Legal Reasoning Term Paper

Pages: 5 (1647 words)  ·  Bibliography Sources: 0  ·  File: .docx  ·  Topic: Criminal Justice

Legal Reasoning a) in his speech Lord Hope of Craighead stated a number of grounds that he believed justified banning the use of torture or of evidence obtained by torture. The first of those grounds was that the United Kingdom had adopted the United Nations Convention against Torture and Other Cruel, Inhumane or Degrading Treatment of Punishment. Clearly, having adopted a United Nations Convention, the United Kingdom, one of the United Nation's leading member nations, maintains a responsibility to enforce that law within its own borders. To do otherwise would subject the United Kingdom to sanctions and also make it more difficult for the United Kingdom to seek enforcement of the anti-torture provisions in any other member nations. The second reason was that state torture has long been an international crime, and, as a civilized country, the United Kingdom has an obligation to refrain from criminal behavior. The third reason is that the common law has long prohibited the use of statements derived through torture. The entire theory behind the common law is that legal precedents should be followed unless something in the law or in life circumstances has changed in a manner that makes following the law impracticable. Some advocates of torture assert that using these statements is legally permissible, because modern tortures can take steps to verify the accuracy of information derived through torture. However, the common law prohibition against the admission of evidence derived through torture is not based on issues of reliability, which would effect the weight of the evidence, but on the theory that the law should not support the use of torture for any purpose. In fact, Lord Hope's main argument focuses on the concept of the slippery slope, suggesting that any accepted use of information derived by torture for any reason makes it more likely for torture to be used in inappropriate situations. Furthermore, it is not only state-sanctioned torture that should face these restrictions; regardless of who elicited the information, the use of such information makes it more likely that the state will eventually sanction the use of torture as a means of discovering information. The concern is that admitting evidence derived from torture in any situation makes it much more likely that evidence derived from torture will be admitted in every situation, and that the people of the state will become desensitized to violence and immune to the horrors of torture.

A b) Lord Hope's statement that "The law will not lend its support to the use of torture for any purpose whatever," appears to be in conflict with his belief that if the evidence does not eliminate that torture was used to obtain evidence, that evidence can still be admitted, as long as the evidence does not support a finding that torture was used to obtain the evidence. Lord Hope's position is in clear contrast to Lord Bingham's position, which is that evidence should only be admitted if the SIAC can demonstrate that such evidence was not obtained by torture. The positions are very similar; both prohibit the use of evidence definitely obtained via torture and the admission of evidence when the SIAC has concluded that it was obtained via torture. The only point on which the two disagree is whether evidence should be admissible when the SIAC is unable to establish that it was not obtained via means of torture. The burden of proof is a very important element. Traditionally, a defendant who seeks to challenge the admissibility of evidence has the burden of demonstrating why the evidence should not be admitted. However, Lord Hope indicates that the traditional burden of proof is inappropriate because detainees do not have access to important information, including, but not limited to, the evidence to be used against him, the physical source of that information, and the personal source of that information. On the contrary, the SIAC has access to the information in question, which gives it the ability, and, therefore, the responsibility, of determining whether torture has been used in a particular situation. The fact that the burden has shifted to the SIAC makes Lord Hope's position more reasonable than Lord Bingham's. Under the traditional burden-of-proof, a defendant is required to prove that evidence is inadmissible. However, adopting Lord Bingham's position would require the SIAC to prove that evidence is not inadmissible. This type of burden shifting would completely alter the rules of evidence, which make the presumption that evidence is admissible. In practicality, it would make prosecution of detainees extremely difficult, because, while it is relatively easy to establish the presence of a fact, it is much more difficult to establish the absence of a fact. In effect, under Lord Bingham's proposal, having a detainee raise the issue of torture would actually create a presumption that evidence was obtained via torture and that such evidence is inadmissible, regardless of the standard of proof to be applied to such a decision. Such a presumption is simply not supported by the language of the United Nations' Convention, traditional international law, or the common law; on the contrary, a presumption that evidence has been obtained via torture is contrary to the rules of evidence of most established legal systems.

Although Lord Hope makes a convincing argument against the admission of evidence derived by torture, his argument ultimately fails. The main thrusts of his argument are that torture is inhumane and that the admission of evidence derived by torture in any situation creates a slippery slope for the admission of evidence obtained via torture; however, these arguments simply do not stand up to scrutiny. The most emotional part of Lord Hope's argument is that torture is inhumane, and that the state should not sanction barbaric or inhumane behavior. However, the reality is that the state, in its role as the inflictor of punishment, does engage in inhumane behavior, which would be considered barbaric if done by an individual rather than the state. For example, the mere confinement of a person is a crime and is considered horrific if done by an individual. In fact, the deprivation of liberty is seen as something so detrimental to the human psyche, that it is considered the punishment of choice for offenders. Furthermore, Lord Hope's discussion centers around international issues, which means that one must look at the state's behavior in an international arena, not simply in a domestic arena. As an international power, the United Kingdom has a history of engaging in behavior that would be considered barbaric by the targets of that behavior. For example, if a state were truly prohibited from engaging in any type of barbaric behavior, it would literally be stripped of its powers of war, because war necessarily involves death and pain to civilians, as well as to military personnel. Inflicting pain and death upon innocents is certainly barbaric behavior, but is also recognized as a necessary evil if a country is to retain the power to defend itself. Lord Hope's second argument, which is that the admission of any evidence derived by torture creates a slippery slope, is likewise untenable. The fact is that there are already clearly established exceptions to the rules of evidence. For example, although hearsay is generally considered inadmissible, there are certain exceptions to the hearsay rule. Furthermore, the application of these exceptions has not eroded the general principles of the hearsay rule, which is what would have occurred on a slippery slope. There is no reason to believe that the admission of evidence derived via torture could not be subjected to similar rigid exceptions. Therefore, the courts should retain the discretion of admitting evidence of torture. This discretion should not depend upon the investigating authority, but on the nature of the crime charged. For example, limiting the admission of such evidence to crimes charging attempted or completed… [END OF PREVIEW] . . . READ MORE

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APA Style

Legal Reasoning.  (2007, January 31).  Retrieved September 28, 2020, from

MLA Format

"Legal Reasoning."  31 January 2007.  Web.  28 September 2020. <>.

Chicago Style

"Legal Reasoning."  January 31, 2007.  Accessed September 28, 2020.