How (In)Consistent is the Court of Justice in the Application of the Market Access Test?”

Invited panel speaker at a Jean Monnet Chair funded research workshop organised by the Europa Institute, School of Law, University of Edinburgh (9 December 2011), http://www.pol.ed.ac.uk/research_themes/index/jean_monnet_centre_of_excellence/principles_of_market_access_workshop

Considering Just-World Thinking in Counter-Terrorism Cases: Miscarriages of Justice in Northern Ireland

Recent literature has drawn a parallel between the discriminatory application of counterterrorism legislation to the Irish population in the United Kingdom during the Northern Ireland conflict and the targeting of Muslims after September 2001. Less attention has been paid to lessons that can be drawn from judicial decision making in terrorism-related cases stemming from the Northern Ireland conflict. This Article examines Northern Ireland Court of Appeal (“NICA”) jurisprudence on miscarriages of justice in cases regarding counterterrorism offenses. In particular, the Article focuses on cases referred after the 1998 peace agreements in Northern Ireland from the Criminal Cases Review Commission (“CCRC”), a relatively new entity that investigates potential wrongful convictions in England, Wales, and Northern Ireland. Although the NICA’s human rights jurisprudence has developed significantly in recent years, the study of CCRC-referred cases finds that judges have retained confidence in the integrity of the conflict-era counterterrorism system even while acknowledging abuses and procedural irregularities that occurred. This study partially contradicts contentions that judicial deference to the executive recedes in a post-conflict or post-emergency period. Despite a high rate of quashed convictions, the NICA’s decisions suggest that it seeks to limit a large number of referrals and demonstrate a judicial predisposition to defend the justness of the past system’s laws and procedure. This perspective is consistent with what social psychologists have studied as “just-world thinking,” in which objective observers, although motivated by a concern with justice, believe—as a result of cognitive bias—that individuals “got what they deserved.” The Article considers other potential interpretations of the jurisprudence and contends that conservative decision making is particularly dangerous in the politicized realm of counterterrorism and in light of the criminalization of members of suspect communities.

Using Comparative Reasoning in Human Rights Adjudication:The Court of Justice of the European Union and the European Court of Human Rights Compared

This article examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

Reframing Public Inquiries as 'Procedural Justice' for Victims of Institutional Child Abuse: Towards a Hybrid Model of Justice

As the number of high profile cases of institutional child abuse mounts internationally, and the demands of victims for justice are heard, state responses have ranged from prosecution, apology, and compensation schemes, to truth commissions or public inquiries. Drawing on the examples of Australia and Northern Ireland as two jurisdictions with a recent and ongoing history of statutory inquiries into institutional child abuse, the article utilises the restorative justice paradigm to critically evaluate the strengths and limitations of the inquiry framework in providing ‘justice’ for victims. It critically explores the normative and pragmatic implications of a hybrid model as a more effective route to procedural justice and suggests that an appropriately designed restorative pathway may augment the legitimacy and utility of the public inquiry model for victims chiefly via improving offender accountability and ‘voice’ for victims. The article concludes by offering some thoughts on the broader implications for other jurisdictions in responding to large-scale historical abuses and seeking to come to terms with the legacy of institutional child abuse.

The New Architecture of EU Equality Law after CHEZ: Did the Court of Justice reconceptualise direct and indirect discrimination?

The Court of Justice’s decision of the 16 July 2015, in Case C-83/14 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, is a critically important case for two main reasons. First, it represents a further step along the path of addressing ethnic discrimination against Roma communities in Europe, particularly in Bulgaria, where the case arises. Second, it provides interpretations (sometimes controversial interpretations) of core concepts in the EU antidiscrimination Directives that will be drawn on in the application of equality law well beyond Bulgaria, and well beyond the pressing problem of ethnic discrimination against Roma. This article focuses particularly on the second issue, the potentially broader implications of the case. In particular, it will ask whether the Court of Justice’s approach in CHEZ is subtly redrawing the boundaries of EU equality law in general, in particular by expanding the concept of direct discrimination, or whether the result and the approach adopted is sui generis, one depending on the particular context of the case and the fact that it involves allegations of discrimination against Roma, and therefore of limited general application.

Procedural Justice in International Criminal Courts: Assessing Civil Parties’ Perceptions of Justice at the Extraordinary Chambers in the Courts of Cambodia

Procedural justice advocates argue that fair procedures in decision making processes can increase participant satisfaction with legal institutions. Little critical work has been done however to explore the power of such claims in the context of mass violence and international criminal justice. This article critically examines some of the key claims of procedural justice by exploring the perceptions of justice held by victims participating as Civil Parties in the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC has created one of the most inclusive and extensive victim participation regimes within international criminal law. It therefore provides a unique case study to examine some of claims of ‘victim-centred’ transitional justice through a procedural justice lens. It finds that while procedural justice influenced civil parties’ overall perceptions of the Court, outcomes remained of primary importance. It concludes by analysing the possible reasons for this prioritisation.

The Equalization of Effective Communicative Freedom: Democratic Justice in the Constitutional State and Beyond

Jurgen Habermas takes the realization of rights through the democratic self-organization of legal communities to be the normative core of emancipatory politics. In this article I explore the implications of this claim in relation to the requirements of justice. I argue that Habermas's discourse theory of democratic legitimacy presupposes a substantive principle of justice that demands the equalization of effective communicative freedom for all structurally constituted social groups in any constitutional state. This involves the elimination of a range of structural injustices rooted in the complex interrelationships between political, economic and cultural orders. In the final section I sketch briefly the implications of this analysis in the context of ongoing globalization processes. It is suggested that the most effective way to establish a just system of global governance is to equalize effective communicative freedom among nation-states.

‘Transforming justice’: challenges for restorative justice in an era of punishment-based corrections

Scholars of restorative justice have long debated its theoretical relationship with formal criminal justice. This analysis critically examines the range of sociostructural conditions in contemporary society that have halted the spread of restorative policies in practice and prevented them from realizing their transformative potential as an alternative system of justice. These factors are attributed largely to a punitive penal culture that is characterized by policy-making based on penal populism, the governance of risk and a managerialist criminal justice agenda; and the widespread co-optation of restorative programs by the state. This broad argument is explored in the context of two particular case studies – recent developments in youth justice and in sexual offending respectively in England and Wales and elsewhere. This examination ultimately highlights challenges for restorative justice in the current risk-driven penal climate and advocates a need to re-evaluate its relationship with formal state justice.