The Right to Confrontation in Common Law Systems

2015 ◽  
Vol 18 (1) ◽  
pp. 129-165
Author(s):  
Anthony Gray
Keyword(s):  
National Security ◽  
Due Process ◽  
Common Law ◽  
Case Law ◽  
American System ◽  
Open Court ◽  
Legal Adviser ◽  
The World ◽  
British System ◽  
The Right

Recent years have seen a departure from traditional criminal due process requirements in the wake of 9/11, one feature of which has been the increased use of closed court hearings in relation to the introduction of evidence considered particularly sensitive to national security. Typically, both the person affected by the proceedings and their legal adviser are excluded from such a hearing. These developments contradict long-established and fundamental characteristics of proceedings in a criminal law trial in common law systems, such as the open court principle and the adversarial nature of proceedings. They also contradict the right to confront accusers, a right traceable to Roman times, and a feature of the British system for more than four centuries, and of the American system for more than two. This article highlights the latest case law developments in key jurisdictions around the world before critically appraising trends evident in the recent jurisprudence. It is critical of the fact that courts in some jurisdictions have permitted substantial departures from the right of an individual to confront witnesses being used against them.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Introducing Victim Impact Statement in India: Reconceptualizing Victim Status

2021 ◽  
pp. 251660692199175
Author(s):  
Devansh Dubey ◽  
Payas Jain
Keyword(s):  
Criminal Justice ◽  
Subjective Experience ◽  
Due Process ◽  
Not Given ◽  
Therapeutic Tool ◽  
Victim Status ◽  
Victim Impact Statement ◽  
The World ◽  
Due Process Of Law ◽  
The Right

The right to fair trial is inherent in the concept of due process of law, which now forms part of Article 21 of Indian Constitution after the Maneka Gandhi judgement. Pertinently attached with the same comes the responsibility of the criminal system to treat victims with increased awareness and sensitivity. However, the established convention shows that in planning and developing administration of criminal justice, proper attention is not given to the victims of crime in achieving goals of criminal justice; the major cause of it being that a victim is heard only as a witness not as a victim. A credible response to the said issue has emerged in the form of victim impact statement (VIS) in the modern legal system across the world. With that being said, the researchers through this article try to deduce the need for incorporating a VIS in India through the various jurisprudential understandings of what it means to be a victim, including the gap between the subjective experience of the sufferer and the interpretation of the same by others, and what restorative justice would mean to heal a victim. Establishing upon the same premise of victim status, the researchers try to suggest that the introduction of VIS, with the primary purpose of it being a therapeutic tool and not an instrument of changing the course of justice, will serve to make us reconsider our contours of a ‘victim’.

2. Legal systems and sources of law

2020 ◽  
pp. 35-70
Author(s):  
Scott Slorach ◽  
Judith Embley ◽  
Peter Goodchild ◽  
Catherine Shephard
Keyword(s):  
International Law ◽  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Potential Effect ◽  
Legal Systems ◽  
Public And Private ◽  
England And Wales ◽  
The World ◽  
The Status

This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.

The Right to Silence

2013 ◽  
Vol 16 (4) ◽  
pp. 527-567
Author(s):  
Anthony Gray
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Home Country ◽  
Early Stage ◽  
Case Law ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Right To Silence ◽  
The Right ◽  
Current Proposal

In recent years, we have seen continued erosion of an individual’s right to silence. The most recent attempts in the author’s home country, Australia, include a current proposal to adopt the United Kingdom approach, and allow inferences to be drawn from a failure to answer questions at an early stage of investigation, in circumstances where later the person does provide an explanation. An attempt to protect the right to silence in Australia at constitutional level is challenging, because Australia is one of the few Western nations that has not seen fit to enact an express bill of rights. This article will consider whether arguments might be made that, at least in some contexts, infringement of the right to silence is, nevertheless, contrary to the requirements of the Australian Constitution. Courts in other countries around the world have also recognized the right to silence in some circumstances where legislatures have attempted to limit it, and these will be considered in the Australian context, acknowledging appropriate contextual differences. Many countries are faced with the difficulty of reconciling fundamental due process principles with the need for effective investigatory powers sufficient to deal with evolving criminal threats. It will be instructive to consider how a successful balance has been accommodated in a range of jurisdictions. It is believed that the law of the author’s home country could be greatly enriched by engaging with North American and European case law, as this article will seek to demonstrate. The article is considered to be of interest to those outside of Australia, to understand the difficulties in protecting fundamental human rights when an express bill of rights does not exist in the relevant country, and to consider how other ways may be found to protect such rights. In this way, this article will use Australia as the example of a country without an express bill of rights, and will consider how, in that context, fundamental human rights can practically be protected by the courts. The conclusions are considered relevant to a range of nations. Specific examples include Singapore and Malaysia, and to a lesser extent India, as will be explained.

scholarly journals Redefining Relevancy and Exclusionary Discretion in Sir James Fitzjames Stephen’s Indian Evidence Act of 1872: The Singapore Experiment and Lessons for Other Indian Evidence Act Jurisdictions

2012 ◽  
Vol 10 (1) ◽  
pp. 1-53
Author(s):  
Siyuan Chen
Keyword(s):  
Sri Lanka ◽  
Common Law ◽  
Case Law ◽  
The World ◽  
Rules Of Evidence ◽  
Evidence Law ◽  
The Law

AbstractIn many jurisdictions, the rules of evidence can often be instrumental in determining the outcome of a dispute. But to what extent can evidence law be controlled by codification, or is it better to leave its regulation and development to the judges via common law? In an attempt to bridge the gap between the rules of an antiquated evidence statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence, while new provisions were introduced to act as a check against abuse. However, it will be argued that these amendments have changed the paradigm of the admissibility of evidence under the statute and have also done little to clarify existing ambiguities in the law. This paper explains why and, given the near-complete absence of case law that has interpreted the amendments, offers a few tentative suggestions on possible ways forward. To the extent that Singapore’s Evidence Act was largely modelled after Stephen’s Indian Evidence Act of 1872, Singapore’s 2012 amendments may be of comparative interest to readers in a number of jurisdictions around the world particularly those in Asia such as Bangladesh, Brunei, Burma, Malaysia and Sri Lanka – these countries had adopted the iconic statute to varying degrees – and of course, to India itself. Many of these jurisdictions have also not made major amendments to their evidence legislation, and therefore there may be something to learn ahead of time from Singapore’s experiment.

Judge and lawgiver in Anglo-American history

2003 ◽  
Vol 11 (3) ◽  
pp. 325-339
Author(s):  
R. C. VAN CAENEGEM
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
European Convention ◽  
Stare Decisis ◽  
The People ◽  
British System ◽  
Anglo American ◽  
The Impact

Politicians are not expected to interfere with the judiciary. Parliament passes laws and the courts interpret and apply them. On the Continent, judicial freedom is restricted by codification, which was avoided in England where greater judicial flexibility survived. In the United States the Restatement of the Law was a move in the direction of codification. Also in that country, judicial review of the constitutionality of the laws gave the judges the power to declare statutes passed by the representatives of the people unconstitutional. No such power exists in England, but the courts have other means of reducing the impact of Acts of Parliament, such as the exclusionary rule and the convention that the lawgiver does not intend to change the common law, which is judge-made case law, governed by the doctrine of precedent. Those traditional elements of the English common law were recently eroded by modernizing trends: the rule of exclusion was given up in favour of the search for the intention of the lawgiver, and the force of stare decisis was reduced. The recent incorporation of the European Convention on Human Rights into British law has introduced a form of judicial review of the laws into the British system.

scholarly journals Unresolved Controversies in Suing for Negligence of Tax Officials: Canadian and Australasian Insights and a Primer for Policy Makers' Consideration

2020 ◽  
Vol 68 (2) ◽  
pp. 439-476
Author(s):  
John Bevacqua
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Case Law ◽  
Policy Makers ◽  
The Common ◽  
The Right

There have been numerous recent Canadian cases in which taxpayers have alleged negligence by Canada Revenue Agency officials. This body of rapidly evolving Canadian case law constitutes, at present, the most extensive jurisprudence in the common-law world considering the tortious liability of tax officials. It also exposes fundamental unresolved controversies that inhibit legal clarity and certainty on the limits of the right of taxpayers to sue for the negligence of tax officials. Through comparison with cases in Australia and New Zealand, this article confirms that these unresolved controversies are not unique to Canada. The author proposes a range of options for addressing these issues. Intended as a primer for policy makers' attention and debate, these proposals are drawn from judicial and legislative approaches adopted in Canada, Australia, and New Zealand, and in other broadly comparable common-law jurisdictions.

scholarly journals Unauthorized medical intervention and informed consent in the common law of Canada prior to the Supreme Court’s decision of Reibl v. Hughes (1899–1980)

2020 ◽  
pp. 260-282
Author(s):  
Anatoliy Lytvynenko
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Common Law ◽  
Case Law ◽  
Medical Intervention ◽  
Invasive Treatment ◽  
First Case ◽  
The Common ◽  
The Right ◽  
The Given

The given article deals with the Canadian legacy of civil actions on negligence and technical assault or battery involving an unauthorizedmedical interference to plaintiff. In modern doctrine and case-law, the given concept is named “informed consent”, upon whichthe patient is not a mere subject of medical treatment, but has a substantial set of patient rights, involving the informational ones, whichincludes his right to be informed on further invasive treatment and thus to be able to assent or decline it. The doctrine of informed consent,arising from actions on unauthorized medical treatment in both common law and civil law jurisdictions, has a centuryfold historyin the jurisprudence. In the common-law world, it was bred in the end of the 19th century primarily in the jurisprudence of Americancourts, but still has its distinct peculiarities in the common law of Canada throughout the twentieth century. The span on the researchedjurisprudence embraces the time period of 1899 (judgment of Parnell, which was the first case to deal with the subject) to 1980 (caseof Reibl v. Hughes), where the Canadian Supreme Court has firmly recognized the principle of informed consent in the acting commonlaw. In the 1990s, the principles of informed consent had been codified. The author has investigated on the evolvement of the conceptof patient’s right to autonomy in the state from the very beginning to the judgment of Reibl v. Hughes in 1980, and has researched theroots of the “right to autonomy” as an extension of the right to privacy, which has penumbrally existed in Canadian jurisprudence forover a century, despite having been recognized as such relatively recently, despite an existence of various early case-law legacy. Apartfrom the abovesaid, the author aimed to define the authorities used by Canadian courts in the earlier cases dealing with unconsentedsurgery, which involves judgments from other jurisdictions as well as professional legal and medical textbooks.

scholarly journals The First and Fiftieth Years of Independent Burma's Law Reports

2004 ◽  
Vol 35 (2) ◽  
pp. 385 ◽  
Author(s):  
Myint Zan
Keyword(s):  
Common Law ◽  
Case Law ◽  
First Year ◽  
The Past ◽  
The World ◽  
The Law ◽  
Law Reports

This article compares the annual Law Reports of the first year of Burmese independence in 1948 with those published in the fiftieth year of Burmese independence (1998). In making the comparison, the author highlights the fundamental changes that occurred in the structure and composition of the highest courts in Burma, along with relevant background and factors effecting these changes. There was a movement away from the predominant use of English in 1948 towards judgments exclusively in Burmese in the 1998 Law Reports. Burma's neighbours, who shared a common law legal heritage, did not follow this trend after their independence. This shift, combined with Burma's isolation from the rest of the world, makes analysis of Burmese case law from the past three and a half decades very difficult for anyone not proficient in the Burmese language. This article tries to fill the lacunae as far as the Law Report from the fiftieth year of Burma's independence is concerned.

scholarly journals EMPLOYERS’ STATUTORY VICARIOUS LIABILITY IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Daleen Millard ◽  
Eugene Gustav Bascerano
Keyword(s):  
Personal Information ◽  
Common Law ◽  
Case Law ◽  
Employment Equity ◽  
Vicarious Liability ◽  
The Common ◽  
The Right ◽  
The Impact ◽  
Data Subject ◽  
Responsible Party

A person whose privacy has been infringed through the unlawful, culpable processing of his or her personal information can sue the infringer’s employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (“data subject”), whose privacy has been infringed, with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for processing of personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term “responsible party” is undoubtedly a synonym for “employer” in this context. By holding an employer accountable for its employees’ unlawful processing of a data subject’s personal information, POPI creates a form of statutory vicarious liability.Since the defences available to an employer at common law, and developed by case law, differs from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act does not perhaps take matters too far.This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is is too harsh, the defences contained in section 99(2) of POPI is further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes. 

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