I'm not terribly worried about what the Colston case tells us. I think the justice system should be much more embarrassed about some other recent but much less well-reported civil judgments that I mention below. But I will suggest that looking at what has gone wrong in the civil justice system reminds us what courts are really for, and that reminds us why we might well want to stick with juries, despite their problems.
(More below the break.)
If the law does permit people to take down statues that belong to others merely because they don't like them then the law needs to change. I'm not at all sure that that is the law, but no doubt the position will become clear before too long. And that's all I have to say about the Colston case itself.
These things happen, you might say. That's what courts are for: to resolve these kinds of arguments. But now the story gets ugly. The matter reached trial in November 2021, by which time each side had instructed a building surveyor, a mechanical engineer, an electrical engineer and a quantity surveyor. Yes, that's right, 8 expert witnesses in total. There was a Scott Schedule (the list of the individual items in dispute) with 160 entries. There was a 5 day trial. All of that costs money - lots of money! - and the loser normally pays most of the total bill. As the judge commented, "I am acutely aware that, as so often occurs in this type of case, the outcome will likely be a financial disaster for one of the parties and, even if not, likely an expensive and ultimately unrewarding result for both" (my emphasis). The judgment doesn't give the figures, but there is no doubt that costs would have been well in excess of the amounts in dispute - and no doubt more than the total cost of carrying out all the works. Moreover, as the words I have emphasised indicate, there was nothing surprising about any of that.
But it's not just boundary disputes. Let's look at The Huntsworth Wine Company Ltd v London City Bond Ltd [2022] EWHC 97 (Comm), a case about the theft of wine from a warehouse. What was the outcome of the trial?, you ask. The judge tells us: "I gave judgment for Huntsworth on the claim in the sum of £1,000 together with interest of £67.88 and judgment for LCB on the counterclaim in the sum of £3,662.34 together with interest of £243.07. Thus the net sum due from Huntsworth to LCB pursuant to my judgment was £2,837.53". So, it was just a little case then? Well, not exactly. The link I have given above is to the judgment on costs. It's about the length of a novella, and if you scroll to the end of the 142 paragraphs you will find that the defendant was held entitled to a net payment of £131,298.55 in legal costs. £131,298.55! That's just how much the Defendant gets: the total spent on the case by both parties together could plausibly have been more than a quarter of a million. All expended in determining the outcome of under £3,000. You might be surprised to hear that this case was one conducted under the rules of the "Shorter Trials Scheme", a special accelerated and simplified court regime that should lead to reduced costs.
As I say, the bigger and more interesting issue raised by the case was whether it is a good idea to have juries in criminal trials. Many people seem to think that the verdict in the Colston trial, assuming it was "wrong", is an indictment not of the law of criminal damage, or of the evidence provided at trial, or of the prosecution's arguments, but of the jury system itself.
One might find this surprising. From time to time judges come to decisions that people don't like, such as being insufficiently tough when sentencing a criminal or trying to derail Brexit, but the response is never "it's time to replace judges with juries". Why?
One reason for the difference between the reaction to jury-mistakes and judge-mistakes might be a certain deference that the British public has to the well-spoken professional or expert. But there are more reasonable grounds for the asymmetry. The respected legal blogger Spinning Hugo gives a good one: juries don't give reasons for their decisions and that is an affront because it is a fundamental requirement of justice that the parties know why they have won or lost their case. As he puts it, "What is actually important is that the right result is reached for reasons given by the decision maker."
One could quibble with that kind of argument. For example, in a case in which the defendant says "it wasn't me who did it" then a guilty verdict simply means "oh yes it was", and no further reasons are required. But not all cases are like that. The acquittal in the Colston case is a good example: it's not clear which of the various defences raised by the defendants was the one (or ones?) that got them off.
So I think we have to concede that Spinning Hugo has a point. Something of the Platonic Ideal of Justice, so to speak, is lost when a jury just returns a "Guilty" or "Not Guilty" verdict without further explanation. And, surely, that is what Justice with a capital J is all about, what is "actually important"?
I think there are good reasons to support the institution of the jury, for all its faults. In my view, David Allen Green, whom I often find irritating, is right about the jury system for the reasons he gives here. (I overlook the fact that he is teasing his normal opponents somewhat.) In a similar vein, see Adam King here.
But these arguments are all rather high-falutin'. They are about the Constitution, Liberty, Bulwarks Against Tyranny, and various other things of that rarefied kind. Let's turn away from the pure Form of Justice, re-enter the cave we live in and look at a working justice system in practice.
Perhaps the closest that the English legal system gets to the Platonic Ideal of Justice is in heavyweight commercial litigation. Those who do not see it from the inside are probably unaware of quite how good the English legal system is at its best. It really is the Rolls Royce of actually-existing justice. Each side has teams of highly intelligent, highly motivated people, most of whom are also urbane, interesting and festooned with hinterlands. If there is a technical or scientific issue in dispute, or an issue involving some other organised field of learning (such as the law of a foreign country), then the globe will be scoured for the leading people in the field, who will then be asked to focus their erudition and minute attentions on the relevant question. The factual evidence will be subjected to forensic analysis. The law will be examined from every angle. Arguments of the highest quality will be made both in writing and orally. Judges or arbitrators of intelligence, experience and acumen will think carefully and deliver fully reasoned decisions that explain precisely why the winners won and the losers lost.
It is truly a wonder to behold. Like seeing the All Blacks play against one of those inspired French sides capable of defeating anyone, it is hard to imagine the activity done better.
Does it always get the right result for the right reasons? Does a rugby match always give the right result? No human institution is 100% perfect, but the Rolls Royce English legal system gives a Rolls Royce performance.
The problem is that the right car to convey royals to the State Opening of Parliament in suitable comfort and dignity is probably not the right choice to pop to the corner shop for a pint of milk and a packet of fags. And a lot of litigation is more like a quick trip to Costcutter than a solemn procession to the Palace of Westminster. Indeed, it's more or less an open secret at the Bar that the Rolls Royce approach to justice in commercial litigation is a disaster for smaller cases, particularly ones that have lots of factual issues to resolve and require expert evidence, such as domestic building disputes.
At around the same time that Bristol Crown Court was trying the Colston defendants before a judge and jury, HHJ Stephen Davies was sitting alone trying a civil dispute in Manchester: The Sky's the Limit Transformations Ltd v Mirza. Here's his decision, reasons and all. The case was not unusual. A homeowner in Bolton got the builders in to do up his house at a total cost of about £150,000. In April 2017, they fell out before the work was finished. In December 2019 the builders sued the homeowner saying they were owed more money. The client, who by that time had paid the builder about £144,000, disagreed. There were some thousands of pounds in dispute.
These things happen, you might say. That's what courts are for: to resolve these kinds of arguments. But now the story gets ugly. The matter reached trial in November 2021, by which time each side had instructed a building surveyor, a mechanical engineer, an electrical engineer and a quantity surveyor. Yes, that's right, 8 expert witnesses in total. There was a Scott Schedule (the list of the individual items in dispute) with 160 entries. There was a 5 day trial. All of that costs money - lots of money! - and the loser normally pays most of the total bill. As the judge commented, "I am acutely aware that, as so often occurs in this type of case, the outcome will likely be a financial disaster for one of the parties and, even if not, likely an expensive and ultimately unrewarding result for both" (my emphasis). The judgment doesn't give the figures, but there is no doubt that costs would have been well in excess of the amounts in dispute - and no doubt more than the total cost of carrying out all the works. Moreover, as the words I have emphasised indicate, there was nothing surprising about any of that.
Let's look at another recent example. This is in the notorious field of boundary disputes. In this case, the dispute concerned alleged encroachments of 8 or 9 inches. The judge commented: "it is quite beyond my comprehension to see how an encroachment such as this would warrant the substantial costs which I was informed by both counsel had been incurred by the parties, who, at one stage, were very good friends to litigate this dispute. The Claimants’ costs alone are estimated at £90,000 plus VAT. I do not think the Defendant’s costs will be substantially less." Yes, about £200,000 all in spent arguing about a few inches of land. (That's just par for the course. From another recent case, Thackray v Wise [2021] EWHC 2059 (Ch), we learn that the owners of nos 40 and 42 Deanshurst Gardens, Leeds, had a boundary dispute which ended up in one of them being ordered to pay over £115,000 to the other.)
But it's not just boundary disputes. Let's look at The Huntsworth Wine Company Ltd v London City Bond Ltd [2022] EWHC 97 (Comm), a case about the theft of wine from a warehouse. What was the outcome of the trial?, you ask. The judge tells us: "I gave judgment for Huntsworth on the claim in the sum of £1,000 together with interest of £67.88 and judgment for LCB on the counterclaim in the sum of £3,662.34 together with interest of £243.07. Thus the net sum due from Huntsworth to LCB pursuant to my judgment was £2,837.53". So, it was just a little case then? Well, not exactly. The link I have given above is to the judgment on costs. It's about the length of a novella, and if you scroll to the end of the 142 paragraphs you will find that the defendant was held entitled to a net payment of £131,298.55 in legal costs. £131,298.55! That's just how much the Defendant gets: the total spent on the case by both parties together could plausibly have been more than a quarter of a million. All expended in determining the outcome of under £3,000. You might be surprised to hear that this case was one conducted under the rules of the "Shorter Trials Scheme", a special accelerated and simplified court regime that should lead to reduced costs.
Of course, I have picked out some telling examples. But it wasn't difficult for me to find them. You shouldn't think that these are causes célèbres in the legal world: these are just some recent examples of the sort of thing one sees all the time.
I don't think I need arguments about big abstract nouns like Tyranny or Liberty to persuade you that something has gone badly wrong here. A justice system in which a builder and a householder cannot argue about tens of thousands of pounds without facing "financial disaster" in the event that they lose is simply not a good justice system. Sure, it gets the right result for the right reasons. But that end does not justify the means taken. The cost is too high: fiat justitia ruat caelum is not a maxim about building disputes in Bolton.
To be fair to judges, they know that something has gone wrong and they have no shortage of suggestions for solving the problem. In The Sky's The Limit, the judge proposed radical limits on the evidence including compulsory joint experts, caps on costs, limits on trial lengths and compulsory mediation or early neutral evaluation. A few years ago, in Bradford v Keith James [2008] EWCA Civ 837, the Court of Appeal said that the solution in the case of boundary disputes might come from employing "the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution".
But note that these suggestions are not merely leaving the Rolls Royce in the garage and using one's bike instead. They are suggestions that involve not making the journey in the first place. Their aim is to avoid having a judge hear both sides of the argument in full and give a reasoned judgment as to who is right and who is wrong. To go back to Spinning Hugo's formulation, they are attempts to avoid getting the right results for the right reasons.
Let me explain. One strand of this kind of thinking is to limit what the parties can do in court: less evidence, fewer experts, less time in front of the judge. Each of these is a departure from the Platonic Ideal of Justice, which involves putting all of the relevant evidence before the judge so that s/he can weigh it all up and decide the right outcome for the right reasons. Instead, it's saying that more-or-less the right result, for more-or-less the right reasons, is good enough. For example, HHJ Stephen Davies suggests a limit of £25,000 for each side's total costs after the CMC (a preliminary hearing that happens at an early stage in cases of these kind), a limit which would make it effectively impossible to run a case with proper expert evidence in the normal way.
The other strand to this kind of thinking, namely pushing the parties into mediation or other alternative dispute resolution, is an even more radical departure from Justice properly so-called. In court, there is an answer: someone loses and someone wins, and the judge tells you which is which and why. But a mediation is a compromise: no one wins, no one loses, there's no decision and no one gets any reasons for anything.
None of that should be understood as a criticism of what the judges are saying when they suggest these alternatives to full court trials. On the contrary, I think it is obvious that they are the right kind of ideas. But this kind of thinking surely gives the lie to the thought that all that matters in a justice system is getting the right decision for the right reasons.
I've taken a detour via civil justice to make my point. You might retort that I've tried to pull the wool over your eyes: it's one thing for merely civil matters to be resolved in rough and ready ways, you will say, but surely different considerations apply to criminal justice?
There's (some) truth in that: criminal justice is subject to (some) different considerations. But those different considerations also include matters beyond reaching the right result for the right reason.
Think of the various things that can happen to a suspected criminal other than a criminal trial, verdict and sentence. There are many. A stern telling off or warning from the police. A formal caution or being bound over to keep the peace. A plea bargain in which the suspect admits a lesser offence in return for a more serious charge being dropped or in return for turning the Queen's evidence against another. A convicted criminal asking a judge to take other offences into account in sentencing. One of those restorative justice schemes in which a criminal says sorry to his victim or the community and tries to make things right again. More or less compulsory treatment for drugs or mental health problems. A decision not to prosecute because it's not in the public interest. A statute of limitations. An amnesty for the sake of a peace process. A Royal Pardon. Just plain old mercy.
Not all of these ideas currently have a home, or a home with secure tenure, in the English criminal justice system. But it seems to me that there are perfectly decent arguments why some or all of them might. And that is despite the fact that none of them involves getting the right result - the right decision on the law and the facts - for the right reasons. There are simply other things we are interested in. When we look at these examples we immediately see that that is right.
And that takes us back to juries. Juries are widely believed to have strengths in areas that 'right results for the right reasons'-type justice can't reach. For example, even when we are using the lofty rhetoric associated with time-honoured principles, we all know that it is important not only that justice is done, but also that it is seen to be done. Courtenay Griffiths QC, a senior silk, makes the point that "black defendants see Magistrates Courts as police Courts": there may well be a trade-off between getting the "private" fairness of the kind of reasoned judgment one can get from a stipendiary magistrate (sorry, District Judge (Magistrates' Court)) and the "public" fairness of a jury trial in which the facts are found by a random but representative selection from the population as a whole. Or, to take another example, it is not crazy to believe that the laws should roughly track the moral consensus of the population as a whole. Juries can help with that: if the country does not believe that X should be a crime then we will tend to find that no jury would convict someone accused of X. Just as in the context of civil law, there are trade-offs between, on the one hand, getting the result perfectly right in each case and, on the other, having a workable justice system that does what we need it to do.
In short, we don't need to invoke Bulwarks Against Tyranny or the Rule of Law to find reasons for juries. We just need to remember what courts are for. The justice system is not an academic field of enquiry aimed solely at getting the right legal results. It's just not. It's a practical institutions for helping to keep the peace in a settled society, ideally operating alongside other institutions that tend to similar ends, such the family, education and cultural norms. It's an institution which has to be manned by humans, with all the imperfections that entails, has to be paid for by individuals and a government with other demands on their time and resources, and has to enjoy the support and confidence of the changing society in which it sits. It's great when the system that emerges from that kind of crooked timber delivers the right results for the right reasons! But that's not the only thing that matters.
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