- Created by: Eleanpr Hughes
- Created on: 08-06-10 17:00
simple definition of justice
- Justice simple means fairness
- something unjust then unfair
- But most acedemics distinguish between two main types of justice: Procedural (formal) justice and Substantive (concrete) justice
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Theories of justice - procedural and substantive
- Procedural/formal justice: methods and procedures in place for making decisions and allocating goods and services, as long as these procedures are fair + everyone has EQUAL chance to benefit from them > system can be seen as procedurally/formally just.
- SO > justice can be served by innocent man being found guilty as long as had fair trial > procedure was JUST> outcome irrelevant
- Substantive/concrete justice: looks at the outcome or end result, only concerned whether this is fair.
- Previous example would not embody substantive justice as innocent person convicted of an offence they did not commit > does NOT matter trial fair
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- Thomas Arquinas: Just law one which served COMMON GOOD, distributed burdens fairly, promoted religion fairly and was within law makers autority > definition provides more questions than answers though e.g. which religion should promote a just society and why?!!!
- John Stuart Mill: UTILITARIANISM > fundamental object is human happiness, on this basis it is unjust to prohibit private cats of immorality since cause no harm to anyone and in fact increase pleasure
- Professor Hart: "The concept of law" > "like cases theory". To acieve justice like cases should be treated alike, as members of society we all have the same rights and duties and can be treated alike. But, where one member intentionally or negligently acts to harm another > law must act to restore the "like" position by requiring offendor to usually give something back to the victim to benefit then (usually money) > until balance restored
- Hart theory put in practice in R v. Reeves (1964) - 2 defendants recieved completly different sentence for same crime. COA order immediate release of D who had recieved custodial sentence.
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Other theories (2) :D
- John Rawls (American jurist): just society one in whic any rational human being would choose to live if given the choice. 2 fundamental priciples: certain basic rights would eist to ensure common standard, any social or economi inequalities would be tolerated as long as were for the benefit of the least well off members of society > people would agree doctors should be paid higher wages as this would encouarge people to qualify as doctors and benefits evertone (including the least well off) in the long run
- Nozick: "Anarchy State and Utopia" > just society one in which individual rights were accorded the respect due to them > based on therory that states evolved for the purpose of protecting its members natural rights
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main aim of law linked to justice
- whatever precieved meaning of justice is > one of main aims of law is in the persuit of justice
- Evidence> magistrates and judges have long been reffered to as "justices"
- Lord Denning (autobiography) > "the proper rule of the judge is to do justice... if there is any rule of law which impairs the doing of justice.... then it is the province of the justice to avoid and even change it"
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Procedural justice - criminal procedure
- Police and criminal evidence act (1994) > succesful police investigation dependant on police conducting operations in a fair and proper manner > so PACT provides strict guidlines for police conduct: arresting, questioning, detention and searching suspects. aimed at preventing conviction obtained through police pressurenor force > can lead to injustices e.g. GUILFORD 4 and B'Ham 6 But still potential for abuse: frequency of young black people (stop and search poers). Little doubt that prejebudies and outdated method reduced in the last 20 years
- Anti- terrorism methods > allow suspect to be detained for 28 days. most offences is 96 hours.Weeks cutody and no resaon for continued detention. + House arrest (limit freedom and direct infringment of liberty. Concerns extend period from 2 to 4 weeks: flawed!!! why 2 extra weeks mst not charged 14 days?!!!
- Presumption of innocence: Bail and custody hearnings (Bail act 1978), also enshrined in HRA 1998, presumed innocent and entitled to liberty as long as not dangerous
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Procedural justice (criminal law)
- Burden standrd of proof (criminal cases) > Woolmington v DPP, prosecution must prove all elements "beyond reasonable doubt" (presumption of innocence). Jury doubts = no conviction, But diminished responsibility and insanity: D cary burden of proof. Burden on prosecution too high > guilty D's acquited if good rep? victim = barier. Strict liability parliament recognise that criminal standard of proof not appropiate in all circumstances > remove barrier.
- Trial procedure: also in HRA, jury summoning (certain people inelegible or disqualified) and vetting (used when real risk of unfair trial), judge power to remove singular member or whole pannel. But: not always guarante justice (Gregory and Sanders - racial bias) and Young (oujia board - secrecy), media (Bowyer and Woodgate trail). abandoned trial due to nobbling > first criminal trial in Crown Court without jury (heathrow robbery)> increasing removal rigt to justice> problem mantain true justice?
- Magistrates> Local advisory commite cancel out bias when making recommendation to the Lord Chancellor. BUT - obvious bias: R v .Bingham JJ ex parte Jowett> chairman hint at prosecution/police bias > conviction quashed
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- Rules of evidence: e.g. inadmissibility of previous convictions in jury trial > complex rules delay? but benefit of justice.
- Process of appeals: opportunity to correct injustices. But: appeals costly and many cases permission needed from appeal court. not retrial so effectivness in correcting injustices?! also problem civil law
- Legal aid: all citezens have a right to access justice, recieve fair hearing and inderstnad legal rights and obligations > most people need help with this. Legal aid helps with this over 2 million people per year. importnat in social justice. But in civil law often means test and less available parties less well off can not afford good lawyers. In civil law often delays wealthy parties can afford to drag it out...
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- Concepts of AR and MR: promote fair outcome, not fair liable for involuntary act (Hill v Baxter) and for omission (Pitwood), causation: must be factual and legal no breaks >only truly culpable.
- causation: but legal causation: "take your victim as you find him" (Blaue > person found guilty of more serious crime than anticipated. widening of MR and attitude to medical treatment (cheshire) > unjust D. Possible to be found guilty of murder where not intend to kill or V recieve v.bad medical treatment
- MR: most serious crimes need proof of intent. diluting of MR > oblique intent, must be balanced by reality offendors can lie in the witness box + no physical way to prove MR > conviction Huntley (v.hard to prove 40 years ago). Recklessness: objective > subjective (G & R). Transferred malice relieves D from east defence (latimer) > victims ans societys point probably fair.
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Substantive justice (2) - defences
- General defences: unfair to be convicted if involuntary intoxicated or use lawful force
- justice can sometimes be cahieved by conviction of alesser offence > partial defence > Lipman and Ahluwalia but unjust to allow voluntary intoxication as defence for basic intent crimes (majewski)
- Defences succesful?! > Jaggard v Dickinson (rely on unresaonable, unfounded intoxicated belief in a friends consent to criminal damage), compare wilson and Brown and others > bottom branding/ tatooing > hard to rationalise. judges moral values
- partial defence: Homicide Act 1957: Fairer result MS where sufficant justification to remove murder label > Ahluwalia and Martin. But Problems with DR: too easy (prosecution accept 95% of plead guilty by DR raher than seek to prove insanity/murder), senence option varied V. Manslaughter (real risk people will be put in danger in future)
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substantive justice (3) - sentencing
- Principle of PROPORTIONALITY (attribute to justice under Aristotle). Questionable in relation to mandatory life sentence (murders and repeat offendors > mandatory life sentence). But: certain murders more culpable than others minumn tariff does not allow for proprtionality > harsh decisions. Rv Cocker (1989) > husband strangle his wife at her insistence as terminally ill and in much pain. deny defence of provoaction so had to convict of murder > dispraportionate justice would be better served if justices allowed to pass sentence they felt was most appropiate
- Good parts of sentencing :D > aimed at achievinf substnative justice e.g. young offendors rehabitation (fair-reform), different sentences available (justice offendor and society) > but at expense of victim? home office indirect pressure on judge and magistrates to use suspended sentence/community option reduce prison overcrowding
- aggravating and mitigating fcators considered: just individual outcome. Ruby (thin skull - mitigating)
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substantive justice (3)
- Appeal system: correct legal wrongs but many miscarriages of justice: Sean Hodgson (march 2009) - release after 27 years in prison fresh DNA evidence, Patrick Nicholls (1998) - released after conviction in 1975 for murder new pathological evidence, Dereck Bently (1998) COA quas conviction after he was hung for murder 1952
- But: criminal process allow guilty to walk free: Stephen Lawrence and Damilough Taylor - mistakes by police and CPS deny substantive justice
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Substantive justice... civil law
- cornerstone on law of negligence = breach of duty so unfair for D to be held liable unless fall below required standard i.e. do somethig seriously wrong
- Appear LOGICAL but decisions of Nettleship and Weston and Whitehouse v Jordan run contary to a presumption of justice
- Whitehouse v Jordan: extremly well qualified surgeon allowed to escpae liability for brain damage on young child > all doctors occasionally make mistakes
- All motorits make mistakes as well, these decisions seem to contradict each other and justice principles
- civil law > contract law
- Lord Stennings Autobiography, The Family Story: "root belief proper role of the judge to do justice. if any law that impairs justice then it is is province of judge to do all he can do to avoid rule and even change it > do justice in instant case before him" > reinvent principle of equity as an alternative to precednt in order to decide outcome of cases Used in: Central London Property v High Trees House (equitable principle of promissory estoppal) Eves and Eves (concept common law spouse)
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- clearly barriers to justice but aim of justice at root of eng legal system
- "perfect" justice impossible and unresaonable to expect
- COA Mc Ilkenny : "no system better than human input" > justice unavoidable despite various safeguards
- Perhaps greatest barrier to justice: peoples perceptions of justice as different
- Judges have to continually balance competing interests arriving at the most "fair and just" decision it can. But is justice cahieved to everyones satisfcation?!! samle cases to show this> Re A and Hunter and others v Canary Wharf ltd > different parties will have contrasting views on whether justic has been achieved.
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