CLRI

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Author:
ericburger
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274730
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CLRI
Updated:
2014-05-19 20:00:42
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Common Law England
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LLB
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  1. Article 6 ECHR
    • 1) fair+public hearing, reasonable time, independent+impartial tribunal, public judgment except: morals/order/nat.security; juvenile/private life; prejudice interests of justice
    • 2)presumed innocent until proven guilty
    • 3) a) informed promptly in language which he understands
    • b) adequate time+facilities to prepare defence
    • c) defend in person, legal assistance, or insufficient means: free legal assistance
    • d)  examine/have examined witnesses against him, obtain attendance and examination of witnesses on his behalf
    • e) free interpreter
  2. Austin v UK 12
    • Austin and others v UK (2012):
    • kettling not violation of art. 5 ECHR, if containmenet measures limited in duration and extent and in interest of maintaining order and protecting public
  3. Castorina v Surrey 88
    • Castorina v Chief Constable of Surrey (1988)
    • reasonable cause to arrest: objective assessment of facts, not subjective belief (burglary of documents from company, former employee p questioned because former boss said docs could be useful for someone with grudge)
  4. Principles of Natural Justice
    • Integrity (no bias): Nemo iudex in causa sua
    • Participation (2 parties): Audi alteram partem
    • Openness: (implicit to both principles)
  5. Material Facts (Mr R)
    • Background:
    • - German court: allegation that Mr R and others committed offences of fraud in Germany
    • - Bow Street Magistrates' Court issued arrest warrant upon receiving request for extradition via Interpol from the German authorities

    • Search and Seizure:
    • - Metropolitan police officers arrested Mr R in the driveway of his house, a few yards from its front door.
    • - Mr R applied for judicial review in respect of the decision to search for and seize items.
  6. Ratio (Lord Hutton)
    • Common Law:
    • - power to seize articles that are reasonably believed to be material evidence in relation to the crime for which the warrant was issued 
    • - power ensures that what appears to be material evidence does not disappear after arrest and before police has the time to obtain a search warrant
    • - artificial to draw a distinction between a house and its ground
    • - References: 
    • 1) Dillon v O'Brien and Davis (1887): seize items in room, 
    • 2) Chic Fashions (West Wales) Ltd v Jones (1968): seize items other than those specified in warrant, 
    • 3) Ghani v Jones (1970): seize items in house, 
    • 4) R v Governor of Pentonville Prison, ex p Osman (1990): no difference between domestic and extradition offence

    • Art. 8 ECHR:
    • - legitimate aim: prevent crime
    • - necessary: prevent disappearance of material evidence
    • - proportionate: safeguards: 1) only search/seize if warrant issued in respect to an extradition crime, 2) evidence placed before magistrate/justice of peace would justify the issue of a warrant accused of a similar domestic offense
  7. Lord Earlsferry
    PACE did not extinguish common law powers for extradition offences. PACE available for domestic, common law for extradition.
  8. Lord Hope of Craighead
    • -Search and Seizure under PACE do not apply to extradition offenses
    • - search warrant: Secretary of State received a request from overseas court/tribunal/authority under Criminal Justice (International Co-Operation) Act 1990 or Theft Act 1968 allegation: stolen goods

    • - The Sunday Times v UK (1979) and R v Shayler (2002) conditions for principles of legality:
    • 1) No settled legal basis in domestic law
    • 2) Accessibility and Precision of Law/Rule
    • 3) Arbitrariness: no adequate safeguards as no prior review by judicial officer
  9. Re S (2002)
    when a judge interprets a meaning departing substantially from fundamental feature of Act: crosses boundary between interpretation and amendment
  10. Practice
    interpretation of rules within the institutional context of the law
  11. Hirst v UK (No2) (2005)
    ECtHR: blanket ban on prisoners voting in breach of ECHR
  12. Jackson v A-G (2005)
    inappropriate for house in its judicial capacity to elaborate political criticisms of the executives. judges created the principle of parliamentary supremacy.
  13. A v Secretary of State for the Home department (2005)
    declaration of incompatability due to discriminatory provisions in the ACTSA 2011
  14. A v Secretary of State (No 2) (2005)
    • The Secretary of State may use evidence obtained via torture, but bodies sitting in judicial capacity may not, as torture evidence is
    • - unreliable
    • - unfair
    • - offensive to ordinary standards of humanity and decency
    • - incompatible with principles of administrating justice
  15. Practice Statement (1966)
    precedent: certainty, basis for development of legal rules - however too rigid adherence may lead to injustice in a particular case and unduly restrict the proper development of law
  16. Young v Bristol Aeroplane Co (1944)
    1) CA decides which of two conflicting own precedent decisions to follow, 2) refuse to follow a own decision if it does not stand with a HL decision, 3) not bound to follow per incuriam decision.
  17. R v Horncastle (2009)
    evidence by victim who died before trial and evidence by victim who absconded before trial because of fear of safety. Supreme Court departed from the ECtHR's "sole or decisive rule" of Al-Khawaja&Tahery v UK (2009)
  18. Manchester City Council v Pinnock and Others (2010)
    SC follows ECtHR: where a court is asked to make an order for possession of a person's home at the suit of a local authority, the court  must have the power to assess the proportionality of making the order, and  in making that assessment, to resolve any relevant dispute of fact (this overrules previous HL decisions).
  19. Othman (Abu Qatada) v UK (2012)
    torture evidence may be used against Qatada in a trail in Jordan, hence deportation is in breach of the ECHR s.3
  20. McIntosh v H Advocate (2001)
    More important to protect innocent people from persecution than to convict individual criminals - presumption of innocence ensures integrity
  21. Institutional racism
    Report into Stephen Lawrence's murder: collective failure of organization to provide appropriate+professional service - conscious prejudice+ignorance
  22. R v Mirza (2004)
    court generally does not investigate or receive evidence about jury's deliberations in the retiring room
  23. Sanders v UK (2001)
    indirect admission that racist remarks had been made, conspiracy to defraud
  24. Gregory v UK (1997)
    jury showing racial undertones. one member to be excused. The judge directed the jury to base verdict on facts, robbery
  25. Jury - Pros and Cons
    • Pros:
    • - community standards
    • - moderate effects of harsh laws
    • - protection against incompetent judges

    • Cons:
    • - ineffective
    • - irrational
    • - cause delay
  26. Criminal Justice Act 2003
    • s.43 serious or complex fraud
    • s.44 danger of jury tampering
  27. JSM v R (2010)
    KS v R (2010)
    juryless trial last resort
  28. Simonovic
    • Countering Terrorism is a Human Rights Objective: the protection of the right to life
    • human rights violations increase radicalization and extreme violence
  29. Evidence
    • Confession evidence PACE s.76
    • Inadmissable evidence PACE s.78
  30. Schorsch Meier GmbH v Hennin (1975)
    Denning awarded damages in a foreign currency, even though Re United Railways of Havana and Regia Warehouses Ltd (1961) case of the HL said damages could only be awarded in sterling
  31. Miliangos v George Frank (Textiles) Ltd (1976)
    HL stated that CA could not overrule HL precedents
  32. Davis v Johnson (1979)
    Denning overruled B v B (1978) and Canttliff v Jenkins (1978) of CA, permitting the ousting of a male joint tenant who had beate his wife - HL upheld his decision, but stated that the Young v Bristol Aeroplane Limited (1944) were only permitted exceptions to stare decisis
  33. Ambrose v Harris (2011)
    since the ECtHR did not say with sufficient clarity that suspect without access to lawyer during questioning was irretrievably prejudiced by admitting such answers as evidence, the fact of missing legal access should be taken into account by judge, but not unlawful
  34. R (Limbuela) v Home (2005)
    Refusal of support for late-applicant asylum seekers violated s.3ECHR: lawful policy objectives, unless consequences for individuals reached high degree of severity
  35. EM (Lebanon) v SSHD (2008)
    absence of guidance from Strasbourg on the flagrancy test, add test of compelling humanitarian grounds
  36. G (Adoption: Unmarried Couple) (2008)
    unmarried couple in Northern Ireland may adopt (art. 8 ECHR)
  37. R v Shivpuri (1986)
    Offence which is impossible to commit amounts to conviction of an attempt (harmless powder instead of heroin smuggled) - Using Practice Statement 1966 to overturn Anderton v Ryan (1985)
  38. Ryan v Anderton (1985)
    thought she bought a stolen video recorder, but video recorder wasn't stolen - not subject to Criminal Attempts Act 1981
  39. DPP for NI v Lynch (1975)
    duress available to participant of murder who does not kill
  40. R v Howe (1987)
    duress not available for murder (overruling DPP for NI v Lynch (1975)
  41. R v Clegg (1995)
    limits of judicial law-making: manslaughter would have been better, but up to parliament
  42. Lord Bingham: Ullah
    • MS (Parliament) can provide more generous provisions than ECHR, not courts
    • courts: mirror principle: keep up with Strasbourg
  43. Connor v UK (2004)
    ordinary rules of precedent apply in the UK
  44. Kay v Lambeth London Borough Council/Leeds City Council v Price (2006)
    whether a court which would ordinarily be bound to follow the decisions of another court higher in the domestic curial hierarchy is, or should be, no longer bound to follow that decision if it appears to be inconsistent with a later ruling of the court in Strasbourg.
  45. Ghaidan v Godin-Mendoza (2004)
    ‘living with the original tenant as his or her wife or husband’ = same-sex
  46. Judges functions
    • Dispute Settlement
    • Case Management
    • Training
    • Extra-judicial activities (staffing etc.)
    • Judicial Review
  47. Dispute Settlement
    • Civil:
    • Procedure
    • Facts
    • Applying Laws to Facts
    • Decision
    • Writing Judgment (reasons)
    • Costs

    • Criminal:
    • law+procedure
    • costs+sentencing
  48. Fiss
    Adjudication is the social process by which judges give meaning to our public values.

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