The Queen should die! Truth and Justice in the Family Courts

In Book 19 of Thomas Malory’s Le Morte d’Arthur, Queen Guinevere is accused by Sir Meliagrance of high treason through infidelity with Sir Launcelot.

I thought that was a good opening line for a blog about truth and justice in the family courts! What actually inspired this were the reflections here of @suesspiciousmin on whether family justice is adversarial or inquisitorial. In particular, the gauntlet was thrown down (an appropriate mediaeval metaphor), “Imagine for a second that you wanted to make our current family justice system MORE adversarial, how would you do it?”, which led me to this classic account of adversarial justice.

To get to the bottom of this matter, the Queen has a champion who will fight to the death for her. Sir Meliagrance is somewhat surprised that this is Sir Launcelot himself (the Queen’s lover, so professional misconduct and a conflict of interests, but there we go), and at one point the King intervenes to give the go ahead to measures to make the adversarial joust fairer: Sir Launcelot is to be partially unarmed, and fight with one hand tied behind his back. He still wins, Sir Meliagrance is beheaded, and the Queen is vidicated until another day.

This is classic adversarial justice. The two opposing arguments are championed by an advocate, they fight to the death, the King looks on dispassionately, makes sure the fight is fair, and in due course declares the winner to have been vindicated.

As that reputable legal source Wikipedia would have it,

An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense.

Never mind that the Queen had committed high treason by a lifetime’s affair with Launcelot. The aim of this joust is to be fair, not to establish the truth. Indeed, if truth be told, I can now reveal King Arthur spent his reign going out of his way not to discover the truth about his wife and his best friend. He feared, correctly, that the truth would undermine his vision of a fairer society embodied in the round table; and his hold on his kingdom. It is why this tragedy is called the Death, and not the Life, of Arthur.

But we have now established two important points about adversarial justice, that held true in mythical mediaeval England, and still hold true today.

Justice is not necessarily seeking truth

The first is that justice is not necessarily seeking truth. When I first realised this, it startled me, but it is a fact I have grown more accustomed to over the years. There are many reasons, as Arthur discovered, for not seeking truth. In criminal law, if you reflect on the rule against self-incrimination (the bit that leads the Agatha Christie suspect to say, “aah, but you can’t prove any of this…”) you will realise this is about a notion of justice, rather than truth.

What about the threshold, “beyond reasonable doubt”? On reflection you will realise that means that some people who are more probably than not guilty must be acquitted. Because we have decided that it is a worse injustice for an innocent person to be convicted than for a guilty person to be acquitted. So our notion of justice creates a system in which getting to the truth is not central.

This very day, the BBC has reported that, “Lawyers claim new policy causes miscarriages of justice“. a story based on people being required to plead guilty or not guilty before they have seen the case against them. The idea that you should know how good or bad a case your opponent has built up against you, before deciding how to answer the question whether you did it or not, is based on our notion of justice, not of truth.

I am not saying that our notions of justice are wrong. There are sound reasons for them. Listen to people justfying torture as a means of extracting information, and you may prefer justice to truth. Consider how vulnerable people can readily make false confessions of what they didn’t do, and you may be glad about rules against self-incrimination. Consider those occasions when juries have acquitted not so much because they believe in innocence but because they do not believe that the punishment fits the crime. If you take the same view, you may think this was justice (let’s just assume this happened in history – when we had the death penalty, for example – rather than that it happens today…)

What I am saying is that justice is not necessarily seeking truth, though an inquiry into truth is more a characteristic of inquisitorial than adversarial justice.

An inquiry into truth is not necessarily co-operative

The second lesson is that the true distinction between adversarial and inquisitorial justice is not that the former is confrontational and the latter is co-operative; but that inquisitorial justice is more active in its inquiry into truth. In many inquisitorial tribunals, the tribunal can itself take the lead in the process of extracting the evidence and inquiring into truth. And inquisitorial justice can be every bit as confrontational (or, as we might say, adversarial).

We don’t need to imagine what might have happened if the truth about the Queen’s infidelity came out, because it happened shortly afterwards. The Queen was sentenced to death; Launcelot stepped in again; there was open warfare between Launcelot’s and the King’s factions; the King’s illegitimate son Mordred meanwhile stepped in to seize the throne – and marry Guinevere; which results ultimately in the King and Mordred killing each other on the battlefield as the dream dies…

An inquiry into truth is not necessarily co-operative. Facing up to the truth can, as Arthur discovered, be every bit as confrontational and adversarial, as we see our dreams lie in tatters.

It is a trusim that the family courts are supposed to have an inquisitorial system  – albeit one questioned in the blog which prompted these reflections. It is certainly true that there are real questions about whether the inherent confrontation helps or impedes the inquiry. It was encouraging to be able to report just yesterday on a case in which a High Court judge adopted something more akin to Alternative Dispute Resolution in a public law child care case.

We only need to see the heat that is generated by the conflict inherent in the current system to know that something needs to change (see, for example, this blog from Pink Tape @familoo). Before we decide exactly what needs to change, we need to answer some fundamental questions:

What are the principles of justice that matter more than truth in the family courts? And how can we maximise co-operation rather than confrontation in bringing about that justice?

These are questions that suesspiciousminds attempts to answer.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

Opening Secret Courts

As it happens, I work a lot around issues of Mental Capacity in my day to day work so I have more than a passing interest in the dealings of the Court of Protection. The Court of Protection, you see, has a hand in many of the issues that might relate to decisions that are made in relation to people who lack capacity.

The Court of Protection is generally closed. The reasons being (and I make no judgement of the rightness or wrongness of this) is to protect those whose personal business arises in the court. As it relates to people who lack capacity in general, they are not able to make a decision about the reporting, or not, of their personal lives as they unfurl in the court and usually have not personally taken the active decision to go to court so should not (the argument goes, I suppose) deal with the publicity that surrounds it.

This is what is mean by ‘closed’ justice and ‘hidden’ courts that some newspapers, the Independent notably, campaign against.
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