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Alternatives to Prison Conference Encounter/RSE Edinburgh, 7-9 Dec 2006

Alternatives to Prison Conference Encounter/RSE Edinburgh, 7-9 Dec 2006. Whither the Golden Thread? Claire Hamilton Dublin Institute of Technology chamilton@dit.ie. Presumption of Innocence.

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Alternatives to Prison Conference Encounter/RSE Edinburgh, 7-9 Dec 2006

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  1. Alternatives to Prison Conference Encounter/RSEEdinburgh, 7-9 Dec 2006 Whither the Golden Thread? Claire Hamilton Dublin Institute of Technology chamilton@dit.ie

  2. Presumption of Innocence • Focus today on effects of recent English and Irish legislation on presumption of innocence. Is the presumption being deprived of its tangible effects? • Tony Blair, June 2002: “It is perhaps the biggest miscarriage of justice in today’s system when the guilty walk away unpunished” • Arguments in favour of the presumption of innocence: • Subjective harms • Moral harms (Dworkin) • Myths of the “other” and of “the benign State” (Kennedy) • Effectiveness of erosion.

  3. English Criminal Justice Act 2003 • Flagship legislation to “rebalance system in favour of victims” • Presumption of Innocence and bad character rules (Part 11, s.101). • Presumption of Innocence and double jeopardy rules (Part 10, ss.78 & 79)

  4. Bad Character Rules • From PV v. PE to “general tendency” • Bad character=misconduct=other reprehensible behaviour • Reasoning Prejudice • Moral Prejudice • Empirical support: Lloyd-Bostock (2000)

  5. Retrial for Serious Offences • Broad definition of “qualifying offence” • “New and compelling evidence”= “reliable, substantial and highly probative of guilt” (s.78) • Jury mere rubberstamp? • Government’s response to stifle media coverage

  6. Irish Criminal Justice Act 2006 • McDowell: “Balance shifted too far in favour of accused” • Walsh: “Completing a crime control model” • Detention provisions, limited prosecution appeals, etc. • ASBOs (“Civil orders/behaviour orders”) and Presumption of Innocence. • New proposals for victims: curtail right to silence; bad character evidence.

  7. Civil Orders/Behaviour Orders (ASBOs) • Hybrid structure of orders disguising criminal action? • R v. McCann-HOL designated civil • Superficial reading focusing on form not substance • Previous acts TIC when sentencing • Paradoxical conclusion-civil yet “seriousness of matters involved” mandates criminal SOP

  8. Proposed Law Reforms to Rebalance the System • Curtail the right to silence through adverse inferences: consequent shift of focus to accused. • Bad Character: as seen above, conjures up a prejudicial atmosphere (R v. Perry) • Nullifying an acquittal in certain circumstances.

  9. Whither the Golden Thread? • Is it real for accused persons in the UK and Ireland? Kilcommins et al (2004): Irish due process rights have a “look but do not touch; touch but do not taste” quality. • Ashworth and Blake (1996): 40% of Crown Court offences offend the presumption. • Chakrabati (2005): “The presumption…like innocence itself, is more easily compromised than reclaimed. It seems to me that we would not be living with the chilling spectre of the anti-terror ‘control order’ if we had been more critical of his older cousin, the ASBO”,

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