Extent that Substantive Legal Rules Achieve Justice

Justice, as defined by the Oxford Dictionary of Law, is ‘a moral ideal that the law seeks to uphold in the protection of rights and the punishment of wrongs’. It goes on to say that justice is not one and the same with the law, that some law can be called unjust. Theorists give many concepts on the relationship between law and justice, such as natural justice, utilitarianism and liberalism. Justice, according to law can be formal and/or substantive. Formal justice is the procedural format of the rules that must be applied equally to all. Substantive justice on the other hand is concerned with the actual just nature of the rules.

Natural justice is given no special meaning; merely that it is a duty to act fairly. This is based on twin ideals: the first is that there is a right for all parties to have their case heard and the second is the principle that no one should judge their own cause. The case of R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet [2] shows this standard where the House of Lords annulled a decision to extradite General Pinochet, the former dictator of Chile, to Spain to face charges on human rights abuse. The decision was annulled because Lord Hoffman sat in judgement and had ties to the human rights organisation Amnesty International, which was involved in the case. The case was reheard without Lord Hoffman.

It is reasonable to assume that where a legal system is based around any version of justice subscribed to, that natural justice and the rule of law will be at the heart of this system. The rule of law is outlined by Dicey [3] that ‘no person is punishable except for a distinct breach of the law established in the courts’ and that everyone is ‘subject to the ordinary law of the realm’.

One of the ways in which a system of justice is maintained in England is the method of judicial review. This is where an independent judiciary examine the powers of the state or organisation of the state and how they use them. This is where it could be argued that the true test of a system of justice is where it deals with threats (real or perceived) to national security.

In the case of R v Secretary of State for Home Affairs, ex parte Hosenball [4] the decision to deport an American journalist was upheld despite none of the rules on natural justice being followed in the case. This was on grounds of supposed national security issues. Another case demonstrating the mysterious issue of national security is Council of Civil Service Unions v Minister for the Civil Service [5] . This is where on grounds of national security employees of the Government Communications Headquarters were not allowed to join trade unions. It is therefore suggestible that state reliance on the requirements of national security inhibits the scope of judicial review, and therefore the maintenance of justice.

However, the Human Rights Act 1998 allows judges to review even primary legislation and even strike it down as incompatible with the European Convention on Human Rights. This shows a dedication in recent years to the upkeep of justice. The case of A and Others v Secretary of State for the Home Department [6] shows this in action. This is where the House of Lords took the view that the detention of foreign nationals without trial under section 21 of the Anti-terrorism, Crime and Security Act 2001 was not justified, even though the government ran the argument that national security was at stake. Similarly, control orders introduced by the Prevention of Terrorism Act 2005 have been struck down, in Secretary of State for the Home Department v JJ and Others [7] . In fact with relation to the terror legislation it would appear the government, whist seeking to avoid a state of suicidal lethargy, will sacrifice most civil liberties and rely on the courts to hold them to the doctrine of proportionality. It appears that judges are ready to do this as well.

The measure of justice in a system is also measured by the access that is granted to it. Without access to justice, it is effectively impossible to subscribe to the most basic principle of natural justice (the right to be heard). In England it seems to have become unjust in recent years. Government funded legal aid was an idea introduced by the Legal Aid Act 1949, with the aim of providing access to justice for all, rather than just those that could afford council. The system was however too good and some eighty percent of the population could apply, meaning that it was too expensive to keep. Unfortunately the need for an inexpensive cap on the qualification for legal aid meant that there has become a ‘middle income trap’, where someone is too rich to qualify but too poor to fund legal action themselves.

The Access to Justice Act 1999 exhausted legal aid further by introducing a limit on the amount that could be spent on legal aid every year, and when this runs out no aid is available. The ‘middle income trap’ remains and also certain types of actions, such as personal injury claims, are excluded. There is a paper by the Bar Council’s Policy Advisory Board led by Guy Mansfield QC that sets out the merits of a contingent legal aid fund [8] . This would be available to anyone and is based on the concept of a self funding scheme whereby successful litigation pays contingent subsidies back into the fund. This idea is even more useful in the face of the economic crisis where large cuts will undoubtedly affect the amount of legal aid available under the Access to Justice Act 1999.

It would seem as a result of this that formal justice is denied because certain sections of society do not get impartial treatment. Substantively it can be also argued that with the presence of a reasonable alternative the law is unjust because the current law has the effect of denying access to even those that may need it.

The civil justice system in England before the Civil Procedure Rules 1999 was often referred to as unfair and was widely criticised. Elliot and Quinn comment that:

“While conflicting interests may mean that it is impossible to achieve a civil justice system that satisfies everyone, there were serious concerns that the civil justice system before April 1999 was giving satisfaction to only a small minority of users” [9]

Lord Woolf reported in 1996 that a number of aims should be put in place for the civil justice system should aspire to. These were to efficiently, justly and fairly deal with cases and litigants. The Civil Procedure Rules introduced these aims and represent a significant reform. They give rules on pre-action protocols that save time and money via negotiation and also make judges pro-actively manage cases. The rules also state an overriding objective that the courts should always justly decide cases over and above any other concerns.

Despite minor procedural issues, such as the fast track system making timetabling more difficult for lawyers, the new civil system shows significant development in the justice of the civil courts.

The criminal justice system has been under a lot of scrutiny also ever since the 1980s and 1990s. This is because of the revelations that followed cases such as the Guildford Four, the Maguires and the Birmingham Six had brought to light many failings on the part of the criminal justice system. For example the police, in their eagerness to get convictions for these murders, were prepared to compromise some of the fundamental principles of formal justice. In particular the confessions that were obtained, the treatment of the defendants whilst in custody and the quality and reliability of the forensic evidence were put to the question and found wanting.

When Judith Ward, in the case R v Ward (Judith Theresa) [10] , was cleared in 1992 after serving eighteen years for the bombing of a coach on the M62 motorway, which killed twelve people, the Court of Appeal said that a grave miscarriage of justice had occurred:

“In failing to disclose evidence… the West Yorkshire police, the scientists who gave evidence at the trial, and some of those member of the staff of the DPP and counsel who advised them… failed to carry out their basic duty to seek to ensure a trial which is fair to both prosecution… and the accused” [11]

It could be argued that with her quashed conviction and compensation that justice has eventually been served as a result of the system being just. However this is a relatively weak argument in the face of the fact that eighteen years had been served prior to this, and the fact that it should not have happened in the first place. Also these cases sparked sets of measures to make sure that procedural justice is met more effectively, for example the Police and Criminal Evidence Act 1984 that outlines the behaviour expected of police officers and the rights and civil liberties of suspects. These things show that the system is adapting to provide better justice for all.

Another aspect of the delivery of justice is the justice that is given to victims of crime.

Word Count:

Table of Statutes:

Prevention of Terrorism Act 2005

Anti-terrorism, Crime and Security Act 2001

Access to Justice Act 1999

Civil Procedure Rules 1999

Human Rights Act 1998

Legal Aid Act 1949