It is interesting to note the similarities between utilitarianism and economic justice, both of which put the needs of the many over the needs of the few, disregarding social inequalities created in the process.
The theorist Nozick believed that a truly just society should have the minimum possible right to intervene in the affairs of individuals; its function should be limited to ensuring the basic needs of society, such as prevention of crime, and the enforcement of contracts.
Finally, the theorist Kelsen argued that justice is simply an individual’s preference and values, and therefore justice is not a quantifiable ideal. Therefore, he believed that the law and justice could be isolated from each other. He argued that the law is the law, and should obeyed even if the outcome is totally immoral.
To consider the extent to which the law promotes justice, the four main categories of law in terms of justice must be considered. Developed through the arguments of the above theorists, and many others, these are: Procedural justice; concerned with the proper application of rules, Substantive justice; concerned with just outcomes, Corrective justice, concerned with fair remedies and punishments, and Distributive justice, concerned with the fair allocation of societies burdens and benefits.
Procedural justice is split into three main areas. Firstly, equal access to the law. Everyone is entitled to put their case before a court of law. This area can come under criticism, in terms of legal aid, and court costs. Some argue that in civil law at least, the wealthier party has greater chances of receiving ‘justice’. This is now covered by Article 6 of the European Convention of Human Rights.
Secondly, there are the Rules of Natural Justice. These are meant to ensure that trials are fair. For example, the case of R v Thames Magistrates’ Court ex parte Polemis, where an unfair timescale before a trial led to the quashing of a conviction, because Lord Widgery confirmed that the right to fair trial includes the right to take adequate time to prepare a defence. The rules also require juries, judges and magistrates to be without bias, shown in the case of R v Bingham ex parte Jowitt, where the defendant was convicted on the word of a police officer, since the chair magistrate stated that he would take the word of a police officer over the word of the defendant as a matter of practice. Judicial prejudice was also covered in the case of R v Bow Street Metropolitan Magistrates ex parte Pinochet Ugarte.
Finally, there are the Rules of Evidence, which state that evidence used in court must have been obtained through fair means. For example, in the case of R v Watts, the conviction based upon previous convictions used as evidence was quashed, as the Court of Appeal judge that their prejudicial effect outweighed their value as evidence.
These procedural rules promote justice, because they ensure to a reasonable degree that the vital processes which lead to a conviction, or a confirmation of civil liability, are fair, and free from prejudice which might invalidate them, and lead to miscarriages of justice. If the process by which law is executed is unjust from the start, then the outcome will always be so.
Substantive justice involves several subcategories of the law. Firstly, rectifying mistakes as any system of law will have errors and miscarriages of justice which must have a method of repeal. The Prosecution have the chance to appeal a judges ruling on a point of law during a trial, and the Defence can appeal against the verdict or sentence afterwards. The Attorney-General can appeal against an unduly lenient sentence, and miscarriages such as those of the Birmingham Six and Guilford Four let to the establishment of the Criminal Cases Review Commission, which prevents further unfairness.
Secondly, there is the issue of avoiding an awkward precedent. The rigid application of rules of precedent can lead to an unjust outcome on some circumstances. The courts have developed ways of avoiding this, for example the House of Lords powers to depart from precedent. Judges can use the method of distinguishing, to find differences between scenarios. For example, the case of Merritt v Merritt avoided the precedent set in Balfour v Balfour.
Thirdly is the issue of conscience decisions by juries. Juries have the right to acquit a defendant even if he has no right to a defence, for example the case of Ponting, where a civil servant who leaked information to an MP on the grounds of public interest was acquitted, despite the Judge’s direction that he had no legal defence whatsoever.
The rules of equity, developed by the Court of Chancery, recognised the concept of trusts, and allow the creation of new remedies to supplement the common law remedy of damages, such as injunctions.
Proportionality in sentencing allows for the fact that no two crimes are identical, and allows judges to exercise discretionary power over sentencing, to find a punishment that fits the crime, when considering mitigating and aggravating circumstances. This particular principle however has been diluted by the Crime Act 1997, which established minimum and mandatory sentences for certain circumstances, such as R v Turner, where a judge stated that he considered his own actions unfair when sentencing for an offence which the defendant had been sentenced differently for on a previous occasion.
Finally, substantive justice includes balancing competing interests. Sometimes, perfect justice is impossible, and on these occasions the law has to balance each parties right to justice, and must choose the fairest solution, sometimes the lesser of two evils. In the case of Re A, the Court of Appeal held that an operation to separate conjoined twins should go ahead, against the parent’s wishes, if there was a chance to save one of them, rather than let them both die.
This area of the law could be seen to promote justice, as it uses principles such as equity and proportionality, to ensure a fair outcome, which is arguably the most important aspect of the case. However, the area of sentencing has been shown to be in need of attention, as even judges have noted circumstances where justice is ignored by statute guidelines.
Corrective justice has highlighted problems with sentencing, and with civil law remedies. A key example is the Tony Martin case, where a Norfolk farmer who shot an intruder in his home, was faced with a mandatory life sentence.
This further highlights the gap between the law and justice in regards to sentencing. The law can not maintain a reasonably close relationship with justice while there is discontinuity in sentencing.
Finally, distributive justice has shown difficulties in regards to Parliament’s responsibilities in making law, especially when imposing taxes and other burdens on citizens.
It is important to note that in recent years, improvements in DNA evidence techniques, and a greater awareness about miscarriages of justice, has highlighted several cases where the law has made unjust decisions.
Beginning with the cases of the Birmingham 6 and the Guilford 4 in 1989 and 1991, they include such cases as Eddie Gilfoyle, jailed in 1993 for killing his pregnant wife, who may now be released on the grounds of new evidence which may provide him with an alibi for the time of the murder. The evidence was from a hearing held a month after Mrs Gilfoyle died.
Another high profile case of justice miscarried is that of R v Cannings, where a mother was convicted of murdering two of her children, who had previously lost three children to Sudden Infant Death Syndrome, or cot death. The Court of Appeal later held that in the event of expert evidence failing, it was the crown’s burden to prove the crime, not the defendant’s duty to disprove it.
Finally, there is the recent case of Sean Hodgson, convicted of killing 22-year-old barmaid Teresa de Simone, who was released after 27 years, when DNA evidence proved conclusively that he was not her killer. Hodgson had been jailed after he admitted to the offence, due to a mental condition that had caused him to become a pathological liar. None of this was properly assessed in court, leading to his unanimous conviction. The CCRC is now asking the CPS to consider reviewing similar cases where DNA is now available, and the defendant is still alive.
In conclusion, the law does not promote justice as much as it should do, due to failures in a few key areas, such as sentencing, and various factors leading to the recent surge in miscarriages of justice.
It should still be noted however that the legal system is by and large a fair mechanism for the execution of justice, with the Human Rights Act 1998 ensuring that it follows the ECHR, and with organisations such as the Criminal Cases Review Commission working to find and highlighted miscarriages of justice.
The problem comes from the fact that a perfect justice can never be obtained, and there will never be a case in which all parties feel they have been treated in truly fair manner. This is why there comes a point where the courts must make a decision and abide by it, whilst balancing the interests of all parties involved, to achieve the best justice they can. It is easy in hindsight to condemn the courts for miscarriages of justice, without considering the stress that outside influences, and certainly the media, place on hasty convictions.
