Inquisitorial system may be better for family and civil cases, says top judge

Inquisitorial system may be better for family and civil cases, says top judge

      Calls for rethink on delivery of justice in era of cuts and a review on whether so many criminal cases need to go to crown court

      Lord Thomas, the lord chief justice, says reductions in legal aid have already resulted in a rise in the number of unrepresented litigants in family and civil cases. Photograph: Lewis Whyld/PA

      A judge-led, inquisitorial system of justice may be a better way of conducting family and civil cases where litigants are unrepresented, the lord chief justice has suggested.

      In a challenge to centuries of British legal tradition based on adversarial hearings, Lord Thomas has called for a radical rethink of the way justice is delivered in an era of austerity.

      The most senior judge in England and Wales also proposed reviewing whether so many criminal cases need to be sent to the crown court, a change that would significantly restrict the right to trial by jury.

      While declining to endorse any particular reform, Thomas's demand for a fundamental reassessment is a wide-ranging response to the turbulence within the legal profession caused by the scale of government cutbacks being imposed on the justice system.

      This Friday many criminal justice lawyers will refuse to attend court across England and Wales in protest against cuts to legal aid cuts. A rally will gather outside parliament and march to the Ministry of Justice bearing a copy of the Magna Carta scroll, symbolising the threat to 800 years of British justice.

      In a separate development, the senior judiciary has published a scathing attack on plans by the justice secretary, Chris Grayling, to introduce "enhanced court fees" – charges greater than the costs of proceedings – that would raise £190m a year and enable the civil and commercial courts to cross-subsidise the loss-making family courts.

      Describing the plans as "unworkable", the senior judiciary's response to a MoJ consultation said: "The judiciary has for many years consistently made clear that it does not support the policy of successive governments that the justice system should be self financing.

      "None of the documents issued by the government sets out the policy justification for requiring civil court users who pay fees, some of whom will themselves be hard-pressed, to fund those unable to pay the fees. A benefit given in and for the public interest might be expected to be a public expense.

      "There is no good reason for treating the civil and family courts as a single system. Their functions are quite separate. There is no obvious connection between civil claims, such as actions for damages for personal injuries, consumer disputes, claims against the government or commercial disputes between businesses, and the business of the family courts, whether care proceedings or divorce.

      "The assertion in the [MoJ's] impact assessment that user demand will not change in response to planned fee rises appears to contradict a basic law of economics concerning the elasticity of demand. As this proposal stands, it is unworkable. Great care and precision would be needed if such a proposal is to be taken forward to avoid not only injustice but also damage to the international position of London and hence the UK economy."

      Speaking at a meeting of the civil rights organisation Justice in London on Monday evening, Thomas said: "Our system of justice does need reshaping to deal with the fundamental change that is occurring in the role of the state. It is retrenching. The budget for justice is being reduced substantially."

      While other areas of public spending had been saved from deep cuts, the justice system has been left "unprotected from that retrenchment", he said, adding: "It has undergone cuts before but this it is very, very different. The magnitude of the cuts will … be something in the order of at least a third in real terms of the 2010 expenditure. Moreover, the anticipation is that the cuts will be permanent and not merely whilst times of austerity are with us."

      Reductions in legal aid have already resulted in a "significant increase" in the number of unrepresented litigants in person in family and civil cases. Thomas said: "Traditional procedures are not best suited to a dispute between a father and mother over a child when inevitably matters that have caused emotional stress are raised by them in court as adversaries in person rather than being raised by lawyers acting for them."

      An inquisitorial system might be an improvement for litigants in person and "secure a fair trial for all whilst doing so within limited and reducing resources," he said. "The essence of the change would be a much greater degree of inquiry by the judge into the evidence being brought forward."

      Some lawyers, he admitted, would see it as a "process alien to our adversarial tradition". Research would have to consider whether an inquisitorial procedure would require more judges or a "new cadre of junior judges".

      On crown courts and jury trial, Thomas said: "At the moment the crown courts deals with a wide range of offences from the most serious to what can be described as the much less serious – fights where injuries are not overly severe and dishonesty where the monetary value is small."

      Past proposals for an intermediate court between magistrates and crown court, in which the bench consists of a district judge sitting with two magistrates, had been rejected as too radical.

      The lord chief justice acknowledged that the "altering of the boundaries of cases where trial by jury is available is an issue on which … there are very strongly held views".

      But, he added: "Circumstances have changed: there is far less work for magistrates to do and the crown court is heavily overburdened by a significant proportion of its work relating to serious sexual offences. Surely it is time again t consider this issue again given the financial circumstances in which we are now placed."