The positioning of the Prosecution Service in the Netherlands and England and Wales: Lessons from one extreme to another

It has been widely acknowledged that the Crown Prosecution Service (CPS), has since it came into existence, had an unsteady start. Part of the problem relates to its relation and communication with its criminal justice partners, by which we mean courts, police and local and central government. A key issue in this respect appears to be striking a balance between independence and autonomy on the one hand, and close contact and the establishment of `partnership' on the other hand. This paper examine show this balance is struck in the Netherlands, where the Prosecution service (Openbaar Ministerie) is strikingly different in nature, but faces very similar problems. It will be argued that a slightly more relaxed attitude on the CPS's independence might open the door to more fruitful relationship with the criminal justice partners in the field. Several examples concerning this in the Netherlands will be presented and discussed. This revised version was published online in August 2006 with corrections to the Cover Date.     

The implementation in England and Wales of the European Enforcement Directive

Legal context. The background to the EU Enforcement Directive(2004) and its implementation in England and Wales by legislativeand procedural changes taking effect in April 2006. Key points. Although much of the Directive required no implementation,there are doubts as to whether the implementing provisions gofar enough, particularly in respect of the rights of actionof representative bodies. Many of the provisions which havebeen made are cosmetic, but there are some significant changes.New evidential presumptions have been introduced in actionsin respect of publication right and rights in performances (althoughthe latter may not go far enough). Defendants may now be requiredto supply interim guarantees instead of submitting to interiminjunctions. Remedies in the design field have been clarified.By contrast, the rules as to damages in the IP field have beenmade more obscure by the implementation of Article 13 of theDirective. Finally, the courts may now make orders for the disseminationof decisions although quite what form these will take remainsto be seen. Practical significance. The changes are procedural not substantive,but they create important new opportunities for claimants andnew threats for defendants. Any parties and potential partiesto IP litigation in England and Wales therefore need to be awareof them.     

The Protection of Prisoners’ Rights in England and Wales

The system in England and Wales for the protection of prisoners’ rights relies on three institutions: a prisons inspectorate with right of entry to all prisons at any time, a prisons and probation ombudsman, and local independent monitoring boards. This contribution focuses on the Prisons Inspectorate and discusses its methodology and criteria for inspection, based on international human rights standards; the effectiveness of the inspectorate; its independence and relationships with other monitoring bodies, the government and the prison service; the application of the methodology to other countries outside the UK; and future developments and threats.     

Police Implementation of the Partial Sex Purchase Ban in England and Wales

European Journal on Criminal Policy and Research - A main point of contention in the policy areas of prostitution and sex trafficking is whether the purchase of sex should be criminalised, whether...     

Enhancing Consistency in Sentencing: Exploring the Effects of Guidelines in England and Wales

Objectives

The development and application of methods to assess consistency in sentencing before and after the 2011 England and Wales assault guideline came into force.

Methods

We use the Crown Court Sentencing Survey to compare the goodness of fit of two regression analyses of sentence length on a set of legal factors before and after the assault guideline came into force. We then monitor the dispersion of residuals from these regressions models across time. Finally, we compare the variance in sentence length of equivalent types of offences using exact matching.

Results

We find that legal factors can explain a greater portion of variability in sentencing after the guideline was implemented. Furthermore, we detect that the unexplained variability in sentencing decreases steadily during 2011, while results from exact matching point to a statistically significant average reduction in the variance of sentence length amongst same types of offences.

Conclusions

We demonstrate the relevance of two new methods that can be used to produce more robust assessments regarding the evolution of consistency in sentencing, even in situations when only observational non-hierarchical data is available. The application of these methods showed an improvement in consistency during 2011 in England and Wales, although this positive effect cannot be conclusively ascribed to the implementation of the new assault guideline.     

Reforming the Role of Magistrates: Implications for Summary Justice in England and Wales

The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs of court closures are irreconcilable with the future viability of a lay magistracy.     

英国二元化律师制度的近期发展与融合之争

英国实行独特的二元化律师制度,事务律师与出庭律师共同为社会提供法律服务,但二者在执业资格取得、出庭权、行业组织、晋升法官的机会等方面有着传统区分。自二十世纪六十年代末期以来,政府开始介入一直自律发展的律师业,制定和推行了一系列打破传统分界的立法与改革举措,由此引发了人们关于律师业是否应当融合以及最终能否融合的争议。或许是否融合只是表面现象,律师分立的传统行业规则带来的弊端才是促使政府推行改革的真正动力。     

Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

Differences between voluntary and public organizations: the behavior of hospitals in England and Wales

This study confronts the following questions: what are the conditions under which a society decides to do things in the public and voluntary nonprofit sectors, and in what ways do organizations behave differently, depending on whether they are in the public or the voluntary nonprofit sector? To address these questions, the study focuses on English and Welsh hospitals during the twentieth century but prior to the National Health Service. The study argues that as long as the sources of funding for public and voluntary organizations diverge, their behavior will diverge. Because English and Welsh voluntary hospitals prior to the National Health Service were heavily dependent on the voluntary sector for funding and the public hospitals were primarily dependent on the public sector for their funding, the data set is especially valuable for observing how divergent sources of funding influence the behavior of organizations.     

Social Justice and Religion in Prison: The Case of England and Wales

The policy of the Federal Bureau of Prisons in the United States is to show equal respect for all religious faiths, but the Prison Service Chaplaincy of England and Wales employs only Christian chaplains and is effectively controlled by the established Church of England. Recent empirical research shows that prisoners who belong to minority faith communities and new religious movements in England and Wales do not enjoy equality of opportunity to practice their religion. For example, their religious and spiritual needs are met by volunteer Visiting Ministers, who in turn must rely on full-time Christian chaplains to facilitate their access to prisoners, meeting rooms, and religious artifacts. This dependency gives rise to feelings of resentment, unjust discrimination, and marginalization among members of minority faith communities.     

Treating the vulnerable in England and Wales: the impact of law reform and changing policy

This article considers the role of treatment in the provision of mental health care in England and Wales. The current legislative position with regard to the making of treatment choices following compulsory commitment will be examined. Consideration will also be given to the position of the informal hospitalised patient, as in the case of R v. Bournewood Community and Mental Health NHS Trust, ex parte L and finally, the role of the common law in establishing (in)capacity in relation to the non-consensual provision of treatment for physical conditions. Attention will then be given to the reform process, which is currently ongoing in England and Wales, and its likely impact on treatment provision. The Mental Capacity Act 2005 received Royal Assent on the 7th April 2005, while the draft Mental Health Bill 2004 underwent detailed examination by the Joint Scrutiny Committee, a report of which was published on the 23rd March 2005. On the 13th July 2005 the British Government outlined its response following the publication of the Scrutiny Committee's recommendations and despite it accepting many of the recommendations put forward, some significant areas of concern remain making the draft Mental Health Bill 2004 "a long way from acceptable legislation".     

The dynamics of unemployment and imprisonment in England and Wales, 1946–1985

This paper explores the dynamic relationship between unemployment and prison admissions in the English criminal justice system. First, by adopting econometric procedures designed to test between alternative forms of dynamic equilibria, it finds that there has been a steady-state growth rate in prison admissions and that unemployment growth has played an important role in determining that equilibrium. Second, by developing a behavioral model of judicial expectations, it argues that judges have used their expectations as heuristic devices for simplifying sentencing decisions and that the unanticipated changes in unemployment have played a key role in determining changes in sentencing patterns. Due to individualized sentencing practices characteristic of English judges, unemployment plays a much larger role in determining prison sentences than warranted under Anglo-American legal traditions.     

Evaluating the case for greater use of private prosecutions in England and Wales for fraud offences

This paper considers the challenges and opportunities that exist in England and Wales for the use of private prosecutions for Fraud. It considers the need for sanctions against fraudsters: looks at the prosecution landscape as it has evolved, especially during the 21st century: considers the legal basis for private prosecution and gives a brief history of its extent. The advantages and disadvantages associated with private prosecution are considered and recommendations made on the changes needed before there could be significant developments in the use of private prosecutions.     

History is Past Politics: A Critique of the Legal Skills Movement in England and Wales

In the past thirty years legal practice changed so significantly that afundamental response was demanded of legal education. Making legalskills a compulsory component in the vocational stage was an incompleteresponse. It addressed the technical competence of lawyers but leftsignificant gaps in professional preparation in terms of content andmethodology. By focusing on the educational and pedagogic implicationsof the skills curriculum the clinical movement contributed to these gaps.The Lord Chancellor's Advisory Committee on Legal Education andConduct has facilitated the consideration of a curriculum organizedaround a more imaginative integration of legal skills in order to beginto tackle these failings and prepare lawyers for the new economic andsocial challenges facing them. Solutions, however, must permeate everystage of legal education, requiring unprecedented levels of co-operationand interaction between the profession and the academy.