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Chapter

Cover Cassese's International Criminal Law

18. The Adoption of the essential features of the adversarial system  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter begins with a comparison of the inquisitorial and adversarial systems of criminal procedure. It then discusses trial proceedings; appellate proceedings; and the adoption of the adversarial model at the international level.

Chapter

Cover International Criminal Law

5. Investigations, prosecutions, evidence, and procedure  

This chapter deals with international criminal procedure, focusing on the International Criminal Court (ICC). It first introduces international criminal procedure and the various parties involved in the process (judges, prosecutors, suspects or accused persons, and witnesses and victims). It then examines the pre-trial phase of proceedings, including criminal investigation, the decision to prosecute, and the role of the document specifying the charges (called an ‘indictment’ by some courts and national systems). Next, the chapter provides an overview of the trial phase and examines the role of guilty pleas, evidence (and its pre-trial disclosure), and the conduct of trial proceedings.

Chapter

Cover The Modern Law of Evidence

23. Admissibility of previous verdicts  

This chapter examines the circumstances in which a verdict is admissible in subsequent proceedings as evidence of the facts on which it was based. It analyses the rule in Hollington v Hewthorn & Co Ltd, which has been widely criticized, that judgments are not admissible as evidence of the facts on which they are based. Its effect, in both civil and criminal proceedings, has been largely removed by the Civil Evidence Act 1968 and the Police and Criminal Evidence Act 1984, respectively. Concerning civil proceedings, consideration is given to previous convictions generally, previous convictions in defamation proceedings, previous findings of adultery and paternity, previous acquittals, and other previous findings. Concerning criminal proceedings, consideration is given to previous convictions of the accused, previous convictions of persons other than the accused, and previous acquittals.

Chapter

Cover Evidence Concentrate

10. Public interest immunity  

This chapter first explains exclusion of evidence on the grounds of the public interest immunity (PII) doctrine in relation to the public interest in non-disclosure of documents. The chapter examines areas of public interest that are covered by possible PII claims. These include national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies. The difference between PII and closed material procedures (CMPs) is outlined. The chapter, concentrating on civil cases, lists the landmarks in the evolution of the common law doctrine. It considers the extent which it has been influenced by the Strasbourg jurisprudence. Attention is given to the role of national security matters in the evolution of the law.

Chapter

Cover Evidence

10. Character Evidence  

Chapter 10 begins with a discussion of the relevance of evidence of character. It then deals with the admissibility of character evidence in civil and criminal proceedings. In civil cases, the admissibility of evidence of a party’s bad character is governed simply by the test of relevance. In criminal proceedings, the entitlement of a defendant to a direction on the significance of his or her good character is taken seriously. The Criminal Justice Act 2003 now provides a comprehensive statement of the law on evidence of bad character in criminal proceedings.

Chapter

Cover Complete Criminal Law

1. Introduction to the criminal justice system  

This chapter discusses the principles and structure of criminal law and evaluates the criminal justice system in the light of statistics and public perception and the context in which the criminal law operates. It begins with a discussion of the definition of crime and criminalisation and explains theories of criminal law, such as the harm principle, moralism, and feminism. Problem question technique and IRAC are discussed in this chapter. The burden and standard of proof in criminal proceedings and the classification of crimes and the courts are discussed. Finally, the chapter explores miscarriages of justice, punishment, and access to justice.

Chapter

Cover Cassese's International Criminal Law

17. Legal impediments to the exercise of criminal jurisdiction  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

This chapter discusses the obstacles that may hamper or jeopardize criminal proceedings for international crimes. These include rules granting amnesty for broad categories of crimes; statutes of limitation; the prohibition of double jeopardy (the principle of ne bis idem), whereby a person may not be brought to trial twice for the same offence; and international rules on personal immunities.

Chapter

Cover Cassese's International Criminal Law

21. Appeals and enforcement  

Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting

The right of defendants to appeal against conviction or sentence is normally regarded as a fundamental human right. At present this right is laid down in numerous international treaties on human rights, as well as in the Statutes of international courts. The notion and purpose of appellate proceedings vary in national systems. Subject to a number of specifications and exceptions, in civil law countries, that is countries of Romano-Germanic legal tradition, these proceedings amount largely to a retrial by a court of appeal. In contrast, in most common law countries appellate proceedings do not lead to a retrial. Appeals courts, which do not have any jury, do not review facts, but decide on the basis of the trial record. In international criminal proceedings neither the common law system nor the civil law model have been upheld. Rather, a mixed system has been accepted, which is discussed in this chapter.

Chapter

Cover International Criminal Law

6. Fair trial rights, appeals, and revision and enforcement of sentences  

There is no general law or uniform code of international criminal procedure. The International Criminal Court's procedure is still developing, and the ad hoc international criminal tribunals have their own procedural rules. However, defendants before any of the tribunals share certain fundamental fair trial rights. This chapter examines those rights and a defendant's right to appeal against their conviction or sentence. It first introduces general fair trial rights enjoyed by the defendant. It then examines in more detail the content of the right to a public, fair, and expeditious hearing. Next, it considers some of the issues concerning legality of arrest and detention, the right of appeal, and the revision and enforcement of sentences.

Chapter

Cover The Modern Law of Evidence

21. Public policy  

The public interest in efficient and fair trials may be seen as underlying the rules of disclosure in civil litigation, whereby a litigant is obliged to make pre-trial disclosure of the documents on which he relies and the documents that adversely affect his own case or adversely affect, or support, another party’s case, even though such documents may not be admissible evidence at the trial. There is also a public interest in enabling material to be withheld where its production would harm the nation or the public service. Where these two kinds of public interest clash and the latter prevails over the former, relevant and otherwise admissible evidence is excluded at trial. Such material is said to be withheld by reason of ‘public interest immunity’. This chapter discusses the development of the modern law on public interest immunity; the scope of exclusion on grounds of public policy; and related procedural issues in civil and criminal cases.

Chapter

Cover Evidence

11. Hearsay Evidence  

Chapter 11 discusses the law on hearsay evidence. It covers the admissibility of hearsay evidence in civil proceedings, now governed by the Civil Evidence Act 1995; other proceedings in which the hearsay rule is inapplicable; and the admissibility of hearsay evidence in criminal proceedings.

Chapter

Cover Jacobs, White, and Ovey: The European Convention on Human Rights

13. Aspects of the Criminal Process  

This chapter, which examines the provisions of the European Convention on Human Rights on fair trial specific to criminal proceedings found in paragraphs (2) and (3) of Article 6, explains the scope of Article 6(2) and (3), and discusses the principle of legality and the judgments made by the Strasbourg Court in several related cases. It also considers the rule against retrospective legislation in Article 7 of the Convention and a number of additional rights connected with the criminal process introduced by Articles 2 to 4 of Protocol 7. The Court considers the relationship between the Court and domestic jurisdictions in relation to Article 6, Article 7, and Articles 2 to 4 of Protocol 7.

Chapter

Cover Legal Ethics

10. Litigation  

This chapter explores the ethical issues that arise around litigation. It discusses theories of litigation, including disputes over whether litigation is ‘good’. The attitude that anything that helps a client to win in litigation is justified is rarely accepted these days, and there is a need for lawyers to weigh up their duties to the court and to their clients. The chapter covers the adversarial system of litigation in England and Wales, and inquisitorial adjudication. This can create tensions for lawyers between their duties to their clients and their duties the justice system and to the general public. The chapter also covers both criminal and civil litigation proceedings. In addition, the chapter considers advocacy services and the duties that litigators owe to the court.

Chapter

Cover Legal Ethics

9. Litigation  

This chapter explores the ethical issues that arise around litigation. It discusses theories of litigation, including disputes over whether litigation is ‘good’. The chapter covers the adversarial system of litigation in England and Wales, and inquisitorial adjudication. It also covers both criminal and civil litigation proceedings. In addition, the chapter considers advocacy services and the duties that litigators owe to the court.

Chapter

Cover The Modern Law of Evidence

22. Privilege  

This chapter discusses several well-established principles whereby relevant evidence is excluded because of extrinsic considerations which outweigh the value that the evidence would have at trial. Three types of privilege are considered: (i) the privilege against self-incrimination (including statutory withdrawal of the privilege, compatibility with Art 6 of the European Convention on Human Rights, the compulsory production of pre-existing documents and materials, and substituted protection); (ii) legal professional privilege, which enables a client to protect the confidentiality of (a) communications between him and his lawyer made for the purpose of obtaining and giving legal advice (known as ‘legal advice privilege’) and (b) communications between him or his lawyer and third parties for the dominant purpose of preparation for pending or contemplated litigation (known as ‘litigation privilege’); and (iii) ‘without prejudice’ privilege, which enables settlement negotiations to be conducted without fear of proposed concessions being used in evidence at trial as admissions.