Ian Bailey case: Our civil liberties threatened

bonkey wrote: »

No, it doesn't open a pandora's box.

The line, once again, is clearly drawn at the start of litigation. The onus is on the prosecution to get their errors out of the way before they cross that line. Thus, before they cross that line, error is an absolutely justifiable reason to modify a position.

Once they cross that line, error is still a reason to modify a position, but that position can only be to drop charges that have been brought, accepting that they can never be brought again.

You're being disingenuous. We both understand and accept that a principle of double jeopardy comes into play at some point. We're only disagreeing at what point people can no longer use error as a reason for revising a position. Irregardless of where you draw that line, you allow this reason to be valid before that line is crossed. To suggest otherwise is to say that it is never acceptable to correct an error....a statement which would ultimately lead to travesties of justice.

That's not my latter case. My latter case is to review due to it becoming clear that new evidence has not emerged.

Think for a moment...what does defer mean?

Asjked the question "do we start prosecution", the answer of "let me defer" is nothing but a way of saying "no, but I may revise that in the future". By your (incorrect) definition of double jeopardy, deferring would be impossible. Once asked for a decision, the decision has to be made. Any decision not to prosecute is irreversible....thus, choosing not to prosecute now, but with the right to change that decision in the future (i.e. deferring) is exactly what you have said is unconscionable.


I don't come from Switzerland, any more than you came from the US or Australia while you were resident there.


The American interpretation of double jeopardy is in line with the concept you reject.

Ok so we are down to what should be the point of no return for the prosecution. IMO it should be the point where a decision is taken that the evidence does not merit prosecution. If the Gardai discover new evidence then we have a new case file.
I agree with some american ideas such as allowing an appeal on the grounds that the jury convicted against the weight of the evidence.

Going back to the original post. Who here is happy that they could be tried for an alleged offence committed in Ireland without the protections of common law.

dogbert27 wrote: »

THAT'S NOT THE ORIGINAL POST, AAAAAAAAAAAAAAARRRRGGGGHHHHH!!!!! :mad:

Right, I've followed your posts in a few threads and every time you are brought to task you go off on a tangent!

In this thread you endlessly argue double jeopardy without actually knowing what double jeopardy actually means and then you argue that it was your own definition of double jeopardy that you were discussing!

When are you going to accept that your point of view is actually wrong and that the EU isn't actually out to get you?

If bailey is shipped (and i think there must be a decent chance given the codology his lawyers are going to produce in the hearing next month) then he will be tried under french law without the protections of common law. This was my opening point more or less. If so we are all vulnerable.
I have conceded numerous times that my concept of double jeopardy is not shared by the supreme court but the spirit if not the legal letter is being breached if he is shipped.

Scofflaw wrote: »

Yes, but, you see, Irish grounds for trial are good, French grounds for trial are bad, because the Irish system is good, the French system is bad. The Irish system is good because it's Irish*, and the French system is bad because it's not Irish**.

As far as I can make out the reasoning***, anyway. Not in any sense xenophobic****, though.

amused,
Scofflaw


*|oh, alright, British, but that's not important
**|alright, British again, but it's still not important
***|the term is used very loosely
****|as defined by BetterLisbon's personal dictionary - xenophobia is unjustified fear of foreigners, whereas this is entirely justified distrust of foreigners and their funny so-called legal systems*****
*****|reference intentional

Well we can see who has lost the argument by who has to resort to ridicule and cheap personalised attacks rather than address the points.

P. Breathnach wrote: »

It is not for participants in an argument to decide the winner. As you claim to believe in the application of legal principles, I remind you of another: nemo iudex in causa sua.

Resorting to argumentum ad hominem is essentially the admission of defeat.

View wrote: »

There is no such principle. It does not exist. How hard is that to understand?



Count me as one (although I would prefer not to face serious charges under any legal system!)

Given that:
a) The Civil law countries seem to operate legal systems quite safely, and,

b) These legal systems are - like our the common law systems - subject to the common rulings of the ECHR,

There is little reason to believe that the verdict in a court case is likely to be substantially different from legal system to legal system - I have yet to see evidence that proves you are more likely to be convicted in one system than the other. Or indeed more likely to be acquitted.

Lastly, do I really need to point out the serious miscarriages of justice that have taken place on occasion under the common law system?

But the fact remains defendants have less protection under the civil code than under common law. If i were falsely accused of a crime i know what legal system i would prefer to be tried under.
I do concede that there have been bad miscarridges of justice under common law. The birmingham 6 and guildford 4 immediatly spring to mind. That is why i like the american idea of an appeal on the grounds that the jury convicted against the weight of the evidence.

prinz wrote: »

Could you provide examples?

This wikipedia summarises common law quite well. These protections would be absent if you were tried in France.
http://en.wikipedia.org/wiki/Common_law

This bit is quite succinct.
"Adversarial system vs. inquisitorial system
Common law courts tend to use an adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law systems, inquisitorial system proceedings, where an examining magistrate serves two roles by developing the evidence and arguments for one and the other side during the investigation phase.
The examining magistrate then presents the dossier detailing his or her findings to the president of the bench that will adjudicate on the case where it has been decided that a trial shall be conducted. Therefore the president of the bench's view of the case is not neutral and may be biaised while conducting the trial after the reading of the dossier. Unlike the common law proceedings, the president of the bench in the inquisitorial system is not merely an umpire and is entitled to directly interview the witnesses or express comments during the trial, as long as he or she does not express his or her view on the guilt of the accused.
The proceeding in the inquisitorial system is essentially by writing. Most of the witnesses would have given evidence in the investigation phase and such evidence will be contained in the dossier under the form of police reports. In the same way, the accused would have already put his or her case at the investigation phase but he or she will be free to change his evidence at trial. Whether the accused pleads guilty or not, a trial will be conducted. Unlike the adversarial system, the conviction and sentence to served (if any) will be released by the trial jury together with the president of the trial bench, following their common deliberation.
There are many exceptions in both directions. For example, most proceedings before U.S. federal and state agencies are inquisitorial in nature, at least the initial stages (e.g., a patent examiner, a social security hearing officer, etc.) even though the law to be applied is developed through common law processes."

prinz wrote: »

Six of one, half dozen of another. They are different systems. Is thre any reason to believe injustice is more frequent in one as opposed to the other?

Then we will have to agree to disagree prinz. Well i am absolutely sure which system i would like to be tried under.

Scofflaw wrote: »

Yes, but that's just a statement of preference, like saying that you prefer cheese to chocolate. Trying to erect it into some sort of principle argues a deep deficiency in your grasp of logic.

regards,
Scofflaw

Well i would welcome anyone to show how they would feel equally or better protected without common law. I would consider that an interesting read to say the least.

Scofflaw wrote: »

You would probably need to contact a eurosceptic from a civil law country, who could explain to you how the EAW exposes people from civilised legal systems to the appalling dangers of the common law system.

cordially,
Scofflaw

How about you go one better scoff and show us the colour of your money. Can you explain why you would be at least as comfortable if not more so facing a false charge without common law.

Scofflaw wrote: »

There isn't a question to answer, because you are begging the question*, and you still don't know what a straw man is. Your entire "case" is based on the blind xenophobic belief that foreign systems can't be as good as ours - we go round and round in circles because you can't admit that even to yourself, but you don't have any basis for your dislike of civil law systems apart from your xenophobia.

regards,
Scofflaw

*that is, your question "would you like to have the additional protections of common law when facing a false charge" assumes that there are such "additional protections", which in turn would mean of necessity that common law was better protection against a false charge - but you have been entirely unable to demonstrate what these "additional protections" are.

How about a fully independent judge for a start.
Resorting to name calling doesnt become you. On top of this i have spoken of my admiration for many elements of the american system which is a foreign system i presume.