Where modules run over two terms as a 30 credit module, SIL students will attend and be assessed on the contents of term 1. Please note that some modules reflect this with an additional "A" in their module code, but this is not the case for all of them due to special assessment arrangements for SIL students.
All assessments are graded on a pass/fail basis.
CRIMINAL PROCESS AND HUMAN RIGHTS(LAWSG154) Credit value: 30 credits (12 ECTS)
Assessment method for LLM students: 3-hour unseen written examination
Assessment method for SIL students: 3,000 word coursework essay
Module Overview
Module summary
This will replace and expand on the existing module of Criminal Procedure: Doctrine and Theory (LAWS G114) and to some extent replace the module “Principles of Evidence” (LAWS G087). The principal aim is to incorporate directly the scope and doctrines of the ECHR besides the domestic sources so that students will be in a particularly strong position to research or practice in areas where the ECHR may affect the law of criminal procedure. In all seminars, the influence of the ECHR will be a significant or dominant theme (thus we will not cover the admission of bad character evidence, a subject which falls largely outside human rights jurisprudence).
Criminal procedure is not a subject that stands still. The politicisation of criminal justice, the dominance of crime control, and the rise of managerialism (themes that are pervasive in many other countries too) tend to work to the detriments of suspects. Thus, the police have wide powers of detention, including situations of public disorder; there are questions about their independence and accountability in conducting investigations; there are various reasons why a court may deny bail, and various ways for the police and prosecution to ways of pressuring suspects to plead guilty or accept an out-of court disposal. At trial, the rights of the defendants may be unfavourably balanced against witnesses who prefer to be absent or to remain anonymous or who are afforded rights against certain lines of questioning, and he may be required to prove certain issues in his favour in order to win an acquittal. A jury does not have to give reasons for convicting him, which may in turn impact on the effectiveness of his rights of appeal.
Each of these trends (and more) has been, or could plausibly be, challenged under the Human Rights Act 1998. That is what this module is about. Many textbooks on criminal process treat the Human Rights Act 1998 as just one source of law, but we consider that a more thorough grounding in human rights law is necessary. We will consider not only the scope of arts 2, 3 5,6, 8 and 10 ECHR as they apply to criminal procedure but will also become familiar with general doctrines of the ECHR (positive obligations, adjectival rights read into substantive rights, art 17 ECHR) and the different levels of scrutiny and deference which may be expected when applying them in domestic courts and at Strasbourg. Students will thus be able to apply human rights law in concrete analytical terms but also be able to argue pragmatically as to the likely resolution of various issues.
Module syllabus
We anticipate teaching the following subjects (though slight amendments are possible):
First term:
1 Aims and models of criminal process
2 Ethics and roles in criminal process
3 "Balancing" rights and margins of appreciation in articles 3, 5, 6 and 8
4 Rule of law and discretion in criminal procedure
5 Street policing: public order and stop/search powers
6 Arrest, detention and bail
7 Questioning of suspects: self-incrimination and silence
8 Questioning of suspects: confessions and subsequently discovered evidence
9 Investigatory powers: surveillance, traps and undercover operations
10 Disclosure and public interest immunity
Second term:
11 Prosecution policy: charging, cautioning and bargaining
12 Criminal trials: Art 6(1) (waiver, trial by independent and impartial tribunal, within reasonable time)
13 Burden of proof and presumption of innocence
14 Examination of witnesses and use of sexual history evidence
15 Special measures and anonymous evidence
16 Hearsay evidence
17 Trial by Jury
18 Appeals
19 Double jeopardy
20 Preventive justice
Recommended materials
Ashworth and Macdonald Human Rights and Criminal Justice (2012, Sweet & Maxwell, 3rd edn – forthcoming, expected May 2012)
Ashworth and Redmayne The Criminal Process (2010) OUP (4th edn)
Sanders, Burton and Young Criminal Justice (2010) OUP (4th edn)
Preliminary reading
You will find a lot of introductory information at
Sample articles and cases which you may be able to download include:
J Spencer, “The Case for a Code of Criminal Procedure” [2000] Crim LR 519
A Sanders and R Young, “The Ethics of Prosecution Lawyers” (2004) Legal Ethics 7 (2) 190
L Leigh, “Private Prosecutions and Diversionary Justice” [2007] Crim LR 289
J Rogers, “Restructuring the Exercise of Prosecutorial Discretion in England” (2006) 26 (4) O.J.L.S 775
A Ashworth, “Social Control and ‘Anti-Social Behaviour’: the subversion of Human Rights” (2004) 120 LQR 263
L Zedner, “Preventive Justice or Pre-punishment? The Case of Control Orders” (2007) 60 Current Legal Problems 174-203
C Thomas Are Juries Fair ? http://www.justice.gov.uk/publications/docs/are-juries-fair-research.pdf
I Dennis, “Rethinking Double Jeopardy: Justice and Finality in Criminal Process” [2000] Crim LR 933
R (on the application of B) v DPP [2009] EWHC 106 (Admin)
Gillan and Quinton v UK App No 4158/05 [2010] ECHR 28
Jones v Whalley [2006] UKHL 41; [2006] 4 All ER 113
R (Guest) v DPP [2009] EWHC Admin 594
R (McCann) v Manchester Crown Court [2002] UKHL 39
R v Looseley [2001] UKHL 53
Warren and others v Her Majesty’s Attorney General of the Bailiwick of Jersey [2011] UKPC 10
Edwards v United Kingdom [1992] 15 EHRR 417
Taxquet v Belgium (Application no. 926/05) [2010] ECHR 1806
R v Togher [2001] 3 All ER 463
R v Dunlop [2007] 1 Cr App R 8 (p 115)
Al-Khawaja and Tahery v United Kingdom [2011] ECHR 2127
A and Others v United Kingdom [2009] ECHR 301
Home Secretary v AF (No 3) [2009] UKHL 29
Other information: N/A
Prizes for this module: There are currently no prizes available for this module.
