scholarly journals Defence Disclosure: Is the Right to Full Answer the Right to Ambush

1969 ◽  
pp. 689 ◽  
Author(s):  
Goran Tomljanovic
Keyword(s):  
Common Law ◽  
The Real ◽  
Real Issue ◽  
Right To Silence ◽  
Complete Set ◽  
Disclosure Rules ◽  
The Many ◽  
The Right ◽  
Clear Statement ◽  
Disclosure Obligations

In Canada, a complete set of codified defence disclosure rules does not exist. Rather, these rules exist in piecemeal form, some being statutory, some common law and others in place for the sake of expedience. Like the Crown, the defence is required to disclose at the investigative, pretrial and trial stages. Although defence disclosure appears to run contrary to the accused's right to silence and the right to make full answer and defence, it is emphasized that these rights are not absolute. They must be assessed against other Charter principles. The accused, for example, rarely remains silent until the final stages of the trial to subsequently "ambush " the Crown with his or her defence. The "ambush" defence, perceived as a strategic advantage, denies fundamental principles of fairness and ultimately hinders the search for truth. The author examines the numerous benefits of codifying the procedural rules. A clear statement of disclosure obligations, for example, would avoid lengthy debates over disclosure rules and thus ultimately lead to quicker resolution of the real issue. Further, should they operate unfairly against either party, the court would be in a position to waive them. Due to the many advantages and the corresponding lack of disadvantages such legislation would confer, it is strongly urged that a set of procedural disclosure rules be statutorily enacted.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

2021 ◽  
pp. 132-162
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
The Right ◽  
Disclosure Obligations

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

2020 ◽  
pp. 132-160
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
The Right ◽  
Disclosure Obligations

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

Evolution of an Erosion

2017 ◽  
Vol 81 (2) ◽  
pp. 103-111
Author(s):  
Cathál MacPartholán
Keyword(s):  
Criminal Justice ◽  
Common Law ◽  
Public Order ◽  
Right To Silence ◽  
The Common ◽  
Legal Contexts ◽  
The Uk ◽  
The Right

This article critically examines the development of statutory restrictions on the common law right to silence in the UK, providing insight from common law, jurisprudence and historical legal contexts, and considering the broader context of the privilege against self-incrimination, and critically evaluates the development restriction of the right, by ss 34–38 of the Criminal Justice and Public Order Act 1994.

Debt and Contract in the Common Law

1966 ◽  
Vol 1 (1) ◽  
pp. 60-98 ◽  
Author(s):  
A. V. Levontin
Keyword(s):  
Income Tax ◽  
Common Law ◽  
The Real ◽  
Real Nature ◽  
The Common ◽  
The Difference ◽  
The Government ◽  
The Right ◽  
As If

The difference between what a man already owns, or property, and what he is only entitled to claim, or obligation, is fundamental. A debt represents what a man is entitled to claim, but because of its proximity to a claim in detinue and for other reasons to be hereafter discussed, it is for many purposes treated as if it were something that a man already owns. The owner of a debt may not help himself by seizing what he is owed and must, like the owner of any chose in action, implement his right with the cooperation of the debtor or else by resort to the courts. Nevertheless, he who owns a debt enjoys a peculiarly “strong” right. This strength derives in part from the “real” nature of the right; by virtue of this a creditor, such as a lender or an unpaid vendor, is treated in some respects almost as if he were already the owner of what is owed, in particular a lender as if he went on owning the money lent to the borrower. And even in cases where a debt does not originate in a real transaction (as, for instance, a judgment-debt or income tax owed to the government, in which cases the creditor has not previously given that, or the equivalent of that, which he now claims) it is still “strong” because the object in obligatione, viz. money or other fungibles, is “indestructible” and therefore a debt cannot be frustrated by impossibility.

scholarly journals Ireland: Curtailment of the right to silence through statutory adverse inferences

2021 ◽  
pp. 203228442110283
Author(s):  
Yvonne M. Daly
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Presumption Of Innocence ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
European Court ◽  
Right To Silence ◽  
The Right ◽  
Right Of Access ◽  
Police Questioning

In Ireland, the right to silence has been significantly impacted by the legislative introduction of adverse inference provisions. In specified circumstances, with varying threshold requirements, a suspect’s failure to answer questions or provide information during Garda (police) questioning can form the basis of an inference against them at trial. Ireland has not opted in to either Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence or Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. This article examines the constitutional and common law context of the protection of the right to silence in Ireland; the operation, and expansion, of the statutory inference regime; the lack of legislative provision for a right to legal assistance during Garda interview; and relevant European Court of Human Rights jurisprudence. While there are some benefits to overt legislation and safeguards attached to the drawing of inferences from pre-trial silence, the question must be asked whether a detained suspect in Ireland truly has a protected right to silence in real terms, given the proliferation of inference provisions.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

2019 ◽  
pp. 128-156
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
The Right ◽  
Disclosure Obligations

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

10. Privilege and public policy

2016 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Public Policy ◽  
Public Interest ◽  
Common Law ◽  
European Convention ◽  
Criminal Proceedings ◽  
Right To Silence ◽  
Questions And Answers ◽  
Flow Charts ◽  
Legal Professional ◽  
The Right

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter covers evidence excluded for policy or public interest considerations: public interest immunity (PII). A party, witness or non-participant in proceedings may refuse to disclose information, papers or answer questions, even though such material may be highly relevant and reliable. If PII applies, neither party has access to the evidence. For privilege, the areas most likely to occur in Evidence courses are privilege against self-incrimination and legal professional privilege. The former includes the right to silence of the defendant. The privilege against self-incrimination is generally upheld by common law and by implication by Art. 6 of the European Convention on Human Rights (ECHR). Legal professional privilege is a common law exclusionary rule principle that applies in civil and criminal proceedings.

Evidence Discovery and Disclosure in Common Law Jurisdictions

2019 ◽  
pp. 542-561
Author(s):  
Darryl K. Brown
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
England And Wales ◽  
Disclosure Requirements ◽  
Evidence Disclosure ◽  
Disclosure Rules ◽  
Justice Systems ◽  
Disclosure Obligations

This chapter examines issues surrounding evidence disclosure and discovery in common law jurisdictions, focusing primarily on the disclosure regimes in England and Wales and in the United States. It first traces the evolution of pretrial evidence disclosure rules and provides an overview of common law approaches to disclosure obligations. In particular, it considers three kinds of evidence: evidence that the prosecution plans to present at trial to prove the defendant’s guilt, government evidence that does not favor the prosecution’s case, and evidence in possession of the defense that it plans to present at trial. The article proceeds by discussing the rationales and structural choices that adversarial justice systems are required to make in their disclosure schemes. One such choice is how much to empower judges, rather than the parties, to make decisions about disclosure requirements.

10. Privilege and public policy

2018 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Public Policy ◽  
Public Interest ◽  
Common Law ◽  
European Convention ◽  
Criminal Proceedings ◽  
Right To Silence ◽  
Questions And Answers ◽  
Flow Charts ◽  
Legal Professional ◽  
The Right

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and diagrams and flow charts. This chapter covers evidence excluded for policy or public interest considerations: public interest immunity (PII). A party, witness or non-participant in proceedings may refuse to disclose information, papers or answer questions, even though such material may be highly relevant and reliable. If PII applies, neither party has access to the evidence. For privilege, the areas most likely to occur in Evidence courses are privilege against self-incrimination and legal professional privilege. The former includes the right to silence of the defendant. The privilege against self-incrimination is generally upheld by common law and by implication by Art. 6 of the European Convention on Human Rights (ECHR). Legal professional privilege is a common law exclusionary rule principle that applies in civil and criminal proceedings.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

2018 ◽  
Author(s):  
Martin Hannibal ◽  
Lisa Mountford
Keyword(s):  
Common Law ◽  
Fair Trial ◽  
The Right ◽  
Disclosure Obligations

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

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