Critically analyse the extent to which the law is successful in achieving justice, and discuss the difficulties which is faces in seeking to do so. (30 marks + 5 AO3) Justice is central to our law. Most would agree the law should be just, but justice is not easy to define. The concept has been studied by many philosophers all of whom have their own theories of what a just society should be. Aristotle, a Greek philosopher, was born 384 years before Christ (BC). He separated justice into two parts – distributive justice and corrective justice. Distributive justice is concerned with the fair distribution of society’s wealth. He went onto say that this wealth should be spread according to merit and an individual’s contributions into society. So this system relies on giving to those who have contributed in some way rather than to those who are needy. Aristotle said that distribution on the basis of people needs merely rewards the lazy and so would be unjust. Corrective justice he said, is needed to ensure that individuals can keep their entitlements. He believed that if someone is to steal from another the court should ensure that the offender does not gain and the victim does not lose out.
This idea can still be seen in areas of law such as compensatory damages for negligence. Aristotle also had other controversial views. He believed that people where either suited by nature to be slaves or masters and this was seen by a matter of fit. He thought that children who were born into families of slaves were suited to carry out that role. Aristotle also believed that women where inferior to men as they are ‘colder’ and lack the ability to produce semen and so he viewed them as ‘infertile men’. He went onto say that women belong in the home and should be ruled by men who were superior. Our law today prohibits discrimination on grounds of sex so these ideas are no longer acceptable to us. Thomas Aquinas, born in 1225, was a theologian who also believed in distributive justice, but said that our society’s wealth should not be distributed just by merit, but also by rank and need – he stressed our moral obligation to look after the poor.
Karl Marx, born in 1818, is widely regarded as the founder of communism. Marx developed a very different model of distributive justice which can be understood from his words ‘from each according to his ability, to each according to his need’. This requires that each should maximise their contribution to society by exercising full use of their abilities and secondly, each should receive in accordance with need, regardless of what they have contributed. But if people are automatically given what they need, will they be motivated to work hard? Not only this, but how do we accurately determine what someone needs? Bentham, widely known for his development of the utilitarian approach to justice, said that maximising happiness is the object of justice. Utilitarianism is based on the doctrine that all actions should be judged in terms of their utility in promoting the greatest happiness for the largest number of people. John Stuart Mill, a 19th century liberal supported Bentham in his work of utilitarianism. He said that actions are right ‘in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness’.
But unlike Bentham, Mill concentrated on the quality of happiness rather than merely the quantity of people who are happy. He also went onto say that justice ‘includes respect for people, for property and for rights, as well as the need for good faith and impartiality’. But the concept of utilitarianism can be heavily criticised. The greater good will not benefit the minority groups and ignores the feelings of individuals, as satisfying those needs may sacrifice happiness for the greater good. Under utilitarianism, torturing one person, even if it turns out that the person is not to blame, as an attempt to save the lives of others is considered to be just which some would consider morally wrong. So the expense of one innocent person or a minority group would justify the happiness of a greater number. John Rawls (1921-2002) was a professor of political philosophy at Harvard and set out in his book ‘Theory of Justice’ the concept of social justice. Rawls said that a just society is one in which rational people would choose to live if covered by a ‘veil of ignorance’.
This meant without any bias towards their own situation i.e. their wealth, age, social class, gender, health intelligence and every aspect of their life. He said there are two basic principles of justice that would be chosen under these circumstances. Firstly, the principle of liberty, i.e. the maximum possible liberty for all. And secondly the principle of difference which says that goods should be distributed equally except where unequal distribution benefits those who are least advantaged. He also said they would choose equality of opportunities for social advancement which differs from Aristotle’s idea of people being born into or fitted to certain roles. Robert Nozick was a Harvard colleague of Rawls and developed an entitlement theory of justice which had three elements. 1) A principle of justice in acquisition, dealing with how property is initially acquired. 2) A principle of justice in transfer, dealing with how a property can change hands. 3) A principle of rectification of injustice, dealing with injustices arising from the acquisition or transfer of property under then two principles above.
This third principle, he said, would not be required if the world was entirely just. He said that where a person gains property in accordance with the principles of acquisition and transfer, they are therefore entitled to keep the property. But where people gain property due to wrong doing i.e. fraud or theft the third principle provides a remedy. Nozick’s ideas are consistent with right wing conservatism, but are diametrically opposed to the ideas of Marx. The term law can be defined as ‘the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom of the police, recognized and enforced by judicial decision’. Justice on the other hand is not as easy to define as we have discovered people have very different views of what a just society is, but I think we would all agree that the law should attempt to achieve justice as best it can. This view was expressed strongly by Lord Denning who said that law should always strive to achieve justice. He said that ‘the proper role of the judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid the rule or even change it so as to do justice’.
But others views are slightly more restrictive. For example Sir Robert Megarry had said that it is the judge’s role to administer justice ‘according to the law’. But we have seen this will not always give a just result. Emily Andrews had told the police that she was repeatedly raped by her husband, but later withdrew the accusation because of great family pressure. She was then jailed for 8 months for perverting the course of justice and her guilty husband was able to walk free. After spending 18 days in prison her prison sentence was finally overturned by Lord Judge. She is now struggling to gain custody of her four young children. Lord Judge said ‘this is an exceptional case and we hope that it will be very exceptional for cases of this kind to be prosecuted to conviction in the Crown Courts’. So it seems as if Lord Judge was saying she should not have been prosecuted, but it would have been a very bold person to not have imposed charges because the law is very clear. So this example clearly shows that justice cannot always be achieved by following the law. Justice is often sub divided into procedural and substantive justice.
Procedural justice refers to the idea of fairness in the processes of legal proceedings, whereas substantive justice is justice in the content of the law. One aspect of procedural justice is natural justice which has two basic principles. The first is the rules against bias (nemo iudex in causa sua). In the case of Rv Bingham Exparte Jowitt the defendant was on trial for a speeding offence, and his evidence was contradictory with that of the police officer’s. The magistrate said ‘my principle in such cases has always been to believe the evidence of the police officer’. This shows bias, and so it was not considered to be a fair trial – judges must be impartial. It was said by Lord Denning in Metropolitan Properties Ltd v Lannon that ‘justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking: the judge was biased’. It also means that where a decision maker i.e. a judge has a connection with a party or a witness they should stand down. In Re Pinochet Lord Hoffman should have done just that. Amnesty international gave evidence against Pinochet.
Lord Hoffman was a non-executive direct of Amnesty so he had an undeclared link to the case. There had to be a second rehearing so justice was seen to be done. The second basic principle of natural law is the right to a fair hearing – the right to be heard (audi alteram partem). Both parties’ cases must always be put forward. This is illustrated in the case Re A where it involved a decision whether conjoined twins should be separated which would end the life of the weaker twin. Although the twins could not speak for themselves, both were represented at the trial. It also includes that a person should be given adequate prior notice of charges or allegations and a reasonable opportunity to put together his or her case. In R v Thames Magistrates’ Court ex parte Polemis a sea captain was not given adequate time to prepare his evidence for the case. He received his summons at 10.30am and the trial was heard that day at 4pm. Another difficulty in achieving justice is money.
Although the legal aid budget is £2 billion, legal aid was already very restrictive in civil cases. It is not available for personal injury cases so they usually run on a no win – no fee basis which means that solicitors will only accept cases that they think are very likely to win. This means that a lot of personal injury cases will go unheard because of lacking representation. Not only this, but the current legal aid bill makes very severe cuts to legal aid. £350 million will be cut from family and civil cases which will impact on the poorest in our society like those who are on benefits. Also legal aid will no longer be available for debt advice, benefit advice or housing. This means that more people will be forced to represent themselves at trial which will make trials much longer and less efficient therefore ultimately more expensive. It has also been proposed that legal aid is removed from medical negligence. This means that again, people will have to rely on a no win – no fee basis. So a lot of cases won’t reach court as solicitors will only take on cases that have a very high chance of winning.
As a result of this, badly injured people will remain uncompensated. It is also important that rules of evidence are strictly followed to ensure that justice is served. After there has been a crime, especially if it is a high profile case, there is often a lot of pressure on the police to secure a conviction. This pressure may sometimes lead to unlawful behaviour in the way evidence is obtained. An example of this can be seen from the case of Paul Blackburn who was charged with the attempted murder and sexual assault of a nine year old boy at the age of 15. Paul Blackburn served his 25 year sentence and not until 2 years after he was released was it found that he was actually wrongfully convicted. The entire case against Blackburn rested on a confession he had handwritten, after more than four hours of intense interrogation. He finally gave into the two detectives and wrote a statement which was, he says, effectively dictated to him by the detectives. He said ‘they even helped me spell the words I didn’t know.
My writing was quite basic at the time’. At the appeal in 2005 the three appeal judges heard expert testimony which questioned how a 15 year old, poor educated boy could have written a document which was punctuated and included technical terms, all of which spelt correctly. So it wasn’t until the 25th of May 2005, 28 years after the conviction that Paul Blackburn was finally acquitted. Some may argue that now Blackburn has been found to be not guilty at appeal, justice has finally been served. But 25 years of imprisonment down the line, not to mention the actual criminal walking free, can we really say justice has been served? Paul Blackburn is now described as ‘an emotionally shattered man’. Another difficulty in achieving justice is unreliable expert evidence. When someone is up at the stand and introduces themselves as for example Professor Sir Roy Meadows a member of the general medical council the jury are likely to believe what they say. So in some way it must be checked upon that this evidence is reliable before it sways the decision of a jury in a serious criminal trial.
An example of how unreliable expert evidence can affect a trial can be seen from the case of Sally Clark. Sally Clark was convicted for the murder of her two sons in 1999 and sentenced to life imprisonment even though she insisted it was caused by cot death. After spending more than 3 years in prison she was released in January 2003 after expert evidence given at the trial by Professor Sir Roy Meadow, a paediatrician, was discredited. During the trial he had said that the chance of having two cot-deaths in one family was 1 in 73 million, which undoubtedly and understandably lead the jury to convict. This evidence given by Sir Roy Meadow also lead to the conviction of Angela Canning who was sentenced to life imprisonment in April 2002 for the murder of her two children which she insisted was caused by cot death. He had said that one cot death in a family was unfortunate, two was suspicious and three was murder. After 20 months in prison Canning was released in December 2003. Her case was re-opened after an investigation found three previous cot deaths in the family, suggesting a genetic cause.
After investigation it was actually found that Sir Roy Meadow’s evidence had no statistical basis and ‘grossly misinterpreted the chance of two sudden deaths with in a family’ so Sally Clark and Angela Canning’s convictions were overturned. These two cases show the power and the effects of expert evidence given at a trial. I think that it is important for future cases that expert evidence is checked upon for its reliability to prevent more horrific miscarriages of justice like the cases of Angela Canning and Sally Clark. And in fact the Law Commission want to do just that. Their report in 2009: ‘The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales’ said that expert evidence’s reliability should be assessed by the trial judges, their recent report published in 2011: ‘Expert Evidence in Criminal Proceedings’ makes recommendations to the original in light of the comments they have received. The report proposes that there should be special statutory admissibility test for expert opinion evidence.
However the courts will only apply the test if it appears that the evidence might be insufficiently reliable to be admitted. They also said that there should be a single list of criteria to help the trial judges apply the test. And finally that the party seeking to rely on the expert evidence should bear the burden of proof in demonstrating its reliability, even if that party is the accused. These proposals where agreed in February 2011 and I think would ensure a much fairer law on the admissibility of expert evidence and will help us to achieve justice in future criminal cases. Corrective justice is an aspect of procedural justice which involves rectifying mistakes. One way in which mistakes can be rectified in our law can be seen from our appeal system. Originally in our appeal system, a retrial was not permitted if the defendant was acquitted but the appeal system has now broadened and gives the prosecution a right of appeal against an acquittal if there is ‘new and compelling evidence’: Criminal Justice Act 2003 (part 10).
For example in Rv Dunlop the defendant confessed to a police officer that he had murdered Julie Hogg in 1991 but as he had already been acquitted in 1989 so no further action could be taken. This meant that in 2006 Dunlop was retried and was convicted of murder. Another way in which our law seeks to ‘correct’ justice can be seen from the Criminal Cases Review Commission (CCRC) which was set up in March 1997 by the Criminal Appeal Act 1995. It is an independent and impartial body that reviews the convictions of people who have been found, they think, wrongfully convicted or harshly sentenced and refers the appropriate cases to the appeal courts. The CCRC have had over 1,300 applications, 320 of which have been re-heard and the convictions quashed.
An example of such is Rv Andrew Adams. The defendant was convicted of murder and sentenced to life imprisonment on the 18th of May 1993. The defendants appeal was dismissed by the Court of Appeal Criminal Division in January 1998. The CCRC referred the case to the courts in 2005 on the basis that there was incompetent defence representation, material non-disclosure by the prosecution, errors in the summing-up and that the jury had received inadmissible evidence concerning the appellant’s bad character. An appeal was granted and at the trial, finally, after spending 14 years in prison, on the 12th of January 2007 the defendant’s conviction of murder was quashed. It could argued that because Andrews was convicted of murder and spent 14 years in prison, justice was not fully achieved for him. But at least because of the CCRC he is now a free and proven to be innocent man. I do think that the CCRC do well to help us achieve justice in our society, but there are mixed opinions about the body. It has been found that every year the CCRC reject 97% of applications from individuals who claim they have been wrongfully convicted.
Professor Michael Zander a member of the Runciman Royal Commission which recommended the setting of the body after cases the Birmingham Six, Guilford 4 and Maguire Seven, all of whom were wrongfully convicted. Zander believes that the CCRC need to use a little known power to refer cases to the court of appeal even when no new evidence has been uncovered, if there is serious doubt about the conviction. ‘They could use this power more’ says Zander. He also went onto say that ‘innocent people are in the greatest difficulties once they have been convicted. It is not always the case that something new can be found, even with the best will in the world and all the investigations that can be mustered’. He has also criticised the body for its overreliance on paper analysis of evidence and for not actually visiting the individuals in prison which is something that the Royal Commission had recommended. Also the body will only refer cases where they think there is a ‘real possibility’ that the conviction will be overturned on referral to the court of appeal.
But many have said that this is too restrictively interpreted by the CCRC. 45 cases listed by campaigners as having ‘plausible claims’ of innocence have been turned down by the body. So although the CCRC have been successful in overturning the convictions of some innocent people, there is still a long way to go. Just 3% of applications to the body are referred to the appeal court. So although the body is succeeding to help a small number of people who have been wrongfully convicted, which of course should be commended, there may still be a large of number of those who are not guilty whose cases are bit referred. Substantive justice is justice in the content of the law. Does the way we set out our law achieve justice as best it can? The law of murder is regularly criticised for being unjust as you can be guilty of murder with intending to kill or surprisingly, intending to cause serious harm, without knowing any risk of death (Vickers), both of course receiving the mandatory life sentence. It seems unjust and extremely unfair, that a man who only intends serious harm and a man who sets out to kill are put in the same category of crime and both receive the same mandatory life sentence.
In 2006 the Law Commission proposed that murder should be sub-divided into two categories. The first would be called ‘first degree murder’ and would cover defendants who intended to kill. And the second category would be called ‘second degree murder’ which would cover defendants who intended serious harm but were not aware there was a risk of death. By separating the offence, only defendants convicted of first degree murder would receive the mandatory life sentence and second degree murder would allow the judge discretion in sentencing. I think these proposals ensure a fairer law on murder and would help justice to be achieved. To conclude, I don’t think that anyone could say honestly, that we have a legal system that ensures that justice is always achieved, however much we aim to promote it. But I don’t actually believe that a law can ever be drafted that ensures justice for every individual.
Even now, when wrongfully convicted people like the Birmingham Six, Paul Blackburn, Sally Clark and Angela Canning walk free, their lives are changed forever always hindered by the effects of a convicted of murder, justice doesn’t quite seem to be the word. It may be possible that someone is able to create a legal system that they believe will always achieve justice, but as we have seen people have very different ideas of a just society, so it is impossible that everybody’s needs are met. For our legal system to achieve justice, all members of that system have to be fair, unprejudiced and free from corruption, which we have seen is not always the case. The detectives who questioned Paul Blackburn, then a 15-year-old boy for over 4 hours and forced a conviction out of him, dictating the words for him to write in his statement were most definitely not fair.
How can we ensure that every single person who in some way affects the course of justice is impartial, unbiased and honest? How can we ensure that a judge, an influential and important part of any trial is fair and non-discriminatory? Former Law Lord Tom Bingham said that perfect justice is an unattainable ideal. He said ‘a time is unlikely to come when anyone will ever be able to say that perfect fairness has been achieved once and for all, and in retrospect most legal systems operating today will be judged to be defect not yet recognized’. Unfortunately I think that these realistic words run true and although we can do everything possible to strive to achieve a just society, it will only ever be an unattainable ideal.