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The case of R v Bow Street Metropolitan Magistrate and others is of importance as it did set the limits within which the immunity of state over its individuals reaches. The case formed a significant ground within which individuals, who violates various international human rights, can be executed. At the same time, international laws and the extent, to which the individual state of  might pose the influence, assume charges human that humans may face. The case is also popularly known as Pinochet case.

The case has been viewed as being based on the controversial judgment that was made by the House of Lords as to whether a former dictator from Chile, Augusto Pinochet, had the right to claim immunity from his state over the charges against tortures that were made against him by a court from Spain. The main goal of the accused in the case was getting immunity from his state, which would prevent his extradition from his mother land to Spain. This case is of significance in different areas such as criminal law in the international field, law relating to human rights as well as the relationship that exist between domestic and the international law. The ruling that was arrived at turned out to be prominent to the House of Lords; it later overturn the decision that had been made earlier as it considered that there was bias on the part of some the judges that were involved in making the ruling in the case.[1]

In order to have a better understanding regarding the case, it is essential to have facts relating to the case, and this can be understood by taking a look at the background of the case. In the investigated case, Pinochet was accused by a judge from Spain of committing crime against humanity through torture. The judge argued that the crime which the accused had committed could be prosecuted in any jurisdiction by applying the universal jurisdiction doctrine. In order to bring the accused to justice, the judge gave a warrant of arrest to Interpol to arrest the accused person, who was in London. Pinochet was later arrested that same evening. Lawyers of Pinochet brought up the case before the House of Lords arguing that the accused was head of state in his country, during which the crimes, of which he was been accused, took place. From that perspective, they argued that the accused had immunity of the state and was not supposed to be prosecuted under the British courts jurisdiction. In the initial ruling, the Divisional court ruled in favour of the accused and argued that he had immunity of the state.[2]

The Divisional court ruling was later overturned by the House of Lords who argued that the accused had no state immunity against the crimes that he was being accused of committing.[3] Taking a keen look at the bases, within which the divisional court ruling was overturned, it is clear that the House of Lords based its ruling on the existing international laws. The international laws, which had been developed after the end of Second World War, considered torture as crime against humanity, which could be prosecuted within any jurisdiction in the world under universal jurisdiction doctrine.

The ruling that was made by the House of Lords in this case acted as a signal of a great change in the accountability of human rights. The decision that was arrived at by the House of Lord in relation to immunity of the head of state, where the decision stated that the heads of states are not immune to state immunity, when they are accused of crimes relating to violation of human rights in the name of their post in the office. The judges in the case, therefore, argued that Pinochet was entitled to answer charges against torture that were levelled against him in Spain, and he could be executed in any jurisdiction as the crime that he committed contravened international laws on protection of human rights.

The case did set a precedent that was later applied in another case. Considering the case of Regina –v- Bow Street Metropolitan Stipendary Magistrate and others, there was a request to postpone the judgment as the wife to one of the lordships, Hoffmann Lord, had not been paid as a director of one of the Amnesty International subsidiary.[4] The subsidiary had been involved in a campaign which was against the applicant.[5] The judgment was held that the house was mandated to make any injustice that it had in itself created since there was no interest in terms of finance by the parties involved. This was because the two branches of Amnesty International were separate, but it was not enough. Lord Hoffmann as an officer to the charitable branch was enough of an argument to have him as a party to the case, and thus, the rule of “nemo judex in sua causa” could be applicable in the case.[6] With this judgment, it meant that, though one had the relevant qualification to avoid bias, it was not important when there were reasons to show cases of being bias.

It is very clear from the facts of the case that the ruling made by the House of Lords did set a powerful precedent, under which those who commit crime against humanity while in office, can easily be prosecuted for their inhumane acts. The case has had a great impact in the prosecutions being carried out by international criminal court as the court bases majority of its decisions on the facts that were pin pointed out in the case in relation to the extent, at which state immunity can be applied, and in the cases where the immunity is not applicable. The case under review, in this section is also highly important as it highlights problems as well as the possibilities that might arise as a result of increase in demand for justice globally.

In conclusion, this case concerns determining the extent, to which immunity of state is applicable, as well as whether those who are accused of breaking international laws on human rights can be prosecuted in any jurisdiction in the world.

The Principle of Nemo Iudex in Causa sua

In law of natural justice, there are a number of principles that have been developed with an aim of guiding the judges in making fair ruling in different cases. Nemo Iudex in Causa sua is one of the principles of natural justice that is commonly used by judges while making their ruling. According to this principle, no person should be allowed to act as a judge in a case determining his or her cause. This principle argues that a judge should not participate in hearing a case if he believes that he has vested interests in the cases as the vested interests will affect his ability to make unbiased judgment.[7] This principle is usually applied in cases where the chances of bias occurrances are very high. When it comes to law of natural justice, justice opt to be done at any cost.

This principle was developed as a mean of ensuring that those judges who have vested interests in any given cases do not participate in the case in question. For instance, the principle has been applied in different cases, such as the case of Regina –v- Bow Street Metropolitan Stipendary Magistrate and others. In this case, there was a request to postpone the judgment as wife of one of the lordships, Hoffmann Lord, had not been paid as a director of one of the Amnesty International subsidiary, which had been involved in a campaign that was against the applicant. The judgment was held that the house was mandated to make any injustice that it had in itself created since there was no interest in terms of finance for the parties involved. This was because the two branches of Amnesty International were separate. Lord Hoffmann, being an officer to the charitable branch, was unquestionable to be a party to the case, and thus the rule of “nemo judex in sua causa” could be applicable in the case. With this judgment, it meant that, although one had the relevant qualification to avoid bias, the qualification was not important when bias was likely to affect the judgment.

The principle is a basic as well as well-established when it comes to public administration. In addition to its usage in the public administration, the principle is widely used in court procedures, where decisions are expected to be fair, as well as free from any form of bias.[8] The court is also expected to apply the principle in giving consideration to the arguments by various parties in a case to effect genuine consideration. In most states, such as Ireland, natural justice is usually the source under which procedural fairness is borrowed, and this concept is adopted from the constitution of the state.

There are a number of areas that may give rise to bias in court decisions. The most common source of bias in court decisions is where the decision maker has some vested financial interest in the case under consideration, in which he or she is expected to give a decision. Secondly, bias may arise as result of beliefs, attitudes as well as the relationships of the decision maker in relation to the case under review.[9] On the other hand, the loyalty of the decision maker in a given case towards a certain institution may result in bias from the side of the decision maker. For instance, if the decision maker is committed to the interests and objectives of the institution under question, these issues may lead to the decision maker being unable to make a balanced decision in the case where the institution, where he or she has vested personal interest, is involved in the case. In addition, in cases where the decision maker has been involved in prejudgment of the matter before the court he might end up giving biased ruling. Finally, in cases where other forms of relationships may exist between the parties involved in the case, as well as decision maker, may lead to the rise of objectionable bias which may result to the decision maker being disqualified from making fine judgment.

The principle of Nemo Iudex in Causa sua was applied in the case of R v Bow Street Metropolitan Magistrate and others to arrive at the decision that the earlier decision by Division court was biased; thereby, allowing the House of Lords to overturn the decision. The various sources of bias were considered by the panel that was selected by the House of Lord before arriving at the conclusion that the earlier decision was biased and, therefore, could not hold.

The panel first investigated, whether one of the judges involved in the case, had personal interests in the case; institutional loyalty had been involved in prejudgment of the case, and financial interests existed on the part of the decision maker at the level of Divisional court. The House of Lords applied this principle in overturning the decisions because after taking into account all the circumstances under which bias may arise it was clear that the judge decision was biased and required to be reversed for the purpose of ensuring that fairness was enhanced in the case.

The principle under review is of great importance in practice of law, especially when applied in matters of choosing the judges that will hear a certain case in order to ensure that natural justice is maintained. If one of the judges selected to sit in the panel has any vested interests in the case, he may be withdrawn from the case for the purposes of ensuring that biases is avoided in the case. The principle is, therefore, very vital in ensuring that ruling made by judges is fair and balanced.

In conclusion, the principle of Nemo Iudex in Causa sua should be applicable in all court decisions, in order to enhance that the rule of natural justice is maintained at all times.

Situations When the State Should Compensate the Wrongly Convicted Persons

Many times people find themselves wrongly convicted for crimes that they never committed. Those who are wrongly convicted usually have negative emotions such as anger, a feeling of betrayal and losses to paranoia. The long run impact of wrong conviction has been compared with the impact of war on war veterans. Studies have shown that many people, who are wrongly convicted, tend to have psychiatric dysfunction.[10] The studies have also shown that such a person tends to have a hard time reintegrating back to the society.

Today, most of the world’s jurisdictions tend not to be transparent or generous when it comes to compensating those individuals that have been wrongly convicted. In majority of the countries in the world those people who are wrongly convicted end up getting no compensation, their legal fees are not paid, and the decisions regarding whether they opt to be compensated or not are not disclosed to them. This situation is not right and need to be changed in order for those individuals who have been wrongly convicted to get their rightful compensation. This is the problem because these individuals had to suffer for crimes that they never committed as result of wrong judgments passed on them. In order to ensure that those individuals that are wrongly convicted are fully compensated by the state, it is important to understand circumstances when a state is entitled to compensate those individuals who have been convicted wrongly. This paper will take into consideration the mechanisms that can be used to determine and compensate losses to those individuals who have been convicted against the law. For purposes of clarity, the paper will take English jurisdiction as an example for determining circumstances when an individual is entitled to get compensation from a state as result of wrong conviction. However, for purposes of understanding the circumstances, it is essential first to understand the reasons behind wrongful conviction and come up with recommendations on how this can be avoided in the future.

In Australia, individuals who have been convicted wrongly, as well as imprisoned, do not have a right for compensation under any common law other than through the Australian Capital Territory. Despite the lack of such provisions in the common law, a government of any individual state may decide to use ex gratia payments through a request by a party affected or its own decision. Ex gratia payments are those payments that are made to individuals after arriving at a concession with necessarily having legal compulsion. In many countries compensation to the wrongly convicted persons is usually done out of grace other than being part of legal obligation; governments in most cases are not entitled to compensating the wrongfully convicted persons, and any decision denying compensation to an individual who have been wrongly convicted cannot be reviewed by any institution in any given way.

In order for one to understand circumstances when a state should compensate those who are wrongly convicted, it is important to understand the factors that lead to wrong conviction. The reasons behind wrongful convictions are usually systematic or individual in nature. Studies have shown that the main l factor that leads to wrongful conviction is usually mental challenge, where the persons suffering from mental problems tend to give false confessions. Systematic causes of wrongful conviction includes false eyewitnesses, flawed forensic/ scientific evidence, incorrect legal representation, false confessions, prosecutor/police misconduct, incorrect informer evidence, tunnel evidence, and impact of the media tainting the decision maker in a case. The most common source of systematic factors that lead to wrong conviction is eyewitness error; studies have shown that most of the people who have been wrongly convicted are a result of eyewitness error.[11] Wrongful conviction causes have been used in many legal cases to determine whether person was wrongly convicted and whether he deserves to be compensated.

Wrong conviction has a negative impact on the person who undergoes this life transforming expserience. First, the encounter has social impact on the person wrongly convicted. It leads to separation of the person wrongly convicted with his family, friends and colleagues. On the other hand, wrongful conviction leads to the psychological problems on the part of the person who is wrongly convicted. The person suffers emotionally where he has to endure the pain of paying for the crimes that he or she never committed. Despite, the fact that the wrongly convicted person maybe quashed of his crimes, he will continue suffering from stigmatization from some sections of the society; this situation is also present for those who are convicted for crimes that they committed. Wrongful convictions also lead to an individual losing his source of income, thereby, making him dependent rather than independent.

Measures need to put in place with an aim of preventing wrongful convictions in any given jurisdiction in the world. One of the things that needs to be done to prevent wrongful conviction in a given country is by ensuring that the judiciary is independent by providing it with the required resources to enable it perform its functions effectively and efficiently. Secondly, the police force should be well equipped to carry out in depth investigations relating to various cases to avoid false evidence bee given, that may result into individual been wrongfully convicted for crimes that they never committed. Stiff penalties should be imposed on those individuals who give false evidence with an aim of discouraging such vices in future. If the above measures are well implemented in any given jurisdiction cases of wrongful conviction will reduce with a big margin in the near future.

There is a number of circumstances when a state should compensate individuals who have wrongly been convicted. One of such instances is when a person was wrongly convicted as a result of prosecutor/police misconduct. There are instances that the accused person is forced by the prosecutor or police after a person is used by them to frame the accused, this leads to the accused to be convicted of crimes that they never committed. In this scenario the state should compensate individuals who are convicted as result of misconduct of the state officers. For instance in the case involving Peter, Ray and Brain in 1983, these individuals were wrongly convicted for murder which they never committed. Tony Lewandoski in 2002 revealed that he was forced by the police to frame the three brothers.[12] In 2004 the three individuals were quashed of their crimes, and they were fully compensated, and as part of compensation the Australian police department issued apology to the members of the public.[13]

When a person has been convicted as result of false confession he should be compensated by the state. Many cases arises where a person is forced by circumstances to make false confessions admitting that he or she committed crimes that he is been accused of committing. This factor has made many people suffer in prison as a result of being wrongly convicted for crimes that they never committed. The state should compensate this persons if they confessed of crimes that they never committed as result of being forced by the police to make such confessions. For instance, in 1994 Andrew Mallard was found guilty of committing murder after he was forced to confess of the crime by the police force. The High court quashed the person of the penalty that had been imposed on him after evidence emerged proving the convicted person innocent. Andrew received compensation for wrongly been convicted by the state for crimes that he never committed.

On the other hand, a person should be compensated by the state for wrongful conviction if, the conviction was made out of bias.[14] There are many instances when people find themselves find themselves been convicted of crimes they never committed as a result of the prosecutor or the judge in the case having vested interests in the outcome of the case. This situation has lead to many people suffering in prison as a result of been convicted for crimes that they never committed. It is the role of the state to ensure such individuals are compensated for wrongful conviction, given that their conviction was a result of error by its officers. For instance, in 1991 a case involving Roseanne Catt where she was wrongly convicted for murder that he never committed, after she was charged with nine counts of murder. It later emerged that the police who were investigating the case had vested interest in the case and they provided false evidence implicating her for the crimes that she was been accused of committing. The accused was acquitted of the conviction after it later emerged that there was bias in the case. Catt was compensated for been wrongfully convicted for crimes she never committed. 

In conclusion, the state should compensate all those individuals who have been wrongly convicted as result of errors arising from the parts of the state officers.

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