The International Convention on the Elimination of All Forms of Racial Discrimination is the oldest UN human rights treaty, and for over forty years, the Committee overseeing its implementation, CERD, has had the power to decide individual communications. Despite this long history, a settled evidentiary framework has not materialised yet. The Committee rarely discussed evidence, and when it did, the results could differ markedly: In Dawas and Shava v. Denmark (2012), a case on mob violence, the Committee did not directly engage with the evidence, which led to a resurfacing of evidentiary questions during the follow-up phase, when they could no longer be addressed. Far preferable is the approach adopted in Zapescu v. Moldova (2021), dealing with discriminatory employment practices, where the Committee discussed the standard of proof for procedural violations and the necessary evidence. More elaborations of this kind are needed for a clear evidentiary pathway to emerge.

This introductory chapter illustrates why evidence in the individual communications procedure of the United Nations human rights treaty bodies (UNTB) is an issue requiring reflection and clarification. The chapter firstly contextualises this central topic of this book by broadly introducing the UNTBs’ mandates, composition and ways of working, as well as some general features of their individual communications procedures. Indications are given of how this legal, institutional and procedural setting interacts with the handling of evidence by the UNTBs, as well as some of the key questions it raises. The chapter further outlines some of the particular research challenges encountered in tackling the questions at the heart of this book, and how they have been addressed. It then goes on to introduce the four-part structure of the book and its ten chapters, including the final chapter, containing recommendations. Finally, this introduction discusses cross-cutting themes which emerge from the contributions.

Pushbacks are designed to prevent people on the move from accessing procedural and/or substantive legal safeguards. States thus tend to deny practising them and actively erase evidence of their occurrence. The resulting acute evidentiary challenges in any subsequent human rights litigation require adjustments to be made to the evidentiary framework. This chapter offers a four-branch matrix of what can logically happen to facts disputed in litigation. It then proceeds to critically examine how evidentiary issues have been handled in UNTB pushback case law, concluding the right findings have been made, but on a generally weak reasoning. The chapter finally stresses that the burden of proof should be shifted from complainant to state when two conditions are met: a context-proven to a high standard, such that the state can be presumed to have violated human rights; the complaint is linked to this context – with this proven prima facie. If the linkage is evidenced to a higher standard, the factual allegations must be recognised as established on the strength of the evidence –without any shift being alluded to, so as to avoid an upward slippage in the purposefully low standard of proof applied.

This chapter addresses evidence-related recommendations for the consideration of the UN treaty bodies. Written by three practitioners from the civil society sector, with direct experience of the individual communication procedure before the UNTBs, it also benefited from input from all the contributors to the volume, which it concludes. Part I offers normative reflections. It deals with legal questions, including: What should the applicable standard be when determining human rights claims? How should this standard vary according to the type of claim and the stage of the proceedings? In what circumstances and under which conditions should the burden of proof be shifted from the complainant to the respondent state? Part II deals with organisational, and thus more mundane issues, but it highlights how proper identification and communication of the applicable evidentiary concepts and norms are essential to a transparent, accessible and fair system, therefore necessitating proper resourcing.

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

Chapter 5 trains its attention on evidentiary practices, continuing to ask how law apprehends its world. The discussion reveals that legal actors have had a troubled relation with expert evidence. As with preceding chapters, a critical orientation is brought in to explicate law’s evidentiary reductivity (manageability of contingency and complexity) – to argue that the law has been unpredictable and unprincipled in how it has registered torture’s lifeworld. The pertinent questions here become: How does law interact with the natural and social sciences in the recognition of torture? What types of knowledge and evidence count towards legal recognition? What types are effaced and rendered inadmissible?

This chapter deals with ‘intime conviction’ and ‘beyond a reasonable doubt’ as ways in which fact-finders (professional judges or lay juries) in criminal trials decide on the question of guilt. The ‘beyond a reasonable doubt’ standard is typically associated with the Anglo-American system of criminal justice, whereas intime conviction is a characteristic feature of Continental procedural systems. Both standards belong to the phase of the evaluation and assessment of evidence in the criminal trial procedure. The chapter considers the way in which the two systems have converged on essentially the same standard of proof but have taken different paths towards it, with parallel discussions taking place along the way. The chapter discusses the definition of the ‘beyond a reasonable doubt’ standard in detail and introduces several important questions that have arisen around the two standards, such as those concerning definition and application of the standards, and how such issues have been resolved in the two different systems, and notes a few significant remaining differences.

The death of a patient by suicide (or homicide) can have a considerable, and lasting, emotional impact on mental health professionals, most commonly manifested as guilt, blame, shock, anger, sadness, anxiety and grief. There are often notable impacts on professional practice, including self-doubt and being more cautious and defensive in the management of risk. This chapter explores suicide and unlawful killing in the context of inquests.

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.