Contents

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JCL 73 (2009) 48

The Self-incrimination Privilege in Care Proceedings and the Criminal Trial and ‘shall not be admissible in evidence’
Susan Edwards

This article considers the suspension of the self-incrimination privilege in care proceedings and the consequences for respondents and defendants implicated in civil and criminal trials relating to child abuse. This right against self-incrimination is differently applied in the civil and criminal forum. Where there are parallel civil and criminal proceedings and where different rules apply to the disclosure of fact, a respondent in a civil trial later facing criminal proceedings is at a disadvantage. This article explores the tension in the law with regard to a defendant’s right to silence and the operation of the self-incrimination privilege with regard to documents and statements made by parties in civil and in criminal proceedings in cases arising from the physical and sexual abuse of children by family members or carers, and the law’s overriding objective of child protection. It considers the several issues which arise when self-incriminatory statements are made in one set of proceedings and the use that can be made of these statements in the criminal investigation and at trial. It considers the duty of the criminal court to consider fairness in respect of admissibility of specific evidence (Police and Criminal Evidence Act 1984, s. 78) and also to consider the fairness of the trial as a whole (European Convention on Human Rights, Article 6). These sacrosanct principles and rules of evidence are examined in the context of their application in family/care proceedings and related criminal proceedings for offences of child abuse and the implications for the rights of respondents/defendants.

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JCL 73 (2009) 69

Legality and Reality: Some Lessons from the Pitcairn Islands
Fran Wright

This article considers the decision to prosecute a number of Pitcairn islanders for offences under the UK Sexual Offences Act 1956, and some aspects of the organisation of the prosecutions. The islanders complained that the prosecutions were an abuse of process because the content of the law was unascertainable and the legislation governing their trials was retrospective. The abuse of process claims were rejected. There was a mechanism by which islanders could ask the island officials and legal advisers for advice. It was predictable that non-consensual sexual intercourse would be a criminal offence. They were not prejudiced in any way by the late constitution of a criminal justice system. Although some of the decisions made in the Pitcairn case were questionable from a formalist point of view, most were fair in the peculiar circumstances of this small and remote island. The idea of the rule of law and of a fair trial cannot be divorced from the context in which criminal justice decisions are taken

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JCL 73 (2009) 89

A Critical Analysis of the Law of Stalking in Scotland
Sam Middlemiss and Laura Sharp

This article analyses the current law of stalking in Scotland in the light of various legal changes which have taken place since the enactment of the Protection from Harassment Act 1997. The various types of crime that can apply to stalking in Scotland are given detailed consideration particularly in relation to monitoring and control of stalkers and enforcement of legal measures against them. Changes in the common law rules dealing with criminal law in Scotland have cast doubt on its continued ability to deal with this problem and the complex, ad hoc nature of statutory protection introduced in recent years against stalkers in Scotland has done little to provide certainty in this area. Although the legal rules in England dealing with this are by no means perfect the utilisation of the two criminal offences in the Protection from Harassment Act 1997 to combat stalking behaviour has had some success. The current legal rules in Scotland are compared with those in England where arguably there is a more developed system of legal protection.

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Links to other issues

Volume 65 (2001) :   1   2   3   4   5   6

Volume 66 (2002) :   1   2   3   4   5   6

Volume 67 (2003) :   1   2   3   4   5   6

Volume 68 (2004) :   1   2   3   4   5   6

Volume 69 (2005) :   1   2   3   4   5   6

Volume 70 (2006) :   1   2   3   4   5   6

Volume 71 (2007) :   1   2   3   4   5   6

Volume 72 (2008) :   1   2   3   4   5   6

Volume 73 (2009) :   1   2   3   4   6

Volume 74 (2010) :   1   2   3   4

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