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The project on which this paper is grounded is the first in-depth empirical study of the impacts of COVID-19 on each stage of the English and Welsh Youth Justice System. We take the notion of a child's right to a fair trial as the lens by which we detail the findings from our research. The paper documents the experiences of professionals working in the courts and children who had contact with the courts during the pandemic. While we concentrate on processes in England and Wales as an exemplar of the impact of COVID-19, recognising that globally, courts were experiencing similar challenges, initiates a discourse about how to re-envision their role in wider criminal justice systems in a COVID-19 world. Our research demonstrates an urgent need for renewed consideration of what support children need to effectively participate in court, and where and how children's cases should be heard. The pandemic demonstrated that creativity is possible and creates a timely opportunity to review the evidence and think more radically about a welfare-based, trauma-informed court process for children. [ABSTRACT FROM AUTHOR]

The Council of Europe Convention on Action Against Trafficking in Human Beings stipulates a 'non-punishment principle' which provides for the possibility of not imposing penalties on victims for crimes they were compelled to commit. This paper investigates the UK's iteration of this principle: the statutory defence provided by section 45 of the Modern Slavery Act. Drawing on extant literature and relevant case law, this paper investigates current understandings of the statutory defence and the insights these provide into broader understandings of criminal exploitation. It demonstrates that while practitioners understand the processes of the legislation surrounding the defence, they are less knowledgeable about the nuances of modern slavery which therefore impacts the use and effectiveness of the defence. This paper challenges the basis upon which criminal law is applied, and its analysis makes an original contribution to recognising how misunderstandings of criminal exploitation can affect fairness in the criminal justice system. [ABSTRACT FROM AUTHOR]

Jogee established that, if the victim was attacked in a manner different to that which the accessory envisioned, the accessory will not be liable for a resulting death, provided the fatal act amounted to 'some overwhelming supervening act [OSA]... which nobody in the defendant's shoes could have contemplated might happen and is of such a character as to relegate his acts to history'. Jogee further suggests that OSA has replaced the fundamental difference rule (FDR) which used to keep the foresight test in parasitic accessory liability (PAL) cases in check, by absolving accessories of liability for murder or manslaughter, where the principal had caused the victim's death with a different and more lethal weapon or in a different and more dangerous manner than had been foreseen by the accessory. In Jogee, the UKSC appreciated this role of the FDR, and therefore, in a misguided attempt to appease the defenders of PAL, abolished it along with PAL. While they left OSA in place in its stead, the judgment is unclear about its scope, role, and function. Since then, OSA has been considered on several occasions by the Court of Appeal. However, there is still no clarity as to when OSA ought to be left to the jury. This paper will explore OSA, its role, scope of application, and relationship with the FDR. It will be argued that OSA is a concept of remoteness which, like the FDR before it, functions as a corrective to constructive liability for accessories to murder and manslaughter. It aims to attribute to the accessory only those consequences of the principal's acts that are sufficiently linked to the risk that the accessory set or supported by his acts of assistance or encouragement. The paper concludes that, in fleshing out OSA, the courts ought to pay greater attention to this role and purpose, and the principles of fair attribution that underpin it. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

This article develops the basic argument for proving intention in criminal adjudication. The evidential proof of an accused's state of mind is a very old problem that arises from an even older moral quandry of distinguishing between unlawful killings that are accidental from those that are intentional for punitive purposes. Intentional unlawful killings typically attract much greater responsibility and punishment than killings by accident. The necessity of proving intention for an unlawful killing arises generally from an alleged killer claiming: 'I didn't mean to do it'. This denial can in turn be disambiguated into two cognitive (epistemic error) and volitional (muscular accident) sub-categories. Historically, pre-modern fact-finders saw themselves as being limited to relying on confessions and expert marabout to prove an alleged killer's intention in the face of these denials. The article deploys contemporary rationalist methods of logical argumentation for the proof of intention in criminal adjudication. The arguments made in the paper are pitched at a theoretical level and without necessarily reflecting a detailed exposition of the existing doctrine of one particular jurisdiction. [ABSTRACT FROM AUTHOR]

This article assesses the legality of Female Genital Piercing (FGP), which refers to the piercing of female genitalia to adorn it with jewellery, for decoration or sexual enhancement. The position in the UK is uncertain because the World Health Organisation regards piercing as a form of FGM, which is a criminal offence in all parts of the UK. After analysing the stance adopted by the international community, the paper examines the legislation that criminalises FGM and considers whether FGP could fall within its scope. The paper concludes that female genital piercings could constitute FGM in limited circumstances, but even then, it may not be in the public interest to initiate a criminal prosecution. This lack of certainty is problematic for professional piercers who would welcome legislation providing an express exemption for genital piercings performed on consenting adult women. [ABSTRACT FROM AUTHOR]

This paper explores select themes relating to legal culture in European criminal justice post-Brexit by focusing on aspects of the common law trial process in the Irish courts. The incorporation of EU law and the ECHR within the domestic legal order has necessitated the nurturing of a constructive co-existence with the country's longer standing constitutional and common law traditions. Ireland and the United Kingdom have collaborated closely as common law Member States and the departure of the UK from the EU will affect Ireland's position in EU criminal justice in many and varied ways. Using the examples of victim participation in criminal trials and pre-trial access of suspects to legal assistance, the paper seeks to illuminate trends of consonance and dissonance in Ireland's relationship with European law. Drawing on the shared commitment to the protection of fundamental rights in the EU and the ECHR, the discussion reflects on some of the longer term implications of Brexit for the common law presence in European criminal legal culture. [ABSTRACT FROM AUTHOR]

The old common law defence of provocation has been abolished in many jurisdictions, including England and Wales and Northern Ireland, but it is still part of the law south of the Irish border. Up to now the Irish law of provocation has been built up solely by the courts, and has developed a number of peculiarities, not least the apparent rejection of the objective test by the Court of Criminal Appeal in the 1978 case of MacEoin. However, it is not until recently that the defence has come to the attention to the Supreme Court, in the 2020 case of McNamara. In this case the court set out to clarify the law, but the case has been criticised by commentators for its failure to clear up some of the existing ambiguities; indeed, it has been said that it has even introduced further ambiguities into the law that did not exist before. Be that as it may, this paper argues that McNamara is to be welcomed, in so far as it promotes a flexible approach and one which recognises the essentially normative nature of the provocation defence. [ABSTRACT FROM AUTHOR]

Traditionally, jurists have distinguished between voluntary/involuntary behaviour via the theory of volition. Though perceived as the conventional approach, this paper argues that the volitional understanding of voluntariness is an inadequate instrument for assessing complex behaviours which seemingly portray a striking level of intelligence and purposiveness on the part of the accused. In particular, the phenomenon known as hypnotically-induced behaviour, which forms the focus of this paper, is one such troublesome case. To this end, the version of the volitional theory most staunchly advocated by Professor Michael Moore is singled out for scrutiny, due to his strong sentiments supporting the application of his philosophy to these aforementioned behaviours. In contrast to Moore, this paper suggests that the position most recently proposed by the Law Commission of England and Wales within their discussion paper on the defences of insanity and automatism is to be preferred. Specifically, the Commission recommend substituting the theory of volition for that of 'control' as a means for assessing the voluntariness of any given behaviour. This paper submits that a theory of control has two major advantages over the traditional theory of volitionalism. First, the possession/absence of control more accurately reflects the contemporary system of criminal law in England and Wales. Second, a theory of control is more conceptually defensible as an explanation for why behaviours performed under hypnosis are typically perceived as involuntary. [ABSTRACT FROM AUTHOR]

Occupation orders are the dedicated legal remedy through which victims of domestic abuse can be supported to remain in the family home following a relationship breakdown. Case law indicates, however, that victims experience barriers to securing orders due to the high threshold criteria and because concerns about protecting the rights of perpetrators has led to judicial reluctance to grant extensive protection to victims. The options for providing protection to victims of abuse in respect of the family home are shortly set to be reformed by the Domestic Abuse Act 2021, which creates a new Domestic Abuse Protection Order (DAPO). It is anticipated that DAPOs will be easier to secure because they will have a lower threshold criteria, they will be available in family, civil and criminal proceedings, and both victims and third parties will be able to make an application thereby alleviating the burden on victims who feel unable to take any action. Whilst there is no intention at this point to repeal occupation orders, the Home Office has acknowledged that 'DAPOs will become the 'go to' protective order in cases of domestic abuse' suggesting that occupation orders will be replaced by DAPOs in most cases. By drawing on data obtained from an analysis of court statistics, a questionnaire of legal practitioners and domestic abuse specialists, and in-depth interviews with victims of domestic abuse, this paper offers original empirical insights into where the current law fails victims of domestic abuse. The analysis reveals three key barriers to securing occupation orders. Firstly, despite the Legal Aid, Sentencing and Punishment of Offenders Act 2012 making efforts to preserve legal aid for victims of domestic abuse, the means test is difficult for victims to satisfy, resulting in increases both to the number of victims taking no action to pursue protection and who act as litigants in person in occupation order proceedings. Secondly, the prospects of a victim securing protection can be adversely affected by their unrepresented status. Thirdly, despite case law indicating a less restrictive approach to granting occupation orders, many victims continue to struggle to satisfy the strict threshold criteria. Some judges are seemingly willing to bypass this by granting alternative remedies which may offer victims a weaker form of protection in respect of the family home. Where orders are granted, the data suggest this is on restricted terms and for limited durations which reduce their effectiveness at preventing post-separation abuse and supporting victims to regulate their short and longer-term housing situation. These empirical findings are then situated within a discussion of the Domestic Abuse Act 2021. The authors analyse whether forthcoming DAPOs are likely to offer a more accessible and effective form of protection than occupation orders. The analysis suggests that by increasing the scope of applicants, the breadth and flexibility of available protection and the sanctions for breach, DAPOs have the potential to remedy many of the existing barriers to securing protection over the family home. As is always the case with new legislation however, the key will be in its implementation, to ensure that existing issues are not simply transferred across to the new regime. The findings are novel because academic commentaries on protective injunctions typically focus on 'personal protection' offered by non-molestation orders, domestic violence protection orders, and restraining orders, meaning that both occupation orders and protection for victims in respect of the family home are under-researched areas of domestic abuse. [ABSTRACT FROM AUTHOR]

The debate about the two-pronged Ghosh test for dishonesty has troubled academics and practitioners alike for some time. Concerns were raised about the jury's ability to determine both the objective honesty standard and the defendant's personal compliance with it, which might result in non-meritorious personal views allowing her to escape a dishonesty verdict. In Ivey, followed by Barton and Booth, the subjective test was abandoned altogether. The change has brought no doctrinal improvement, but instead unacceptably broadened criminal liability. Leaving the determination of a nebulous moral concept such as dishonesty to the jury is misguided, as it means determining a normative rule in the first place, which is not the jury's role. Looking at the German law on theft and fraud as a comparator system, the paper argues that dishonesty should be abandoned and replaced by a lawfulness element to which the rules on mistake of civil law can then be applied. [ABSTRACT FROM AUTHOR]

It has been well established at a global level that sex workers are often victims of direct violence in the course of their work, targeted by their 'perceived vulnerability' as a marginalised group. In one police force in England (Merseyside) since 2006 they have addressed this victimisation through adopting a 'hate crime' approach to policing crimes against sex workers. The aims of this paper are first, to review the implementation of the hate crime model applied to crimes against sex workers; second, to explore how police forces are adopting the policy across the UK, and the operational barriers to doing so; and third to explore the legal, theoretical and critical issues raised by treating crimes against sex workers as a type of hate crime through policing models. The conclusion weighs up some of the challenges to expanding the current law to include sex workers as a target group for increased protection, assessing that a fully funded policing approach may well be sufficient alongside law reform around decriminalisation of sex work. This article will draw on data from police forces in England. We acknowledge that much more work is needed to establish the sex work community's views on the value, if any, of the hate crime approach. [ABSTRACT FROM AUTHOR]

On 16 January 2016, the Divisional Court gave judgment in the case of Collins. In the judgment, Sir Brian Leveson P provided an authoritative statement as to the meaning of ‘grossly disproportionate’ within the law of self-defence for householders. First introduced in 2013, clarity on the meaning of the phrase has been long awaited by both the academic and the practitioner. The court’s interpretation of the phrase has disturbed the understanding of many and will cause many editions of upcoming criminal law textbooks to be rewritten on this point. This paper will examine whether the Divisional Court was correct in its interpretation by attempting to find the true intention of Parliament in drafting the legislation. The paper will also examine how the householder defences operates in modern practice and its suitability to the law of self-defence. [ABSTRACT FROM AUTHOR]

The Republic of Ireland and the United Kingdom have a long, close and difficult history. The most recent phase of which dates from 1998 and the conclusion of the Good Friday Agreement. Since 1921, however, there has been unique practice between Ireland and the UK as regards the transfer of accused and convicted persons from one to the other. Indeed, there has been a special and close relationship between the two in that regard; albeit one not without difficulties. In recent times EU Justice and Home Affairs measures and the Good Friday Agreement have supplemented and strengthened the relationship. These include, since January 2004, the European Arrest Warrant (EAW). The EAW has been particularly important in streamlining the extradition process between the Ireland and the UK. This phase of history and co-operation is coming to an end. The UK's membership of the EU has now ceased, and a transition period during which the UK remains part of the EAW will end on 31st December 2020. The extradition relationship between the two is therefore facing a considerable challenge. There are several options open to Ireland, the UK and the EU as a replacement. Time, political will and the interests of third states, however, may well stand in the way of the conclusion of an agreement that optimally serves the interests of all parties and criminal justice. This paper considers the origins of extradition between the UK and Ireland and the alternative methods of extradition open to the UK and Ireland after Brexit. Consideration is given to the likely operation of a Norway-Iceland style agreement and whether such an agreement will be in place by the end of the transition and, if it was, whether its terms are likely to be sufficient for the needs of Ireland and the UK. The possibility of a bilateral arrangement on extradition between Ireland and the UK is also explored. Underlying the discussion is the critical point that the future extradition relationship must retain its 'special' characteristics, and therefore maintain the trust and good will that has developed over the years and given rise to an effective extradition relationship between the two countries. In other words, the lessons of history must be remembered. [ABSTRACT FROM AUTHOR]

The present paper constitutes an attempt towards questioning the adequacy of the prevalent approached employed by Islamic jurisprudence and statute law in dealing with mens rea and its manifestations. It also provides a kind of reinterpretation of the concept since it attaches itself to the perspective that the concepts employed in criminal law need evolution in order to preserve their function and practicality; the conditions appertaining thereto necessitating adaptability of the concepts with the contextual conditions as well as the principles of the criminal law. Under criminal law, mens rea is referred to as ‘criminal intent or the state of mind indicating culpability which is required by statute as an element of a crime’ (see, for example, Staples v United States, 511 US 600 (1994)). Under Islamic jurisprudence it is defined as ‘rebellion intent’. These conceptualisations of the mens rea may be subject to evolution as well as the other concepts. The present paper provides a reformulation of these definitions wherein mens rea is considered to be ‘the culpable linkage of mind with the forbidden conduct’. Through this reformulation the author replaces the ‘state’ with ‘linkage’ presupposing that the interpretation of the term ‘culpable’, as an independent constituent, shall vary according to the provisions of common sense and the contextual conditions. [ABSTRACT FROM AUTHOR]

This paper will examine the changing role played by the judiciary in criminal trials. The paper examines the genesis of the adversarial criminal trial that was born out of lifting the prohibition on defence counsel in trials of treason. The paper will chart the rise of judicial passivity as lawyers dominated trials. Finally, the paper examines the rise of the interventionist judiciary in the wake of the Auld Review that launched an attack on the inefficiencies of the modern trial. To tackle the inefficiencies, the Criminal Procedure Rules allowed the judiciary to reassume a role of active case management. The impact an interventionist judiciary has for adversarial criminal justice is examined. The paper finds that a departure from traditional adversarial has occurred; the criminal justice process has shifted to a new form of process, driven by a managerial agenda. [ABSTRACT FROM AUTHOR]

Legislation governing the regulation of dangerous dogs is notoriously fraught with difficulties, in particular concerning the definitions incorporated within, and the enforcement and application of, the relevant provisions. This paper examines two aspects of the legislative framework; the regulation of ‘type-specific’ breeds of dogs, and the extension of regulations relating to the control of dogs from public to private spheres. These aspects afford an opportunity for two principal justifications in favour of controlling owners and their dogs to be analysed: the protection of the public and the need to responsibilise dog owners. This paper considers the extent to which type-specific provisions and the extension of dangerous dogs legislation to cover private spheres achieve those desired aims and concludes that these goals are not clearly met. The authors recommend a consolidated piece of legislation, alongside a more sophisticated approach (supported by further research) being adopted with respect to the nature of dog ownership. [ABSTRACT FROM AUTHOR]

This paper examines the various approaches to disclosure of HIV infected status identified by the Law Commission in its Scoping Consultation Paper on Reform of Offences against the Person. It argues against the imposition of a general duty to disclose in all circumstances, and further suggests that a requirement for disclosure cannot be justified when there is a low risk of transmission. It suggests that the better approach to disclosure is to be found by combining the remaining two Law Commission proposals. This would mean that whether a person was justified in exposing another to the risk of HIV infection without disclosing their HIV positive status would be a matter for the jury and a key factor relevant to the jury’s consideration in this regard would be the level of risk of transmission involved. [ABSTRACT FROM AUTHOR]

Mentally vulnerable defendants who struggle to effectively participate in their trial in the magistrates' courts are not receiving the same protection as those who stand trial in the Crown Court. The Law Commission for England and Wales recognised this lacuna and suggested that the law relating to effective participation should be equally applicable in the magistrates' courts. On closer examination of the law, the legal aid system and perspectives of legal professionals on the 'front line', it is clear that improvements in policy are of greater importance than legal reform and are more likely to meet the needs of these vulnerable individuals. The aim of this paper will be to demonstrate that reform of the law will be insufficient to adequately protect mentally vulnerable defendants in the magistrates' courts and that changes in policy are needed in place of, or alongside, legal reforms. [ABSTRACT FROM AUTHOR]

The exponential increase on the internet of indecent images of children (IIOC) has been followed by a transformation within criminal justice. The scale, nature and rapid technological evolution of such crimes—often of distant initial geographical origin—requires collaborative justice and harm reduction arrangements with internet companies and NGOs. The diminished reach (declining criminal justice interventions) and power (even in identifying crimes for intervention) of state authority with the current collaborative model, however, has resulted in inadequate social regulation and policing in response to IIOC crimes on the surface web. There is a considerable risk that the Online Harms White Paper proposals to establish overarching government authority to generally reduce harmful conduct will not fully resolve problems that go much wider than the technological, commercial and consumer protection on the surface web issues emphasised in that document. Only political choices about funding and fundamental rights compliant legislation can (a) prevent the hollowing out of criminal justice capacity and capabilities to deal with IIOC offenders and (b) ensure an essential compatibility and consistency in police operational ability—including the access sought to anonymised communication data via an encryption key—and legal principles when dealing with IIOC crimes across all levels of the internet, including 'the dark web'. These issues are examined as a case study in civic epistemology about the influence of neoliberalism in technologically focused policy making. [ABSTRACT FROM AUTHOR]

The dark web and the proliferation of criminals who have exploited its cryptographic protocols to commit crimes anonymously has created major challenges for law enforcement around the world. Traditional policing techniques have required amendment and new techniques have been developed to break the dark web's use of encryption. As with all new technology, the law has been slow to catch up and police have historically needed to use legislation which was not designed with the available technology in mind. This paper discusses the tools and techniques police use to investigate and prosecute criminals operating on the dark web in the UK and the legal framework in which they are deployed. There are two specific areas which are examined in depth: the use of covert policing and hacking tools, known in the UK as equipment interference. The operation of these investigatory methods within the context of dark web investigations has not previously been considered in UK literature, although this has received greater analysis in the United States and Australia. The effectiveness of UK investigatory powers in the investigation of crimes committed on the dark web are analysed and recommendations are made in relation to both the law and the relevant Codes of Practice. The article concludes that while the UK has recently introduced legislation which adequately sets out the powers police can use during online covert operations and when hacking, the Codes of Practice need to specifically address the role these investigative tools play in dark web investigations. Highlighted as areas of particular concern are the risks of jurisdiction forum shopping and hacking overseas. Recommendations are made for reform of the Investigatory Powers Act 2016 to ensure clarity as to when equipment interference can be used to search equipment when the location of that equipment is unknown. [ABSTRACT FROM AUTHOR]

The article discusses the Supreme Court case R vs. Chief Constable of Suffolk Police wherein the claimant, Kevin Nunn, was convicted following trial of the murder of his former partner, Dawn Walker, and sought judicial review of a decision by the Chief Constable of Suffolk Constabulary to deny his solicitors access to the working papers if the forensic scientists who gave evidence. The Supreme Court dismissed the appeal and upheld the decision of the divisional court.

This article provides an overview of the latest developments in criminal procedure and practice pertaining to pre-trial defendants. It critically reviews the position regarding: failure to answer to bail, breach of pre-charge bail conditions and the considerations of granting bail with the liability to be rearrested following a breach of bail conditions (s. 72 of the Policing and Crime Act (PCA) 2017). In the eight years of Conservative government, criminal justice reform programmes have been seen as executing the extensive erosion of civil liberties. This article examines the enthusiastic enterprise set out in the PCA 2017 to deliver reform of the law on bail—and the consequences of failure to answer to bail following this reform. The first section of the article consists of a brief review of the early commitment to realign the State power with Britain's past underlying traditions of democracy, freedom, human rights and the rule of law, arguably, accentuated with the Protection of Freedoms Act 2012. This is followed by a discussion of the interaction between police officers and suspects, namely: (a) pre-arrest, and on arrest, (b) caution and legal rights and (c) detention. This section will discuss recent coarsening of that commitment regarding powers of arrest, detention, entry, bail and failure to answer to bail, for pre-trial defendants. The article then turns to outline and evaluate the juxtaposition of the Law Commission's Consultation Paper on Search Warrants. An analysis will then be made of the impact of s. 72 of the PCA 2017, before concluding with a critical evaluation of whether this change is a contemporary rapine of breach of bail, or a comparative necessity. [ABSTRACT FROM AUTHOR]

This paper highlights the need to reintroduce the political offence exception to extradition in cases of non-violent crime into UK domestic law and beyond. The article examines the recent developments in the case of WikiLeaks founder Julian Assange with an emphasis on the judicial outcomes in the extradition proceedings before UK courts in matters relevant to freedom of the press. The case makes for an interesting subject because it concerns both objectively a political crime as well as arguably political persecution. The question of extradition is being played out between two closely allied countries which converge in applying their secrecy laws in an increasingly expansive manner crucially encroaching upon standard practices of national security investigative journalism. The article concludes that an introduction of the public interest or affirmative defence and the testimony of purpose into secrecy laws are essential in democratic societies. It further concludes that the evisceration of a political offence exception to extradition in non-violent crimes is a regrettable trend that should be reversed. Said exception is the single most powerful tool in extradition regulation serving to prevent political persecution and it is essential for protecting national security investigative journalists from extradition in cases such as that of Assange. [ABSTRACT FROM AUTHOR]

In this paper I try to outline the implications of the decision in R v Jogee for practice. I try to explain what the substantive law now requires and how that should be implemented in practice. I argue that particular care needs to be taken so that the profession properly understand and implement the substantive law as recognised in R v. Jogee. I shall try to explain the conceptual distinction between a fundamentally different act and a supervening act. A supervening act cancels out an earlier act, but a fundamentally different act does not necessarily involve a cancelling out. Intentional g.b.h. is a supervening act when the accessory only intended the perpetrator to perpetrate an act resulting in a.b.h. The g.b.h. should cancel out the a.b.h. since the perpetrator has departed from the plan and perpetrated a different act to what was originally intended by the parties. Thus, it is not possible to reconcile the Supreme Court’s obsequiousness towards the supervening act rule with its finding that manslaughter can be an alternative to murder for accessories when the perpetrator has inflicted g.b.h. resulting in V’s death, if the accessory intended a.b.h. be inflicted upon V. Additionally, manslaughter is not a lesser included offence to murder and thus such a conviction should not be available where P perpetrates a murder not intended by the accessory; instead, the accessory should be charged with the inchoate offence for attempting to encourage the lesser crime. It shall also be argued that conditional intention is only an issue in certain factual scenarios such as where it is not certain which crime will be perpetrated or where a crime is intended upon some contingency arising. Intention is intention whether it depends on a condition or not. Finally, it will be argued the spontaneous outbreak of multi-handed violence cases will pose great challenges as far as proof of intentional encouragement is concerned, but that can be overcome simply by charging such cases under sections 44 or 45 of the Serious Crime Act 2007. [ABSTRACT FROM AUTHOR]

The media has recently given much attention to the ‘stealthing’ trend, undisclosed condom removal during sex and how this may affect consent to sexual activity. This paper seeks to discuss where situations like this sit within the Sexual Offenses Act 2003, and how it may compare to other instances of consent gained in deceitful circumstances. [ABSTRACT FROM AUTHOR]

The proliferation of statutory and common law powers that can be utilised to manage and control public protest gives the police a wide range of options to in any given scenario and requires a careful balance to be struck between the maintenance of order and facilitation of convention rights. This paper discusses a novel use of the criminal law of conspiracy and considers the potential benefits of this approach and the ramifications for the protection of convention rights. It is submitted that the controversial use of the criminal law against Chinese dissidents in the UK was perhaps a result of the law of unintended consequences arising from the development of a body of law that has been piecemeal and reactive. [ABSTRACT FROM AUTHOR]

A summary is presented of the bill the Anti-social Behavior, Crime and Policing Act 2014.

This article considers the issue of romance frauds, a form of behaviour that has recently gathered significant public attention. A romance fraud operates by persuading a person to believe they are in a legitimate romance and then using that romance to extract money, gifts or other financial rewards from them. The emotional consequences of romance fraud can be significant, with victims often experiencing feelings akin to grief. This paper considers whether such behaviour should be considered a financial crime or whether the behaviour inherent within it means that it should be considered an offence against the person. [ABSTRACT FROM AUTHOR]

This paper considers the possibility of polygraph evidence being utilised in criminal trials. There is evidence that a properly conducted polygraph is between 70 and 90 per cent accurate. Evidence from the field of human psychology is that, in the absence of corroborating information, human beings do little better than chance in determining truth from lies. I argue that it is illogical to ignore the possibility of using the more reliable form of evidence in favour of the less reliable, and that there is little English case law to prevent the use of polygraph evidence, but that there is relevant case law from other jurisdictions which could support its use.With the introduction of the polygraph as a license condition under the Offender Management Act 2007, the English judicial system sees the first, very limited use of this technique, could this be the start of a creeping development? [ABSTRACT FROM AUTHOR]

In its 2011 report Expert Evidence in Criminal Proceedings in England and Wales (Law Com No. 325), the Law Commission recommended that the admissibility of expert evidence in criminal proceedings should be governed by a new statutory regime comprising a new statutory reliability test in combination with codification and refinement of existing common law principles relating to ‘assistance’, ‘expertise’ and ‘impartiality’. The government declined to enact the Law Commission’s draft Bill due to a lack of certainty as to whether the additional costs incurred would be offset by savings. Instead the government invited the Criminal Procedure Rule Committee (CrimPRC) to consider amendments to the Criminal Procedure Rules (CrimPR) to introduce, as far as possible, the spirit of the Law Commission’s recommendations. The consequent amendments to CrimPR Part 33 (now CrimPR Part 19) in combination with the making of the new Practice Direction CrimPD 33A (now CrimPD 19A) by the Lord Chief Justice resulted in what he described in his 2014 Criminal Bar Association Kalisher Lecture as ‘a novel way of implementing an excellent Report’. This paper considers the possible evolution of the common law in light of these amendments, the challenges associated with adopting such a novel approach to reform and the potential opportunities for the improvement of expert evidence in criminal proceedings that the changes were intended to create. [ABSTRACT FROM AUTHOR]

The tension between an individual’s right to a fair trial and a state’s prerogative to withhold information where it is in the national interest to do so is an issue which is especially relevant in preventative detention cases. In a string of cases since 2009, lower courts have interpreted the ‘gisting’ requirement imposed by the Grand Chamber in A v United Kingdom in response to this problem. This paper will consider the jurisprudence of the lower courts and will argue that the House of Lords’ judgment in AF No. 3 imposed requirements not only in relation to the amount of information that must be disclosed, but also in relation to what that information must consist of. It will note that two irreconcilable interpretations of A have developed, and argue that one of those approaches is incompatible with AF. Finally, it will discuss the interaction between these decisions and the statutory framework of the JSA, especially ss 6(5) and 7(2), and will consider the consequences of the judicial uncertainty in this area in relation to the return of TPIMs following the CTSA. [ABSTRACT FROM AUTHOR]

This article reviews the Commission’s 2015 recommendations on the non-fatal offences against the person. Its analysis focuses on three main pillars: (i) it examines whether the current law in this area is in need of modernisation; (ii) it asks whether the ‘ladder’ of non-fatal offences should be reformed in the manner recommended by the Commission; and (iii) it identifies and elaborates on issues which have not been adequately addressed by the Commission in this project, albeit they constitute integral parts of the offences against the person. This paper suggests that the Commission’s recommendations provide a good starting point, but a more comprehensive review of this area is still required. It is submitted that the reluctance of the Commission to deal in more depth with some fundamental issues, such as the codification of the fault requirements, detracts from the overall strength of this project. [ABSTRACT FROM AUTHOR]

In 2010, the French government passed a law banning face coverings in public places. This includes shopping malls, restaurants and schools. Although worded widely, the law was drafted to prevent Muslim women from wearing the Islamic face veil in public. Those who wear it now risk facing a criminal conviction. In February 2014, the House of Commons held a Second Reading of the Face Coverings (Prohibition) Bill, which is very similar to the French law. Though it did not complete its passage through Parliament, the Bill signals an intention by some to ban face veils in British streets. This paper will examine the main arguments for and against the policy to criminalise the burqa and how a ban undermines the autonomy and identity of Muslim women. It will argue that a paternalistic law that instructs women what they can (or cannot) wear would be very alien to British culture. Analysis will also be provided on the Grand Chamber’s decision in SAS v France (2015) and the potential impact this might have for the UK and human rights law. [ABSTRACT FROM AUTHOR]

Whilst the criminal law typically favours the principle of correspondence between actus reus and mens rea, the current law governing offences against the person takes an approach which may be more accurately defined as ‘moderate’ constructivism. This approach is based on consideration of both the defendant’s mens rea and the degree of harm caused by the defendant’s actions. The recent Law Commission Scoping Consultation Paper Reform of Offences against the Person appears to prefer reform based on a move towards the principle of correspondence. This article discusses the theoretical rationale for both the adoption of the correspondence principle and the retention of a moderate constructivist approach in the context of offences against the person. Consideration is given to the fairness of attributing liability to a defendant for the unforeseen consequences of her actions and whether such an approach can be justified by the change in D’s normative position based on her decision to use violence. Consideration is also given to the concept of fair labelling and to potential lacunae that may be created as a result of a move towards a set of offences based on the correspondence principle. [ABSTRACT FROM AUTHOR]

Consent is one of the most powerful concepts known to the law; in particular, it can provide a defence in the criminal context by converting unlawful conduct to that which is not only lawful but even to be encouraged. Despite this, the task of formulating a general theory of consent in criminal law has not been an easy one, not least because of the different situations in which it operates. Given that consent fundamentally involves the subjective attitude of the person concerned to the conduct in question, this paper sets out to explore the dynamics of consent by considering a number of factors, including the way in which it operates as a defence to different crimes, the problems to which consent gives rise in the criminal context and the emotional factors which can influence someone to grant it. It is argued that the development of the law both from a theoretical and a practical perspective requires a more informed and nuanced concept of consent in terms of the emotional dynamics involved. [ABSTRACT FROM AUTHOR]

This paper seeks to present issues relating to female genital mutilation/cutting (FGM) in a manner which is more socio-legal than is usual in this journal, partly because, while there is an important new statute, the Serious Crimes Act 2015, the accepted view of FGM across the world (e.g. mention is made below of Egypt) is that criminal law alone is most unlikely to prevent or deter FGM; this approach is very much that recently adopted in England and Wales and indeed in the other countries within the UK. Changing criminal law affecting women and girls at risk of FGM in the UK is, moreover, of little use if ‘vacation cutting’ (see below) takes place. Non-coercive means within a comprehensive strategy, including cross-agency action and utilising NGOs, seem in this arena to be more successful than coercive ones. Criminal law is dealt in this article within this socio-legal context and not in a freestanding manner as is usual. [ABSTRACT FROM AUTHOR]

The law of secondary liability continues to trouble defendants, victims, politicians, practitioners, judges, academics and laypeople. In a recent report, the House of Commons Justice Select Committee called even more forcefully for the Government to consult on reforming the law of ‘joint enterprise’. The committee called, in particular, for a stronger fault requirement: at the moment a secondary party can be liable for the full offence merely because he foresaw a chance that the principal might commit a crime. This article discusses the report, analyses the substantive law in issue and considers appropriate reforms. The report is also a chance to reassess what secondary liability looks like today, a process that reveals that we now live in a post-accessory liability world where ‘joint enterprise’ rules. This shift in language and corresponding shift in fault elements has caused significant uncertainty in understanding the law as well as practical injustice, making it easier to convict for more serious crimes than should be the case. The paper draws on an analysis of the joint enterprise cases decided in 2014 to show how attitudes to evidential and sentencing issues are shaping the substantive law. [ABSTRACT FROM PUBLISHER]

The author offers his views about the concept of Diminished Responsibility as it pertains to medical cases. He notes the introduction of diminished responsibility into English law with its origins traced to Lord Deas' contributions to the common law of Scotland. He cites that a plea of diminished responsibility considers extenuating circumstances such as insanity suffered by the accused. It analyzes the application of the concept in the 1867 murder case against Alexander Dingwall.

The swingeing cuts to criminal legal aid may do irreparable damage to the defence side of the equality of arms. Coupled with this, the case of R v Jones gives the judge discretion to try in the defendant’s absence without representation or being present as a litigant-in-person. It is arguable that the defendant’s right to be heard will be chipped away at until the defence side is left legally crippled. The enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is insular and neglects the defendant’s rights systemically. Without an adequate defence, squalid injustice will permeate and reverberate throughout the criminal justice system. Defendants cannot be corralled into court without the assistance of an advocate. The impact of the cuts falls on the litigant-in-person, thereby delimiting access to justice. Thus it disallows the opportunity to raise a proper defence. The sequela of the attack against the defence is a retreat back to the pre-1690s when defendants had very limited chances of being represented. Expense should not quell the right to be heard. Will the 2012 Act administer the coup de grace to the right to be heard or will Magna Carta be a heaven-sent ancient bulwark against this threat? [ABSTRACT FROM PUBLISHER]

This article examines the Domestic Violence, Crime and Victims (Amendment) Act 2012, and how it has further developed the law in order to punish offenders where there are multiple defendants, and it is clear one of them caused death or serious physical harm to a child or vulnerable adult. Having considered how the 2012 Amendment Act developed the law from the position under the Domestic Violence, Crime and Victims Act 2004, the article also explores what the 2004 Act failed to address. Some of the terminology used in the 2004 Act is problematic and was not considered by the 2012 Amendment Act. This article considers that terminology in further detail before asserting that, despite it remaining as problematic, the 2012 Amendment Act has still made an important step forward in the law, and has bridged a gap to ensure more guilty defendants are punished. [ABSTRACT FROM PUBLISHER]

This article analyses the significance of changes to the law in Scotland dealing with stalking by outlining the previous legal position and examining the new legal rules and their impact. Stalking has been proven to be extremely harmful to the victims of the behaviour and their families, and proper legislative rules to deal with it in Scotland have been long overdue. The legislative protection required for stalking victims was introduced in 2010 and it now seems an opportune time to review the legal rules and their impact in protecting victims against stalkers in Scotland. In the process, consideration of statistical data concerning stalking prosecutions is also considered. The article also includes analysis of the legal position of stalking victims in England and Wales where new offences have recently been introduced. [ABSTRACT FROM AUTHOR]

The author offers his views on the issue of identity theft. He notes the difficulty and complexities involved in solving identity theft, and raises several definitions of the offense based on the United Nations (UN) Handbook on Identity-related Crime. He infers that identity theft is not a new concept with similar acts referenced in section 32 of the Larceny Act 1913, sections 15 and 16 of the Theft Act 1968, and Section 2 of the Fraud Act 2006.

The article discusses the court case R (on the application of Kracher) v. Leicester Magistrates' Court wherein Kracher challenged his previous assault conviction by way of judicial review, since the prosecution case was based on the alleged punch involving him and another road user in a previous case. Topics discussed include his previous charge of common assault contrary to section (s.) 39 of the Criminal Justice Act 1988 and the importance of the defendant knowing the case he has to meet.

In October 2016, the Court of Appeal handed down judgment in Norman, an appeal against conviction for misconduct in public office on the basis of information sold to a newspaper by a serving prison officer. The particular interest in the appeal, however, comes from its wider engagement of rights afforded by Article 10 ECHR and the interaction of that provision with voluntary disclosure. The decision highlights that where information about a source is provided voluntarily by a newspaper, the source will struggle to argue that Article 10 rights have been infringed. This article explores the existing law on journalistic privilege and highlights the gap in the precedents that means, even post Norman, there is no clear answer to a question likely to be increasingly important in times of closer scrutiny of the media. [ABSTRACT FROM AUTHOR]