‘Substantial and Radical Change’: A New Dawn for Scottish Criminal Procedure?

This paper discusses the recommendations of the Carloway Review, which was established to review law and practice in criminal cases following the introduction in Scotland of a right to legal assistance during detention. A number of recommendations are made in the Review, including the introduction of stricter time limits governing the detention of suspects, the removal of the corroboration requirement, the rejection of adverse inference provisions, and a change in the manner in which the appeal court deals with cases referred to it by the Scottish Criminal Cases Review Commission. It is argued that while some of these recommendations are to be applauded, others are poorly reasoned and some may lead to a dangerous reduction in protection against wrongful conviction.     

The Stability of Collected Human Scent Under Various Environmental Conditions*,†

Abstract: Human scent evidence collected from objects at a crime scene is used for scent discrimination with specially trained canines. Storage of the scent evidence is usually required yet no optimized storage protocol has been determined. Storage containers including glass, polyethylene, and aluminized pouches were evaluated to determine the optimal medium for storing human scent evidence of which glass was determined to be the optimal storage matrix. Hand odor samples were collected on three different sorbent materials, sealed in glass vials and subjected to different storage environments including room temperature, ?80°C conditions, dark storage, and UVA/UVB light exposure over a 7‐week period. Volatile organic compounds (VOCs) in the headspace of the samples were extracted and identified using solid‐phase micro‐extraction–gas chromatography/mass spectrometry (SPME–GC/MS). Three‐dimensional covariance mapping showed that glass containers subjected to minimal UVA/UVB light exposure provide the most stable environment for stored human scent samples.     

The EU Proposal for a General Data Protection Regulation and the roots of the ‘right to be forgotten’

The EU Proposal for a General Data Protection Regulation has caused a wide debate between lawyers and legal scholars and many opinions have been voiced on the issue of the right to be forgotten. In order to analyse the relevance of the new rule provided by Article 17 of the Proposal, this paper considers the original idea of the right to be forgotten, pre-existing in both European and U.S. legal frameworks. This article focuses on the new provisions of Article 17 of the EU Proposal for a General Data Protection Regulation and evaluates its effects on court decisions. The author assumes that the new provisions do not seem to represent a revolutionary change to the existing rules with regard to the right granted to the individual, but instead have an impact on the extension of the protection of the information disseminated on-line.     

警察权益保障的立法建议

警察群体是我国诸多机关群体中的重要组成部分。肩负着保卫国家社会安定、人民安居乐业的重要职责。警察权益的保障是提高警察工作积极性的重要前提。更是维系国家执法权威的关键。但目前暴力抗法、暴力袭警等违法犯罪行为严重地侵害了警察的人格权、健康权甚至生命权。本文分析了我国警察权益保障的现状,并结合国外警察权益保障的经验。提出了完善我国警察权益保障的立法建议。     

国际商事仲裁中当事人意思自治领域的新发展——以《纽约公约》第5、6、7条的修改为中心

《纽约公约》是当今承认与执行外国仲裁裁决领域最具影响力的国际公约,自1958年生效以来,已经得到约140个国家的承认。《纽约公约》对促进国际经贸的发展作出了巨大的贡献,但在近半个世纪的适用实践中,它也暴露出一些不足,在某些方面还引起了较大的争议。本文从仲裁的本质出发,论述如何通过对《纽约公约》的修改,扩大当事人意思自治的范围,营造一个更有利于国际商事仲裁的环境。     

企业合规计划有效性与举报人保护制度之构建——澳大利亚路径及其对中国的启示

传统的法人犯罪惩治机制建立在单一的刑罚威慑框架之下,其以膨胀刑法条文、严峻刑罚为主要手段,未能有效遏制日益突出的法人犯罪问题。基于对单一国家规制模式的反思,国外出现了以赋予合规计划诉讼及量刑意义为具体手段、旨在提升法人组织自主犯罪预防效率的各类立法与司法实践。企业法人组织是否依据其自身文化、所处行业及销售规模等“个性”因素,设计并执行一套用以鼓励成员个体对企业犯罪事实积极予以披露的举报人保护制度是鉴别具体合规计划是否有效的重要判断标准之一。通过对“合规计划”这一概念中的规范与社会性要素加以描述与强调,由澳大利亚证券交易所企业治理委员会制定的《企业治理原则与最佳操作指引》提升了合规计划妥善保护与激励举报人的整体能力,为我国法人犯罪治理的司法实践提供了全新思路。     

Regulating Complex Contracting: A Socio‐legal Study of Decision‐Making Under EU and UK law

The article evaluates interview data on decision‐making under public procurement law using Halliday's analytical model on compliance with administrative law. In this study, unlike other studies on administrative compliance, the decisions faced by public bodies are not routine; they relate to the award of complex, high‐value contracts. Two contrasting decisions in the procurement process are discussed: the decision over the choice of procedure at the outset of the process, and the decision over the extent to which the public body should negotiate with the winning bidder towards the end of the process. The article considers the rationales behind decisions, and finds that, although public bodies are generally predisposed to comply, legal uncertainty means the relevance of commercial pressures and challenge risk impact heavily on approaches to compliance, even shaping understanding of what compliant behaviour actually is.     

The Injustice of a Felony Conviction for Offenders Under Age Twenty‐One: A New Option for the Courts to Save Our Youths’ Futures

When the Criminal Justice System adjudicates an individual felony offender, it complicates many aspects of that individual's life; from applying for colleges, and jobs to attempting to become contributing member of society. In New York, to prevent seven‐ to sixteen‐year‐old youth who commit felony offenses from becoming felony offenders, the courts prosecute them as juvenile delinquents or juvenile offenders. In the United States, individuals under the age of twenty‐one cannot purchase alcohol or tobacco and cannot get married without parental consent, but they can be charged with a felony. Before and even after reaching the age of twenty‐one, individuals are still in need of guidance, support, education, employment, and stability as brain development is still ongoing. To help protect those who have not reached the age of twenty‐one, states should implement Senior Youthful Offender Hearings as proposed in this Note. This hearing is a two‐part hearing: (1) determine if an individual should be considered eligible for the protections under the current Youthful Offender Laws and (2) determine sentencing and alternatives to incarceration, focused on steering Senior Youthful Offenders on the right path.     

紧急状态下的权利保护与救济

紧急状态下为了公共利益、公共秩序的需要政府享有必要的紧急权力,包括更多的限制或剥夺公民的合法权益的权力,在法治时代这种权力也要受法律的理性规制,保护公民合法权益应是紧急状态立法的重要目的或价值取向之一;政府行使紧急权力要遵循一定的法治原则,而公民面对政府紧急权力的行使,除了享有一些不可克减的基本权利外,还应享有知情权、监督权、紧急救助请求权、申请行政复议或提起行政诉讼权、特别损失补偿权、损害赔偿请求权,从而获得有效的救济。     

A Four‐Stage Method of Age at Death Estimation for Use in the Subadult Rib Cortex*,†

Abstract: Age estimation in the subadult skeleton can be rather precise when the epiphyses and dentition are present, but incomplete or commingled remains still present a challenge. Histomorphometric age‐at‐death estimation methods developed for use on adults are based on the age‐associated accumulation of osteons. In the growing skeleton, there is a poor correlation between osteon numbers and age until the latter half of the second decade. As a result, there has been no histological aging method for use in subadults. The analysis of the rib cortex of 72 subadults ranging in age from 2 to 21 years has identified a series of developmental changes in the bone microstructure that can be used to estimate age. This qualitative method utilizes the systematic changes in rib cortical morphology to classify ribs into one of four age phases. This method can be applied to immature skeletons in forensic, archaeological, and paleontological contexts.