"INTERNET LAW BOOK REVIEWS", Provided by Rob Jerrard LLB LLM (London)

Ashgate Publishing/Gower Publishing. Books Reviewed in 2009

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Public Interest Rules of International Law
Towards Effective Implementation
Edition: 1st
Format: Hardback
Author: Edited by Teruo Komori, Chiba University, Japan and Karel Wellens, Radboud University Nijmegen, The Netherlands
ISBN: 978-0-7546-7823-6
Publishers: Ashgate
Price: $134.95
Publication Date: November 2009
 
Publisher's Title Information
 

This book clarifies factors that play an important role in securing the effectiveness of legal regimes that aim to protect public interests of the international community. In Part 1, the authors focus on theoretical problems arising in the implementation process of those legal regimes from both a constitutional and functional perspective. In Parts 2 through Part 4, they pay attention to practical issues in the implementation process of particular legal regimes, in light of what interpretation or measures are legitimate from the perspective of protecting public interests. This book incorporates an idea of public law into the theoretical framework of international law which has been mainly constructed on the theory of private law in domestic legal systems. In contrast to many books which focus on the role of the procedural and material factors in the implementation process of various institutions and rules, this book emphasises the role of normative factors in securing effectiveness of public interests-oriented rules and is a valuable resource for both academics and policy makers working in this area.
 
Contents:

 
Introduction, Teruo Komori; Part I Theoretical Aspects of the Implementation Processes: General observations, Karel Wellens; Diversification of implementation processes and changing concepts of effectiveness: from a factor-based to a process-based approach, Teruo Komori; Multifaceted conceptions of observance and the human rights approach, Teraya Koji. Part II Diversity and Complexity of Institutionalized Implementation Process: UN reform 2005 and beyond: conceptualization, institutionalization and implementation, Vitit Muntarbhorn; Legitimization of measures to secure effectiveness in UN peacekeeping: the role of Chapter VII of the UN Charter, Hironobu Sakai; Security Council Resolution 1540 and international legislation, Masahiko Asada; Proportionality as a norm of application for the precautionary principle: its significance for the operation of the precautionary regime for land-based marine pollution in the North-west Atlantic, Takeo Horiguchi; The role of diplomatic protection in the implementation process of public interests, Nobuyuki Kato. Part III Coordination of Legal Regimes and Systems in the Implementation Process: Effective implementation of intersecting public international regimes: environment, development and trade law, Marie-Claire Cordonier Segger; Effective implementation of international environmental agreements: learning lessons from the Danube delta conflict, Mari Koyano; The principle of complementarity in reality: who actually applies it and in what way under the ICC system?, Shuichi Furuya; Implementation of Article VI of the 1967 Outer Space Treaty: the responsible state and appropriate state for private space activities, Akira Shibata; How to design an international liability regime for public spaces: the case of the Antarctic environment, Akiho Shibata. Part IV Diversification of Actors in the Implementation of International Public Interests: International economic law and the Basel Committee on Banking Supervision - an alternative form of international law-making?, Kern Alexander; Corporate social responsibility and its implications for public international law, Ago Shin-Ichi; Privatization of childcare as a way to implementing young children's rights: the recommendations of the Committee on the Rights of the Child and their implications for Japan, Ota Ikuko; Concluding remarks, Karel Wellens; Index.
 

About the Editors:
 
Teruo Komori is at Chiba University, Japan.
 
Karel Wellens is Professor of International Law, Faculty of Law.
 
Radboud University Nijmegen, The Netherlands.


Legal Evidence and Proof - Statistics, Stories, Logic
Edition: 1st
Format: Hardback
Edited by Hendrik Kaptein, Leiden University, Henry Prakken, University of Groningen and Utrecht University and Bart Verheij, University of Groningen, the Netherlands
ISBN: 978-0-7546-7620-1
Publishers: Ashgate
Price: £ $114.95
Publication Date: February 2009
 
Publisher's Title Information
 

As a result of recent scandals concerning evidence and proof in the administration of criminal justice - ranging from innocent people on death row in the United States to misuse of statistics leading to wrongful convictions in The Netherlands and elsewhere - inquiries into the logic of evidence and proof have taken on a new urgency both in an academic and practical sense.
 
This study presents a broad perspective on logic by focusing on inference not just in isolation but as embedded in contexts of procedure and investigation. With special attention being paid to recent developments in Artificial Intelligence and the Law, specifically related to evidentiary reasoning, this book provides clarification of problems of logic and argumentation in relation to evidence and proof.
 
As the vast majority of legal conflicts relate to contested facts, rather than contested law, this volume concerning facts as prime determinants of legal decisions presents an important contribution to the field for both scholars and practitioners.
 
Contents: Preface; General Introduction; Burdens of evidence and proof: why bear them? A plea for principled opportunism in (leaving) legal fact-finding (alone), Hendrik Kaptein; The fabrication of facts: the lure of the credible coincidence, Ton Derksen and Monica Meijsing; Decision-making in the forensic arena, Ton Broeders; Analysing stories using schemes, Floris Bex; The evaluation of evidence: differences between legal systems, Marijke Malsch and Ian Freckelton; Inference to the best legal explanation, Amalia Amaya; Accepting the truth of a story about the facts of a criminal case, Bart Verheij and Floris Bex; Rigid anarchic principles of evidence and proof: anomist panaceas against legal pathologies of proceduralism, Hendrik Kaptein; A logical analysis of burdens of proof, Henry Prakken and Giovanni Sartor; 12 angry men or one good woman? Asymmetric relations in evidentiary reasoning, Burkhard Schafer; Index.
 

About the Editors: Hendrik Kaptein is Senior Lecturer in Jurisprudence, Faculteit der Rechtsgeleerdheid van de Universiteit Leiden. He has published extensively in both Engilsh and Dutch.
 
Henry Prakken is lecturer in artificial intelligence at the Department of Information and Computing Sciences of Utrecht University and Professor of Law and ICT at the Faculty of Law, University of Groningen. His main research interests concern artificial Intelligence and law, logical foundations of common-sense reasoning and the application of argumentation in procedures for dispute resolution, group decision making and negotiation. He has published widely on these and related areas.
 
Bart Verheij is a university lecturer/researcher (in Dutch: universitair docent) at the Artificial Intelligence department of the University of Groningen, the Netherlands. His research has focused on defeasible argumentation, legal argumentation, argumentation support software and argumentation schemes, often using formalism as a tool of analysis.
 
Bart Verheij is a university lecturer in the Department of Artificial Intelligence, University of Groningen. His research has focused on defeasible argumentation, legal argumentation, argumentation support software and argumentation schemes, often using formalism as a tool of analysis.
 

Reviews:
 
'Those who know little about criminal evidence should read this book. Those who think they are knowledgeable about it also. And all those in between. None of them will ever again sleep the restful sleep that it is easy to prove that somebody committed a crime.'
Peter J. van Koppen, Maastricht University and Free University Amsterdam, The Netherlands
 
'The Netherlands has a strong tradition of exploring theoretical issues relating to argumentation, narrative, statistics, evidence, the logic of proof and their interactions in legal contexts. This challenging volume builds on and extends this tradition. It engages critically with the Anglo-American literature across the common law/civil divide.'
William Twining, University College London, UK
 

From the General Introduction
 
Legal Evidence and Proof: Past, Present, Future
 
Legal evidence has to do with facts (though even this basic stance has been questioned, in the already extensive literature on the subject). In fact, the law has to do with facts in so many more ways. Law itself consists of institutional facts.
 
Facts determine the content of law: think of Hart's minimum content of natural law, based on elementary facts of human and social life. Law sets factual limits to human conduct, through threats of punishment and so much more, just as it creates possibilities for important kinds of conduct and its factual consequences, such as legislating and contracting. Lawful (and unlawful) conduct changes the facts of the world. So many more relationships of law and fact remain to be investigated.
 
Most important, of course, are facts determining the application of legal rules to parts of the living (and sometimes dead) world, or: the problem of legal evidence and proof. Establishment of such facts, needed in order to realize the law (and hopefully justice and right) may go without much further saying, in any case if all parties and others concerned reasonably agree on them. But more than a few legal and other conflicts on the application of rules are fought over disputed facts, rather than disputed law, in courts of law and in the real world. So methods and standards have to be devised to settle conflicts over facts in some or other authoritative or even rational manner. A rather ancient but still probably well-known example of this is to be found in the Code of Hammurabi:


Driving Offences, Law. Policy and Practice
Edition: 1st
Format: Hardback
Author: Sally Cunningham
ISBN: 978-0-7546-4905-2
Publishers: Ashgate
Price: $114.95
Publication Date: August 2008
 
Publisher's Title Information
 

This volume examines general driving offences, concentrating on those which punish risk-taking whilst driving, with the primary goal of increasing road safety. The focus is particularly on careless driving, dangerous driving, drink-driving and speeding, with a comparative approach incorporated into the discussion. Drawing on legal and psychological research, the book explains the legal definition of offences, discussing the policy behind the offences and examines how the law is applied in practice. It concludes with consideration of how the law in this area might be reformed - informed by the preceding discussion. This title will be a valuable resource tool for students, academics and practitioners working in the area of road safety.
 
Contents

 
Introduction; Dangerous driving and careless driving; Drink-driving and speeding; Homicide offences; A comparative study: traffic law in Sweden; The role of the criminal law in promoting road safety;The future of road traffic offences; References; Index.
 
The Author

 
Dr Sally Cunningham is a lecturer in the Department of Law, University of Leicester, UK. Her teaching and research interests are in the areas of Criminal Law and Criminal Justice. She has a particular interest in and has published widely on vehicular homicide.
 

Comments
 
'This book shows how the road traffic law is applied in practice - providing a historical, moral and legal argument for the difficulties in dealing with driving offences and proving intent. The book also draws on psychological theories about the defendant's "state of mind" at the time of the offence and sheds light on a hotly debated societal problem - why thousands of people are killed and injured globally yet very few prosecutions result. It is a valuable contribution to the field.' Lisa Dorn, Cranfield University, UK
 

Part of Introduction
 
The Scope of this Book
 
This book aims firstly to set out the law relating to driving offences. Other than practitioner texts there is very little written on offences under statutes such as the Road Traffic Act 1988 and the Road Safety Act 2006. Since driving offences are dealt with by the criminal justice system and are under the jurisdiction of the magistrates' court and Crown Court, they form part of the substantive criminal law. However, driving offences are rarely studied by undergraduate students of law, perhaps due to the perception that they fall outside the 'paradigm' of criminal
liability, and, along with other types of offences such as drug offences, are not seen as 'core' crimes (see Husak 2005, 65). Driving offences tend to be regarded as mere regulatory offences, which, as noted by Wells in the context of corporate crime and health and safety offences, leads to them being perceived as 'quasi' crime rather than 'true' crime (Wells 2001, 7). The law relating to road traffic offences is often overlooked by commentators on the criminal law, who tend to focus on the more paradigmatic groups of offences such as homicide offences, offences
against the person, sexual offences and property offences. Arguably, however, traffic offences should receive much greater attention, given that it is the one area of the criminal law most likely to touch on the everyday lives of a large majority of the adult population of any industrialized country. Unlike the more paradigmatic types of offences, the average member of the public is conceivably as likely to be a perpetrator of a traffic crime as he or she is to be a victim thereof.
 
Cars and other motor vehicles have now been around for over a century, with the first car having been imported into England in 1894 (Perkin 1976, 7), and there is no doubt that they have had an enormous impact on both society as a whole and the lives of individuals. As noted by Perkin, the automobile has 'determined where we live and work, and so the shape and character of the human community' (ibid., 129). It has liberated individuals by enabling them to travel where they choose, thus producing freedom of choice as to where they live and work, as
well as providing a valuable method of transport for commercial purposes. Yet in addition to numerous advantages created by its invention, the motor vehicle has brought with it is advantages of equal significance.

Review
 

The author tells us in the Introduction that other than practitioner text, there is very little written on offences under statutes such as the Road Traffic Act 1988 and Road Safety Act 2006. Could this be because as she also notes, 'driving offences are rarely studied by Undergraduate Students of Law'. This is a fact, as she further notes, 'they are not regarded as core crimes'.
 
This of course is not the case with Police Officers who have always studied road traffic from day one of their service and on throughout the system. Indeed there is a separate Police Manual on Traffic now called 'Road Policing' and there has always been a Road Traffic paper in the promotion examinations.
 
Certainly a very good place to begin could well be Blackstone's Police Manual Volume 3, Road Policing 2009 and Blackstone's Practical Policing Road Traffic Second Edition 2009. As you can conclude, both are current. Many practitioners may be rich enough to own copies of Butterworth's Road Traffic Service or Sweet & Maxwell's Encyclopaedia of Road Traffic. There then remains Wilkinson's Road Traffic Law, which I'm sure will be seen carried into court by Counsel or Solicitors.
 
This particular book 'Driving Offences' covers only Dangerous and Careless Driving, Drink Driving and Speeding and Homicide offences, and as such is limited as far as Police Officers are concerned, to whom road traffic is very much more.
 
This book will therefore appeal to academics wishing to pursue their studies of those subjects covered in the book. The text also covers a comparative study of Sweden and discusses the future.
 
Authorities are given where appropriate, however to find the citation in full you need to refer to the Index.
 
The very first page deals with the term 'Accidents', thus it is as well to carry out a comparison. The author quotes Section 170 Road Traffic Act 1988 when discussing a legal obligation to report an accident', however, she does not delve very deeply and only three authorities are quoted, Chief Constable of West Midlands, the Billingham [1979] RTR 446 and Currie [2007] RTR 37 and a Scottish case Bemmer v Westwater [1994] SLT 707. The most basic case of all, that of Harding v Price [1948] 1 ALL ER 283 - drummed into all Police recruits at a very early stage gets no mention - A driver must know he was involved in an accident. There is quite a lot to Section 170 and not all of it is discussed. Blackstone's Police Manual lists Billingham and also the cases of Chief Constable of Staffordshire v Lees [1981] RTR 506, and R v Pico [1971] RTR 500.
 
To be fair, the actual offences covered are discussed in some depth and it includes sentencing, which is not normally covered in Police books.
 
Surprisingly, Section 35 of the Offences Against the Person Act 1861 is discussed.
 
Drivers of carriages injuring persons by furious driving
Whosoever, having the charge of any carriage or vehicle, shall by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, . . .
 
I believe this and Furious Driving under the Town Police Clauses Act 1847 (Every person who rides or drives furiously any horse or carriage, or drives furiously any cattle): are rarely used. I never charged either, but 'Drunk in Charge of a Carriage' - yes. The 1872 Licensing Act, states that it is an offence to be 'drunk while in charge on any highway or other public place, of any carriage, horse…'
 
It originally said, Every person . . . who is drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine, or who is drunk when in possession of any loaded firearms, may be apprehended, and shall be liable to a penalty not exceeding forty shillings, or in the discretion of the court to imprisonment . . . for any term not exceeding one month.
 
I suppose S 35 1861 needs to be covered but Blackstone's Police Manual gives it two lines and I doubt it has ever been the subject of a question in a Police promotion examination.
 
The author continues, …the offence is triable on indictment and carries a maximum penalty of two years' imprisonment. Unlike careless and dangerous driving this offence was introduced before the motor car and so applies to non-motorized vehicles including bicycles. It also differs in that it is a result crime rather than just a conduct crime since it requires bodily harm to have been caused by driving. This is a rarely used provision: in 2003 it was charged in only 55 cases and in 28 cases the charges were dropped, only 12 ending in conviction (Home Office 2005a, para.3.36). That being the case, there are few modern cases on its meaning…
 
If it ever does arise now you know.
 
The value of this book lies in the 'practice' discussions and although not mentioned in the contents page, aggravated vehicle taking is covered.
 
Because of its limited coverage of offences it will not replace the Blackstone's Police Manual. However it should find a place in any Police Library at Headquarters or Training Centres and will be attractive to academics who are researching the particular offences it covers. I am sure it will stimulate some lively discussions.
 
Rob Jerrard

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