Scots law is ‘a kind of hybrid system,’ says Law Society president

THE legal sector can be slow and reactive in its approach to change. Seismic shifts tend to come on the back of seismic events, such as the Cadder judgment. It is unusual for a senior figure to throw an unexpected grenade into a debate just because he or she feels strongly about it, not as a reaction to anything specific.

In this context, the comments by Cameron Ritchie about the weaknesses of our adversarial system – and a sense that we can do better – carry significant weight. And not just because he is president of the Law Society of Scotland, but because of his long, distinguished experience as a public prosecutor.

Describing the system in Scotland, three adjectives recur – expensive, complex, time-consuming; the imperative to change due to people wanting their contact with the legal profession to be cheaper, simpler and quicker. Part of this change, he believes, could involve introducing aspects of inquisitorial law to certain areas – including complex cases where a jury is expected to take on board huge amounts of challenging evidence, hold it up against the charges and against legal guidance, and make very difficult decisions.

“There is an argument for taking a more inquisitorial approach to complex cases – [health and safety, fraud or Customs & Excise, for example],” he explains. “In some complex cases, juries are being asked to take in masses of information and apply it to very often complex charges. It’s not condescending to say they must find it difficult. I have spent 2-3 days just drafting fraud charges – never mind trying to explain them to anyone.

“I once sat with three advocate deputes drafting 20-odd [fraud] charges and it took six months to put the indictment together. We expect a jury to take all the evidence in and work out all the law. Real issues can get lost in masses of evidence. It’s incredibly difficult for them and it is capable of leading to a miscarriage of justice in either direction.”

One approach might be to give the jury a tighter, more focused role: “There are jury trials in inquisitorial systems, where juries decide a series of [specific] issues. I would prefer this to juries having the whole of the evidence dumped in their lap, being given an exposition according to the law and asked to come back with a verdict – sometimes based on 10-15 days of evidence. It’s hard enough for people who are qualified in law.

“We stick it all in front of a jury in open court through oral evidence – and they are told to get an answer. From a procedural point of view, it’s a total lottery. We could take things further by presenting a jury with a number of very clearly set out issues.”

Ritchie is concerned at the sheer quantity of oral evidence presented in court: “We have a system where unless a lawyer is satisfied the other side cannot prove a particular fact, he will advise a client not to admit it. It is much better to get agreed facts on the table. There is a debate to be had around that. “It is a nonsense everything is done orally. We need to start thinking what we are trying to achieve. I don’t pretend to have all the solutions but I’d like to see us not get so tied up in nostalgia for what a wonderful system we have that we forget to progress. We need to present the trial straightforwardly, simply and quickly to those who are asked to make the decision. Courts should be designed to focus on the key questions and how we answer those – not get involved in what can be a ding-dong battle.”

But what are the implications for making substantial changes?

“If you change it, the whole profession has to change the way it approaches their work and rethink their skills. There is a reluctance to change what we know and what we do. But we have no choice. People want things to happen more quickly, they want a result and will not accept it costs a fortune to do it.

“Care must be taken to ensure that the correct result is obtained but that’s not to say we cannot move forward and think of better, different ways of doing things.”

Ritchie feels the Scottish Government is moving to make the system more streamlined and effective: “The government is looking at this in a high-profile, strategic way. There is lots of work going on to get people cheaper and easier access to legal services.”

He welcomes this, but stresses he is not proposing to throw out Scotland’s adversarial system (or “accusatorial” system, which he feels is more accurate) for an inquisitorial one. However, he sees further potential for elements of inquisitorial systems in the lower echelons of civil courts. He thinks arbitration and especially mediation have a part to play, but favours the term “adjudication”.

“At the lower end of the civil market in particular, there is scope to take problems and issues to a qualified adjudicator – areas like matrimonial and family law. I have always queried going through an acrimonious, lengthy court procedure to sort out two people’s lives. Other areas could be considered, like personal injury and debt. A standard action on debt is an expensive, hugely complicated business involving large amounts of time spent on facts, pleas in law and condescendences – even before you go to a proof.

“It’s the culture we need to move on. The right method to deal with problems is not to have two sides fighting each other. There comes a point where we should have a judgment rather than a battle. The courts get frustrated with the adversarial system because they have no control over what is placed in front of them, and very elaborate rules about what they can be told.

“In the longer term we have to move the culture of society towards legal services away from constantly disputing things – that’s going to be difficult. Lots of people might think I am completely wrong and the system is perfectly good. But lots of low-level disputes end up in lengthy, time-consuming and expensive processes and as a society we cannot afford to do that.”

• CAMERON Ritchie is at pains to stress that Scots law is not purely adversarial.

“We are a semi-continental system. English law is much more adversarial in foundation than Scots law. Our criminal law is more ‘accusatorial’ than adversarial – the judge’s principal role is to be the referee and final arbiter. He doesn’t have a function in developing the case or evidence, working solely on information provided by the parties. The civil side is more adversarial.

“In a pure inquisitorial system, a judge or magistrate examines all the facts – which can include the criminal history of the accused – and comes to a conclusion. But how you get there in the first place has elements of accusatorial system. Scots law has elements of the inquisitorial system, such as the Procurator Fiscal Service to investigate criminal offences independent of the police and decide whether there is a prosecution. Then it becomes more like an adversarial system, though there is more scope for agreeing facts in criminal cases. Scots law is a kind of hybrid system.”