Criminalising Anti-Social Behaviour

This paper considers the justifiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, and its often modest preventive benefits come at a high cost to citizens’ liberty and autonomy. The paper then goes on to propose a new definition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community. Whilst this definition identifies a serious form of wrongdoing, its precise scope is inevitably uncertain. The paper thus concludes that we have good reason to use two-step prohibitions such as the ASBO to regulate such conduct, so as to enable the use of the criminal law against it whilst minimising possible concerns of legality arising from the proposed definition’s uncertain scope.     

Holding Parents to Account: Tough on Children,Tough on the Causes of Children?

This paper examines the intellectual basis for New Labour's policy of holding parents to account for the misconduct of their children. It argues that the government has relied too heavily on an ill-defined conception of responsibility, whilst failing to address the underlying causes of anti-social behaviour. By way of illustration, the government's strategy is considered in the light of the author's empirical study of anti-social behaviour measures and their impact on families in a disadvantaged area.     

Governance through Publicity: Anti-social Behaviour Orders, Young People, and the Problematization of the Right to Anonymity

Since the early twentieth century, young people under eighteen involved in legal proceedings have been granted a degree of protection from the glare of media publicity. One controversial consequence of recent reforms of the anti-social behaviour order (ASBO), however, is the incremental reduction in the anonymity rights available to those subject to the mechanism, together with calls by the Home Office for details of such individuals to be publicized as a matter of course. Numerous commentators have criticized the government accordingly for reinstating the draconian practice of 'naming and shaming'. This paper contends that these developments can be usefully analysed through the lens of Foucault's work on state governance. It explores, in particular, how challenges to the right reflect both the fall of anonymity and the rise of publicity in the governance of what I term 'ASBO subjects', together with the communities in which they live, under 'advanced liberal' rule.     

The war on street ‘terror’. Why tackle anti-social behaviour?

This article examines the rationales of Dutch politicians for tackling the perceived pressing problem of ‘anti-social behaviour’ (ASB) and the question did they copy the British approach? The first part will describe in short the concept of policy transfer and the recent British fight against ASB. The focus will be on the introduction of the Anti-social Behaviour Order. The second part is an empirical study into the Dutch retreat from ‘condoning’ ASB, consisting of interviews with Dutch politicians focusing on their ideas for tackling ASB. Those are compared with the British’s rationales. This kind of comparative elite ethnography is not common in criminology, but this article aims at providing evidence of its benefits. By answering the research question an insight into the origins of policy in the sphere of criminal justice can be obtained.     

Does contact with the justice system deter or promote future delinquency? Results from a longitudinal study of British adolescent twins

What impact does formal punishment have on antisocial conduct—does it deter or promote it? The findings from a long line of research on the labeling tradition indicate formal punishments have the opposite-of-intended consequence of promoting future misbehavior. In another body of work, the results show support for deterrence-based hypotheses that punishment deters future misbehavior. So, which is it? We draw on a nationally representative sample of British adolescent twins from the Environmental Risk (E-Risk) Longitudinal Twin Study to perform a robust test of the deterrence versus labeling question. We leverage a powerful research design in which twins can serve as the counterfactual for their co-twin, thereby ruling out many sources of confounding that have likely impacted prior studies. The pattern of findings provides support for labeling theory, showing that contact with the justice system—through spending a night in jail/prison, being issued an anti-social behaviour order (ASBO), or having an official record—promotes delinquency. We conclude by discussing the impact these findings may have on criminologists’ and practitioners’ perspective on the role of the juvenile justice system in society.     

Anti-social behaviour: children,schools and parents

Under Prime Minister Tony Blair's New Labour government, increased criminalisation of previously non-criminal behaviour, anti-social behaviour and greater accountability of children and parents for their behaviour were evident. The article provides an overview of anti-social behaviour legislation and the implications for children, schools and parents. It focuses upon the interconnectedness of families and schools with the intention to better inform educational leaders of the changes to roles and responsibilities under the legislation.     

Personality and crime: Where do we stand

Abstract

This article argues for a central role for personality in mediating between the genetic and environmental forces which act as causal agencies on the one hand, and the criminal behaviour that is to be explained on the other. Such a causal chain must of course also incorporate the biological-hormonal intermediaries between DNA and personality. In addition we require an explanation for the specific behaviours that make up anti-social conduct, and it is suggested that this is to be found in Pavlovian conditioning. The evidence relating to these theories is reviewed, and suggests a fairly definite framework which also leads to some suggestions concerning the reduction of criminality.     

Law,the State,and the Dialectics of State Crime

Drawing on material from a study of civil society and state crime in six countries, this article reflects on two themes from Chambliss’s work: the debate between state-centred and more pluralistic views of law, and the “dialectical” approach to the analysis of state crime. It argues for a more pluralistic approach to law than Chambliss and Seidman adopted in Law Order and Power, along with a broader approach to the definition of state crime as a form of deviant behaviour. Case studies from the civil society research illustrate how the strategies adopted by organizations challenging state practices can be understood in terms of an interplay between different forms of law. With some qualifications, we support Chambliss’s dialectical approach, and attempt to clarify just what the term “dialectical” means. Finally we bring together the two strands of the argument to propose an approach to state crime founded on “dialectical legal pluralism”.     

EU Excise Duties and Section 90 of the Australian Constitution

The constitutionalisation of the EU has been not without its challenges. However, putting aside the apparent political difficulties of the constitutional process, this article argues that, because the further constitutionalisation of the EU depends on its ability to assimilate some features of a federal state, there are, at least, two reasons why the EU is not yet ready for its constitutionalisation. The first reason is that its excise duty system, which permits discriminatory and protectionist behaviour by Member States, prevents the EU from achieving its fundamental objective of an internal market. The second reason is the EU's budget, which is so small that it is doubtful whether the EU will survive its continuing enlargement. As a solution to this problem, this article introduces section 90 of the Australian Constitution, which provides the Commonwealth of Australia with the exclusive power to levy excise duties. The article argues that the adoption, by the EU, of a similar fiscal arrangement would remove the discriminatory and protectionist operation of its excise duty system and help enlarge the size of the EU's budget by providing it with a self‐ financing mechanism.     

The law and practice in maritime boundary delimitation: lessons for the resolution of dispute between Cote d’Ivoire and Ghana

Definitions of terrorism in the United Kingdom and other Commonwealth countries tend to provide that behaviour can constitute terrorism only if it is politically, religiously or ideologically motivated. Critics argue that this complicates prosecutions, distorts trials, and encourages racial profiling. Defenders argue that the requirement helps yield a definition which corresponds to common understandings of what terrorism entails, and limits the danger of terrorism‐related powers being abused. Part 1 of this article examines the antecedents of the requirement, part 2 examines its legal significance, and part 3 argues that it is unnecessary and undesirable. While many of the criticisms of the motivation requirement are either unpersuasive or exaggerated, defences of the requirement are not altogether convincing. While the requirement excludes from the definition some behaviour which ought not be treated as terrorism, it also excludes some socially dangerous activities which should be.     

论走私、贩卖、运输、制造毒品罪

走私、贩卖、运输、制造毒品罪的概念应当全面含盖刑法第347条、第350条第2款、第355条的规定,作者据此对本罪的概念和特征作出了重新界定。文章还列表表示了本罪数额与情节和刑罚适用的关系,列表界定了毒品再犯制度与累犯制度的联系和区别。     

Gynaecological cytopathology and the search for perfection: civil liability and regulatory ramifications

The article analyses the potential for false negative and false positive results from Pap smear testing by gynaecological cytopathology laboratories. It also reviews case law in relation to the liability of general practitioners, gynaecologists, cytoscreeners and pathologists in respect of cervical cancer diagnoses. It argues that the concerns expressed in the 1990s about unfair findings of liability against cervical screeners have not been borne out, liability only having been found by the courts where culpable failure to adhere to the standards to be expected of professional behaviour has been established by probative evidence. It argues that the challenge for the future is for cytology screening to articulate definitively where the distinctions lie between acceptable and unacceptable error and for the medical profession and the legal profession to accommodate to the limitations of gynaecological cytopathology.     

Hybrid law and human rights – banning and behaviour orders in the appeal courts

The desire of the New Labour Government to be seen as responsive to popular concerns and moral panics over hooliganism and anti-social behaviour is resulting in the increased use of legislative responses that bridge criminal and civil law. Anti-Social Behaviour Orders and Football Banning Orders are two key examples of this ‘Hybrid Law’, imposed as a response to criminal conduct, supported by criminal law sanctions, but operating under a civil law procedure providing fewer protections for defendants. These hybrid orders have the power to severely restrict the freedom of individuals who have not been found guilty of any criminal offence, and have been challenged in two important cases under Article 6 of the European Convention of Human Rights. The decisions of the Appeal Courts that the purpose of the orders is merely preventative rather than punitive, and can therefore be justifiably imposed under a civil law procedure, is controversial and indicates an unwillingness to use the powers of the Human Rights Act to challenge such legislation and protect the fundamental human rights of defendants.Dr Geoff Pearson is Lecturer in Law, Management School, University of Liverpool     

Medicare program; establishing procedures for transmitting information between Medicare carriers and Medicare supplemental insurers--HCFA. General notice

This notice announces and describes the procedure for the automatic transfer of claims information from Medicare carriers to Medicare supplemental (Medigap) insurers when a beneficiary has assigned his or her right of payment to a participating physician or supplier. It delineates the roles of the Medicare carriers, Medigap insurers, State insurance departments, beneficiaries, physicians and suppliers, and HCFA. The procedure for the automatic transfer of claims is required by section 1842(h)(3)(B) of the Social Security Act, as added by section 4081(a) of the Omnibus Budget Reconciliation Act of 1987 and is intended to speed payment of Medicare supplemental insurance benefits to participating physicians and suppliers.     

Medicare program; payment for customized wheelchairs--HCFA. Interim final rule with comment period

Section 4152(c)(4)(B) of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) amended section 1834(a)(4) of the Social Security Act to provide that a wheelchair furnished on or after January 1, 1992 is treated as a customized item for payment purposes under part B of Medicare if it meets the definition provided in that paragraph, unless the Secretary develops specific criteria before January 1, 1992, in which case the Secretary's criteria go into effect. This interim final rule with comment period sets forth the Secretary's criteria that a wheelchair must meet to be considered a customized item.     

Medicare program; Medicare secondary payer for disabled active individuals--HCFA. Proposed rule

This proposal sets forth the rules that limit Medicare payment for services furnished to disabled "active individuals" who are covered under a large group health plan (LGHP), and prohibit discrimination by an LGHP against such individuals. These rules are necessary to implement section 1862(b)(1)(B) of the Social Security Act (the Act), and related provisions, which make Medicare benefits secondary to LGHP benefits.     

When Culture Means Gender: Issues of Cultural Defence in the English Courts

The use of cultural defence has been much discussed in the American context and has figured as one of the areas of concern in feminist assessments of multiculturalism. This paper examines two categories of cases from the English courts, those where cultural context has been seen as significant in interpreting the actions of female defendants, and those where 'culture' is invoked to explain severe acts of violence against women. It argues that cultural arguments become available to female defendants mainly when they conform to stereotypical images of the subservient non-Western wife. They have not, on the whole, been successfully employed by male defendants to mitigate crimes against women, though there are troubling exceptions. The larger problem is that mainstream culture itself promotes a gendered understanding of agency and responsibility, as when it perceives men as understandably incensed by the sexual behaviour of their women, or women as less responsible for their actions because of the influence of men. The conclusion is that the uses and abuses of cultural defence highlight issues that have wider provenance, for it is when cultural arguments resonate with mainstream conventions that they have proved most effective.     

What is an employee benefit plan?: ERISA preemption of "any willing provider" laws after Pegram

This note considers the implications of a recent Supreme Court decision, Pegram v. Herdrich, for preemption of state laws under the Employee Retirement Income Security Act (ERISA). Though Pegram dealt with a fiduciary liability question, and not preemption specifically, the Court in arriving at its decision laid out a definition of the word "loan"--a word that is used in both the fiduciary liability section of ERISA and the preemption section. The Court's definition focuses upon the relationship between the managed care organization and the employer that hires it. The definition, however, excludes from the meaning of "plan" the relationship between the managed care organization and the health care providers it hires. Thus, this Note argues that according to Pegram, state laws that regulate the relationship between managed care organizations and health care providers, such as "any willing provider" laws, should not be preempted by ERISA.     

How the News was Made: The Anti-Social Behaviour Day Count, Newsmaking Criminology and the Construction of Anti-Social Behaviour

‘Newsmaking criminology’ is an approach to criminological research characterised by critical engagement with topics being covered by the news media, offering greater engagement with public debate and reflexive critique of the objects of criminological knowledge. Two examples of Brisith criminological researchers taking an identifiable ‘newsmaking’ approach are discussed in this paper: the Anti-Social Behaviour One Day Count, a 24-h comprehensive survey of reports of anti-social behaviour carried out in 2003, and the 24-h Domestic Violence Audit, carried out in 2000. This paper analyses the construction of knowledge of anti-social behaviour through the Day Count, identifying continuities and discontinuities between the Day Count and the Domestic Violence Audit. This leads to a discussion of the strengths and limitations of the ‘newsmaking’ approach, suggesting that it may serve conservative as well as progressive ends.     

Overreaching In Registered Land Law

Beneficial interests under a trust were not intended to be overriding interests under section 70(1)(g) of the Land Registration Act 1925. The position was altered by Williams & Glyn's Bank Ltd v Boland , which determined that an interest under a trust for sale would bind a purchaser if the beneficiary were in actual occupation. The decision raised the question whether such interests could be overreached once the beneficiary was in occupation of the trust property. City of London Building Society v Flegg held that the relevant beneficial interest had been overreached. Both decisions assume that overreaching in registered conveyancing takes effect as it does in unregistered land. Yet there is considerable evidence that the Land Registration Act contains its own overreaching machinery. The House of Lords applied the wrong overreaching provisions in Boland and Flegg and there is no legal basis on which to recognise that trust interests can override a subsequent disposition under section 70(1)(g).