name of due process.

Also, the rules of common law evidence mean that certain evidence can be excluded from the jury in criminal proceedings (for a variety of reasons: hearsay, relevance, prejudicial nature of evidence). This again, is part of the common law’s concern for due process and fairness, but it can lead to a perception on the part of the public and victims of crime that relevant issues have been left out of the equation. It also reflects the fact that most criminal trials in the common law are jury trials, and it is thought that certain evidence should not be put before laypersons. By contrast, in civil law jurisdictions, jury trials are very rare, and it is presumed that an expert judge is capable of weighing up all the evidence – therefore, there is no equivalent exclusionary rule of evidence.

The article reflects the idea that the common law “lets the guilty get off free”, stating:

The investigative [inquisitorial] system now affects more than 1.6 billion in European countries, their former colonies, and other countries, including Japan. It requires more trained judges than the adversary system, and fewer lawyers. In criminal cases, 99 of 100 accused are actually guilty. The investigative system convicts 95; the adversary system fewer than 50, and at a higher cost. A civil hearing in the investigative system takes a total of about a day. In the adversary system, it can take weeks, months or years.

It is beyond the scope of my expertise to look at this in detail, but I do wonder where the statistics are from and how the author ascertained who was “guilty” out of the 100 accused…

In conclusion, yes, the adversarial system has definite drawbacks. But can a more inquisitorial mode fix those drawbacks?

3. Truth and the common law

This is the part of the article which I think has least credence. I see both the adversarial and inquisitorial systems as looking for the truth; they just come at it from different directions. Yes, the common law is more process focussed, but ultimately, like the civil law, it aims to deliver justice. It is justice which is really important.

I believe that many lawyers do think about justice and fair outcomes. Further, I also believe that many lawyers know the origins of the law. Certainly, I always teach the history of the law in Equity and Property because I think it’s essential to an understanding of how the law operates now and some of the bizarre quirks it exhibits. I also think that most judges and judicial officers are concerned to deliver just outcomes.

4. Is the inquisitorial system really better?

I would question the assumption by the author of the article that the introduction of an inquisitorial system in Australia is a “quick fix” to all the problems of the law. Here, I have drawn heavily on Chapter 1.3 of the WA Law Reform Commission’s Review of the criminal and civil justice system in Western Australia (No. 92, 1999). The review explores the advantages and disadvantages of the adversarial system in criminal proceedings. Have a read of it in detail if you are interested in the topic. At pages 86 – 87, the Review notes that both the adversarial and inquisitorial systems have similar concerns and problems, namely:

  • Increased demand on resources with less availability
  • The problem of delay
  • Public criticism of systemic failings
  • Concerns about victims of crime

This just shows that no system is perfect and that the same problems arise over and over again. Indeed, Italy scrapped its inquisitorial system and replaced it with an adversarial system in 1988, although the system has largely reverted back to its old form. 

The report concludes that the adversarial system does have some advantages over the inquisitorial system, including a greater emphasis on the presumption of innocence and the right to silence of the offender. Due process can produce justice.

And in some respects, the problems of the law seem intrinsic, regardless of which system is implemented.

5. Conclusion

I would be wary of accepting the premises of this article wholesale. Yes, there are definite problems with the legal system, and yes, I would like to see those problems reformed to the extent possible. I think useful things can be learned from the inquisitorial system, and perhaps some aspects should be adopted here. But I do not think that the inquisitorial system is the panacea to all the law’s ills.

25 Comments

  1. Jacques Chester
    Posted September 2, 2008 at 12:06 pm | Permalink

    Complexity and uncertainty are key issues. You can model a trial as a giant branching tree of issues, sub issues, sub-sub issues and so on. At any particular branch the judge is inclined to let either party recurse — ie move into — sub-issues one by one.

    The problem is that this tree can be enormous, and given current legal practice, cannot be mapped out in advance. A clever lawyer can find an unusual way to attach a new branch requiring both parties to explore an entirely new space of issues.

    From a computer science and software engineering standpoint, law’s methods for dealing with complexity are primitive; really quite backwards. It exhibits the level of coping that was common in the 60s. By analogy this is the 1200s of the common law.

    We haven’t solved complexity in my discipline, but we’ve definitely developed tools for coping. As a result we can achieve today what was impossible even a few years ago. I think law could benefit from co-opting some of the lessons learned.

  2. Posted September 2, 2008 at 12:42 pm | Permalink

    “The judge gave counsel frequent warnings, but counsel insisted that his questions were leading to a relevant point. As far as I could tell, the questions never did get to that relevant point, but the judge had to let counsel proceed just in case.”

    Maybe the judge should have the right to impose a fine on lawyers who waste the court’s time. And teh lawayer should be banned from passing that cost on to his client.

    I think the legal system does need a shake up, but it would take a very brave pollie to take on such a cause. There are always other fish to fry, and they tend to be an easier catch!

  3. Posted September 2, 2008 at 12:43 pm | Permalink

    Oh bugger- shaky fingers today- “the lawyer”.

  4. Posted September 2, 2008 at 5:17 pm | Permalink

    I don’t think that matters. A judge threatening a lawyer with a fine may be sufficient, especially after a precedent is set ….

  5. Posted September 2, 2008 at 6:06 pm | Permalink

    In criminal cases, 99 of 100 accused are actually guilty. The investigative system convicts 95; the adversary system fewer than 50,

    What is the basis for this assertion? How can that be known?

    It suggests that the adversarial system favours the accused. It also suggests that the inquisitorial favours the prosecution unless one buys the 99% figure which seems spurious.

    It’s interesting all this noise about doing away with common law.

    Does the inquisitorial system save money? Is it cheaper? And also what is the comparative record of social liberty of common law and inquisitorial systems?

  6. Posted September 2, 2008 at 7:22 pm | Permalink

    There is a serious argument in jurisprudential circles that the frequent occurrence of dictatorship and break-down in civil institutions in Europe and other countries that have adopted the civilian system is in fact tied to certain characteristics of the legal system itself.

    Civil law boosters forget that the common law began to avoid the use of torture and anonymous witnesses very early (ie, 1215). When English courts wanted an excuse to use torture (as in the Court of Star Chamber), they adopted an inquisitorial method from across the Channel.

    People who know a little English legal history also forget that initially, the Court of Star Chamber was very popular with ordinary citizens, based on the number of convictions it secured compared to the common law courts. It was only as time passed that people came to hate it as an abuse of power, in large part because – as with all these things – its tentacles started to interpenetrate social institutions very widely, and the European courts have always tolerated anonymous witnesses to a degree we in the common law find incomprehensible.

    As to the ‘99% are guilty’ statistic, either the report author is making it up, extremely lazy, or just engaging in plain boosterism. As LE (and any other lawyer who’s ever worked in the criminal courts) can explain, a significant number of criminal matters are dealt with by way of a plea.

    This is something that has to be watched – there is no doubt that (in the US at least) – the very wide gulf between sentence on the basis of a plea and sentence on the basis of conviction probably does lead to improper pressure being placed on the accused. That said, the US system also has very significant evidentiary protections.

  7. Posted September 2, 2008 at 9:11 pm | Permalink

    Abolished in 1641 by the Long Parliament, LE, and ear cutting was only one punishment among many. Interestingly, the Court had no power to execute, but relied heavily on punishments designed to humiliate (the stocks, the pillory). However, the real issue was its procedure, and the great power it gave to judges.

    I’m not pretending lawyers are perfect, by any means. I do think the extent to which the profession is a ‘closed shop’ raises serious issues of justice. I have long suspected that we as a society (and this applies in civil law countries as well, alas) pay educated people too well for their skills, and do so purely because they have managed to cartelize their labour, creating artificial scarcity power.

    Tradespeople (very often as or more skilled than professionals) are vulnerable to market vicissitudes; professionals should be as well. The dislike of trade unions on the part of many doctors and lawyers rings hollow when one considers how they protect their scarcity power.

  8. Posted September 2, 2008 at 10:56 pm | Permalink

    “Civil law boosters forget that the common law began to avoid the use of torture and anonymous witnesses very early (ie, 1215). When English courts wanted an excuse to use torture (as in the Court of Star Chamber), they adopted an inquisitorial method from across the Channel. ”

    That sounds like a lame argument to me and not relevant in any event. Ancient history is, well, ancient history. The feudal era is over.

    Also remember it is America with its common law system that has reinstitutionalised torture as part of the War on Terror, not those evil continental Europeans.

    I believe the rumours that Queen Beatrice is torturing suspects in her palace basement are greatly exaggerated.

    Your simply boosting the common law because you’re a Hayek disciple, I suspect 🙂

    If the civil system is quicker, cheaper and less complicated then I think we should use it, provided it doesn’t compromise justice of course. I’ve always said it is better that 100 guilty men go free than one innocent man be jailed.

  9. Posted September 2, 2008 at 10:58 pm | Permalink

    “I have long suspected that we as a society (and this applies in civil law countries as well, alas) pay educated people too well for their skills, and do so purely because they have managed to cartelize their labour, creating artificial scarcity power.”

    Wow. I’m surprised and pleased to hear you say that!

  10. Posted September 3, 2008 at 1:59 am | Permalink

    Mel, quicker, cheaper and less complicated doesn’t come into it (and in any case all three are easily disputed, especially the complexity and cheapness metrics). What matters is justice, which sometimes – although not always – is antithetical to both efficiency and price concerns.

  11. Posted September 3, 2008 at 5:23 pm | Permalink

    All this nonsense about Common Law v Civil Law. Thing is they’re both wrong. This is the way it’s done.

    100% conviction rate – guaranteed. 🙂

  12. boredacademic
    Posted September 3, 2008 at 6:56 pm | Permalink

    I note the comment that the inquisitorial system convicts 95%. No idea if this is true but a higher conviction rate may well be likely in those countries where the police/prosecution function are independent of each other (I have been re-reading Maigret – investigating magistrates and all that) so that weak cases are more likely to be filtered out before trial.
    In New Zealand the (lay) Employment Relations Authority set up in 2000 was created as an inquisitorial body and the members essentially run the whole case – decide what are the central issues, which witnesses are to be called and do most of the questioning. Generally works well and there are few appeals. However most employment cases are largely factual and the amounts at stake relatively low. Such systems may well be useful for rapidly dealing with disputes with those characteristics. On legal prevarication. Generally most common law systems are tending to give judges greater powers to control civil proceedings to minimise wasted time and it also needs to be remembered trials are the tip of the iceberg-most cases are settled.

  13. Posted September 3, 2008 at 7:15 pm | Permalink

    The introduction to Peter Hitchens’ The Abolition of Liberty is a good polemic on his fears that the common law system will be usurped in favour of compliance with the EU.

    I found Hitchens’ argument elsewhere in the book to be riddled with pigheaded conservative duckspeak especially his chapter on drugs. But the central argument viz the virtues of the common law system in preserving liberty are sound.

    Given his selective use of facts and rigid self-righteous proclamations on drug policy not to mention boneheaded assertions like ‘no-one drinks booze to get drunk(!)’ I’m inclined to think he’s misrepresenting the extent of European ‘tyranny’. He mentions Napoleon about 3000 times.

  14. Ken
    Posted September 4, 2008 at 11:27 am | Permalink

    Evan Whitton has been arguing this for many years. There’s nothing wrong with that but he never seems to take his case further – mostly just a serious of unsupported assertions.
    From my readings and experience I don’t know of a system using inquisitional processes that ensures just trials.

  15. Posted September 4, 2008 at 8:58 pm | Permalink

    As Ken says, Evan W has been going on about this for years and always at the same level of assertion. I suppose he has to make a living as do the rest of us, but why couldn’t he have recycled something that he has written about rugby instead of something about law?

  16. paul walter
    Posted September 8, 2008 at 1:08 am | Permalink

    An obscure issue buried away in your piece is a comment concerning the omission of evidence that might be “prejudicial” to the defendant It seems an oxymoronic idea.
    If I front court, with a photo of my neighbour kicking her dog, its likely ok.
    Yet it is so that recording of previous convictions for the same offence might not be allowed?
    Should not ALL evidence primary or suggestive, be admitted and the judge and or jury be allowed to decide what’s relevant or not?

  17. Ken
    Posted September 9, 2008 at 11:32 am | Permalink

    A couple of other observations about EW’s piece:
    1. I can’t remember reading anyone else arguing for adoption of an inquisitorial triel system here. So, whenever I see an article putting the case I am pretty sure it’s EW. He seems not to have enlisted anyone to the cause in 20 years or advocacy. I wonder what set him off in the first place?
    2. It would require a large-scale retraining job for judges and lawyers. And I believe it would require adoption of professional career judges as I think all civil law countries have. So we’d better be sure it is worth the cost. Not that there is any prospect of it happening, but I do like to see rigour in arguments.

  18. Evan Whitton
    Posted September 28, 2008 at 5:45 am | Permalink

    The case for change to a truth-based legal system.

    I should perhaps first note that my interest in the West’s two legal systems derives from the unusual experience of observing at first hand how they dealt with the same organised criminal.

    In 1988, the continental investigative system heard evidence showing beyond the slightest doubt that the Police Commissioner of Queensland, Sir (as he then was) Terence Lewis, franchised organised crime and extorted bribes from the franchisees.

    But at Sir Terence’s trial in 1991, the British adversary system obliged the judge to conceal so much devastating evidence from the jurors that he had to tell them there was no reliable evidence (left), and that it would be “dangerous” to convict him.

    As it happened, the jury did convict Sir Terence, but it took them five days and must have been touch and go; their verdict apparently turned on every defence lawyer’s nightmare: the one question too many that gives jurors a glimpse of the truth.

    Research into the systems since then has resulted in three books, Trial by Voodoo (Random House 1994), The Cartel (Herwick 1998), and Serial Liars (Lulu 2005), and 85 columns in the legal magazine, Justinian.

    I have to say: that the further you go into the history and practice of the adversary system, the worse it looks.

    * * *

    My piece in the August issue of the Centre for Policy Development’s InSight noted:

    • Organised criminals ran Britain’s public sector when the common law began in the 12th century. Lawyers and judges soon formed a cartel to protect their interests, mainly the cash flow.

    • In the 13th century, the cartel refused to adopt Europe’s new investigative system, and so rejected truth as the basis of justice. .

    • By the start of the 19th century, judges had allowed people historically economical with the truth, i.e. trial lawyers, to acquire control of the evidence, and hence of the process, and hence of the money. This is the adversary system.

    • The adversary system persists partly because academics, who joined the cartel in the 18th century, teach only what the law is. Lawyers, judges, politicians, commentators, and the public thus know little or nothing about what justice really means, where the law came from, what is wrong with it, or the remedy.

    • The remedy is to dismantle the cartel by training judges separately from lawyers, as they do in Europe; to give judges back control of the process; and to have them search for the truth in an improved version of the investigative system.

    The remedy is not impossible; the investigative system is already used – with varying degrees of success – at inquests, Royal Commissions, and standing commissions on corruption.

    The InSight people sensibly restrict contributors to 1000 words. Ms L. Eagle, Ms S. Lawyer and other bloggers on the SkepticLawyer site were thus concerned that some of the data was unsourced. More detail is provided here.

    Origin of the common law in a culture of organised crime

    Organised crime is systematic criminal activity for money or power. History professor John Gillingham noted in The Oxford History of Britain vol II The Middle Ages (OUP1992) that William II (d 1100) began a practice that lasted for at least two centuries: he put every public office, from Chancellor down, on sale, and buyers in turn extorted bribes from people who had to deal with the office.

    Organised crime was thus institutionalised in the trade of authority when the common law began in the reign (1154-89) of Henry II.

    The cartel.

    Cambridge law professor Sir (as he now is) John Baker (b.1944) says in An Introduction to English Legal History (Butterworths, third edition 1990) that judges were paid by 1200, and that: “England possessed from an early date a bench and bar united by their membership of a common profession”.

    Chief Judge Richard Posner, head of the US federal appeals court based in Chicago, is also an economist. In Overcoming Law (Harvard 1995), he wrote: “The legal profession in its traditional form is a cartel of providers of services related to society’s laws … The history of the legal profession is to a great extent, and despite noisy and incessant protestation and apologetics, the history of all branches of the profession, including the professoriat and the judiciary, to secure a lustrous place in the financial and social-status sun.”

    Chief Judge Dennis Jacobs is head of the federal appeals court based in New York. In The Secret Life of Judges, a lecture he gave at Fordham University in November 2006, he said judges have “an insidious bias because it is hard to make out in the vast maze of judicial work … woven together like an elaborate oriental rug in which the underlying image of the dragon emerges only after you stare for a while. I discern in this jumble a bias in favour of the bar lawyers: what they do; how they do it; and how they prosper in goods and influence. This is the figure in the carpet.”

    In what may be termed the Barton Hypothesis. Associate Professor (law) Benjamin Barton, of the University of Tennessee, wrote in Do Judges Systematically Favor the Interests of the Legal Profession? (Alabama Law Review, December 2007):

    “Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.”

    The notion that judges, consciously or subconsciously, tend to decide in favour of lawyers gets some support from the fact that they allowed lawyers to take control of the process and the money.

    Justice

    Former Justice Russell Fox said in Justice in the 21st Century (Routlege-Cavendish 2000) that justice means fairness, fairness to all means truth, truth means reality, and the search for truth gives a system its moral centre.
    Since the cartel rejected truth as the basis of justice in 1219, Justice Fox’s definition posed a number of problems for academics who joined the cartel in the 18th century, and for their successors.
    Some academics simply ignore questions of truth and morality; some implausibly say the system does search for the truth, and some say morality doesn’t matter either. That last desperate line was taken in the 19th century by London University’s John Austin and Harvard’s Christopher Columbus Langdell, and in the 20th by Oxford’s H.L.A. Hart.
    However, everyone, including common lawyers, agrees that justice means fairness. The argument for change from the adversary system to an investigative system thus turns on which system is more fair.

    Fairness to the innocent

    Adversary system. The first common law academic, William Blackstone, said: “Under our system of justice, it is better that 10 guilty men go free than that one innocent man be convicted.”

    Sadly, the reality is that in 100 serious cases at least one innocent man is convicted while at least 50 guilty men go free.

    Mike Mansfield QC said in 1993 that British probation officers “maintain that on the basis of studies carried out by them, the number of people wrongly convicted could total 500 or more”. He said: “No one will ever know the true picture and in reality the total is almost certainly higher”. At the time, Britain had a prison population of 50,000. A conservative estimate of those wrongly in prison would thus be 1%.

    The US percentage may be higher. The Chicago Tribune’s Ken Armstrong and Steve Mills reported in 1999 that 12 of 285 (4.2%) or prisoners on the Illinois Death Row since 1977 were found to have been wrongly convicted, and that throughout the US at least 381 homicide convictions had been ‘thrown out because prosecutors concealed evidence suggesting innocence or knowingly used false evidence’.

    Investigative system. As boredacademic noted on the SkepticLawyer website, weak cases are more likely to be filtered out before trial.

    A Report on the Administration of Criminal Justice in the Pre-Trial Phase in France and Germany, by Professor Leonard Leigh and Lucia Zedner (HM Stationery Office, 1992) said miscarriages such as that suffered by the Birmingham Six were unlikely to occur in France or Germany.

    One reason is that the investigating judge’s dossier on the case is available at all times to the lawyer for the accused.

    US law professor Gordon van Kessel said in Adversary Excesses in the American Criminal Trial (Notre Dame Law Review, 1992): “It is arguable that the non-adversary system shows greater respect for the accused …”

    Fairness to victims and the community

    Adversary system. Alan Dershowitz, Harvard law professor and criminal defence lawyer, said in The Best Defense (Vintage, 1982) that the first two rules of what he called “the justice game” are:

    Rule I: Almost all criminal defendants are, in fact, guilty.
    Rule II: All criminal defense lawyers, prosecutors and judges understand and believe Rule I.

    I asked Brett Dawson, a former defence lawyer and prosecutor, what “almost all” means. He said it means 99%.

    Estimates of conviction rates vary, but it is clear that in serious cases at least half the guilty escape justice. In 1989, law professor Michael Zander said that since 1979 approximately 50% of all British accused were acquitted.

    The NSW Independent Commission Against Corruption (ICAC) uses the investigative system. From 1989 to 1995, ICAC recommended that 208 persons be charged with corruption. At their adversary trials, 63, or 30.3%, were found guilty.

    In 1997, Dr Lucy Sullivan, of the Sydney Centre for Independent Studies, noted 1993 figures showing that NSW conviction rates were 26.5% for murder and 11.5% for rape.

    Investigative system. Justice (Federal Court) James Burchett said in 1996: “My reading suggests that even those comparative lawyers who are critical of the French criminal law do accept that French courts are fair, and that the verdict reached is generally accurate.”

    Bron McKillop, of the law school at Sydney University, is an authority on the investigative system and author of Anatomy of a French Murder Case (Hawkins, 1997). He says the French and German systems convict 95% of accused.

    Why the difference?

    First, in Guilty: The Collapse of Criminal Justice (Random House 1996), Judge Harold Rothwax, of New York, noted: “Our system is a carefully crafted maze, constructed of elaborate and impenetrable barriers to the truth.”

    The barriers are at least 20 mechanisms for obscuring or concealing the truth, including six rules for concealing relevant evidence. The rule against self-incrimination, which derives from a lie by the first common law academic, alone lets 25% of criminals escape justice. A majority of the mechanisms came into being after trial lawyers got control of the criminal process 200 years ago.

    The investigative system has no anti-truth mechanisms.

    Second, trial lawyers control the adversary process. In Overcoming Law (Harvard 1995), Chef Judge Richard Posner, head of the federal appeals court based in Chicago, described “adversarial procedure” as “contests of liars”.

    In the investigative system, judges trained separately from lawyers control the process and search for the truth. . .

    Adversary system losing support

    Criminal law. Despite academic silence on the adversary system’s lack of justice, requests for change are increasing.

    In April 2003, the Malimath committee recommended that India change the criminal system to an investigative system.

    The commitee was chaired by Judge V.S. Malimath, former Chief Justice of the Karnataka and Kerala High Court, and included D.V. Subba Rao, Chairman of the Bar Council of India, N.R. Madhava Menon, Vice-Chancellor of the West Bengal National University of Juridical Sciences, Amitabh Gupta, former Director-General of Police, Rajasthan, and Durgadas Gupta, Joint Secretary in the Ministry of Home Affairs.

    The report recommended that judges be able to summon and examine any person they consider appropriate, to examine the accused at trial, and to draw adverse inferences if he refuses to answer.

    Presenting the report, Judge Malimath said the present system was weighted in favour of accused and did not adequately focus on justice for victims. He said that at the core of the report was the “duty of the court to search for truth”.

    Urging the Indian government to implement the Malimath Report, Mallikarjun Kharge, Home Minister for the state of Karnataka, noted in September 2003 that India’s conviction rate averaged 16%, and that the rate in Karnataka was 28%.

    India’s population in July 2007 was 1.1 billion. When of if the report is implemented, the number of people affected by criminal adversary system will decline to 600 million world wide, and those affected by the investigative system will increase to 2.7 billion.

    Civil law. The Hon Russell Fox said in Justice in the 21st Century that a civil case in Germany takes a total of about a day. .

    Former British High Court Justice Sir Hugh Laddie QC wrote in Legal Week in May 2006: “Go back to the drawing board and consider the possibility that the [civil] adversarial system is past its sell-by date.”

    A Legal Week poll of senior partners at 100 law firms found in June 2006 that 60% said the system is “an essential pillar of British justice”, but 40% agreed that the system was “past its sell-by date”.

    Sir Hugh Laddie noted in The Times of 22 May 2007 that a small to medium patent case costs three to 10 times more in England than in Germany or the Netherlands. He wrote: “Perhaps it is time to do the unthinkable and start making our system much more like that used by our continental colleagues.”

    * * *

    Reviewing Serial Liars for NetworkedKnowledge in 2007, Dr Robert Moles LLB Hons (Belf) PhD (Edin) wrote: “One of the most enjoyable books I have read in years … Mr Whitton’s remedy might look extreme now, but in a year or two it will represent the conventional wisdom.”

  19. John Greenfield
    Posted September 29, 2008 at 9:09 am | Permalink

    SL/LE/Other Legal Types

    Is there any way of becoming a law/economics/libertarian jurisprudence scholar without having to start at the LLB level? I met someone over the weekend who said she is going to commence an LLM next year, yet she has only an undergrad BA (Hons) in economics and philosophy. She also has three or four of the first year Law subjects, but all this was done ten years ago. Is this possible?

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  1. […] charged, the conviction rate is 25 per cent. Bron McKillop, of the Sydney University law school, said the rape conviction rate in France’s pro-truth inquisitorial system is about 95 per […]

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