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kevin donald
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kevin donald
Joined: 29 Oct 2007
Posts: 196
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kevin donald
Joined: 29 Oct 2007
Posts: 196
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kevin donald
Joined: 29 Oct 2007
Posts: 196
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kevin donald
Joined: 29 Oct 2007
Posts: 196
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kevin donald
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scotkaz
Joined: 28 Aug 2008
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 Posted: Sun Jul 12, 2009 1:24 am Post subject: |
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http://www.guardian.co.uk/uk/2009/jul/10/miscarriage-of-justice-phrase
Death to the phrase 'miscarriage of justice'
Should there be a simpler, less arcane way to describe wrongful conviction?
An old question often comes up: why are cases of wrongful conviction referred to as "miscarriages of justice"?
It is a theme that the civil rights lawyer Gareth Peirce, who has worked on countless such cases, explored in her introduction to Michael O'Brien's book on being falsely imprisoned for the murder of a Cardiff newsagent:
"I used to find the words "miscarriage of justice" inadequate to describe the horror of wrongful conviction. The phrase implied to me an accident, and wrongful convictions can never be written off as accidental. Later, however, I realised that the description, of course, meant "death", and this is exactly right – a total death of justice."
Some feel there should be a simpler, less arcane description. "Wrongful conviction" is a common suggestion. Another is "noble cause corruption" – a phrase that had vogue within the police service in the 1980s and 1990s and was used to refer to cases where the police felt certain that they had caught the guilty person but were short of the evidence to prove it conclusively. A similar phrase – "bent for the job" - was popular for a while. It meant that an officer was prepared to plant a little piece of evidence or a verbal confession if they genuinely believed that they had the guilty man; "bent for yourself" was when a police officer helped himself or herself to money or used extortion for personal gain.
The problem with a term like "noble cause corruption" is that it presupposes that all such cases must involve incidents of bending the evidence. This is far from the case. Some miscarriages of justice – there's that phrase again – were genuine accidents. They may have resulted from sloppy detective work or laziness or misunderstanding or from a confession from someone with psychological problems, but they were not necessarily deliberate.
I would suggest that this accounts for most of the cases that have become well-known to us: an initial belief that the guilty person has been arrested followed by an honest or dishonest refusal to consider any other possibility. It can happen when the police are under pressure to make an arrest in a high-profile case.
So is there another phrase or word apart from "miscarriage of justice" that better expresses what happens to an innocent person convicted of a crime? Any suggestions welcome. |
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kevin donald
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scotkaz
Joined: 28 Aug 2008
Posts: 526
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| Posted: Sun Jul 12, 2009 11:11 am Post subject: |
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http://www.sundaytimes.lk/090712/Columns/focus.html
The question of judicial injustice
By Kishali Pinto Jayawardene
Great injustice commensurately results in great anger. When that injustice is alleged to be perpetuated by the one individual in whose hands is vested the final authority to remedy wrongs of lesser human beings, namely the head of a country's judiciary, an unstable and dangerous edge hones that injustice.
This column has not been sparing in its criticisms of the manner in which the former Chief Justice presided over his Court since 1999. It has also not swerved from such criticisms notwithstanding the hurrahs of the populace in response to the several ostensible 'good governance' decisions of the Court during the last two and a half years of the former Chief Justice's term. It has had good reason for such a dogged persistence.
Judicial distemper and contempt of court
This Court's scandalous disregard for judicial precedent and convention alike during this term is common knowledge. Counsel who cited judgments of the Court that were unfavourable to the former Chief Justice's thinking in a particular case were castigated, those judgments were referred to as 'kitchen judgments' and legal precedent was completely disregarded.
Some counsel had books and files thrown at them and others were threatened with contempt of court. Litigants who even unknowingly trespassed on court decorum were handed down severe and summary punishments; the sentencing of a middle aged teacher of English to one year rigorous imprisonment for talking loudly in court and filing several motions, is just one of those palpably unjust instances.
Media comment on any matter regarding the judiciary was tightly controlled; in one quite hilarious example, media institutions were warned against mere reportage of disputes between the former Chief Justice and subordinate judges who had accused the Chief Justice of bullying them.
Inconsistency of judicial reasoning
The Court's early years in relation to the Kumaratunge administration were meanwhile irreversibly defined by a refusal to castigate her for legion abuses of power. The doctrine of Public Trust articulated by the GPS de Silva Court and expanded through reasoned thinking by Justices Mark Fernando and ARB Amerasinghe during the eighties and early to mid nineties, was thrown to the winds. The post 1999 Court even declined to intervene in clear cases of abuse of the Public Trust doctrine, where the state airwaves, even though maintained on public funds, was being used for blatant party political propaganda during the 2001 elections. These cases are, in fact, still pending in courts. The political negation of two impeachments against the former Chief Justice as well as the reversal of Kumaratunge's fortunes at the tail end of her term is now documented history.
These years were however remarkably in contrast to the Court's pitting itself against the political authority from about the year 2007, some time after a honeymoon period with the Rajapaksa administration had lapsed into turbulence. The reasons and background for such a change needs to be written about in detail elsewhere than in the short spaces of a newspaper column.
Suffice to state that, this time around, a collision course was charted with the executive, resulting in many of the Court's orders being openly ignored. Thus, we saw a new spectre raising its head; this time around, it was the overreach of the Court in stretching the boundaries of the Public Trust doctrine to an extent that many justifiably argued was unsustainable. In the 60th Anniversary Oration of the Faculty of Law, senior attorney-at-law Dr RKW Goonesekere, examining some of the recent court orders, raised the relevant question as to whether the original fundamental rights jurisdiction given to the Supreme Court had acquired a criminal jurisdiction?
It is this overreach which has now led to applications before the new Chief Justice urging a re-hearing of old cases on the basis that injustice has been caused. In a related development, a petitioner has also filed a fundamental rights application claiming that the former Chief Justice had misused his judicial powers to keep him in remand for 294 days to avenge a personal grudge.
Is a Chief Justice above the law?
Undoubtedly however, the current dilemmas before Chief Justice Asoka de Silva are prickly. Insofar as the functioning of the Judicial Service Commission is concerned, the new Chief Justice has pledged on record that reforms will be effected. The arbitrary disciplining of minor judges who had incurred the displeasure of the former Chief Justice and was denied even the minimum of natural justice, had been a further feature of the past decade leading to senior judges of the JSC resigning in protest. What further applications may be filed against past judicial orders remains to be seen. In principle, it may well be said that if the actions of a former President have been ruled to be not above the law, then that same principle should apply surely to the actions of a former Chief Justice?
A legacy of judicial injustice
Clearly however, these events are unprecedented even if measured by the colourfully chequered history of Sri Lanka's Supreme Court. In a system where the disciplinary control of judges is in the hands of politicians who themselves wish to control the courts, there is little that one can do with a subverted judicial system except to wait for the wheel to turn in the fullness of time.
Though this time has come, the question as to how the injustice caused to litigants must be redressed while not further damaging the institution of the judiciary is the most vexed dilemma that confronts the present Chief Justice.
In the ultimate analysis however, one might ask if this most unpleasant phenomenon of judicial injustice is what we are left with after ten years of what may be referred to as the Sarath Silva Court. |
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scotkaz
Joined: 28 Aug 2008
Posts: 526
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| Posted: Sun Jul 12, 2009 11:13 am Post subject: |
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http://www.firmmagazine.com/news/1583/Sheridan_case_proceeds_.html
NEWS
12 Jul 2009
Sheridan case proceeds
The long running legal saga against Tommy Sheridan and his wife Gail is scheduled to proceed further on Monday, as the case against them comes to court after several postponements and a lengthy investigation which has been subject to much scrutiny.
A preliminary hearing will be held at the High Court of Justiciary at Edinburgh. The indictment contains one charge of perjury, and one charge of attempted subornation of perjury against Tommy Sheridan, and one charge of perjury against Gail Sheridan.
Both previously appeared in private on petition at Edinburgh Sheriff Court on 27 March 2008, charged with perjury, at which time neither made any plea or declaration, and both were admitted to bail.
The charges originate from Tommy Sheridan's 2006 defamation action against the News of the World, in which he was awarded £200,000 in damages.
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