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Balancing Conflicting Interests
Transcript of Balancing Conflicting Interests
Balancing...in criminal procedural law
The law attempts to balance conflicting interests in criminal procedural law by balancing the victims’ interest feeling that justice should be done and the defendant interest to a fair trial.
Bail- general rule is everyone is entitled to Bail under the Bail Act 1976. A suspect can only be refused bail if he needs to be in prison for safety or committing an offence whilst on bail or interfering with witnesses. If a suspect is granted bail, this normally comes with conditions attached such as sureties or curfews.
Here the Bail Act seeks to protect the right to liberty of suspects but balances this against the need to ensure victims are not intimidated and the criminal process id determined without inference.
Sentencing- Judges and magistrate decide on the sentence by considering aggravating factors (use of a weapon, convictions) and mitigating factors (provocation, remorse).
Sentencing creates a balancing act between the needs of the defendant wanting mitigating factors to be considered and the needs of the victim who would justice by looking at aggravating factors. When the courts fail to achieve a balance, both the defendant and prosecution may want to lodge an appeal.
Balancing...in criminal procedural law continued...
The Double Jeopardy Rule.
The old double jeopardy rule said you cannot be tried twice for the same crime with the balance of interests lying in favour of the defendant.
However, the law was changed in 2003 with the Criminal Justice Act giving the Court of Appeal the right to order a retrial if ‘new and compelling evidence’ came to light after someone had been found not guilty.
A good example of this happening was the Stephen Lawrence case where a better balance of interests were achieved when new evidence resulted in a re-trial from which the defendants were found guilty.
Consent. Generally, you can consent to assault or battery but not to ABH or GBH. Unless, the act falls under the exceptions,.A balance here made between the rights of individuals to consent to whatever they like and the need to protect individuals from harm. Wilson (1996) and Brown (1993). The main distinction was that one was a married couple engaging in tattooing whereas Brown was a form of torture where inflicting pain was the purpose not the outcome.
Self-Defence- has to be a necessity of force and the force needs to be reasonable. Law takes into account the 'D' may not be able to gauge the amount of force and if 'D' thinks his force was reasonable, this is strong evidence of reasonable force. Defence seeks to create a balance between the rights of the victim to defend himself, the interests of the defendant and society’s fear of people taking the law into their own hands.
Intoxication. A balancing act from society wishing to protect itself from those who cause harm when intoxicated and the individual who would wish to be held less responsible for acts carried out under the influence than if he was fully aware of his actions. Involuntary Intoxication complete defence to all crimes if the accused lacks the MR. Good thing as the balance is in favour of the 'D' who is protected by the defence. Voluntary Intoxication is only a defence to specific intent crimes but not to Basic Intent crimes. Offenders can be charged with Basic Intent Offences, viewed as reckless, this creates a good balance between the interests of the D and V.
In 1950, countries signed an agreement -European Convention of Human Rights (ECHR). Allowed citizens of Europe to take their country to the Court of Human Rights if they felt their Human Rights had been denied. Examples are a right to family life, right to liberty, right to a fair trial.
Article 8 ECHR is the right to family life. Dickson v UK (2004) a couple in jail wanted to have a child using IVF. Application was refused as it was inconsistent with the public expectation of how a killer should be perceived and they could not meet living arrangements for IVF. Couple said refusal contravened their human right to a family. The balance here was clearly in favour of society but the ECHR said the balance should be with the couple because of this human rights breach.
Article 5 ECHR is the right to liberty. From 2002-05, 10 suspected terrorists were held in prison without being put on trial (A and Others v Secretary of State). By detaining them the balance was clearly on the side of state security. Courts said suspected terrorists could not be detained indefinitely as it breached their right to liberty. Suspects released but placed on house arrest and tagged,seemed like there was a better balance as the suspects had some kind of liberty back.
Article 6 was the right to a fair trial by cross examining witnesses. New legislation was introduced to allow witness anonymity (R v Davis). The House of Lords favoured appellant and ruled anonymity should not be granted where the testimony is decisive evidence. The balance was just, in giving the witness who fears safety confidence, and ensuring innocent people are not convicted.
To conclude, the main question is does the law actually balance conflicting interests?
Well in the example of Bail in the criminal procedure, the law creates a nice balance between the liberty of suspects and protecting the victims.
However, in intoxication for example, some could say it’s unfair that more serious offences of specific intent can be a means to use the defence but minor assault or battery cannot.
However, in general the law seems to balance this conflicting interests in many areas of the law and as long as the law is fair and within human rights, conflicting interests will stay balanced.
Introduction and Theorists:
One of the main
functions of the law is to resolve disputes and settle arguments
. In order to do this it must balance conflicting interests. To do this the law can have
that people can go to in order to balance these conflicts and
have laws that attempt to balance
these conflicting interests.
Rudolph Von Jhering says that the law is the end result of a struggle between individuals and groups each pursuing its own interest. It causes healthy legal change however it seems the law often reflects the interests of dominant groups.
Karl Marx says the law is used by the wealthy and powerful to ensure that their interests are looked after. The law does not balance conflicting interests in his opinion but protects the property of the rich.
Roscoe Pound said there were two types of interests: individual and societal interests. Pound says that the law shouldn’t put the interest of society against the interest of the individuals, but the law often does. E.g. new airport/wind farm will often be built despite the interests of local residents.