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| Lord Thomas, the lord chief justice |
La nota es del Guardian:
"A judge-led,
inquisitorial system of justice may be a better way of conducting family and
civil cases where litigants are unrepresented, the lord chief justice has
suggested.
In a challenge to centuries
of British legal tradition based on adversarial hearings, Lord Thomas has
called for a radical rethink of the way justice is delivered in an era of
austerity.
The most senior judge in
England and Wales also proposed reviewing whether so many criminal cases need
to be sent to the crown court, a change that would significantly restrict the
right to trial by jury.
While declining to endorse
any particular reform, Thomas's demand for a fundamental reassessment is a
wide-ranging response to the turbulence within the legal profession caused by
the scale of government cutbacks being imposed on the justice system.
This Friday many criminal
justice lawyers will refuse to attend court across England and Wales in protest
against cuts to legal aid cuts. A rally will gather outside parliament and
march to the Ministry of Justice bearing a copy of the Magna Carta scroll,
symbolising the threat to 800 years of British justice.
In
a separate development, the senior judiciary has published a scathing
attack on plans by the justice secretary, Chris Grayling, to introduce
"enhanced court fees" – charges greater than the costs of proceedings
– that would raise £190m a year and enable the civil and commercial courts to cross-subsidise
the loss-making family courts.
Describing
the plans as "unworkable", the senior judiciary's response to a
MoJ consultation said:
"The judiciary has for many years consistently made clear that it does not
support the policy of successive governments that the justice system should be
self financing.
"None of the documents
issued by the government sets out the policy justification for requiring civil
court users who pay fees, some of whom will themselves be hard-pressed, to fund
those unable to pay the fees. A benefit given in and for the public interest
might be expected to be a public expense.
"There is no good
reason for treating the civil and family courts as a single system. Their
functions are quite separate. There is no obvious connection between civil
claims, such as actions for damages for personal injuries, consumer disputes,
claims against the government or commercial disputes between businesses, and
the business of the family courts, whether care proceedings or divorce.
"The assertion in the
[MoJ's] impact assessment that user demand will not change in response to
planned fee rises appears to contradict a basic law of economics concerning the
elasticity of demand. As this proposal stands, it is unworkable. Great care and
precision would be needed if such a proposal is to be taken forward to avoid
not only injustice but also damage to the international position of London and
hence the UK economy."
Speaking at a meeting of
the civil rights organisation Justice in London on Monday evening, Thomas said:
"Our system of justice does need reshaping to deal with the fundamental
change that is occurring in the role of the state. It
is retrenching. The budget for justice is being reduced substantially."
While other areas of public spending had been saved
from deep cuts, the justice system has been left "unprotected from that
retrenchment", he said, adding: "It has undergone cuts before but
this it is very, very different. The magnitude of the cuts will … be something
in the order of at least a third in real terms of the 2010 expenditure.
Moreover, the anticipation is that the cuts will be permanent and not merely whilst
times of austerity are with us."
Reductions in legal aid have already resulted in a
"significant increase" in the number of unrepresented litigants in
person in family and civil cases. Thomas said: "Traditional procedures are
not best suited to a dispute between a father and mother over a child when
inevitably matters that have caused emotional stress are raised by them in
court as adversaries in person rather than being raised by lawyers acting for
them."
An inquisitorial system might be an improvement for
litigants in person and "secure a fair trial for all whilst doing so
within limited and reducing resources," he said. "The essence of the
change would be a much greater degree of inquiry by the judge into the evidence
being brought forward."
Some lawyers, he admitted, would see it as a
"process alien to our adversarial tradition". Research would have to
consider whether an inquisitorial procedure would require more judges or a
"new cadre of junior judges".
On crown courts and jury trial, Thomas said:
"At the moment the crown courts deals with a wide range of offences from
the most serious to what can be described as the much less serious – fights
where injuries are not overly severe and dishonesty where the monetary value is
small."
Past proposals for an intermediate court between
magistrates and crown court, in which the bench consists of a district judge
sitting with two magistrates, had been rejected as too radical.
The lord chief justice acknowledged that the
"altering of the boundaries of cases where trial by jury is available is
an issue on which … there are very strongly held views".
But, he added: "Circumstances have changed:
there is far less work for magistrates to do and the crown court is heavily
overburdened by a significant proportion of its work relating to serious sexual
offences. Surely it is time again t consider this issue again given the
financial circumstances in which we are now placed."
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