CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, November 30, 2009

Tadros on Human Right to a Fair Criminal Trial

Tadros victor Victor Tadros  (University of Warwick - School of Law) has posted A Human Right to a Fair Criminal Law (ESSAYS IN CRIMINAL LAW IN HONOUR OF GERALD GORDON, J. Chalmers, L. Farmer and F. Leverick, Forthcoming) on SSRN. Here is the abstract:

A human rights approach to scrutinising our criminal justice systems has gained considerable momentum in the UK, particularly since the Human Rights Act 1998 came into force, with Andrew Ashworth at the forefront. I don’t believe that this approach provides the sole way of critically investigating the quality of our law. After all, to say that our law is human rights compatible is not to say that it is just, a distinction that I will interrogate in a moment. But I do believe that a human rights approach can provide an important component of critical enquiry into the quality of the law. Violation of human rights is a distinctive kind of injustice, one that deserves to be marked out as special.

It is in this spirit that I offer an investigation of whether there is a human right to a fair criminal law. To make progress in that enquiry, we will need to know something about how best to understand human rights. I am interested here, I should say, not in the human rights that we have agreed in human rights documents such as the Universal Declaration of Human Rights or the European Convention of Human Rights. We can easily agree that there is no human right to a fair criminal law in this positivist sense. But human rights documents may be flawed: they may institutionalise as human rights things that are not really human rights at all and they may fail to institutionalise things that are human rights. Our enquiry is, in this way philosophical and moral rather than legal.

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An American citizen, I have dedicated years to unknotting the gross disparities in many subjects addressed below. I would appreciate a bit more information and explanation on the following:

Pg. 2 -
...but human rights are violated if a group is discriminated against because they are considered as having less status than other humans.
Status meaning access, or...?

Pg. 8 -
...the human rights that people have, and the moral duties that the international community has to prevent the gravest forms of injustice, are dependent upon the tendency rather than the capacity of powerful states to carry out moral duties.

Do you have information to indicate that powerful states consider morality as a duty?

Pg.9 -
A person can have their human rights violated,even though there are no institutions which can scrutinize their violation, and even though the social and political conditions are not now present in which their scrutiny and institutional protection can be just.

Having read scores of Judgements of Convictions and other sentencing documents, I can confirm that most such rulings include the assertion, in various verbiage, the accepted "legality" of the harshest ,enhanced sentencing because of the obligation to satisfy the public's need for punishment.

At what point will the commuinity does not confirm or assure public safety or rehabilitation? Who will stand up and admit that this "need" is as innacurate and politically motivated as the contention that severe punishment and sentencing lower the recidivism rate?

Pg. 11 -

you discuss actions that are not properly attributable due to "circumstances" which make it very difficult "not" to breach the law, or because they lack the capacity to adhere to the law."

The subject of semantics plays an enormous role in our judicial system. What circumstances are universally accepted? (None) How is it that one judge dismisses environment, education, and family conditions as mitigating circumstances, while others note them as crucial? What does "the capacity to adhere to the law" consist of, and what is not considered? Who truly believes that law enforcement and the courts bestow upon a violent offender the ongoing presumption of innocence past the date of arrest? How are hardworking men and women with no experience with the judicial system considered a jury of peers for a criminal who is more likely than not raised in a home where addiction, reliance on welfare, poor nutrition and education, and a gross lack of nurturing, love, discipline (not violence or torture), and consistency are the norm?

I could but promise I will not go on. I would be grateful for any and all response, for my goal is not to be right, but to learn and grow.
Tosh Dawson

Posted by: Tosh Dawson | Dec 1, 2009 10:48:08 AM

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