Miscarriages of Justice and the Government of the Criminal Justice System: An Alternative Perspective on the Production and Deployment of Counter-Discourse

This article confronts a perennial question raised by critical criminologists, namely, what part do critical counter-discourses play in the exercise of dominant forms of power in the sphere of criminal justice? In specific terms, it analyses some of the key sources of critical socio-legal counter-discourse that were produced and deployed in response to the most recent governmental review of the criminal justice system on the problem of miscarriages of justice in England and Wales. In so doing, it draws from Foucault’s theses on power, resistance and governmentality and suggests an alternative reading of the relations of power and the role and rationality of governmental intervention in the legislative framework of the criminal justice system. In light of this, it is argued that the reform of the criminal justice system should not only or merely be viewed as a ‘damage limitation exercise’ by a repressive state attempting to ‘betray’ the public to retain or reproduce its power. On the contrary, reform of the criminal justice system might, also, fruitfully be seen as part of a process that is initiated when the governmental conditions are right; a process which can, also, present opportunities to achieve progressive reforms.     

Legal,Psychological, and Behavioral Outcomes

States have responded to the public's outrage at rising juvenile crime by revising their transfer statutes to make it easier to transfer juvenile offenders for trial and sentencing in criminal court and possible incarceration in adult prisons. These changing trends in juvenile justice raise three questions about what actually happens to juveniles once they are in the adult criminal justice system. To what extent does trial in adult court and/or incarceration in adult prisons promote or retard community protection, juvenile offenders' accountability, and the development of competencies in juvenile offenders? This article discusses state transfer laws and the legal consequences of criminal court prosecution, and analyzes current research on deterrence effects of transfer laws, conviction and sentencing in juvenile versus criminal court, recidivism rates in juvenile versus criminal court, and conditions and programming in juvenile versus adult correctional facilities. The research findings have two important implications for juvenile justice policy: the number of juvenile cases transferred to criminal court should be minimized, and imprisonment of juveniles in adult facilities should be avoided whenever possible. These implications are discussed, and directions for future research are identified.     

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.     

Rule-making, rule-breaking? Law breaking by government in the Netherlands and the United Kingdom

This article concerns a relatively novel issue: rule breaking and unlawful conduct by government bodies; to which degree does it occur, what is the nature of this misconduct, what are the underlying motives, and what are the consequences and possible solutions? Rule and law breaking is harmful for the credibility and integrity of a state and its law enforcement system. However, very little empirical research has been carried out into this issue, in comparison to research into state crime. There is little clarity about how public actors deal with criminal and administrative laws and rules in areas like environmental protection, safety regulations and working conditions. Do government bodies set a good example? Is their behaviour better or worse than the public and businesses? An analytical framework for research will be presented and also the results of an extensive research project in the Netherlands; the main themes of which have been benchmarked against data from the United Kingdom. The article will conclude with a summary of the main findings and a number of suggestions for further research and policy development.     

Gorr on actus reus

Advances in forensic techniques have expanded the temporal horizon of criminal investigations, facilitating investigation of historic crimes that would previously have been considered unsolvable. Public enthusiasm for pursuing historic crimes is exemplified by recent high-profile trials of celebrities accused of historic sexual offences. These circumstances give new urgency to the question of how we should decide which historic offences to investigate. A satisfactory answer must take into account the ways in which the passage of time can erode the benefits of criminal investigation, the costs associated with investigating old crimes, and the need to prioritize investigations in the face of limited police resources. This article emphasizes the first of these factors. It begins by considering the moral goals of a criminal justice system and the contribution of criminal investigations to the achievement of these goals, distinguishing between contributions that depend on further steps in the criminal justice process, such as prosecution and punishment, and contributions that can have value independently of these further steps. Using this important distinction, the article then examines a range of factors that relate the passage of time to criminal justice goals, including the seriousness of the crime; deterioration of evidence; death of the offender, victim and others affected by the crime; and diminished psychological connectedness between those affected by the crime and their current selves. While the range and non-uniformity of relevant factors preclude a simple answer to the question of when historic crimes should be investigated and call instead for case-by-case assessment, we find that the analysis does support some general conclusions that can guide such an assessment.     

Criminal Jury Trials in 2030: A Law Odyssey

‘Strategic foresight’ is a technique used by institutions to prepare for a technology‐charged future. It involves considering how the institution might look in the future. In doing so, it enables the institution to prepare for and achieve the preferred future. This article explores what the process of strategic foresight has to offer common law criminal justice systems, with a particular emphasis on the role of expert evidence in criminal jury trials. A hypothetical vision for the future set in 2030, which foresees the adoption of technological advances in the courtroom, is compared and contrasted with processes from a 2012 murder trial. We examine how a well‐designed digital courtroom could enhance the delivery of expert evidence. Considering ‘alternative future law scenarios’ can illuminate what a legal system is likely to need in times to come and can identify the necessary steps for beneficial adaptation via research, policies, and training.     

刑法平等原则辨析

刑法已经对平等作了明确的规定,但刑法学界对于刑法平等是单纯的司法平等还是立法平等与司法平等的统一、刑法平等是纯粹打击犯罪上的平等还是打击犯罪与保护权益平等的结合、刑法平等是否仅为自然人间的平等、刑法平等要排除哪些因素的干扰、刑法平等与区别对待关系如何处理,争议颇大。对这些争议予以澄清是正确把握刑法平等原则内涵和外延的需要。     

Theorizing Criminal Law Reform

How are we to understand criminal law reform? The idea seems simple—the criminal law on the books is wrong: it should be changed. But 'wrong’ how? By what norms 'wrong’? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized ones—that criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture.     

How Is Criminal Justice Related to the Rest of Justice?

Are principles of criminal justice derived from a broader conception of justice, or does criminal justice involve some of its own distinctive principles such that it is not—for example—an aspect of distributive justice? Examining considerations regarding luck and desert provides an illuminating approach to this issue. The notion of desert has largely been excised from a great deal of recent political theorizing, and in particular, it has been eliminated from many influential conceptions of distributive justice. It is widely held that the pervasiveness of luck renders desert inappropriate to contexts of distributive justice, and incompatible with the freedom and equality of persons in a just political community. Should considerations of desert also have a minimal role in criminal justice—where they seem to still be important? Are considerations of desert in the context of criminal justice consistent with persons being free and equal participants in a just political community? How are principles of criminal justice related to principles of distributive justice and political justice in an overall just society? Many scholars agree that criminal justice presupposes an adequately just society. Still, that leaves open just how criminal justice relates to justice overall. That is the present topic.     

‘Paedophile Hunters’, Criminal Procedure,and Fundamental Human Rights

‘Paedophile hunters’ have attracted global media attention. The limited literature on paedophile hunters, which documents their emergence in contemporary liberal democracies, pays scant attention to how their use of intrusive investigative methods may threaten the procedural rights of suspects and undermine the integrity of the criminal justice system. This article fills this normative ‘gap’ in the literature. It draws upon media coverage, criminal procedure jurisprudence, and criminological scholarship to analyse the regulation of paedophile hunting in English and Welsh law. The article suggests that domestic law does not afford adequate protection to due process and the fundamental human rights of those falling under the paedophile hunter's purview. Unless paedophile hunting is constrained by a narrower and more robustly enforced regulatory regime, it should not be permitted, let alone encouraged, in contemporary liberal democracies.     

Abolition of plea bargaining in the coast guard

In the administration of criminal justice, the abolition or restriction of plea bargaining has raised many issues. Of primary concern is the impact on court systems and case dispositions. This research note looks at the Coast Guard military justice system and its 1975 decision to abolish pretrial agreements, effectively eliminating plea bargaining in that system. Studying criminal cases from 1973 to 1978, we determine if that intervention in a time series exhibits any potency. Specifically, what difference did the abolition of plea bargaining make? We find that the abolition of plea bargaining did not make much of a difference to the Coast Guard military justice system, similar to the conclusions drawn from studies of civilian courts.     

Legal Constraints on the Use of Race in Biomedical Research: Toward a Social Justice Framework

This article addresses three questions concerning the legal regulation of the use of race as a category in biomedical research: how does the law currently encourage the use of race in biomedical research?; how might the existing legal framework constrain its use?; and what should be the law's approach to race-based biomedical research? It proposes a social justice approach that aims to promote racial equality by discouraging the use of "race" as a biological category while encouraging its use as a socio-political category to understand and investigate ways to eliminate disparities in health status, access to health care, and medical treatment.     

Criminology and animality: stupidity and the anthropological machine

Although a relatively small, yet growing group of scholars have been lamenting the exclusion of nonhuman animals from the scope of criminology for over thirty years now, animals have been historically present in criminological theorizing, legal practices, and research. However, this presence has not been of the form advocated for by scholars who variously identify themselves as non-speciesist criminologists, green criminologists, or ecological criminologists, who have been arguing largely for recognition of harms perpetrated against animals, or ‘zoological crime’. Instead, the longer history of animals in criminology is as offenders or as prototypes of criminality. In this article, we are concerned with the production – vis-à-vis the anthropological machine – of the ‘stupid’ animal and subhuman within criminology and criminal justice. Guided by the political philosophy of Giorgio Agamben, we trace the animal through criminological thought from the premodern period to Lombroso to contemporary criminological scholarship illustrating how the animal has been (ab)used to shore up the classifications between humans, between humans and animals, and the intelligent and the stupid. We also examine how historically through criminal trials of animals and the feebleminded, criminal justice has played an active role in buttressing these classifications and acting on these classifications to produce bare life, that is, life without form or value.     

“Experts by Experience”: The Involvement of Service Users and Families in Designing and Implementing Innovations in Family Justice

Drawing on international research, policy, and practice, this article explores what is meant by service user involvement, how it has developed, and how it has been implemented across different areas of practice. Using examples from across the health and social care fields, it reflects on how the learning from other areas of practice in which service user involvement has been successful may be applied to the family justice field. The arguments presented highlight the value of taking a bottom‐up approach in designing and implementing innovations in family justice, which would embrace the views of family members, including children, as ‘service users.’ It is important, however, to balance both the challenges and the opportunities offered by involving those who are ‘experts by experience’ in the family justice processes, in order to lead to improved services and experiences.     

Provocation and Pluralism

What is the best way to reflect human diversity in the structure of the provocation defence, and similar excusatory defences in the criminal law? The House of Lords recently concluded that the right way is to allow the jury to personalise and thereby qualify the apparently uniform ‘reasonable person’ standard mentioned in section 3 of the Homicide Act 1957. In this paper we argue that this is not the right way at all. We argue that the reasonable person standard, unqualified, already accommodates the only variations between people that the law should want to accommodate in an excusatory defence. To defend this view we revive the common law's tripartite analysis of the ‘objective’ (or impersonal) issues in the provocation defence: first, was there an action capable of constituting a provocation? second, how provocative was it? and third, how much self‐control should have been exhibited in the face of it? We show that these questions each have a built‐in sensitivity to certain variations between different defendants' situations, but that this does not detract from their objectivity (or impersonality). We argue that no more sensitivity is needed in the name of human diversity, and what is more that no more sensitivity is desirable.     

Eyes wide shut: the police investigation of safety crimes

This article reports the results of an empirical research project on the police investigation of harms caused by occupational safety crimes in Finland. It begins with a theoretical discussion of how those harms are excluded from mainstream criminal justice discourse by a range of obscuring mechanisms and the role that policing plays in maintaining and constituting a social order that marginalises safety crime. The paper uses an empirical study of safety crimes reported to the police in Finland. The study, located in a rare case of a jurisdiction in which safety crimes are the responsibility of mainstream policing agencies, will be used to explore the possibilities for stretching the legitimate parameters of criminal justice intervention. In order to do so, the analysis explores features of the ‘structural’ readiness of the state and the ‘conceptual’ readiness of police officers to criminalise those harms. The paper concludes on the value of those findings for understanding how safety crimes might be mainstreamed into policing systems more generally.     

The truth and the trial: victim participation,restorative justice,and the International Criminal Court

In the field of international criminal justice, the international criminal court (ICC) has been lauded for its integration of victim participants into its legal proceedings. In particular, the ICC’s framework of victim participation has been understood to figure as a balance between retributive and restorative justice as it enables the actual voices of the victims to be heard. However, there has been little research that considers how victim participation works in practice as a form of truth-telling. In order to begin to address this gap, the integration of the ‘voices of the victims’ into the proceedings and outcome of The Prosecutor v. Thomas Lubanga Dyilo is explored. The forms of harms and experiences that comprise the truth of the events under adjudication put forward by the victim participants are considered, and then how the truth-telling functions of the ICC represent these states of injury. While the ICC’s legal proceedings enable victims to speak of their harms and experiences, their ‘voices’ are largely absent from its judgment. To address this issue, the ICC needs to develop and maintain a level of ‘restorative justice coherence’ to manage victims’ expectations of its justice approaches.     

Trust and Legal Governance: A Case Study of Ethiopian Criminal Justice

Current empirical research on trust in criminal justice focuses on those who do the trusting. Working from the theoretical position that trust is relational, this article expands that research by showing how trust relationships between the public and criminal justice institutions are shaped by the legal framework governing them. Reporting empirical case studies from the plural legal governance of criminal justice in Ethiopia, the article shows that the country's different legal frameworks produce different constructions of trust relationships between the public and criminal justice institutions. Furthermore, the empirical study shows that the practical organization of daily case handling in criminal justice institutions make for an important mechanism to mediate and link these differently constructed trust relationships.     

The Iron Fist in the Latex Glove: The Intersection of Public Health and Criminal Justice

The intersection of public health and criminal justice involves reducing negative human outcomes, disease and crime, respectively. In this article, we examine the public health approach in detail and how it relates to criminal justice research and practice and how each discipline achieves legitimacy. We demonstrate the public duties of the criminal justice system and how it already performs some public health duties and how we can better integrate public health approaches at the academic, bureaucratic, and street levels.