scholarly journals The good character ‘backstop’: directions, defeasibility and frameworks of fairness

Legal Studies ◽  
2020 ◽  
Vol 40 (4) ◽  
pp. 675-693
Author(s):  
Richard Glover
Keyword(s):  
Criminal Trials ◽  
European Court ◽  
Jury Verdicts ◽  
House Of Lords ◽  
Character Evidence ◽  
The Law ◽  
Grand Chamber ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

AbstractThis paper examines the law on good character evidence in criminal trials through a discussion of the important but under-analysed case of Hunter, in which a five-judge Court of Appeal sought to clarify the law on good character directions to the jury. However, it is argued here that the judgment conflicts with the leading House of Lords decision in Aziz. The paper considers how the court misinterpreted the law and, in particular, the defeasible nature of the rule in Aziz and the impact of the Criminal Justice Act 2003. As a result, the circumstances in which a good character direction will be provided have diminished significantly. It is argued that this has important implications for the right to a fair trial, as good character directions act as a ‘backstop’ against miscarriages of justice. They also form a vital part of the ‘framework of fairness’ considered necessary, in lieu of reasoned jury verdicts, by the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium. Accordingly, it is contended that Aziz rather than Hunter should be followed so that, where there is evidence of good character, a direction is normally provided as a matter of law.

Review and appeal in administrative law—what is happening to the right of appeal in immigation law?

Legal Studies ◽  
1992 ◽  
Vol 12 (3) ◽  
pp. 364-376 ◽  
Author(s):  
Satvinder S. Juss
Keyword(s):  
Administrative Law ◽  
Considerable Importance ◽  
Natural Justice ◽  
Secretary Of State ◽  
House Of Lords ◽  
Home Department ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The purpose of this article is to examine the impact of two recent decisions on an immigrant’s right of appeal: Secretary of State for the Home Department v Sonia Mahli was decided in the Court of Appeal in December 1989 and R v Secretary of State for the Home Department, ex p Oladehinde was decided by the House of Lords in October 1990. Both cases raised other substantive issues of considerable importance for public lawyers: Oldehinde made the important point that the Secretary of State for the Home Department could delegate to senior immigration officers his powers to make deportation decisions; Malhi demonstrated how limited are the natural justice rights of overstayers.

Registration of Religious Entities and Religious Autonomy in Romania—Old Limitations and New Challenges

2013 ◽  
Vol 8 (1) ◽  
pp. 77-91 ◽  
Author(s):  
Romanița Elena Iordache
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Adoption Process ◽  
European Court ◽  
Tier System ◽  
New Challenges ◽  
The Law ◽  
Grand Chamber ◽  
The Right

Abstract In January 2013, the Romanian Law on Religious Freedom and the General Status of Religious Denominations reached five years of implementation—the right time to assess the quality of the law, its fairness and enforceability, the way it responded to foreseeable challenges but, most importantly, to unexpected ones. Though, at the time of its adoption, law-makers, practitioners and religious denominations alike considered the law a working compromise doomed to be amended soon, no amendments were made so far. In spite of criticisms concerning the over-restrictive three tier system of registration for religious entities, voiced during the adoption process and subsequently, the biggest challenge for the law came however from a different direction through a little known case decided by the European Court of Human Rights in January 2012 and referred to the Grand Chamber in July 2012. The domestic proceedings as well as the chamber judgment in Sindicatul Păstorul Cel Bun v. Romania highlight that the principle of religious autonomy and the relation between state and Church still need to be defined and enforced in the Romanian context.1

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

Freedom of Expression versus Privacy and the Right to Reputation

2017 ◽  
Author(s):  
Dirk Voorhoof
Keyword(s):  
Public Interest ◽  
Freedom Of Expression ◽  
Media Freedom ◽  
Investigative Journalism ◽  
The Public ◽  
The Right Of Privacy ◽  
The One ◽  
Grand Chamber ◽  
The Right ◽  
The Impact

The normative perspective of this chapter is how to guarantee respect for the fundamental values of freedom of expression and journalistic reporting on matters of public interest in cases where a (public) person claims protection of his or her right to reputation. First it explains why there is an increasing number and expanding potential of conflicts between the right to freedom of expression and media freedom (Article 10 ECHR), on the one hand, and the right of privacy and the right to protection of reputation (Article 8 ECHR), on the other. In addressing and analysing the European Court’s balancing approach in this domain, the characteristics and the impact of the seminal 2012 Grand Chamber judgment in Axel Springer AG v. Germany (no. 1) are identified and explained. On the basis of the analysis of the Court’s subsequent jurisprudence in defamation cases it evaluates whether this case law preserves the public watchdog-function of media, investigative journalism and NGOs reporting on matters of public interest, but tarnishing the reputation of public figures.

A Moving Target

2018 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Moving Target ◽  
International Court Of Justice ◽  
European Court ◽  
International Court ◽  
The Law ◽  
The Right ◽  
International Law Commission ◽  
Right Of Access ◽  
National Practice

The last 50 years have seen significant changes in the law of immunity. The European Court of Human Rights (ECtHR) has, over the past 15 years in particular, played an influential role in the law applicable to this ‘moving target’. This chapter examines three approaches of the ECtHR to the identification of general international law: (i) the ECtHR looking to the International Court of Justice; (ii) the ECtHR looking to national practice; and (iii) the ECtHR looking to the work of the International Law Commission and the provisional application of treaties. Although the ECtHR strives to locate itself within general international law, it necessarily approaches the immunities of States, officials, and international organizations through the lens of Article 6 ECHR and whether the immunity in question constitutes a legitimate and proportionate restriction on the right of access to court. This has, at times, taken the Court down a different path to other judicial bodies and we can identify the emergence of a ‘European approach’ to the role of immunity in employment disputes.

Access to Court v State Immunity

2003 ◽  
Vol 52 (2) ◽  
pp. 297-332 ◽  
Author(s):  
Emmanuel Voyiakis
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
European Convention ◽  
State Immunity ◽  
European Court ◽  
The Law ◽  
The Right

This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

Battles Over Symbols: The “Religion” of the Minority Versus the “Culture” of the Majority

2013 ◽  
Vol 28 (1) ◽  
pp. 67-104 ◽  
Author(s):  
Lori G. Beaman
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Religious Symbol ◽  
Anti Semitism ◽  
European Tradition ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Grand Chamber ◽  
The Right

Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.In March, 2011, after five years of working its way through various levels of national and European courts, the Grand Chamber of the European Court of Human Rights decided that a crucifix hanging at the front of a classroom did not violate the right to religious freedom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained that the presence of the crucifix violated her and her children's right to religious freedom and that its presence amounted to an enforced religious regime. The Grand Chamber, reversing the lower Chamber's decision, held that while admittedly a religious symbol, the crucifix also represented the cultural heritage of Italians.

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