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Journal of Criminal Law
Number of Followers: 299  Subscription journalISSN (Print) 0022-0183 - ISSN (Online) 1740-5580 Published by Sage Publications  [1176 journals]
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- When Might Two Offences be Founded on the Same Course of Conduct'
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Authors: Neil Parpworth
Abstract: The Journal of Criminal Law, Ahead of Print.
Citation: The Journal of Criminal Law
PubDate: 2023-09-04T05:48:46Z
DOI: 10.1177/00220183231199726
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- Misrepresentation and Sexual Consent: Lessons from the Law of Contract
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Authors: Alexander Yean
Abstract: The Journal of Criminal Law, Ahead of Print.
Much has been written in support of the criminalisation of the dishonest inducement of sexual consent, but existing proposals for criminalisation have been subject to numerous powerful criticisms, including the absurdity of criminalising ‘trivial’ deceptions, the undue impingement on the right to privacy, and accusations of excessive moralism. The aim of this article is to propose a new model for the criminalisation of the dishonest inducement of sexual consent based upon the contract law doctrine of misrepresentation – the Misrepresentation Model for Sexual Consent – that addresses, or at least mitigates the force of, some of the most common and potent criticisms levied against the existing proposals for criminalisation. The strengths of the Misrepresentation Model for Sexual Consent will be shown by comparing the Misrepresentation Model for Sexual Consent against Professor Jonathan Herring's much-debated model. Further, in conceptualising and defending the Misrepresentation Model for Sexual Consent, this article will demonstrate that there is much to be gained for the development of criminal law by drawing lessons from private law.
Citation: The Journal of Criminal Law
PubDate: 2023-09-01T06:13:21Z
DOI: 10.1177/00220183231199087
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- Evidence Before the Parole Board
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Authors: Andrew Beetham
Abstract: The Journal of Criminal Law, Ahead of Print.
Citation: The Journal of Criminal Law
PubDate: 2023-08-21T05:28:22Z
DOI: 10.1177/00220183231197123
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- Motivated by Compassion: Reviewing the Proposed Public Interest Guidance
for Prosecuting Mercy Killings-
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Authors: Chrystala Fakonti
Abstract: The Journal of Criminal Law, Ahead of Print.
In 2022, the Crown Prosecution Service started a public consultation on a proposed update to legal guidance on homicide. Among the objectives of this consultation was to guide prosecutors on the public interest factors relevant when deciding whether to prosecute a mercy killing. This article reviews this consultation, focusing on the role of compassion within the CPS's guidelines. The discussion examines the meaning of compassion, how some of the public interest factors relate to this and whether additional factors should be added within the guidelines to help prosecutors identify the suspects’ motives. The suggested adjustments to the prosecutorial guidance will help the prosecution assess whether the suspect indeed acted out of compassion and whether their actions were appropriate given the circumstances.
Citation: The Journal of Criminal Law
PubDate: 2023-08-16T05:48:04Z
DOI: 10.1177/00220183231191477
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- The Assange Case: Transnational Prosecution of Investigative Journalism
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Authors: Polona Florijančič
Abstract: The Journal of Criminal Law, Ahead of Print.
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.
Citation: The Journal of Criminal Law
PubDate: 2023-08-03T06:19:27Z
DOI: 10.1177/00220183231191476
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- Does Complicity Require a Measurable Contribution'
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Authors: Beatrice Krebs
Abstract: The Journal of Criminal Law, Ahead of Print.
Citation: The Journal of Criminal Law
PubDate: 2023-07-28T06:32:17Z
DOI: 10.1177/00220183231191471
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- Transferred Malice: Historical Underpinnings of the Rule and Legal
Arguments for Its Abrogation-
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Authors: Pasquale Mastrolia
Abstract: The Journal of Criminal Law, Ahead of Print.
The history of transferred malice is as long as that of the offence of murder with respect to how it was conceived and is traditionally applied. It ensures the maximum protection of human life, transferring mens rea away from the intended victim of the offence to the actual victim. The Italian Criminal Code in force places the rule in the ‘General Part’ of the law, formally enabling its application to every offence. The first part of this essay focuses on the development of transferred malice across the earlier criminal codes of the Italian kingdoms. Then, I present the highlights of the development of the academic debate at the time the criminal code in force was drafted. Finally, I claim the rule should be repealed because of its contradiction with European and domestic rules on victim protection and the strict liability principle in criminal matters.
Citation: The Journal of Criminal Law
PubDate: 2023-07-25T05:58:34Z
DOI: 10.1177/00220183231191262
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- Intentional Strangulation: The Proper Approach to Sentencing in the
Absence of a Sentencing Guideline-
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Authors: Mark Thomas, James J Ball
Abstract: The Journal of Criminal Law, Ahead of Print.
Citation: The Journal of Criminal Law
PubDate: 2023-07-25T05:57:54Z
DOI: 10.1177/00220183231190072
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- A Probative Argument of Intention
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Authors: Tshepo Bogosi Mosaka
Abstract: The Journal of Criminal Law, Ahead of Print.
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.
Citation: The Journal of Criminal Law
PubDate: 2023-07-17T03:03:00Z
DOI: 10.1177/00220183231187610
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- The UK's Statutory Defence for Victims of Modern Slavery and its Narrow
Understanding of Victimhood-
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Authors: Alicia Heys
Abstract: The Journal of Criminal Law, Ahead of Print.
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.
Citation: The Journal of Criminal Law
PubDate: 2023-06-12T09:32:44Z
DOI: 10.1177/00220183231179181
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- ‘How can you punish a child for something that happened over a year
ago'’ The impacts of COVID-19 on child defendants and implication for
youth courts-
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Authors: Samuel Larner, Hannah Smithson
Abstract: The Journal of Criminal Law, Ahead of Print.
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.
Citation: The Journal of Criminal Law
PubDate: 2023-05-22T03:30:06Z
DOI: 10.1177/00220183231172432
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- Released Under Investigation: High Time to Bail Out
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Authors: Michael Hal Sosabowski, Ed Johnston
Pages: 266 - 280
Abstract: The Journal of Criminal Law, Volume 87, Issue 4, Page 266-280, August 2023.
Prior to the Policing and Crime Act 2017, the provision of bail was set out by the Bail Act and refined by the Police and Criminal Evidence Act 1984 (PACE). Bail provisions changed under the Policing and Crime Act 2017, which created a presumption against bail. The legislation permitted police to release suspects under investigation (RUI) which was permitted to last as long as the police required. This article contends that neither the police, suspects or victims of crime have benefitted from the changes and a new balance needs to be struck in order to achieve fair and just outcomes, in keeping with the doctrines outlined in Police, Crime, Sentencing and Courts Bill 2021.
Citation: The Journal of Criminal Law
PubDate: 2022-02-15T05:32:32Z
DOI: 10.1177/00220183221078935
Issue No: Vol. 87, No. 4 (2022)
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- Corrigendum to Causing Serious Injury by Dangerous Driving: Time for a
Sentencing Guideline' R v Allen [2021] EWCA Crim 1405-
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Abstract: The Journal of Criminal Law, Ahead of Print.
Citation: The Journal of Criminal Law
PubDate: 2022-11-11T06:26:05Z
DOI: 10.1177/00220183221137414
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- Delay in Prosecution as a Mitigating Factor in Hong Kong: Towards
Doctrinal Coherence-
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Authors: Chi Pong To, Trevor TW Wan
Abstract: The Journal of Criminal Law, Ahead of Print.
Unreasonable delay in prosecution is widely recognised as a mitigating factor in sentencing. Nevertheless, to date there is only scattered judicial discussion and academic literature on its doctrinal bases in Hong Kong. This article undertakes the task of exploring whether sentencing courts in Hong Kong have crystallised a coherent doctrinal basis or rationale underlying this mitigating factor. A thorough review of the case law reveals four different doctrinal bases, namely fairness, rehabilitation, public interest, and delay per se. These bases, however, rest on shaky doctrinal foundations and cannot withstand analytical scrutiny. Recognising this undesirable state of the law, this article ventures into proposing an alternative doctrinal basis for this mitigating factor, rooted in the constitutional right to be tried without undue delay enshrined in art. 87(2) of the Hong Kong Basic Law and art. 11(2)(c) of the Hong Kong Bill of Rights. This new basis, we contend, will offer the much-needed coherence to the law.
Citation: The Journal of Criminal Law
PubDate: 2022-08-22T07:12:00Z
DOI: 10.1177/00220183221110380
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- Erratum
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Abstract: The Journal of Criminal Law, Ahead of Print.
Citation: The Journal of Criminal Law
PubDate: 2021-12-01T08:57:54Z
DOI: 10.1177/00220183211065538
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