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Hart Publishing Ltd Books Reviewed in 2012


The Art of Justice - The Judge's Perspective
Edition: 1st
Format: Hardback
Author: Ruth Herz
ISBN: 9781849461276
Publishers: Hart Publishing
Price: £35
Publication Date: September 2012

Publisher's Title Information

This book presents a unique and intriguing collection of drawings of courtroom scenes. Entering the courtroom wearing his robe, Judge Pierre Cavellat literally had a secret up his sleeve. Hidden in it were pens and pencils, which he used to sketch the scenes he observed from his bench. Throughout a 40-year judicial career in one of France's more important regional appellate courts, Cavellat produced hundreds of illuminating drawings and paintings depicting the court proceedings but also the main actors: the prosecutors, defence counsel, his fellow judges, the defendants, witnesses, policemen, the general public, as well as the courtroom itself and its architecture. The resulting vivid and uncensored impressions give an unprecedented insight into how a judge perceives his profession and the institution of justice as a whole. Given the scarcity of written autobiographies by judges, and their reluctance to lay bare their inner feelings and thinking, the images reveal, in a candid and immediate fashion, the deeply hidden emotions, ambiguities and fantasies of a judge going about his work. The author, a judge herself, interprets the images through the lens of her own judicial experience, exploring how judges think and act and how their thinking is constructed through their education, professional training, gender and class. In doing so she exposes how personal background, history and experience play an additional, sometimes conflicting, role in 'judgecraft'. While relevant to both practitioners and students of law this book should also appeal to the wider public.

The Author

Ruth Herz is a former judge at the Court of Cologne. She has been a visiting fellow of the Centre for Criminology at Oxford University and is currently a visiting professor at Birkbeck College, University of London.

More Information on the Publisher's Website about, "The Art of Jutice - The Judge's Perspective"


International and European Criminal Law
Edition: 1st
Format: Paperback
Author: Helmut Satzger
ISBN: 9781849460804
Publishers: C H Beck ( Hart Publishing )
Price: £85
Publication Date: Sept 2012

Publisher's Title Information

Contents

Table of Contents
A. Introduction ............................................................................................................................ 1
§ 1. Criminal Law in an International Context .................................................................... 1
§ 2. Terminology of “International Criminal Law” .............................................................. 2
I. Overview .................................................................................................................. 2
II. International Criminal Law (stricto sensu): Criminal Law under Public
International Law .................................................................................................... 2
III. Supranational (Especially European) Criminal Law ............................................... 3
IV. Criminal Jurisdiction and Rules Determining the Exercise of Jurisdiction ........... 3
V. Mutual Legal Assistance .......................................................................................... 4
B. Jurisdiction and the territorial scope of Criminal Law ........................................................ 7
§ 3. The Application of National Criminal Law to Cases with International Elements .... 7
I. Criminal Jurisdiction ............................................................................................... 7
II. Applicable (Substantive) Criminal Law .................................................................. 8
III. Danger of Double Jeopardy ..................................................................................... 9
IV. Relation between the Rules Determining the Scope of Application of Criminal
Law and the Material Scope of Protection of Criminal Offences ........................... 10
§ 4. The Principles of Criminal Jurisdiction and their Implementation in National Legal
Orders 12
I. Competence to Determine the Territorial Scope of Application of Criminal Law 12
II. The Principles of Criminal Jurisdiction .................................................................. 13
1. Overview of the Principles Recognised by International Law ........................... 13
2. Territorial Principle ............................................................................................ 14
a) General considerations ................................................................................... 14
b) In particular: internet criminality .................................................................. 16
c) Flag principle .................................................................................................. 17
d) Implementation of the territorial principle in various national legal systems 17
3. Nationality Principle ........................................................................................... 20
a) General considerations ................................................................................... 20
b) Implementation of the nationality principle in various national legal orders 21
4. The Protective Principles .................................................................................... 25
a) Protective principle (stricto sensu) ................................................................. 25
b) Passive personality principle/individual protective principle ........................ 28
5. The Universality Principle .................................................................................. 32
a) General considerations ................................................................................... 32
b) Implementation of the universality principle in various national legal
orders .............................................................................................................. 32
6. Representation Principle ..................................................................................... 38
a) General considerations ................................................................................... 38
b) Application in various national legal orders .................................................. 39
7. Principle of Distribution of Competences .......................................................... 40
8. Principle of Protection of European Union Interests ........................................ 41
C. European Criminal Law ......................................................................................................... 43
§ 5. Basic Principles and Issues of European Criminal Law ................................................ 43
I. Meaning of the Term “European Criminal Law” ................................................... 43
II. The Influence of European Law on Criminal Law ................................................. 44
1. History of Primary Law Influence on Criminal Law ......................................... 44
2. European Law-Making versus Harmonisation of Laws ..................................... 46
VII
§ 6. Supranational Criminal Law ........................................................................................... 48
I. Existing Sanctions at Union Level .......................................................................... 48
1. The Different Types of European Sanctions ...................................................... 48
a) Fines ............................................................................................................... 48
b) Other financial sanctions ............................................................................... 49
c) Other detriments ............................................................................................ 49
2. Classification as Criminal Law in a Broader Sense ............................................ 49
II. European Criminal Law .......................................................................................... 51
1. Terminology ........................................................................................................ 51
2. First Instances of a European Criminal Law de lege lata? ................................. 51
3. European Competence Provisions for Adopting Criminal Law ........................ 53
III. Future Projects concerning “European Criminal Law” .......................................... 57
1. Corpus Juris of criminal provisions for the protection of the financial interests
of the European Communities (Corpus Juris 2000) .......................................... 58
2. Commission Green Paper on criminal-law protection of the financial interests
of the Community and the establishment of a European Prosecutor ............... 59
§ 7. The Influence of European Law on Domestic Substantive Criminal Law ................... 60
I. General Issues .......................................................................................................... 61
1. Criminal Law under the Influence of European Union Law ............................. 61
2. Particularities of Criminal Law ........................................................................... 63
II. Primary Law as a Restriction on National Criminal Law ...................................... 65
1. European Law Serving as Upper Limit for National Criminal Law .................. 65
a) Elements of a criminal offence conflicting with European law ..................... 66
b) Legal consequences conflicting with European law ....................................... 67
aa) Severity of penalty ................................................................................... 67
bb) Type of sanction ...................................................................................... 69
2. Minimum Requirements for Criminal Law set by European Law .................... 70
III. Restrictions on National Criminal Law Resulting from Secondary Law -
in Particular Directives (art. 83 TFEU) ................................................................... 72
1. Overview ............................................................................................................. 72
2. Combating Crime with a Cross-Border Dimension (art. 83 (1) TFEU) ........... 72
a) Amendments in primary law concerning the former third pillar ................. 72
b) Legal acts adopted prior to the entry into force of the Treaty of Lisbon ..... 73
c) Prerequisites of art. 83 (1) TFEU ................................................................... 74
3. Annex Competence (Art. 83 (2) TFEU) ............................................................. 76
a) “Annex character” of the competence provision .......................................... 76
b) Legal situation prior to the entry into force of the Treaty of Lisbon ........... 77
c) The prerequisites of art. 83 (2) TFEU ........................................................... 78
4. Competence for Minimum Harmonisation ....................................................... 78
5. The “Emergency Brake” (Art. 83 (3) TFEU) ..................................................... 80
a) General idea and procedure ........................................................................... 80
b) Fundamental aspects of the criminal justice system ..................................... 80
6. Other Approximation Competences .................................................................. 81
a) Competence provisions .................................................................................. 81
b) Does the “emergency brake” apply? .............................................................. 81
7. Excursus: A Concept for a European Criminal Policy ....................................... 82
a) Background .................................................................................................... 82
b) The specific principles for a European criminal policy ................................. 83
IV. References to European Law in Domestic Criminal Law Provisions ..................... 84
1. Introduction ........................................................................................................ 85
a) Rules in directives .......................................................................................... 85
b) Rules in regulations ........................................................................................ 85
2. Problems Arising from the Use of Blanket Criminal Laws Referring to EU
Regulations .......................................................................................................... 86
a) Effect of blanket references and issues concerning their interpretation ....... 86
b) Blanket laws and the lex certa requirement ................................................... 87
aa) General requirements .............................................................................. 88
bb) References to European law .................................................................... 89
Table of Contents
VIII
cc) Cross-references in national statutory instruments ............................... 90
dd) The principle of lex mitior ...................................................................... 91
V. The Influence of European Law on the Interpretation and Application of
Domestic Substantive Criminal Law ....................................................................... 93
1. Introduction ........................................................................................................ 93
2. Neutralising Effect on Domestic Law ................................................................. 94
a) Actual conflicts with regard to the elements of a criminal offence .............. 95
b) Actual conflicts with regards to legal consequences ...................................... 97
c) Ostensible conflicts ......................................................................................... 98
3. Interpretation in the Light of European Law ..................................................... 99
a) Introduction ................................................................................................... 99
b) Interpreting criminal law in the light of European law ................................ 100
c) Examples ........................................................................................................ 102
aa) Protection of EU legal interests .............................................................. 102
bb) Defining legal terms in criminal law provisions pursuant to European
laws .......................................................................................................... 104
cc) Crimes of negligence ............................................................................... 106
dd) Sentencing ................................................................................................ 107
4. Relevance of Framework Decisions .................................................................... 108
§ 8. Criminal Law Enforcement in Europe ........................................................................... 109
I. Institutions of Law Enforcement Within the EU ................................................... 110
1. Europol ................................................................................................................ 110
2. Eurojust ............................................................................................................... 112
3. The European Anti-Fraud Office (OLAF) ......................................................... 114
4. The Project of a European Public Prosecutor's Office ....................................... 115
II. The Judicial Cooperation in Criminal Matters on the Basis of the Principle of
Mutual Recognition ................................................................................................. 117
1. The Principle ....................................................................................................... 117
2. Legislative Acts on the Basis of the Principle of Mutual Recognition ............... 118
a) The European arrest warrant ......................................................................... 118
aa) The Framework Decision ........................................................................ 118
bb) The implementation of the Framework Decision within the Member
States ........................................................................................................ 120
b) European supervision order ........................................................................... 123
c) Mutual judicial assistance concerning evidence; the European evidence
warrant in particular ...................................................................................... 123
d) Enforcement of penalties ............................................................................... 125
3. The Codification of the Principle of Mutual Recognition in Art. 82 TFEU ..... 125
a) Scope of application ....................................................................................... 126
b) Distinction from approximation measures pursuant to art. 82 (2) TFEU .... 126
4. The Exchange of Information and the “Principle of Availability” in Particular 126
III. Approximation of Criminal Procedural Law .......................................................... 128
1. Fields of Application ........................................................................................... 128
a) Mutual admissibility of evidence between Member States (lit. a) ................. 128
b) The rights of individuals in criminal procedure (lit. b) ................................ 129
c) The rights of victims of a crime (lit. c) .......................................................... 130
d) Other specific aspects of criminal procedure (lit. d) ..................................... 131
2. “Emergency Brake” (Art. 82 (3) TFEU) ............................................................. 131
IV. Ne bis in idem ......................................................................................................... 132
1. Merely Internal Effect of “ne bis in idem” as the General Rule ........................ 132
2. Sanctions in Multiple Member States Based on the Same Facts ....................... 133
a) Necessity for and concept of a European “ne bis in idem” principle ........... 133
b) The relationship between art. 54 CISA and art. 50 CFR ............................... 135
c) Elements and uniform application of art. 54 CISA ....................................... 137
aa) “Decision finally disposing of the trial” .................................................. 137
bb) “the same acts” ........................................................................................ 139
cc) Enforcement element .............................................................................. 140
Table of Contents
IX
§ 9. The European Convention on Human Rights ............................................................... 143
I. Council of Europe ................................................................................................... 144
1. The International Organisation .......................................................................... 144
2. The Council of Europe's Role in Criminal Law ................................................. 145
II. European Convention on Human Rights ............................................................... 145
1. The ECHR in Different Legal Systems ............................................................... 146
a) The principle of “minimum standard” .......................................................... 146
b) Significance for domestic law ......................................................................... 146
c) Significance of the Convention for EU Law .................................................. 147
aa) The EU's accession to the ECHR ............................................................ 147
bb) The Charter of Fundamental Rights ....................................................... 148
cc) The relationship between ECtHR and ECJ ............................................. 148
2. The Interpretation of the ECHR ........................................................................ 149
3. Guarantees Relating to Criminal Law ................................................................ 150
a) Overview ......................................................................................................... 150
aa) Subsidiary protection through the ECtHR ............................................. 150
bb) Scope of application ................................................................................ 151
b) Testing ECHR rights related to criminal law ................................................ 151
c) Right to life - art. 2 ECHR ............................................................................ 152
d) Prohibition of torture (and degrading punishment) - art. 3 ECHR ............. 154
aa) Scope of protection and unexceptional prohibition of torture ............... 154
bb) Threat of torture ...................................................................................... 156
cc) Medical interventions .............................................................................. 158
dd) Deportation and extradition ................................................................... 158
e) Right to liberty - art. 5 ECHR ....................................................................... 159
f) Right to a fair trial - arts 6 (1) and (5) ECHR ............................................. 161
aa) Scope of protection .................................................................................. 162
bb) The court and the court proceeding ....................................................... 163
cc) Fair trial ................................................................................................... 165
g) Presumption of innocence - art. 6 (2) ECHR ............................................... 168
h) No punishment without law - art. 7 ECHR .................................................. 169
aa) Scope of protection .................................................................................. 169
bb) The necessity for clarity and definiteness ............................................... 170
cc) Prohibition of analogies .......................................................................... 170
dd) Prohibition of ex post facto laws ............................................................. 171
i) Right to respect for private and family life - art. 8 ECHR ........................... 172
j) Right to appeal in criminal matters - art. 2 (1) Additional Protocol No. 7 . 173
k) Ne bis in idem ................................................................................................ 173
4. Procedural Law and Organs of the ECHR ......................................................... 174
a) The ECtHR and its role as an organ ............................................................. 174
b) Individual applications and inter-state cases ................................................. 175
c) Judgment ........................................................................................................ 176
d) Effect ............................................................................................................... 176
D. International Criminal Law ................................................................................................... 179
§ 10. General Introduction to International Criminal Law ................................................. 179
I. Definition of International Criminal Law ............................................................... 179
II. The Enforcement of International Criminal Law ................................................... 181
III. International Criminal Law and the Law of State Responsibility ........................... 183
IV. “Treaty Crimes” ....................................................................................................... 184
§ 11. History of International Criminal Law ........................................................................ 185
I. Development until 1919 .......................................................................................... 185
II. Versailles and the Leipzig War Crime Trials .......................................................... 186
1. The Versailles Treaty .......................................................................................... 186
2. The Leipzig War Crime Trials ............................................................................ 187
Table of Contents
X
III. The Military Tribunal in Nuremberg ...................................................................... 187
1. Structure of the International Military Tribunal (IMT) .................................... 188
a) Jurisdiction ..................................................................................................... 188
b) Composition of the Tribunal ......................................................................... 188
2. Procedural Law ................................................................................................... 188
3. Judgment ............................................................................................................. 189
4. Criticism Concerning the Nuremberg Trials ..................................................... 189
5. Summary ............................................................................................................. 190
IV. The International Military Tribunal for the Far East (IMTFE) ............................. 190
V. “Cold War”-Era ....................................................................................................... 190
VI. International Criminal Tribunal for the Former Yugoslavia (ICTY) ..................... 191
1. Structure of the Tribunal .................................................................................... 192
a) Jurisdiction ..................................................................................................... 192
b) Composition of the Tribunal ......................................................................... 193
c) Sanctions ........................................................................................................ 193
2. Overview of the Criminal Offences Applied by the ICTY ................................. 193
3. Legitimacy of the Tribunal ................................................................................. 194
VII. The International Criminal Tribunal for Rwanda (ICTR) ..................................... 195
VIII. Hybrid Courts .......................................................................................................... 195
§ 12. The International Criminal Court (ICC) ..................................................................... 198
I. Structure of the Statute ............................................................................................ 199
II. Function of the ICC ................................................................................................ 200
III. Jurisdiction ............................................................................................................... 200
1. Jurisdiction ratione personae .............................................................................. 200
2. Jurisdiction ratione materiae .............................................................................. 201
3. Jurisdiction ratione loci/“genuine link” .............................................................. 201
4. Jurisdiction ratione temporis ............................................................................... 202
IV. Trigger Mechanisms for the Court's Activities ....................................................... 202
1. State Complaint .................................................................................................. 202
2. Independent Investigations by the Prosecutor ................................................... 204
3. Resolution of the UN Security Council .............................................................. 204
V. Principle of Complementarity ................................................................................. 206
VI. Institutional Aspects ................................................................................................ 208
1. The Judges ........................................................................................................... 209
2. The Registry ........................................................................................................ 209
3. The Prosecutor .................................................................................................... 209
4. Financing ............................................................................................................. 210
VII. Procedure ................................................................................................................. 210
1. Preliminary Investigation .................................................................................... 210
2. Confirmation Hearing ........................................................................................ 211
3. Trial ..................................................................................................................... 212
4. Appeal and Revision ........................................................................................... 212
5. Victims' Rights .................................................................................................... 212
6. Summary ............................................................................................................. 214
VIII. Sanctions and their Enforcement ............................................................................ 214
IX. Limitation and Finality ............................................................................................ 214
X. Evaluation in Terms of Legal Policy ....................................................................... 215
§ 13. The General Part of International Criminal Law ........................................................ 216
I. Applicable Law ........................................................................................................ 217
1. General Sources of International Law ................................................................ 217
2. Particular Sources of International Criminal Law ............................................. 217
II. Rules of Interpretation and the Principle of “nullum crimen, nulla poena sine lege” 219
1. Interpretation of International Law in General ................................................. 219
2. Interpretation of International Criminal Law .................................................... 220
III. Individual Criminal Responsibility ......................................................................... 221
IV. The Structure of an International Criminal Law Offence ...................................... 222
1. The General Material Elements of International Crimes ................................... 223
2. The General Mental Elements of International Crimes ..................................... 224
Table of Contents
XI
3. Grounds for Excluding Criminal Responsibility ................................................ 228
a) Self-defence ..................................................................................................... 229
b) Necessity ......................................................................................................... 229
c) Superior orders ............................................................................................... 231
d) Mistake ........................................................................................................... 231
e) Mental incapacity ........................................................................................... 233
f) Immunities ..................................................................................................... 233
g) Statute of limitations ...................................................................................... 234
h) Unwritten grounds for excluding criminal responsibility ............................. 234
V. Forms of Participation (Perpetration and Accessoryship) ..................................... 235
1. Perpetration ........................................................................................................ 236
a) Direct perpetration ......................................................................................... 236
b) Co-perpetration .............................................................................................. 236
c) “Joint Criminal Enterprise” as extension of co-perpetration? ...................... 236
d) Indirect perpetration ...................................................................................... 239
2. Accessoryship ...................................................................................................... 239
a) Inducement .................................................................................................... 239
b) Assistance ....................................................................................................... 240
c) Assistance in a group crime ........................................................................... 240
VI. Superior Responsibility ............................................................................................ 241
VII. Attempt and Abandonment of the Attempt ........................................................... 243
VIII. Omission .................................................................................................................. 244
§ 14. Special Part of International Criminal Law ................................................................. 245
I. Genocide .................................................................................................................. 246
1. History ................................................................................................................ 246
2. Protected interests ............................................................................................... 247
3. Structure of the Crime ........................................................................................ 248
4. The Material Elements of Genocide in General ................................................. 248
5. The Mental Elements of Genocide in General ................................................... 250
6. Individual Genocidal Acts .................................................................................. 251
a) Killing members of the group ........................................................................ 251
b) Causing serious bodily or mental harm to members of the group ............... 252
c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part ........................................ 252
d) Imposing measures intended to prevent births within the group ................. 253
e) Forcibly transferring children of the group to another group ...................... 253
II. Crimes against Humanity ........................................................................................ 253
1. History ................................................................................................................ 254
2. Protected Interests .............................................................................................. 256
3. Structure of the Crime ........................................................................................ 256
4. Material Elements of the “Chapeau” .................................................................. 256
5. Mental Elements in Respect of the “Chapeau” .................................................. 258
6. Individual Acts .................................................................................................... 259
a) Murder ............................................................................................................ 259
b) Extermination ................................................................................................. 259
c) Enslavement ................................................................................................... 259
d) Deportation or forcible transfer of population .............................................. 260
e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law .......................................................... 260
f) Torture ........................................................................................................... 260
g) Sexual violence ............................................................................................... 260
h) Persecution ..................................................................................................... 261
i) Enforced disappearance of persons ................................................................ 261
j) Apartheid ........................................................................................................ 261
k) Other inhuman acts of a similar character .................................................... 262
III. War Crimes ............................................................................................................. 262
1. History ................................................................................................................ 262
2. Protected Interests .............................................................................................. 264
Table of Contents
XII
3. Elements of the Offence ..................................................................................... 264
4. Objective Requirements of an Armed Conflict .................................................. 265
5. Subjective Requirement of an Armed Conflict .................................................. 267
6. Categories of the Individual Acts ....................................................................... 267
a) Material and mental elements ........................................................................ 267
b) Category 1 of offences committed in connection with an international
armed conflict: Grave breaches of the Geneva Conventions of 12th August,
1949 (art. 8 (2) (a) ICCSt) ............................................................................. 268
c) Category 2 of offences committed in connection with an international
armed conflict: Other serious violations of the laws and customs applicable
in international armed conflict (art. 8 (2) (b) ICCSt) ................................... 268
d) Category 1 of offences committed in connection with a non-international
armed conflict: serious violations of art. 3 common to the four Geneva
Conventions of 12th August, 1949 (art. 8 (2) (c) ICCSt) ............................... 269
e) Category 2 of offences committed in connection with a non-international
armed conflict: Other serious violations of the laws and customs applicable
in armed conflicts not of an international character (art. 8 (2) (e) ICCSt) .. 270
IV. Aggression ............................................................................................................... 270
1. The Crime of Aggression under Customary International Law ........................ 270
2. The Crime of Aggression in the ICC-Statute ..................................................... 271
a) Elements of the criminal offence ................................................................... 273
b) Jurisdiction/trigger mechanism ...................................................................... 274
c) Coming into force .......................................................................................... 275
d) Conclusion ...................................................................................................... 276
§ 15. The Implementation of the ICC-Statute into National Law - The German Solution
in Particular 277
I. Introduction ............................................................................................................. 277
1. Direct Application of Customary International Law ......................................... 278
2. Explicit References to Customary International Law ......................................... 278
3. Static Reference to the Rome Statute ................................................................. 278
4. The Ordinary National Crime Solution ............................................................. 279
5. The Specific National Crime Solution ................................................................ 279
II. The German Incorporation Solution as a Model ................................................... 279
1. National Legislation in Relation to the ICC ....................................................... 280
2. Legislative Motivation ......................................................................................... 281
3. Deficits of German Criminal Law before the Entry-into-Force of the VStGB .. 281
4. No Direct Effect of the Crimes of International Law in the German
Jurisdiction .......................................................................................................... 282
5. No Direct Applicability of the Statute's Offences as Incorporated by the ICCStatute-
Act .......................................................................................................... 282
III. The Content of the Code of Crimes against International Law ............................. 283
IV. The Conflict between the Principle of Complementarity and the GG .................. 284
1. The VStGB Falling Behind the ICC-Statute ....................................................... 285
a) General Part of the VStGB ............................................................................ 285
b) The Special Part of the VStGB ...................................................................... 287
2. Conflicts with the Principle of Legality according to Art. 103 II GG ................ 289
a) Uncertain elements of offences ...................................................................... 289
b) References to customary international law .................................................... 290
c) References to treaty law ................................................................................. 291
V. Unlimited Principle of Universality Extending the Traditional Rules on the Scope
of Application of German Criminal Law ................................................................ 292
VI. Conclusion ............................................................................................................... 293
Index ....................................................................................................................................... 295
Table of Contents
XIII

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The House of Lords 1911-2011- A Century of Non-Reform
Hart Studies in Constitutional law - No 1
Edition: 1st
Format: Hardback
Author: Chris Ballinger
ISBN:
Publishers: Hart Publishing
Price: 9781849462891
Publication Date: Oct 2012

Publisher's title Information

House of Lords reform is often characterised as unfinished business: a riddle that has been left unanswered since 1911. But rarely can an unanswered riddle have had so many answers offered, even though few have been accepted; indeed, when Viscount Cave was invited in the mid-1920s to lead a Cabinet committee on Lords reform, he complained of finding 'the ground covered by an embarrassing mass of proposals'.That embarrassing mass increased throughout the twentieth century. Much ink has been spilled on what should be done with the upper House of Parliament; much less ink has been expended on why reform has been so difficult to achieve.
This book analyses in detail the principal attempts to reform the House of Lords. Starting with the Parliament Act of 1911 the book examines the century of non-reform that followed, drawing upon substantial archival sources, many of which have been under-utilised until now. These sources challenge many of the existing understandings of the history of House of Lords reform and the reasons for success or failure of reform attempts. The book begins by arguing against the popular idea that the 1911 Act was intended by its supporters to be a temporary measure.
Review
'No one - peers included - should be allowed to pronounce about the future of the House of Lords without reading Chris Ballinger's authoritative, shrewd and readable account about reform attempts over the past century. He punctures several widely-held myths and claims in the current debate.'
Rt Hon Peter Riddell CBE Director, Institute for Government and former Hansard Society chair

Contents

Acknowledgements vii
Tables xiii
Introduction: Reform and Non-reform 1
Reform and Non-reform 1
A Century of Non-reform 3
The Evolution of the House of Lords 4
Twelve Instances of Reform and Non-reform 11
1 Veto Limitation over Reform: The Parliament Act 1911 15
The Political Situation, 1906-07 15
Cabinet Discussions on Lords Reform, 1907 16
Budget Rejection, 1909 20
Between the 1910 Elections 23
The Parliament Bill 1911 28
Reform following Veto Limitation? 1911-14 30
Conclusion 31
2 'The Battle is Over': House of Lords Reform, 1917-45 35
The Bryce Conference, 1917-18 35
Cabinet Committees, 1921-22 39
The Cabinet Committee, 1925-27 43
Lords reform in the 1920s 46
Avoiding Reform, 1928-45 46
3 A Pre-emptive Strike: The Parliament Act 1949 51
Labour and the House of Lords 52
Moves Towards reform, 1943-47 54
Nationalisation and House of Lords Reform 56
The Parliament Bill 1947 59
The Party Leaders' Conference 1948 64
The Parliament Bill Resumed 69
The Iron and Steel Bill 71
Conclusion 73
4 Diluting the Hereditary Principle?: The Life Peerages Act 1958 75
Life Peers 77
Inter-Party Discussions 77
Limiting the Hereditaries: Proposals 83
Wider Reform: The Cabinet Committee, 1955-56 85
Short and Long Bills 87
The Life Peerages Bill 93
Limiting the Hereditary Peers 94
Conclusion 97
5 'The Wedgwood Benn Enabling Bill': The Peerage Act 1963 101
A Hereditary Life Peerage 103
Earlier Attempts at Renouncing Peerages 104
The Persistent Commoner 106
Fears over Loss of the Hereditary System 107
Party Support for Benn 108
The Committee of Privileges 109
'Re-election' 110
Seating the 'Defeated' Candidate 113
The Joint Select Committee 114
The Peerage Bill 118
Conclusion 122
6 Adding to Wilson's Strife: The Inter-Party Conference and the Parliament (No 2) Bill [1968-69] 127
Abandoning the Unilateral, Two-Stage Approach 131
The Inter-Party Conference 133
The Southern Rhodesia (United Nations Sanctions) Order 1968 137
The White Paper and the Decision to Proceed with the Bill 140
The Parliament (No 2) Bill 142
Abandoning the Bill 150
1970 153
Conclusion 153
Epilogue: House of Lords Reform, 1970-74 154
After 1974 158
7 Stage One of Two?: The House of Lords Act 1999 159
Turning the Tide of Constitutional Reform 160
John Smith's Leadership 162
Tony Blair and House of Lords Reform 162
Post-election 1997 163
Priorities for the First Session 164
The Cabinet Committee 166
The Queen's Speech 1998 169
The Weatherill Amendment: Origins 169
The House of Lords Bill 173
x Contents
By-elections for Hereditary Peers 174
Conclusion 177
8 The Long Stage Two: The Wakeham Commission and Beyond 179
The Royal Commission on the Reform of the House of Lords 179
Follow-up to the Royals Commissions's Report 189
2001-05: Indecision, then a Surprising Move on Reform 190
Lords Reform in Labour's Third Term 200
2010: General Election and Coalition Government 204
Conclusion 209
9 Reasons for Reform and Non-reform 211
How and Why Does House of Lords Reform Reach the Cabinet's Agenda? 214
How Do Proposals Change When Under Consideration? 215
How and Why Do Proposals Succeed or Fail? 216
Conclusion 219
Further Reading 221
Bibliography 225
Index 241
Contents xi

The Author

Chris Ballinger is Academic Dean and Official Fellow of Exeter College, Oxford.

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EU Constitutional Law, An Introduction
Edition: Second Revised Edition
Format: Paperback
Authors: Allan Rosas and Lorna Armati
ISBN: 9781849463201
Publishers: Hart Publishing
Price: £16.95
Publication Date: August 2012

Publisher's Title Information

The second revised edition of this acclaimed book brings the story of the EU's constitutional journey up to date. The EU's constitution, composed of a myriad of legal texts, case law and practice, is a moving target subject to continuous change, and the past two years have seen no slacking in the pace of that change. With a wider geographical ambit than ever, the EU faces unprecedented political, economic and cultural challenges, all of which impact upon the evolution of its constitution. Moreover, the crisis in the Eurozone has given rise to the need for a whole new chapter focussing on the institutional reforms embarked upon in the quest to restore financial order.
 
The book succeeds, where others have struggled, in making sense of the EU's complex constitutional order, focussing on its essential features but taking into account the profound changes that have taken place over the past 20 years. The EU has become much more than an internal economic market and has recently become active in areas such as immigration and third-country nationals, security and defence policy, and penal law and procedure, while the crisis in the Eurozone has triggered an increasing focus on economic and fiscal policy.
 
 
Eschewing too much detail the authors underline the essential values, principles and objectives of the integration regime as well as its basic normative structure and hierarchy. In this context, the decentralised nature of the EU is highlighted as an integral part of its constitutional make-up. Recurring themes include European citizenship, fundamental rights and the rule of law. The book also confronts head-on the problems and challenges facing the Union and the gap which is often perceived between lofty ideals and harsh realities.
 
The book will be useful to students of EU law and European integration but will also appeal to a broader audience of researchers and practitioners, including political scientists.
 
The Authors

Allan Rosas has been a judge at the European Court of Justice since January 2002, having formerly been Armfelt Professor of Law at the Åbo Akademi University and later Principal Legal Adviser and Deputy Director-General of the Legal Service of the European Commission.
 
Lorna Armati has been a Member of the Legal Service of the European Commission since September 2010, having formerly been Legal Secretary to Judge Rosas and later Legal Officer at the EFTA Surveillance Authority.

Contents

Preface to the fi rst edition v
Preface to the second edition vii
List of Abbreviations xi
Table of Cases xiii
1 What Constitution?
A Rose by Any Other Name 1
2 An Elephant That Cannot Be Defi ned? What the EU Is, and Is Not 7
A. Introduction 7
B. Historical Development 9
C. The Union Today 12
D. State-like Features 15
E. Non-state-like Features 17
3 Marking the Territory: Principles Governing Union Competences 20
A. Introduction 20
B. Basic Treaty Provisions on Competence 22
C. Articles 114 and 352 TFEU 26
D. The Principle of Subsidiarity 28
4 Who Is the Boss? In Search of a Master of the Treaties 32
A. Introduction 32
B. Procedures for Amending the Treaties 34
C. Creeping Competences? 41
D. The Ties that Bind 49
5 Looking Past the Trees to See the Wood: Construing a Hierarchy of
Norms 52
A. Introduction 52
B. Foundations of the Union Legal Order 54
C. Primary Law 56
D. International Law 59
E. Secondary Law and other Acts of the Institutions 61
6 Into the Estuaries and up the Rivers: Union Law in the National Legal
Orders of the Member States 66
A. Introduction 66
viii Contents
B. Primacy 67
C. Conformity through Interpretation 72
D. Direct Applicability and Direct Effect 76
7 A Lot More than Brussels Bureaucrats: The Institutional Framework 86
A. Introduction 86
B. The Union's Institutions 88
C. Union Regulatory and Administrative Bodies 99
D. Institutions and Bodies of the Member States 105
8 A Suprematist Composition? Differentiation and Flexibility 111
A. Introduction 111
B. Differentiation in Primary Law 112
C. Enhanced Cooperation 123
9 What Defi cit? The EU System of Democracy 126
A. Introduction 126
B. General Considerations 127
C. The Political Institutions 130
D. Participatory, Deliberative and Substantive Democracy 138
10 Civis Europeus Sum: The Evolving Concept of Union Citizenship 143
A. Introduction 143
B. Pie in the Sky? 146
C. Who is a Union Citizen? 148
D. The Right to Move and Reside 150
E. From Movement to Citizenship and Beyond 157
11 Taking Rights More Seriously? The EU System of Fundamental Rights 160
A. Introduction 160
B. Field of Application 164
C. Sources and Material Scope 168
D. Non-discrimination 174
E. Direct Effect 178
12 Broadening Horizons? The Area of Freedom, Security and Justice 181
A. Introduction 181
B. Border Checks, Asylum and Immigration 185
C. Judicial Cooperation in Civil Matters 190
D. Judicial Cooperation in Criminal Matters 194
E. Police Cooperation 197
13 The Internal Market: Liberal, Social, Green or Chameleon? 200
A. Introduction 200
Contents ix
B. The Economic Free Movement Rights 202
C. The Social Dimension 209
D. Environment 215
14 Building a House by Starting with the Roof? Economic and
Monetary Policy 220
A. Introduction 220
B. Monetary Policy 223
C. Economic and Fiscal Surveillance 226
D. The Stability Mechanisms 232
E. Built to Last? 234
15 An Elephant Trumpeting Loud and Clear or a Gaggle of Geese?
EU External Relations 236
A. Introduction 236
B. Institutional Framework for External Action 238
C. Union Competences and their Use 244
D. The Union and the Member States 250
E. Security and Defence 254
16 Covenants of No Strength to Secure A Man At All? Issues of
Enforcement and Control 261
A. Introduction 261
B. Control of Union Institutions and Bodies 262
C. The Role of Member States' Courts and Authorities 272
17 The Elephant in the Room? Concluding Remarks 282
Index 289

Preface to the second edition

The fact that only a year and a half has elapsed since the publication of the first edition of this book proves one of its key points: the Union is indeed a moving target. Despite the fact that the entry into force of the Treaty of Lisbon on 1 December 2009 was supposed to satisfy the appetite for constitutional change for some time, the development of Union law since July 2010 (the cut-off date for the first edition), prompted by current efforts to solve the sovereign debt crisis affecting the euro area in particular, includes not one but several initiatives to amend primary law and, when one of those attempts met with resistance, the conclusion of a new intergovernmental agreement.

As well as a systematic revision of the text to reflect recent developments in written law, case law and legal doctrine, the second edition therefore adds an entirely new chapter covering the institutional and legal changes triggered by the sovereign debt crisis (chapter 14). In addition, chapters 3 and 4 are based on chapters 2F and 3 of the first edition, but also contain some new elements.

For this revised edition, we have been able to take into account developments up to April 2012.
We wish to reiterate our most sincere thanks to our publisher, with whom cooperation is always pleasant. Thanks also continue to be due to the Stedelijk Museum in Amsterdam. Since the first edition, the colourful structures of Kasimir Malevich, reflected on the front cover, have become an ever more telling illustration of a constitutional system which is not only unique and ever more complex, but also continues to be a work in progress.

Allan Rosas
Lorna Armati
Luxembourg/Brussels, April 2012

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Law and Justice on the Small Screen
Edition: 1st
Format: Paperback
Authors: Edited by Peter Robson and Jessica Silbey
ISBN: 9781849462693
Publishers: Hart Publishing
Price: £35
Publication Date: August 2012
 
Publisher's Title Information

Edited by Peter Robson and Jessica Silbey

'Law and Justice on the Small Screen' is a wide-ranging collection of essays about law in and on television. In light of the book's innovative taxonomy of the field and its international reach, it will make a novel contribution to the scholarly literature about law and popular culture. Television shows from France, Canada, the United Kingdom, Germany, Spain and the United States are discussed. The essays are organised into three sections: (1) methodological questions regarding the analysis of law and popular culture on television; (2) a focus on genre studies within television programming (including a subsection on reality television), and (3) content analysis of individual television shows with attention to big-picture jurisprudential questions of law's efficacy and the promise of justice. The book's content is organised to make it appropriate for undergraduate and graduate classes in the following areas: media studies, law and culture, socio-legal studies, comparative law, jurisprudence, the law of lawyering, alternative dispute resolution and criminal law.

Individual chapters

Have been contributed by, among others: Taunya Banks, Paul Bergman, Lief Carter, Christine Corcos, Rebecca Johnson, Stefan Machura, Nancy Marder, Michael McCann, Kimberlianne Podlas and Susan Ross, with an Introduction by Peter Robson and Jessica Silbey.

The Author Peter Robson is a Professor of Law at the University of Strathclyde.
Jessica Silbey is Professor of Law at Suffolk University Law School, Boston, Massachusetts.

Contents

Acknowledgments .......................................................................................................v
Contributors ..............................................................................................................ix
Introduction...............................................................................................................1
Peter Robson and Jessica Silbey
Part I: Method/Context ............................................................................................13
1. Measuring Humanity: Rights in the 24th Century ............................................15
Lief H Carter and Michael McCann
2. Television, Pleasure and the Empire of Force: Interrogating
Law and Affect in Deadwood.............................................................................33
Rebecca Johnson
3. Making 'Bad Apples' on The Bridge: A Production Study
of the Making of a Police Drama .....................................................................63
Anita Lam
4. Testing Television: Studying and Understanding the Impact of
Television's Depictions of Law and Justice........................................................87
Kimberlianne Podlas
5. Let's See How Far We've Come: The Role of Empirical Methodology
in Exploring Television Audiences...................................................................111
Cassandra Sharp
Part II: Genre Studies ............................................................................................133
A. The Evolved Law TV Genres
6. Dark Justice: Women Legal Actors on Basic Cable.........................................135
Taunya Lovell Banks
7. A Third Rapist? Television Portrayals of Rape Evidence Rules ......................153
Paul Bergman
8. Prosecutors and Psychics on the Air: Does a 'Psychic Detective Effect'
Exist? ...............................................................................................................173
Christine A Corcos
9. Lawyers in Terrorism Thrillers ........................................................................193
Tung Yin
viii CONTENTS
B. Reality Law TV .................................................................................................209
10. Til Debt Do Us Part: Reality TV and the Financial Literacy
Regulatory Project ...........................................................................................211
Freya Kodar
11. Judging Reality Television Judges ...................................................................229
Nancy S Marder
12. Television Judges in Germany .........................................................................251
Stefan Machura
13. Judge Judy: Constructions of 'Justice with an Attitude'..................................271
Marilyn Terzic
14. Reality TV and the Entrapment of Predators .................................................289
Mark Tunick
Part III: Specific Shows .........................................................................................309
15. Bordering on Identity: How English Canadian Television
Differentiates American and Canadian Styles of Justice .................................311
Ummni Khan
16. Television Divorce in Post-Franco Spain: Anillos de oro (Wedding Rings) .....347
Anja Louis
17. 'McNutty' on the Small Screen: Improvised Legality and
the Irish-American Cop in HBO's The Wire ...................................................361
Sara Ramshaw
18. Torture and Contempt of the Law in '24': Selling America
New 'Patriotic' Values .....................................................................................381
Ryan J Thomas and Susan Dente Ross
19. Decoding the Dark Passenger: The Serial Killer as a Force for Justice.
Adapting Jeff Lindsay's Dexter for the Small Screen ......................................403
Angus Nurse
20. Canada: ADR and The Associates ..................................................................425
Jennifer L Schulz
21. Stranger Danger?: Sadistic Serial Killers on the Small Screen ........................441
Annette Houlihan
Index ......................................................................................................................455

From the Introduction

Scholarship on law and television has developed slowly over the past 30 years. It began alongside the study of film and law, but its trajectory and import differ in significant ways. This Introduction provides both an overview of the earlier work on law and television and context to the current collection of essays.

There are several putative beginnings to law and television scholarship, all dating to the 1980s. The early work of both Stewart Macaulay and Lawrence Friedman featured the role of television in the development of popular legal culture. Their influential essays form the starting point for the study of popular culture in shaping the public's conception of the law. Around the same time, studies of Perry Mason complemented those describing the popularity of the pioneering legal drama LA Law. Others explored television's role in conceptualising law in the modern era. Steven Stark's 1987 article, 'Perry Mason meets Sonny Crockett: The History of Lawyers and the Police as Television Heroes', is emblematic and examines the substantial amount of 'law and order' oriented programming on American television in its first 30 years as a mass medium of entertainment. By 1990, a mere three years later, one finds the majority of scholarship on law in popular culture focused on television. However, by the beginning of the new century the emphasis switched to film, with only modest contributions in the late 1990s to the study of law and justice on the small screen.

In the twenty-first century comparative law and television scholarship grew, with studies of law and justice on television in Canada, France, Australia and the United Kingdom. Television was not always its own object of study in the interdisciplinary field of law and popular culture. Media departments and cultural studies programmes today, however, study television as a unique medium with its own representational systems, production mechanisms and distribution channels. The beginnings of the law and culture field did not treat television differently from film and literature.

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EU Counter-Terrorism - Pre-Emption and the Rule of Law
Edition: 1st
Format: Hardback
Author: Cian C Murphy
ISBN: 9781849461351
Publishers: Hart Publishing
Price: £50
Publication Date: June 2012

Publisher's Title Information

EU Counter-Terrorism Law: Pre-emption and the Rule of Law is a detailed study of EU action to combat terrorism since 11 September 2001 and the implications that action has had for the EU legal order. It critically examines EU counter-terrorism measures to ascertain how rule of law principles have been affected in the 'war on terror'. The book opens with a critical examination of the rule of law in the EU legal order. It then provides an overview of the “war on terror” before analysing five key facets of EU counter-terrorism: the common European definition of terrorism along with related offences contained in the Framework Decision on Combating Terrorism; the EU's anti-money laundering and counter-terrorist finance laws; UN and EU targeted asset-freezing sanctions; EU data retention measures such as the Data Retention Directive and the Passenger Name Records agreements; and the European Arrest Warrant and European Evidence Warrant. The book argues that EU counter-terrorism is weakening the rule of law and bypassing safeguards in favour of a system emphasising coercive control over individual autonomy. It concludes by examining the prospects for the future as the EU becomes a more powerful security actor following the Lisbon Treaty and the adoption of the Stockholm Programme.

Contents

Table of Contents
Acknowledgements
Table of Cases
PART I: TERRORISM, PRE-EMPTION AND THE EU RULE OF LAW
Introduction: September 11: Counter-Terrorism and the Rule of Law
1. European Counter-Terrorism Action
2. The EU Rule of Law
PART II: EU COUNTER-TERRORISM ACTION
3. Criminalising 'Terrorism' in EU Law
4. Anti-Money-Laundering and Counter-Terrorist Finance
5. Targeted Asset-Freezing Sanctions
6. Data Surveillance
7. European Warrants
PART III: THE FUTURE OF EU COUNTER-TERRORISM
8. Rule of Law and Pre-Emption Reconsidered
Epilogue: EU Counter-Terrorism in a post-'War on Terror' World
Bibliography
Index

Review to Date

The large-scale terrorist attacks of 2001 (USA), 2004 (Spain) and 2005 (UK) helped harness the counter-terrorist efforts of EU Member States through the development of new institutions, legislation, policies and third country agreements. Some of the new developments were of benefit to law enforcement more generally. The author expertly analyses the principal strands of the EU's response - criminalisation, measures against terrorist financing, targeted sanctions, data surveillance and European Warrants. He also identifies and comments upon the profound challenges which the EU's response, though bureaucratic rather than military in nature, poses to the protection of fundamental rights and the rule of law.
 
Unique in its range and its depth, this is the essential guide to EU counter-terrorism law.
David Anderson QC, Independent Reviewer of Terrorism Legislation

The Author

Cian Murphy is a Lecturer in Law at King's College London.



Policing Politics, Culture and Control
Edition:
Format:
Author: Edited by Tim Newburn and Jill Peay
ISBN: 9781849463003
Publishers: Hart Publishing
Price: £45
Publication Date: June 2012
 

Publisher's Title Information

Bringing together a range of leading social scientists and criminologists, this volume explores a number of key themes raised by the work of Robert Reiner. Arguably the leading policing scholar of his generation, Reiner's work over some 40 years has ranged broadly in this field, taking in the study of police history, culture, organisation, elites and relationships with the media. Always carefully situated within an analysis of the changing socio-political circumstances of policing and crime control, Robert Reiner's scholarship has been path-breaking in its impact.
 
The 13 original essays in this volume are testament to Reiner's influence. Although reflecting the primarily British bent within his work, the essays also draw on contributors from Australia, Europe, South Africa and the United States to explore some of the leading debates of the moment. These include, but are not limited to, the impact of neo-liberalism on crime control and the challenges for modern social democracy; police culture, equality and political economy; new media and the future of policing; youth, policing and democracy, and the challenges and possibilities posed by globalisation in the fields of policing and security.

The Editors

Tim Newburn is Professor of Criminology and Social Policy at the London School of Economics and Political Science.
Jill Peay is Professor of Law at the London School of Economics and Political Science.

Contents

Foreword v
List of Contributors xiii
1 Robert Reiner: An Intellectual Portrait 1
Tim Newburn and Paul Rock
2 Beyond Lamentation: Towards a Democratic Egalitarian Politics of 11
Crime and Justice
Ian Loader and Richard Sparks
3 'Race', Political Economy and the Coercive State 43
Ben Bowling, Coretta Phillips and James Sheptycki
4 Developments in Police Research: Views from Across the North Sea 69
Bob Hoogenboom and Maurice Punch
5 Cop Culture 89
PAJ Waddington
6 From Juliet to Jane: Women Police in TV Cop Shows, Reality, Rank 111
and Careers
Frances Heidensohn and Jennifer Brown
7 Trial by Media: Riots, Looting, Gangs and Mediatised Police Chiefs 135
Chris Greer and Eugene McLaughlin
8 'The Anvil' in the Information Age: Police, Politics and Media 155
Martin Innes and Roger Graef
9 Drama, the Police and the Sacred 173
Peter K Manning
10 Something Old, Something New; Something Not Entirely Blue: 195
Uneven and Shifting Modes of Crime Control
Michael Levi and Mike Maguire
11 Democracy and Police and Crime Commissioners 219
Trevor Jones, Tim Newburn and David J Smith
12 Waiting for Ingleby: the Minimum Age of Criminal Responsibility - 245
a Red Line Issue?
David Downes and Rod Morgan
13 The Shifting Boundaries of Policing: Globalisation and its 265
Possibilities
Philip C Stenning and Clifford D Shearing
Index
Contents

FOREWORD

This volume brings together essays in honour of Robert Reiner, and follows the growing custom of celebrating our most esteemed colleagues on the occasion of their retirement, that in turn derives from the longer-standing German tradition of Festschriften. A Festschrift worthy of its name requires three things: an honor and worthy of celebration, authors whose own scholarly excellence does honour to him, and contributions whose shared sense of a common project brings coherence to the volume. This book enjoys all three. As the intellectual portrait painted so eloquently by Newburn and Rock makes clear, Robert Reiner has played a central role in the development of British criminology over more than 30 years; and he will surely continue to do so long into the future. His richly sociological development of the study of policing has inspired new generations of policing scholars, many of whose leading lights are represented in this volume. The profoundly political nature of his work - both as the motivating premise of his scholarship and, substantively, as a subject of his enquiry - has helped to raise the criminological game from its lowly status as the tool of policy-making to a worthy exemplar of social scientific endeavour. Long before the coining of the term 'public criminology', Reiner was turning out just such scholarship: studies whose import transcended the boundaries of the academy to inform public consciousness. The contributions to this volume self-consciously continue this project and contribute to the exploration of criminological questions in ways that speak directly to public debate and political deliberation.

If, substantively, the common object of analysis of many contributions to this volume is the police, the common lens through which this enquiry is pursued is political sociology. Reiner's deep commitment to and development of a social democratic criminology clearly motivates and informs many of the chapters. As an early initiator and prominent exponent of this tradition, Reiner's work has played a key role in prompting successive generations of criminological scholars to view policing as a central exercise of state power that needs not only to be understood sociologically but also to be justified in ways that are consistent with the proper scope and exercise of state authority. In fulfilling this role, Reiner has also inspired policing scholars, and criminologists more generally, to reflect upon the political questions raised by the exercise of the police power by the state. At the same time, his writings have served as a call to criminologists to attend to the wider implications of their own scholarship and to assume responsibility for its influence, and indeed did so long before the dreaded word 'impact' stalked the corridors of the academy. This self-consciously political brand of scholarship denies authors the luxury of indifference to the politics of policing and it demands of them an alertness to the intrinsically political nature of the exercise of the police power over citizens (a focus that is most obviously central to the chapters by Loader and Sparks and by Bowling, Phillips and Sheptycki, but which is evident in many others in this volume too).

Policing, in all its guises, is a common thread running through many of the contributions to this volume, from the contested questions of local accountability (Jones, Newburn and Smith) to the effects of globalisation on international and transnational policing (see especially Bowling, Phillips and Sheptycki; Shearing and Stenning). Another important focus of attention is the role of the media both as a means of representing and of dramatising policing and as an object of police enquiry itself (for example, the chapters by Heidensohn and Brown; Greer and McLaughlin; and by Innes and Graef). This comes as no surprise: for just as Reiner is rightly renowned as the doyen of policing scholars, so too does he stand at the vanguard of cultural enquiry into the role of the media in the construction of crime, in the depiction of policing, and in the constitution of our understanding of law and order. Binding those chapters whose focus is primarily upon the police closely to those whose primary object of attention is the media, is a common concern with substantive questions about the role of culture and a commitment to cultural interpretation as central to understanding the meaning, as well as the practice, of policing and criminal justice.

If policing, media, and cultural studies were not, before Reiner, obvious bedfellows, still less were questions of political economy the obvious fare of criminology. In transcending these disciplinary boundaries and in demonstrating the centrality of questions of political economy to our understanding of the working of criminal justice across jurisdictions, Reiner has promoted interdisciplinarity not, as it is so often practised, simply for its own sake, but because it permits a deeper and more nuanced understanding of those questions that genuinely lie at the borders of disciplinary enquiries. It is appropriate, therefore, that the contributors to this volume have backgrounds in sociology, law, media studies, psychology and, of course, criminology - and that several of the chapters see scholars from different disciplinary backgrounds joining together in collaborative endeavour. Criminology is a relatively young branch of scholarship and as such a rendezvous subject whose practitioners have (until very recently) been drawn almost entirely from those whose academic training was in disciplines other than criminology itself. That interdisciplinarity promises a lively creativity that results from the interaction of different disciplinary traditions; but it also creates potential disciplinary tensions and threatens incoherence. It is significant, therefore, that the chapters that follow reflect the maturing of criminology into an assured, stable and coherent endeavour, united not merely by a common object of enquiry but by the canons and standards of its scholarship.

Few have played a more central role in the development of British criminology, or done more to promote its adherence to the very highest values of scholarship, than Robert Reiner. It is fitting, therefore, that not only do the contributing authors to this volume represent the very best of criminological scholarship but that their contributions break new ground in its pursuit. In what follows, we examine the contributions they make both in reflecting Reiner's influence and in advancing his project of developing a thoroughly sociological understanding of policing, politics, culture and crime control.

The chapters open with an insightful portrait of Robert Reiner by Tim Newburn and Paul Rock - painted with delicacy and evidently based upon profound and enduring friendship - that makes clear the intellectual and spiritual influences upon his scholarship. The powerful combination of an orthodox Jewish upbringing, of Talmudic study, and later schooling in the best of the British sociological tradition, explains much about Reiner's mode of intellectual enquiry, its deeply ethical commitments, and its analytic rigour.

The chapter by Loader and Sparks that follows picks up on some of Reiner's later work to respond to his 'lament' for the threatened social democratic traditions of social scientific enquiry in which he was schooled. Loader and Sparks share Reiner's concerns about the adverse impact of neo-liberalism and its effects upon the politics of crime control. Like him, they deplore the economic and social inequalities that characterise neo-liberalism and they share his objections to the 'competitive egoism' that dominates the culture of market societies. But they do not quite share his pessimism. They set out in some detail the bases upon which we might move 'beyond lamentation' to overcome the predicaments in which we find ourselves, to recover and revitalise the social democratic traditions that Reiner holds so dear. Not least among their grounds for optimism is the promise of political theory and the potential suggested by thinking about 'institutions of just ordering' as a means of instituting a more hopeful politics of crime control than presently prevails.

The following chapter by Bowling, Phillips and Sheptycki builds upon Reiner's analysis of law and order in late modern societies to explore changing patterns of policing in a globalising world. Drawing upon Reiner's observation that certain groups within society become, in effect, 'police property' to be targeted, rounded up, and socially excluded, they trace the intersection between the concept of police property and discourses of race and ethnicity which result in practices that undermine police legitimacy. This chapter focuses on three distinct domains - the policing of borders, the policing of cities, and incarceration (whether as the subjects of mass imprisonment, as marginalised populations curtailed by national borders or in immigration detention centres) - to explore questions of racial discrimination, social marginality and exclusion. As the authors make clear, the resultant policing practices project the patterns of inequality and racial discrimination observed by Reiner in domestic policing onto a global canvas.
The next two chapters by Hoogenboom and Punch and by Waddington each, in very different ways, explore facets of policing and policing research. Hoogenboom and Punch trace the development of police research and the particular contributions made by policing scholars across several jurisdictions including the US, Canada, South Africa, the UK, and, not least, the Netherlands. In his chapter, Waddington takes on the 'authorised version' of 'cop culture', namely that a monolithic and largely negative culture of the police station and the police canteen influences police action. Waddington's argument is that it is a mistake to assume that police share a homogeneous culture, that this culture sets the police apart from society, and that it is determinative of their behaviour. Drawing upon a wide-ranging array of research studies, Waddington paints an illuminating picture of the complexities of police culture and the contradictory roles it plays in relation to police conduct.

The three chapters that follow each address different facets of media representation of policing and criminal justice. The first of these, by Heidensohn and Brown, picks up on Reiner's observation that in the 1990s a 'new fashion for female cop heroes' arose. Heidensohn and Brown trace the emergence and history of women in TV cop shows in order to explore the complex relationship between fictional portrayals and the changing realities of policing by women. Their analysis parallels and, in so doing, pays homage to Reiner's own extensive analyses of media portrayals of policing, while underlining the continuing marginalisation of women in both policing and police research. The chapter by Greer and McLaughlin draws both upon Reiner's important contributions to a more nuanced understanding of media portrayal of policing and also upon his 1991 work Chief Constables to explore the plight of the 'mediatised Chief Constable' now subject to media coverage 24/7. According to Greer and McLaughlin, the twin burdens of constant media scrutiny and occasional 'trial by media' (whereby the media judge and sentence individuals in the 'court of public opinion') creates an adversarial, volatile news world in which police constables struggle to maintain their public reputation. The next contribution by Graef and Innes likewise explores the quintessentially Reiner-esque themes of media representations of crime and the politics of the police. Their chapter explores the conventions of crime reporting, develops a typology of the different policing narratives employed by new media, and considers their impact upon public understanding of policing. Taking as its substantive focus some of the key events of 2011 (the phone-hacking scandal, the summer riots and the police reforms introduced by the coalition government), the chapter looks beyond the mass media, which has been Reiner's main focus, to examine the implications of social media communications in shaping our responses to and engagement with crime problems. It concludes with concerns about the vulnerabilities inherent in the 'new' politics of policing developed by the coalition government that are evocative of Reiner's lament for a social democratic politics of policing.

Manning's chapter returns to questions of police culture and the ways in which representations of policing are mediated in social life. In so doing, Manning seeks to complement Reiner's largely 'secular' accounts of policing by interrogating the 'sacred side' of policing that instead emphasises its dramaturgical character. Manning's focus is thus upon the symbols, scripts, scenes and multifarious other means through which the police represent themselves. This classic social interaction perspective echoes Reiner's own deep commitment to theoretically informed sociological enquiry and the chapter provides a wealth of insights into the ways in which the police serve, as Manning observes, as 'a rich source of individual and collective dramas of control'.

The next chapter by Levi and Maguire traces developments in policing policy and practice over the past decade. It argues that although the introduction of 'intelligence-led policing' promised altogether more scientific, rationalised policing practices, the reality has been more faltering and patchier than early proponents envisaged. Levi and Maguire show that, by contrast, real change has been brought about in other areas such as the setting up of Multi-Agency Public Protection Arrangements (MAPPA); the introduction of Integrated Offender Management (IOM) to tackle prolific property offenders; and the growing focus on economic and financial crime. As the authors demonstrate, a particular feature of these developments is the changing patterns of partnership between the police and other agencies in both public and private sectors.

Jones, Newburn and Smith focus upon a different and potentially more seismic change in policing portended by the introduction of directly elected Police and Crime Commissioners (PCC). Their chapter speaks directly to Reiner's on-going concern with the police as agents of the state monopoly of force, the implications of this fact for the role of the police in a social democracy, and, in turn, for their democratic accountability. It is no surprise, then, that this chapter engages closely with Reiner's writings and, in particular, with his insistence on the desirability of multiple accountability mechanisms capable of addressing the multi-faceted nature of the problem in preference to simple, single solutions such as local electoral control. The second half of the chapter provides a critical analysis of the introduction of Police and Crime Commissioners, the political drivers behind this reform, its aims and objectives, and the many important challenges that it faces: in ensuring local participation, in guarding against majoritarian override and in ensuring police responsiveness. On these and a host of other issues, Jones, Newburn and Smith suggest abundant grounds for concern and their conclusion strikes a decidedly Reiner-esque note of caution about the likely success of the PCC initiative.

The topic of Downes and Morgan's chapter focuses on a more specific but no less critical question for contemporary criminal justice, namely the age of criminal responsibility. It explores the implications of Reiner's analysis in his Law and Order: An Honest Citizen's Guide to Crime and Control (2007) for the setting of the age of criminal responsibility. And it asks why, despite long-standing pressure to do so, the minimum age has yet to be raised. The chapter traces the history of the minimum age and examines why it has become a 'red-line' issue, not merely impervious to change but one which no political party is willing to address. The abandonment of any attempt to raise the minimum age of criminal responsibility, despite all the evidence and arguments in its favour, exemplifies for Downes and Morgan exactly that failure of will that grounds Reiner's lament for a social democratic criminology.

In the final chapter, Stenning and Shearing return to big picture policing to address the meta-trends of pluralisation and globalisation in reshaping the nature and contours of policing. Perhaps surprisingly, this is the first chapter in this volume to engage in a sustained analysis of the differences between 'police' and 'policing' and the first to explore in depth the challenges to the institution of the police posed by the emergence of plural police providers - both private and public (or, as the authors prefer, non-state and state). Their chapter also traces the impacts of new technologies, not least surveillance mechanisms that radically transform the hi-tech and virtual end of policing. Like Bowling, Phillips and Sheptycki, Shearing and Stenning are also concerned to explore the ramifications of transnational, international, and global policing organisations and practices. These two themes come together in an insightful analysis of the impact of private transnational policing operations in the realm of Transnational Commercial Security (TCS) and an exploration of the profound challenges that such developments pose for policing and policing research. Their conclusion that the 'evolution of policing', to borrow Reiner's term, can only be understood by looking beyond the police and policing itself to address much larger questions about changing patterns of governance and the factors underlying these changes chimes with the extraordinary breadth and high ambition of Reiner's own work.

Albeit mainly focused on just one central strand in Robert Reiner's work - policing and the police - the essays in this volume reflect the wide range of his achievements: as an astute commentator on the broad political economy of crime and punishment, as a skilled and sensitive ethnographer, as a perceptive analyst of institutional dynamics and as a far-sighted reader of the cultural significance of criminal justice practices. They stand, in short, as a fitting tribute to a remarkable scholar.

Lucia Zedner and Nicola Lacey



Children and Cross-Examination Time to Change the Rules?
Edition: 1st
Format: Paperback
Author: Edited by John R Spencer and Michael E Lamb
ISBN: 9781849463072
Publishers: Hart Publishing
Price: £30
Publication Date: June 2012

In 2009, Stephen Barker was convicted of rape on the evidence of a little girl who was four-and-a-half years old at the trial, and about three-and-a-half when first interviewed by the police. The high point of the proceedings was the child's appearance as a live witness in order for Barker's counsel to attempt a cross-examination.
 
This case focused attention on the need, imposed by current English law, for even tiny children to come to court for a live cross-examination.
 
In 1989, the Pigot Committee proposed a scheme under which the whole of a young child's evidence, including cross-examination, would be obtained out of court and in advance of trial. In 1999 a provision designed to give effect to this was included in the Youth Justice and Criminal Evidence Act, but it has not yet been brought into force.
 
The full Pigot proposal was implemented, however, in Western Australia, and similar schemes operate in a number of European jurisdictions. This book of essays examines a number of these schemes, and argues the case for further reforms in the UK.
 

The Authors

John R Spencer QC is Professor of Law and a Fellow of Selwyn College at the University of Cambridge.
Michael E Lamb is Professor of Psychology and a Fellow of Sidney Sussex College, at the University of Cambridge

Contents

Contributors
Table of Cases
Table of Legislation
1. Introduction
JR Spencer
2. 'Kicking and Screaming'the Slow Road to Best Evidence
Joyce Plotnikoff and Richard Woolfson
3. Alternative Routes: Accusatorial Jurisdictions on the
Slow Road to Best Evidence
Emily Henderson
4. Children's Evidence in Legal Proceedingsthe Position
in Western Australia
Hal Jackson
5. Cross-Examining the Child Complainant: Rights, Innovations
and Unfounded Fears in the Australian Context
Annie Cossins
6. An Idea Whose Time has Come: The Reform of Criminal Procedure
for Child Witnesses in New Zealand
Emily Henderson
7. Child Witnesses in Austria
Verena Murschetz
8. The Position in Norway
Trond Myklebust
9. Conclusions
JR Spencer
10. The Pigot Report 1989 (reprinted)
Index

From the Introduction

Until a quarter of a century ago, a combination of legal rules made it very difficult for the evidence of a young child to be heard in a criminal court in England and Walesand where it was heard, to be acted on. Specifically, the competency requirement made it impossible for young children to give oral testimony, and the hearsay rule usually made it impossible for their evidence to be delivered to the court by any other meansfor example, by an adult's account of what the child had said to them, or even by an audio or videotape of the child actually saying it. Where children were old and mature enough to satisfy the competency requirement, and could come to court to testify as live witnesses, a collection of sub-rules which can be collectively called the adversarial package then made it difficult for them to communicate their evidence when they got there. The contents of this 'adversarial package' included the rule that required witnesses to tell the whole of their tale in court, right from the beginning, without incorporating or referring back to statements they had previously made; the rule that required prosecution witnesses to give their evidence in the physical presence of the defendant; and the rule that witnesses are 'examined adversarially'meaning that, having first been questioned by someone who wants them to say one thing, they are then cross-examined by another person who wants to make them say the opposite. Finally, in those cases where the child had managed to testify orally, and in the course of it say anything that was coherent, the corroboration requirement required the judge in jury trials to warn the jury, in effect, not to believe it (and in summary trials, required the magistrates, at least in theory, to issue a similar warning to themselves).

During the 1980s this state of affairs was increasingly criticised. Police officers, social workers, paediatricians, child psychiatrists, psychologists, judges, academic lawyers and even a number of practising lawyers raised their voices to say that rules needed to be changed. Prominent public figures pressing for reform included Professor Glanville Williams and Baroness Lucy Faithfull, both regrettably now dead, and Esther Rantzen, happily still very much alive. Organisations concerned with children's welfare also took an active partled, of course, by the National Society for the Prevention of Cruelty to Children (NSPCC). This combined pressure produced important legislative changes. Some initial ones were introduced by the Criminal Justice Act of 1988, and further more important ones by the 2 JR Spencer Criminal Justice Act of 1991, a piece of legislation which implemented some (though unfortunately not all) of the recommendations of the Pigot Committee in 1989. Eight years later came the report called Speaking up for Justice, which recommended further reforms to the law of evidence, this time for the benefit of vulnerable witnesses generally. This led to further important reforms in the Youth Justice and Criminal Evidence Act 1999.



Criminal Evidence and Human Rights
Reimagining Common Law Procedural Traditions
Edition: 1st
Format: Hardback
Author: Edited by Paul Roberts & Jill Hunter
ISBN: 9781849461726
Publishers: Hart Publications
Price: £55
Publication Date: May 2012
 

Publisher's Title Information

Criminal procedure in the common law world is being recast in the image of human rights. The cumulative impact of human rights laws, both international and domestic, presages a revolution in common law procedural traditions. Comprising 16 essays plus the editors' thematic introduction, this volume explores various aspects of the 'human rights revolution' in criminal evidence and procedure in Australia, Canada, England and Wales, Hong Kong, Malaysia, New Zealand, Northern Ireland, the Republic of Ireland, Singapore, Scotland, South Africa and the USA. The contributors provide expert evaluations of their own domestic law and practice with frequent reference to comparative experiences in other jurisdictions. Some essays focus on specific topics, such as evidence obtained by torture, the presumption of innocence, hearsay, the privilege against self-incrimination, and 'rape shield' laws. Others seek to draw more general lessons about the context of law reform, the epistemic demands of the right to a fair trial, the domestic impact of supra-national legal standards (especially the ECHR), and the scope for reimagining common law procedures through the medium of human rights.
 
This edited collection showcases the latest theoretically informed, methodologically astute and doctrinally rigorous scholarship in criminal procedure and evidence, human rights and comparative law, and will be a major addition to the literature in all of these fields.

The Authors

Paul Roberts is Professor of Criminal Jurisprudence, University of Nottingham.
Jill Hunter is Professor of Law, University of New South Wales.
Contents
Table of Contents
Acknowledgements ................................................................................... v
Dedication .............................................................................................. vii
List of Contributors ................................................................................. xi
Table of Cases ........................................................................................ xiii
Table of Legislation ............................................................................. xxxi
IntroductionThe Human Rights Revolution in Criminal
Evidence and Procedure ............................................................................ 1
Paul Roberts and Jill Hunter
1. A Constitutional Revolution in South African
Criminal Procedure? .......................................................................... 25
PJ Schwikkard
2. Human Rights in Hong Kong Criminal Trials ................................... 55
Simon NM Young
3. Right to Counsel During Custodial Interrogation in Canada:
Not Keeping Up with the Common Law Joneses ............................... 79
Christine Boyle and Emma Cunliffe
4. Degrading Searches and Illegally Obtained Evidence in the
Malaysian Criminal Justice System .................................................. 103
Salim Farrar
5. Human Rights, Constitutional Law and Exclusionary
Safeguards in Ireland ....................................................................... 119
John Jackson
6. The Exclusion of Evidence Obtained by Violating a
Fundamental Right: Pragmatism Before Principle in
the Strasbourg Jurisprudence ........................................................... 145
Andrew Ashworth
7. Normative Evolution in Evidentiary Exclusion: Coercion,
Deception and the Right to a Fair Trial .......................................... 163
Paul Roberts
8. Ozymandias On Trial: Wrongs and Rights in DNA Cases .............. 195
Jeremy Gans
x Table of Contents
9. Delayed Complaint, Lost Evidence and Fair Trial: Epistemic
and Non-epistemic Concerns ........................................................ 215
David Hamer
10. 'Give Us What You Have'Information, Compulsion and
the Privilege Against Self-Incrimination as a Human Right ............ 239
Andrew L-T Choo
11. The Presumption of Innocence as a Human Right ......................... 259
Hock Lai Ho
12. Confronting Confrontation ............................................................ 283
Mike Redmayne
13. Human Deliberation in Fact-Finding and Human Rights
in the Law of Evidence .................................................................. 309
Craig R Callen
14. Reliability, Hearsay and the Right to a Fair Trial
in New Zealand ............................................................................. 327
Chris Gallavin
15. Finessing the Fair Trial for Complainants and the Accused:
Mansions of Justice or Castles in the Air? ..................................... 347
Terese Henning and Jill Hunter
16. Human Rights, Cosmopolitanism and the Scottish
'Rape Shield' ................................................................................. 369
Peter Duff
Index ..................................................................................................... 391

From the Introduction

THIS VOLUME EXPLORES the impact, in theory and practice, of the on-going 'human rights revolution' on the law of criminal evidence and procedure in a variety of common law jurisdictions. Human rights legislation, case-law and principles are transforming criminal evidence and procedure across the common law world. However, there is marked diversity not onlyas one would expectin the technical doctrinal adaptations improvised by individual legal systems, but also in the pace and extent of human rights-inspired innovation. Some jurisdictions, such as Canada and New Zealand, already have several decades' experience in reviewing and sometimes adjusting their criminal procedures to the dictates of human rights norms, especially the right to a fair trial. Others, for example the State of Victoria and the Australian Capital Territory, are just embarking upon similarlegislative experiments.1 Another group of jurisdictions, notably including the Republic of South Africa and Hong Kong, have embraced international fair trial standards as part of reformed and rededicated constitutional frameworks.

In the United Kingdom's criminal law jurisdictions, the Human Rights Act 1998 has now been in force for over a decade.Its impact on criminal procedure and evidence has already been profound, and the process of transformation is by no means complete. A striking feature of these developments has been the growing influence of the Strasbourg-based European Court of Human Rights on the domestic criminal procedure jurisprudence of England and Wales, Scotland and Northern Ireland.

Review

Human Rights are so important that this subject should be at the forefront of all training for those who have even the slightest interest in the Criminal Justice System wherever they live or practice law.

Rob Jerrard



Parliamentary Elections, Representation and the Law
Edition: 1st
Format: Hardback
Author: Caroline Morris
ISBN: 9781849461474
Publishers: Hart Publishing
Price: £40
Publication Date: May 2012

Publisher's Title Information

Parliamentary elections are the foundation of the democratic State, providing legitimacy to government and an opportunity for citizens to participate in the democratic process. But despite the crucial role of elections in government and society, the law governing them is fragmented, both conceptually and in terms of the legal framework.
 
This book examines each stage of the electoral process from the perspective of the candidate seeking to become an MP: eligibility and qualification, the candidate selection process, nominations, disputed elections and then, lastly, disqualification or exit from the House of Commons. Each stage of the process is considered in light of developments in political practice and human rights jurisprudence, and an argument is made for the rethinking and reform of the law of parliamentary candidacy and membership.
 
The book takes into account the reforms ushered in by the parliamentary expenses scandal of 2009, and also looks to the new electoral era that may eventuate under the Liberal Democrat-Conservative Coalition Government.

Contents

TABLE OF CONTENTS
Acknowledgements v
Table of Cases xv
1 Parliamentary Comings and Goings 1
I. THINKING ABOUT ELECTORAL LAW 3
II. THE CHAPTERS 5
2 Mapping out Representation Theory and the Law 7
I. SOME DEFINITIONS 8
II. POLITICAL THEORIES OF REPRESENTATION 10
A. Early Theories 11
B. The Representative as Delegate or Trustee? 15
C. Identity Representation 18
D. Party Representation 22
E. Which Theory Prevails? 24
III. JURISPRUDENCE OF REPRESENTATION 26
A. The Medieval Writs 27
B. Three Common Law Jurists 29
C. The Views of the Courts and Parliament 31
D. Human Rights Law 34
The Legal Background to the Candidature Right 35
Case Law on Representation 36
IV. CONCLUSION 39
3 Candidate Eligibility Laws 41
I. WHO MAY BE A CANDIDATE? 41
A. The Legal Focus of Candidacy 41
B. The Eligibility Provisions 43
C. Recent Developments in Eligibility Legislation 46
II. WHAT IS THE BASIS OF CANDIDATE ELIGIBILITY? 47
A. Diversity, Choice and Rights 48
B. Competency, Conflicts and Integrity 50
Competency 50
Conflicts 50
Personal and Systemic Integrity 51
III. THE HISTORY OF ELIGIBILITY LAWS 52
A. The pre-1700s Era 52
B. 1700 and After 53
The Position of Officeholders 53
C. The Second World War Reforms 54
IV. SHOULD THE LEGAL BASIS OF CANDIDATURE BE CHANGED? 56
A. Lessons from the Commonwealth? 58
V. THE MOMENT OF ELIGIBILITY 60
A. Statutory Refusal of Nomination 61
B. A Common Law Power of Refusal of Nomination? 63
VI. CONCLUSION 67
4 Controverted Elections 68
I. INTRODUCTION 68
II. CHALLENGING EARLY ELECTIONS 71
A. County Court Elections 71
B. Multiple and Concurrent Jurisdictions 73
The Sovereign 73
Chancery 74
Star Chamber 74
The House of Commons 75
III. THE STRUGGLE BETWEEN THE COURTS AND PARLIAMENT FOR CONTROL OVER ELECTIONS 76
A. The Composition Privilege 76
The Tudor Period: the Emergence of the Composition Privilege 77
The Post-Tudor Period: The Establishment of Privilege 77
IV. THE EXCLUSIVE JURISDICTION OF THE HOUSE OF COMMONS 80
A. Election Committees 80
B. The Grenville Act 81
V. THE VICTORIAN REFORMS 82
A. The Early Decades of Change 82
B. The 1860s: from the House to the Courts 83
C. Reform after 1868 85
VI. MODERN PERIOD 86
A. Are Petitions Still Relevant? 86
B. Election Petitions 87
The Grounds for a Petition 87
The Parties to a Petition 88
The Election Court 88
xii Table of Contents
Remedies 89
Judicial Review 90
C. Petitions Reform 91
Standing 91
Access to Justice 97
An Alternative Legal Process for Administrative Errors? 99
VII. CONCLUSION 99
5 Challenging Candidate Selection in the Courts 101
I. INTRODUCTION: MR JEPSON GOES TO COURT 101
II. WHY IS CANDIDATE SELECTION INCREASINGLY IMPORTANT? 102
III. THE LEGAL STATUS OF POLITICAL PARTIES 105
IV. MODELS OF CANDIDATE SELECTION CHALLENGE 109
A. The Club Law Model 109
B. The Employment Law Model 114
Conclusion 116
C. The Quasi-public Law Model 117
V. PARTIES AND PUBLIC LAW IN THE UK 120
A. Statutory Incorporation in the UK 120
B. The Public or Private Nature of Political Parties? 122
C. The Implications of Quasi-public Status 126
VI. CONCLUSION 128
6 Removal from Parliament 130
I. TRADITIONAL MEANS OF REMOVING REPRESENTATIVES 130
A. Statutory and Common Law Grounds of Disqualification 130
B. Disqualification under Parliamentary Privilege 132
Expulsion from Parliament 133
The MPs' expenses scandal and the Government response 137
The Parliamentary Standards Act 143
II. ADDRESSING UNWORTHY CONDUCT IN OTHER WAYS 144
A. The Recall Election 144
B. The Practice of the Recall 145
C. Issues with the Recall 146
III. CONCLUSION 149
7 Reconceptualising and Reforming Electoral Law 150
I. THE NATURE OF ACHIEVING PARLIAMENTARY REPRESENTATION THROUGH LAW 150
Table of Contents xiii
II. NEW DIRECTIONS FOR CANDIDACY AND MEMBERSHIP LAW? 153
A. A new Speaker's Conference 154
Consolidation/systematisation of electoral law 155
Consolidation of eligibility law 155
The Role of the Electoral Commission 155
C. Other reforms 156
Nominations 156
Candidate selection litigation 156
Petitions 156
Bibliography 159
Index 169
xiv Table of Contents

The Author

Caroline Morris is a Lecturer in Law at Queen Mary, University of London.



Studies in International and Comparative Criminal Law - no. 9
Hybrid and Internationalised Criminal Tribunals - Selected Jurisdictional Issues
Edition: 1st
Format: Hardback
Author: Sarah Williams
ISBN: 9781841136721
Publishers: Hart Publications
Price: £75
Publication Date: April 2012

Publisher's Title Information

In recent years a number of criminal tribunals have been established to investigate, prosecute and try individuals accused of serious violations of international humanitarian law and international human rights law. These tribunals have been described as 'hybrid' or 'internationalised' tribunals as their structure and applicable law consist of both international and national elements. Six such tribunals are currently in operation: the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the International Judges and Prosecutors Programme in Kosovo, the War Crimes Chamber for Bosnia and Herzegovina, the Iraqi High Tribunal and the Special Tribunal for Lebanon. The Special Panels for Serious Crimes in East Timor suspended operation in May 2005, although there continues to be some international involvement in investigation and prosecution of serious crimes. Suggestions have also been made that this model of tribunal would be appropriate for the prosecution of atrocities committed in, among others, Burundi, the Sudan, the Democratic Republic of Congo, Kenya and Liberia, as well as for a wider range of international crimes, most recently piracy.
 
The key aims of this book are: to place the model of hybrid and internationalised tribunals in the context of other mechanisms to try international crimes; to examine the increasing demand for the establishment of hybrid and internationalised judicial institutions and the factors driving such demand; to define the category of 'hybrid and internationalised tribunals' by examining the key features of the existing and proposed hybrid or internationalised tribunals, as well as the features of those institutions with international elements that are generally excluded from this category; to determine the legal and jurisdictional bases of existing hybrid and internationalised tribunals; to analyse how the legal and jurisdictional basis of a tribunal affects other issues, such as the applicable law, the application of amnesties and immunities and the relationship of the tribunal with the host state, third states, national courts and other international criminal tribunals. The book concentrates on the definitional, legal and jurisdictional aspects of hybrid and internationalised criminal tribunals as this has been the subject of some confusion in arguments before the tribunals and in the judgments of the tribunals. In its concluding section, the book examines the future role of internationalised and hybrid criminal tribunals, particularly in light of the establishment of the ICC, and the potential use of such tribunals in other contexts. It also assesses how hybrid and internationalised tribunals fit into a 'multi-layered framework' of international criminal law and transitional justice.

TABLE OF CONTENTS

Foreword v
Table of Cases xv
Table of Legislation xxvii
Introduction 1
1 The Emerging System of International Criminal Justice 10
I. Introduction 10
II. Prosecution of International Crimes before Domestic Courts 11
A. National Jurisdiction for International Crimes 11
B. Is There an Obligation to Exercise Domestic Criminal
Jurisdiction for International Crimes? 13
C. Challenges of Domestic Prosecution 18
D. Prosecution before National Courts of Third States on the
Basis of Universal Jurisdiction 19
III. Trials of International Crimes before International Courts 28
A. The Post-War Period: The Nuremberg and Tokyo Tribunals
and the Work of the International Law Commission 28
B. The Ad Hoc International Criminal Tribunals 31
i. Establishing the International Criminal Tribunal for the
Former Yugoslavia 31
ii. Establishing the International Criminal Tribunal for Rwanda 33
iii. The Development of the Completion Strategy 34
iv. Relationship between the Ad Hoc Tribunals and National
Jurisdictions 36
v. Conclusion: The Ad Hoc Tribunals and Their Contribution
to International Criminal Justice 44
C. The International Criminal Court 45
i. Establishment 45
ii. Jurisdiction 46
iii. 'Complementary' Justice: The System of International
Criminal Justice as Contemplated by the Rome Statute 50
iv. Conclusion 55
IV. Conclusion 55
2 Hybrid and Internationalised Tribunals: A Study of Existing Practice 58
I. Introduction 58
II. Special Court for Sierra Leone 65
A. Background to the Conflict in Sierra Leone 65
B. The Establishment of the SCSL 68
C. Key Features and Jurisdiction 70
III. Special Tribunal for Lebanon 73
A. The Assassination of Rafik Hariri and the Establishment of
the UNIIIC 73
B. Further Attacks and the Establishment of the Special Tribunal
for Lebanon 75
C. Key Features and Jurisdiction 77
IV. Kosovo and the International Judges and Prosecutors Programme 79
A. The Conflict in Kosovo 79
B. Accountability for Violations of International Humanitarian
Law and Human Rights Law 82
C. Key Features and Jurisdiction 84
D. The Situation Following the Declaration of Independence and
the Transfer to EULEX 87
V. UNTAET and the Serious Crimes Process 90
A. The Indonesian Occupation of East Timor, the Consultation
on Independence and International Administration 90
B. The Quest for Accountability for Violations in East Timor 93
C. Key Features and Jurisdiction 95
D. Further Accountability Initiatives and the Re-activation of the
SPSC Process 98
VI. War Crimes Chamber for Bosnia-Herzegovina 101
A. The Conflict in Bosnia and Herzegovina 101
B. Accountability for Human Rights Violations 104
C. Key Features and Jurisdiction 106
VII. Iraqi High Tribunal 109
A. Saddam Hussein's Reign in Iraq 109
B. Occupation of Iraq: May 2003-June 2004 110
C. Establishing the Iraqi High Tribunal 113
D. Key Features and Jurisdiction 117
VIII. Extraordinary Chambers in the Courts of Cambodia 120
A. Regime of the Khmer Rouge 120
B. Accountability for Violations and the Negotiations for the
ECCC 121
C. Key Features and Jurisdiction 128
IX. Conclusion 133
3 Exclusions and Proposals for Future Hybrid and Internationalised
Tribunals 134
I. Introduction 134
II. Institutions with International Elements Not Considered to be
Hybrid or Internationalised Tribunals 135
A. The Nuremberg and Tokyo Tribunals 135
x Table of Contents
B. Serbian War Crimes Chamber 139
C. The Lockerbie Court 140
D. Other Institutions 144
E. Conclusion 148
III. Proposed Hybrid and Internationalised Tribunals 149
A. Special Tribunal for Burundi 149
B. The Special Court for Darfur, Sudan 152
i. The Discussion Surrounding the Referral to the
International Criminal Court 153
ii. The ICC and the Arrest Warrant for President Bashir 155
C. Specialised Chamber in the Democratic Republic of the Congo 157
D. An Extraterritorial Piracy Tribunal 161
E. Special Tribunal for Kenya 172
F. The Extraordinary Criminal Court for Liberia 178
G. Special Tribunal for the Trial of Hissène Habré 182
IV. Conclusion 185
4 Hybrid and Internationalised Tribunals: In Search of a Definition 187
I. Introduction 187
II. What is Driving the Demand for Hybrid and Internationalised
Tribunals? 189
A. Circumstances Leading to Establishment 191
B. Existence of an International Criminal Tribunal with
Jurisdiction 196
C. The Applicable Legal Framework 200
D. Conclusion 201
III. Is There a Definition of a Hybrid and Internationalised Tribunal? 201
A. Criminal Judicial Function 202
B. Duration of the Tribunal 202
C. Participation of International Personnel 204
D. Location of the Tribunal 206
E. Involvement of the International Community, in particular
the United Nations 206
F. Funding Mechanism 210
G. Legal Basis, Legal Capacity and Powers 212
H. Jurisdiction: An Introduction 214
I. Temporal Jurisdiction 215
J. Territorial Jurisdiction 218
K. Personal Jurisdiction 219
L. Material Jurisdiction 227
i. Factors for the Inclusion of International Crimes 227
ii. Must Hybrid and Internationalised Tribunals Exercise
Jurisdiction in Respect of International Crimes? 232
iii. Factors for the Inclusion of Ordinary Crimes 243
Table of Contents xi
iv. Is There a Requirement for the Jurisdiction of Hybrid and
Internationalised Tribunals to Include Ordinary Crimes
under Domestic Law? 246
v. Conclusions 248
M. Relationship with Other Institutions 248
N. Conclusion: Is there a Definition? 249
5 Legal and Jurisdictional Bases of Hybrid and Internationalised
Tribunals 253
I. Introduction 253
II. Tribunals Established by the Security Council 254
A. The Power of the Security Council to Establish an Ad Hoc
Tribunal 254
B. Can the Security Council Establish a Hybrid or
Internationalised Criminal Tribunal? 259
C. The Ambiguous Legal Basis of the STL 260
D. The STL as a 'Treaty-Based' Tribunal 262
E. Resolution 1757 as the Legal Basis for the STL 267
F. Which Option Did the Council Intend? 268
G. Conclusion 269
III. Tribunals Established by Treaty 271
A. General 271
B. Legal Challenges to the Establishment of the SCSL 273
i. The SCSL as a 'Chapter VII' Court 274
ii. Unlawful Delegation of Powers 278
iii. Arguments Based on a Violation of the Constitution of
Sierra Leone 279
iv. National Institution Arguments 281
C. Conclusion 282
IV. Tribunals Established Under National Law, With International
Elements 282
A. Tribunals Established Under International Administration or
During Military Occupation 282
i. United Nations Administration of Territory: The Legal
Basis of the IJPP and the SPSC 282
ii. International Civilian Administration: The War Crimes
Chamber for Bosnia and Herzegovina 288
iii. Courts Established During Military Occupation: The Iraqi
High Tribunal 289
B. Tribunals Established Under National Law, Operating with
International Assistance: The ECCC 293
C. Conclusion 299
V. Conclusions: Legal Bases of Hybrid and Internationalised Tribunals 300
xii Table of Contents
VI. The Nature of Jurisdiction Conferred on Hybrid and
Internationalised Tribunals 300
A. Introduction 300
B. Territorial Jurisdiction 301
C. Delegation of Jurisdiction from the (Normally) Territorial
State 303
i. Lawfulness of a Delegation of Jurisdiction 305
ii. Do the Differences Between the ICC and the SCSL Preclude
a Delegation of Jurisdiction to the SCSL? 308
iii. Delegation of Universal Jurisdiction: Specific Concerns 311
iv. Conclusion 314
D. Universal Jurisdiction Arising from the Nature of the Crimes 314
E. Jurisdiction Based on the Powers of the Security Council
Under Chapter VII 316
VII. Conclusion 318
6 Legal Barriers to the Exercise of Jurisdiction 321
I. Introduction 321
II. The Principle of Legality 322
III. Immunity 326
A. Introduction 326
B. Nature of Immunity in International Law 326
C. The Internationalised Tribunals 330
i. The International Judges and Prosecutors Programme in
Kosovo 331
ii. The Special Panels for Serious Crimes in East Timor 331
iii. The War Crimes Chamber in Bosnia and Herzegovina 332
iv. The Iraqi High Tribunal 333
v. The Extraordinary Chambers in the Courts of Cambodia 334
vi. Conclusion 335
D. The Hybrid Tribunals 335
i. Treaty-based Hybrid Tribunals: The Special Court for Sierra
Leone 336
ii. Hybrid Tribunals Established by the Security Council: the
Special Tribunal for Lebanon 340
E. Conclusion 346
IV. Amnesties 348
A. Introduction 348
B. Amnesties and the Internationalised and Hybrid Tribunals 351
i. Internationalised Tribunals 352
ii. Hybrid Tribunals 356
C. Conclusion 361
V. Securing Custody of the Accused 363
Table of Contents xiii
A. Introduction: Cooperation and International Criminal
Tribunals 363
B. Cooperation and the Hybrid Tribunals 369
i. Hybrid Tribunals Established by the Security Council: the
Special Tribunal for Lebanon 369
ii. Treaty-Based Hybrid Courts: the Special Court for Sierra
Leone 372
C. Cooperation and Internationalised Tribunals 374
D. Conclusion 378
VI. Statutes of Limitation 380
VII. Ne Bis in Idem 384
A. Judgment by a National Court 384
B. Judgment by a Hybrid or Internationalised Tribunal and
National Courts 387
C. Judgment by a Hybrid or Internationalised Tribunal and the
International Criminal Court 388
D. Conclusion 389
VIII. Relationship with Other Courts and Tribunals 390
A. Hybrid and Internationalised Tribunals and Their Relationship
to Domestic Courts 390
i. Courts Within the Territorial State 391
iii. Hybrid and Internationalised Tribunals Exercising
Supervisory Jurisdiction in Respect of Domestic Courts 396
B. Courts in Third States 398
IX. Hybrid and Internationalised Tribunals and the International
Criminal Court 399
A. Introduction 399
B. Internationalised Tribunals 403
C. Hybrid Tribunals 404
i. Hybrid Tribunals Established on the Basis of a Treaty 404
ii. Hybrid Tribunals Established by the Security Council 406
D. Conclusion 407
X. Conclusion 408
Conclusions 410
Index 459
xiv Table of Contents

The Author

Sarah Williams is a Senior Lecturer at the University of New South Wales, Australia. She was previously the Dorset Fellow in Public International Law at the British Institute of International and Comparative Law, a Legal Researcher at the Foreign and Commonwealth Office of the United Kingdom and a Lecturer in Law at Durham University.



Privacy Injunctions and the Media
A Practice Manual
Edition: 1st
Format: Hardback
Author: Iain Goldrein QC
ISBN: 9781849462846
Publishers: Hart
Price: £125
Publication Date: April 2012

Publisher's Title Information

A string of high profile law suits has drawn attention to a rapidly developing and controversial branch of media law - the use of privacy injunctions to restrain publication of information relating to the private lives of individuals. The purpose of this book is to set out the law relating to privacy injunctions, and best practice in relation to seeking or opposing this form of relief.
 
Such best practice is targeted not just at litigators. This book is aimed also at journalists who are the watchdogs of the freedoms of our society, and other organs of the media.
 
The text is broken down into easily manageable sections, with numerous check-lists and quality control protocols. Applications in the Queen's Bench Division (including personal injury), Family Division (including the President's “Media guidance” and “Reporting Restriction Orders”) and “harassment” are covered, together with a “journalists' check-list”.
 
The book reflects the agenda (included in the foreword to the book) set by Lord Neuberger's Report of 2011 (“Report of the Committee on Super-Injunctions”).
The Author
 
Iain Goldrein QC practises from Chambers on the Northern circuit, Nottingham and London. He is a Visiting Professor in Litigation (the Sir Jack Jacob Chair) at Nottingham Law School, a Companion of the Academy of Experts, and an Accredited Mediator. He is also a Council Member of the International Institute of Experts, Hong Kong.

Contents

Foreword vii
Preface ix
User's Guide xvi
Table of Cases xxi
Table of Legislation xxxv
Part 1 Primary source material and legal principles 1
Part 2 Applicant practice management: Article 6 derogations from
open justice 27
Part 3 The interaction of Articles 8 and 10 49
Part 4 Proportionality 75
Part 5 Practice principles underpinning an Article 8 application 103
Part 6 Case management for Article 8 applications 115
Part 7 Applicant proceedings checklist up to (but not including)
service 147
Part 8 Service checklist for applicants 161
Part 9 Defence practice points in response to an Article 8
application 171
Part 10 Quality control checklist for the courtroom 183
Part 11 Journalist's checklist 193
Part 12 Harassment and the media 197
Part 13 Derogation from open justice and claims by children for
approval of large personal injury awards 227
Part 14 Reporting restriction orders in the Family Division 229

Contents

xx
Part 15 Template model statement 331
Part 16 Mediation 341
Part 17 Practice Guidance: Interim Non-Disclosure Orders 359
Part 18 Examples of orders from the cases (and a model notice of
application) 379
Part 19 Civil Procedure Rules 391
Part 20 Codes of Practice 457
Part 21 Key words highlighted in the Case Digest (and specifi cally
indexed) 463
Part 22 Case Digest 465
Case Digest Keywords Concordance 1155
Index 1159

Foreword

Privacy as a philosophical concept and as a value which society protects is both controversial in scope and content, and it therefore raises many difficult questions. Is it a right, as Warren and Brandeis put it, simply to be 'let alone'1? Or is it more than that? Is it a right which should be protected through a law of general application or should it only be protected in narrowly defined and limited circumstances? How should it relate to other rights? Should it, for instance, always trump freedom of expression when they come into conflict, should it always yield or should a balance be struck between them? If a balance should be struck, how should it be struck and in what circumstances?

The law of England and Wales has traditionally taken a narrow approach to privacy, its scope and content. The common law did not develop a general right of privacy, as the Court of Appeal in Kaye v Robertson affirmed in 1991,2 nor did Parliament introduce one, despite many attempts to do so. In the absence of a general law, the common law developed a limited and fact specific approach, protecting privacy through, for instance, as Lord Cottenham LC noted in Prince Albert v Strange in 1849,3 the law of confidentiality. In 1998 there was, of course, a seismic shift when Parliament enacted the Human Rights Act, and through it incorporated Article 8 of the European Convention on Human Rights into English and Welsh law. This has not, as the House of Lords made clear in Wainwright v Home Office, 4 introduced a statutory general right of privacy into English and Welsh law. It has however, as Parliament understood and the government intended during the 1998 Act's passage, provided a very significant spur to the law of privacy's development, as Lord Phillips MR (as he then was) observed in Douglas v Hello! (No 6).

The enactment of the Human Rights Act 1998 provoked a lively discussion of the impact that it would have on the development of a law protecting privacy. The Government has made it clear that it does not intend to introduce legislation in relation to this area of the law, but anticipates that the judges will develop the law appropriately, having regard to the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms : see the comment of Lord Irvine of Lairg LC in the course of the debate on the Human Rights Bill (Hansard, HL Debates, 24 November 1997, col 771) and the submissions of the United Kingdom in Spencer (Earl) v United Kingdom (1998) 25 EHRR CD 105.5

In this welcome new book on Privacy Injunctions and the Media: A Practice Manual, Iain Goldrein QC provides a clear, insightful and, perhaps most importantly, practical guide to the way in which the courts have developed the law of privacy in the past decade or so. The book provides a readily accessible and properly comprehensive route through the substantive law of privacy as it now stands, its relationship with freedom of expression, and the balance to be struck between them. On its own, and given the ways in which the law has developed, this would be a significant achievement and should, deservedly, see this work become an essential reference work for lawyers, litigants and those generally interested in the law. In addition,Iain Goldrein has provided a detailed guide to the proper conduct of privacy litigation. Anyone wishing to prepare and prosecute a claim effectively ought to pay close attention to this guidance.

In the years to come it is inevitable that the law and practice relating to privacy will continue to develop. Those developments will further define how English and Welsh law deals with issues as to the scope and application of the law of privacy, and the procedure by which respect for privacy is protected and balanced against other substantive rights. That development will undoubtedly be greatly assisted, and shaped, by the insights contained in Goldrein on Privacy Injunctions. I commend it to all those who are interested in the development of the law in this important area, and particularly to those who want practical guidance.

Lord Neuberger of Abbotsbury, MR

1 Warren and Brandeis, 'The Right to Privacy' (1890) 4 Harvard Law Review 193.
2 (1991) FSR 62 at (66)
3 (1849) 1 Mac & G 25, 'In the present case, where the privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend on any legal right; and, to be effectual, it must be immediate.'
4 [2004] 2 AC 4 at [35].



The Constitution of the United Kingdom
Constitutional Systems of the World
Edition: 2nd
Format: Paperback
Author: Peter Leyland
ISBN: 9781849461603
Publishers: Hart Publishing
Price: £12.95
Publication Date: January 2012

This acclaimed book provides a topical and contextual outline of the principles, doctrines and institutions that underpin the United Kingdom constitution. The second edition of The Constitution of the United Kingdom has been extensively rewritten to take account of recent constitutional developments, particularly changes made following the 2010 general election. The chapters are written in sufficient detail for anyone coming to the subject for the first time to develop a clear and informed view of how the constitution is arranged and how it operates. The main themes include: discussion of the history, sources and conventions of the constitution; later chapters deal with: constitutional principles, the role of the Crown, Parliament and the electoral system, government and the executive, the constitutional role of courts including the protection of human rights, the territorial distribution of power between central, devolved and local government, and the European Union dimension. In addition, the book offers an analytical discussion of the development of the constitution, its strengths and perceived weaknesses, and of reforms aimed at its modernisation.

The Author, Peter Leyland is Professor of Public Law at the London Metropolitan University.

Contents

Preface to the Second Edition v
Preface to the First Edition vii
Table of Cases xv
Table of Legislation xix
1 UK Constitution 1
PART I: CONSTITUTIONAL CONTEXTS 1
Introduction 1
What Is Liberal Democracy? 3
Freedom of Expression and the Broadcasting and Print
Media 4
Media Infl uence in Public Life and the News of the
World Hacking Scandal 8
The UK Constitution, Constitutionalism and Good
Governance 11
PART II: HISTORY 14
The Importance of History 14
Qualifying Absolute Monarchy 14
The Emergence of Parliament and the Path to
Democracy 18
Defi ning The Nation: What Is the United Kingdom? 19
Empire, Commonwealth and Europe 21
Conclusion 23
Further Reading 24
2 The Sources of the Constitution 25
Introduction 25
PART I: SOURCES OF THE CONSTITUTION 26
Statute Law 26
x Contents
The Common Law 27
European Union Law 28
European Convention on Human Rights 29
Legal Treatises 30
The Law and Customs of Parliament 31
The Royal Prerogative 31
PART II: CONSTITUTIONAL CONVENTIONS 32
Defi ning Conventions 32
The Practical Importance of Constitutional
Conventions 36
Conclusion 41
Further Reading 43
3 Constitutional Principles 45
Introduction 45
Parliamentary Sovereignty 47
The Rule of Law 66
Separation of Powers 72
Conclusion: Redefi nitions of Power 82
Further Reading 84
4 The Crown and the Constitution 87
Introduction 87
What Is the Royal Prerogative? 89
The Constitutional Role of the Monarch 93
Does the Monarch Retain Real Power? 97
What Is the 'Crown'? 98
Public Interest Immunity 99
Liability of the Crown in Tort and Contract 100
Evaluation: Reform or Abolition? 102
Conclusion 104
Further Reading 105
5 Parliament 107
Introduction 108
PART I: ELECTIONS AND THE HOUSE OF
COMMONS 109
The Electoral System 109
Contents xi
First Past the Post, Alternative Vote or Proportional
Representation? 112
Electronic Voting 114
The House of Commons and the Formation of a
Government 114
PART II: THE HOUSE OF COMMONS 116
The House of Commons and the Role of MPs 116
The Speaker 119
Government and Opposition 119
Parliamentary Privilege 121
Parliamentary Standards, the Conduct of MPs and
the Expenses Scandal 122
PART III: THE HOUSE OF LORDS 126
Introduction and History 126
Composition of the House of Lords 128
House of Lords: What Next? 131
PART IV: PARLIAMENT AS LEGISLATOR 134
Public Bills 135
Private Members' Bills and Private Bills 140
Parliamentary Scrutiny of Delegated Legislation 140
PART V: PARLIAMENT AS WATCHDOG 141
Parliamentary Questions 142
Departmental Select Committees 142
Public Accounts Committee and the National Audit
Offi ce 149
The Parliamentary Ombudsman 152
Conclusion 154
Further Reading 155
6 Government and Executive 157
Introduction 157
The Prime Minister 158
The Prime Minister and the Cabinet 160
The Prime Minister: Policy Formation and
Implementation 164
Prime Minister's Press Offi ce and Government 'Spin' 167
Shaping Government Departments 169
xii Contents
Political Accountability and Individual Ministerial
Responsibility 171
Ministerial Responsibility: Answerability or
Resignation? 172
The Scott Report 174
Ministerial Responsibility and the Press 175
The Civil Service 176
New Public Management and Executive
Accountability 178
The Constitutional Reform and Governance
Act 2010 182
Government Openness and the Freedom of
Information Act 2000 183
E-Government Revolution 186
Conclusion 188
Further Reading 189
7 The Constitutional Role of the Courts 191
PART I: SURVEYING THE CONSTITUTIONAL
ROLE OF THE COURTS 191
Introduction 191
Common Law and Statutory Interpretation 192
Reforming the Offi ce of Lord Chancellor 196
Appointing and Dismissing Judges 199
A Supreme Court for the United Kingdom 202
PART II: ADMINISTRATIVE LAW AND JUDICIAL
REVIEW 204
Introduction to Administrative Law 204
Red Light and Green Light Theory 206
The Impact of Judicial Review 212
Distinguishing Public Law from Private Law 214
The Requirements of Standing 215
Grounds of Judicial Review 217
The Question of Merits 219
Judicial Review Cases 221
PART III: THE COURTS AND THE HUMAN
RIGHTS ACT 1998 223
Contents xiii
Vertical or Horizontal Effect 226
Proportionality Review 228
Conclusion 239
Further Reading 240
8 Devolution and Local Governance 243
Introduction 243
PART I: DEVOLUTION 246
Background to Devolution 246
Scottish Devolution 247
Welsh Devolution 253
Power-Sharing in Northern Ireland 256
Funding Devolution 260
Intergovernmental Relations 262
The Politics of Devolved Government 263
Relations with Europe 266
Devolution and the Courts 267
PART II: DEVOLUTION AND ENGLAND 272
The West Lothian Question 272
English Regional Government 274
An English Parliament? 277
PART III: LOCAL GOVERNMENT 278
Introduction to Local Government in the
United Kingdom 278
Mayor And Assembly for London 279
The Framework of Local Government 282
The Financing of Local Government 284
From Compulsory Competitive Tendering to
Best Value 285
Local Government: Power to the People? 286
Accountability Mechanisms 288
Conclusion 290
Further Reading 293
9 Conclusion: The UK Constitution 295
A Written Constitution, Republican Constitution
or Legal Constitution? 296
xiv Contents
Promoting Citizen Participation and the 'Big Society' 301
The European Constitution, the Treaty of Lisbon and the
European Act 2011 303
What Are the Dynamics of Devolution? 305
Further Reading 306
Index 307



Debating Euthanasia
Debating Law - no. 3
Edition: 1st
Format: Paperback
Authors: Emily Jackson and John Keown
ISBN: 9781849461788
Publishers: Hart Publishing
Price: £15
Publication Date: Dec 2011

Publisher's Title Information

In this new addition to the Debating Law series, Emily Jackson and John Keown re-examine the legal and ethical aspects of the euthanasia debate.
Emily Jackson argues that we owe it to everyone in society to do all that we can to ensure that they experience a 'good death'. For a small minority of patients who experience intolerable and unrelievable suffering, this may mean helping them to have an assisted death. In a liberal society, where people's moral views differ, we should not force individuals to experience deaths they find intolerable. This is not an argument in favour of dying. On the contrary, Jackson argues that legalisation could extend and enhance the lives of people whose present fear of the dying process causes them overwhelming distress. John Keown argues that voluntary euthanasia and physician-assisted suicide are gravely unethical and he defends their continued prohibition by law. He analyses the main arguments for relaxation of the law - including those which invoke the experience of jurisdictions which permit these practices - and finds them wanting. Relaxing the law would, he concludes, be both wrong in principle and dangerous in practice, not least for the dying, the disabled and the disadvantaged.

Contents

Series Editor's Preface v
Acknowledgements - John Keown and Emily Jackson vi-vii
In Favour of the Legalisation of Assisted Dying by Emily Jackson 1
I. Introduction 1
II. Why We Should Try 8
III. The Status Quo is Indefensible 13
A. Double Effect 14
B. Terminal Sedation 16
C. 'Do Not Attempt Resuscitation' Orders 18
D. Treatment Withdrawal 19
E. Exporting the 'Problem' of Assisted Suicide 33
F. The Euthanasia/Assisted Suicide 'Underground' and the Benefits of Regulation 34
IV. Why Might Anyone Think We Shouldn't Try? 37
A. The Sanctity and Value of Life 37
B. Effect on Doctor-Patient Relationship 43
C. Regulatory Difficulties 47
V. What Might an Assisted Dying Law Look Like? 62
A. Other Countries' Experience 62
B. Process 66
C. Method: Assisted Suicide or Euthanasia, or Both? 70
D. Substance 73
VI. What are the Consequences of not Trying? 80
Against Decriminalising Euthanasia; For Improving Care by John Keown 83
I. Introduction 83
II. Definitions 86
III. Ten Arguments For Decriminalisation 87
A. Autonomy 87
B. Compassion 101
C. Legal Hypocrisy 105
D. A Right to Suicide 110
E. Public Opinion 113
F. Legal Failure 114
G. The Netherlands 118
H. Oregon 128
I. Religion 136
J. Economics 138
IV. Professor Jackson's Arguments 139
A. Jackson 1 140
B. Jackson 2 157
V. The Joffe Bill 164
A. The Bill 164
B. Key Committee Recommendations Not Adopted 165
C. Extension and Abuse 166
VI. Conclusions 170
Bibliography 175
Index 179
x Contents

The Authors

Emily Jackson is a Professor of Law at the London School of Economics.
 

John Keown holds the Rose F Kennedy Chair in Christian Ethics in the Kennedy Institute of Ethics at Georgetown University. Formerly, he taught the law and ethics of medicine in the Faculty of Law at Cambridge, where he was a Fellow of Queens' College and of Churchill College



Sitting in Judgment - The Working Lives of Judges
Edition: 1st
Format: Hardback
Author: Penny Darbyshire
ISBN: 9781849462396
Publishers: Hart
Price: £27.50
Publication Date: Sept 2011

Publisher's Title Information

The public image of judges has been stuck in a time warp; they are invariably depicted in the media - and derided in public bars up and down the country - as 'privately educated Oxbridge types', usually 'out-of-touch', and more often than not as 'old men'. These and other stereotypes - the judge as a pervert, the judge as a right-wing monster - have dogged the judiciary long since any of them ceased to have any basis in fact. Indeed the limited research that was permitted in the 1960s and 1970s tended to reinforce several of these stereotypes. Moreover, occasional high profile incidents in the courts, elaborated with the help of satirists such as 'Private Eye' and 'Monty Python', have ensured that the 'old white Tory judge' caricature not only survives but has come to be viewed as incontestable.
 
Since the late 1980s the judiciary has changed, largely as a result of the introduction of training and new and more transparent methods of recruitment and appointment. But how much has it changed, and what are the courts like after decades of judicial reform? Given unprecedented access to the whole range of courts - from magistrates' courts to the Supreme Court - Penny Darbyshire spent seven years researching the judges, accompanying them in their daily work, listening to their conversations, observing their handling of cases and the people who come before them, and asking them frank and searching questions about their lives, careers and ambitions. What emerges is without doubt the most revealing and compelling picture of the modern judiciary in England and Wales ever seen. From it we learn that not only do the old stereotypes not hold, but that modern 'baby boomer' judges are more representative of the people they serve and that the reforms are working. But this new book also gives an unvarnished glimpse of the modern courtroom which shows a legal system under stress, lacking resources but facing an ever-increasing caseload. This book will be essential reading for anyone wishing to know about the experience of modern judging, the education, training and professional lives of judges, and the current state of the courts and judiciary in England and Wales.

Contents

Foreword vii
Acknowledgements ix
1. Introduction 1
2. Images of Judges 18
3 Where Do English andWelsh Judges Come From? 44
4. The First Step on the Ladder: Becoming a Part-time Judge 65
5. Becoming Her Majesty's Judge 84
6. Training 103
7. Judges' Working Personality 117
8. Criminal Business: District Judges in the Magistrates' Court 148
9. Criminal Business: Circuit Judges in the Crown Court 173
10. Judges and Juries 211
11. Civil Business in the County Court 227
12. Family Judges: The Patience of Job and the Judgment of Solomon 260
13. High Court Business 291
14. The Court of Appeal 323
15. Brenda and the Law Lords Transform into the Supremes 358
16. Judges on Judges 406
17. Tools of the Trade 427
18. The World of Judges from 2011 447
Index 457

The Author

Penny Darbyshire has a first in law, a master's degree in criminology and a Ph D in socio-legal studies. She has been a lecturer, senior lecturer and reader at Kingston University since 1978. She is also an adjunct associate professor, University of Notre Dame, London Law Centre, and was a visiting lecturer at the University of California at Berkeley, from 1992 until 1993. She was a visiting fellow at Wolfson College, Cambridge in 2005.

Reviews to Date

Penny Darbyshire, the author of this impressive work, has a first degree in law, a master's in criminology and a PhD in socio-legal studies. With those qualifications and existing research expertise in the legal system under her belt she was well placed to take on the formidable task of revealing the truth about the working lives of judges...The findings are a testament to her skill as a researcher and the book is a testament to her skill as a writer. Anyone who is interested in judges and the courtroom should read this truly unique book. I predict that they will not be disappointed and I will not be surprised if Penny Darbyshire wins an award or two for this book. Professor Penny Cooper Expert Witness Institute Newsletter December 2011
 
Sitting in Judgment: The Working Lives of Judges by Penny Darbyshire, is a weighty work. She has spent seven years researching the judiciary and sitting alongside them. The result is a rare exposé of what judges do, think and how they and the system have changed.…Darbyshire's painstaking work contains some gems and sheds some light on a world that remains remote to most. Frances Gibb The Times 29th September 2011
 
Although little she says will come as a surprise to anyone who has ever spoken to a judge, Darbyshire has some justification for contrasting the fruits of her academic research with the 'cruel and lazy journalism' that has left the public imagining the typical judge to be an 'archaic media folk-devil' dressed up like a pantomime character…Darbyshire's book is probably at its most revealing in showing how judges used to be appointed before the system was reformed; some, she discovered, had applied unsuccessfully for silk and were offered a seat on the circuit bench as a consolation prize. She reminds us, though, of a system in which all judges were appointed by a cabinet minister. Joshua Rozenberg Law Society Gazette 6th October 2011

Foreword

By Lord Judge, Lord Chief Justice of England and Wales
This is an illuminating and intriguing study of the way in which judges throughout England and Wales actually work. It reveals the practical day. to day realities, not the myths nor the theories nor the misconceptions. It tells us a great deal about the stresses and strains of judicial life and provides penetrating insights into the attitudes of judges to their responsibilities and the way in which they approach them.
Until recently research of this kind would not and did not happen. It was an essential feature of my personal willingness to offer my support for this proposed research that it should be approached with an open mind and without preconceptions. These were preconditions. On the other hand, if they were satisfied, then there would be no attempt to exert any form of editorial control. It was obvious from my first meeting with Dr Darbyshire that her objective was to discover and report the facts rather than seek to find material which would support any pre-existing prejudices, and that equally, she would not countenance any form of such control. Once the ground rules were established, as she explains, she was given unrestricted access to a vast body of judges. The 'absolute transparency of which she speaks is perhaps best illustrated by the fact that she sat in with judges in the Court of Appeal and Supreme Court as they deliberated with each other.
The research method was direct observation. Dr Darbyshire spent long periods over several years, sitting in court with judges exercising their different jurisdictions in crime, civil and family work (but not the Tribunals) from the Supreme Court to district judges sitting in the County Court, trying civil cases, and the Magistrates' Courts, trying criminal cases. She did so in the context of discussions of the relevant issues with the judges, so that she could see for herself how the judicial mind was working. She recorded their responses, and the responses of their colleagues who she met, for example, at lunch, to broader issues affecting the judiciary and she saw for herself the problems which judges encounter. She noted, too, areas where she felt criticism was justified as well as concerns expressed by individual judges themselves about different aspects of the system in which they work.
The result of what I believe to be the first research of this kind, certainly in this country, is vividly, yet fairly described. It will be welcomed by anyone who wishes to be better informed about today's judges and the ways in which their responsibilities are discharged.



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