Victims of Crime and Community Justice: Justice Rebalanced?

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The right to silence and the privilege against self incrimination are necessary adjuncts of the right to a fair hearing which is enshrined in article 6 of the European Convention on Human Rights. Indeed various pieces of national legislation throughout the European Union have been impugned as a breach of Article 6 on the basis that such laws abridge the right to silence and the privilege against self incrimination.

The European Court of Human Rights held that by attempting to compel him to produce incriminating evidence the state had infringed his right to remain silent, the right to a fair trial in a criminal case was held to include "the right of anyone charged with a criminal offence In Saunders the applicant, on pain of a criminal sanction, was required by law to answer questions put to him by the Department of Trade and Industry inspectors in Britain in the course of their investigations into the conduct of a company takeover. This information was then given to prosecuting authorities to be used in criminal proceedings subsequently brought against him.

The ECHR disagreed with the domestic ruling in Britain and held there to have been a breach of Article 6, the freedom from self incrimination was held to be 'an important element in safeguarding an accused from oppression and coercion during criminal proceeding' and noted that the freedom was closely linked with the presumption of innocence. What is interesting to note if one stands back from the development of the law in this area and considers the bigger picture, the focus is almost exclusively on the rights of the accused.

Of itself, there is absolutely nothing wrong in that of course. But where do the rights of victims stand in such cases? Surely we need to ask questions as to why the focus seems to be always on the rights of the accused almost to the point of exclusion of the victim's rights or indeed anybody else who might be adversely effected. Is this is desirable?

Surely at least it must prompt us to raise questions about what the justice system seeks to achieve. Consider now the rules of evidence that apply to character evidence.

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In very general terms, all relevant evidence is admissible but as with all rules there are exceptions. One of these exclusionary rules - excluding evidence of an accused's bad character - exists to prevent the jury being unduly influenced by evidence that may be highly prejudicial. At present evidence of the accused's bad character can generally only be introduced if its value or relevance is so high as to outweigh its prejudicial value. Even then, section 1 f i , ii and iii of the Criminal Justice Evidence Act , make provision whereby in certain circumstances an accused who testifies may be asked about his bad character.

Over the years, case law has developed and finely honed this legislation and has led to a complex set of rules and exceptions. In effect, in most cases the accused can choose to conceal the fact that he is of bad character or has serious previous convictions from the jury or the judge when it is in the great majority of cases the function of the jury or judge to assess his credibility as a witness.

Hearing the Victim: Adversarial Justice, Crime Victims and the State - CRC Press Book

Where an accused attacks the character of a prosecution witness, it is open to the prosecution to cross-examine the accused as to the accused's character or previous convictions if, but only if, the accused gives evidence. If the accused does not give evidence, the prosecution may not inform the jury or judge of the accused's bad character or convictions. But why should the fact that a person has been convicted of serious offences in the past be concealed from those who have to decide on the credibility of his evidence.

Where credibility is in issue, why is a central matter which can go the heart of that issue concealed from the jury? The presumption of innocence of the charge before the jury is one thing; but is presuming that all witnesses, including the accused, are equally credible, frankly speaking, a fiction too far in many cases? A defence witness other than the accused may be cross-examined as to character or previous convictions. But not the accused.

Why not? The classic defence of the present rule is that evidence of previous convictions would tend to prejudice the jury against the accused without proving the case. But, we must ask, does that argument hold water in this day and age where a jury is well capable of distinguishing between probative and prejudicial aspects of testimony, especially if properly directed on the law? We are obliged to uphold the presumption of innocence of the charge in criminal cases.

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This obligation arises under the constitution and is required by international law as well. But it is very arguable that we are not obliged to pretend against the facts that an accused person of very bad character is as credible as any other witness of blameless character.

Similarly in the United States, under the Federal Rules of Evidence, the admissibility of evidence in the United States is determined by its relevancy. The Rules go on to provide that all relevant evidence is admissible unless otherwise provided by the US Constitution, Act of Congress, by the Federal Rules themselves or by other rules prescribed by the Supreme Court pursuant to statutory authority.

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Rule deals with Character Evidence, and generally provides that evidence of a person's character or a trait thereof is not admissible for the purpose of proving action in conformity therewith on a particular occasion. Not unlike the manner in which our own law has developed, the Federal Rules of Evidence set out detailed parameters and exceptions around the operation of the principle The Exclusionary Rule. Earlier in the summer, at the Seventh National Prosecutors' Conference in Dublin Castle, major questions were posed about difficulties in the rules of evidence and in particular the exclusionary rule.

The net effect of this rule means that evidence obtained by invasion of the constitutional personal right of a citizen must be excluded unless a court is satisfied that either the act which constitutes the breach of constitutional rights was committed unintentionally or accidentally, or in the court's discretion, it is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence.

The justification for the rule is plain for all to see. However, if the effect of the rule leads to the unintended outcome of accused persons regularly getting away with crimes on a technicality, it is incumbent on all of us to examine where improvement may be brought about. The respect and regard for the criminal justice system and the rule of law must not blind or prevent us from change, when change is required.

I believe there are a number of other areas in relation to evidence and procedures that currently raise challenging questions and these areas would benefit from reflective consideration and examination. These include. Reopening new evidence - the basic principle underlying the Ne Bis In Idem or 'double jeopardy' rule is that a person may not be prosecuted, tried and convicted twice for the same offence. The concept of double jeopardy is one of the oldest in Western civilization. In B. The principle also survived the Dark Ages A.

The 'double jeopardy' rule is a cornerstone principle underlying very many national criminal justice systems.

It serves to not only give judicial protection to a person who has been subject to a prosecution but it also brings legal certainty to the law and thereby ensures respect for it. However, if in the application of that principle of the law a person is acquitted and new and compelling evidence emerges at some later date - such as new witnesses coming forward, DNA or fingerprint evidence - which had it been available at the outset would most likely have resulted in a guilty verdict, is it right that the acquitted person can then go around boasting that he or she has got away with some serious crime?

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    Tony Blair said yesterday that the clutch of bills to deal with crime and antisocial disorder at the heart of the Queen's Speech was designed to create a "victim justice system" rather than the present "criminal justice system" and aimed to tackle poor detection, conviction and reoffending rates. Criminal justice bill This promises to "rebalance the system in favour of victims, witnesses and communities and deliver justice for all, by building greater trust and credibility while protecting the rights of the innocent".

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