Fiona Leverick

Killing in Self-Defence

1. Introduction 2. The Classification of Defences 3. The Justification of Self-Defence 4. Retreat 5. Imminence of Harm 6. Self-Generated Self-Defence 7. Killing to Protect Property 8. Killing to Prevent Rape 9. Mistake 10. The Impact of the European Convention on Human Rights

What Has the ECHR Done for Victims? A United Kingdom Perspective

This paper assesses the extent to which the European Convention on Human Rights creates rights for victims within the criminal justice process in terms of both rights to information and procedural rights. It concludes that the right to investigation and information, as set out in Jordan, does cement certain standards to which an investigation must conform in terms of victim information provision and involvement, but that these can only be described as very basic minimum standards. In terms of obtaining reasons for decisions not to prosecute, the incorporation of the ECHR into UK domestic law has not yet resulted in a comprehensive right to obtain reasons for decisions not to prosecute. Indeed, any rights involved are derived from Article 2, the right to life, and Article 3, the right to freedom from inhuman and degrading treatment, and so will not affect the vast majority of victims, who are victims of lesser crimes. In terms of procedural rights, the impact of the ECHR to date is even more limited and, in the case of victim involvement in sentencing, may in fact serve to limit victim input, rather than expand it. This and other potential conflicts between the rights of the accused and the rights of the victim are discussed.

Scotland: A Plea for Consistency

Scotland’s Appeal Court fashioned a test for exclusion of evidence gathered in violation of the law already in 1950 a landmark decision of Lawrie v. Muir. In the Scottish test, courts should balance the seriousness of the violation of statutes or the defendant’s rights on the one hand, against the need of the state to prove guilt in criminal cases and punish criminals. Technical, minor or “good faith” violations, especially in serious cases, should not lead to exclusion, whereas serious violations which impact on the fairness of the proceedings, should. This appears to be one of the earliest decisions articulating a “fairness” test for exclusion, and it was admired by prominent jurists in England and Wales. However, in this Chapter the authors thoroughly discuss the case law which has followed Lawrie, and show its inconsistency and failure to set out clear tests for exclusion of illegally gathered evidence. They feel that Scotland’s “fairness” test, now virtually identical to that of the European Court of Human Rights and England and Wales, is too malleable, and that, especially in the area of admissibility of evidence found as a result of unlawful confessions, the courts are too reticent to find a violation of the right to a fair trial.