Charter of rights.....

tjsport

Hi there, I've been given this question about how the "charter of rights and freedoms has tipped the scales of justice too far in favor of the accused, undermining the efficacy of the criminal justice system".....the question also talks about different elements to consider, such as the role of criminal law and the role of police, the role of courts, and the need for individuals to have protection against opressive and unfair police powers and conduct

I"m simply just asking for other peoples opinions on this statement

thanks

tyler

Gobán Saor

I would take the angle that there needs to be a test of proportionality before evidence tainted with illegality is excluded. Of course the citizenry need protection against abuse of police powers and there is a battery of law regarding search, arrest, interrogation and confession which does just that. However, any evidence obtained in breach of any accused's rights is inadmissable, no matter how trivial and inconsequential the breach is. (The Brian Curtin case being a prominent example.) Some common law jurisdictions, eg Canada do have such a test and it seems obvious that it can produce more "just" results while still protecting the public against over-zealous or oppressive police conduct.

I also think that it is not unreasonable for evidence of previous convictions, with an appropriate warning from the judge, to be placed before a jury.

Thirdfox

Be sure to mention the current furore in England over the Human Rights Act 200(1?) - David Cameron gave a speech about how this piece of legislation hindered the fight against terrorism - he proposed drafting a Bill of Rights in its place (apparently he had considered, briefly, leaving the European Convention of Human Rights but decided that it was not good PR).

I was watching a Panorama programme about low rape convictions and it did boil down to do we want to lower the test for guilt so that more people are convicted and run the risk of imprisoning innocent people? How many innocents are we allowed to imprison in the name of finding all criminals? Currently we aim for none, hence some bad apples are set free but it could be a very slippery slope once we say 1% of prisoners are allowed to be actually innocent but held there in the interest of curtailing crime and for the greater good.

To conclude, once you start lowering standards of proof/admissibility etc. you will find that miscarriages of justice will take place more and more often (unless you abolish the idea of a miscarriage of justice of course!) I'm a firm believer of rights (and also personal responsibilites) but our system, flawed as it is, still has the distinction of saying that an innocent will go free.

The Curtain warrant was one day out of date, apparently not such an inconsequential breach (although the actual date of the start of the warrant cert. did not ever arise in court before so the Gardaí assumed they knew. Unfortunately they were found to have been wrong in their assumption.) But other small breaches in relation to warrants (house address wrong etc.) have been found to be admissible in court under our current system.