Errors in Justice
What are errors of justice
A failure in law.
Miscarriages of justice.
Two primary forms:
o Wrongful conviction.
o Error of impunity.
What is justice
Procedural justice and due process.
o Refers to fairness of procedures by which punishment and reward are
o Theory of procedural justice:
Emphasis on decision maker neutrality.
o Shape and cement compliance with law.
Rights within the legal process.
Concept of fairness in process and procedure.
Six characteristics of a just process:
o Consistency – equal for all parties.
o Bias suppression – matters independently adjudicated.
o Accuracy – reflects social values and punishes unacceptable behaviour.
o Correction ability – appeals process.
o Representativeness – representative of social values.
o Ethicality – based on moral rights and wrongs BUT do these apply to
Major features of adversarial justice
Each party (prosecution and defence) is responsible for the preparation and
presentation of each case.
o Both parties are equally able to present their case.
The judge acts as impartial adjudicator.
Search for truth by means of the thorough testing of evidence.
o Rules of evidence and procedure.
Innocent until proven guilty.
Factors impacting access to justice
o The administration of justice is not impartial, the rich and the poor do
not stand on an equality before the law, the traditional method of
providing justice has operated to close the doors of the courts to the
poor and has caused a gross denial of justice.
o High cost of legal services.
The better the lawyer, the higher the cost. Some people can’t afford lawyers to argue their case best.
o Law is a profession of words.
o Survey of Aboriginal Legal Aid staff (2002):
13% reported difficulties understanding clients very often.
50% had difficulties sometimes.
Also reported problems with the client understanding them:
65% - the clients’ shyness/discomfort.
51% - client had disability, which hindered communication.
40% - inability to communicate adequately in English.
77% - lack of comprehension of the legal process.
Low levels of literacy.
Lack of funding for services for legal representation.
Fear and distrust of the law and CJ agents.
Youth and the JS:
o Crime is committed disproportionately by young people.
o 15-19 more likely to be apprehended for criminal activity than others.
o More frequently apprehended for offences against property than
offences against the person.
o Tending to see some jurisdiction incapacitation ahead of rehabilitation.
o Factors influencing youth over-representation:
Tend to be less experiences at committing crime.
Prevalence of group offences.
Committing offences close to where they live.
Committing high reporting rates due to insurance requirements.
o Offences that are committed tend to be:
Attention-seeking, public and gregarious.
Episodic, unplanned and opportunistic.
More likely to get caught as a result.
o Indigenous youth:
More likely to be processed for property and public order
More likely to be proceeded against by way of arrest and bail.
More likely to be held in police custody.
Less likely to be issued with a court attendance notice than
non-aboriginal young people.
Over 20 times more likely to be detained in custody.
Inequalities in the CJS?
o Unequal treatment or over-representation:
o E.g. Indigenous population:
Over represented in custody and as victims.
Factors include systematic bias (law, police discretion), group
powerlessness, demands of conflicting culture. What is a miscarriage of justice
A gross error in the CJS:
o A failure in law.
Can include errors in arrest, charge/indictment, wrongful sentence, JS
interaction (incl. harassment).
Two primary forms:
o Wrongful conviction.
The conviction and punishment of a person for a crime they did
Errors of impunity.
Culpable offender remain at large.
o Instances where individuals have been convicted of crimes that they
did not commit/
o Represent a tragedy where human error and chance intersect to serve
an injustice failing to protect the freedoms of the innocent and also
society from the spectre of continued victimisation.
o Marks the important distinction between the genuinely blameless from
those who managed to wriggle through some procedural cracks in the
JC and cheapen the word impreaching on the moral authority of those
who claim innocence.
o Discretionary decision-making controls the law and court at every
level, leaving many opportunities for labelling to occur.
o E.g. John Button (1963).
Nature and causes make it very difficult for reliable data to be
obtained as to its prevalence.
No data or solid estimate in Australia:
Estimated that in the US between 0.5% and 5% of all
offenders in prison have been wrongfully convicted.
o Common circumstances:
Media and public pressure.
The unpopular defendant.
The adversarial process.