The Fairness of the Law

It is very important for a legal system to ensure that there is fairness across the board for those involved in the legal system, whether defendants, plaintiffs, or others. There are two ways in which the legal system ensures fairness. On one hand, there are the general presumptions and procedures to ensure a fair trial or court hearing. On the other, there is the system of law which is intended to ensure fairness in society; this is known as the Law of Equity. Justice must not only be done, it must be seen to be done, if the legal system is to retain the trust of society.

Unless victims, witnesses, and society at large are aware of the efforts made to bring to justice those responsible for crimes and wrongdoings, justice will remain an abstract concept. It is important that the law is publicly seen to be bringing about accountability through the criminal justice system. Some key elements of justice in the legal system are: the presumption of innocence; fair jury trials; unbiased judges; and the provision of protection for witnesses if required. The presumption of innocence is a right that is intended to apply across all countries and cultures in the world, as a basic human right.

Article 11 of the Universal Declaration of Human Rights (1948) states that: ‘1: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. ‘ The ‘guarantees necessary for defence’ are provided by the existence of public defenders and legal aid programs. A person also has the right to represent his or herself if they have so chosen. Impartial juries are the cornerstone of the criminal justice system.

As Michael Chesterman writes: ‘A basic principle of Australian criminal procedure is that the jury’s primary duty is to reach an impartial verdict on the basis only of the admissible and admitted evidence and the argument put before it in the courtroom. It is bound also to give full weight to the law’s presumption of innocence and its insistence that guilt be proved beyond reasonable doubt. ‘ In accordance with this, one of the main concerns of a trial is to follow the ‘rules of evidence’, which determine what can and cannot be submitted as evidence in a trial.

The notion that a person accused of a crime must be found guilty ‘beyond reasonable doubt’ is what is known as the ‘burden of proof’. This differs in civil cases, where the burden of proof is less strict, being based on the ‘balance of probability’ – that is, the court will find someone guilty if there is more than a 50 per cent chance that the accusation is true. The burden of proof is based on ‘Blackstone’s Intuition’ – in 1769, William Blackstone wrote ‘It is better that ten guilty persons escape, than that one innocent suffer.

In criminal trials there is also the requirement to prove actus reus (that a crime has actually occurred) as well as mens rea, a Latin phrase meaning ‘guilty mind’, or that the person knew they were committing a crime. This requirement means that, for instance, a person with a mental illness can be treated appropriately by the court system. Once, moreover, a person has been tried for an offence, that person cannot be tried again for the same offence if acquitted after a proper trial in the correct jurisdiction. Judges, like juries, are also required to be impartial.

Say a judge is set to hear a case regarding a company’s conduct in business, and the judge’s wife is a shareholder in that company. Considering this conflict of interest, the judge is expected to ‘recuse’ himself from hearing the trial. All of these rules and procedures are intended to provide a fairness of process in the legal system. The role of ‘equity’ in the law is to act as a sort of supplement to the strict application of the law. In cases where the law, if applied, would result in a correct but unfair outcome, the availability of equity courts can help to achieve justice.

Equity courts can provide remedies where a strict application of the common law would lead to an unfair or unconscionable result. Equity law has also developed remedies which supplement the main common law, such as court orders to stop or command conduct (an ‘injunction’) so as to prevent unjust or unfair situations from continuing. The role of equity remains particularly important in classifying, categorising and prioritising rights to property and wills. Many State Supreme Courts have an equity division operating alongside a common law division.