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 Post subject: No confidence in the system
PostPosted: Sun Aug 28, 2011 2:34 pm 
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Booker's dogged determination to shine the light of day into the families court system seemed to take a knock last week, when The Mirror and then the Daily Mail (amongst others) pitched into the Vicky Haigh case.

This followed high court judge Sir Nicholas Wall, who had decided to make his judgment on the case public, justifying his breach of the wall of secrecy by citing the "scandalous allegations" put in the public domain "via email and the internet".

View full article here

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 Post subject: Re: No confidence in the system
PostPosted: Sun Aug 28, 2011 3:01 pm 

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While children are meal-tickets they'll always be worth fighting for.
Someday people will realize the child's Right to both parents is actually the most important consideration.
If a mother does coach her child into making abuse allegations against her father then that is a crime several orders of magnitude worse than rape. Luckily conviction could only be secured on the evidence of the child so mothers have nothing to lose by trying it.

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 Post subject: Re: No confidence in the system
PostPosted: Sun Aug 28, 2011 4:18 pm 

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"AN ADVERSARIAL SYSTEM"

From time to time, people ask for a different system. The alternative to an "adversarial system" is an INQUISITORIAL system, such as they have in most continental courts, where the judge conducts an enquiry as to truth. This can work in an open court system but it places a tremendous onus on the judge, the examining magistrate etc to be fair and impartial. It is the system advanced in "Corpus Juris", the EU's embryonic legal code which states that its aim is " a fairer, simpler and more efficient system of REPRESSION" (P. 40, my emphasis). As one of the authors is Professor John R. Spencer of Cambridge University, I don't think a mistranslation can be claimed here.

What the family court system already has is a cosy system of inquisitorial procedures, pre-agreed between the bench and the "caring professionals" of social services who provide the only credible witnesses. In this there is quite insufficient room for any real "adversarial" challenging and weighing of evidence. The enforcement of secrecy and the absence of a jury ( another feature of Corpus Juris and Roman law systems generally) makes it an hermetically sealed system, accessible only to initiates of the official class.

By imposing secrecy, allegedly in the interests of families, a Kafkaesque monster has been created. It is already very close to the non adversarial system because all the officials and the bench are playing for the same team without any open, public supervision.


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 Post subject: Re: No confidence in the system
PostPosted: Sun Aug 28, 2011 4:54 pm 
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edward wrote:
"AN ADVERSARIAL SYSTEM"

From time to time, people ask for a different system. The alternative to an "adversarial system" is an INQUISITORIAL system, such as they have in most continental courts, where the judge conducts an enquiry as to truth. This can work in an open court system but it places a tremendous onus on the judge, the examining magistrate etc to be fair and impartial. It is the system advanced in "Corpus Juris", the EU's embryonic legal code which states that its aim is " a fairer, simpler and more efficient system of REPRESSION" (P. 40, my emphasis). As one of the authors is Professor John R. Spencer of Cambridge University, I don't think a mistranslation can be claimed here.

What the family court system already has is a cosy system of inquisitorial procedures, pre-agreed between the bench and the "caring professionals" of social services who provide the only credible witnesses. In this there is quite insufficient room for any real "adversarial" challenging and weighing of evidence. The enforcement of secrecy and the absence of a jury ( another feature of Corpus Juris and Roman law systems generally) makes it an hermetically sealed system, accessible only to initiates of the official class.

By imposing secrecy, allegedly in the interests of families, a Kafkaesque monster has been created. It is already very close to the non adversarial system because all the officials and the bench are playing for the same team without any open, public supervision.


Just because it is "continental" does not make it wrong. An alternative word for "inquisitorial" is "inquiry", as in Board of Inquiry, a format with which we are well familiar. And we have something of that already in the Coroners' Courts which, for all their faults, do mainly provide good service.

Your point though about the "tremendous onus on the judge" is well made, but that applies in any system. Perhaps on top of everything else, we need a more open system for appointing judges and - perhaps more importantly - an independent complaints system that enables us to get rid of judges when - as with Wall - they prove to be useless.

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 Post subject: Re: No confidence in the system
PostPosted: Mon Aug 29, 2011 1:21 am 

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Here on Ontario children are given their own lawyer and the judges tend to go with that lawyer as they should have no bias, no system is perfect, most in England seem wrecked!


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 Post subject: Re: No confidence in the system
PostPosted: Mon Aug 29, 2011 7:30 am 
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britchris wrote:
Here on Ontario children are given their own lawyer and the judges tend to go with that lawyer as they should have no bias, no system is perfect, most in England seem wrecked!


The lawyers here seem to work hand-in-glove with the social services ... a closed-loop system that refuses to allow in any daylight.

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 Post subject: Re: No confidence in the system
PostPosted: Mon Aug 29, 2011 10:12 am 

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There was a time, not so long ago, when judgement and sentencing were handed down by the jury, with the judge acting as merely the referee, before giving official voice to the jury's judgement and sentence.

And as for the similarity between "inquisition" and "inquiry", I think you're stumbling over the English language's propensity to borrow a word and change it's meaning in subtle ways. An inquisitorial court and a board of inquiry may appear superficially similar but they aren't. For one thing, a board of inquiry is generally convened from, if not "peers", then at least from people who are somewhat knowledgeable in a particular field. A board of inquiry also usually can only recommend actions based on its investigations, it can't enforce them.

The very fact that an inquisitorial court takes an active role in investigating a case that it is also going to potentially pass sentence on makes it partial. I know our system is broken at the moment, with courts essentially assuming guilt on the say-so of certain "special interests", but to even suggest that it should be replaced with a system that would permanently institutionalise the problem is... frustratingly wrong.

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 Post subject: Re: No confidence in the system
PostPosted: Mon Aug 29, 2011 10:31 am 
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archonix wrote:
There was a time, not so long ago, when judgement and sentencing were handed down by the jury, with the judge acting as merely the referee, before giving official voice to the jury's judgement and sentence.

And as for the similarity between "inquisition" and "inquiry", I think you're stumbling over the English language's propensity to borrow a word and change it's meaning in subtle ways. An inquisitorial court and a board of inquiry may appear superficially similar but they aren't. For one thing, a board of inquiry is generally convened from, if not "peers", then at least from people who are somewhat knowledgeable in a particular field. A board of inquiry also usually can only recommend actions based on its investigations, it can't enforce them.

The very fact that an inquisitorial court takes an active role in investigating a case that it is also going to potentially pass sentence on makes it partial. I know our system is broken at the moment, with courts essentially assuming guilt on the say-so of certain "special interests", but to even suggest that it should be replaced with a system that would permanently institutionalise the problem is... frustratingly wrong.


I don't disagree with you ... and that points the way, possibly, to taking the system away from the judges, who seem to be making a pig's ear of it. The idea of a "lay panel" appeals, but the essential issue is most certainly that secrecy has gone too far and serves no purpose other than to protect the system.

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 Post subject: Re: No confidence in the system
PostPosted: Mon Aug 29, 2011 10:51 am 

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Maybe a 'College of Jurors' from which juries are drawn. That way at least one could insist on certain standards of general and legal knowledge??

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 Post subject: Re: No confidence in the system
PostPosted: Mon Aug 29, 2011 10:57 am 
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SandyRham wrote:
Maybe a 'College of Jurors' from which juries are drawn. That way at least one could insist on certain standards of general and legal knowledge??


Possibly ... having served on a jury, and given evidence to several, I am not particularly impressed by your ordinary, run-of-the-mill jury.

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 Post subject: Re: No confidence in the system
PostPosted: Mon Aug 29, 2011 10:49 pm 

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We do at least have the advantage of not allowing the lawyers to ick and choose a jury to suit their case.

I suspect... I really do suspect that, if juries carried more power, their members might exercise more judgement about their behaviour. It seems like a miniature of the problem in Parliament, where the decrease in actual authority has lead to an increase in a lackadaisical disinterest toward their collective duty.

(Guess who found his thesaurus today?)

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 Post subject: Re: No confidence in the system
PostPosted: Mon Aug 29, 2011 11:21 pm 
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archonix wrote:
We do at least have the advantage of not allowing the lawyers to pick and choose a jury to suit their case.

I suspect... I really do suspect that, if juries carried more power, their members might exercise more judgement about their behaviour. It seems like a miniature of the problem in Parliament, where the decrease in actual authority has lead to an increase in a lackadaisical disinterest toward their collective duty.

(Guess who found his thesaurus today?)


Juries find on matters of fact. They have no role in sentencing, so this has less relevance to the current situation..

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