Adjudication, Due Process & the Role of the Trial Flashcards
what is adjudication?
a social practice and method for approaching disputes
what are the types of dispute resolution? x4
adjudication ex//arbitration
mediation
negotiation
private ordering
where does the adjudication process take place?
in the court through a trial
in a tribunal
through arbitration
what are different types/ applications of adjudication?
adversarial - opposition, cross-examination, judge as an umpire
inquisitorial - tribunal type, interventionist adjudicator, testimony before trial
what are the governing principles of adjudication?
nemo iudex in causa sua - ex p. Pinochet
audi alteram partem - ex p. Fayed
no one should be above the law - Sharma v Browne-Antoine
can only be punished for something that was a criminal offence at the time - R v Rimmington
what article of the ECHR includes the governing principles of the adjudication process?
article 6
right to a fair trial
what is the psychological impact of the dock in an adjudication process?
conflicts with notion of presumption of innocence
D is seen as dangerous
impact on the jury
D believes there is already a predetermined judgement
how have online trials during the pandemic had an impact?
no co-present element
lack of publicity
lack of direct impact
what is the aim of civil adjudication?
resolve dispute
provide remedies
what is the aim of criminal adjudication?
convict and sentence
justice for the victim
how does Resnik describe the role of the trial?
‘proto-democratic site’
allows the public to hold the legal system and judges to account
what practical functions does the trial have?
reveals factual patterns
develops lawyers advocacy skills from experience
facilitates the development of the law
what are the social functions of the trial?
develop the law in current social context
allows the ability for representation ex//Dame Linda Doggs - poc, female judge
what is meant by bargaining in the shadow of the law?
recognition of other alternatives
ex// agreeing to negotiation or mediation in order to get some form of reward when winning a trial is unlikely
what is ‘litotiation’?
Galanter
‘strategic pursuit of settlement through mobilising the court process… adjudication remains a compelling presence even when it does to occur’
how have trials in the Queen Bench division changed from the 1990s to 2020?
(Mulcahy and Teeder)
over 350,000 to under 5,000
what are the reasons for reduced amount of civil trials?
new forms of dispute resolution available
cost sanctions for those who do not resolve disputes before trial
more interventionist judges at the pre-trial stage
what were the Lord Woolf reforms a product of?
Interim Report 1995
Final Report, Access to Justice 1995
belief that the system had become unsatisfactory and dysfunctional
‘failing most conspicuously to meet the needs of litigants’
what were the new principles proposed by the Lord Woolf reform?
avoid litigation wherever possible
litigation should be less adversarial and more co-operative
less complex litigation
shorter timescale for litigation
costs of litigation should be more affordable and proportionate
more effective judge deployment
what were the key aims of Lord Woolf’s reforms?
reduce cost
less adversarial
less timely
better quality and availability of justice
what has been the pattern in relation to civil petitions and applications to HL/SC?
(mulcahy and teeder)
increased applications
increased refusal
how have ‘docks’ been used historically in trials?
Sacco and Vanzetti trial saw the use of a metal cage
Soviet Union replacement of raised platforms with metal cages
what are the practical implications of use of the dock that Rossner highlights?
reduced access to counsel
affect on acoustics and general involvement
impairment of dignity
jury’s negative preconception of the defendant
increased anxiety from being inside an enclosed space
how does Rossner argue that the dock affects human rights under the ECHR?
violate art 3. prohibition of degrading treatment
violate art 6. the right to a fair trial
places the individual/human in a ‘cage’
