In the past, legal justice in England and Wales has rested upon adversarialism a great deal more than today. There have been many changes within the English legal system that seem to have in some way damaged the adversarial process. In this assignment I strive to examine these changes by using examples of adversarialism both being successful and detrimental to the English justice process. As the word justice and adversarial apply to both aspects of law (criminal and civil) then, of course, I will mention the changes in both but the bulk of this essay will be based on the effects within the civil legal system.
What do we mean by 'adversarial' and 'justice' within criminal and civil law? The word 'justice' is controversial and takes many definitions within law but in this instance, I will mainly concentrate on how the English legal system uses adversarialism to achieve justice and research to what extent the use of the adversarial process has changed within the fast developing UK legal system. The word 'adversarial' has several meanings but the most plain of these is, "one side against the other. "1 Within law, adversarialism is a battle over which side or story is believed.
Firstly, there are two approaches for attempting to achieve fairness within the criminal legal system; these are due process and crime control. Due process concerns the fact that what may be injustice for the public or victims will not necessarily be injustice for the lawyer. It is a systematic method which, is designed to minimize the convictions of innocent people therefore achieving its aim of fair dealing. Crime control on the other hand, although is used to gain a higher conviction rate, has seen a high rise in wrongful convictions and miscarriages of justice. The due process method is said to be used within the French legal system.
In France any one who seems able to provide evidence against a crime or civil matter is then taken into custody without the right to a lawyer or a phone call. Although the French use "inner certainty" and "proof beyond reasonable doubt" when dealing with criminal and civil matters, their policing and questioning processes seem to be controversial to the due process guidelines. On the other side, in Japan, there is a 99. 9% conviction rate from using a crime control method, although these statistics are impressive, one can only imagine the number of injustices caused.
The civil justice system Civil justice is fundamentally concerned with the resolution of disputes, this type of system includes all the ways in which people can lawfully resolve disputes and implement their rights and obligations. There has been and still is a need for reform of the civil justice system, in the past, the traditional culture of adversarialism took priority in courts whereas at present and in the last century there has been much proposal for co-operation between disputing parties.
In the history of English policy there had been countless attempts at reforming the civil system in order to achieve the objective of justice; both the cost and dormancy of the civil courts had been under continuous attack throughout the 19th and 20th centuries. In the 19th century the main purpose for court reforms were to make legal proceedings more affordable and accessible to every class of persons. With the help of the Common Law Procedure Amendment Act2 these reforms were put into practice, but as business litigations increasingly turned to arbitration as another means of dispute resolution, they were lost.
With the establishment of the county courts in 1846 came a means by which businessmen could recover damages without investing all their time and hard earned money. Towards the latter part of the last century the original Woolf reforms were reestablished but this time they were done so with the intent to increase the work of both the superior and county courts. Already the older trend of using an adversarial approach was slipping away into more modern times. At the beginning of the 20th century there was evidence of more complaints about delays in the civil courts and the ever increasing financial status of litigation.
In his report, Lord Woolf estimated that in the 20th century alone there had been approximately 60 different reports concerning the attempt to reform the civil justice system. One of Woolf's arguments was for a 'root' and 'branch'3 review which would lead to a fundamental change within the system unlike many other proposals which had barely affected the civil process. Lord Woolf's Reforms 1995 In the interim report on 'Access to Justice,' Lord Woolf described the problems within the civil justice system as being "interrelated" and "restricted to one particular area". 4
Lord Woolf illustrates the new civil system as being based upon 'aggressive adversarialism. ' Woolf suggested the following reforms (which seem to have no regard for the adversarial process that has been used for so long) in order to bring some fairness to the civil system. It was proposed that settlement at early stages of litigation should be enforced, mainly through the availability of wider information and the encouragement to use ADR. 5 In settling disputes through means of ADR such as mediation, surely the traditional basis of adversarialism is being ignored and thus leading to a hit or miss conclusion.
Another suggestion was that of strict court management, introducing cases with strict timetables and putting judges in charge of the process of a case rather than the parties. This reform, although seeming more organized and realistic, could deter parties from proceeding with litigation as they lose control of their own circumstances. A third proposal was to have combined procedures between county courts and high courts, this is a difficult enforcement as it would mean small claims being arbitrated by a district judge instead of having a simple settlement by trial and by a circuit judge.
Another fundamental change was re-enforcing the disclosure of documents before a hearing, the process has been looked at in great detail and these reforms have provided that the statements must be detailed and the parties have up to 21 days to respond, all witness statements must be signed by both parties now also. One of the biggest changes to be introduced though was allowing the courts to allocate cases to certain "tracks" depending on the value and complexity of them.
Three tacks would be implemented; a small claims track6, a fast track7 and a multi-track. 8 All of these reforms are detailed accounts of what past legal professionals have tried to apply to civil proceedings. Lord Woolf has been controversial in choosing to disregard the dying tradition of adversarialism in favor of modern, more controlled approaches. The Woolf Reforms today Before the reforms, between one-half and 83% of defended cases in the county courts were personal injury claims, now more and more complex and righteous cases are being brought to court.
The proposals I mentioned previously have prevented lengthy legal proceedings and decreased cost but there is still a long way to go in order to achieve all the changes that Lord Woolf has been striving for. The most significant achievements have been introducing alternative dispute resolutions and also the pre-action protocols9 which, have made it possible to move those cases that can not be settled in these ways through the legal system quickly and effectively. On the other hand there are negative points to Lord Woolf's reforms such as his reform for fixed costs through the fast track reform, which unfortunately did not prove viable.
The biggest change that proved fundamental was within the legal aid system which changed to conditional fee arrangements. This means that in personal injury claims, defendants are now liable for the success fees as well as the costs of the claimant's insurance. Conclusion From all the research I have done and from the evidence I have gathered it is my conclusion that although in the past the legal justice system in England and Wales did rest upon adversarialism, since the Woolf reforms and over the last century adversarialism has become a thing of the past and is no longer heavily relied on.
As with everything in life the fast changing times bring with them serious changes, even within the most complex legal system. The adversarial approach has by no means been completely erased but new, improved methods of litigation are now being applied and seem to be creating equality and fairness within both the criminal and civil justice system. I have no doubt that within the next century there will be even more reforms and change, and maybe even the total abolishment of adversarialism.