Resuscitating criminal courts after Covid-19: Trialling a cure worse than the disease

2021 ◽  
pp. 136571272110643
Author(s):  
Mike McConville ◽  
Luke Marsh
Keyword(s):  
Decision Making ◽  
Presumption Of Innocence ◽  
Criminal Courts ◽  
Time Limits

This article, focusing on the issue of custody time limits litigated under Covid-19 conditions, sets out how reasoned decisions to refuse to extend custody for unconvicted defendants excited the disapproval of senior judges such that fundamental changes were made to evidence, procedure and proof as well as effecting permanent manipulation of the composition of the adjudicating panels authorised to deal with such cases. This additionally raises fundamental questions about the administration and governance of the courts, the independence of the judiciary in decision-making and the basic utility of the presumption of innocence in such cases.

scholarly journals The wrong vaccine: custody time limits and loss of liberty during Covid-19

Legal Studies ◽  
2021 ◽  
pp. 1-17
Author(s):  
Luke Marsh
Keyword(s):  
Time Limit ◽  
Presumption Of Innocence ◽  
Criminal Courts ◽  
Political Pressure ◽  
Time Limits ◽  
Perceived Need ◽  
Ability To Act ◽  
Unknown Length ◽  
Good Cause

Abstract In a context where the criminal courts have been drastically affected by coronavirus, this paper seeks to demonstrate that the presumption of innocence risks becoming a further casualty of Covid-19. It will argue that prolonged pre-trial detention of unconvicted defendants has been sanctioned by the senior judiciary under the Custody Time Limit (CTL) Regulations. Following a series of important CTL decisions, a universal position of the senior judiciary, one supportive of government, is emerging: despite the case backlog resulting in defendants facing trial delays of unknown length, the exceptional circumstances of the pandemic which the executive faces, amounts to ‘good cause’ to extend CTLs. It will be argued that the correct approach for courts to follow is that that they must hear evidence that justifies why no court rooms are available before using that to mandate extensions. It will be further contended that these far-reaching decisions came from the senior judiciary's perceived need to mop up the problem posed by widespread refusals to extend CTLs, raising questions as to their ability to act independently of political pressure.

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.

Predicting Offender-Patients' Reconvictions

1974 ◽  
Vol 125 (584) ◽  
pp. 60-64 ◽  
Author(s):  
Clive Payne ◽  
Sarah McCabe ◽  
Nigel Walker
Keyword(s):  
Decision Making ◽  
Research Unit ◽  
Prediction System ◽  
Criminal Courts ◽  
Oxford University ◽  
After Care ◽  
Human Decision ◽  
Special Hospitals ◽  
By Products

In 1963–4 the Oxford University Penal Research Unit managed to collect information about 90 per cent of the offender-patients who were admitted to N.H.S. and Special Hospitals under hospital orders made by criminal courts: this cohort has been described in Crime and Insanity, Vol. II, by Walker and McCabe (1973). One of the by-products of the follow-up of these offender-patients was a rough and ready scoring system for predicting reconvictions (within a two-year follow-up) of 456 offender-patients who were allowed to leave hospital within a year of admission. A prediction system can be used to assist human decision-making (though it should not be a substitute for it)∗ and can also be used to assess the efficacy of measures—such as after-care—by seeing whether individuals with equal predicted reconviction-rates do better with than without the measure (Mannheim and Wilkins, 1955).

The Role Played by External Case Law in Promoting the Legitimacy of International Criminal Court Decisions

2018 ◽  
Vol 87 (2) ◽  
pp. 189-211
Author(s):  
Joanna Nicholson
Keyword(s):  
Decision Making ◽  
International Criminal Court ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
Court Decisions ◽  
Criminal Courts ◽  
Procedural Law ◽  
The Law

International criminal courts and tribunals (ICTs) often refer to jurisprudence from other ICTs when reaching a decision. This can help increase the legitimacy of their decision-making. This article focuses on the International Criminal Court (ICC) and examines when the ICC may refer to the decisions from other courts; when it in fact does so; when it has chosen to deviate from the decisions of other ICTs; and how this has affected the legitimacy of its decisions. The ICC has generally been mindful in its approach towards referring to jurisprudence from other ICTs, but has not been afraid to deviate from it on occasion in decisions concerning both substantive and procedural law. The article argues that where possible the Court should interpret the law in line with other ICTs’ decisions. This will help increase the legitimacy both of the Court’s own decisions and the field of ICL as a whole.

scholarly journals Sentencing and Plea Bargaining

2016 ◽  
Author(s):  
Cyrus Tata ◽  
Jay M. Gormley
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Plea Bargaining ◽  
Empirical Literature ◽  
Future Research ◽  
Presumption Of Innocence ◽  
Daily Work ◽  
Justice Process ◽  
Moral Arguments ◽  
The Relationship

In the daily work of criminal justice, the relationship between plea decision-making and sentencing is important. Meanwhile in the academic and policy literatures, it is one of the most controversial. This essay appraises the international empirical literature and the moral arguments surrounding this plea-dependent (guilty/not guilty) “sentence differential.” Sentence differential is the morally neutral term used here to denote practices variously termed as “sentence discount,” “trial tax/penalty,” “guilty plea discount/reduction,” and “sentence bargain/negotiation.” Section II analyzes whether the sentence differential undermines the presumption of innocence. Section III investigates whether the sentence differential violates legal equality. Section IV assesses the three main justifications for the differential. Section V scrutinizes measurement of the sentence differential. Section VI proposes an agenda for future research, including the need for deeper research into the experiences of and interpretations by defendants of the justice process.

scholarly journals PROTECTION OF ECONOMIC COMPETITION: AN OVERVIEW OF THE LATEST LEGISLATIVE NOVELTIES

2019 ◽  
pp. 165-171
Author(s):  
Sergii Shkliar ◽  
Olha Bulaieva
Keyword(s):  
Decision Making ◽  
European Union ◽  
Procedural Justice ◽  
Third Party ◽  
The European Union ◽  
Economic Competition ◽  
Time Limits ◽  
The Third ◽  
The Law ◽  
The Right

Purpose. The article is dedicated to the analysis of the main changes introduced by the Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition”. Methods. Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” proposes the implementation of several novelties. Among them are: the restriction for the Antimonopoly Committee of Ukraine by certain time limits for considering cases; possibility of extension of the term for consideration of cases by decision of the Committee’s State Commissioner or head of a territorial office; renewal of deadlines for consideration of cases where the respondent is replaced or a co-respondent is involved; provision for the consequences of missing the deadlines for considering cases and also the mechanism of consultations during the consideration of a case, which may be appointed either on the initiative of the Antimonopoly Committee of Ukraine or on the motion of interested persons. Results. The abovementioned amendments will influence the existing system of economic competition protection in a serious way. Among the changes are: – the fine for delayed payment of a fine imposed by the Antimonopoly Committees of Ukraine decision on violation of the legislation on the protection of economic competition is cancelled; – the member of the Antimonopoly Committee of Ukraine who conducted or organized an investigation is deprived of the right to vote in the process of decision-making in the respective case; – the procedure for holding hearings is defined; – recusals and self-recusals are envisaged for the Antimonopoly Committee of Ukraine officers; – the grounds for acquiring the third-party status in a case are changed; – the rights of persons involved in the case are specified and expanded. An important remark of the Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” is that a person that is exempted from liability or whose fine is reduced shall still be liable for damage caused by the violation to other persons. Conclusions. As a result, Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” is expected to become an important step forward in increasing the effectiveness of investigations into violations of the legislation on the protection of economic competition. It can also be regarded as the next step to harmonize Ukrainian legislation with the European Union acquis.

Evidence, Jury Trials and Witness Protection—The Auld Review of the English Criminal Courts

2002 ◽  
Vol 6 (3) ◽  
pp. 163-177
Author(s):  
Jenny McEwan ◽  
Mike Redmayne ◽  
Yvette Tinsley
Keyword(s):  
Decision Making ◽  
Domestic Violence ◽  
Criminal Courts ◽  
Judicial Control ◽  
Trial Process ◽  
Jury Trials

The publication of Auld LJ's review of the English criminal courts may herald significant reform of the trial process. It is argued that recommendations to retain the jury whilst subjecting its decision-making to greater judicial control, and restricting proper research into its operation, lack a coherent foundation and may prove problematic in practice. The recommendations may enhance protection for vulnerable witnesses although proposals to increase the chances of convicting in cases of domestic violence may also create risks for victims.

scholarly journals How criminal courts blend punitive ends with immigration control aims: The decision-making process of the discretionary prosecution provision to authorise an administrative expulsion

2020 ◽  
Vol 18 (2) ◽  
pp. 1-29
Author(s):  
Byron Villagómez Moncayo
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Law Enforcement ◽  
Justice System ◽  
Immigration Law ◽  
Decision Making Process ◽  
Criminal Courts ◽  
Structured Interviews ◽  
Legal Regime ◽  
Immigration Control

The involvement of the criminal justice system in immigration control is nowadays a global phenomenon that has called the attention of academics and practitioners. The Spanish legal regime has not been immune to this occurrence, encompassing a series of situations in which criminal courts are required to make decisions that can have significant implications upon immigration law enforcement. One of the most noteworthy provisions in this regard is that by which criminal courts are allowed to exercise discretionary prosecution to authorise the administrative expulsion of a prosecuted foreigner (Art. 57.7 Aliens Act). Drawing on focused observation of a court setting and semi-structured interviews with judges, prosecutors, clerks, court personnel and defence attorneys, the main findings of this paper hover around the idea that expulsion is a court’s culturally constructed punishment, defined more by the meanings attributed to it by court actors than by its formal legal categorisation.

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