Mastering evidence and proof
| Author | Paul Roberts,Jonathan Doak |
| DOI | 10.1177/1365712716638596 |
| Date | 01 April 2016 |
| Published date | 01 April 2016 |
| Subject Matter | Introduction |
Editorial
Mastering evidence and proof:
A tribute to Mike Redmayne
This Special Issue of the International Journal of Evidence and Proof pays tribute to the scholarship
of Mike Redmayne, who died last year at the age of only 47 (Roberts, 2015; Modern Law Review, 2015).
During the past two decades, when we were privileged to call Mike our colleague, collaborator, co-
author and friend, he produced a formidable corpus of scholarship spanning a great variety of topics in
evidence, proof and criminal procedure. The contributors to this Special Issue celebrate Redmayne’s
scholarly legacy in a way that will ensure its continuing influence, and which—incidentally—would
have been wholeheartedly endorsed by the man himself; that is, by engaging critically with Redmayne’s
arguments, following up his tentative suggestions for further exploration and developing the ideas and
debates which Redmayne’s extensive publications did so much to stimulate, enliven and enlighten.
Whilst necessarily selective in their topical focus and not afra id to express criticisms and contrary
opinions, the following seven essays and reviews are united in illuminating the breadth, originality and
perspicuity of Redmayne’s evidentiary scholarship.
In the opening article, Hamish Stewart revisits the perplexing topic of the privilege against self-
incrimination. Despite its venerable common law heritage and recent reinvigoration as an integral
part of the right to a fair trial in international human rights law, identifying a convincing normative
rationale for the privilege is no simple task (see further, Roberts and Zuckerman, 2010: chapter 13).
In one of his most imaginative contributions, Redmayne proposed a novel rationale for the privi-
lege against self-incrimination rooted in the (liberal) value of dissociating oneself from state
prosecutions (Redmayne, 2007a). Stewart questions whether the argument can succeed without a
more structured approach to balancing competing values, which Redmayne’s account cannot avoid
without sacrificing its institutional plausibility. Whilst praising Redmayne’s argument for its
humanity, creativity and practicality, Stewart suggests that a richer account of criminal procedure
linking the privilege against self-incrimination with the presumption of innocence may achieve a
superior reconciliation between criminal adjudication and its underlying moral and political
rationales.
The right to confrontation is another potent witches’ brew of common law tradition, human rights law
and deeper normative obscurity that attracted Redmayne’s critical attentions (Redmayne, 2012a, 2012b),
and is the subject of Liz Heffernan’s contribution to this Special Issue. Redmayne intervened in the
debate shortly after the Grand Chamber of the European Court of Human Rights issued its eagerly-
anticipated judgment in Al-Khawaja.
1
Heffernan reviews the ‘Al-Khawaja saga’ and brings it up to date
with the Horncastle
2
applicants’ recent, unsuccessful, visit to Strasbourg.
3
Tensions between orthodox
common law thinking about admissible hearsay and the notion of a procedural right to confront (whether
articulated on the pattern of the US Sixth Amendment, or in the more equivocal language of ECHR Art
6(3)(d))
4
are central to this discussion. Heffernan praises Redmayne’s interpretation of the confrontation
right for its pragmatism and elegance, but also notes its vulnerability to attack for being too narrow in
1. Al-Khawaja and Tahery vUnited Kingdom (2012) 54 EHRR 23, ECtHR (GC).
2. RvHorncastle [2010] 2 AC 373, [2009] UKSC 14.
3. Horncastle vUnited Kingdom (2015) 60 EHRR 31.
4. For instructive comparative analysis, see Jackson and Summers (2013); Callen (2007); O’Brian (2005); Friedman (1998).
The International Journalof
Evidence & Proof
2016, Vol. 20(2) 89–94
ªThe Author(s) 2016
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DOI: 10.1177/1365712716638596
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