A Review of the Criminal Courts of England and Wales by The Right Honourable Lord Justice Auld

2012 ◽  
pp. 175-225 ◽  
Keyword(s):  
Criminal Courts ◽  
England And Wales ◽  
The Right

scholarly journals THE EVIDENCE OF ANONYMOUS WITNESSES IN CRIMINAL COURTS: NOW AND INTO THE FUTURE

2012 ◽  
Vol 21 (1) ◽  
pp. 67-92
Author(s):  
Alan George Ward
Keyword(s):  
Fair Trial ◽  
First Century ◽  
Criminal Courts ◽  
England And Wales ◽  
House Of Lords ◽  
The Government ◽  
The Right ◽  
Law Of Evidence ◽  
The Impact

Anonymous witness evidence, the use of which had quietly expanded in the early part of the twenty-first century in criminal courts in England and Wales, was significantly curtailed by the House of Lords in the case of R v Davis. Little over a month later the government had enacted legislation to minimise the impact of their Lordships’ ruling, yet the long-term future of this area of the criminal law of evidence remains undetermined. This article seeks to assess what impact the Criminal Evidence (Witness Anonymity) Act 2008 has had on the right to a fair trial in England and Wales and, subsequently, to weigh up the options for long-term reform in this area of the law. It will be submitted that the stated policy aim of the government, the protection of witnesses, can be achieved for the long-term without impeding or undermining the absolute right of the defendant to a fair trial.

Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries

1991 ◽  
Vol 9 (2) ◽  
pp. 221-267 ◽  
Author(s):  
J. M. Beattie
Keyword(s):  
Eighteenth Century ◽  
Professional Training ◽  
Common Law ◽  
Criminal Trial ◽  
Criminal Courts ◽  
Defense Counsel ◽  
Trial Procedure ◽  
Eighteenth And Nineteenth Centuries ◽  
The Right

My subject is the story of the entry of lawyers into the English criminal courts and their impact on trial procedure. Until the eighteenth century lawyers played little part in the trial of felonies in England—in the trial, that is, of those accused of the most serious offenses, including murder, rape, arson, robbery, and virtually all forms of theft. Indeed, the defendants in such cases were prohibited at common law from engaging lawyers to act for them in court. In the case of less-serious crimes—misdemeanors—defendants were allowed counsel; and those accused of high treason, the most serious offense of all, were granted the right to make their defense by counsel in 1696. But not in felony. Accused felons might seek a lawyer's advice on points of law, but if they wanted to question the prosecution evidence or to put forward a defense, they had to do that on their own behalf. The victim of a felony (who most often acted as the prosecutor in a system that depended fundamentally on private prosecution) was free to hire a lawyer to manage the presentation of his or her case. But in fact few did so. The judges were generally the only participants in felony trials with professional training. They dominated the courtroom and orchestrated the brief confrontation between the victim and the accused that was at the heart of the trial.

scholarly journals Direct harms and social consequences: An analysis of the impact of maternal imprisonment on dependent children in England and Wales

2018 ◽  
Vol 19 (5) ◽  
pp. 519-536 ◽  
Author(s):  
Shona Minson
Keyword(s):  
Social Processes ◽  
Social Consequences ◽  
Criminal Courts ◽  
Dependent Children ◽  
England And Wales ◽  
Child Relationship ◽  
Research With Children ◽  
The Family ◽  
Mother And Child ◽  
The Impact

This article draws upon research with children whose mothers were imprisoned in England and Wales, to investigate the impacts of maternal imprisonment on dependent children. The research directly engaged with children, in accordance with Article 12 of the UNCRC 1989, and is set within an examination of the differentiated treatment in the family and criminal courts of England and Wales of children facing state initiated separation from a parent. The article explores children’s ‘confounding grief’ and contends that this grief originates from social processes, experienced as a consequence of maternal imprisonment. ‘Secondary prisonization’ is characterized by changes in home and caregiver and the regulation of the mother and child relationship. ‘Secondary stigmatization’ occurs when children are stigmatized by virtue of their relationship with their mother. These harms to children call into question the state’s fulfilment of its duty to protect children under Article 2 of the UNCRC 1989.

Law, Presence to Absence

2021 ◽  
pp. 72-88
Author(s):  
Kate Leader
Keyword(s):  
Fair Trial ◽  
Criminal Trial ◽  
Performance Theory ◽  
Criminal Trials ◽  
England And Wales ◽  
Technological Advances ◽  
New Challenges ◽  
Being There ◽  
And Performance ◽  
The Right

The live presence of a defendant at trial is a long-standing feature of adversarial criminal trial. So much of what constitutes the adversarial method of adjudication is dependent on qualities that arise from this presence: confrontation and demeanor assessment, among other factors, play important roles in how truth is constructed. As such, performative matters—how a defendant enacts and inhabits her role, how she is positioned or silenced-- have long been of concern to legal scholars. These performative concerns are also centrally implicated in defendant rights, such as the right to a fair trial. But today we face new challenges that call into question fundamental beliefs around trials, defendant presence, and fairness. First, technological advances have led to defendants appearing remotely in hearings from the prison in which they are held. Second, the trial itself is arguably vanishing in most adversarial jurisdictions. Third, the use of trials in absentia means that criminal trials may take place in a defendant’s absence; in England and Wales for less serious offenses this can be done without inquiring why a defendant isn’t there. This chapter therefore seeks to understand the performative implications of these challenges by shifting the conversation from presence to absence. What difference does it make if a defendant is no longer there? Does being there facilitate greater fairness, despite the obvious issues of constraint and silencing? Drawing on sociolegal, political, and performance theory the chapter considers the implications of absence in the criminal trial, asking what happens when the defendant disappears.

Legal aspects of fitness for work

2013 ◽  
pp. 21-41
Author(s):  
Gillian S. Howard
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Legal Aspects ◽  
Employment Law ◽  
England And Wales ◽  
Law System ◽  
Lower Courts ◽  
The Common ◽  
The Uk ◽  
The Right

The English legal system is based on the common law. The common law system in England and Wales developed from the decisions of judges whose rulings over the centuries have created precedents for other courts to follow and these decisions were based on the ‘custom and practice of the Realm’. The system of binding precedent means that any decision of the Supreme Court—the new name for the former House of Lords (the highest court in the UK)—will bind all the lower courts, unless the lower courts are able to distinguish the facts of the current case and argue that the previous binding decision cannot apply, because of differences in the facts of the two cases. However, since the UK joined the European Union (EU), the decisions of the European Court of Justice (ECJ) now supersede any decisions of the domestic courts and require the English national courts to follow its decisions. (Scotland has a system based on Dutch Roman law, and some procedural differences although no fundamental differences in relation to employment law.) The Human Rights Act 1998 became law in England and Wales in 2000 (and in Scotland in 1998) in order to incorporate the provisions of the European Convention on Human Rights into UK law. The two most important Articles applicable to employment law are Article 8(1), the right to respect for privacy, family life, and correspondence, and Article 6, the right to a fair trial.

scholarly journals ‘Too High’, ‘Too Low’, or ‘Just Fair Enough’?

2019 ◽  
Vol 17 (2) ◽  
pp. 351-368
Author(s):  
Joanna Nicholson
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
International Criminal ◽  
Fair Trial ◽  
International Human Rights Law ◽  
Criminal Courts ◽  
International Human Rights ◽  
International Human ◽  
The Right ◽  
Human Rights Standards

Abstract That an accused receives a fair trial is essential to the legitimacy of international criminal courts and tribunals. However, how best to interpret the right to a fair trial in order to maximize the legitimacy of international criminal courts and tribunals’ decision-making? Some argue that international criminal courts and tribunals should aspire to the highest standards of fairness and should aim to set an example for domestic courts in this regard. Others argue that the unique context within which international criminal courts and tribunals operate allows them, at times, to interpret the right to a fair trial in a way which falls below minimum international human rights standards. This article examines both of these positions and finds both to be problematic. Rather, the article argues that international criminal courts and tribunals should aim for a middle path, the ‘fair enough’ standard, when interpreting the right to a fair trial. In situations where a different standard than that found within international human rights law is applied, international criminal courts and tribunals should expend greater effort in being open and clear as to why this is so, and should take care in communicating this to their audience, including victims and the accused. By doing so, the legitimacy of their decision-making will be enhanced.

Part III The Right to Justice, B Distribution of Jurisdiction between National, Foreign, International, and Internationalized Courts, Principle 20 Jurisdiction of International and Internationalized Criminal Tribunals

2018 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
Justice System ◽  
War Crimes ◽  
Theoretical Framework ◽  
Historical Background ◽  
Criminal Courts ◽  
National Courts ◽  
Legal Obligations ◽  
Final Sentence ◽  
The Right

Principle 20 is concerned with the jurisdiction of international and internationalized criminal tribunals regarding the prosecution of war crimes and other atrocities. The word ‘impunity’, defined at the beginning of the United Nations Updated Set of Principles, implies punishment or some similar sanction. It inexorably directs us towards judicial activity of criminal courts or the lack of it. The first sentence of Principle 20 is addressed to the national justice system, while the second sentence focuses on the international and internationalized criminal tribunals and their relationship to national courts. The final sentence of Principle 20 requires States to ‘fully satisfy their legal obligations’ with respect to international and internationalized criminal tribunals. This chapter first provides a contextual and historical background on Principle 20 before discussing its theoretical framework and how it has been observed in practice.

Dementia, Sexuality, and the Law: The Case for Advance Decisions on Intimacy

2020 ◽  
Author(s):  
Oluwatoyin Sorinmade ◽  
Alex Ruck Keene ◽  
Carmelle Peisah
Keyword(s):  
Sexual Activity ◽  
Unmet Needs ◽  
England And Wales ◽  
Capacity To Consent ◽  
Level Of Functioning ◽  
People With Dementia ◽  
The World ◽  
The Law ◽  
Advance Decisions ◽  
The Right

Abstract Some individuals develop dementia and the invariable consequence of dementia is a decline in cognition and level of functioning. Despite the effects of this illness, people with dementia still seek intimacy and companionship as part of their expression of basic human instincts and have the right to equal enjoyment of relationships and privacy for such. At the same time, they have the right to be safeguarded against abuse. The law in England and Wales, in common with the majority, if not all, jurisdictions around the world is clear on the requirement for contemporaneous consent to sexual activity, thereby creating unmet needs for people with dementia who no longer have the capacity to consent to intimacy/sexuality. This creates an impetus to find ways to empower individuals with dementia to enjoy intimacy in a safe and lawful way and enable them to live well despite dementia. This article proposes an instrument known as the Advance Decision on Intimacy, in pursuit of the concept of precedent autonomy, to empower individuals to make decisions about how they would wish to express their sexuality at a material time in future when they would have lost the capacity to consent to such acts. While the article is framed by reference to English law, the principles are of wider relevance.

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