About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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
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
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.
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


What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most