News International phone-hacking trial

[Pabmusic]

Finding a person guilty without hearing the evidence is just not on. That has been the case for well over 1000 years. Indeed, on occasions when that principle has been flouted (Jeffries, LJ, being an example) we remember it as an 'event' in our history,

[Pabmusic]

That's right, of course; I still believe that the course of justice should run as much for them as for anyone else, however. What I presume you to be saying is that the principal purpose of the trial is to establish of precisely what and when the parties concerned are guilty.

Not really. The purpose of a criminal trial in England & Wales (or in Scotland, come to that) is to establish whether the Prosecution can prove the case it has brought beyond a reasonable doubt. The one thing it isn't is a inquiry into what actually occurred.

[jean]

That is extraordinarily cynical.

[Pabmusic]

That is extraordinarily cynical.

No. It's true. An English criminal court is not primarily concerned with finding out what actually happened (an inquiry); the prime jury question is -'Has the prosecution proved the case to the required standard?' If yes, then guilty; if no, then not guilty. That's it.

Common Law (the English-speaking world) trials are adversarial (has the prosecution proved the case?); Civil Law countries (i.e.: non-English influenced) usually had inquisitorial cases, where the defendant is regarded neither as neither guilty or not while the court tries to determine what happened. In fact, it was a real culture shock for Civil Law countries when they adopted the ECHR, since that requires the defendant to be treated as innocent until found guilty - which was always a Common Law principle and not obviously compatible with Civil Law inquiries.

It's basic English law (also Scottish*, American, Canadian, Australian, etc). - I'm sure Caliban will confirm it. It's the main reason why a Court of Criminal Appeal was opposed for so long (it wasn't established till the early 20th Century) - a right of appeal would be akin to allowing an inquiry into the facts when a jury had already decided on the evidence before them.

* Actually, the Scots have some elements of Civil Law as well.

[jean]

I know all that.

But to say that an English criminal trial is not primarily concerned with finding out what actually happened isn't quite the same as saying that finding out what happened is the one thing it isn't.

Unless either the prosecution or the defence is totally corrupt, we will, as a result of the trial, have a better idea of who did what and when than we did before, which is what AH said.

.

[Pabmusic]

I know all that.

But to say that an English criminal trial is not primarily concerned with finding out what actually happened isn't quite the same as saying that finding out what happened is the one thing it isn't.

Sorry. I wrote (and I've corrected the typo): "The one thing it isn't is an inquiry into what actually occurred". Which is true - it's an adversarial contest between Prosecution and Defence. What have I said that was cynical or misleading? Of course a criminal trial is interested in the facts the Prosecution presents (and any the Defence presents); of course it's interested to see that the truth is told about those facts. But it's not primarily concerned with finding out what actually happened - just with the evidence presented at the trial. It isn't an inquiry.

Which is what I said.

[eighthobstruction]

I don't think what you have said is cynical or misleading....somehow ??? words have been misconstrued ....

I have been to trials where one of the main protagonist witness' to the action under trial have not appeared in court or witness box primarily because it would have spoiled the defenses case....whereas in an inquiry all witness' to the action would be called....

....equally there must be thousands of cases where the prosecution has with-held evidence....

[Pabmusic]

...equally there must be thousands of cases where the prosecution has with-held evidence...

Certainly there was once no obligation to disclose 'unused' witnesses to the defence. Say a short, fair-haired man was on trial - the Prosecution would call the evidence it needed to prove the case against him, and only that. The fact that the police had taken statements from three people who say the culprit was a tall, black-haired man would probably not be disclosed to the Defence. (The three witnesses, of course, would not be called because they didn't help the Prosecution case.) During the 1970s things began to improve with some voluntary protocols, but it wasn't until PACE in 1984 that there was a statutory duty to disclose everything, whether you intended to call the witnesses or not.

[ahinton]

Not really. The purpose of a criminal trial in England & Wales (or in Scotland, come to that) is to establish whether the Prosecution can prove the case it has brought beyond a reasonable doubt. The one thing it isn't is a inquiry into what actually occurred.

Sure, but unless what actually occurred comes fully to light during the course of such a trial, the matter of whether or not the prosecution can prove beyond reasonable doubt the case that it has brought might be open to question; after all, how can it be sure to succeed and why should it do so - and, for that matter, on what grounds and for what reason/s might it risk failing - if the full facts as should be unearthed by such an inquiry are not aired in court and challenged by the defence as far as it is able and as it has a right to do?

[french frank]

Sure, but unless what actually occurred comes fully to light during the course of such a trial, the matter of whether or not the prosecution can prove beyond reasonable doubt the case that it has brought might be open to question; after all, how can it be sure to succeed and why should it do so - and, for that matter, on what grounds and for what reason/s might it risk failing - if the full facts as should be unearthed by such an inquiry are not aired in court and challenged by the defence as far as it is able and as it has a right to do?

I suppose if the case is important and further evidence emerges there can be an appeal. But again, the trial only considers the evidence presented.

[ahinton]

I suppose if the case is important and further evidence emerges there can be an appeal. But again, the trial only considers the evidence presented.

Indeed so, in both cases; that said, a conviction or acquittal based upon insufficient evidence being presented to court may make either unsustainable and might indeed lead to an appeal against the former. Withholding evidence - especially if wilfully - can be a grave matter for those who do it.

[jean]

The problem I have is that I do not think that the fact that it is not an enquiry means that a British jury trial is not concerned about what actually happened.

...it's an adversarial contest between Prosecution and Defence. What have I said that was cynical or misleading?...

It's cynical to imply that it is nothing but an adversarial contest, a sort of game played by opposing counsel.

Besides, that ignores the role of the jury, whose task it is to determine the truth about the facts that have been put before them. If that isn't an attempt to find out what actually happened, I don't know what it is.

Arguably its adversarial nature means that it is not the best way of arriving at the truth. But that's a different question.

[eighthobstruction]

The problem I have is that I do not think that the fact that it is not an enquiry means that a British jury trial is not concerned about what actually happened.


It's cynical to imply that it is nothing but an adversarial contest, a sort of game played by opposing counsel.

Besides, that ignores the role of the jury, whose task it is to determine the truth about the facts that have been put before them. If that isn't an attempt to find out what actually happened, I don't know what it is.

Arguably its adversarial nature means that it is not the best way of arriving at the truth. But that's a different question.

I feel very sorry for the jury who will have to endure this prosecution for 4-5 months....

[french frank]

It's cynical to imply that it is nothing but an adversarial contest, a sort of game played by opposing counsel.

Besides, that ignores the role of the jury, whose task it is to determine the truth about the facts that have been put before them. If that isn't an attempt to find out what actually happened, I don't know what it is.

It may be a distinction without a difference, but surely, the inquiries are carried out prior to the trial. Pabs is the expert, but doesn't the CPS first have to agree that the initial investigation (inquiry) has established a case in which there is a prospect of conviction. The Defence is there to try to find any weakness in that case which might give rise to a reasonable doubt of guilt. The jury decides who has 'won' the argument.

[amateur51]

Meanwhile back OT ...

Rebekah Brooks was involved in a deliberate effort to hide material from police during the "panic-stricken" days around the closure of the News of the World, the jury in the phone-hacking trial has been told.

Brooks, then chief executive of News of the World publisher News International, and her personal assistant Cheryl Carter have been accused of trying to conceal seven boxes of her notebooks the day after the announcement that the paper was to close down and two days before its final edition. They deny the charges.

http://www.theguardian.com/uk-news/2013/nov/04/rebekah-brooks-news-world-phone-hacking-trial