ELEMENTS OF AN EFFECTIVE LEGAL SYSTEM

The table below explains each of the three elements and includes examples illustrating how each of the three elements is achieved. (Peter Farrar)

Element / Explanation of element / Example of how the element in achieved
Entitlement to a fair and unbiased hearing / According to the principles of natural justice every individual is entitled to a fair hearing, an equal opportunity to present their side of a story, and to be treated equally. / Achieved through a range of processes, procedures and institutions such as:
Ø  Police investigation – rights of individuals (e.g. right to silence) are balance with police powers
Ø  Presumption of innocence in criminal cases
Ø  Rules of evidence are followed by both parties; any evidence that might unfairly influence the court is inadmissible (BUT some evidence that could be useful in establishing the truth could be disallowed.)
Ø  Rules of procedure are strictly followed to ensure that both parties are treated equally in the case
Ø  Impartial and unbiased judge
Ø  Impartial and unbiased jury – achieved through some people being ineligible, disqualified or challenged if there is potential for bias (BUT some jurors may be influenced or have preconceived ideas/biases.)
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Effective access to the legal system / To operate effectively a legal system must provide ways in which disputes in the community can be resolved. This means the provision of avenues for dispute resolution so that the parties to a dispute can reach a resolution without having to resort to methods outside the law. / Achieved through the establishment and operation of a range of dispute resolution bodies, people and processes, such as:
Ø  Courts – expert, specialised bodies that hear cases
Ø  Legal representation – expert, objective lawyers to present a party’s best possible defence (case). However there are differences in the quality of legal representation
Ø  Dispute resolution bodies assist parties in some civil cases which are low cost, quick and effective methods of resolution
Ø  Legal Aid can provide legal advice and representation to people who qualify for assistance
Ø  Right of appeal for parties who can establish that they were dealt with unfairly during their trial
Timely resolution of disputes / “Justice delayed is justice denied”. To operate effectively the legal system must resolve disputes in a relatively timely manner i.e. in a reasonable time. If the law resolves disputes too slowly then disputes may fester in the community, detracting from social cohesion, and the community may lose confidence in the legal system. However, the law should not resolve a dispute so quickly as not to allow adequate time for a full consideration of both sides to a dispute. / Processes and procedures exist to minimize delays in bringing cases to court, such as:
Ø  Committal hearings – ensure that the accused does not have to wait a long time for a case that is unlikely to succeed. Also prevents flimsy cases from wasting the time of higher courts. (BUT could just delay some cases going to trial.)
Ø  Civil pre-trial proceedings are aimed at parties being fully informed of the case, which could encourage out of court settlements, and clarify issues, thereby reducing delays for that cases and the legal system in general (BUT the exchange of documents takes time.)
Ø  Directions hearings assist in resolving some issues before trial and setting time limits for future stages
Ø  Dispute resolution methods resolve civil cases quickly
Ø  Case is heard as one continuous trial.

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