Bases of Forensic Pathology Expert Testimony With Emphasis on Iowa v Tyler

Judicial scrutiny of the forensic sciences is increasing. This scrutiny targets the bases for expert opinions. Forensic pathologists must understand that when they express an opinion it must have an articulable underlying basis. Iowa v Tyler provides a cautionary tale where testimony from a forensic pathologist on the cause and manner of death based exclusively on police reports and audio and video recordings of police interviews of the suspect rather than on medical evidence were held to be inadmissible. Tyler has an odd and distinguishable set of facts, but has been widely cited as an example of problematic forensic pathology testimony.

Automating occupation: International humanitarian and human rights law implications of the deployment of facial recognition technologies in the occupied Palestinian territory

In 2019, media investigations revealed that Israel had added facial recognition technologies (FRTs) to the panoply of security and surveillance technologies deployed in its administration and control of the occupied Palestinian territory (oPt). Despite growing academic and judicial scrutiny of the legal implications of these technologies for privacy and freedom of assembly in domestic contexts, scant attention has been paid to their uses by militaries in contexts where international humanitarian law (IHL) applies. This article seeks to establish the international legal framework governing an Occupying Power's deployment of FRTs, particularly in surveillance, and apply it to Israel's uses in the oPt. It is demonstrated that IHL provides flexible, but incomplete, provisions for balancing an Occupying Power's right to employ surveillance technologies within its measures of control and security against the imprecisely defined humanitarian interests of the population under occupation. The relevant legal framework is completed through the concurrent application of an Occupying Power's international human rights law (IHRL) obligations. What is known of Israel's use of FRTs in surveillance appears prima facie not to satisfy the cumulative IHRL criteria for limitations on the right to privacy – legality, legitimate aims, necessity and proportionality – even where these are broadened by reference to IHL. Consideration is also paid to corollary human rights impacts of these technologies, and the potential that they may entrench an Occupying Power's control while simultaneously rendering this control more invisible, remote and less reliant on the physical presence of troops.

Can't see the science for the solicitors: judicial review of scientific research in light of NIWA's case

<p>The existence of climate change remains an unjustifiably vexed issue worldwide. In New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd, sceptics’ attempts to challenge NIWA’s temperature records allowed the Court to extend its reach into the heart of the scientific research process. Whilst this paper supports Venning J’s determination that NIWA’s decisions were within the Court’s jurisdiction for review, his finding that individuals might suffer harm as a result of them is shown to be unjustified. Furthermore, the Court’s inherent unsuitability to addressing matters with high scientific contents, due to its adversarial nature and judges’ lack of scientific training, supports a finding of non- or partial justiciability. Non-justiciability is here rejected for allowing scientists behaving fraudulently to escape rebuke. The standard of deference Venning J attempts to introduce is similarly flawed as it allows unwary judges to unintentionally judge matters of science. Concerns are also raised that research might stagnate if scientists must worry about judicial scrutiny of their work. Thus, a standard of flagrant impropriety, or “fraud, corruption or bad faith”, is argued to be the ideal threshold for permitting judicial review of scientific research.</p>

Can't see the science for the solicitors: judicial review of scientific research in light of NIWA's case

<p>The existence of climate change remains an unjustifiably vexed issue worldwide. In New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd, sceptics’ attempts to challenge NIWA’s temperature records allowed the Court to extend its reach into the heart of the scientific research process. Whilst this paper supports Venning J’s determination that NIWA’s decisions were within the Court’s jurisdiction for review, his finding that individuals might suffer harm as a result of them is shown to be unjustified. Furthermore, the Court’s inherent unsuitability to addressing matters with high scientific contents, due to its adversarial nature and judges’ lack of scientific training, supports a finding of non- or partial justiciability. Non-justiciability is here rejected for allowing scientists behaving fraudulently to escape rebuke. The standard of deference Venning J attempts to introduce is similarly flawed as it allows unwary judges to unintentionally judge matters of science. Concerns are also raised that research might stagnate if scientists must worry about judicial scrutiny of their work. Thus, a standard of flagrant impropriety, or “fraud, corruption or bad faith”, is argued to be the ideal threshold for permitting judicial review of scientific research.</p>

Expressive Conduct and Article 19(1)(a) of the Indian Constitution: A Purposivist Approach

Unlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.

The Privilege of Information—An Examination of the Defence of Therapeutic Privilege and its Implications for Pregnant Women

Though apparently in existence across common law countries, the defence of ‘therapeutic privilege’ receives scant judicial analysis in case law. The extent of its reach is unclear and its underpinning justification is shaky. Often it forms a throwaway remark or poorly explored caveat when the duty of a physician to disclose information is being examined, rather than receiving any detailed judicial scrutiny in its own right. Furthermore, despite references to it in case law, it is questionable if it has ever successfully been invoked as a defence in either England and Wales or Ireland. This piece examines this lack of clarity and the often-vague references to the existence of therapeutic privilege in both case law and professional guidelines, followed by a consideration of why the defence may be particularly problematic and unjustified in the context of childbirth and the immediate postpartum period. Considering the dangers of therapeutic privilege in pregnancy presents a timely opportunity to examine the issues with the use of the defence in all other healthcare contexts, focusing particularly on its impact on individual patient autonomy. Finally, this piece concludes by contending that therapeutic privilege ought to be abolished, if it truly exists at all.

Vulnerability and Volition in the Testamentary Law of Undue Influence and Captation

This article examines how contemporary analyses of vulnerability theory are reflected in legal approaches to undue influence and captation in the Canadian common law of wills and estates and in the Civil Code of Québec in the law of succession. Critical theorists point to the risks of assuming that vulnerability lies exclusively with the elderly and persons with disabilities. The equation risks oversimplifying matters, which could compromise the equality and dignity of members of these groups. There is also a risk of overlooking the harm that may be suffered by those who are victims of social or economic oppression. A more nuanced approach posits that vulnerability is a common human trait that cuts across social identities and experiences. Due to prevailing assumptions about vulnerability, this article hypothesizes that challenges to wills based on undue influence and captation will most often occur when the testator is elderly and/or has a disability at the time of execution of the will. Canadian common law and Quebec civil law jurisprudence are examined to assess this hypothesis. This analysis reveals that certain conditions do give rise to triggers heightened judicial scrutiny of wills, but that they do not in and of themselves determine legal outcomes. The case law thus suggests a moderate—but tempered—risk that courts will draw presumptions about age and capacity when assessing the presence of undue influence or captation. Perhaps more significant is the absence of challenges to wills involving young and healthy testators. Jurists might therefore wonder whether we are at risk of overlooking some cases of untoward conduct due to the conceptual associations we make between age, incapacity and vulnerability.

Prosecutorial Discretion and Judicial Review: An Analysis of Recent Canadian and South African Decisions

The question whether the functions performed by the prosecutor in the criminal justice system are subject to judicial scrutiny has been a matter for concern in common-law jurisdictions for quite some time. The courts in the Commonwealth generally agree that prosecutors must function independently; act fairly and responsibly in the interests of the public; and must be free from political interference. Their role in the administration of justice is to uphold the rule of law. Therefore, the exercise of prosecutorial discretion should ordinarily not be interfered with by the courts except in rare cases. However, the extent to which the courts, in respective Commonwealth jurisdictions, review prosecutorial discretions differs. A comparative study of the Canadian experience and the South African approach, where the judicial approaches to the review of prosecutorial discretion significantly differ, is a clear illustration. In Canada, the courts hardly interfere with, or review the manner in which the prosecutor performs his or her duties, except that prosecutorial discretion is not immune from all judicial oversight, since it is reviewable for abuse of process (see R v Anderson [2014] 2 SCR 167). In South Africa on the other hand, the exercise of the powers of the prosecutor and their ramifications are, like every exercise of public power, subject to the constitutional principles of legality and rationality. The recent judgments of the Full Bench of the Gauteng Division, Pretoria in Democratic Alliance v Acting National Director of Public Prosecutions 2016 (2) SACR 1 (GP) as affirmed by the Supreme Court of Appeal in Zuma v Democratic Alliance 2018 (1) SA 200 (SCA)—the so-called ‘spy-tape’ saga—are the latest illustrations of this approach.

Precautionary proportionality principle as an instrumental preventive measure from the COVID-19: Can European human rights survive in the state of public health emergency?

The authors believe that the C. Schmitt’s notion of unconstraint sovereignty is not flawless. Both A. Dicey’s theory of British constitutional law and the international human rights instruments have required the measures of the derogation of human rights must be given in accordance with proportionality principle. However, these normative requirements have hardly been applied to the judicial scrutiny by the two supranational courts in Europe. Correspondingly, some European public authorities favour the more radical precautionary principle. Although this principle is more effective in suppressing the new coronavirus, it is associated with numerous side effects. Thus, the authors propose in this article an innovative concept of precautionary proportionality principle.

Nature of the Power of the Registrar of Titles: Judicial, Quasi-Judicial or Administrative

As a country with Torrens land registration system, the Registrar of Titles plays a key role in managing and maintaining the land registration in Malaysia. The powers and duties conferred upon the Registrar of Titles under the National Land Code 1965 are manifold, ranging from the power to conduct enquiries, the power to enter the Registrar’s caveat, the power to issue an arrest, the power to issue title and others. The nature of the power of the Registrar of Titles is often under judicial scrutiny due to the direct effect of the Registrar of Titles’ actions towards registration of instruments. The issue which seems to be fuddled is whether such power is considered as quasi-judicial or merely administrative? This paper undertakes to provide an answer to such a question. Content analysis will be used in this paper by evaluating the laws and case precedents in Malaysia and Australia. This paper concludes that due to the differences in the structure of the land administration organisation and also the provisions of the Malaysian National Land Code 1965 compared to those in Australia, there is a tendency for the courts in Malaysia to limit the nature of the power of the Registrar of Titles. Despite the myriad of powers and duties afforded to the Registrar of Titles in Malaysia, in reality, the powers are legally restricted and the position is merely considered as an automaton in the land registration system.