This article considers the increased use of mandatory sentencing provisions in a range of jurisdictions, including Canada, Australia, the United States, and United Kingdom/Europe. It finds that, whereas some courts have struck out mandatory sentencing laws, often mandatory minimum penalties have been validated. This jurisprudence is considered through a range of themes, including notions of arbitrariness, the doctrine of proportionality, the relevance of objectives of the criminal justice system, and broader questions regarding the separation of powers.

Recent years have seen a departure from traditional criminal due process requirements in the wake of 9/11, one feature of which has been the increased use of closed court hearings in relation to the introduction of evidence considered particularly sensitive to national security. Typically, both the person affected by the proceedings and their legal adviser are excluded from such a hearing. These developments contradict long-established and fundamental characteristics of proceedings in a criminal law trial in common law systems, such as the open court principle and the adversarial nature of proceedings. They also contradict the right to confront accusers, a right traceable to Roman times, and a feature of the British system for more than four centuries, and of the American system for more than two. This article highlights the latest case law developments in key jurisdictions around the world before critically appraising trends evident in the recent jurisprudence. It is critical of the fact that courts in some jurisdictions have permitted substantial departures from the right of an individual to confront witnesses being used against them.

In recent years, we have seen continued erosion of an individual’s right to silence. The most recent attempts in the author’s home country, Australia, include a current proposal to adopt the United Kingdom approach, and allow inferences to be drawn from a failure to answer questions at an early stage of investigation, in circumstances where later the person does provide an explanation. An attempt to protect the right to silence in Australia at constitutional level is challenging, because Australia is one of the few Western nations that has not seen fit to enact an express bill of rights. This article will consider whether arguments might be made that, at least in some contexts, infringement of the right to silence is, nevertheless, contrary to the requirements of the Australian Constitution. Courts in other countries around the world have also recognized the right to silence in some circumstances where legislatures have attempted to limit it, and these will be considered in the Australian context, acknowledging appropriate contextual differences. Many countries are faced with the difficulty of reconciling fundamental due process principles with the need for effective investigatory powers sufficient to deal with evolving criminal threats. It will be instructive to consider how a successful balance has been accommodated in a range of jurisdictions. It is believed that the law of the author’s home country could be greatly enriched by engaging with North American and European case law, as this article will seek to demonstrate. The article is considered to be of interest to those outside of Australia, to understand the difficulties in protecting fundamental human rights when an express bill of rights does not exist in the relevant country, and to consider how other ways may be found to protect such rights. In this way, this article will use Australia as the example of a country without an express bill of rights, and will consider how, in that context, fundamental human rights can practically be protected by the courts. The conclusions are considered relevant to a range of nations. Specific examples include Singapore and Malaysia, and to a lesser extent India, as will be explained.