The Judicial Process And The Ascertainment Of Fact

Modern Law Review 24: 721-24 (1961)

    The psychiatrist is a not infrequent visitor in courts of criminal justice, and of course observes the scene from his own particular point of view. As a witness, he is naturally under close examination by judge and counsel; and these gentlemen come to conclusions about psychiatric habits of mind which are frequently expressed with great robustness, both in and out of court. In the same way the psychiatrist, whose professional habit it is to inquire into the ways of behaviour and the motives of his fellow‑men, watches the performance put up by those with whom he is engaged, and forms conclusions of his own. The opportunity of expressing them, however, comes all too rarely; and this is why I am grateful to be given such a chance today.

    The judicial process does not seem to be designed primarily for the ascertainment of fact; and if it is not so designed, it is hardly surprising that it is not very successful. It is true that an effort is made to elicit facts of a certain kind; but these are facts in a legal and not in a scientific or even in a popular sense. A Lord Chief justice once told a company of which I was a member, that facts were what was found by a jury. For instance, if a jury found that the accused was not insane, then it was a fact that he was not insane, no matter what any number of medical men might say. Fact of this kind is of an altogether lower order than scientific (or verifiable) fact. But lawyers have had to put up with Brummagem goods for so long, that I do not think they always recognise the better article when they are given it.

    However, ascertainment of fact, even in this limited sense, is not the primary purpose of the judicial process. This purpose is, I believe, something quite different, namely, to display the might and majesty of the law. Why else do we observe, with an astonishment only mitigated by ennui, the elaborate ritual, the Oyez, the calling on the Almighty, the may‑it‑please‑your‑lordships, the fancy dress, the hordes of police kept waiting in attendance? These measures were designed centuries ago to amaze the peasantry and to strike fear even into the arrogant feudal baron. They were, perhaps, appropriate to an age of simplicity, when respect would only be given when claimed by pomp and show. Surely this time is past. The judge earns respect by the fairness and the ability with which he does his task, and these are not increased by the wearing of a wig. A wig, in fact, by the effort it discloses to evoke respect by the trickery of simple suggestion, in the mind of the thoughtful man excites only derision.

    Pomp and spectacle do of course play a part in the graces of life. There is no section of the community which does not make use of ceremony, on ceremonial occasions. But most professions put aside the frippery, the chains, the hoods, the wands of office, when they get down to daily tasks; and the way the legal profession clings to this sort of nonsense is anachronistic. It has a number of bad effects. By overawing the simple and inexperienced witness, it saps his confidence and increases his tendency to confusion. It has been found impossible to conduct children's courts in this way. The other victim is the judge himself, who is seldom able to resist the suggestion, daily reinforced over the years, that he in his proper person is something above the common run of humanity.

    There is a motivation, even more basic, which has its ill effects on the ascertain­ment of fact. To the ordinary citizen, the primary aim of administering the criminal law is to protect the public against wrongdoing. This is, of course, not a lawyer's idea; but I think the lawyers should explain this to the public in words of one or two syllables. Punishment of wrongdoing, restricted to the doing of illegal acts, has, so it is held, a retributive and a deterrent aspect. For these purposes it has to be awarded in due form, conspicuously, so that justice may be seen to be done. Any failure to maintain the due form negates the whole process. Higher courts do not hesitate to quash a sentence, and let loose a known enemy of society, if there has been even a minor lapse in the formalities. Punishments tend to be so severe, at the upper end running into deprivation of life and imprisonment for forty years, that the officers of the law, as humane men, become reluctant to inflict them, without requiring unrealistic standards of proof. We are constantly being reminded that the police know very well who is the author of such and such a crime, but that they are unable to take action because their knowledge is based on facts, cogent enough for moral certainty, but lacking possibility of proof by legal standards. Now it is one of the best established tenets of criminology that people are stopped from prohibited actions by the degree of certainty and not by the degree of severity of punishment. What the public needs from the legal profession is not more emphasis in stigmatising the evildoer who has been caught out, but the arrest of a higher proportion of the badly behaved from their antisocial courses.

    Mr. Du Cann, in his book Miscarriages of Justice (1960), criticises British justice on a number of counts. The procedure of a criminal trial is not inquisitorial but accusatory. It is loaded with a hidebound traditionalism and theatricalism. Get rid, he says, of the useless formulae; get rid of the dock; provide desks and writing facilities for the accused, the jurymen, and others. Use all up‑to‑date business methods. Get rid of the oaths and substitute affirmations. Perjury is rife; bring the perjurors to book. The single judge system is at fault; judges are too often deaf, ill, or senile. Oral advocacy by professional pleaders can, and often does, deflect the straight course of justice. The laws themselves are chaotic, obsolete statutes cluttered by case‑law. Substitute a criminal code.

    Of these many points I should like to emphasise but two. However much they are persuaded of the opposite, judges are made of the common stuff of humanity. If a man's powers begin to fail, it is not possible for him to have full insight into the change. The man whose memory is getting weaker, whose judgment is impaired, whose sympathies are withering, seldom realises what is happening, and always thinks much better of his powers than does the outside observer. One may be glad that it has at last been recognised that judges, like professors and doctors, suffer from our common lot, and that a retiring age has been fixed. But when one con­siders the fatefulness of the decisions that lie in a judge's hands, it would seem well to have available for them the same possibilities of medical supervision, and if necessary compulsory retirement on medical grounds, as exist elsewhere in the civil services. A further point emerges. The aphorism that power corrupts is as true of judges as of other men. Long exercise of the magisterial function has a deleterious effect on the personality. The danger would be less if the duties of convicting and of passing sentence were in different hands. Certainly the considerations which should be borne in mind on the two occasions are of a very different kind. Information of a kind not available to judges, for instance about the effect of punishments on crim­inals of different kinds and the ways in which their subsequent careers are affected by them, should be constantly brought up to date and be made available to the sentencing authority.

    The weightiest of Mr. Du Cann's criticisms is his point that the procedure of the courts is accusatory and not inquisitorial. A struggle is staged in which each team tries to pull the balance as hard as possible over to the one side or the other. Hence the violent oscillations, as prosecution or defence win a temporary advantage, hence the drama of the scene, hence the intrusion of powerful but irrelevant motive forces, such as the skill of the pleader. When the whole course of the trial is designed to interfere with any cold‑blooded appraisal by the jury, it is a miracle that their common sense prevails as often as it does. But the battle is relentless. Neither side will concede a point which can possibly be maintained, even in the face of a total lack of evidential support. The medical witness finds himself in a peculiarly invidious position. The tradition of having all witnesses called by one side or the other casts the shadow of partiality over all he says. Counsel on his own side tries to push him just as far as he can be made to go, and it is rare for him to retire from the box without being trapped into expressing an opinion with greater confidence or em­phasis than in a cool moment he would think justified. Lawyers complain bitterly about the way in which experts can be brought to disagree with fellow experts; but it is they who have forced this situation. I know any number of senior colleagues who refuse to be called in this capacity, because they know they will not be allowed to stand squarely between prosecution and defence, leaning neither to one side nor the other. The courts never see these men. The expert witnesses they get have been shopped for, by an agent who hires not the most balanced opinion but the warmest protagonist. I see no solution for this absurd state of affairs, except that witnesses should be called by the court. On appearance, they should be examined by the judge or the judge's assessor, and cross‑examined by both of the opposing counsel. No good scientific witness would object even to the most gruelling examination pro­vided it were carried out with respect for his good faith instead of with the implicit suggestion that he is, himself, out to make a case.

    Finally, we must not forget the fantastic cost in public money of these unseemly battles. If at an early stage the two sides could agree on what matters were so well established as to be acceptable without debate, and the matters which would have to be thrashed out, much time would be saved and things would be much easier for the jury. The oscillations of the scales would he less violent, and one could have a firmer hope that the instrument, more delicately held, would find an end‑point nearer the true equipoise. Quicker trials in a less fervid atmosphere would speed justice and save much human distress.

    I am told that the problem of delinquency and crime is graver now than it has ever been. Everyone is blamed for this, parents, teachers, doctors, psychologists, public welfare officials, everyone but the men whose proud claim it is to be the peculiar guardians of all that is law‑abiding. We accept this claim; but we ask them to consider how far their antiquated methods have contributed to the present situation.