Course Of Justice Research Articles

Alternative Dispute Resolution and Access to Justice: The Kenyan Perspective

Litigation has been cumbersome to the indigent persons in the country. This is due to the legal technicalities that are relied on in court, complex procedures, high cost and delays in the settlement of disputes . Further, there are challenges that the poor persons, as well as the marginalized and the uneducated persons, face in their course of seeking justice. They include long distance to the courts, illiteracy, high advocacy fees, lack of infrastructure to reach the courts as well as lack of information . As a result, the rights and fundamental freedoms of these class of persons are denied, violated or infringed hence brings dissatisfaction among them; and makes them be biased against these courts that are mandated to administer justice to all regardless of any one status in the society. There is a need to reach the poor, uneducated, marginalized and those other underprivileged persons in the society. Therefore, alternative dispute resolution comes to the rescue. It is the savior to those who seek for justice. To begin with, it is cost effective. It is cheaper as compared to litigation. For litigation, one has to part with the advocates and court fees which poor persons cannot afford . However, many at times the services provide through alternative dispute resolution are cheaper. Secondly, alternative dispute resolution is flexible. For litigation, there are legal technicalities that have to be followed. This causes backlog of cases in courts due to the many cases that have been filed in courts that await hearing and also need to follow these legal technicalities. A case in point is the cases that involve land. Research shows that more than 55% of the land cases have never progressed beyond the mention stage. The average duration of the cases is over 30 years . However, the cases that go through the alternative dispute resolution could last for days, weeks or months but not beyond a year. Thirdly, alternative dispute resolution is easily accessible as compared to courts. There are areas which lack courts to adjudicate their matters thus impeding their access to justice. There are others who are forced to travel long distances to get access to the courts. This is an obstacle to the indigent persons who at times lack money to aid their transport to these courts. Apart from that, traditional dispute resolutions have aided access to justice due to the fact that the sessions are conducted by either the cultural elders, village elders or the local administration . The parties involved feel safer when their matters are dealt with by the council of elders as compared to the judges probably by the fact that the council of elders have known these parties for a long time; thus a rapport has been developed. Another possibility being that the council of elders are held with high regard in the communities and; secondly, they are closest to the people in these communities; thus the people prefer taking their cases before these council of elders. Fourthly, alternative dispute resolutions are less formalistic. In fact, the parties have the liberty to use their language of preference for communication. There are very few procedural technicalities. In my paper, I will begin by defining the terms alternative dispute resolution and access to justice. Thereafter, I will discuss the role of alternative dispute resolution mechanisms in enhancing access to justice in Kenya. I will also highlight the challenges faced in alternative dispute resolution in Kenya.

ПРАВОВИЙ СТАТУС ПЕРЕКЛАДАЧА У КРИМІНАЛЬНОМУ ПРОЦЕСІ УКРАЇНИ

У статті розглядаються організаційні та процесуальні проблеми участі перекладача у кримінальному провадженні, проблеми засвідчення компетенції перекладача, можливі ненавмисні помилки перекладу під час кримінального провадження..
 Реалізуючи гарантію правового захисту, закріплену в міжнародному праві для учасників кримінального провадження, які не володіють мовою судової влади, Кримінальний процесуальний кодекс України розробив спеціальний інститут перекладача. Якщо актуальність дослідження цього інституту останнім часом не розглядалася як одне з пріоритетних завдань науки про кримінальний процес, ситуація значно змінилася в сучасних реаліях. Окрім безлічі різних національностей, які тривалий час проживали на території України, в останні десятиліття з’явилася ще одна причина актуалізації Інституту перекладачів, а саме - процеси масової міграції. Однією з цілісних наслідків великих політичних реформ кінця минулого століття, спричинених зміною політичної карти світу, а також розвитком зовнішньоекономічної діяльності, ці процеси залучили до нашої країни багато мігрантів. У той же час психологія та менталітет деяких категорій мігрантів, які приїжджають в Україну, впливають на їх ініціювання незаконної діяльності.
 Відповідно до ч. 3 ст. 29 Кримінально-процесуального кодексу України слідчий суддя, суд, прокурор, слідчий надають учасникам кримінального провадження, які не розмовляють або не володіють державною мовою, право на свідчення, клопотання подавати скарги, розмовляти рідною чи іншою мовою. якими вони володіють, користуючись послугами перекладача у порядку, визначеному КПК України. На основі цієї статті можна сформулювати певні висновки щодо участі перекладача у кримінальному процесі України. 1. В даний час наукою розроблені всі характеристики, якими повинен володіти перекладач у кримінальному процесі: вільне володіння мовою, вік та переконаність, компетентність та відсутність інтересу до справи. У той же час ці особливості розширюються та конкретизуються відповідні положення КПК України. 2. КПК України визначає дві можливі причини участі перекладача у кримінальному провадженні: "не володіє мовою" або "недостатнє володіння мовою, якою використовується у провадженні" у кримінальному провадженні. Однак ці категорії формально розпливчасті і можуть включати кілька рівнів володіння мовою, які практично неможливо встановити. 3. КПК України детально викладає права, обов'язки та відповідальність перекладача, які визначають його місце в кримінальному процесі та характеризують його як повноцінного суб'єкта кримінального процесуального права.
 Таким чином, очевидно, що участь перекладача сама по собі порушує звичайний хід кримінального судочинства, оскільки його учасники, які не володіють іноземною мовою, залежать від перекладача; крім того, існує ряд факторів, які ускладнюють останні, описані в цій главі. Тому очевидно, що для оптимізації процесу кримінального судочинства в Україні для створення проблем необхідно створити спеціальний експертний орган з перекладу. пошук перекладача, який розмовляє потрібною мовою чи діалектом; вибір перекладача необхідної статі; виключення можливості процесуальної некомпетентності перекладача; транспортування перекладача до місця здійснення конкретної процесуальної дії / або проведення цих дій на території експертного органу з перекладу; своєчасна оплата послуг перекладача; формування бази некомпетентних перекладачів або перекладачів, які мають порушення під час участі у кримінальному провадженні тощо.

Experts and pretenders: Examining possible responses to misconduct by experts in criminal trials in England and Wales

Much academic literature explores the reliability of expert evidence in criminal proceedings in England and Wales. However, almost no attention has been paid to misconduct by experts giving evidence in criminal cases. Whilst rare, its serious impact on the administration of justice and public trust in it means that this area requires analysis. This article explores possible responses to expert witness misconduct occurring in the context of criminal proceedings in England and Wales, noting particularly the differences in responses available, depending firstly upon whether the expert is a registered professional, and secondly whether the expert has stepped outside of their expertise; did not have relevant expertise at all, or was dishonest. Professional disciplinary procedures focus on ‘fitness to practise’, and it is argued that this is sufficient where a registered professional has overstepped their expertise, but has not displayed mala fides. On the contrary, where someone gives evidence purporting to have expertise that they do not, or lies about their conduct as an expert in the case, criminal sanctions are available, appropriate, and should be used. These include contempt of court; perverting the course of justice; fraud by false representation, and perjury.

Amicus Curiae Institute in the Constitutional Process

Given the specifics of constitutional proceedings, the question of the peculiarities of evidence in a constitutional trial is becoming increasingly important. With the adoption of the Law of Ukraine ‘On the Constitutional Court of Ukraine’, for the sake of completeness of the trial, amicus curiae play a significant role in proving – experts and specialists who, by giving opinions on written requests of the judge-rapporteur in the case, reveal the peculiarities of socio-political discussion on complex issues arising in the course of constitutional justice. The purpose of this work is to study the amicus curiae institute, the features of its legal regulation in Ukraine and abroad, as well as to investigate the role of the institute in the constitutional process of Ukraine. The object of the research is the amicus curiae institute in the constitutional process of Ukraine. By examining the amicus curiae institute in the constitutional process of Ukraine, we can conclude that it plays an important role in the completeness of the judicial review of the case. On the one hand, the ‘friend of the court’ is a lobbyist who, thanks to his conclusions, seeks the necessary judicial decision. On the other hand, thanks to the amicus curiae institute, when considering cases that may affect an indeterminate number of persons, civil society (such as NGOs, etc.) can help ensure that the judgment is given in the light of all the circumstances relevant to the cases. However, despite the legislative consolidation of the research institute in the constitutional process of Ukraine, some procedural provisions require further refinement with the use of international experience and advanced scientific works.

Hävituspataljonidest Eestis 1941. aasta sõjasuvel [Abstract: The Destruction Battalions in Estonia in the Summer War of 1941

Hävituspataljonidest Eestis 1941. aasta sõjasuvel [Abstract: The Destruction Battalions in Estonia in the Summer War of 1941

FEATURES OF THE NATURE OF THE ADVERSARIAL PRINCIPLE IN THE RUSSIAN JUSTICE

The article discusses various approaches to the disclosure of the content of the concept of competition. It is concluded that the traditional Russian and, above all, Soviet understanding of the principle of competition differs from the classical Roman principle of competition. The principle of competition, enshrined in the criminal procedure law of Russia, includes, in addition to the traditional element-the parties having the right to be heard, also an active court, which must ensure equal conditions for the parties in the course of justice, must comprehend the truth and at the same time remain an independent and neutral arbitrator. Such an approach is acceptable, it fits into the legal consciousness of the law enforcement officer, but under one condition, if the implementation of such a model of justice, the goal of the criminal process is achieved-respect for human rights and freedoms. However, the constantly changing criminal procedure legislation indicates that the current system does not allow to fully implement in practice the ideas that are enshrined in the law. This means that the principle of competition, its content can still be and perhaps should be revised, focusing not only on the traditions of our legal system, but also on European traditions.

Erasing Diversity: Mediating Class, Place, Gender and Race in The Moorside

This article is focused on the 2017 BBC drama, The Moorside. Over two episodes, it revisits the events surrounding the ‘disappearance’ of Shannon Matthews, a nine-year-old schoolgirl from Dewsbury in West Yorkshire, with the drama culminating in the arrest of Shannon's mother, Karen, on charges of child neglect and perverting the course of justice. We identify the events depicted in The Moorside and, in particular, the media's framing of them, as central to the formation of pervasive and corrosive narratives of ‘broken Britain’. In revisiting the Matthews case, The Moorside re-animates and, we argue here, further perpetuates these discourses by rendering them through highly constructed and reductive frameworks of class, place, gender and race. Our analysis considers the textual strategies at work in the drama, some of its key intertexts, questions of diversity – in class terms – within the BBC, and the role of Sheridan Smith, The Moorside's ‘star’, as a conduit for narratives of regional and social identity.

What causes employees to whistle while they work? Factors affecting internal whistle‐blowing in the Australian Public Service

AbstractWhat causes employees in the Australian Public Service (APS) to internally blow the whistle on corruption in the workplace? This research examines the impact of the nature of corruption, organisational culture, and employees’ work attitudes and actions on internal whistle‐blowing in the APS. The respondents were found to internally blow the whistle for most types of corruption: fraud, conflict of interest, unlawful disclosure of government information, and perverting the course of justice. Their whistle‐blowing behaviour was, however, unaffected by observations of theft of official assets. They were also unlikely to report observations of cronyism and nepotism. Active observers of workplace bullying (those who have blown the whistle after witnessing someone else being bullied) were three times more likely to also internally report corruption than inactive observers of bullying.

Social Media Activism in Egyptian Television Drama: Encoding the Counter-Revolution Narrative

Egyptian Ramadan TV series have explored the relationship between law and television in a number of iterations over the past few years. In 2017, the most watched production (115 million views on YouTube), Kalabsh, went one step further by examining the interaction between television broadcasting and social media in affecting the course of justice. Even though its events revolve around the framing and wrongful incrimination of a ‘good’ police officer, the dynamics suggest a not-so-subtle reference to the January 25, 2011 uprising. It portrayed social media actors as naïve agitators, outsmarted and used by those same dark networks of business and politics that they intend to expose and ultimately to unseat. This representation strengthens the counter-revolution’s narrative of the January 25 uprising as the making of some ‘Facebook kids’ [ʿiyāl bitūʿ il-face]. With Kalabsh, Egyptian TV series recalibrate the representation of the role of television broadcasting in affecting the course of justice and thus produce a new narrative that includes social media. This representation challenges as ‘optimistic’ the reading of the ‘democratic’ nature of social media by showing how its actors are even more prone to falling prey to mystifications and networks of corruption. The centrality of television broadcasting in affecting the course of justice clearly recedes in Kalabsh, but television broadcasting itself seems to regain some reputation.

The Legislature at War: Bandits, Runaways and the Emergence of a Virginia Doctrine of Separation of Powers

The politics of war severely divided the Virginia Southside during the American Revolution. Laborers, ship pilots and other landless men and women bitterly resented the efforts of the patriot gentry to stop trade with Great Britain and to establish a military force. Planters feared that the presence of the British Navy would encourage slaves to flee or attack their masters. What role did law play in the patriot response to these conditions? This essay uses the case of Josiah Philips, who led a banditti residing in the Great Dismal Swamp, to show how law intersected with class and race in patriot thinking. The gentry's view of the landless as dependent and lacking in self-control and its view of black slaves as posing a constant threat of violence supported the application of special legal regimes suited to these dangers. In particular, Philips was “attainted” by the General Assembly, a summary legislative legal proceeding traditionally employed against offenders who threatened government itself. While the attainder was uncontroversial when it passed, the significance of the Assembly's intervention changed over time. By the late 1780s, some among the state's legal elite regarded the Assembly as having unnecessarily interfered in the ordinary course of justice, which they were then seeking to reform. This opened the way to recharacterize the Assembly's extraordinary legal jurisdiction as an arbitrary exercise of lawmaking power.

Aspiring To A Model of the Engaged Judge

This symposium essay, relying on the work of numerous federal judges who have changed the course of criminal justice and civil rights, argues that judges should aspire to be the “Engaged Judge” — that is, a judge who acts in the best traditions of the role by engaging in creative and often bold solutions in order to advance a “justice mission.” The article discusses the contours of that justice mission, emphasizing that engaged judges should not substitute their own morality for the law or become result-oriented by tailoring legal principle to fit the judge’s prior convictions. It explores the various reasons why so few judges are effectively “engaged” and argues that more judges should aspire to this role in carefully restrained contexts, both in judicial opinions and, in a more limited fashion, in public discourse outside of the courtroom.

DUTIES OF A LAWYER TO A COURT AND TO A CLIENT

The article provides a comparison of legislation of the United States, Australia, the EU and Ukraine regulating the legal status of a lawyer in the administration of justice mechanism, as well as an analysis the correlation of his duties to the court and to the client. The author recommends that a lawyer not act in a manner that best serves the interests of the client since this will put the course of justice and public confidence in the profession in a vulnerable position; attorneys have to inform clients that their duty to the court is of paramount importance. In case of improper performance of their professional duties, lawyers should be brought not only to corporate liability (disciplinary liability, which is established by the legislation of Ukraine), but also to the civil law (property) liability that is proposed to be established. It is necessary for Ukraine to introduce insurance institution against a lawyer’s property liability as a means of minimizing the negative consequences for a lawyer, assuming such liability results from an error and such lawyer is obliged to compensate the harm caused to the client.

The Future of International Criminal Evidence in New Wars? The Evolution of the Commission for International Justice and Accountability (CIJA)

ABSTRACTThis article explores the intellectual formation of the Commission for International Justice and Accountability (CIJA). It illuminates how the development of the CIJA was an attempt by state and non-state actors to affect the course of international criminal justice in Syria and Iraq. First, this article argues that the CIJA was the result of four factors: the UK Foreign Office’s desire to support human rights activists in Syria; lessons learned from previous international criminal tribunals; attempts by non-state legal practitioners to invent new ways to overcome the gaps and limitations of the international criminal justice system; and the willingness of Syrian civil society to risk their lives and use the law to hold those responsible for mass atrocities to account. Second, the article argues that as non-state actors with a focus on evidence management, the CIJA may represent an innovative approach to investigating mass atrocities, particularly for activists and civil society actors who wish to play a role in evidence management in new wars. Lastly, it shows how the CIJA may work in parallel with international mechanisms, such as the International Criminal Court (ICC) and other inter-state actors, to collect evidence of war crimes, crimes against humanity, and genocide in new wars, particularly when the ICC is unable to do so. This study combines qualitative research with empirical analysis and draws on a range of primary and secondary sources, including a number of interviews conducted with CIJA personnel, former ICC practitioners, and other practitioners in international criminal law.

The Human Rights Mandate of a Prosecutor of an International Criminal Trial

There is no trial that is worth human suffering. This is the secret behind the successful marriage of human rights and international criminal law. Whenever there is a right, there must be a guard. The prosecutor, as the driving force of international criminal proceedings, must ensure that a case is investigated and proceeds to trial with respect and protection of the rights of persons involved, especially the accused. The autonomy and discretion accorded to the prosecution is functional and tactical in as far as it enables it to lead the course of justice. Following its exclusive control of investigations, the prosecution determines whether and when to commence a trial. It decides which material is to form part of the deliberations and may seek that an incompetent trial is suspended or strike a plea bargain. This article explores the components of the obscure human rights mandate of the prosecutor.

Suicidal Cut Injury of Wrist: Crime Scene and Autopsy Findings

Cut Injury of wrist (CIW) is also known as ‘Spaghetti wrists’ with a minimum of three completely transected structures, a nerve, artery and a tendon. The investigators have to answer the most challenging question i.e. manner of death. Some circumstances cannot be understood by the investigators and have to be explained by a Forensic Pathologist. We report a case of an individual who was found dead in a bathroom with blood splashes all over the walls and floor of the bathroom along clothes and body of the deceased. The amount of blood found in the bathroom was baffling. The case later examined in totality with autopsy findings was found to be suicidal in nature. The authors intend to recommend that wherever possible the autopsy surgeon should visit the crime scene in such cases before conducting autopsy to have a fair idea about the circumstances of death and to lead the investigation towards natural course of justice.

In the Name of the Father: Revenge and Unsacramental Death in Hamlet

This essay argues that in Hamlet, Shakespeare extends the conventional logic of Senecan revenge—the revenger’s quest to redress crimes against kin through a course of retributive blood justice—to the matter of Old Hamlet’s unsacramental death, which leaves him without the last rites of communion, penance, and unction. Shakespeare scripts revenge in such a way that these denied sacraments feature symbolically in Hamlet’s revenge on Claudius. This unique form of retributive justice and the soteriological anxieties it produces are made more poignant in a play set in Catholic Denmark and performed in Reformation England.

Proper and Correct Interpretation of Artefacts during Autopsy

Post-mortem artefacts (misleading signs) are one of the commonly encountered problems in routine autopsy. They lead to wrong interpretation of findings in large number of medico-legal cases especially at the hands of an inexperienced autopsy surgeon. Responsibility of correct interpretation of artefacts lies on medical jurist. Any type of artefacts must be interperated correctly as it may adversely affect post-mortem findings. Any change produced or feature introduced in a body after death which is accidentally or physiologically unrelated to the natural state of the body is termed as artefacts. This may adversely affect the course of justice in the court of law. The underlying biological processes that a human body or its remains undergoes after death are complex and, as with other biological phenomena, there is a broad range of variables influencing post-mortem changes by the alteration of the underlying progress of tissue destruction. The understanding of the artefacts is of great importance for the forensic pathologist and medical examiner as a such artefacts may be introduced before death (therapeutic artefacts), at the time of death (agonal artefacts) or after death (post-mortem artefacts) So it is recommended that all the physician concerned with medico-legal works, especially autopsies, should have detailed knowledge with these artefacts. Purpose of present review paper is to discuses and update the knowledge about different types of artefacts commonly encountered during the post-mortem examination. This paper also attempts to highlight the more important and common ones as far as known.

MARIKANA, A PAST NEVER TRULY ESCAPED: A CRITIQUE ON THE COMMODIFICATION OF THE LEGAL SYSTEM AND THE LAW AS AN INSTRUMENT OF JUSTICE IN POST-APARTHEID SOUTH AFRICA

This article demonstrates that the Marikana tragedy was not a departure from the norm, but a continuation of state and corporate behaviour that has oppressed black South Africans for hundreds of years. This will be done through an analysis of the historically discriminatory socio-economic patterns of South African society, and how they subjugate the poor by limiting their access to legal and physical protection. These trends portray a history of commodification of the legal system. I discuss a notable documentary on the massacre, Miners Shot Down, and examine its depiction of the causes and effects of the events. The film provides no mention of the historical context of the killings, nor does it comment on many of the factors contributing to the massacre. Despite this, it succeeded in bringing the events to the attention of the broader public. I analyse the notions of justice, the rule of law and their application in South Africa as well as norms in the nation’s legal culture. Additionally, I examine the Farlam Commission, and how its procedures and conclusions hindered the course of justice in the context of our democracy. Ultimately, I demonstrate how the Marikana massacre was not a change in dynamic, but a reminder of a past we have never truly escaped.

Dispositions for Critical Social Justice Teaching and Learning

This article examines the social justice dispositions that, when honed and developed over time, enable prospective teachers—and teacher educators—to embrace social justice praxis and persist in their everyday quest for equitable educational conditions, opportunities, and outcomes. Developed through work in a Community of Practice (CoP), these dispositions include radical openness, humility, and self-vigilance. In this article, we define each disposition and explore how they may be cultivated, enacted, and modeled in teacher education. These dispositions, we argue, serve as reminders of the unfinishedness of our work and the effort required to stay the course of equity and justice in the rough waters of the status quo.

Contempt in Facie Curie A Puzzling Dimension of Administration of Justice

The phrase “contempt in the face of the court” has a quaint old fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power – a power instantly to imprison a person without trial – but it is a necessary power.