The Journal of Criminal Law最新文献_第3页

An Overlooked Distinction in the Modern Slavery Defence 现代奴隶制辩护中被忽视的区别

The Journal of Criminal Law Pub Date : 2024-01-09 DOI: 10.1177/00220183231223832

N. Parpworth

引用次数: 0

The Search and Seizure of Digital Materials Under Warrant and Protecting Privilege: Comparative Analysis and Recommendations for Best Practice 根据搜查令和保护特权搜查和扣押数字资料：比较分析和最佳做法建议

The Journal of Criminal Law Pub Date : 2024-01-05 DOI: 10.1177/00220183231223592

Rebecca Mitchell, Michael Stockdale, Francis A. Gilligan

{"title":"The Search and Seizure of Digital Materials Under Warrant and Protecting Privilege: Comparative Analysis and Recommendations for Best Practice","authors":"Rebecca Mitchell, Michael Stockdale, Francis A. Gilligan","doi":"10.1177/00220183231223592","DOIUrl":"https://doi.org/10.1177/00220183231223592","url":null,"abstract":"Academic literature in England and Wales and New Zealand does not consider the protection of legal professional privilege where digital material is seized under a search warrant. Academic literature in the United States does engage with this subject but is not informed by a comparative approach. This article fills both gaps. It examines practices that have been developed by investigative teams and prosecuting authorities in all three comparator jurisdictions in their attempts to provide safeguards necessary to preserve privilege. Such practices involve the use of technology to increase the speed, cost effectiveness and/or efficiency of identifying privileged documents. The process of developing these practices has been informed by judicial guidance, where they have been challenged before the courts, and by guidance from government departments, Bar Associations or Law Commissions. Following comparative analysis, the article recommends measures that should be included in legislation, codes of practice or guidance in any jurisdictions where there is potential for legal professional privilege or an equivalent concept to be undermined when digital material is seized under a search warrant.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"48 35","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139382124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Images, Investigators, Identification, Code D and the Court of Appeal 图像、调查员、身份识别、代码 D 和上诉法院

The Journal of Criminal Law Pub Date : 2023-12-27 DOI: 10.1177/00220183231221865

Gary Edmond, Natalie Wortley

{"title":"Images, Investigators, Identification, Code D and the Court of Appeal","authors":"Gary Edmond, Natalie Wortley","doi":"10.1177/00220183231221865","DOIUrl":"https://doi.org/10.1177/00220183231221865","url":null,"abstract":"The rapid rise in accessibility and portability of cameras has resulted in widespread reliance on the interpretation of images by analysts and investigators in criminal proceedings. Codes of practice, guidance and jurisprudence have evolved to facilitate the admission of opinions as to the identity of offenders (or persons of interest) at trial. In this article, we explain why allowing investigators to give opinions as to identity on the basis of familiarity with images or suspects acquired during the course of an investigation is incompatible with mainstream scientific research and advice, and conducive to error. It rests on the flawed assumption that investigators can reliably identify or recognise persons in images, articulate and document the basis of these ‘identifications’, and avoid the risk of contamination (really cognitive bias) from their knowledge of, or exposure to, domain-irrelevant information. Jurors, who may be invited to conduct their own comparison between an image and the defendant in the dock, are similarly vulnerable to assuming the task is straightforward, as well as many of the contextual and cognitive biases confronting investigators. Using the facts and evidence in R v Yaryare [2020] EWCA Crim 1314 as a case study, we show how case information available to investigators and imaging analysts both inform their interpretations of images and is (re-)presented at trial and on appeal as independent support for their opinions. We identify substantial threats to fairness, proof and rationality and propose that only witnesses with demonstrable expertise should be permitted to testify as to the identity of persons of interest in images.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"79 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139154372","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Pleading Loss of Control Where D Claims to Have Been Triggered by a Third Party 在 D 声称是由第三方触发的情况下提出失去控制的抗辩

The Journal of Criminal Law Pub Date : 2023-12-01 DOI: 10.1177/00220183231216792

Tony Storey

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‘An Obligation of Means, Not One of Result’: A Historical Overview and Theoretical Assessment of the Whole Life Order Sentencing Regime in England and Wales 手段义务，而非结果义务"：英格兰和威尔士终身监禁判决制度的历史概述和理论评估

The Journal of Criminal Law Pub Date : 2023-11-26 DOI: 10.1177/00220183231216169

Atticus Blick

{"title":"‘An Obligation of Means, Not One of Result’: A Historical Overview and Theoretical Assessment of the Whole Life Order Sentencing Regime in England and Wales","authors":"Atticus Blick","doi":"10.1177/00220183231216169","DOIUrl":"https://doi.org/10.1177/00220183231216169","url":null,"abstract":"In England and Wales, a ‘whole life order’ (WLO) is a life sentence with no prospect of parole. At present, the WLO sentencing regime provides insufficient clarity about the assessment criteria for the release of prisoners, rendering these sentences unreviewable. Indeed, no WLO prisoner has ever been released. This article submits that it is the means by which the executive and courts preclude scrutiny of the WLO review mechanism, and so devalue the systemic health of our legal order by undermining rule of law principles of accountability and transparency, which form the most disquieting aspects of the regime. I set out my argument in two parts. Part One provides a historical assessment of the development of the WLO sentencing regime and its impact on wider human rights discourse. A critical evaluation of this history reveals that WLOs today are irreducible and underscored by the long-term accumulation of unaccountable executive power. Part Two considers WLOs from the position of the philosopher John Rawls’ theory of ‘political liberalism’ as applied to understandings of European human rights constitutionalism. Adapting Rawls’ emphasis on the importance of reciprocal deliberation between diverse citizens and institutions in maintaining a just and stable society, this article presents the deficiencies of the WLO regime as deriving from an inter-institutional failure to engage in meaningful deliberation about whether the WLO regime complies with the UK's human rights obligations. I propose reforms to the reviewability of WLO sentences to give prisoners the ‘means’ if not necessarily the ‘result’ of release. Rather, there remain outstanding questions about how many of the worst of the worst prisoners possess the capacity for rehabilitation, even if provided with the opportunities to do so. As such, these reforms can be justified, less on grounds of ensuring the actual release of prisoners, but more as part of restoring a broader functional human rights and rule of law framework.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"357 1","pages":"355 - 385"},"PeriodicalIF":0.0,"publicationDate":"2023-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139235838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

A Juror Using a mobile Phone: A Serious Material Irregularity Rendering a Conviction Unsafe? 陪审员使用手机：导致定罪不安全的严重重大违规行为？

The Journal of Criminal Law Pub Date : 2023-11-22 DOI: 10.1177/00220183231216430

Neil Parpworth

引用次数: 0

‘Out of the Penal System and into the Hospital Regime?’ Judicial Challenges in Sentencing Mentally Disordered Offenders and the Likely Impact of the 2020 Sentencing Council Guideline 走出刑罚系统，进入医院制度？精神失常罪犯量刑中的司法挑战及 2020 年量刑委员会指南的可能影响

The Journal of Criminal Law Pub Date : 2023-11-20 DOI: 10.1177/00220183231216012

Owen P O’Sullivan, Nigel Eastman

{"title":"‘Out of the Penal System and into the Hospital Regime?’ Judicial Challenges in Sentencing Mentally Disordered Offenders and the Likely Impact of the 2020 Sentencing Council Guideline","authors":"Owen P O’Sullivan, Nigel Eastman","doi":"10.1177/00220183231216012","DOIUrl":"https://doi.org/10.1177/00220183231216012","url":null,"abstract":"Mentally disordered offenders may be vulnerable yet also pose particular risk to the public. Achieving appropriate sentencing poses complex challenges for judges in properly determining culpability and punishment, protecting the public, and meeting any identified treatment needs of the defendant. With respect to all three elements there is likely to be necessary reliance upon psychiatric expertise. Despite much previous statutory guidance, there has not – until very recently – been available specific sentencing guidelines from the Sentencing Council (SC) to assist the judiciary in what is a profoundly difficult exercise. This review describes and considers the guidance available to the judiciary in the Crown Courts of England and Wales regarding the various disposal options – including that which ‘hybridises’ penal and treatment disposal – in addition to facilitating and properly limiting the role of expert evidence. A specific focus is on contextualising, and commenting upon, the SC's recently published Guidance, Sentencing Offenders with Mental Disorders, Developmental Disorders or Neurological Impairments, which seeks to consolidate information, improve knowledge, reduce confusion, and assist the courts towards properly and consistently addressing the relevance of mental disorder to sentencing. In doing so, in the authors’ view, it privileges punishment over public safety, leaving judges to address public safety largely without the benefit of the explicit ‘routes to sentencing’ approach of the Guidance.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"56 1.2","pages":"417 - 427"},"PeriodicalIF":0.0,"publicationDate":"2023-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139256917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Involuntary Voluntary Action 非自愿的志愿行动

The Journal of Criminal Law Pub Date : 2023-11-20 DOI: 10.1177/00220183231215996

A. Elkington

{"title":"Involuntary Voluntary Action","authors":"A. Elkington","doi":"10.1177/00220183231215996","DOIUrl":"https://doi.org/10.1177/00220183231215996","url":null,"abstract":"Voluntariness is an essential factor in determining if someone should be held legally responsible for his actions. Equally, voluntary actions of the victim in certain situations can break the chain of causation, thus removing criminal liability from the defendant. To create the desired certainty in the law a clear definition of voluntary action is essential, however, this article highlights how such a definition remains elusive. The binding ratio in Kennedy, that a victim's free, informed and deliberate actions can break the chain of causation, has been applied in an inconsistent way in R v Wallace. As a consequence, the law relies on a moralistic judgment in determining whether a defendant should be criminally liable for his actions. Thus, causing complexity and confusion in determining when actions can be deemed voluntary. R v Field has caused further uncertainty by holding that voluntarily choosing to drink whisky can be said to be an involuntary action. It is concluded that R v Field could have instead been viewed more clearly through the lens of omissions. This would have enabled established legal principles to be applied without the resulting challenges that R v Field has caused in determining what is voluntary action.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"7 7","pages":"407 - 416"},"PeriodicalIF":0.0,"publicationDate":"2023-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139258546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Football Spectatorship: Are the Home Office Statistics a Reliable Indicator for Measuring Football-Related Violence & Disorder? 足球观众：内政部的统计数据是衡量与足球有关的暴力和骚乱的可靠指标吗？

The Journal of Criminal Law Pub Date : 2023-11-20 DOI: 10.1177/00220183231215995

A. Lowerson

{"title":"Football Spectatorship: Are the Home Office Statistics a Reliable Indicator for Measuring Football-Related Violence & Disorder?","authors":"A. Lowerson","doi":"10.1177/00220183231215995","DOIUrl":"https://doi.org/10.1177/00220183231215995","url":null,"abstract":"Despite the best efforts of successive governments and the police, football-related violence and disorder still exist. The extent of the problem is not clear due to the unreliability of the data used to monitor this behaviour. The behaviour of football spectators has received significant attention in areas of psychology, criminology, and law, yet there is no single documented piece of research that measures the reliability of the evidence used to monitor spectator behaviour. This means that data of uncertain provenance is being used to evaluate methods of controlling football spectators and to inform government policy and policing strategies. This article will highlight issues with the reliability of the dataset and caution that such information should not be used without better contextualisation as the basis for policing, prosecution, and legislative strategies. The context of this article does not easily ﬁt into the existing classiﬁcation of primary or secondary and qualitative or quantitative research. As such, this article provides a novel approach to understanding the Home Office statistics by obtaining the data used to monitor football-related arrests through the use of Freedom of Information requests. In doing so, the article is the first to assess the methodology underpinning the government's data, making a significant and original contribution to the existing literature and policing practices in this area. As a result of this analysis, the article recommends that a standardised system for logging the data is needed to provide more reliable evidence of the scale of football violence and disorder in England and Wales. More comprehensive and reliable data can then counter prevailing media narratives regarding the behaviour of football supporters and provide a solid evidence base for police and governmental action.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"22 1-2","pages":"386 - 406"},"PeriodicalIF":0.0,"publicationDate":"2023-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139256665","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Joint Enterprise Murder: A Missed Opportunity? 联合企业谋杀案：错失良机？

The Journal of Criminal Law Pub Date : 2023-11-19 DOI: 10.1177/00220183231215490

Paul Dargue

引用次数: 0