Extract (pp. 18-22) from Evan Whitton’s Our Corrupt Legal System: Why Everyone Is a Victim (Except Rich Criminals. In the public interest, the whole book can be downloaded free from netk.net.au/whitton/ocls.pdf. His other writings can be sighted at and downloaded free from netk.net.au/whittonhome.asp
Everyone except common lawyers knows that truth is central to justice. The feather in the cap of Maat, the Egyptian goddess of justice nearly 5000 years ago, symbolised justice, truth and morality. Roman law was based, however shakily, on truth. The world’s most widespread system, the investigative system, has sought the truth since early in the 13th century.
Judge Harold Rothwax, of the New York State Supreme Court, wrote in Guilty: The Collapse of Criminal Justice (Random House, 1996): ‘Without truth there can be no justice.’ The Hon Russell Fox QC (b. 1920), a former Justice of the Australian Federal Court, opens his book, Justice in the 21st Century (Cavendish 2000), with this:
For present purposes, truth can be taken to mean the reality of what happened and is happening. This is what the ordinary person understands by the word, and the undoubted view of the general public is that the findings of a court, human error aside, represent the truth in this sense.
Justice Fox’s book, the product of 11 years of research, has the imprimatur of a joint launch by Sir Gerard Brennan, former Chief Justice of the Australian High Court, and (by video link) Lord Woolf, Lord Chief Justice of England and Wales.
At the launch, Sir Gerard introduced me to the author. Justice Fox made ticking signs in the air and said: ‘I read your book [The Cartel, 1998)]. You’ll be able to tick off where I agree with you.’ Thanks, judge, but it’s more the other way round. Justice Fox wrote:
… in legal procedure the meaning which approximates most closely to it [justice] is ‘fairness’ … the public estimate must be correct, that justice marches with the truth. Only in this way does the concept present a moral face, as distinct from one where the winner is the person with the greatest resources and best advocacy. This is the view taken on the continent and in other countries, where the whole system of justice proceeds on the footing that the truth is to be ascertained. Hence the investigational, or inquisitorial, approach of the French, which even provides that, the true facts having been found by a judicial officer, their presentation is not to be polluted by the parties.’ [That is, by the parties’ lawyers.]
In short, everything turns on truth. Justice means fairness, fairness to all and morality require a search for the truth; and truth means reality.
Sir John Mortimer QC (1923-2009), author of Rumpole of the Bailey, was one of the few common lawyers to admit that the adversary system ticks none of those boxes; it fails every test of justice. In Where There’s a Will (Viking 2003), Sir John noted ‘the gulf between the law and reality, the law and morality or, in many cases, the law and justice … or even common sense’.
The gulf between common law and common sense is not a problem for common lawyers. Dr John Forbes, of the University of Queensland, noted in Similar Facts (Law Book Company, 1987) that New Zealand appellate judges said in R v Hall (1887): ’Viewed in the light of science or common sense … the common law must often result in what the public may regard as a failure of justice. That is really not our concern.’
Nor are common lawyers concerned about the gulf between law and reality. The little girl who tumbled down the rabbit hole would find a common law trial almost as unreal as the trial of a knave for alleged tart theft which ends Alice’s Adventures in Wonderland (Macmillan, 1865). The judge, a cardboard figure, the King of Hearts, says from time to time: ‘Consider your verdict’. Not yet, his associate, a White Rabbit, gently advises. Like Lady Coleridge (see below, The judge as Humpty Dumpty), the judge’s wife sits on the bench. She frequently shouts: ‘Off with her head!’, and ‘Sentence first – verdict afterwards.’
The gulf between law and reality exists because England has not tried to find the truth for 1500 years, and specifically rejected truth as the basis of justice in 1219 and again in 1993. Judge Rothwax noted: ‘Our system is a carefully crafted maze, constructed of elaborate and impenetrable barriers to the truth.’ The barriers are at least 24 mechanisms which defeat truth, including six rules which conceal relevant evidence.
Justice Fox said the adversary system relies ‘on the parties [i.e. their lawyers] for the gathering and presentation of the facts. They are presented as the true facts, and there was a stir quite some years ago [in 1982] when I showed how wide of the mark our system takes us.
Common lawyers claim that concealing evidence makes trials fair to accused but, as Judge Fox noted, fairness to all requires a search for the truth. In what may be termed the Manuel Test, Gilbert Manuel, an Australian boilermaker who became a conciliation commissioner, said in a 1971 unfair dismissal case that his task was to deliver ‘a fair go all round’.
Justice Geoffrey Davies, of the Queensland Court of Appeal, wrote in a paper, The reality of civil justice reform: why we must abandon the essential elements of our system (Australian Institute of Judicial Administration, 2002:
… to invest our system with the virtues of ascertaining the truth or of achieving fairness between the parties does not stand up to close examination. In truth, it achieves neither …at least by the 1980s, judges had come to recognize that … it was not effective to ascertain the independent truth, [but this] would, I suspect, come as a considerable surprise to most members of the public who see the legitimacy of our system in its capacity to ascertain the truth whilst according procedural fairness.
If other judges knew by the 1980s that the system achieves neither fairness nor truth, why did they not try to change it?
Investigating the truth is not lawyers’ metier, but many are found in regulatory bureaucracies, including the US Securities and Exchange Commission (SEC), whose mission is ‘to protect investors’.
For instance, Bernie Madoff (b. 1938) founded Madoff Investment Securities in 1960, promising returns of 20-25%. It was a Ponzi scheme; he paid old investors with money from new investors. The scheme was remarkably durable because the SEC failed to investigate indications that something was wrong.
When Madoff confessed and was charged with fraud in December 2008, it was alleged that he had defrauded investors of $50 billion. The Philadelphia Bulletin’s Marc Kramer interviewed Erin Arvedlund, author of a book about Madoff’s operation, Too Good to Be True (Penguin, 2009) in September 2009:
Kramer: Why do you think the government never really caught on even with various people expressing their doubts?
Arvedlund: The SEC Inspector General’s report says it all; once I read it I didn’t know whether to laugh or cry. Biggest upshot: fire the lawyers and hire real fraud examiners at the SEC.