Procedural Fairness

Procedural fairness, also referred to as procedural justice, encompasses attitudinal, behavioural, and systemic/structural approaches by judicial officers, court officials and court offices, that have shown significant evidence of enhancing public trust and confidence in the administration of justice, as well as legitimizing legal authority, improving compliance with court orders and directions, and reducing recidivism. There has been a lot of international research establishing this, and in the Caribbean, at least one research project that confirms it.

Simply put, people’s responses to legal authorities, which include court systems and judicial officers, are directly linked to their experiences, assessments, and perceptions of the fairness of the processes by which these legal authorities both make decisions and, in the case of court systems and judicial officers, treat court users. Thus, people are more willing to accept court decisions and comply with court orders and directions if they regard and/or perceive them to be made fairly and if they are fairly treated in the process. This pragmatic reality places a responsibility on legal authorities, including judicial officers, as to the manner in which legal decision-making power is exercised, not only in relation to final decisions, but throughout the entire legal process. Indeed, it places an onus on legal authorities to ensure that the processes and systems and personnel that exist and the way in which these are operated and behave, are objectively fair and experienced as such. 

All these insights have been confirmed regionally, through research done in Trinidad and Tobago in 2018, in relation to court systems (see Peter Jamadar and Elron Elahie, Proceeding Fairly: Report on the Extent to which Elements of Procedural Fairness Exist in the Court Systems of the Judiciary of the Republic of Trinidad and Tobago (2018, Judiciary of the Republic of Trinidad and Tobago)). This research discovered and articulated nine core elements of procedural fairness, building on internationally established elements, that constitute court users’ experiences and perceptions of fairness. The nine elements are:

Voice: The ability to meaningfully participate in court proceedings throughout the entire process, by expressing concerns and opinions and by asking questions, and by having them valued and duly considered (‘heard’) before decisions are made.

Understanding: The need to have explained clearly, carefully, and in plain language, court protocols, procedures, directions given, and actions taken by decision makers and court personnel, ensuring that there is full understanding and comprehension.

Respectful Treatment: The treatment of all persons with dignity and respect, with full protection for the plenitude of their rights, ensuring that they experience their concerns and problems as being considered seriously and sincerely, and having due regard for the value of their time and commitments.

Neutrality: The independent, fair, and consistent application of procedural and substantive legal principles, administered by impartial and unbiased decision makers and judicial personnel, without discrimination.

Trustworthy Authorities: Decision makers, judicial personnel, and court systems that have earned legitimacy by demonstrating that they are competent and capable of duly fulfilling their functions, responsibilities and duties in an efficient, effective, timely, fair, and transparent manner; and by demonstrating to all court users, compassion, caring, and a willingness to sincerely attend to their justifiable needs and to assist them throughout the court process.

Accountability: The need for decision makers and judicial personnel to fulfil their duties, to reasonably justify and explain their actions and inaction, decisions, and judgments and to be held responsible and accountable for them, particularly in relation to decisions, delays, and poor service.

Availability of Amenities: The need for all court buildings to be equipped with the necessary infrastructure (both structural and systemic) to enable court users full and free access to court buildings, efficient information systems, relevant operational systems, and the enjoyment of functionally and culturally adequate amenities.

Access to Information: The timely availability of all relevant and accurate information, adequately and effectively communicated in clear, coherent language, through open, receptive, courteous, and easily accessible decision makers, judicial personnel and systems, particularly in relation to each stage of court proceedings.

Inclusivity: The need for court users to feel that they are, and experience themselves as, an important part of the entire court process, rather than outside of or peripheral to it; non-alienation, by being made to feel welcomed and included in court proceedings and to actively, easily, and effectively participate throughout the process.

Improving procedural fairness in court processes and decision making is eminently possible. The need for doing so is also unavoidable. It is an imperative. Court systems will operate more effectively and efficiently with procedural fairness protocols and provisions built in, operationalised, and monitored. 

Arising out of the research in Trinidad and Tobago, a procedural fairness manual was developed that was intended to function as a guide to the implementation of procedural fairness in court systems: P Jamadar, K J Braithwaite, T Dassrath, E Elahie, Procedural Fairness A Manual (2018, Judiciary of the Republic of Trinidad and Tobago).