Journal of Criminal Law, The

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

Latest documents

  • 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.

  • 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.

  • Criminal Justice and Technology
  • 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 Appeal Act Section 8: Retrial and Try Again
  • Malicious Communications: Freedom of Email? Elected Officials, Disability and Expression
  • An Overlooked Distinction in the Modern Slavery Defence
  • An Overlooked Distinction in the Modern Slavery Defence
  • The Adversarial Lawyer and the Client's Best Interest: Failures With Pre-Charge Engagement

    The role of the defence lawyer is one of a zealous advocate, acting in the best interests of their client. However, a substantial body of evidence suggests that lawyers often operate as components within a procedural machinery that primarily processes the guilt or innocence of defendants. This phenomenon has led to the gradual erosion of the concept of zealous advocacy and adversarialism. Over the last 30 years, the adversarial process in England and Wales has experienced a steady transformation through incremental adjustments to the criminal justice system. The advent of the Criminal Procedure Rules 2003 (CrimPR) marked a notable shift in the handling of criminal cases, ushering in a culture of cooperation where both prosecution and defense cooperate with the shared objective of upholding the CrimPR's Overriding Objective: to deal with cases justly. This transformation has steered the criminal justice process away from its adversarial origins and toward a more managerial and process-driven framework. An additional manifestation of this managerial culture emerged with the introduction of Pre-Charge Engagement (PCE) in 2021. PCE sought to divert cases trial by initiating a dialogue between defense lawyers and the police. If effectively employed, PCE could help reduce the backlog of cases in the criminal courts and expedite resolutions for complainants, suspects, and witnesses. However, it is concerning that PCE is underutilised. This article contends that defense lawyers, by not fully embracing PCE, may not be acting in the best interests of their clients and certainly deviate from the conventional conception of a defense lawyer's role.

  • The Adversarial Lawyer and the Client's Best Interest: Failures With Pre-Charge Engagement

    The role of the defence lawyer is one of a zealous advocate, acting in the best interests of their client. However, a substantial body of evidence suggests that lawyers often operate as components within a procedural machinery that primarily processes the guilt or innocence of defendants. This phenomenon has led to the gradual erosion of the concept of zealous advocacy and adversarialism. Over the last 30 years, the adversarial process in England and Wales has experienced a steady transformation through incremental adjustments to the criminal justice system. The advent of the Criminal Procedure Rules 2003 (CrimPR) marked a notable shift in the handling of criminal cases, ushering in a culture of cooperation where both prosecution and defense cooperate with the shared objective of upholding the CrimPR's Overriding Objective: to deal with cases justly. This transformation has steered the criminal justice process away from its adversarial origins and toward a more managerial and process-driven framework. An additional manifestation of this managerial culture emerged with the introduction of Pre-Charge Engagement (PCE) in 2021. PCE sought to divert cases trial by initiating a dialogue between defense lawyers and the police. If effectively employed, PCE could help reduce the backlog of cases in the criminal courts and expedite resolutions for complainants, suspects, and witnesses. However, it is concerning that PCE is underutilised. This article contends that defense lawyers, by not fully embracing PCE, may not be acting in the best interests of their clients and certainly deviate from the conventional conception of a defense lawyer's role.

Featured documents

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT