Adjudication, Due Process & the Role of the Trial

Question 1

what is adjudication?

Answer 1

a social practice and method for approaching disputes

Question 2

what are the types of dispute resolution? x4

Answer 2

adjudication ex//arbitration

mediation

negotiation

private ordering

Question 3

where does the adjudication process take place?

Answer 3

in the court through a trial

in a tribunal

through arbitration

Question 4

what are different types/ applications of adjudication?

Answer 4

adversarial - opposition, cross-examination, judge as an umpire

inquisitorial - tribunal type, interventionist adjudicator, testimony before trial

Question 5

what are the governing principles of adjudication?

Answer 5

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

Question 6

what article of the ECHR includes the governing principles of the adjudication process?

Answer 6

article 6

right to a fair trial

Question 7

what is the psychological impact of the dock in an adjudication process?

Answer 7

conflicts with notion of presumption of innocence

D is seen as dangerous

impact on the jury

D believes there is already a predetermined judgement

Question 8

how have online trials during the pandemic had an impact?

Answer 8

no co-present element
lack of publicity
lack of direct impact

Question 9

what is the aim of civil adjudication?

Answer 9

resolve dispute

provide remedies

Question 10

what is the aim of criminal adjudication?

Answer 10

convict and sentence

justice for the victim

Question 11

how does Resnik describe the role of the trial?

Answer 11

‘proto-democratic site’

allows the public to hold the legal system and judges to account

Question 12

what practical functions does the trial have?

Answer 12

reveals factual patterns
develops lawyers advocacy skills from experience
facilitates the development of the law

Question 13

what are the social functions of the trial?

Answer 13

develop the law in current social context

allows the ability for representation ex//Dame Linda Doggs - poc, female judge

Question 14

what is meant by bargaining in the shadow of the law?

Answer 14

recognition of other alternatives

ex// agreeing to negotiation or mediation in order to get some form of reward when winning a trial is unlikely

Question 15

what is ‘litotiation’?

Galanter

Answer 15

‘strategic pursuit of settlement through mobilising the court process… adjudication remains a compelling presence even when it does to occur’

Question 16

how have trials in the Queen Bench division changed from the 1990s to 2020?
(Mulcahy and Teeder)

Answer 16

over 350,000 to under 5,000

Question 17

what are the reasons for reduced amount of civil trials?

Answer 17

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

Question 18

what were the Lord Woolf reforms a product of?

Answer 18

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’

Question 19

what were the new principles proposed by the Lord Woolf reform?

Answer 19

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

Question 20

what were the key aims of Lord Woolf’s reforms?

Answer 20

reduce cost
less adversarial
less timely

better quality and availability of justice

Question 21

what has been the pattern in relation to civil petitions and applications to HL/SC?
(mulcahy and teeder)

Answer 21

increased applications

increased refusal

Question 22

how have ‘docks’ been used historically in trials?

Answer 22

Sacco and Vanzetti trial saw the use of a metal cage

Soviet Union replacement of raised platforms with metal cages

Question 23

what are the practical implications of use of the dock that Rossner highlights?

Answer 23

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

Question 24

how does Rossner argue that the dock affects human rights under the ECHR?

Answer 24

violate art 3. prohibition of degrading treatment
violate art 6. the right to a fair trial

places the individual/human in a ‘cage’

Question 25

what might be reasons for the use of the dock?

Answer 25

considerations for security of the public or witness
consideration for protection of the defendant
is an inbuilt element of the court already

Question 26

what did the Rossner mock trial experiment find?

Answer 26

jurors were 1.8 x more likely to find the defendant guilty if they were standing trial in the dock

Question 27

how does the adjudication process extend beyond the resolving of a dispute between two parties?

Answer 27

establishing of precedent
improving interpretations of the law
lawyers advance their advocacy skills
advancement of public policy or political agenda
allows consideration of litotigotiation - advises future claimants
upholding of punishment
exercise of judicial power - presentation of SOP

Question 28

what is the difference between the outcomes of arbitration and trials?

Answer 28

arbitration - reward

trial - judgement