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Judicial Process — Overview

This theme contains two subjects, namely: Civil Procedure and Evidence


Civil Procedure

Discussion Groups

These self-sustaining groups are an essential part of the life of our graduate school. They are organised in some cases by graduate students and in others by Faculty members and meet regularly during term, typically over a sandwich lunch, when one of the group presents work in progress or introduces a discussion of a particular issue or new case. They may also encompass guest speakers from the faculty and beyond.

Procedural Justice Discussion Group

Publications

Showing all[*] publications sorted by type, then year, author, title  [change this]

Showing all 10 Civil Procedure publications currently held in our database
Change to sort them by year | title | name OR
Show only Recent | Selected publications

Journal Articles

A Higgins, 'Legal lessons from the News of the World phone hacking scandal' (2012) 31 Civil Justice Quarterly 274

C Hodges, 'Collective Redress in Europe: The New Model' (2010) 7 Civil Justice Quarterly 370

C Hodges, 'From Class Actions to Collective Redress ' (2009) 28 Civil Justice Quarterly 41

WG Ringe, 'Keine Berufungszuständigkeit des OLG nach § 119 GVG bei Beteiligung einer Scheinauslandsgesellschaft' (2008) EuZW 44

Books

C Hodges, The Costs and Funding of Civil Litigation: A Comparative Approach (C Hodges, S Vogenauer & M Tulibacka, Hart Publishing 2010)

Chapters

C Hodges, 'Objectives, Mechanisms and Policy Choices in Collective Enforcement and Redress' in J Steele and W van Boom (eds), Mass Justice (Edward Elgar 2011)

C Hodges, 'Collective Actions' in P Cane and H Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford University Press 2010)

Case Notes

A Higgins and Adrian Zuckerman, 'Re Prudential plc [2013] UKSC 1: The Supreme Court leaves to Parliament the issue of privilege for tax advice by accountants, what Parliament should do is restrict privilege for tax advice given by lawyers. ' (2013) 32 Civil Justice Quarterly 313

Others

and C Hodges, 'The Globalisation of Class Actions ' (2009) 66 Annals of the American Academy of Political and Social Science

Working Papers

A Higgins and Adrian Zuckerman, 'Class Actions in England? Efficacy, Autonomy and Proportionality in Collective Redress' (2013) 93/2013 University of Oxford Legal Research Paper Series [...]

This paper examines the background to the UK Government’s plans announced this year to introduce opt out class actions in competition cases, the EU Parliament’s opposition to them on autonomy grounds, and the arguments put forward by corporate lobby groups and the academics funded by them against opt out class actions. The paper argues that far from being a restriction on autonomy, there are strong grounds for requiring mandatory class actions for the determination of common claims and defences. Procedures for determining common issues in the one proceeding are a crucial feature of any effective and proportionate system of collective redress. We sketch some ways of encouraging individual participation in class actions without undermining the benefits of collective action, including more democratic decision making in the management and settlement of class actions. Moreover, private class actions are a necessary complement to action by public regulators, ensuring that the task of securing redress for mass harms is not borne fully by taxpayers, and that victims can still obtain redress where regulation is not available or ineffective.


Courses

The courses we offer in this field are:

Postgraduate

BCL

Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds

Principles of Civil Procedure

The aim of the course is to acquaint students with the fundamental principles of Civil Procedure. These principles are not specific to England but are common to all advanced systems of law. The operation and implications of these principles is discussed against the background of English law and the jurisprudence of the European Court of Human Rights. A short introduction to English civil procedure is provided so that students not familiar with the English system could soon acquire a working knowledge. However, students coming from other jurisdiction are encouraged to consider how the principles and the ideas discussed in the lectures can play a part in their own home litigation systems.

Both lectures and seminars involve active student participation. The course consists of 16 to 22 lectures (some of 2 hours each), 8 seminars and 4 to 5 tutorials. The lectures are normally held in Michaelmas and Hilary Terms and the seminars in Trinity Term.

The seminars address central issues in contemporary procedure in England and elsewhere. The sessions are conducted by Professor Zuckerman with guest speakers, such as scholars, practitioners and judges from England and abroad. Tutorials may be concentrated in one term or spread over two or three terms and will be taken with Professor Zuckerman and Mr Higgins.

The course contains the following topics:

  1. General theory of civil adjudication
  2. An introduction to English civil procedure
  3. The procedural implications of the European Convention on Human Rights
  4. Adversarial Freedom, Court Control and Timely Justice; Sanctions for non-compliance with rules or orders; Summary Adjudication
  5. Interim injunctions
  6. Disclosure, including legal professional privilege and search orders
  7. Class Actions
  8. Appeal and Finality of Litigation
  9. Justice and Costs: The “winner recovers costs from loser” rule v. The no-costs rule; Economics and justice: hourly fees, conditional fees, contingency fees; Protection from costs: payment into court; security for costs; wasted costs orders
  10. Public Law Litigation: Intervention in proceedings; funding of public law litigation; peculiar features of litigation in specialist tribunals such as the Immigration Appeal Tribunal

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Principles of Civil Procedure

The aim of the course is to acquaint students with the fundamental principles of Civil Procedure. These principles are not specific to England but are common to all advanced systems of law. The operation and implications of these principles is discussed against the background of English law and the jurisprudence of the European Court of Human Rights. A short introduction to English civil procedure is provided so that students not familiar with the English system could soon acquire a working knowledge. However, students coming from other jurisdiction are encouraged to consider how the principles and the ideas discussed in the lectures can play a part in their own home litigation systems.

Both lectures and seminars involve active student participation. The course consists of 16 to 22 lectures (some of 2 hours each), 8 seminars and 4 to 5 tutorials. The lectures are normally held in Michaelmas and Hilary Terms and the seminars in Trinity Term.

The seminars address central issues in contemporary procedure in England and elsewhere. The sessions are conducted by Professor Zuckerman with guest speakers, such as scholars, practitioners and judges from England and abroad. Tutorials may be concentrated in one term or spread over two or three terms and will be taken with Professor Zuckerman and Mr Higgins.

The course contains the following topics:

  1. General theory of civil adjudication
  2. An introduction to English civil procedure
  3. The procedural implications of the European Convention on Human Rights
  4. Adversarial Freedom, Court Control and Timely Justice; Sanctions for non-compliance with rules or orders; Summary Adjudication
  5. Interim injunctions
  6. Disclosure, including legal professional privilege and search orders
  7. Class Actions
  8. Appeal and Finality of Litigation
  9. Justice and Costs: The “winner recovers costs from loser” rule v. The no-costs rule; Economics and justice: hourly fees, conditional fees, contingency fees; Protection from costs: payment into court; security for costs; wasted costs orders
  10. Public Law Litigation: Intervention in proceedings; funding of public law litigation; peculiar features of litigation in specialist tribunals such as the Immigration Appeal Tribunal


People

Civil Procedure teaching is organized by a Subject Group convened by:

Adrian Zuckerman: Professor of Civil Procedure

in conjunction with:

Roderick Bagshaw: Associate Professor of Law
Denis Galligan: Professor of Socio-Legal Studies
James Goudkamp: Associate Professor of Law
Katharine Grevling: Associate Professor of Law
Andrew Higgins: Lecturer in Civil Procedure
Mike Macnair: Associate Professor of Law
Robert Sharpe: Visiting Professor

assisted by:

Inbar Levy: DPhil Law student

Also working in this field, but not involved in its teaching programme:

Gefei Ji:
Wing Winky So: DPhil Law student

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Evidence

Publications

Showing all[*] publications sorted by type, then year, author, title  [change this]

Showing all 38 Evidence publications currently held in our database
Change to sort them by year | title | name OR
Show only Recent | Selected publications

Journal Articles

2010

Laura Hoyano, 'Coroners And Justice Act 2009 -- (3) Special Measures Directions Take Two: Entrenching Unequal Access to Justice?' [2010] [2010] Criminal Law Review 345 [...]

This article maps (through diagrams) and analyses the changes made by the Coroners and Justice Act 2009 to existing Special Measures Directions for child witnesses, child defendants and complainants of sexual assault under the Youth Justice and Criminal Evidence Act 1999. Adult defendants suffering from some form of significant mental impairment are for the first time made eligible to apply for leave to testify using the live link and with the assistance of an intermediary. In addition, the 2009 Act deems witnesses to violent offences against the person involving the use of firearms or knives to be intimidated and hence automatically eligible for Special Measures. The article concludes that the measures for defendants do not go far enough and are susceptible to challenge under ECHR Article 6, and perhaps go too far in introducing anomalies in the treatment of different categories of intimidated witnesses.


ISBN: 0011-135X

2007

Laura Hoyano, 'The Child Witness Review: Much Ado about too Little' [2007] November Criminal Law Review 849 [...]

In December 2004 the Government announced a review of child evidence with a remit to consider whether section 28 of the Youth Justice and Criminal Evidence Act 1999, providing for video taped pre-trial cross-examination, should be retained in some form, to review the performance of Special Measures for child witnesses, and to consider measures for vulnerable defendants. The Review Group's Consultation Paper, Improving the Criminal Trial Process of Young Witnesses, was published only in June 2007. This article critically evaluates the most significant recommendations. As of October 2008, the Government had yet to publish its position regarding the responses to the Consultation Paper, notwithstanding that the consultation period had closed in October 2007.


ISBN: 0011 135X

2006

A Ashworth, 'Four Threats to the Presumption of Innocence' (2006) 10 International Journal of Evidence and Proof 241 [...]

A revised and improved version of my SALJ article, written for a British readership and dealing with attacks on the presumption of innocence.


A Ashworth, 'Four Threats to the Presumption of Innocence' (2006) 123 South African Law Journal 62 [...]

An exploration of the justifications for the presumption of innocence, and the various arguments for curtailing it by reversing the burden of proof in certain types of case.


2005

Laura Hoyano, 'Youth Justice and Criminal Evidence Act 1999: Special Measures Directions—Compliance with Article 6' (2005) 69 Journal of Criminal Law 488 [...]

evaluates the decision of the House of Lords in Camberwell Green Youth Court ex parte D [2005] UKHL 4, [2005] 1 WLR 393, which held that mandatory Special Measures Directions for child witnessesunder the Youth Justice and Criminal Evidence Act 1999 in principle comply with ECHR Article 6.


2001

Laura Hoyano, 'Striking a Balance between the Rights of Defendants and Vulnerable Witnesses: Will Special Measures Directions Contravene Guarantees of a Fair Trial?' [2001] [2000] Criminal Law Review 948 [...]

The Youth Justice and Criminal Evidence Act 1999 enables courts to issue Special Measures Directions to protect children and other vulnerable witnesses. This article reviewed the compatibility of these measures with the fair trial guarantee contained in article 6 of the European Convention on Human Rights. Subject to a few doubtful cases, including the withholding of Special Measures from child defendants, the great majority of Special Measures Directions were concluded to be likely to be ECHR-compatible. It was cited with approval by the House of Lords in R v Camberwell Green Youth Court ex parte D [2005] UKHL 4, [2005] 1 WLR 393, in holding that the 'primary rule' regime for child witnesses was compatible with article 6, but expressing doubt about the exclusion of child defendants from Special Measures.


ISBN: 0011 135X

2000

Laura Hoyano, 'Variations On A Theme By Pigot: Special Measures Directions for Child Witnesses' [2000] [2000] Criminal Law Review 250 [...]

This article maps and analyses the Special Measures Directions introduced for child and other vulnerable and intimidated witnesses by the Youth Justice and Criminal Evidence Act 1999. Simplified versions of the diagrams in this article are reproduced in the several editions of the official government guidance to Special Measures Directions, Achieving Best Evidence (Home Office et al).


1997

Laura Hoyano, Allan Hoyano, Gwynn Davis and Shelagh Goldie, 'A Study of the Impact of the Revised Code for Crown Prosecutors' [1997] [1997] Criminal Law Review 556 [...]

Reports on the results of an empirical research study commissioned by the Crown Prosecution Service on how Crown prosecutors use the Code for Crown Prosecutors to make decisions regarding a range of offences, using the evidential and public interest criteria.


Books

2007

Laura Hoyano and C Keenan, Child Abuse: Law and Policy Across Boundaries (OUP 2007) [...]

This book examines the whole process of child protection from complaint investigation to prosecution in the criminal and civil courts. It provides a coherent analysis of current law and procedure across the legal and geographical boundaries within which legal discussion of child abuse is usually confined, analysing criminal, family, tort, human rights and evidence law as they bear on child abuse cases. Comparative material is drawn from over 75 jurisdictionsusing the adversarial trial model. The book was awarded the first Inner Temple Book Prize (2008). The paperback edition is updated in English law, including the Coroners and Justice Act 2009 enacted on 12 November 2009.


ISBN: 978-0-19-829946-2

1999

Laura Hoyano and others, An Assessment of the Admissibility and Sufficiency of Evidence in Child Abuse Prosecutions (Home Office, United Kingdom Government 1999) [...]

This reports the findings of a qualitative empirical research study commissioned by the Home Office in 1997, to investigate the extent to which cases of alleged sexual, physical and emotional abuse or neglect are not prosecuted because the evidence gathered during the investigation are deemed insufficient or inadmissible. The study examined how that evidence is collected and evaluated in each of the three phases of a criminal prosecution: the interagency investigation, the assessment by the Crown Prosecution Service, and the trial.The study also provides a comparative survey of measures to facilitate the taking of children's evidence in other jurisdictions, in particular in Canada, United States, New Zealand and Australia.


ISBN: 1-84082-357-7

Chapters

2012

A Ashworth, 'The Exclusion of Evidence obtained by Violation of a Fundamental Right: Pragmatism before Principle in the Strasbourg Jurisprudence' in Paul Roberts and Jill Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Hart Publishing 2012) (forthcoming) [...]

A principled analysis of the jurisprudence of the European Court of Human Rights on the admissbiility of evidence obtained through violation of a Convention rights.


ISBN: 9781849461726

Laura Hoyano and HHJ Johanna Cutts QC, 'Special Measures and Anonymity Orders to Facilitate Testimony by Witnesses and Defendants' in Lord Justice Hooper and Prof David Ormerod (eds), Blackstone’s Criminal Practice 2013 (OUP 2012) (forthcoming) [...]

This is a substantial rewrite of the section D4 of Blackstone’s Criminal Practice 2012, which was written as a new chapter of the book.


2011

Laura Hoyano, 'Section D14 Assisting a Witness or Defendant' in Lord Justice Hooper and Prof David Ormerod (eds), Blackstone’s Criminal Practice 2012 (Oxford University Press 2011) [...]

This is an entirely new chapter for Blackstone’s Criminal Practice, and explains the statutory provisions and case law governing (1) special measures for child and vulnerable witnesses, including defendants (2) best practice in questioning child and vulnerable witnesses and (3) witness anonymity orders.


ISBN: 9780199694389

2010

R M Bagshaw, 'Chapters on: \\\'Relevance, Admissibility and Weight; Previous and Subsequent Existence of Facts; The Best Evidence Rule\\\'; \\\'Corroboration, Supporting Evidence and Related Warnings\\\'; \\\'Identification\\\'; \\\'Physical Conditions, States of Mind and Emotions\\\'' in Hodge M Malek QC (ed), Phipson on Evidence, Seventeenth edition (Sweet & Maxwell 2010)

2009

P N Mirfield and others, '' in Hodge Malek (ed), Phipson on Evidence (Sweet & Maxwell 2009) [...]

Chapters on Character


ISBN: 1847036066

2007

R M Bagshaw, 'Behavioural Science Data in Evidence Teaching and Scholarship' in Paul Roberts and Mike Redmayne (eds), Innovations in Evidence and Proof (Hart Publishing 2007)

2005

R M Bagshaw, 'Chapters on: 'Relevance, Admissibility and Weight; Previous and Subsequent Existence of Facts; The Best Evidence Rule'; 'Corroboration, Supporting Evidence and Related Warnings'; 'Identification'; 'Physical Conditions, States of Mind and Emotions'' in Hodge M Malek (ed), Phipson on Evidence, Sixteenth edition (Sweet & Maxwell 2005)

K D Grevling, 'Phipson on Evidence 16th ed' in Hodge Malek QC Gen Ed & others (Auburn, Bagsahw, Day, Grevling, Hochberg,Hollander, Mirfield, Oakley (eds), Phipson on Evidence 16th ed (Sweet & Maxwell 2005) [...]

I am responsible for chapters 34 (Right to Silence, 35 (Confessions), 36 (Statements in Presence of Accused), 37 (Agency etc)The book is updated with supplements - one is being prepared for Sept 07


ISBN: 421874708

2003

A Ashworth, 'Exploring the Integrity principle in Evidence and Procedure' in P. Mirfield and R.J. Smith (eds), Essays for Colin Tapper (Butterworths 2003)

K D Grevling, 'Silence, Lies and Vicious Circularity' in P Mirfield & R Smith (eds), Essays for Colin Tapper (Lexis-Nexis UK 2003) [...]

This article deals with complex and overlapping law relating to (i) the adverse inferences which may be drawn, and judicial directions to be given, when the accused fails to mention a fact when questioned he later relies upon in his defence (now mainly statutory), and (ii) lies (usually told when questioned, but sometimes given in the witness box - common law).


ISBN: 406964394

Presentation/Conference contributions

1999

Laura Hoyano, Caroline Keenan, Gwynn Davis and Lee Maitland, 'Interviewing Allegedly Abused Children with a View to a Criminal Prosecution', paper presented at Criminal Law Review 863

Courses

The courses we offer in this field are:

Postgraduate

BCL

Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds

Evidence

The Law of Evidence is a valuable subject in the BCL because it is in all common law jurisdictions still dominated by common principles. This means that overseas graduates can both bring more to it, and gain more from it.

The aim of the course is to establish the basic structure of this branch of the law to which all students can relate the knowledge they acquire so as to be able to grasp it instinctively and to be able to “think on their feet.” It is the one area which lawyers need to know in detail rather than know how to acquire since problems arise, often unexpectedly, in the course of a trial for which no preparation has been possible. The more thorough the understanding of basic principles the more readily the detail can be slotted in, or created. All of these features owe their existence to the fact that the law has been gradually accreted by individual decisions of the judges in the course of trials, sometimes without the benefit of extensive reference to materials. It is because judges have so often drawn upon their instinct for the fundamentals of this branch of the law that it has developed so similarly in different jurisdictions, and has largely resisted radical statutory intervention.

These factors have also created an opportunity for useful academic reflection to draw out the principles often left unarticulated beneath the surface of the decisions. The subject has benefited from a succession of particularly talented commentators such as Thayer and Wigmore in the United States, and Cross in the United Kingdom. It tends to be in the forefront of change as increasing efforts are made to streamline civil litigation, and to cope more effectively with an increasing tide of criminal cases. These have led to the proposal of a number of innovations such as the reform of the hearsay rule, and changes in the evidential use of silence or an accused person’s previous record. The law is also adapting to newer forms of record-keeping, and the exploitation of the possibilities offered by video-recording.

In all jurisdictions the subject is in constant ferment with new codes and consolidations under consideration or implemented. Since the subject tends to highlight perceived tension between the efficient resolution of disputes and the importance of resolving them fairly, it is never short of topicality or fierce controversy.

The course in Oxford concentrates more on central principles than on the minutiae of procedure, and makes an effort to draw upon the experience of the whole of the common law world.

Unlike most other BCL courses, the Law of Evidence is taught, as to the core, through 7 tutorials. There are also a range of lectures. Seminars, 6 in number, are held in Trinity Term.

A comprehensive reading list is available to support students reading the subject, and this is supplemented by a number of courses of lectures each developing a particular central aspect of the subject in more depth than is possible in a general survey of the whole subject. The main seminar currently takes place in Trinity term and is designed to explore particularly topical or difficult subjects by setting problems. The teaching group regards tutorials as very important, and these are arranged by the course convenor, at instance of college tutors. The examination is in the third week of the Summer vacation.

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Evidence

The Law of Evidence is a valuable subject in the BCL because it is in all common law jurisdictions still dominated by common principles. This means that overseas graduates can both bring more to it, and gain more from it.

The aim of the course is to establish the basic structure of this branch of the law to which all students can relate the knowledge they acquire so as to be able to grasp it instinctively and to be able to “think on their feet.” It is the one area which lawyers need to know in detail rather than know how to acquire since problems arise, often unexpectedly, in the course of a trial for which no preparation has been possible. The more thorough the understanding of basic principles the more readily the detail can be slotted in, or created. All of these features owe their existence to the fact that the law has been gradually accreted by individual decisions of the judges in the course of trials, sometimes without the benefit of extensive reference to materials. It is because judges have so often drawn upon their instinct for the fundamentals of this branch of the law that it has developed so similarly in different jurisdictions, and has largely resisted radical statutory intervention.

These factors have also created an opportunity for useful academic reflection to draw out the principles often left unarticulated beneath the surface of the decisions. The subject has benefited from a succession of particularly talented commentators such as Thayer and Wigmore in the United States, and Cross in the United Kingdom. It tends to be in the forefront of change as increasing efforts are made to streamline civil litigation, and to cope more effectively with an increasing tide of criminal cases. These have led to the proposal of a number of innovations such as the reform of the hearsay rule, and changes in the evidential use of silence or an accused person’s previous record. The law is also adapting to newer forms of record-keeping, and the exploitation of the possibilities offered by video-recording.

In all jurisdictions the subject is in constant ferment with new codes and consolidations under consideration or implemented. Since the subject tends to highlight perceived tension between the efficient resolution of disputes and the importance of resolving them fairly, it is never short of topicality or fierce controversy.

The course in Oxford concentrates more on central principles than on the minutiae of procedure, and makes an effort to draw upon the experience of the whole of the common law world.

Unlike most other BCL courses, the Law of Evidence is taught, as to the core, through 7 tutorials. There are also a range of lectures. Seminars, 6 in number, are held in Trinity Term.

A comprehensive reading list is available to support students reading the subject, and this is supplemented by a number of courses of lectures each developing a particular central aspect of the subject in more depth than is possible in a general survey of the whole subject. The main seminar currently takes place in Trinity term and is designed to explore particularly topical or difficult subjects by setting problems. The teaching group regards tutorials as very important, and these are arranged by the course convenor, at instance of college tutors. The examination is in the third week of the Summer vacation.


People

Evidence teaching is organized by a Subject Group convened by:

Peter Mirfield: CUF Lecturer

in conjunction with:

Roderick Bagshaw: Associate Professor of Law
Katharine Grevling: Associate Professor of Law
Laura Hoyano: Associate Professor of Law, Faculty of Law, and Senior Research Fellow in Law at Wadham College

Also working in this field, but not involved in its teaching programme:

Daniel Alati: DPhil Law student
Andrew Ashworth: Emeritus Vinerian Professor of English Law
Denis Galligan: Professor of Socio-Legal Studies
Karl Laird: Lecturer in Law
Richard Martin: DPhil Criminology student
Colin Tapper: Emeritus Professor
Adrian Zuckerman: Professor of Civil Procedure

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