SIVA-LIZATION

WHAT IS JUSTICE AND IS LAW JUST?

Posted in Uncategorized by drsivalaw on February 27, 2010

Almost everyone has a concept of justice – even a small child understands that certain things are “not fair” – but like an elephant it is easier to recognise than to define. A number of distinguished lawyers have made the attempt, however, and we need to consider and compare their various theories. So what is justice?

JUSTICE AS EQUALITY

The Greek philosopher Aristotle lived in the 4th century BCE, and argued his Nicomachean Ethics that justice (in a politico-legal sense) has two branches: distributive justice and corrective justice. Distributive justice includes the distribution of honours etc among citizens by the state, and the distribution of private property through contracts; corrective justice is concerned with the rectification of unfair distribution. There are always two parties involved, he said, and justice is the mean between the unfairness which favours A and the unfairness which favours B.

Distributive justice, said Aristotle, plainly takes into consideration the merits of the parties – it is unjust that equal parties should have unequal shares, or that unequal parties should have equal shares. Distributive justice is a question of proportion rather than of equality: “all men agree” that what is just in distribution must be according to merit in some sense, though they do not all specify the same sort of merit.

Corrective justice is concerned with restoring a balance which has been disturbed, whether by a voluntary or an involuntary act. Here we are concerned with equality: it makes no difference whether a good man has defrauded a bad man or a bad man a good one, nor whether it is a good or a bad man that has committed adultery; the law looks only to the character of the injury and treats the parties as equal. The judge tries to equalise them once again by imposing a penalty, taking away from the wrongdoer’s gain and (where possible) compensating the victim.

That is not to say that corrective justice requires exact reciprocity – the Lex Talionis of “eye for eye, tooth for tooth” – for in many cases reciprocity and rectificatory justice are not in accord. If an official has unjustly inflicted a wound, for example, he should not be wounded in return, but if some one has wounded an official, he ought not to be wounded only but punished in addition. Moreover, there is a great difference between a voluntary and an involuntary act – justice may require that these be treated differently even where they lead to the same injury.

The French jurist C H Perelman set out in his book De La Justice in 1945 six possible meanings of the word “justice”. He explained these meanings in terms of a distribution of benefits, not dissimilar from Aristotle’s ideas of distributive justice, but his arguments could fairly easily be adapted to deal with burdens.

To each according to his works
Justice may be done if people’s rewards are determined according to their contributions, either on a limited scale (e.g. within the factory, those who produce more are paid more) or on a larger social scale (e.g. the doctor is paid more than the dustman, because his greater skills make him a more valuable member of society). This notion of justice is at the heart of a free-enterprise culture, though very few societies, if any, function entirely on this principle.
To each according to his needs
Some people would say justice is served if people receive what they need. A parent supporting several children and an aging grandparent receives more in benefits and tax credits than a single person with no such responsibilities, because her needs are greater. A couple with small children gets higher priority on the housing list; and a disabled person is eligible for special benefits and tax allowances because he has special needs. The welfare state is based on this idea of justice.
To each according to his merits
Justice may mean that each person gets what he or she deserves: the good (according to the appropriate ethical or other criteria) are rewarded and the bad are penalised. Those who commit serious crimes are sent to prison because this is what they deserve, and (in some people’s belief) the ultimate destination of the soul after death depends on the person’s merits during life on earth.
To each according to his rank
Such a concept of justice may sound outdated, and the special privileges of peers have largely vanished from modern society. But teachers often have recreational and other facilities denied to students, older children within a family often have more privileges (and more pocket money) than younger ones, and many large organisations determine salary by reference to a fixed scale (perhaps with annual increments) irrespective of individual productivity.
To each according to his legal entitlement
Although this may not be sufficient to ensure justice, it is almost certainly necessary. If the law provides that those charged with a grave offence should receive legal aid, justice surely demands that they receive it. Similarly, if the widow of an intestate is legally entitled to the first £125 000 of his estate, it would not be just if she were deprived of it, even if she were an unloving wife and a millionairess in her own right.
To each equally
On its face this might seem the most basic form of justice, even if rarely applied in practice. If several children are given a bag of sweets and told to share them fairly, they will probably interpret that as meaning that each should receive the same amount. But the poll tax was based on this principle of equality, and was widely regarded as an unjust tax because it took no account of other notions of justice such as the ability to pay.

Perelman thus recognised that justice might be defined in various ways, but suggested that supporters of any of his six views would agree on something. Once the type of justice had been defined, he said, and each individual placed in a certain “essential category” according to his works, needs, merits, rank or legal entitlement, everyone would then agree that justice requires all the individuals in a given category to be treated the same. What would be unjust would be if two people, alike in every respect defined by the chosen criteria, were to be treated differently.

In The Concept of Law, H L A Hart linked the idea of formal justice with that of morality. He agreed that like cases should be treated alike – this point seems to be common to most theories of justice – but argued that this raised important questions as to what makes cases alike or different. Why is it just to treat blonde murderers the same as brunettes, but unjust to treat sane murderers the same as insane? If it is just to treat women the same as men in relation to their employment opportunities, why should they be treated differently in relation to maternity leave? And if two people commit similar crimes in similar circumstances, is it just that one should be given a heavier sentence “to set an example to others”?

R v Reeves [1964] Crim LR 67, CA
Two men were convicted of receiving stolen property together. D1 had chosen to be tried summarily and had been fined £25, but D2, who had elected trial by jury, was sent to prison for nine months. On appeal, the Court of Appeal said D1’s sentence was ludicrously lenient, particularly as he had a previous conviction for this offence, but ordered D2’s immediate release (after he had served some three months) because of the strong sense of grievance he would feel at the unfairness of the outcome.
Ghaidan v Mendoza [2004] UKHL 30
The tenant of a privately rented flat died, and his gay partner (who had lived with him) sought to take over as a statutory tenant, claiming he had been living “as the wife or husband of” the deceased tenant. (In Fitzpatrick v Sterling Housing the House of Lords had rejected such a claim, but had granted the partner an assured tenancy as “a member of the tenant’s family” under a different section of the relevant Act.) Lord Nicholls said Art.14 of the European Convention requires like cases to be treated alike, and unlike cases not to be treated alike. The circumstances which justify two cases being regarded as unlike are infinite, but there are certain grounds of factual difference which are not in themselves acceptable as a basis for different legal treatment. Differences of race or sex or religion are obvious examples, and sexual orientation is another. The majority of the House agreed, and granted the survivor the statutory tenancy he sought.
R (Carson) v Secretary of State [2005] UKHL 37
A British pensioner now living in South Africa claimed she should receive the same cost-of-living increases as pensioners still living in the UK. Dismissing her claim, Lord Hoffmann said the principle that everyone is entitled to equal treatment by the state, that like cases should be treated alike and different cases should be treated differently, will be found in most human rights instruments and written constitutions. The claimant was being treated differently from a pensioner who lived in the UK, but that was not discrimination. Discrimination means a failure to treat like cases alike: there was no discrimination when (as here) the cases were relevantly different.

JUSTICE IS DIVINE

The religious philosopher Thomas Aquinas said in the thirteenth century that a just law was one which served the common good, distributed burdens fairly, promoted religion, and was within the law-maker’s authority. That authority is limited by Divine law, and a human law that goes against God’s law is unjust and should not be obeyed. The difficulties of applying such ideas in a largely secular society are obvious, but they are important in their recognition that civil disobedience may sometimes be appropriate.

Aquinas argued inter alia that “almsgiving by the rich from their superfluity, to relieve those in extreme need, is an act of justice”. Note that he does not say that this is a good thing, or that the rich person should be praised: he says it is an act of justice. Almsgiving in these circumstances is what justice requires, he implies, and failure to give alms would be unjust.

The New Catechism of the Roman Catholic Church in England and Wales takes a reformative rather than a conservative view of justice. “Justice is a disposition of the will which inclines us to give to every person what is his or her due with a view to the common good of the whole society. We exercise the virtue of justice … by seeking to change an unjust society … in which some section of the community is systematically exploited in the interests of another wealthy and powerful section.”

UTILITARIAN JUSTICE

The political philosophy of utilitarianism was developed by Jeremy Bentham and modified by John Stuart Mill. A law (or an action) is just, said Bentham, if its overall effect is to increase the sum of human happiness, and unjust if it decreases happiness. It is important to note, though, that this notional calculation must take into account not only the number of people who are made more or less happy, but the depth of their happiness or unhappiness. An action which makes a few people very happy and a lot of people slightly unhappy (or vice versa) may be just or unjust according to the numerical values assigned to their feelings.

Utilitarianism still plays a major part in the democratic decision-making process, and in its favour are two telling arguments. First, it is a secular theory requiring no reference to any Divine law or other abstract religious principles defensible only by faith. And second, the idea of maximising the total happiness of the community is often applied – though perhaps not mentioned by name – in everyday life, both on a national political level and in ordinary dealings among friends. There is no doubt that it works well for much of the time, but in marginal cases the theory breaks down and produces results far removed from those which most people would consider right.

In particular, utilitarianism is concerned only with the total or average happiness of the community, and has no concern for its distribution. [Different writers take different views on the question whether utilitarianism is concerned with the total happiness of the community or the average happiness of its members. In most cases they increase or decrease together, but in a small community with limited resources the birth of a child – a “happy event” – might increase total happiness while diminishing the average because of the greater number required to share the common food store.] The strict utilitarian would see nothing wrong in slavery, for example, if the happiness of many could be increased thereby sufficiently to outweigh the misery caused to a few.

In reply, the utilitarian commonly argues that the principle of diminishing marginal utility actually favours redistribution moving towards greater equality. £100 given to a poor person increases his happiness by much more than it decreases the happiness of the rich person from whom it is taken. On the other hand, maximum happiness depends on high wealth and high productivity, and these are likely to be promoted by a system which gives incentives for hard work and enterprise, so that the extreme of total equality is avoided. This argument fails, however, if we try to apply utility to a crime such as rape. Rape clearly causes pain (at least in the utilitarian sense) to the victim and presumably gives pleasure to the rapist, and in virtually all cases the pain caused (to other women put in fear, as well as to the individual victim) outweighs the pleasure gained. But in cases of gang rape, where several men are deriving pleasure from the same assault, and in other cases where the pain and pleasure caused are equal, the strict logic of utility leads to the conclusion that the more the rapists’ enjoyment the less “unjust” it is, and it is possible that they might enjoy it so much as to outweigh the victim’s pain. But this defies common sense: the obvious injustice of rape should not depend on the statistics of a particular case.

A second criticism of utilitarianism is that it defines as right or just that which brings about the desirable consequence of increased happiness: in other words, it claims that the end (in this case the result, rather than the purpose) may justify the means. Mill was particularly firm on this point, insisting that the principle of utility is concerned only with the effects of an act and not with the intentions behind it, and the consequence principle is now regarded as a cornerstone of utilitarianism. But this position is one that many people find unacceptable: torturing a terrorist, for example, would be just if is succeeded in extracting evidence preventing further deaths, but unjust if it failed (because there would be no general increase in happiness to offset the unhappiness caused to the terrorist). The impossibility of determining in advance the justness of any proposed act therefore makes utilitarianism of little value as a guide to just behaviour.

JUSTICE AS FAIRNESS

The American jurist John Rawls, who died in 2002, published A Theory of Justice in 1971. He defined justice as that which prevailed in a just society, and a just society as one to which a group of rational but mutually disinterested (i.e. selfish but not envious) people would unanimously choose to belong if such a choice were available. In making that hypothetical choice, however, the individual would operate behind a “veil of ignorance”, knowing nothing about his own position in the society. (We might liken it to a person devising a set of rules for a ship’s crew, knowing that his role in that crew would be decided by pure chance after the rules had been drawn up.) He would be ignorant even of his own age, sex, character, physical and mental abilities, tastes and preferences, beyond those common to all human beings.

Rawls then predicted that any such society would exhibit two essential features. No one, he claimed, would agree to a system involving lasting personal sacrifice for the greater good of others – each would give least some thought to his own well-being. But people would adopt a “maximin” approach, seeking to optimise the fate of those worst off in case they themselves should come into that class. They would therefore try to ensure that every person had certain basic liberties, such as freedom of person, freedom of speech and thought, freedom to participate in government, and freedom to possess property, to the greatest extent compatible with the enjoyment of the same basic liberties by others. And second, they would not accept significant social or economic inequalities, or differences of treatment, except insofar as these were for the benefit of the least well off members of the society. Thus (said Rawls) people would agree that doctors should be paid higher than average incomes, because this would encourage able people to qualify as doctors and so benefit everyone in the long run.

JUSTICE AS ENTITLEMENT

Another American, Robert Nozick, put forward in Anarchy State and Utopia (1974) a very different approach. His idea of justice was based on rights, and he defined a just society as one in which individual rights were accorded the respect due to them. Each individual, said Nozick, has certain natural rights to the enjoyment of life, health, liberty and possessions without interference from others, and to compensation from anyone who trespasses upon them. Those rights are inalienable: no other person and no state authority can justly diminish them, for however good a cause, without the individual’s consent.Inequalities between human beings are a fact of life, and justice does not require that they be corrected.

In the early days, said Nozick, each individual was responsible for protecting his or her own rights, but the weakness of an individual alone and the danger that he might assess wrongly the extent to which his rights had been violated could lead to anarchy. Human beings therefore came gradually to accept the role of the state as a protector of these rights, but that is the limit of the state’s legitimate role. It can secure compensation for any member whose natural rights are infringed, and it can properly prohibit potentially dangerous conduct (such as the driving of motor cars by epileptics) as long as the individuals thus restricted are compensated for their loss of liberty. But the right to life (say) does not extend to the right to be fed or housed by others: such a claim would impinge upon their rights to enjoy their own property.

Property, said Nozick, can be justly acquired in three ways: if it was previously unowned by anyone and was acquired by the individual’s effort or skill; or if it is validly transferred by its previous owner (e.g. by way of gift or sale); or if it was transferred by court order to rectify a previous unjust acquisition (e.g as compensation for a crime). But there should be no question of redistribution for social purposes. No one suggests that kidneys should be compulsorily redistributed, even though the possession of two functioning kidneys is just as much a matter of “unfair” chance as the possession of inherited wealth. Rawls’ ideas of distributive justice, said Nozick, involved unwarranted interference with the inherent rights of individual members of society.

IS THE LAW JUST?

No one, surely, would disagree with the proposition that one of the aims of any legal system should be the promotion of justice. It should not necessarily be the sole aim – other “goods” to be promoted might include mercy, liberty, public order and the avoidance of unreasonable public expenditure – but it is an important one. The buildings in the Strand commonly called “the Law Courts” are actually the “Royal Courts of Justice”, and High Court judges and magistrates have been known as “Justices” for many years.

However, different judges see their duty to promote justice in different ways. In his autobiography The Family Story, Lord Denning wrote that “My root belief is 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, even to change it, so as to do justice in the instant case before him.”

Sir Robert Megarry VC in Tito v Waddell (No.2) [1977] 3 All ER 129 took a different view: “The question is not whether the plaintiffs ought to succeed as a matter of fairness or ethics or morality. I have no jurisdiction to make an award to the plaintiffs just because I reach the conclusion … that they have had a raw deal. This is a Court of Law and Equity (using “equity” in its technical sense), administering justice according to law and equity, and my duty is to examine the plaintiffs’ claim on that footing.”

Where possible, most judges take a position somewhere between these two extremes, bringing justice (however they understand the word) into the administration of the law whenever they have the opportunity.

The extent to which the English legal system is formally just and/or leads to substantive justice depends on one’s definition of justice. Most people (with the possible exception of Marxists and those who endorse “critical legal studies”) would agree that most of the system is just and leads to just results most of the time. But a number of illustrative cases and other points are worth considering.

FORMAL JUSTICE

The rules of procedure in English law generally show an intention to secure formal justice, and often succeed.

Everyone has access to the law, and everyone (even the government) is subject to the law. That seems to show justice as fairness, but if the Government does not like the result it can usually reverse it by legislation.

Burmah Oil v Lord Advocate [1964] 2 All ER 348, HL
Various oil installations belonging to PP were blown up by British troops during World War II to prevent their falling into Japanese hands. In interlocutory proceedings the House of Lords said that although the troops’ actions were lawful, PP had prima facie a common law right to compensation. Following that decision, Parliament enacted the War Damage Act 1965, which declared that no compensation was payable in such cases and was expressly made retroactive so as to prevent any final judgment in PP’s favour.
Congreve v Home Office [1976] 1 All ER 697, CA
The Government announced a substantial increase in the cost of television licences, to come into effect at a specified future date. P and others sought to avoid paying the higher price by buying new licences (at the old rate) before their existing licences had expired. The Home Secretary then purported to exercise his discretionary powers to cancel the new licences, but the Court of Appeal said to do so would be unlawful. Parliament had given him that power in order that he could prevent the improper use of broadcasting equipment, not so that he could penalise those who were acting quite lawfully.
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935, HL
The Government announced changes in the conditions of service of workers at GCHQ, made under prerogative powers and affecting chiefly the workers’ rights to belong to a trade union and take part in its activities. The House of Lords said the Prime Minister could be made to answer to the Court for the way in which the royal prerogative was exercised, although the instant case involved issues of national security, which are not justiciable.
M v Home Office [1993] 3 All ER 537, HL
An alien M sought judicial review of a decision to deport him. In interlocutory proceedings Garland J understood counsel for D to give an undertaking that M would not be removed pending final judgment, but on learning later that night that M had in fact been deported, the judge ordered the Home Office to bring him back. The Home Office failed to do so. The House of Lords held the Home Secretary in contempt of court but declined to impose any punishment because there had apparently been a genuine misunderstanding by the Home Office legal advisors.

Everyone is entitled to put his or her case in court, either personally or through a legal representative, and there are various legal help schemes are supposed to ensure that everyone can get legal advice and (where necessary) legal representation at trial. But legal aid does not cover all types of case – it does not even cover most civil cases since April 2000 – and many people with even modest incomes are not eligible. Conditional fee agreements are available to plaintiffs with a good case, but defendants and those whose chances of success are poor may find it hard to get a lawyer willing to take the case without payment. As Darling J is supposed to have said, “the law, like the tavern, is open to all.”.

Judges, magistrates and jurors must not be biased (or even appear to be biased), but prospective jurors cannot be questioned about their views and the right of peremptory challenge was abolished some twenty years ago.

Dimes v Grand Junction Canal (1852) 10 ER 301, HL
The canal company RR brought a case in equity against a landowner A; the Vice-Chancellor granted RR’s request and Lord Cottenham LC upheld the decision on appeal. A then discovered that Lord Cottenham held a substantial block of shares in the canal company and applied to have the Chancellor’s decision set aside. The House of Lords said that although there was no suggestion that the Lord Chancellor had in fact been influenced by his interest in the company, no case should be decided by a judge with a financial interest in the outcome. The Chancellor’s orders were therefore set aside as such, but those of the Vice-Chancellor (to the same effect) were confirmed.
R v Bingham JJ ex p Jowitt (1974) Times 3/7/74, HC QBD
A motorist A was charged with exceeding the speed limit, and the only evidence was given by D and a police officer, who contradicted one another. Finding D guilty, the chairman said “My principle in such cases has always been to believe the evidence of the police officer.” The High Court quashed the conviction; this remark would cause any reasonable person to suspect that the chairman of magistrates was biased and that D had not had a fair trial.
Bradford v McLeod [1986] Crim LR 690, HCJ (Scotland)
A miner convicted of a breach of the peace on the picket line appealed against his conviction. The sheriff had previously been heard to say on a social occasion that striking miners should not be given legal aid, but declined to disqualify himself and insisted he could try the case fairly. The High Court of Justiciary said this was enough to create a reasonable suspicion of bias, whether there had in fact been any bias or not: the sheriff should have disqualified himself.
Re Pinochet [1998] 4 All ER 897, HL; [1999] 1 All ER 577, HL
The House of Lords, reversing the High Court, ruled 3-2 that A’s position as a former head of state did not confer immunity from extradition proceedings based on allegations by a third country of torture and other violations of human rights. Amnesty International was allowed to present an amicus curiae argument at this hearing, and it subsequently emerged that Lord Hoffmann, one of the judges in the majority, had for some years been a non-executive director of Amnesty International Charity. A sought to set aside the Lords’ judgment, and a panel of five different Law Lords allowed his application. Lord Browne-Wilkinson said the fundamental principle is that a man must not be a judge in his own cause: Lord Hoffman was so closely and actively associated with one of the parties that he was disqualified from hearing the case regardless of whether or not there was any actual appearance or risk of bias. This did not mean that judges could never sit in cases involving charities they supported, but where the judge was a director or senior officer of a charity that was party to a case, disqualification is automatic subject to the possibility that the parties (having been fully informed) might waive any objection.

The rules of evidence ensure that only relevant evidence fairly obtained is given in court. Evidence obtained by oppression or in circumstances making it unreliable can be excluded, though not every illegal act by the police necessarily has this result. But the rules of evidence can operate against substantive justice when they exclude evidence (perhaps evidence improperly obtained) that might have led the court to the right decision.

Sparks v R [1964] 1 All ER 727, PC (Bermuda)
A white man A was charged with indecently assaulting a three-year-old girl. The girl had told her mother that it was a coloured boy who had assaulted her, but the girl did not give evidence and the mother was not allowed to say what her daughter had said because of the rule against hearsay evidence. A was convicted and appealed. The Privy Council allowed his appeal on other grounds, but Lord Morris said the cause of justice was best served by strict adherence to the recognised rule. [Section 114(1)(d) of the Criminal Justice Act 2003 now makes hearsay admissible where the judge is satisfied that it would be in the interests of justice for it to be so.]
Jeffrey v Black [1978] 1 All ER 555, DC
A student D was arrested for stealing a sandwich from a pub; the police searched his flat, where they found a quantity of drugs. At D’s trial for possession of drugs the justices found the evidence inadmissible and dismissed the charge, but the Divisional Court remitted the case for rehearing by a new bench. Although the police had no right to search D’s home without his consent (because they had no reasonable grounds to suspect large-scale sandwich theft!) that was not in itself a reason to exclude the evidence.
R v Watts [1983] 3 All ER 101, CA
A man of low intelligence was charged with indecently assaulting a woman in an underpass; he claimed to have been at home at the time and said a supposed “confession” had been fabricated by the police. At his trial, the judge allowed evidence to be given of two previous convictions for sexual assaults on children, and the jury convicted. Allowing his appeal, the Court of Appeal said the prejudicial effect of these previous convictions outweighed any possible value they might have as indicators of his truthfulness, and that the judge should not have allowed them to be mentioned. [Section 101 of the Criminal Justice Act 2003 now allows evidence of the defendant’s previous convictions to be given in some circumstances, but not where it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
R v Mason [1987] 3 All ER 481, CA
A man D confessed to burglary after the police had told him and his solicitor that his fingerprints had been found at the scene of the crime. This was not in fact true, but the judge admitted the confession to evidence and D was convicted. The Court of Appeal quashed the conviction: the deception of the solicitor was a serious matter, they said, making it impossible for him to give D the best advice, and the judge should have exercised his discretion to exclude the evidence.
R v Miller (1992) Times 24/12/92, CA
A man D was charged with murder, and the evidence against him included his confession. When interviewed by the police he had denied his involvement more than three hundred times, but in the face of “questioning” that took the form of officers’ repeatedly shouting at him what they wanted him to say, he eventually gave way and admitted that he might have been there but could not remember. The Court of Appeal quashed his conviction on the grounds that the confession had been obtained by undoubted oppression: short of physical violence it was hard to imagine a more hostile and intimidating approach. There was evidence that D had a mental age of only 11, but the tenor and length of the interviews was such that they would have been oppressive even with a person of normal mental capacity.
R v B (A-G’s Ref. No.3 of 1999) (2000) Times 15/12/00, HL
A man B was charged with rape after the police found a match between DNA taken from the scene and a sample of B’s DNA, which they had taken on an earlier occasion but had not subsequently destroyed as the law then required.The judge refused to allow any DNA evidence to be given and the trial collapsed; the Court of Appeal said the judge had been right, but the House of Lords adopted a different reading of PACE and said the judge could have exercised his discretion to allow it. The fairness of a trial has to take account of fairness to the victim and to the public at large, as well as to the defendant.

Trial by jury (in criminal cases) allows the jury to do justice as it sees it, irrespective of the substantive rules of law, but the jury is not required to explain its decision and may in fact decide on the basis of the lawyer’s appearance or manner or some other irrelevant factor.

R v Ponting [1985] Crim LR 318, McCowan J
D was a civil servant working in the Ministry of Defence, and saw documents indicating that the Government had lied in their account of the sinking of the General Belgrano during the Falklands War. He gave copies of these documents to an Opposition MP so that the matter could be raised in Parliament, and was charged with an offence against the Official Secrets Act. In spite of the judge’s clear direction that D’s conduct did amount to an offence, the jury acquitted him and he walked free.
R v Wilson (1996) unreported
Four women were acquitted by a jury at Liverpool Crown Court after causing £1½m worth of damage to a Hawk fighter jet. Their defence was that the jet was to be sold to Indonesia, where it would be used against the people fighting for independence in East Timor: their action was thus the prevention of the greater crime of genocide.
R v Blythe (1998) unreported
A man D was charged with cultivating cannabis with intent to supply it to his terminally ill wife W, who suffered severe pain from multiple sclerosis. Judge Hale told the jury at Warrington that the defence of duress of circumstances was not available in such a case, even though D feared W might commit suicide, but the jury disregarded this instruction and found D not guilty. D was convicted of simple possession and fined £100.

The House of Lords may use its powers under the Practice Statement 1966 to depart from an earlier decision which seems to lead to an injustice.

R v G & R [2003] 4 All ER 765, HL
Boys aged 11 and 12 were convicted of arson, the judge having ruled (following R v Caldwell [1981] 1 All ER 961, HL that recklessness was based on a risk obvious to a reasonable person rather than to a typical 12-year-old. The House of Lords departed from its decision in Caldwell and said the test is a subjective one: to make no allowance for a defendant’s youth or mental incapacity would violate the principle that no one should be convicted of a serious offence unless he acted with guilty intent. It is clearly blameworthy to take an obvious and significant risk of causing injury to another, said Lord Bingham, but it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication) one genuinely does not perceive the risk.
A v Hoare [2008] UKHL 6
In 1989 the defendant D was convicted of rape and sent to prison. In 2004, having been released on licence, D won £7 million on the National Lottery, and later that year the claimant A began an action seeking damages for the rape. Her claim was struck out: the cause of action had arisen at the time of the rape, said the judge, and since the claim had not been brought until some sixteen years later it was barred by s.2 of the Limitation Act 1980. The House of Lords had decided in Stubbings v Webb [1993] 1 All ER 322 that the shorter three-year time limit in s.11, which the judge has the power to disapply under s.33, applied only to claims in negligence and similar breach of duty and not to claims for assault. The fact that D had not hitherto been worth suing was irrelevant. After considering the legislative history and the evident injustice arising from their earlier decision, the House of Lords exercised its power under the 1966 Practice Statement to depart from its own previous decision and remitted the case to the judge so that he could decide whether or not to exercise his discretion to allow Mrs A’s claim to proceed.

SUBSTANTIVE JUSTICE

Many of the substantive rules of English law try to achieve substantive justice (according to at least one definition of that term), and many (but not all) succeed.

In criminal law, the mandatory life sentence for murder is a matter of treating like cases alike, except that not all murders are alike; is the Parole Board’s power to order the release on licence of those who have served the “minimum term” sufficient to ensure justice? The Criminal Justice Act 2003 sets predetermined minimum terms for various classes of murder, but allows the judge to set a different minimum so long as he gives reasons for doing so.

The partial defences such as diminished responsibility and provocation are intended to do justice, so that those who kill while not fully responsible for their actions are not convicted of murder, but the defences of necessity (now duress of circumstances) and duress are not available in cases of murder or attempted murder. The Law Commission have commented on the way that the defence of diminished responsibility is sometimes allowed in cases not strictly meeting the statutory definition, but have said thatwhile the mandatory life sentence for murder remains, they “are not persuaded that the acknowledged infelicities of the current formulation presently cause injustice in practice”.

R v Dudley & Stephens (1884) LR 14 QBD 273, CCR
Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, Dudley and Stephens decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Four days later they were picked up by a passing ship, and on returning to England were convicted of murder. The Court for Crown Cases Reserved upheld their conviction, but their sentence of death was later commuted to six months’ imprisonment.
R v Price (1971) unreported
A boy of six had the mental capacity of a baby and a short life expectancy. His father D placed the boy in a river and watched him float away; the boy drowned. D pled guilty to manslaughter on the basis of diminished responsibility, and was put on probation for a year on condition that he underwent “such treatment as a doctor may prescribe for the next few weeks or so”.
R v Whitfield (1976) 63 Cr App R 39, CA
Following a long series of family quarrels, including a threat to take away the baby, D killed his wife and her sister. He was charged with murder and claimed provocation, but the judge withdrew this question from the jury. The Court of Appeal quashed D’s conviction for murder and substituted one for manslaughter: it is clear that any conduct (including mere words) can in principle amount to provocation.
R v English (1981) unreported
A woman who killed was allowed to bring evidence to show that pre-menstrual tension had impaired her responsibility sufficiently for this defence to be admitted.
R v Howe [1987] 1 All ER 771, HL
D took part with others in two separate murders, and on a third occasion the intended victim escaped. D’s claim to have acted under duress was left to the jury on two of the three counts, but D was convicted on all three, and appealed. The House of Lords said no participant (whether principal or accessory) can claim duress in defence to a murder charge. The law should deny a man the right to take an innocent life even at the price of his own (per Lord Griffiths), but should rather set a standard of heroism and self-sacrifice which ordinary men and women should be expected to observe (per Lord Hailsham).
R v Ahluwalia [1992] 4 All ER 889, CA
A woman D had entered into an “arranged marriage” and had been very badly treated by her husband. He had been violent and abusive towards her; he had threatened to kill her and had once tried to run her down; and he had taunted her about his affair with another woman. One evening D poured petrol over his bed as he slept and set light to it. The Court of Appeal quashed D’s original conviction for murder, and at the retrial D’s plea of diminished responsibility resulting from the newly-acknowledged “battered woman syndrome” was accepted.
R v Morhall [1995] 3 All ER 659, HL
A habitual glue-sniffer D killed another man V who nagged him about his habit. D was charged with murder and claimed he had been provoked. Allowing his appeal and substituting a conviction for manslaughter, the House of Lords said there is no rule to prevent a defendant’s relying on a self-induced condition such as drug addiction (or even previous criminal convictions) as characteristics of the ordinary person where these are relevant to the provocation.

The proportionality of sentencing raises other questions as to the extent to which justice is served by the criminal law. Mandatory minimum sentences present particular problems, because there may be cases in which the mandatory sentence would actually be unjust. In an article in The Times in March 1997, Sir Stephen Tumim (formerly HM Inspector of Prisons) quoted Judge F-K Fährig (Presiding Judge at the Berlin District Court) as saying that the suffering imposed on the defendant should not outweigh the suffering of the victim.

R v Cannings (2002) unreported
A woman D convicted of killing her two baby sons was convicted of murder, having denied the killing and having thus excluded the possibility of a verdict of infanticide. Sentencing her to imprisonment for life, Hallett J said this was “a classic example of the kind of injustice that can result from mandatory sentencing”. [The conviction itself was later quashed on appeal.]

In the law of tort, a duty of care is imposed only if it is fair just and reasonable to do so. If (in the judge’s opinion) it would be unjust to impose such a duty, he says there is no duty.

But the standard of care demanded may be higher than the defendant could reasonably achieve.

Nettleship v Weston [1971] 3 All ER 581, CA
A learner driver D went out for her first lesson, supervised by a friend P. D crashed the car into a lamppost, and P was injured. P’s claim for damages was upheld by the Court of Appeal, subject to a deduction for contributory negligence. Even learner drivers, said the Court, are to be judged against the standard of the reasonably competent driver. The fact that a particular driver is inexperienced and incompetent does not excuse his falling short of this standard. [This decision was made primarily to ensure that the driver’s insurance company (which had plenty of money) would compensate the injured victim (who had comparatively little). Was this justice?]
Snelling v Whitehead (1975) Times 31/7/75, HL
A 7-year-old boy P riding his bicycle on a minor road towards a crossroads was seriously injured in a collision with a car driven by D along the major road. Reluctantly rejecting P’s claim for compensation, the House of Lords said there was no proof that the driver had been negligent, and in the absence of such proof the claim must fail. Lord Wilberforce suggested this was a case where no-fault compensation would be appropriate, but that was a matter for Parliament.
Barrett v Ministry of Defence [1995] 3 All ER 87, CA
A sailor S became so drunk one night that he passed out and, having then been inadequately treated, choked to death on his own vomit. His widow P sued the Navy for their negligence. The Court of Appeal reversed the trial judge’s finding that DD had a duty of care to prevent S becoming drunk, applying the test of whether it was just and reasonable to impose a duty of care. I can see no reason, said Beldam LJ, why it should not be fair, just and reasonable for the law to leave a responsible adult to assume responsibility for his own actions in consuming alcoholic drink. No one is better placed to judge the amount the he can safely consume or to exercise control in his own interest as well as the interest of others.

In contract law, the doctrine of frustration deals with unforseen contingencies that occur after agreement, preventing the completion of the contract. In such circumstances, the contract is terminated and the court has power to order repayment where appropriate.

Herne Bay Steamboat v Hutton [1903] 2 KB 683, CA
An agreement was made that PP’s ship would be at DD’s disposal on a certain date “for the purpose of viewing the naval review and for a day’s cruise around the fleet”. On the day in question, the fleet was assembled but the royal review was cancelled because of the King’s illness. The Court of Appeal said the contract had not been frustrated, because the review was not the sole foundation of the agreement and the cruise around the fleet could still have taken place.
Krell v Henry [1903] 3 KB 740, CA
D agreed to hire briefly from P a flat in Pall Mall, intending to use it with friends to watch the coronation procession as it passed. The coronation was postponed at short notice owing to the King’s illness, but P sought to recover the agreed hiring fee. The Court of Appeal turned down the claim and said the contract had been frustrated; although the purpose of the hire had not been stipulated in the contract, the circumstances were such that both parties clearly knew it, and the sole foundation of the contract had been destroyed.

Equity was developed to enable the courts to do justice where the common law prevented it, by recognising new rights such as the rights of a beneficiary under a trust, and new remedies such as the injunction and the order for specific performance.

Central London Property v High Trees House [1956] 1 All ER 256, Denning J
A landlord sought to renege on an undertaking to accept a redfuced rent during the second world war. Denning J said that when a party to a contract makes a promise to the other, which he knows will be acted on, that he will not enforce his strict legal rights, the equitable principle of promissory estoppel makes that promise binding on him.
Re Posner [1953] 1 All ER 1123, Karminski J
A man T left his property in his will to “my wife Rose Posner”. In fact she was not legally his wife, having been already married when she met and “married” T, but the court said the will could be rectified and the words “my wife” ignored so that she could inherit.
Beswick v Beswick [1967] 2 All ER 1197, HL
The elderly owner of a small business agreed to transfer the business to his nephew, in return for which the nephew promised to pay an annuity to the man’s widow after his death. The man died and the nephew refused to pay. The widow could not sue in her own right, because she was not privy to the contract, so she sued as the executrix of her husband’s estate. Damages would not have been a satisfactory remedy, because the loss to the estate was negligible, so she was granted an order directing the nephew to perform his part of the contract.
Eves v Eves [1975] 3 All ER 768, CA
An unmarried couple set up home together and had two children. A house was bought in the man D’s name because P was under 21; he said (probably falsely) that he would have put it in their joint names had she been of age. The house was in a run-down condition, and P did a lot of heavy building work. After three years, D left to live with another woman. P sought and was granted a declaration that the house was held on a constructive trust for both of them; the work she had done, coupled with D’s representations, entitled her to a quarter-share in its value.
Miller v Jackson [1977] 3 All ER 338, CA
Cricket had been played on a village cricket ground since 1905. In 1970 a number of new houses were built close to the cricket ground, and P bought one of them in 1972. On a number of occasions, cricket balls were hit into P’s garden, and P sued the cricket club in negligence and nuisance, claiming actual damage to property and fear of personal injury. The Court of Appeal by a majority (Lord Denning MR dissenting) said P should succeed; it was no defence that she had come to the nuisance rather than vice versa. But no injunction should issue (i) because DD’s activities were socially beneficial and (ii) because P had come to the nuisance with her eyes open. Damages of £400 were awarded instead to cover both past and future inconvenience.
Bloomsbury & Rowling v News Group & others [2003] EWHC 1205 (Ch)
Following a pre-publication threat to disclose an important plot development, Sir Andrew Morritt VC granted an injunction against “the [unknown] person or persons who have offered the publishers of The Sun … a copy of “Harry Potter and the Order of the Phoenix” … and the person or persons who has or have physical possession of a copy …”, restraining them from disclosing without permission any information derived from the book. There was no precedent for an injunction that did not name any of the parties at whom it was directed, but making such an injunction caused no injustice, and not making it could cause considerable injustice to the claimants.

One particular area in which the law tries to achieve substantive justice is in the reduction of discrimination. Like cases should be treated alike, said Aristotle, Perelman, Hart and others, and different cases should often be treated differently. There should be no unwarranted discrimination on the basis of irrelevant factors, but differences between individuals should be properly taken into account when they are relevant.

Various Acts of Parliament therefore make it unlawful (usually in a civil rather than a criminal sense) to discriminate on the grounds of a person’s gender, race, religion or sexual orientation in matters relating to employment, education or the provision of services, or on grounds of age in matters relating to employment, unless a particular gender, race &c is a “genuine occupational requirement”. Other Acts require employers and providers of education and other services to make reasonable adjustments to their premises and working practices to meet the needs of disabled people.

Blathwayt v Cawley [1975] 3 All ER 625, HL
A man T made a well which left substantial property on trust to C for life and then to C’s sons, on condition that they were not and did not become Roman Catholic. T died and the property passed to C, who subsequently joined the Roman Catholic church. In a judgment based mainly on technical matters, the House of Lords said obiter that the public policy against religious discrimination must give way to the principle of testamentary freedom.
Singh v Rowntree Mackintosh [1979] ICR 554, EAT
A Sikh S was refused employment in a chocolate factory because of his unwillingness to remove his beard. The Industrial Tribunal found for RM, saying the public interest that hygiene rules should be enforced outweighed the public interest in preventing discrimination. The Appeal Tribunal agreed, and said the standard required for justification fell somewhere between necessity and mere convenience.
Ahmad v United Kingdom (1981) 4 EHRR 126, EComHR
A Muslim teacher A applied for time off on Friday afternoons and on certain other occasions to take part in religious observances, but was refused. He complained this was a violation of his freedom of religion, but the Commission disagreed: the evidence was that teachers of other religions would have been similarly treated, and the refusal was reasonable.
Gill v El Vino [1983] 1 All ER 398, CA
A wine bar EV operated a rule that women were served drinks only when sitting at tables, not at the bar. Allowing Ms G’s appeal from the County Court judge, the Court of Appeal said this was discriminatory. The different treatment was more than trivial: women were deprived of the conversation and social flexibility of the bar area.
James v Eastleigh BC [1990] 2 All ER 607, HL
A local authority EBC granted free admission to the public swimming baths to men and women of pensionable age. Since the statutory retirement age was 60 for women and 65 for men, the House of Lords held this was discriminatory against men. The test, said Lord Goff, is whether the complainant would have received the same treatment but for his or her sex; the discriminator’s motive is irrelevant.
B v B (Custody &c) [1991] 1 FLR 402, Judge Callman
A mother M left home to live with another woman, taking her two-year-old son B with her but leaving the two older children with their father F and his new (female) partner. The judge awarded F custody of the older children (who were happy with him) but gave B to M. What is so important, said the judge, is to distinguish between militant lesbians who try to convert others to their way of life, and lesbians in private. In this case there was no evidence to support the suggestion that B’s own sexual identity would be influenced by M’s lesbianism, which she did not parade openly, and the possible social stigma was outweighed by the fact that M had cared for him ever since he was born.
Fitzpatrick v Sterling Housing Association [1999] 4 All ER 705, HL
Reversing the Court of Appeal, the House of Lords held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing Act 1988. Lord Slynn said the legislation could not be interpreted to allow P’s claim on the basis that he had been living “as the husband or wife” of the deceased – if Parliament had intended such a relationship to include same-sex partners it would surely have said so – but P could claim as “a member of the family” living with the deceased at the time of his death. The word “family” is used in many senses, he said, some wider than others, and if P could show (as on the facts he could) the mutual inter-dependence, sharing of lives, caring and love, commitment and support that are rebuttably presumed to exist between married couples, that would be enough to establish a family relationship.
Meikle v Nottinghamshire CC [2004] EWCA Civ 859
A long-serving home economics teacher began to suffer from deteriorating eyesight. She asked the school to make allowance for this, for example by supplying her with a large-print version of the daily bulletin, by reducing the distance she had to move between classrooms, and by increasing her non-contact time so that she could do her marking and lesson preparation in daylight, but they did not do so. The Court of Appeal upheld her claim that this amounted to unlawful discrimination because of her disability: there were reasonable adjustments the school could have made, and they had not done so.

There will always be some miscarriages of justice – it is statistically unavoidable – in which the legal system reaches the wrong result. In criminal law, innocent people are sometimes convicted, and guilty people are often acquitted. There is an appeal system so that some of the wrongful convictions can be put right, but there are serious doubts about its effectiveness. For example, Timothy Evans was hanged in 1950 after being convicted of murder; the real murderer was identified shortly afterwards, and Evans was pardoned (posthumously) in 1966. Mahmood Hussein Mattan and Derek Bentley were hanged for separate murders in 1952; their convictions were eventually quashed by the Court of Appeal in 1998. In other cases, wrongful convictions have not been corrected until the defendants have spent long periods in prison: again in 1998 the Court of Appeal quashed Patrick Nicholls’ 1975 conviction for murder and thereby terminated a sentence of life imprisonment after hearing new pathological evidence that the victim had died from natural causes.

The Criminal Appeals Act 1995 tried to rectify some of the shortcomings of the system: under s.2(1) of this Act the Court of Appeal should allow an appeal if it thinks the conviction is “unsafe”, regardless of technicalities. In the past, however, the Court of Appeal have been very reluctant to interfere with the jury’s verdict: the jury have seen the witnesses’ behaviour in the witness box, and twelve jurors are as good as three judges in deciding who is telling the truth.

The Criminal Justice Act 2003 introduced several changes designed to assist substantive justice by reducing the number of wrongful acquittals. Part 10 of the Act abolished the “double jeopardy” rule so as to allow an acquitted person to be retried if new and compelling evidence comes to light, and Part 11 modified the rules of evidence to widen the circumstances in which “bad character” and hearsay evidence can be admitted. These changes will almost inevitably reduce the number of wrongful acquittals but increase the number of wrongful convictions.

R v McIlkenny [1992] 2 All ER 417, CA
DD were convicted of terrorist offences in 1975 and were sentenced to life imprisonment, but in 1991 it emerged (largely through investigative journalism) that the scientific evidence against them had been flawed and that their so-called “confessions” had been forged by police officers. Quashing their convictions, the Court of Appeal said no system is better than its human input. Like any other system of justice, the adversarial system may be abused. The evidence adduced may be inadequate. Expert evidence may not have been properly researched or there may have been a deliberate attempt to undermine the system by giving false evidence. If there is a conflict of evidence there is no way of ensuring the jury will always get it right … No human system can expect to be perfect.
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: