Criminal Process and Human Rights (LAWS0137)

This course deals with the law of criminal process of England and Wales and the ways in which it has been shaped by the Human Rights Act 1998

We adopt a selective and thematic approach to the subject (see below, module summary). Pervasive themes of the course are the impact of human rights on the criminal process, the scope and control of discretion, and the coherence of the law in terms of underlying theory. Active participation is encouraged in seminars.

We would emphasise that:

1. Students from numerous non-English jurisdictions have taken the course and performed very well. However, be aware that relatively little in English criminal law, whether it is the substantive or procedural law, is codified. This means you will frequently need to read a lot of cases in order to discern what the relevant principles are, and also that there remains scope for argument as to what the law is, let alone what it should be.
2. Many of the issues in the course transcend national boundaries and will be relevant to students from jurisdictions with different procedural traditions. For example, some of the procedural rights we discuss have constitutional status in many jurisdictions.
3. The skills of analysis and critique developed on the course, in particular the types of arguments which may be raised in deciding whether a particular procedural rule engages and complies with a broadly defined right, will be transferable to other legal contexts in other jurisdictions.

Module syllabus

This module is subject to change.

• The paradigm criminal process and alternatives to it
• Police powers of stop and search, detention and arrest
• Bail decisions and risk assessment
• Prosecutors’ decisions including charging and diversions
• Abuse of process
• Entrapment evidence
• Hearsay and article 6 of the ECHR (the right to a fair trial)
• Reverse burdens of proof and the presumption of innocence
• Appeal and review of convictions
• Double jeopardy
• Sentencing Guidelines
• Sentencing and retrospectivity
• Preventive orders
• Mental health and criminal justice
• Terrorism Offences, Sentencing and alternative enforcement

Recommended materials

There is no core text for the course, but students will benefit from reference to any of:

• Campbell, Ashworth and Redmayne, The Criminal Process (5th  ed, OUP 2019)
• Ashworth, Sentencing and Criminal Justice (6th edn, CUP 2015)

Reading from journals and case law is provided with the seminar materials at the start of each term.

Module reading lists and other module materials will be provided via online module pages, once students have made their module selections upon enrolment.

Preliminary reading

There is no required preliminary reading, but if you have access to the following sources, they may both give you an idea about your level of interest in the topic and also introduce you to some of the more difficult themes of the course.

• Spencer, “The Case for a Code of Criminal Procedure” [2000] Criminal Law Review 519
• Jackson “The Effects of Human Rights on Criminal Evidentiary Processes: towards Convergence, Divergence and Realignment” 68 (2005) Modern Law Review 737
• Hoyano “What is Balanced on the Scales of Justice? In search of the Essence of the Right to a Fair Trial” [2014] Criminal Law Review 4
• Kelly and Ashworth, ‘State Responses to Criminal Offences in England and Wales and the Problem of Equality’ in Matthew Dyson and Benjamin Vogel (eds) The Limits of the Criminal Law (Intersentia 2018).

Key information