Justice

• Definitions of justice 

  Dictionary – fairness, moral rightness
• Plato 

  ◦   Harmony between the different sectors in society
• Aristotle (Plato’s pupil)

  ◦  There is a need for proportionality and a balance between extremes 

  e.g. balancing the freedom of expression with protection of the public from hate speech
• Aquinas 

  ◦  The constant willingness to deal with other people as they deserve 
• Utilitarianism – interested in the outcome of an act, regardless of the act itself

  For utilitarianists (such as. John Stuart Mill and Jeremy Bentham), maximising happiness is the object of justice 
• Investigating Powers Act 2016 

  ◦ When drafting this act the government called upon utilitarianism – for the greater good of the country – to achieve justice 

  ◦ The act was met with some criticism surrounding reduction of privacy – one person’s justice is not necessarily another’s.
• Distributive justice 

  Concerned with the fair allocation of resources including antidiscrimination laws, minimum wage and the redistribution of wealth through taxation.

  -       Human Rights Act 1998

  -       Equality Act 2010

  -       Minimum Wage Act 1998
• Social justice 

  Concerned with equal justice, not just in courts, but in all aspects of society.

  -       People should have equal rights and opportunities , everyone deserves a level playing field

  More extreme versions of social justice argue for equality of outcome.
• Rawls – liberalist who rejected capitalism 
• (Rawls) The difference principle – social and economic inequalities may exist but only where they benefit the least advantaged members of society.
• (Rawls) Foundational rights – the state must respect the autonomy and rights of the individual 
• (Rawls) Veil of ignorance
• European Convention of human rights 

  The ECHR is an agreement between 46 countries (member states) to protect specific human rights.

  ◦     Treaty of London set up after WW2 to prevent against injustices such as the removal of the rights of jews
• Rights protected under the Human Rights Act 1998

  ◦   Right to be free from slavery 

  ◦   Right to a fair trial (Article 6)

  ◦   Right to education 
• Section 1 of the HRA says that the articles within the ECHR are now protected by UK law.
• Formal procedural justice 

  Concerned with making and implementing decisions according to fair process.
• Article 6 – the right to a fair trial 

  Means you have the right to a trial that is fair, public and heard by an impartial court within a reasonable time.

  ◦   Doesn’t give the automatic right to legal representation but there may be a breach if none is given in complex cases
• Legal aid 

  All applications for criminal cases are means tested (standard level of justice). Some applications for civil cases are not means tested (e.g. care cases/mental health cases).
• -       LASPO and government cuts have reduced the availability of legal aid.

  This has led to legal aid deserts and a lower standard of defence as its not business smart to taking cases with such little pay.

  -       If a person cannot afford legal aid, there is a breach of Article 6
• The criminal process 

  Trial by jury enables jury members to use their view of justice rather than adhere strictly to the rules of law  (Ponting – jury acquitted a civil servant charged under the Official Secrets Act).
• Evidence of previous convictions is not generally admissible unless the facts are strikingly similar. 
• Evidence obtained illegally may be admissible (Jeffrey – an illegal search uncovered drugs).
• In general, justice is served by the criminal process, but individual cases sometimes expose a lack of justice that is not always remedied at a later date.
• Appeals 

  The ability to rectify unfair/incorrect verdicts e.g. Hamilton and others (post masters), Birmingham 6, Guilford 4.

  -    Appeals can take a long time, even years to achieve justice
• CCRC – Criminal Cases Review Commission  

  o   Role is to review the cases of those it feels have been wrongly convicted of criminal offences or unfairly sentenced
• Barriers to formal procedural justice 

  ◦   Funding – police facing a gap of £1.3 billion over the next 2 years

  ◦   Ethnicity – black men are 5 times more likely to be stopped and searched (UK govn, Figures 2023)
• Substantive justice

  Concerned with the content of the law – the legal principles created by parliament and the courts need to be regarded as ‘just’.
• Substantive justice – Criminal law 

  The principle of proportionality governs the sentencing practices of judges – the more serious the offence, the harsher the sanction which is seen as just.

  ◦            e.g. those convicted of murder receive a mandatory life sentence 
• Cocker – a husband suffocated his terminally ill wife after she asked him to and was given a life sentence.

  ◦  This seems disproportionate and unjust as the guidelines can be too restrictive for judges
• Substantive justice – Contract law

  • The Unfair Contract Terms Act 1977 restricts the use of exclusion clauses – a person cannot exclude liability for death.
  • The Consumer Rights Act 2015 also protects consumers by setting out rights and remedies.
• Corrective justice 

  The principle that those who are responsible for the wrongful losses of others have a duty to repair them.

  • In negligence, the aim of compensation is to restore the C to their pre-tort position. To balance this, any contributory negligence will reduce the award.

  ◦ The reduction is just because it is proportionate