Death Investigation and Procedural Justice: The Quest for Balance

Prof. Ian Freckelton1

1University Of Melbourne, Melbourne, Australia

For more than a decade analyses of coronial processes inspired by both therapeutic jurisprudence and restorative justice have identified the potential for maximizing the therapeutic and public health benefits of the investigative functions of coroners’ courts and minimizing their counter-therapeutic potential. The focus of both scholarly literature and law reform proposals has been upon addressing deficits in respect of the role of families in coronial investigations and especially coroners’ inquests. This has been a constructive contribution and has improved sensitivity to the risk that family members will be disenfranchised and alienated at a highly vulnerable time after they have been bereaved. However, the potential for adverse effects on parties other than family members has been inadequately recognized in the literature. This paper seeks to redress that imbalance and argues that it is appropriate also to have regard to such potential in endeavouring to provide an approach to the work of coroners that is influenced by the sensibilities of therapeutic jurisprudence and seeks to reduce so far as possible counter-therapeutic outcomes for all parties, prioritising accurate and robust fact-finding and formulation of constructive recommendations to avoid avoidable deaths. It calls for further empirical research on the impact of coroners’ investigations on all affected parties, and argues in favour of extension of improved funding to enable eligibility for the services of counselling services attached to coroners’ courts.

Biography:

Ian Freckelton is a Queen’s Counsel in full-time practice throughout Australia. He is also a Professorial Fellow of Law and Psychiatry at the University of Melbourne where he is co-director of the Health Law Masters Prpgram, and is an Adjunct Professor of Law and Forensic Medicine at Monash University. He is an elected Fellow of the Australian Academy of Law, the Academy of Social Sciences Australia and the Australian and New  Zealand College of Legal Medicine. He is a member of the Coronial Council of Victoria and the Mental Health Tribunal of Victoria. He edits the Journal of Law and Medicine and Psychiatry, Psychology and Law. He is the author of of over 40 books and more than 500 peer reviewed articles.

Procedural justice in marginal places: calling out the elephant in the room.

A/P Penelope Weller1

1 GSBL,RMIT University, City Campus, Melbourne, Victoria, 3000. penelope.weller@rmit.edu.au

This paper considers the application of procedural justice theory and practice in legal interactions concerning individuals who a persons lack legal capacity. To date the procedural justice research has considered formal court or mediation settings where is assumed individuals have mental and legal capacity. This paper explores the potential of procedural justice practice to provide a framework for the inclusion of people with disabilities in a range of less formal legal settings where legal capacity is uncertain. It does so by considering the situation of people with acute mental illness facing compulsory mental health treatment, on one hand, and the situation of people with acquired brain injury in the criminal justice system on the other. In acute mental health settings, the usual principles of informed consent to health care are displaced by the statutory principles providing for compulsory mental health treatment. When compulsory treatment is provided to those who lack mental capacity, they are often excluded from the decision making process. In contrast, when people with acquired brain injury interact with the criminal justice system their disability may be overlooked. This means they may be included in legal interactions that they are unable to fully understand. Both situations result in high levels of dissatisfaction. Drawing on the results of two recent empirical studies, the paper argues that procedural justice practice provides a robust framework for the inclusion of marginalised people in legal interactions. The paper argues that a procedural justice approach to legal decision-making is compatible with a human rights approach mandated by the Convention on the Rights of Persons with Disabilities.  Drawing a link between procedural justice theory and human rights offers a new perspective for the non-adversarial justice discipline.

Biography:

Associate Professor Penelope Weller is Director of the Juris Doctor Program in the Graduate School of Business and Law at RMIT University in Melbourne Australia. She is an expert on the Convention on the Rights of Persons with Disabilities and mental health law reform, with research interests in innovative justice.  She serves a community member of the Mental Health Tribunal in Victoria.

The Hidden or Role of Frontline Court Staff: Ushers, Interpreters, NGO Workers and Others

Anton Shelupanov (MA Oxon)

Justice Studio, London

Abstract:

Research has demonstrated that courts, police and other law enforcement institutions secure better compliance by defendants when they apply procedural justice principles to practice. Consequently, with better compliance with court decisions, come better outcomes in terms of crime reduction and public safety, as well for the life chances of defendants. Courts are a unique setting, where traditionally, the onus to practice procedural justice has been placed on the sentencers. However, many aspects or procedural justice, from the defendant’s arrival at court, through to the completion of forms and understanding all of the proceedings rather than only judicial decisions, fall outside the remit of practice of sentencers. Instead, the author argues, ushers, court interpreters and NGO workers offering services in court have a crucial role to play in ensuring that a defendant’s entire journey through court is founded in procedural justice principles. In the case of court interpreters this is of particular importance as they often act as the main filter between the defendant and all other parts of the court system.

Partly arising from the author’s experience in facilitating the creation of the UK’s first large scale Community Advice desk at one of Europe’s busiest criminal courts, and partly based on conversations with frontline court based staff, this research seeks to shine a light on the hidden role of these staff in creating a system grounded in procedural justice principles, and the degree to which they are able to practice such principles in their day to day work. Also of interest is their ability to innovate, and the systemic constraints and enablers of their ability to do so.

Themes: Procedural justice, justice for court officers & administrators

Biography:

Anton is a specialist in justice reform and social innovation. Since 1999 he has worked with over twenty jurisdictions around the world and has led major penal reform programmes in China, Russia and a number of other Central Asian and Eastern & Central European countries. His expertise spans court reform, public and prison health, social investment, police & security sector reform, prison management, human rights, service design and community development. He has developed international instruments for the UNODC and the World Health Organisation, launched the Centre for Justice Innovation together with colleagues from the New York Center for Court Innovation, and worked with international organisations like the Ford Foundation, Open Society Institute (Soros) and the Calouste Gulbenkian Foundation. A graduate of Oxford University, Anton has written two books, numerous articles and lectured at King’s College London and the universities of Birmingham and Bradford.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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