To what extent is the criminal justice system consistent with article 6 of the European convention on human rights?

Nicolas J.

Order the writing of a tailor-made European law Term papers

Free quote online

Thesis Format .doc

To what extent is the criminal justice system consistent with article 6 of the European convention on human rights?

Download

Read an extract

Reader
Abstract
Contents
Extract

Abstract

At the heart of any legal system is the criminal justice system and it is a paramount that the 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...”

Introduction
Criminal process and criminal justice system
The code d'instruction criminelle
The criminal justice system in England
Fairness in criminal process
Development of criminal process in England and France
Article 6 of the ECHR
1. Presumption of innocence
2. The right to legal assistance to defend oneself
3. The right to examine or have witnesses examined
Conclusion
Bibliography

Get this table of contents for free after login.

Extract

[...] This is, however, inconsistent with the right to a fair trial, but if this were to occur in the criminal justice system it would not be incompatible with article due to the Strasbourg jurisprudence and the “interests of justice”—it is interesting how article 6 can be inherently paradoxical and how even the right to a fair trial can be waived, but is the right to a fair trial not inherent in justice? How can one have justice without a fair trial? [...]

[...] His Lordship ultimately stated— conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses. The reason is that such a conviction results from a trial which cannot be regarded as fair. This is the view traditionally taken by the common law of England.” [emphasis added] So, the view of the common law was that allowing anonymous witnesses ran contrary to the right of the defendant to have a fair trial; this also appeared to be the Strasbourg position. [...]

[...] We will discuss these topics in order to ascertain to what extent the criminal justice system is consistent with article 6 of the ECHR Presumption of Innocence The presumption of innocence can be found in article of ECHR, which states— “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to This is, however, a statement of an already well founded legal principle centered on the maxim—in dubio pro reo—which translates as ‘when in doubt in favor of the accused'. [...]

[...] 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. Duke of Dorset v Girdler (1720) Prec. Ch. 531- ER Woolmington v DPP [1935] AC R v Davis [2008] UKHL 36 Cases: European Court of [...]

[...] This judgement is difficult to reconcile with given that there is a clear presumption of guilt, however this authority from Strasbourg may ensure that the two issues above in respect of English law would, indeed, be compliant with article The right to legal assistance to defend oneself The right to legal assistance to defend oneself can be found in article of ECHR, which states— “Everyone charged with a criminal offence has the following minimum rights: . to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; . [...]

doc