Download The Right to Silence in Transnational Criminal Proceedings: by Fenella M. W. Billing PDF

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By Fenella M. W. Billing

This ebook considers the effectiveness and equity of utilizing foreign cooperation to procure confession proof or facts of a suspect or accused person’s silence throughout borders. this can be a query of stability in proscribing and retaining the appropriate to silence. The functioning of the acceptable legislation in Denmark, England and Wales and Australia is analysed on the subject of investigative and trial measures comparable to police wondering, administrative wondering powers, covert surveillance and using silence as proof of guilt.On the nationwide point, this paintings examines the way family principles stability the appropriate to silence in nationwide felony complaints, and no matter if investigative and trial ideas produce continuity during the legal complaints as an entire. From the transnational point of view, comparative criminal research is used to figure out no matter if the nationwide continuity could be disrupted to such an volume that cooperation within the amassing of confession proof reasons unfairness. From the overseas standpoint, this study compares the proper to silence lower than the ICCPR and the ECHR to spot the general impact of cooperating below specific human rights frameworks at the query of balance.

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20–21. 99 Crawford (2012), p. 21. 100 Crawford (2012), pp. 42–43; Moeckli et al. (2010), pp. 118–122. 101 Crawford (2012), p. 194; Moeckli et al. (2010), p. 120. 102 Crawford (2012), p. 24. 103 Nevertheless, the reality is that judicial decisions contribute greatly to the development of international law by interpreting the treaties and filling out their meaning. 104 International and national courts make frequent crossreferences to the way in which an area of law has been developed by another court.

88. 156 Waaben and Langsted (2011), p. 18. 157 Victorian Law Reform Commission (2009), p. 26. 158 McCullough v The Queen [1982] Tas. R. 43 at 57. 159 This is particularly so in the legal systems of Council of Europe countries that have ratified the ECHR and come under the supervision of the ECtHR. The right to a fair trial has become the most relevant way of defining and analysing fairness in the modern criminal trial. The right to a fair trial encapsulates the safeguards that are necessary to bring about justice, also for the suspect or accused.

Nevertheless, judicial decisions of national and international courts dealing with torture, ill-treatment or dishonesty may be indirectly relevant where they add to the interpretation of the meaning of ‘fairness’ in the context of the right to silence. Often, when the question of fairness and admissibility of evidence is raised in criminal cases, this is in relation to cases of entrapment. In situations of entrapment there is a direct involvement of law enforcement officers in the commission of crime.

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