Context:
Types of Dispute Resolution:
Adjudication
Arbitration
Mediation
Negotiation
Private Ordering
Places of Adjudication:
Court based Trial
Tribunal
Civil Law vs Common Law:
Civil law more code based inquisitorial process.
Common law more precedent based oral adversarial process.
Characteristics of Court based Adjudication:
Trials open to the public.
Adjudicator (judge) backed by the states power.
The decision can be imposed by the state.
Structured
Each side takes turns in an organised debate.
Zero Sum Process
Typically, one wins and one loses.
Large cost.
Due Process:
Right to know case against you in advance.
Right to confrontation and to be heard.
Right to legal counsel and representation.
Presumption of innocence.
Impartial decision maker.
Public trial.
Art 6 of ECHR aims to protect the right to due process. In Kennedy, Lord Mance JSC states that these rights have existed before ECHR too but are enshrined in statute by the Human Rights Act.
Theory and Practice:
Commonly, the canteen in a court is a combined space for all legal actors. This meant that opposing characters are sat together. Some criticise that this undermines justice as conversations could easily be overheard.
During the COVID-19 pandemic, hearings went online. This caused backlogs and impacted the characteristics of the trial. Trials were no longer public, and it can be argued that the quality of justice diminished. This is true for any public space in the court.
Jurors are more likely to be sympathetic to defendant’s who they are similar to (based on race, gender, age and clothing). [1] By placing the defendant in the dock, they become different.
The Dock:
Questions about due process arise because of the ‘dock’. It is debated that the dock mimics a cell, perhaps making the jury have preconceived ideas about the defendant.
This clearly impacts to due process, the fairness of the trial and the presumption of innocence. ECHR ruled that the separation caused by the dock is a violation of the ‘right to defence’. [2]
Defendants often cannot properly hear the trial and communicate while in the dock.
A jury is more likely to convict a defendant who is in a dock rather than sat next to their council. [3] When the defendant was sat next to their council, the jury were more likely to examine the evidence further. [4]
The dock is ‘out of date and incompatible with the presumption that the accused is innocent until he [sic] is proved guilty'. [5]
People tend to less safe when they are trapped. [6] Confinement in the dock may make the defendant more stressed and anxious. If a jury picks up on this, they may conceive this as guilt.
Types of Adjudication:
Adversarial (Trial):
Two sides orally argue against one another to present their evidence to the judge.
Each party can choose their own representation and evidence.
There are complex rules of evidence and cross-examination.
Judges rule to mediate and umpire the trial.
Judges have a rather passive role before they give judgement.
Problems:
The theatrics of the court allow council to elicit responses from defendants that would usually not be given.
EG: make them angry to prove a point, show how the defendant acts in dock etc.
The court is meant to allow witnesses to reproduce their written statements orally for the jury. Council should not ask a question that they do not know the answer to.
This prevents the jury from hearing evidence that is meant to be admissible as this could alter the outcome of the case. The aim to make the trial fairer.
Witnesses are likely to forget information between the event and trial. Their memory should only be refreshed by their prior written statement, not contaminated by coaching from lawyers. This would provide inaccurate testimonies and therefore injustice.
'evidence which is both relevant and reliable [should be] presented (in a form designed to bring out truth and discover untruth) to a supposedly competent and impartial decision-maker with adequate safeguards against corruption and mistake and adequate provision for review and appeal' [7]
Inquisitorial (Tribunal):
Court led investigation.
Any evidence that is logically relevant is admissible.
Written depositions of testimony taken before the adjudication process.
Witness does not have to attend.
Functions of the Trial:
Civil Trials:
To resolve disputes.
To provide remedies.
Criminal Trials:
To convict and sentence offenders.
Provide satisfaction to victim.
Right a wrong.
Public and Democratic Function:
Trials serve to educate citizens on the law and legal system.
Trials hold the legal system and its actors to account for their decisions.
They provide a forum to discuss public values.
Social Function:
Advocacy skills for lawyers develop in court.
Trails promote the development of the law through precedent.
Guide social standards and expectations to enact order, authority, power and coercion.
Bargaining, Negotiation and Mediation:
There are many ways of resolving disputes outside of the scope of the trial. The legal system encourages that parties settle through negotiation and mediation before engaging in trial.
This is done in the ‘shadow of the law’, meaning that parties generally negotiate by reference to what they may achieve at trial so that the threat of trial is still relevant. [8] Therefore, the outcomes of trials still impact other types of mediation.
‘There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals that we might call LITIGOTIATION, that is the strategic pursuit of settlement through mobilising the court process…adjudication remains a compelling presence even when it does not occur.’ [9]
The Vanishing Trial and Precedent:
Over time, the number of civil trials has been declining since the 1980/90s. This is a result of the introduction of alternative forms of dispute resolution that do not require the trial process. To make this more appealing, cost sanctions for those who do not settle before trial have been introduced.
Judges now have more of an interventional role pre-trial to make sure unnecessary trials do not occur and are mediated by other means.
Woolf Reforms:
Woolf believed that the litigation system had become a ‘battleground where no rules apply’. He produced ‘Access to Justice’ reports.
‘it became increasingly obvious… that the civil justice system was failing most conspicuously to meet the needs of litigants.’ [10]
Proposals:
Avoid litigation wherever possible.
Parties to be more cooperative - less adversarial competition.
Less complex litigation, reducing cost.
Shorter timescales.
Costs should be proportional to the complexity of the case.
Judge’s role should be more active.
It has to be questioned whether the quantity access to justice through other means than trial has diminished the quality of the justice provided, in comparison to what would be ruled in court. There is no substantive evidence to prove either side.
Impact on Precedent:
If less cases are going through the trial process, less precedent is being set. This could limit the development of the common law. However, the hard cases that set precedent are still likely to go to trial, so the likelihood of this being an issue is quite small.
Resources:
References:
[1] N.Kerretal.,`Defendant-JurorSimilarityandMockJurorJudgments'(2005)19Law and Human Behavior 567; R. Mazzella and A. Feingold, `The Effects of Physical Attractiveness, Race, Socioeconomic Status, and Gender of Defendants and Victims on Judgments of Mock Jurors: A Meta-Analysis' (1994) 24 J. of Applied Social Psychology 1315. D. Devine et al., `Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups' (2001) 7 Psychology, Public Policy, and Law 622; D. Devine, Jury Decision Making: The State of the Science (2012). [2] Castravet v Moldova (No. 23393/05), ECtHR 6 (2007) [3] M Rossner , D Tait, B McKimmie and R Sarre, ‘The Dock on Trial: Courtroom Design and the Presumption of Innocence’ (2017) 44(3) Journal of Law and Society 317-344 [4] M Rossner , D Tait, B McKimmie and R Sarre, ‘The Dock on Trial: Courtroom Design and the Presumption of Innocence’ (2017) 44(3) Journal of Law and Society 317-344 [5] M. Coen, Presumed Competent? An Analysis of the Irish Criminal Jury (unpublished doctoral thesis, Trinity College Dublin 2012) 253 [6] B. Fisher and J. Nasar, Fear of Crime in Relation to Three Exterior Site Features: Prospect, Refuge and Escape (1998) 30 [7] W Twining, Theories of Evidence: Bentham and Wigmore (Weidenfelf & Nicolson 1985) 16 [8] Robert Mnookin and Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce (vol 88, Yale Law Journal 1979) [9] Marc Galanter, Worlds of Deals: Using Negotiation to Teach about Legal Process (1984) 268 [10] Harry Woolf, Access to Justice, Final Report (HMSO 1996) 170
Cases Mentioned:
Kennedy v The Charity Commission [2014] UKSC 20
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