What's Needed - A New System of Justice?

Acknowledgement: Much of the information on this page is derived from
"Our Corrupt Legal System - Why Everyone is a Victim (Except Rich Criminals)" by Evan Whitton

The injustice experienced by the Scout Leader and the other injustices described on this website can be attributed to the British Adversarial Legal/Justice System.  This system has built into it more protections for the guilty than it has for the innocent.  More significantly it has been designed by what Evan Whitton describes as a Cartel of Lawyers to increase their income.

The British "common law" system originated in Britain in 1166AD.  ("Common Law" refers to Judge-made law whereby the precedents of prior judgements are accepted as law).  It extended through the British Empire and the USA, and now applies in India, USA, UK, Canada, Australia and New Zealand as well as other former British colonies.

By contrast, Napolean I introduced a system of justice in France in 1800AD that has spread throughout continental Europe and beyond.  It is described as an inquisitorial or investigative system rather than an adversarial system, though prosecutors, defendants and victims are all entitled to representation.

While systems differ in different countries and between civil and criminal jurisdictions, a summary of the French criminal system gives a fair insight into their processes:

  • Prior to trial, a trained investigating judge reconstructs the crime, building up a dossier of all relevant evidence for and against the suspect.  This may entail a confrontation between suspect and victim or relatives.  Despite a right of silence, the suspect generally accepts that he/she is a proper source of information.
  • The dosier is made available to the suspect's lawyer in case he can show the truth lies elsewhere.  If the lawyer can show there is considerable doubt, the investigation may be terminated and charges dropped.
  • The file is transferred to the chambre d'accusation which determines if there is enough evidence.  It can order that the case proceed, that it be dropped, or that the charges be re-assessed.  This court also sits in appeal on refusals of pre-trial liberty and on refusals by the examining magistrate to order investigations into matters suggested by the defence.
  • At trial, the jurors (if any) sit on the bench with the judge or judges.  Guilty pleas are not accepted; judge and jurors are obliged to find the truth for themselves.  The accused is not on oath.  His/her life, character and previous convictions are presented.  The accused has the right of silence, but adverse inferences can be drawn if there is a refusal to give evidence.
  • The presiding judge uses the dossier to question as many witnesses as necessary for 'the manifestation of the truth'.  Witnesses can tell the whole truth by giving their evidence as a narrative rather than by interrogator-led Yes/No answers.
  • Lawyers for prosecution and defence can question witnesses, though in some jurisdictions they are not allowed to cross-examine directly lest they pollute the truth; they can ask questions only through the judge.
  • Judge(s) and jurors reach the verdict and penalty together and give their reasons.  The criterion for guilt is to be "intimately [thoroughly] convinced".  This may mean the same as "beyond reasonable doubt", but its meaning is apparently less often debated.  Any doubts must be resolved in favour of the accused.
  • The results automatically go to appeal courts for review. Prosecution can formally appeal against not-guilty verdicts - there is no double-jeopardy rule.
  • The dossier helps the appellate court to scrutinise the lower court's reasoning, application of the law and findings of fact.  (A possible flaw of the system is that witnesses' trial evidence is not reviewed because it is not recorded in the dossier.)
  • Since 2001 a jury verdict of guilty in France can be appealed to a court consisting of three judges and 12 lay jurors.  The appeal is not confined to points of law determined by the judiciary alone, as is the case under the common law system.
Investigative systems of one form or another now prevail over 1.6 billion people in European countries, their former colonies, Japan and South Korea.  A similar number of people are affected by the adversary system, the greatest number being in India.

The two systems compared:

                                                                                         Investigative system                Adversarial system
                                          Seeks truth                                           Yes                                                No
                                          Conceals evidence                               No                                               Yes
                                          In charge of evidence                Trained judges                                  Lawyers
                                          Length of civil hearings          Usually about a day                 Weeks, months, years                   
                                          Conviction rates                                    95%                                      Under 50%
                                          Innocent in prison                                  Rare                                        1% - 5%

Edward ST John QC noted: "Everyone knows that certain cases are decided by which side gets to the most expert witness first".  This flows from the common law practice of lawyers for the two sides appointing witnesses, whereas under the European system they are appointed independently by the court.

The investigative system is demonstrably superior to the adversarial common law system in terms of both accuracy and cost.  Miscarriages of justice such as the Guildford Four or the Birmingham Six in the UK, both of which entailed long term imprisonment of defendants subsequently found to be not guilty, are considered unlikely under the investigative system.  Public confidence in the system is much higher than for the common law system.  Low acquittal rates in France and Germany are the product of care taken in the initial stages of the criminal process.  And a series of pre-trial filters ensures that the innocent are rarely charged, let alone convicted.

Costs are much lower than under the common law system.  If a case does proceed to trial - doubtful cases generally do not - then the duration of the trial is likely to be from a tenth to a half that of a common law trial.

The system requires more judges, trained for the task (rather than elevated from the legal profession without training), and paid from the public purse.  On the other hand, the number of lawyers deriving income from the system is far smaller.  In 1992, France had 20,000 lawyers for a population of 60 million, while Washington DC had 45,000 lawyers for a population of 500,000.

The investigative system has already been adopted in Australia in other contexts including Coroners Courts,  Royal Commissions, professional conduct tribunals and medical boards.  With the imminent establishment of an Independent Commission against Corruption (ICAC) in Victoria, South Australia will become the only State without one.  Such bodies can reach quite different conclusions to the courts due to the inadmissibility of some types of evidence to the latter.

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