Radical changes, including a move to an inquisitorial civil system and a two-track Crown court, need to be considered as the state withdraws funding from the system, the lord chief justice said last night.
In a speech called ‘Reshaping Justice’ at an event to launch pressure group Justice’s 2014-16 strategy, Lord Thomas said the cutting of at least a third of 2010 expenditure is ‘very very different’ from what has happened before – and likely to be a permanent state of affairs.
‘The starting point is that we must be radical in our thinking. Too often in the past there has been an inevitable and not necessarily wrong tendency towards conservatism,’ said Thomas (pictured).
The type of reform needed requires ‘fundamental rethinking of our processes and procedures’ and the financial imperative does not afford the ‘luxury of time’ that reformers of the past have had.
‘One of the immediate consequences of the retrenchment in state expenditure has been the reduction in the availability of legal aid in family and civil cases,' Thomas said. ‘This together with the relatively high cost of legal fees charged by lawyers has resulted in significant increase in the number of litigants in person.’
Traditional court processes, he suggested, are not best suited to resolving disputes in such cases, and there is a need to make the legal process simpler in the civil and family courts.
‘Careful consideration’, said Thomas, should be given to moving towards a more inquisitorial system in the family and civil courts.
The idea, he said, was ruled out by the Evershed Committee in the 1950s as ‘entirely alien’ to England and Wales's adversarial tradition, but mooted again recently by the judicial working group on litigants in person.
The criminal justice system, he said, also needs a ‘degree of scrutiny’. Last week, at the behest of the justice secretary Chris Grayling, Thomas asked Sir Brian Leveson to examine ways to streamline the criminal procedures.
Fraud investigations and trials, he said, are ‘too slow, immensely expensive’ and result in too few prosecutions. Thomas suggested a radical rethink of disclosure and mode of trial.
More widely, he suggested the creation of two forms of criminal procedure in the Crown court, analogous to fast- and multi-track civil procedures, to separate the less serious elements of Crown court work.
The idea of an intermediate court between the magistarates’ court and the Crown court was proposed by Sir Robin Auld in 2001, but not pursued. Thomas said it was ‘radical, but not for its time’.
Now, suggested Thomas, ‘circumstances have changed’ – there is ‘far less’ work for magistrates to do and the Crown court is ‘heavily overburdened’ by a significant proportion of serious sex cases.
‘Surely it is time to consider this issue again given the financial circumstances in which we are now placed,’ he said.
In addition, he pointed to aspects of the system that are ‘no longer up to the job’ and in need of reform. In particular he highlighted the ‘antiquated court infrastructure’, specifically the IT systems, which he said have ‘for a long time fallen short’.
Thomas said: ‘Some would say that with such dramatic reduction [in expenditure], our system will break. But that cannot be permitted.
‘If it breaks we lose more than courts, tribunals, lawyers and judges. We lose our ability to function as a liberal democracy capable of prospering on the world stage, whilst securing the rule of law and prosperity at home.’