Evaluation of the right to a fair hearing
Students and teachers should note that sample answers to activities requiring student evaluation, such as this activity, will only be provided on this website for Chapter 1 questions. The intention is to provide students with an initial guide on how to approach these types of questions. It is then up to each student to complete evaluations contained within future chapters by manipulating the information contained in the relevant tables.
Question 1
Arguments in support of the right to a fair hearing include:
- courts are constituted to ensure that judges are expert and impartial – this ensures fairness in criminal proceedings for all people
- rules of evidence and procedure ensure that only evidence that is relevant is introduced in a criminal trial (for example, evidence of prior convictions is not admissible as evidence of the offence) – this contributes to fairness by ensuring that the accused is tried impartially.
- the accused may have a legal representative to argue their case, to ensure that their defence is presented in the best light – this ensures accessibility.
- court facilities support the accused to understand the case against them, by providing interpreting and disability support services – this ensures they are treated equally in criminal procedures
Arguments against the right to a fair hearing include:
- the high cost of legal representation may reduce an accused’s access to the legal system – if an accused does not qualify for legal aid, they may make decisions to confine the scope of their defence, or plead guilty in order to minimise costs
- a person with greater access to resources to pay for expert legal defence may have a better outcome than a person whose resources are constrained – this may lead to a disparity in the outcomes achieved by an accused with unlimited resources, compared with an accused who suffers socio-economic disadvantage, which undermines fairness and equality in the justice system
- the right to a fair hearing may not cover all the pre-trial procedures that an accused may face in the criminal justice system, from arrest and formal interview through to pre-trial procedures (for example, if a formal police interview is conducted unfairly, and the accused makes admissions, it is up to the accused to raise this as an issue at trial before the judge)
Question 2
The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that the right to a fair hearingdoes achieve the principles of justice. In this case, ‘evaluating’ the ability of the rights of the accused to achieve the principles of justice requires students to write about relevant strengths and weaknesses.
An evaluation may include the following points:
- Courts are constituted to ensure that judges are expert and impartial – this ensures fairness in criminal proceedings for all people. Furthermore, rules of evidence and procedure ensure that only evidence that is relevant is introduced in a criminal trial (for example, evidence of prior convictions is not admissible as evidence of the offence) – this contributes to fairness by ensuring that the accused is tried impartially.
However, a person with greater access to resources to pay for expert legal defence may have a better outcome than a person whose resources are constrained – this may lead to a disparity in the outcomes achieved by an accused with unlimited resources, compared with an accused who suffers socio-economic disadvantage, which undermines fairness and equality in the justice system.
- The accused may have a legal representative to argue their case, to ensure that their defence is presented in the best light – this ensures accessibility.
However, the high cost of legal representation may reduce an accused’s access to the legal system – if an accused does not qualify for legal aid, they may make decisions to confine the scope of their defence, or plead guilty in order to minimise costs.
- Court facilities support the accused to understand the case against them, by providing interpreting and disability support services – this ensures they are treated equally in criminal procedures.
However, the right to a fair hearing may not cover all the pre-trial procedures that an accused may face in the criminal justice system, from arrest and formal interview through to pre-trial procedures (for example, if a formal police interview is conducted unfairly, and the accused makes admissions, it is up to the accused to raise this as an issue at trial before the judge).