Friday, 6 November 2009

Natural Justice

The jury, passing on the prisoner’s life,
May in the sworn twelve have a thief or two
Guiltier than him they try. Measure for Measure (1604)
William Shakespeare (1564–1616)

Barry Sheerman placed emphasis in his objectives to provide a system that would result in ‘natural justice’ for teachers who become subject to an allegation of abuse. Nowhere was the term ‘natural justice’ defined nor its significance :

Natural justice or procedural fairness is a legal philosophy used in British law in the determination of just, or fair, processes in legal proceedings.

In common law legal systems the term natural justice refers to two specific legal principles :

  1. nemo iudex in causa sua : “nobody shall be a judge in his own cause”, invalidating any judgment where there is a bias or conflict of interest or duty; and
  2. audi alteram partem : “hear the other side”, giving at least a fair opportunity to present one’s case (which may, for example, require access to counsel).
With reference to principle 1, this is the source of the problem; there can be no impartiality and therefore no expectation of fairness. The school and LEA are ‘judges in their own cause’. There is clearly ‘bias’ and ‘conflict of interest’ that can not be eliminated.

Duty too; the school and LEA are obligated to the care and safety of children. They must always err on the side of the child and in turn the parents; there is no freedom to do otherwise - sadly, some allegations are well-founded.

Barry Shearman did realize and appreciate the benefits of external investigations - the police, one would like to believe, are the experts; certainly better trained and experienced than a head teacher who is permitted to play the role of Hercule Poirot for months or more !

The fact is that the school and LEA does need to examine the events of any allegation; understanding and reviewing the facts helps to minimize future risks. So it was a forlorn expectation that the investigative process should stop following the police closing the case.

The problem is that some schools and LEAs use this investigatory exercise purely as a ‘witch-hunt’. It is this phase that is unnecessarily protracted and extremely damaging.