Helping jurors to understand: Misconceptions about delay in making a complaint

2021 ◽  
pp. 1037969X2110527
Author(s):  
Greg Byrne
Keyword(s):  
Fair Trial ◽  
Sexual Offence ◽  
Legislative Authority ◽  
Court Of Appeal ◽  
Do So

In a sexual offence case, jurors may have misconceptions that inappropriately affect their evaluation of a complainant’s evidence, for example, where the complainant has not complained at the first reasonable opportunity to do so. In Victoria, a judge may assist jurors to understand why a complainant may not have complained earlier by providing examples that are not drawn from the evidence. The Victorian Court of Appeal has recently questioned the legislative authority to do this. This article answers the Court’s question. It also considers the Court’s obligations to address this misconception, having regard to a complainant’s interests, to ensure a fair trial.

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.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Closed Trials and Secret Allegations

2016 ◽  
Vol 80 (4) ◽  
pp. 264-277 ◽  
Author(s):  
Daniel Kelman
Keyword(s):  
United Kingdom ◽  
National Interest ◽  
Fair Trial ◽  
Amount Of Information ◽  
House Of Lords ◽  
Lower Courts ◽  
Grand Chamber ◽  
Do So ◽  
Judicial Uncertainty

The tension between an individual’s right to a fair trial and a state’s prerogative to withhold information where it is in the national interest to do so is an issue which is especially relevant in preventative detention cases. In a string of cases since 2009, lower courts have interpreted the ‘gisting’ requirement imposed by the Grand Chamber in A v United Kingdom in response to this problem. This paper will consider the jurisprudence of the lower courts and will argue that the House of Lords’ judgment in AF No. 3 imposed requirements not only in relation to the amount of information that must be disclosed, but also in relation to what that information must consist of. It will note that two irreconcilable interpretations of A have developed, and argue that one of those approaches is incompatible with AF. Finally, it will discuss the interaction between these decisions and the statutory framework of the JSA, especially ss 6(5) and 7(2), and will consider the consequences of the judicial uncertainty in this area in relation to the return of TPIMs following the CTSA.

scholarly journals Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Michael Tsele
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
High Court ◽  
Governing Body ◽  
Foreign Law ◽  
The Supreme Court ◽  
Children's Interests ◽  
Court Of Appeal ◽  
Do So

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       

scholarly journals Queering Judgment

2017 ◽  
Vol 81 (5) ◽  
pp. 417-435 ◽  
Author(s):  
Alex Sharpe
Keyword(s):  
Gender Identity ◽  
Sexual Offence ◽  
Identity Fraud ◽  
Appeal Decision ◽  
English Law ◽  
And Gender ◽  
Court Of Appeal

This article is a response to a series of recent successful sexual offence prosecutions brought against transgender and other gender non-conforming people for gender identity fraud, and specifically to Leveson LJ’s judgment in the Court of Appeal decision of R v McNally. The decision is now the leading authority on sexual fraud generally, and gender identity fraud specifically, under English law. The response will take the form of an academic judgment, in this instance a dissenting or counter-judgment. The article will (i) present the facts of the case, (ii) provide some detail regarding the developing jurisprudence of the courts regarding sexual fraud, (iii) preface the counter-judgment with an explanation of why an exercise in academic judgement-writing is valuable, (iv) consider a queer approach to law, and detail some queer principles around which the counter-judgment will be organised and (v) present the counter-judgment, highlighting not only that McNally could have been decided differently, but that it ought to have been decided differently.

The space for strategic manoeuvring in adjudicating a freedom of speech case in the Netherlands

2017 ◽  
Vol 6 (2) ◽  
pp. 105-136 ◽  
Author(s):  
Henrike Jansen
Keyword(s):  
Freedom Of Speech ◽  
Case Law ◽  
District Court ◽  
Activity Type ◽  
Strategic Manoeuvring ◽  
Public Prosecution ◽  
Legal Rules ◽  
The Public ◽  
Court Of Appeal ◽  
Do So

Abstract In this article it is shown that the institutional preconditions of the activity type adjudicating a freedom of speech case leave much room for strategic manoeuvring with topical selection. To this end, an analysis is presented of the argumentation of the District Court in a case against the Dutch anti-immigration politician Geert Wilders. In order to show the space for manoeuvring, this argumentation, resulting in acquittal, is compared with the argumentation put forward by the Court of Appeal, which had ordered, after the Public Prosecution Service’s refusal to do so, that Wilders be prosecuted. The analysis shows that the District Court made ample use of the space for manoeuvring provided at the normative level concerning the interpretation of legal rules and case law, and the space provided at the factual level of classifying the contested facts in light of the previously identified meaning of a rule.

The extent to which a conviction can be regarded as ‘safe’, notwithstanding unfairness in the trial process, has had to be re-considered following the enactment of the Human Rights Act 1998, and the decision of the European Court of Human Rights in R v Condron [2000] Crim LR 679. The result is that the Court of Appeal should not disengage the issue of the fairness of the trial from the issue of whether or not the conviction is safe. In essence significant violations of the right to a fair trial provided by Art 6 of the European Convention on Human Rights are, of themselves, likely to render a conviction unsafe; see further R v Francom (2000) The Times, 24 October. In R v Togher and Others (2000) The Times, 21 November, Lord Woolf CJ went so far as observe that the approach of the Court of Appeal should be in step with that of the European Court of Human Rights with the result that the denial of a fair trial contrary to Art 6 would now inevitably lead to a finding that the resulting conviction was unsafe. Such a conclusion is a direct result of the obligation created by s3(1) of the Human Rights Act 1998 to the effect that domestic legislation, such as the Criminal Appeal Act 1995, should be read, so far as possible, in a manner that gave effect to Convention rights. R v Davis (2000) The Times, 25 July, whilst not departing from this broad proposition, emphasises that it may still be necessary to look at the circumstances of a particular case before concluding that a violation of Art 6 has rendered a conviction unsafe – it will be a matter of fact and degree. Even if an appeal against conviction succeeds the accused may still face a retrial. The Court of Appeal has the discretion to order a retrial under s 7 of the 1968 Act if it appears to the court that the interests of justice so require. If there has been a total mistrial the Court of Appeal can issue a writ of venire de novo – setting events back to where they were before the irregularity that rendered the trial a mistrial occurred. Some appeals against conviction will be partially successful in that the Court of Appeal can allow the appeal but substitute a conviction for a lesser-included offence – an obvious example being the quashing of a murder conviction and the substitution of a conviction for manslaughter. Appeal by the prosecution: against over lenient sentences

1996 ◽  
pp. 72-73
Keyword(s):  
Human Rights ◽  
De Novo ◽  
Fair Trial ◽  
Direct Result ◽  
European Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Times ◽  
The Right ◽  
Court Of Appeal

Appeal Dismissed: English Courts on Foreign Judgments

2018 ◽  
Vol 26 (3) ◽  
pp. 477-480
Author(s):  
Luke Tattersall
Keyword(s):  
International Law ◽  
Fair Trial ◽  
Case Note ◽  
Appellate Court ◽  
Private International Law ◽  
England And Wales ◽  
Court Of Appeal ◽  
Made In

Case note considering a recent Court of Appeal authority regarding a claim brought in England by an Ethiopian party who was displeased with the outcome of litigation in Ethiopia. The Appellants were alleging that they had not received a fair trial in Ethiopia. The Court of Appeal have firmly stated that the English courts will not act as a supranational appellate court to decisions made in other jurisdictions. The case reaffirms the principle of comity within private international law and helps delineate the boundaries regarding cases brought in England and Wales which have no connection with the jurisdiction.

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