Lord Binghams Dicta on the Principle of Legality - Case Study Example

Instructions. Hi my feedback is in green after your remarks. I have attached a copy of the piece you have written and I have colour d the things I would like changed.Pink- I have highlighted the quotes which are written in the main text which increase the word limit (every word in the main text counts towards the word count but obviously the footnotes do not) I would like these to be either incorporated into the main text in your own words but please keep in mind the word limit or somehow written into the footnotes with an explanation in the main text.

DoneBlue- I would like you to specify each Article for example use the main heading of what the Article is for so its more clear. DoneRed- I'm not sure if that is a mistake (2060) It's taken from the judgment.Green- I do not like the idea of writing 'para 15' etc as it would not be clear to someone reading it to what it stands for, therefore I would like the footnotes to be more explicit, clear and precise. Also could you emphasise a bit more on how Lord Bingham invoked the principle of legality if that is possible.

Another point is that in my lecture handbook under the Illegality lectures I have been given a list of cases referring to illegality I have listed them all below if they apply to the question could you use a few of them in the main text if they refer to the question.R v Port of London Authority, ex p Kynoch Ltd [1919]AG v Fulham Corporation [1921]Ellis v Dubowski [1921]Mills v London CC [1925]White & Collins v Min. of Health [1939]Carltona v Commissioner of Works [1943]Barnard v National Dock Labour Board [1953]Anisminic Ltd v FCC [1969] British Oxygen v Min.

of Technology [1970]Lavender v MHLG [1970]R v Race Relations Board, ex p Selvarajan [1975]Congreve v Home Office [1976]Pearlman v Keepers and Governors of Harrow school [1979]Zamir v S/S for Home Dep.t [1980]In re Racal Communications Ltd [1981]R v S/S for Home Dep.t, ex p Khawaja [1984]R v Chester BC, ex p Quietlynn Ltd (1985)Wheeler v Leicester CC [1985]R v Hillingdon LBC, ex p Puhlhofer [1986]R v ILEA, ex p Westminster CC [1986] R v Waltham Forest LBC, ex p Baxter [1988]R v Lord President of the Privy Council, ex p Page [1993]R v S/S for Foreign Affairs, ex p World Development Movement Ltd [1995]R v North West Lancashire Health Authority ex p A [2000]R (CC West Midlands) v Birmingham Justices [2002]E v S/S for home Dept [2004]I'm not really sure if all of these are relevant but if any do relate to the question could you please use them.

I've had a look at some of these cases. They do not cover the legislation with which the question is concerned. The question is very specific too, requiring an analysis of Lord Bingham's method, rather than a general purview of the law on the principle of legality.I would be ever so grateful if you could make all these changes, thank you so very much. IntroductionThe case concerned the theoretical question of whether evidence obtained under torture could ever be admissible in a court of law.

The Home Secretary had powers under Part 41 of the Anti - Terrorism, Crime and Security Act 2001 (ATCSA) to indefinitely detain without trial foreign individuals suspected of international terrorism. It applied to persons who 'cannot be deported because there is no 'safe' country to which they can be sent'.2The detainees were able to challenge their detention under s25 and s30 ATCSA. S25 allowed an appeal to the Special Immigration Appeals Commission (SIAC) against the Home Secretary's decision and Section 30 ATCSA allowed the SIAC to hear appeals against the validity of the UK's derogation from Article 5 ECHR3.

Lord Bingham's Dicta on the Principle of LegalityThe House of Lords had to decide whether the Special Immigration Appeals Commission (SIAC) could rely on evidence obtained under torture by a foreign power - without UK complicity - during an appeal hearing.4Evidence had been obtained from third parties by agents of the United States using methods known as 'interrogation by extraordinary rendition'5. The SIAC and the Court of Appeal (CA) held that the evidence was admissible6. The CA majority decision was based on Rule 44(3) of the SIAC procedural code which allows the SIAC to review evidence which would not be admissible in a court of law7.

Laws LJ expressly excluded evidence obtained with the complicity of the Home Secretary or any English authority regardless of the contingency8. The appellants argued that:The common law position is firmly against torture which is enshrined in s76 of the Police and Criminal Evidence Act 1984Article 15 UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990, Cm 1775) - 'the Torture Convention' - prevents reliance on evidence obtained in this matter except against a torturerThe detainees also relied on Article 3 ECHR (no torture, inhuman or degrading treatment) and Article 5(4) ECHR (a fair trial and the speedy release of an unlawfully detained person).

Torture has not been sanctioned in England since 1640.9 Lord Bingham reviewed dicta in earlier cases10 and found that the common law has refused to accept that oppression or inducement should go to the weight rather than the admissibility of the confession.11Besides the inherent unreliability of such statements Lord Bingham quoted Lord Griffiths in Lam Chi-ming v The Queen [1991]12 who argued that a person should not be compelled to incriminate him/her -self, and that rejecting evidence obtained by force would also act to remove an excuse for police to ill-treat people in custody13.

Lord Bingham concluded that other commonwealth jurisdictions considered that the confessions rule focused on protecting an accused's rights and the fairness of the criminal process.14Lord Bingham averred that there were strong dicta concurring with the view that courts should not be a party to acts which abuse human rights, the rule of law or abuse of executive power.15As public bodies the SIAC and the Home Secretary had a duty not to act incompatibly with the Convention by virtue of s6 Human Rights Act 1998.

Lord Bingham reminded the court that Article 316 of the Convention is non-derogable and viewed as a fundamental value of democracies.17 With regard to Article 5(4) his lordship explained18 that all detained persons have the right to a speedy trial to determine the lawfulness of their detention and that those proceedings must satisfy the requirements of a fair trial. In the cited cases one of the factors taken into account to determine whether the proceedings are fair is the manner in which the evidence has been obtained or is used.

19 A court which relies on evidence obtained by torture has been party to a breach of both articles 3 and 6(1).20 In international law the prohibition against torture is jus cogens erga omnes.21 States also have the duty to 'reject the fruits of torture' in order to ensure that torture is discouraged.22 Reliance on evidence procured in this way can only bring the judicial proceedings into disrepute23. Even when states were in extremis they could not derogate from this rule24. ConclusionLord Bingham worked backwards to the principle of legality, explaining that this case was not about the rules of evidence but a constitutional principle.

It is not the task of the court to query the sovereignty of Parliament; however the court will apply constitutional principles in those cases on which it is called to decide.25 A 4 to 3 majority held that the burden of proof should fall upon the SIAC to establish whether the evidence was obtained by torture on a balance of probabilities. This was based on the argument that a balance had to be struck by the guarantees of international law and the outrageous actions of terrorists. As Pattenden (2006: 3) explains the fight against international crime may require the UK to rely on evidence which has been obtained by methods which may be considered to be torture here, but are not unusual in the source country.

This decision was criticized by the minority who said that this would undermine the 'Torture Convention' denying detainees the standards of fairness to which they are entitled under Articles 5 (4) and 6 (1) ECHR since they are least likely to be aware of who has accused.BibliographyFrost, T. (2006). Legal Commentary On The Use Of Torture Evidence. Campaign Against Criminalizing Communities.Pattenden, R. (2006). Admissibility In Criminal Proceedings Of Third Party And Real Evidence Obtained By Methods Prohibited By UNCAT.

The International Journal of Evidence & Proof.Stone, R. (2004). Textbook On Civil Liberties And Human Rights. Oxford University Press.CasesA and others v Secretary of State for the Home Department [2004] UKHL 56 , [2005] 2 AC 68Ajouaou and A, B, C and D v Secretary of State for the Home DepartmentChahal v UK (1997) 23 EHRR 413Director of Public Prosecutions v Ping Lin [1976] AC 574 Garcia Alva v Germany (2001) 37 EHRR 335Ibrahim v The King [1914] AC 599 Lam Chi-ming v The Queen [1991] 2 AC 212Montgomery v H M Advocate, Coulter v H M Advocate [2003] 1 AC 641, 649. R (West) v Parole Board, R (Smith) v Parole Board (No 2) [2005] UKHL 1, [2005] 1 WLR 350".

R v Baldry (1852) 2 Den 430R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42R v Latif [1996] 1 WLR 104R v Looseley, Attorney General's Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060 R v Mullen [2000] QB 520 S v Nkomo 1989 (3) ZLR 117Saunders v United Kingdom (1996) 23 EHRR 313; Soering v United Kingdom (1989) 11 EHRR 439. Teixeira de Castro v Portugal (1998) 28 EHRR 101Wong Kam-ming v The Queen [1980] AC 247