At the heart of any legal system is the criminal justice system and is paramount that system is fair in order to be effective. This is ensured through a fair trial, without which, the whole system would be illegitimate. We only have to look to the political ?show trials' of the Nazi and Stalinist regimes and the trial of King Louis XVI of France by the revolutionary regime to see just how important this is. The essence of this was succinctly stated by Lord Carswell in R v Davis? "Ensuring fairness is a fundamental obligation of judges presiding in criminal trials, as the means of achieving their ultimate objective of achieving justice." When we speak of the "criminal justice system" we speak of criminal processes- The process whereby an individual accused of a crime is brought to justice. If the process is fair, the trial is fair. A landmark in European criminal process was the French Code d'instruction criminelle, promulgated by the Emperor Napoleon in 1808. It was the first detailed legal document containing all the elements of criminal procedure and laid the foundations for criminal procedure as we see it today in France and, the majority of European jurisdictions. This procedure, and generally all other criminal justice systems will have the following main elements as set out in Code d'instruction criminelle: the police, arrest, the prosecution and the role of the judge and the jury. It is to these elements we look to, when determining whether a fair trial exists.
[...] Secondly, the burden of proof in insanity cases. In insanity cases the burden of proof is reversed and it falls to the defendant to prove their innocence rather than the Crown prove their guilt, the very fact that the defendant has to prove his innocence flies in the face of the presumption of innocence—if innocence has to be proven it is not presumed, the very fact that the Crown prove guilt is that innocence is presumed to exist—this is clearly contrary to the general rule as set out in Woolmington and enshrined in article so it is inconsistent with article but would also be against the general principle even in the absence of article 6(2). [...]
[...] The Criminal Evidence (Witness Anonymity) Act 2008 received the Royal Assent on 21st July 2008, s.1(2) abolished the common law rules (i.e. the effect of Davis) and s.2 gives a court power to make a ‘witness anonymity order'. The right to a fair trial was secured in the Act, s.4 enacts that before making an order, the judge must be satisfied that the order would be consistent with the defendant receiving a fair trial—the legislation strikes a balance between the concerns of witness intimidation and the right to a fair trial, therefore the current statutory framework would be consistent with article which seems strange given that article was initially influenced by the old English common law position. [...]
[...] My thanks to a very good friend who provided the translation A Treatise of the Pleas of the Crown, William Hawkins vol. II, p.554 A 237-B (1992) EHRR 135, ECtHR. Human Rights Act 1998, Sch Pt Art. (1720) Prec. Ch. 531- ER 238 House of Commons Hansard, vol. [...]
[...] Therefore, on the basis of the above three features and the conclusions drawn thereto, we would conclude that the criminal justice system is consistent with article 6 of the European Convention on Human Rights to the extent of compliance with that article in the shape of, and under the auspices of, Strasbourg jurisprudence and domestic legislation. Bibliography Statutes 1. (Magna Carta) (1297) 1297 c Edw.1 c Statute the Fifth (1351) 1351 c Edw Stat Justices of the Peace Act 1361 c Edw Prisoner's Counsel Act Human Rights Act Criminal Evidence (Witness Anonymity) Act 2008 Cases: Jurisdiction of England & Wales 1. [...]
[...] So, we have seen the development of the criminal process in England and In France and the Continent, the processes which aim to be fair and thereby secure a fair trial. We have already spoken of the Nazi and Stalinist regimes—it was the actions of these such regimes which lead to the signing of the European Convention on Human Rights in 1950 to guard against such abuses ever taking place again—this formulated already well established principles on the fairness of the criminal process into international law and when it when the ECHR rights were made legally enforceable by the Human Rights Act 1998, it changed the face of English criminal procedure substantially. [...]
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