Journal of Criminal Law, The

Publisher:
Sage Publications, Inc.
Publication date:
2021-08-12
ISBN:
0022-0183

Issue Number

Latest documents

  • Images, Investigators, Identification, Code D and the Court of Appeal

    The rapid rise in accessibility and portability of cameras has resulted in widespread reliance on the interpretation of images by analysts and investigators in criminal proceedings. Codes of practice, guidance and jurisprudence have evolved to facilitate the admission of opinions as to the identity of offenders (or persons of interest) at trial. In this article, we explain why allowing investigators to give opinions as to identity on the basis of familiarity with images or suspects acquired during the course of an investigation is incompatible with mainstream scientific research and advice, and conducive to error. It rests on the flawed assumption that investigators can reliably identify or recognise persons in images, articulate and document the basis of these ‘identifications’, and avoid the risk of contamination (really cognitive bias) from their knowledge of, or exposure to, domain-irrelevant information. Jurors, who may be invited to conduct their own comparison between an image and the defendant in the dock, are similarly vulnerable to assuming the task is straightforward, as well as many of the contextual and cognitive biases confronting investigators. Using the facts and evidence in R v Yaryare [2020] EWCA Crim 1314 as a case study, we show how case information available to investigators and imaging analysts both inform their interpretations of images and is (re-)presented at trial and on appeal as independent support for their opinions. We identify substantial threats to fairness, proof and rationality and propose that only witnesses with demonstrable expertise should be permitted to testify as to the identity of persons of interest in images.

  • Preventing Machines From Lying: Why Interdisciplinary Collaboration is Essential for Understanding Artefactual or Artefactually Dependent Expert Evidence

    This article demonstrates a significantly different approach to managing probative risks arising from the complex and fast changing relationship between law and computer science. Law's historical problem in adapting to scientific and technologically dependent evidence production is seen less as a socio-techno issue than an ethical failure within criminal justice. This often arises because of an acceptance of epistemological incomprehension between lawyers and scientists. Something compounded by the political economy of criminal justice and safeguard evasion within state institutions. What is required is an exceptionally broad interdisciplinary collaboration to enable criminal justice decision-makers to understand and manage the risk of further ethical failure. If academic studies of law and technology are to address practitioner concerns, it is often necessary, however, to step down the doctrinal analysis to a specific jurisdictional level.

  • Criminal Justice and Technology
  • The Search and Seizure of Digital Materials Under Warrant and Protecting Privilege: Comparative Analysis and Recommendations for Best Practice

    Academic literature in England and Wales and New Zealand does not consider the protection of legal professional privilege where digital material is seized under a search warrant. Academic literature in the United States does engage with this subject but is not informed by a comparative approach. This article fills both gaps. It examines practices that have been developed by investigative teams and prosecuting authorities in all three comparator jurisdictions in their attempts to provide safeguards necessary to preserve privilege. Such practices involve the use of technology to increase the speed, cost effectiveness and/or efficiency of identifying privileged documents. The process of developing these practices has been informed by judicial guidance, where they have been challenged before the courts, and by guidance from government departments, Bar Associations or Law Commissions. Following comparative analysis, the article recommends measures that should be included in legislation, codes of practice or guidance in any jurisdictions where there is potential for legal professional privilege or an equivalent concept to be undermined when digital material is seized under a search warrant.

  • Domestic Violence, Sex, Strangulation and the ‘Blurry’ Question of Consent

    A stand-alone strangulation offence was introduced in Queensland, Australia in 2016. One of the elements of the Queensland strangulation offence is that the victim did not consent to the strangulation. This paper reviews the harms and dangers associated with strangulation before overviewing the debates about the use of strangulation during sex. Drawing on focus group discussions conducted with domestic violence support workers and men's behaviour change workers, we discuss four overlapping themes identified in the discussions. These were perceptions that: strangulation during sex is normalised; consent is not informed; it happens in the context of coercive control; and the requirement of consent opens a loophole in the strangulation offence. Considering the issues raised, and the clear risks and harms, we suggest that consideration should be given to whether it is ever possible to consent to strangulation and we consider possible reforms such as following the two-tiered approaches to consent used in the England and Wales law and elsewhere in Australia. We also conclude that law reforms such as these are partial solutions and there is significant need for more community education about the risks and harms of strangulation.

  • Malicious Communications: Freedom of Email? Elected Officials, Disability and Expression
  • Reconceptualising Sexual Infidelity Provocation: New Anglo-Scottish Reform Proposals

    The Scottish Law Commission has recently confirmed in its Eleventh Programme of Reform, published in May 2023, the continuation of its medium-term project to examine the law of homicide. This includes a review of sexual infidelity killings and provocation as a partial defence to murder, or otherwise. It embraces a critique of whether and, if so, how any necessary proposals for modernising the law in this sensitive and important area should be made. A Discussion Paper has previously been published for examination. Against this backdrop, we analyse whether sexual infidelity ought to be retained in extant Scots law, as one of only two relationally relevant qualifying triggers. In November 2023, the Law Commission in England and Wales announced its forthcoming review of domestic homicide given contemporary understandings of the impact of domestic abuse. We provide novel insights into Anglo-Scottish law to seek to recalibrate the understanding of coercive/controlling behaviour in the contextualisation of sexual infidelity killings. Our review highlights the ways in which allegations of (actual or perceived) sexual infidelity may be symptomatic of coercive control through consideration of recent case law, and via the lens of Monckton-Smith's eight stages to femicide. A risk assessment is utilised to demonstrate the extent to which victims of coercive controlling behaviour have their capacity for action delimited, and how this should inform deliberations in cases where the coercively controlled individual kills in response. A novel and original new template is promulgated for provocation reform predicated de novo on qualifying triggers of domestic abuse and gross breach of trust and with a part-justificatory – part excusatory standardisation. It is suggested that a new nomenclature and typology is required as extant Scottish law on provocation is out of step with contemporary social mores, and the law in England and Wales does not adequately address contextual factors, such as, ethnicity, culture, religion, sexuality, disability, and migrant status, which impact on a domestic abuse victim's capacity for action. It is further propounded that a social entrapment lens, drawing on initiatives crystallised from New Zealand and Australian academician perspectives, ought to be enacted as part of urgently needed effective remedial legislation.

  • Criminal Appeal Act Section 8: Retrial and Try Again
  • Criminal Appeal Act Section 8: Retrial and Try Again
  • Reconceptualising Sexual Infidelity Provocation: New Anglo-Scottish Reform Proposals

    The Scottish Law Commission has recently confirmed in its Eleventh Programme of Reform, published in May 2023, the continuation of its medium-term project to examine the law of homicide. This includes a review of sexual infidelity killings and provocation as a partial defence to murder, or otherwise. It embraces a critique of whether and, if so, how any necessary proposals for modernising the law in this sensitive and important area should be made. A Discussion Paper has previously been published for examination. Against this backdrop, we analyse whether sexual infidelity ought to be retained in extant Scots law, as one of only two relationally relevant qualifying triggers. In November 2023, the Law Commission in England and Wales announced its forthcoming review of domestic homicide given contemporary understandings of the impact of domestic abuse. We provide novel insights into Anglo-Scottish law to seek to recalibrate the understanding of coercive/controlling behaviour in the contextualisation of sexual infidelity killings. Our review highlights the ways in which allegations of (actual or perceived) sexual infidelity may be symptomatic of coercive control through consideration of recent case law, and via the lens of Monckton-Smith's eight stages to femicide. A risk assessment is utilised to demonstrate the extent to which victims of coercive controlling behaviour have their capacity for action delimited, and how this should inform deliberations in cases where the coercively controlled individual kills in response. A novel and original new template is promulgated for provocation reform predicated de novo on qualifying triggers of domestic abuse and gross breach of trust and with a part-justificatory – part excusatory standardisation. It is suggested that a new nomenclature and typology is required as extant Scottish law on provocation is out of step with contemporary social mores, and the law in England and Wales does not adequately address contextual factors, such as, ethnicity, culture, religion, sexuality, disability, and migrant status, which impact on a domestic abuse victim's capacity for action. It is further propounded that a social entrapment lens, drawing on initiatives crystallised from New Zealand and Australian academician perspectives, ought to be enacted as part of urgently needed effective remedial legislation.

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