law and justice paper 3 nature of the law Flashcards
what is the definition according to oed
‘just conduct, fairness”
what is the definition according to lord lloyd
“justice, whatever its precise meaning may be, is itself a moral value, that it one of the aims or purposes which man sets himself in order to attain the good life”
what are the 6 possible meanings of justice according to CH Perelman in “de la justice”
To each according to his works To each according to his needs To each according to his merits To each according to his ranks To each according to his legal entitlement To each equally
what are the 4 types of justice
formal/ procedural, substantive, distributive and corrective
what is formal/ procedural justice
Requires equality of treatment in accordance with the classification laid down by rules
what is substantive justice
Whether rules are just
what is distributive justice
Fair allocation of benefits and burdens within society
what is corrective justice
Righting of wrongs through fair remedy or punishment
according to aristotle what is distributive justice
a just state will distribute its wealth on the basis of merit, giving each according to ‘virtue’. Allocating resources on the basis of need it unjust because it would reward the lazy.
according to aristotle what is corrective justice
where distributive justice is disturbed by wrongdoing, there should be a means of restoring the original position. Operates through a system of sanctions and remedies and through the appeal system. This is the forerunner of procedural or formal justice.
according to marx how are societies divided
into two groups: owners (bourgeoisie) and workers (proletariat)
what does marx say about perfect society
Perfect society has no law- the state is ‘withered away’. All societies ‘goods’ are common to all: “from each according to his ability; to each according to his needs” rather than merit e.g. in UK NHS
who does the legal system represent according to marx
the lower classes (proletariat)
whos interests does the legal system promote according to marx
the ruling class (bourgeoisie)
what is utilitarianism about
‘the greatest good for the greatest number’
who developed the utilitarian philosophy
bentham
what is the object of justice according to utilitarianism
maximising happiness
what is a criticism of utilitarianism
the interest of an individual may be sacrificed for greater community happiness
what does kant say against utilitarianism
an act is more important than the consequence. If an act is wrong, then it does not matter how much happiness it produces as a result.
why does rawls reject bentham
as it means that the end can be used to justify the means e.g. in torturing terrorist suspects
what did rawls say about liberty
people would choose maximum level of individual freedom compatible with similar liberty for others
what did rawls say about equality
economic inequalities to be arranged so that they are to be to everyone’s advantage all positions and offices open to all.
true or false rawls ttheory is impossibe to implement
true Starting a society from zero would be impossible
why does nozick criticise rawls
because we should work with the society we have already and that the stat should not interfere to redistribute wealth that has been legitimately acquired
Should not interfere to support and redistribute of wealth is unfair e.g. those with a disability.
what premise is the english legal system based on
Lex injusta non est lex, this means quite simply ‘unjust law is not law’.
what does phil harris say about natural justice
it ‘simply refers to a duty to act fairly’.
what are the two aspects of natural justice
Audi alterem partem and Nemo judex in causa sua
what does Nemo judex in causa sua mean
no person can be judged a case which he or she is party or in which he/she has an interest.
what does Audi alterem partem mean
hear the other side (of the case)
Why is it important to keep the judiciary separate and allow them to be independent?
An independent judiciary protects liberty of the individual from abuse of power by the executive. If the government could make judges decide the way governments wanted this could lead to (at worst) opponents being imprisoned or political decisions going in the government’s favour (at best).
who are superior judges
High court judges, lord justices of appeal, justices of the Supreme Court.
what is security of tenure
they cannot be dismissed by the government. They can only be removed by the Monarch following a petition presented to her by both House of Parliament.
who are inferior judges
Recorders, district judges, circuit judges
who with consent of the Lord Chief Justice, has the power to dismiss inferior judges for capacity or misbehaviour.
the lord chancellor
what is immunity of suit
Immunity from prosecution for any acts they carry out in performance of their judicial function. Immunity from being sued for decisions they make
Immunity from being sued for defamation for things they say about witnesses or parties to a hearing.
what is independence from the executive
Cannot be dismissed by government so are free to make decisions the government may dislike.
explain the case R (Miller) v Secretary of State for Exiting the EU 2016
After the referendum decision, the government announced it would start the process of leaving. There was then a challenge as to whether the executive could do this without permission from Parliament.
Ratio: SC ruled 8:3 that only parliament could authorise the triggering of Article 50 to exit the EU.
Gina Miller and the original high court justices were attacked in the media but Theresa May confirmed the right for the judiciary to be independent.
independence from the legislature
The highest judges in the land no longer sit in the House of Lords but Supreme Court created in 2009 with a separate building.
Full time judges are not permitted to be members of parliament
explain case of pinochet
The judges decided their decision could not be allowed to stand when it was discovered Lord Hoffman had an interest in amnesty international (not a party to the case but provided evidence as amicus Curia)
JUSTICE HAD TO BE SEEN TO BE DONE JUDGES MUST BE COMPLETELY UNBIASED.
Advantages of Judicial independence
- provides confidence in the system
- decisions are made based on facts of the case and the law. Ensures fairness.
- judiciary can protect citizens from unlawful acts by the government e.g. judicial review cases (and are free from concerns for their job as they have security of tenure)
what are the two main principles of the rule of law
No one is above the law
and Everyone is subject to the law
what 3 elements that created the rule of law came from V.Dicey
An absence of arbitrary power of the state= state’s power must be controlled by the law. In the English legal system government ministers can be challenged via judicial review.
Everyone must be equal before the law= even those in power are subject to the law
The law must be supreme.= parliamentary law is still supreme even if in reality some laws are made via delegated legislation or the judiciary.
what is lord bingham’s difintion of the rule of law
“all persons and authorities within the State, whether public or private, should be bound by and entitled to benefit of laws.”
ratio of A and others (Belmarsh Case)
Detention of foreign nationals without trial under s21 Anti-Terrorism, Crime and Security Act 2001 wasn’t compatible under HRA 1998
Which device was used to challenge the Anti-Terrorism, Crime and Security Act 2001 ?
Human Rights Act 2000 s4 Declaration of Incompatibility
How might the government seek to justify their actions in the belmarsh case?
Protection of the public from suspected terrorists and time to gather evidence.
What change in the law resulted from the ruling in the belmarsh case?
Prevention of Terrorism Act 2005 which reduced the time to hold suspects to 28 days before release or charge and control orders introduced (later changed to TPIMs)
who said “The Law Courts are open to any man, so are the doors of the Ritz Hotel.”
(Mr. Justice Darling)
who said “Access to justice shouldn’t be a luxury It Is a necessity”
head of legal aid at the law society
explain the miscarriage of justice of stefan kiszko
Served 16 years in prison for the murder and sexual assault of schoolgirl, a crime he did not commit. He was freed on appeal in 1992, when new evidence proved he could not have killed her because the semen found at the scene could not be his. He died the following year from a heart attack, aged 41.
explain the miscarriage of justice of sally clark
Solicitor convicted of murder of her 2 sons based on expert evidence. Served just over 3 years before being released on the basis of unsound expert witness evidence.
Can be seen as a success of the legal system as the appeals structure allowed her to be released but could not give her back 3 years of her life and the trauma of prison led to alcoholism and she died of alcohol poising 4 years later.
Why does Michael Mansfield argue the ‘risk of a miscarriage of justice is as great as ever?’
From confession styles cases to forensic science cases.
Threat to juries for either way offences.
Cuts to legal aid mean some defendants will plead guilty or become a litigant in person.
what was the double jeoprady rule
Criminal Justice Act 2003 allows for people acquitted of certain serious offences to be retried, provided the DPP and the CA are satisfied that there is ‘new and compelling evidence’ and it is in the interests of justice to have a retrial. This relaxes the ‘double jeopardy’ rule which is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction.
explain the stephen lawrence miscarriage of justice
Black teenager murdered waiting for a bus with a friend. 5 suspects were eventually arrested but not charged. A 1998 public inquiry examined the investigation and found it to be flawed at every level and suffered deeply ingrained discrimination.
As a result double jeopardy rule was repealed and 2 of the original suspects tried for murder (even though one had been originally acquitted making him the first person in the UK to be retried for murder) were sentenced to equivalent to a life sentence for an adult (even though they were juveniles at the time of the killing).
explain the case of clive ponting
F: Ponting was a civil servant who was charged under s2 Official Secrets Act 1911. Ponting had leaked information on the sinking of the Belgrano, in the Falklands war to a MP. At his trial he pleaded not guilty, claiming that his actions had been in the public interest.
H: The jury refused to convict him even though the judge ruled there was no defence.
explain the case of owens
F: Taylor killed Owen’s son whilst driving a truck under the influence of drink and drugs but served a 12 months prison sentence. Taylor used to mock Owen about his short sentence and repeatedly desecrating his son’s grave. Owen shot Taylor at point-blank range but Taylor survived. Owen was arrested and charged with attempted murder. He pleaded not guilty in court.
H: Jury found him not guilty.
explain the case of twomey
- D charged with various offences connected to a large robbery from a warehouse at Heathrow. 3 previous trials had collapsed because of ‘serious attempts of jury tampering’
- CA declared a trial should go ahead without a jury
Later challenged under A6 but lack of a jury for an indictable offence does not violate the right to fair trial.
explain theodora dallas case
Researched defendant on the Internet and shared it with her fellow jurors. Jailed for 6 months.
explain joanne friall case
Caused a multi-million pound drugs trial to collapse when she contacted the defendant over social media. Received 8 months.
BUT: secrecy of the jury room will mean not all contempt of court will come to light and justice will not have been served. Internet usage and social media is becoming a particular concern for the courts.
explain secrecy of the jury room r v stephens
- Lack of understanding by juries about technical issues e.g Jubilee line fraud case (juror went on strike forcing the longest British jury trial to collapse costing £60m)
- 12%jurors had admitted to researching information for the case on the Internet (THOMAS REPORT)
what is proportionality
Proportionality
The punishment of a certain crime should be in proportion to the severity of
the crime itself.
The courts use the tariff system to tailor the punishment to the defendant.
explain case of debbie purdy
Suffered from multiple sclerosis Argued the DPP was infringing her human rights by not clarifying how the Suicide Act 1961 could be forced. She wanted immunity for her husband if he helped her go to Switzerland to the Dignitas clinic to end her life.
Her case failed but later the DPP issued further guidance. It still will not guarantee immunity from prosecution though.
explain case of Tony Nicklinson
Suffered with locked in syndrome and was paralysed from the neck down. He wanted his doctor to help end his life but his application to change the law was refused by the High Court.
Later he starved himself and died.
