The right to an impartial hearing trumps the social imperative of bringing accused to trial even 'down under'

Bagaric, Mirko 2010, The right to an impartial hearing trumps the social imperative of bringing accused to trial even 'down under', Criminal law and philosophy, vol. 4, no. 3, pp. 321-339, doi: 10.1007/s11572-010-9096-3.

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Title The right to an impartial hearing trumps the social imperative of bringing accused to trial even 'down under'
Author(s) Bagaric, Mirko
Journal name Criminal law and philosophy
Volume number 4
Issue number 3
Start page 321
End page 339
Total pages 19
Publisher Springer
Place of publication Amsterdam, The Netherlands
Publication date 2010-10
ISSN 1871-9791
Keyword(s) right to impartial hearing
right to prosecute accused persons
fair hearing right prevails
Summary Accused persons who are subjected to a saturation level of negative media coverage may be denied an impartial hearing, which is perhaps the most important aspect of the right to a fair hearing. Despite this, the courts have generally held that the social imperative of prosecuting accused trumps the interests of the accused. The justification for an impartial hearing stems from the repugnance of convicting the innocent. Viewed dispassionately, this imperative is not absolute, given that every legal system condones procedures which result in the conviction of some innocent people. While the importance of guarding against wrongful convictions has been overstated, the imperative to bring to trial all accused has been even more exaggerated. The legal system has displayed a capacity to deal with cases where the guilty walk free. The institutional integrity of the criminal justice system would be significantly compromised by convictions that are tarnished by pre-judgment. Confidence in the criminal justice system is more important than individual criminal accountability. The inability to receive an impartial hearing should result in a permanent stay. The only exception is where the alleged crime has the capacity to cause widespread fear or social unrest. This only applies in relation to serious acts of terrorism. This article focuses on recent legal fair trial developments in Australia, however, the analysis, reasoning and conclusion applies in relation to all jurisdictions where juries determine guilt and innocence.
Language eng
DOI 10.1007/s11572-010-9096-3
Field of Research 180110 Criminal Law and Procedure
Socio Economic Objective 940499 Justice and the Law not elsewhere classified
HERDC Research category C1 Refereed article in a scholarly journal
HERDC collection year 2010
Copyright notice ©2010, Springer Science+Business Media B.V.
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