There are many ways of positively defining justice. There are books of moral philosophy and of jurisprudence devoted to setting out what this word means.
But the most practical definition is the negative one: justice is the absence of injustice. It can be difficult to define justice in any abstract way, but it is usually plain what is an injustice and what can be done to put it right.
Justice should be, of course, the output of a justice system. But societies have developed means by which the justice system can yield to other considerations.
Some can be made legally immune from any judicial proceedings. Others can be pardoned or have their sentences commuted. There are various ways in which justice is made subject to what are perceived as wider public interests.
Perhaps the most problematic of these checks and balances to the course of justice is when the court itself decides not to enforce the law. One example is the remarkable and depressing decision of the High Court this week that it was not in the public interest to hold MI5 officers in contempt of court even when there have been lies to the court.
Parts of the judgment are strikingly unconvincing. The court said that fining MI5 would divert resources away from fighting terror, as if our security services are in want of resources. Water companies and other polluters are routinely fined when the money could be spent on avoiding pollution, as are charities for breaching data protection law. That the money for fines could be better employed does not stop those entities facing financial liability when they break the rules.
The judges also said that the court was not well placed to look at and test the relevant evidence. One would think courts are very well placed for such a forensic task. Indeed, that is their job. That a determination is difficult should not be a deterrent.
The court also said it was not clear who would be held in contempt as MI5 appears to have no corporate legal identity. But chief constables are often found liable for what happens in their forces and there would be no inherent problem with the director general of MI5 taking a similar nominal role here.
Other parts of the judgment have more substance. It is right that a court cannot simply adopt the findings of another fact-finder, as that is to delegate the court’s own judicial function. And the fact that the findings that MI5 misled the court are disputed does make it a complicated matter which could perhaps be best dealt with by other proceedings than contempt of court.
But it is unlikely there will be other proceedings. MI5 and the security forces are deft in how they avoid legal liability. Not only are there wide exemptions written into the law, they also can take the benefit of the “public interest” test which the Crown Prosecution Service (CPS) has to apply to any prosecution. The prosecutors’ code says that any prosecution must pass both an evidential test and a public interest test. And so even if the evidence is in favour of a prosecution, the public interest can mean such prosecutions do not take place.
When the court itself has said there is no public interest in proceedings against MI5 it is difficult to imagine the CPS seeing the public interest differently, even though it is supposed to be a distinct and separate decision.
The public interest is, of course, in having the security services subject to the law of the land. One of the greatest achievements of the European Convention on Human Rights was to ensure all terror and security legal powers were placed on an open statutory basis and subject to democratic and judicial oversight.
But such a form only is a benefit if it is matched by reality, and reading this week’s judgment showed how easy it is for the security forces to avoid any legal sanction even when there has been wrongdoing. By not finding a way to hold the security forces in contempt of court, the court risks being held in contempt.
