PROCEDURAL FAIRNESS: THE PRINCIPLES OF NATURAL JUSTICE

For justice to be achieved, there must be fairness in the processes used to resolve disputes.
The two essential features pare:
• the right to be heard
• the right to have a decision made by an unbiased decision-maker

Page 9-11 Pearson’s prelim legal studies

1) What is the synonym for procedural fairness?

Natural justice
2) What does the doctrine of natural justice include? Explain each of these.
highlighted
3) Define “defendant”.
Person being accused of something, and them defending themselves
4) Look at the cartoon. What does it depict?

Procedural fairness: the principles of natural justice

Procedural fairness is often referred to as ‘natural justice’. The overriding principle of
procedural fairness is the concept of fair treatment before the law. The doctrine of natural
justice includes:
. the right of a person to participate in legal proceedings in which they have an interest. For
example, if a person was charged with a crime but denied the right to attend the
trial, we would say this was unfair.
. the right of a person accused of wrongdoing (the defendant) to know the accusation
made against them. This is essential as it allows the defendant to prepare their
defence and gather their own evidence.
. the right of the defendant to have a hearing, during which they are able to present
evidence.
. the right to have a matter heard before a court that is free from bias. It is for this reason
that judges and juries are required to put aside their personal views about a matter
and use only the evidence presented to them to make a decision.
. the right to test the evidence presented in a case. This is often called ‘cross- examination’
and means that each side is able to question the witnesses who give evidence for the
opposing side, in a bid to cast doubt on the evidence of the witness.
. the right of the accused to not have previous criminal convictions or accusations to be
brought up during the trial. This ensures that only the evidence relating to the
current case is used to make a decision.
 Look at the Case Law re Pinochet (1999) UKHL
1) Where was the case heard? What is the Australian equivalent of this?
Was heard in the House of Lords, Supreme Court
2) Who were the people involved?
Augusto Pinochet, Lord Hoffman
3) What was the case about and what was the outcome?
A former military dictator of Chile who was living in Britain, was ordered to be
extradited to face numerous charges in relation to his rule, by Lord Hoffman.
However, due to the House of Lords agreeing to Hoffman’s close association with
Amnesty International, they generated at least a perception of bias and therefore a
new trial was ordered with a different Lord hearing the case.
4) How is it an example of natural justice?
The judge was someone who worked for Amnesty International. If Lord Hoffman was
professional, he would be impartial, however, there was at least a perception of bias
due to his correspondence with Amnesty International, and thus, a new trial was
ordered with a different Lord. This is an example of natural justice and there were no
bias results or consequences of the trial and it was all impartial.

CASE LAW re Pinochet [1999] UKHL 1

This case was heard in the House of Lords, the highest court in Britain. It revolved around the concept of
natural justice. In an earlier case, General Augusto Pinochet, the former military dictator of Chile who
was living in Britain, was ordered to be extradited (to be returned to another jurisdiction) to face
numerous charges relating to his rule.

Pinochet appealed this ruling to the House of Lords on the basis that the judge inthe case – Lord
Hoffman – had been a director of Amnesty International. This organisation had been involved in
previous cases against Pinochet that accused him of crimes against humanity.

The House of Lords agreed that Lord Hoffman’s close association with Amnesty International created at
least a perception of bias and therefore a new trial was ordered with a different Lord hearing the case.

Read Stalin’s Show Trials

1. Who was Joseph Stalin? Describe the period of history in which he ruled.
Joseph Stalin was one of the worlds worst tyrants who ruled from 1928 to 1953.
2. What was the purpose of the Show Trials and explain how they failed to provide
natural justice?
The purpose of the Show Trials was to create fear and discourage any dissent from
the people. They didn’t have procedural fairness as they were firstly charged with a
crime they didn’t commit, secondly, they were provided no legal representation and
finally, they were not allowed to present any evidence in their defence or challenge
the evidence given by the prosecution. Sometimes, they were not even told of what
crime their convicted for. All only role they were allowed to play was of pleading
guilty. This breaches procedural fairness as they did not have an equal opportunity
to present and defend their case.
Joseph Stalin ruled the Soviet Union (now the country of Russia) from 1928 until his death
in 1953. History’s record shows that Stalin was one of the world’s worst tyrants. In order
to maintain his immense power, he oversaw the murder of millions of his countrymen.
The entire country lived in constant fear of Stalin’s actions.

One of Stalin’s favoured methods of terror was the use of show trials. These were
designed to create a sense of justice while at the same time sending a powerful message
of fear to the Russian people. A typical show trial saw a high-profile Russian, such as a
general or political leader, charged with a crime that they had not committed. They would
then be tortured until they admitted to the crime, at which point they would be brought
before a court. The hapless victim would confess to the crime and a sentence (usually
death) would be issued. The accused would be marched to a courtyard off the courtroom
and shot. The whole process might take less than a week.

During these show trials the accused were given no legal representation; in some cases
they were not even informed of the actual charges brought against them. The accused
were not allowed to present any evidence in their defence and they were not permitted
to challenge the evidence given by the prosecution. The only role they could play in the
case was to plead guilty.
Often the show trials would be broadcast throughout Russia so that Stalin could justify his
actions by claiming there were plotters attempting to overthrow the government. These
broadcasts were also used to spread fear and discourage any dissent from the people.