Thursday, 6 September 2012

Normal Justice and Exceptional Justice

Thomas Kuhn, in "The Structure of Scientific Revolutions" made a distinction between "normal science", which may involve problem solving, and the paradigm shifts when science takes exceptional steps and moves from one conceptional framework to another.

I think that a lot of justice systems, as can be seen both in Jersey, and in the UK, follow a similar pattern.

For the most part, justice takes place outside of any controversial political framework. For example, looking at some of the judgments in the Royal Court:

AG-v-Green 17-Aug-2012
Inferior Number Sentencing - drugs - supply - possession - Class B.

AG-v-De Oliveira 24-Aug-2012
Inferior Number Sentencing - assault.

Dodds-v-TTS 30-Aug-2012
Appeal against decision of the respondent to suspend the public licence granted to the appellant.

AG-v-Umlauft 17-Aug-2012
Inferior Number Sentencing - grave and criminal assault.

AG-v-Cooper and G 6-Jul-2012
Inferior Number Sentencing - drugs - possession Class B - larceny - breaking and entering and larceny - motoring.

A v AG 23-May-2012
Application for leave to appeal against conviction by the Royal Court on 8th February, 2012.

AG-v-Nimmo 14-May-2012
Criminal - Application by the Attorney General to adduce evidence at the Newton Hearing

Volaw Trust-v-Comptroller of Taxes 6-Jul-2012
Appeal against notice issued by Comptroller to Volaw seeking information under tax agreement between Norway and Jersey and seeking variation in trial date.

Republic of Brazil v Durant 22-Aug-2012
Fraud - application for leave to appeal and adduce further evidence

Trilogy Management v YT and Others 22-Aug-2012
Trust - appeal against the judgment of the Royal Court dated 10 May 2012.

Cafe de Lecq-v-Rossboroughs 23-Aug-2012
Breach of contract - costs judgment.

AG-v-Rzeszowski 7-Aug-2012
Murder/Manslaughter - application to exclude certain evidence.

In the matter of W and J 25-May-2012
Child access - application relating to the level of contact in respect of the two children.

AG-v-Davies 30-Mar-2012
Inferior Number Sentencing - grave and criminal assault - violently resisting arrest - malicious damage - drunk and disorderly.

AG-v-Woodleigh House Ltd and Derek Donald Egre 31-Jul-2012
Inferior Number Sentencing - contravention of the Housing (Jersey) Law 1949.

AG-v-Benest 20-Jul-2012
Inferior Number Sentencing - indecent assault - motoring.

AG-v-Sofaru 29-Jun-2012
Inferior Number Sentencing - grave and criminal assault.

I've cited a large number of these - and all these details are in the public domain - to show that there are many court cases which no one had stood up and claimed that they indicate a corrupt judiciary. They may be considered small time cases, although one refers to an appeal against evidence being admitted in the case of Damian Rzeszowski - hardly insignificant - and one relates to a child issue - "child access - application relating to the level of contact in respect of the two children".

No one has made any criticism of these cases as illustrating injustice handed down by a corrupt judiciary. Yet there are claims that our justice system is wholly rotten, corrupt, cannot deliver justice. But a blanket critique, with no arguments, no details, (which some people say) that the judiciary is completely "corrupt" hardly counts. The devil is in the details, not the generalisations. On the contrary, I would say that for the most part, looking at these cases, that the legal system works pretty well. This is, to borrow from Thomas Kuhn, "normal justice".

But these are cases where the State is usually not involved, so there is no conflict of interest. It is those cases, which I would argue are the exception, rather than the rule, where injustice can arise. They don't occur that often - there are none in my list, which could easily have been longer, but when they do occur, we have "exceptional justice", and political considerations also enter into the system.

The State never likes to admit culbability if it can help it - but that's a besetting sin of governments everywhere. Inquiries relating to "exceptional justice" can be rigged by the terms of reference, which may well be the case with the forthcoming inquiry about historic child abuse, and was certainly the case with the Hotton report in the UK on the Iraq War.

"Yes Minister" illustrates only too well how inquiries can be manipulated for political ends. An inquiry such as the Levinson report is astounding, because we are simply not used to something that turns up real evidence, even before it has reported, on which action has been taken.

Notable examples would be case of  Blanche Pierre run by Jane and Alan Maguire, where it is clear that the States simply wanted to hide the failure of child protection.

Alan Maguire was said to have been suffering from liver cancer, and the case was eventually abandoned due to "insufficient evidence". Finally after a further year, a confidential report, by the Health and Social Services department, catalogued the extent of the abuse. It found Jane Maguire guilty of gross misconduct and recommended her dismissal. Nine years after the first complaints she finally left social services. The police have long believed that Alan Maguire died of a terminal illness. However Panorama tracked both he and his wife down to a small village in the South of France.(1)

Once one mistake is made - for instance the letter from Iris Le Feuvre which thanked the Maguires for  "110% commitment and hard work, the proof of which will live on in the children for whom you have shown much love and care", there was always a political risk involved.

Other examples in recent years would be the case of Simon Bellwood, the case of Roger Holland, the suspension of Graham Power (where an overhead conversation between Chief Minister Frank Walker and Chief Officer Bill Ogley indicated a political agenda), the spat reported between the Attorney General and the Deputy of Grouville over suspicious practices with developments in the Parish, the whole historical abuse saga, where the Bailiff made a political speech on liberation day on the subject, besides being Chief Justice, and thereby giving an insight into his feelings on the matter before any cases came to court.
These are "exceptional justice", and just like the UK, Jersey does not do this well. There need to be better oversight of how the judicial process is proceeding where there may be conflicts between the States and others. But it is a problem which the UK struggles with as well, which can often be seen in the pages of "Private Eye".

Culpability of the State often carries the suggestion of compensation, and most governments run a defensive strategy against that. Or they have compensation schemes, such as the Jersey one, which is extremely poor compared to other jurisdictions - and "up to £60,000" is like the salesman who says "prices from £10" - it doesn't tell you anything about how many things are more than £10, or in the case of compensation, how many people are far below that limit.

The Jersey scheme seems also deficient in how the kinds of abuse are codified, and peculiar in the scale in which it is given. For details of how badly it measures against Ireland, see here:

But that doesn't alter the fact that for the most part, Islanders are not living in a Stalinist police state, and "normal justice" works pretty well.



OtherExile said...

After 1933 in Germany the pre-existing legal system, with a civilian police force and a judicial system based on the Rule of Law, largely continued to function. Alongside this those that were considered by the regimes as the enemy, or who happened to get on the wrong side of a local Gauleiter, might found themselves, thrown out of their homes, beaten up or even murdered, while this oh so correct judicial system simply looked the other way. This is th real nature of judicial corruption - it only gradually becomes visible, and requires normal judgements of right and wrong to be suspensed ' in particular cases'

Very little to do with Thomas Kuhn, I think.

Nick Palmer said...

I think, in Jersey, the boundaries between normal and exceptional justice are set in somewhat different positions to those of larger jurisdictions. The graphic equaliser of ethical behaviour here is even less of a straight line.

The separation between local parish pump politics and high affairs of State is not much. Sometimes the same person or small hierarchy is responsible for administering and prosecuting both.

Of itself, this situation is not necessarily a bad one. If you have intelligent, widely educated people of high integrity with little to compromise them, then this system can work well - nay, may be the best political set up achievable.

However, it seems as if that ideal is somewhat tarnished in practice, particularly over the last few years and I think the root cause is vanity. The essential vanity of those in charge is that they believe, and frequently assert, that they supply what they believe to be "first class" whatever.

Anyone who listens to the States or the Parishes for any length of time will hear this assertion about some aspect of Jersey life and I think the powers that be believe their own assertions rather too much.

Once TPTB started believing this, one might expect only those who also fit in with this world view to be able to maintain position or make progress in that arena thus forming a self reinforcing system. If most of TPTB think they are pretty hot stuff, they render themselves almost beyond criticism. Any critics must, in TPTB's world view, be wrong, malicious or uninformed.

Should any genuine problems with their institutions, or the people that run them, arise perhaps it is vanity that enables them to hide, discount or cover up. I suspect none of them do it for "evil reasons" but rather they are so enamoured with their own self-perception of being "first class" that they feel justified in papering over any cracks in the edifice without apparently seeing that too many cracks means there might be something rotten under the surface of that edifice.

TonyTheProf said...

I'd agree with your analysis. It's very good.

Zoompad said...

When people in public office start seeing the people they are meant to serve and represent as mere numbers instead of fellow human beings it makes it far easier for them to paper over cracks to hide something rotton.