Hart Publishing Ltd
"INTERNET LAW BOOK REVIEWS" PROVIDED BY - Rob Jerrard LLB LLM (London)

Books by Hart Publishing Ltd

The Publisher's aim is a simple one: to publish good academic books and journals about law which will enhance the study and practice of law in all its aspects.

Hart Publishing have been highly commended in the 'Academic, Educational & Professional Publisher of the Year' category at The Bookseller Industry Awards 2012.


Hart Publishing Ltd Books Reviewed in 2013


The Privilege Against Self-Incrimination and Criminal Justice
Volume 10 Criminal Law Library Series
Edition: 1st
Format: Hardback
Author: Andrew L-T Choo
ISBN: 9781841133171
Publishers: Hart
Price: £45
Publication Date: Jan 2014

Publisher's Title Information

The privilege against self-incrimination is often represented in the case law of England and Wales as a principle of fundamental importance in the law of criminal procedure and evidence. A logical implication of recognising a privilege against self-incrimination should be that a person is not compellable, on pain of a criminal sanction, to provide information that could reasonably lead to, or increase the likelihood of, her or his prosecution for a criminal offence. Yet there are statutory provisions in England and Wales making it a criminal offence not to provide particular information that, if provided, could be used in a subsequent prosecution of the person providing it. This book examines the operation of the privilege against self-incrimination in criminal proceedings in England and Wales, paying particular attention to the influence of the European Convention on Human Rights and the Human Rights Act 1998. Among the questions addressed are how the privilege might be justified, and whether its scope is clarified sufficiently in the relevant case law (does the privilege apply, for example, to pre-existing material?). Consideration is given where appropriate to the treatment of aspects of the privilege in Australia, Canada, India, New Zealand, the USA and elsewhere.

The Author, Andrew Choo is a Professor of Law at City University London and a barrister at Matrix Chambers.


Preface

The law of England and Wales, in common with that of other jurisdictions, purports to recognise a privilege against self-incrimination. Much has been published over the years on the overlapping, and larger, topic of the right to silence, and this trend looks set to continue. In comparison, the volume of contemporary literature focusing specifically on issues arising from instances of legal compulsion to provide potentially self-incriminatory information to officials has been considerably smaller. This literature does not include a book-length treatment of the operation of the privilege against self-incrimination in criminal proceedings in England and Wales. It is hoped that the present book will fill the gap and, in doing so, will highlight the doctrinal and theoretical issues that are of particular contemporary concern.

While I hope that the reader will find in it an adequate coverage of the relevant law of England and Wales, this book is not intended to be a comprehensive work of reference and it is not my aim to provide a detailed treatment of all key doctrinal principles. I have often allowed quotations of particular judicial or academic observations to 'speak for themselves', in order to convey accurately their thrust and flavour and, quite regularly, the confusion inherent in them. I hope too that such a strategy may on occasion enable practitioners' attention to be drawn readily to useful material which they will not otherwise have easily uncovered. The references to the academic literature that appear in the footnotes (and in the bibliography) may be used as a starting point for further reading. Throughout the book, consideration is given, where it is felt that it would be enlightening to do so, to the treatment of particular aspects of the privilege against self-incrimination in other jurisdictions. The bulk of the research and writing was completed between late March and early June 2013, and I generally stopped collecting new material, both primary and secondary, after late May 2013. I hope therefore that the law as stated in the book is generally up to date as at the spring of 2013, but every effort has been made to incorporate consideration of anything that has come to hand since then.

In relation to two matters of case citation on which practice is not uniform, I have followed the recommendations made in the fourth edition (Oxford, Hart Publishing, 2012) of the Oxford Standard for the Citation of Legal Authorities ('OSCOLA'). The first recommendation is this: 'Give the year of judgment (not publication) in round brackets when the volumes of the law report series are independently numbered, so that the year of publication is not needed to find the volume' (page 14). The second is this: 'In some specialist law reports, cases are given case numbers which run consecutively through the volumes, rather than page numbers. . . . In such cases, follow the citation method used by the series in question' (page 18). Thus, for example, O'Halloran and Francis v UK, decided in 2007 and reported in 2008 in volume 46 of the European Human Rights Reports as case number 21, commencing at page 397, is cited as '(2007) 46 EHRR 21' rather than as '(2007) 46 EHRR 397' (as on Lexis), '(2008) 46 EHRR 21' (as on Westlaw) or '(2008) 46 EHRR 397'.

It has been a great pleasure working with Hart Publishing, and I am especially grateful to Richard Hart, Rachel Turner and Tom Adams for their courteous professionalism and patience. I am also indebted to a large number of other individuals for their (sometimes unwitting) assistance with this project. Within the legal academy I have received comments from, or benefited from more general discussions with, a good number of specialists in criminal procedure and evidence, including Andrew Ashworth, Ian Dennis, Sue Easton, Dimitrios Giannoulopoulos, Richard Glover, Jill Hunter, John Jackson, Roger Leng, Jenny McEwan, Susan Nash, David Ormerod, Abenaa Owusu-Bempah, Mike Redmayne, Andy Roberts, Paul Roberts, Jonathan Rogers, Jennie Temkin and Simon Young. I presented some of my earlier and more tentative ideas on the privilege against self-incrimination at the University of Nottingham (in February 2010 and September 2010, at two different events), at the University of New South Wales (in April 2010) and at City University London (in February 2013), and I am grateful for the comments that I received from the participants at these various events. The (linked) April 2010 and September 2010 events culminated in the publication of my essay, '“Give Us What You Have” - Information, Compulsion and the Privilege against Self-Incrimination as a Human Right', as a chapter in P Roberts and J Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Oxford, Hart Publishing, 2012) 239-58. Writing the present book has provided me with the opportunity of developing and refining some of the ideas and themes explored originally in that chapter. I must also acknowledge my gratitude to my family as well as to the friends who, over the past several months, have gently and tactfully inquired about the progress of my work, especially Annelies, Mark K, Mark W, Mary, Neil, Sharmila and Vijay. Their support and cheerful encouragement are much appreciated.

AL-T Choo, London, September 2013

More Information on the Publisher's Website about, "The Priviledge Against Self-Incrimination and Criminal Justice 2013"

Criminal Evidence and Human Rights
Reimagining Common Law Procedural Traditions
Edition: 1st
Format: Paperback
Author: Edited by Paul Roberts and Jill Hunter
ISBN: 9781849464956
Publishers: Hart Publishing
Price: £22.50
Publication Date: May 2012

Publisher's Title Information

Criminal procedure in the common law world is being recast in the image of human rights. These essays explore various aspects of the 'human rights revolution' in criminal evidence and procedure in Australia, Canada, England and Wales, Hong Kong, Malaysia, New Zealand, Ireland, Singapore, Scotland, South Africa and the USA.

>
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 Editors

Paul Roberts is Professor of Criminal Jurisprudence, University of Nottingham.
Jill Hunter is Professor of Law, University of New South Wales.

Reviews

Criminal Evidence and Human Rights offers Canadian readers valuable exposure to the theory and practice of criminal procedure throughout the common law world, where similar questions about the recognition of human rights in criminal trials are being confronted. The book could, however, just as easily be picked up and appreciated by scholars in other common law or (in recognition of the increasing internationalization of evidence law) civil law jurisdictions, regardless of whether readers are interested in criminal procedure, evidence law, constitutional law or human rights law. Criminal Evidence and Human Rights advances many of the major debates that are currently taking place in these fields and is, therefore, a worthwhile read for anyone who seeks to participate in or to influence these important conversations. Mike Madden Osgoode Hall Law Journal Volume 50, 2013

A superb example of how edited collections should be done… streets ahead of the guesswork that passed as scholarship in the early days of HRA area studies…. [A]lso very well produced… and with a series of chapters on key aspects of the subject by scholars who know their subjects inside out: Andrew Ashworth on the exclusion of evidence; Craig Callen and Paul Roberts each with a chapter on evidence law… To continue its upper trajectory the HRA needs not just the public lawyers but also scholars of the common law and of criminal procedure and evidence to take it seriously. These books prove that the best of them already do" Conor Gearty [2013] Public Law


Freedom of Artistic Expression
Essays on Culture and Legal Censure
Edition: 1st
Format: Hardback
Author: Paul Kearns
ISBN: 9781841130804
Publishers: Hart Publishing
Price: £50
Publication Date: October 2013

Publisher's Title Information

This book presents a unique and comprehensive examination of the human and moral rights of artists. In what is arguably the first exhaustive book-length account of artists' rights, Paul Kearns explores the problems associated with censorship, both from philosophical and legal perspectives, and focuses on the various ways in which the morality of art is legally regulated in different jurisdictions. In relation to human rights, English, French and American law, the law of the European Convention on Human Rights, European Union law and public international law are all closely scrutinised to discover the extent to which they offer protection for artistic freedom.

The author also examines domestic and international law in respect of artists' moral rights, the law of copyright and related laws. In short, the book provides an original, and sometimes controversial, analysis of persistent concerns regarding the legal regulation of the arts universally, doctrinally and theoretically, and seeks to offer an holistic treatment which will appeal to art lawyers, artists and those interested in the future of the arts.

The Author

Paul Kearns is a Senior Lecturer in Law in the University of Manchester, where he teaches Public International Law, Human Rights Law and, as a specialist yet popularLaw, Literature and Art.

More Information on the Publisher's Website about, "Freedom of Artistic Expression"


The International Court of Justice
Edition: 1st
Format: Hardback
Author: Robert Kolb
ISBN: 9781782251880
Publishers: Hart Publisher's
Price: £145
Publication Date: August 2013

Publisher's Title Information

The International Court of Justice (in French, the Cour internationale de justice) , also commonly known as the World Court or ICJ, is the oldest, most important and most famous judicial arm of the United Nations. Established by the United Nations Charter in 1945 and based in the Peace Palace in the Hague, the primary function of the Court is to adjudicate in disputes brought before it by states, and to provide authoritative, influential advisory opinions on matters referred to it by various international organisations, agencies and the UN General Assembly.
 
This new work, by a leading academic authority on international law who also appears as an advocate before the Court, examines the Statute of the Court, its procedures, conventions and practices, in a way that will provide invaluable assistance to all international lawyers. The book covers matters such as: the composition of the Court and elections, the office and role of ad hoc judges, the significance of the occasional use of smaller Chambers, jurisdiction, the law applied, preliminary objections, the range of contentious disputes which may be submitted to the Court, the status of advisory opinions, relationship to the Security Council, applications to intervene, the status of judgments and remedies. Referring to a wealth of primary and secondary sources, this work provides international lawyers with a readable, comprehensive and authoritative work of reference which will greatly enhance understanding and knowledge of the ICJ.
 
The book has been translated and lightly updated from the French original, R Kolb, La Cour international de Justice (Paris, Pedone, 2013), by Alan Perry, Solicitor of the Senior Courts of England and Wales.

The Author

Robert Kolb is Professor of Public International Law at the University of Geneva. He worked as legal adviser at the International Committee of the Red Cross from 1998 to 1999, and has worked occasionally for the International Law Directorate of the Swiss Federal Department of Foreign Affairs and the Section on the Law of Armed Conflicts of the Swiss Army. He is also Counsel for Lalive Attorneys-at-Law, Geneva.

More Information on the Publisher's Website about, "The International Court of Justice"


The British Constitution: Continuity and Change
A Festschrift for Vernon Bogdanor
Edition: 1st
Format: Hardback
Author: Matt Qvortrup
ISBN: 9781849463713
Publishers: Hart
Price: £40
Publication Date: August 2013

Publisher's Title Information

Here constitutional experts, political scientists and legal practitioners present up-to-date and in-depth commentaries on their respective areas of expertise. The book is a comprehensive compendium to the present state of the British constitution.
Vernon Bogdanor once told The Guardian that he made 'a living of something that doesn't exist'. He also quipped that the British Constitution can be summed up in eight words: 'Whatever the Queen in Parliament decides is law.' That may still be the case, yet in many ways the once elusive British Constitution has now become much more grounded, much more tangible and much more based on written sources than was previously the case. It now exists in a way in which it previously did not.
 
However, though the changes may seem revolutionary, much of the underlying structure remains unchanged; there are limits to the changes. Where does all this leave the Constitution? Here constitutional experts, political scientists and legal practitioners present up-to-date and in-depth commentaries on their respective areas of expertise. While also a Festschrift in honour of Vernon Bogdanor, this book is above all a comprehensive compendium on the present state of the British Constitution.

Reviews

'The new constitutional politics has spawned a new constitutional scholarship. This stimulating collection, skilfully put together by Matt Qvortrup, works both as a welcome snapshot of where we are now and as an expert audit, from specialists in law, history and political science, of the deeper issues and of the complex dynamics of continuity and change in the ongoing refashioning of Britain's constitutional architecture.' Kevin Theakston, Professor of British Government, University of Leeds
 
'The highly distinguished team of scholars assembled by Matt Qvortrup has produced a deeply thought-provoking collection on the profound constitutional changes that have occurred in the UK over the last twenty years. A book worthy of reaching a very wide readership.' Roger Scully, Professor of Political Science, Cardiff University
 
'Vernon Bogdanor understands like few others the connections between history, politics and institutions - and that is what makes him such an authority on the British system of government.' The Rt Hon David Cameron MP, Prime Minister
 
'I think Vernon's guiding principle at Brasenose was to treat all his students as if they might one day be Prime Minister. At the time, I thought this was a bit over the top, but then a boy studying PPE at Brasenose two years beneath me became Prime Minister.' Toby Young, The Spectator

The Editor

Matt Qvortrup teaches in Comparative Politics and Constitutional Law at Cranfield University. Qvortrup earned his doctorate at Brasenose College, Oxford. He has worked as a consultant for the Foreign and Commonwealth Office and was a special envoy for the US State Department in the Sudan in 2009. The winner of the PSA Prize for best paper in British Journal of Politics and International Relations in 2012, and the Oxford University Press Law Prize 2012, he is a regular contributor to current affairs programmes on the BBC.


Simester and Sullivan's Criminal Law
Theory and Doctrine
Edition: 5th
Format: Paperback
Authors: AP Simester, JR Spencer, GR Sullivan and GJ Virgo
ISBN: 9781782252061
Publishers: Hart Publishing
Price: £29.99
Publication Date: August 2013

Publisher's Title Information

Simester and Sullivan's Criminal Law Theory and Doctrine Fifth Edition This is the fifth edition of the leading textbook on criminal law by Professors Simester, Spencer, Sullivan and Virgo. Simester and Sullivan is an outstanding account of modern English criminal law, combining detailed exposition and analysis of the law with a careful exploration of its theoretical underpinnings. Primarily, it is written for undergraduate students of criminal law and it has become the set text in many leading universities. Additionally, the book is used as an important point of reference in academic writing and postgraduate research in England and abroad. Simester and Sullivan has been cited by appellate courts throughout the world.
 
There have been a large number of important appellate decisions since the last edition of this work. This new case law, among other things, provides helpful guidance for the interpretation of offences under the Serious Crime Act 2007 and of the defence of loss of control provided by the Coroners and Justice Act 2009. There have been significant developments in the laws relating to rape, self-defence and defence of property, and duress. Special mention should be made of the continuing stream of appellate cases regarding the nature and scope of secondary liability in the crimes of others.

The Authors

AP Simester is Professor of Law at the National University of Singapore and Honorary Research Fellow at the Institute of Criminology, University of Cambridge.
 
JR Spencer QC is Professor of Law at the University of Cambridge and a Fellow of Selwyn College, Cambridge.
 
GR Sullivan is Emeritus Professor of Law at University College, London.
 
GJ Virgo is Professor of English Private Law at the University of Cambridge and a Fellow of Downing College, Cambridge.

More Information on the Publisher's Website about, "Simester and Sullivan's Criminal Law"


Positive Obligations in Criminal law
Edition: 1st
Format: Hardback
Format: also available in Paperback 9781849469890 £22.99
Author: Andrew Ashworth Paperback 9781849469890
ISBN: 9781849465052,
Publishers: Hart (Bloomsbury)
Price: £45 or £22.99
Publication Date: October 2013

Publisher's Title Information

This book offers a set of essays, old and new, examining the positive obligations of individuals and the state in matters of criminal law. The centrepiece is a new, extended essay on the criminalisation of omissions-examining the duties to act imposed on individuals and organisations by the criminal law, and assessing their moral and social foundations. Alongside this is another new essay on the state's positive obligations to put in place criminal laws to protect certain individual rights. Introducing the volume is the author's much-cited essay on criminalisation, 'Is the Criminal Law a Lost Cause?' The book sets out to shed new light on contemporary arguments about the proper boundaries of the criminal law, not least by exploring the justifications for imposing positive duties (reinforced by the criminal law) on individuals and their relation to the positive obligations of the state.
The Author

Andrew Ashworth CBE QC FBA is Vinerian Professor of English Law in the University of Oxford and a Fellow of All Souls College

Review

A very important and well researched book which it is hoped will be read by all, Judges, Law Teachers and Students should use this a a reference. Rob Jerrard


Other Reviews


This is a timely and welcome collection of essays, both old and new, from the pen of someone who, I hesitate to remind him, has been, for not far short of half a century, one of the common law's most distinguished thinkers in the field of criminal law. William Wilson, Criminal Law and Criminal Justice Online Book Reviews

What comes cross throughout this book is how reasonable, principled and practical Ashworth is.

It is...impossible to not be stimulated by this important book. Findlay Stark, The Cambridge Law Journal, Volume 73

Ashworth's excellent, detailed study of various critical doctrines merits reading Meredith Wallis, Law and Politics Book Review, Volume 24, Number 3

...excellent essays on some central topics in the criminal law [and] is likely to be an important point of reference for many years to come.

...the arguments are impeccably researched and referenced, with excellent use of cases and illustrations. Ashworth integrates doctrinal and policy issues, as well as criminalisation and punishment questions, with a mastery of each. A. P. Simester, Singapore Journal of Legal Studies, July 2014

[A] wonderful analysis of the thorny issue of omissions as the basis for criminal offending...Positive Obligations in Criminal Law offers readers quite valuable teachings on a host of subjects that are of everyday concern to the judiciary. Justice Gilles Renaud, Provincial Judges Journal, Winter 2015

More Information on the Publisher's Website about, "Positive Obligations in Criminal law"


European Penology?
Oñati International Series in Law and Society
Edition: 1st
Format: Hardback
Authors: Edited by Tom Daems, Dirk van Zyl Smit and Sonja Snacken
ISBN: 9781849462334
Publishers: Hart Publishing
Price: £60
Publication Date: May 2012

Publisher's Title Information

Is there something distinctive about penology in Europe? Do Europeans think about punishment and penal policy in a different way to people in other parts of the globe? If so, why is this the case and how does it work in practice? This book addresses some major and pressing issues that have been emerging in recent years in the interdisciplinary field of 'European penology', that is, a space where legal scholarship, criminology, sociology and political science meet - or should meet - in order to make sense of punishment in Europe. The chapters in European Penology? have been written by leading scholars in the field and focus in particular on the interaction of European academic penology and national practice with European policies as developed by the Council of Europe and, increasingly, by the European Union.
 
The Editors
Tom Daems is Lecturer in Criminology and Sociology of Law at Ghent University, Belgium. Dirk van Zyl Smit is Professor of Comparative and International Penal Law at the University of Nottingham. Sonja Snacken is Professor of Criminology, Penology and Sociology of Law at the Vrije Universiteit Brussel, Belgium.

Contents

Preface
Tom Daems, Dirk van Zyl Smit and Sonja Snacken
Contributors
Part One: Concepts and Institutions
1. Distinctive Features of European Penology and Penal
Policy-Making
Sonja Snacken and Dirk van Zyl Smit
2. Punishment and the Question of Europe
Tom Daems
3. Knowledge Politics and Penal Politics in Europe
Ian Loader and Richard Sparks
4. The Emerging Role of the EU as a Penal Actor
Estella Baker
5. Approximation of Sanctions within the European Union
Roland Miklau
Part Two: Cross-Cutting Issues
6. The Processes of Criminalisation of Migrants and the
Question of the European Union as a 'Land of Immigration'
Dario Melossi
7. Youth Justice Policy in EuropeBetween Minimum
Intervention, Welfare and New Punitiveness
Frieder Dünkel
8. Community Sanctions and European Penology
Fergus McNeill
9. Remand Detention in Europe: Comparative and Pan-European
Aspects as Elements of a Wider European Penology
Christine Morgenstern
10. Prison Privatisation in Europe and Beyond: Changing States
and Penal Rationalities
Alison Liebling
xii Contents
Part Three: Nationally Based Perspectives
11. Can Prosecutors be too Independent? An Italian Case Study
David Nelken
12. Truth in (the Implementation of) Sentencing:
Belgium and Elsewhere
Kristel Beyens, Sonja Snacken and Dirk van Zyl Smit
13. A Spanish Window on European Law and Policy on
Employment Discrimination Based on Criminal Record
Elena Larrauri and James B Jacobs
14. Penal Developments in Poland: New or Old Punitiveness?
Krzysztof Krajewski
15. Reversing The Punitive Turn: The Case of the Netherlands
René van Swaaningen
Index



Organised Crime and the Law
A Comparative Analysis
Edition: 1st
Format: Paperback
Author: Liz Campbell
ISBN: 9781849461221
Publishers: Hart Publishing
Price: £35
Publication Date: Feb 2013
 

Publisher's Title Information

Organised Crime and the Law presents an overview of the laws and policies adopted to address the phenomenon of organised crime in the United Kingdom and Ireland, assessing the changes to these justice systems, in terms of the prevention, investigation, prosecution and punishment of such criminality. While the notion of organised crime is a contested one, States' legal responses treat it and its constituent offences as unproblematic in a definitional sense. This book advances a systematic doctrinal critique of these domestic criminal laws,laws of evidence and civil processes.
 
Organised Crime and the Law focuses on the tension between due process and crime control, the demands of public protection and risk aversion, and other adaptations. In particular, it identifies parallels and points of divergence between the different jurisdictions in the UK and Ireland, bearing in mind the shared history of subversive threats and counter-terrorism policies. It also examines the extent to which policy transfer is evident in the UK and Ireland in terms of emulating the United States in reacting to organised crime.

Contents

Table of Cases xi
Table of Legislation xxi
Table of International Treaties and Conventions xli
1 Introduction 1
I. The Comparator Jurisdictions 3
II. The Legal Framework 5
III. The International Dimension 7
IV. The Theoretical Lens 9
V. Structural Outline 10
2 Organised Crime: Defining, Measuring and Criminalising the Problem 12
I. Introduction 12
II. Defining Organised Crime 13
III. The Extent of the Problem 20
IV. Criminalising Organised Crime 23
Problems with the Legislation 26
V. What are Organised Crimes? 30
VI. New State Agencies 35
VII. Conclusion 39
3 The Theoretical Framework: Tensions in Criminal Justice 41
I. Introduction 41
II. Competing Demands in the Criminal Process 42
A. Public Protection 47
B. Risk 49
C. A State of Emergency 51
D. Adaptations 54
III. The Judiciary and Due Process - Dialogue Between the Arms of the State 55
IV. Conclusion 61
4 Investigating Organised Crime: Altering the Pre-trial Process 63
I. Introduction 63
II. Access and Disclosure Orders 65
III. Suspicious Activity Reports 70
IV. Surveillance 74
A. Intrusive and Directed Surveillance 77
B. Communications Surveillance 83
i. Interception 83
ii. Communication Records and Traffic Data 85
C. Cross-border Surveillance 87
D. Legitimacy and Legality of Surveillance 88
V. Covert Human Intelligence Sources 91
A. Encouraging Criminality? 96
B. Entrapment 97
VI. Controlled Deliveries 99
VII. Detention 101
VIII. Interrogation 104
Inference-Drawing Provisions 106
IX. Conclusion 109
5 Prosecuting Organised Crime: The Criminal Trial 111
I. Introduction 111
II. Procedural Law Changes 113
A. The Admissibility of Interception Evidence 114
B. Accomplice Evidence 117
Benefits for accomplices 120
III. Threats to Jurors and Witnesses 124
IV. Threats to Jurors 125
A. Restricting the Right to Trial by Jury 125
i. Using Non-jury Trials for 'Ordinary' Crime 128
ii. Non-jury Trials and Human Rights 132
B. Alternative Protections for Jurors 137
C. Concluding Comments on Non-jury Trials 139
V. Threats to Witnesses 141
A. Special Measures 141
B. Previous Inconsistent Evidence 143
C. Witness Protection Programmes 148
D. Anonymous Witness Evidence 152
VI. Conclusion 158
6 Punishing Organised Crime: The Post-Conviction Stage of the Criminal Process 160
I. Introduction 160
viii Table of Contents
II. General Principles of Sentencing 161
III. Sentencing Organised Crimes 162
A. Aggravating Factors in Sentencing 172
B. Concluding Remarks 173
IV. Reduction of Sentences in Return for Assistance 176
V. Confiscation of Property upon Conviction 180
A. Restraint Orders 181
B. Confiscation Orders 183
C. Forfeiture Orders 188
D. Challenges to Confiscation 188
E. Effectiveness of Confiscation 192
VI. Further Ancillary Orders 194
VII. Conclusion 199
7 Beyond the Criminal Realm: Civil Asset Recovery 201
I. Introduction 201
II. The Irish Prototype 202
III. The Proceeds of Crime Acts 204
IV. Interaction between Confiscation and Recovery Powers 211
V. Challenges to Civil Recovery 212
A. Retrospective Punishment 212
B. The Right to Private Property 213
C. The Nature of the Process 214
VI. Success of the Civil Process 221
VII. Further Civil Orders 224
VIII. Conclusion 226
8 Revenue Matters: Taxing Organised Crime 229
I. Introduction 229
II. Taxing the Profits of Illegal Acts 230
III. Appeals against Tax Assessments 234
IV. Challenges to Revenue Powers 235
V. Interplay between Civil Recovery and Revenue Powers 237
VI. Conclusion 238
9 Conclusion 240
I. Introduction 240
II. Explaining the Dominant Narrative 240
III. Recalibrating the Criminal Justice Process 242
IV. Key National Differences 244
V. Concluding Remarks 246
Index 249
Table of Contents ix

The Author

Liz Campbell is Senior Lecturer at the School of Law, University of Edinburgh. This project was supported by the Fulbright Commission.



Toward a Prosecutor for the European Union Volume 1
A Comparative Analysis
Modern Studies in European Law - No. 34
Edition: Volume 1
Format: Hardback
Author: Edited by Katalin Ligeti
ISBN: 9781849463140
Publishers: Hart/Beck
Price: £105
Publication Date: Dec 2012

Publisher's Title Information

In an era in which the EU's influence in criminal law matters has expanded rapidly, attention has recently turned to the possible creation of a European Public Prosecutor's Office. This two volume work presents the results of a study carried out by a group of European criminal law experts in 2010-2012, with the financial support of the EU Commission, whose aims were to examine in detail current public prosecution systems in the Member States and to scrutinise proposals for a new European office.
 
Volume 1 begins with thorough descriptions of 20 different national legal systems of investigation and prosecution, addressing a range of evidential and procedural safeguards. These will serve as a point of reference for all future research on public prosecutors. Volume 1 also contains a series of cross-cutting studies of the key issues that will inform debates about the creation of a European Public Prosecutor's Office, including studies of vertical cooperation in administrative investigations in subsidy and competition cases, the accession of the EU to the ECHR, judicial control in cooperation in criminal matters, mutual recognition and decentralised enforcement of European competition law.
 
Volume 2 (which will be published in 2013) presents a draft set of model rules for the procedure of the European Public Prosecutor's Office and continues with a set of comparative studies of the national legal systems that cover the gathering of evidence, seizure of assets, arrests, tracking and tracing, prosecution measures, procedural safeguards, the presumption of innocence and the right to silence, access to the file and victim reconciliation. Volume 2 concludes with the final report, written by Professor Ligeti, summarising the findings of the group and reporting on the prospects for the proposed reform.



Rose Heilbron, Legal Pioneer of the 20th Century
Edition: 1st
Format: Hardback
Author: Hilary Heilbron
ISBN: 9781849464017
Publishers: Hart
Price: £20
Publication Date: Oct 2012

Publisher's Title Information

Rose Heilbron QC (later Dame Rose Heilbron), was an English barrister, who became a world famous icon of the 1950s and 1960s. She was one of the two first women King's Counsel (later Queen's Counsel) in 1949 and the first woman Judge in England in 1956 when she became Recorder of Burnley. This biography, written by her daughter Hilary, also a barrister and Queen's Counsel, charts her rise to prominence and success against the odds, excelling as an advocate and lawyer and later as only the second female High Court Judge in a career spanning nearly 50 years. She broke down many barriers with a string of firsts in the legal profession. She became a pioneer for women at the English Bar and for women generally, championing many women's causes in an era when it was not fashionable to do so.
 
The biography highlights her role as an inspiring and successful defence advocate in many famous and fascinating cases as well as in cases of great legal importance. These include the Cameo murder case in 1950; the trial of Devlin and Burns for capital murder; the representation of the striking Liverpool Dockers in a case of national importance; the defence of the notorious London gangster, Jack Spot; and the representation, in an early anti-discrmination case, of the world renowned cricketer, Learie Constantine.
 
Also chronicled are her years as a High Court Judge and the wide range of other legal and non-legal activities she undertook as a result of her fame including her appointment by the governmnet in 1975 to chair an Advisory Committee on Rape.
 
With the added insights and recollections of her daughter it portrays a multi-dimensional picture of the young and beautiful Rose Heilbron - barrister, judge, working wife and mother - who not only managed to combine these public and private roles in an era when to do so was extremely rare, but who did so with the combination of warmth, flair and determination which was to make her an internationally acclaimed role model for women.
 
Many people over the years have wanted to write about her: this is the first authorised biography.

The Author

Hilary Heilbron is the only child of the late Rose Heilbron and herself a barrister and Queen's Counsel. She practises commercial litigation and international arbitration in London and in other jurisdictions and sits as an international arbitrator.

From the Foreword by Cherie Blair QC
 
'[an] inspirational pioneer...But it wasn't her novelty that made Rose's career at the Bar such a glittering success. She broke the mould because she was a brilliant advocate and a master of her brief...Rose's daughter gives us in this book a personal and warm insight into Rose, the advocate, with a comprehensive account of a glittering variety of her legal cases from the notorious to the more mundane...the working mum who always found time for her family and...who cared about equality and justice for other women...'



Studies in International and Comparative Criminal Law - no. 11
Counsel Misconduct before the International Criminal Court
Professional Responsibility in International Criminal Defence
Edition: 1st
Format: Hardback
Author: Till Gut
ISBN: 9781849463171
Publishers: Hart Publishing
Price: £78
Publication Date: Nov 2012

Publisher's Title Information

This is the first comprehensive study of the law governing professional misconduct by defence lawyers before the International Criminal Court. The ICC's regulatory regime was introduced in response to instances of misconduct experienced by other international and domestic criminal courts. The book first turns to how the ICC's forerunners - the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone - coped with misconduct, often resulting in controversy. The book also looks at the approaches that have evolved in Germany and the United States, reflecting the different role of defence lawyers in the civil and common law criminal justice traditions.
The book offers a unique insight into the professional responsibilities of defence lawyers within the various international and national regimes. Offering practical guidance on disciplinary systems and other sanctioning mechanisms, it also explores the inherent tension at the heart of the defence lawyer's role: to ensure the human right to a fair trial we want them to be zealous advocates for their clients; at the same time we ask them to commit themselves as officers of the court.

Contents

Preface ix
Acknowledgements xi
Introduction 1
I. Common Professional Standards for Defence Lawyers before the ICC 1
II. Concepts of Professional Conduct, Professional Responsibility and Professional Ethics 2
III. The Various Types of Enforcement Mechanisms in Counsel Regulation 4
Chapter 1 The UN International Criminal Tribunals: ICTY, ICTR and SCSL 6
I. The UN Tribunals: Criminal Justice Steps onto the International Arena Again 6
A. The General Context of the UN Tribunals 7
B. The Defence before the UN Tribunals 9
II. Misconduct before the International Criminal Tribunal for the former Yugoslavia 11
A. The Legal Sources of the ICTY on Counsel Misconduct 11
B. The ICTY's Practice 14
i. Disciplinary Proceedings 14
ii. Contempt of the Tribunal 16
iii. Other Decisions by the Chambers 25
iv. The Registrar 26
v. The Association of Defence Counsel Practising before the ICTY 27
C. The Assessment of the ICTY's Regime in Scholarship 28
i. Critique of Contempt in Particular 28
ii. Comments on the Code of Conduct and the other Aspects of the Disciplinary Regime 32
D. Analysis of the ICTY Regime 33
III. Misconduct before the International Criminal Tribunal for Rwanda 37
A. The Legal Sources of the ICTR on Counsel Misconduct 37
B. The ICTR's Practice 38
i. Disciplinary Proceedings 38
ii. Contempt of the Tribunal 39xiv
iii. Other Decisions by the Chambers 40
iv. The Registrar 42
v. The Defence Lawyers' Association at the ICTR 43
C. Assessment of the ICTR's Regime in Scholarship 44
D. Analysis of the ICTR Regime 44
IV. Misconduct before the Special Court For Sierra Leone 46
A. The Legal Sources of the SCSL on Counsel 46
B. The SCSL's Practice 46
i. Disciplinary Proceedings 46
ii. Contempt of the Special Court 47
iii. Other Measures by the Chambers 47
iv. Appointment and Withdrawal of Counsel 48
C. Analysis of the SCSL Regime 48
V. Conclusion on the UN Tribunals: Lessons to Learn 49
Chapter 2 The National Models: Germany and the United States 51
I. The Two National Models: Commonalities and Differences 51
A. Criminal Defence in Germany 52
B. The German Approach to the Regulation of Counsel 54
C. Criminal Defence in the United States 55
D. The US Approach to the Regulation of Counsel 56
II. Legal Responses to Misconduct: Germany 59
A. The General Layout of the German System 59
B. Specific Measures against Counsel Misconduct 61
i. Professional Discipline 61
ii. Criminal Law 67
iii. Other Measures as Institutional Controls 73
iv. Liability Controls as an Indirect Measure 84
v. Conclusion 85
C. The Procedure for the Various Measures 86
i. Disciplinary Procedure 86
ii. Criminal Procedure 88
iii. The Procedure for Other Measures 88
iv. Analysis of the Applicable Procedures 92
D. The Relationship of the Various Measures 93
i. Multiple Proceedings for the Same Facts 93
ii. Proceedings in Other Jurisdictions and Transnational Work 97
E. Defence Rights and their Impact on the Regulation of Counsel 100
i. Constitutional Guarantees 100
ii. Delineating the Permissible from the Impermissible 101
F. Conclusion on the German Model 105
III. Legal Responses to Misconduct: United States 106
A. The General Layout of the US System 106
B. Specific Measures Against Counsel Misconduct 114
i. Professional Discipline 114
ii. Criminal Offences 124
iii. Other Measures as Institutional Controls 130
iv. Liability Controls 139
v. Conclusion 141
C. Comparison of the Procedure for the Various Measures 142
i. Disciplinary Procedure 142
ii. Procedure for Criminal Offences 145
iii. Procedure for Contempt 147
iv. Other Procedures 150
v. Analysis 154
D. The Relationship of the Various Measures 155
i. General Connections 155
ii. Multiple Proceedings for the Same Facts within the Same
Jurisdiction 158
iii. Proceedings in Separate Jurisdictions 162
E. Defence Rights and their Impact on the Regulation of Counsel 163
i. Chilling Effect and Zealous Advocacy 163
ii. The Engrained Tension 165
F. Conclusion on the US Model 166
IV. A Comparative Assessment 166
Chapter 3 The International Criminal Court's System 170
I. The General Layout of the ICC System of the Regulation
of Counsel 170
A. Introduction to the ICC's Legal Instruments in General 170
B. The Bases for Disciplining Counsel in Particular 173
i. The Statute and the Rules of Procedure and Evidence 173
ii. The Code of Conduct for Counsel and the Rules of Procedure and Evidence of the Disciplinary Board
and the Disciplinary Appeals Board 173
iii. The Regulations of the Court and the Registry 176
II. Specific Measures against Counsel Misconduct 177
A. The Disciplinary System of the ICC 177
i. An Overview of the ICC Code 178
ii. The Nature of Professional Discipline under the ICC
Code and the Burden of Proof in particular 179
iii. The Jurisdictional Scope of the Code and other Issues of Applicability 185
iv. The Definition of Misconduct for the Purpose of
Disciplinary Proceedings 193
v. The Disciplinary Procedure 208
vi. Conclusion 234
B. Criminal Offences under the ICC Statute 237
Contentsxvi
i. Offences in Connection with the Administration of
Justice 237
ii. Offences on Specific Professional Duties or Pertaining to
Financial Irregularities 243
iii. Legal Consequences of Criminal Offences 244
iv. The Procedure for Criminal Offences 249
v. Conclusion on Criminal Offences 251
C. Other Measures as Institutional Controls 252
i. Institutional Controls and Inherent Powers 252
ii. Article 71 of the Statute 256
iii. Other Measures by Chambers 263
iv. Registry Measures against Misconduct 266
v. General Ethics Advice 269
D. Liability Controls: Individual Action against Misconduct 272
E. Self-governing Professional Bodies 274
III. A Comparison and Analysis of the Various Measures 274
A. The Available Measures and their Scope with regard to
Counsel Misconduct 274
B. The Differences in Procedure 278
IV. Defence Rights and their Impact on the Regulation of Counsel 279
V. Assessment of the ICC Regime 283
Chapter 4 The Relationships between the Different Regimes 286
I. The Concurrence of the ICC and National Jurisdictions 286
A. The Multiplicity of Applicable Regimes 286
B. The Conflict of Professional Rules in particular 287
C. Criminal Offences 289
II. Enforcing Professional Discipline 291
A. The ICC Disciplinary Procedure vis-a-vis National Disciplinary
Procedures 291
i. The Nature of Article 38 Complementarity 291
ii. The Application of Article 38 Complementarity 295
B. International Cooperation for ICC Disciplinary Proceedings 297
C. Reciprocal Discipline 298
III. Criminal Proceedings 300
A. ICC Proceedings for Offences under Article 70 of the Statute 300
B. International Cooperation for ICC Criminal Proceedings 302
C. National Criminal Prosecutions 306
IV. The Relationships of Sanctions within the ICC Regime 307
A. Concurrence Issues between the ICC's Enforcement
Mechanisms 307
B. The Relationship of Article 70 Proceedings to Article 71 308
C. The Relationship of Professional Discipline towards
Article 70 and Article 71 Sanctions 308
Contentsxvii
Conclusions on International Counsel and Misconduct 311
I. A Summary of the Study 311
II. Sanctioning Counsel and the Various Types of Enforcement
Mechanisms 313
III. Misconduct and the Double Role of Counsel 316
Bibliography 319
Index 341
Contents

The Author

Till Gut, formerly of the University of Cologne, is a lawyer in the extradition and mutual legal assistance unit of the German Federal Office of Justice.
 


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