Thursday, January 29, 2009

Rights restriction or deprivation: pragmatic balancing

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When is a restriction on movement a deprivation of liberty? In Austin v Commissioner of Police for the Metropolice [2009] UKHL 5 (28 Januar...
Tuesday, January 27, 2009

Dealing with unsavouriness

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Two cases from the Supreme Court of Canada concern the directions a judge should give to a jury on the need for caution about the evidence o...

Fairness and the right to cross-examine

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Inability of the defence to cross-examine a prosecution witness may arise through anonymity or absence, but the accused's right to a fai...
Monday, January 26, 2009

Another blow to legislated sentencing

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The non-mandatory nature of the sentencing guidelines has been emphasised in Spears v United States [2009] USSC 21 January 2009. In using t...
Friday, January 23, 2009

Not a dies non blog

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For a discussion of time limits for filing and serving extradition appeals in the UK, see Mucelli v Govt of Albania [2009] UKHL 2 (21 Janua...
Thursday, January 22, 2009

The limits of legality

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Does a decision to release on parole a prisoner serving a determinate sentence have to be made judicially? Is the judicial nature of the ori...
Tuesday, January 20, 2009

Disclosure at common law: third party status of police

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In R v McNeil [2009] SCC 3 (16 January 2009) the Supreme Court of Canada, in a unanimous judgment delivered by Charron J, addressed the dis...
Friday, January 16, 2009

Reviving lost causes

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Scalia J's dissent (joined by Roberts CJ and Souter and Thomas JJ) in Oregon v Ice [2009] USSC 14 January 2009 raises again the questio...
Thursday, January 15, 2009

Should negligence be misconduct?

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In Herring v United States [2009] USSC 14 January 2009 the majority (5-4) held that the basis for exclusion of evidence obtained in breach ...
Wednesday, January 14, 2009

Haunted by the past

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One way of getting a longer prison sentence than is warranted by a present offence is to have a bad record of previous criminality. Sometime...

Restoring pendency

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Jimenez v Quarterman [2009] USSC 13 January 2009 is a narrow decision in which the plain meaning of statutory language is applied to determ...
Monday, January 12, 2009

Getting on with it

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Does either party, prosecution or defence, have an obligation to find the quickest way through the legal labyrinth? The defence may complain...
Tuesday, December 23, 2008

Rational driving

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Anyone using the roads these holidays will be pleased with the Supreme Court's decision in Aylwin v Police [2008] NZSC 113 (19 December...
Saturday, December 20, 2008

Degrees of forgery

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Judges don't always agree that a given statutory text coincides with its purpose. In Li v R [2008] NZSC 114 (19 December 2008) the majo...
Friday, December 19, 2008

Kingdom or country?

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For discussion of when time begins to run in relation to the right to be tried within a reasonable time, see Burns v HM Advocate [2008] UKP...
Thursday, December 18, 2008

The implications of deeming

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What are the implications of the phrase "A discharge under this section shall be deemed to be an acquittal": s 347(4) Crimes Act ...
Friday, December 12, 2008

Don’t mention rights ...

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Just a note on reverse onus provisions and when the legal burden is appropriate instead of merely an evidential burden: R v Chargot Ltd (t/a...
Thursday, December 11, 2008

Absolute or relative inhumanity

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As recently as 18 March 1789 Catherine Murphy was burnt at the stake at Newgate, although locals regarded this event distastefully. Her deat...
Monday, December 08, 2008

DNA record retention

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Retention by the police of information about a suspect can be a breach of the suspect's right to privacy: S and Marper v United Kingdom ...
Thursday, December 04, 2008

Discuss: no case or no chance?

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When should a judge prevent a prosecution case from continuing and discharge the accused for lack of evidence? The "no case" submi...