Thursday, July 14, 2011

Substantive and procedural fairness

Procedure is the means by which the law is brought to life. It converts words to actions. The law recognises a right to a fair trial, and this is a substantive right. To convert fairness from a right to a reality, rules of procedural fairness have developed. These rules will be effective to the extent that they produce trials that are substantively fair.

We need to know what a fair trial is in substance, and by what procedure to get it. The scope of a court's inherent power to create procedures that have implications for trial fairness was considered in Al Rawi v The Security Service [2011] UKSC 34 (13 July 2011). Note the helpful summary provided in the link at the top of the judgment.

This case concerned an extension to the Public Interest Immunity procedures (as to which see R v Davis [2008] UKHL 36, noted here 19 June 2008) which is called the "closed material procedure". This would go beyond PII by allowing the judge to see - and to decide the case on - material not shown to a party, and by allowing judgments to be given that were similarly not disclosed. The Supreme Court held (I generalise here and so am a little inaccurate in the interests of brevity) by a majority that only the legislature could create procedures that departed from the fundamental principles of open justice and natural justice.

While the Court recognises the power of Parliament to make procedural laws that limit the open justice principle and the natural justice principle, does it concede that the courts would require proceedings to continue if those laws had the effect in a particular case of making the trial substantively unfair? Would there be a difference in this between criminal and civil cases?

(20 marks)