Free Evaluation of Evidence: Does the icc need a Law of Evidence?

2021 ◽  
pp. 1-25
Author(s):  
Demetra Fr. Sorvatzioti
Keyword(s):  
Common Law ◽  
Burden Of Proof ◽  
Legal Framework ◽  
Criminal Court ◽  
Rigorous Evaluation ◽  
The Common ◽  
Thinking Process ◽  
Evidence And Proof ◽  
Evaluation Of Evidence ◽  
Law Of Evidence

Abstract The International Criminal Court appears to have adopted a sui generis legal framework which favours the oldest features of both the common law and the continental law. Historically, the common law and continental legal systems have conceived questions of evidence and proof differently. Therefore, modes of judicial thinking are also different. The continental approach in the Bemba case freely evaluated the evidence. The common law approach evaluated the evidence against the burden of proof. Even though free evaluation may assist the truth-seeking mission of the Court on admissibility, the decision at the end of the trial requires rigorous evaluation only against the burden of proof. The common law of evidence provides a judicial thinking process for evaluating evidence, but free evaluation does not. This paper addresses whether the icc should develop its own evidence law to provide a route of rigorous judicial thinking when weighing evidence at the deliberation phase.

The Appeals Decision in the ICC's Jean-Pierre Bemba Gombo Case on the Trial Chamber's ‘Decision on the Admission into Evidence of Materials Contained in the Prosecution's List of Evidence’

2012 ◽  
Vol 25 (2) ◽  
pp. 511-520
Author(s):  
CHRISTINE SCHUON
Keyword(s):  
Present Article ◽  
International Criminal Court ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
Legal Framework ◽  
Trial Chamber ◽  
Criminal Court ◽  
The Common

AbstractWhen, on 3 May 2011, the Appeals Chamber reversed the decision of Trial Chamber III in the Bemba case that had admitted material on a list of the prosecution into evidence, it addressed various central issues related to the admission of evidence under the legal framework of the International Criminal Court (inter alia, the orality principle). The present article critically analyses both decisions. In particular, it views the Trial Chamber's approach that envisages a multi-tiered process of admitting evidence, in light of the approaches of civil law and common law, and expresses concerns about uncertainties and protraction that may result. As the Court's legal framework does not determine that the processing of evidence follow either the civil-law or the common-law model, this is left for the trial chambers to decide in each case. In determining the preferable approach for each respective case, consideration of the procedural context is key. The Appeals Chamber decision allows for the required leeway of the trial chambers in regulating the processing of evidence, to adopt a way that fits the particular circumstances best.

scholarly journals Interpreting change through legal culture: the case of the Irish exclusionary rule

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Claire Hamilton
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Legal Culture ◽  
Macro Level ◽  
Judicial Decision ◽  
Exclusionary Rule ◽  
Judicial Decision Making ◽  
The Common ◽  
Law Of Evidence

Abstract The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

9. Mental conditions, intoxication and mistake

2021 ◽  
pp. 292-358
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
External Factor ◽  
Criminal Responsibility ◽  
Common Law ◽  
Burden Of Proof ◽  
Mental Condition ◽  
Individual Actor ◽  
The Common ◽  
The Individual ◽  
The Mind ◽  
The Relationship

This chapter considers the most commonly occurring ‘mental condition defences’, focusing on the pleas of insanity, intoxication and mistake. The common law historically made a distinction between justification and excuse, at least in relation to homicide. It is said that justification relates to the rightness of the act but to excuse as to the circumstances of the individual actor. The chapter examines the relationship between mental condition defences, insanity and unfitness to be tried, and explains the Law Commission’s most recent recommendations for reforming unfitness and other mental condition defences. It explores the test of insanity, disease of the mind (insanity) versus external factor (sane automatism), insane delusions and insanity, burden of proof, function of the jury, self-induced automatism, intoxication as a denial of criminal responsibility, voluntary and involuntary intoxication, dangerous or non-dangerous drugs in basic intent crime and intoxication induced with the intention of committing crime.

The Republic of Bees

2019 ◽  
pp. 77-126
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
The United States ◽  
State Constitutions ◽  
System A ◽  
The Social ◽  
American Law ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

This chapter details changes in American law from the eighteenth century onward, covering federal and state constitutions, judges, organization of courts, and civil procedure, and the law of evidence. The colonies declared themselves independent in 1776. However, American law continued to borrow from English law. English doctrines that were needed and appropriate were welcome. Between 1776, and the middle of the nineteenth century, there developed a true republic of bees; their flowers were the social and economic institutions that grew up in the United States. American conditions and ideas were the lawmakers that made American law a distinctive system: a separate language within the common-law family.

Dispute Resolution in the Islamic Finance Industry

2020 ◽  
pp. 804-833
Author(s):  
Camille Paldi
Keyword(s):  
Dispute Resolution ◽  
Common Law ◽  
Legal Framework ◽  
Islamic Finance ◽  
Finance Industry ◽  
The Common ◽  
Law Courts

A unique and independent legal framework is important to effectively adjudicate Islamic finance disputes, Sukuk bankruptcies, and Takaful disputes. Currently, these disputes are being adjudicated in common law courts or ineffective arbitration centres where often the Islamic finance transaction is inadvertently converted into a conventional transaction due to the common law nature of the dispute adjudication. In this chapter, a framework is proposed for Islamic finance dispute resolution in the form of the Dubai World Islamic Finance Arbitration Centre (DWIFAC), DWIFAC Jurisprudence Office, the Sukuk Bankruptcy Tribunal (SBT) and the Takaful Tribunal (TT).

Reforming the Law of Evidence in Nigeria

2000 ◽  
Vol 44 (1) ◽  
pp. 128-129
Keyword(s):  
Common Law ◽  
Law Reform ◽  
Technological Advances ◽  
The Common ◽  
The Law ◽  
Law Of Evidence

The Nigerian Law Reform Commission has recently published a Report on the Reform of the Evidence Act. This was in response to a government directive to “review and reform our Evidence Act to ensure that its application more effectively facilitates the dispensation of justice in our courts”. The Report notes that the Evidence Ordinance was based on Stephen's Digest of the Law of Evidence and on the common law of England as it was in 1943. Understandably, the Report recognizes that the law of evidence had become outdated, especially in view of technological advances. As it notes:

The Burden of Proof of Negligence in Running-down Cases

1938 ◽  
Vol 6 (3) ◽  
pp. 404-420
Author(s):  
E. Wyndham White
Keyword(s):  
Human Life ◽  
Common Law ◽  
Burden Of Proof ◽  
Road Accidents ◽  
Legal Proceedings ◽  
Road Users ◽  
The Common ◽  
To Come

In what are generally known as ‘running-down’ cases, that is to say, actions of negligence by pedestrians against motorists who have caused them injuries, the pedestrian, like every other plaintiff, has to discharge the burden of showing that the accident was due to the negligence of the motorist. This burden is made heavier by the fact that in most cases the pedestrian will have been disabled at the time of the accident from observing accurately the exact circumstances of the case and from enlisting the support of eye-witnesses. This latter disadvantage is a very real one if one takes into consideration the extraordinary reluctance of the average citizen to come forward and testify voluntarily in legal proceedings. The appalling wastage of human life and the suffering caused by road accidents in recent years is reflected in the anxiety of legislators to devise regulations for the protection and safeguarding of all road-users, and pedestrians in particular. The time is apt, therefore, to consider once again the desirability of altering in this class of cases the common law burden of proof of negligence.

• contrary to the requirement of ‘good faith’; • it causes a significant imbalance in the parties’ right and obligations; • to the detriment of the consumer (reg 5(11)). The issues of ‘significant imbalance’ and consumer ‘detriment’ seem largely matters of fact to be decided ‘case by case’, although, significantly, they seem suggestive of substantive unfairness compared to the largely, procedural unfairness perspective of ‘good faith’ discussed below. ‘Consumer’ is defined (reg 3) so as to include only ‘natural’ persons, thereby immediately ruling out the possibility of an R & B Customs Brokers type argument. The burden of proof (that is, to establish that a term ‘challenged’ is fair) lies on the seller/supplier (reg 5(4)). Three issues in the regulations seem of particular interest and uncertainty: (i) Core terms Regulation 6(2) reconfirms that the Regulations will not ‘bite’ on any term which either: (a) defines the main subject matter of the contract; or (b) relates to the adequacy of the contract price, so long as the term in question is in ‘plain intelligible’ language. The meaning of (a) is far from clear, as it seems to link back to the ‘Coote’ perspective on exemption clauses dismissed earlier (see fn 10) and, unless interpreted carefully could lead to a re-emergence of the argument that liability is not being excluded – merely not accepted in the first place. Of course, there must be something at the ‘core’ of a contract which cannot be challenged as ‘unfair’ (assuming the consumer entered into the contract freely in the first place) – but this should, surely, be construed narrowly. (ii) Good faith The remarks of Bingham LJ in Interfoto v Stiletto convey lucidly the broad sense of ‘good faith’, a concept which seems of the essence of the idea of procedural fairness. In many ways, good faith in the codes of countries like Germany seems to play a similar role to that of equity in relation to the common law – giving a ‘gloss’ of flexibility, humanity and justice to an otherwise rather schematic and technical system. The wording of reg 5(1) suggests that, even if a term shows some evidence of imbalance and detriment, it may be acceptable if the consumer received full and clear information about the implications of the clause and went into it with his/her eyes open.

1995 ◽  
pp. 497-497
Keyword(s):  
Common Law ◽  
Burden Of Proof ◽  
Good Faith ◽  
Technical System ◽  
Similar Role ◽  
Contract Price ◽  
The Core ◽  
Eyes Open ◽  
The Common ◽  
Clear Information

Access to Information and Evidence

2021 ◽  
pp. 136-173
Author(s):  
European Law
Keyword(s):  
European Union ◽  
Common Law ◽  
Civil Law ◽  
Relevant Information ◽  
Civil Procedure ◽  
Access To Justice ◽  
Access To Information ◽  
The European Union ◽  
The Common ◽  
Law Of Evidence

This chapter explores the provision and testing of evidence, which is central to civil procedure. Effective access to information and evidence are basic tools that ensure access to justice is a real rather than a merely theoretical right. There is a great deal of variety across European jurisdictions in respect of the approach taken to evidence-taking, and particularly to access to relevant information. This is a consequence of a variety of factors: the distinction between the civil law/common law; legal history; and procedural culture, and particularly the distribution of roles between the court, judiciary, and parties. This divergence in approaches to evidence may be the source of difficulties in cross-border litigation. The chapter identifies the common core of the law of evidence and the best, or more convenient, rules, including those related to the management of evidence, in use in European jurisdictions. To do so, it looks at the ALI/UNIDROIT Principles, the IBA Rules of Evidence and of legal instruments addressing the issue of evidence and access to information within the European Union.

Part I Foundations, Ch.2 Settlement

2018 ◽  
Author(s):  
Waugh John
Keyword(s):  
Indigenous Peoples ◽  
Common Law ◽  
Legal Framework ◽  
Land Ownership ◽  
High Court ◽  
Native Title ◽  
The Status ◽  
The Common ◽  
The Law ◽  
Indigenous Land

This chapter explores the law of Australian colonization and its relationship with the laws of Australia's Indigenous peoples. A line of legal continuity links the Australian Constitution to the imposition of British law made during the colonization of Australia and to the decisions of colonial courts that treated the Australian colonies as colonies of settlement. Those decisions, after some initial doubts, displaced the diverse and intricate laws of Australia’s Indigenous peoples, who have occupied the continent for tens of thousands of years. Only in relation to native title to land have later courts made a major reassessment of the status of Indigenous laws. There, the High Court has challenged the factual assumptions of earlier decisions and found accommodation for Indigenous land ownership within the common law, but left the legal framework of colonization otherwise intact.

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