Amber Marks, Ben Bowling, and Colman Keenan
This chapter examines how forensic science and technology are reshaping crime investigation, prosecution, and the administration of criminal justice. It highlights the profound effect of new scientific techniques, data collection devices, and mathematical analysis on the traditional criminal justice system. These blur procedural boundaries that have hitherto been central, while automating and procedurally compressing the entire criminal justice process. Technological innovation has also resulted in mass surveillance and eroded ‘double jeopardy’ protections due to scientific advances that enable the revisiting of conclusions reached long ago. These innovations point towards a system of ‘automatic justice’ that minimizes human agency and undercut traditional due process safeguards that have hitherto been central to the criminal justice model. To rebalance the relationship between state and citizen in a system of automatic criminal justice, we may need to accept the limitations of the existing criminal procedure framework and deploy privacy and data protection law.
Article 2(4) of the UN Charter prohibits the use of force between States. In so doing, it addresses itself to a strictly interstate context and does not speak to the phenomenon of uses of force by non-state actors (NSAs). The question examined in this chapter is whether the exception to that prohibition—the right to use force in self-defence—is nevertheless responsive to the war-making capacity of NSAs. Otherwise put, is the definition of ‘armed attack’ in Article 51 of the UN Charter (and related customary international law) conditioned on the attacker being a state? In exploring this question, the chapter considers whether attribution is a necessary condition (in ratione personae terms) for the applicability of Article 51 by assessing the language of the Charter (including its travaux préparatoires), jurisprudence of the International Court of Justice, and state practice.
Wesley G. Skogan
This article deals with the dynamics of macro- and micro-level crime. It is followed by the description of crime trends and reviews research on the factors associated with its rise and decline. The discussion concerns six categories, namely, demography and economic conditions; policing and incarceration; drugs, guns, and gangs; community and environmental factors; lifestyle and culture; and crime reporting and recording. The goal of this review is to provide an insight into the literature on crime trends. This article also discusses what is known and what needs to be known about the reasons for crime going up and down, and highlights some of the issues faced by those who take up the challenge. It discusses the factors associated with trends in crime and the technical issues involved and addresses their impact, and cross-national significance.
Sean D. Murphy
This chapter focuses on the International Criminal Court’s jurisdiction over the crime of aggression. The discussion provides background to the crime of aggression and the resulting criminal accountability of the guilty party, paying particular attention to UN General Assembly’s adoption in 1974 of a resolution addressing aggression by states rather than the crimes of individuals and is designed as guidance for the Security Council when considering whether an act is one of ‘aggression’. The chapter examines the amendments to the ICC Rome Statute defining ‘act of aggression’ and ‘crime of aggression’ adopted at the ICC Review Conference in Kampala, Uganda, in 2010. It also discusses the uncertainties and ambiguities in the process for activating ICC jurisdiction over the crime of aggression. It considers the possible institutional effects of such jurisdiction on the UN Security Council and the ICC itself, as well as its long-term consequences for the jus ad bellum.
Crime, Security, and Information Communication Technologies: The Changing Cybersecurity Threat Landscape and its Implications for Regulation and Policing
David S. Wall
Networked digital technologies have transformed crime to a point that ‘cybercrime’ is here to stay. In the future, society will be forced to respond to a broad variety of networked crimes that will increase both the complexity of crime investigation and prevention, whilst also deepening the regulative challenges. As cybercrime has become an inescapable feature of the Internet landscape, constructive management and system development to mitigate cybercrime threats and harms are imperatives. This chapter explores the changing cybersecurity threat landscape and its implications for regulation and policing. It considers how networked and digital technologies have affected society and crime; it identifies how the cybersecurity threat and crime landscape have changed and considers how digital technologies affect our ability to regulate them. It also suggests how we might understand cybercrime before outlining both the technological developments that will drive future cybercrime and also the consequences of failing to respond to those changes.
Anthony Bottoms and Andrew Von Hirsch
This article opens with the consequentialist–deontologist debate, with the former concerned about the relevance of punitive measures against their crime reducing potentials, while the latter highlights punishment as censure of wrongful acts and the proportion of the punishment to the degree of crime. The article briefly discusses the empirical research on the impact of penal sanctions and focuses on three main kinds of empirical research into possible general deterrent effects—namely, association studies, quasi-experimental studies, and contextual and perceptual studies. It addresses the methodological issues involved in deterrence research and summarizes the results precisely. This article also discusses reductivism in the view of the possibility that penal sanctions could influence the offender's will. The results suggest that crime preventive aims can justify sentencing policies only to a limited degree, at least for the foreseeable future.
Scholars coming afresh to the study of criminal law are indeed fortunate. Over the last twenty years, important and sophisticated new theoretical approaches have evolved, and much new theoretical life has been breathed into more traditional approaches, to their mutual benefit. This article attempts to convey a flavour of these developments, with a different overarching theme: over-ambition and (all-too-often) under-achievement on the part of those who believe the task of ‘theory’ is to give very detailed and definite shape to the ‘universalizable’ part of the criminal law. It may be possible to devise a set of simplified and general universalizable maxims of criminal liability, to which all States could be urged to adhere in their criminal codes and case law. Beyond the formulation of such simplified maxims, however, richness and diversity in criminal law theory should go hand in hand with richness and diversity in criminal law doctrine. Whatever the strength of the case for, say, a uniform commercial law code, the belief that there needs to be a uniform criminal code is founded on theoretical error as well as political naivety.
This article discusses the origins of the criminal process approach, models of the criminal process, the evolution of criminal process scholarship, contemporary criminal process scholarship, and the future of criminal process scholarship. Criminal process scholarship will survive as an inevitable by-product of the need to understand criminal justice in all its complexities. Nevertheless, it will not thrive without some significant changes. It must first regain its sense of identity through scholarship that examines the entire criminal process. There is also a need to develop new theories or models of the criminal process, both to focus criminal process scholarship and to make sense of its expanded vision.
Jacqueline Hodgson and Andrew Roberts
This article deals with one aspect of imparting criminal justice in the context of various objective and subjective determiners. It provides some indication of the breadth, quality, and value of the empirical research work that has been conducted in this area of the law. It considers the pervasive influence of two broad issues—efficiency and security—on decision-making in criminal justice systems across various jurisdictions. It illustrates the contingent nature of the criminal process and discusses the social and political issues, the institutions of the criminal justice system, legal doctrine, policies, and working practices which are the product of complex reflexive relationships. The frame includes the subjective aspects of the decision-maker, his behavioral subjectivity and the prism through which he perceives the matter at hand. This article ends by suggesting a pressing need for empirical research that reveals how policy and practice are influenced by these concepts.
Mariana Valverde and Pat O’Malley
This chapter examines the identity crisis that currently afflicts the field of criminology. Arguing that “criminology” must be viewed as a bundle of several distinct disciplines with separate (though often intertwined or at least connected) historical trajectories, it discusses four distinct criminological research traditions: the “psy” knowledges, empirical studies of criminal law/criminal justice, miserology, and the social construction of deviance/social interactionism. It begins with an overview of the psy knowledges of crime and criminality, followed by an assessment of the development of empirical social science research dealing with criminal law and criminal justice, the rise of miserology as a form of social science/social reform and contemporary miserological writings, and the symbolic interactionism of the 1960s that gave rise to the tradition of social construction of deviance.
This article focuses on recent sociological work on developments in crime and crime control. It considers, in particular, the ways in which concern about different types of unacceptable behaviour is affected by changes in political and geographical boundaries. It discusses trends in crime, criminal justice, and criminology, and the relationship between these and the changing role of the state in national and international crime control. The advantage of putting these topics together in this way is that it allows us to trace connections and see unexpected links. A major theme running through this article is the need to relate transformations in crime control to shifts in forms of governance. Another issue that links the various parts of this article is the central importance of the victim. The move to define crime from the point of view of the victim was originally encouraged by the development of victim surveys which were invented in an attempt to deal with criminology's long-standing problem of measuring the unknown ‘dark figure’ of crime. This instrument made it possible to count and document crime independently of the actions of law enforcement agencies. It is shown that victims have now become an ever more important focus for crime prevention and the criminal process in general, as well as serving as the justification and legitimation for new forms of global criminological expertise.
Jason M. Chin and Larysa Workewych
The CSI effect posits that exposure to television programs that portray forensic science (e.g., CSI: Crime Scene Investigation) can change the way jurors evaluate forensic evidence. We review (1) the theory behind the CSI effect; (2) the perception of the effect among legal actors; (3) the academic treatment of the effect; and, (4) how courts have dealt with the effect. We demonstrate that while legal actors do see the CSI effect as a serious issue, there is virtually no empirical evidence suggesting it is a real phenomenon. Moreover, many of the remedies employed by courts may do no more than introduce bias into juror decision-making or even trigger the CSI effect when it would not normally occur. We end with suggestions for the proper treatment of the CSI effect in courts and directions for future scholarly work.
The discussion here traces the emergence of the body of policy and rules now collected under the heading ‘EU criminal law’ from its historical multi-level origins to its present location in the EU’s Area of Freedom, Security and Justice, focusing on the developing legislative competence and significant reliance on the strategy of mutual recognition to achieve progress in this context. At the same time, it is necessary to consider how legislation and judicial activity in this field relates to the operational aspects of a number of EU criminal justice agencies, in particular OLAF, Europol, and Eurojust. However, questions remain concerning the identity and role of EU criminal law: whether it should be seen as a regional mechanism for the transnational control of human mobility, or whether it comprises a genuinely distinctive and new articulation of European values in criminal law and criminal justice.
Femininities and Masculinities: Looking Backward and Moving Forward In Criminal Legal Historical Gender Research
This chapter first reviews the foundational works and thinking that put the criminal legal history of gender on the academic map, setting an ambitious research agenda that remains inspirational. The second section explores the topic of fatal femininities and masculinities by considering how feminist scholars and masculinity researchers have shaped our analysis of men and women who murder intimates. The third section examines how historians, beginning in the 1970s, came to consider the enduring and historically variable contexts of the crime’s perpetration, policing, and punishment. The last section discusses American exceptionalism—among Western advanced democracies the most murderous, and the nation in which race is held out to explain its unique history of rape. The conclusion identifies the challenges that remain and the need to review researchers’ reliance on the now-standard intersectional model of gender analysis.
This chapter discusses the violence of constitutional law, as verified by American constitutional history. It seeks to illuminate the centrality of violence to American constitutional history, and in so doing, illuminate the shape and trajectory, the limits and possibilities, of American constitutional law in the present. Although nothing could be easier than to find epic examples of injustice in American constitutional history, the object is not to call out injustice as such but to illustrate the violence—justified or not—at the root of and in the continuing history of American constitutional law. Using the history of ongoing controversies in the American constitutional law of crime, the chapter makes the case for the ongoing violence of constitutional law.
This chapter explores the development of homicide law in England and the United States. It begins by arguing that homicide law plays an important role in vindicating victims and legitimizing a rule of law. It then exposes a transformation in the law’s conception of homicide from a crime of malicious killing to one of culpably causing a fatal result. This transformation reflected the influence of a utilitarian reform movement that evaluated all conduct in terms of its expected cost, rather than the motives or character of the actor. The chapter compares contemporary homicide law in England and the United States, and concludes that both continue to condition guilt on character judgments. This is particularly apparent in the English law of joint venture liability and in U.S. death penalty law.
This article presents the major philosophical issues within criminal law and their relationships to each other. It is concerned with legal punishment as the domain of criminal law. It begins with three theories of punishment namely, retributive, consequentialist, and threat-based. It further addresses the reasons for punishment and divides the answer into two parts. The first part deals with those things that are material to a person's deservingness of punishment. The second part deals with identifying those harms or wrongs that justify punishment of those who cause, attempt, or risk them. The article requires carrying out general normative theory and it must be consistent with the account of the criminal law. The article discusses liberal versus perfectionist theories and leaves several avenues open. Finally, it discusses criminal liability for omissions.
This chapter begins with discussions of the necessity of a counter-piracy legal regime; forms of contemporary piracy; and the applicable legal framework and its historical roots. It then analyzes the scope of counter-piracy enforcement powers and the legal regime governing the criminal prosecution of alleged pirates, which assumes a holistic approach that goes beyond the law of the sea.
Amanda M. Rose
This chapter examines issues relating to corporate governance in closely held corporations. It begins by describing the typical characteristics of closely held corporations, with particular emphasis on shareholder involvement in management, number of shareholders, share transfers, market for shares, and the broad spectrum of shareholders and applications. It then considers common governance issues and conflicts in closely held corporations and proceeds with a discussion of the governance framework for such corporations consisting of company law, model articles, articles of association, shareholder agreements, and corporate governance guidelines. It also explores the internal governance and management of closely held corporations, the governance of share transfer restrictions, and provisions for shareholder withdrawal and expulsion. The chapter concludes with an analysis of shareholder conflicts, especially oppression by majority shareholders and ex-post opportunism by minority shareholders, and how they are governed in closely held corporations.
This chapter examines the central issues for the justification of criminalization and punishment in the context of criminal law. Specifically, it considers whether there is a class of acts (or omissions) that warrants the use of the label of crime as appropriate. It initially discusses what kind of theory is suitable for grasping and grounding criminalization and punishment, focusing on three types of theory: ideal, situated, and political constructivist. Attention then turns to the central questions to be answered by theories of crime and punishment: what a crime is, what it means to be responsible for a crime, why it is necessary to respond to crime, who may respond to crime, how to respond to crime. Ideas such as retributivism, lex talionis, utilitarianism, and consequentialism are highlighted. The chapter also looks at some influential ways in which the justification of criminalization and punishment has been addressed in post-Enlightenment, occidental thought.