This is the 30th extract from Our Corrupt Legal System, by Evan Whitton (@EvanWhitton1) available free at netk.net.au/whittonhome.asp
The story so far
Justice means fairness. Fairness and morality require a search for the truth, otherwise justice may be perverted.
The common law in England and its colonies has never tried to find the truth, and judges have never been trained as judges, as they are in Europe; they are trial lawyers trained in sophistry, a technique of lying, elevated to the bench. Trial lawyers have been described as serial liars because they try to persuade jurors to believe things the lawyers believe to be false.
A racket is an illegal enterprise. Yale law professor Fred Rodell said: “The legal trade, in short, is nothing but a high-class racket.”
The common law began as an extortion racket in 1166. Extorting judges and their bagmen (lawyers) formed a cartel to protect their interests. By 1350, the cartel had all the bases covered: lawyer-politicians had effective control of the legislature. They still have.
Over the centuries, the cartel developed a string of other rackets: the adversary system, pleadings, disputed wills, concealing evidence, discovery, negligence etc, etc.
The adversary system began in 1460, when judges began to let lawyers take over control of civil evidence. This enabled serial liars to question witnesses, prolong the process, and increase their fees exponentially.
Lawyers began to defend criminals in 1695. Since 1800, judges have made rules which conceal evidence; tend to pervert justice; and give rich criminals a better than even chance of getting off. The rules were also applied to civil law.
The Productivity Commission has a reference to research and recommend how to achieve “faster, simpler, fairer” civil justice. In a second submission to the Commission, I explore a question: Are judges and lawyers guilty of wilful blindness to the system’s grave defects? See http://netk.net.au/whitton/whitton4.pdf
I. Contempt: guilt presumed
Contempt by affront is contempt of the judge in court. Contempt by publication allegedly prejudices ‘fair’ trials. Both are crimes, but outside the US the common law presumes that alleged offenders are guilty, and judges, not jurors, deliver the verdicts.
Affront originated in mediaeval superstition. The deity appointed the king; the king appointed the judge; an affront to a judge was thus an affront to the deity. The offender would suffer eternal damnation, and meanwhile instant retaliation.
Oliver Cyriax reports that in 1631 one Noy threw a brickbat at Judge Richardson – possibly Sir Thomas Richardson (1569-1635), Chief Justice of the King’s Bench (criminal cases) 1631 – but missed. Richardson had Noy’s hand cut off and displayed on a gibbet, and then had him hanged in the court.
Justice Sir John Eardley Wilmot (1709-1792) prepared an opinion for R v Almon (1765), as case of affront against a reporter, John Almon (1737-1805). Wilmot said contempt law was necessary to keep ‘a blaze of glory’ around the courts, judges alone gave the verdict because that was ‘immemorial usage and practice’. His opinion was never delivered, but it is still the leading authority for trial without jury in Australian contempt cases.
Some judges still believe they are enveloped in a blaze of glory. In 1977, Malcolm Turnbull (BCL Oxon), who was then a journalist, referred to judges by surname only. The egregious Harry (a profit is a loss) Gibbs warned him that ‘it was contempt to refer to a judge in any way other than as Mr Justice Bloggs’. Turnbull invited Gibbs to grow up.
Contempt by publication offends against the need for an alleged offender to have a guilty mind; it offends the presumption of innocence; and it offends trial by jury. It punishes media organisations which publish, even inadvertently, material which might be concealed from jurors.
Christopher Murphy, a Sydney lawyer, was not aware that a trial was proceeding when he mentioned the accused’s convictions in a newspaper article in 1993. The judge aborted the trial; Murphy and the organ were charged with contempt; three appellate judges found them guilty in 1994.
Unfortunately, the same man was again on trial; his convictions were mentioned at the contempt trial and reported in the Press; his new trial was aborted. The judges and the media were not charged with contempt, but in 1995 the judges confirmed the original guilty verdicts, and ordered the organ to pay the prosecution costs as well as their own. The penalty, some A$120,000, was enough to cripple a small newspaper.
Recent British contempt history shows how judges can subvert the will of Parliament. In BSC v Granada (1981), Lord (Cyril) Salmon (1903-91) adopted a formula developed by the Master of the Rolls, Lord Denning. Denning said (presumably before he went ga-ga): ‘The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information.’
The Thatchist regime agreed. Section 10 of the Contempt of Court Act 1981 stated: ‘No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice, national security, or for the prevention of disorder or crime.’
It took judges only three cases over seven years – Tisdall (1983), Warner (1987), Goodwin (1990) – to destroy the Contempt of Court Act. None of the judges was dismissed.
Contempt by publication does not exist in Europe because evidence is not concealed, and barely exists in the US because the First Amendment protects the public’s right to information.
J. Defence of the criminal system
Defence of the criminal system comes down to assertions that it protects the innocent and the ‘rights’ of accused, and protects everyone from oppression by the leviathan state.
Professor Stephan Landsman said in Readings on Adversarial Justice: ‘For centuries adversarial courts have served as a counterbalance to official tyranny and have worked to broaden the scope of individual rights.’ There is something in that, particularly in relation to selfless lawyers who try to help the poor and defenceless, but the argument collapses in the face of the system’s own tyranny.
Its unfairness oppresses victims of crime. Cruel cross-examination oppresses witnesses in general and women and children in particular. Negligence law oppresses doctors, accountants, teachers, local councils, shareholders in business and manufacturing. Interminable pleadings and discovery oppress litigants. Unfair libel and contempt laws oppress citizens, journalists and media shareholders.
In Twenty Theses on Adversarial Ethics, Professor David Luban told a Brisbane conference in 1997: There are four standard arguments on behalf of the adversary system: (1) It is the best way to find the truth. (2) It is the best way to ensure that all parties’ rights are protected. (3) It is part of our tradition and culture. (4) ... the adversary system is the way clients participate in the litigation process.
Professor Luban said all four arguments fail. He continued: ‘Only a pragmatic justification of the adversary system succeeds. I don’t mean to argue that the adversary system should be abandoned, however. Only if we had strong evidence that real-world alternatives such as the Continental European procedural regime are substantially better would it be worth contemplating a far-reaching change, one that would exile almost every Australian jurist from the only legal regime he or she knows …
‘A common-law country should retain the adversary system because: (1) It needs some procedural system; (2) The available alternatives aren’t demonstrably better than the adversary system.(3) The adversary system is the system in place. This is the pragmatic justification for the adversary system. It is logically weak but practically strong.’
Professor Luban’s argument also fails. An available alternative, the investigative system, which seeks the truth and trained judges control evidence must be better than a system which does not seek the truth and trained liars control the evidence.
I told Professor Luban in April 2007, that he would be the Red Rum of ethicists except that he falls at the last fence. He replied: ‘I don’t get the Red Rum allusion, but it sounds like a good thing to be.’ I told him Red Rum was the world’s greatest steeplechaser, three times winner of the Grand National. His third win, in 1977, was one of the great moments in British sporting history. He said: ‘I’m honored to be included in Red Rum’s company!’
In Professional Detachment, Harvard ethics professor Arthur Applbaum demolished two of lawyers’ traditional claims: ‘… at trial, a good lawyer regularly intends to
induce beliefs in juries that the lawyer believes to be false, and so deceives the jurors.
‘In trying to evade this simple and obvious fact, much breath is wasted on clever equivocation or bad epistemology [the investigation of human knowledge], such as “it is the job of the jury, not the lawyer, to render a verdict” (true but beside the point), or “the lawyer cannot know what is true or false until the jury decides” (false and beside the point).’
K. A criminal enterprise?
Debbie Kilroy, 28, got six years in prison in 1989 for drug-trafficking. In 2007, she was admitted to practise as a lawyer in Queensland. She said: ‘It’s usually the other way round: they become lawyers, then they commit the offences.’
That raises a question: is the adversary system a criminal enterprise? (See Definitions.) Lawyers and judges get money from doing things that would be criminal in anyone else, e.g. perverting justice.
However, it is usually necessary to prove a wrongful intent (mens rea) as well as a wrongful act (actus reus). Judges and lawyers may lack the necessary guilty mind because law schools have told them for 200 years that the adversary system is the best system and that it requires them to do those things.
Professor (of planning) Bent Flyvbjerg, of Aalborg University, Denmark, wrote in Rationality and Power: Democracy in Practice (University of Chicago Press, 1998): ‘Power often finds deception, self-deception, lies, and rationalizations more useful for its purposes than truth and rationality, [but that] does not necessarily imply dishonesty.
‘It is not unusual to find individuals, organizations, and whole societies actually believing their own rationalizations. Nietzsche, in fact, claims this self-delusion to be part of the will to power … The greater the power the less the rationality.’
Anything can be rationalised. John Bryson, barrister and author of Evil Angels, which detailed the Lindy Chamberlain case, told postgraduate law students at Melbourne University (When the Rule of Law Meets the Real World, 2001): ‘First, we believe as we wish to believe, always, always, always. Second, the passion with which we believe rises in absolute proportion to the importance to us of success in our current enterprise.’
Robert French, Chief Justice of the High Court of Australia, undoubtedly believed what he was reported (The Australian, 5 September 2009) as saying (in indirect speech): Common law in Australia had enshrined rights and freedoms, including freedom of speech and the press, and a range of others, including the privilege against self-incrimination, and the right to access a legal counsel when accused of a serious crime.
One assumes that Chief Justice French absorbed that stuff at law school. Unfortunately, as we have seen, freedom of speech and freedom of the Press do not exist in the common law world (except in the US), and the privilege against self-incrimination is based on a lie.
L. Impetus for change
Justice Geoffrey Davies, of the Queensland appeal court, noted results of rationalisation and self-deception in The Reality of Civil Justice Reform: Why We Must Abandon the Essential Elements of Our System (Australian Institute of Judicial Administration, 2002). His remarks apply equally to the criminal system.
He said: ‘Two related misapprehensions have inhibited change to our civil justice system. The first of these is a belief that our traditional civil justice system has, over time, developed the best means of ascertaining the truth and of achieving fairness between the parties.
‘And the second … is a perception that the civil systems of Europe are so different from ours and so inferior to ours in each of those important respects that nothing can be gained by borrowing from them.’
Nonetheless, impetus for change has been growing in recent decades. Warren Burger, later US Chief Justice 1969-86) said in 1967: ‘I assume that no one will take issue with me when I say that these North European countries are as enlightened as the United States in the value they place on the individual and on human dignity.
‘[Those countries] do not consider it necessary to use a device like our Fifth Amendment, under which an accused person may not be required to testify. They go swiftly, efficiently and directly to the question of whether the accused is guilty.’
Harry Whitmore, Professor of Law at the University of NSW, wrote in The Sydney Morning Herald (6 April 1981): ‘Some distinguished lawyers are indeed ashamed of the system in which they are working … it is a process which is as likely to suppress or distort the truth as to reveal it. The technique is often a charade …
‘It would be quite easy to develop a better system partially based on the European ‘inquisitorial’ system of justice … … a judge … should be concerned to find the truth.’
In 1984, Chief Justice Burger gave the American Bar Association a glimpse of the future: ‘Trials by the adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.’
Former judge Burton Katz wrote in Justice Overruled (1997): ‘A system that exalts a criminal’s rights over the victim’s, procedure over substance, and adversarial supremacy over the quest for truth and justice is on the verge of moral bankruptcy. It will not survive, because the people will not support it.’
Thomas Babington Macaulay (1800-59), a Whig barrister and historian, said a lawyer ‘with a wig on his head and a band round his neck will do for a guinea what he would otherwise think it wicked and infamous to do for an empire’.
In 1837, as legal adviser to the Supreme Council of India, Macaulay drew up a Penal Code based on the lawyer-run adversary system, minus some grosser technicalities.
The code, revised by Sir Barnes Peacock (1810-90, Chief Justice of Calcutta 1859-70), became law in 1860. India today has three-quarters of the 1.6 billion who suffer the injustice of the adversary system. As noted above, India’s conviction rate is 16%. Lord Macaulay’s system thus puts away one-sixth of guilty accused.
A blue ribbon committee recommended in April 2003 that India change to a truth-seeking criminal system.
The chairman was Justice V.S. Malimath, former Chief Justice of the Karnataka and Kerala High Courts. Committee members included D.V. Subba Rao, Chairman of the Bar Council of India, Amitabh Gupta, former Director-General of Police, and Durgadas Gupta, Joint Secretary in the Ministry of Home Affairs.
Justice Malimath said that at the core of the report was the ‘duty of the court to search for truth’, and that the criminal system was weighted in favour of the accused.
The report recommended that judges be given the power to summon and examine anyone they consider appropriate; to examine and cross-examine accused at trial; and to draw adverse inferences from a refusal to answer. At least in India, victims of crime would no longer have to suffer from Blackstone’s lie.
By late 2009, however, the Malimath recommendations were still to be passed into law. That may be due to rearguard actions by lawyers and by organisations who wrongly believe that the adversary system protects the innocent, e.g. Amnesty International and civil liberties groups. Or it may be nothing more sinister than that reform in India proceeds at a measured pace. It took 23 years for Lord Macaulay’s ‘reforms’ to be put in place.
In 2004, the Australian Family court began to experiment with a largely lawyer-free investigative system for custody cases.
The Australian (21 March 2005) reported that Mick Keelty, the Federal Police Commissioner, and other experts said a ‘system such as the one used in France’ would more effectively deal with terror suspects.
Commissioner Keelty had stated the obvious, but it was not obvious to Australia’s first law officer Philip Ruddock. He told The Australian he ‘was not currently in favour of a French-style system’, because ‘that involves a whole lot of principles that if introduced here would create a great deal of problems’.
The United Nations set up the International Association of Prosecutors (IAP) following a sharp increase in transnational organised crime after the collapse of the Soviet Empire in 1991.
The IAP now represents 128 countries in both systems. The NSW DPP, Nick Cowdery QC, who is on the IAP’s Executive Committee, said on 10 October 2008: ‘I’ve had some discussions about moving towards some aspects of the inquisitorial system too in the context of the [IAP]. I’m sure these discussions are being held all over the place very often.’
The Australian (31 October 2008) reported the Victorian DPP, Jeremy Rapke QC, as saying ‘something very serious is amiss with the manner in which criminal trials are conducted’, and that Rob Hulls, the Victorian first law officer, had said that lawyers need to abandon many of their adversarial traditions and join him in a cultural revolution based on an active, problem-solving judiciary.
Also on 31 October, 2008 Emeritus Professor (law) David Flint wrote in The Australian that Australia needs a Royal Commission to examine critically the criminal justice system. That is certainly true, but the chairman of any such inquiry should be book-ended by non-lawyers.
M. Convergence fails
Bob Askin, a famously corrupt NSW politician, told colleagues when his party won the 1965 election: ‘We’re in the tart shop now, boys.’ The adversary tart shop provides endless confections for the few who run it. Some lawyers in the investigative system probably gaze wistfully at the tart shop.
Under pressure of change, common lawyers’ fallback position is ‘convergence’ between the two systems, but with lawyers still controlling the evidence (and the money). Convergence is touted as a happy compromise, but a system run by trained judges who search for the truth cannot possibly converge successfully with an anti-truth system run by trained liars, who search for the money.
In 1993, the United Nations foolishly let common lawyers and judges have a slice of the action in dealing with crimes committed in what was Yugoslavia.
The International Criminal Tribunal for former Yugoslavia (ICTY) boasts on its website: ‘It [ICTY] has created an independent system of law, comprising of elements from adversarial and inquisitory criminal procedure traditions … It has established a unique legal aid system, and groomed a group of defence attorneys highly qualified to represent accused in war crimes proceedings.’
The folly of ‘convergence’ was amply demonstrated at the Milošević farce. Slobodan Milošević (1941-2006), a Serb, was President of Yugoslavia from 1997 to 2000. He was arrested in March 2001 and eventually sent to The Hague to stand trial at the ICTY on charges of crimes against humanity, violating the laws or customs of war, grave breaches of the Geneva Conventions and genocide in Croatia, Bosnia, and Kosovo.
The farce began on 12 February 2002. Two judges were from the adversary system, Presiding Judge Patrick Robinson, of Jamaica, and Judge Iain Bonomy, of Scotland. One was from the pro-truth system, Judge O-Gon Kwon, of South Korea. Milošević appeared for himself.
It took two years to present no more than the case concerning genocide in Croatia, Bosnia and Kosovo. Milošević, who suffered from a heart condition, asked to be treated in a heart surgery centre in Moscow, but the ICTY refused on the ground that he might escape. He was shortly found dead in his cell of a heart attack on 11 March 2006. The ICTY denied any responsibility.
His death was sad news for the ‘convergent’ lawyers. In more than four years, they had called 300 witnesses and were probably looking forward to many more years of gainful employ, and nice Dutch food.
Dr Radovan Karadzic (b. 1945), a Montenegrin poet, psychiatrist and (Serb) politician, was arrested in Belgrade, Yugoslavia, on 21 July 2008, and sent to The Hague on ICTY charges of genocide and war crimes against Bosnian Muslims and Bosnian Croats.
Amid reports that Karadzic’s trial was expected to take 10 years, Geoffrey Robertson QC said (The Independent, 1 August 2008): ‘ … it may be necessary to abandon the Anglo-American model of adversarial trial and shift instead to the European inquisitorial process’. In that process, judges present only enough evidence to manifest the truth.
The ICTY did not take Robertson’s advice, but Reed Stevenson, of Reuters, reported on Tuesday, 9 September 2009, that Judge O-Gon Kwon had urged prosecutors to ‘streamline their case’. Stevenson said ‘prosecutors said last week they would reduce the number of locations to be mentioned in evidence and cut their witness list by more than a quarter. But Kwon on Monday detailed several more areas for prosecutors to cut’.
Representing himself, Dr Karadzic asked for another 10 months to prepare. Judge Kwon said he had had enough time already. Kwon hoped the trial would start in October 2009 and be over in 2 ½ to three years, in 2012. In what may have been a useful piece of greymail, Dr Karadzic asked for documents from the administration of President Bill Clinton. If they were not forthcoming, the tribunal might find it difficult to convict.
The European Union has 25 members. Only three, the UK, Ireland and Malta, are in the anti-truth tradition. The Milošević and Karadzic trials should remind the other 22 countries that ‘convergence’ between the two systems would be inimical to justice, and would merely divert huge sums of money to lawyers.
Next: The remedy