Chapter 5 examines how an essential element of the Refugee Convention definition, namely the ‘well-founded fear of being persecuted’, is applied and interpreted by judicial authorities when appellants flee contemporary armed conflicts. It sets out that only appellants who had experienced past persecution or singling out had their claim examined under the Refugee Convention. The chapter also discusses the finding that although appellate authorities have some awareness of gender norms, these are considered fixed, such that any departure from them is disbelieved and results in a negative risk assessment. Appellate authorities in the EU thus apply a higher standard of proof than warranted in international refugee law. In effect, this has led to a modification of the standard of proof in international refugee law as it is now equated with the assessment of credibility, which itself can be highly gendered. The chapter claims that the practice acts as barrier to the international protection of persons fleeing contemporary armed conflicts. Further, the failure to examine the general conditions of violence in contemporary armed conflicts is contrary to the obligations of states under international law.

This chapter on fact-finding and expert evidence considers how the Court has treated competing evidentiary claims, and how it engages in a fact-finding process, looking at the evolution of the Court’s process in this regard. The author evaluates the significant criticism that has been directed against the Court in respect of its approach to fact-finding and the ways in which the Court has begun to address those criticisms.

Chapter 4 provides original data on the way sexual assault was adjudicated across the country in the wake of the Dear Colleague Letter. The chapter presents data gathered from eighty-five of the top colleges and universities over a twenty-seven-month period, from October 2014 to January 2017. It asks about rights deemed fundamental in a criminal trial including: the right to a live hearing, the right to question the opposing party, the right to appeal, and the right to remain silent.

Chapter 3 investigates the problematic beginnings of the 2011 Dear Colleague Letter (DCL) issued by the Department of Education Office for Civil Rights (OCR) under President Obama. It explaina how the DCL misrepresented existing data, violated the Administrative Procedure Act by changing the law without going through notice and comment, and flouted existing norms. In the process, the chapter provides an in-depth discussion of the changes brought about by the DCL, including mandating a lower standard of proof in sexual assault hearings.

If evidential legal reasoning is probabilistic, and rational certainty about a factual hypothesis is unattainable, then we need rules, called “standards of proof”, to determine the degree of probability required to be able to deem the assumption as proven. Only if we have standards of proof that indicate evidential thresholds will we be able to use other decision-making rules, such as burdens of proof or presumptions. Indeed, the purpose of burden of proof rules is to determine who loses the case if there is insufficient evidence of any of the hypotheses at issue. However, to apply these rules we need to know when the evidence is sufficient. The same is true of rebuttable presumptions, which require that a hypothesis be admitted in court (and used in the reasoning) in the absence of (sufficient) proof to the contrary. Therefore, for example, the presumption of innocence as a procedural rule means that defendants must be found innocent unless there is sufficient proof of their guilt. But when is the proof of a defendant’s guilt sufficient? Once again, implementing the presumption of innocence (like any other rebuttable presumption) presupposes the existence of a rule that establishes the evidentiary threshold.

In this study, I adopt an argumentative perspective on evidence, focusing on three points: (1) The structure of evidentiary inference; (2) which reasons count as good ones for establishing the degree of corroboration of a hypothesis and (3) the possibility of formulating a precise, objective standard of proof.

The focus of this book is the uniform Evidence Act (referred to throughout as ‘the Act’ or ‘the Acts’). The Act has not been introduced in Queensland, South Australia or Western Australia, where each state’s Evidence Act and the common law apply. However, the Act is still an important reference guide for those states due to the connection between the common law and the Act. Despite the differences between jurisdictions that have adopted the Act, there is a significant degree of uniformity. Accordingly, in this book the provisions that are extracted to indicate the rules in relation to the Act come from the Commonwealth Act. Any important jurisdictional differences are separately identified.

This chapter considers the legislative history and sets out some fundamental introductory concepts that are used frequently in evidence law and the trial process. This chapter is merely an introductory overview; specific topics are dealt with in substance in subsequent chapters.

The concluding chapter applies the recalibrated human rights-based interpretation of the refugee definition in the context of disasters and climate change. A three-step methodology for determining refugee status is set out, making clear that the methodology applies in the same manner for any kind of claim for recognition of refugee status, not only those relating to disasters and climate change.

In this chapter, the first limitation identified in the human rights-based approach is considered. The chapter develops the argument that the dominant human rights-based approach reflects an 'event paradigm' that only recognises that a person is persecuted once she has become the victim of a serious denial of human rights. From this perspective, persecution is equivalent to the kinds of harm recognised by international human rights law, such as being tortured. It therefore follows that the well-founded fear criterion has come to be seen as introducing a criterion of risk assessment, determining how likely it is that 'persecution' might happen on return. This perspective casts the temporal scope of being persecuted too narrowly, and, using the methodology set out at Articles 31-33 of the Vienna Convention on the Law of Treaties, the argument is advanced that a person can accurately be described as being persecuted before being subjected to a serious denial of human rights, and that the risk of being exposed to such harm is inherent in the predicament of being persecuted. Rather than being an event, being persecuted is better understood as a condition of existence.

Causation, as any other element of an actionable tort, has to be proven in the proceedings. As pointed out in Chapter 1, the causal link is not a fact; it is indeed a connection between two known facts, also defined as 'an empirical relation between concrete conditions'. It follows that it is not subject to the same burden of proof as any other evidence submitted to the court. The causal link needs a demonstration through logic, statistics and common sense, which is supported by general scientific theories and, simultaneously, by specific justification of the singular causation. Proof of singular causation therefore needs (1) scientific validity of causal generalizations that control the condition and (2) complete instantiation of the empirical relation.

The previous chapter has presented the general proof rules of causation in competition damages actions. These standard rules burden the claimant with the proof of the essential elements of a tort, including causation. However, the claimant may find it very difficult if not impossible to prove causation, especially when information is limited or is not accessible. As observed in Chapter 5, the standard proof rules place the risk for the proof of the claim and the risk of error due to evidential uncertainty on the claimant. The rules allocating this risk are mainly the result of policy-based decisions aiming at distributing the risk fairly between the parties based on a moral statement. However, on the basis of equally justifiable policy and moral choices, it is possible to create exceptions to this rule in two cases: (1) when the information is readily available to the other party and (2) when it is fair, according to the type of responsibility, to allocate the risk differently.

This chapter provides a general picture of the criminal justice system in Hong Kong. It highlights the roles and powers of key criminal justice agencies including the Hong Kong Police Force (HKPF), the Independent Commission Against Corruption (ICAC) and the prosecution. It includes discussion of police powers and prosecutorial decision-making. This chapter also goes through the criminal procedure, drawing attention to key decision points such as bail, court venue, the plea and the standard of proof. It concludes by looking at the various sentencing options at the court’s disposal.