10. Public interest immunity, closed material procedures, and disclosure

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Foreign Policy ◽  
Criminal Justice ◽  
National Security ◽  
Public Interest ◽  
Criminal Procedure ◽  
Civil Procedure ◽  
Criminal Proceedings ◽  
The Public ◽  
Civil Proceedings ◽  
Civil Cases

This chapter, which deals with public interest immunity (PII) and disclosure in criminal and civil cases, first explains exclusion of evidence on the grounds of the PII doctrine in relation to the public interest in non-disclosure of documents. It then considers disclosure in criminal proceedings under the Criminal Procedure and Investigations Act 1996 (as amended by the Criminal Justice Act 2003) and the Criminal Procedure Rules 2014 as well as disclosure in civil proceedings under the Civil Procedure Rules. The chapter also examines areas of public interest that are covered by possible PII claims, including national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies. It concludes with an outline of the Closed Material Procedures (CMPs).

scholarly journals Converging Criminal Justice Systems: Guilty Pleas and the Public Interest

1997 ◽  
Vol 31 (1-3) ◽  
pp. 169-182 ◽  
Author(s):  
Abraham S. Goldstein
Keyword(s):  
Criminal Justice ◽  
Public Interest ◽  
Criminal Procedure ◽  
Legal Systems ◽  
Prosecutorial Discretion ◽  
The Public ◽  
Formal Systems ◽  
Criminal Justice Systems ◽  
Justice Systems

It is becoming increasingly apparent to criminal justice scholars that single theory models of criminal procedure — whether termed inquisitorial or adversarial — are being stretched beyond their capacity by the phenomena they are designed to control. Virtually everywhere, formal systems of charge and adjudication cannot possibly be enforced in accordance with the premises underlying them. There are simply too many offenses, too many offenders and too few resources to deal with them all. One result has been a steady movement towards a convergence of legal systems — towards borrowing from others those institutions and practices that offer some hope of relief.In this transnational effort to cope with system overload, two issues have emerged as more than ordinarily significant: The first is the desirability of abandoning the principle of obligatory prosecution, so common in Continental Europe, and turning instead to the exercise of prosecutorial discretion. The second is the question whether the ban on guilty pleas and plea bargains should be lifted, as in adversarial systems.

scholarly journals To the admissibility of the civil law exemption of property from arrest, imposed in the criminal proceedings: domestic and foreign experience

2017 ◽  
Vol 1 (3) ◽  
pp. 190-200
Author(s):  
Natalia Kashtanova
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
Judicial Protection

The subject of paper deals with the legal nature of measures of criminal procedural compulsionin the form of seizure of property.Methodological basis of the article is based on general scientific dialectical methods of cognitionof objective reality of the legal processes and phenomena that allowed us to conduct anobjective assessment of the state of legislation and law enforcement practice in the proceduralaspects of the cancellation of the seizure of property in criminal proceedings of Russia.The results and scope of it’s application. It is submitted that the cancellation of the seizureof the property (or the individual limit) is allowed only on the grounds and in the mannerprescribed by the criminal procedure law of the Russian Federation. However, the studyfound serious contradictions in the application of the relevant law. In particular, cases inwhich the question of exemption of property from arrest (exclusion from the inventory),imposed in the criminal case was resolved in a civil procedure that, in the opinion of theauthor of the publication, is extremely unacceptable.On the stated issues topics analyzes opinions of scientists who say that the dispute aboutthe release of impounded property may be allowed in civil proceedings, including pendingresolution of the criminal case on the merits. The author strongly disagrees with this positionand supports those experts who argue that the filing of a claim for exemption of propertyfrom arrest (exclusion from the inventory) the reviewed judicial act of imposing of arrestwithout recognition per se invalid. In this regard, the author cites the legal position ofthe constitutional Court of the Russian Federation, from which clearly follows that of theright of everyone to judicial protection does not imply the possibility of choice of the citizenat its discretion, techniques and procedures of judicial protection, since the features of suchjudicial protection is defined in specific Federal laws.The author analyzes and appreciates Kazakhstan's experience of legal regulation of the permissibilityof filing a civil claim for exemption of property from seizure imposed in criminalproceedings. The author notes that the new civil procedural legislation of the Republic ofKazakhstan, which came into force from 01 January 2016, clearly captures that considerationin the civil proceedings are not subject to claims for exemption of property from seizureby the criminal prosecution body.Conclusions. Necessity of amendment to article 422 of the Civil Procedure Code of Russia:this article should not apply to cases of application of measures of criminal procedural compulsionin the form of seizure of property. Among other things, the author proposed additionsto part 9 of article 115 of the Criminal Procedure Code of Russia.

scholarly journals UDZIAŁ OSÓB NIEUPRAWNIONYCH W WYDANIU ORZECZENIA W POSTĘPOWANIU CYWILNYM - UWAGI NA TLE D.1,14,3 I D.41,3,44 PR.

2017 ◽  
Vol 6 (2) ◽  
pp. 97
Author(s):  
Bartosz Szolc-Nartowski
Keyword(s):  
Common Sense ◽  
Public Interest ◽  
Civil Procedure ◽  
The Other ◽  
Roman Law ◽  
Private Law ◽  
The Public ◽  
Civil Proceedings ◽  
Bona Fide ◽  
Polish Law

Participation of Unauthorised Persons in Issuance of Decisions in Civil Proceedings - Remarks on the Basis D. 1,14,3 and D. 41,3,44 pr.SummaryAccording to Polish civil procedure a sentence given by an unauthorized person is invalid. This was not always the case in ancien Roman law. Ulpianus declared that when a slave, who escaped from his master, became a praetor, his acts were valid. He took into consideration serious problems of those who had put their trust in the praetor’s office as well as the respect for humanitas. A basic common sense requires that what was well decided, should be considered valid. According to the author, Ulpianus realized that the rule of ius civile which determined the requirements for entering in a praetor’s duties had the character of a guarantee. If the purpose, for which this rule was established, was achieved, such acts should be accepted as valid.The question arises whether that approach could be applied to contemporary cases of iudex incompetens. Furthermore, whether it would be justifiable to extend this solution to other - not only procedural – but also material, guarantee rules?The answer is not easy. In D. 41,3,44 pr., a pater familias conducted the procedure of adrogation (adoption) improperly. Papinianus decided that, although pater familias made a justifiable mistake, all that the son enacted in the name of the father, was invalid. Nevertheless a different rule, as the jurist says in D. 41,3,44 pr., must be observed in the case of homo liber bona fide serviens - a person, who being unaware of his free man status, served as a slave. Actions taken by such a person were valid (the purchaser of a slave had to be protected), since transactions of that kind happened very often. More importantly, any other solution would be against the public interest. O n the other hand, it was very rare for a pater familias to wrongly adrogate, therefore the example of pater familias did not create a general rule.It seems quite difficult to indicate one principle which could be applied to all the guarantee rules. As far as the case of an unauthorized person giving sentence is concerned, the Roman private law shows that the regard for the public interest may sometimes justify solutions different from those preferred by Polish law.

Once the conviction has been set aside, there could be no public policy objection to an action for negligence against the legal advisers. There could be no conflict of judgments. On the other hand, in civil, including matrimonial, cases, it would seldom be possible to say that an action for negligence against a legal adviser or representative would bring the administration of justice into disrepute. Whether the original decision was right or wrong was usually a matter of concern only to the parties and had no wider implications. There was no public interest objection to a subsequent finding that, but for the negligence of his lawyers, the losing party would have won. But again there might be exceptions. The action for negligence might be an abuse of process on the ground that it was manifestly unfair to someone else. Take, for example, the case of a defendant who published a serious defamation which he attempted unsuccessfully to justify. Should he be able to sue his lawyers and claim that if the case had been conducted differently, the allegation would have been proved to be true? It seemed unfair to the plaintiff in the defamation action that any court should be allowed to come to such a conclusion in proceedings to which he was not a party. On the other hand, it was equally unfair that he should have to join as a party and rebut the allegation for a second time. A man's reputation was not only a matter between him and the other party. It represented his relationship with the world. So it might be that in such circumstances, an action for negligence would be an abuse of the of the court. Having regard to the power of the court to strike out actions which had no prospect ofsuccess, the doctrine unlikely in that context to be invoked very often. The first step in any application to strike out an action alleging negligence in the conduct of a previous action had to be to ask whether it had a real prospect of success. Lord Hope, Lord Hutton and Lord Hobhouse delivered judgments in which they agreed that the immunity from suit was no longer required in relation to civil proceedings but dissented to the extent of saying that the immunity was still required in the public interest in the administration of justice in relation to criminal proceedings. Comment This decision is of major and historic importance in the English legal system for several reasons. It can be seen as a bold attempt by the senior judiciary to drag the legal profession (often a metonymy for the whole legal system) into the 21st century world of accountability and fair business practice. In his judgment, Lord Steyn makes this dramatic observation:

2012 ◽  
pp. 506-508
Keyword(s):  
Legal System ◽  
Public Interest ◽  
The Other ◽  
Criminal Proceedings ◽  
The Public ◽  
Other Hand ◽  
Civil Proceedings ◽  
Administration Of Justice ◽  
Legal Adviser ◽  
To Come

3. Evidence obtained by illegal or unfair means

2018 ◽  
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Common Law ◽  
Civil Procedure ◽  
Public Confidence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Relevant Evidence ◽  
Civil Cases

This chapter discusses the circumstances in which relevant evidence can be excluded, as a matter of law or discretion, on the grounds that it was obtained illegally, improperly, or unfairly. The principles for exclusion of evidence are considered, and exclusion in both civil and criminal cases discussed. In respect of civil cases, discretionary exclusion under the civil procedure rules is discussed. In respect of criminal cases, discretionary exclusion at common law and under statute is discussed. The chapter also considers the circumstances in which criminal proceedings should be stayed as an abuse of the court’s process, where a trial would undermine public confidence in the criminal justice system and bring it into disrepute.

11. Evidence obtained by illegal or unfair means

2020 ◽  
pp. 320-348
Author(s):  
Adrian Keane ◽  
Paul McKeown
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Common Law ◽  
Civil Procedure ◽  
Public Confidence ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Relevant Evidence ◽  
Civil Cases

This chapter discusses the circumstances in which relevant evidence can be excluded, as a matter of law or discretion, on the grounds that it was obtained illegally, improperly, or unfairly. The principles for exclusion of evidence are considered, and exclusion in both civil and criminal cases discussed. In respect of civil cases, discretionary exclusion under the civil procedure rules is discussed. In respect of criminal cases, discretionary exclusion at common law and under statute is discussed. The chapter also considers the circumstances in which criminal proceedings should be stayed as an abuse of the court’s process, where a trial would undermine public confidence in the criminal justice system and bring it into disrepute.

10. Public interest immunity

2019 ◽  
pp. 192-204
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Foreign Policy ◽  
National Security ◽  
Public Interest ◽  
The Public ◽  
Public Bodies

This chapter first explains exclusion of evidence on the grounds of the PII doctrine in relation to the public interest in non-disclosure of documents. The chapter examines areas of public interest that are covered by possible PII claims. These include national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies.

Prospects for the Implementation of Special Conciliation Procedures in the Russian Criminal Process

2020 ◽  
Vol 9 ◽  
pp. 99-104
Author(s):  
E. V. Markovicheva ◽  
Keyword(s):  
Criminal Justice ◽  
Restorative Justice ◽  
Justice System ◽  
Criminal Procedure ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Traditional System ◽  
Common Features ◽  
Legal Method

In the 21st century, the concept of restorative justice has become widespread in criminal proceedings. The introduction of special compromise procedures into the criminal process allows for the restoration of the rights of the victim and reduces the level of repression in the criminal justice system. The traditional system of punishment is considered ineffective, not conducive to the purpose of compensating for harm caused by the crime. Restorative justice enables the accused to compensate for the harm caused by the crime and is oriented not towards their social isolation, but towards further positive socialization. The introduction of the ideas of restorative justice into the Russian criminal process requires the introduction of special conciliation procedures. The purpose of the article is to reveal promising directions for introducing special conciliation procedures into the Russian criminal process. The use of the formal legal method provided an analysis of the norms of criminal procedure legislation and the practice of its application. Comparative legal analysis revealed common features in the development of models of restorative justice in modern states. Conclusions. The introduction of conciliation procedures into the Russian criminal process is in line with the concept of its humanization and reduction of the level of criminal repression. The consolidation of the mediator»s procedural status and the mediation procedure in the criminal procedure legislation will make it possible to put into practice the elements of restorative justice.

APPEAL AND COMPLAINT IN CIVIL PROCEEDINGS AFTER THE CHANGES MADE BY THE ACT OF JULY 4, 2019. – SELECTED ISSUES

2020 ◽  
Vol 4 (XX) ◽  
pp. 181-201
Author(s):  
Mariusz Śladkowski
Keyword(s):  
Civil Procedure ◽  
Fair Trial ◽  
Legal Regulations ◽  
Civil Proceedings ◽  
Civil Cases ◽  
Civil Courts

One of the most important changes to the legal regulations in 2019 is the reform of the civil procedure introduced by the Act of July 4, 2019 amending the Act - Code of Civil Procedure and certain other acts. One of the most important goals of this reform was to improve the implementation of the civil right to a fair trial. According to the authors of the reform, the existing solutions in terms of the manner of conducting civil proceedings have worked well under conditions of a relatively low burden on civil courts. Nowadays, when the number of civil cases is gradually increasing, the legislator’s efforts are required that will realistically simplify and accelerate the proceedings in these cases. As part of the amendment in question, two far-reaching changes were made to two means of appeal, basic for civil proceedings, i.e. an appeal and a complaint

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