Miscarriages of Justice 1

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  • Miscarriages of Justice 1
    • What?
      • Miscarriage:
        • Failure to reach intended destination or goal
      • Mutatis Mutandis
        • Failure to attain the desired end result of justice
          • Justice= balance and distributions
            • According persons their fair share and treatment
        • Failure to respect rights can impact all involved:
          • Victims, Offenders, Institutions, State Public
      • Points to infer from definition
        • 1. Meaning is not confined to miscarriages in court or the penal system
          • Can arise on street- police unjustly exercise coercive power
        • 2. Miscarriages can be institutionalised within laws as well as ensue from failures in the application of laws
        • 3. A miscarriage of justice must involve a shortcoming for which there is a degree of State responsibility
    • When?
      • MoJ occur when suspects or D or convicts are treated by the State in breach of their rights
        • Whether because...
          • 1. Deficient processes
          • 2. The laws which are applied to them
          • 3. No factual justification for the applied treatment or punishment
          • 4. Whenever suspects/ D are treated adversely by the State to a disproportionate extent in comparison with the need to protect the right of others
          • 5. Whenever the rights of the State are not effectively or proportionately protected or vindicated by State action against wrong doers
          • 6. By State law itself
        • The treatment of individual in breach of their rights because of unfair processes will occur when individuals are subjected to arrest or detention without due course
          • -Police actions after detention
          • -Breach of due process by trial
            • e.g.                -Biased/  ineffective judges            -Perverse jury -Mishandling of forensic evidence
          • -Failures by judges, jury, handling of evidence
            • e.g.                -Biased/  ineffective judges            -Perverse jury -Mishandling of forensic evidence
          • -Failures by lawyers
            • e.g. fail to advocate effectively through inadequate prep or performance
      • MoJ
        • No factual justification for mistreatment or punishment
        • Mistaken Identity
          • Right not to be convicted of the crimes of which they are innocent
          • Conviction due to mistaken identity= breach of rights
            • System needs to correct itself
              • Acquittal through payment of damages
        • May be viewed as completion of process
          • Must be some kind of State responsibility for conviction
            • Jury may be viewed as a State agency
            • Should be free from bias
            • Should have mechanisms at its disposal to reach a decision
    • Miscarried Justice
      • What Ways?
        • 1. It may occur where D did not receive fair trial, even though they committed the offence
          • D is legally innocent but factually guilty- crime is committed but the means to secure a conviction is unfair
        • 2. Where D was only marginally involved but convicted of a more serious charge
        • 3. Where the wrong person was convicted
        • 4. Where the alleged crime was never committed
          • Actus reus of the offence has not been established
      • Categories of MoJ
        • Wrongful Convictions
        • Denial of Truth
        • No Action/ Inaction
        • Questionable Convictions
        • Questionable Actions
      • Golden Thread
        • Investigation process:
          • 1.Confession Culture
            • Primary concern of police has been to get a confession from suspect
            • Bedrock of a successful investigation and predominant means of conviction
            • Problems- Taking advantage of...
              • Psychological vulnerability
              • Questioning under detention
              • Suggestibility
          • 2. Premature Closure
            • Defined as: "disposition to draw pre-emptive conclusions from information processed prior to conducting an interview"
          • 3. Case Constructions
        • Fabrication of Evidence
        • Unreliable identification of an offender by the police or witness
        • Unreliable expert testimony
        • Unreliable confessions resulting from police pressure or vulnerability of suspects
        • Non-disclosure of evidence at trial by police or prosecution
        • Conduct of trial
        • Problems associated with appeals procedure

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