Non-disclosure of information in the prosecution of preventive detention regimes

<p>Preventive detention has been adopted as a measure of counter-terrorism law in many jurisdictions. It has been authorised under the Security Certificate regime in Canada and the Control Order regime in United Kingdoms. Since their adoption, the two regimes have become objects of much debate. The reason is that they both legalised the use of secret evidence and secret hearings in their prosecution. The issue arose whether the non-disclosure of such information in a judicial review to decide the reasonableness of a control order/a security certificate deprives terrorist suspects from a fair hearing. This paper explores that question by analysing two landmark cases in the United Kingdom and Canada: AF (No 3) and Charkaoui I. The paper’s thesis is that the findings of the courts in these two cases are reasonable. However, the alternative to full disclosure as adopted by both the United Kingdom and Canada – the Special Advocate model – is currently too limited. This paper subsequently offers solution for this: the judges should have a more active role in investigating the relevant facts of the cases.</p>

Non-disclosure of information in the prosecution of preventive detention regimes

<p>Preventive detention has been adopted as a measure of counter-terrorism law in many jurisdictions. It has been authorised under the Security Certificate regime in Canada and the Control Order regime in United Kingdoms. Since their adoption, the two regimes have become objects of much debate. The reason is that they both legalised the use of secret evidence and secret hearings in their prosecution. The issue arose whether the non-disclosure of such information in a judicial review to decide the reasonableness of a control order/a security certificate deprives terrorist suspects from a fair hearing. This paper explores that question by analysing two landmark cases in the United Kingdom and Canada: AF (No 3) and Charkaoui I. The paper’s thesis is that the findings of the courts in these two cases are reasonable. However, the alternative to full disclosure as adopted by both the United Kingdom and Canada – the Special Advocate model – is currently too limited. This paper subsequently offers solution for this: the judges should have a more active role in investigating the relevant facts of the cases.</p>

Inconsistent Adjudication – A Violation of the Right to Fair Trial Under the European Convention on Human Rights

The ECtHR does not review decisions of national courts of the States Parties to the European Convention. However, it has developed a pattern in its case law to find a violation of the Convention on the grounds that the fair hearing lacked if there was a case law inconsistency at the level of national jurisdiction. The ECtHR case law was settled in a Grand Chamber case against Turkey in 2011. To find a violation under Article 6 of the Convention the ECtHR requires two tests. Firstly, it must establish the existence of a profound and long-standing inconsistency in the domestic case law, and secondly, the ECtHR raises the issue of a mechanism aimed at removing the inconsistency. If the mechanism does not exist, or if it applied ineffectively, the ECtHR finds a violation of human rights. The author suggests the ECtHR should revisit its jurisprudence.

Conclusion

This draws conclusions based on John Selden’s acceptance of the Talmud as an authoritative source. His many references to Jewish ancestral custom and opinion reveal his understanding that ancient Talmudic traditions exist independent of the Bible, and of course these include the Adamic/Noachide laws. Despite its dubious historicity, Selden accepts the tradition of a seamless transmission of judicial authority in both sacred and civil issues from Moses to the time of the synedrion, which he regards as a model for Parliament. He regards the sages of the Talmud as legal scholars rather than as religious figures. In the fierce debates in the Westminster Assembly over Deuteronomy 17:8–10, the Presbyterians read the text literally, which gave priority in adjudication to the clergy, while Erastians like Selden followed the rabbinic interpretation, which favored those who were skilled in the law. The conclusion tries to explain why both Selden and Milton (at least in his divorce treatises and in the middle books of Paradise Lost) relied on simile and analogy rather than metaphor and typology. Milton would have found everything he needed to create the laws of paradise in Selden’s De Jure Naturali et Gentium, with its thousands of marginal references and its method of giving a fair hearing to all opinions.

Synthesizing Imaginations

Milton’s engagement with Selden’s natural law theory is a factor in the transformation that occurs between his earlier anti-prelatical tracts and the later treatises on divorce, freedom of the press, and the citizens’ right to depose any ruler. In his poetry, despite his Christian doctrinal preference, Milton’s non-hierarchical aesthetic attests to the amplitude of his vision. This derives in part from his exposure to Selden’s method of giving a fair hearing to all his pagan, Christian, Jewish, and Muslim sources. But the same passage in the Areopagitica that demonstrates Selden’s influence becomes, in the latter part of the chapter, a point of entry into the different ways that a scholar and a poet-polemicist view the same object. Selden recognizes the importance of mediated experience, whether scientifically, through a telescope, or religiously, through tradition. Milton distrusts “the glass of Galileo, less assured,” and believes only in sola scriptura and immediate experience.

Proceedings before the Office and Procedural Rules

This chapter discusses the Basic Regulation and the Proceedings Regulation that contain a diversity of provisions on procedures, which relate to application procedures, objection procedures, or appeal procedures. It describes the Community plant variety rights system that opens the possibility for breeders to apply for Community plant variety rights. It also explains the specific procedure of framework of the Community system, which complies with fundamental principles on legitimate expectations and the right to a fair hearing. This chapter deals with the ancillary procedures relating to variety denominations, the objection procedure, and the procedure on access to documents. It highlights specific procedures to be followed concerning the application for a compulsory licence and requests for nullity and cancellation.

12. Article 6: right to a fair trial

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. Article 6 is the right to a fair trial. It looks at the scope of Article 6—the kinds of trial it deals with; and defines ‘determines’, ‘civil rights and obligations’, and ‘criminal charge’ for this purpose. It then goes on to consider the specific rights that are inherent in the idea of a hearing that is ‘fair’ and tribunal that is ‘independent’ and ‘impartial’. It also discusses the additional rights that are enjoyed by a defendant in a criminal trial. Of particular importance is the issue of adjusting the concept of ‘fairness’ to the circumstances, particularly in the context of threats to national security. The need to protect the essence of a right to a fair hearing where there are important public interests justifying restrictions is an issue that is at the heart of the Article 6 case law.

7. Challenging decisions: appeals, administrative and judicial review

This chapter discusses the development of the current structure of the appeals bodies—the Appeal Tribunal and the Special Immigration Appeals Commission (SIAC)—and their procedure. It sets out the limited rights of appeal following the implementation of the Immigration Act 2014. It has sections on administrative review and judicial review. The chapter also considers whether there is a right to a fair hearing in immigration and asylum decisions. It concludes with a section on immigrants and asylum seekers’ access to legal representation, including funding.

Sprawiedliwość w polskim dyskursie konstytucyjnym i jej konotacje społeczne

The analysis of the use of the notion of justice in the Polish Constitution proves that in the course of historical development, the designated value was given various conceptual profiles. It was associated mostly with the law within the subjective (‘justified entitlement’) and objective scope (‘legitimacy’), with the judicial authorities (‘fair hearing’), and with the punishment (‘just decision’). Apart from juridical meaning, the notion of justice shall connote ‘equality’ or ‘equal treatment of all people’, including ‘equal justice under law’ or ‘objectivity of a judicial ruling’. Over time the justice gains social and political value which is reflected in the ideal of social justice meant as ‘the equality of all citizens and equal evaluation thereof’. The latter is highlighted in the Polish Constitution (of 1997) where justice is treated as the guiding moral and constitutional principle in the Republic of Poland. The significant profiles of names designating justice in the texts of the Constitution are confronted with the connotations appearing in the questionnaires filled up by the students of the universities in Białystok. In the eyes of young Poles, justice seems to be a human value which is important in their environment an shall be protected by the state.