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Mike Redmayne - One of the best experts on this subject based on the ideXlab platform.
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The Criminal Process - 1. Introduction to the English Criminal Process
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter starts by presenting a brief sketch of the key stages and decisions of the Criminal Process which forms part of the English Criminal justice system. The significance of those stages and decisions is discussed before they are then classified according to their nature and consequence. This is followed in the next section by differentiating between the Criminal Process and the system before moving on to orient the reader by outlining significant reforms that have shaped the Criminal Process in the past decades. There is a final concluding section.
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The Criminal Process - 2. Towards a framework for evaluating the Criminal Process
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter advances a theoretical framework for evaluating Criminal procedure, while keeping in mind the links between the different parts and aspects of the Criminal justice system. A rights-based theory of the Criminal Process should have the twin goals of regulating the procedures for bringing suspected offenders to trial to produce accurate determinations, and ensuring that fundamental rights are protected in those Processes. This approach should be adopted in England and Wales—both on principle and because it is implicit in international documents such as the European Convention on Human Rights that still plays a fundamental role in English law. Separate objectives for dispositive decisions are also proposed, including the decision to divert a person from the Criminal Process without trial.
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The Criminal Process
2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:The Criminal Process continues to provides a reflective, contextualized consideration of doctrinal, practical, and normative issues in Criminal Processes and procedures. The text draws on arguments from the law, research, policy, and principle, to present an overview of this area of study. It focuses on England and Wales, with occasional comparative references. The book includes new coverage of contemporary issues, such as the disclosure of evidence in Criminal trials and the treatment of victims, and on diversity and discrimination within the Criminal justice Process. Further reading suggestions and discussion questions are included at the end of each chapter.
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The Criminal Process - 6. Gatekeeping and diversion from prosecution
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter focuses on the decisions taken by the gatekeepers of the Criminal Process. It first outlines the role of the police, followed by a comparison with the approach of regulatory bodies as agencies that select for official action certain types of person or situation—a selection that may lead either to prosecution and trial or to a form of diversion. The chapter then considers the range of formal responses to those who are believed to be offenders, including police cautions and other out-of-court disposals. It examines the problematic dimensions of diversion, before examining accountability and the values behind some of the differing policies.
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The Criminal Process - 4. Investigating crime and gathering evidence
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:The Criminal Process is, to a large extent, an investigative one, existing to prepare cases for effective trial. To this end, authorities are given powers enabling them to gather evidence. But these powers can infringe numerous interests, some relating to the workings of the Process itself, in addition to external ones, such as liberty, privacy, freedom from humiliation, and bodily integrity. This chapter examines how the gathering of evidence is and should be affected by these concerns and covers powers and practices in relation to the investigation of crime and the gathering of evidence. It discusses stop and search, surveillance, eyewitness identification evidence, voice identification, forensic and biometric samples, and the privilege against self-incrimination.
Markus D Dubber - One of the best experts on this subject based on the ideXlab platform.
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Criminal Process in the Dual Penal State
The Oxford Handbook of Criminal Process, 2019Co-Authors: Markus D DubberAbstract:This chapter uses comparative-historical analysis to discuss Criminal Process in the context of penal power in the modern liberal state as penal law and penal police—the dual penal state. Focusing on Germany and the United States, it considers two ways of thinking about Criminal Process, from parallel perspectives that correspond to two modes of state governance: law and police. The first is characteristic of the law state (Rechtsstaat) and the second, of the police state (Polizeistaat). The emphasis is on the Criminal Process that is consistent with the pursuit of the ideal of liberal law to which states that regard themselves—or wish to be regarded by others—as participants in the modern liberal legal-political project are committed.
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Criminal Process in the Dual Penal State: A Comparative-Historical Analysis
2017Co-Authors: Markus D DubberAbstract:This paper is about a way of thinking about Criminal Process, with bits and pieces of Criminal Process making an appearance for illustrative purposes. Actually, it’s about two ways of thinking about Criminal Process, from parallel perspectives that correspond to two modes of state governance, law and police, characteristic of the law state (Rechtsstaat) and the police state (Polizeistaat), respectively. Using comparative-historical analysis, this chapter, locates the study of Criminal Process within the two-track project of critical analysis of penal power in the modern liberal state as penal law and penal police: the dual penal state. Illustrations include lay participation, plea bargaining, the legality principle, habeas corpus, and possession offenses, among others.
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the new police science and the police power model of the Criminal Process
2004Co-Authors: Markus D DubberAbstract:This paper seeks to illustrate those features of the Criminal Process that reflect its foundation in the power to police.
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The Possession Paradigm: The Special Part and the Police Model of the Criminal Process
2004Co-Authors: Markus D DubberAbstract:Possession crimes have become common features in the special parts of modern Criminal codes. Defying traditional categories and principles of Criminal law, they are paradigmatic of the Police Model of the Criminal Process, which regards Criminal law not as an institution for the regulation of interpersonal conflict but as an administrative mechanism for the enforcement of state authority. Possession offenses appear both in the general part (as a variety of inchoate liability) and the special part (attached to particular offense categories), as a single broad offense (such as possession of Criminal instruments) and as several specific offenses (such as possession of drugs, guns, stolen property, and so on). They collapse the distinctions between offense and defense (more specifically, between offense definition and justification) by including, within their definition, the concept of "unlawfulness," "illegality," or "Criminality," along with separate "exemptions." Possession offenses also do away with traditional notions of imputed (and "group") liability, through the doctrine of constructive possession, which makes room for vicarious liability (through dominion over a person) and spatial liability (through dominion over an area). They resist categorization according to the traditional distinction between conduct and status offenses. They challenge the traditional distinction between voluntariness and mens rea, particularly in varieties that do away with mens rea. Perhaps most important, possession offenses straddle traditional distinctions among various aspects of the Criminal Process, definition, imposition, and infliction. Through the use of presumptions they incorporate procedural elements into substantive Criminal law, thus breaking down the distinction between definition and imposition. More fundamentally they are specifically designed for ease of enforcement and imposition, reflecting an approach to Criminal law that emphasizes crime control over just punishment, application over definition, and results over rules.
Andrew Ashworth - One of the best experts on this subject based on the ideXlab platform.
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The Criminal Process - 1. Introduction to the English Criminal Process
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter starts by presenting a brief sketch of the key stages and decisions of the Criminal Process which forms part of the English Criminal justice system. The significance of those stages and decisions is discussed before they are then classified according to their nature and consequence. This is followed in the next section by differentiating between the Criminal Process and the system before moving on to orient the reader by outlining significant reforms that have shaped the Criminal Process in the past decades. There is a final concluding section.
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The Criminal Process - 2. Towards a framework for evaluating the Criminal Process
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter advances a theoretical framework for evaluating Criminal procedure, while keeping in mind the links between the different parts and aspects of the Criminal justice system. A rights-based theory of the Criminal Process should have the twin goals of regulating the procedures for bringing suspected offenders to trial to produce accurate determinations, and ensuring that fundamental rights are protected in those Processes. This approach should be adopted in England and Wales—both on principle and because it is implicit in international documents such as the European Convention on Human Rights that still plays a fundamental role in English law. Separate objectives for dispositive decisions are also proposed, including the decision to divert a person from the Criminal Process without trial.
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The Criminal Process
2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:The Criminal Process continues to provides a reflective, contextualized consideration of doctrinal, practical, and normative issues in Criminal Processes and procedures. The text draws on arguments from the law, research, policy, and principle, to present an overview of this area of study. It focuses on England and Wales, with occasional comparative references. The book includes new coverage of contemporary issues, such as the disclosure of evidence in Criminal trials and the treatment of victims, and on diversity and discrimination within the Criminal justice Process. Further reading suggestions and discussion questions are included at the end of each chapter.
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The Criminal Process - 6. Gatekeeping and diversion from prosecution
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter focuses on the decisions taken by the gatekeepers of the Criminal Process. It first outlines the role of the police, followed by a comparison with the approach of regulatory bodies as agencies that select for official action certain types of person or situation—a selection that may lead either to prosecution and trial or to a form of diversion. The chapter then considers the range of formal responses to those who are believed to be offenders, including police cautions and other out-of-court disposals. It examines the problematic dimensions of diversion, before examining accountability and the values behind some of the differing policies.
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The Criminal Process - 4. Investigating crime and gathering evidence
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:The Criminal Process is, to a large extent, an investigative one, existing to prepare cases for effective trial. To this end, authorities are given powers enabling them to gather evidence. But these powers can infringe numerous interests, some relating to the workings of the Process itself, in addition to external ones, such as liberty, privacy, freedom from humiliation, and bodily integrity. This chapter examines how the gathering of evidence is and should be affected by these concerns and covers powers and practices in relation to the investigation of crime and the gathering of evidence. It discusses stop and search, surveillance, eyewitness identification evidence, voice identification, forensic and biometric samples, and the privilege against self-incrimination.
Liz Campbell - One of the best experts on this subject based on the ideXlab platform.
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The Criminal Process - 1. Introduction to the English Criminal Process
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter starts by presenting a brief sketch of the key stages and decisions of the Criminal Process which forms part of the English Criminal justice system. The significance of those stages and decisions is discussed before they are then classified according to their nature and consequence. This is followed in the next section by differentiating between the Criminal Process and the system before moving on to orient the reader by outlining significant reforms that have shaped the Criminal Process in the past decades. There is a final concluding section.
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The Criminal Process - 2. Towards a framework for evaluating the Criminal Process
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter advances a theoretical framework for evaluating Criminal procedure, while keeping in mind the links between the different parts and aspects of the Criminal justice system. A rights-based theory of the Criminal Process should have the twin goals of regulating the procedures for bringing suspected offenders to trial to produce accurate determinations, and ensuring that fundamental rights are protected in those Processes. This approach should be adopted in England and Wales—both on principle and because it is implicit in international documents such as the European Convention on Human Rights that still plays a fundamental role in English law. Separate objectives for dispositive decisions are also proposed, including the decision to divert a person from the Criminal Process without trial.
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The Criminal Process
2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:The Criminal Process continues to provides a reflective, contextualized consideration of doctrinal, practical, and normative issues in Criminal Processes and procedures. The text draws on arguments from the law, research, policy, and principle, to present an overview of this area of study. It focuses on England and Wales, with occasional comparative references. The book includes new coverage of contemporary issues, such as the disclosure of evidence in Criminal trials and the treatment of victims, and on diversity and discrimination within the Criminal justice Process. Further reading suggestions and discussion questions are included at the end of each chapter.
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The Criminal Process - 6. Gatekeeping and diversion from prosecution
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:This chapter focuses on the decisions taken by the gatekeepers of the Criminal Process. It first outlines the role of the police, followed by a comparison with the approach of regulatory bodies as agencies that select for official action certain types of person or situation—a selection that may lead either to prosecution and trial or to a form of diversion. The chapter then considers the range of formal responses to those who are believed to be offenders, including police cautions and other out-of-court disposals. It examines the problematic dimensions of diversion, before examining accountability and the values behind some of the differing policies.
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The Criminal Process - 4. Investigating crime and gathering evidence
The Criminal Process, 2019Co-Authors: Liz Campbell, Andrew Ashworth, Mike RedmayneAbstract:The Criminal Process is, to a large extent, an investigative one, existing to prepare cases for effective trial. To this end, authorities are given powers enabling them to gather evidence. But these powers can infringe numerous interests, some relating to the workings of the Process itself, in addition to external ones, such as liberty, privacy, freedom from humiliation, and bodily integrity. This chapter examines how the gathering of evidence is and should be affected by these concerns and covers powers and practices in relation to the investigation of crime and the gathering of evidence. It discusses stop and search, surveillance, eyewitness identification evidence, voice identification, forensic and biometric samples, and the privilege against self-incrimination.
Darryl K. Brown - One of the best experts on this subject based on the ideXlab platform.
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The Case for a Trial Fee: What Money Can Buy in Criminal Process
California Law Review, 2019Co-Authors: Darryl K. BrownAbstract:Money motivates and regulates Criminal Process. Conscious of adjudication costs, prosecutors incentivize guilty pleas with the prospect of a “trial penalty”—harsher post-trial sentences. Budgetary considerations motivate revenue-generating enforcement policies and asset forfeitures by law enforcement. States also charge defendants directly for nearly every Criminal justice expense through mandatory fees, which can burden decisions to exercise rights. Additionally, defendants can pay for optional advantages. Right-to-counsel doctrine protects the right to pay for more and better legal assistance than the state is obligated to provide. Paying bail yields pretrial liberty. Diversion programs, for a fee, can supplant ordinary prosecution. Some defendants can choose their sentence—a fine or jail. But these opportunities are not available to all; their costs need not match one’s ability to pay. To examine roles and rules of money in Criminal Process, this paper considers the case for an optional Criminal trial fee. Defendants who pay it would directly cover public litigation costs, which would leave the state indifferent, as a budgetary matter, between trials and guilty pleas. In return, defendants would get a penalty-free trial limited to the terms of a proffered plea bargain. The fee proves a useful device because its rationale and effects accord with entrenched precedents and policies, not least in how it extends the justice system’s differential treatment based on wealth. Yet the trial fee also promises positive effects. It would reduce prosecutors’ most-criticized bargaining tactics—excessively harsh trial penalties—without undermining bargaining’s important secondary functions, enlisting informants to cooperate and rewarding defendants who accept responsibility for their crimes. And even a modest increase in fee-financed trials would yield other benefits, such as citizen participation in applying Criminal law and supervising government officials, and more data about “the shadow of trial” in which bargaining takes place
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the perverse effects of efficiency in Criminal Process
Virginia Law Review, 2014Co-Authors: Darryl K. BrownAbstract:The need for greater efficiency in legal Process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case Processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in Criminal courts, by plea bar-
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the perverse effects of efficiency in Criminal Process
2014Co-Authors: Darryl K. BrownAbstract:The need for greater efficiency in legal Process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case Processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in Criminal courts, by plea bargaining. Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end or a mean. Jury decision making, for example, was once an end of trial Process that served public interests beyond rendering verdicts. Over time it has become merely a means; case resolution became the overriding dominant goal. Making a Process more efficient can thus change both its nature and purposes. Moreover, efficiency’s consequences are more ambiguous than is often recognized. Producing any product more cheaply — including Criminal convictions — can have a range of effects. It can reduce production costs if demand is constant; it can help to meet rising demand without a rise in production costs; it can also generate greater demand for the good.This Essay develops these ideas in Criminal adjudication and links adjudication’s efficiency-driven transformation to the expansion of Criminal law enforcement and punishment in recent decades. By lowering the unit-cost of convictions, efficient adjudication can encourage more prosecutions and marginally subsidize more incarceration. In the Process, efficiency has redefined adjudication’s aims and reordered its priorities, valuing clear, measurable aspects such as numbers of convictions and devaluing qualitative components related to juries, participation, the substantive nature of judgments, and perhaps factual accuracy.