When Public Protection Becomes Punishment? The UK Use of Civil Measures to Contain the Sex Offender

In keeping with many countries the UK has moved the problem of sexual offending up the political agenda. On the criminal justice side sentences have been increased and supervision periods extended. On the civil side a raft of new measures have been put in place to regulate the behaviour of sex offenders in the interest of community safety and child protection; this paper examines these measures and, in particular takes the sex offender ‘register’ as a case study to show how political imperatives have been brought to bear with little reference to the research or professional views of practitioners in this area. It is contended that under these political pressures, what starts life as a preventive, regulatory measure can easily become a more punitive measure in its own right; as such it may be liable to challenge by those subject to it for failing to fulfil its primary purpose and for straying across a line between the civil and criminal aspects of intervention.     

Principles of European Private or Civil Law?

The aim of this piece is to draw the attention of the debate on principles in European private law to an institutional question. As the question of who detects these principles is crucial to understand the values and intentions behind the provisions on principles, I turn to the significance of the authority question of who detects principles of European Private law with regard to the two players ECJ and the academic circle ‘Joint Network on European law'. After analysing the role of these players I will ask whether private law principles (which are principles derived from the analysis of contractual relationships by academics) or principles of civil law (derived from conflict solution by judges) govern the principles debate in European Private law. I will argue for a pluralistic understanding of European Private law, where neither academia nor the ECJ enjoy a monopoly on the detection of principles in European Private law. Instead, they form a symbiotic relationship in several respects. Understood in this way, the DCFR's role as a toolbox for the legislator is supplemented with its maybe even stronger significance as a toolbox for judges.     

DNA analysis and the Freedom of Information Act: information or invasion?

This note explores the possibility of release of an individual's DNA analysis to any person who requests it through the Freedom of Information Act (FOIA), after an individual's post-aircraft accident DNA profile has been developed by the Federal Aviation Administration's (FAA) Civil Aerospace Medical Institute (CAMI). It analyzes whether the request would fall under the FOIA's 552(b)(6) exemption, which weighs a person's privacy interest against any public interest in such information, or if the release would constitute a "clearly unwarranted invasion of personal privacy."     

Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union

Article 18 of the Charter of Fundamental Rights of the European Union enshrines the right to asylum. Nonetheless, despite its ‘constitutionalisation’ within primary law, asylum remains a far too amorphous right, whose axiological potential has gone virtually unnoticed in the ongoing migratory crisis. The paper will argue that this is partly due to the fact that the Court of Justice on a few occasions has declined to clarify the scope of Article 18. The provision at issue therefore remains a pathological element that requires an adequate diagnosis on which accurate prognoses can be based. In an attempt to diagnose the right to asylum enshrined in Article 18 of the Charter of Fundamental Rights of the EU, this paper will compare different hermeneutical approaches and reflect on the contextualisation of the mentioned provision through the lens of domestic and EU case law and in the light of the recent EU–Turkey Statement. The article will ultimately propose to interpret the EU asylum legislation as instrumental to the effective exercise of the right to asylum.     

What Is the Will Theory of Rights?

This article helps to clear up some misunderstandings about the Will Theory of rights. Section 2 briefly outlines the Theories of Rights. Section 3 elucidates some salient differences amongst self‐described anti–Interest Theory accounts. Section 4 rebuts Carl Wellman's and Arthur Ripstein's respective arguments about the Will Theory differing from “Choice” or Kantian theories of a right. Section 5 then offers a candidate explanation of why people might subscribe to the Will Theory in the first place.     

How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist's Assessment

This article first assesses the success and distinctiveness of the Human Rights Act 1998 from the perspective of its status as an exemplar of ‘the new Commonwealth model of constitutionalism.’ This new, intermediate model attempts to straddle the dichotomy of parliamentary sovereignty and judicial supremacy by protecting rights through a reallocation of powers between courts and legislatures that brings them into better balance than under either of these two traditional, more lopsided models. As part of its assessment, the article critically examines an influential strand of commentary claiming that in practice the HRA has proven to be less distinctive from US‐style constitutionalism than initially claimed or hoped. The second part of the article seeks to contribute to current debates about reform of the HRA by proposing ways to address its main structural weaknesses, especially the problem of remedial distortion.     

Finger in the Dyke or the Floodgates Stemmed? Sections 29–40 of the Employment Act 2002

This article considers Sections 29–40 of the Employment Act 2002 in the context of post-War developments in labour relations culminating in the National Industrial Relations Court. It considers the development of Employment Tribunal which rather than being the last resort intended by the legislators, has become the first resort of complainants, often for trivial matters by employees; or by employers taking an extremely broad view of Gross Misconduct by employees. Due to the volume of cases and the shortage of Chairs, cases are constantly delayed and postponed. The article posits that these are the principle reason behind the framing of Sections 29–40 of the Employment Act 2002 which introduced a new Section 9(1)(a) into the Employment Tribunals Act 1995. This has given the Chair of an Employment Tribunal the authority to strike out a weak case at a Pre-Hearing Review that will strike the case out once and for all at this juncture. The aim is to encourage employers to have proper procedures and for employees to follow them. This article suggests that in fact the reforms will have the opposite effect; that they have introduced another layer of legal complexity which will further increase the number of cases brought before the Employment Tribunal.     

Union Citizenship—Metaphor or Source of Rights?

After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting 'quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing 'implied duties' based on a doctrine of ' abus de droit ' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law.     

Positive obligations under the African Charter on Human and Peoples’ Rights: the duty of the Nigerian Government to enact a Freedom of Information Act

Beginning with the Independence Constitution of 1960, the right to freedom of information and other civil and political rights have been guaranteed by successive Nigerian Constitutions as fundamental human rights. The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which incorporated the provisions of the African Charter on Human and People’s Right into Nigerian law in 1983 consolidated these and a plethora of other social, economic and cultural rights and imposed a positive duty on the government to adopt legislative and other measures to give them effect. This article develops this potentially revolutionary principle of positive obligations, which amazingly remains unsung and unused more than a quarter of a century after it became an integral part of Nigerian law. The first part of the article proposes the principle as the most effective basis to compel the enactment of a Freedom of Information legislation, which successive governments have refused to enact despite overwhelming public support and sustained lobbying for a Freedom of Information Bill first introduced in the National Assembly in 1997. The second part critically analyses the latest (2007) version of the Bill. It concludes that its provisions are inadequate to give effect to the right to freedom of information in view of the legal and bureaucratic environment under which it will operate, and suggests remedial measures.     

Constrained Waiver of Trial Rights? Incentives to Plead Guilty and the Right to a Fair Trial

This article develops an interpretative framework to examine when incentives to plead guilty should be found to constrain defendant choice to waive fair trial rights under the European Convention on Human Rights. This framework is informed by existing jurisprudence, specifically the judgments of the European Court of Human Rights in Natsvlishvili and Togonidze v. Georgia and Deweer v. Belgium, and socio‐legal literature. According to the framework, an incentive to plead guilty should be found to violate fair trial rights where it makes it unreasonable to expect defendants to exercise their right to a full trial, is independent of the projected outcome at trial, and causes the defendant to plead guilty. An empirical analysis of guilty‐plea practice in England and Wales informed by this new framework identifies problematic incentives and suggests such incentives may disproportionately influence vulnerable defendants.     

Homicide by asphyxia--yes or no? On the use of muscle histology

In two cases of death autopsy revealed large hemorrhages in the muscles of the neck, which lead to the conclusion of a murder by strangulation, e.g. with a soft tool. Histologic examination of the injured muscles didn't show any sign of vital reaction, which means, that they had developed post mortem. There was no reason for further suspicion of a violent crime. Later it became obvious, that neck lesions resulted from inadequate recovery and transport of the corpses. "Vital" type of muscular alteration is characterized by segmental or disk-like fragmentation of muscle fibres, loss of sarcoplasmatic cross-striation and appearance of pathologic longitudinal fibrillar structures. These signs are missing in case of a postmortal injury, whereas the cross striation is intact. The slides should be stained with PTAH. With these two cases we would like to demonstrate the importance of histologic examination of injured muscles, when question for intravital or postmortal injury rises.