law and justice paper 3 nature of the law

Question 1

what is the definition according to oed

Answer 1

‘just conduct, fairness”

Question 2

what is the definition according to lord lloyd

Answer 2

“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”

Question 3

what are the 6 possible meanings of justice according to CH Perelman in “de la justice”

Answer 3

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

Question 4

what are the 4 types of justice

Answer 4

formal/ procedural, substantive, distributive and corrective

Question 5

what is formal/ procedural justice

Answer 5

Requires equality of treatment in accordance with the classification laid down by rules

Question 6

what is substantive justice

Answer 6

Whether rules are just

Question 7

what is distributive justice

Answer 7

Fair allocation of benefits and burdens within society

Question 8

what is corrective justice

Answer 8

Righting of wrongs through fair remedy or punishment

Question 9

according to aristotle what is distributive justice

Answer 9

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.

Question 10

according to aristotle what is corrective justice

Answer 10

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.

Question 11

according to marx how are societies divided

Answer 11

into two groups: owners (bourgeoisie) and workers (proletariat)

Question 12

what does marx say about perfect society

Answer 12

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

Question 13

who does the legal system represent according to marx

Answer 13

the lower classes (proletariat)

Question 14

whos interests does the legal system promote according to marx

Answer 14

the ruling class (bourgeoisie)

Question 15

what is utilitarianism about

Answer 15

‘the greatest good for the greatest number’

Question 16

who developed the utilitarian philosophy

Answer 16

bentham

Question 17

what is the object of justice according to utilitarianism

Answer 17

maximising happiness

Question 18

what is a criticism of utilitarianism

Answer 18

the interest of an individual may be sacrificed for greater community happiness

Question 19

what does kant say against utilitarianism

Answer 19

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.

Question 20

why does rawls reject bentham

Answer 20

as it means that the end can be used to justify the means e.g. in torturing terrorist suspects

Question 21

what did rawls say about liberty

Answer 21

people would choose maximum level of individual freedom compatible with similar liberty for others

Question 22

what did rawls say about equality

Answer 22

economic inequalities to be arranged so that they are to be to everyone’s advantage all positions and offices open to all.

Question 23

true or false rawls ttheory is impossibe to implement

Answer 23

true Starting a society from zero would be impossible

Question 24

why does nozick criticise rawls

Answer 24

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.

Question 25

what premise is the english legal system based on

Answer 25

Lex injusta non est lex, this means quite simply ‘unjust law is not law’.

Question 26

what does phil harris say about natural justice

Answer 26

it ‘simply refers to a duty to act fairly’.

Question 27

what are the two aspects of natural justice

Answer 27

Audi alterem partem and Nemo judex in causa sua

Question 28

what does Nemo judex in causa sua mean

Answer 28

no person can be judged a case which he or she is party or in which he/she has an interest.

Question 29

what does Audi alterem partem mean

Answer 29

hear the other side (of the case)

Question 30

Why is it important to keep the judiciary separate and allow them to be independent?

Answer 30

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).

Question 31

who are superior judges

Answer 31

High court judges, lord justices of appeal, justices of the Supreme Court.

Question 32

what is security of tenure

Answer 32

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.

Question 33

who are inferior judges

Answer 33

Recorders, district judges, circuit judges

Question 34

who with consent of the Lord Chief Justice, has the power to dismiss inferior judges for capacity or misbehaviour.

Answer 34

the lord chancellor

Question 35

what is immunity of suit

Answer 35

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.

Question 36

what is independence from the executive

Answer 36

Cannot be dismissed by government so are free to make decisions the government may dislike.

Question 37

explain the case R (Miller) v Secretary of State for Exiting the EU 2016

Answer 37

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.

Question 38

independence from the legislature

Answer 38

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

Question 39

explain case of pinochet

Answer 39

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.

Question 40

Advantages of Judicial independence

Answer 40

• 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)

Question 41

what are the two main principles of the rule of law

Answer 41

No one is above the law

and Everyone is subject to the law

Question 42

what 3 elements that created the rule of law came from V.Dicey

Answer 42

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.

Question 43

what is lord bingham’s difintion of the rule of law

Answer 43

“all persons and authorities within the State, whether public or private, should be bound by and entitled to benefit of laws.”

Question 44

ratio of A and others (Belmarsh Case)

Answer 44

Detention of foreign nationals without trial under s21 Anti-Terrorism, Crime and Security Act 2001 wasn’t compatible under HRA 1998

Question 45

Which device was used to challenge the Anti-Terrorism, Crime and Security Act 2001 ?

Answer 45

Human Rights Act 2000 s4 Declaration of Incompatibility

Question 46

How might the government seek to justify their actions in the belmarsh case?

Answer 46

Protection of the public from suspected terrorists and time to gather evidence.

Question 47

What change in the law resulted from the ruling in the belmarsh case?

Answer 47

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)

Question 48

who said “The Law Courts are open to any man, so are the doors of the Ritz Hotel.”

Answer 48

(Mr. Justice Darling)  

Question 49

who said “Access to justice shouldn’t be a luxury It Is a necessity”

Answer 49

head of legal aid at the law society

Question 50

explain the miscarriage of justice of stefan kiszko

Answer 50

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.

Question 51

explain the miscarriage of justice of sally clark

Answer 51

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.

Question 52

Why does Michael Mansfield argue the ‘risk of a miscarriage of justice is as great as ever?’

Answer 52

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.

Question 53

what was the double jeoprady rule

Answer 53

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.

Question 54

explain the stephen lawrence miscarriage of justice

Answer 54

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).

Question 55

explain the case of clive ponting

Answer 55

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.

Question 56

explain the case of owens

Answer 56

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.

Question 57

explain the case of twomey

Answer 57

• 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.

Question 58

explain theodora dallas case

Answer 58

Researched defendant on the Internet and shared it with her fellow jurors. Jailed for 6 months.

Question 59

explain joanne friall case

Answer 59

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.

Question 60

explain secrecy of the jury room r v stephens

Answer 60

• 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)

Question 61

what is proportionality

Answer 61

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.

Question 62

explain case of debbie purdy

Answer 62

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.

Question 63

explain case of Tony Nicklinson

Answer 63

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.