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 2014
Author: General Editor Piers von Berg
Publishers: Hart Publishing
Publication Date: November 2014
Criminal Judicial Review
A Practitioner's Guide to Judicial Review in the Criminal Justice System and Related Areas
Publisher's Title Information
This is a comprehensive guide to challenging decisions of criminal courts and public bodies in the criminal justice system using judicial review. Written by a team of criminal and public law practitioners, it considers claims for judicial review arising in the criminal justice system, which now represent a distinct area of public law. These claims are set apart by special considerations and rules; for example, on the limits of the High Court's jurisdiction or the availability of relief during ongoing proceedings.
Criminal practitioners may lack the background to spot public law points. Equally, public law specialists may be unfamiliar with criminal law and types of issues that arise. Criminal Judicial Review is intended as a resource for both.
The book deals with the principles, case law, remedies and, the practice and procedure for obtaining legal aid and costs. It will be of assistance to any practitioner preparing or responding to judicial review claims involving the following:
The Police and the Crown Prosecution Service.
Magistrates' courts, the Crown Court and Coroners.
Prisons and the Parole Board.
Statutory bodies such as the Independent Police Complaints Commission and the Legal Aid Agency.
Claimants who are children, young persons or have mental disorders.
The international dimension including extradition proceedings and European Union law.
Practical considerations such as CPR Part 54, remedies, legal aid and costs.
From the Foreword by The Rt Hon Lord Judge
“The book is offered in clear and simple style, focussing less on esoteric theoretical considerations and more on the practical needs of the practitioner. It brings together materials relating to public law with which a criminal specialist may be less well informed, and material relevant to the criminal justice processes which may not be immediately apparent to the public law specialist. It will assist with the preparation of arguments, and also enable submissions which are unarguable to be discarded. It will therefore provide valuable guidance in this broad and developing area of practice.”
The Editor Piers von Berg is a Barrister at 36 Bedford Row.
The Emergence of EU Criminal law
Cyber Crime and the Regulation of the Information Society
Authors: Sarah Summers, Christian Schwarzenegger, Gian Ege, Finlay Young
Publishers: Hart Publishers
Publication Date: August 2014
Publisher's Title Information
Studies in International and Comparative Criminal The Emergence of EU Criminal Law Cyber Crime and the Regulation of the Information Society Sarah Summers, Christian Schwarzenegger, Gian Ege, Finlay Young
Criminal law can no longer be neatly categorised as the product and responsibility of domestic law. That this is true is emphasised by the ever-increasing amount of legislation stemming from the European Union (EU) which impacts, both directly and indirectly, on the criminal law. The involvement of the EU institutions in the substantive criminal laws of its Member States is of considerable legal and political significance. This book deals with the emerging EU framework for creating, harmonising and ensuring the application of EU criminal law.
This book aims to highlight some of the consequences of EU involvement in the criminal law by examining the provisions which have been adopted in the field of information and communications technology. It provides an overview of the criminal law competence of the EU and evaluates the impact of these developments on the criminal laws of the Member States. It then goes on to consider the EU legislation which requires Member States to regulate matters such as data protection, e-security, intellectual property and various types of illegal content through the criminal law is analysed. In the course of this evaluation, particular consideration is given to issues such as the basis on which the EU institutions establish the need for criminal sanctions, the liability of service providers and the extent to which the Member States have adhered to, or departed from, the legislation in the course of implementation.
Sarah Summers is SNF Professor of Criminal Law and Criminal Procedure Law at the University of Zurich.
Christian Schwarzenegger is Professor of Criminal Law, Criminal Procedure Law and Criminology and Head of the Institute of Criminology at the University of Zurich.
Gian Ege, MLaw, is a researcher working under the auspices of Christian Schwarzenegger at the University of Zurich, Switzerland. His research interests lie in the field of substantive criminal law and European criminal law. He is currently working on his PhD which concerns the role of emotion in the criminal law.
Finlay Young, LLB (hons), LLM is a Scottish independent lawyer, journalist, and researcher. His research focuses on issues of access to justice in developing countries, and human rights law in the European context.
Criminal Law Library
Criminal Fair Trial Rights,
Article 6 of the European Convention on Human Rights
Author: Ryan Goss
Ebook, March 2015, 9781782254959
Publishers: Hart Publications
Publication Date: September 2014
Publisher's Title Information
The Article 6 fair trial rights are the most heavily-litigated Convention rights before the European Court of Human Rights, generating a large and complex body of case law. With this book, Goss provides an innovative and critical analysis of the European Court's Article 6 case law.
The category of 'fair trial rights' includes many component rights. The existing literature tends to chart the law with respect to each of these component rights, one by one. This traditional approach is useful, but it risks artificially isolating the case law in a series of watertight compartments.
This book takes a complementary but different approach. Instead of analysing the component rights one by one, it takes a critical look at the case law through a number of 'cross-cutting' problems and themes common to all or many of the component rights. For example: how does the Court view its role in Article 6 cases? When will the Court recognise an implied right in Article 6? How does the Court assess Article 6 infringements, and when will the public interest justify an infringement?
The book's case-law-driven approach allows Goss to demonstrate that the European Court's criminal fair trial rights jurisprudence is marked by considerable uncertainty, inconsistency, and incoherence.
Ryan Goss is Lecturer in Law at the Australian National University, Canberra, and was formerly Junior Research Fellow in Law at Lincoln College, Oxford.
This book is a critique of the European Court of Human Rights' case law dealing with the right to a fair trial in criminal cases.1 It explores the extent to which the European Court's case law in this area is consistent, predictable, transparent, and coherent.
Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (`the Convention') provides protection for the right to a fair trial in civil and criminal proceedings. Article 6 includes multiple 'component' rights, some explicitly listed in the Convention, and others recognised by the European Court as implicit in the text. The explicitly listed component rights range from the right 'to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law' to the rights, for those `charged with a criminal offence', to 'be presumed innocent until proved guilty according to law' and have 'the free assistance of an interpreter'. Examples of implicit rights include the accused's right 'to communicate with [the accused's] advocate out of hearing of a third person 2and the right 'to silence and ... not to incriminate oneself 3.'
Article 6 occupies a prominent place in the Convention system: between 1959 and 2009, more than half of the European Court judgments in which a violation was found included an Article 6 violation, either criminal or civi1.4 In 2013, the most recent year for which statistics are available, nearly one-third of the judgments in which a violation was found included a violation of Article 6; this was more than for any other Article.5 This book looks at the case law concerning criminal proceedings from the beginning of the Court's operation through to 2014.6 This Introduction frames the scope of the book's argument and outlines the ways in which that argument will be developed.<
1The European Court of Human Rights will hereafter be referred to as 'the European Court' or 'the Court' as appropriate.
2S v Switzerland (App 12629/87) (1992) 14 EHRR 670, para 48.
3Saunders v United Kingdom (App 19187/91) (1997) 23 EHRR 313, para 68.
4European Court of Human Rights, The European Court of Human Rights: Some Facts and Figures: 1959-2009 (Council of Europe, 2009) 6. See D Harris, M O'Boyle and C Warbrick, Law of the European Convention on Human Rights, 2nd edn (Oxford University Press, 2009) 202.
5European Court of Human Rights, The European Court of Human Rights in Facts and Figures: 2013 (Council of Europe, 2014) 7.
6The case law is up to date as of 17 March 2014.
Previous Convictions at Sentencing
Theoretical and Applied Perspectives
Studies in Penal Theory and Penal Ethics4
Author: Edited by Julian V Roberts and Andrew von Hirsch
Publishers: Hart Publishing
Publication Date: July 2010
Publisher's Title Information
This latest volume in the Penal Theory and Penal Ethics series addresses one of the oldest and most contested questions in the field of criminal sentencing: should an offender's previous convictions affect the sentence? This question provokes a series of others: Is it possible to justify a discount for first offenders within a retributive sentencing framework? How should previous convictions enter into the sentencing equation? At what point should prior misconduct cease to count for the purposes of fresh sentencing? Should similar previous convictions count more than convictions unrelated to the current offence? Statutory sentencing regimes around the world incorporate provisions which mandate harsher treatment of repeat offenders. Although there is an extensive literature on the definition and use of criminal history information, the emphasis here, as befits a volume in the series, is on the theoretical and normative aspects of considering previous convictions at sentencing. Several authors explore the theory underlying the practice of mitigating the punishments for first offenders, while others put forth arguments for enhancing sentences for recidivists. The practice of sentencing repeat offenders in two jurisdictions (England and Wales, and Sweden) is also examined in detail.
This latest volume in the Penal Theory and Ethics series addresses one of the most contested questions in the field of criminal sentencing: should an offender's previous convictions be taken into account in deciding the quantum of sentence? In reality, this single question provokes a series of others: is it possible to justify a discount for first offenders within a retributive sentencing framework? How should previous convictions enter into the sentencing equation? At what point should prior misconduct cease to count for the purposes of sentencing for the current offence? Should similar previous convictions count more than convictions unrelated to the current offence?
Statutory sentencing regimes around the world incorporate provisions which mandate harsher treatment of repeat offenders. The practice of imposing progressively harsher penalties as the offender accumulates more convictions is called the recidivist sentencing premium and is the subject of this volume. Although there is a vast literature on the definition and use of criminal history information, the emphasis here, as befits a volume in the series, is on the theoretical and normative aspects of considering previous convictions at sentencing. The focus is upon retributive sentencing perspectives. Utilitarian sentencers justify a recidivist premium on the grounds that harsher penalties are necessary to deter or incapacitate repeat offenders.
The volume begins with three chapters which explore the 'discount theory'which favours the imposition of mitigated punishments upon first offenders, or offenders with modest criminal records. This theory gives rise to the well-known principle of the progressive loss of mitigation. This principle argues that first offenders should receive a discounted sentence. If they reoffend, they should still receive a discount, albeit one of lesser magnitude. Ultimately, after a specified number of reconvictions, their first-offender status expires, and no further discount is offered. The principle has proven very influential in sentencing writings, less so in terms of sentencing practice. Andrew von Hirsch offers an account of the lapse theory and this is followed by two other contributions by Julian Roberts and Jesper Ryberg in which the theory and the principle are discussed at greater length.
Young jae Lee and Chris Bennett propose retributive justifications for Preface vii imposing progressively harsher sentences on repeat offenders. Lee argues that repeat offenders may reasonably be considered more culpable for failing to take the necessary remedial steps to prevent reoffending. Chris Bennett also considers repeat offenders to be more blameworthy, but, in contrast to Lee, he locates the justification for a recidivist sentencing premium within a communicative theory of sentencing.
Michael Tonry provides a critique of a number of justifications for criminal-history enhancements, including those proposed in this volume by Lee and Bennett, and elsewhere by Roberts. Richard Frase seeks to identify normative principles and practical rules which may both justify and set limits on the widespread practice of enhancing sentence severity based on prior convictions. In his view the normative principles adopted for this purpose must be capable of generating clear, workable norms, providing guidance to judges and sentencing policymakers on when and why prior-record adjustments are permitted, and also when and why they are excessive.
Repeat offenders are usually defined as people who commit multiple offences over time, with their episodes of offending interrupted by sentencing for each offence. Recidivist statutes are constructed with this profile of offender in mind. However, a significant number of convicted defendants face sentence for multiple offences committed on a single occasion, or over a very short period of time. Sentencing in such cases throws up a raft of problems for the courts. One response to the offender who, for example, commits ten burglaries during the same evening is to impose concurrent sentences. Alternatively, a sentence may be assigned for each conviction; but the overall 'package' of sentences is discounted by the 'totality' principle. This ensures that someone convicted of, say, five burglaries does not receive a sentence that is more severe than an offender convicted of, say, rape. The practical consequence is a paradox, or inconsistency: repeated offences over time may result in a harsher penalty (if a recidivist sentencing premium is adopted), while multiple offences over a single occasion are 'discounted' by another practice (totality). Kevin Reitz explores the complexities surrounding the sentencing of offenders convicted of multiple offences.
In the second part of the volume, we turn from theory to practice. A number of contributors explore the use of previous convictions in three Western jurisdictions. First, Martin Wasik provides a salutary reminder that in practice determining the nature of an offender's record is a far from straightforward exercise. Wasik provides a typical criminal history and works the reader through the practical issues arising from considering previous criminal misconduct. Andrew Ashworth and Estella Baker describe and analyse the law in England and Wales, a jurisdiction in which the role of previous convictions at sentencing has changed significantly within a single decade. In 1991, courts were explicitly directed viii Preface to ignore an offender's previous convictions. This legislation was subsequently amended in 1993, and in 2003 matters turned full circle. The Criminal Justice Act of that year included a provision which requires courts to consider each prior conviction as enhancing the seriousness of the current offence, if this is reasonable.
The chapter by Petter Asp explains the use of previous convictions in jurisdiction which utilises a variant of the principle of progressive loss of mitigation. The volume concludes with a contribution by Lila Kazemian who examines, in the light of recent empirical studies, the assumption that harsher penalties will actually deter or incapacitate recidivists. She notes that the recidivist sentencing premium's promise of lower crime or recidivism rates is remains unfulfilledat least on the evidence that has accumulated to date.
Acknowledgements v Preface vi Contributing Authors xi 1 Proportionality and the Progressive Loss of Mitigation: Some Further Reflections 1 Andrew von Hirsch 2 First-Offender Sentencing Discounts: Exploring the Justifications 17 Julian V Roberts 3 Recidivism, Retributivism, and the Lapse Theory of Previous Convictions 37 Jesper Ryberg 4 Repeat Offenders and the Question of Desert 49 Young jae Lee 5 'More to Apologise For': Can We Find a Basis for the Recidivist Premium in a Communicative Theory of Punishment? 73 Chris Bennett 6 The Questionable Relevance of Previous Convictions to Punishments for Later Crimes 91 Michael Tonry 7 Prior-conviction Sentencing Enhancements: Rationales and Limits Based on Retributive and Utilitarian Proportionality Principles and Social Equality Goals 117 Richard S Frase 8 The Illusion of Proportionality: Desert and Repeat Offenders 137 Kevin R Reitz 9 Dimensions of Criminal History: Reflections on Theory and Practice 161 Martin Wasik 10 The Role of Previous Convictions in England and Wales 185 Estella Baker and Andrew Ashworth x Contents 11 Previous Convictions and Proportionate Punishment under Swedish Law 207 Petter Asp 12 Assessing the Impact of a Recidivist Sentencing Premium on Crime and Recidivism Rates 227 Lila Kazemian Index 251 xi
Andrew Ashworth is the Vinerian Professor of English Law at the University of Oxford, Fellow of All Souls College, Oxford and former Chairman of the Sentencing Advisory Panel in England and Wales. Petter Asp is Professor of Criminal Law at the University of Stockholm. Estella Baker is Senior Lecturer in the Faculty of Law, University of Sheffield.
Chris Bennett is Senior Lecturer in the Department of Philosophy, University of Sheffield.
Richard S. Frase is the Benjamin N Berger Professor of Criminal Law at the Faculty of Law, University of Minnesota.
Lila Kazemian is an Assistant Professor at John Jay College of Criminal Justice, New York.
Young jae Lee is currently Visiting Professor of Law, University of Chicago Law School and Professor of Law, Fordham University School of Law. Kevin R Reitz is the James Annenberg Levee Professor of Law, University of Minnesota.
Julian V Roberts is Professor of Criminology in the Faculty of Law, University of Oxford and Fellow of Worcester College, Oxford. Jesper Ryberg is Professor of Ethics and Philosophy of Law, Department of Philosophy and Science Studies, University of Roskilde, Denmark. Michael Tonry is the Marvin J Sonosky Professor of Law and Public Policy at the Faculty of Law, University of Minnesota and Senior Fellow of the Netherlands Institute for the Study of Crime and Law Enforcement. Andrew von Hirsch is Honorary Professor of Penal Theory and Penal Law, University of Cambridge; Honorary Fellow, Wolfson College, Cambridge; and Honorary Professor, Law Faculty, Johann Goethe-University, Frankfurt Martin Wasik is Professor of Law at Keele University, and a former Chairman of the Sentencing Advisory Panel in England and Wales.
The editors and contributors tackle a particularly thorny issue in this elegant 256-page text: Should an offender's previous convictions affect sentence?.. Professors Roberts and von Hirsch address with signal skill the question of just deserts and proportionality, the progressive loss of mitigation, the issues of first offender discounts.. and the question of deserved punishment when recidivism is demonstrated. Judge G. Renaud, Criminal Law Quarterly, Volume 59
The experiences, developments and points of view in other countries, as described in this book, are very valuable to us J.A.W. Lensing Trema Straftoemetings bulletin, Nr 1, 2011
In Previous Convictions at Sentencing Roberts and Von Hirsch have brought together a selection of leading thinkers to illuminate an aspect of punishment theory and practice that has largely remained in the shadows despite its obvious importance. An attractive feature of the book, in addition to the thoughtful and penetrating analyses that it contains, is the vigorous exchange of views that takes place between its covers. The editors have not shied away from including perspectives that are at odds with their own, or from revising and reformulating their views, or indeed from finding fault with each other's conclusions. This internal dialogue helps to expose where further critical inquiry would yield the greatest return. Ian O'DonnellPunishment & Society
This collection is welcome as it offers insights into the problems facing sentencers and penologists in taking past convictions into account. Susan Easton Criminal Law Review
Emotions, Crime and Justice
International Series in Law and Society
Author: Edited by: Heather Strang, Ian Loader, Susanne Susanne
Publishers: Hart Publishing
Publication Date: 2014
Publisher's Title Information
The return of emotions to debates about crime and criminal justice has been a striking development of recent decades across many jurisdictions. This has been registered in the return of shame to justice procedures, a heightened focus on victims and their emotional needs, fear of crime as a major preoccupation of citizens and politicians, and highly emotionalised public discourses on crime and justice. But how can we best make sense of these developments? Do we need to create "emotionally intelligent" justice systems, or are we messing recklessly with the rational foundations of liberal criminal justice?
This volume brings together leading criminologists and sociologists from across the world in a much needed conversation about how to re-calibrate reason and emotion in crime and justice today. The contributions range from the micro-analysis of emotions in violent encounters to the paradoxes and tensions that arise from the emotionalisation of criminal justice in the public sphere. They explore the emotional labour of workers in police and penal institutions, the justice experiences of victims and offenders, and the role of vengeance, forgiveness and regret in the aftermath of violence and conflict resolution. The result is a set of original essays which offer a fresh and timely perspective on problems of crime and justice in contemporary liberal democracies.
Susanne Karstedt is Professor of Criminology and Criminal Justice at the Centre for Criminal Justice Studies, School of Law, University of Leeds.
Ian Loader is Professor of Criminology and Director of the Centre for Criminology at the University of Oxford, and a Fellow of All Souls College.
Heather Strang is Director of the Centre for Restorative Justice in the Regulatory Institutions Network at the Australian National University and Senior Research Fellow at the Institute of Criminology, University of Cambridge
...the book is a must read. It presents a series of state of the art chapters on various subjects that are critical in criminology. The chapters are deeply rooted in the patrimony of criminological literature; many of them offer an excellent balance of theoretical reflection and empirical work; the empirical methodology ranges from insightful qualitative observation, even introspective reflection, to clever quantitative measuring and sophisticated statistics; all chapters witness a critical concern for the instrumental, social, political and moral implications. In short, the book is an example of what I have called 'criminology as I see it ideally' (Walgrave, 2008b).
... if I were still active as a teaching professor, I would urge my students to read this book. They can learn about the broad field of criminology, they can also see how methodological seriousness is the indispensible ground for good scientific work if it is completed by wise and good reflection, and they can experience how important criminology is as a social science for the better understanding of social life and for reflecting on how to improve it.
Lode Walgrave Criminology and Criminal Justice, 13(1)
Emotions, Crime and Justice is a major step toward a more theoretically and practically nuanced conversation. As this book reveals in a series of original essays of great range, depth and sophistication, criminology has much to gain by investigating the emotions underlying crime and punishment. The collection spans a range of theoretical, ethnographic and experimental approaches, a range of criminal justice institutions and roles, and a range of culturesï¿½Perhaps its greatest strength lies in the range of emotional experience it reveals and explores, including the emotions that accompany violence and that animate attitudes toward crime, the emotional experience of obeying or resisting the law, the implicit rules governing the display or feeling of emotions by employees of police departments or prisons, the emotional roots of collective violence and collective reconciliation, and the moral sentiments and public emotions animating democratic discourse on crime and punishment.
These are questions that ought to keep scholars occupied for quite some time. For a rich and provocative introduction to the field, read this book. Susan A. Bandes, Criminal Law and Criminal Justice Books
..the authors provide useful insights into the role of emotions in the criminal justice system-a topic that has received limited attention.
...the essays are generally organized in a coherent way. Each piece adds something new to the volume and provides the reader with an understanding of the role that emotions play in various contexts in the criminal justice system. In setting out to provide answers to the various questions posed at the volume's outset, the authors provoke the reader to consider the often overlooked role that emotions have to play in the criminal justice system. This is an important and worthwhile accomplishment. Jeffrey Crawford, Saskatchewan Law Review, Volume 72, 2012
Author: Edited by Kieran Bradley, Noel Travers, Anthony Whelan
Publishers: Hart Publishing
Publication Date: May 2014
Publisher's Title Information
The essays which appear in this volume have been written to pay tribute to the Hon Mr Justice Nial Fennelly, judge of the Supreme Court of Ireland, and former Advocate General at the European Court of Justice, on the occasion of his retirement.
The overall theme of the book is the relationship between European Union law and national law, and the role of courts in defining that relationship. The book consists of four main parts. The structure and functioning of the European Court of Justice, material issues of European Union law, aspects of Irish law and transversal issues of national and European law.
The contributors are all past and present members of the European bench, members or former members of the Irish judiciary or Bar and/or experts in European Union law, many of whom have worked with Mr Justice Fennelly during his long and distinguished career at the Bar and on the bench.
Kieran Bradley is a Judge of the European Union Civil Service Tribunal.
Noel Travers is a barrister and a member of the Bar of Ireland.
Anthony Whelan is acting Director for electronic communications networks and services at the European Commission
Noted, but not Invariably Approved
Author: John Spencer
Publishers: Hart Publishing
Publication Date: March 2014
Publisher's Title Information
John Spencer has worked at Cambridge University for over forty years. He has lectured, supervised - and entertained - students in tort, contract, crime, medical law, and criminal procedure and evidence. This book is a tribute to Professor Spencer, but it is different from the usual tribute in that it contains case notes written and selected by the author himself and all published in the Cambridge Law Journal between 1970 and 2013. With the exception of one note, which is somewhat longer, the articles are taken from the case note section of the CLJ which, until fairly recently, imposed a strict word limit of 1000 words and no more (the complexity of the cases and the prolixity of the judges led to the CLJ relaxing this rule to 1500 words). The case notes reproduced here provide a master-class in the writing of incisive, engaging notes. Written with students in mind but also intended for the consumption and edification of a wider audience, these case notes epitomise the way in which Professor Spencer has, for 43 years, cajoled, lambasted and encouraged the judiciary to see things his way.
John Spencer QC is Professor of Law in the University of Cambridge and a Fellow of Selwyn College, Cambridge.
John Spencer is always a pleasure to read and never boring. As one who for many years tried to present cases in police journal in the same fashion, namely, informative but readable I can empathise with the title, "Noted, But Not Invariably Approved". This is a must for all students of Criminal Law because over the years John Spencer has covered just about every important issue.
Crimes, Harms, and Wrongs - On the Principles of Criminalisation
Authors: A P Simester and Andreas von Hirsch
Publishers: Hart Publishing
Publication Date: July 2014
Publisher's Title Information
When should we make use of the criminal law? Suppose that a responsible legislature seeks to enact a morally justifiable range of criminal prohibitions. What criteria should it apply when deciding whether to proscribe conduct?
Crimes, Harms, and Wrongs is a philosophical analysis of the nature, significance, and ethical limits of criminalisation. The authors explore the scope and moral boundaries of harm-based prohibitions, proscriptions of offensive behaviour, and 'paternalistic' prohibitions aimed at preventing self-harm. Their aim is to develop guiding principles for these various grounds of state prohibition, including an analysis of the constraints and mediating factors that weigh for and against criminalisation.
Both authors have written extensively in the field. In Crimes, Harms, and Wrongs they have reworked a number of well-known essays and added several important new essays to produce an integrated, accessible, philosophically-sophisticated account that will be of great interest to legal academics, philosophers, and advanced students alike.
Reviews to date
'An outstanding work, original in many respects and meticulous in its arguments. It represents the greatest advance on this subject since Feinberg's four volumes.... I would expect this book to attract a great deal of discussion among lawyers and philosophers. I would also expect that discussion to be positive ... an outstanding contribution to the re-invigorated criminalization debate.' Andrew Ashworth, All Souls College, Oxford
'Important, original, interesting, and often ingenious. Unlike some recent competitive books it has the virtue of making sound arguments. And like everything else the authors have written, it is a joy to read. ... This is an absolutely wonderful book. I look forward to seeing it in print.' Douglas Husak, Rutgers University
'Head and shoulders above anything else that I have read in criminalisation theory so far.' Antje du Bois Pedain, University of Cambridge
We are told in the Preface how and why this book came to be written, the well known A T H Smith introduced the authors at Cambridge in 1993. A P SIMESTER had just arrived from Oxford to take up a Research Fellowship at Gonville and Caius College, while Andreas von Hirch had joined the academic staff of the Institute of Criminology after two decades' working at Rutgers University in the United States.
At that time, Andreas von Hirch was developing an interest in criminalisation issues, following on from his earlier research on sentencing theory, while A P SIMESTER was working primarily in substantive criminal-law theory.
Thereafter, they worked together from time to time, and in the beginning of 2009 resolved to try to synthesise their various ideas into a more coherent work.
They say the work leaves many questions to the future. It will attract a great deal of discussion. The main thrust is with the structure of criminalisation questions, with general principles rather than details.
The book is divided in parts and covers, inter alia, 'the nature of criminalization'; 'wrongfulness and reason'; 'harm'; and 'the Offence'. Rethinking the Offence Principle is an issue that this excellent book questions. Assuming that the state sometimes has a legitimate interest in using the criminal law to regulate conduct that brings about harm to others, the example is given of being seated in a bus when the amorous couple across the aisle carry their affections to the point of sexual intercourse, typically I am not harmed by their conduct, at least not in the sense of harm that is thought to invoke the Harm Principle. None the less, I may be entitled to take offence, and the state might be right to criminalise the conduct on the grounds that it is offensive.
The criminal law covers so many situations, the above example may be accepted by some, but what are we to make of what is just plain stealing under the guise of rioting purporting to do it because of a certain situation that occurred because police officers carried out their lawful duty? Where do I find the answer to that question? Is the answer in a book or in a culture? Yet again we are left wondering.
8th August 2011
Individual Modes of Responsibility for Collective Crimes
Author: Neha Jain
Publication Date: May 2014
Publisher's Title Information
The author proposes doctrines of perpetration and secondary responsibility that reflect the role and function of high level participants in mass atrocity while situating them within the political and social climate which renders these crimes possible.
International criminal law lacks a coherent account of individual responsibility. This failure is due to the inability of international tribunals to capture the distinctive nature of individual responsibility for crimes that are collective by their very nature. Specifically, they have misunderstood the nature of the collective action or framework that makes these crimes possible, and for which liability may be attributed to intellectual authors, policy makers and leaders. In this book, the author draws on insights from comparative law and methodology to propose doctrines of perpetration and secondary responsibility that reflect the role and function of high-level participants in mass atrocity, while simultaneously situating them within the political and social climate which renders these crimes possible. This new doctrine is developed through a novel approach which combines and restructures divergent theoretical perspectives on attribution of responsibility in English and German domestic criminal law, as major representatives of the common law and civil law systems. At the same time, it analyses existing theories of responsibility in international criminal law and assesses whether there is any justification for their retention by international criminal tribunals.
Neha Jain is an Associate Professor at the University of Minnesota Law School. She has held research positions at Georgetown University Law Center, and at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany. Professor Jain completed her BCL and DPhil in law from Oxford University, where she was a Rhodes Scholar and Jowett Senior Scholar at Balliol College. She served as a law clerk to former Chief Justice VN Khare of the Supreme Court of India and has interned with the Office of the Prosecutor at the Extraordinary Chambers in the Courts of Cambodia and with the Legal and Treaties Division of India's Ministry of External Affairs.
Hearsay Evidence in Criminal Proceedings
Author: JR Spencer
Publishers: Hart Publications
Publication Date: November 2013
Publisher's Title Information
The Criminal Justice Act 2003 re-wrote the hearsay evidence rule for the purpose of criminal proceedings, enacting the recommendations of the Law Commission together with some proposals from the Auld Review. In 2008, Professor Spencer wrote a book explaining the new law, intended for practitioners as well as academics. Following the style of his earlier book about the new law on bad character evidence, the core of the hearsay book was a section-by-section commentary on the relevant provisions of the Act, discussing the case law that had interpreted them. Since the appearance of the first edition, the new law on hearsay evidence has been the subject of a spectacular exchange between the UK Supreme Court and the European Court of Human Rights, the effects of which the Court of Appeal has interpreted in several leading cases. In this new edition, the commentary is revised to take account of these developments. As in the first edition, the commentary is preceded by chapters on the history of the hearsay rule, and the requirements of Article 6(3)(d) of the European Convention on Human Rights. It is followed by an appendix containing the text of the statutory provisions and a selection of the leading cases.
JR Spencer QC is Professor of Law in the University of Cambridge and a Fellow of Selwyn College, Cambridge.
Preface to the Second Edition v
Table of Cases xiii
Table of Legislation xxv
Table of Treaties xxxvi
1 Introduction 1
Hearsay rule and the rise and fall of the exclusionary rules of evidence 2
Scope and evolution of the hearsay rule 5
Hearsay rule in criminal law as it stood before the 2003 reform:
justifi cations for the rule 9
Criticisms of the hearsay rule 14
Hearsay rule as seen by legal writers 20
Th e 'directness principle' or 'best evidence' approach 22
Abolition of the hearsay rule in civil proceedings 25
Background to the 2003 reform: Criminal Law Revision
Committee, Fraud Trials Committee, Law Commission and
Auld Review 27
Reform: Criminal Justice Act 2003, Part 11, Chapter 2 32
Conclusion: provisional assessment of the reform 35
Date of entry into force 40
2 Hearsay and the European Convention on Human Rights 41
Th e confrontation principle 41
ECHR, Article 6 (3)(d) 43
Who is a 'witness' for the purposes of ECHR, Article 6(3)(d)? 46
What is meant by 'a right to examine or have examined witnesses
against him'? 48
To what extent, if any, is it ever possible to base a conviction on
the evidence of a witness or witnesses whom the defendant was
unable to 'examine or have examined', without infringing his
rights under ECHR, Article 6(3)(d)? 55
Th e defendant's right to confrontationthe case for a new system
of taking evidence ahead of trial 71
3 Th e scope of the reform, the shape of the new exclusionary rule and
the new scheme of exceptions 75
General scope of the new law 75
Abolition of the common law exclusionary rule: the demise of Kearley 75
Th e new exclusionary rule: CJA 2003, sections 114(1) and 115 78
Th e new defi nition of hearsay: conclusion 88
Scheme of exceptions 92
4 Hearsay admitted by agreement 95
5 Th e 'inclusionary discretion' and the general discretion to exclude 101
Discretionary inclusion under CJA 2003, section 114(1)(d): 'safetyvalve'
or alternative tap? 101
What are 'the interests of justice'? 106
Particular applications of section 114(1)(d) 111
Discretionary exclusion: PACE, section 78 and CJA 2003, section 126 122
6 Statements of witnesses who are unavailable (CJA 2003, section 116) 129
History: earlier provisions 129
Th e new provision: CJA 2003, section 116 131
7 Documentary hearsay (CJA 2003, section 117) 151
Underlying issue: 'records' of diff erent types 152
CJA 2003, section 117 153
Extra conditions for the admissibility of police records 161
Discretion to exclude 163
Documentary evidence and real evidence 164
CJA 2003, section 117: conclusion 164
8 Other statutory exceptions 165
9 Preserved common law exceptions (CJA 2003, section 118) 171
Public information, etc 172
Reputation as to character 173
Reputation or family tradition 174
Res gestae 176
Confessions, etc 180
Admissions by agents, etc 181
Common enterprise 182
Expert evidence 185
10 Confessions (and other extra-judicial statements by defendants) 187
Defendant's extra-judicial confession as evidence for the prosecution 189
Defendant's extra-judicial 'non-confession' as evidence for the
defence: mixed statements', etc 201
Extra-judicial statement of one co-defendant as evidence against
Extra-judicial statements of one co-defendant as evidence for another 209
Defendant's extra-judicial statements: conclusion 212
11 Multiple hearsay 213
12 Th e rule against narrative 221
Rule against narrative is retained 225
Rules about 'refreshment of memory' are relaxed 226
Other common law exceptions to the rule are reformed and put
into statutory form 229
Where the previous statement of a witness is admissible, it is now
'evidence of any matter stated in it' 236
A practical point: a previous statement, if in documentary form,
must not normally be given to the jury when it retires 243
Th e rule against narrative: conclusion 243
13 Videotaped evidence-in-chief 245
Annex: Youth Justice and Criminal Evidence Act 1999, section 27 252
14 Other matters: experts (CJA 2003, section 127) and
proof of documents (section 133) 255
Expert evidence: preparatory work 255
Documents: evidential status of a copy 257
15 Practical issues 261
Taking, recording and preservation of statements, and the rules on
access to them 261
Evidence on commission 266
Requirement to give notice of hearsay evidence: criminal
procedure rules 267
Deciding applications to admit hearsay evidence and applications
for hearsay to be excluded 269
Time and place for deciding on the application 272
Giving reasons for the decision 272
Credibility of non-witnesses whose statements are admitted 273
Enhanced status of a witness's previous statements 275
Stopping the case where the evidence is unconvincing 277
Directing juries 279
Appendix I Criminal Justice Act 2003, sections 114-141 283
Appendix II Th e Criminal Procedure Rules, Part 34 301
Appendix III Sections on hearsay evidence from the
Crown Court Bench Book Companion 311
Appendix IV Leading Cases 321
R v Twist 321
R v Horncastle and others (CA) 333
R v Horncastle and others (SC) 372
Al-Khawaja and Tahery v UK 402
R v Riat, Doran, Wilson, Clare and Bennett 431
R v Tahery 453
Sex, Crime and Literature in Victorian England
Edition: First Edition
Author: Ian Ward
Publishers: Hart Publishing
Publication Date: February 2014
Publisher's Title Information
The Victorians worried about many things, prominent among their worries being the 'condition' of England and the 'question' of its women. Sex, Crime and Literature in Victorian England revisits these particular anxieties, concentrating more closely upon four 'crimes' which generated especial concern amongst contemporaries: adultery, bigamy, infanticide and prostitution. Each engaged questions of sexuality and its regulation, legal, moral and cultural, for which reason each attracted the considerable interest not just of lawyers and parliamentarians, but also novelists and poets and perhaps most importantly those who, in ever-larger numbers, liked to pass their leisure hours reading about sex and crime. Alongside statutes such as the 1857 Matrimonial Causes Act and the 1864 Contagious Diseases Act, Sex, Crime and Literature in Victorian England contemplates those texts which shaped Victorian attitudes towards England's 'condition' and the 'question' of its women: the novels of Dickens, Thackeray and Eliot, the works of sensationalists such as Ellen Wood and Mary Braddon, and the poetry of Gabriel and Christina Rossetti. Sex, Crime and Literature in Victorian England is a richly contextual commentary on a critical period in the evolution of modern legal and cultural attitudes to the relation of crime, sexuality and the family.
Ian Ward is Professor of Law at Newcastle University, and the author of a number of books on law, literature and history including 'Law and Literature: Possibilities and Perspectives' (Cambridge University Press, 1995), 'Shakespeare and the Legal Imagination' (Cambridge University Press, 1999), The English Constitution: Myths and Realities' (Hart Publishing, 2004), 'Law, Text, Terror' (Cambridge University Press, 2009) and most recently 'Law and the Brontes' (Palgrave, 2011).
From the Introduction
In June 1858, Charles Dickens published a series of notices in the press confirming, in the vaguest possible way, that he had separated from his wife, but denying rumours that the reason lay in his relationship with any 'persons close to my heart'. His long-time friend and later biographer, John Forster, desperately tried to dissuade him, reasoning that the notice would only serve to titillate public prurience. He was, of course, right. The timing was oddly, and rather discomfortingly, resonant, as the doors of the new Divorce Court had only just opened for business; something which had made the subject of adultery and dysfunctional families of particular contemporary interest. If the Dickens family was indeed breaking up, and if the reason lay in an extra-marital indiscretion, it was becoming rather too obvious that there was in this nothing particularly unusual. Moreover, only a decade previously Dickens had confirmed his reputation as a 'serious' novelist, and chronicler of the 'condition of England', by depicting precisely such a familial fragmentation in Dombey and Son. We shall return to Dombey and Son shortly. At the same time as he was publishing his notice, Dickens was giving some of his first public readings, of which one of the most popular, the death of 'little Paul', was taken from Dombey and Son. The ironies abounded, along with the hypocrisies.
Dickens was right to be concerned, even if the manner of his response proved to be entirely misconceived. The rumours, as to both the state of his marriage and his infatuation with a young actress, were well-founded. The 45-year-old Dickens had fallen in love with the 19-year-old Ellen Ternan. The rumours were not to be easily assuaged. In conversation at the Garrick, a club they shared, Thackeray rather witlessly confirmed that his friend Dickens was indeed conducting an affair with an actress; an error for which he was never forgiven. Elizabeth Barrett Browning expressed herself appalled when she came across one of the notices which appeared to hold Catherine Dickens in large part responsible for the separation. It was, she bluntly said, a 'crime' and a 'dreadful' one. When Angela Burdett Coutts, who was bankrolling the home for fallen women which she and Dickens had set up, heard the rumours she pretty much cut him off. The even greater risk for Dickens, of course, was that his readers might do the same.
As his notices only barely concealed, Dickens had become bored of his wife of 20 years, confiding in increasingly pained, and self-justificatory, correspondence with Forster that they were never really 'made for each other'; a view which he pressed more strongly the older and less pretty Catherine became. She was, Dickens conceded, 'amiable and complying', in this sense the ideal 'angel in the house' so frequently celebrated in contemporary literature, but she was no longer very exciting, in or out of bed. Using a metaphor with a very particular contemporary resonance, Dickens confided that what was 'befalling' him had been 'steadily coming'. Of course, the real fall, prospectively at least, would have been Ellen's. It might be noted that when it came to developing infatuations with younger unmarried women, Dickens already had form; as did a conspicuous number of his fellow male writers, including both Ruskin and Thackeray. As later biographers have lined up to confirm, Dickens anyway struggled to relate in a mature way to most women. He treated Catherine abominably, pointedly telling friends when her sister Mary died that he would have preferred it to have been his wife. Mary was another of those young women for whom Dickens had developed one of his discomforting infatuations. Ellen was not the first, and was probably not the last innocent young woman, as well as the resultant disintegration of his own family for, as Fitzjames Stephen put it, the family had become the 'supreme object of idolatry' in mid-Victorian England, especially amongst the kind of people for whom Dickens wrote. It was an inherently paradoxical idol, as Edmund Burke had noted in his manual for whimsical conservatives, Reflections on the Revolution in France. The English political 'mind' was founded on a shared adoration for an iconography that celebrated the common worship of 'our state, our hearths, our sepulchres, our altars'. The Burkean commonwealth cherished each and every English home as an irreducibly public space even whilst it remained, at least in the cultural imagination, privately inviolable. The house of Paul Dombey, as we shall see, was just such a home; 'in private' and 'in public' (554) so, it had become painfully apparent, was the home of Charles Dickens. As the mainly female readership of the Home Circle magazine was reminded, the woman who tends to the hearth exercises a vicarious power 'over the will of the nation'. By now, however, neither the rhetoric nor the iconography was quite so convincing. Few mid-Victorians were more whimsical or more conservative than Walter Bagehot, or more sceptical. Few were more sensitive to the fact that theirs was an 'age of confusion and tumult', not least because ordinary Englishmen and women were no longer so confident in the inviolability of the English 'household'.
For this very reason, mid-Victorian England was also a place of anxiety and of uncertainty. The anxiety bred the questioning. England worried about its 'condition', for which reason it also worried, at length, about the state of its families and more particularly, the 'question' of its women, what they should be doing, what they might be thinking, and what they seemed to be reading. This latter affinity was immediate. The Burkean family presumed a particular 'sphere' within which women lived their married lives. At a remove, it also presumed a particular place within which the sexuality of these women might be regulated, and this place was the institution of marriage. This book is about sex and marriage, and the consequences, legal and otherwise, of transgressing the Burkean norm. It is about families like the Dickenses, about men like Charles Dickens and women like Ellen Ternan.
After reading both of Claire Tomalin's, books, 'Charles Dickens: A Life' and 'The Invisible Woman: The Story of Nelly Ternan and Charles Dickens',and this book, Victorian England and indeed Dickens will be seen in a new light. We are brought closer to the real world, or at least the twilight world of these people. If you really want to see into the mind and world of Dickens I suggest you read this and the two aforementioned books and then re-read Dickens: suddenly more of Victorian England will be revealed to you.
Law in Politics, Politics in Law
Hart Studies in Constitutional Law
Author: Edited by David Feldman
Publishers: Hart Publishing
Publication Date: Dec 2013
Publisher's Title Information
A great deal has been written on the relationship between politics and law. Legislation, as a source of law, is often highly political, and is the product of a process or the creation of officials often closely bound into party politics. Legislation is also one of the exclusive powers of the state. As such, legislation is plainly both practical and inevitably political; at the same time most understandings of the relationship between law and politics have been overwhelmingly theoretical. In this light, public law is often seen as part of the political order or as inescapably partisan. We know relatively little about the real impact of law on politicians through their legal advisers and civil servants. How do lawyers in government see their roles and what use do they make of law? How does politics actually affect the drafting of legislation or the making of policy?
This volume will begin to answer these and other questions about the practical, day-to-day relationship between law and politics in a number of settings. It includes chapters by former departmental legal advisers, drafters of legislation, law reformers, judges and academics, who focus on what actually happens when law meets politics in government.
David Feldman is the Rouse Ball Professor of English Law at the University of Cambridge, and a Fellow of Downing College.
From the Preface
This volume is largely based on papers presented at two events in 2011. One was the Annual Conference of the Society of Legal Scholars (SLS), the learned society of university lawyers in the United Kingdom and Ireland, which took place at Downing College and the Faculty of Law, University of Cambridge, from 5th to 8th September 2011. A distinguished collection of speakers discussed their experiences as lawyers in and around politics and the civil service. Professor Elizabeth Cooke, Sir Ross Cranston, David Howarth, Sir Stephen Laws, Professor Hector MacQueen, Matthew Parish and Sir Philip Sales subsequently revised their presentations or prepared new material for this collection. The other event was a seminar marking the centenary of the Parliament Act 1911, which was organised for the University of Cambridge Centre for Public Law (CPL) and held at the Canary Wharf offices of Clifford Chance LLP, generous and long-standing supporters of the CPL, on 22nd November 2011. Of the eminent participants, Dr Chris Ballinger, Daniel Greenberg, Professor Lord Norton of Louth, Professor Dawn Oliver and Dr Rhodri Walters kindly wrote up their presentations or offered new work to afford readers of this volume a range of perspectives on the interaction of law and politics in the planning, enactment and implementation of the 1911 Act and its amending Act of 1949, a case-study of the relationships between law and politics. Three speakers, the Right Hon Theresa Villiers MP, Professor Vernon Bogdanor and Professor Rodney Brazier, kindly took part in the conference or the seminar and greatly enhanced the discussion, but were unable to contribute to this volume. I am grateful to all of them for the illumination they offered, and am particularly indebted to the authors for translating their presentations into the form in which they appear here and for their patience and flexibility in responding to editorial demands.
The authors of two chapters did not take part in those events. Matthew Windsor arrived serendipitously in Cambridge in 2012 to undertake research on legal ethics in relation to lawyers advising governments on international law, and generously allowed himself, to be persuaded to add the writing of a chapter on legal ethics to the other, more pressing demands on his time. The late Alan Rodger, Lord Rodger of Earlsferry, in a way laid the groundwork for this book by opening my eyes to aspects of its subject in his Presidential Address to the Holdsworth Club in the University of Birmingham in 1998. Then and subsequently, he showed me great professional and personal consideration and kindness. In 2009 we discussed the plans for the 2011 SLS Annual Conference and the possibility of a book such as this, and he delighted me by agreeing in principle to allow his 1998 Presidential Address to be included in any collection which might emerge from the Conference. His death in June 2011 deprived the legal world of a great gentleman, a fine lawyer and legal historian, an elegant, entertaining speaker and writer, and a delightful, inspiring companion.
Two chapters, or versions of them, are published elsewhere. I am grateful to the following for permission to use material in this book:
Dr Christine Rodger, the Holdsworth Club of the University of Birmingham and its Vice-President, Mr George Applebey, Dr Ludwig Burgmann and Lowenklau Gesellschaft eV, Frankfurt am Main, for chapter four, 'The Form and Language of Legislation' by Lord
Rodger of Earlsferry, previously published by the Holdsworth Club (Birmingham, 1998), and, in a revised and updated version, in (1999) 19 Rechtshistorisches Journal, 601-35;
Mr Nicolas Besly, Editor of The Table: The Journal of the Society of Clerks at the Table of Commonwealth Parliaments, and the Society of Clerks-at-the-Table in Commonwealth Parliaments, for chapter thirteen, 'The Impact of the Parliament Acts 1911 and 1949 on a Government's Management of its Legislative Timetable, on Parliamentary Procedure and on Legislative Drafting', published in The Table, vd 80, 201: pp 11-16.
Many people have developed my own interest in the relationship between politics and law over 40-odd years. I owe special debts to Dr Stephen Cretney, my tutor, ex-colleague and friend, and to Professor Richard Hodder-Williams and Dr Hugh Rawlings, sometime colleagues in the University of Bristol, who organised an annual Law & Politics Colloquium in the 1970s and 1980s.
Reviews to date
I do not hesitate to recommend this book, both to participants in political and legal process and also the interested general reader: it contains a great deal of first-class material and is a welcome addition to the literature in this area. Saira Salimi Statute Law Review, Volume 35, Number 2
One of the most noticeable features of this collection - and perhaps the main source of its originality and diversity - is the impressive range of contributors.
Overall, this is a terrific collection of essays [which will] be of value to anyone interested in the 'stuff' of law and politics. Even those well versed in that 'stuff' will surely find some thought-provoking new perspectives here. Joseph Tomlinson The Journal of Legislative Studies, 2014
Overall, this collection presents the complexities of the relationship between politics and law rather well, even if, as with most edited collections, one would struggle to refine a clear and focused conclusion having read all the chapters. However, while this is often a problem, here it more fairly represents the analytical differences that are evident in examining the subject.
Christopher May, Political Studies Review
This rigorous, ranging and broad-minded book reflects the best of two worlds; it is a valuable read for those who try to walk the line between them Mark Davies The Table
The book provides well-rounded insight into the intricate relationship between Politics and Law. J. Kern European Review of Public Law
...the value [of this volume] lies in the fact that it brings together a multiplicity of highly-respected voices, not only from academia, but also from institutional and professional levels, who have been working on the various possible ways of interpreting the relationship between politics and law. (Translated from the original Italian.) Nicola Lupo Rivista Trimestrale di Diritto Pubblico 4/2014 (Oct-Dec)
Law in Politics, Politics in Law, the title sums it up, do they mix? Should they exist? How many Barristers (Lawyers)are there in Parliament? The fact is you cannot separate one from the other. The book provides an insight into this relationship.
Judicial Review in Northern Ireland
Author: Gordon Anthony
Publishers: Hart Publishing
Publication Date: Jan 2014
Publisher's Title Information
This is the second edition of Hart's leading book on the principle and practice of judicial review in Northern Ireland. Providing a fully updated account of the ever-burgeoning body of case law, it divides into eight chapters that consider the purposes of judicial review; the nature of the public-private divide in Northern Ireland law; the judicial review procedure; the grounds for review; and remedies. As with the first edition, the focus of the book is very much on case law that is unique to Northern Ireland, and the book identifies some important differences between principle and practice in Northern Ireland and England and Wales. It also considers the leading Human Rights Act decisions of the Northern Ireland courts and the House of Lords and UK Supreme Court.
The book has been written primarily for practitioners of judicial review and uses numbered paragraphs for ease of reference. The book is, however, of much wider interest and is a valuable resource for academics and students alike. Much of the Northern Ireland case law has been concerned with contentious political issues, and the courts have had to consider difficult questions of the constitutional limits to the judicial role in review proceedings. The book should therefore be of use not just to practitioners but also to those involved in the study of judicial reasoning in different jurisdictions (both within the UK and elsewhere).
Gordon Anthony is Professor of Public Law at Queen's University Belfast, and a Barrister-at-Law. He is also a member of the European Group of Public Law, Athens.
Foreword from the First Edition ix
Table of Abbreviations xxv
Table of Cases xxvii
Table of Statutes lvii
1. Judicial Review in Northern Ireland: Purposes, Sources of Law, and
Constitutional Context 1
[1.01] Introduction 1
[1.04] What Is Judicial Review, and What Are its Purposes? 2
[1.11] Sources of Law 6
[1.12] Statute Law 7
[1.14] The Common Law 8
[1.16] EU Law 9
[1.20] The ECHR 12
[1.23] Unincorporated International Treaties and Customary International Law 14
[1.25] Statutory Interpretation 15
[1.28] 'Constitutional Statutes': The European Communities Act 1972,
The Human Rights Act 1998, and The Northern Ireland Act 1998 18
[1.29] The European Communities Act 1972 18
[1.31] The Human Rights Act 1998 20
[1.34] The Northern Ireland Act 1998 22
[1.37] Conclusion 24
2. When Is the Judicial Review Procedure Used? The Public/Private
Divide and Eff ective Alternative Remedies 25
[2.01] Introduction 25
[2.03] The Problem of the Province of Judicial Review 25
[2.06] Tests for Issues Amenable to Judicial Review 27
[2.07] The 'Source of Power' Test: Statute 27
[2.10] The 'Nature of the Issue' Test and Public Sector Employment Disputes 39
[2.14] The 'Public Interest' Test 42
[2.18] 'Public Functions' and 'Emanations of the State' 44
[2.22] Section 6 of the Human Rights Act 1998 46
[2.26] The Northern Ireland Act 1998 and the Freedom of Information
Act 2000 49
[2.28] Procedural Exclusivity and Eff ective Alternative Remedies 50
[2.30] Procedural Exclusivity and the 'Anti-technicality' Provision 51
[2.34] Eff ective Alternative Remedies 53
[2.36] Satellite Litigation 54
[2.38] Conclusion 56
3. The Judicial Review Procedure 59
[3.01] Introduction 59
[3.04] Deciding to Proceed 60
[3.05] Is there a Decision, Act, Failure to Act, or Other Measure? 60
[3.09] Does the Decision or Other Measure Sound in Public Law? 63
[3.10] Would Review Proceedings be Appropriate (in light of alternative
remedies, prematurity, and so on)? 64
[3.14] Pre-Action Protocol 66
[3.17] The Leave Stage 67
[3.18] Making the Application 68
[3.21] Criminal Causes 69
[3.23] The Human Rights Act 1998; and 'Devolution Issues' 71
[3.25] The Onus of Proof and the 'Arguable Case' Threshold 72
[3.28] Delay 74
[3.31] Standing 76
[3.32] Urgent Cases 77
[3.33] Where Leave Is Granted 77
[3.35] Costs 78
[3.37] Notice Parties 80
[3.39] Third Party Interveners 81
[3.42] Where Leave Is Refused: Appeals 82
[3.44] Interim Matters 83
[3.44] Remedies 83
[3.44] Stays, Interim Declarations, and Interim Injunctions 83
[3.47] The European Communities Act 1972 and EU Law 85
[3.49] The Human Rights Act 1998 86
[3.50] Discovery 86
[3.50] The General Position 86
[3.55] The Human Rights Act 1998 89
[3.57] Public Interest Immunity 90
[3.58] The Freedom of Information Act 2000 91
[3.61] Cross-examination and Interrogatories 93
[3.63] Papers for the Hearing 94
[3.65] The Grounds for Review 94
[3.66] Standing 95
[3.66] The General Position 95
[3.69] Section 7 of the Human Rights Act 1998 97
[3.73] Third Party Interveners 100
[3.74] Remedies 100
[3.75] The Range of Remedies 100
[3.76] The Judicature (Northern Ireland) Act 1978 and RCJ Order 53:
The Prerogative Orders, Declarations, and Injunctions 100
[3.77] The Judicature (Northern Ireland) Act 1978 and RCJ Order 53:
[3.78] The Judicature (Northern Ireland) Act 1978 and RCJ Order 53:
Other Disposals 102
[3.79] The European Communities Act 1972 and EU Law 103
[3.82] The Human Rights Act 1998 and the ECHR 104
[3.84] The Prerogative Orders, Declarations, and Injunctions:
Their Discretionary Nature 105
[3.85] Utility 105
[3.87] Conduct of Applicant 106
[3.88] Delay 107
[3.89] Standing 107
[3.90] Alternative Remedies 108
[3.92] Appeals 109
[3.95] Costs 110
[3.97] Conclusion 111
4. The Grounds for Review Introduced 113
[4.01] Introduction 113
[4.03] The Constitutional Purposes of, and the Limits to, the Grounds for
[4.04] 'Root Concepts' of the Common Law and the 'Rule of Law' 114
[4.06] Non-statutory Power and the Rule of Law: The Royal Prerogative 115
[4.09] The Rule of Law and Parliamentary Sovereignty 118
[4.10] Ouster Clauses and Time-limits 119
[4.14] Context-sensitivity: Justiciability, Reviewability, and Deference 122
[4.18] National Security 124
[4.20] Law, Politics, and 'Soft-edged' Review 125
[4.22] Powers, Duties, and Discretion 126
[4.23] Powers and Duties 127
[4.26] Duties and Discretion 129
[4.29] Errors of Law and Errors of Fact 132
[4.30] Errors of Law 132
[4.30] The Anisminic Principle 132
[4.32] Courts of Law 133
[4.35] 'Domestic' Decision-makers 136
[4.36] Errors of Fact 136
[4.38] Precedent Fact 137
[4.40] Relevancy 138
[4.42] 'No Evidence' 139
[4.43] Error of Material Fact 139
[4.45] Conclusion 141
5. Illegality 143
[5.01] Introduction 143
[5.04] 'Constitutional Statutes' and Illegality 144
[5.06] The European Communities Act 1972 145
[5.12] The Human Rights Act 1998 149
[5.13] Primary Legislation 150
[5.16] Subordinate Legislation 152
[5.18] Public Authorities 153
[5.22] The Northern Ireland Act 1998 156
[5.24] Acts of the Assembly/Orders in Council 158
[5.27] Statutory Rules 161
[5.29] Public Authorities (including Northern Ireland Ministers and
[5.34] Subordinate Legislation and Illegality 165
[5.41] Discretion and Illegality 169
[5.43] Relevancy 170
[5.48] Purposes 173
[5.51] Bad Faith 175
[5.53] Delegation 175
[5.56] Fettering of Discretion 177
[5.59] Conclusion 179
6. Substantive Review: Wednesbury, Proportionality, Legitimate
Expectation, Equality 181
[6.01] Introduction 181
[6.05] Wednesbury Unreasonableness/Irrationality 183
[6.07] Wednesbury Unreasonableness: Its 'Umbrella' and 'Substantive'
[6.09] Wednesbury Unreasonableness and Context Sensitivity 185
[6.12] Proportionality 187
[6.14] Proportionality and the European Communities Act 1972 188
[6.18] Proportionality and the Human Rights Act 1998 191
[6.20] Proportionality in the ECHR and the 'Margin of Appreciation' 192
[6.23] The Standard of Review in Domestic Law 194
[6.25] The 'Discretionary Area of Judgment' 196
[6.27] The Relationship between Proportionality and Wednesbury? 198
[6.29] Legitimate Expectation 199
[6.33] Lawfully Created Expectations 201
[6.33] When are they Recognised? 201
[6.37] How are they Protected? 205
[6.41] Unlawfully Created Expectations 208
[6.42] Representations that are Ultra Vires the Authority 208
[6.44] Unauthorised Representations that are Intra Vires the Authority 209
[6.46] Equality 211
[6.50] Common Law Equality 213
[6.52] Statute Law and Equality 214
[6.54] EU Law and Equality 215
[6.57] Article 14 ECHR and the Prohibition of Discrimination 216
[6.60] Conclusion 218
7. Procedural Impropriety 221
[7.01] Introduction 221
[7.05] Some Defi nitional Points 223
[7.07] The Relationship between Statute Law and the Common Law 224
[7.09] The Reach of Common Law Fairness 225
[7.09] 'Rights', 'Interests', and 'Legitimate Expectations' 225
[7.11] Fairness as a Context-dependent Requirement 226
[7.13] Procedural and Substantive Fairness 227
[7.15] The Scope of Article 6 ECHR 229
[7.18] Procedural Requirements and Statute 231
[7.19] Ascertaining Legislative Intent 232
[7.23] Consultation 234
[7.26] Reasons 236
[7.31] The Right to a Hearing 238
[7.35] The (Variable) Content of the Right to a Hearing 240
[7.36] Notifi cation 241
[7.41] The Nature of the Hearing and Evidence 243
[7.44] Representation 245
[7.46] Reasons 246
[7.50] Appeals and Rehearings 248
[7.52] When Is the Right to a Hearing Modifi ed and/or Excluded? 249
[7.56] Breach of the Right to a Hearing: Remedies and Waiver 251
[7.62] The Rule against Bias 253
[7.65] Actual Bias 255
[7.66] Apparent Bias 256
[7.67] Automatic Disqualifi cation: 'Pecuniary Interests' and 'Parties to the
[7.69] Other Forms of Disqualifying Bias 257
[7.71] Politics, Policy, and Bias 258
[7.73] Article 6 ECHR: 'Bias', 'Independent and Impartial Tribunals',
and 'Full Jurisdiction' 259
[7.80] Exceptions to the Rule against Bias: Statute, Necessity, and Waiver 264
[7.83] Breach of the Rule against Bias: Remedies 265
[7.84] Conclusion 265
8. Remedies 267
[8.01] Introduction 267
[8.03] The Origins, and Discretionary Nature, of the Remedies 268
[8.03] Origins 268
[8.05] The Position of the Crown and its Ministers 269
[8.08] Their Discretionary Nature 270
[8.10] The Judicature (Northern Ireland) Act 1978 and RCJ Order 53 272
[8.11] The Prerogative Orders, Declarations, and Injunctions 272
[8.11] Mandamus 272
[8.13] Certiorari 273
[8.16] Prohibition 275
[8.17] Declaration 275
[8.19] Injunction 277
[8.21] Damages 277
[8.23] Negligence 278
[8.26] Breach of Statutory Duty 280
[8.28] Misfeasance in Public Offi ce 281
[8.30] False Imprisonment 282
[8.31] The 'Holding of Public Offi ce' and 'Sentences in Criminal Cases' 283
[8.33] The European Communities Act 1972 284
[8.35] Injunctions and Ministers of the Crown 285
[8.37] Damages 286
[8.40] Discretionary RemediesThe Walton Case 288
[8.41] The Human Rights Act 1998 289
[8.42] Binding Remedies 290
[8.42] The Relationship between Sections 6-8 290
[8.44] Damages 291
[8.47] Declarations of Incompatibility 292
[8.50] Conclusion 293