INTERNET LAW BOOK REVIEWS - Provided by Rob Jerrard LLB LLM (London)

OXFORD UNIVERSITY PRESS


Blackstone’s Guide to The Domestic Violence, Crime and Victims Act 2004

Authors: Elizabeth Lawson QC, Melanie Johnson, Lindsay Adams, John Lamb and Stephen Field

ISBN: 0199281890

Publishers: Oxford University Press

Price £29.95 RRP UK

Publication Date: 5th May 2005

Publishers Description of the Book

Provides a full, clear analysis of the Act and a detailed explanation of its many provisions

Examines the Act in detail and explains how it amends related legislation, notably the Family Law Act 1996, the Criminal Procedure (Insanity) Act 1964 and the Protection from Harassment Act 1997

Gives practical pointers on changes to practice and procedure

Contains the full text of the Act, plus the text of key related legislation as amended by the Act, allowing practitioners to access the relevant legislation quickly and easily

Has a clear and easy to use layout, aiding quick reference

Is an essential tool for all those working in criminal and family law

The Domestic Violence, Crime and Victims Act 2004, introduces new powers for the police and courts to tackle offenders whilst ensuring that victims get the support and protection they need. The Act received Royal Assent at the end of 2004 and will have a significant impact on existing law and practice. Implementation of the Act will be rolled out in stages from April 2005. The new Act creates a number of important provisions for example: there are new procedures to deal with multiple offending; breach of non-molestation orders becomes a criminal offence; and causing or allowing the death of a child or vulnerable adult becomes a new offence.

Contents

  • Foreword by the Right Honourable Lord Justice Judge
  • 1 Introduction
  • 2 Changes to the Law on Domestic Violence
  • 3 Causing or Allowing the Death of a Child or Vulnerable Adult
  • 4 Evidence and Procedure: England and Wales
  • 5 Domestic Homicide Reviews
  • 6 Assault and Restraining Orders
  • 7 Surcharges
  • 8 Trial by Jury of Sample Counts Only
  • 9 Unfitness to Plead and Insanity
  • 10 Miscellaneous
  • 11 Victims, Etc
  • APPENDIX A - The Domestic Violence, Crime and Victims Act 2004
  • APPENDIX B - Criminal Procedure Insanity Act 1964 ss 4, 5 and 5A as amended
  • APPENDIX C - Family Law Act 1996, Part IV as amended
  • APPENDIX D - Protection from Harassment Act 1997 ss1 to 7 as amended
  • APPENDIX E - Useful Addresses

REVIEW

The Domestic Violence, Crime and Victims Act 2004 was passed on 15 November 2004.  At the time of writing its substantive provisions were not yet in force; they will commence by order of the Secretary of State (s 60). The Act creates new offences (including a homicide offence) and contains important procedural reforms

The 2004 Act is in three Parts.  Part 1 deals with domestic violence, Part 2 with criminal justice matters such as, police powers and court procedure, and Part 3 deals with victims and in particular their rights and the Victims' Code.  In general, the Act applies only to England and Wales

Those that relate more directly to the police are.

Breach of a non-molestation order will be treated as a criminal offence.

Section 10 of the Act makes common assault an arrestable offence under the Police and Criminal Evidence Act 1984.  Section 11 amends s 6 of the Criminal Law Act 1967; offences that may be joined in indictments under s 40 of the Criminal Justice Act 1988 (including common assault) are now offences 'falling within the jurisdiction of the court of trial' and therefore available alternative verdicts, even if no count charging them is included on the indictment. However, if a defendant is convicted of one of these offences in this way the court may only deal with him in a manner in which the magistrates' court could have dealt with him for it.

This is something which I welcome.  I spent my entire career at the sharp end, by this I mean in the ranks of Constable, Sergeant and Inspector and consider this power, if exercised correctly will assist a lot of people who hitherto were left to pursue their own remedy.  All Police officers will be aware that a domestic can often be one of the most difficult situations to deal with.  Parts of this statute will have to be inserted into the Police manuals and there are new offences and powers to learn.

Schedule 1A of PACE 1984 sets out specific offences, the penalties for which are less than five years' imprisonment, and makes them arrestable offences.  Section 10(1) of the Domestic Violence, Crime and Victims Act amends that Schedule to include common assault.  'Arrestable offence' is an offences for which the sentence is fixed by law, those which carry a sentence of five years' imprisonment or more, and those set out in Sch 1A.  It includes attempts to commit those offences and acting as a secondary party.

This is not before time, police who attend ‘domestics’ will be able to arrest a person who has or whom they reason­ably believe to have committed a common assault, thereby giving a protection to the victim which is currently lacking.  Thus even before a non-molestation injunction is obtained, the police will now have the power to arrest those who are threatening immediate violence or using it.

 The power to arrest without warrant for an arrestable offence, however, is not confined to the police.  Section 24(4) provides that ‘any person’ may arrest any­one who is in the act of committing an arrestable offence or anyone whom he has reasonable grounds for suspecting to be committing such an offence. Simi­larly, where an arrestable offence has been committed, any person may arrest anyone who is guilty of the offence or anyone whom he has reasonable grounds for suspecting to be guilty of the offence.

Only the police have the power to arrest without warrant someone who is either about to commit an offence or whom they reasonably suspect is about to do so: s 24(7).  Where the police are called to an escalating incident of domestic violence, they would be able to arrest someone about to commit an assault or whom they reasonably believe is about to assault someone else.

All the requirements for any lawful arrest will apply to an arrest for common assault, whether by the police or anyone else.  The person must be informed of the true reason for his arrest at the time, even if, in the case of arrest by a constable, the reason for the arrest is obvious.  Only such force as is reasonable in all the circumstances may be used.   A person making an arrest is obliged to ensure that the person arrested is properly taken into custody.  In the case of a member of the public this is achieved either by handing the arrested person over to a constable or taking him to the police station.  The codes of conduct under the Police and Criminal Evidence Act 1984 apply.

The new power to arrest for common assault is not limited to            situations of domestic violence.  Take public disorder, for example, it would allow the police to avoid the restrictions on arrest imposed by the Public Order Acts. The extent to which this new power will encroach upon the legitimate freedom to demonstrate in public places remains to be seen.

Section 5 reforms the law of homicide, in an attempt to deal with the difficult situation where it is suspected that a child or vulnerable adult has been unlawfully killed by one of his carers.   The following must be proved:

(1)   That a child or vulnerable adult has died as a result of the unlawful act of a person who was a member of the same household as vulnerable adult and had frequent contact with him;

(2)   The defendant must have been such a person at the time of that act;

(3)   At that time there must have been a significant risk of serious physical harm being caused to the vulnerable adult by the unlawful act of such a person;

(4)   Either the defendant committed the act that caused vulnerable person’s death, or the defendant  was, or ought to have been, aware of a 'significant risk of serious physical harm' to the vulnerable person, failed to take reasonable steps to protect the vulnerable person  from that harm, and the act occurred in circumstances of the kind that the defendant  foresaw or ought to have foreseen.

Crucially, the prosecution does not have to prove whether it was the defendant that caused the death or whether the defendant was simply one of those persons who fulfilled the other criteria, merely that one of those alternatives must have been the case.

Unless the defendant is the parent of the vulnerable person, he must have been at least 16 years of age at the time that the act causing the vulnerable person's death occurred, and he is not to be expected to have taken steps to protect the vulnerable person from the risk of harm before attaining that age.

A 'member' of a household does not have to live in the household, if he visited it so often and for such periods of time that it is reasonable to regard him as a member of it. The relevant household is the one where the vulnerable person was living at the time when the act causing his death occurred. An 'unlawful' act is any act constituting an offence or that would constitute an offence but for being the act of a person under 10 years of age or an insane person (these exceptions do not apply to the defendant's acts). 'Act' includes a course of conduct or an omission: the section therefore deals with death by neglect as well as by abuse. 'Serious' harm means harm equivalent to grievous bodily harm. A 'child' is a person under 16; a 'vulnerable adult' is a person 16 or over 'whose ability to protect himself from violence, abuse or neglect is significantly impaired through phys­ical or mental disability or illness, through old age or otherwise'.

The offence is triable only on indictment and carries a maximum sentence of 14 years' imprisonment and/or a fine.

Section 6 of the 2004 Act relates to evidence and procedure for prosecutions under s 5 in England and Wales.   It makes provision for cases where a defendant is charged with a murder or manslaughter offence in addition to the s 5 offence, seeking to prevent the murder or manslaughter charge from disappearing at an early stage due to lack of evidence.  In these cases the court cannot consider whether there is a case to answer on the murder or manslaughter charge while the s 5 charge subsists, until all the evidence has been heard. In circumstances where the court or jury can draw inferences from silence under s 35(3) of the Criminal Justice and Public Order Act 1994 in relation to the s 5 offence, it may also do so in determining the defendant's guilt of murder or manslaughter or any alternative verdict to murder or manslaughter even if there would not otherwise be a case to answer in relation to that offence. The murder or manslaughter charge cannot be dismissed under para 2 of Schedule. 3 to the Crime and Disorder Act 1998 unless the s 5 charge is dismissed.  Section 6 provides that the s 5 offence is a homicide offence for the purposes of provisions relating to young defendants' mode of trial, sending to Crown Court and place of sentence.

Part 2

Section 15 amends s 3 of the Criminal Justice and Police Act 2001 to increase the amount payable as an on-the-spot fine for disorderly be­haviour by one half of the relevant surcharge.  The 'relevant surcharge' is the amount payable by surcharge under s 161A of the Criminal Justice Act 2003 by a person of that age who is fined the maximum amount for the offence.

The 2004 Act also envisages higher fixed penalties for repeat road traffic offenders Section 16 amends s 53 of the Road Traffic Offenders Act 1988 to allow an order to prescribe a higher fixed penalty in a case where a defendant was disqualified from driving or received penalty points up to three years prior to the date of the instant offence.

Powers of authorised officers executing warrants

Section 27 and Schedule 4 to the Act insert a new Schedule 4A into the Magistrates' Courts Act 1980 Schedule 4A, as inserted, makes various provisions as to the powers of authorised officers executing warrants Under Schedule 4A, para 1, an 'authorised officer' is a civilian enforce­ment officer entitled to execute a warrant under s 125A of the Magis­trates' Courts Act 1980, or an approved enforcement agency entitled to execute it by virtue of s 125B of the 1980 Act.  Premises are also defined here.

There are many other matters that touch upon Police work which one would expect from a statute which deals with domestic violence. 

Rob Jerrard



Police, Probation & Protecting The Public

Author: Mike Nash

ISBN:1854317350

Publishers Blackstone Press (Oxford University Press)

Price:  £21.99 RRP UK

Publication Date: 1999

The importance attached to `protecting the public' within the Criminal Justice process has remained undiminished by the transition from a Conservative to a Labour government. Public protection has become an influential and increasingly dominant issue for a variety of criminal justice agencies, especially the police and probation services.

Police, Probation and Protecting the Public traces the political and legislative origins of the present public protection agenda, using this as background to explain the difficult situations in which practitioners have to carry out their duties. The collaborative agenda developed between police and probation services is examined in detail alongside recent policy and legislative initiatives.

Issues covered in this book include:

What is dangerousness?

How do people become labelled as dangerous?

The political and social construction of dangerousness

The changing roles of police and probation officers

Managing risk and dangerousness in the community

An international perspective

A consideration of rights

Case Scenarios to illustrate key points

Essential Reading for those charged with the job of protecting the public.



Policing and the Condition of England, Memory, Politics and Culture

Policing and the Condition of England, Memory, Politics and Culture

Authors: Ian Loader & Aogan Mulcahy

ISBN: 0198299060

Publishers Oxford University Press

Price: £50 RRP UK

Publication Date:

This work is part of the Clarenden Series in Criminology published by Oxford University Press under the auspices of the University of Cambridge and others.

The result of a two-year study, it sets out ‘to address the pathologies and possibilities that attend the connection between police, state and nation’.  To achieve this the authors draw on a wealth of documentary material, biographical and oral history plus interviews with retired and serving police officers, politicians and civil servants.

 The stated purpose is ‘to arrive at a better understanding of the mutually conditioning relationship that exists between policing and the condition of England’.  They conclude that policing today is dominated by a culture of scrutiny and complaint, a culture structured around ‘managerialism, consumerism and multicuturalism’. The authors will find many agreeing wholeheartedly with this conclusion.  Successive governments have sought to exercise ever stricter central control over policing while at the same time imposing concepts previously, and possibly rightly, thought to be applicable only in the commercial world. 

The book treats 1945 as its starting point and charts a series of changes over half a century.   Changes within society itself and within the police service are examined in detail and a ‘sharp rupture with the past’ is noted.  Not surprising, after a fifty year period which saw the most dramatic increase in crime and disorder since the late eighteenth century. 

Extracts from conversations with senior and junior police officers, serve to illustrate some of the perceived changes while comments from the public, including the ‘disenchanted’, make interesting reading. Readers may not always agree with some of the ‘police’ and ‘lay’ views expressed since some contributions appear to have been offered without the requisite forethought.  One wonders whether some of the contributors would have said what they did had they known what their comments would look like in print!  But, on the whole, readers are likely to concede that the views put forward, if occasionally inelegant, serve to illustrate the points the authors wished to make. 

In a work which is strong on detail are there any stones left unturned?  Well, perhaps a few.  The drugs problem for instance, is dealt with very briefly as if only a minor part of the overall problem.  The views of the authors and members of the police and the public, drug squad officers and addicts alike, would have been interesting.  Race is dealt with as if, perhaps, the problem was merely one of black versus white.  The views of the public on the influx of so-called asylum seekers, of whatever race or colour, in the past decades remain unstated.  Other settlers, such as the Poles and Chinese, whose assimilation and acceptance took place comparatively quietly, are ignored.  Finally, in more recent years, the question of national security, whether from PIRA bombing or from further afield, which has occupied so much of recent police thinking, is dealt with all too briefly.  These issues are all highly relevant in comparing the world of 1945 with that of 2002 as far as ‘policing and the condition of England’ is concerned.  However, their exclusion, although a matter of disappointment, does not invalidate the authors’ overall conclusions.

These observations apart, readers, once they get used to words such as ‘dramaturgy’ and ‘desacralization’, are likely to conclude that the authors have been very shrewd in their examination of the changes in society, policing and police attitudes in the second half of the twentieth century.  Apart from the main text there are 23 pages of notes, free from jargon and crafted with considerable clarity.  These offer concise commentary on subject matter contained within the general text. 

Essentially a ‘book for the academic’, it contains quotes from many other authorities to help make the authors’ case.  A worthy addition to academic libraries it is an excellent study of many aspects of the law and its enforcement over the second half of the twentieth century.  The commentaries on the various documents and statutes cited, for example the Macpherson Report and the various Police Acts, are excellent.  Although not their primary objective the authors have, at the same time, produced a valuable addition to the history of policing.

PR

19th July 2004


The fly cover of the book states; "Citizens, it is said, have 'lost faith' in the English police. Opinion polls repeatedly show that trust in, and respect for, the police have declined precipitously from the historically high levels achieved during the 'golden age' of the 1950s. Successive decades of rising crime, political violence and urban disorder, miscarriages of justice, and declining effective­ness have left the police in what seems to be a permanent crisis of legitimation A once revered national institution has become thoroughly profane."

The Preface and acknowledgement at xiii sums up for my generation of police officers what has gone wrong within the service; here it states:-

"We argue in Chapter 9 that English policing is today ‘dominated’ in ‘Williams’ terms by a culture of scrutiny and complaint.  It is a culture structured around managerialism, consumerism, and multiculturalism; a culture shaped by processes of detraditionalization; one that that exhibits a deep - mutually, if asymmetrically, conditioning-affinity with what in the last several decades of the twentieth century has become a pluralistic, indi­vidualized, consumerist society. But these dominant tendencies compete, we argue, with both ‘residual’ and ‘emergent’ elements in a bid to determine the shape and future of English policing.  In respect of the former, they wrestle with those forces and outlooks that yearn for an ‘England’ that was more orderly, disciplined, cohesive, and white-a vision of the past that is mobilized to make sense of, and to condemn, the present.  This police-centred and generally reactionary cultural form-one expressing a deep emotional attachment to the authoritative social magic of policing-today assumes a marginal, oppositional place in English policing culture"

There is too much brain washing of individuals.  The constitutional position of a "Constable" was always that he was a trained individual, who, once outside the police station on patrol made his own decisions based on his own judgment and common sense. This was what made the "Job" so interesting and challenging.  He didn’t have somebody dictating policy all day long. A decision was made and you stood by it and largely you were backed up.

In this new work on the relationship between English policing and culture, Ian Loader and Aogan Mulcahy reassess and revise the fate that has befallen the English police.  Paying close attention to the symbolic and cultural significance of the police, Loader and Mulcahy document the mix of profane and sacred sensibilities that struggle with one another to determine the contours of what they call ‘English policing culture’. They draw upon documentary analysis of official ‘representations’ of policing, and oral historical research with citizens, police officers, former government ministers, and civil servants, to show that, far from being ‘demystified’, policing is a cultural institution that remains deeply entangled with questions of subjectivity, recognition, belonging, and collective identity.

This important book does shed new light on the social changes and conflicts that have called police authority into question in the decades since 1945 and offers an important appraisal of what is at stake in the contemporary cultural politics of policing.

Rob Jerrard


Ian Loader is a Reader in the Department of Criminology at Keele University.

Aogan Mulcahy is College Lecturer in the Sociology Department at University College, Dublin.



Rape and the Legal Process

Edition: 2nd

Author: Jennifer Temkin

ISBN:            0198763549

Publishers Oxford University Press

Price:  £60 RRP UK

Publication Date: 2002

During the years I have been involved with the criminal law, the definition of rape and the way it is dealt with have changed.  When I first learnt the definition it was only possible for a woman to be raped, and then it had to be, according to the definition, “unlawful”, “outside the bonds of marriage”.  In 1956 it simply said, “It is an offence for a man to rape a woman”, the common law dealt with the definition.

Until 1994 the offence of rape could only be committed by a man against a woman.  Section 142 of the Criminal Justice and Public Order Act 1994 amended the s.1 offence to include male victims. A further amendment to the law relating to sexual offences was brought about by the Sexual Offences Act 1993, s.1 which abolished the presumption that a male under the age of 14 was incapable of sexual intercourse.

Rape is triable on indictment. Life Imprisonment. (It is what is known as a Serious arrestable offence)

For several decades, public disquiet has been inter­mittently but vehemently expressed about the crime of rape and the way it is handled by the criminal justice system. But in the new millennium the legal process still fails to provide an adequate response to sexual violation and abuse.  Rape and the Legal Process examines some of the difficulties which this crime presents and analyses in detail how the legal system should be addressing them.

Central issues considered, include the experience of rape victims, their treatment by the police and the courts, and the inadequacies of the present law and the surrounding rules of evidence.  Changes enacted in many different jurisdictions, such as schemes for legal representation for victims of sexual violence, are evaluated.  This is a clear, comprehensive, contextual analysis of the current law, highlighted by a consid­erable amount of comparative material and detailed proposals for change.  It will be of interest to practising lawyers, social workers, forensic medical examiners, and teachers and students of criminal law, criminology and criminal justice, gender studies, and sociology.

Jennifer Temkin, LLD Barrister, is Professor of Law in the University of Sussex.

From the Author’s Preface

This is not a book about why men rape women or other men. It does not seek to defend or attack the notion that rape is the product of a patriarchal society or that it is an extreme manifestation of what Professor Terence Morris has described as our society's predatory attitude towards women.  It will not talk of other societies such as that of the Minangkabau of Western Sumatra where rape, we are told, scarcely ever occurs.  Nor does it discuss the implications of rape as a crime in international law.  All this has been discussed cogently, and at times brilliantly, elsewhere.  Indeed, it is discourse of this nature which has transformed our understanding of rape and ensured that those who experience and complain of it are no longer dismissed rou­tinely as liars or fantasists, but are recognized increasingly as genuine vic­tims.

Advances in thinking about rape have produced fundamental legal change in many countries.  In England and Wales, however, law reform has pro­ceeded at a measured pace.  The purpose of this book is to examine some of the difficulties which rape presents for our criminal justice system and how these could and should be addressed.  In Chapter 1, the plight of the rape vic­tim and the response of the criminal justice system is discussed.  Chapter 2 deals with the present law of rape in England and Wales and discusses law reform within the existing structure of sexual offences.  Chapter 3 considers some of the more radical alternatives adopted in other common law juris­dictions.  Chapter 4 examines aspects of the law of evidence as it applies to sexual offences. Finally, in Chapter 5, other methods of assisting rape vic­tims are canvassed.

This 2nd edition should be read by all police officers; it is an offence they will deal with at some time.  This excellent book will re-inforce the training now given.  It must be emphasized just how devastating this crime is, there can be nothing worse short of murder.

Rob Jerrard



Title: The Death Penalty

Edition: 3rd Edition

Author: Roger Hood

ISBN 0199251290

Publishers OXFORD UNIVERSITY PRESS

Price:  £

Publication Date: 2002

Since this important book was first published in 1989, it has been recognized as the standard work on the scope and practice of capital punishment worldwide. It was greatly expanded in the second edition, published in 1996. This third edition of Professor Hood's highly praised study takes into account the wealth of new information that has come forth over the last six years. This edition shows that the move to abolish the death penalty worldwide has continued to gather pace, despite a few set-backs, and that international organiza­tions and human rights treaties have increased the pressure on retentionist countries. It also explores how in some parts of the world the range of crimes subject to the death penalty remains wide and the number of executions considerable, and how, although much still remains to be done, there have been further developments in securing protections for those facing the death penalty in retentionist countries. Roger Hood has brought up to date his reviews of studies which shed light on the realities of capital punishment, especially as regards arbitrari­ness and discrimination in its infliction. He also looks further at claims that the death penalty is a unique deterrent to murder and other serious crimes, and at the role of public opinion in the debate on capital punishment.

As in the previous editions, Roger Hood has drawn on his experiences as consultant to the United Nations for the Secretary-General's five ­yearly studies of capital punishment and the observance of safeguards for those facing the death penalty, as well as the extensive literature emanating from non-governmental organizations and academic experts.

This thorough revision of Roger Hood's influential study will be of great interest through­out the world to these concerned with capital punishment.

Roger Hood, CBE, QC (Hon), DCL, FBA, is a Fellow of All Souls College and Director of the Centre for Criminological Research at Oxford University. He is a member of the British Foreign Secretary's Death Penalty Panel.

Reviews to date

'The skill with which this material is brought together and evaluated from all over the world makes this book a documentary masterpiece ... it is also an important contribution to the general theory of deterrence.'

Professor Heike Jung, Zeitschrift fur Strafvollzug and Straffalligenhilfe

‘. . . it ought to be compulsory reading for all the politicians throughout the world who have to decide or vote on whether the death penalty should be held or abolished’: Justice of the Peace.

‘. . . among the required readings for those who desire to understand in depth the persistence of the death penalty sanction in the United States and around the world ... Hood tackles a daunting topical charge with sweep and incisiveness...' Neil Alan Weiner, Criminal Law Forum.

'Hood's review provides authoritative comprehensive coverage of a whole range of issues associated with the death penalty. . . '

Professor Rod Morgan, British Journal of Criminology

' . . . brings an international human rights perspective to the discussion ... its worldwide perspective brings another dimension and greater depth to the arguments surrounding the return of executions to America:

Leigh B. Bienen, The Journal of Criminal Law and Criminology


Review

Roger Hood’s magisterial The Death Penalty: A Worldwide Perspective.  First published in 1989 Hood’s work is now in its third edition, with a fourth due shortly.  Thoroughly updated since it first appeared, and expanded since the second edition in 1996 Hood provides some limited glimmers of hope for those abolitionists amongst us in that he detects that the move towards abolition has continued to gather pace.  As of December 2001 there were 75 totally abolitionist countries, and only 71 which had carried out executions in the last 10 years.  Of those Western countries that retain the death penalty only 38 states of the USA, and the English speaking commonwealth Caribbean countries continue to use the death penalty, and the greatest resistance to abolition remains in the Middle East, North Africa, and Asia.  Hood’s book is a one-stop shop for all those who would like to see the death penalty abolished throughout the World and who need good academic materials to back-up their case.  I wonder if it will make the required reading lists of undergraduate criminology courses in the USA?

David Wilson