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Trial delays

  • June 6th, 2008

I don’t have recent trial experience as a lawyer. So I’m content to leave the debate over depositions to others. It is just one facet of the bigger scandal – the inexcusable delays in criminal trials.

There is simply no excuse for a system that can not try Sophie Elliott’s red-handed killer and sentence him within the time it takes to (say) diagnose and identify a cancer. There is no doubt that he did it. The only question is his mental state at the time.  Most human systems can cope with questions of equal or greater complexity in much less time. We give ourselves, typically, 12 weeks for the whole nation to decide whether to change governments in an election.

A system focussed on delivering justice to the Elliotts and the killer would have had it all over well before now.

The servants of the justice system sincerely believe each element of the status quo is vital. They fear that any change could nudge them onto the slippery slope of haste, where the innocent are carelessly convicted. They don’t see what the rest of us see, a self-important crowd standing in a swamp doing tai chi with their eyes closed.

The system will not survive unless the rest of us have faith that those servants can be clear eyed. Faith is hard to maintain when they treat as heretics questioners who ask whether a rule is the best way to get at the truth, and worry about cost (to victims as well as financially).

For example, a system focussed on justice would not allow a guilty party costlessly to game rules designed to protect the innocent.It would ensure he and his lawyer knew he’d add substantially to his sentence for any extra insult to victims from his defence tactics, including a not guilty plea, and the provocation or insanity arguments Sophie’s killer is presumably preparing to run.


  • F E Smith
  • June 15th, 2008
  • 1:15 pm

You won’t find many lawyers who like delays in the system. In fact, I have frequently been instructed to enter of guilty pleas, even when a defence, has been available to the client, simply because of the length of time it would take to get to a hearing. Nobody actually enjoys being on bail, especially if they are going to spend the next 6 to 9 months (or more) on a curfew, with the police checking it any time of the night they feel like doing so.

The problem is twofold- firstly, not enough defence lawyers (and this is a common statement of mine) so the same lawyers are doing most of the work, therefore it is to some extent those lawyers diaries that enforce the delay (although only to a minor extent- the courts watch us like hawks on delays). To get things done as quickly as you suggest, you would require a defence lawyer to basically give up the rest of his practice while concentrating on such a case. That is very hard to do. For example, my diary has me in court at least 4 days a week for the next 3 months, so if I were to get a murder case to be heard and finalised in the next, say, 6 months, there are a lot of cases that I have to get rid of. Secondly is the police issue. To prepare a trial or fixture file, even at present, is often time consuming and a lot of our delays are simply because the police don’t complete the disclosure process quickly.

Add in the extraordinary delays in forensic testing, which take months, not weeks. A colleague of mine had a trial put off last week at the crown request, because the forensic testing was incomplete. That was despite being willing to concede all the forensic issues the crown was investigating. The trial process is not just a victim and an accused and delays are far wider than just the accused and his/her lawyer.

Our clients already get discounts of up to 33% for early guilty pleas, so I don’t think there is much movement in that unless you are willing to go to 50% plus discounts. Then you run into the problem of making the punishment side of the system a bit of a farce.

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