Possible Reforms To The Adverdary System Flashcards
4 possible reforms
Investigative role
Written statements
Informal
Delays
Investigative role
The judge or magistrate in the adversary system can ask questions and call witnesses, but this is usually done to clear up points made in the proceedings. For example, a judge might call a medical witness to clarify evidence given about someone’s health. This power could be increased to allow a judge to ask questions and call witnesses to ensure that cases are decided correctly – in the interests of fairness and finding the truth.
Problems with investigative role
The judge could, however, be seen as being biased towards one side or the other by bringing out evidence that would benefit one side, and a judge who ‘descends into the arena’ loses the advantage of being an uninvolved observer.
How an investigative role is already achieved
The use of directions hearings and judge-led mediation in the County Court and Supreme Court means that, to some extent, the judge is taking a greater role in that he or she tries to get the parties to make admissions and settle disagreements before the matter going to trial. This assists in speeding up the process and could also help in the process of determining the truth.
Written statements
Court time and money could be saved with the use of written statements where possible during the trial. Medical evidence, for example, could in many cases be tendered in written documents without the medical expert having to attend in person to prove the accuracy of the statements.
Problems with witness statements
The use of oral evidence, however, does allow cross-examination of the witnesses to bring out any falsehoods and gives the court the opportunity to see whether the witness is sincere. The move to the use of written statements could also lead to increased legal fees because the solicitor would need to draw them up and the barrister would have to examine them. If anything within the statements was disputed, witnesses would still have to be called to be cross-examined.
How written statements are already used
Written statements are being used in committal proceedings, rather than oral evidence, as the hand-up brief method of committal proceeding is now used almost exclusively.
Reduce delays
In civil cases particularly, the parties could be made to follow the time limitations for the submission of documents more carefully. A court officer could be appointed to investigate the causes of delays, requiring the lawyers to appear before the appropriate court to explain the reasons for delays. Courts should be further encouraged to make indemnity costs orders against parties who fail to comply with submission dates. The party who was in default would have to pay compensation to the other party. Some of the formal pre-trial procedures could be changed to a more informal approach to reduce delays, such as the discovery stage. The Supreme Court has already recognised that some of these processes contribute to delays.
Problems with reduce delays
More court personnel would be needed to deal with the increased number of cases being brought before the courts. This could lead to injustices occurring. Adhering strictly to deadlines could result in the court not being able to get at the truth.
How reduced delays are already achieved
Directions hearings are used in civil matters to speed up the process of getting a matter to court and the trial process. The introduction of directions hearings was designed to reduce the length of time taken to bring a criminal matter to court. There are also restrictions on the time that can elapse between the commencement of proceedings for an offence and the committal proceedings taking place (within three months for a sexual offence and within six months for other offences). A longer period can be fixed if this is required in the interests of justice because of exceptional circumstances.
