Monday, June 12, 2006

Transforming English Court Ideology

I've been writing a review essay for a journal of Courtroom 302 by Steve Bogira. This book has featured here before, because I believe it is one of the best of its kind. My aim is to tie it into the failure of courts to do what they are supposed to do. One of the aims is to uphold and dispense justice. I know this idealistic should have been knocked out of me in first year law school, but it didn't quite leave.

I thought it would be a good idea to compare Bogira's criminal court with the British magistrates' courts. That, however, is an easy target. What was more interesting was to compare something in the order of BCCI v Bank of England with it. Civil/criminal and high/low status. The activities of the courts and the lawyers in this case have shamed British justice. How a judge could say to the Lord Chief Justice that he thought the case was barmy and then let the lead counsel on both sides open for over 100 days beggars belief. There was absolutely no judicial control at all. The case, after years of pretrial and trial activity, has generated costs of over £100 million. Gordon Pollock QC, BCCI's lead counsel received a £3 million brief fee, the highest ever charged. Gradually, BCCI's claims deteriorated to the point they had to give up the case.

By comparison, commentators have been applauding the judge in the Skilling-Lay Enron trial for his masterly command of the courtroom and the lawyers. He moved the trial and brought it to verdict. Moreover, the prosecutors ensured that the presentation of the case was as simple as possible. They focussed on the lying of the defendants, not the accounting inaccuracies which would have lead to endless detail that would have flown above the heads of the jury.

English courts are inept. They take far too long to try cases. The BCCI and Equitable Life cases are exemplars of this. Even though the civil courts have improved procedures somewhat, it still takes a long time to get a case into court. It's just as bad, if not worse, in the criminal courts. Here too, even at the magistrates' courts level, cases can drag on because participants fail to turn up. There are virtually no sanctions if police witnesses or officials from local authorities don't appear: there's just another adjournment. Maybe if they accrued penalty points, like aberrant motorists, there would be incentives to appear. Why judges are so frightened of managing cases is difficult to understand?

English barristers are also too verbose. God, how they love the sound of their own voices! There needs to be far more judicial control over courtroom life. It can't be left to the lawyers to run. After all, many are paid on a time basis, which is a clear incentive to keep going. Judges need to be able to say enough is enough; impose time limits on case openings and closings; restrict numbers of witnesses and keep examinations and cross-examinations within reasonable limits.

Juries have the greatest difficulty in following cases, which are not presented as "normal" narratives with beginnings, middles and ends. To them a case is a series of disjointed episodes which they have to struggle to stitch together at the end. They certainly don't get any help from the lawyers or the judge.

Perhaps barristers' greatest failings have been shown in fraud trials. Both prosecutors and defence counsel think the more information they shower the jury with, the better their case is. Wrong, wrong! This is an instance of where less is more. It is the reason why Skilling and Lay were convicted. Too much information is why the British have an abysmal reputation in succeeding in fraud prosecutions. In addition to which when the prosecution is successful, judges seem loath to impose a punishment consonant with the crime. Prison sentences are given very reluctantly. A defendant who commits a benefit fraud is more likely to go to gaol than a white-collar criminal who bilks millions out of his victims.

Not everything in US justice is good, and Bogira's book, demonstrates that without doubt. But there are approaches that could be taken aboard. We could use more case management and import more judicial control

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