Institutional Affiliation

Considering the two cases and their subsequent conviction judgements delivered in court, several issues arise, within which the defendants found it necessary to appeal their cases. Their appeals fail to go through on various terms of the law. However, it is evident that discussion of existed issues surrounding these cases is inevitable. The most contentious issue that arises culminates from article 6(1) and 6(3) (d).

Article provides that any person charged with a criminal offence be entitled to three fundamental human rights that will amount to justice. These are the entitlement to fair and public hearing of this case. This ensures that the ruling of the judges must ensure that indeed, the defendant has all aspects that constitute to fair and public trial. The second right given to the defendant, is the provision of a timely judgment. This ensures that delivery of judgment is as soon as possible to prevent the idea of a delayed justice in case the defendant is finally guilty.

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Finally, the defendant has the right to face a neutral, competent, and impartial panel of judges. Article clarifies the previous article by stating the extent, at which a fair trial achievable. It provides that those charged with criminal offences possess the right to examine or have examined witnesses against them on the same conditions as those given to the witness defending them. Considering the two issues of article 6, issues arise as to whether the defendants in these cases had the right to examine a witness as provided in this question. In the case of Mr. Horncastle and Mr.

Blackmore, the two were facing cases of intentionally causing body harm to Mr. Rice who had died before the trial. It is worth noting that his death was because of factors not attributable to the injuries caused by the two defendants. Looking at this case, there is no doubt that Mr. Horncastle and Mr.

Blackmore did not exercise their right to examine witnesses against them as provided by in article six. However, this happened under extra-ordinary conditions that the law does not define, thus leaving out a loophole for the judges to decide otherwise. Looking at the other example that involves Mr. Marquis and Mr. Graham, the issue is more contentious than in the previous case. These two were guilty and convicted of kidnapping Hannah Miles.

Miles fails to show up for examination against the two with the reasons of fear as stipulated in the law. This, too, clearly indicates that the Marquis and Graham did not have a chance to examine witnesses against them as provided in section 6. Therefore, in the two cases, the defendants never had their rights to examine witnesses against them as provided by law. Such evidences are not admissible by law. The second issue that arises is, whether the court was correct on its actions of accepting the statements of the unexamined witnesses and convicting the defendants. Looking at the case regarding Mr.

Rice, the court relied on section 116(1) and 2(a), which provides for admissibility of statements from witnesses who cannot testify during the trial because of their death. In the case of Hannah Miles, the judges relied on section 116(1) 2(e) of the Criminal Justice Act 2003, which provides for admissibility of statements recorded by victims who are not capable of testifying in court with the reasons of fear. However, the section is arguable, since it is practically not easy to determine whether the victim is avoiding the examination because of fear or personal reasons. However, observing the offences that led to the trial may give a clue as to whether the victim is indeed in fear. In this case, having involved kidnapping of a young woman, the court was convinced that Hannah Miles was indeed in fear (Jonston, 2008).

There also arises the issue of whether a person should be convicted basing on sole statements presented against the person by unexamined witness. By this, the appellants have a genuine argument by asking the court to treat the issue in partiality. They feel that in the case of a trial depending solely on a single witness, the presence of the witness for examination is mandatory. This further leads to the second option where the case should proceed against the defendants with ease. However, this is practical, if the witness is not the sole source for which judgment is relied. An overview of this issue favors the defendant at glance.

It seems unfair to convict a person of a crime presented solely by an unexamined witness. The other issue that emerges arises from section 2(1) of the Human Acts Rights 1998. This section directs the court to take into account any judgment made earlier by the European Court on Human Rights, when deciding related issues. In this cases, the defendants requested the court to emulate the decisions arrived at in the Al-Khawaj Chamber. The Strasbourg jurisprudence had ruled cases that favored defendants who faced with charges that could only be determined on reference to statements recorded by a sole unexamined witness. The cases further raised issues on level, at which a court should take into account the decisions and rulings of another court.

The outcomes of these two cases were against the defendants. There appeals did not go through and were all rejected. Mr. Horncastle and Mr. Blackmore faced convictions of causing body harm to Mr.

Rice who had died without his examination by the two. Their appeal to have the ruling overturned was neither successful. Mr. Marquis and Mr. Graham’s conviction of kidnapping Hannah Miles who failed to testify before the caught as a result of fear proceeded. Their subsequent appeal to have the ruling overturned was unsuccessful.

In his ruling, Lord Phillips, President, did not accept the submissions that requested him to take into consideration the jurisprudence of Strasbourg, which treated such cases with exceptions. Lord Phillips felt that the court would only follow the Strasbourg jurisprudence if it felt that the jurisprudence fully accommodates aspects of its domestic process. Lord Brown was in full agreement with Lord Phillips too. In his ruling, he condemns the Strasbourg cae laws, which do not recognize statements written by sole unexamined witnesses, when the statements are the vital information that determines the verdict of the court. The Strasbourg laws indicate that such defendants could not be treated unfairly as it would contradict with the laws stipulated in section 6 (1) and 6 (3) (d). Lord Phillips indicates that such jurisprudence would result in the court acquitting guilty persons because of the absence of individuals who would have testified against them.

In fact, guilty individuals will have a single task of ensuring that the victims planning to testify against them do not do so to win their cases. By observing the rulings presented, the ratio was greater on the victim’s side. The final ruling was against the appellants despite their having existed cases, where other courts had ruled such evidence presented by unexamined witness as inadmissible. This is particularly, when the evidence is perceived to be the main determining factor of the ruling. By looking at the above rulings, it is paramount and compelling to analyze and determine how the court arrived at its final ruling in the case involving Mr. Rice.

Firstly, the court had to rule on the aspect of whether the witnesses presented admissible or inadmissible statements in court despite their absence during the trial. On determining this case, the court relies on section 116(1) and 2(a) that allows the court to consider statements as “admissible,” if unexamined witness whose reason for absence is death presents the statements. This general law covers both victims, whose death was because of either the defendant or those, whose death is not in relation to the defendant’s case in court.Considering this section, the defendants, Mr. Horncastle and Mr.

Blackmore faced convictions upon the court admitting the statement recorded by the deceased Mr. Rice who died from causes not related to the bodily harms involved in the case. The statement against them presented by the Mr. Rice was, therefore, admissible in reference to section 116(1) and 2(a). Their appeal to have the cases reviewed failed too.

On their appeal, Mr. Horncastle and Blackmore relied on the fact that the law requires a court to take into account the rulings made by another court on related issues. In this case, the defendants felt that the court should borrow an example set by the Strasbourg court that dismisses statements presented to it by unexamined witnesses, if the statements serve as the sole basis for which judgment should rely on. On its ruling against Mr. Horncastle and Blackmore, the court felt that the above is practical only if the Strasbourg jurisdiction would fully accommodate the domestic proceeding of their court.

Their appeal was, therefore, inadmissible. Regarding the case involving Hannah Miles, the court too, based on the above sections, to make their rulings be reasonable. The slight difference arises from the fact that the sole witness was not dead in the process of trial. Hannah Miles did not show up for examination by the defendants for the reason of fear as provided in section 116(1) 2(e) of the Criminal Justice Act 2003, which indicates that statements are admissible, if presented by victims who fail to show up for examination as a result of fear (Jonston, 2008). Though fear might seem complicated to judge, the matter was easily determined in this. Having involved a young person of the famine gender, it was evident that fear could arise from such a victim.

Adding weight on the matter, the two defendants were guilty of acts that involved kidnapping, thus, possible causes of trauma and fear to young persons of the famine gender. On this regards, the court found the statements admissible, convicted the defendants, and dismissed their attempts to have rulings overturned in the appeals. The above cases are of considerable importance on the development of law. This is an example of cases that involve issues that are contentious within the law. The two key issues within the law that such cases might result to their further developments, lie within the sections of human rights. Arguably, in this matter, the law has two sections, whose full approval leads to the disapproval of another section.

This arises in section 116(1) and 2(a), and 116(1) and 2(e) of the Criminal Justice Act 2003. The former section admits any evidence presented by a witness not present for examination because of death, subject to the condition. The latter section admits evidence presented to court by a witness who does not show up for examination with reasons of fear, subject to the condition. Section 6(1) and 6(3) (d), however, stress on the need to ensure that defendants are in subjection to fair, timely, and public trials. 6(3) (d) indicate that a defendant has the right of getting the chance to examine witnesses set against him.

This ought to take place on equal measures as those of witnesses set to testify for the defendant. Observing the two cases, it brings a scenario, where the law finds statements recorded by dead or afraid victims as being admissible, which contradicts the fact the defendants are denied their rights of examining the witnesses as provided by in section 6 (3) (d). This contentious issue is, therefore, essential in further developments of the law, since it prompts for further exclusions and conditions that have to be included in the two sections. On further developments, there will be an assurance that no violation of other sections on fulfillment of another separate section within the same law. The second contentious issue, which would probably face development due to the existence of such cases, arises in section 2(1) of the Human Acts Rights 1998. It directs the court to take into account any previous ruling made by the European Court of Human Rights in determining of any case that has related issues.

However, the judges in these cases have the arguments that the matter is only admissible only, if the other courtt whose ruling is taken into account is capable of fully accommodating the domestic procedures of its court. Scrutiny of this matter leaves the laws with loopholes that require further developments. This will define the limits, at which there is an exemption of the court from taking into account the rulings of other courts concerning same issues of concern. The ruling made in these two cases could easily affect decisions in previous court rulings in separate cases. A perfect example is the case with which the defendants quotes to drive home the issue that arises from the section 2 (1) of the Human Acts Rights 1998.

In the sample cases of Al-Khawaja and Tahery v the United Kingdom (2009) 49 EHRR 1, the defendants are acquitted on conditions that they are presented against a witness who is not examined in the trial process. The fact that the evidence against the defendants has a perception of being sole or being the decisive basis of the cases, the court finds it inadmissible, since it will lead into the breach of law that stipulates the rights of a defendant to face a fair trial by examining of witness set against him. The court acquits Al-Khawaja and Tahery. The proceeding of another case of Lucca v Italy (2001) 36 EHRR 807 relies on this former ruling as stipulated by the law and acquits Luca on reference to the law that he was not given the opportunity to examine witnesses testifying against him. By looking at these two rulings, it is evident that decisions following the cases of Mr.

Rice and Hannah perfectly contradicts are renders them inefficient. Such rulings might lead to several effects. The first one being the possibility of the either side re-appealing the decisions made by the court in order to match the decisions made by the other courts in pursuit of section 2 (1) of the Human Rights Acts. Such actions may result in untimely conclusion of cases. Secondly, such rulings may result in conflicts between different laws in terms of the interpretation of the law. Such disputes will also affect the choice of court, in which an individual files his/her case.

As an example, a complainant who is afraid to be examined in court by the defense will never opt to file the case in the Strasbourg court with an assurance that the defendant will walk free, however, guilty he/she might be. Such predictable outcomes to citizens are undesired. Though developments are never sufficient in law, there have been subsequent developments on the hearsay rule ever since its enactment. In the middle of the 20th century, it came as a discovery that the full application of the hearsay rule without exclusions meant denial of justice. Its full application led to the creation of obstacles that that denied justice to victims who could not justify their statements recorded earlier. This mostly happened in cases, where evidence was sole, and the victims were dead.

Defendants of such cases managed win their cases, even if their guilty was logical. The system was prejudicial to the defendant, since it did not allow any other man to witness for murder against a defendant, unless the victim did so, before his death. As an initial development, creation of exceptions took place after the observation that many guilty defendants were walking out of courts freely. In 1965, the abolishment of the hearsay rule by the Criminal Evidence Act 1965 took place and was later re-enforced by the Police and Criminal Evidence Act of 1984. These acts, however, were in a way to safeguard the section 78 (1) that allows the court to refuse exceptional evidence, when it is believed the persecution relies on evidence that seems to deny the defendants his fairness.

Observation of this may be through various circumstances including those through which the acquisition of evidence based.The Criminal Justice Act of 1988 too made further changes in the hearsay rule. The act was further replaced by the Criminal Justice Act 2003 that implemented the report made by the Law Commission on 4th. April 1997. The report was a basis of the evidences on criminal proceedings of 1995.

The Law Commission had published a paper in the year 1993. The paper was in response to the general call for reforms made by the Royal Commission on Criminal Justice in 1993. Personally, the reasoning and the decisions made in the two cases are correct. However, I would find it necessary the discussion of the excising loopholes that I feel still exists within the law and need further development. Firstly, the case of Mr. Rice involves a situation, where the complaint recorded the statement before his death.

Such statements are perfectly acceptable, as stipulated in the law. However, the fact that the idea of admitting of the statement renders human right section unattended to is of serious concern. Furthermore, dismissal of such evidence, if allowed, will acquit guilty defendants. The case involving Hannah Miles was too, decided through a fair trial whose reasoning I totally agree. The basis of this case is straightforward though arguable. Hannah was a young woman and the case involved kidnapping.

This was a sufficient reason to make the court to believe that Hannah was afraid to meet her culprits in court for examination. This makes her statements admissible thus leading to the conviction of the culprits. However, the reasoning behind the court’s admitting of Hannah’s statement could have been improved, if the prosecutor would have taken the initiative to prove that indeed, Hannah was afraid to turn up for examination by the defendants due to fear. Although the law does not regard this as a necessity, many will see this as a loophole. Some might intentionally avoid examination in a future case, particularly if the cases involve young persons of ages less than 18 years. The court may have scaled the existence or extend of fear by allowing Hannah to appear before the court in prior to the examination process.

By this, court would fairly decide whether the complainant is indeed in genuine fear and not willing to face interrogation because of the same fact.