The Law Commission’s paper recommending a more inquisitorial criminal trial procedure is commendable. I expected to be disturbed by it, especially after the introduction raised whiffs of the last Law Commission effort in the area, which wanted to change courts from being forbidding places into places where the offender, his whanau and supporters could feel at home.
I’m all for offenders feeling disempowered and ill at ease. The more awe the better. I was also concerned that this review grew out of efforts to increase conviction rates for sexual offending, and the paper offers as a reason for dispensing with the right to jury trials in sex cases, that jurors came to them with “myths and prejudices” that prove resistant to judges’ instructions. That seemed like code for elite dislike of the ordinary values of the community.

So it was reassuring to find that the main focus is on helping victims to feel less alienated and disempowered, not offenders, and that the proposals throughout are respectful of the purposes of rules evolved to protect innocents from unjustified conviction.

The proposal to formalise a more inquisitorial role for judges is sound. For example it would let the judge ask questions first, leaving it to counsel for the parrties to follow, filling gaps. I have previously argued for ending the so-called right to silence within the constraints now proposed by the Commission.

The Commission asks whether its proposals should apply only to sexual violence offences. I would protect against witch trials for sexual offences by insisting that the reforms apply equally across all kinds of offending.

But mainly I’m grateful to the Commission for drawing my attention to a paper by former judge Robert Fisher QC. It says what I’ve wanted to hear some litigation insider say for years.

To non-lawyers it may seem obvious. But to court lawyers it must be sacrilege judged by how they have allowed their processes to evolve. The upcoming daily shame for the courts and the Supreme Court in particular, of the Urewera trial more than four years after the arrests, is all that the government needs to justify drastic reform.

Here is the core reason why the courts have been unable to cleanse themselves. Non-lawyers can scan only, you already know this stuff.
“28. At the heart of our present dilemma is the ideal justice fallacy. The fallacy is the touching assumption that ideal justice is both attainable and every persons right. It tends to be assumed that justice is an absolute which justifies the full panoply of court procedures regardless of the magnitude and nature of the dispute. Greeted with indignation are suggestions that certain disputes do not warrant legal representation, formal pleadings, full discovery, the right to join third parties, the right to cross-examine, more time to prepare, endless amendments to pleadings, another adjournment, unlimited witnesses, and submissions unlimited by page or time.[22] Appellate courts, too, can sometimes be guilty of prolonging an endless search for substantive justice without overt balancing against the competing values of expedition, economy and finality.
29. There are in fact two bitter pills to swallow. One is that ideal justice is unattainable by any system run by humans. The notion that by devoting sufficient resources to the task we could achieve ideal justice is, like Father Christmas, a myth. Who is to say whether the resources devoted to investigating the Kennedy assassination or the death of Princess Diana produced the ultimate answer. Even dedicating the entire New Zealand police force to the investigation of one testamentary promises claim for a decade would give us only an approximation of the true facts. And even if the facts could be ascertained, and the top one hundred jurists in the country sat on the case for another decade, the justice of the resultant decision would lie in the eye of the beholder. The best we can hope for in any system of litigation is that it will produce results which most people would say is right most of the time.

30. The other pill is that even if ideal justice were attainable through adequate resources, we could not afford it. We can no more afford optimum justice than we can afford optimum medical care or optimum education. Like doctors and teachers, we have to use a finite resource to best advantage. Selections must be made. A heart operation warrants much time and money. A common cold does not. In the legal world we have to devote to each dispute a sum of money, and an amount of time, that is reasonable having regard to the magnitude of the sums or issues at stake. Some cases warrant a procedural Rolls Royce. Others will have to make do with a Lada, and still others a bicycle.

31. There is nothing new in this. The classic procedural bicycle is the Disputes Tribunal referred to earlier. In the interests of economy it excludes legal representation, pleadings, interlocutory procedures, traditional trial procedures and painstaking research into the law. In varying degrees, this acceptance of a relatively humble level of procedure is repeated in most statutory tribunals and specialist courts. The problem is that there is little or no provision for it when a civil dispute comes before our courts of general jurisdiction. When they go there, everyone rides in a Rolls Royce whether they asked for one or not. And if they can not afford a Rolls Royce, they are left on the roadside. The state offers no alternatives.

32. Nor is legal expense the only thing which must be kept proportionate to the sum or issue at stake. Equally important is expedition. The importance that parties place upon expedition is illustrated by the permanent reliance often placed upon interim decisions. A substantial proportion of intellectual property and commercial disputes go no further an interim injunction. The losing party elects to accept the provisional decision and move on. To an even greater extent the same is true of provisional adjudications under the Construction Contracts Act 2002. What this tells us is that in a surprisingly high proportion of cases a relatively cursory examination of the merits will be sufficient for the parties purposes.

33. Many will object that curtailing procedures and truncating trials would be contrary to natural justice. Natural justice is a core element in common law systems. We would never want to turn our back on it. But the full bells and whistles of traditional court procedure are not a dictate of natural justice. The fundamentals of natural justice are absence of bias, opportunity to present ones case, and opportunity to respond to adverse material. So long as these are observed, the form which natural justice takes in any particular case is responsive to the context and requirements of that case.[23] Natural justice does not demand the Rolls Royce we presently provide in our courts of general jurisdiction.

34. Everything comes at a price. Where cost and speed is not an issue, full civil litigation in the High Court, with its unqualified access to interlocutory procedures, an open-ended trial, and rights of appeal, will continue to provide the most thorough and skilled examination of a dispute. But in many cases probably the vast majority it would be in the interests of the parties to accept a less thorough means of resolving their dispute.

35. So in making changes the most pressing need is for supervised proportionality. We need a process for ensuring that the nature and sophistication of the procedures to be applied to any given dispute will be commensurate with the issues and sums at stake. We need cost/stake proportionality”