Page 2021 - Week 07 - Wednesday, 3 June 2015
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The legacy of the Magna Carta is evident in the ideals of rule of law and due process and in a number of fundamental rights, such as the freedom of speech and the right to justice and a fair trial. Eleanor Roosevelt, in referring to human rights, noted that the Universal Declaration of Human Rights may well become the international Magna Carta.
In that context, our own Human Rights Act here in the ACT demonstrates the vitality of the principles outlined in this 800-year-old document and their subsequent evolution. The Assembly will recall that in 2014 we celebrated the first decade of operation of our Human Rights Act. While the document itself covers many matters related to the feudal system of government that existed in 13th century England, the Magna Carta enshrines two crucial principles in criminal law which continue to underpin the way in which our criminal justice system operates.
The first might be characterised as the principle of justice and the second as the principle of proportionality. The Magna Carta promised that no free man shall be taken or imprisoned, save by the lawful judgement of his peers or by the law of the land. This principle of justice has been applied to the whole of the criminal justice process from arrest through trial and to sentence and sentence administration.
It is supported by the further undertaking in Magna Carta that no-one will be subject to the law without faithful witnesses in evidence. In other words, an accusation alone is not sufficient. There must be reliable evidence to support that accusation. These two statements create the framework on which the criminal justice system is founded and are, in somewhat more modern language, included in our own Human Rights Act today.
Section 21 of the Human Rights Act contains the right to a fair trial. This right includes that any criminal charges must be decided by a competent, independent and impartial court or tribunal after a fair and public hearing. Section 22 contains the right to be presumed innocent until proven guilty according to law and includes the right to examine witnesses.
It is hard to imagine a criminal trial where these principles would not be followed. They have become so ingrained in our way of life that we accept them without question. They are rights because, in the context of a criminal trial, they are the right thing to do. The rights operate to ensure that an accused is dealt with fairly throughout the process and upholds our community, as with so many others, as safe, fair and just.
The second principle, that of proportionality, comes from the promise that “for a trivial offence a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly but not so heavily as to deprive him of his livelihood”. Put another way, the penalty should reflect the seriousness of the crime. This is the thread which runs through our criminal laws and it is embedded in our national psyche and our collective respect for the rule of law.
It would be unthinkable for all offences, however minor, to always result in a prison sentence. Equally, it would be out of the question for a murderer to simply be fined
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