Theories of justice
refer to “substantive Justice”; “remedial Justice”; “concrete justice” and
“operational justice”, which often mean the outcome of a given case, or
the legal processes, but we are not going to treat them separately.
One developing area of the law is Alternative Dispute Resolution (ADR),
and the question is being asked is whether ADR provides substantive
justice? The question is based on the assumption that a claimant
would not embark on legal action unless he felt he had a legal right;
increasingly he is required to submit to ADR and reach a compromise, why
practice, is achieved during three stages.
The pre-trial stage
In criminal cases,
this usually means the role of the police and the Crown Prosecution
The police have
enormous powers over individuals and communities, consequently statute
(Police and Criminal Evidence Act 1984) and the courts firmly control the
way they conduct themselves.
The courts will only
allow the police to use admissible evidence, properly obtained and
presented, and decisions of the police are subject to judicial review,
either before proceedings start or during a trial. Therefore, at the
pre-trial stage the police activity is constrained either by applicable
laws or in the knowledge that the courts may later hold their actions to
Prosecution Service (CPS)
The CPS is also
subject to procedural checks and balances, most obvious in their Code of
Practice for Crown Prosecutors. There is also a requirement that
both parties disclose information to prevent being 'ambushed' during the
trial. “Litigation is not a game”.
The right to
- nemo tenetin ipsum accusare (no one may be compelled to betray
Viscount Sankey in
Woolmington v DPP (1935) HL said: “Throughout
the web of the English Criminal Law one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoner's
The right not to be
required to incriminate oneself is enshrined in the presumption of
innocence. The so called “right to silence” is nothing new, what is
new is the drawing of adverse inferences because a suspect has not
answered questions. The ‘new’ rules appear to have political origins
in anti-terrorism efforts and an attempt on the life of the Northern
Ireland Secretary (Tom King). The government of the day not only refused
to follow the recommendations of two Royal Commissions against such change
but also declined to incorporate the modest protections recommended by a
Home Office Working Group.
silence Criminal Justice and Public Order Act
Commission on Criminal Justice 1993
recommended retention of the right of silence but proposed limitations on
the defendant’s right to elect jury trial. The Criminal Justice
and Public Order Act 1994 followed and made important changes to the
right of silence. The accused’s failure during police questioning to
mention facts, which are later relied upon at trial, or the accused’s
failure to testify at court, may now be the subject of comment at trial.
The court may draw appropriate inferences. It is arguable that an attempt
to do justice to stop the guilty going free it has had the opposite
effect. In the two years, 1997-1998 thirteen appeals involving adverse
inferences have been quashed.
(Winters,; Henwortt; Birchall; Moshaid; Nickolson; Pointer; Gayle; Hart
and McLean; McGarry; Abdullah; Mountford; Barrett).
Search for the truth
Michael Mansfield QC
in his book “Presumed Guilty” argues that we should replace accusatorial
system, up to the time of trial, with an inquisitorial system to ensure
that the judge properly supervises the investigation of crime by the
police, thereby seeking the truth rather than allowing the prosecution
merely to secure a conviction
Disclosure of evidence
Before disclosure of
evidence became compulsory, it was not uncommon for the defence to hijack
the prosecution with an unexpected defence. Alternatively, a case
would have to be adjourned because the defence would have been unable to
prepare for the evidence they did not know was going to be used against
them. In addition, the prosecution will frequently not use all the
evidence in its possession (“unused evidence”) if the prosecution does not
wish to use it, the assumption is that it may help the defence case and so
they should hand it over to them, (disclosure). “In return”, the
defence must outline the type of defence they intend to employ, thereby
creating a level playing field in the cause of justice. The duty of
prosecutors to make “unused material” available to the defence in criminal
cases is set out in the Criminal Procedure and Investigations Act 1996,
and the Criminal Justice Act 2003. The Acts recognises that the duty
of disclosure must accommodate the need to protect sensitive information
the disclosure of which could damage important aspects of the public
interest, such as national security. If disclosure would cause real
damage to the public interest by, for example, compromising the identity
of an informant or a sensitive investigative technique, the prosecutor may
apply to the judge for authority to withhold the material. Such
applications take the form of a claim for public interest immunity (PII) -
often erroneously referred to as "gagging orders".
Perverting the course of justice
Any interference in
the investigation of a criminal trial, for example lying to the police,
creating false alibis, or destroying evidence gives rise to a charge of
perverting the course of justice. The partner of Ian Huntley - who
murdered two girls - Maxine Carr discovered this to her cost.
The trial stage
We have an
adversarial legal system in the UK in which it is for the prosecution in
criminal cases, and for the claimant in civil cases, to prove their case.
The magistrate is an independent and impartial arbiter of law and fact.
In Crown Court trials, the jury is the arbiter of fact, and the judge the
sole arbiter of law. Cases coming before the court are decided on the
basis of the evidence produced and knowledge and understanding of the law
as applied to the facts. Therefore, it follows that nothing other than the
evidence and law made available during the trial is used.
Eli Lilly & Co
concerned a group action relating to the drug “Opren” that was prescribed
for arthritis but had wide reaching side effects. Sir John Donaldson
dismissed an appeal against the trial judge’s ruling that group action
should share costs and the problems over the test case (the parties
eventually settled the case by arbitration). He said, “Litigation is
not a war or even a game. It is designed to real justice between opposing
The prosecution have
the burden of proving the defendant guilty beyond reasonable doubt, but
this premiss has been eroded by 'reverse burdens of proof', and cases of
Rights Act 1988
Justice in court is
achieved by acknowledging fundamental rights, such as the laws of
evidence, the right to a fair trial, the right to a remedy. The
Human Rights Act and the Convention cover many of these issues,
particularly Articles 3, 6 and 13.
Isaiah Berlin wrote
the 20th century would be known mainly for the rise and rule of the great
tyrannies, in Nazi Germany and Soviet Russia. If any lesson has been
learned from those tyrannies, it is that democracy must be defined as much
by what governments should be permitted to do in the name of the people,
as what they should be prevented from doing in the name of human rights.
The courts will only
admit relevant evidence fairly obtained, and, for example, juries are not
generally allowed to know about the defendant's previous criminal record.
This can operate
against the interests of justice when the court excludes some evidence.
In R v
(Bermuda) a white man assaulted 3 year-old whose mother was not allowed to
give evidence because it contravened the rule of hearsay evidence.
Jeffrey v Black
drugs found during search for sandwich police was admitted. In
the police tricked the defendant by saying they had fingerprints, as a
result his solicitor not able to give proper advice. In R v
Miller (1992) CA the police asked 300 questions of the
suspect, the interview was held to be oppressive. In R v
the police relied on evidence from a tape recorder in the suspect’s cell.
sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE)
a court has the discretion to exclude evidence. This can be either
confession evidence, or unfair evidence such as evidence that conflicts
with the European Convention on Human Rights, evidence that has
been obtain without regard to the rules contained in PACE and its Codes of
Practice, or evidence that has been obtained by a trick.
A jury can do
justice irrespective of the substantive rules of law. In R
v Ponting , a jury acquitted a civil servant
Clive Ponting against all the evidence for revealing state secrets about
the sinking of the “Belgrano”. In R v
a jury acquitted women who had damaged a Hawk jet against the instructions
of the judge. In R v Blythe (1998), a
jury acquitted a man for cultivating cannabis with intent to supply it to
his wife who was dying with multiple sclerosis.
Sentencing and substantive law
Governments of all
persuasions claim to be able to affect criminal behaviour and reduce crime
by sentencing policies. Some of these measures turn out to be
ineffective and risk bringing the law into disrepute. There is now a
Sentencing Advisory Panel that advises the Court of Appeal on sentencing,
supposedly to bring the touch of the common man into what has always been
the province of professional judges.
proportionality of sentencing
sentences can be unjust, this was alleged in R v Turner (2000)
CA where there was 33 year gap between offences but the convicted
man still received mandatory life sentence. The mandatory life sentence
for murder gives rise to all kinds of defences to reduce the conviction to
manslaughter, thereby avoiding a life sentence, one such spurious defence
was seen in R v Vinagre (1979) CA Lawton LJ
made it clear that "Othello Syndrome" is a flimsy defence, and did not
appeal to the court, but it was nevertheless successful.
Justice Is a matter
of treating like cases alike, except that not all murders are alike; is
the Home Secretary's power to release prisoners on licence sufficient to
ensure justice, all murderers be they sadistic killers, or compassionate
mercy killers receive the same sentence, but “lesser” killers are released
After trial stage
Most convictions are
upheld on appeal, but do not have the same impact when reported in the
media. There are, of course, exceptions, for example, in R
v Hanratty (deceased)  The Court of Appeal held
the conviction of Hanratty, the A6 murderer to be safe, after 40 years;
conclusive DNA evidence was used that was not available at his trial. In
Ruth Ellis, the last woman to be hanged in Britain, had her murder
conviction upheld by the Court of Appeal, the Criminal Cases Review
Commission referred the case to the court. During her trial, the judge,
Sir Cecil Havers, barred the jury from considering whether Ellis had acted
under provocation. Lord Justice Kay said,
“We have to question
whether this exercise of considering an appeal so long after the event,
when Mrs Ellis herself had consciously and deliberately chosen not to
appeal at the time, is a sensible use of the limited resources of the
Court of Appeal.”
Criminal Cases Review Commission, here.
In R v
(2000) CA the
Court of Appeal made it clear that acquittal was only on a technicality
and that there was no doubt the defendants had committed the acts of
murder and robbery. There were serious material irregularities in the
trial by the police failure to disclose information about an informant and
a juror's visit to the murder scene, which had been adjudged by the ECHR
as breaching Art.6 (1) of the European Convention on Human Rights 1950,
rendered the convictions unsafe.
There are only 36
Judges in Court of Appeal and 12 in the House of Lords, all sitting in
London. Thus, a small group based in London dominates the system.
They hear appeals from High Court, County Court, Magistrates and Crown
Courts. They set trends in both the theory and practice of law,
followed by all. Following
Stafford v DPP
the Court of Appeal only has to be satisfied that verdict was “unsafe”.
In R v Pendleton (2001) the House of Lords
quashed a conviction murder, because they said, the conviction was unsafe
and criticised the Court of Appeal for straying beyond it's remit when it
upheld the conviction in the light of fresh evidence. They should ask
whether the jury would have convicted or acquitted with the
fresh evidence, not, as they had in this case decide it they
think he is guilty.
to the Court of Appeal
Facts are presented
on paper, the Court of Appeal will not interfere with judges finding on
facts because he has seen the witnesses. However, they will
interfere with inference fact. In Maynard v
Midlands Health Authority
surgeons decided an operation was necessary, but they chose the wrong
operation and the claimant sustained injury. The trial judge had
completely misunderstood the medical evidence. They hear greater
legal argument, and have skeleton outline before the case.
Stephen Lawrence Enquiry, Parliament has enacted legislation that will
allow appeals against acquittal, the Criminal Justice Act 2003.
This is a radical departure from established principles, that a defendant,
once acquitted (or convicted) can not be retried, which is known as
Retrials will only
be allowed in respect of a number of very serious offences, including,
murder, manslaughter and rape, where new and compelling evidence, such as
DNA, fingerprints or a witness has come to light. There were two
principles arising from the common law which prevented this, autrefois
acquit and autrefois convict. These principles provided a bar
to a re-trial, in respect of the same offence. In addition, the courts may
consider it an abuse of process for additional charges to be brought,
following an acquittal or conviction, for different offences which arose
from the same behaviour or facts. There are certain exceptions to this
In addition, the
prosecution can appeal against a judges ruling that has the effect of
terminating the trial made either at a pre-trial hearing or during the
trial, at any time up until the start of the judge's summing up.
Under Section 36
Criminal Justice Act 1972, the Attorney General asks the Court of
Appeal to rule on a point of law, which arose in the trial. This does not
upset the unjust acquittal at first instance but allows the courts to
correct an error in law that led to the acquittal.
Justice Act 1988 sec 35 and 36 allow, in the case of indictable and
hybrid offences, for the Attorney General to refer a case to the Court of
Appeal if the sentence is thought to be “unduly lenient”. The Court of
Appeal can alter the sentence but may only substitute sentence that Crown
Court would have had power to impose in the first place.
On appeal which
involve legal issues there is usually one Queen’s Counsel (QC) plus one or
two junior counsel (on each side), each appeal can be very costly, both in
lawyers’ cost and court costs. There are usually 3 appeal judges.
to the House of Lords
An appeal to the
House of Lords appeal should not to be regarded as part of the process of
appeals as it is rarely granted and can only be on law of public