Crime and the EU's Constitutional Future in an Area of Freedom, Security, and Justice

Abstract: The European Union is finalising negotiations in respect of a constitution that will define its identity and future. The draft constitution begins with a quote from Thucydides ‘Our constitution . . . is called a democracy because power is in the hands not of a minority but of the greatest number’. 1 In this article I look at the proposed constitutional framework of the European Union from the perspective of the gradual realisation of measures in criminal law capable of affecting the lives of individuals. The central question is to what extent the Union is providing itself with the tools to achieve democratic exercise of the power to maintain order and to punish individuals within a single area of freedom, security, and justice. Within the draft constitution an ambiguity arises as regards the principles which underlie this part of the project: mutual recognition and approximation. Mutual recognition of national decisions maintains power within the borders of the state, approximation leads towards a consolidation of power. The extent to which the constitution pulls in two rather different directions and the consequences for the individual are examined here.     

Legal ‘Elasticity’ and ‘Sidestepping’ in European Crisis Management of Financial Markets

This paper explores the roles played by law in crisis management of financial markets and some possible consequences. Three questions are raised ‐‐about the ‘elastic’ use of law, about ‘sidestepping’ existing legal order by invention of new structures and about redistributive consequences. These questions are appraised empirically in relation to three areas of financial market law: public support given to banking from 2008 onwards; English case law concerning derivatives contracts when confronted with Lehman‐style insolvencies; and the European Stability Mechanism, which during summer 2015 was being primed in relation to Greece. On the first two case studies, law, having been mightily stretched, did not break. Likewise, legal sidestepping, as epitomised by the European Stability Mechanism, may result in a less coherent legal structure; however such incoherence may be not be fatal to the ensemble. On all three fronts, redistributive questions remain controversial, but controversy in itself does not undermine legal structures. A particular form of theory, the Legal Theory of Finance, is discussed in light of the case studies. Such theory may have an unfulfilled longing to discern law‐like regularities (ironically chasing economics).     

‘An Unsolvable Justice Problem’? Punishing Young People's Sexual Violence

This article addresses the paradox that whilst young offenders in general are increasingly diverted from formal justice, there continues to be resistance to the idea of diversion for those young people who commit sexual offences. It explores the ways in which tensions arising from this paradox are currently being played out within criminal justice systems in the United Kingdom and elsewhere. Building on published and new research on criminal justice responses to young sexual offenders, the article highlights the problems of responding within any one justice framework to the – at times – competing concerns about risk, welfare, and control that these young offenders provoke. Drawing on criminological, psychological, and sociological work, the article argues that these concerns are accentuated in relation to young sexual offenders because of interrelated fears about the progressive nature of sexual offending; the ability of 'newer' justice practices to meet the need for 'affective' and 'effective' justice in relation to sexual crimes; and because of wider societal anxieties about sexual crimes, particularly where the victims and the offenders are children or young people.     

Anthropological facial ‘reconstruction’ – recognizing the fallacies, ‘unembracing’ the errors, and realizing method limits

Despite being practiced for over the last 200 years, facial approximation methods remain in their infancy as the soft tissue prediction methods employed have not been tested and justified. Scientific testing is the only way forward and much of it is needed. The lack of systematic scientific tests in the past has enabled many misleading notions to become established. Many of these notions appear to have arisen and been sustained as a result of practitioner biases--this is clearly evident even in the name commonly used to describe the method of building faces from skulls, for "facial reconstruction" implies everything the method is not, e.g., technical/scientific, exact, and credible. Although facial approximation methods are useful for forensic investigation (even if they do not generate identifications through true positive recognitions of the faces), the public should beware of the marketing and political ploys employed within the profession. These ploys give rise to some impressive, but unjustifiable claims--but do not just take my word for it; evaluate the evidence for yourself with disregard to the indoctrination waged by the facial "reconstruction" field in general, including that promoted by what I have had to say here. Use your own reason and intellect and see which conclusions you reach.     

Incapacity,the Labour Market and Social Security: Coercion into ‘Positive’ Citizenship

The article examines the likely evolution of the social security system in the United Kingdom in the aftermath of the Welfare Reform Act 2007. This recent legislation is paradigmatic of the new ideology and modes of thought which currently form the foundation of the modern welfare state, an institution increasingly viewed as a facilitator for individual self‐sufficiency, as opposed to its traditional role of providing temporary financial support in periods of need. In addition, it is likely that the Act has promoted at least some changes in the concept of citizenship, in particular the contemporary emphasis on responsibilities as much as on rights. The article considers whether the Act itself has succeeded in meeting the rhetorical claims made for it by legislators during the passage of the Welfare Reform Bill through Parliament. The question of whether the Act contains a punitive or even coercive element is also examined.     

From ‘Interinstitutional Agreements’ to ‘Interinstitutional Agencies/Offices’?

Abstract:  This article tries to trace a line between Interinstitutional Agreements (IIAs) and Interinstitutional Agencies/Offices, recently established on the basis of the new 'externalisation policy' of the European Commission. Both phenomena serve, to a certain extent, to achieve the same objective, namely a smoother and more effective cooperation between the main institutions within the European Union. On the basis of an empirical documentation of more than 100 IIAs, the article classifies and assesses the extraordinary variety and diversity of IIAs collected in this compilation—according to their chronological distribution, number of parties involved in the conclusion, denomination, and substantial content. The evaluation of these IIAs first addresses the question of their permissibility, proceeding with the examination of their legal nature and effects. The article concludes by asking which of the two dichotomous instruments—IIAs or Interinstitutional Agencies/Offices—will prevail, and hence ensure a more expeditious discharge of the Commissions bureaucracy.     

‘Citizens’ and ‘Foreigners’ in EU Law. Migration Law and its Cosmopolitan Outlook

Migration has become a controversial subject across Europe and beyond. At the same time, the EU has built up an impressive set of rules for third‐country nationals over the past two decades, which—unlike the mobility of EU citizens—received comparatively little attention apart from immigration and asylum specialists. This contribution presents the constitutional framework for ‘migration law’ towards third‐country nationals and shows in how far they depart from the paradigm of intra‐European mobility. It will be argued that differences can be rationalised by divergent objectives and do, nonetheless, not present a move towards ‘fortress Europe’. EU migration law maintains the distinction between citizens and foreigners at the same time as it protects migrants, including refugees. By accommodating migrants' rights and self‐government, EU migration law can be construed as an endeavour to replace traditional notions of alienage with constitutional rules with a cosmopolitan outlook.     

Two Meanings of ‘Reasonableness’: Dispelling the ‘Floating’ Reasonable Doubt

The ‘reasonable doubt standard’ is the controlling standard of proof for criminal fact finding in several jurisdictions. Drawing on decision theory, some scholars have argued that the stringency of this standard varies according to the circumstances of the case. This article contends that the standard does not lend itself to the ‘sliding‐scale’ approach mandated by decision theory. This is supported through investigation of the concept of ‘reasonableness’. While this concept has mostly been studied as it operates with reference to practical reasoning, scant attention has been given to the meaning that it acquires when referred to theoretical reasoning. Unlike in the former case, reasonableness does not in the latter depend on the reasoner's attitudes in favour of the outcomes of a decisional process. Therefore, since criminal fact finding is an instance of theoretical reasoning, the question whether in this enterprise a doubt is reasonable is not susceptible to a decision‐theoretic approach.     

The Definition and Measurement of ‘Gang Status’: Policy Implications for Juvenile Justice

In this article, we examine gang membership and gang activity in Dona Ana County, New Mexico. We collected the data through a self-administered questionnaire completed by 373 randomly selected 9th and 11th grade students attending two high schools and two junior high schools. By the self-report method, 56 indicated they were currently active in a gang; another 45 had been members of gangs but were no longer involved; and, “wannabes,” or students who at some time had considered joining a gang but did not or could not, totaled 68. The 169 students who indicated some interest in or involvement with gangs represented 45% of the total sample. A more restrictive definition of actual gang membership (i.e., the group must have initiation rites and employ some external symbols of membership, such as “colors,” tattoos, or handsigns) results in a different trichotomization. We employ both the self-definition and restrictive definition of gang membership in our analysis of their personal biographical characteristics and criminal behavior. Our findings suggest that self-definition demonstrates clearer ties to self-reported gang-related activities than does the more restrictive one. We discuss the policy implications of this finding in the article.     

Gender ‘Hostility’, Rape,and the Hate Crime Paradigm

This article examines whether crimes motivated by, or which demonstrate, gender ‘hostility’ should be included within the current framework of hate crime legislation in England and Wales. The article uses the example of rape to explore the parallels (both conceptual and evidential) between gender‐motivated violence and other ‘archetypal’ forms of hate crime. It is asserted that where there is clear evidence of gender hostility during the commission of an offence, a defendant should be pursued in law additionally as a hate crime offender. In particular it is argued that by focusing on the hate‐motivation of many sexual violence offenders, the criminal justice system can begin to move away from its current focus on the ‘sexual’ motivations of offenders and begin to more effectively challenge the gendered prejudices that are frequently causal to such crimes.     

‘Payback’, Customary Law and Criminal Law in Colonised Australia

‘Payback’ is an Australian Aboriginal English term (also known in Melanesia) commonly understood to refer to a vendetta. Satisfaction of a grievance, such as a death or wife-stealing, may be sought through ritual ceremony, gift-giving, corporal punishment and ordeal, or even killing. Such phenomena, often characterised as vendetta or feud, have been noted by non-Aboriginal observers during most of the period of European colonisation (from 1788). In spite of the presumption of sovereignty that recognises only one law, it is shown that the criminal law in Australia has conceded limits to its reach in dealing with payback. More recently we observe that judicial attitudes have tended to recognise the positive functions of certain forms of payback in resolving conflict and upset in communities. Far from being eradicated by colonisation, payback retains a rationality in Aboriginal communities in a country that is subject to white man's law.     

EMU and the Shift in the European Labour Law Agenda: From ‘Social Policy’ to ‘Employment Policy’

This article examines the interaction between EMU and the European Union (EU) employment strategy and its implications for law. It focuses on the importance of EMU as a catalyst in the development of the EU's social and employment policy in the years following the Treaty on European Union in 1992, up to the inauguration of a new employment policy in the Treaty of Amsterdam. In analysing the EU's discourse on labour market regulation, it is arguable that a shift has occurred in the EU's position on the ‘labour market flexibility’ debate: that the EU institutions are more readily accepting of the orthodoxy that labour market regulation and labour market institutions are a major cause of unemployment within EU countries and that a deregulatory approach, which emphasises greater ‘flexibility’ in labour markets, is the key to solving Europe's unemployment ills, along with macroeconomic stability, restrictive fiscal policy and wage restraint. As the EU's employment strategy has matured, this increased emphasis on employment policy has come to displace discourses around social policy. This change in emphasis has important implications for EMU since it signals a re‐orientation from an approach to labour market regulation which had as its core a strong concept of employment protection and high labour standards, to an approach which prioritises employment creation, and minimises the role of social policy, since social policy is seen as potentially increasing the regulatory burden.