Delaying Justice

Abstract

Delays in cases coming before the courts in Australia can lead to unfairness, uncertainty and impede effective decision-making and responsiveness. This chapter considers the definition of delay, drawing upon the literature that examines justice delays in Commonwealth countries and the impacts in Australia’s justice system. It highlights that resolving issues of delay in the court system has implications for justice and is complex. Care is needed that solutions do not lead to other problems downstream. This risk makes it a vexed and long-standing issue in problem solving to reduce delay. If delay is seen within only the narrow prism of efficiency, without a sophisticated understanding of the reasons and layers behind such delay, this can have implications on just decisions and confound the intended aims of the justice system.

Practitioner Perspective: Justice Delayed

• Sharon E. Lacy 

1. The Victorian Bar, Melbourne, VIC, Australia

   Sharon E. Lacy

Only very urgent cases are heard immediately after proceedings are initiated. In my experience as a barrister practising for over 20 years, the resolution of civil or criminal litigation involves some delay. Generally, much preparation is involved by all parties before a matter can be properly tried. But the balance of fairness can tip, and justice will less likely be achieved when the delay between initiation and resolution is unreasonably extended. The common law concept of ‘unreasonable delay’ is rooted in principles of equity and fairness, referring to delay that causes unfair harm or disadvantage to a party which cannot be rectified.

Consequences of Unreasonable Delay

The most extreme consequences of extended delay are usually found in criminal courts, where an accused person’s liberty and livelihood are curtailed between charge and verdict. There are many examples of an accused person who is charged, remanded in custody, refused bail, and ultimately upon trial, is acquitted. The burden of being an accused person waiting for trial cannot be under-estimated. Detention in custody invariably has an enormous impact on their personal life, family connection, mental health, employment prospects, housing and financial security. At some point the delay in resolution of their case has the effect of undermining the presumption of innocence—their detention awaiting trial punishes them as if they were guilty.

Other consequences of extended delay in both criminal and civil litigation that can affect an assessment of its reasonableness include that:

• witnesses’ memories can fade and the reliability of their account is diminished;

• physical evidence can be lost;

• relationships can be damaged;

• assets can be frozen;

• personal and professional development can be stalled; and

• court outcomes may become less meaningful.

Causes of Extended Delay

For matters to be resolved in a timely fashion requires all stakeholders to be committed to this end. Litigants, their lawyers, court services officers, judicial officers, police and security personnel and witnesses all have capacity to unwittingly, or otherwise, cause significant delay. There is a lot of room for things to go wrong and problems to arise along the journey of a legal dispute.

There needs to be appropriate capacity in resourcing of courts, court services, judicial officers, prosecutorial and legal aid services, technological facilities and support networks to avoid a court caseload backlog that entrenches extended delay in case resolution, quite apart from that which might be caused by the individual players along the way. Where the government introduces legislative or resourcing changes to legal practice, this invariably has a flow on effect to the role or workload of other players essential to the system. For example, where a large number of additional police officers are funded through a government law and order campaign, the police force has a greater capacity for the investigation and charge of offending—more people are charged with offences and more cases initiated in court.

These increased resources at the front-end of the criminal justice process cause a bottleneck at the resolution end, unless there is a corresponding increase in resources to all other entities involved. Similarly, if sentencing laws are amended to create mandatory jail terms for particular offences, people accused of those offences are less likely to plead guilty and will join the list of cases heading for trial.

Since the outbreak of the COVID-19 pandemic in early 2020, justice systems around the world have been grappling with how to keep the wheels of justice turning amid a public health crisis and population lockdowns. Some jurisdictions found creative ways, mostly through the expanded use of technology, to administer justice under extreme conditions. Others simply ground to a halt, leaving an unprecedented backlog of criminal and civil litigation that has entrenched long-term delay for many years to come.

Alleviating Delay and Its Consequences

There are practical things that can be done to reduce litigation backlog, limit delay or relieve some of the detrimental effects of extended delay. Delays are at greatest risk of extending unreasonably where a trial is required for resolution, because processes involving the calling of contested evidence, legal submissions, judicial rulings and jury empanelment, charge and deliberation, all require a great deal of time and resources. Any processes which assist case resolution without the need for extended court time, will reduce caseload backlog and limit entrenched delay.

Following are some practices that have been embraced in various jurisdictions to combat case backlog and resolution delay. Many of them apply particularly to criminal jurisdictions, because overwhelmingly this is where the most significant delay and the greatest consequence of delay occurs.

• 1. Case conferences can force parties to apply themselves to identifying the issues in dispute before an impartial judicial officer, who weighs in and attempts to settle the case. The process can be ‘without prejudice’ and provide a forum for flushing out the issues the really matter to each party.

• 2. Administrative caseload management and triage of cases can allow for prioritisation of the most vulnerable litigants and the cases for which extended delay would impose the greatest prejudice or disadvantage to a party.

• 3. Building greater agility into court resolution processes can mean that cases are not caught by rigid compliance procedures that slow down resolution. Introducing or better utilising lower-level court officers, like judicial registrars, at an early stage in proceedings, is one means of efficiently identifying the most direct route to resolution.

• 4. Less serious offences, like drug possession and petty theft, could be removed from the court system and offenders diverted through a caution process with supports available.

• 5. Prosecuting authorities could prioritise that offending which matters most to protecting the community and preserving social cohesion. They could adjust policies so as to more readily withdraw from pursuing less serious matters and those matters where prosecution is less likely to be successful.

• 6. Legislative provision could remove some of the uncertainty of outcome for accused people by allowing judicial officers to indicate the likely sentence to be imposed on an accused if they were to plead guilty. With outcome surety, an accused person is more likely to plead guilty to an offence they have committed.

• 7. Governments could legislate greater inducements for accused people to plead guilty, like increased sentencing discounts.

• 8. Alternative dispute resolution mechanisms can provide more purposeful outcomes for litigants and achieve case resolution more quickly and less onerously. Often plaintiffs or complainants do not want to go to court and do not necessarily want the accused prosecuted and punished—they simply want the wrongdoing acknowledged and for an apology.

• 9. The pre-recording of witness evidence can reduce the burden on witnesses while waiting for a trial to be reached. It also limits problems that arise with depreciation of memories and reduced reliability of evidence, caused by delay.

• 10. The amendment of bail laws can assist in preventing the unnecessary remand of accused people awaiting trial. The main purpose of bail is to ensure that an accused person attends their trial. There are many alternative means to provide some security to this end, other than detention in custody.

Conclusion

A fair process of justice, by which disputes are resolved and wrongs are accounted for, is an integral component of a civil society. If this cannot be achieved within a reasonable time, then justice cannot be said to be done. Around the world justice systems are in crisis by virtue of crippling delay. In many jurisdictions, much more substantial philosophical and structural changes may be required.