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Hart Publishing Ltd Books Reviewed in 2010

Debating Restorative Justice
Edition: 1st
Format: Paperback
Author: Chris Cunneen and Carolyn Hoyle
ISBN: 9781849460224
Publishers: Hart Publishing
Price: £15
Publication Date: August 2010

Publisher's Title Information


Debating Law is a new, exciting series that gives scholarly experts the opportunity to offer contrasting perspectives on significant topics of contemporary, general interest.
 
In this first volume of the series Carolyn Hoyle argues that communities and the state should be more restorative in responding to harms caused by crimes, antisocial behaviour and other incivilities. She supports the exclusive use of restorative justice for many non-serious offences, and favours approaches that, by integrating restorative and retributive philosophies, take restorative practices into the 'deep end' of criminal justice. While acknowledging that restorative justice appears to have much to offer in terms of criminal justice reform, Chris Cunneen offers a different account, contending that the theoretical cogency of restorative ideas is limited by their lack of a coherent analysis of social and political power. He goes on to argue that after several decades of experimentation, restorative justice has not produced significant change in the criminal justice system and that the attempt to establish it as a feasible alternative to dominant practices of criminal justice has failed. This lively and valuable debate will be of great interest to everyone interested in the criminal justice system.

The Authors

Chris Cunneen is Professor of Criminology at the Cairns Institute, James Cook University, Australia.
Carolyn Hoyle is a Reader in Criminology and a Fellow of Green Templeton College at the University of Oxford.

Series Editors Preface

This innovative and exciting series was inspired by one of the best-known philosophy books of the latter half of the twentieth century. Utilitarianism for and against by JJC Smart and Bernard Williams, published in 1973, is described on its cover as '[t]wo essays…written from opposite points of view'. It is one of the classics of the modern literature on utilitarianism.

Based on this model, books in the Debating Law series will contain two essays of around 30,000 words, each developing a strong and intellectually rigorous argument on a topic of contemporary and ongoing debate. The aim is to stimulate, challenge and inform by bringing contrasting perspectives together in the one volume.

The Debating Law series offers a forum for scholarly argument and advocacy. It gives essayists the opportunity to make a fresh and provocative statement of a normative position freed from a tight requirement of 'balance'. Although debaters are encouraged to exchange ideas during the writing process, it is not the intention that the two essays will answer one another but rather that each will provide an independent statement of a point of view. Authors may take different tacks and address different issues within the broad topic, and the starting points or foundations of the case on one side may be different from those of the case on the other side. The confident expectation is that the debate format will sharpen issues, and highlight areas of both agreement and disagreement, in an effective and illuminating way.

The Debating Law series is designed for a wide readership. The aim is that each essay should be self-contained, accessibly written and only lightly end noted. Books in the series will be valuable for those coming to the topic for the first time and also for the experienced reader seeking a stimulating, thought-provoking and concise statement of different points of view. They will provide valuable resources for teaching as well as lively discussions of important issues of wide current interest.
Peter Cane


Contents

Series Editors Preface v
Acknowledgements by Carolyn Hoyle vii
Acknowledgements by Chris Cunneen ix
The Case for Restorative Justice by Carolyn Hoyle 1
I. Introduction 1
II. A Route through Definitional constraints and
Imprecision 6
A. Introduction 6
B. Defining Victims and Offenders 8
C. Crimes and Harms 11
D. Restorative Justice and Restorative Practices 14
III. Community at the Heart of Restorative Justice 16
IV. A reflection on the Imbalance between Restorative
Aspirations and Restorative Practices 26
A. Restorative Justice in the UK: All Talk and Little
or No Action 26
B. A Criminology of Hope 30
C. Appeals to Communitarianism 34
V. Restorative Justice and Criminal Justice:
Complementary not Contradictory 40
A. A Challenge to an Unhelpful Dichotomy 40
B. The Case for the Coexistence of Restorative and
Criminal Justice 44
C. A Framework for the Coexistence of Restorative
and Criminal Justice 50
1. Engaging community in search of appropriate
participants 50
2. A qualified defence of coercion 57
3. The aims of punishment and the boundaries of
proportionality 60
4. Who should facilitate restorative processes? 69
5. Conclusion 71
VI. In Defence of Restoration in the 'Deep end' of
Criminal Justice 72
A. Domestic Violence 75
B. Crimes against Humanity 81
C. Everything has its Limits 89
VII. Conclusion: Restoration for Fragmented Communities 91
Bibliography 95
The Limitations of Restorative Justice by Chris Cunneen 101
I. Introduction 101
II. Why Restorative Justice 109
A. Concept of Origins 109
B. Explaining the Rise of Restorative Justice 118
C. Policy Transfer and the Globalisation of Restorative
Justice 125
III. Creating Ideal Victims and Offenders 132
A. The Victim 134
B. Victim Trauma 138
C. Does Restorative Justice Offer a Better Deal for
Victims? 141
D. The Offender 146
E. Structural Inequalities and the Offender/Victim
Relationship 150
1. Violence against women 150
2. Hate crime 155
3. Social inequality 156
F. Victims, Offenders, Rights and Incommensurability 157
xii Contents
IV. Law, State and Community 161
A. The Role of Law and the State 162
B. Policing and Criminalisation 167
C. Punishment and Risk 169
D. The Community 174
E. Transitional Justice 177
V. Conclusion: Searching for Truth in Restorative Justice 183
Index 189

More Information can be found at the Hart Publishing Website at:-

More Information on the Publisher's Website about, Debating Restorative Justice


Simester and Sullivan's Criminal Law - Theory and Doctrine
Edition: 4th
Format: Paperback
Author: A P Simester, J R Spencer, G R Sullivan and G J Virgo
ISBN: 9781841139227
Publishers: Hart Publishing
Price: £29.99
Publication Date: August 2010
 
Publisher's Title Information

“We wanted to write a text on the substantive criminal law which has depth as well as breadth, a book that takes the detail seriously as well as the underlying principles. Our aim was to show the criminal law as a process of argument, not simplistic answers - to write a book that can be read, not merely consulted.”
Professor Andrew Simester and Professor Bob Sullivan.
 
This is the fourth edition of the leading textbook on criminal law by Professors Simester and Sullivan. Established as an outstanding modern account of English criminal law, it combines detailed, authoritative exposition of the law with careful exploration of its theoretical underpinnings. It is designed for use in undergraduate teaching, and previous editions have proved very popular with recent cohorts of students. The book has also established itself as a major point of reference in academic writing, here and abroad, and has been cited in appellate courts throughout the world, including the House of Lords, the High Court of Australia, the Supreme Court of Canada, and the Special Tribunal for the former Yugoslavia.
 
This edition features coverage of major new developments including: the Serious Crime Act 2007; the Criminal Justice and Immigration Act 2008 provisions on self-defence and sentencing; the Corporate Manslaughter and Homicide Act 2007; and The Coroners and Criminal Justice Act 2009, including full treatment of the new law on provocation and diminished responsibility brought in by this Act. There is also a discussion of recent homicide law reform initiatives and of reform proposals in conspiracy, attempts, and complicity law.

The Authors

A P Simester is Professor of Law at the National University of Singapore and Fellow of Wolfson College, Cambridge.
G R Sullivan is Professor of Law at University College, London.
J R Spencer QC is Professor of Law in the University of Cambridge and a Fellow of Selwyn College, Cambridge.
Graham Virgo is Professor of English Law and a Fellow of Downing College, Cambridge.

CONTENTS

Preface v
Expanded Table of Contents ix
Abbreviations xxi
Table of Cases xxiii
Table of Legislation ???
1 Criminal law: definition and ambit 1
2 The rule of law and the European Convention 21
3 Interpretation and proof 45
4 The actus reus 67
5 Mens rea 125
6 Strict and constructive liability 173
7 Secondary participation 203
8 Vicarious and corporate liability 263
9 The inchoate offences 285
10 Homicide 359
11 Non-fatal offences against the person 425
12 The principal sexual offences 459
13 Theft 485
14 Related offences 547
15 Fraud 601
16 The moral limits of criminalisation 637
17 Defences: an overview 661
18 Failure of proof: mistake and intoxication 671
19 Mental condition defences 701
20 Defences of circumstantial pressure 725
21 Permissible conduct 747
22 Defences and blame: some observations 791
Bibliography 809
Index 833
EXPANDED TABLE OF CONTENTS
1 CRIMINAL LAW: DEFINITION AND AMBIT 1
§ 1.1 A search for definition 1
(i) The harmful nature of the prohibited event 2
(ii) Punishment 3
(iii) Convictions 4
§ 1.2 Ambit 5
(i) Criminalisation ex ante 6
(ii) Ex post: censure 7
(iii) Ex post: sanction 16
§ 1.3 The structure of a criminal offence 18
(i) Defences: a separate element 19
2 THE RULE OF LAW AND THE EUROPEAN CONVENTION 21
§ 2.1 No conviction without criminalisation 22
§ 2.2 Retrospective crimes 22
§ 2.3 Fair warning 26
(i) Use of evaluative concepts 29
§ 2.4 Fair labelling 31
§ 2.5 The European Convention on Human Rights 32
(i) The Human Rights Act 1998the framework 33
(ii) The interpretation of Convention rights 38
(iii) The ECHR and the substantive criminal law 40
3 INTERPRETATION AND PROOF 45
§ 3.1 Statutory interpretation 45
(i) The sources of the criminal law 46
(ii) The interpretation of criminal statutes 47
(iii) Interpretation and development of common law offences 55
§ 3.2 The burden of proving actus reus and mens rea 57
(i) Exceptions 59
(ii) The “golden thread”: somewhat frayed? 64
4 THE ACTUS REUS 67
§ 4.1 The behaviour element 68
(i) Behaviour and omissions 68
(ii) Crimes with no (explicit) behaviour element 79
§ 4.2 Consequences: the need for causation 83
(i) The rule of thumb 84
(ii) Causation in law 85
(iii) Intervening causes 89
(iv) Omissions 103
§ 4.3 The requirement of voluntariness 107
(i) Involuntary behaviour 109
(ii) Omissions, states of affairs, and possession 114
(iii) Involuntariness: responsibility by antecedent fault 119
5 MENS REA 125
§ 5.1 Intention 126
(i) Ways of speaking about intention (in its core sense) 127
(ii) A formal definition of intention in its core sense 128
(iii) Foresight of consequences is not enough 130
(iv) Virtually certain consequences: the second category of intention 132
(v) Intention and circumstances 137
(vi) Multiple intentions 138
(vii) “With intent” or “ulterior intent” crimes 138
(viii) Conditional intent 139
(ix) No presumption of intention 139
§ 5.2 Recklessness 140
(i) The need for foresight 141
(ii) Recklessness as an actus reus term 145
(iii) Recklessness and circumstances 145
(iv) Intoxication and the presumption of recklessness 147
§ 5.3 Why distinguish intention from recklessness? 147
§ 5.4 Knowledge 149
(i) Wilful blindness 149
§ 5.5 Negligence 151
(i) The test for negligence 151
(ii) Abnormal defendantsdoes the reasonable man share any of their
characteristics? 154
(iii) Negligence with respect to behaviour rather than consequences or
circumstances 157
(iv) The place of negligence 158
§ 5.6 Other mens rea states 159
(i) “With a view to” 159
(ii) Wilfulness 159
(iii) Malice 160
(iv) Possession 161
§ 5.7 Transferred mens rea 164
(i) “Incompatible” or “remote” transfers where the offence elements are
satisfied? 165
§ 5.8 Concurrence 166
(i) Circumventing the concurrence requirement 167
6 STRICT AND CONSTRUCTIVE LIABILITY 173
§ 6.1 Recognition of strict liability in a statutory offence 175
(i) The initial presumption 176
(ii) Overriding the presumption: subject matter of the offence 179
(iii) Severity of punishment 183
(iv) Implying mens rea from statutory language 184
(v) The ability of others to affect D's liability? 185
§ 6.2 The availability of common law defences 186
(i) Exception for situational offences 187
§ 6.3 The justification of strict liability 188
(i) The argument for sometimes dispensing with mens rea 189
(ii) The argument for always requiring mens rea 190
(iii) The argument for strict liability 191
(iv) The argument against strict liability 192
§ 6.4 Middle ground: strict liability in the Commonwealth 194
§ 6.5 The correspondence principle, constructive liability, and moral luck 196
(i) Moral luck 198
7 SECONDARY PARTICIPATION 203
§ 7.1 The possibility of derivative liability 203
§ 7.2 Modes of participation 205
§ 7.3 The principal 206
(i) Innocent agents 207
(ii) Law Commission proposals 209
§ 7.4 Secondary parties who assist or encourage crime 210
(i) The conduct element 210
(ii) The need for a connection 214
(iii) Omissions 215
(iv) Mens rea for participation by assistance or encouragement 219
§ 7.5 Secondary parties pursuant to joint unlawful enterprise 233
(i) Joint embarkation on crime A 234
(ii) Foresight of crime B 235
(iii) An incident of the joint enterprise and not fundamentally different 236
(iv) Conviction for a different offence with overlapping actus reus? 241
(v) The rationale of joint enterprise liability 242
§ 7.6 General principles applying to all secondary parties 245
(i) Liability is normally dependent on commission of the offence 245
(ii) Exceptions: secondary liability without the primary offence 245
(iii) Conviction for different offences with the same actus reus 248
(iv) Limitations on secondary liability 250
(v) Secondary liability and inchoate offences 253
(vi) Withdrawal 254
§ 7.7 Do we need complicity? 257
(i) Law Commission proposals 259
(ii) A causation analysis? 260
8 VICARIOUS AND CORPORATE LIABILITY 263
§ 8.1 Vicarious Liability 263
(i) Express legislation 264
(ii) Delegation 265
(iii) When the act of an employee/agent is that of the employer/principal 267
(iv) Anomalous cases of liability for an employee's act 268
(v) Summary 270
(vi) Reform 271
§ 8.2 Corporate liability 272
(i) The justification of corporate liability 272
(ii) Crimes of strict liability 273
(iii) Crimes of mens rea 273
(iv) Summary: the current law 278
(v) Reform: new conceptions of corporate action and responsibility 279
9 THE INCHOATE OFFENCES 285
§ 9.1 Incitement 286
§ 9.2 Encouraging and assisting a crime 287
(i) Actus reus 288
(ii) Mens rea 294
(iii) Defences 297
§ 9.3 Conspiracy 300
(i) Statutory conspiracydefinition and ambit 301
(ii) The agreement 303
(iii) The “course of conduct” 309
(iv) The mens rea of conspiracy 312
(v) D's co-conspirators: some limitations 322
(vi) Conspiracies involving the commission of more than one offence 325
(vii) Conspiracyan unnecessary offence? 326
§ 9.4 Attempt 328
(i) Actus reus: the requirement of proximity 329
(ii) The scope of the actus reus of attempt 332
(iii) The mens rea of attempt 335
(iv) Voluntary withdrawal 342
(v) Liability for attempt and commission of the full offence 343
(vi) Attempt, luck, and punishment 344
(vii) Reform of the law of attempt 346
§ 9.5 Impossibility and inchoate offences 348
(i) The principle of an impossibility defence 348
(ii) Impossibility at common law 351
(iii) Impossibility in attempt, statutory conspiracy, encouragement, and
assistance 353
§ 9.6 Jurisdiction and inchoate offences 355
10 HOMICIDE 359
§ 10.1 Death and liability 359
§ 10.2 Homicide defined 360
(i) Human beings 360
(ii) Causation in homicide 366
(iii) Acts, omissions, and homicide 368
(iv) Abolition of the year and a day rule 370
(v) The Queen's Peace 370
§ 10.3 Murder 371
(i) The mental element in murder 371
(ii) The ambit of murderan evaluation 376
§ 10.4 Manslaughter 379
(i) Introduction 379
(ii) Voluntary manslaughter 380
§ 10.5 Loss of self-control 380
(i) Provocation 381
(ii) A critique of provocation 394
(iii) The statutory defence of loss of control 396
(iv) Relationship with diminished responsibility 401
§ 10.6 Involuntary manslaughter 402
(i) Constructive manslaughter 402
(ii) Manslaughter by gross negligence 409
(iii) Corporate manslaughter 414
(iv) Reckless manslaughter 415
§ 10.7 Reform of the law of homicide 417
§ 10.8 Causing the death of a child or vulnerable adult 418
§ 10.9 Suicide, encouraging or assisting suicide, and suicide pacts 419
(i) Suicide 419
(ii) Encouraging or assisting suicide 420
(iii) Suicide pacts 422
11 NON-FATAL OFFENCES AGAINST THE PERSON 425
§ 11.1 Assault and battery 426
§ 11.2 Assault 427
(i) The actus reus 427
(ii) The mens rea for assault 432
§ 11.3 Battery 432
(i) Actus reus 432
(ii) Hostility 434
(iii) Mens rea 435
§ 11.4 Assault occasioning actual bodily harm 435
(i) Actus reus 436
(ii) Mens rea 437
§ 11.5 Maliciously wounds or inflicts grievous bodily harm 438
(i) Actus reus 438
(ii) Mens rea 441
§ 11.6 Wounding with intent 442
(i) Actus reus 442
(ii) Mens rea 443
§ 11.7 Transmitting diseases and infection 444
(i) Cases where harm was intended 444
(ii) Cases where the harm was knowingly risked 445
(iii) Administering noxious things 446
§ 11.8 Harassment 446
(i) Harassment of another 447
(ii) “Persuasive” harassment of others 449
(iii) Causing fear of violence 449
§ 11.9 Racial and religious aggravation 450
§ 11.10 Reforming the law of violence 453
12 THE PRINCIPAL SEXUAL OFFENCES 459
§ 12.1 Non-consensual sexual offences 460
§ 12.2 Rape 461
§ 12.3 Assault by penetration 462
§ 12.4 Sexual assault 463
§ 12.5 Causing a person to engage in sexual activity without consent 464
§ 12.6 Sexual conduct or activity 465
(i) Activity “by its nature” sexual 467
(ii) Activity ambiguous by nature 467
§ 12.7 Consent 468
(i) “Conclusive presumptions” about non-consent: section 76 470
§ 12.8 Mens rea in non-consensual sexual offences; mistaken belief in consent 472
§ 12.9 Proof of non-consent, and the defendant's mens rea as to this 473
(i) Section 75 and the “evidential presumptions” 473
(ii) Consent and reasonable belief apart from evidential and conclusive
presumptions 476
§ 12.10 Intoxication 477
§ 12.11 Consensual sexual offences 478
§ 12.12 Child sex offences 478
(i) Offences involving children under 13 478
(ii) Offences involving children under 16 479
§ 12.13 “Abuse of trust” 482
§ 12.14 “Familial child sex offences” 483
§ 12.15 Sex with an adult relative 483
§ 12.16 Jurisdiction 484
13 THEFT 485
§ 13.1 Property, rights, and justice 485
§ 13.2 The definition of theft 487
§ 13.3 Property 488
(i) What counts as property? 488
(ii) The exceptions in section 4(2)-(4) 493
§ 13.4 Belonging to another (I)the basics 494
(i) What interests are protected by section 5? 495
(ii) Theft by an owner under section 5(1) 496
(iii) Theft by an absolute owner? When D's interest is better than V's 496
(iv) Has D become an absolute owner? 497
(v) Abandonment and loss: is finding theft? 503
§ 13.5 Belonging to another (II): extensions in the Act and in equity 506
(i) The growth of the constructive trust 506
(ii) Theft of an interest protected by section 5(2): trust property 513
(iii) Theft of an interest protected by section 5(3): property received on
account 513
(iv) Theft of an interest protected by section 5(4): where there is an
obligation to make restitution 515
§ 13.6 Appropriation 517
(i) Some examples of appropriation 518
(ii) Restrictions on the scope of appropriation? 518
(iii) Theft by keeping or omission 525
(iv) Multiple and continuing appropriations 527
(v) Bona fide purchasers 529
(vi) Bank accounts 530
§ 13.7 Intention permanently to deprive 531
(i) The core definition 531
(ii) Section 6: extensions and special cases 535
§ 13.8 Dishonesty 538
(i) Belief that he has the right to deprive: section 2(1)(a) 539
(ii) Belief that the other would consent: section 2(1)(b) 540
(iii) Belief that the owner cannot be found: section 2(1)(c) 540
(iv) The general test for dishonesty 542
§ 13.9 Jurisdiction over Theft Act offences 545
14 RELATED OFFENCES 547
§ 14.1 Handling stolen goods 547
(i) Handling 549
(ii) Stolen goods 554
(iii) Knowledge or belief 558
(iv) Dishonesty 564
(v) Concurrence of actus reus and mens rea 564
(vi) Handling versus theft 564
§ 14.2 Laundering 566
(i) Acquisition, etc., versus handling 567
(ii) The scope of the acquisition offence 569
§ 14.3 Robbery 570
(i) Theft 570
(ii) Use or threat of force 571
(iii) Immediately before or at the time of the theft 573
(iv) In order to commit theft 575
(v) Assault with intent to rob 575
§ 14.4 Burglary 575
(i) Entry 577
(ii) As a trespasser 578
(iii) A building or part of a building 581
(iv) With intent to commit, or committing, the ulterior offence 582
(v) The rationale of burglary 585
(vi) A case for reform 586
§ 14.5 Criminal damage 587
(i) Destroys or damages 588
(ii) Property 590
(iii) Belonging to another 591
(iv) Intentional or reckless damage 592
(v) Intention or recklessness whether the property belongs to another 592
(vi) Without lawful excuse 593
(vii) Criminal damagea distinctive wrong 597
§ 14.6 Aggravated criminal damage and arson 598
(i) Arson 600
§ 14.7 Preliminary offences 600
15 FRAUD 601
§ 15.1 Statutory fraudgeneral 602
§ 15.2 Common elements: “dishonesty”, and “intent to make a gain or cause a
loss” 605
(i) Intent to make a gain or cause a loss 605
(ii) Dishonesty 608
§ 15.3 Fraud by false representation: section 2 609
(i) The actus reus 609
(ii) Mens rea 613
§ 15.4 Fraud by failing to disclose information: section 3 614
§ 15.5 Fraud by abuse of position 617
§ 15.6 Possessing, making and supplying articles for use in frauds 620
§ 15.7 Dishonestly obtaining services 621
§ 15.8 Making off without payment 622
§ 15.9 Conspiracy to defraud 623
(i) Agreement with another person 625
(ii) By fraudulent means 626
(iii) The object of the conspiracy 627
(iv) Mens rea 631
(v) Conspiracy to defraud, statutory fraud, and clarity of law 632
§ 15.10 Specific offences of fraud 633
§ 15.11 Forgery and false accounting 633
16 THE MORAL LIMITS OF CRIMINALISATION 637
§ 16.1 The Harm Principle 638
(i) What counts as a harm? 639
(ii) Seriousness 641
(iii) Harms as wrongs 642
(iv) Balancing requirements. 642
(v) Remote harms 643
§ 16.2 The Offence Principle 645
(i) Offensive conduct as a wrong 646
(ii) A communicative and conventional wrong 647
§ 16.3 Legal Moralism 647
§ 16.4 Paternalism 650
§ 16.5 Negative grounds for intervention: regulatory alternatives 652
(i) Tax 652
(ii) Tort law 653
(iii) Other mechanisms 653
(iv) Contra: some advantages of using the criminal law 654
§ 16.6 Negative grounds for intervention: the rule of law 654
(i) Rule of law constraints on criminalization 654
(ii) The individuation of offences 655
§ 16.7 Negative grounds for intervention: practical constraints 656
(i) What side-effects will criminalisation have? 656
(ii) Pragmatics of the criminal justice system 657
§ 16.8 Anti-Social Behaviour Orders 658
17 DEFENCES: AN OVERVIEW 661
§ 17.1 “Failure of proof” versus “substantive” defences 662
§ 17.2 Justification and excuse 665
§ 17.3 The defences to be consideredan outline scheme 669
18 FAILURE OF PROOF: MISTAKE AND INTOXICATION 671
§ 18.1 Mistake of fact, mens rea, and the decision in Morgan 672
(i) Subjective mens rea and mistake 672
(ii) Application of Morgan to definitional elements 673
(iii) Mistake of fact and defences 674
(iv) The rule in Tolson 677
(v) Mistake of fact and mistake as to an applicable standard 678
§ 18.2 Ignorance and mistake of law 680
(i) Construing offences and mistake or ignorance of law 681
(ii) Mistake or ignorance of law, abuse of process, and the right to fair trial 683
(iii) Ignorance of law and Article 7 of the ECHR 685
§ 18.3 Intoxication 686
(i) Voluntary intoxication and crimes of specific intent 687
(ii) Voluntary intoxication and crimes of basic intent 691
(iii) Mistake, accident, and intoxication 692
(iv) Intoxication arising from drugs taken for therapeutic reasons 695
(v) Involuntary intoxication 695
(vi) Intoxication and mental condition defences 697
(vii) Intoxication, negligence, and strict liability 698
(viii) Reform 698
19 MENTAL CONDITION DEFENCES 701
§ 19.1 Insanity 701
(i) Mental condition of defendant prior to trial 702
(ii) The M'Naghten Rules 704
(iii) The defence of insanity and the ECHR 711
(iv) Reform of insanity law 712
§ 19.2 Diminished responsibility 714
(i) The burden of proof 715
(ii) Substantial impairment of responsibility 716
(iii) External factors 717
(iv) Diminished responsibility in practice 718
(v) Diminished responsibility: the new version 719
§ 19.3 Infanticide 721
§ 19.4 Infancy 722
(i) Children below the age of 10 years 722
(ii) Children between the age of 10 and 14 years 723
20 DEFENCES OF CIRCUMSTANTIAL PRESSURE 725
§ 20.1 Duress 725
(i) Duress by threat 726
(ii) Duress of circumstances 734
(iii) Mistaken duress 735
(iv) A rationale of duress 736
§ 20.2 Coercion 739
§ 20.3 Superior orders 740
§ 20.4 Entrapment 741
§ 20.5 Impossibility 744
21 PERMISSIBLE CONDUCT 747
§ 21.1 Consent 747
(i) Consent: offence or defence? 749
(ii) The definition of consent 750
(iii) Factors that may vitiate consent 751
(iv) The limits of consent 759
(v) The limits of consentcritique 762
§ 21.2 Self-defence and the prevention of crime 766
(i) Force 768
(ii) Reasonable forcea question of fact 769
(iii) Force as a necessary means 770
(iv) Force and proportionality 772
(v) Pre-emptive force 773
(vi) Force and non-criminal threats 775
(vii) The defence of others 777
(viii) Fatal force and Article 2 of the ECHR 777
§ 21.3 Necessity 779
(i) Recognition of a necessity defence in modern case law 780
(ii) The rationale and ambit of necessity 781
(iii) Conclusion 787
(iv) Necessity and parliamentary sovereignty 787
§ 21.4 Chastisement 789
22 DEFENCES AND BLAME: SOME OBSERVATIONS 791
§ 22.1 Some things defences cannot do 792
(i) Justifications and divergent values 793
(ii) Limiting excuses 794
(iii) Responsibility for one's character: free will and incapacity 796
(iv) Summary 798
§ 22.2 Some things the defences fail to do 798
(i) Irresponsibility defences 799
(ii) When conformity with law cannot reasonably be expected 802
§ 22.3 Defence doctrine and judicial creativity 805
Bibliography 809
Index 833

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More Information on the Publisher's Website about, Simester and Sullivan's Criminal Law - Theory and Doctrine


The New Law of Peaceful Protest
Rights and Regulations in the Human Rights Act Era.
Edition: 1st
Format: Hardback
Author: David Mead
ISBN: 9781841136219
Publishers: Hart Publishing
Price: £45
Publication Date: April 2010
 

The right to demonstrate is considered fundamental to any democratic system of government, yet in recent years it has received little academic attention. However, events following the recent G20 protests in April 2009 make this a particularly timely work.
 
Setting out and explaining in detail the domestic legal framework that surrounds the right of peaceful protest, the book provides the first extensive analysis of the Strasbourg jurisprudence under Articles 10 and 11 of the European Convention on Human Rights, offering a critical look at recent cases such as Öllinger, Vajnai, Bukta, Oya Ataman, Patyi and Ziliberberg, as well as the older cases that form its bedrock. The principles drawn from this case-law are then synthesised into the remainder of the book to see how the right of protest enshrined in the Human Rights Act 1998 now operates. The five central chapters show how the right is defined: the restrictions on the choice of location of a protest; the constraints imposed on peaceful, persuasive protest; the near total intolerance of any form of obstructive or disruptive protest; the scope of preventive action by the police; and the extent to which commercial targets can avail themselves of private law remedies. This contemporary landscape is highlighted by critical analysis of the principles and case law -- including the leading decisions in Laporte, Austin, Jones and Lloyd and Kay. The book also highlights and develops themes that are currently under-theorised or ignored, including the interplay of the public and the private in regulating protest; the pivotal role played by land ownership rules; and the disjuncture between the law in the books and the law in action.
 
While the book will appeal primarily to scholars, students and practitioners of law - as well as to campaigners and interest groups - it also offers political and socio-legal insights, which will be of interest equally to non-specialists.

The Author David Mead is a Senior Lecturer in Law at the Norwich Law School, University of East Anglia.

CONTENTS
Preface v
Table of Cases xi
Table of UK Legislation xxv
1: Introduction 1
I. Overview 1
II. Historical Development of The Right 4
III. The Function of Free Speech and Protest 6
IV. Protest and Democracy 9
V. A Simple Dichotomy: Protest v Direct Action 11
VI. Deciding to Engage in Collective Action 12
VII. The Socio-Legal Aspect 14
VIII. The Role and Behaviour of the Police 18
IX. Protest and Protesters at the Start of the New Millenium 20
2: Protecting Human Rights in the Human Rights Act Era 25
I. The Right to Protest at Common Law 26
II. The European Convention on Human Rights 29
III. A Home-Grown Bill of Rights? The Human Rights Act 1998 38
IV. Conclusion: The Likely Influence of the Human Rights Act on Peaceful
Protest 55
3: Strasbourg Case Law on the Right to Peaceful Protest 57
I. Introduction 57
II. A Content Study of Protest Cases 59
III. The Scope of the Right to Peaceful Protest 63
IV. The Extent of Lawful Interferences with the Right 76
V. Conclusions 114
4: The Locus of Protest 118
I. Introduction and Overview 118
II. Rights of Access Over Land for the Purpose of Protest 121
III. Place-Specific Restrictions on Protest 138
IV. Police Powers in Relation to Protests on Land 162
V. Conclusion 167
5: Peaceful Persuasion and Communicating Dissent 168
I. Overview 168
II. Marching, Meeting and Holding Demonstrations: The Statutory Scheme
in the Public Order Act 1986 169
III. Showing Support for Causes and Campaigns 213
IV. Conclusion 233
6: Taking Direct Action 237
I. Introduction and Overview 237
II. Direct Action Protesters as Terrorists 239
III. Crimes of Violence and Damage 241
IV. Aggravated Trespass 252
V. Harassment and Intimidation 264
VI. Other Criminal Measures to Control Direct Action 292
VII. Conclusion 306
7: Preventive Action by the Police 311
I. The General Duties of the Police 311
II. Stop and Search Powers 313
III. Preventing Breaches of the Peace 319
IV. Anti-Social Behaviour Orders 362
V. Dispersal Orders 364
VI. Strasbourg Case Law 373
VII. Conclusions 375
8: Private Law Remedies and Proceedings 381
I. Introduction 382
II. Possible Claims by Private Parties 384
III. Conclusions 398
9: Conclusion 399
I. A Strasbourg Snapshot: The Right of Peaceful Protest under the ECHR in 2010 400
II. A Domestic Snapshot: The Right of Peaceful Protest in England and Wales in 2010 401
III. The Wider Picture: A Recap of Some Key Themes 408
IV. An Agenda for Change 412
Appendix I: European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 426
Appendix II: Bringing an Individual Case to Strasbourg: An Overview 431
Appendix III: A Summary of Strasbourg Case Law on the Right to Peaceful Protest 433
Appendix IV: Human Rights Act 1998, Chapter 42 467
Bibliography 477
Index
Preface vii

PREFACE
The final chapters of this book were completed towards the end of 2009, a year that marked several significant anniversaries in the history of political dissent and peaceful protest. It was 25 years since the miners' strike started and 30 years since Blair Peach was killed by the Special Patrol Group at an anti-racist rally in Southall. Liberty had begun life 75 years before, in 1934, as the National Council for Civil Liberties, founded by journalist Ronald Kidd in response to the brutal treatment of Hunger Marchers two years previously. It was a whole 360 years since Gerard Winstanley's Diggers claimed St George's Hill in Surrey during the age of civil unrest in the 1640s. It was also the year, of course, when the media and political discourse turned to the subject, at least from the time of the London G20 summit in April onwards.

Though much of this book was written before the images from the G20 monopolised our screens over the Easter period, I completed and reflected on it in the light of what unfurled. This book, though it is far from being a study of mass protests and dissent, cannot now be read without at the very least an awareness of the police tactic of 'kettling' and be read by people who may well have been shocked and distressed witnessing what seemed like gratuitous and wanton violence, even if it was sporadic and out of the mainstream. In one way this has been incredibly beneficial. The G20 summit, alongside the various inquiries, reports and media attention during the year, has provided a tremendous fillip for this oft-neglected andcertainly in comparison with free speechunderplayed area of public life and public interaction. In this I have been unintentionally assisted by my own tardiness. This book in fact should have been growing dusty on booksellers' shelves long before, sadly, we became aware of Ian Tomlinson and Nicola Fisher. It has had a rather longer than usual, or longer than planned, gestation period for many reasons. This has meant that this is an ideal time to be immersed in the academic legal study of protests and dissent. This book provides the first detailed treatment of the right to protest under the Human Rights Act at a time, like no other in recent political memory, when the need to debate and discuss issues relating to political engagement would struggle to feel more contemporary, more relevant and more pressing.

The G20 though has focussed public attentionand disquiet?on what are not run-ofthe- mill peaceful protest events. One of the points I try to stress in this book is how the legal framework that deals with the seeming social harm of disruptive or disturbing protest is not rational, planned or coherent. It has overlaps or has small gaps that are filled with a massive plug or creates new offences where there is no need, laws that are then used in an unforeseen or unpredictable manner. There is a political tendency to knee-jerkism, reacting to eventsthe 'need to do something and be seen to do something' attitude; the sort of political attitude that gave us the Dangerous Dogs Act of 1991. Legal responses are skewed by a host of non-legal factors. The problem that the G20 has thrown up and the various inquiries, reports and media attention during the year is that it overlooks the mundane and the everyday: angry parents gathering signatures in the High Street trying to prevent yet another fast food outlet opening or the placard-bearing teenager as the maverick politician visits their school. These are the sorts of events that shape the reality of protest just as much as, and probably more than, half a million members of the Countryside Alliance marching through London for 'Liberty and Livelihood' . . . yet it is these that do not make the front pages or the law reports. That last point is important. After all, if the Metropolitan Police gently move a protesting group on, to the far side of a street away from public gaze as The Guardian (26 January 2010) alleged was the case in the run up to Tony Blair's appearance before the Chilcott Inquiry into the Iraq war, and no one brings a case, the right to protest has probably been denied but with impunity.

The New Law of Peaceful Protest has been written for a variety of readers. I hope that interested lay readers will find as much in its pages to stimulate thought and to prompt reflection as the dedicated academic or activist adviser. It has been written with one single aim: to set out a detailedthough not complete or comprehensivecritical account of the state of the law. In doing so I also intendedbut it would in any event have been unavoidable had that not been soto provide that analysis and explanation in context: to note underlying themes or historical development; to see cross-currents and cross-overs; and to consider the impact of the law as it pans and plays out. Those who prefer their law not to be so entirely black-letter will also I hope find reward dotted within its pages. The cover photo was deliberately chosen with that approach in mind. How was Mark Wallinger's installation State Britain able to win the Turner Prize for art in 2007 when Brian Haw's Westminster peace-camp, of which it is a direct replica, was seen as a 'demonstration'so, it was argued, requiring authorisation under the provisions of the Serious Organised Crime and Police Act 2005?

Five years ago, when I set out on this project, I wanted to write a book that would prompt us to think about why it is so important that we should be able to protest; about how the law should respond and how it should balance the competing rights and interests at stake; about whether there are some types of protest or protester or topics that the law should treat differently and if so, more harshly or more sympathetically; and about the growing interdependence of public and private regulation of the right. Now it is complete, I hope it will plot a route by which we might seek to resolve those issues.

This book sets out the law as of 1st August 2009 though Hart have been good enough to allow me to incorporate at the proof stage a little detail on some recent developments surrounding the policing of protest. These can be found at the tail end of chapter seven. They mostly concern the Strasbourg decision in the stop and search case, Gillan v UK decided by the European Court in January 2010. A few more unfortunately missed the cut. First, since the book was completed, after long years in the political wilderness, the common law offence of sedition (p 233) was finally abolished in early January 2010. This was the result of section 73 and section 182 of the Coroners and Justice Act 2009. Second, the Government appears to have started a process of review and reflection, perhaps a re-siting and reconfiguring. The Home Office's latest policing White Paper Protecting the Public: Supporting the Police to Succeed (published in early December 2009) featured an immediate commitment from the Home Secretary to 'set out clear principles for the policing of protest' and an aim to implement a Code of Practice on Protest by June 2010.We shall just have to wait to see how much this echoes the agenda for change set out in the conclusion to this book.

The indulgence afforded me in allowing late entries some six weeks before publication would be reason enough to thank all those at Hart who have contributed to the eventual publication of this book. In particular, Jo, Rachel and Mel have all been wonderfully supportive from my first tentative proposal in 2005 to its reaching the shelves some five years later as, in its later stages, were the copy editors and indexers. Especially though, I would like to thank Richard Hart himself. He has shown enormous tolerance, tact and understanding, far more perhaps than a first-time academic author could expect, and I hope that this book goes some way towards repaying that faith. It is 25 years since I started as an undergraduate. Since that time, I have met, worked with and been taught by some very knowledgeable lawyers, far too many to name and thank here. I hope that being exposed to how they think, how they write and how they approach matters has rubbed off in some way and influenced my own thoughts, writing and approach. This book is the better for all that . . . though of course its conclusions and its interpretations, its views on where the law has gone wrong and all infelicities in language are attributable only to me.

I should like to single out four. In my first week studying law, just after the Miners' Strike and the decision in the GCHQ case, I met Conor Gearty. His description of public law as being about the power the state wields'it's all the trendy lefty cases, David'inspired me then and has continued to do so. In my first post, fresh from commercial legal practice with only an LLM behind me, Ian MacLeod wasand has remainedwonderfully supportive. That this book features far fewer six-line sentences with sub-sub clauses is down to the help (and dogged resilience) shown by Mark Stallworthy in my early days at UEA. In more recent times, Brigid Hadfield has shown me similar patience and has offered very wise counsel on several occasions. More generally, I have been fortunate to have spent the past 10 years among friends in the intellectually supportive and welcoming atmosphere of the Law School at UEA. Amongst those no one deserves more special mention than Claudina Richards, a true chum when things get tough.

For all the help of those colleagues in law, this book is really a product of my involvement with my family and friends.Without them to provide welcome relief from academic turmoil this book would never have been startedlet alone finishedand so it is to them that I dedicate it.My dad has been silently supportive and publicly proud of the first Mead to go to university. I hope this book goes some way towards redressing my self-acknowledged failures at DIY and car mechanics.My sister has been a shining example of fortitude and optimism for many years. I would gladly have swapped this book for a measure of improvement in her health any day.My late mother did not even know this book had been started, let alone that it has come to fruition but a mix of her steadfast belief and her high expectations kept me going whenever a mental block took hold. In the past few years, university workespecially paperwork rather than writing-workhas eaten into 'spare' time far more than I would have liked. Inevitably, my children have lost out by having grumpy dad around for far too long. I'm very sorry for that. Ned and Posy I think he's gone. The fact that I was still able to spend weekends at football training or watching dance shows meant that evenings became tied up. One person more than anyone suffered from this selfishness.More than just making me sit down and finishwhen I felt I just couldn't let goand proof reading, Jude has proved to be a rock in the storm of lifenot just when writing this book but throughout the past two decades. She lightens my mood, chivvies me along, tempers my excesses, holds us all together . . . and even laughs at my jokes. Thanks for everything; this book is for you.

More Information can be found at the Hart Publishing Website at:-



The Legal Foundations of INTERPOL
Edition: 1st
Format: Hardback
Author: Rutsel Silvestre J Martha
ISBN: 9781849460408
Publishers: Hart Publishing
Price: £50
Publication Date: May 2010
 
Publisher's Title Information

This book is a study of the legal aspects of the birth and development of an international organisation, using the example of INTERPOL as a detailed case study. It is not a constitutional manual for INTERPOL, but an organisational study, and does not seek to be exhaustive in terms of its description of INTERPOL's operations. Its main focus is the examination of the question whether an international organisation, in this case INTERPOL, can be created without a solemn and formally celebrated treaty. At the same time the book sets out the legal foundations for extra-judicial international police enforcement cooperation and explains the creation, structure and operation of INTERPOL, the organisation that promotes that cooperation. For practitioners who, for whatever reason, have to deal with INTERPOL, it provides a much-needed explanation of the legal foundations of the Organisation, its legal status and some basic guidance on its operations. It also includes information relevant for lawyers litigating issues with INTERPOL about how their clients can challenge the way the Organisation has processed information concerning them, or has alerted police forces worldwide about them.
 
The work is to be welcomed not only because of its thorough research and main conclusions, but primarily because it submits known facts about INTERPOL to a rigorous legal analysis from the perspective of public international law…The practical, as well as theoretical importance of the study needs to be underlined. The study provides practitioners who for whatever reason have to deal with INTERPOL, with the much needed explanation about the legal foundation of the Organisation, its legal status and some basic guidance on its operations.
Foreword by Ronald K Noble, Secretary General of INTERPOL, July 2009
 

Contents
Foreword INTERPOL Secretary General vii
Preface ix
Acknowledgments xiii
Abbreviations xix
Table of Cases xxi
INTRODUCTION 1
1. THE CONCEPT OF INTERNATIONAL ORGANISATIONS 7
2. THE OBJECT OF THE ORGANISATION 13
1. Is Extrajudicial Police Cooperation a Legitimate Object? 15
2. The Presumptive Freedom of Action of Sovereign States 18
3. The Indifference with regard to Forms and Formalities 19
4. Imputability of Police Enforcement Cooperation Actions to the State 22
5. The Doctrine of electa una via: Non-exclusivity of Mutual Assistance
Arrangements 24
6. The Obligation to Cooperate 26
6.1 The Duty of Due Diligence in Policing 26
6.2 Conventional Undertakings to Cooperate in Police Enforcement
Matters 28
7. Permissibility of Police Cooperation without the Formalities of
Extradition or Mutual Assistance Treaties 31
7.1 Balancing Law Enforcement Needs and Fundamental Rights 31
7.2. Extrajudicial Surrender of Suspects and Fugitives 32
7.3 Extrajudicial Gathering of Evidence Abroad 38
8. The Appropriateness of INTERPOL's Aims 42
3. ORGANISATION AND OPERATIONS 47
1. Origins 50
2. Structure 52
2.1 The General Assembly 53
2.1.1 Subsidiary Bodies and Regional Conferences 54
2.1.2 Decision-making Procedure 58
2.1.3 Dispute Settlement Function 62
2.2 The Executive Committee 66
2.3 The General Secretariat 69
2.4 The National Central Bureaus 74
2.4.1 The Concept 74
2.4.2 NCB Service Standards 76
2.4.3 Legal Characterisation of NCBs 79
2.5 The Advisers 91
2.6 The Commission for the Control of INTERPOL's Files 92
2.6.1 The Exclusive Effect of the Commission's Competence 92
2.6.2 Remedies 101
2.6.3 Effects of Findings 104
3. Functions and Internal Legal Order 105
3.1 Essential Functions 106
3.1.1 Secure Global Police Communication Services 106
3.1.2 Operational Data Services and Databases 109
3.1.3 Operational Police Support Services 113
3.1.4 Training and Development 123
3.2. Internal Legal Order 124
3.2.1 Attribution and Delegation of Powers 124
3.2.2 Regulation of the Processing of Police Information 127
3.2.3 Regulation of the Employment Relations 130
3.3 Privileges and Immunities 131
4. Recognition 136
4.1 Recognition as an International Organisation 138
4.2 Recognition of its International Legal Capacity 145
4. THE WILL OF GOVERNMENTS TO CREATE THE
ORGANISATION 149
1. Relevance 149
2. Conduct of Police Bodies 150
3. Attribution of Police Conduct to Governments 154
5. ACCEPTANCE AND ADHERENCE TO THE CONSTITUTION 159
1. The Incorporators 160
2. Subsequent Adherents 162
3. Compliance 165
6. MEMBERS AND CONTRACTING PARTIES 167
1. Countries as Members 171
2. Are 'Countries' Subjects of International Law? 174
xvi Contents
7. THE PROPER LAW OF THE ORGANISATION 179
1. The Proper Law of Intergovernmental Legal Acts 179
2. Presumptive Exclusion of National Law 180
3. Distinguishing INTERPOL's Situation 184
8. FORM AND FORMALITIES 191
The Irrelevant Distinction between Formal and Informal Agreements 191
The Issue of Registration and Publication 195
CONCLUSION 199
APPENDIX 1: The Constitution of the International Criminal Police
Commission, 1923 203
APPENDIX 2: The Constitution of the International Criminal Police
Commission, 1939 205
APPENDIX 3: The Constitution of the International Criminal Police
Commission, 1946 208
APPENDIX 4: The Constitution of the International Criminal Police
Organisation and General Regulations, 1956 211
APPENDIX 5: Statement to Reaffirm the Independence and Political
Neutrality of INTERPOL, 2006 226
Bibliography 229
Index 241
 

The Author
 
Dr Rutsel Silvestre J Martha is a former General Counsel and Director of Legal Affairs of INTERPOL. He is currently the General Counsel and Director of Legal Affairs of the International Fund for Agricultural Development (IFAD). He has written extensively on public international law. He was an Adjunct Professor of Law at the Washington College of Law (Washington, DC, USA) and Visiting Professor of Law at the New York University School of Law Singapore Programme at the National University of Singapore Faculty of Law.
 

Foreword By Ronald K Noble, Secretary General of INTERPOL

In this study, Dr Martha provides the ultimate legal opinion on the question of whether the act of a group of senior police officers back in 1923 to establish what has grown to become INTERPOLthe world's largest international police bodyqualifies as a treaty or its legal equivalent under international law. The work is to be welcomed not only because of its thorough research and main conclusions, but primarily because it submits known facts about INTERPOL to a rigorous legal analysis from the perspective of public international law..

In the process it demystifies INTERPOL and its legal origins by confronting the question of the permissibility of and conditions for extrajudicial international police enforcement cooperation under international law. One must recall that this question has not received much scholarly attention from public international law experts, other than from the perspective of human rights law,since the Arrest and Repatriation of Savarkar dispute between France and Great Britain decided by the Permanent Court of Arbitration in 1911.

Starting from the premise of the freedom of action of sovereign States, Dr Martha's study sets out the legal foundations for extrajudicial international police enforcement cooperation and explains why the same freedom enabled the creation of the organisation that promotes that cooperation, without a solemnly concluded treaty. The practical, as well as theoretical importance of the study needs to be underlined. The study provides practitioners who for whatever reason have to deal with INTERPOL, with the much needed explanation about the legal foundation of the Organisation, its legal status and some basic guidance on its operations. It is fundamental that lawyers litigating issues with INTERPOL are well informed about how their clients can challenge the way the Organisation has processed information concerning or has alerted police worldwide about them.

At the theoretical level, Dr Martha tackles the issue of the legal and administrative process through which an international organisation is created under international law. This dimension of the study provides useful insights that are relevant for the many other international bodies and networks of governmental departments or officials, such as the Financial Action Task Force (FATF), the Egmont Group of Financial Intelligence Units (EGFIU), the Organisation for Security and Co-operation in Europe (OSCE) etc, which have been created without a formal treaty adopted at a diplomatic conference..

On a more personal note, the study also bears testimony to how Dr Martha approached legal issues during his tenure as General Counsel and Director of Legal Affairs of INTERPOL (2004-08). I learned from him the importance of not promulgating new rules or amendments to existing rules unless it is established that no acceptable solution can be obtained through the interpretation and construction of the existing rules. Accordingly, on the specific issue of the need for INTERPOL to be reconstituted on the basis of a formal treaty, his advice was 'It's not necessary'. This book explains why!.
Lyon, July 2009
More Information can be found at the Hart Publishing Website at:-



Previous Convictions at Sentencing
Theoretical and Applied Perspectives
Studies in Penal Theory and Penal Ethics4
Edition: 1st
Format: Hardback
Author: Edited by Julian V Roberts and Andrew von Hirsch
ISBN: 9781849460422
Publishers: Hart Publishing
Price: £40
Publication Date: July 2010

Publisher's Title Information

This latest volume in the Penal Theory and Penal Ethics series addresses one of the oldest and most contested questions in the field of criminal sentencing: should an offender's previous convictions affect the sentence? This question provokes a series of others: Is it possible to justify a discount for first offenders within a retributive sentencing framework? How should previous convictions enter into the sentencing equation? At what point should prior misconduct cease to count for the purposes of fresh sentencing? Should similar previous convictions count more than convictions unrelated to the current offence? Statutory sentencing regimes around the world incorporate provisions which mandate harsher treatment of repeat offenders. Although there is an extensive literature on the definition and use of criminal history information, the emphasis here, as befits a volume in the series, is on the theoretical and normative aspects of considering previous convictions at sentencing. Several authors explore the theory underlying the practice of mitigating the punishments for first offenders, while others put forth arguments for enhancing sentences for recidivists. The practice of sentencing repeat offenders in two jurisdictions (England and Wales, and Sweden) is also examined in detail.

Preface

This latest volume in the Penal Theory and Ethics series addresses one of the most contested questions in the field of criminal sentencing: should an offender's previous convictions be taken into account in deciding the quantum of sentence? In reality, this single question provokes a series
of others: is it possible to justify a discount for first offenders within a retributive sentencing framework? How should previous convictions enter into the sentencing equation? At what point should prior misconduct cease to count for the purposes of sentencing for the current offence? Should similar previous convictions count more than convictions unrelated to the current offence?

Statutory sentencing regimes around the world incorporate provisions which mandate harsher treatment of repeat offenders. The practice of imposing progressively harsher penalties as the offender accumulates more convictions is called the recidivist sentencing premium and is the subject of this volume. Although there is a vast literature on the definition and use of criminal history information, the emphasis here, as befits a volume in the series, is on the theoretical and normative aspects of considering previous convictions at sentencing. The focus is upon retributive sentencing perspectives. Utilitarian sentencers justify a recidivist premium on the grounds that harsher penalties are necessary to deter or incapacitate repeat offenders.

The volume begins with three chapters which explore the 'discount theory'which favours the imposition of mitigated punishments upon first offenders, or offenders with modest criminal records. This theory gives rise to the well-known principle of the progressive loss of mitigation. This principle argues that first offenders should receive a discounted sentence. If they reoffend, they should still receive a discount, albeit one of lesser magnitude. Ultimately, after a specified number of reconvictions, their first-offender status expires, and no further discount is offered. The principle has proven very influential in sentencing writings, less so in terms of sentencing practice. Andrew von Hirsch offers an account of the lapse theory and this is followed by two other contributions by Julian Roberts and Jesper Ryberg in which the theory and the principle are discussed at greater length.

Young jae Lee and Chris Bennett propose retributive justifications for Preface vii imposing progressively harsher sentences on repeat offenders. Lee argues that repeat offenders may reasonably be considered more culpable for failing to take the necessary remedial steps to prevent reoffending. Chris Bennett also considers repeat offenders to be more blameworthy, but, in contrast to Lee, he locates the justification for a recidivist sentencing premium within a communicative theory of sentencing.
Michael Tonry provides a critique of a number of justifications for criminal-history enhancements, including those proposed in this volume by Lee and Bennett, and elsewhere by Roberts. Richard Frase seeks to identify normative principles and practical rules which may both justify and set limits on the widespread practice of enhancing sentence severity based on prior convictions. In his view the normative principles adopted for this purpose must be capable of generating clear, workable norms, providing guidance to judges and sentencing policymakers on when and why prior-record adjustments are permitted, and also when and why they are excessive.

Repeat offenders are usually defined as people who commit multiple offences over time, with their episodes of offending interrupted by sentencing for each offence. Recidivist statutes are constructed with this profile of offender in mind. However, a significant number of convicted defendants face sentence for multiple offences committed on a single occasion, or over a very short period of time. Sentencing in such cases throws up a raft of problems for the courts. One response to the offender who, for example, commits ten burglaries during the same evening is to impose concurrent sentences. Alternatively, a sentence may be assigned for each conviction; but the overall 'package' of sentences is discounted by the 'totality' principle. This ensures that someone convicted of, say, five burglaries does not receive a sentence that is more severe than an offender convicted of, say, rape. The practical consequence is a paradox, or inconsistency: repeated offences over time may result in a harsher penalty (if a recidivist sentencing premium is adopted), while multiple offences over a single occasion are 'discounted' by another practice (totality). Kevin Reitz explores the complexities surrounding the sentencing of offenders convicted of multiple offences.

In the second part of the volume, we turn from theory to practice. A number of contributors explore the use of previous convictions in three Western jurisdictions. First, Martin Wasik provides a salutary reminder that in practice determining the nature of an offender's record is a far from straightforward exercise. Wasik provides a typical criminal history and works the reader through the practical issues arising from considering previous criminal misconduct. Andrew Ashworth and Estella Baker describe and analyse the law in England and Wales, a jurisdiction in which the role of previous convictions at sentencing has changed significantly within a single decade. In 1991, courts were explicitly directed viii Preface to ignore an offender's previous convictions. This legislation was subsequently amended in 1993, and in 2003 matters turned full circle. The Criminal Justice Act of that year included a provision which requires courts to consider each prior conviction as enhancing the seriousness of the current offence, if this is reasonable.
The chapter by Petter Asp explains the use of previous convictions in jurisdiction which utilises a variant of the principle of progressive loss of mitigation. The volume concludes with a contribution by Lila Kazemian who examines, in the light of recent empirical studies, the assumption that harsher penalties will actually deter or incapacitate recidivists. She notes that the recidivist sentencing premium's promise of lower crime or recidivism rates is remains unfulfilledat least on the evidence that has accumulated to date.


Contents
Acknowledgements v Preface vi Contributing Authors xi 1 Proportionality and the Progressive Loss of Mitigation: Some Further Reflections 1 Andrew von Hirsch 2 First-Offender Sentencing Discounts: Exploring the Justifications 17 Julian V Roberts 3 Recidivism, Retributivism, and the Lapse Theory of Previous Convictions 37 Jesper Ryberg 4 Repeat Offenders and the Question of Desert 49 Young jae Lee 5 'More to Apologise For': Can We Find a Basis for the Recidivist Premium in a Communicative Theory of Punishment? 73 Chris Bennett 6 The Questionable Relevance of Previous Convictions to Punishments for Later Crimes 91 Michael Tonry 7 Prior-conviction Sentencing Enhancements: Rationales and Limits Based on Retributive and Utilitarian Proportionality Principles and Social Equality Goals 117 Richard S Frase 8 The Illusion of Proportionality: Desert and Repeat Offenders 137 Kevin R Reitz 9 Dimensions of Criminal History: Reflections on Theory and Practice 161 Martin Wasik 10 The Role of Previous Convictions in England and Wales 185 Estella Baker and Andrew Ashworth x Contents 11 Previous Convictions and Proportionate Punishment under Swedish Law 207 Petter Asp 12 Assessing the Impact of a Recidivist Sentencing Premium on Crime and Recidivism Rates 227 Lila Kazemian Index 251 xi


Contributing Authors
Andrew Ashworth is the Vinerian Professor of English Law at the University of Oxford, Fellow of All Souls College, Oxford and former Chairman of the Sentencing Advisory Panel in England and Wales. Petter Asp is Professor of Criminal Law at the University of Stockholm. Estella Baker is Senior Lecturer in the Faculty of Law, University of Sheffield.

Chris Bennett is Senior Lecturer in the Department of Philosophy, University of Sheffield.
Richard S. Frase is the Benjamin N Berger Professor of Criminal Law at the Faculty of Law, University of Minnesota.

Lila Kazemian is an Assistant Professor at John Jay College of Criminal Justice, New York.
Young jae Lee is currently Visiting Professor of Law, University of Chicago Law School and Professor of Law, Fordham University School of Law. Kevin R Reitz is the James Annenberg Levee Professor of Law, University of Minnesota.

Julian V Roberts is Professor of Criminology in the Faculty of Law, University of Oxford and Fellow of Worcester College, Oxford. Jesper Ryberg is Professor of Ethics and Philosophy of Law, Department of Philosophy and Science Studies, University of Roskilde, Denmark. Michael Tonry is the Marvin J Sonosky Professor of Law and Public Policy at the Faculty of Law, University of Minnesota and Senior Fellow of the Netherlands Institute for the Study of Crime and Law Enforcement. Andrew von Hirsch is Honorary Professor of Penal Theory and Penal Law, University of Cambridge; Honorary Fellow, Wolfson College, Cambridge; and Honorary Professor, Law Faculty, Johann Goethe-University, Frankfurt Martin Wasik is Professor of Law at Keele University, and a former Chairman of the Sentencing Advisory Panel in England and Wales.


The Presumption of Innocence
Evidential and Human Rights Perspectives
Edition: 1st
Format: Hardback
Author: Andrew Stumer
ISBN: 9781849460361
Publishers: Hart Publishing
Price: £50
Publication Date: June 2010
 
Publisher's Title Information
 

The presumption of innocence is universally recognized as a fundamental human right and a core principle in the administration of criminal justice. Nonetheless, statutes creating criminal offences regularly depart from the presumption of innocence by requiring defendants to prove specific matters in order to avoid conviction. Legislatures and courts seek to justify this departure by asserting that the reversal of the burden of proof is necessary to meet the community interest in prosecuting serious crime and maintaining workable criminal sanctions. This book investigates the supposed justifications for limitation of the presumption of innocence. It does so through a comprehensive analysis of the history, rationale and scope of the presumption of innocence. It is argued that the values underlying the presumption of innocence are of such fundamental importance to individual liberty that they cannot be sacrificed on the altar of community interest. In particular, it is argued that a test of 'proportionality', which seeks to weigh individual rights against the community interest, is inappropriate in the context of the presumption of innocence and that courts ought instead to focus on whether an impugned measure threatens the values which the presumption is designed to protect. The book undertakes a complete and systematic review of the United Kingdom and Strasbourg authority on the presumption of innocence. It also draws upon extensive references to comparative material, both judicial and academic, from the United States, Canada and South Africa.
 

The Author
 
Andrew Stumer is a practising barrister in Brisbane, Australia. He obtained his DPhil in law from the University of Oxford in 2008.
 

Forward
 
It is a particular pleasure to have been invited to contribute a-foreword to this hook, since its subject-matter was touched upon in Dr Stumer's very first BCL tutorial, on the burden and standard of proof, with me in Oxford. Since then I have enjoyed seeing its evolution and expansion through an MPhil dissertation, and a DPhil thesis into this full monograph.
 
Its subject matter lies at the intersection of legal theory and practice, public and private law, and substance and procedure. It is at the very heart of the discipline of law. Partly for this reason, it is no surprise that it should be under constant scrutiny and subject to innumerable suggestions for change in a myriad different ways. It is crucial for the whole topic of human rights, and helps to provide one of the essential components in the spine that provides both structure and control to the enterprise of law. As such it deserves serious analysis, rather than the sometimes glib justifications, and no less glib criticisms, of its elements, customarily provided elsewhere, especially in political circles, but regrettably sometimes in judicial pronouncements.
 
The hallmark and success of Dr Stumer's work is the careful and conscientious dissection and discussion of the sometimes high-flown rhetoric in which not only the fundamental provisions, but even their judicial applications, are so often cast. Everyone can pay lip-service to some conception of the presumption of innocence, perhaps expressed in numerical calculation of the number of guilty persons acquitted rather than that of innocent convicted. But what are the implications of the nature of the relevant crimes of the guilty or of the severity of the sentences passed upon the innocent?
 
This book examines from a strict legal perspective the way in which the relevant provisions of the European Convention, especially article 6(2), have been construed both by the European Court of Human Rights, and in the national courts of the member states, especially those of the United Kingdom. The aim of the analysis is to guide both the direction of further development within Europe, but every bit as importantly to examine and promote the use of that analysis in the interpretation and construction of similar provisions elsewhere, especially in other common law jurisdictions.
 
The main theme that emerges is strong affirmation of the use of the presumption so as to prevent the conviction of the innocent, and strict interpretation of any derogation on the basis of vague community values. The merit of this work is that it shows in clear detail just how this line can be held against inroads inspired by blurred and imprecise conventional slogans and sound-bites.
 
It is only by work of this character and quality that the institutions of human rights can be made to operate as effective and acceptable tools to direct legal decisions, rather than as affirmations of loose aspirations. This book sets the tone, am opens the door, for a fresh approach to this whole area.
 
Professor Colin Tapper Magdalen College, Oxford September 2009


Domestic Violence and International Law
Edition: 1st
Format: Hardback
Author: Bonita Meyersfeld
ISBN: 9781841139111
Publishers: Hart Publishers
Price: £45
Publication Date: March 2010
 
Publisher's Title Information
 

Domestic Violence and International Law argues that certain forms of domestic violence are a violation of international human rights law. The argument is based on the international law principle that, where a state fails to protect a vulnerable group of people from harm, whether perpetrated by the state or private actors, it has breached its obligations to protect against human rights violation.
 
This book provides a comprehensive legal analysis for why a state should be accountable in international law for allowing women to suffer extreme forms of domestic violence and how this can help individual victims. It is irrelevant that the violence is perpetrated by individuals and not state actors such as soldiers or the police. The state's breach of its responsibility is in its failure to act effectively in domestic violence cases; and in its silent endorsement of the violence, it becomes complicit.
 
The book seeks to reformulate academic and political debate on domestic violence and the responsibility of states under international law. It is based on empirical data combined with an honest assessment of whether or not domestic violence is recognised by the international community as a human rights violation.
 
'Domestic Violence in International Law [...] provides an original, provocative, and much needed legal framework for the coherent development of a norm against domestic violence in international human rights law...Dr. Meyersfeld has developed a thoroughgoing analysis that asks and answers the most difficult questions often neglected by academics, lawyers and activists who dismiss the possibility that systemic violence against women could violate international law...Most fundamentally, this book is memorable for the hope and optimism it expresses about the transformative possibilities of international law. For without compromising such intensely human values as privacy, autonomy and cultural identity, Dr. Meyersfeld moves her reader with an abiding conviction: that international law, fueled with the power of transnational actors, can propel public actors to protect abused and vulnerable people in their most private worlds.'
 
From the Foreword by Harold Koh, The Legal Adviser, United States Department of State (2009-).

Contents
Foreword vii
Acknowledgement ix
Table of Cases xv
Table of International and Regional Instruments xxi
Table of National Legislation xxix
Introduction xxxiii
1 Domestic Violence as a Violation of International Human
Rights Law 1
Introduction 1
Sources of International Law 3
Complexities of Customary International Law 7
The Elements of Customary International Law 7
Traditional Theories of Customary International Law 10
Contemporary Theories of Customary International Law 11
Applying Customary International Law to Domestic Violence 13
Traditional Theories of Customary International Law 13
Contemporary Theories of Customary International Law 14
Is there an Emerging Norm Prohibiting Domestic Violence? 15
Women's Rights in International LawHistorical Overview 16
Violence against Women in International LawHistorical Overview 18
Domestic Violence in International LawHistorical Overview and
Status Quo: 1946-2000 24
1946: Commission on the Status of Women 24
1979: CEDAW 26
1979: CEDAW Committee 29
1985: UN Resolution 30
1990: UN Resolution 32
1992: CEDAW Committee General Recommendation 19 34
1994: DEVAW 37
1995: Beijing Platform for Action 39
Domestic Violence in International LawHistorical Overview and
Status Quo: 2000-09 41
2000: The CEDAW Optional Protocol 41
2000: UN General Comment No 28 58
2004: General Assembly Resolution on the Elimination of Domestic
Violence against Women 60
1994-2009: Reports of the Special Rapporteur on violence against
women, its causes and consequences 62
2005-06: Resolutions and Action by the Office of the High
Commissioner for Human Rights 67
2001-08: Resolutions of the Commission on Human Rights and the
Human Rights Council 67
2004-09: Further General Assembly Resolutions 69
2006-08: Work of the Secretary-General 74
2000-09: Work of the Treaty Monitoring Bodies 77
The Approach of Regional Human Rights Law and Bodies to
Domestic Violence 79
Inter-American System 79
European System 82
African System 89
Specification of Certain Forms of Violence against Women in
International Law 91
Mass Rape 92
Female Genital Cutting 95
Trafficking 97
The Writings of Respected Authors and Scholars 98
The Distinction between Public and Private 100
The State's Role 102
Cultural Relativism 103
Discrimination and Violence 105
Conclusion 106
2 Freedom from Systemic Intimate Violence: The Human Right
and Corresponding State Obligation 108
The Substance of the Right 108
Exploring the Internationalising Elements of Domestic Violence 109
The Elements of Systemic Intimate Violence 111
Severe Acts of Emotional or Physical Harm 111
Continuum of Harm 118
Between Intimates 122
Group Vulnerability of Women 123
The Failure of the State to Help 134
Moving from an Emerging Norm to a Right in International Law 142
Steps Needed in International Law 142
The First Step: The Enunciation of a Specific Legal Right 144
The Second Step: Political Consequences of Domestic Violence 147
The Third Step: Bringing Domestic Violence into the Remit of
Non-Gender-Specific Human Rights Bodies 150
Good Governance Practices: What States Should Do to Protect Against
Systemic Intimate Violence 151
Legislative Steps 152
Anti-discrimination Provisions 154
Acts of Violence 156
Continuum of Harm 159
Relationship 160
Criminal v Civil Sanctions 160
Balancing Civil and Criminal Sanctions: The Protection Order 164
Compensation and Damages 169
Evidence and Burden of Proof 170
Labour Laws 170
Murder by Victims 172
Fair Procedure and Rules of Justice 175
Remedies and the Provision of Services 176
Police Protection and Implementation of the Law 176
Statutory Obligation to Protect 180
Training 180
Specialised Units 181
Female Officers 181
Data and Inter-departmental Communication 181
Police Powers 182
Judiciary and Judicial Agents 182
Knowledge of Rights 184
Shelters 186
Emergency and Long-term Health and Economic Well-being 188
Statistics, Indicators and Budget 189
National Action Plans 190
Conclusion 191
3 State Responsibility in Relation to Systemic Intimate Violence 193
Principles of State Responsibility 193
Background 194
Who are the Subjects of International Law? 195
Doctrine of Denial of Justice 200
Is a State Responsible for the Actions of Non-State Actors? 203
Elements of State Responsibility and their Application to Systemic
Intimate Violence 205
Conduct Element 205
Wrongfulness Element 227
Circumstances Precluding Wrongfulness 237
Application of the Justification Principles to Systemic Intimate Violence 241
Competing Values: Privacy 243
Fault and Knowledge 246
Role of the Judiciary 249
Consequences of an Internationally Wrongful Act 250
Conclusion 250
4 The Benefits of International Law for Victims of Systemic
Intimate Violence 252
Non-coercive Compliance Theory 252
The Great Debate: Is International Law Effective? 254
Suspicion of International Law in Brief 254
Support of International Law in Brief 255
The Multi-Faceted Process of International Law 256
Norm Infiltration 256
Symbiotic Relationship between National and International Law 257
Deficiency Not Nugatory 258
Proliferation of Actors Facilitating Compliance with International Law 259
Functions of International Human Rights Law in respect of Violence
against Women 266
International Law Leading to Change: The Expressive and
Implementing Functions 266
How International Law Changed the Legal Response to Mass Rape 269
How International Law Changed the Legal Response to Enforced
Disappearances 275
How International Law Changed the Legal Response to FGC 279
How International Law has Already Changed the Legal Response to
Asylum and Domestic Violence 284
Non-coercive Compliance Theory in respect of Systemic Intimate Violence 289
Before DEVAW 290
After DEVAW 291
Domestic Violence in Mexico Before and After DEVAW 292
Domestic Violence in Nicaragua Before and After DEVAW 300
Domestic Violence in Sweden Before and After DEVAW 306
General Examples of Improvements in Domestic Violence Laws and
Policies 311
Conclusion 316
Index 317
 

With a Foreword By
 
Harold Hongju Koh
The Legal Adviser, United States Department of State (2009-); US Assistant Secretary of State
for Democracy, Human Rights & Labor 1998-2001; Martin R Flug '55 Professor of International Law (on leave) and Dean, Yale Law School, 2004-09.


EU Criminal Law
Modern studies in European Law
Edition: 1st
Format: Paperback
Author: Valsamis Mitsilegas
ISBN: 9781841135852
Publishers: Hart Publishing
Price: £35
Publication Date: March
Publisher's Title Information

EU Criminal Law is perhaps the fastest-growing area of EU law. It is also one of the most contested fields of EU action, covering measures which have a significant impact on the protection of fundamental rights and the relationship between the individual and the State, while at the same time presenting a challenge to State sovereignty in the field and potentially reconfiguring significantly the relationship between Member States and the EU. The book will examine in detail the main aspects of EU criminal law, in the light of these constitutional challenges. These include: the history and institutions of EU criminal law (including the evolution of the third pillar and its relationship with EC law); harmonisation in criminal law and procedure (with emphasis on competence questions); mutual recognition in criminal matters (including the operation of the European Arrest Warrant) and accompanying measures; action by EU bodies facilitating police and judicial co-operation in criminal matters (such as Europol, Eurojust and OLAF); the collection and exchange of personal data, in particular via EU databases and co-operation between law enforcement authorities; and the external dimension of EU action in criminal matters, including EU-US counter-terrorism co-operation. The analysis is forward-looking, taking into account the potential impact of the Lisbon Treaty on EU criminal law.

Foreword v
Preface and Acknowledgements vii
Table of Cases xi
Introduction 1
1 History, Principles and Institutions 5
I. Introduction 5
II. BackgroundThe Community and Criminal Law before Maastricht 5
III. The Third PillarThe Institutional Framework 9
IV. The Third Pillar and the Constitutional Principles of the
Community: the Contribution of the Court of Justice 23
V. The Politics of the Third Pillar: Member States' Security Ambition
versus Institutional Checks and Limits 31
VI. The Future in the Light of Lisbon 36
VII. Conclusion 56
2 Harmonisation and Competence 59
I. Introduction 59
II. Community Law and Criminal Law 60
III. Criminal Law in the Third Pillar 85
IV. Domestic Legal Cultures and Criminal Law Harmonisation 92
V. Harmonisation for Mutual Recognition 101
VI. The Future in the Light of Lisbon 107
VII. Conclusion: Criminal Law Harmonisation as a Means to which End? 110
3 Mutual Recognition: Prosecution, Jurisdiction and Trust in an 'Area' of
Freedom, Security and Justice 115
I. Introduction 115
II. The Principle of Mutual Recognition in EU Criminal Law 116
III. Instruments of Mutual Recognition in Criminal Matters and
Resulting Constitutional Concerns 120
IV. Addressing Constitutional Concerns in Legislation 127
V. Constitutional Concerns in the Courts 133
VI. Prosecution and Jurisdiction in the 'Area' of Freedom, Security and
Justice 142
VII. The Future in the Light of Lisbon 156
(A) Mitsigelas Prelims 27/2/09 16:05 Page ix
VIII. Conclusion: Sovereignty, Territoriality and Rights in an 'Area' of
Freedom, Security and Justice 158
4 Bodies, Offices and Agencies 161
I. Introduction 161
II. Europol 161
III. Eurojust 187
IV. OLAF 210
V. Other Bodies: Counter-terrorism, Informality and Cross-Pillarisation 219
VI. Interagency Co-operation 222
VII. Controlling Bodies by Other Bodies and Agencies 224
VIII. The Future in the Light of Lisbon 225
IX. Conclusion: Extending the Field of Enforcement in the EU? 232
5 Databases: Reconfiguring the Relationship between Security and Privacy 235
I. Introduction 235
II. EU Databases 235
III. Exchange of Data between National Authorities 250
IV. Data Collection and the Private Sector 263
V. Privacy and Data Protection in the Light of Lisbon 272
VI. Conclusion: What Future for Privacy in an Era of Security? 277
6 The External Dimension 281
I. Introduction 281
II. Enlargement 281
III. The Union and Its Neighbours 288
IV. International Agreements 291
V. The Union and International Organisations 310
VI. The Future in the Light of Lisbon 316
VII. Conclusion: The Quest for Coherence in EU External Action 317
Conclusion: Is Criminal Law a Special Case in the EU Legal Order? 321
Bibliography 325
Index 347
Contents

Reviews

I recommend this book and wholeheartedly do so.
Sally Ramage. The Criminal Lawyer Issue 191, July/August 2009
 
Although written more with legal and institutional audiences in mind, the book offers an instructive account for those approaching the study of crime that has a trans-national dimension from more criminological, sociological and political perspectives.
 
An emphasis on intra-organisational and intra-legal history provides a unique and concentrated insight into the practical outcomes of more than a decade of efforts to enhance and expand co-operation against crime in Europe, and the treatment of the theme is undoubtedly enriched by author's 'insider' experience as an observer and adviser of policy-making
 
A refreshing antidote to the all-too-common literature on organised crime and terrorism that is laden with easy and incessant calls for greater co-operation between states but which demonstrates little concerted reflection upon its practical implications and potentially negative repercussions for other important areas of governance
 
Beyond the obvious value of this book as a clearly written, poised and thorough guide to the development of EU criminal law as well as the degrees of agreement, resistance and fudges that have emerged during the development of EU engagement in this area, its contribution to political and criminological enquiry may spring as much from the questions it poses to proponents of ever-greater co-operation in international crime fighting.
Sappho Xenakis, Global Crime, Volume 11, No. 1
 
EU Criminal Law will remain relevant despite impending constitutional changes and the rapid development of secondary legal instruments. Samuli Miettinen, Journal of Common Market Studies, 2010, Volume 48, No.2


Criminology and Archaeology

Oñati International Series In Law And Society
Criminology and Archaeology
Studies in the Looting of Antiquities
Edition: 1st
Format: Paperback
Author: Edited by Simon Mackenzie and Penny Green
ISBN: 9781841139920
Publishers: Hart Publishing
Price: £22
Publication Date: Nov 2009
 
Publisher's Title Information

 
This collection is the product of a collaborative venture between criminologists and archaeologists concerned with the international market in illicit antiquities. It examines the state of regulation in the antiquities market, with a particular focus on the UK's position, but also with reference to the international context more generally.
 
Looting happens routinely and many countries have rich deposits of cultural material. The list of source countries is long, but the most high profile cases of looting have been in respect of Egypt, Italy, Peru, Mexico, Greece, Turkey, and China. Antiquities are highly collectable, and there are several prominent international centres for trade, most notably London, New York, Paris, Brussels, Hong Kong, Geneva and Bangkok, but the market operates across national borders.
 
It is within the complex international and local regulatory context that the essays presented here emerge, focusing upon three areas in particular: the demand for looted antiquities; the supply of cultural artefacts which originate in source countries; and regulation of the international market in antiquities.
 
Criminology has long been interested in transnational crime and its regulation. Archaeologists' concerns lie in the destructive consequences of antiquities looting, which erases our knowledge of the past. In the papers presented here both disciplines present new data and analysis to forge a more coherent understanding of the nature and failings of the regulatory framework currently in place to combat the criminal market in antiquities.
 
Contents
 

Author Biographies .................................................................................. ix
Introduction: A Context for the Engagement of Criminology
and Archaeology ....................................................................................... 1
Simon Mackenzie And Penny Green
Part I: Criminology and the Market
for Looted Antiquities
1. Whither Criminology in the Study of the Traffic in
Illicit Antiquities? ............................................................................... 13
Kenneth Polk
Part II: Demand for Looted Antiquities
2. Antiquities, Forests, and Simmel's Sociology of Value ........................ 29
Tony Ward
3. Consensual Relations? Academic Involvement in the Illegal
Trade in Ancient Manuscripts ............................................................ 41
Neil Brodie
4. Border Controls in Market Countries as Disincentives
to Antiquities Looting at Source? The US-Italy Bilateral
Agreement 2001 ................................................................................. 59
Gordon Lobay
Part III: Supply of Looted Antiquities
5. The United Kingdom as a Source Country: Some Problems
in Regulating the Market in UK Antiquities and the Challenge
of the Internet ......................................................................................83
Roger Bland
6. Crime Goes Underground: Crimes against Historical Sites
and Remains in Sweden .................................................................... 103
Linda Källman And Lars Korsell
Part IV: Regulation and the Market
in Looted Antiquities
7. The Paradox of Regulation: The Politics of Regulating
Global Markets ................................................................................ 127
David Whyte
8. Criminalising the Market in Illicit Antiquities: An Evaluation
of the Dealing in Cultural Objects (Offences) Act 2003 in
England and Wales ........................................................................... 145
Simon Mackenzie And Penny Green
Index ..................................................................................................... 171
 

The Authors
Penny Green is Professor of Law and Criminology, Head of Research and Director of the Law School's Research Degree Programme at King's College, London.
 
Simon Mackenzie is a Reader in Criminology at the Scottish Centre for Crime and Justice Research, University of Glasgow.


LINKS