6 Pages
Unlock Document

Monash University
General Education Studies
Asher Flynn

Errors in Justice What are errors of justice  A failure in law.  Injustice.  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 delivered. o Theory of procedural justice:  Emphasis on decision maker neutrality.  Fair treatment.  Respect.  Voice 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 CJ proceedings? 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  Socio-economic status/inequality. 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.  Language/Cultural barriers. 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.  Psychological barriers.  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 related offences.  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:  SES.  Education/language.  Juveniles.  Ethnic minority.  Unemployed/underemployed. 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. o Injustice.  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 not commit. o Non-conviction/escape:  Errors of impunity.  Culpable offender remain at large.  Wrongful conviction: 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). o Prevalence:  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.
More Less

Related notes for ATS1282

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.