The Section 41 Approach In Sexual Offence Trials Law Essay - Free Essay Example

Sample details Pages: 8 Words: 2324 Downloads: 1 Date added: 2017/06/26 Category Law Essay Type Analytical essay Did you like this example? Historically, the prejudicial effect of rape myths and sexual history evidence has been problematic for the courts in sexual offence trials. In 1999, Parliament enacted s.41 of the Youth Justice and Criminal Evidence Act to place stringent restrictions on sexual history evidence. However, these provisions have caused some difficulties for the courts. While the landmark case of A(2) resolved some of the issues, it will be put that the law remains vexed and, once again, in dire need of reform. A new approach is required which does not exclude evidence from consideration by the jury. Instead, rape myths need to be attacked directly, so they can be eradicated, and their impact neutralized. This discourse will be prefaced by a discussion of the events leading up the 1999 Act, followed by a cursory overview of the approach taken by s.41 in order to highlight some of the primary problems with the legislation. Subsequently, the House of Lords decision in A(2) will b e scrutinized, followed by consideration of some suggestions for reforming the law. Traditionally, the investigation and prosecution of rape and other sexual offences has been rife with difficulties, especially in the area of evidential requirements. Aggressive questioning of female complainants about personal sexual matters was commonplace, and sexual history evidence was considered relevant to consent and credibility. Over time, myths and stereotypes developed which exerted prejudicial effects on the fairness of trials. In R v Riley, evidence of previous voluntary sexual relations with the accused was admissible in order to assert that it was more likely that the complainant consented to the incident in question.  [2] In 1975, the Heilbron Committee considered legislative reforms, examining the impact of sexual history evidence. Their report recommended that it should only be admissible in very limited circumstances, that there should be some limited judicial discretion along with an inclusionary rule based on striking similarity. Unfortunately, when drafting s.2 of the Sexual Offences Act 1976, these proposals were largely ignored. The complainants sexual behaviour with someone other than the defendant should only be referred to when it would be unfair to exclude it, based on the judges discretion.  [3] However, the practical application by the courts was too permissive with too much judicial discretion, resulting in sexual history evidence being admitted too freely.  [4] Amidst growing disquiet, in 1998 the Home Office scrutinized the practical application and the failures of the 1976 Act. The White Paper Speaking Up for Justice exposed numerous inherent weaknesses which necessitated reform.  [5]  This report was criticized by Diane Birch and Neil Kibble for contributing to the shortcomings of Parliaments response in 1999. The YJCEA debates on the draft bill reflected a lack of consensus on the ideal approach to rape shield l egislation, including prevalent concerns about over-restrictiveness and the dangers of excluding relevant evidence.  [6]  The wider jurisprudence was surveyed, including approaches in Australia, Canada, and Michigan. The landmark Canadian case R v Seaboyer  [7]  , where McLachlin J. coined the term twin myths, challenged the provisions of s.276 of the Criminal Code composed of a rule of exclusion with three exceptions.  [8]  Resultantly, the Canadian Supreme Court held that s.276 unconstitutionally violated the right to a fair trial. The impact of these developments played a central role in the YJCEA debates in the UK, as ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒâ€šÃ‚ ¦they were cited as evidence that legislative straitjackets had been attempted and failed.  [9] Parliaments response was s.41 YJCEA 1999, which engendered a more restrictive and structured approach to attacking the twin myths that sexual experience may indicate a propensity to consent and a lack of veracity.  [10]  The aim of the legislation was to strike a balance between protecting claimants from the prejudice of sexual history evidence while securing the defendants right to a fair trial. The blanket rule of exclusion under 41(1) restricts evidence or questions about any sexual behaviour without leave of the court, which will only be granted where both conditions of the two-part test are satisfied; under s.41(2)(a) where either ss.(3) or (5) applies, and the unsafe verdict test, under s.41(2)(b). Any questions or evidence pertaining to the actual incident can be adduced, such as questions about what the complainant said or did before or during the incident, including humiliating questions. Also, anything not about sexual behaviour, and not including sexual history evidence can be adduced. The rape shield legislation targets other sexual behaviour outside the charge, legitimately seeking to exclude sexual history evidence that is not related to the incident. There is a closed list of four narrow gateways (or exceptions) within which evidence may be regarded as critical. Notably, within a matter of days of coming into effect, the legislation warranted a challenge to the House of Lords to consider whether they were broad enough to prevent injustice.  [11] The non-consent gateway may admit evidence pursuant to s.41(3)(a), if it is not an issue of consent, such as mistaken identity  [12]  , honest belief in consent, motive to fabricate, or alternative explanation. The consent gateway, may admit evidence about an issue of consent, which is about sexual behaviour which took place at or about the same time as the subject matter of the charge (res gestae)  [13]  , or it is so similar to behaviour that took place as part of the incident that it cannot be explained as coincidence (similar fact). The fourth gateway applies only when the prosecution has adduced evidence about the sexual behaviour of the complainant, whereby the defence can only go as far as is necessary to enable that evidence to be rebutted or explained.  [14] Upon passing through a gateway and surmounting the two-part test, two further requirements arise. Under s.41(4), questions or evidence intended to impugn the credibility of the complainant are restricted. As well, under s.41(6) evidence or questions must relate to a specific instance of sexual behavior.  [15] These provisions have raised numerous fundamental concerns. Unlike other jurisdictions, the leave requirement does not apply to the prosecution, making s.41 a one-sided rule of exclusion that only applies to the defence.  [16]  Lord Hope recognized the dangerous threat this posed to the equality of arms principle enshrined in Article 6(3)(d) of the Convention.  [17]  For instance, under s.41, the prosecution would be permitted to adduce evidence of the complainants virginity to illustrate that it was unlikely that she consented to the alleged acts. On the other hand, the defence is prev ented from adducing contrary evidence that the she has experience with multiple partners to show that she is more likely to have consented. Allowing one but not the other seems imbalanced, and raises the broader question whether the true rationale for s.41 is on excluding irrelevant evidence or protecting against humiliation of complainants in cross-examination.  [18] The vague definition of sexual behaviour under s.42(1)(c) has resulted in some difficulties,  [19]  though it is considered controversially wider now, since it covers evidence of previous or subsequent sexual behaviour with the accused and with third parties. As will be seen, this was a fair trial flashpoint in A(2).  [20]  Professor Birch has argued that equating the accused with third parties creates the danger of redefining the defendant as a stranger, thereby giving potency to the old myth that real rape is committed by strangers.  [21]  For example, relevant evidence of a previous romantic relatio nship between the defendant and the accused which included sexual relations a few days before the incident in question may be excluded unless it can pass through the narrowly drawn res gestae gateway. If it cannot (and does not satisfy the unsafe test), Thre is no discretion to include it even though it may be highly relevant to the defence case. The restrictive gateways approach has created integral concerns regarding the exclusion of relevant evidence, where its prejudicial effects compromises the fairness of trials. Combined with restrictions on judicial discretion, the shortcomings of using only three fixed exceptions to try and predict every eventuality is exacerbated further. Neil Kibble, in his 2004 report, stated that other jurisdictions like Canada and Australia have already rejected this pigeon-holing approach on the ground that even if judges get it wrong you cant address the problem effectively by eliminating their discretion.  [22] The shortcomings of s.41 reach ed critical mass in the landmark case of A(No.2) which involved a rape trial, where the accused alleged an ongoing sexual relationship with the complainant three weeks prior to the incident in question, with the last occasion being one week prior. The trial judge had sought to admit evidence of the previous relationship as relevant to consent, but was unable to do so through one of the gateways. Thus, following the decision of the Court of Appeal,  [23]  the House of Lords intervened, to examine whether excluding such evidence under s.41 would contravene the defendants right to a fair trial pursuant to Article 6(3)(d) ECHR. One of the touchstone issues identified included the extent to which the defence could refer to matters outside the central facts in order to provide the court with fundamental evidence, the absence of which may result in an unjust verdict. Lord Hutton stated that the right of a defendant to call relevant evidence, where the absence of such evidence may gi ve rise to an unjust conviction, is an absolute right which cannot be qualified by considerations of public interest, no matter how well-founded that public interest may be.  [24] Their Lordships contemplated whether a sexual relationship between the accused and the complainant was relevant to the issue of consent such that to exclude it under s.41 would contravene the defendants right to a fair trial. Reaching a decision required the importation of a residual discretion to decide whether leave should be granted to the defence to adduce evidence of the relationship if it was so central to the issue of consent, that to exclude it would threaten the Article 6 Right to a fair trial. This was achieved by employing s.3 HRA 1998 by reading and giving effect to the similarity exception within s.41(3)(c) in a way that was compatible with Convention rights. Their Lordships qualified their decision by stating that while the aims of the provisions were legitimate, the approach raise d questions about proportionality regarding sexual behaviour with the accused. Thus, it was agreed that such evidence could be sufficiently relevant to necessitate its admission in the interests of fairness. Thus, s.41 was rescued from the clutches of repeal, some residual discretion for trial judges was restored, and the gateways relaxed in the interests of fairness. In some respects, the law seemed come back around full circle to where it was before the 1999 Act, based on fairness tempered with judicial discretion.  [25] However, along with this flexibility came a degree of uncertainty, as it created the danger that the rationale could be broadly applied in any case where the judge adopted the view that fairness under Article 6 may be threatened. Cases such as R v Rooney,  [26]  R v Martin,  [27]  R v R (2),  [28]  and R v White  [29]  indicate how the courts have struggled in the aftermath of A(2). In 2006, a Government White Paper looked at the effecti veness of s.41, whereby National statistical data revealed that s.41 had little or no effect on attrition, while rape conviction rates continued to fall. The report also found that the Crown Court Rules regarding s.41 were frequently ignored or avoided, and recommended that reforms were necessary in order to increase the effectiveness of the legislation.  [30] A way needs to be found to bring rape myths out in the open so they can be eradicated, and their impact neutralized. Diane Birch stated that if juries can only be trusted to adjudicate on cases of rape within relationships by being kept in the dark about the relationship, there is something fundamentally wrong with jury trial.  [31] The law should equip judges and juries with the tools needed to effectively attack rape myths in order to mitigate the prejudice of sexual history evidence, like other areas of law such as bad character have done, with enhanced judicial training and jury directions. Interestingly, Vera Ba ird, QC, the Solicitor-General, recently announced that jury directions are being developed that would instruct juries to ignore rape myths in an effort to increase conviction rates in the UK (amongst the lowest in Europe).  [32] Consideration should be given to amending the current gateways to widen the scope of factors considered, and additional gateways should be added such as implementing a safety-valve type of residual discretion in order to admit evidence falling outside of the exceptions, similar to the approach taken by s.276 of Canadian Criminal Code after the ruling in R v Seaboyer.  [33]  This should reflect a recognition of the value of contextual factors as explanatory evidence, in line with Lord Huttons mindset argument approach in A(2). The culmination of what has been discussed thus far establishes that the aims of s.41 YJCEA 1999 are legitimate, as rape myths have threatened the fairness of trials for centuries. However, it has been argued that the appro ach taken by s.41 does not strike an effective balance between protecting the complainant from the ravages of sexual history evidence versus securing the defendants right to a fair trial under the Convention. The restrictive gateways are incapable of foreseeing every eventuality, and thus create the potential for relevant evidence to be excluded from consideration by the jury. The House of Lords decision in A(2) addressed this issue, and was required to import in some residual judicial discretion in order to resolve the dilemma and prevent repeal of the Act. However, this decision created some uncertainty, which has left the law unresolved and in a muddle. The suggestions for reform center around one underlying theme: the law needs to move towards enabling judges and juries to squarely attack the rape myths, and be able to handle sexual history evidence with the sensitivity required so as to mitigate prejudice while not risking the fairness of trials. A fine balance must be st ruck between the flexibility of some limited judicial discretion and the certainty provided by the legislative restrictions of s.41 in order for the law to operate effectively. The former must not come at the expense of the latter. Don’t waste time! Our writers will create an original "The Section 41 Approach In Sexual Offence Trials Law Essay" essay for you Create order

Truman And The Cold War Essay - 1859 Words

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Informative Speech on Accounting outline - 1684 Words

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Benjamin D. Powell Free Essays

Benjamin D. Powell makes an argument in his paper â€Å"Exploring Mirror Neurons: Rethinking Performance and Communicative Processes† that will make every self-avowed video game dork ecstatic. The concept that by observing an action repeatedly our mirror neurons learn to perform the action will appeal to thousands or even millions who spend their days in front of a television or video screen rather than out experiencing life. We will write a custom essay sample on Benjamin D. Powell or any similar topic only for you Order Now Powell adds the caveat that without practicing the action, the body will not be able to perform it with the skill of a trained athlete, but argues that the presence of mirror neurons explains why he was not more injured when hit by a car. The paper claims that the presence of mirror neurons may indicate that more study is needed regarding how our bodies develop skills and what effect activities like playing video games have on our neurological development. At worst, Powell’s theory is an interesting pipe dream. At best, it is hope for the people who spend too much time playing â€Å"World of Warcraft†. Unfortunately, the reality is it seems to be something of a pipe dream. It is much more likely that he simply got lucky when the car hit him and instinctively tucked and rolled. And, the car, which he described as barreling toward him, probably was not moving with the speed he believed it to be.   Writing for the British Journal for the Philosophy of Science, Kathleen Wilkes seems to echo parts of Powell’s basic thesis. (Wilkes 111). She argues that the possibility exists that people are capable of learning simply through observation, but there is no hard science to defend either her statement or Powell’s. The reality is that this is some odd combination of philosophy and science, with people speculating on something that science has yet to be able to measure or prove. In the end, while the philosophy of a mind-body link so deep that the mind can control the body’s actions after merely observing an action seems plausible there is no science to back it up. Powell’s evidence is merely a corollary, coincidental and not direct proof of a tie. To actually prove Powell’s theory would be difficult and complicated. One would have to prove that there was simply no other way, short of mirror neurons that the test subject could have learned to complete a specific action. And, the researcher would have to be able to determine how much of the action and the response to it is based on intellectual knowledge versus muscle knowledge. In short, the researcher would have to prove that simply watching someone swing a bat repeatedly would equate to the ability to do it and that the ability is more than the intellectual knowledge of where to place one’s hands on the bat. He would have to prove that Powell’s escape from injury was more related to his ability to tuck and roll than his knowledge that tuck and roll was the right way to minimize the force of impact of an oncoming car. Ultimately, Powell’s problem becomes in determining what actions are effective because of the mental processes telling us how to do them and which ones are effective because of the muscle knowledge of when to flex or release. Even making the differentiation there could take years. WORKS CITED Powell, Benjamin D. â€Å"Exploring Mirror Neurons: Rethinking Performance and Communicative Processes.† Wilkes, Kathleen V. â€Å"Brain States†Ã‚   The British Journal for the Philosophy of Science, Vol. 31, No.2. June, 1980. pp. 111-129.    How to cite Benjamin D. Powell, Essay examples

Starbucks Company Profile free essay sample

Starbucks Corporation is an international coffee retailer and chain coffeehouse based in Seattle, Washington. It is the largest coffeehouse company that buys, roasts, and sells whole bean specialty coffees and creates, sales of specialty coffee drinks through chains of retail outlets internationally. 3 aspiring businessmen, Jerry Baldwin, Zev Siegl, and Gordon started it in 1971. In the beginning, it was just a roaster and retailer of whole bean and ground coffee bean, tea and spices from a single store in Seattle’s Pike Place Market. Starbucks was named after Herman Melville’s Moby Dick, intrigued of the early sea sailing tradition of coffee traders. In 1985, Howard Schultz joined the company. He adopted the concept of Italian espresso culture, from his travel to Italy and grew Starbucks business. From a couple of shop to presently 17,018 shops globally. (Starbucks, 2011) Company Factsheet – Reference Jul 2011. We will write a custom essay sample on Starbucks Company Profile or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Starbuck’s mission statement states â€Å"to inspire and nurture human spirit one person, one cup, and one neighborhood at a time† (Starbucks, 2011) Company Factsheet – Reference Jul 2011. This is accomplished by providing wide selection of products to meets the needs of variety of customers, while maintaining standard of quality. Maintain strong business relationships with in outbound business partners which in return mutually beneficial for long-term business growth. Starbucks promotes an empowering employee culture through training constant communication through all level of staff. These are the various examples in relation to Porter’s Value Chain. Business Week adds: Clustering stores increases total revenue and market share, [CEO] Orin Smith argues, even when individual stores poach on each other’s sales. The strategy works, he says, because of Starbucks size. It is large enough to absorb losses at existing stores as new ones open up, and soon overall sales grow beyond what they would have with just one store. Meanwhile, it’s cheaper to deliver to and manage stores located close together. And by clustering, Starbucks can quickly dominate a local market.

The Chrysalids Essays - Social Science Fiction, The Chrysalids

The Chrysalids Question 7. : Examine the role played by, at least, two minor characters in the presentation of the novels themes. In the novel The Chrysalids by John Wyndham, several minor characters are presented to help convey the themes of the text. Alan Irvin, Sophie Wender, and Axel Morton are several of the minor characters, who are presented in the novel, that assist in the communication of themes to the reader. These characters help develop themes such as intolerance, and the nature of a closed society. John Wyndham also employs various literary techniques including personalisation, and development of character depth, which are imposed upon the characters to better convey the themes of the novel. Axel Morton is a well-travelled person who has seen much more than most of the people who lived in Waknuk. He is one of the few in Waknuk society who had ventured down the coast, and in doing so he saw things, which made him question the religious indoctrination, which occurred in Waknuk. Axel questions the so-called True Image which is preached by the orthodox members of Waknuk society as his travels showed him just how many apparently deviational people thought that they were in the True Image in reference to the Old People. Whether they have seven fingers, or four arms, or hair all over, or six breasts, or whatever it is thats wrong with them- think that their type is the true pattern of the Old People, and anything different is a deviation. This quote from Axel Morton shows that no one could really be sure of what the True Image was, because as stated in the novel, no texts from when the Old People were around stipulated what was or wasnt deviational. Axel Morton had a much diffe rent value system to the other people of Waknuk, and did not believe that deviations were as bad as they were made out to be. Axel Morton reiterates the theme of the nature of a closed society, as he is one of the few members of the Waknuk community, who has alternative knowledge to that which is preached by members of the town in which he lives. The theme of the nature of a closed society refers to the fact that people who live in such communities arent able to question what they are taught as they are they are deprived of the knowledge which travelling and other people can teach them. When reading the novel it is clear that Axel identifies with the texts criticisms of intolerance. Axel disagrees with the intolerance toward things different from the normal, as he himself is not physically the same as others in Waknuk. Axel Morton however is not a deviant because his abnormality was obtained after birth in a sailing accident. He was standing in the customary way, with much of his weight upon the thick stick he used because his leg had been wrongly set at sea. This quote reveals Axel Mortons difference from the norm, and although it is not a huge variation, he still had to cope with that difference, and his inability to perform certain tasks that others could do. Although this difference from the norm was not deviational, he was still able to sympathise with true deviants, as he knew what it was like to be different to others around him. His difference form the norm was not the only reason for which he sympathised with deviants, but his knowledge also of other places and people, allowed him to have an open mind about certain viewpoints, which others did not. Axel Morton as a character is used to convey the theme of intolerance in the novel, in the sense that he disagrees with the intolerance of others around him, and criticises the intolerant beliefs upon which the society is based. Sophie Wender is a minor character in the novel who also conveys the theme of intolerance. Sophie Wender is a deviant in the sense that she had six toes instead of the normal five. For this very small deviation she is completely ostracised from the society in which she lives and banished to the fringes. Wyndham effectively uses David Strorm the narrator of the novel, to positively

How to Build Your Own Style Guide

How to Build Your Own Style Guide How to Build Your Own Style Guide How to Build Your Own Style Guide By Mark Nichol I recently wrote a post advising writers and editors responsible for print or online publications to create their own style guide to supplement whichever published manual they follow, be it The Chicago Manual of Style, The Associated Press Stylebook, or a similar volume. Sensible enough, but how does one go about this task? First, note that a house style guide is not a comprehensive compendium; it is a resource that details rules and guidelines for consistency that contradict or are not covered in other resources. That said, a house style guide can range from a couple of pages to more than a thousand. (The Chicago Manual of Style, which exceeds that latter number, is simply a house style guide that escaped from the University of Chicago Press, for which it was created more than a hundred years ago, and went viral.) The size depends on how often, and how significantly, your publication veers from default resources and how complex its subject matter is. The first step is to select a style manual of record and a dictionary of record and to document that selection prominently in your house style guide. These publications should, with few exceptions, be the only ones of their kind that anyone who writes for your publication consults. For example, if you use Chicago, no one on your staff should be thumbing through The New York Times Manual of Style and Usage (or vice versa). And if a writer objects to your correction of their spelling, which they checked against The Oxford English Dictionary, inform them that your publication adheres to Merriam-Webster’s Collegiate Dictionary (or vice versa). (Exceptions include if your style guide or dictionary of record does not cover a certain issue or include a specific term.) Most style guides resemble encyclopedias or dictionaries in their organizational scheme, presenting information according to alphabetically arranged topics. For example, a house style guide might start with the following entries and the indicated details about them: Abbreviations (Which are acceptable?) Acronyms and Initialisms (Which can be used without first spelling out the entire term?) Addresses (When is abbreviation allowed?) Then, continue through topics starting with the letters B (such as bylines), C (capitalization, for example), and so on. To populate your house style guide, read through your publication’s (or any publication’s) content and brainstorm all the issues that come up. Here are some other examples: Cities (Which should be identified by the country in which they’re located, and which city names are sufficiently well known to stand alone? This entry might simply refer the reader to another resource, or to an appendix in the house style guide.) Colons (Capitalize the first word following a colon?) Company Names (Formal, as in â€Å"Microsoft Corporation,† or familiar, as in Microsoft, and maybe even Redmond from time to time?) Cross-References (How do you refer to other content previously published in your publication?) Entries should be clear and concise even terse and imperative and should include an example: For instance, a note about percentages might simply say, â€Å"Spell out percent but retain numeral form (â€Å"37 percent,† not â€Å"thirty-seven percent† or â€Å"37%†). Remember not to get carried away replicating rules found in your style guide or dictionary of record, especially at the expense of including essentials such as whether you employ the serial comma, how you style em dashes, or whether the text following a copyright symbol is preceded by a letter space. And no house style guide should omit a section about number style (cross-referenced to related entries such as the rule about percentages shown above). Also, don’t forget a word list. This is a record of idiosyncratic terms that don’t show up in the dictionary, because they’re neologisms or highly specific technical terms, or because they reflect variations in spelling. (For example, the founder of a publishing company I freelance for prefers some British American spellings, such as acknowledgements and grey, so those appear in the word list of his company’s house style guide.) Some house style guides, like the ones that have become universal resources, are organized by broad themes such as abbreviations, numbers, and special treatment of terms (such as capitalization and italics), but specific alphabetic entries are more useful. The Associated Press Stylebook goes to the other extreme, including entries for specific terms, from antiwar (to demonstrate the absence of a hyphen in that term) to â€Å"Major League Baseball† (to indicate that this term is a proper noun) to zookeeper (to show that this term is a closed compound), plus more comprehensive entries for general rules and a separate section on punctuation. A thematic organization with a word list is more manageable. One last note: A house style guide is a living document subject to change at any time, so refrain from using a hard copy you and other users will have to mark up with changes and additions (or frequently print out after updates are made). Encourage colleagues who might actually use the document to consult an online version that you or someone else manage; you might even make it available on an intranet or on Google Docs, with read-only access for anyone not authorized to amend it. Want to improve your English in five minutes a day? Get a subscription and start receiving our writing tips and exercises daily! Keep learning! Browse the Style category, check our popular posts, or choose a related post below:30 Synonyms for â€Å"Meeting†50 Synonyms for "Assistant"9 Forms of the Past Tense