5. Character evidence

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Character Evidence ◽  
The Common ◽  
The Law ◽  
The Difference ◽  
Definition Of

This chapter, which focuses on the admissibility and evidential worth of character evidence, explains the definition of bad character under the Criminal Justice Act 2003. It examines how bad character evidence of the defendant may be admitted through one of the ‘gateways’ under the Act. It reviews the evidential worth of the character evidence if admitted and explains the difference between propensity and credibility. The law on the admissibility of the bad character of non-defendant witnesses is explained. The chapter concludes with the admissibility of good character evidence, governed by the common law.

5. Character evidence

2019 ◽  
pp. 79-106
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Character Evidence ◽  
The Common ◽  
The Law ◽  
The Difference ◽  
Definition Of

This chapter, which focuses on the admissibility and evidential worth of character evidence, explains the definition of bad character under the Criminal Justice Act 2003. It examines how bad character evidence of the defendant may be admitted through one of the ‘gateways’ under the Act. It reviews the evidential worth of the character evidence if admitted and explains the difference between propensity and credibility. The law on the admissibility of the bad character of non-defendant witnesses is explained. The chapter concludes with the admissibility of good character evidence, governed by the common law.

15. Character evidence II

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Sexual History ◽  
Youth Justice ◽  
Criminal Cases ◽  
Character Evidence ◽  
S 100 ◽  
The Common ◽  
Definition Of

This chapter discusses the evidence of bad character in criminal cases since the abolition of the common law rules relating to it. It covers the definition of bad character under ss. 98 and 112 of the Criminal Justice Act 2003; evidence of bad character of accused and the admissible gateways under s. 101; evidence of bad character of persons other than accused under s. 100; safeguards in relation to evidence of bad character under s. 103; and other statutory provisions dealing with bad character, in particular those dealing with sexual history questioning: s. 41 of the Youth Justice and Criminal Evidence Act 1999.

scholarly journals Lies, Collateral Lies and Insurance Claims: The Changing Landscape in Insurance Law

2018 ◽  
Vol 22 (2) ◽  
pp. 237-265
Author(s):  
Baris Soyer
Keyword(s):  
Common Law ◽  
Good Faith ◽  
Insurance Fraud ◽  
England And Wales ◽  
Insurance Law ◽  
Significant Challenge ◽  
The Common ◽  
Utmost Good Faith ◽  
The Law ◽  
Definition Of

Determining the scope of the fraudulent claims rule in insurance law has posed a significant challenge for the courts, particularly in the last two decades. In the shadow of the doctrine of utmost good faith, the law in this area has developed in an uncompromising fashion introducing draconian remedies against an assured who submits a fraudulent claim. The Supreme Court's most recent intervention has provided much needed guidance on the state of the law. This article, taking into account the fact that in other areas of law more proportionate remedies have gradually been introduced, discusses the boundaries of the fraudulent claims rule in insurance law as it applies in England and Wales and Scotland. Considering that the insurers might be tempted to introduce fraudulent claims clauses into their contracts to expand the common law definition of insurance fraud at the claims stage, this article also evaluates the wording of such clauses often used in practice and concludes that they lack the desired clarity.

14. Character evidence I

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Important Case ◽  
Criminal Cases ◽  
The Third ◽  
Evidential Value ◽  
Character Evidence ◽  
The Common ◽  
Civil Cases

This chapter is divided into three sections. The first section discusses the uses and development of character evidence from the common law through to the codification provided by the Criminal Justice Act 2003. The second section deals with evidence of character in civil cases, covering defamation cases; evidence of good character; and evidence of bad character. The third section focuses on evidence of good character in criminal cases, including the important case of Hunter [2015] 1 WLR 5367, and covers admissibility and methods of proof; kinds of evidence permitted; rebuttal of evidence of good character; and evidential value of evidence of good character.

3. Confessions and the defendant’s silence

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Public Order ◽  
Police Interrogation ◽  
The Common ◽  
Confession Evidence ◽  
Definition Of

This chapter focuses on confessions and on the defendant’s pre-trial silence. It explains how a defendant may be convicted on the evidence of a confession alone. It analyses the definition of a confession as specified in section 82(1) of the Police and Criminal Evidence Act 1984 (PACE), and how a confession proffered by the prosecution or by a co-defendant may be excluded by rule under PACE. The chapter also considers the preservation of the common law discretion to exclude confession evidence as well as the procedure for police interrogation of suspects under PACE. It concludes with an examination of how the jury at trial may draw an inference of guilt under sections 34, 36, and 37 of the Criminal Justice and Public Order Act 1994.

I. Attainder and Forfeiture, 1453 To 1509

1961 ◽  
Vol 4 (2) ◽  
pp. 119-151 ◽  
Author(s):  
J. R. Lander
Keyword(s):  
Married Woman ◽  
Maternal Inheritance ◽  
Common Law ◽  
Richard Ii ◽  
The Family ◽  
The Common ◽  
The Law ◽  
Late Fifteenth ◽  
Definition Of ◽  
First Time

Attainder was the most solemn penalty known to the common law. Attainder for treason was followed not only by the most savage and brutal corporal penalties and the forfeiture of all possessions, but in addition the corruption of blood passing to all direct descendants, in other words, by the legal death of the family. Before proceeding to an examination of the effects of parliamentary acts of attainder in the late fifteenth and early sixteenth centuries it is necessary first of all to define the scope of forfeiture for treason as it affected landed property. Bracton's classic definition of forfeiture had involved for the traitor ‘the loss of all his goods and the perpetual disinheritance of his heirs, so that they may be admitted neither to the paternal nor to the maternal inheritance’. Feudal opinion had always been very much opposed to the stringency of this conception and the Edwardian statute De Donis Conditionalibus, confirmed implicitly by the treason statute of 1352, had protected entailed estates from the scope of forfeiture, thus leaving only the fee simple and the widow's dower within the scope of the law. The wife's own inheritance or any jointure which had been made for her, because they ante-dated her husband's treason, as distinct from her right to dower which did not, were not liable to ultimate forfeiture—though a married woman could claim them only when ‘her time came according to the common law’, that is after the death of her husband when she ceased to be ‘femme couvert’. This equitable principle was confirmed by a statute of the Merciless Parliament of 1388 which, however, included for the first time the rule that lands held to the use of a traitor were also included in the scope of forfeiture. Thus, by 1388, of the lands held by a traitor (as distinct from the wife's inheritance and jointure), only those held in fee tail fell outside the scope of the treason laws. This loophole was closed by Richard II in 1398 when Parliament declared forfeit entailed estates as well as lands held in fee simple and to the use of a traitor, thus reverting with one exception to Bracton's view of forfeiture.

scholarly journals Does the Law Matter? An Examination of How a State’s Definition of Law Impacts Judicial Decision Making

2007 ◽  
Vol 28 ◽  
pp. 181-204
Author(s):  
Kyle Scott
Keyword(s):  
Decision Making ◽  
Due Process ◽  
Common Law ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Common ◽  
The Law ◽  
Definition Of ◽  
Due Process Rights ◽  
Past Half

Only a few studies in political science in the past half decade have taken the decline in common law seriously. This paper assesses whether or not those of us in the discipline should take it seriously. This project employs an original index for the common law in order to assess to what degree a state’s definition of the law impacts judicial decision making. The results show that states with a greater commitment to the common law show greater regard for due process rights. This study concludes that a state’s definition of the law matters.

scholarly journals EXTRA-CURIAL STATEMENTS BY A NON- TESTIFYING CO-ACCUSED, THE CANADIAN SUPREME COURT AND CHANGE IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
BC Naudé
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Common Law ◽  
Constitutional Court ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal

In S v Ndhlovu (2002 (2) SACR 325 (SCA)), the court opened the door to the admissibility of extra-curial statements made by a non-testifying accused against a co-accused as hearsay in terms of section 3 of the Law of Evidence Amendment Act (45 of 1988), if the interests of justice so require. However, first the Supreme Court of Appeal and later the Constitutional Court rejected such an approach.It is beyond the scope of this comment to repeat the arguments in favour of a discretionary approach for such statements, but it is submitted that there is scope for disagreement with the findings of both courts.Whitear points out that the provisions dealing with the admissibility of hearsay in the Law of Evidence Amendment Act (45 of 1988) were not declared unconstitutional by any court. The Supreme Court of Appeal found that section 3 of the Law of Evidence Amendment Act (45 of 1988) could not be used to admit the extra-curial statement of an accused against his co- accused because the interests of justice would never allow this. The Constitutional Court found that section 3 did not override the common-law rule prohibiting the admission of extra-curial statements against a co- accused since this would amount to unfair discrimination against an accused implicated by such admissions or confessions. Significantly, because it is stated in section 3 of the Law of Evidence Amendment Act (45 of 1988) that section 3 is subject to the “provisions of any other law”, the court decided that the common-law prohibition should prevail.Previously, however, the Supreme Court of Appeal has held that the “other laws” referred to in the Law of Evidence Amendment Act (45 of 1988) are alternative ways for admitting hearsay, and do not preclude the admissibility of hearsay in terms of section 3, even where there is another law that prohibits it. The court also referred with approval to S v Ndhlovu (supra) where it was explained that the very purpose of section 3 of the Law of Evidence Amendment Act (45 of 1988) was to “supersede the excessive rigidity and inflexibility – and occasional absurdity – of the common law position” by allowing for the admission of hearsay when the interests of justice so require. The admissibility of out-of-court statements by an accused against a co- accused is also dealt with differently in the United Kingdom (our relevant common law) today. Section 114(1)(d) of the Criminal Justice Act of 2003 makes it possible to admit the out-of-court statement of an accused against a co-accused as hearsay. However, the court in R v Y (supra par 57−62) did mention that this does not mean such statements should routinely be admitted without a consideration of the relevant factors mentioned in the Criminal Justice Act of 2003 and that, in the majority of cases, it will not be in the interests of justice to admit such statements, especially those made during police interviews.Even though, under South African law, it is not currently possible to present evidence of an extra-curial statement made by an accused that also implicates a co-accused, the recent judgment by the Canadian Supreme Court in R v Bradshaw (2017 SCC 35) provides insight into how this could possibly happen in future. It is thus useful to consider the Supreme Court’s decision.

Murphy on Evidence

2017 ◽  
Author(s):  
Richard Glover
Keyword(s):  
Teaching Method ◽  
Common Law ◽  
Standard Of Proof ◽  
Online Resource ◽  
Character Evidence ◽  
Unique Approach ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

Murphy on Evidence is firmly established as a leading text for use on undergraduate law courses and in preparation for professional examinations. Frequently consulted by judges and practitioners, and regularly cited in judgments, it has come to be regarded as a work of authority throughout the common law world. The book’s unique approach effectively bridges the gap between academic study of the law of evidence and its application in practice, combining detailed analysis of the law with a wealth of practical information about how it is used in the courtroom. As in previous editions, the author’s teaching method is centred around two realistic case studies—one criminal and one civil—presenting challenging evidence issues and questions for discussion at the end of each chapter. The case study material for this new edition has been further developed with new videos on the Online Resource Centre. Fully up to date with the latest developments in this fast-moving subject, the fifteenth edition of Murphy on Evidence is as indispensable as its predecessors. Topics include: the language of the law of evidence; the judicial function in the law of evidence; the burden and standard of proof; character evidence; and the rule against hearsay.

A Jurisprudential Miscellany

2019 ◽  
Author(s):  
Richard Susskind
Keyword(s):  
Dispute Resolution ◽  
Separation Of Powers ◽  
Common Law ◽  
Law System ◽  
The Common ◽  
Common Law System ◽  
The Law ◽  
The Difference ◽  
Philosophical Questions

Online courts give rise to a daunting array of jurisprudential con¬cerns. By ‘jurisprudential’, I mean theoretical and philosophical questions that arise in relation to the law. In this chapter, I pick off a few issues that I regard as especially pressing. These relate to the separation of powers and the independence of the judiciary, the difference between adversarial and inquisitorial approaches to dispute resolution, litigants without representation, and the sustainability of the common law system. These are all supertanker topics in their own right that I cannot resolve here in full. But I offer initial answers that I hope will be useful. I conclude by identifying a new job for jurisprudence.

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