Publishers: Oxford University Press
Price £29.95 RRP UK
Publisher's Title Information.
The second edition of the popular Blackstone's Guide to the Freedom of Information Act 2000 is an essential tool for all those working within or advising public authorities. It provides a detailed, updated commentary on the Act and explains the mechanism for seeking access to information, the complex series of exemptions and the powers of enforcement available under the Act. In addition, it contains chapters on the historical development of open government in the United Kingdom and the freedom of information in other jurisdictions. Further commentary to reflect recent case law on the Data Protection Act 1998 is incorporated, and the text has been amended to reflect developments in Scotland and within the EU. The book also includes the full text of the Freedom of Information Act 2000.
REVIEW by Brian Rowland
It was with particular pleasure that the reviewer was sent the second edition of Blackstone's Guide to the Freedom of Information Act 2000 for comment, another addition to the admirable series published by the Oxford University Press. He had, for as long as he could remember, and he was born in the first quarter of the twentieth century, regarded this country as among the most secret and sadly, most classed on the planet. All down the years various scandals had permeated our society, almost without exception leaving victims and their families without redress and always short of information that was so desperately sought. Now with the Act in force, one is already catching glimpses of requests for information being made and granted. As one might have expected, the national press has been prominent in this regard but, there is still much to do and the courts will have their work cut out when called upon as the ultimate authority to determine the complexities of the legislation.
Human rights are, of course, important but that is not to say they allow unfettered freedom of information. Therein lies the dilemma. It may be that in the long term freedom of information, human rights and data protection will all come under one heading. That day however is away in the distance, bearing in mind that European laws and our own legislation are now intertwined. Such is not the case with Canada as indicated on page 18, where in a short, but helpful section on similar legislation in that country, a start has at least been made at local level by consolidating freedom of information and privacy law. The present link between the Act and the Data Protection Act 1998 is set out in Chapter 10, where it is stated correctly that the relationship between the two Acts is extremely complex and the following sentence goes on to say that it could be argued that it is undesirably over - complex. If only our laws could be brought more closely together, and kindred matters consolidated so that amendments could be incorporated in the main text, instead of requiring endless searching before the current state of the law can be established, it is submitted considerable savings in both time and money would be effected.
The advantage of a textbook containing both material and a copy of the Act, which of course this book has, is that the history leading up to the passing of the Freedom of information legislation is included in detail. The various scandals and public outcries that have provided such useful media copy over the years and ensured that the lid of secrecy had to be lifted and led to the opening of files hitherto kept firmly closed, are gone over. Indeed mention is made of the Bloody Sunday Inquiry, which is still proceeding and it will be interesting to see whether the deliberations will provide any clues as to how the Act coming into force will in any way affect the ultimate report.
The delay of over four years in implementing the Act is stated to be surprising, but one familiar with public bodies will know only too well the head scratching that must have gone on during that period in the offices of civil servants, who were being faced with a sea change in the way that information was going to be handled and that their work was going to be scrutinised in a way never before possible. That in fact, work has gone on without any serious criticism, is perhaps a reflection of the generally high standard maintained in our public offices.
A glance at the list of Public Bodies set out in Schedule 1 of the Act is a clear indication of the changes that have been brought about from the latter half of the twentieth century onwards. Quite apart from central and government bodies, other organisations have been established to exercise some form of supervisory control over a population that has now had thrust upon it a bewildering array of audio, visual and electronic information. In addition 24-hour news television programmes are broadcast every day of the year. The touch of a button brings news from around the world to the armchair in minutes. It is therefore not surprising that a news hungry public has become more knowledgeable. The desire for information and the general reticence to fulfil that need has made a Freedom of Information Act absolutely essential. The trick now will be to make it work. By putting together this book, the authors have done the nation a service, because whilst an Act contains the law, it does not explain why it has become necessary. We all live these days in a complicated society and to have available the benefit of a book such as the one under review is something to be especially appreciated.
Of course the Act will not prove to be faultless and in the fullness of time there will be criticisms and amendments, but a start has been made towards allaying the frustrations of those who have not been able to obtain the information they required and who have suffered in their various ways as a result.
Perhaps the greatest problem the terms of the Act will face is the matter of the public interest. It is a term easily and possibly sometimes flippantly used, by a lone decision maker that could have untold repercussions at a later stage. Perhaps some guidance might be given about supervising such decisions. Whilst the Act specifies a public authority as doing something specific, a ruling is made by an individual who can hide behind the name of the former. The reviewer submits that where there is the slightest inkling of a public interest issue, and by the very nature of the legislation that will be in most cases, then no single person should be charged with determining on which side of the line it lies. Even the smallest matter can sometimes create unforeseen problems and are most likely to receive the least scrutiny. Of course where absolute exemptions are laid down the laws must take its course, but no doubt the courts will from time to time have to pass judgments on such matters.
This has not been an easy book to review because the subject is in one sense new and another old. It cannot have been easy to put together. To those who will use it, give praise that you have a copy in your possession.
Brian Rowland 979/05/05 16th May 2005
Bail in Criminal Proceedings
Edition: 3rd 2005
Author: Neil Corre and David Wolchover
Publishers: Oxford University Press
Publication Date: 2004
Part of Introduction
The gaoler's office of a London magistrates' court used to display a notice that read 'PLEASE DO NOT ASK FOR BAIL AS A REFUSAL OFTEN OFFENDS'.
It could be added that there is a notice in the canteen at the Central Criminal Court which says,"Never plead Guilty" .Reviewer's Italics.
At the same court, the brief facts of a case were concluded with the words: 'He was arrested and cautioned, to which he replied, "Will I get bail?".' Practitioners will know of clients who accept with resignation a custodial sentence but campaign with all their energy for the grant of bail. It seems that the adage 'If you can't do the time, don't do the crime' does not apply to remands in custody. Bail is not only a subject of importance to defendants; it is also a matter of constitutional importance. Lord Haltom of St Marylebone, addressing the Gloucester branch of tine Magistrates' Association on 11 September 1971 in his capacity as Lord Chancellor, described the refusal of bail as '. . . the only example in peace-time where a man can be kept in confinement without a proper sentence following conviction after a proper trial. It is therefore the solitary exception to the Magna Carta'.
'The attempt of the judiciary to check the monarch's power of arbitrary arrest detention without trial formed an important aspect of the constitutional conflicts of the 17th century. The decision in Darnel's Case of The Five Knights' (1627) 3 St Tr 1, that there was no right to a writ of habeas corpus where the prisoner was detained per speciale mandatum regis (by special order of the King), the general issue of the powers of the royal prerogative were not finally resolved until the passing of the Bill of Rights in 1688 and the nascency of the doctrine of constitutional monarchy.
The right to habeas corpus continued - suspended during times of political unrest. The statute 34 Geo III, c.54, for example, prohibited any person imprisoned under a warrant signed by a Secretary of state on a charge of high treason from insisting upon being discharged or put on trial. Until recent times, the only admissible ground for refusing bail was that the defendant would fail to surrender to custody. For that reason the requirement of sureties for attendance was the only condition which could be attached to bail. More 'recently - in the period immediately after the Second World War - the risk , that a defendant would commit an offence if released on bail was acknowledged judicially as imposing a duty on courts to refuse bail.
Bail is an important to all involved in the criminal justice system, this book gives extremely good coverage of all aspects of the subject with an appendix on the Text of the Bail Act 1976 with the Bail Amendment Act 1993, s.1. Bail is a vast subject, however certain parts of the Act are more significant to Police officers, take for instance the imposing of Bail conditions, below is an article written in 1992 by the Reviewer.. Allowances should be made for any changes in the law.
Amazing bail conditions, Or Is an Englishman's Home his castle?
It was reported in The Times, 22 August 1992 that a coach driver had received 5 years' imprisonment for being drunk in charge of his coach, having being found almost three times over the legal limit. However it is another paragraph to which this article relates: "Long, a coach driver for five years, had been banned from drinking alcohol as a condition of his bail set at an earlier hearing." Are we to assume that an Englishman's home is no longer his castle?
S.3(6) of the Bail Act 1976 states, "He may be required to comply, before release on bail or later, with such requirements as appear to the court to be necessary to secure that the defendant surrenders to custody, does not commit an offence whilst on bail, does not interfere with witnesses or otherwise obstruct the course of justice, or to enable reports to be prepared."
At the Report stage of the Criminal Justice Act 1967 when conditions were first introduced the Secretary of State said, "It is hoped that the courts will keep in mind that the purpose of the provision is to save some people being kept in prison and not to burden those who will be in any event be granted bail by the adding of conditions. There should be no question of imposing conditions as a matter of course."
By 1979 a study by Michael Zander concluded that a third of the London bail cases attracted conditions. See The Operation of the Bail Act in London Magistrates' Courts 129 NLJ 108.
Some conditions such as reporting to a police station and surrendering a passport are common, however others are almost impossible to enforce.
In R v Mansfield Justices, ex parte Sharkey  Crim.L.R. 148 the Court held that while substantial grounds are necessary for refusing bail, conditions may be imposed if the risk of an offence is real and not fanciful.
This case is well covered in the book, see pages 92, 93, 104, and 259, (chapter 3.)
In 1984 Mansfield, East Redford and Worksop magistrates imposed the following conditions on NUM pickets,"not to visit any premises or places for the purpose of picketing or demonstrating in connection with the current trade dispute between the NUM and the NCB other than peacefully to picket or demonstrate at his usual place of employment". Having broken these conditions more stringent conditions were imposed, viz, "a curfew between 1.00 pm and 9.00 am and that they should not contact any working miner".
In letters in The Times these conditions were described as draconian, albeit a Crown Court Judge hearing an application to vary, then saw fit to alter then to, "1. not offensively to contract a working miner, 2. not to picket at any place other than their own work place, 3. not to visit Nottinghamshire except to see a solicitor or to attend court."
It was reported in The Times on 9 December 1986 that Oxford magistrates had at the request of the police banned a motorist from driving until his case came up for trial. Since the motorist was alleged to have driven at high speed with a policeman on the car roof, most police officers would have agreed. Those the other side of the fence would say, "it smacks of punishment before proof of guilt" The magistrates imposed the condition to prevent the commission of further offences. The authority to impose such a condition was, it is submitted, somewhat dubious, although see R v Kwame  R.T.R. 106).
In R v Bournemouth Justices, ex parte Cross, Griffin and Pamment  Crim L.R. 207 , (SEE Page 96 of book) the defendants were released on bail on condition that they did not attend any hunt meeting in England and Wales before their next appearance. Following this incident they were arrested again. Pamment indicated that in certain circumstances he would intervene to prevent a hunt being carried on illegally and that was taken by the justices as a refusal to agree to the imposition of the condition and he was remanded in custody.
It was held that where a defendant had indicated that in certain circumstances he would not be prepared to comply with a proposed condition, that did not justify the justices remanding him in custody as he was not in breach of any condition actually imposed. An order of certiorari was issued quashing the magistrates' decision
The justices' condition could have been imposed on Pamment and any later indication that he would attend a hunt could have been dealt with under s.7, in other words he should have been put to his proof. Had he refused to comply at the time the justices would have been correct.
It was reported in the Law Society Gazette on 23 January 1991 that John Ferriday, the former chairman of Eagle Trust had the novel condition that "he carry a mobile 'yuppie' 'phone with him so that he can be contacted by the police at any time". (Not so difficult now in 1999) It was stated to be the first time such a condition had ever been imposed by an English court.
It is not uncommon in some Magistrates' Courts to hear defendants told that a condition of their bail is, "not to enter a particular area of the city or town." How could you possible enforce this condition?
An even more unlikely condition is quoted by David Pannick in the Times, 24 December 1991, "Magistrates granted bail to a pensioner with a long history of homosexual offences, but on condition that he was banned from entering any public lavatory in Britain."
The New Law Journal, 137 NLJ 986, reported a most unusual request for a condition to be lifted. The defendant was subject to a curfew. The magistrates were asked to lift it, "so he can come to our office party".
It seems astonishing to reflect on the diversity of conditions imposed by magistrates, the question is, who do they think will enforce them?
The question of bail arises every time a criminal case is adjourned and the accused is remanded. This revised edition of the locus classicus on bail provides a uniquely comprehensive account of the law, practice and procedure at every stage from the police station to the House of Lords.
Bail in Criminal Proceedings includes:
· All the relevant primary and secondary legislation
· A comprehensive treatment of the Rules of Court
· Decisions of the Legal Aid Board Costs Appeals Committee
· Guidance on professional ethics
· The results of empirical research - including previously unpublished studies
· A thorough explanation of the new bail arrangements introduced by the Crime and Disorder Act 1998
Important recent case law, such as R v Isleworth Crown Court, ex parte Clarke (1998) on prosecution appeals against bail and P v Manchester Crown Court, ex parte McDonald (1998) on custody time limits
Contents Include: The Right to Bail; Surety and Security; Conditions Other Than Surety or
Security; Failing to Surrender; Renewed Applications for Bail; Police Bail; The Jurisdiction of
the Magistrates' Court; The Jurisdiction of the Crown Court; Bail Pending Appeal; The
Jurisdiction of the High Court; Vulnerable Suspects and Defendants; Custody Time Limits; The
Role and Duties of the Advocate on Matters of Bail.
'This book sets out all the material in one comprehensive volume which no criminal practitioner can afford to be without.'
The Magisterial Officer
'Bail in Criminal Proceedings brings a fresh approach to the question of bail. It is a thoughtful publication which is well written and easy to read...It is worthy of a place in the library of all those who are concerned with the judicial process.'
Justice of the Peace
Author: Dick Hobbs, Philip Hadfield, Stuart Lister, Simon Winlow.
Publishers Oxford University Press
Price: £35 Hardback
Publication Date: 2003
In recent years, the expansion of night-time leisure has emerged as a key indicator of post-industrial urban prosperity, attracting investment, creating employment, and regenerating the built environment.
These leisure economies are youth dominated, focusing upon the sale and consumption of alcohol. Unprecedented numbers of young people now flock to town centres that are crammed with bars, pubs, and clubs, and the resulting violent disorder has overrun police resources that remain geared to the drinking patterns and alcohol cultures of previous generations. Post-industrial restructuring has spawned an increasingly complex mass of night-time leisure options through which numerous licit and illicit commercial opportunities flow. Yet, regardless of the fashionable and romantic notions of many contemporary urban theorists, it is alcohol, mass intoxication, and profit rather than `cultural regeneration,' which lies at the heart of this rapidly expanding dimension of post-industrial urbanism.
Private security in the bulky form of bouncers fills the void left by the public police. These men (only 7% are women), whose activities are barely regulated by the State, are dominated by a powerful subculture rooted in routine violence and intimidation.
Using ethnography, participant observation, and extensive interviews with all the main players, this controversial book charts the emergence of the bouncer as one of the most graphic images in the iconography of post industrial Britain.
From the police point there is a section which looks at the relationship between bouncers and police, liaison is common over drugs.
Dick Hobbs is Professor of Sociology at the University of Durham.
Philip Hadfield is a Reseacher in the Department of Sociology and Social Policy, University of Durham.
Stuart Lister is a Research Fellow at the University of Leeds.
Simon Winlow is Senior Lecturer in Criminology at the University of Teesside.
Police Conduct, Complaints and Efficiency
Author: Fraser Sampson & Niran de Silva
Foreword by Lord Mackenzie of Framwellgate
Publishers (Blackstone Press) Oxford University Press
Publication Date: 2001
The law and procedure regulating the conduct of the police has become increasingly relevant to practitioners over the last 15 years. Now, with comprehensive changes to the ways in which all matters of police performance and conduct are reported, investigated and addressed, the importance of this area of law has expanded considerably. Concern over the proper investigation of complaints against police, the application of the Human Rights Act 1998 and the introduction of new Police Efficiency and Discipline Regulations have made this important new area more complex and controversial than ever.
Taking a highly practical approach, the book leads the reader through each stage of the relevant internal and external processes by which alleged poor performance or misconduct by the police can be addressed. Aimed at lawyers, personnel managers, senior and chief police officers, along with staff associations and 'friends', Police Conduct, Complaints and Efficiency sets out the respective functions of all the many participants within the investigative and disciplinary framework, providing the first comprehensive authority on the subject.
The book contains the full text of the Regulations and the Home Office Guidance to Chief Officers.
Contents Include: human Rights; The Status of Police Officers; Police Efficiency; Police Misconduct; Complaints Against Police; Reviews; Appeals; Senior Officers; Special Groups; The Role of the Higher Courts; Miscellaneous Offences and Regulations. Appendices.
In his Foreword Lord Mackenzie points out that this book considers the whole question of police officers' employment status on their appointment to the office of "constable". The police are not "employees" in the normal sense and do not enjoy many of the rights of other workers, such as the right to strike.
The constitutional position of the police in the context of the new human rights legislation in Britain is important, as is police efficiency, misconduct and the whole question of complaints against the police.
A book on this subject is an essential tool for the practitioner in the police service, for lawyers dealing with questions of police conduct.
The Author’s point out that, "The work of the police attracts a phenomenal amount of interest. A glance it the TV listings on any given day will testify to the peculiar and perennial appeal of policing as a spectator sport. As well as, or perhaps because of, this Public fascination, the police receive their fair share of attention from other Quarters - from editors and journalists, social scientists and politicians. And also, of course, from lawyers. As a result there have been many books about he police: about what they do and how they do it, what they should do, and what you can do about it if they don't."
This book should help all to understand the "minefield"
Author: Professor R. A. Duff
Publishers Clarendon Press Oxford (oxford University Press)
Price: £50 RRP UK
Publication Date: 1996
Impossibility or Impossible Attempts - what a goldmine for Examiners this has been.
(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.
(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.
(3) In any case where–
(a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but
(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,
then for the purpose of subsection (1) above, he shall be regarded as having had an intent to commit that offence.
It is interesting to reflect on just part of the law of attempts. At common law, no offence of attempt could be committed where it would have been impossible (even in theory) for the accused to succeed in committing the substantive offence. Thus, the accused could not be guilty of attempting to steal from a bag or pocket which was empty, and he could not be guilty of attempting to handle stolen goods if the goods in question had been recovered by the police and had accordingly ceased to be stolen Haughton v Smith  AC 476. This rule was abrogated by the Criminal Attempts Act 1981, s. 1(2), but the precise effect of that provision was for a time uncertain. In Anderton v Ryan  AC 560, the House of Lords held that a distinction had to be drawn between, on the one hand, the person who attempts to commit a crime but fails because the crime is impossible (the ‘empty pocket’ kind of case) and, on the other hand, the person who succeeds in doing an ‘objectively innocent’ act but labours under a mistaken view of the facts or circumstances, and wrongly believes that he is committing an offence.
Anderton v Ryan was thought to be an example of the latter type of case. R bought a video recorder in suspicious circumstances, firmly believing it to be stolen. There was, however, no evidence to prove that it was stolen, and the House of Lords held she could not be guilty even of an attempt to handle stolen goods. The decision was much criticised, and in Shivpuri  AC 1 the House of Lords acknowledged that their earlier decision was wrong. Lord Bridge said:
"I am satisfied . . . that the concept of ‘objective innocence’ is incapable of sensible application in relation to the law of criminal attempts . . . Any attempt to commit an offence which ... for any reason fails, so that in the event no offence is committed must, ex hypothesi, from the point of view of the criminal law, be objectively innocent. What turns what would otherwise . . . be an innocent act into a crime is the intent of the actor to commit an offence. . ."
In Shivpuri, S was charged with an attempt to commit an offence under the Misuse of Drugs Act 1971, s. 3(1). He confessed to acting as a recipient and distributor of what he assumed to be an illegally imported drug, but it transpired (to his surprise) that the substance in question was not a drug at all. It was held that he was still guilty of an attempt to commit the s. 3(1) offence.
If, however, the accused is not mistaken as to the facts, but wrongly believes that his actions amount to a criminal offence (i.e. as a result of his mistaken view of the law), this mistake cannot make him guilty of any criminal attempt. Section 1(2) does not apply in such cases, see Taaffe  AC 539.
This text book on the law of criminal attempts sets some of the problems about attempts in the context of deeper issues about the foundations of criminal liability:
Professor Duff begins with some persisting questions about the law of attempts. What should count as a criminal attempt? How severely should attempts be punished? Are there types of ‘impossible attempt’, which should not be criminal? These questions lead on to larger issues about the foundations of criminal liability. Why should we have a law of inchoate or non consummated crimes; and why should that law be a law of attempts? Should criminal liability be determined by purely ‘subjective’ criteria (for instance by the intentions and beliefs with which the agent acted); or should it also depend on the ‘objective’ or actual impact of his action on the world? Such questions lead to yet larger questions in the philosophy of action and in moral philosophy; about the nature of action, about culpability, about the significance of ‘moral luck’.
Professor Duff articulates and defends an ‘objectivist’ account of criminal liability against the 'subjectivist' tendencies of much contemporary legal theory; and this account offers persuasive answers to the problems with which the book began.
R. A. Duff is Professor of Philosophy at the University of Stirling.
Police, Trauma, and the Psychology of Survival.
Author: Henry, V. E.
ISBN: 0 19 515765 6
Publishers: New York: Oxford University Press
Publication Date: 22nd April 2004
Contemporary urban police officers are routinely exposed to the death of others, as well as to frequent and profound encounters with their own mortality. Here, Vincent Henry draws on two disparate bodies of theory and research - policing and the psychology of human responses to death - to illuminate how officers and their subculture are shaped by exposures to death. Through extensive field observation and structured interviews with NYPD officers, Henry defines and distinguishes the range and types of exposures to death in four "task environments": the rookie cop, patrol sergeant, homicide detective, and crime scene technician. He differentiates the officers' experience from others involved in death work, such as doctors, soldiers, and rescue workers, by exploring their singular occupational culture - the potential for violent death, the ritual of police funerals, strong in-group solidarity. Ultimately, the book reveals patterns of psychological transformation and social consequences of police encounters with death. Henry identifies common themes, including psychic numbing, the death imprint image, suspicion of counterfeit nurturance, death guilt, and the quest to make meaning. With a foreword by Robert Jay Lifton and a chapter devoted to the local police response to the World Trade Center attacks, Death Work will be of interest to psychologists and criminal justice experts, as well as police officers eager to gain insight into their unique relationship to death.
This book has been written by a retired police officer who has experienced numerous traumas and has gained insight into the feelings that must be experienced by anyone working with death and casualties. One might say that the work was inspired by one particular incident, although not the only one, the terrorist attack of 9/11 on New York. The books demonstrates the resilience which needs to be developed by those working in the sphere of fire fighting, police work, and other occupations directly connected with potential death or devastating situations. These experiences become repetitive for those working within the police force and create certain psychological repercussions.
Michael Lesy describes the work of these people as working in the “forbidden Zone” or “zone of death”. Doctor Henry has had personal experience in working with cases of grotesque and gruesome forms of death and has carried out research in this area. Dr Henry does not conclude the book with a pessimistic outlook but rather views such as experiences of helping one to become a better police officer. Sometimes this necessitates police officers suppressing their emotions while carrying out their important duties.
Dr Henry attempts to analyse the mind of police officers albeit they are all different as we all are. This book is especially valuable as the author has considerable experience having spent 21 years in a New York police department where he held the rank of Sergeant-Special Assignments and was Commanding Officer of the Special Projects Unit in the Police Commissioners Office of Management Analysis and Planning. He also had the honour of being given a Fulbright Scholarship and earned a doctorate from the Graduate School and University Centre of the City University of New York (John Jay). He is currently Associate Professor of Criminal Justice at Pace University New York.
The book consists of nine chapters and a very meaningful epilogue dated September 11th 2001. The book describes the initial meeting of young police officers with death and their capacity to promote coping strategies over the years as they repeat these experiences.
Officers such as those in New York are faced with a complex array of violent acts including acts of violence against themselves and are witness to the death of their fellow officers. This entails to some degree some form of psychological trauma hence being a police officer is not merely a question of doing a job but frequently revolves around being able to survive and helping others to do the same. Eventually there is a certain professional numbing due to the experiences encountered and this makes it possible for police work to continue over long periods of time. It is not surprising with the work carried out working with violence and death on a daily basis that a number of police officers suffer from post-traumatic stress disorders of various kinds and over varying periods.
The book is well written and relies heavily on academic research as well as practical research into the lives of police officers, the problems they face, and how they deal with these problems. It is therefore a book which is of value not only to police officers but those associated with them including those working for the fire service or other rescue services as they are likely to have similar experiences. Having such experiences of seeing death regularly provides the police officers with a continuing feeling of their own mortality. The book is speckled with real life anecdotes of the experiences of police officers including those of the author himself. This brings the book alive and makes it interesting in its content as both theory and research, and reality are intertwined.
Such a book would be of great value to police academies worldwide.
Dr L. F. Lowenstein,
ABOUT THE AUTHOR
Vincent E. Henry, Ph.D., recently retired from a 21-year career in the NYPD, where he held the rank of Sergeant-Special Assignment and was Commanding Officer of the Special Projects Unit in the Police Commissioner's Office of Management Analysis and Planning. The first American police officer to be named a Fulbright Scholar, he earned his doctorate from the Graduate School and University Centre of the City University of New York (John Jay) and is currently Associate Professor of Criminal justice at Pace University in New York.
Author: Jeremy Horder
Publishers: Oxford University Press
Price £50 RRP UK
Publication Date: August 2004
When should someone who may have intentionally or knowingly committed criminal wrongdoing be excused? Excusing Crime examines what excusing conditions are, and why familiar excuses, such as duress, are thought to fulfil those conditions.
The "classical" view of excuses sees them as rational defects (such as mistake) in the motive force behind an action, but contrasts them with "denials of responsibility", such as insanity, where the rational defect in that motive force is attributable to a mental defect in the agent him- or herself. This classical view of excuses has a long heritage, and is enshrined in different forms in many of the world's criminal codes, both liberal and non-liberal; however, in this book, Jeremy Horder contends that it is now time to move beyond it.
Horder develops a "liberal" account of excuses, arguing that the "classical" distinction between rational defects and 'denials of responsibility' is too sharp, and also that the classical view of excuses is too narrow. He contends that it can be right to treat claims as excusatory even if they rely on a combination of elements of rational defect in the motive force behind the action, even if that defect is in part attributable to a mental deficiency in the agent him or herself ("diminished capacity"). Further, he argues that there can be a sound case for excuse even when people can give full rational assent to their actions, such as when they could not reasonably have been expected to do more than what they did to avoid committing wrongdoing ("due diligence"), or, more rarely, when their conscience understandably left them with no moral freedom to do other than commit the wrong ("demands-of-conscience").
The Author is Reader in Criminal Law; Porjes Trust Foundation Fellow; and Tutor in Law at Worcester College, Oxford.
General Editor's Introduction
This monograph stands out as an original and sustained contribution to the development of coherent criteria for the recognition of excuses for otherwise criminal conduct. Despite uncertainties in English law about the scope of the courts' freedom to create new forms of excuse, the subject has a continuing vitality on several levels. The kind of scholarly exploration of the issues found in this volume is not only important in intellectual terms as a refinement of the doctrinal foundations of the criminal law, but it is also capable of stimulating (directly or by indirect means) initiatives by law reformers, appellate courts, and even judges and lawyers at trial level. Jeremy Horder raises a whole range of issues about the social and political significance of recognizing excuses, and about the preferred analysis of the conditions giving rise to excuses. The book assesses an array of particular excuses, from mercy killing to mistake of law, from duress to due diligence, in the context of an analysis that draws on philosophical argument and much more. This is a fine study that will provide a new point of departure for debates about criminal liability.
From the Author’s Preface
I hope not too much justification is really needed for writing a book concerned with when and why the law should excuse those who admit having committed wrongdoing intentionally or knowingly. Plenty has been written about justification and excuse (some more will be said here, in chapter 3.1); but in discharging the burden of explaining the basis of the vital distinction between those two concepts, it is all too easy to lose sight both of the broad sweep of background explanation for excusing in general, and of the theoretical detail required to explain individual excuses themselves. In seeking to provide both that background justification, and the theoretical detail, this book can be thought of as a companion volume to R. D. Mackay's study of what I would-but he might well not-call (partial) denials of responsibility: insanity, automatism, diminished responsibility and unfitness to plead, in his work entitled Mental Condition Defences in the Criminal Law (Oxford: Clarendon Press, 1995).
Very long monographs are nowadays destined to remain unread, and it is inexcusable to do nothing more in a book than simply repeat or refine what one has already made tolerably clear in articles elsewhere. So, I have tried to stay reasonably brief in what I have to say (within the constraints imposed by the need to take others' arguments with the seriousness they deserve), and relatively fresh in my thinking. No doubt, in both respects, the book could have been very considerably improved.