Video interview with Géraldine Gadbin-George
The book "Law, languages and cultures : transversal perspectives on the difficulties of access to justice in the United Kingdom" directed by Géraldine Gadbin-George has been published in January 2017.
This interdisciplinary book written in English, at the crossroads of law (including comparative law), political science, civilisation, linguistics and literature, deals with the difficulties to guarantee access to justice for all today in the United Kingdom, despite this right being protected by Magna Carta. With globalisation, « linguistic superdiversity » and ongoing economic crises, ensuring such a protection is not obvious. The book focuses on this major subject, with a foreword from The Right Honourable The Lord Thomas of Cwmgiedd, Lord Chief Justice.
EPA : Tell us about this book.
Géraldine Gadbin-George : It follows a conference which took place at Paris 2 University in December 2015 on the difficulties of access to justice in the United Kingdom, viewed through a wide range of issues including language, cultural and political issues and of course, legal issues including French and English comparative law. The book takes into account very recent changes including those introduced in 2016 to French contract law.
EPA : Is Brexit present in the book ?
G.G-G : It is of course mentioned in the book but for obvious reasons, it is difficult to talk about something which has not yet happened. There is still a lot of uncertainty as to what Brexit will involve for the United Kingdom and to what extent it will affect the United Kingdom's relationship with continental Europe. Likewise in terms of access to justice, it is impossible to say what types of problems might disappear with Brexit and which other problems may emerge. However, it is likely that the United Kingdom will try to get closer to other common law jurisdictions such as the United States and of course, Commonwealth countries.
EPA : What prompted you to focus on the difficulties of access to justice in the United Kingdom ?
G.G-G : Clause 40 of the 1215 version of Magna Carta, which still applies today, protects access to justice. However, recent and likely future changes have caused concern that access to justice has been, and will continue being damaged. For example, the Legal Services Act 2007 allowed the creation of Alternative Business Structures (similar to the sociétés pluri-professionnelles d'exercice created by the French statute of 6 August 2015 known as the loi Macron) which have been perceived as likely to affect the quality of the services rendered by law professionals. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 withdrew legal aid from a wide range of legal fields. Future reforms which may affect access to justice are the suppression of about 80 courts in the next 2 years (to save public money) and the likely creation of an online court which will be mandatory for most disputes up to £25,000. One major concern here is that the involvement of judges in the Online court's judicial process may be limited to a strict minimum. This is part of the modernisation of access to justice in Britain. Likewise, in France, a statute on the modernisation of justice (aimed at making access to justice speedier, easier and more efficient) was also passed on 18th November 2016.
EPA : Tell us more about the various contributions made in this book ?
G.G-G : I am very grateful to the Lord Chief Justice for his foreword, which shows his permanent commitment to the need to ensure that everyone has access to law and justice in the United Kingdom. All the other authors contribute to pointing to past or existing difficulties, as well as suggesting ways to resolve them.
Richard Vogler focuses on the growing need for interpretation and translation in criminal proceedings and the emergence of new ideas about the communicative rights of defendants in one of the most multilingual cities in the world. Since 2011, translating and interpreting for the courts in England and Wales has been governed by a Framework Agreement for Language Services with a private organisation, Capita Translation and Interpreting. This has had a serious impact on the trial process with collapsed trials and boycotts by professional interpreters. However, London has also developed some innovative interpretation solutions, particularly in the context of remote interpreting and the virtual courtroom. These events are viewed in the light of significant recent European developments, notably, the recent caselaw of the European Court of Human Rights regarding the protection of persons who are unable to speak the language of the country in which they have been arrested and the European Union Directive 2010/64/EU on the Right to Interpretation and Translation in Criminal Proceedings. It is argued that, taken together, these two important initiatives represent a model for the establishment of more general European process rights, with important implications for a city such as London.
Akila Taleb-Karlsson and Marion Charret-Del Bove both address criminal legal issues.
Akila Taleb-Karlsson first seeks to show that the complexity of the criminal justice process in England and Wales can be a hurdle for defendants. She insists on the need for further improvements of the current system. For many years, the criminal procedural system has been organised according to the plea of the accused. Judicial confession (or admission of guilt) has become a powerful procedural device and a way of anticipating the outcome of the criminal litigation. In order to overcome the inefficiencies caused by courts’ congestion as well as to address the issue of cutbacks, the so-called managerial approach (or New public Management doctrine) was introduced in the criminal justice process by the Thatcher government. Pre-trial hearings (such as the ‘plea before venue’ arrangement – before the magistrates' courts – and the ‘plea and case management hearing’ – before the Crown court) are now in place. An increasing number of procedures allow criminal cases to be cleared up without the need to resort to a court hearing (e.g.: guilty plea by post; diversion from prosecution such as police or conditional cautions; penalty notices for disorder …). She wonders whether the wish to achieve speedy justice still ensures the protection of the accused's rights and in particular, access to law. She also wonders what would be the legitimacy (in light of the impact on the accused’s rights) of a criminal justice that would bring a relative orality, a partial public and open debate in the course of its proceedings. She carries out a limited comparative study with the current French criminal system.
Marion Charret-Del Bove deals with the role and consequences of non-language, or more precisely silence in criminal proceedings in the United Kingdom. The “privilege against self-incrimination” does not refer to one single situation, but, as Lord Mustill recalled in R v Director of Serious Fraud Office, Ex parte Smith : “In truth it [the right to silence] does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance” ( AC 1). Consequently, the right to silence covers several realities other than the mere fact of remaining silent when the suspect is arrested and interviewed by police forces. The author scrutinises how litigants exercise their alleged right to silence in criminal proceedings, particularly in view of the Criminal Justice and Public Order Act 1994 which contains a number of provisions which partially challenge the very principle of privilege against self-incrimination. The author points out that as a matter of fact, a right never really exists if individuals cannot fully exercise it.
Verona Ní Drisceoil focuses on language issues in Northern Ireland. Against the backdrop of ongoing calls for repeal of the Administration of Justice (Language) Act (Ireland) 1737 in Northern Ireland (‘all proceedings in Courts of Justice within this Kingdom shall be in the English Language’). Her chapter provides a lens within which to consider political and practical difficulties with granting Irish speakers the right to use the Irish language in court proceedings in Northern Ireland. Though supporting, in theory, increased legislative protection and legal status for the Irish language in Northern Ireland, real concerns arise about how the right to use the Irish language in court proceedings would actually work in practice – linguistically and otherwise. Understandably, Irish language activist groups and human rights bodies in Northern Ireland have pointed to law and language developments elsewhere (most notably Wales and Scotland) in making a claim for the right to use the Irish language in court proceedings in Northern Ireland but the contexts are infinitely different. Despite many years having now passed since the signing of the Belfast Agreement in 1998 and the commitments made therein to peace, to equality and respect for linguistic diversity, it is clear that issues concerning aspects of culture and identity, whether through voice or symbol, remain deeply problematic for Northern Ireland.
Maria Federica Moscati aims at analysing barriers to access to justice faced by disputants in resolving family disputes in England and Wales, and addresses the question: to what extent do family disputants have a real choice of process and retain control over the resolution of their family disputes? It will be argued that the current rules governing the resolution of family disputes have created new legal, practical and subjective barriers to access to justice. These barriers are found both within and outside the court system – and are sometimes not so immediately apparent that they can be individuated. There are general barriers to access to justice, such as limited legal aid. While these are important, more attention must be given to the specific barriers that single individuals and groups face, depending on different contexts. For instance, with LASPO and the introduction of MIAM, new socio-legal issues arise for disputants. As a result, the remedies to overcome barriers to access to justice should take into account such specific difficulties. Based on empirical research this chapter explores barriers that family disputants from different background meet in choosing a dispute resolution mechanism and during the resolution. Particular attention is put on issues arising during mediation and for litigants in person.
Olivier Beddeleem addresses the question of access to English contract law (more precisely pre-contractual civil liability) for a civil law specialist. In French law, the principle of freedom of contract applies to which a general duty of “good faith” (as defined by caselaw) was added. In the United Kingdom, the law takes the exact opposite view. In Walford v. Miles ( 2 AC 128) Lord Ackner held that : “A duty to negotiate in good faith is unworkable in practice as it is inherently inconsistent with the position of a negotiating party [...]. In my judgment, while negotiations are in existence either party is entitled to withdraw from these negotiations, at any time and for any reason”. Therefore, each party should be able to follow its own interest. For the author, English law is potentially misleading. Indeed a study of French and English caselaw shows that most situations which would lead to liability under French law also leads to liability under English law, however using different concepts like misrepresentation, tort, unjustified enrichment or collateral contracts. Therefore, in order for a civil lawyer to access English contract law, a thorough understanding of the principles applying to common law – and of the common law culture – is required.
Claire Wrobel takes us to the late 18th Britain, when the consensus on the panegyric presented by William Blackstone in Commentaries on the Laws of England (1765-69) limited the possibility to question the institutions of the day. Access to the law featured among the typically British liberties which fueled the patriotism described by Linda Colley in Britons: Forging the Nation (1992). Gothic literature has recently been read – by critics such as Fred Botting or Robert Mighall for instance – as a “symbolic site” enabling the enlightened 18th century to define itself by rejecting what it regarded as barbaric, including in the legal field, thereby contributing to the general consensus. The author contends however that the abuses depicted in Gothic literature as belonging to another context – usually medieval continental Europe – were a staging of the difficulties encountered by individuals in the English legal system in an exacerbated, dystopic mode. Such a hypothesis is corroborated by the fact that reformist discourse and Gothic literature complemented each other, exchanging arguments and metaphors. Examples drawn from the Gothic canon – such as The Italian (1797) or Melmoth the Wanderer (1820) – enable us to chart the problems encountered in accessing the Law. Some were linked to the common law itself, such as the use of legal fictions or the opaqueness of legalese, which needed to be translated to be understood by laymen; others were linked to the specific context of the 1790s, with the suspension of habeas corpus for instance; others still raised more philosophical questioning about the status of the individual facing the law, who is subject to imperatives and constitutes an object of discourse without having a voice of his/her own. The outbreak of war against France in 1793 made criticising the institutions liable to trials for sedition. Not until the Victorian era was debate open and a process of legal reform launched. A text like Bleak House (1853) can thus be read, as Marjorie Stone has suggested, as the continuation of the debate on common law opened by Jeremy Bentham. It is telling that at that time, Gothic fiction was “repatriated” and chose England as its favoured setting.
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