English criminal procedure and the human rights act 1998

Israel Law Review

Volumn 33, Issue 3, 1999, Pages 664-677

  Spencer, J R ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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[No Author keywords available]

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EID: 84920565939     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700016101     Document Type: Article

References (47)

1. Funke v. France (1993) 16 EHRR 297
2. Murray v. UK (1996) 22 EHRR 29
3. Saunders v UK (1997) 23 EHRR 313.
4. [1996] 1 CrAppR 463.
5. Saunders v. UK, CrAppR.
6. One case that provoked particularly strong reactions was the decision in McCann & Others v. UK (1996) 21 EHRR 97, where (by a narrow majority) the Strasbourg Court declared that when the S.A.S. shot dead of group of suspected terrorists who were wrongly thought to be armed and on the point of detonating a car-bomb in Gibraltar, the United Kingdom had contravened art. 2 of the Convention (the right to life).
7. See the White Paper, “Human Rights Brought Home: The Human Rights Bill”, CM 3782 (1997).
8. (1978) 2 EHRR 25.
9. Police and Criminal Evidence Act, 1984.
10. Police and Criminal Evidence Act, 1984 secs. 76 (2) and 76 (8).
11. [1979] Ch.D 344.
12. Malone v. United Kingdom (1984) 7 EHRR 14.
13. Police Act, 1997, Part III.
14. Khan [1997] AC 558.
15. See generally Arlidge, Eady and Smith, Contempt of Court (Sweet & Maxwell, 2nd ed., 1999).
16. Sunday Times v. UK (1979) 2 EHRR 245.
17. Contempt of Court Act, 1981, sec. 5.
18. See for example AG v. Unger [1998] 1 Cr App R 308 (where a newspaper published details of the accused's confession).
19. Youth Justice and Criminal Evidence Act, 1999, Schedule III.
20. Criminal Justice and Public Order Act, 1994, secs. 34–37.
21. Murray v. UK (1996) 22 EHRR 29. As a result of the decision, however, Parliament has had to amend the legislation to preclude adverse inferences being drawn against suspects who refuse to speak to the police until they have had legal advice: Youth Justice and Criminal Evidence Act, 1999, sec. 58.
22. So held in a long series of cases, including Unterpertinger v. Austria (1991) 13 EHRR 175
23. Kostouski v. Netherlands (1990) 12 EHRR 434
24. Delta v. France (1993) 16 EHRR 574.
25. Criminal Justice Act, 1988, secs. 23–28
26. Criminal Procedure and Investigations Act, 1996, sec. 68 and Schedule 2
27. on the latter, see R.J.C. Munday, “The Drafting Smokescreen”, (1997) 147 New L.J. 792 and 860.
28. See more generally J.R. Spencer, “Orality and the Evidence of Absent Witnesses”, [1994] Crim. L.R. 628.
29. Thomas and Flannagan [1998] Crim. L.R. 887.
30. At the time of writing, the case of Venables and Thompson v. UK is pending at Strasbourg, in which two young boys who were convicted of murdering a toddler claim they were denied a fair trial because the proceedings took place in an adult court — as they always do in England at present when juveniles are accused of homicide See [1999] Crim. L.R. 579. If the UK is condemned, this decision will probably result in certain changes to the way in which the trials of some young offenders are conducted.
31. Xv. UK (1981) 4 EHRR 188
32. Wilson, Thynne and Gunnell v. UK (1991) 13 EHRR 666
33. Wynne V. UK (1994) 19 EHRR 333
34. Hussain and Singh v. UK (1996) 22 EHRR 1.
35. In outline, various forms of special tribunal now have the last word about the release from all kinds of indeterminate detention except for ‘mandatory life sentences’ — ones which the court is obliged by law to impose. See further Lord Windlesham, “Life Sentences: Law, Practice and Release Decisions, 1989–93”, [1993] Crim. L.R., at 644 and chapters 7 and 8 of vol. 2 of the same author's Responses to Crime (OUP 1993).
36. Andrew Ashworth, Sentencing and Criminal Justice (London, Butterworths, 2nd ed., 1995) 136 et seq.
37. Andrew Ashworth, The Criminal Process — An Evaluative Study (Oxford, OUP, 1994) 275–284.
38. C.G.B. Nicholson, Sentencing Law and Practice in Scotland (Sweet & Maxwell, 2nd ed., 1992) 9.35.
39. Theoretically, it is open to the judge to ask the jury for a special verdict in the form of answers to a list of specific questions — on the hasis of which the judge then decides whether the defendant is guilty or not. In practice, however, this is never done: see Archbold, Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell, 1999) 4–467.
40. See, for example, the dicta in the case of Thompson (1962) 46 CrAppR 72.
41. Contempt of Court Act, 1981, sec. 8; the maximum penalty is 2 years' imprisonment and an unlimited fine.
42. P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague, Kluwer, 3rd ed., 1998) 437–438.
43. D.J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (1995) 215.
44. Archbold, Law of the European Convention on Human Rights, at 4–54,4–73.
45. See J.H. Langbein, Torture and the Law of Proof (University of Chicago Press, 1977)
46. J.H. Langbein, The Criminal Trial Before the Lawyers”, (1978) 45 Univ. Chicago L.R. 263.
47. J.H. Langbein, “Torture and Plea Bargaining”, (1978) 46 Univ. Chicago L.R. 3.