Radical reform is necessary to tackle a "lack of focus" in criminal and civil cases which is prolonging trials, leading to unfairness and affecting the quality of justice, a Supreme Court judge has said.
Civil cases were unfocused while, in criminal cases, cross-examinations had "sprawled", Mr Justice Peter Charleton said. "This has not been a healthy development.
“Urgent attention is needed so that a similar model to the United States federal courts of assessing a case and allocating time and limiting issues is ushered in to our system.”
He made the comments in a foreword to the 25th volume of the Trinity College Law Review, due to be published shortly.
The judge referred to a growth in the complexity of cases, which he said was inevitable with European law and international human rights law adding to the existing challenges of legislation and common law.
While pleadings which once set out the whole of a case no longer seem adequate, “older lawyers, after a lifetime of practice, will, however, tell you that a six-week case actually depends on some 10 minutes here and there, not amounting to more than an hour of submissions and evidence.
“It is the challenge of the courts to resume command over the adversarial system so that, at the earliest stage, the core of a case is identified and focused on,” he wrote.
“Not just legal complexity has contributed to the problem of sprawl and lack of focus in our courts, but that quality of advocacy most appreciated by judges – concision – has become almost a lost art.”
When the approach to hearings changes over years by gradually becoming longer and less focused, that may not immediately be noticed, but it “grows and grows”, he wrote.
“That becomes not just a change in the quantity of time justice takes to administer but in the quality of justice itself.”
Civil cases are unfocused, demanding too much judicial time and this requires “radical reform”, he said.
Criminal cases have “a similar issue”, with a voir dire [a trial within a trial] being demanded on almost every issue when those are legally impossible, save for confession admissibility and competence to testify. That can result in witnesses being detained sometimes for weeks, he said.
"How can that be fair?" he asked. "When I used to prosecute rape cases in the Circuit Criminal Court in Dublin, the duration was about two days. More recently, it's at least a week or two. And there are cases that have become noteworthy for lack of focus and for the unreasonable demands made of witnesses.
“How is the growth in time, and thus expense, and sometimes the trauma, of trials to be explained? Perhaps with the influence of the public inquiry, not into specific events crystallised precisely in court pleadings, but general traverses of events, cross-examinations have sprawled, as have issues grown. This has not been a healthy development.”
Legal writing
The point of legal writing is to make the legal system work for the people, he wrote. “Without constant scrutiny, we risk such dangers as trials becoming unfocused, or the florid growth of cross-examinations that serve not to test, or put, a case but only to upset victims.
“Central to our constitutional order is a public system of justice where we, as judges, are reported on by the media and where trials may be examined as to proper control and conduct and decisions may be criticised, if necessary, within the limits of reasoned discourse.”
Law reviews “play a central role in this calling to account”, he said. This latest volume of the Trinity law review demands attention with articles addressing many current problems including data protection, safe harbours, digital currency and the abuse of cyberspace, he said.
