Thursday, 17th May 2012
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| Editorial comment February 20, 2012 |
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By Coen Lammers The Law Commission this week dropped a bombshell in the legal fraternity with its proposals to radically overhaul our judiciary system. The Law Commission reviews our laws and investigates whether they need tweaking to stay with the times, and monitors the processes to ensure that our justice system works as efficiently as possible.Over the years the commission has released several radical proposals, many of which have pushed the boundaries to test whether society and parliament is ready for any change, as much as actually promoting the alteration. The release of this week's consultation paper, however, is extreme even for the commission's usual standards and will have given the legal world plenty to think about. The main change proposed in the paper is to replace the 12-person jury with a judge or semi-professional jurors. The overhaul would be a complete departure from our adversarial model, used in Commonwealth countries and the United States, where lawyers present their evidence, undermine that of the opponent, while the judge mainly acts as referee over proceedings. Instead the commission favours the inquisitorial approach, used around Europe, in which the judges take a proactive role in proceedings and ask questions in the quest for the truth. The change would avoid unskilled, fresh-faced jurors being gazumped by clever tactics from crafty solicitors that would not work on an experienced judge. The move is also bound to speed up affairs when lawyers and judges can cut to the chase. Anyone who has witnessed a jury trial will know how often a jury has to retire for legal debates or has to be briefed by judges to explain what is going on, endlessly delaying the cases. Not having to select a jury would further quicken proceedings. The training of professional judges and jurors would also allow previous convictions to be used, which are currently inadmissible because they are too prejudicial in a jury trial. The biggest gain, however, would be a long-overdue end to the current confrontational system where witnesses are badgered and traumatised by lawyers, trying to undermine their credibility with the jurors. This is especially the case in sexual offences, and the Law Commission argues for reform because the current adversarial system is "alienating and disempowering''. Some women's rights groups estimate that only 5 per cent of offences are reported and less than half of those end in a successful prosecution. The high-profile case of Louise Nicholas demonstrated the pressures women are put under, and one leading women's rights campaigner in that period said she could not advise rape victims to go to the police because of the distressing process and low chance of success. The Law Commission uses the Nicholas case to argue that previous convictions should become admissible, as two of the three acquitted defendants in that case were already in prison for another gang-rape case. The New Zealand justice system was built on centuries of superior legal brains, so there is no need to throw the baby out with the bathwater. However, the recommended amendments to our courts need to be seriously looked at to speed up our protracted legal system and empower the victims.
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