This chapter examines issues surrounding the right of access to and limits on evidence dossiers in civil law systems. It first provides an overview of the general aims pursued by the law in regulating the parties’ right of access to the investigative file before discussing supranational sources, such as the European Convention on Human Rights (ECHR) and the case law of the European Court on Human Rights (ECtHR). In particular, it explores how the jurisprudence of the Court of Justice of the European Union (CJEU) and certain directives adopted by the European Union on the right to information by defendants and by victims has influenced the criminal procedures of EU Member States. It also analyzes disclosure at the International Criminal Court (ICC) and concludes by explaining how civil law systems have changed in recent years, what their common features and shortcomings are, and how they could be improved.
This chapter examines the concept of actus reus as a basic, essential component of criminal liability. It considers a range of recent scholarly interpretations of actus reus and the extent to which they are supported in the case law, with particular reference to the Canadian and U.S. jurisprudence. It discusses minimalist and maximalist interpretations of actus reus, the first of which conceives of actus reus on the basis of whatever the legislature has decided to criminalize and the second of which restricts criminal liability to positive acts. The chapter looks at approaches that interpret actus reus based on two factors: a person’s “control” over the prohibited outcome or conduct, proposed by Husak, and the person’s practical reasoning, proposed by Duff. The chapter argues that both minimalist and maximalist views of actus reus conflict with well-established features of the criminal law.
This chapter argues that contemporary accounts of Africa and International Criminal Law (ICL), divergent and acrimonious as may be, generally rely on a foreshortened history of this relationship, one that begins in the 1990s. In contrast, the chapter aims to show that ‘Africa’ and Africans were present at ICL’s inaugural moment in 1919, and that for much of the ensuing period ‘Africa’, Africans (and later African states) have been a ‘present absence’, to use Toni Morrison’s phrase, but present and represented nonetheless. Moreover, by tracing the story of Africa and Africans’ ‘present absence’ in ICL from since 1919, and the continued silencing thereof in historiography of the field today, the chapter aims to highlight three threads of critique—concerning ICL’s racial politics, imperial entanglements and ‘regime of representation’—that weave their way, at times together at times apart, from 1919 until the present. The chapter will end by re-considering the relationship between Africa and ICL in light of this longer history, arguing that when doing so the question becomes not whether ICL (or the ICC) might be a field that operates on neo-colonial and racist lines, but whether it might have been anything else (or might yet be).
Appeal and Cassation in Continental European Criminal Justice Systems: Guarantees of Factual Accuracy, or Vehicles for Administrative Control?
Stephen C. Thaman
This chapterexamines appeal and cassation as procedural vehicles for challenging criminal judgments rendered by trial courts in five European countries: France, Germany, Italy, Russia and Spain. More specifically, it considers whether appeal and cassation serve as guarantees of factual accuracy in criminal judgments or as vehicles by which the high courts exercise administrative control over the work of lower courts. The chapter first provides an overview of the hierarchical model of criminal procedure in the civil law system before discussing the structural and philosophical differences between Continental European (civil law) and common law systems. It also describes how appeal and cassation have developed from their classical forms and concludes with an analysis of how they function today, noting that acquittals seem to receive enhanced scrutiny on appeal and cassation in European jurisdictions.
Jacqueline E. Ross
This chapter identifies a management problem in the regulation of undercover operations and terms it the problem of “upstream defection” by a “rogue principal,” in contrast to the better-known problem of the faithless agent (known as the “agency problem”) or “downstream defection.” orThe chapter first considers some of the features of undercover operations that bring undercover agents into conflict with investigative teams and supervisors and that can make undercover agents vulnerable to upstream defection, either real or imagined. It then highlights the distinction between the risks of betrayal facing undercover agents and those facing informants, as well as the differences between real and perceived “betrayals” and the analytical and evidentiary difficulties of distinguishing between them. It also discusses some of the regulatory devices employed by French and German law enforcement agencies to reduce the differences in outlook between undercover agents and other members of the law enforcement team, in order to mitigate the conflicts that can produce both real and perceived forms of defection within the chain of command.
John Jackson and Paul Roberts
This chapter offers a critique of the “common law model” of the Law of Evidence and calls for a new organizing principle that “reimagines” evidence law as forensic science, particularly in the context of criminal adjudication. It first provides an overview of the orthodox common law model of Evidence Law before deconstructing it, arguing that it adopts a very narrow doctrinal focus, thus undermining the dynamic processes through which evidence is collected, organized, presented, tested, and evaluated in legal proceedings. It also suggests that the model is difficult to defend in terms of robust disciplinary boundaries differentiating that which is specifically evidentiary from broader aspects of substantive and procedural law. Finally, it considers the so-called “New Evidence Scholarship” on evidence law, the impact of the new cosmopolitanism on common law evidence, and the rationale for reconceptualizing evidence law as part of an interdisciplinary “forensic science” that goes “beyond common law.”
This chapter examines the role of causation in criminal law and especially as a central ingredient of criminal responsibility. It first discusses whether results should matter in the determination of legal and moral responsibility before considering causation within the contexts of criminal law and tort law. It highlights the ambivalence surrounding the use of the words “causation” and “cause” in many legal orders and goes on to explore what constitutes a cause and the philosophical debate about the causal relata—the objects connected by the causal relation. Some of the common problems in standard accounts of causation, particularly counterfactual dependency (sine qua non, but for), are also reviewed. The chapter concludes by summarizing a number of approaches to restrict factual causation, including those relating to proximity, the notion of “harm within the risk” or “harm within the scope of the rule violated,” “ordinary hazards,” intervening causes, and culpability.
Challenges of Trial Procedure Reform: Is European Union Legislation Part of the Solution or Part of the Problem?
Helmut Satzger and Frank Zimmermann
This chapter examines the impact of European Union legislation on trial procedure reforms in EU Member States’ national criminal justice systems. It first considers the harmonization of procedural rights in the EU from the initial concept of mutual recognition, focusing on the legislative efforts to strengthen the rights of suspects and accused persons as well as the rights of victims in the trial phase, before discussing European rules for the admissibility and assessment of evidence. It then uses the European Public Prosecutor’s Office (EPPO) as an example to highlight the potential impact of supranational institutions on national trial proceedings. It shows that the criminal trial itself is subject to European influences, noting that the EPPO-Regulation contains some rules for the preliminary question of where the trial will take place.
This chapter analyses the pervasive impact of the Charter on the Canadian criminal justice system. Active judicial interpretation of Charter rights has put in place distinctive constitutional standards of substantive law, including those of fault, and struck down oppressive laws for arbitrariness and overbreadth. Also examined are new standards for police powers to stop, search, detain and interrogate, fair trial rights such as the duty of full Crown disclosure, and for assessing mandatory minimum sentences. This chapter describes and welcomes a robust exclusionary discretion for evidence obtained in violation of the Charter. It is suggested that the Canadian Charter standards are no panacea and are sometimes too weak but that they have often provided a welcome balance to the expedient lure of law-and-order politics.
This chapter examines the codification of criminal law by focusing on the theory and practice of codification in England and the United States. The aim of the chapter is to widen the focus from a discussion of what are claimed to be the immediate benefits of a project of codification to raise some broader issues about the meaning and functions of codification of the criminal law. It considers how codification might contribute to values such as liberty by analyzing its relationship with modernity and discusses the immediate benefits of codification. It also highlights the tension between the liberalism and authoritarianism at the heart of the modern codification project and concludes by assessing the function of a penal code.
Colonial Criminal Law and Other Modernities: European Criminal Law in the Nineteenth and Twentieth Centuries
Markus D. Dubber
This chapter reflects on various traditional approaches to the historical study of European criminal law in the nineteenth and twentieth centuries. It examines several ways of naming and framing the subject matter, along with ways of ‘covering’ it along a set of by now fairly well-established narrative paths that generally reflect a quietly reassuring Whiggishness. It then lays out an alternative, two-track, conception of ‘modern’ European criminal legal history. It does this by taking an upside-down—or outside-in—view of the subject, by focusing on an understudied, but fascinating, project of European criminal law: the invention, implementation, and evolution of colonial criminal law.
Comparative Approaches to Criminal Procedure: Transplants, Translations, and Adversarial-Model Reforms in European Criminal Process
This chapter discusses comparative approaches to criminal procedure, focusing on transplants, translations, and adversarial-model reforms in European criminal process. In particular, it examines the idea of “Americanization/adversarialization” of European criminal procedures—that is, the possible convergence between American common law and European civil law criminal procedure systems toward a common adversary core structure. The chapter also considers the implications of transplanting some American adversarial features into the non-adversary European soil, such as pretrial investigations conducted by the police and the public prosecutor in lieu of the investigating judge typical of the civilian tradition; exclusionary rules; cross-examination; and jury trial. It compares the so-called tango justice with rumba justice and analyzes the “revolutionary change of procedure” with respect to cross-examination of witnesses, jury trial in Spain, and plea bargaining in Europe.
This chapter offers a comparative analysis of sentencing laws, practices, and trends in various jurisdictions. It first provides an overview of the theoretical foundations of sentencing, focusing on single-rationale models, mixed models, and hybrid models; prevention-based sentencing such as rehabilitation; desert-based sentencing; and whether sentencing without certainty is about the question of guilt. It then examines the framework for sentencing and sentencing procedures in different legal systems, with particular emphasis on who decides on sentencing rules and outcomes in individual cases. Four types of decision-makers (legislatures, sentencing commissions, sentencing judges, and agencies that decide about parole) are considered, along with sole responsibility versus mixed responsibility models. The article concludes by exploring the overall sentence severity or punitiveness of legal systems and assessing future prospects for sentencing.
Luis E. Chiesa
This chapter discusses comparative criminal law and demonstrates how comparative analysis can elucidate both domestic and international aspects of criminal law. After explaining what it means to do comparative criminal law and how it differs from similar endeavors, such as compiling the criminal law doctrines of different jurisdictions, the chapter considers the usefulness of comparative analysis in terms of strengthening domestic criminal law doctrines and understanding international criminal law. It also outlines some obstacles to be overcome in order to engage in meaningful comparative analysis, such as language, legal, historical, and cultural barriers. It compares common law and civil law approaches to legal reasoning and presents two examples of doing comparative criminal law by comparing common law and civil law approaches to attempt liability and then exploring mens rea, with an emphasis on the differences between the continental mental state of dolus eventualis and the Anglo-American mental state of recklessness.
Markus D. Dubber
Criminal law occupies an odd position in the field of comparative jurisprudence. Historically speaking, one can occasionally read that comparative law as a serious academic discipline began as comparative criminal law, either in Germany or in France, or both. And yet, introductions to comparative law tend to assume that comparative law means comparative civil law first and foremost. The first section of this chapter describes criminal law’s parochialism. The second section discusses the histories and functions of comparative criminal law. The third section discusses selected topics in comparative law, such as punishment theory, victims, jurisdiction, the principle of legality, the an analysis of criminal liability, and general principles of criminal liability. The last section discusses comparative criminal law in context, arguing that comparative criminal law is best seen as a mode of critical analysis of law, that is, as one way to gain critical distance from a given legal system by placing it within a larger context.
This chapter compares U.S. plea bargaining with plea-bargaining-type procedures and penal orders in Continental Europe, with reference to Switzerland, Germany, and France. It first considers consensual criminal procedures across jurisdictions and why they exist, focusing on plea bargaining in the U.S. criminal justice system and abbreviated trial procedures in European civil law systems. It then examines the extent to which abbreviated trial procedures in civil law systems differ from plea bargaining in the U.S. system, the problems inherent in consensual criminal procedures, and the question of whether there are any solutions. In particular, it explains how plea bargaining and penal orders may lead to wrongful convictions. Finally, it discusses prospects for reform of plea bargaining in the United States and in civil law systems in Europe.
James G. Stewart
This chapter examines complicity within the framework of criminal law and theory and outlines recurrent normative problems as well as solutions. It considers structural questions that inform accomplice liability in different criminal systems, such as the mode of participation and whether complicity should be treated as an inchoate offense comparable to attempt or a separate crime. It looks at the unitary theory of perpetration and the conduct required to establish accomplice liability, including actions or omissions, practical assistance, or moral encouragement. It then evaluates the nature and extent of derivative liability, the dilemma presented by causation, and substantial and de minimis contributions by an accomplice. It describes the various static and dynamic mental elements that are often assigned to the concept of complicity and explains how a comparative approach can shed light on blind spots in various schools of thought about complicity, including whether it should be distinct from perpetration.
This chapter considers the various philosophical underpinnings of victim involvement in the criminal justice processes of common law jurisdictions. It first examines the role of the victim in criminal justice processes, focusing on an individualized and private conception of the victim instead of the public interest and public harm as defined by these actors rather than themselves, as well as conceiving the victim as part of the public interest. It then discusses various types of victim participation in criminal justice processes before proceeding with an analysis of the relationship between victims and the actors of criminal justice processes, namely, law enforcement (police and prosecutors) and defendants. The article also proposes a theoretical framework that enables a pluralistic view of victim participation and concludes by highlighting how the foundation and conception of victim involvement can affect the relationship among victims, prosecutors, and the defendant.
This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh accusations and forensic laboratory reports. It also explores the waiver and forfeiture of the confrontation right, a child’s testimony, and remote testimony as well as the extent of constitutionally protected impeachment before concluding with an analysis of the confrontation right in Europe.
Contemporary criminal law is best understood as a species of constitutional reflection. This chapter begins by considering the way in which substantive criminal law has become a laboratory for the constitutional – a site for reflection on central constitutional themes, including sovereignty and state violence; the anthropology of the legal subject; the rule of proportionality; and the relationship between judgment, discretion, and mercy. It then explores how issues that have long troubled the criminal law have translated into a constitutional register, examining constitutional debates surrounding the limits of the criminal law, requirements for fault, the structure of criminal defences, and standards for punishment. Ultimately, the chapter identifies a challenging irony: that despite this shift in the imaginative relationship between criminal law and the larger legal structure, whereby criminal law has been tethered to questions of constitutional justice, much criminal justice is still left to be done in spite of the law.