Pub Date : 2024-04-13DOI: 10.1177/00220183241247347
Rebecca Mitchell, Michael Stockdale
{"title":"Criminal Justice and Technology","authors":"Rebecca Mitchell, Michael Stockdale","doi":"10.1177/00220183241247347","DOIUrl":"https://doi.org/10.1177/00220183241247347","url":null,"abstract":"","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140580082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-16DOI: 10.1177/00220183241233455
Heather Douglas, Leah Sharman, Robin Fitzgerald
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.
{"title":"Domestic Violence, Sex, Strangulation and the ‘Blurry’ Question of Consent","authors":"Heather Douglas, Leah Sharman, Robin Fitzgerald","doi":"10.1177/00220183241233455","DOIUrl":"https://doi.org/10.1177/00220183241233455","url":null,"abstract":"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.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139947341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-13DOI: 10.1177/00220183241233200
Alex Benn
{"title":"Malicious Communications: Freedom of Email? Elected Officials, Disability and ExpressionR v Casserly [2024] EWCA Crim 25","authors":"Alex Benn","doi":"10.1177/00220183241233200","DOIUrl":"https://doi.org/10.1177/00220183241233200","url":null,"abstract":"","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"119 28","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139781144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-13DOI: 10.1177/00220183241233200
Alex Benn
{"title":"Malicious Communications: Freedom of Email? Elected Officials, Disability and ExpressionR v Casserly [2024] EWCA Crim 25","authors":"Alex Benn","doi":"10.1177/00220183241233200","DOIUrl":"https://doi.org/10.1177/00220183241233200","url":null,"abstract":"","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"49 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139841043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-06DOI: 10.1177/00220183241229945
N. Wake, Alan Reed
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 killer 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.
{"title":"Reconceptualising Sexual Infidelity Provocation: New Anglo-Scottish Reform Proposals","authors":"N. Wake, Alan Reed","doi":"10.1177/00220183241229945","DOIUrl":"https://doi.org/10.1177/00220183241229945","url":null,"abstract":"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 killer 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.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"16 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139861026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-02-06DOI: 10.1177/00220183241229945
N. Wake, Alan Reed
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 killer 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.
{"title":"Reconceptualising Sexual Infidelity Provocation: New Anglo-Scottish Reform Proposals","authors":"N. Wake, Alan Reed","doi":"10.1177/00220183241229945","DOIUrl":"https://doi.org/10.1177/00220183241229945","url":null,"abstract":"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 killer 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.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"44 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139800982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-31DOI: 10.1177/00220183231225054
Ed Johnston
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.
{"title":"The Adversarial Lawyer and the Client's Best Interest: Failures With Pre-Charge Engagement","authors":"Ed Johnston","doi":"10.1177/00220183231225054","DOIUrl":"https://doi.org/10.1177/00220183231225054","url":null,"abstract":"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.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"189 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139947264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-01-22DOI: 10.1177/00220183231226087
Tim J Wilson, J. Bergman, Adam Jackson, Oliver B Popov
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.
{"title":"Preventing Machines From Lying: Why Interdisciplinary Collaboration is Essential for Understanding Artefactual or Artefactually Dependent Expert Evidence","authors":"Tim J Wilson, J. Bergman, Adam Jackson, Oliver B Popov","doi":"10.1177/00220183231226087","DOIUrl":"https://doi.org/10.1177/00220183231226087","url":null,"abstract":"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.","PeriodicalId":501562,"journal":{"name":"The Journal of Criminal Law","volume":"1 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139609174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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