Law and Rights
An interesting situation has arisen in Kansas, USA. The Guardian 7th October reports a matter that is concerning the Supreme Court of the USA.
"Supreme court tensions over capital punishment burst into the open again on Wednesday as rival justices clashed over a series of gruesome murders in Kansas that could overturn two-thirds of the US state?s death row cases.
The related cases before the court, Kansas v Gleason and Kansas v Carr, challenge the Kansas state supreme court?s decision to overturn death sentences on the grounds that inadequate jury instructions were given.
Due to language used by judges in the original trials, jurors may not have realised they were able to consider mitigating circumstances that were not proven beyond reasonable doubt."
In the law of England and Wales, the definition of the offence is the starting point for determining what must be proved to establish guilt. It is for the prosecution to prove their case against the defendant (the "golden thread"). They must do this, in the time honoured phrase, to the beyond a reasonable doubt standard or, in more modern parlance, so that the decision-maker (jury or magistrates) are "sure" of guilt.
The definition of an offence is to be found either - (1) in legislation (e.g. Theft Act 1968 s.1 defines "theft") but it is also necessary to take into account any judicial decisions relating to that statutory definition; or (2) in common law where the definition is to be distilled from judicial decisions (e.g. murder).
The definition will usually include a statement of the conduct necessary to constitute the offence (often known as the "actus reus") and the mental element (state of mind or "mens rea") needed at the time of committing the actus reus. Mental element may be defined as "intention" or "recklessness." There are also some offences that may be committed negligently and offences of strict liability."
It is every element in the definition of the offence that must be proved by the prosecution to the beyond reasonable doubt standard.
Mitigating factors are matters highly relevant to the sentence to be imposed. The issue in the Kansas cases is: Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances ?need not be proven beyond a reasonable doubt,? as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.
The 8th amendment states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This appears to have been taken from the English Bill of Rights 1688 where it is stated that:
... excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
The phrase "cruel and unusual" is particularly problematic. Obviously, it did not prevent the death penalty in the UK and, sometimes for treason, the death penalty was carried out in an hideous manner. In modern times, the death penalty is prevented by the European Convention on Human Rights Protocol 13.
One of the matters that anyone drafting a new British Bill of Rights should deal with is this older Bill of Rights. Opportunity could be taken to remove the older Bill but it would be necessary to retain and modernise certain aspects of it (e.g. that relating to keeping of standing armies or that provisions relating to the rights of Parliament to hold free debates etc). One phrase that could usefully disappear into history is the phrase "cruel and unusual."
- The Last Executions - 13th August 1964.
50 years ago today the last executions took place in England. Gwynne Evans (then aged 24) and Peter Allen (21) suffered the ultimate punishment then available to the law - see Manchester Evening News 12th August. Evans and Allen were convicted...
- Petrol - Avoiding Payment - Theft?
The Telegraph has published an item about individuals who fill up their vehicles at self-service petrol stations and then claim that they do not have the means to pay with them - Telegraph 4th October - Legal loophole closed to prosecute persistent fuel...
- Supreme Court ~ Road Traffic Act 1988 S3zb ~ Uninsured Driving ~ Causing Death
UPDATE: The Supreme Court has allowed Mr Hughes' appeal. There must be something to be properly criticised in the defendant's driving - R v Hughes [2013] UKSC 56. There mere fact of being on the road (when uninsured etc) is not enough...
- Odd Corners Of The Criminal Law - Public Nuisance
Public Nuisance (also known as Common Nuisance) is an offence under common law and it is triable either-way - that is, either summary trial by Magistrates or upon indictment in the Crown Court where there would be a judge and a jury. Public Nuisance...
- Criminal Cases: Burden And Standard Of Proof
In a news report published by the BBC on 21st December 2011, John Terry - footballer at Chelsea FC - is reported to have said - ""I'll fight tooth and nail to prove my innocence." Mr Terry is charged under section 31(1)(c) of the Crime and...
Law and Rights
Criminal cases ~ What must be proved and to what standard?
"Supreme court tensions over capital punishment burst into the open again on Wednesday as rival justices clashed over a series of gruesome murders in Kansas that could overturn two-thirds of the US state?s death row cases.
The related cases before the court, Kansas v Gleason and Kansas v Carr, challenge the Kansas state supreme court?s decision to overturn death sentences on the grounds that inadequate jury instructions were given.
Due to language used by judges in the original trials, jurors may not have realised they were able to consider mitigating circumstances that were not proven beyond reasonable doubt."
In the law of England and Wales, the definition of the offence is the starting point for determining what must be proved to establish guilt. It is for the prosecution to prove their case against the defendant (the "golden thread"). They must do this, in the time honoured phrase, to the beyond a reasonable doubt standard or, in more modern parlance, so that the decision-maker (jury or magistrates) are "sure" of guilt.
The definition of an offence is to be found either - (1) in legislation (e.g. Theft Act 1968 s.1 defines "theft") but it is also necessary to take into account any judicial decisions relating to that statutory definition; or (2) in common law where the definition is to be distilled from judicial decisions (e.g. murder).
The definition will usually include a statement of the conduct necessary to constitute the offence (often known as the "actus reus") and the mental element (state of mind or "mens rea") needed at the time of committing the actus reus. Mental element may be defined as "intention" or "recklessness." There are also some offences that may be committed negligently and offences of strict liability."
It is every element in the definition of the offence that must be proved by the prosecution to the beyond reasonable doubt standard.
Mitigating factors are matters highly relevant to the sentence to be imposed. The issue in the Kansas cases is: Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances ?need not be proven beyond a reasonable doubt,? as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.
The 8th amendment states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This appears to have been taken from the English Bill of Rights 1688 where it is stated that:
... excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
The phrase "cruel and unusual" is particularly problematic. Obviously, it did not prevent the death penalty in the UK and, sometimes for treason, the death penalty was carried out in an hideous manner. In modern times, the death penalty is prevented by the European Convention on Human Rights Protocol 13.
One of the matters that anyone drafting a new British Bill of Rights should deal with is this older Bill of Rights. Opportunity could be taken to remove the older Bill but it would be necessary to retain and modernise certain aspects of it (e.g. that relating to keeping of standing armies or that provisions relating to the rights of Parliament to hold free debates etc). One phrase that could usefully disappear into history is the phrase "cruel and unusual."
- The Last Executions - 13th August 1964.
50 years ago today the last executions took place in England. Gwynne Evans (then aged 24) and Peter Allen (21) suffered the ultimate punishment then available to the law - see Manchester Evening News 12th August. Evans and Allen were convicted...
- Petrol - Avoiding Payment - Theft?
The Telegraph has published an item about individuals who fill up their vehicles at self-service petrol stations and then claim that they do not have the means to pay with them - Telegraph 4th October - Legal loophole closed to prosecute persistent fuel...
- Supreme Court ~ Road Traffic Act 1988 S3zb ~ Uninsured Driving ~ Causing Death
UPDATE: The Supreme Court has allowed Mr Hughes' appeal. There must be something to be properly criticised in the defendant's driving - R v Hughes [2013] UKSC 56. There mere fact of being on the road (when uninsured etc) is not enough...
- Odd Corners Of The Criminal Law - Public Nuisance
Public Nuisance (also known as Common Nuisance) is an offence under common law and it is triable either-way - that is, either summary trial by Magistrates or upon indictment in the Crown Court where there would be a judge and a jury. Public Nuisance...
- Criminal Cases: Burden And Standard Of Proof
In a news report published by the BBC on 21st December 2011, John Terry - footballer at Chelsea FC - is reported to have said - ""I'll fight tooth and nail to prove my innocence." Mr Terry is charged under section 31(1)(c) of the Crime and...