Sunday, July 12, 2015

Call for Papers - International Journal of Human Rights and Constitutional Studies

International Journal of Human Rights and Constitutional Studies

Call for Papers /Human Rights Protection, Human Rights Public Policies, Democracy and Governance

International Journal of Human Rights and Constitutional Studies (IJHRCS) is a journal based on an independent academic synergy of more than forty academics, experts in the field of human rights and governance from all over the world. Over the past two years it has foster the academic dialogue concerning all the modern subject of constitutional law and human rights protection from a global perspective. It had provided novel and original material in the fields of current economic and political crises, globalised democratic governance, human rights public policies, the theory and philosophy of rights, comparative constitutional law and methodology of law. The IJHRCS is an indexed by citation journal open especially to young researchers. 
International Journal of Human Rights and Constitutional Studies issues an open call to young academics and researchers on the following topics:

·       International constitutional law
·       International human rights protection
·       Comparative constitutional law
·       Constitutional theory and policy
·       Theory of rights
·       Philosophy of rights
·       Globalisation and governance
·       Constitutional rights, constitutional freedoms
·       Methodology of law
·       Constitutional politics
·       EU constitutionalisation
·       Migration and multiculturalism
·       Democratic deficit theory
·       Political parties and elections
·       Digital participation, e-democracy, e-governance

Information on the IJHRCS as well as guidelines for authors and submissions can be found in:

For information and questions you can contact the Chief Editor of the Journal at (Ms Christina Akrivopoulou, PhD Constitutional Law AUTH, Greek Refugee Appeals Authority)

Monday, August 18, 2014

Ferguson, Gaza and the Language of Criminal Justice

It's been a long, bloody summer for the news. From Islamic State's campaign through Syria and Iraq, to the recent flare-up of Israel/Gaza hostilities, to the disturbing cycle of unrest and repression on the streets of Ferguson, Missouri, chaos and bloodshed are never far from our screens. For me, this summer has been a long series of recourses to criminal justice language as a means to understand what's going on in the world, whether in the news or just in my own head: Israel and Hamas's mutual allegations of war crimes against one another; Islamic State's brutal persecution of non-Sunni's as a crime against humanity.

But what about Ferguson? The repressive and militarised actions of the police (as I write, the National Guard are being brought in) are being broadly compared to the bad old days of the Civil Rights Movement, but the first analogy that came to my mind was apartheid.

I raise all of this not so much as a condemnation of IS, Israel, Hamas and/or the state of Missouri, as a rumination upon the rhetorical value of criminal labels. Because of the heinous nature of the acts they signify, crimes carry a considerable normative weight, and bring with them a long history of condemnation and rejection. Labels such as 'murder' and 'rape' carry considerable moral force, above and beyond similar but less-entrenched labels ('manslaughter' and 'assault by penetration', for instance). And the same is undoubtedly true of the international arena. International crimes, it has long been said, make the criminal hostes humani generis: the enemy of all humankind.

But whilst the rhetorical nature of criminal labels does tend to cause them to be bandied about rather loosely in public discourse, there's also a countervailing trend towards minimising the use of such language. The argument runs that, if we throw around labels like 'war criminal' and 'genocidaire' loosely, then we cheapen their essential meaning. If everything is genocide, then nothing is.

This can have profound consequences for the law, incidentally. It's probably why women cannot rape under English law. They can commit a crime with an equivalent maximum sentence, assault by penetration, but the idea of rape is so inherently phallocentric in the minds of English legislators that the idea of rape without penis is anathema. If we open up the idea of rape to female-perpetrated defilements, then we somehow loosen its meaning. It's the exact same opposition that the equal marriage campaign ran into, albeit with different shadings of institutional prejudice: if gays can marry then the institution of marriage becomes meaningless, because marriage has always been between man and woman. But is it similarly nonsensical argumentum ad antiquitatum to argue against applying labels like 'war crime' and 'apartheid' to individual acts of aggression and repression?

That's the nature of my issue regarding Ferguson in particular. Isolated from the shooting of Michael Brown by distance, culture, and a healthy dose of white privilege, but connected to it by the internet's outrage, it's easy to see both sides of the argument. On the one hand, the USA in general, and Missouri in particular, are not Apartheid South Africa. Totalitarian in their commitment to democracy and free-market capitalism, maybe, but not to (explicit) racial prejudice. It seems unfair to dismiss the state (and the States) as the equivalent of pre-Mandela South Africa, even after events like the shooting of Brown, or Trayvon Martin, or the one before that, or the one before that.

But then, that's the counterpoint, isn't it? This keeps happening, across the supposedly post-Civil Rights nations of the West - remember what sparked the 2011 riots across the UK? Racial segregation is kept alive and well by socioeconomic inequality and deeply-ingrained institutional racism. One does not need a criminal State to see State crimes cropping up. One does not need an apartheid regime to see acts of segregation. So how are we to determine when it's appropriate to use narrow legal language in broader political discussion?

Ultimately, as ever, the answer probably lies somewhere between the two extremes of absolute fidelity to the narrow legal definitions of crimes, and absolute pursuit of their broader rhetorical value. In his excellent book, The Idea of Justice (2010), the economist-philosopher Amartya Sen rejects the idea of 'transcendentalism' about ideals like justice. It is utopian to imagine the perfectly just society. We can never get there. But that shouldn't stop us from using utopia as a benchmark with which to compare systems, and to adopt policies and approaches that take us closer to it. I think a similar point can be made about the language of criminal justice.

We should always be restrained about using legal terms of art in non-legal discussions. It can colour discourse and lead to manifest injustices, particularly when the pursuit of justice is subject to the norms of public discourse. Consider the bungling of the investigation of (baffling) national treasure Cliff Richard - the concerns that have been raised over the due process of his investigation for child sex offences by the leaking of details of the searching of his home.

But, at the same time, we should be aware of atrocity, even if it is a one-off, even if it falls below the legal threshold. A state approaching apartheid is still awful, despite the fact that it breaks no (international) laws. Ferguson is still shocking and disturbing, not least because it could quite easily happen in my own country. The flipside of the narrowness of legal definitions is the mythological character with which they imbue offences. I could never be a murderer, a sex offender, a genocidaire, because I live in a stable, ordered, and fair society. My state is not apartheid, so it must never problematically segregate. False absolutism favours blinkered vision and represses dissent. And that, as in Ferguson, can lead to palpable inhumanity.

Friday, July 25, 2014

In Memoriam: Dan Markel

I was shocked today to see that noted criminal justice scholar Dan Markel of Florida State University was killed over the weekend. His death is sending shockwaves through the US jurisprudence community, with an outpouring of support and condolences being to the blog he chaired, PrawfsBlawg.

Dan Markel was unquestionably American in his belief in liberal democracy and the freedom of the individual. His passionate but logical writings on the meaning and content of retributive justice have been immensely influential on my own thinking, even if I could not follow him all the way.

For Prof. Markel, retribution was desirable because it enabled criminal justice to perform two key functions: firstly, to recognise the offender's autonomy; and secondly, to preserve the dignity of the State's subjects by contesting and condemning the crime's implicit message that the offender is somehow freer than her fellow-citizens. Retributivism, in other words, explicitly upholds the liberal ideal of human dignity, and the democratic ideal of equality under the rule of law. It rejected disproportionate and inhuman punishments, such as those that explicitly attempt to shame and degrade the offender (Markel, 2001).

Markel favoured a 'condemnatory conception of retribution' (Markel and Flanders, 2010) that treated punishment as an expression of communal outrage and public rejection of the act, if not the actor. Punishment therefore represented an objective, political deprivation of liberty, whose values are set by the State as a representative of the vox populi. Somewhat utopian in his depiction of democracy, he would undoubtedly hold that the weaknesses, corruption, and distortion of truth in modern western democracies in practice do not detract from the fact that they are the best representatives available of the body politic and their opinions.

I differed from him drastically in this and other aspects of his conception of retribution, but I can recognise their indisputable internal logic, and the commitment to principle evident in his approach. Throughout the few articles of his that I have read, it is clear that Markel favoured retribution in part as a defence of the individual from the awful power of the State, and perhaps of the collective as a whole.

In his contribution to a long-winded battle between him, Chad Flanders and David Gray on the one hand; and Adam Kolber, John Bronsteen, Christopher Buccafusco, and Johnathon Masur on the other, he was keen and quick to point out the dangers of interpreting punishment subjectively. Individual offenders' foibles could not diminish the voice of the democratic public, which communicates not just to the offender but to the polity as a whole. Moreover, penal systems should not be encouraged to become merchants of pain delivery, an exercise that brings the State into an enterprise difficult to distinguish from mere sadism, which is likely to propel the scope and reach of the penal system far beyong the minimum necessary level of intrusion. Speaking in terms of pain, he argued, we encourage sadistic punitiveness. By remaining abstract - some would say naive - we suppress and minimise the violent urge towards fundamental rights contravention, and remain at least somewhat pure. (Markel and Flanders 2010; Markel, Flanders and Gray 2011).

This partial description of his outlook is further weakened by the fact that I know nothing about Prof. Markel personally - since hearing the news of his death I have learnt that he was Jewish, and that he was laid to rest in accordance with his faith on Thursday 24th. I hope that it served as solace to his loved ones. But all I can say for sure is this:

Dan Markel was a penal theorist with whom I both agreed and disagreed wholeheartedly. He was clearly committed to justice as a philosophical ideal, and had an idea of how to approach that ideal in a fair, just and even-handed way. Whether he was right or wrong, I admire him for his clarity and his conviction, perhaps the most important virtues of any academic. We will miss him for these and, I'm sure, many other reasons, but regardless of our spiritual beliefs, we can take solace in the fact that his ideas live on in his writings. So long as that remains the case, so too does he.

Ave atque vale, Prof. Markel. Alav ha-shalom.


Markel, D. (2001), 'Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate' 54(6) Vanderbilt Law Review 2157-2242.

Markel, D. and Flanders, C. (2010), 'Bentham on Stilts: The Bare Relevance of Subjectivity to Criminal Justice' 98(3) California Law Review 907-988.

Markel, D., Flanders, C., and Gray, D. (2011), 'Beyond Experience: Getting Retributive Justice Right' 99(2) California Law Review 605-628.

Tuesday, June 10, 2014

Prison, Gender and Society - Frances Cook on Women's Imprisonment

This morning I read an interesting article from the Centre for Crime and Justice Studies, a trust established to promote penal minimism through criminal justice research. Frances Cook, head of the Howard League for Penal Reform (last seen on this blog when they successfully ruffled the MoJ's feathers by successfully branding the "Books for Prisoners" scandal), offered up a relatively brief argument for the abolition of imprisonment for women.

This was particularly interesting for me, as a criminal justice researcher and as a feminist by inclination, and Cook herself predicted from the outset that it would be the feminist overtures of her argument that would attract the most criticism from the more reactionary corners of the internet ("Misandry! Why women and not men!" etc. etc.). She made, in my opinion, the best case for doing so. Briefly, her stance is that women's imprisonment should be abolished because: (a) societal expectations of women are different from those of men; (b) women's experience of prison is different from men, and leads to greater incidence of self-harm rather than interpersonal violence; and (c) that it would be easier to abolish female imprisonment given the lower prison population (it's about 5-10% of the total: the latest available statistics show 3,912 women prisoners, compared with 81,316 men, as at June 6th 2014).

Friday, May 23, 2014

"Is it a parody? The Advocate-General’s opinion in the Deckmyn case"

As was expected, the Advocate-General’s opinion (not yet available in English) in the Deckmyn case was released this morning. This dispute involves interesting questions such as the interpretation of the parody copyright exception, the requirements attached thereto and its relationship with other fundamental rights. 

The provision concerned is Article 5(3)(k) of the Infosoc Directive which allows Member States to introduce an exception to the reproduction right (Article 2 of the Directive) and the right of communication to the public (Article 3 of the Directive) for the purpose of caricature, parody or pastiche.

As the English introduction of a parody exception is being currently delayed, along with the continuation of criticism surrounding the Infosoc directive, the AG’s opinion is very much welcome. Additionally, as Member States have the habit of tailoring copyright exceptions to their legal traditions, the AG’s opinion (despite its lack of binding effect) is a meaningful clarification of the meaning and scope of the parody exception at EU level and provides insight as to its interplay with other fundamental rights. 

On the EU Law Analysis blog, I was approached to provide a short analysis of this opinion and thought I might share it with the copyright lovers of our community.

Thursday, March 27, 2014

Cooking the Books? Anatomy of a Criminal Justice Scandal

Chris Grayling has consistently been one of the more controversial Ministers responsible for the criminal justice system in recent UK history. Certainly I've railed against him and his policies - particularly as regards the privatisation of probation and the slashing of legal aid budgets - in the past, both here on the blog and in a more personal capacity. So it is with some befuddled amusement that I have watched him and his Ministry being embroiled in a scandal over prisoners' access to books and other small packages from family members.

It's always difficult to predict whether something that comes to one's attention on social media will amount to a real political "scandal", of course, because one tends to see only the opinions of those people you are actively following, but there seems to be something qualitatively different about the debate between the MoJ and the usual array of penal practitioners and activists, which has drawn both popular opposition (a petition gathering 19,500 signatures in three days) as well as celebrity condemnations from big-name authors such as Mark Haddon, Philip Pullman and Ian Rankin, and the playwright Alan Bennett.

But why books? For one thing, the focus of the social media storm is largely on friends and relations sending in books when the actual ban (implemented in Prison Service Regulations last November) covers small parcels in general, preventing access to things as evocative as birthday and Christmas presents. And yet books have become the poster-child of the MoJ's discontents. At the same time, there are undoubtedly bigger issues in contemporary prisoners' rights, with legal aid for appellant prisoners being slashed and staffing reductions limiting the amount of time spent out of cells. Moreover, lest we forget, the prison population draws disproportionately from the disadvantaged sections of society, with estimates consistently suggesting that between a third and two-thirds of the prison population lack the literacy and numeracy skills expected of an 11-year-old. If so few prisoners can read, does the scale of the problem of access to books justify the response provoked?

There are a number of salient factors here, of course, some of which are:

  • Celebrity Vested Interests: Banning books means restricting prisoners from accessing authors. Renowned writers have a vested interest in joining the Howard League-led opposition, both in the cynical fiscal sense (although I doubt that anyone thinks it's much of an issue), but also in a more normative sense. To write is to communicate, after all, and to deprive an audience to the writer is to deprive them part of the reason why they do what they do.
  • Middle-Class Sensibilities and the Rhetorical Place of Books: A mainstream, middle-class audience can find it difficult to relate to marginalised populations, particular where (as with offenders) they are consistently demonised and othered in mass media and in political discourse. However, a campaign can reach that audience if it can give people something to rally behind, and books are a potent symbol of that. Relatively few social media users will ever rely on legal aid (much less as a prisoner) or encounter the Probation Service, but everybody using those media (which use words, after all) reads. So the deprivation of books is something they can empathise with as a real deprivation. We can see that in some of the symbolism and rhetoric of the backlash, with the hashtag #TheBookThief being borrowed from the popular book and film to demonise Grayling as, at best, a petty-minded misdemeanant, and at worst, a latter-day Nazi. This is not entirely a vindication of Godwin's Law ("Any sufficiently long argument on the internet will involve an analogy to Nazi Germany"), however, but more a recognition of the central symbolic role that the book plays in modern society as a symbol of knowledge, of access to enlightenment, and indeed to power, which is as much a cultural-historical point as a reflex invocation of Nazi book-burnings. Which brings us on to...
  • The Rhetoric of "Rehabilitation": This has been a key battleground in the debate between Grayling and the Howard League. For Grayling, it reflects his (inherited) commitment to a "rehabilitation revolution" in criminal justice. The slogan is invoked in support of a wide raft of controversial criminal justice reforms, and essentially alleges that the criminal justice system is far too ineffective at reducing reoffending, and that radical reform is needed to shake the dust out of the machinery. However, Frances Cook of the Howard League has stressed (and many of her celebrity backers have reiterated) that books can play a central role in the rehabilitative process, whether in terms of increasing knowledge, encouraging empathy, or just generally providing a way to enrich one's life.
This rhetorical point is what interests me first and foremost, because it demonstrates the ambiguity of the concept of "rehabilitation" (is it a process of individual change or a sociological measure of peaceful (or at least, non-problematic) return to society?) as it is deployed in political rhetoric. Usually, ambiguity like that can be used as a way of manufacturing consent - each side assumes you mean their interpretation of the concept regardless of what you yourself mean - as in the proliferation of the concept of "community" across a variety of contexts (policing, punishment, safety, healthcare...) through the 1990s to the present day. However, here it is interesting in that precisely that ambiguity is being contested. The Howard League reject the MoJ interpretation of "rehabilitation" as meaning "lowering the rate of reoffending". For them it is something more, something that carries a normative and not just an instrumental value - rehabilitation is helping somebody to better themselves and in so doing allowing them to avoid reoffending in the future.

In fine, in other words, the "Books for Prisoners" scandal isn't really about books at all, but reflects a contest at the level of ideas in criminal justice discourse. Books are merely a potent symbol of a broader disjuncture between what Grayling's ministry is trying to achieve and what practitioner and special-interest advocates consider to be important. It could well be that this comparatively small issue is only the first rumble that ends in an avalanche.

Thursday, February 20, 2014

"A Study on the Impact of Community Penalties" - Research Report

For my doctoral thesis, I've been examining the impact of community-based sentences on the day-to-day lives of offenders, especially in terms of the effect of the relationships between offenders and their Probation Service supervisors. In pursuit of this I conducted a series of interviews with probation officers and their clients between July 2013 and February 2014. 
As part of their agreement to take part, participants were offered the opportunity to receive a Research Report, summarising the findings of the study in what I hope is an accessible and easy to understand way. As I'm writing this, the Report is about to go to print and will be distributed to them in due course, but I also wanted to provide a soft copy of it, in case of loss of printed versions, or indeed if they want to share the findings with anyone else. Potentially, the results may interest some of our regular readers as well, so I hope they'll forgive my imposition in posting the document here!

To that end, a copy of the Report can be found at the following link:

Wednesday, January 29, 2014

ECHR long term future consultation

The Council of Europe recently issued an open call for information, proposals and views on the issue of the longer-term reform of the system of the European Convention on Human Rights and the European Court of Human Rights. As part of my research I have been looking at the application of the Convention to military operations at home and abroad and submitted this brief proposal to the committee suggesting they examine the ECHR's current scheme on derogations from the Convention. 

A proposal to amend Article 15

The ECtHR has historically adjudicated upon human rights abuses which have occurred in the context of military operations. Events in Northern Ireland, South-East Turkey and Chechnya have occupied a great deal of the ECtHR’s time. Recent judgments defining the ECtHR’s Article 1 jurisdiction have cleared the path for the ECtHR to also adjudicate on human rights abuses occurring in the context of extra-territorial military operations.[1] This is likely to be a significant growth area in the ECtHR’s case law because contracting States have extensive troop deployments throughout the world and recent judgments raise the possibility of human rights claims arising from both the soldiers of contracting States and citizens of third States. While Convention obligations are well suited to apply in functioning legal systems within contracting States, outside of this context guaranteeing Convention obligations for both soldiers and others within the jurisdiction of contracting States is extremely difficult. As such, this development also poses a future challenge to the enjoyment of Convention rights.

The procedural obligation in Article 2 provides a good example of the problems this development will likely create. Article 2 obliges States to investigate once a death or life threatening injury is brought to their attention.[2] However, in the context of extra-territorial military operations an automatic investigation into every use of force by State agents or third parties is not feasible and not every death can or should be subject to the review process normally associated with the application of peacetime human rights norms.[3] Further, as deployed forces lack the same level of institutional support that domestic civilian authorities enjoy, they will struggle to ensure Convention obligations governing investigations are upheld. Ensuring the independence of investigators from soldiers, prompt and transparent investigations, even basic measures on securing evidence may prove extremely difficult in the context of extra-territorial military operations. Cases testing these issues are already coming before the ECtHR.[4]

Further problems may arise because the ECtHR has avoided resolving conflicts arising from the co-application of human rights law and international humanitarian law.[5] Potential conflicts are particularly apparent in the context of security detention/ internment,[6] but could equally arise in the context of Article 2. IHL may, for example, permit a State to legally intern or kill a person during the course of a military operation in circumstances where Articles 2 and 5 of the Convention would not permit them to. Such conflicts are inherently complex and a preferable solution would be for States to avoid them through derogation, as States which have resorted to internment have done in the past. The problem is that the Convention’s current apparatus for derogation is ill-suited to extra-territorial contexts. Where derogations have historically been limited to sections of contracting States, such as Northern Ireland, the nature of extra-territorial jurisdiction makes derogations along similar lines difficult. Some authors have doubts over whether extra-territorial derogations are even possible in principle.[7] Any extra-territorial derogation would only be possible to the extent that the State exercised extra-territorial jurisdiction.[8] Territorially limited derogations would be of little use as extra-territorial jurisdiction is seldom actually based on territorial control and more typically derives from personal or State agent forms of jurisdiction. Admittedly, State practice in this area has been lacking, but that is because States have typically focused on denying they were exercising any jurisdiction at all in these extra-territorial contexts. As that defence becomes increasingly untenable, we are likely to see a change of policy toward derogations.

Aside to the jurisdictional problem created by the prospect of extra-territorial derogations, the current pre-conditions governing whether a valid derogation can be made also create problems extra-territorially. Article 15 stipulates that the power to derogate may only be exercised in time of war or other public emergency threatening the life of the nation seeking to derogate. However, it is difficult to see how the armed forces of contracting States currently deployed overseas would be able to establish a threat to the life of their own nation sufficient to justify derogation.[9] This is despite the fact that those armed forces may face an emergency situation of far greater magnitude than one which would have satisfied the ECHR criterion had it occurred within the territory of a contracting State.

Furthermore, there is a latent ambiguity concerning the ability of States to derogate from Article 2 for lawful acts of war under Article 15, which should be addressed. The meaning of the term war in this context has been criticised for being imprecise and unclear.[10] It is particularly unclear whether the term encompasses non-international armed conflicts (NIAC) or just international armed conflicts.[11] The ambiguity arises because Article 2 was clearly intended to apply during NIACs within a contracting State. The State should be able to derogate for acts which are lawful under either the law governing international armed conflicts or NIACs.

The committee should therefore consider amendments to Article 15 in order to

1. Facilitate derogations encompassing both personal and territorial forms of extra-territorial jurisdiction, possibly by permitting derogations over mission groups.

2. Modify the pre-conditions governing derogations so that extra-territorial derogations do not have to satisfy the threat to the life of the nation criterion.

3. Permit derogations from Article 2 for lawful acts in the context of either international or non-international armed conflicts.

[1] Al-Skeini and Ors. v United Kingdom (2011) 53 EHRR 18.
[2] Ergi v Turkey (2001) 32 EHRR 18 at [82].
[3] Kenneth Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict’ (2004) 98 American Journal of International Law 1 32-33; See also Jacob Turkel, The Public Commission to Examine the Maritime Incident of 31 May 2010: Second Report: Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law (2013) 100-103.
[4] See, for example, Jaloud v Netherlands (App. No. 47708/08) communicated 6 December 2011 and Al-Skeini v UK supra n.1.
[5] Françoise Hampson, ‘Is Human Rights Law of any Relevance to Military Operations in Afghanistan?’ in Michael Schmitt (ed), The war in Afghanistan: A Legal Analysis (Government Printing Office 2009) 495
[6] Al-Jedda v United Kingdom (2011) 53 EHRR 23.
[7] Heike Krieger, ‘After Al-Jedda: Detention, Derogation, and an Enduring Dilemma’ (2011) 50 Military Law and the Law of War Review 419, 435.
[8] Bankovic and Others v Belgium and Others (2007) 44 EHRR SE5 at [60].
[9] R. (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58 at [38].
[10] Ronald MacDonald, ‘Derogations under Article 15 of the European Convention on Human Rights’ (1998) 36 Columbia Journal of Transnational Law 225, 235; Mohamed El Zeidy, ‘The ECHR and States of Emergency: Article 15 - A Domestic Power of Derogation from Human Rights Obligations’ (2003) 4 San Diego International Law Journal 277, 283.
[11] Joan Fitzpatrick, Human Rights in Crisis: The International System for Protecting Human Rights During States of Emergency (University of Pennsylvania Press 1994) 57; Louise Doswald-Beck, ‘The right to life in armed conflict: does international humanitarian law provide all the answers?’ (2006) 88 International Review of the Red Cross 881, 882. 

Wednesday, January 08, 2014

Criminal Justice on Strike - History Repeats Itself as Farce?

Criminal justice is a funny beast, in any number of ways. So too is studying it, I guess. Your mileage may vary, but having gone through the process of (academic but not professional) legal education, I know a lot of people on social media who now work in the legal profession - and the bulk of those with whom I'm in regular contact are in the Bar. So I was inundated with solidarity statuses and approving links to coverage of Monday's protests and walkouts by legal aid barristers and other criminal case workers across England and Wales in response to Ministry of Justice plans to slash legal aid spending to ensure its 'sustainability'. This outpouring of support and recognition of the dangers of pared-down State support for criminal representation is surely a drop in the water in objective terms -- after all, a lot of the striking criminal justice personnel recognised the difficulty they faced in shaking off the "lawyers are all unbelievably wealthy and drive magnificent sports cars" stereotype that overshadows a persistent and increasing resistance to attempts to cut legal aid in the past.

But the volume of posts and news articles was still massively greater than the similar strike action of probation staff back in January, even though my Twitter feed is stuffed with criminal justice academics. This is probably because of the comparative invisibility of the Probation Service in the mass media and in the general public imagination. I'm about to start teaching on a criminal justice course where a large minority - sometimes a majority - of the attending undergraduates don't know who the probation service actually are coming in. Which is odd given how politically contested and media saturated the criminal justice system has become.

The purpose of today's blog, however, is not to document this selective attention to the criminal justice system by mass media, but to ask a rather more significant question about the Bar's historic decision to walk out on trial work (the Criminal Bar Association has been at pains to call this a 'strike', as they're not a trade union per se - but let's call a spade a spade): why stage a protest in the first place? Or, to be more precise, what's the point of the Bar - or indeed, the probation service, or any other criminal justice agency - going on strike?

Tuesday, December 17, 2013

Mandela: some thoughts

How should we appraise the life of Nelson Mandela?

His passing almost two weeks ago has led to much inevitable reminiscing on his achievements, his personality, and what his legacy should be.  This has been necessary, I feel - not only so that we remember Mandela's life and his principles, but also so that we might learn something that we can pass on to successive generations.

It seems shocking, thinking about it now, that while I was growing up, South Africa was divided along racial lines, with that divide concreted in law.  I can still remember watching Mandela's release on TV, but was unable to appreciate the momentousness of the occasion.  The rest, as they say, is history: Mandela negotiated with De Klerk's twilight apartheid government for democracy, defined equality for all, regardless of race.  In so doing he assuaged fears about revenge attacks by the black population and facilitated a peaceful(ish) transition, embodying an authority figure that (almost) all South Africans felt they could get behind; he united a deeply divided country.  Upon being elected as the first black President of South Africa in 1994, Mandela could probably have legitimately kept the position for life but, true to his democratic principles, he served a single term, stepping down in 1999 aged 80.  Mandela remained busy even in retirement, overseeing charitable work that benefited impoverished children and raised awareness about the taboo subject of AIDs.  In more recent years, Mandela had stepped out of the limelight, his health faltering. But we were placated as long as we knew he was still with us; I don't think we realised how much we valued him until December 5th.

Mandela the man

What is it about Mandela that made him the man he was, that today has caused such an outpouring of grief, paired with a jubilant celebration of his life?  A few moments come to mind that I think capture some of the essence of the man.  For instance, his "an ideal for which I am prepared to die" speech at the conclusion of the Rivonia trial, where he essentially passed up the opportunity of a legal defence in order to make a speech that could have made him a martyr for his cause.  As it was, it made him a champion, a figurehead, of the anti-apartheid movement, and helped to keep his memory alive during his long years in prison.  Then there is the humanity he showed to his jailers, with whom he built up a rapport rather than a sense of vengeance and injustice (which he no doubt felt).  While in jail he studied Afrikaans (to the shock of some of his fellow inmates), so that he could reason with white South Africans in their own language and understand them better.  

Another moment might be the time that he rejected the offer of a conditional release in 1985, reasoning that he did not want to be free from jail until he could also be free in his own country.  What kind of strength and dedication does it take for a man to turn down his freedom, after so many years?  

There is his handing the Rugby World Cup to Francois Pienaar in 1995, thereby embracing the sport that was regarded as being confined to whites, and embracing its supporters in so doing.  And there is his role in setting up the Truth and Reconciliation Commission (see this post by Prof Schabas), which provided the basis of a peaceful society.

And perhaps most important of all was his humanity.  He didn't always get things right, and was very open about the fact; he recognised that he was "not a saint" ("unless you think of a saint as a sinner who keeps on trying) and was humble about his achievements.  Perhaps he was right about this, as he only sought to strive for the right thing, for equality and democracy.  These are ideals that, really, should not be so special: they should be counted as a given.  And it is important to give credit to others who helped to unravel apartheid: FW De Klerk, for instance, Walter Sisulu, and Archbishop Tutu, to name just a few of the key players. 

Mandela had more than his fair share of tragedies, too, from such as the death of his first in a motorcycle crash while he was in prison, his separation from Winnie in 1994, and the tragic death of his great-granddaughter in 2010.  


Many point to the negative aspects of Mandela's life, and it is right that they should: the man would expect no less. 

The obvious sticking point is the ANC's use of violence, spearheaded by Mandela as head of MK, the ANC's military wing. It is something that must strike a chord of discomfort amongst Mandela supporters, and something of which there are no easy answers.  Mandela claimed the acts of sabotage carried out in the early 60s were necessary as a last resort, and only after years of passive resistance had gone unheeded by the apartheid government.  Whether the fact that the actions were aimed against a serious crime that was being perpetuated, or that Mandela advocated only attacks against military targets (with casualties to be avoided), I'm not sure - but there is a case to be made for the action being legitimate under international (humanitarian) law.  Prior to his imprisonment, the only victims of MK's attacks were insurgents.  Civilian casualties did increase through the 80s, when interracial violence peaked, but it seems hard to pinpoint the blame on an incarcerated Mandela, who deeply regretted the casualties (the same cannot be said of Winnie Mandela, who encouraged much of the violence throughout the 80s and even afterwards - this being part of the reason that a separation was necessary).

Mandela's role in the 1994 Shell House massacre is also something that may need to be looked at.

Others cite his military spending during his presidency, and his friendship with African dictators such as Gadaffi and Mugabe.  Military spending is an integral part of any government, of course, and we should be careful about confusing Mandela the pacifist with Mandela the politician - two roles that would not always be reconcilable.  His failure to criticise dictators is perhaps more disappointing, especially after his promise to place human rights at the centre of the new South Africa.  But see this post by Mark Kersten on the benefits his embracing political outcasts.


Now that Mandela is gone, what has been left behind?  Those who saw last week's fiery Question Time, broadcast from Johannesburg, will be left in no doubt at the tricky situation that Africa still has to overcome. Certain recent events, such as last year's Marikana massacre, will heighten concerns (I do wonder if Mandela ever found about this - if he had, it would no doubt have broken his ageing heart).  These questions aren't for me to answer.  But South Africa owes it to Mandela's legacy to see to it that the ongoing transition is carried out peacefully, and that the lessons he has left are never forgotten.

Finally, of course, I'd be interested for your thoughts on any of this.

Friday, November 08, 2013

Collaborating with the Enemy? Co-Authorship and the Academic Hopeful

As a Ph. D. you tend to get a lot of advice thrown at you about what to do to get an academic job - that's been my experience, anyway. One question in particular that comes up time and again are publications: should you step away from the thesis and write an independent article? Would it be okay to take a slice out of your literature review and turn that into something publishable? Can you afford the time away from the library/field/bed at all?

The best advice I've heard has probably been that the thesis has to come first: you worry about getting your hands on the lily before you try to gild it, I guess. The second thing is getting it done in a relatively brief amount of time - three years usually being the holy grail. After that, everything else in moderation - teaching, attending conferences, and getting publications out there - as long as you have ticks in each box, you're on the right track (NOTE: actually experienced people giving proper job advice here)

Tuesday, November 05, 2013

On Tom Hanks and Moral Ambiguity


If you haven't yet, do make sure you catch Captain Phillips at the cinema before it sails away... Tom Hanks in exceptional form (easily his best performance since Turner and Hooch), with a film-stealing final scene, and his Somali counterparts (all played by previously unknown Somali actors) are equally as compelling and convincing.

The main draw, though, is how the real-life events* are portrayed.  Rather than portray the episode as a straightforward telling of good ship captain versus evil pirates, the film is rife with moral ambiguity.  It's a curious film that leaves you wondering who the real victims are, and eschews any since of victory.

Monday, November 04, 2013

Omissions Standards - Criminal Law, Complicity and Child Abuse

In an interview with the BBC, ex-Director of Public Prosecutions Keir Starmer has called for the creation of a criminal offence for teachers and other professionals in childcare positions who do not report suspicions of child abuse to the authority. Starmer's comments come after a long string of high-profile allegations of prolific child abuse by former celebrities - notably the TV presenter Jimmy Savile - as well as an historical backdrop of reluctance of childcare professionals to come forwards. Starmer stated that he expects the imposition of a criminal penalty - which could involve imprisonment - for failure to comply to "focus peoples' minds" on addressing the problem of child abuse within the UK.

The call to encapsulate a 'mandatory reporting' duty in the criminal law raises a whole host of questions, some of which I want to explore here. Firstly, though, it is noteworthy that Starmer's statements come in the face of government opposition, so it is unlikely that we are talking about more than a mere hypothetical for the time being. Rampant criminalisation of socially deviant activity was, to be fair, far more of an issue during the New Labour years, with some 3,600 new offences being put into the statute books between 1997 and 2010. Still, it's an interesting possibility, since the idea of mandatory reporting for child abuse throws up a lot of sociopolitical, legal and emotional ramifications.

Tuesday, October 29, 2013

The Right to Vote and Distant Social Groups

At a time when voter turnout is seen by many as depressingly low, and when the political meaning of the act of voting is being ever more frequently called into question, I read with interest a story about an attempt to make it easier for a fairly marginalised group of individuals to vote in UK general elections: expatriates.

I should probably declare an interest at this point: although I have always been a British citizen, I was born and raised overseas until the age of nine. My parents were driven overseas, amongst other things, by the Poll Tax, but always intended to return. Lo and behold, they did, and the rest is history.

However, the easing of the voting process for British expatriates is likely directed at a far larger proportion of British emigrées: those retiring overseas. As a result of many factors, including relatively limited teaching of foreign languages in British schools, the British workforce tends to be relatively immobile within the EU and the wider world. However, we have a grand tradition of emigration into the wider world on retirement, notably to the warmer climes of Spain and Cyprus. There are a number of consequences of this - most notably the high rate of net migration into the UK (Ibid.) and the high levels of anti-immigrant popular sentiment that follow from that.

Today, however, I want to draw a parallel between the attempts of the Coalition government to enfranchise a group of British citizens who are nearly totally excluded from the ballot (this Telegraph article gathers evidence to suggest that only 20,000 of the 4.7-5.5 million British expatriates are registered to vote, and that attempts to enrol expatriates are 99% unsuccessful) and another group that has been more systematically excluded: prisoners.

Let us leave Britain's international legal obligations to reverse its arbitrary exclusion of the incarcerated population (Application No. 74025/01 Hirst v United Kingdom (No. 2), 6th October 2005) to one side for the moment. We should also leave aside the penal theory for one moment as well, although it is worth observing in passing that enfranchisement of prisoners is an effective tool in the rehabilitative arsenal (see Sauvé v Canada (Chief Electoral Officer) 2002 SCC 68; Minister for Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders 2004 (5) BCLR 445 (CC)). Rather, let's talk about the underlying policy imperatives that influence the arguments to extend the franchise to these groups.

Whilst it is by no means true in every case, both groups in question - expatriates and prisoners - generally are British citizens, assuming they were at the point of emigration/incarceration.  This is worth restating in the case of prisoners - they remain citizens. To return to an old penal law chestnut, one is sent to prison as punishment, not for punishment. It is the deprivation of one's liberty that is the punishment, and any additional suffering ought to be judicially sanctioned - hence the argument of the majority in Hirst: prisoners' franchise is arbitrarily denied to all prisoners regardless of their offence or their circumstances, whilst it is generally retained by all non-incarcerated offenders.

The point is, both groups remain attached to broader British society, but whether voluntarily or by force, they have been distanced from it. They are likely to self-identify as part of that society, they have (almost always) paid tax towards the funding of that State's activities, and whether they return to the society from which they have been alienated or not, they are still affected by the decisions of that polity. They are almost certain to have friends and family back in 'mainstream' society who will also be affected. Especially in the days of wireless telephony and internet, physical distance from society need not mean that one is incapable of civic engagement. In a representative democracy, those that have a stake in the future of the polity should generally be allowed to take some part in the decision-making about that future.

So in both cases, we have an alienated and functionally disenfranchised segment of the electorate. Why pursue enfranchisement for one but not for the other?

A cynical answer would be that there is political mileage in the former group, but not in the latter. The Conservatives benefit immensely from appealing to expatriate voters, especially given the high rate of pensioners amongst the overseas population (not for no reason are both my primary sources on this story from the right-wing Telegraph). But they do not, or at least not to the same extent, from prisoners. Even though there is some evidence (this will have to remain anecdotal, I fear) that prisoners are likely to vote in considerate numbers for the Tories, any gains that the coalition partners made in the incarcerated population would be likely to be overwhelmed by the popular opposition that such a move would bring, particularly amongst entrenched Conservative voters.

Beyond that, there are arguments that it is perfectly reasonable to exclude prisoners but include expatriates. After all, the former group have committed breaches of the social contract, whereas the former have not. Whereas expatriates are excluded from social interaction voluntarily and by physical distance, prisoners have already been denied the freedoms necessary for effective civic engagement by the curtailment of their (physical) liberty. They may be physically proximate to their residences beyond the prison walls (or they may not - but that's a blog for another time!) but they are distanced sociologically, and they have had no choice in the matter. Since the physical exclusion is by different means, is there an argument that says that the two should be treated separately?

Any answer to this question would be politically loaded, of course. Clearly expatriates are not prisoners (or at the very least, not British prisoners). But the analogy, for my money, is apt. Both groups have a part to play in the ongoing story of the nation. Both groups are distanced - albeit for different reasons - but they ultimately retain their citizenship. Again, prison is the curtailment of liberty, not of citizenship. The loss of civil liberties does not amount to the loss of civic identity. And there are compelling reasons to enfranchise each group, because with that citizenship comes a right to representation amidst the social leadership.

Ultimately it remains to be seen whether prisoners will obtain the vote before the 2015 general election. Prime Minister Cameron has famously said that the thought of doing so makes him 'physically ill', and it is definitely bad political currency to be the party that stands in the face of popular opinion. But democracy is not mob rule (the Greeks had another word for that - ochlocracy), and from the perspective of civil rights and socio-legal principles, the matter seems clear: arbitrary enfranchisement must end.

Postscript: Hemi Mistry, fellow Ph. D. student, informs me that the Parliamentary Joint Select Committee is currently considering the Draft Voting Eligibility Bill, which contains provisions for a limited enfranchisement of offenders. Whilst I doubt that they will take the condition of expat voters into consideration, watch this space!

Monday, October 14, 2013

Imprisoning Charles Taylor - Humanity, Penal Goals, and International Criminal Justice

   The BBC reports that Charles Taylor, the ex-President of Sierra Leone, has requested that he be imprisoned in Rwanda, rather than in the UK as is presently intended, following his conviction by the Special Court for Sierra Leone in the Hague. Mr. Taylor's plea to the court is based upon concerns for his family, and in particular their ability to visit him during his fifty-year term of incarceration, as well as concerns as to his physical safety in a British prison.

   What's particularly interesting about this news is that it raises critical questions about what Mr. Taylor's incarceration is there for. Domestic criminal justice scholars (of the sort I'll hopefully one day be) tend to think about the issue of inmates' access to family in terms of rehabilitation: if prisoners have more contact with support networks outside of prison, then it gives them a continuing stake in broader society and provides the groundwork (and hopefully the motivation) to turn their lives around, or otherwise avoid reoffending (see, e.g., van Zyl Smit and Snacken 2009, Ch. 6).

   But that doesn't seem to be the case here. Let's leave aside thorny question of whether one can rehabilitate convicts who have convicted crimes against international law, and look simply at the length of Taylor's sentence. This already relatively old man will be incarcerated for the rest of his natural life (advances in medicine notwithstanding). So if this were a concern with rehabilitation then it seems pointless: why try to rehabilitate someone who will never be re-habilitated?

   The answer probably lies in looking at family visits not as an instrument of rehabilitation but as an intrinsically valuable part of a humane penal regime. Access to one's family is a profound part of human life (indeed, it's enshrined in multiple human rights frameworks - cf. art. 8 ECHR) and it remains questionable to what extent the State, or indeed an international community of States, should be capable of fully severing this contact. Regardless of whether or not it will contribute to effective rehabilitation, contact with the outside world enriches the prisoner as a(n international) citizen and as a dignified human being, and particularly in international criminal law, recognises the humanity of the penal subject even when they have committed monstrously inhumane acts. After all, nothing in the expression of the prisoner's right to contact with the outside world (expressed most clearly and respected most consistently in Rule 24 of the European Prison Rules) makes no explicit mention of rehabilitation. The right can be justified on either instrumental or intrinsic moral grounds.

   At the same time, Taylor's desire to be imprisoned in Rwanda instead of in the UK strikes an odd chord in terms of the quality of penal regime that he can expect to receive. All other things being equal, and notwithstanding the investment of the international community in the Rwandan penal State since the 1994 genocide, one would expect British prison conditions to be substantially better than those in Rwanda, a country that is substantially less economically developed (for instance, despite recent improvements, the ICRC has expressed serious concerns with prison conditions in the country).

   But perhaps this highlights the importance of Taylor's family to his own wellbeing, or his desire not to see them punished for his own offence. It's certainly a blow to the accusation that international criminal justice puts the decision-makers responsible for atrocities in comfortable custody whilst leaving the rank-and-file to languish in relatively unsanitary or otherwise unpleasant prisons: perhaps the material conditions of imprisonment are not the only index of the pains involved in incarceration?

   Regardless, Taylor's request places the UK in an interesting legal position. On the one hand, Rwanda is neither a signatory to the European Convention on Human Rights nor subject to the European Prison Rules. On the other hand, the UK is. Transporting Taylor to the UK in defiance of his wishes could lead to a challenge (I do not say a successful one, necessarily - I'll leave that up to someone more expert in ECHR law than I am!) against the decision on human rights grounds, especially if Rwanda responds favourably to the idea of taking up Taylor's sentence. It will be a decision tied up as much in realpolitik as in penal and human rights theory.

   In short, the recent developments in the trial of Charles Taylor throw up in microcosm many of the theoretical and practical problems facing the task of international criminal justice: what is its penal purpose? Is rehabilitation possible? Is it about punishment, or deterrence, or mere expression of moral outrage? To what extent do these purposes affect the penal regime that greets convicts of international criminal tribunals? And what are the implications for the subject's rights, given the partial and overlapping legal regimes comprising public international law?

Saturday, April 27, 2013

Offender Supervision in Europe - Perspectives from the COST Conference

I've been in Liverpool all week at the first annual conference of COST Action IS1106 on Offender Supervision in Europe. Over the course of a long three days, we've discussed various aspects of offender supervision regimes - pre-sentence (here in England, bail), as a sentence (community orders, suspended sentence orders, and their youth justice equivalents), and post-sentence (release on license from prisons). The conference has detailed exciting developments in the Action, which aims to collect and meta-analyse data from across the EU/Council of Europe, in order to provide a comprehensive picture of the phenomenon of non-custodial supervision across European criminal justice.

I'll spare you my notes on the subject. If you find any of that interesting, the speeches will soon go up on the Action's website, so you can listen to the presentations and read the slides as if you'd been there!

This is one of the most exciting developments in my field at the moment, and there's plenty more to come. Watch this space!


P.S. - Ahead of the COST conference I also attended the annual meeting of the European Society of Criminology's Working Group on Community Sanctions and Measures, many of whose members are involved in the COST Action. Their presentations will also be going up when the Working Group's own blog gets up and running - and when it does, I'll provide a link to that as well.

Tuesday, March 12, 2013

Prisons, Ivory Towers, and Social Research

Ed Wright, one of our colleagues in the PG research community here in Nottingham, has written a short but rather interesting piece on the important contextual role of researching beyond the library. You can read it here.

Monday, October 08, 2012

New Media - To Cite or Not to Cite?

A couple of weeks ago, I was presenting a paper based on my submission for the PhD Seminar Series (which I mention here) to the European Society of Criminology in Bilbao. But I did something naughty, in referencing this book:

The Influencing Machine is a potentially very useful example of good polemic journalism: it's a study of (US) journalism's developments up to the current day, the potential effect it has upon (American) politics and public opinion, and the possible future that new developments in media technology could have on society.

It's also a comic book. Not that I mentioned that at the ESC. But should I have?

This is a debate that's been raging around a lot of 'new media' (particularly things like this very blog). Academic traditionalists dismiss sources like Gladstone as superficial, aimed at the mass market, and untested by peer review. Certainly there's an element of truth to all of these claims, and comic narrative lends itself to providing ease of understanding at the expense of sacrificing the spatial economy of simple text (see Will Eisner, Comics and Sequential Art (1985). If Gladstone had published her written text as simple prose, then it would probably have been no longer than a journal article, because you can say much less with six-to-twelve panels than with a page of text.

But does that mean we can write off what Gladstone has to say about the state of the media? After all, she herself is a radio journalist, and her book is at least partially an insider's view on the state of news media in her country. If we wrote off all comics as hokey popcorn entertainment for the young (and primarily young male) market, then we'd miss out on a lot of really insightful, thought-provoking non-fiction, such as the deeply personal and methodically observed opinion journalism of Darryl Cunningham (Psychiatric Tales 2011; Science Tales 2012); biting cultural observations of the sort popularised by Marjane Satrapi's Persepolis (complete edition compiled 2007); and the art history of Scott McCloud, whose seminal opus Understanding Comics (1994) advocates a reappraisal of the whole medium.

All this is well and good in the abstract, but what does it mean for researchers? It seems to me that the answer is to use new media when - and only when - they have some definite and important relevance to the point you're trying to make. Some thoughts to consider include:
  • Is there any respected academic alternative? - More time ago than I'd like to admit I was writing a dissertation about tobacco and cannabis regulation in England and Wales. There are very few academic sources that give an insight into the political history of cannabis, and so I was forced to fall back on a polemical piece of journalism, Martin Booth's strongly pro-legalisation Cannabis: A History (2003). So long as one recognises the faults with this kind of source, then there's nothing wrong with it.
  • Does it say anything that academia doesn't? - This is a matter of perspective: anyone writing a Ph. D. will tell you how hard it is to find something that hasn't already been said somewhere in academia. But potential new ways of looking at phenomena are turning up time and again, and new media offer good angles. For instance, one thing that the inherent simplicity of the comic book lends itself to in The Influencing Machine is that it lays out various types of potential journalistic bias very effectively. Adopting that taxonomy for oneself can be a good way of incorporating the material in a way that doesn't undercut the perceived 'academicalness' of your research.
  • Can you treat it as an empirical source? - Running a discourse analysis or case study allows one to quote and critically appraise a source at the same time. But this only works if that's what your research is actually meant to be doing. Sticking in a qualitative case study for the heck of it is unlikely to improve your research any.
Ultimately, I think snobbishness over new media is on the way out, and rightly so. Whilst we can't ignore the rigors of the academic process - peer review means that you can be sure of the content of an article in a way you can't of one in a newspaper - that doesn't mean that nothing outside the ivory tower has any use. And the only way that hesitancy can ever be broken down is if we stand up and jeopardise our careers by quoting a comic book to the finest minds in Europe.

But then, what do I know? This is only a blog post, after all...