Admissibility of Evidence Obtained through Mutual Assistance in Criminal Matters between Mainland China and Hong Kong: Inter-Regional Conflicts of Law

This article explores the issue of admissibility of evidence obtained through mutual criminal assistance between mainland China and Hong Kong. First, confessions obtained by hope of advantage are inadmissible in Hong Kong courts. However, evidence derived in such a manner cannot be used as grounds by the mainland court to exclude evidence. Second, if the police officer fails to give proper caution before questioning the suspect in Hong Kong, then this could render the following statement inadmissible. In contrast, the suspect will not be cautioned to his right to silence before interrogation in mainland China. Third, the court judge in Hong Kong tends to use a composite hybrid approach to exclude evidence obtained from entrapment. However, the rules of mainland do not allow for the use of entrapment as legal grounds to suppress evidence. The above comparisons show that relevant requirements should be incorporated into letters of request for taking of evidence through legal assistance.

The Special Criminal Court: Hollowing out the Right to Trial by Jury in Ireland

The Irish Constitution, Bunreacht na hÉireann, was adopted via plebiscite in 1937. It guarantees a right to jury trial. The drafters, acutely aware of the threats to security
which had stalked the precursor Irish Free State, included an emergency powers clause & the ability to legislate for non-jury trial where the 'ordinary courts' were deemed 'inadequate'. These constitutional provisions were given legislative effect in the Offences Against the State Act, 1939 – an elaborate national security law which remains in force today, 79 years later. Trial by jury is not merely a means of securing a fair trial. It is a constitutional institution, a political institution, & an institution of deliberative democracy. This paper will highlight how the willingness of the Irish State to embrace non-jury trial in the face of the (very real) threat of terrorism hollowed out this important institution of Irish democracy & facilitated the wider undermining of the right to trial by jury in Ireland

The Place of Liberty: Staying the Sentence of Imprisonment in a Comparative Constitutional Perspective

When an individual charged with a criminal offense is convicted and sentenced to imprisonment, the question arises as to whether the higher courts exercising judicial review should stay the sentence until the result of such a review is determined. The question is particularly interesting in the context of that group of cases in which the convicted had not been found to present a flight risk, danger to commit another crime, or risk to tamper with evidence/witnesses. At first glance, there seems to be no reason, in such cases, why not to temporarily stay the judgment of imprisonment. However, a comparative analysis across various jurisdictions (the paper focuses on the U.S., Canada, Germany, France, Spain, and Slovenia) shows that some of them do engage in a degree of “no-stay” policy, while one jurisdiction even makes it the only solution in practice. Given the absence of the flight risk, absence of the danger to commit another crime, and absence of the danger to temper with evidence/witnesses, what might the reason for the “no-stay” jurisprudential policy be? The paper argues that the puzzle inevitably involves a constitutional dimension. Liberty is a fundamental constitutional right and a human right. It can, of course, be limited, but not without any good or legitimate reason, and perhaps not even without a good proportionate reason. In the absence of such reasons, the practice against stays would seem groundless and unconstitutional. Examining different approaches to the issue across the different jurisdictions, the paper argues that those with more stringent “no-stays” policies run afoul of liberty as the basic constitutional and human right. However, there is nonetheless a subtle set of reasons that do explain why, in those jurisdictions with more liberal “pro-stay” policies, but not complete or automatic “pro-stay” policy, in our group of cases, some degree of “no-stay” policy may still be warranted. The paper concludes with a proposal that results from such a comparative analysis as the sound approach to this issue, advocating a degree of gradual convergence where, and to the extent that, the differences between jurisdictions clearly allow for such a due affirmation of liberty.

The changes of criminal law and collective consciousness in contemporary China: A Durkheimian approach

Durkheim's extensive analysis of crime, repressive sanction and penal law is carried on as a means of illuminating the changes of collective consciousness (CC hereinafter) and mechanical solidarity. Repressive sanctions are deemed as a social institution which is caused by CC. Durkheim, in this sense, tries to look for the underpinning moral substance in repressive sanctions beyond the general comprehension of their instrumental function. This paper uses Durkheimian approach to examine the changes in CC of contemporary China reflected by the changes of criminal laws. However, there seems to be a dilemma between Durkheim's thesis and the findings obtained from Chinese society. Through explaining this dilemma, a deeper understanding on the changes of CC can be discovered. For example, the author argues that CC has a powerful function of “re-moralization” in modern China, which serves as a supplementation of Durkheim's theory of CC and shed light on relevant theories of public law.