Criminal Law Practitioners Research Articles

‘Back Off! Stop Making US Illegal!’: The Criminalisation of Homelessness in Australia

In Australia, vagrancy and public order laws have been used to criminalise homelessness since colonisation. Such laws have never provided an effective deterrent against ‘offending’ because most crimes committed by homeless people are survival-related or otherwise associated with their homeless status. It is generally agreed that a welfare-oriented rather than a punitive approach is needed if these ‘crimes’ are to be prevented, however the perspectives of homeless people on this subject remain largely unknown. We undertook a national study where we asked homeless individuals and criminal law practitioners to comment on whether and how criminal law processes could respond more appropriately to the ‘offending’ behaviour of homeless people. Practitioners viewed criminal law interventions as an opportunity to connect homeless individuals with the services they required. However, the homeless participants were not supportive of mandated social service intervention. They eschewed a criminal identity and wanted state actors to leave them alone.

What matters for assessing insider witnesses? Results of an experimental vignette study

Assessments of insider or accomplice witnesses are a major challenge in complex criminal cases, such as those of international crimes: war crimes, crimes against humanity, and genocide. While insiders are both important and problematic, little is known about how legal decision-makers determine to what extent such witnesses can be relied upon. This study, the first to experimentally study practitioner decision-making in this context, presents the findings of an online vignette experiment with former and current international criminal law practitioners (N = 160). Quantitative analyses show that the assessments of the witness and the information quality are interdependent, hence, where an insider is considered not credible, the information they provide is perceived as less reliable as well, and vice versa. Furthermore, decision-makers tend to accord more weight to the quality of information rather than the quality of the witness, in line with jurisprudence analyses. The consequences for research and practice are discussed.

Enhancing the Measurement of Sentence Severity through Expert Knowledge Elicitation

Quantitative research on judicial decision-making faces the methodological challenge of analysing disposal types that are measured in different units (e.g. money for fines, days for custodial sentences). To overcome this problem a wide range of scales of sentence severity have been suggested in the literature. One particular group of severity scales that has achieved high validity and reliability are those based on Thurstone’s pairwise comparisons. However, this method invokes a series of simplifying assumptions, one of them being that the range of severity covered by different disposal types is constant. We undertook an expert elicitation workshop to assess the validity of that assumption. Responses from the six criminal law practitioners and researchers that participated in our workshop unanimously pointed at severity ranges being highly variable across disposal types (e.g. much wider severity ranges were identified for suspended custodial sentences than for fines). We used this information to re-specify Thurstone’s model allowing for unequal variances. As a result, we obtained a new, more robust, scale of sentence severity.

Statement of Expert in Holding Special Cases at the Investigation Stage Based on Perkap 6 of 2019 Concerning Investigation of Criminal Acts

As a form of implementation as a rule of law state, law enforcement officers consisting of police, prosecutors, judges and lawyers are presented to carry out this function. The police as one of the law enforcers carry out security measures in the community, in every action they are subject to formal law, namely the Criminal Procedure Code (KUHAP). In the Criminal Procedure Code, the task of the police to disclose a crime or also called a crime is known as an investigation. In the investigation stage which aims to make light of a crime and find the suspect by collecting evidence, of course, must go through the correct and accountable procedures. A little wrong in carrying out the procedure, the investigator as a user in the investigation in his actions makes it clear that the crime must collect evidence that can really be tested in quality. In the Criminal Procedure Code, evidence is contained in Article 184 paragraph (1) which consists of witness statements, expert statements, letters, instructions and statements of the accused. As for the evidence that is in the spotlight in the expert's statement, where the expert's statement is evidence that is felt to play a significant role in determining the elements of the crime which in the end can shed light on the crime in the investigation stage. KUHAP as the holy book of criminal law practitioners in enforcing criminal law is certainly expected has all the facilities or in other words can accommodate all the sense of justice for the parties involved in it. As we also know that the Criminal Procedure Code was born in 1981, if we feel that he is already 40 years old, if we equate it with human age, it can be said that he is entering adulthood. The maturity of the KUHAP so far can be marked by the persistence of the Criminal Procedure Code as the basis for law enforcement and justice seekers in criminal cases even though there are patchworks here and there in the form of implementing regulations and in the form of a Supreme Court Circular to provide perfection and fulfill the people's sense of justice.

Pros and Cons of Online Criminal Case Settlement During the Covid-19 Pandemic: Study on Islamic Criminal Law

The online criminal trial discourse has become a hot discussion topic by criminal law practitioners, especially regarding the obscenity case in Petamburan that involved the suspect, HRS. HRS himself and his lawyer refused to hold the online trial for being contrary to the Criminal Procedure Code (KUHAP) although there is a Memorandum of Understanding between the Supreme Court, Attorney General's Office, Police, and the Directorate General (Ditjen) of Corrections regarding the Implementation of Criminal Trial Proceedings via video conferencing as efforts to prevent the spread of Covid-19 on April 13, 2020. This study aims to provide an answer that Islamic criminal procedural law can accommodate models of virtual criminal case resolution because it considers emergency situations. Moreover, the reason for the emergency has to do with humanity. The data used as materials for data analysis was library research which were taken from fiqh books, written documents, laws and other regulations. The results show that Islamic criminal law can consider its feasibility.Keywords: Virtual criminal court – Islamic criminal

Near, Far, Wherever You Are: Distance and Proximity in International Criminal Law

Abstract As the International Criminal Court (ICC) nears its 20th year in operation, many international criminal law practitioners and scholars are asking: where is the ICC today in relation to its original promise to end impunity for the world’s worst crimes? Baked into that question are themes of the court’s distance and proximity, temporal and spatial, professional and existential. Where is the ICC located along the historic ‘arc of justice’ and how might we push it further along that path? How does the prosecutor’s refrain that the ICC is a ‘court of law’ that must keep away from political entanglements affect its interaction with domestic actors? What do practitioners and scholars mean when they encourage the ICC to ‘get closer’ to atrocity situations, whether through better communication, cooperation or in situ proceedings? These questions prompt reflection on the ICC’s distance from, and proximity to, the atrocity space through an analysis of three recent monographs on the ICC and Africa. Reviewing these contributions in law, political science and anthropology, this review essay gauges the multiple planes of distance and proximity on which international criminal law advocates operate. These planes turn out to play an important part in ordering global justice, particularly the spaces and subjects of atrocities as sites of anti-impunity work.

The Criminal Law Syllabus and the Realities of Legal Practice in Hong Kong

Criminal law syllabi throughout the common law world, including in Hong Kong, primarily focus on homicide, other violent offences, sexual offences, and property offences – offences typically categorised as mala in se (evil in and of themselves). They do this largely for traditional reasons – because these are the crimes which the syllabus has always focused on. Yet this is not what criminal law practice really looks like, whether in the courtroom or in advising clients. This research study utilises data on crime prevalence in Hong Kong as well as a self-reporting survey of criminal law practitioners in an effort to more closely align the LLB/JD criminal law teaching syllabus with the present and future realities of legal practice in Hong Kong, at least in terms of the specific offences covered. The empirical findings suggest that legal educators in Hong Kong ought to consider adding drugs, driving, regulatory and ‘white collar’ offences to the criminal law syllabus, while removing homicide and sexual offences entirely. These new inclusions serve as sufficiently nuanced illustrations of the general principles of criminal liability, help students to develop a critical perspective towards crime and criminalisation, while being frequently encountered in local criminal practice.

What US Law Reformers Can Learn from Germany's Value-Explicit Approach to Self-Defense

The exercise of self-preferential force to fend off an actual or perceived threat finds itself at the center of today’s simmering criminal justice reform debate. Never before has where - and how - to draw the boundary between governmental power and individual rights received so much attention. Unfortunately, the scholarship on this core criminal law topic has largely atrophied. We seem to be making little progress when it comes to gaining a better understanding of when, how, and why the state should authorize defensive force against another. Sometimes a look beyond our own borders is needed to kick-start reform-minded thinking. Whether in the context of police use of force, battered intimate partner cases, or other defense of person or property situations, no group of scholars has given the critical value-judgments anchoring this “ancient civil right” more attention than those in Germany’s legal academy. But despite a scholarly output on these topics that is unsurpassed in terms of both analytical depth and sheer volume, surprisingly little is known in the English-speaking world about Germany’s unique approach to this controversial topic. What makes this myopia particularly unfortunate is that, while legal commentators in the United States and elsewhere focus almost exclusively on the criminal law’s outcome-driven “technical” aspects and rules, generations of German scholars have rooted out the complexities involved. They for decades have uniquely engaged in deep discussions over the bedrock values at play when a justice system authorizes one citizen to kill another in self-defense. This article argues that U.S. scholars, policy-makers, judges, and criminal law practitioners interested in meaningful criminal justice reform have much to gain by understanding Germany’s transparent, value-driven approach. The goal here, then, is both descriptive and proscriptive. It will provide the first fully comprehensive English-language analysis (and critique) of Germany’s storied self-defense law. But more than that, it put on firmer footing the means of analyzing self-defense’s critical value-judgments that are all but ignored in the English-language literature. This is among the most important times in recent history for our justice system to shore up its moral credibility. By following (and, in fact, improving on) the German model’s unique focus on the values grounding self-defense, rather than remaining fixated simply on rules and outcomes, we position ourselves to significantly reduce the corrosive role played by hidden normativity and buried baselines. This, in turn, will advance the type of transparent and democratic decision-making necessary if we are to succeed in finally making thoughtful choices among available self-defense options.

The Implementation in Canada of the UN Standard Minimum Rules for the Treatment of Prisoners: A Practitioner’s Perspective

Abstract This article provides a practitioner’s view of the extent to which the 1955 UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) have been utilized in Canada. The author reviews how the SMRs are being used by national authorities, civil society organizations and criminal law practitioners in Canada and presents reflections as to how the SMRs could be better utilized to ensure that prisoners’ rights are protected in Canada. The SMRs, which, as revised in 2015, are often referred to as the Nelson Mandela Rules, are not in themselves binding upon states. However, they do carry weight: this is evidenced by the UN human rights bodies which have invoked the SMRs as a minimum universal standard in interpretations of binding international legal standards in their decisions and comments. Furthermore, the SMRs (traditionally classified as ‘soft law’) provide key stakeholders with useful and practical guidelines on all aspects of prisoners’ rights. This article argues that the SMRs are being utilized to a degree in Canada, but that there is room for improvement. Canada is, in general, rather insular in its application of soft law standards. The Canadian courts have ruled, for example, that the SMRs are not binding in the domestic context. Thus, within the context of litigation, compliance with the SMRs is a challenge. Furthermore, a lack of legal literacy and training in prisoners’ rights in general and in the SMRs more specifically is evident in Canada. The author’s view is that legal training on the SMRs for criminal law practitioners and the judiciary would be one significant step towards more effective utilization of the SMRs in Canada.

The Nebraska Criminal Law Practitioner's Guide to Representing Non-Citizens in State Court Proceedings

The Nebraska Criminal Law Practitioner's Guide to Representing Non-Citizens in State Court Proceedings

Derecho penal y criminología sociológica: integración y desintegración

En general, cada rama del derecho reconoce las funciones de sus respectivas sanciones, sin mayores disidencias entre sus cultores, que pueden disentir sobre su buen o mal uso, pero no sobre la naturaleza y función de ellas. Pero entre los penalistas no existe acuerdo al respecto. Ninguna otra materia jurídica ostenta un abanico de opiniones respecto de la función de su sanción similar a nuestro cuadro de teorías de la pena, por lo que es tiempo de reconocer que se trata de una anomalía jurídica. Sabemos que el ejercicio del poder punitivo sirve para algo y -si dejamos de lado los libros- intuimos sus muy diferentes y múltiples consecuencias, imposibles de reconocer en totalidad. A veces es posible percibir que, en ciertos conflictos, desempeña alguna de las funciones teorizadas en el cuadro de teorías de la pena, pero en otros sería absurdo asignarle el mismo cometido. Por eso, cada penalista parte de cómo cree que debiera ser la función y el objeto o fin de la pena y, según esa elección subjetiva, justifica y legitima cierta medida de ejercicio del poder punitivo. Cada penalista dice: la pena debería cumplir esta función y, por ende, la legitimo en la medida en que la cumpla y construyo mi teoría jurídica (sistema) a partir de esta premisa.
 

Obsessive compulsive disorder and obsessive compulsive personality disorder and the criminal law

Obsessive compulsive disorder (OCD) is a mental illness that has penetrated public consciousness. However, the extent to which OCD and obsessive compulsive personality disorder (OCPD) can constitute debilitating conditions that adversely affect most aspects of a person’s functioning and quality of life are not so well known, including as to how they can impair the capacity to give reasoned consideration to conduct options and the consequences of choices. Little scholarship exists about the legal repercussions of OCD and OCPD and, in particular, their potential relevance for both assessments of criminal responsibility and criminal culpability. This article commences to redress that deficit, outlining contemporary clinical knowledge about the disorders that is relevant to the legal context and identifying important judgments by courts in the United Kingdom, Ireland, Canada, Australia, New Zealand and India which have dealt with the potential impact of OCD and OCPD, in particular for decisions at the sentencing phase of criminal proceedings. It calls for better awareness of OCD and OCPD on the part of forensic mental health practitioners, criminal law practitioners and members of the judiciary.

Task Force Raptor: Failure of Military Justice

Criminal Law Practitioner, American University Washington College of Law, Vol. XI, Issue II, January 27th, 2021. From 2012 to 2017, the U.S. Army carried out what is reputed to have been the largest criminal investigation it ever conducted: Army Criminal Investigation Divisions inquiry into the Guard Recruiting Assistance Program (G-RAP), a recruiting referral program under which Army National Guard Soldiers, working as independent subcontractors under the auspices of prime contractor Docupak, could be paid for identifying recruits from among the people they encountered in their daily lives. Management errors and reports of fraud marred what was otherwise a smashingly successful program. Unfortunately, the Army’s effort to root out fraud within the program, carried out by a provisional entity known as Task Force Raptor, would itself prove to be as inept and destructive as the G-RAP program itself. Due to vague and contradictory program rules; investigatory prejudice and tunnel vision; and most of all, Unlawful Command Influence in the form of extreme political pressure upon the Army to find and punish G-RAP participants allegedly guilty of “fraud,” Task Force Raptor’s investigation unjustly saddled innocent, loyal and well intentioned Soldiers with the stigma of fraud, severely disrupting the lives and careers of many.

Book Review: Historical Origins of International Criminal Law: Volumes 115

This book review examines a five-volume set published by the Torkel Opsahl Academic EPublisher and edited by Morten Bergsmo, Cheah Wui Ling, Yi Ping, Song Tianying, and Klaus Rackwitz. The first three volumes retell the genesis story of international criminal law from stereoscopic perspectives. In addition to new research on Nuremberg and Tokyo, Volume 1 includes some of the less celebratory accounts from the post-WWII period and provides visibility into the hundreds of less salient trials that took place in the European and Pacific theaters before domestic authorities, military tribunals, and people’s courts. Volume 2 of the series presents rich accounts of national efforts at enforcing international criminal law around the world, including trials in China and the then-Soviet Union, where a prolific history of postwar prosecutions belies contemporary reticence about the project of international criminal justice. Contributions by national criminal law experts in Volume 3 reinforce the centrality of complementarity in the ICC system. Volume 4 takes up intersecting questions of criminal procedure and investigative methodologies, such as the use of demographic analysis to prove international crimes and the contributions of fact-finding commissions to accountability exercises. Volume 5 is devoted to the capstone event in the modern history of international criminal law: the establishment of the ICC. This volume contains copies of, or adaptations from, a series of memoranda solicited by the series main editor from a range of experts as the ICC was being created. These contributions track the myriad logistical, strategic, and legal decisions — from the sublime to the mundane — that must be resolved to build and operate an entirely new judicial system virtually from scratch. This final volume also features more praxis-oriented chapters, touching upon best-practice methodologies for war crimes investigations, including evidentiary analysis and forensics, by some of the world’s great international criminal law practitioners. The series will be an essential resource for both academics and practitioners interested in the history of international criminal law as a distinct field and also of the early days of the ICC, the world’s first permanent international criminal court.

The Momentum of Domestic Criminal Proceedings Supervision Through Investment Treaty Arbitration

Investor-State arbitration represents an intriguing topic whose relationship with EU law remains partially unsettled. It is becoming increasingly relevant for criminal law practitioners as the jurisprudence of arbitral tribunals shows to consider interim measures interfering with or impacting upon criminal investigations in the so called “host State”. In the past, Investor-State arbitration has been accused of upholding economic interests of multi-national companies (MNC) against at the detriment of developing States and other values and purported as a vehicle of domination imposing “neo-liberal rule of law”. The intrusions into spaces pertaining to the exercise of criminal jurisdiction by host States has further suggested a possible misuse to escape prosecution. Although the exercise of supervisory jurisdiction by arbitral tribunals jurisdiction may mostly be praised, its legal base is still questionable and some recent intra-EU digressions in the field of criminal law raise even more doubts.

Stretching the Joint Criminal Enterprise Doctrine to the Extreme: When Culpability and Liability Do Not Match

Joint criminal enterprise (jce) has caused a lot of concern amongst international criminal law practitioners and academics since its first appearance at the ad hoc Tribunals. A recent landmark decision, by the uk Supreme Court in Jogee, that overruled 30 years of common law development on joint enterprise, stimulates further discussions on whether jce in its current form fairly reflects the balance between culpability and corresponding liability of the defendant. This article explores this issue by suggesting that the level of culpability of defendants does not match the degree of liability they incur under jce iii. The article dissects the jce iii mode of liability by considering it a ‘two-crime liability’: a common purpose crime and a foreseeable crime, and compares it with aiding/abetting. This article argues that the level of culpability of defendants under jce iii is much lower than their liability for the crimes they are convicted of.

G. Boas, J.L. Bischoff, and N.L. Reid, International Criminal Law Practitioner Library, Volume I: Forms of Responsibility in International Criminal Law * G. Boas, J.L. Bischoff, and N.L. Reid, International Criminal Law Practitioner Library, Volume II: Elements of Crimes under International Law * G. Boas, J.L. Bischoff, N.L. Reid, and B.D. Taylor III, International Criminal Law Practitioner Library, Volume III:

G. Boas, J.L. Bischoff, and N.L. Reid, International Criminal Law Practitioner Library, Volume I: Forms of Responsibility in International Criminal Law * G. Boas, J.L. Bischoff, and N.L. Reid, International Criminal Law Practitioner Library, Volume II: Elements of Crimes under International Law * G. Boas, J.L. Bischoff, N.L. Reid, and B.D. Taylor III, International Criminal Law Practitioner Library, Volume III:

ABA Guideline 10.7 (B)(2): The New Achilles' Heel for Trial Courts and Counsel Handling Death Penalty Cases?

Guideline 10.7 (B)(2) of the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003) requires death penalty defense counsel to obtain a complete record of the case. This article explores common problems encountered when lawyers attempt to meet the mandate of Guideline 10.7(B)(2) from the perspective of court administrators, court reporters, and capital-defense attorneys. The author offers solutions for problems with capital-case record procurement and archiving, including define the record, index court proceedings and identify missing transcripts, obtain transcripts from historic key-punched or handwritten stenographer notes, and improve record requests and communication between court staff and defense counsel. The article includes constructive ideas for formal collaboration between courts and criminal-law practitioners with regard to the archiving of capital-case records.

The Grammar of Criminal Law, Volume One: Foundations Statutory Limitations in International Criminal Law Extraordinary Justice - Military Tribunals in Historical and International Context Blood, Power and Bedlam – Violations of International Criminal Law in Post-Colonial Africa Die Bekämpfung nicht-staatlicher Angreifer im Luftraum International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein Jurisprudence of the

The Grammar of Criminal Law, Volume One: Foundations Statutory Limitations in International Criminal Law Extraordinary Justice - Military Tribunals in Historical and International Context Blood, Power and Bedlam – Violations of International Criminal Law in Post-Colonial Africa Die Bekämpfung nicht-staatlicher Angreifer im Luftraum International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein Jurisprudence of the

The Criminal Law Practitioner's Dilemma: What Should the Lawyer Do When His Client Intends to Testify Falsely?

The Criminal Law Practitioner's Dilemma: What Should the Lawyer Do When His Client Intends to Testify Falsely?