H418/03, H418/04 - How far the law achieves justice

Rights need effective access

A right on paper has limited value if the person entitled to it cannot obtain advice, bring a claim or enforce the result. Access to justice concerns practical ability to use legal protection. Cost, delay, complexity and an imbalance in representation can affect it. These obstacles link procedural justice to distributive justice: how legal resources are shared influences whose rights are effective.

In R (UNISON) v Lord Chancellor [2017] UKSC 51, the Supreme Court examined fees introduced for employment tribunals. Those tribunals enforce important statutory employment rights. Evidence showed a substantial fall in claims, while fees could make modest claims economically irrational even for someone who could technically afford them. The Court held the fees order unlawful because it effectively prevented access to justice. It explained that access matters to the rule of law, not merely to the individual litigant.

The case demonstrates law correcting an obstacle created through legal powers. It also reveals a weakness: people were deterred while the unlawful system operated. A successful later challenge does not recover every opportunity lost in the meantime. Nor did the Court declare every court fee unlawful or guarantee unlimited public funding. Legitimate funding arrangements must still preserve legally required access.

Original hypothetical: a worker seeks £300 in unpaid wages but must risk a £400 non-refundable fee. If recovery is uncertain, declining to sue is rational. The employer's duty may exist while practical enforcement fails. A fee remission scheme could help, but only if it covers the person and is usable; its mere existence is not enough.

A welfare argument supports procedures that resolve genuine disputes without excessive public expense. A Rawlsian argument emphasises people least able to protect themselves. The strongest evaluation asks whether the actual system reconciles funding with effective access, rather than treating either free access or charging as automatically just.

Fair and reliable decisions

An impartial decision reached after hearing relevant evidence is more likely to be reliable and gives parties a reason to accept an unwelcome result. Procedural safeguards also express respect for the person whose liberty or rights are at stake. They are not merely obstacles to quick punishment.

Police and Criminal Evidence Act 1984 section 78 allows a court to refuse prosecution evidence where, considering all the circumstances including how it was obtained, admission would have such an adverse effect on the fairness of the proceedings that it ought not be admitted. This is a fairness-based discretion. It is not an automatic rule excluding everything obtained improperly, or permission to admit unfair evidence simply because it may be useful.

Excluding evidence can protect defendants and encourage lawful investigation. A counterargument is that reliable evidence may be lost and a guilty person may avoid conviction, frustrating victims and public protection. That does not prove the safeguard is unjust: convictions obtained through seriously unfair proceedings damage legitimacy, and a system cannot treat every suspected person as already guilty. The assessment must distinguish the evidence's reliability from the fairness of using it.

Appeals provide another corrective mechanism. Under Criminal Appeal Act 1968 section 2, the Court of Appeal allows a conviction appeal if it thinks the conviction unsafe; otherwise it dismisses it, subject to the Act. Allowing the appeal quashes the conviction, with a retrial possible under the relevant power. An appeal is not a general invitation to replace a lawful verdict with whichever result feels fair.

These rules support procedural and substantive justice, but they cannot guarantee error-free decisions. Witnesses may be mistaken, evidence may emerge late, and review has its own legal requirements. Correction matters, yet a later reversal cannot fully restore years wrongly spent in custody. Evaluate safeguards both by their ability to prevent error and their ability to respond to it.

Repairing loss and proving cause

Compensation can achieve corrective justice by placing the cost of a wrongful injury on the responsible person rather than leaving it with the victim. But negligence requires more than a sympathetic injury: the legal requirements, including causation, must be satisfied. A causal requirement protects defendants against paying for harm they did not cause.