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The criminal courts have a power to stop a prosecution from proceeding altogether where it would be inappropriate for it to continue. This power to stay proceedings which constitute an abuse of the process of the court has assumed great practical significance and is potentially applicable in many situations. There is at least one consideration of the abuse of process doctrine in virtually every major criminal trial today. This fully updated second edition of Abuse of Process and Judicial Stays of Criminal Proceedings blends doctrinal discussion with a thorough consideration of the underlying theory to provide a searching analysis of the theory and practice of abuse of process in England and Wales, with comparative examinations of many other jurisdictions including the USA, Canada, Australia, and New Zealand. This edition focuses in particular upon the profound impact of the European Convention on Human Rights on the judicial discretion to stay criminal proceedings. It explores substantial amounts of important recent case law, taking into account ECHR jurisprudence and discussions in English courts of the interplay between Article 6 ECHR and abuse of process.

Criminal law has been described as a species of political and moral philosophy; whether that can be said to be true is not at all certain, but criminal law can be the subject of philosophical study. The aim of this book is to explore some of the philosophical foundations of criminal law. English and North American contributors have produced chapters for this volume.

Until quite recently it was commonplace to describe the witness as the ‘forgotten man’ in the criminal justice system. The last few years have seen a dramatic shift in thinking with an increasing recognition of the legitimate expectations and rights of witnesses within the criminal process. At the same time research has drawn attention to a host of factors that conspire to deny the courts access to the best evidence potentially available when so-called vulnerable and intimidated witnesses are called upon to testify in accordance with conventional adversarial trial procedures and methods. The official response so far embodies an approach best described as one of accommodation. Efforts have centred on improving the treatment of witnesses within the established trial framework while preserving an overall commitment to key tenets of adversarial theory. The latter include the principle of orality with its general insistence upon direct evidence and the use of cross-examination as a device for testing the credibility of witnesses. The central contribution of this book lies in its demonstration of the significant limitations of the prevailing approach, most recently manifest in the Youth Justice and Criminal Evidence Act 1999. By providing a broader theoretical framework for understanding the treatment of vulnerable witnesses it signals the need to extend the search for solutions beyond the boundaries of the paradigmatic adversarial model. Drawing upon modern psychological, socio-linguistic, and victimological study across common law jurisdictions, the book provides a critique of the special measures of the 1999 Act and of adversarial trial procedure more generally.

This book describes the collective responses of bereaved people to the aftermath of violent death, a subject not dealt with in any detail in the literature that is currently available. It concentrates particularly on the birth, development, and organization of the self-help and campaigning groups that have emerged in the last decade. The book examines these as attempts to give institutional expression to interpretations of grief, and shows us that these attempts, in their turn, are implicated in a potent phenomenology of mourning. In addition, the book had special access to a number of groups and uses the information that has been gathered through this access to discuss the practical and political importance of the work of these groups, and their affects on policing, the media and the law.

Strict liability is a controversial phenomenon in the criminal law because of its potential to convict blameless persons. Offences are said to impose strict liability when, in relation to one or more elements of the actus reus, there is no need for the prosecution to prove a corresponding mens rea or fault element. For example, in the 1986 case of Storkwain, the defendant chemists were convicted of selling controlled medicines without prescription simply upon proof that they had in fact done so. It was irrelevant that they neither knew nor had reason to suspect that the ‘prescriptions’ they fulfilled were forgeries. Thus strict liability offences have the potential to generate criminal convictions of persons who are morally innocent. This book is a collection of contributions offering a consideration of the problem of strict liability in the criminal law. The chapters, including European and Anglo-American perspectives, provide an examination of the fundamental issues. They explore the definition of strict liability; the relationship between strict liability and blame, and its implications for the requirement for culpability in criminal law; the relevance of European and human rights jurisprudence; and the interaction between substantive rules of strict liability and evidential presumptions.

What happens when public prosecutors, the most powerful officials in the criminal justice system, seek convictions instead of justice? Why are cases involving well-to-do victims often prosecuted more vigorously than those involving poor victims? Why do wealthy defendants frequently enjoy more lenient plea bargains than the disadvantaged? This book looks at the power of American prosecutors, revealing how the day-to-day practice of prosecutors can result in the unequal treatment of defendants and victims. Ranging from mandatory minimum sentencing laws that enhance prosecutorial control over the outcome of cases, to the increasing politicization of the office, the chapter uses stories of individuals caught in the system to demonstrate how the legal exercise of prosecutorial discretion can result in inequities in criminal justice. The chapter also covers recent incidents of prosecutorial abuse such as the Jena Six case, the Duke lacrosse case, and the Department of Justice firings.

Invoking famous words by Martin Luther King Jr.–‘the arc of the moral universe is long, but it bends toward justice’–this volume analyses developments respecting global justice in the decades since the end of World War II. Presented are dozens of essays by eminent scholars, each contributed in recognition of the collection’s honouree, Professor William A. Schabas. Schabas’s work has spanned many topics in international law and has placed him in multiple roles in international courts and organizations. Accordingly, this volume discusses institutions including the United Nations, the European Court of Human Rights, and the International Criminal Court, and instruments including the Universal Declaration of Human Rights, the Convention Against Torture, and the Canadian Charter of Human Rights and Freedoms. Fits and starts in global justice are examined with regard to many phenomena: peace and war, international crimes, culture, death penalty, environmental degradation, and not least, education and scholarship.

The question whether assisted dying (euthanasia and assisted suicide) should be legalized is often treated, by judges and commentators alike, as a question which transcends national boundaries and diverse legal systems. One obvious example is the use made of the ‘Dutch experience’ in other jurisdictions. By treating the issue as a transcendent, global ethical question, the important context in which individual jurisdictions make decisions about assisted dying and the significance of the legal methods chosen to carry out those decisions is often lost. This book concentrates not on the issue of whether assisted dying should be legalized, but rather on the impact of the choice of a particular legal route towards legalization. Legal change on assisted dying may be achieved in a variety of ways: challenges to criminal prohibitions using constitutionally entrenched rights; the use of defences available to defendants who are prosecuted for assisting a death; legislative change; or referenda or ballot measures proposed by individual citizens or interest groups. The examination in this book of the impact of these different alternatives suggests that greater caution is needed before relying on the experience of one jurisdiction when discussing proposals for regulation of assisted dying in others, and the possible consequences of such regulation. The book seeks to demonstrate the need to explore the legal environment in which assisted dying is performed or proposed in order to evaluate the relevance of a particular legal experience to other jurisdictions.

Hate speech is widely considered a precondition for mass atrocity. Since World War II a large body of case law has interpreted the key offenses criminalizing such discourse: (1) incitement to genocide; and (2) persecution as a crime against humanity. But the law has developed in a fragmented manner. Surprisingly, no volume has furnished a comprehensive analysis of the entire jurisprudential output and the relation of each of its parts to one another and to the whole. Atrocity Speech Law fills this gap and provides needed perspective for courts, government officials, and scholars. Part 1, “Foundation,” explores the historical relationship between speech and atrocity and the foundations of the current legal framework. Part 2, “Fragmentation,” details the discrepancies and deficiencies within that framework. Part 3, “Fruition,” proposes fixes for the individual speech offenses and suggests a more comprehensive solution: a “Unified Liability Theory,” pursuant to which there would be four criminal modalities placed in one statutory provision and applying to genocide, crimes against humanity, and war crimes: (1) incitement; (2) speech abetting; (3) instigation; and (4) ordering. Apart from the issue of fragmentation, experts have failed to find an accurate designation for this body of law. “International Incitement Law” and “International Hate Speech Law,” two of the typical labels, do not capture the law’s breadth or its proper relationship to mass violence. So with a more holistic and accurate approach in mind, this book proposes a new name for the overall body of international rules and jurisprudence: “atrocity speech law.”

In Britain today, if you are in the business of fighting crime, then you have to be in the business of dealing with alcohol. ‘Binge drinking’ culture is intrinsic to urban leisure and has come to pose a key threat to public order. Unsurprisingly, a struggle is occurring. Pub and club companies, local authorities, central government, the police, the judiciary, local residents, drug and alcohol campaign groups, and revellers all hold competing notions of social order in the night-time city and the appropriate uses and meanings of its public and private spaces. Bar Wars explores how official discourses of ‘partnership’ and ‘self-regulation’ belie the extent of fierce adversarial contestation between and within these groups. Located within a long tradition of urban ethnography, the book offers unique and hard-hitting analyses of social control in bars and clubs, courtroom battles between local communities and the drinks industry, and street-level policing. These issues go to the heart of contemporary debates concerning urban civility, alcohol and drugs policies, and the impacts of and justifications for new police powers introduced as part of the Licensing Act 2003 and Violent Crime Reduction Act 2006. The author's experiences as a disc jockey and as an expert witness to the licensing courts provide a unique perspective, setting his work apart from other academic commentators. Bar Wars takes the study of the ‘night-time economy’ to a new level of sophistication, making it essential reading for all those wishing to understand the policing and regulation of contemporary British cities.

This book is premised on the idea that genocide is a crime, and that it can be comprehended by sound criminological theories and methods. However, in contemporary social science, the first important contribution to genocide studies originated with Stanley Milgram and his experimental studies of obedience to authority in the 1960s. There has been considerable re-evaluation of original obedience paradigm since then, and a need to develop an approach that is better grounded intellectually. The book describes three paradoxes of genocide for criminology: the inauspicious motivation of the ordinary perpetrator, the frequent conventionalization of atrocities which often put them beyond the rule of law, and the enormous dark figure of victimization that resulted from this synergy. The book outlines the problems by which events are labelled, or failed to be labelled, as genocide, and proposes an explanation of them based on Elias’s theories of civilizing and de-civilizing processes. Where Elias attributes the Holocaust to the reversion to barbarism, it is suggested instead that the evidence is more consistent with the development of an ethic of over-control, akin to pathological altruism, as described in Durkheim’s typology of suicide. This perspective is applied to the 1994 genocide in Rwanda, and illustrates over-control through the concepts of administrative and ethnic ‘closure’. The balance of the book describes the three legal responses to genocide and analogous behaviours: criminal indictment, civil reparations and truth commissions. Finally, it is proposed that the key to genocide prevention is a renegotiation of the unbridled power of sovereigns.

This book analyses the new phenomenon of Black Police Associations (BPAs) established in the majority of constabularies in England and Wales. The author takes a sociological and theoretical approach to the subject, in contrast to current criminology, which is more evaluative and policy oriented. The analysis is underpinned with the notion that race and ethnicity are socially constructed: the book describes and analyses how race and ethnicity are constructed and sustained within constabularies, and how they have changed during the last two decades, providing a sociological perspective on understanding race within criminal-justice institutions. The book covers the history of BPAs; the construction and consequences of the notion of ‘black’ as a political emblem within constabularies; the work and influence of BPAs (nationally and within constabularies); post-McPherson policing; new forms of racism within constabularies; ethnic identities amongst ethnic-minority police officers and BPAs; and the occupational culture. By analysing the work of BPAs within constabularies, the author posits a number of implications for change within the management of constabularies.

This book critically assesses the relationship between immigration control, citizenship, and criminal justice. It reflects on the theoretical and methodological challenges posed by mass mobility and its control and sets out a particular sub-field within criminology — the criminology of mobility. Drawing together leading international scholars with newer researchers, the book systematically outlines why criminology and criminal justice should pay more attention to issues of immigration and border control. The chapters consider how ‘traditional’ criminal justice institutions such as the criminal law, police, and prisons are being shaped and altered by immigration, as well as examining novel forms of penalty (such as deportation and detention facilities), which have until now seldom featured in criminological studies and textbooks. In so doing, the book demonstrates that mobility and its control are matters that ought to be central to any understanding of the criminal justice system. Phenomena such as the controversial use of immigration law for the purposes of the war on terror, closed detention centres, deportation, and border policing, raise in new ways some of the fundamental and enduring questions of criminal justice and criminology: What is punishment? What is crime? What should be the normative and legal foundation for criminalization, for police suspicion, for the exclusion from the community, and for the deprivation of freedom? And who is the subject of rights within a society and what is the relevance of citizenship to criminal justice?

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 re-generating 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 over-run police resources that remain geared to the drinking patterns and alcohol cultures of previous generations. Post-industrial re-structuring 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 book charts the emergence of the bouncer as one of the most graphic symbols in the iconography of post-industrial Britain.

The series Criminalization is a set of volumes arising from an interdisciplinary investigation into criminalization, focussing on the principles and goals that should guide decisions about what kinds of conduct are to be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the six volumes in this series aim to tackle the key questions at the heart of issue: By reference to what principles and goals should legislations decide what to criminalize? How should criminal wrongs be classified and differentiated? And how should law enforcement officials apply the law's specification of offences? This book is the first book in this series examining the scope and boundaries of the criminal law. Investigations into the scope of the criminal law have often focused on the harm principle, the principle that conduct can be justifiably criminalized only if it is harmful, or other master principles that might determine the proper scope of the criminal law. These chapters aim to make significant advances in the development of a broader range of ideas that might inform criminalization decisions. A range of issues are discussed, including the significance for criminalization of ideas of moral wrongdoing and of using a person as a means, the distinction between criminal law and other forms of legal regulation, the role of new technology in our understanding of the evolving scope of the criminal law, and the role of criminal justice officials in decision-making about criminalization. The chapters draw on legal and philosophical sources, and also on history, sociology, and social psychology in their investigations.

In America today, there are between 250 and 300 million firearms in private hands, amounting to one weapon for every American. Two in five American homes house guns. On the one hand, most gun owners are law-abiding citizens who believe they have a constitutional right to bear arms. On the other, a great many people believe gun control to be our best chance at reducing violent crime. While few — whether gun owner or anti-gun advocate — dispute the need to keep guns out of the wrong hands, the most important question has too often been dodged: What gun control options does the most heavily armed democracy in the world have? Can gun control really work? The last decade has seen several watersheds in the debate, none more important than the 1993 Brady Bill. That bill, this book argues, was the culmination of a strategy in place since the 1930s to permit widespread private ownership of guns while curtailing illegal use. But where do we go from here? While the Brady background check is easily circumvented, any further attempts to extend gun control — for instance, through comprehensive licensing of all gun owners and registration of all guns — would pose monumental administrative burdens. The book moves beyond easy slogans and broad-brush ideology to examine the on-the-ground practicalities of gun control, from mandatory safety locks to outright prohibition and disarmament. Casting aside ideology and abstractions, the book cautions against the belief that there exists some gun control solution which, had we the political will to seize it, would substantially reduce violent crime.

This book is the first major published work to present a comprehensive assessment of the impact of CCTV on the police in Britain. Drawing extensively upon empirical research, the volume examines how the police in Britain first became involved in public area surveillance, and how they have since attempted to use CCTV technology to prevent, respond to, and investigate crime. In addition, the volume also provides a detailed analysis of the legality of CCTV surveillance in light of recent changes to the Data Protection Act and the incorporation of the European Convention on Human Rights. Challenging many existing accounts of the relationship between the police and new surveillance technologies, the book breaks new ground in policing and surveillance theory, and argues that it is time for a major reassessment of both our understanding of how the police respond to technological change, and of the role played by such technologies in our society.

A number of jurisdictions, including England and Wales after their adoption of the 1991 Criminal Justice Act, require that sentences be ‘proportionate’ to the severity of the crime. This book discusses how sentences may be scaled proportionately to the gravity of the crime. Topics dealt with include how the idea of a penal censure justifies proportionate sentences; how a penalty scale should be ‘anchored’ to reduce overall punishment levels; how non-custodial penalties should be graded and used; and how political pressures impinge on sentencing policies.

This book examines the use of a defendant's character in the criminal trial. It looks at the use of character evidence to prove guilt and as a factor affecting sentence. It also discusses character as the basis for culpability in criminal law. The book includes an in-depth examination of the provisions of the Criminal Justice Act 2003 on the admissibility of evidence of a defendant's bad character, as well as of the common law which these provisions replaced. It analyses the sentencing provisions in the same Act which provide a mechanism for incapacitating offenders who are believed to be dangerous, as well as the more general use of criminal record and other character evidence to aggravate and mitigate sentence. Issues examined in the course of the book include: psychological and philosophical debates about the stability of character; criminological research on recidivism and the nature of criminal careers; ethical debates about the use of prior behaviour to prove current or future offending; the process of reasoning underlying the use of bad character evidence; whether bad character evidence is prejudicial; and the use of risk assessment instruments to classify offenders as dangerous. By combining insights from law, psychology, criminology, and philosophy, the book reassesses the use of character in the criminal trial and reflects on the significance of the law's increasing emphasis on character.

China’s economic reforms have been accompanied by a surge of social problems such as ineffective legal institutions, booming black markets, and rampant corruption. These problems have led to the rise of extra-legal means of protection and enforcement, because the demand for protection cannot be fulfilled by state-sponsored institutions. However, there remains a startling paucity of literature on this topic. Utilizing individual interviews and focus group discussions from two Chinese cities, this book fills the gap by investigating how extra-legal protectors—corrupt public officials and street gangsters—emerge, evolve, and operate in a rapidly changing society. This book develops the ‘socio-economic theory of mafia emergence’ by incorporating Granovetter’s argument on social embeddedness into Gambetta’s economic theory of the mafia. The book suggests that the rise of the Chinese mafia is due to the negative influence of guanxi (a Chinese version of personal connections) on the effectiveness of the formal legal system. The contradiction between guanxi and the formal legal system has two major consequences. First, it weakens the ability of the formal legal system to supply sufficient and efficient protection for individuals and entrepreneurs, leading to the involvement of street gangsters (‘Black Mafia’) in the provision of private protection and quasi law enforcement. Second, this prevents the formal system from controlling the abuse of power by public officials; as a result, corrupt officials (‘Red Mafia’) sell public appointments, exchange illegal benefits with businesses, and protect local gangs.