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11 Digital Evidence & Elec. Signature L. Rev. 1 (2014)

handle is hein.journals/digiteeslr11 and id is 1 raw text is: EDITORIAL The exercise of power Any exercise of power should to be undertaken in good faith; impartially and without bias; reasonably and for the purpose for which the powers are conferred. Failure to adhere to any of these principles can lead to significant unfairness to one of the parties to a complaint or the accused in criminal proceedings, and is contrary to the underlying moral purpose of the law. Procedural fairness It is essential that the procedure is fair. This is because it is necessary for the purpose of moral integrity and the legitimacy of the decision. The moral integrity of the process is significant, because if the process is impartial, then the justification for the infliction of damages and public censure is readily apparent. It is a practical requirement that the process of investigation and adjudication should exhibit moral integrity, because individuals have a right to feel secure under the protection of the state, and to go about their business without being harmed. Any unfairness in the process of determining the rights of the parties in civil proceedings or the guilt of the accused in criminal proceedings may result in unfair findings of fault. The standards of moral proprietary should be palpable. It is a contradiction to practice justice by means of unfairness. Reliability of the evidence The process of adjudication should include the obtaining of all relevant witnesses, and for the evidence to be provided in advance of a hearing. The evidence must be reliable to have any efficacy. This means that the evidence and the testimony of witnesses should be open to being tested for reliability by examination and cross examination. The investigation The adjudication of a complaint, including the fairness of any investigation, must be fair to both sides. The investigator should be independent, impartial, and be held accountable for their actions. In this respect, it is important for the investigator to obtain relevant evidence and provide for its factual accuracy. This is especially germane, because the finder of fact acts as a moral agent, and central to this is that the findings by an adjudicator must be justifiable, and meet the demands of rationality and ethics. In turn, in criminal proceedings, the accused should be informed clearly and lucidly of the complaint against them, and be given adequate time to prepare their defence. In addition, the accused has a right to defend themselves appropriately, either by representing themselves, or by way of a legal representative. The right to representation by a legal representative is an essential component of any adjudication process where the gravity of any allegation is serious, and the ramifications for the accused are momentous. The adjudicator must not only be independent, but seen to be independent and free of any taint of bias. The adjudicator must be impartial. Observations Historically, many judicial processes have been considered to be unfair in the light of our contemporary understanding of justice. There is usually a great deal of legend that surrounds commentaries by the ill informed, and there can be a level of ignorance and partiality of historians when writing about events on which they have a personal view. On 30 January 1649, Charles I was beheaded on the scaffolding erected outside Banqueting House in Whitehall, London. Historians and politicians that have royalist sympathies have relentlessly criticised those that were responsible for his trial and This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License I11

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