A Justification of Command Responsibility

In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound. An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.     

A ‘double edged sword’: discretion and compulsion in policing domestic violence

Policing domestic violence is a complex area in which there are divergent views about the extent to which front line police action should be mandated by legislation and guidance. This study set in Victoria, Australia raised questions about the balance between discretion and compulsion in policing domestic violence through researching the implementation of the Code of Practice used to respond to domestic violence incidents. The project team interrogated aggregate data from the police database on family violence and also interviewed 125 police members (60 sergeants and 65 constables) to explore the attitudes to the Code of Practice and policing domestic violence. The findings reveal that discretion within a range of options is circumscribed. Variable understandings of the nature of domestic violence and the role of risk assessment and management suggest that constrained and guided discretion may be required to achieve optimum effectiveness in policing responses to domestic violence.     

Situating gangs within Scotland’s illegal drugs market(s)

The Scottish government’s (2008) publication ‘The road to recovery: A new approach to tackling Scotland’s drug problem’ elaborates and outlines the Scottish National Party’s (SNP) desire to make Scotland ‘drug free’ by 2019. To achieve this objective, the Scottish Government’s (2015) ‘Serious Organised Crime Strategy’ (SSOCS) entails dismantling networks of drug supply. Yet missing from this strategic planning is a) recognition of how, if at all, different types of gangs are involved in drug supply, and b) how drug supply processes actually work. Therefore, this article seeks to extend McLean’s (J Deviant Behav, 2017) Scottish gang model, which specifies a typology of gangs in Scotland, in an effort to locate precise levels of gang involvement in the drugs market. This is achieved by drawing upon Pearson and Hobbs’ (2001) hierarchical model of the UK’s illegal drug(s) market. In-depth interviews with 35 offenders involved in criminal networks and five practitioners, indicate that recreational Youth Street Gangs are really only involved in ‘social supply’. Youth Criminal Gangs are primarily involved in commercially motivated dealing at the low- to mid-levels, including bulk-buying between the retail-to-wholesale markets. And enterprising Serious Organised Crime Gangs operate from the middle-to-apex market level. Conclusions which situate this gang typology within the illegal drug market(s) are used to put forward recommendations aimed at dismantling of drug supply networks.     

'Beyond Left and Right': The New Partisan Politics of Welfare

The 'new politics of the welfare state,' the term coined by Pierson (1996) to differentiate between the popular politics of welfare expansion and the unpopular politics of retrenchment, emphasizes a number of factors that distinguish countries' capacities to pursue contentious measures and avoid electoral blame. Policy structures, vested interests, and institutions play a prominent role in accounting for cross-national differences in leaders' abilities to diffuse responsibility for divisive initiatives. One important omission from the 'new politics' literature, however, is a discussion of partisan politics. 'Old' conceptualizations of the political right and left are implicitly taken as constants despite radical changes in the governing agenda of many leftist parties over the last decade. Responding to this oversight, Castles (1998) has recently probed the role of parties with respect to aggregate government expenditures, only to concludethat parties do not matter under 'conditions of constraint.' This article contends that parties are relevant to the 'new politics' and that, under specified institutional conditions, their impact is counterintuitive. In some notable cases the left has had more effect inbruising the welfare state than the right. One explanation for these cross-cutting tendencies is that parties not only provide a principal source of political agency, they also serve as strategies, thereby conditioning opportunities for political leadership. By extension, they need to be situatedwithin the 'new politics' constellation of blame-avoidance instruments.     

A Policy for the Retention and Extended Examination of Organs at Autopsy*

Abstract: Recent organ retention scandals and law suits have created a focus on the practice of saving postmortem tissues for extended examination or research purposes. The New Mexico Office of the Medical Investigator (OMI) established a policy to notify families about organ retention and the subsequent disposition of the tissue. The OMI examined the success of this policy in regards to the retention of brains for extended examination by analyzing data abstracted from verbal consent forms from 2003 to 2006. During this time, 715 cases were identified as needing an extended examination of the brain. The percentages of brains saved in any given year, as a percent of the total number of autopsies performed that year, were: 2003 6.5%, 2004 10.4%, and 2005 11.8%. The disposition was cremation in 79% of cases, release with the body after a determined period of time in 14%, and cut fresh in 4%. In conclusion, the instigation of a policy on the verbal notification of the next of kin when organs are retained can be successfully implemented.     

Joined‐Up for What? Response to Carey and Harris on Adaptive Collaboration

Carey and Harris present the concept of adaptive management as a practice for supporting effective collaboration, suggesting that performance information be used to modify actions. They observe that end‐outcome performance information is less useful because of long delays between actions and effects, and recommend instead that the performance information should concern the collaborative process itself. The New Zealand government has followed a similar path to the Australian journey described by Carey and Harris. First, New Zealand tried using end outcomes to drive collaboration. Then, New Zealand tried using process measures, but found that the resulting collaboration lacked purpose and urgency. More recently, New Zealand has found great success in using intermediate‐outcome measures to drive adaptive collaboration: measures with intrinsic value, but short delay between action and effect. We echo Carey and Harris’ call for adaptive collaboration, but write to suggest that intermediate outcomes, rather than process measures, may drive more purposive management.