Some reflections on the economics of prosecutors: Mandatory vs. selective prosecution

Mandatory prosecution is inefficient according to legal economists. We argue that when prosecutors are fairly insulated from their performance or are highly risk-averse mandatory prosecution is better than selective prosecution. This result has important implications for comparative law. We use our findings to provide a positive explanation for the stylized fact that mandatory prosecution generally prevails in civil law jurisdictions whereas selective prosecution is typical of common law jurisdictions.     

The Forces of Conviction: The Power and Practice of Mandatory Prosecution upon Misdemeanor Domestic Battery Suspects

This article provides an ethnographic account of the power and practice of mandatory prosecution upon misdemeanor domestic battery suspects. Integrating law and society studies, domestic violence research, and poststructuralist theories of power, it finds that mandatory prosecution engages suspected batterers in multiple power operations that shape their agency in different ways. While many of these operations are familiar from past law and society research, mandatory prosecution alters their practice. In general, the different tactics that legal authorities deploy in their interactions with domestic battery suspects coalesce in an effort to have them plead guilty. The impact of these tactics on batterers, however, is far from clear. Mandatory prosecution increases the number of persons convicted of domestic violence. But abusers' violence is repeatedly redefined and displaced, as they are processed through the court setting, thus casting doubt on the criminal court's power to affect their accountability. By detailing the court's various points of encounter with domestic battery suspects, this study offers a much-needed empirical framework for future evaluations of court interventions against domestic batterers.     

Business Collusion as a Criminological Phenomenon: Exploring the Global Criminalisation of Business Cartels

Over the last dozen years or so there has been a burgeoning of criminal law for purposes of dealing with business cartels in a number of jurisdictions (for instance, the new ‘cartel offence’ introduced under the Enterprise Act 2002 in the UK). The discussion here provides first of all some account of this process of criminalisation, mapping it in terms of jurisdictions and the legal character of this category of cartel offending. It then seeks to explain and account for the phenomenon and more particularly to determine the extent to which it may be seen either as an element of more forceful prosecution strategy, or alternatively as a sea-change in moral perception and evaluation. Put another way, is this a development led by legal policy, or a genuine shift in outlook, which has produced a new legal policy? It will be argued finally that, in a more pragmatic perspective, the success of the criminalisation project in any case depends on the emergence of a genuine sense of ‘hard core’ delinquency, without which effective regulation by means of criminal law is unlikely to be achieved. In this respect, a manufactured sense of moral censure, fostered by prosecutors to facilitate leniency programmes, may (outside the US) eventually prove to be a point of vulnerability in such strategies.     

强制性侦查措施的法律规制与法律监督

不需要得到相对人自愿配合而直接实施的侦查措施为强制性侦查措施。强制性侦查措施具有正当性，同时也具有侵害公民基本权益的弊端。为避免或减轻强制性侦查措施对公民权利造成侵害，需要通过法律规范强制性侦查措施，同时需要加强对强制性侦查措施的法律监督。目前我国强制性侦查措施的法律规制严重不足，对于强制性侦查措施的法律监督局限于对逮捕等强制措施适用的监督，对搜查、扣押、冻结等大量强制性侦查措施尚未形成有效的监督机制。强化对于强制性侦查措施的法律监督，需要通过立法完善强制性侦查措施的规范体系，同时也有赖于检察机关改革、优化侦查监督的工作机制。     

和谐社会呼唤建立暂缓起诉制度

在建立和谐社会背景下,检察机关对某些没有必要移送审判的案件暂缓提起公诉,体现了刑法的宽容精神。应从公诉权的本质、刑事政策要求等方面,对构建我国本土化的暂缓起诉制度进行分析。暂缓起诉制度只应适用于未成年人案件,还应征得被害人同意。规范程序、加强监督等也十分重要。     

Fair Trial Rights and the European Community's Fight Against Fraud

The article surveys action taken by the European Community to combat fraud affecting its financial interests, focusing on the development of investigative authority granted to OLAF, the European‘Office Pour La Lutte Anti Fraude’ and its impact on the procedural rights of the alleged defrauder. It shows that the involvement of OLAF can be crucial for a national fraud investigation and subsequent criminal prosecution and that it meets the criteria set out by the Strasbourg organs for the applicability of Article 6 ECH. The article explores whether the legal sources governing the activities of OLAF or national—or rather, Community—law guarantee sufficient protection for the alleged defrauder and thus pay respect to principles arising from the rule of law in law enforcement. It is shown that general principles of Community law, which were mostly established in antitrust law, may provide a certain protection for the suspect, but may not protect him in all regards. It is thus argued that, in the long run, it will be necessary to provide special fair‐trial rights which offer protection to alleged defrauders from those infringements arising out of the specific features of a Community investigation.     

Private prosecution in Singapore: understanding locus standi and measures in place to minimise abuse

In Singapore, as is the case with other commonwealth countries, the general rule is that once any offence has been committed, it is for the state to prosecute the alleged offender. This explains why Article 35(8) of the Constitution provides that ‘[t]he Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence’. Article 35(8) is reinforced by section 11 of the Criminal Procedure Code, which provides that ‘[t]he Attorney-General shall be the Public Prosecutor and shall have the control and direction of criminal prosecutions and proceedings under this Code or any other written law’. However, as is the case with other commonwealth countries, the public prosecutor in Singapore does not have an exclusive right to prosecute. In some circumstances other government agencies or private individuals may institute and have instituted prosecutions. The purpose of this article is to discuss the issues of locus standi to institute a private prosecution and the measures in place in Singapore to minimise abusing the right to institute a private prosecution. In discussing these issues, the author, where necessary, compares the Singapore position with that of other commonwealth jurisdictions and makes recommendations on how legislation could be amended in Singapore to address some of the challenges.     

Prosecuting international crimes at the International Criminal Court: is there a coherent and comprehensive prosecution strategy?

The authors analyze the so far published selection and strategy papers of the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) with a view to their consistency, coherence and comprehensiveness. Given the high number of communications and referrals to the ICC a focused strategy setting out the criteria for situation and case selection and prioritization should be one of the priorities of the Prosecutor. Thus far the Office has developed a strategic framework guided by four fundamental principles: focused investigations, positive complementarity, the interests of the victims and the impact of the OTP’s work. These four principles are critically evaluated by the authors in light of the ICC Statute and existing case law. In particular the positive complementarity approach, focusing on the cooperation with national jurisdictions and enhancing their own capacity to prosecute, is to be welcomed and reflects a realistic prosecutorial policy approach. The cooperation between the OTP and Germany in the prosecution of the leadership of the FDLR is a good case in point. Only such a close interaction with national jurisdictions enables the ICC to contribute to the further closing of the impunity gap. Yet, the OTP must still more precisely define its position with regard to the criteria used for the selection of situations and cases. Thus, a priority for the new Prosecutor should be the drafting of a more precise and comprehensive strategy, integrating the already existing policy and strategy papers as well as drawing on lessons learned.     

Incentives, criminal defence lawyers and plea bargaining

Plea bargaining has become a central feature of criminal procedure in Anglo-Saxon jurisdictions. This paper explores an area seldom discussed in the economic literature on plea bargaining: the influence of the defence lawyer's fee contract on the terms of the bargain. In particular, it uses data from one jurisdiction of the impact on case trajectories of changes in publicly funded defence lawyers’ contracts to test the proposition that the nature of the lawyer's contract influences how cases are managed. An event study methodology on a pooled time-series cross-section data set of case trajectories before and after the change in the nature of the contract is used to examine whether the new payment regime significantly changed the trajectories of cases through the summary criminal justice system. Overall the results seem to suggest that the behaviour of defence lawyers may be influenced by financial incentives. This implies that the terms of plea bargains reached between prosecution and defence lawyers may be affected by the defence lawyer's remuneration contract. Consequently, the authors conclude that the role of defence lawyers has been under-researched in the literature on the economics of plea bargaining.     

Duress and criminal responsibility

While the plea of duress is generally accepted as a defense against criminal prosecution, the reasons why it exonerates are subject to dispute and disagreement. Duress is not easily recognizable as either an excusing or justifying condition. Additionally, duress is generally not permitted as a defense against criminal homicide, though some American jurisdictions allow the defense in felony-murder cases. In this paper, I present an argument for how and why the presence of duress can defeat a finding of criminal responsibility. This is intended to establish the philosophical foundation for the legal acceptability of the duress defense, even though I conclude that the defense does not qualify as either an excuse or a justification. I also argue that the duress defense should be allowed in cases of homicide.     

He‐said–she‐said: Contrast effects in credibility assessments and possible threats to fundamental principles of criminal law

Purpose. Some criminal trials turn on evaluations of credibility of the complainant and the accused. When credibility is based on how a witness testifies, an evaluation of one party should not influence an evaluation of the other party. If credibility evaluations are bidirectional, fundamental principles of criminal law may be offended. Methods. Six hundred and thirty seven undergraduates read a vignette that described a sexual assault (SA) or a motor vehicle accident (MVA). Karen, the complainant in the SA case and bystander witness in the MVA case, was described as 5, 13, or 20 years old. The vignette was a summary of the police investigation and, in three conditions, the trial. Trial information was manipulated in one of three ways: no information concerning how Karen testified, Karen's testimony was described positively (pro‐prosecution), or described negatively (anti‐prosecution). Participants then rated the perceived credibility of Karen and the accused (Bob) and the probability that Bob was guilty. Results. Karen was viewed more positively in the pro‐prosecution condition and more negatively in the anti‐prosecution. When Karen was judged to be less credible, Bob was rated as more credible and less likely to be guilty. When Karen was seen as more credible, Bob was viewed as more likely to be guilty. Conclusions. This bidirectional effect that the manner in which the prosecution witness testified affected perceptions of the accused and probability of guilt, in certain circumstances, may compromise fundamental principles of criminal law and be a reversible error. We offer possible solutions for future empirical testing.     

Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court

The question to what extent amnesties and pardons may bar criminalinvestigations or prosecutions under the Statute of the InternationalCriminal Court (the Statute) has been left unresolved by theRome process. This essay seeks to develop some general guidelinesthat may help the Court to address this problem, should it arisein a specific case. It suggests four basic principles to dealwith the issue of amnesties and pardons: (i) the Court has interpretativeautonomy to decide whether an amnesty or a pardon is permissibleunder the Statute; (ii) exemptions from criminal responsibilityfor the core crimes within the jurisdiction of the Court byamnesties or pardons should generally be considered incompatiblewith the Statute; (iii) prosecution by states and by the Courtmay be limited to the most serious crimes and the most responsibleperpetrators (targeted prosecution); (iv) amnesties or pardonsshould, if it all, only be permitted in exceptional cases, namelywhere they are conditional and accompanied by alternative formsof justice.     

There's Regulatory Crime, and then there's Landlord Crime: from 'Rachmanites' to 'Partners'

This article considers local authority strategies towards the regulation and prosecution of private landlords who commit the criminal offences of unlawful eviction and harassment. Generally, local authorities operate compliance-based strategies, rarely (if ever) resorting to prosecution. In seeking to explain this approach, the article draws upon the literature concerning regulatory crime, but also distinguishes local authority responses to landlord crime from regulatory crime as more typically conceived. Broadly, it is argued that, while there are clear parallels with other areas of regulatory activity, there is much that is different about landlord crime, particularly as a result of central government strategies towards the private rented sector, the legislative background to landlord crime, and the motivations behind local approaches to regulation.     

Labour Constitutions and Occupational Communities: Social Norms and Legal Norms at Work

This paper considers the interaction of legal norms and social norms in the regulation of work and working relations, observing that, with the contraction of collective bargaining, this is a matter that no longer attracts the attention that it deserves. Drawing upon two concepts from sociology – Max Weber's ‘labour constitution’ and Seymour Martin Lipset's ‘occupational community’ – it focuses on possibilities for the emergence, within groups of workers, of shared normative beliefs concerning ‘industrial justice’ (Selznick); for collective solidarity and agency; for the transformation of shared beliefs into legally binding norms; and for the enforcement of those norms. If labour law is currently in ‘crisis’, then a promising route out of the crisis, we argue, is for the law to recover its procedural focus, facilitating and encouraging these processes.     

Canadian compulsory community treatment laws: recent reforms

This paper addresses the principles underlying compulsory community treatment (CCT) and discusses the different provisions in Canada's twelve jurisdictions. Comparisons with different models of CCT in other countries are also drawn. CCT is not only intended to reduce relapses it is also a "least restrictive" alternative to in-patient detention. Seven of the twelve Canadian mental health acts allow conditional leave from hospital. Two jurisdictions provide community treatment orders, but require two or three previous in-patient admissions. Criteria for CCT, in most jurisdictions, includes that there is a "likelihood of significant mental or physical deterioration". The requirement for previous hospitalization for CCT in Canada, unlike other countries, precludes CCT for use with first episode patients. Some jurisdictions require consent for CCT. Most jurisdictions explicitly state that the services necessary for the CCT conditions must be available.     

刑事证明责任制度若干问题新探

在中国一元制法庭构造和审判方式中,一般应当采用行为责任与结果责任作为证明责任类型划分的基本概念。在审判空间中发挥作用的证明责任,将会延伸到审前程序中,从而形成侦查人员的辅助性证明责任、被告人的延伸性责任,以及弹劾制侦查构造中侦查机关的证明责任。应当协调检察官客观义务与证明责任关系,以客观义务统制证明责任,同时需防止客观义务论的负面影响。被害人作为公诉案件的当事人,是起辅助作用的控方,应当适度承担证明责任,与检察官的证明责任具有主、辅关系。     

Deterrence and tax treatment of monetary sanctions and litigation costs

The tax treatment of monetary sanctions and litigation expenditures varies across legal jurisdictions and time. The effects of these different tax regimes – particularly, on crime deterrence – have not been fully explored. Instead, legal intuitions in court decisions and legislative reforms are found. This paper explores the effects of these tax regimes. It shows that our common intuitions are sometimes misguided, since we tend to ignore cross-effects between crime and litigation. For example, contrary to commonly held views, it is shown that non-deductibility of monetary sanctions may increase the level of crime, if litigation expenses are deductible. In addition, if deductibility of legal expenses depends only on a successful trial outcome, this may also increase amounts spent on litigation and time allocated to crime. As this paper shows, however, a complete deductibility regime, under which both monetary sanctions and litigation expenditures are deductible, maintains the pre-tax levels of crime and litigation expenditures for risk-neutral offenders. The paper further explores the effects of different tax reforms.     

Error and exaggeration in the presentation of the significance of a DNA match in criminal trials in Malaysia

DNA evidence is now widely used in criminal trials across jurisdictions, including Malaysia. One important issue to be considered is how the significance of a DNA match that uses statistical calculations should be presented and explained in a criminal trial. This article demonstrates how the presentation of the significance of a DNA match in criminal trials in Malaysia has been tainted with error, exaggeration and bias towards the prosecution case based on the reference to case law. It also provides recommendations in order to ensure that the significance of a DNA match is properly presented in the criminal trials in Malaysia.     

Internet and social networks: freedom of expression in the digital age

New technologies have revolutionised the way we communicate and the meaning of freedom of expression. As the Internet increasingly represents a key tool for individuals to exercise their right to freedom of expression, providing universal access should therefore be a priority for countries in order to achieve development goals. The Internet and the proliferation of online social networks have an important impact on privacy, forcing a re-evaluation of the limits to the right to freedom of expression. The author examines the issue of liability of Internet providers and analyses criminal prosecutions in the context of online social networks. As liability for comments made through online social networks becomes more common, questions arise as to what is deemed offensive and whether prosecution should take place in all cases. The article tries to provide answers to those questions through an analysis of case law from various Commonwealth jurisdictions.     

The AFSP Standard - a lesson for law enforcement agencies

Compliance with the AFSP (Association of Forensic Science Providers) Standard [1] which concerns the formulation of an evaluative opinion requires consideration of the defence case. This can be problematic for forensic scientists working with or for law enforcement agencies. Among the aims of law enforcement agencies is to secure a conviction while in many jurisdictions the forensic scientist owes an overriding duty to the Court. This casework report demonstrates that early consideration of the defence case by a forensic scientist complying with the AFSP Standard may help rather than hinder the prosecution. The dichotomy as to a conflict of interest for the scientist between supporting the police/prosecutors and being scientifically objective is shown to be a false dichotomy. Compliance with the Standard ensures that science is a better servant of justice.