Teacher resource 8–Procedural or Substantive Justice?

Introduction

This activity considers the types of justice as they apply to real cases.

The activity

Read the four cases below and decide whether they display issues of procedural or substantive justice.

Procedural or Substantive Justice?

Sir John Salmond identified two main elements of justice: procedural and substantive. Procedural justice means that the system of law is applied in a fair way. Substantive means that the individual rules are fair.

Case 1 Misra (2004)

In this casethe defendants were convicted of gross manslaughter and appealed to the Court of Appeal under article 7 of the ECtHR. They claimed that the law defining gross negligence (in the precedent case of Adomako (1994) ) was so uncertain as to amount to an infringement of their rights. The court held that the crime was ‘sufficiently certain’ – it did not have to be ‘absolutely certain’.

Case 2 Steel v United Kingdom (2005) – ‘McLibel’

In this case the defendants had issued leaflets critical of the nutritional content of food served at McDonald’s. They had to defend a claim of defamation brought by a team of McDonald’s lawyers without any access to legal aid. They represented themselves in court. The trial lasted 313 days. The defendants lost and were ordered to pay £60 000 in costs. They appealed to the ECtHR and were successful. The original trial had not been fair.

Case 3 Erol Incedal (2013)

In October 2013 the defendant was charged with preparing acts of terrorism. The Court of Appeal said that the trial had to be held behind closed doors

Journalists would have limited access to the trial but be bound by a gagging order preventing them from revealing many of the details of the case.

He was ultimately acquitted of most of the charges brought against him but to this day no details have been published to explain exactly what the trial was about.

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Nature of Law

Case 4 DPP v Majewski (1976)

In criminal cases involving the voluntary intoxication of the defendant this case sets an unusual precedent. Itallows the prosecution to use the defendant’s intoxication as ‘evidence of his mens rea’ sufficient for crimes of basic intent.

In other words,far from acting as a defence, the intoxication itself provides evidence of the guilty state of mind. It makes conviction much easier than if the defendant had not been intoxicated. The judges admitted that one of the key influences on this decision was the need to provide protection to the public against acts of drunken violence.

Decide whether the cases demonstrate issues relating to Procedural or Substantive Justice.

Answers for teachers

Case / Procedural or Substantive? / Explanation
Case 1 Misra (2004) / Substantive Justice / Case considered whether the law on gross negligence manslaughter was too uncertain as to be viable.
Case 2 Steel v United Kingdom (2005) – ‘McLibel’ / Procedural Justice / Case highlighted issues of fairness in a civil trial. Could a trial be fair where the two opposing sides were so unequal in terms of their resources?
ECtHR thought not.
Case 3 Erol Incedal (2013) / Procedural Justice / Can secret trials promote the aims of justice? Can they command public confidence?
Case 4 DPP v Majewski (1976) / Substantive Justice / Is the law on intoxication fair when it implies mens rea (the key to a criminal conviction) into a situation where the defendant was voluntarily drunk?

Extension activities

Research the cases in a little more detail.

Do the cases show that, on balance, justice is achieved?

What concerns do these cases raise?

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Nature of Law