A Commission under Scrutiny

2019 ◽  
pp. 12-27 ◽  
Author(s):  
Carolyn Hoyle ◽  
Mai Sato
Keyword(s):  
Wrongful Conviction ◽  
Criminal Cases ◽  
Real Possibility ◽  
The Real ◽  
Court Of Appeal ◽  
Proper Balance

This chapter examines the nature of criticisms about the Criminal Cases Review Commission, especially with regards to its application of the ‘real possibility test’ in investigating and referring potential wrongful conviction cases. It begins with a discussion of the Commission's structural failings as perceived by critics external to the institution, with particular emphasis on the argument that focusing on safety and the real possibility test prevents the Commission from referring cases to the Court of Appeal in the interests of ‘justice’, or ‘innocence’. Critics also claim that the Commission does not strike a proper balance between thoroughness and efficiency in the allocation of its finite resources; that it is inconsistent in its response; and that it sometimes does not communicate adequately with applicants and their legal representatives. The chapter concludes with an overview of the book's key research goals as well as the methods employed to realise them.

Last Chance for Justice

2019 ◽  
pp. 308-338
Author(s):  
Carolyn Hoyle ◽  
Mai Sato
Keyword(s):  
Decision Making ◽  
Forensic Science ◽  
Referral Rate ◽  
Access To Justice ◽  
Legal Aid ◽  
Criminal Cases ◽  
Real Possibility ◽  
The Real ◽  
Court Of Appeal ◽  
Science Evidence

This concluding chapter summarises the book's key findings and examines the main cultural and structural influences on the Criminal Cases Review Commission's decision-making. It begins with a discussion of three significant changes to the Commission's ‘surround’: reductions in legal aid for defendants and appellants; growing evidence of non-disclosure of potentially exculpatory evidence by police and prosecution; and the declining reliability of forensic science evidence. The chapter then considers the critics' claim that the Commission's referral rate is too low and how this raises concerns about access to justice, along with developments in the surround in relation to the ‘field’ and the ‘frame’. It also analyses variability in the Commission's response to cases and its relationship with various ‘stakeholders’. Finally, it looks at the notion that the Commission is too ‘deferential’ to the Court of Appeal when it comes to making decisions about which cases meet the ‘real possibility test’.

Making Sense of Decision-making

2019 ◽  
pp. 28-46
Author(s):  
Carolyn Hoyle ◽  
Mai Sato
Keyword(s):  
Decision Making ◽  
Legal Analysis ◽  
Criminal Cases ◽  
Real Possibility ◽  
Making Sense ◽  
Legal Decision Making ◽  
Legal Literature ◽  
Key Features ◽  
New Evidence ◽  
Court Of Appeal

This chapter examines decision-making and the use of discretion within the Criminal Cases Review Commission using socio-legal analysis, with particular emphasis on the application of the real possibility test at screening, investigation, and referral back to the Court of Appeal. It also describes the theoretical framework used in the review of the Commission's discretion and decision-making. The chapter begins with a discussion of how the Commission decides whether there is new evidence and whether that evidence gives rise to a real possibility that the Court of Appeal will find the conviction to be unsafe. It then considers the legal and socio-legal literature on discretion, highlighting the key features of discretionary behaviour and how it is facilitated and constrained in practice. Finally, it explores three concepts proposed by Keith Hawkins in the context of legal decision-making: ‘surround’, ‘field’, and ‘frame’.

PEMBENAHAN TERHADAP LEMBAGA PEMASYARAKATAN DAPAT MENIADAKAN OPSI HUKUMAN MATI BAGI NARAPIDANA DI INDONESIA (THE IMPROVEMENT OF QUALITY OF PENITENTIARY CAN ELIMINATE THE DEATH PENALTY OPTIONS OF CONVICTED CRIMINALS IN INDONESIA)

2020 ◽  
Vol 10 (2) ◽  
pp. 175
Author(s):  
Nomensen Freddy Siahaan
Keyword(s):  
Death Penalty ◽  
Deterrent Effect ◽  
Criminal Cases ◽  
Psychological Burden ◽  
The Real ◽  
The Public ◽  
Good Citizen ◽  
The People ◽  
Long Time

After a long time was not heard to the public area, lately death penalty toward the criminal cases that classified as extraordinary crime are appear. The author discovers electronic article about the execution of the death penalty which is the prosecutor prepares to execute death penalty toward the drugs dealer. The president of Republic of Indonesia stated that it is necessary to give a deterrent effect to the convicted  criminal and keep the morality of Indonesian teenagers. According to my opinion, the author argues that it will be better and wiser if we discuss about renovating all of the Penitentiary in Indonesia than debating whether death penalty could be done in Indonesia or not, because it will be displeasure many parties, death penalty infringed the human rights of the convicted criminals and cause psychological burden to them, families, the executor of the death penalty, and other parties. Because if we have to improve the quality of the Penitentiary, if the function of Penitentiary for fostering moralily has been optimal or properly enough to the convicted criminals, Indonesia will be no longer need the death penalty option as sanction to the convicted crimanals including for the extraordinary crime (especially for drugs trafficking in our country). Penitentiary is one of the public services which aims for fostering the people that initially have bad habits (commited to the crime), so that they will have the awareness to change their bad attitude into the be better ones, will not harm others, and positively contributed to the society. Already Penitentiary’s conditions should be designed in such a way and as good as possible, so that the inmates feels like at their own home (like having a second home after his own home), and feel humaner to spend their days in the Penitentiary. The author believes that if the Penitentiary has been improved and optimized its function well, then the real purpose of Penitentiary will definitely achieved. As stated in Law Number 12 Year 1995 regarding to Penitentiary Article 2 which states "sanction system are organized in order to fostering the convicted criminals in order to be the real man, aware of their fault, improve themselves, and not to repeat the criminal act so that they can be friendly received by the community, can actively participated in the development of our country, and can socialize themselves as good citizen."Article 3 on this regulation also intensifies the function of Penitentiary "the function of Penitentiary is to prepare convicted criminals to be able to properly integrated to the society, so they can be accepted again as members of the public who are free and responsible ones." 

The Caribbean Court of Justice

2018 ◽  
Author(s):  
Salvatore Caserta ◽  
Mikael Rask Madsen
Keyword(s):  
Privy Council ◽  
Criminal Cases ◽  
Community Law ◽  
Caribbean Community ◽  
Court Of Justice ◽  
Sociopolitical Context ◽  
The Caribbean ◽  
Caribbean Court Of Justice ◽  
Criminal Matters ◽  
Court Of Appeal

This chapter analyzes the Caribbean Court of Justice (CCJ), the creation of which was regarded as the culmination of the Caribbean’s long and protracted process toward independence from its former colonizers. Formally, the CCJ was instantaneously empowered to hear cases involving Caribbean Community law (Community law). The CCJ was also empowered to replace the Judicial Committee of the Privy Council (JCPC) in London—a last court of appeal for civil and criminal cases from the Caribbean and the most visible remnant of the British Empire’s former rule. The CCJ’s unique double jurisdiction—original over Community law and appellate over other civil and criminal matters—underscores the complex sociopolitical context and transformation of which it is a part. Ultimately, the CCJ’s growing authority has increasingly made the Court the institutional intersection for the convergence of these two different paths toward establishing the Caribbean as a legally integrated regional unity.

The case of ‘losses in any event’: a question of duty, cause or damages?

Legal Studies ◽  
2010 ◽  
Vol 30 (4) ◽  
pp. 558-585
Author(s):  
Mark Stiggelbout
Keyword(s):  
Economic Loss ◽  
Duty Of Care ◽  
Private Law ◽  
General Argument ◽  
The Real ◽  
Pure Economic Loss ◽  
Court Of Appeal ◽  
Careful Comparison

This paper considers the relevance of a finding that, even absent the defendant's unlawfulness, the private law claimant would have suffered the losses claimed. It provides a principled framework for considering the issues raised by such a finding of ‘losses in any event’, arguing that it should be distinguished both from causation of injury and from the scope of the defendant's duty of care, and that it should be treated as raising a question of damages. It highlights the need, particularly in pure economic loss cases, for a careful comparison of the real and the hypothetical losses so as to determine whether the latter would indeed have been losses in any event. In this regard, the decision of the Court of Appeal in Calvert v William Hill Credit Ltd is subjected to close scrutiny. A more general argument advanced is that tort and contract both do and should adopt similar approaches in this field.

The Nature of Applications to the Commission

2019 ◽  
pp. 68-84
Author(s):  
Carolyn Hoyle ◽  
Mai Sato
Keyword(s):  
Expert Testimony ◽  
Human Error ◽  
Due Process ◽  
Wrongful Conviction ◽  
Expert Evidence ◽  
Criminal Cases ◽  
Wrongful Convictions ◽  
Extant Literature ◽  
The Past ◽  
Process Failures

This chapter examines the nature of applications for wrongful convictions that the Criminal Cases Review Commission receives and the kinds of issues raised by applicants. It highlights the potential flaws of applications presented to the Commission, such as those relating to investigations conducted by police and prosecutors. It also reviews the extant literature on the sources of wrongful conviction to explain the range of possible misconduct and legal, scientific, or human error that might lead to an applicant being wrongfully convicted, or to believing themselves to be so. A number of sex cases and ‘expert evidence’ cases are discussed to illustrate the fallibility of witnesses, vulnerable suspects, the fallibility of science and expert testimony, due process failures, and the pervasive influence of prejudice and fear. The chapter concludes with some reflections on the changing nature of wrongful convictions over the past decade or two.

The First Amendment During the Trump Era and Beyond

2021 ◽  
pp. 185-232
Author(s):  
Carlos A. Ball
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Hate Speech ◽  
Vulnerable Groups ◽  
Government Officials ◽  
Free Press ◽  
Religious Minorities ◽  
Real Possibility ◽  
The Real ◽  
Repeated Use

This chapter explores the ways in which some progressives, in the years leading up to Trump’s election, had grown skeptical of expansive First Amendment protections, viewing them as impediments to the pursuit of equality objectives. Although some of that skepticism is understandable, the chapter details the multiple ways in which free speech and free press protections helped curtail some of Trump’s autocratic policies and practices. In doing so, the chapter argues that progressives, going forward, should not allow what it calls “First Amendment skepticism” to grow to the point that it undermines the amendment’s ability to shield democratic processes, dissenters, and vulnerable groups from future autocratic government officials in the Trump mold. The chapter ends with an exploration of future hate speech regulations. While it would be understandable for progressives, after Trump’s repeated use of hate speech, to call for greater regulations of such speech, the chapter urges progressives to be cautious in this area because of the real possibility that the regulations will be used by future government officials in the Trump mold to target and discriminate against both progressive viewpoints and racial and religious minorities.

scholarly journals The Queen v Getachew: Rethinking DPP v Morgan

2013 ◽  
Vol 77 (2) ◽  
pp. 151-162
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Mental State ◽  
Mental States ◽  
Mens Rea ◽  
High Court ◽  
Real Possibility ◽  
Fine Line ◽  
House Of Lords ◽  
High Court Of Australia ◽  
Court Of Appeal

In The Queen v Getachew, a recent decision of the High Court of Australia that was soon followed by the Victorian Court of Appeal, the High Court correctly noted that there is a fine line between the mens reas of belief and knowledge which turns upon the degree of conviction with which a belief is held. In particular, the court emphasised that a belief in the existence of a fact or circumstance that contemplates a real possibility or perhaps a higher degree of doubt as to the existence of that fact or circumstance is tantamount to knowledge or awareness that such fact or circumstance may not exist. When applied to the principle enunciated in DPP v Morgan, that type of belief would not be mutually exclusive with the alternative mens reas that require the Crown to prove that the accused was aware that the complainant was not or might not be consenting to the penetration at issue. In Getachew, the High Court merely pointed out that the mens reas of knowledge and belief, though similar in certain respects, are separate and distinct mental states that were incorrectly and inexplicably treated as though they were identical in Morgan and innumerable decisions that have followed and relied upon Morgan since it was decided by the House of Lords in 1976. In the aftermath of Getachew, therefore, the principle that an accused can act with a mental state that is mutually exclusive of the mens rea for rape remains intact. What has changed is that it is knowledge, rather than a mere belief that the complainant is not or might not be consenting, that is mutually exclusive of the requisite mens rea for rape.

scholarly journals Modern considerations when approaching fractured endodontic instruments - Part 2: A review of the literature and clinical techniques

2020 ◽  
Vol 75 (10) ◽  
pp. 564-574
Author(s):  
Peet J Van der Vyver ◽  
Martin Vorster ◽  
Casper H Jonker
Keyword(s):  
Root Canal ◽  
Root Canal Treatment ◽  
Review Of The Literature ◽  
Real Possibility ◽  
The Real ◽  
Treatment Complications ◽  
Different Levels ◽  
Instrument Separation

Once root canal treatment is considered, the treating clinicians must be aware of the real possibility that complications and unforeseen accidents can occur during any stage of the treatment. Complications and accidents may include instrument separation, root perforation on different levels and ledge formation.

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