SJD - Justice

Page 1

'The purpose of the Criminal Justice System... is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent.'

Or consider the following, from Working Together to Cut Crime and Deliver Justice, the criminal justice strategic plan published in November 2007:

'The central purpose of the Criminal Justice System is to deliver an efficient, effective, accountable and fair justice process for the public.'

A similar tone was set by the 'Policy Green Paper' published in early March 2008 by the Conservative Party, entitled 'Prisons with a purpose'. Replete with crime control aspirations, the paper observed, in relation to prisons:

'Prisons should reduce crime in three principal ways: by incapacitating offenders, by punishing and thereby deterring others who would commit crimes, and by rehabilitating offenders.'

The main challenge was that of making the prisons system and the processes associated with dealing with prisoners more effective and efficient.

With their appeal to a utilitarian efficiency and an instrumental logic - protecting the innocent and punishing the guilty - these statements offer a picture of criminal justice as being in the business of crime control. The challenge is one of effectiveness.

A rather different note was struck by Jack Straw in his first major speech as Lord Chancellor in July 2007. What was 'fundamental to the welfare and happiness' of citizens, he argued, was strong public institutions, properly managed, 'and above all whether all... citizens, poor or rich, low or high got justice against the powerful, and the state.' He went on to draw out the implications for the justice system:

'We are blessed in the United Kingdom by a judiciary whose integrity, independence, professionalism and skill are not in question. But we take such a condition for granted at our peril. Justice is a delicate plant. It has to be nurtured, protected, cared for.'

The justice system on this account presents a bulwark against the potentially overweening power of the state and other vested interests. A concern for due process, checks and balances, core values and an underlying institutional strength inform this perspective, rather than the pragmatic appeal to the effective and efficient control of crime.

It was the American legal scholar Herbert Packer who first proposed that the competing logics of 'crime control' and 'due process' exercised varying influence on the operations of the US criminal justice process. Under the crime control model, the underlying logic of the criminal justice is to contain and repress criminal behaviour. Successful criminal detection, prosecution and conviction are hallmarks of an effective criminal justice model. The due process model, on the other hand, places at least as much emphasis on protecting the rights of the innocent as it does on convicting the guilty. The protection of individual liberty in the face of a potentially over-powerful state is a key preoccupation of the due process model.

Packer's contrast between crime control and due process was developed in the context of the US criminal justice process. Yet it is possible to consider recent debates on criminal justice in England and Wales in the categories he developed.

Of course crime control and due process logics are not pristine and mutually exclusive. The very fact that Jack Straw can both express due process concerns, while also being a senior minister responsible for the implementation of the government's criminal justice strategy suggests as much.

But disputes between crime control and due process considerations tend also to boil down to questions of degree and emphasis. Crime control advocates might argue that a misguided attachment to certain protections historically afforded to suspects hampers convictions. But the principle of appropriate protections is not, generally, denied. Due process advocates might champion enhanced protections for suspects in police custody. But one would have to search hard to find someone who would oppose any questioning of suspects in police custody.

The debate over the appropriate balance between due process protections and the crime control imperative, in other words, tends to be dominated by disagreements of a largely procedural kind. Such procedural debates are obviously vitally important. A society that shows indifference to the processes by which those deemed to have breached the laws of the land are dealt with is unlikely to be a society in which the rights of individuals are respected.

But on their own, procedural debates offer little insight into the social context and political-economic structures within which the criminal justice process operates. In order to explore this question, consider the following definition of criminal justice, taken from Andrew Sanders and Richard Young's standard textbook on the subject. Criminal Justice, they write:

'is... a complex social institution which regulates potential, alleged and actual criminal activity within procedural limits supposed to protect people from wrongful treatment and wrongful conviction'.

Criminal justice practices, they go on to note, 'are inherently coercive'. This focus on criminal justice as a set of often coercive social regulatory institutions, and not merely a collection of 'crime fighting' agencies, throws a spotlight on the broader social purpose of criminal justice, rather than merely considering its operations within the framework of a fight against crime versus the protections afforded suspects.

But then criminal justice, as a social regulatory set of institutions, operates within a society characterised by notable inequalities in wealth and power. What is the implication of this for the operations of criminal justice? For Sanders and Young they are very clear. '[I]n a society in which power, status and wealth are unequally distributed along lines such as age, gender, race, and class, much criminal justice activity will compound wider social divisions,' they write. They go on to argue that the 'enforcement of the criminal law... reinforces a hierarchical social order which benefits some while disadvantaging others.'

Now Sanders and Young are hardly red in tooth and claw revolutionaries. Their scholarship sits squarely within the parameters of liberal critique. But while liberal scholarship has many strengths, it also has its limitations. Take, for instance, the perspective set out by the Marxist political scientist Ralph Miliband over thirty years ago, on the differences between a liberal and a Marxist view on the nature of social conflict and its resolution:

'In the liberal view of politics, conflict exists in terms of "problems" which need to be "solved". The hidden assumption is that conflict does not, or need not, run very deep; that it can be "managed" by the exercise of reason and good will, and the readiness to compromise and agree... The Marxist approach to conflict is very different. It is not a matter of "problems" to be "solved" but of a state of domination and subjection... Ultimately, stability is not a matter of reason but of force... and the notion of genuine harmony is a deception or a delusion.'

The reason for quoting Miliband's analysis is that it implies a rather different take on the purpose and nature of criminal justice. From a Marxist perspective - at least if we take Miliband as the reference point - the purpose of criminal justice might be characterised as the ongoing maintenance of class domination by means of coercive force, legitimated by legal norms. Thus, of the four functions of the capitalist state identified by Miliband the first of them is the maintenance of law and order; what he dubs 'the repressive function'. The 'state is always involved' in the processes of criminal justice, Miliband argues, if only because it defines the nature of `legal norms and sanctions'.

It is not necessary to subscribe to Miliband's politics, nor Sanders and Young's liberalism, to acknowledge the critical purchase they offer to an understanding of criminal justice. In different ways they pose the challenge to take seriously the relationship between social structures and social processes on the one hand, and normative principles in relation to criminal justice on the other.

A concern with the appropriate principles and priorities that guide the operations of the criminal justice process remains an important and necessary task. But a theory of criminal justice that does not take seriously the ways in which criminal justice might both regulate and manage underlying social antagonisms is likely ultimately to lead to bad policy and dubious outcomes.

VISION: Justice for all in South Africa.

MISSION: To administer an efficient and responsive justice system.

OUR PRINCIPLES AND VALUES

Commitment to constitutional values and a culture of human rights

Rule of law

Excellence

Responsiveness

Accountability

Good governance

GOALS

Goal 1: Optimisation of the use of people, processes and technology to meet service delivery and good governance requirements

Invest in and develop people, processes and technology to ensure continued compliance with legislative and regulatory requirements and sustained public confidence.

Goal 2: People-centred justice services that are accessible, reliable and efficient

Justice services which place victims, vulnerable persons and other court users at the centre of the justice system.

Goal 3: Corporatized, cost effective and integrated quality legal services to proactively protect the interest of the state

A transformed and integrated state legal service is that offers quality, efficient and a cost effective service.

Goal 4: Promotion of constitutionalism, human rights and commitment to international legal relations

Compliance by government departments with the Promotion of the Administrative Justice Act (PAJA) is substantially improved, citizens are better informed on how to exercise their constitutional rights, public engagement with relevant stakeholders, civil society organisations and community-based organisations is improved by public participatory forums and constitutional development is promoted.

DEPARTMENTAL PROGRAMMES

Programme 1: Administration

Purpose: To manage the department, develop policies and strategies for the efficient administration of justice and provide centralised support services. The table below shows the components of the programme.

Programme 2: Court Services

Purpose: To facilitate the resolution of criminal, civil and family law disputes by providing accessible, efficient and quality administrative support to the courts and to manage court facilities.

Programme 3: State Legal Services

Purpose: To provide legal and legislative services to organs of state, supervise the administration of deceased and insolvent estates, as well as the liquidation of juristic persons, the registration of trusts and the management of the Guardian’s Fund.

Programme 4: National Prosecuting Authority

Although the NPA is funded through the Justice and Constitutional Development vote account, with the Director- General as the accounting officer, the NPA has its own Annual Performance Plan and Strategic Plan which is reported separately from the Departments Annual Performance Plan and Strategic Plan.

Programme 5: Auxiliary and Associated Services

Purpose: To provide a variety of auxiliary services associated with the Department’s goals, fund transfer payments to the South African Human Rights Commission (SAHRC), the Office of the Public Protector, LASA, the SIU and the President’s Fund.

Procedural justice focuses on the way police and other legal authorities interact with the public, and how the characteristics of those interactions shape the public’s views of the police, their willingness to obey the law, and actual crime rates. Mounting evidence shows that community perceptions of procedural justice can have a significant impact on public safety.

Procedural justice is based on four central principles: "treating people with dignity and respect, giving citizens 'voice' during encounters, being neutral in decision making, and conveying trustworthy motives." Research demonstrates that these principles contribute to relationships between authorities and the community in which 1) the community has trust and confidence in the police as honest, unbiased, benevolent, and lawful; 2) the community feels obligated to follow the law and the dictates of legal authorities, and 3) the community feels that it shares a common set of interests and values with the police.

Procedurally just policing is essential to the development of good will between police and communities and is closely linked to improving community perceptions of police legitimacy, the belief that authorities have the right to dictate proper behavior. Research shows that when communities view police authority as legitimate, they are more likely to cooperate with police and obey the law. Establishing and maintaining police legitimacy promotes the acceptance of police decisions, correlates with high levels of law abidingness, and makes it more likely that police and communities will collaborate to combat crime.

A key component of the research is that the public is especially concerned that the conduct of authorities be fair, and this factor matters more to them than whether outcomes of particular interactions favor them. This means that procedurally just policing is not consonant with traditional enforcement-focused policing, which typically assumes compliance is a function primarily of emphasizing to the public the consequences—usually formal punishment—of failing to follow the law. Policing based on formal deterrence encourages the public’s association of policing primarily with enforcement and punitive outcomes. Procedurally just policing, on the other hand, emphasizes values that police and communities share—shared values based upon a common conception of what social order is and how it should be maintained—and encourages the collaborative, voluntary maintenance of a law-abiding community. Research indicates that this latter approach is far more effective at producing law-abiding citizens than the former. This makes intuitive sense— people welcome being treated as equals with a stake in keeping their communities safe, as opposed to being treated as subjects of a capricious justice system enforced by police who punish them for ambiguous, if not arbitrary, reasons.

Taking measures to enhance procedural justice within law enforcement agencies is becoming increasingly possible. Professor Tracey Meares and Professor Tom Tyler of Yale Law School have worked with the Chicago Police Department and others to create a one-day training for line officers and command staff that teaches them how to apply powerful procedural justice principles to their routine contacts with the public. The officers reportedly like it and evaluate it positively, as it improves not only public safety but their own. Indeed, there are many good reasons to cultivate a respectful relationship between police and communities, but the most important is that communities in which police are considered legitimate are safer and more law-abiding.

Procedural justice focuses on the way police and other legal authorities interact with the public, and how the characteristics of those interactions shape the public’s views of the police, their willingness to obey the law, and actual crime rates. Mounting evidence shows that community perceptions of procedural justice can have a significant impact on public safety.

Procedural justice is based on four central principles: "treating people with dignity and respect, giving citizens 'voice' during encounters, being neutral in decision making, and conveying trustworthy motives." Research demonstrates that these principles contribute to relationships between authorities and the community in which 1) the community has trust and confidence in the police as honest, unbiased, benevolent, and lawful; 2) the community feels obligated to follow the law and the dictates of legal authorities, and 3) the community feels that it shares a common set of interests and values with the police.

Procedurally just policing is essential to the development of good will between police and communities and is closely linked to improving community perceptions of police legitimacy, the belief that authorities have the right to dictate proper behavior. Research shows that when communities view police authority as legitimate, they are more likely to cooperate with police and obey the law. Establishing and maintaining police legitimacy promotes the acceptance of police decisions, correlates with high levels of law abidingness, and makes it more likely that police and communities will collaborate to combat crime.

A key component of the research is that the public is especially concerned that the conduct of authorities be fair, and this factor matters more to them than whether outcomes of particular interactions favor them. This means that procedurally just policing is not consonant with traditional enforcement-focused policing, which typically assumes compliance is a function primarily of emphasizing to the public the consequences—usually formal punishment—of failing to follow the law. Policing based on formal deterrence encourages the public’s association of policing primarily with enforcement and punitive outcomes. Procedurally just policing, on the other hand, emphasizes values that police and communities share—shared values based upon a common conception of what social order is and how it should be maintained—and encourages the collaborative, voluntary maintenance of a law-abiding community. Research indicates that this latter approach is far more effective at producing law-abiding citizens than the former. This makes intuitive sense— people welcome being treated as equals with a stake in keeping their communities safe, as opposed to being treated as subjects of a capricious justice system enforced by police who punish them for ambiguous, if not arbitrary, reasons.

Taking measures to enhance procedural justice within law enforcement agencies is becoming increasingly possible. Professor Tracey Meares and Professor Tom Tyler of Yale Law School have worked with the Chicago Police Department and others to create a one-day training for line officers and command staff that teaches them how to apply powerful procedural justice principles to their routine contacts with the public. The officers reportedly like it and evaluate it positively, as it improves not only public safety but their own. Indeed, there are many good reasons to cultivate a respectful relationship between police and communities, but the most important is that communities in which police are considered legitimate are safer and more law-abiding.

Extent That Substantive Legal Rules Achieve Justice

Justice, as defined by the Oxford Dictionary of Law, is ‘a moral ideal that the law seeks to uphold in the protection of rights and the punishment of wrongs’. It goes on to say that justice is not one and the same with the law, that some law can be called unjust. Theorists give many concepts on the relationship between law and justice, such as natural justice, utilitarianism and liberalism. Justice, according to law can be formal and/or substantive. Formal justice is the procedural format of the rules that must be applied equally to all. Substantive justice on the other hand is concerned with the actual just nature of the rules.

Natural justice is given no special meaning; merely that it is a duty to act fairly. This is based on twin ideals: the first is that there is a right for all parties to have their case heard and the second is the principle that no one should judge their own cause. The case of R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet [2] shows this standard where the House of Lords annulled a decision to extradite General Pinochet, the former dictator of Chile, to Spain to face charges on human rights abuse. The decision was annulled because Lord Hoffman sat in judgement and had ties to the human rights organisation Amnesty International, which was involved in the case. The case was reheard without Lord Hoffman.

It is reasonable to assume that where a legal system is based around any version of justice subscribed to, that natural justice and the rule of law will be at the heart of this system. The rule of law is outlined by Dicey [3] that ‘no person is punishable except for a distinct breach of the law established in the courts’ and that everyone is ‘subject to the ordinary law of the realm’.

One of the ways in which a system of justice is maintained in England is the method of judicial review. This is where an independent judiciary examine the powers of the state or organisation of the state and how they use them. This is where it could be argued that the true test of a system of justice is where it deals with threats (real or perceived) to national security.

In the case of R v Secretary of State for Home Affairs, ex parte Hosenball [4] the decision to deport an American journalist was upheld despite none of the rules on natural justice being followed in the case. This was on grounds of supposed national security issues. Another case demonstrating the mysterious issue of national security is Council of Civil Service Unions v Minister for the Civil Service [5] . This is where on grounds of national security employees of the Government Communications Headquarters were not allowed to join trade unions. It is therefore suggestible that state reliance on the requirements of national security inhibits the scope of judicial review, and therefore the maintenance of justice.

However, the Human Rights Act 1998 allows judges to review even primary legislation and even strike it down as incompatible with the European Convention on Human Rights. This shows a dedication in recent years to the upkeep of justice. The case of A and Others v Secretary of State for the Home Department [6] shows this in action. This is where the House of Lords took the view that the detention of foreign nationals without trial under section 21 of the Anti-terrorism, Crime and Security Act 2001 was not justified, even though the government ran the argument that national security was at stake. Similarly, control orders introduced by the Prevention of Terrorism Act 2005 have been struck down, in Secretary of State for the Home Department v JJ and Others [7] . In fact with relation to the terror legislation it would appear the government, whist seeking to avoid a state of suicidal lethargy, will sacrifice most civil liberties and rely on the courts to hold them to the doctrine of proportionality. It appears that judges are ready to do this as well.

The measure of justice in a system is also measured by the access that is granted to it. Without access to justice, it is effectively impossible to subscribe to the most basic principle of natural justice (the right to be heard). In England it seems to have become unjust in recent years. Government funded legal aid was an idea introduced by the Legal Aid Act 1949, with the aim of providing access to justice for all, rather than just those that could afford council. The system was however too good and some eighty percent of the population could apply, meaning that it was too expensive to keep. Unfortunately the need for an inexpensive cap on the qualification for legal aid meant that there has become a ‘middle income trap’, where someone is too rich to qualify but too poor to fund legal action themselves.

The Access to Justice Act 1999 exhausted legal aid further by introducing a limit on the amount that could be spent on legal aid every year, and when this runs out no aid is available. The ‘middle income trap’ remains and also certain types of actions, such as personal injury claims, are excluded. There is a paper by the Bar Council’s Policy Advisory Board led by Guy Mansfield QC that sets out the merits of a contingent legal aid fund [8] . This would be available to anyone and is based on the concept of a self funding scheme whereby successful litigation pays contingent subsidies back into the fund. This idea is even more useful in the face of the economic crisis where large cuts will undoubtedly affect the amount of legal aid available under the Access to Justice Act 1999.

It would seem as a result of this that formal justice is denied because certain sections of society do not get impartial treatment. Substantively it can be also argued that with the presence of a reasonable alternative the law is unjust because the current law has the effect of denying access to even those that may need it.

The civil justice system in England before the Civil Procedure Rules 1999 was often referred to as unfair and was widely criticised. Elliot and Quinn comment that:

“While conflicting interests may mean that it is impossible to achieve a civil justice system that satisfies everyone, there were serious concerns that the civil justice system before April 1999 was giving satisfaction to only a small minority of users” [9]

Lord Woolf reported in 1996 that a number of aims should be put in place for the civil justice system should aspire to. These were to efficiently, justly and fairly deal with cases and litigants. The Civil Procedure Rules introduced these aims and represent a significant reform. They give rules on pre-action protocols that save time and money via negotiation and also make judges pro-actively manage cases. The rules also state an overriding objective that the courts should always justly decide cases over and above any other concerns.

Despite minor procedural issues, such as the fast track system making timetabling more difficult for lawyers, the new civil system shows significant development in the justice of the civil courts.

The criminal justice system has been under a lot of scrutiny also ever since the 1980s and 1990s. This is because of the revelations that followed cases such as the Guildford Four, the Maguires and the Birmingham Six had brought to light many failings on the part of the criminal justice system. For example the police, in their eagerness to get convictions for these murders, were prepared to compromise some of the fundamental principles of formal justice. In particular the confessions that were obtained, the treatment of the defendants whilst in custody and the quality and reliability of the forensic evidence were put to the question and found wanting.

When Judith Ward, in the case R v Ward (Judith Theresa) [10] , was cleared in 1992 after serving eighteen years for the bombing of a coach on the M62 motorway, which killed twelve people, the Court of Appeal said that a grave miscarriage of justice had occurred:

“In failing to disclose evidence… the West Yorkshire police, the scientists who gave evidence at the trial, and some of those member of the staff of the DPP and counsel who advised them… failed to carry out their basic duty to seek to ensure a trial which is fair to both prosecution… and the accused” [11]

It could be argued that with her quashed conviction and compensation that justice has eventually been served as a result of the system being just. However this is a relatively weak argument in the face of the fact that eighteen years had been served prior to this, and the fact that it should not have happened in the first place. Also these cases sparked sets of measures to make sure that procedural justice is met more effectively, for example the Police and Criminal Evidence Act 1984 that outlines the behaviour expected of police officers and the rights and civil liberties of suspects. These things show that the system is adapting to provide better justice for all.

Extent That Substantive Legal Rules Achieve Justice

Justice, as defined by the Oxford Dictionary of Law, is ‘a moral ideal that the law seeks to uphold in the protection of rights and the punishment of wrongs’. It goes on to say that justice is not one and the same with the law, that some law can be called unjust. Theorists give many concepts on the relationship between law and justice, such as natural justice, utilitarianism and liberalism. Justice, according to law can be formal and/or substantive. Formal justice is the procedural format of the rules that must be applied equally to all. Substantive justice on the other hand is concerned with the actual just nature of the rules.

Natural justice is given no special meaning; merely that it is a duty to act fairly. This is based on twin ideals: the first is that there is a right for all parties to have their case heard and the second is the principle that no one should judge their own cause. The case of R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet [2] shows this standard where the House of Lords annulled a decision to extradite General Pinochet, the former dictator of Chile, to Spain to face charges on human rights abuse. The decision was annulled because Lord Hoffman sat in judgement and had ties to the human rights organisation Amnesty International, which was involved in the case. The case was reheard without Lord Hoffman.

It is reasonable to assume that where a legal system is based around any version of justice subscribed to, that natural justice and the rule of law will be at the heart of this system. The rule of law is outlined by Dicey [3] that ‘no person is punishable except for a distinct breach of the law established in the courts’ and that everyone is ‘subject to the ordinary law of the realm’.

One of the ways in which a system of justice is maintained in England is the method of judicial review. This is where an independent judiciary examine the powers of the state or organisation of the state and how they use them. This is where it could be argued that the true test of a system of justice is where it deals with threats (real or perceived) to national security.

In the case of R v Secretary of State for Home Affairs, ex parte Hosenball [4] the decision to deport an American journalist was upheld despite none of the rules on natural justice being followed in the case. This was on grounds of supposed national security issues. Another case demonstrating the mysterious issue of national security is Council of Civil Service Unions v Minister for the Civil Service [5] . This is where on grounds of national security employees of the Government Communications Headquarters were not allowed to join trade unions. It is therefore suggestible that state reliance on the requirements of national security inhibits the scope of judicial review, and therefore the maintenance of justice.

However, the Human Rights Act 1998 allows judges to review even primary legislation and even strike it down as incompatible with the European Convention on Human Rights. This shows a dedication in recent years to the upkeep of justice. The case of A and Others v Secretary of State for the Home Department [6] shows this in action. This is where the House of Lords took the view that the detention of foreign nationals without trial under section 21 of the Anti-terrorism, Crime and Security Act 2001 was not justified, even though the government ran the argument that national security was at stake. Similarly, control orders introduced by the Prevention of Terrorism Act 2005 have been struck down, in Secretary of State for the Home Department v JJ and Others [7] . In fact with relation to the terror legislation it would appear the government, whist seeking to avoid a state of suicidal lethargy, will sacrifice most civil liberties and rely on the courts to hold them to the doctrine of proportionality. It appears that judges are ready to do this as well.

The measure of justice in a system is also measured by the access that is granted to it. Without access to justice, it is effectively impossible to subscribe to the most basic principle of natural justice (the right to be heard). In England it seems to have become unjust in recent years. Government funded legal aid was an idea introduced by the Legal Aid Act 1949, with the aim of providing access to justice for all, rather than just those that could afford council. The system was however too good and some eighty percent of the population could apply, meaning that it was too expensive to keep. Unfortunately the need for an inexpensive cap on the qualification for legal aid meant that there has become a ‘middle income trap’, where someone is too rich to qualify but too poor to fund legal action themselves.

The Access to Justice Act 1999 exhausted legal aid further by introducing a limit on the amount that could be spent on legal aid every year, and when this runs out no aid is available. The ‘middle income trap’ remains and also certain types of actions, such as personal injury claims, are excluded. There is a paper by the Bar Council’s Policy Advisory Board led by Guy Mansfield QC that sets out the merits of a contingent legal aid fund [8] . This would be available to anyone and is based on the concept of a self funding scheme whereby successful litigation pays contingent subsidies back into the fund. This idea is even more useful in the face of the economic crisis where large cuts will undoubtedly affect the amount of legal aid available under the Access to Justice Act 1999.

It would seem as a result of this that formal justice is denied because certain sections of society do not get impartial treatment. Substantively it can be also argued that with the presence of a reasonable alternative the law is unjust because the current law has the effect of denying access to even those that may need it.

The civil justice system in England before the Civil Procedure Rules 1999 was often referred to as unfair and was widely criticised. Elliot and Quinn comment that:

“While conflicting interests may mean that it is impossible to achieve a civil justice system that satisfies everyone, there were serious concerns that the civil justice system before April 1999 was giving satisfaction to only a small minority of users” [9]

Lord Woolf reported in 1996 that a number of aims should be put in place for the civil justice system should aspire to. These were to efficiently, justly and fairly deal with cases and litigants. The Civil Procedure Rules introduced these aims and represent a significant reform. They give rules on pre-action protocols that save time and money via negotiation and also make judges pro-actively manage cases. The rules also state an overriding objective that the courts should always justly decide cases over and above any other concerns.

Despite minor procedural issues, such as the fast track system making timetabling more difficult for lawyers, the new civil system shows significant development in the justice of the civil courts.

The criminal justice system has been under a lot of scrutiny also ever since the 1980s and 1990s. This is because of the revelations that followed cases such as the Guildford Four, the Maguires and the Birmingham Six had brought to light many failings on the part of the criminal justice system. For example the police, in their eagerness to get convictions for these murders, were prepared to compromise some of the fundamental principles of formal justice. In particular the confessions that were obtained, the treatment of the defendants whilst in custody and the quality and reliability of the forensic evidence were put to the question and found wanting.

When Judith Ward, in the case R v Ward (Judith Theresa) [10] , was cleared in 1992 after serving eighteen years for the bombing of a coach on the M62 motorway, which killed twelve people, the Court of Appeal said that a grave miscarriage of justice had occurred:

“In failing to disclose evidence… the West Yorkshire police, the scientists who gave evidence at the trial, and some of those member of the staff of the DPP and counsel who advised them… failed to carry out their basic duty to seek to ensure a trial which is fair to both prosecution… and the accused” [11]

It could be argued that with her quashed conviction and compensation that justice has eventually been served as a result of the system being just. However this is a relatively weak argument in the face of the fact that eighteen years had been served prior to this, and the fact that it should not have happened in the first place. Also these cases sparked sets of measures to make sure that procedural justice is met more effectively, for example the Police and Criminal Evidence Act 1984 that outlines the behaviour expected of police officers and the rights and civil liberties of suspects. These things show that the system is adapting to provide better justice for all.