Rethinking the Legitimacy of the Anglo-American High Courts' Judicial Review of Determining Factual Findings in Courts of the First Instance in Criminal Cases

Abstract

In the Anglo-American legal systems factual findings are determined as part of the proceedings in the first instance, while the appeal proceedings and high courts discuss legal issues at appeals and do not examine the case as a new one (de novo). The remoteness of the high courts from the witnesses and evidence heard at the proceedings in the first instance lead to the high courts limiting judicial review of determining factual findings at the lower level proceedings. Nevertheless, the high courts have numerous and wife ranging possibilities to legitimately review the judicial decision relating to the determination of factual findings using objective judicial standards and the reasonableness standard. In addition, the involvement of the high courts in the factual findings determined by the proceedings in the first instance is both desirable and legitimate for correcting errors, which is the rationale for the appeal procedure in general, and not only at the high courts.

Keywords: criminal law, appeal, criminal justice, court, findings, factual