Meaning and Types of Justice

Meaning of Justice

The idea that requires law to be fair & reasonable. The law should be enforced consistently and impartially to maintain a balance of fairness between all parties involved. All parties get what is deserved (Righting a wrong).

This moral concept is hard to define however, as Justice means different things to different people.

“Eye for an eye”

“Giving of Due deserts”

Types of Justice

1. Formal (Procedural Justice) - The enforcement of rules

2. Corrective Justice - Righting of wrongs

3. Substantive Justice - Content of laws being just

4. Distributive Justice - Fair allocation of resources

Formal (Procedural Justice)

Concerned with the process to establish liability i.e. application & enforcement of rules (Due Process) must be fair to all parties (D, V and wider society). Right to fair trial is incorporated in Article 6 of ECHR. Many need help to afford legal advice and representation so the passing of LASPO Act 2012 was criticised as it prevents A2J

Focus on procedure that brought about end outcome, rather than the end result.

Formal Justice linking with Natural Justice

• Right to a fair trial

• Both sides entitled to know and set out their case

• Right to appeal - to someone independent

• “No man can be a judge in his own cause” (Re Pinochet) - Judge had links to an interested party in the case. “Justice must be done and seen to be done”

• Impartial and Just application - Similar fact cases should have same result for consistency.

Other aspects of our justice system that are designed to help Procedural Justice

• Use of lay people to decide on guilt in criminal trials (Jurys & Magistrates. Increase in diversity (reduce bias) - Right to be tried by your peers.

• Use of Precedent - Where Stare decisis applies, cases with similar facts must have same result. - Certainty & Predictability

• Different BOP & SOP requirements - Beyond reasonable doubt & Balance of probabilities. Criminal needs higher BOP as more is at stake.

Corrective Justice

Definition

Concerned with righting of wrongs through a legal system - by means of sanctions & damages. In crime through proportionate punishment and civil through remedies.

Any wrongs in formal or substantive justice can be righted through the Appeal System in both crime and civil.

Can be done through the ‘Criminal Case Review Commission’

Corrective Justice

Example

Post Office Scandal

Corrective Justice - Crime - Sentencing

To obtain Proportionality, The court must follow Sentencing guidelines & can adopt any aim of sentencing (e.g. rehabilitation).

The court also applies aggravating & mitigating factors (motive, racially motivated)

Corrective Justice - Crime - Appeals

D has an automatic right of appeal against conviction and sentence from trial at the MC and with permission from trial at the CC.

P may only appeal from trial at CC if sentence was too lenient or against conviction on the basis there is a ruling on the admissibility of evidence, new evidence or the judge made an error.

(R v Derek Bentley)

Corrective Justice - Criminal Case Review Commission (CCRC)

CCRC was created in 1997, so applications can be made by anyone who believes they have been wrongly convicted or sentenced, including those who have previously lost and appeal

Substantive Justice

Concerned with whether the content of the laws themselves are just.

e.g. MR - severity of MR = Severity of sentence

Examples include:

• Existence of Defences - Self defence seen as justified and Duress seen as ‘excused’

• Strict Liability in crime - Arguably unfair as does not necessarily result in improving behaviour by not knowing how to improve for next time.

  (Callow v Tilstone)

Distributive Justice

Concerned with the fair allocation of resources and burdens (loss).

What amounts to fair (re) distribution is arguably a political concept, and accordingly views will vary widely.

• Access to justice i.e. Legal aid - LASPO 2012

• Tax