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Justice - Corrective justice

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Corrective justice

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 should he?


Justice, in 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 Service. 

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 be unlawful.


The Crown 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 silence - nemo tenetin ipsum accusare (no one may be compelled to betray himself)

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 guilt…”


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.
Right to silence Criminal Justice and Public Order Act

The Royal 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 

Burden of proof

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.


Davies v Eli Lilly & Co [1987] 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 parties.”


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 strict liability.


Human 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 rules of evidence

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 Sparks [1964] PC (Bermuda) a white man assaulted 3 year-old whose mother was not allowed to give evidence because it contravened the rule of hearsay evidence.  In Jeffrey v Black [1978] DC drugs found during search for sandwich police was admitted.  In R v Mason [1987] CA 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 Bailey [1993] CA the police relied on evidence from a tape recorder in the suspect’s cell.


Excluding evidence

Pursuant to 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.


Trial by jury

A jury can do justice irrespective of the substantive rules of law.  In R v Ponting [1985], 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 Wilson (1996), 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.


The proportionality of sentencing

Mandatory minimum 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 early?


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) [2002] 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 R v Ellis (Ruth) (Deceased) (2003) CA 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 Davis (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.


The appeal process

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 (1974) 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.


Appeals 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 West Midlands Health Authority [1985], 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.


Appeal against acquittal

Following the 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 “double jeopardy


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 rule. 


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.


Attorney General's References

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.


Appeal against sentence

The Criminal 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.


What price justice?

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.


Appeals 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 importance. 

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