This study seeks to find an explanation for the two main problems associated with the Criminal Division of the Court of Appeal which are, its problems in identifying and correcting the wrongful convictions of the factually innocent, and its inconsistent, unpredictable and contradictory decision making. This study uses empirical data collected from the judgments of the Court to analyse the decision making process of the Court in relation to the powers given to it in the Criminal Appeal Act 1995. The data collected is used to analyse the Court's powers in four main areas which are appeals where the appellant wishes to adduce fresh evidence, appeals where there is a 'lurking doubt', appeals where the appellant is arguing an error occurred either pre-trial or during the trial and the Court's approach to the issue of ordering a retrial. The research conducted for this thesis is a replication study of previous research carried out for the Royal Commission on Criminal Justice which proposed reforms to the Court's powers and ultimately led to the Criminal Appeal Act 1995. The aim of the research is to analyse whether the Court uses an identifiable approach to its various powers, in order to find an explanation as to why the Court has proved so deficient at identifying and correcting the wrongful convictions of the factually innocent, and why its decision making is so inconsistent and unpredictable.

This thesis aims to give a certain understanding of liberal justice. It argues that such a system of justice cannot provide the structure for stability and inclusion that its supporters claim for it; rather, it is suggested here, it is committed to conflict and exclusion. This position is developed through consideration of a recent piece of legislation, namely section 5 of the Criminal Justice and Public Order Act of 1994. This Act criminalised various activities associated particularly with travellers, environmental protesters, squatters and festival-goers. It is argued that the criminalisation of these social groupings is not in some sense a failure of liberalism, but is rather central to its self-definition. The argument is divided into three sections. It is initially developed through conceiving the problem as being a dispute over access to and use of land. The Act strengthens private property rights in land by criminalising specific activities which take place on that land. I attempt a reconciliation between the two sides through a consideration of liberal private property theory's possible compatibility with hypothetical demands of the groups targetted by the Act. This consideration particularly focusses on the libertarian theorists, Nozick, Narveson and Steiner. The conclusions to this discussion are somewhat confused. Thus to understand how this section of the Criminal Justice and Public Order Act may be typical of liberal justice it is situated within a broader discussion of liberal theory. Rawls and Hayek are of primary interest in this second section. Through this discussion, in particular of the conception of the self basic to liberal justice, an understanding is gained of how liberal justice may be committed to criminalising and therefore excluding some social groupings. Using some ideas from Foucault we then see how this process of criminalisation may be applicable to understanding the legislation under consideration. Furthermore this understanding extends further the reading of the conflict and exclusion inherent in liberal justice more generally. The fmal chapter suggests the beginnings of ways towards a more genuinely inclusive political society. Most specifically it argues that the problem that the Criminal Justice and Public Order Act raises can only be addressed through a more wide-reaching system of public property. In this work I rely on a wide range of sources. Some of these have been given above. I also draw heavily on parliamentary debates and newspaper and magazine articles. It should not be concluded from this that my purpose is to give an empirical analysis of the Criminal Justice and Public Order Act. Rather it is through taking certain angles on this Act that understanding of liberal justice can be deepened.

Nowadays criminals often operate transnationally and their illicit behaviour is also perceived as a threat by countries not directly affected by their crimes. Criminal law is increasingly influenced by supranational instruments, the "deterritorialisation" of criminal norms has been theorised and the "transnational criminal law}} (TCL) concept has been introduced. However, national prosecutors are still limited by difficulties in crossing the boundaries of national jurisdictions to combat transnational crimes. The concept of transnational criminal law has been elaborated but is missing a related enforcement mechanism. The Westphalian concept of State sovereignty has been rethought, but extraterritorial prosecution of criminals is still undertaken in a nonharmonic manner. Scholars are often engaged in justifying the extraterritorial practices of States within the international principles on jurisdiction and in elaborating strategies to limit the risk of conflict of jurisdiction between states. This thesis aims to bypass such an approach and address the needs of national prosecutors in acting transnationally. In the globalised world, it is not necessary to limit extraterritorial assertions of States but instead to transform them into a harmonic and shared method for transnational repressions. International common interest in repressing transnational behaviours and the existence of transnational crimes identified by criminal suppression conventions are the bases for such a method. This thesis develops a possible model to strengthen the protection of transnational interests and to harmonise States' extraterritorial practice within an effectiveness approach. The model does not require any international convention but rather the introduction in each jurisdiction of an innovative connection criterion on transnational crimes. Such a criterion will be related to offences already criminalised by international conventions and will be the enforcement mechanism TCL still lacks.

This study is on the position of witnesses before the International Criminal Court (ICC) the extent to which they may be subject to the jurisdiction of this international organisation and what this tells us about the system of global governance. It seeks to ascertain that there is a cosmopolitan international community, with shared values, that are instantiated in the international criminal tribunals, and that is what justifies the exercise of jurisdiction over witnesses who provide false testimony or engage in other forms of contempt of court. The thesis evaluates the practice of the ICC, the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL). The thesis examines the implications of cosmopolitan thought for the functioning of the ICC, and the implications of this for the position of witnesses before the ICC and other international criminal tribunals. The cosmopolitan theory becomes a way of understanding the assertions about international criminal institutions and a way of critiquing their practice and jurisprudence. It is used as an analytical tool to judge the extent to which these courts and tribunals exhibit cosmopolitan features. At the same time the theory is used as a normative framework to guide the permanent ICC in its dealings with witnesses and determine the position of witnesses before the ICC. Through this process the thesis reveals gaps between the theory and practice, recognising that in application and practice things like a cosmopolitan moral court are very problematic. The evidence from these criminal courts and tribunals most especially with regards to the sanctioning of witnesses for false testimony sets out how in an operational sense the assertions about cosmopolitanism are open to challenge. Notwithstanding this challenge, the thesis show how the gap between the theory and practice could be bridged and cosmopolitan features and principles could remain embedded in the permanent ICC.

The Anglo-Saxon literature on Italian prosecutors (and the Italian criminal justice system in general) is limited. Moreover, the literature using a socio-legal approach and trying to understand what prosecutors do in practice is almost inexistent. This study seeks to fill, partially, this gap. Legal actors are, obviously, an extremely important focus for those who intend to study criminal justice and criminal procedure. Legal systems are applied and interpreted (translated to use Langer's words) according to different legal cultures. Amongst the judicial actors who appear to be, legally, in the position to determine the way the legal system works there are prosecutors. Prosecutors carry out many functions and, in Italy, they are involved from the beginning of the investigation till the end of the trial. In other words: Italian prosecutors play a very important part during both the pre-trial and trial phase. We will concentrate on the former trying to answer one main question: what prosecutors do in practice In particular, this is a study of the legal and cultural influences on the role and function of Italian prosecutor with particular reference to their gate-keeping role. In this sense the thesis brings out the distinctive impact of both the legal framework and prosecutors' professional culture and identity on the prosecutors' capacity to mediate of 'crime control' policies. While we will study this we will also analyze Italian prosecutors' legal and professional culture and their relationship with the police. This will be crucial to understand the way prosecutors take gate keeping decisions. The analysis of the Italian case seems to be very important. It shows that, when it comes to definition of the crime problem, prosecutors still play an important and distinct role. Important because their decisions still influence the definition of priorities (i. e. they do not seem to be mere executors of anticrime policies). Distinct because prosecutors appear to be able to mediate the impact of external influences. So. they have a (partially) different idea of priorities compared to the dominant political culture. This puts them in a different (distinct) position. To sum up: in Italy the prosecutors' role during the pre-trial phase of being 'between' crime fighter and judge is visible. There is room for prosecutors' choices and decisions. To corroborate this thesis we used the examples of street crime, immigration and the impact of moral panics on prosecutors' decisions. These are all issues which concern very much the "fight against insecurity" which is considered, in the western capitalistic countries, a crucial problem for the central state, the public and the media. We will try to demonstrate that, although Italian prosecutors are affected by the "problem of security" and, certainly, can not block the evolution (or involution) of the criminal justice system, they are in the position to limit the impact of these external influences.

The Rome Statute of the International Criminal Court (ICC) and the accompanying Elements of Crimes and Rules of Procedure and Evidence set out in some detail the offence types, the elements of crimes and the procedures relating to the investigation and prosecution of the international crimes within its jurisdiction. However, with respect to the issue of sentencing, the guidance provided in the Rome Statute is limited. The Rome Statute in particular is silent with respect to the principles that should apply at the sentencing stage, and the influence such principles should have on the development of a systematic approach to sentencing. This thesis argues that the development of a principled approach to sentencing is critical for the future of the ICC. What penalty is imposed and more importantly the reasons for its imposition are central to the sustained legitimacy of any criminal justice system, whether domestic or international. The thesis proposes that a ‘principled approach’ to sentencing at the ICC should be based on an analysis of the purpose and structure of that court, and on the perceived role sentencing should play in reflecting and enhancing that purpose. The analysis undertaken concludes that the expressive principle of sentencing complements what the framers of the Rome Statute saw as the purpose of the Rome Statute, and best reflects what the Rome Statute is intended to accomplish. This principle focuses on the symbolic significance of punishment, expressing attitudes of resentment and condemnation, and of judgments of disapproval and reprobation, informing the offender and the international community that such actions will not be tolerated. The thesis argues that with the adoption of the expressive principle of sentencing to focus the imposition of penalties at the ICC, the court can develop a detailed sentencing matrix for the punishment of those individuals found guilty of any of the offences within its jurisdiction.

In this thesis I endeavour to answer the research question whether the ICC has a legal obligation to respect the right to liberty and, if so, whether it has the capacity to do so. I also put forward a framework wherein this capacity is made compatible with the legal obligation to respect the right to liberty incumbent upon the ICC and its State Parties. For this purpose, the law that the ICC has to respect is analysed first. Secondly, the human rights regime regarding pre-conviction detention is defined and the respect thereof by the ICC is studied. Thirdly, following the presentation of the arguments related to the pertinence of an application of the right to liberty given the specific context in which the ICC appears to operate, this allegedly specific context is examined and compared with the context of other international tribunals. Finally, after outlining the specificities of the ICC context, several ways to legally eliminate these specificities are envisaged through an analysis of the ICC cooperation regime and the enforcement regime of international human rights instruments such as the InternationalCovenant on Civil and Political Rights or the European Convention on Human Rights.

No description available.

Under the complex circumstances and the limited capacity in which the International Criminal Court (ICC) operates, the role of its prosecutor has been challenging. The ICC prosecutor cannot pursue all situations for investigation, and cases for prosecution. She has to be selective. Moreover, the individuals and the crimes over which the Court exercises its jurisdiction, and the present circumstances in which it operates raise political sensitivities that might undermine the ability of the Court to deliver its justice effectively. The ICC prosecutor faces a complex dilemma in negotiating a relationship between fealty to the law and the impact and possible benefits of political exigencies in delivering justice. It also raises the problem of the role of political considerations within the decision-making process. The exercise of discretion lies at the heart of these challenges, as the ICC’s Statute allows the prosecutor to exercise significant discretion. This thesis will explore and analyse the discretionary power of the ICC prosecutor. It situates the development of the office historically by referring to the experiences of the War Crimes Tribunals after World War II and the two United Nations Tribunals of the 1990’s. Against this background, it examines the scope of discretion and the way the Prosecutor has exercised it. This thesis will suggest that there has been a tendency to overlook the necessity of distinguishing between various senses of discretion open to the prosecutor to exercise. In exploring the scope of discretion, the thesis will argue that there is wider range of discretion with different senses, available to the Prosecutor and that has been exercised by her, when applying legal thresholds. In assessing these legal thresholds, the focus will be on ‘sufficient gravity’ and ‘the interests of justice’. The thesis will suggest that the indeterminacy of the legal thresholds, such as ‘sufficient gravity’ is the space, which, in effect, allows decision-makers to exercise a wide range of discretion. The thesis refers to this discourse as legal interpretative discretion. This is to be distinguished from prosecutorial discretion, which is a different concept and allows decision-makers to consider extra-legal considerations, as the case with the term ‘interests of justice ’. An implication of the interpretation of the terms like ‘sufficient gravity’, is that the prosecutor can appear to possess almost unlimited power. In exploring the relationship between the two types of discretion the thesis will root the analysis within a close reading of examples of the investigations and prosecutions, and the scholarly literature. The thesis also discusses the relevance of political considerations within the decision-making process in the context of the exercise of prosecutorial discretion. It suggests that there need not be a conflict between the broad sense of justice as outlined in the Statute and political factors in giving effect to decisions. The thesis engages with the repeated statements by prosecutors, which have denied the use of discretion and asserted a fealty to strict legalism. It suggests that beneath these statements lie a resource, discretion, which helps not hinders international criminal justice.

This research examines how legal practitioners discursively construct corruption from their experience as users of the services of a public institution. In the legal field, corruption is a word rarely used in connection with practitioners, it is substituted with a less felonious alternative, ‘misconduct’. As a result, this research focuses on how legal practitioners talk about their interaction with the public institution, especially their construction of corrupt transactions. Contrary to the popular assumptions that participants in corrupt transactions are unwilling to talk about their involvement, the findings revealed that participants are willing to talk about their involvement in corrupt practice, but mainly through the use of euphemisms. The empirical contribution of this study suggests on one hand that the extensive use of euphemisms in the construction of the self, processes of corrupt interaction and actions, illustrates the significance of language use in the study of corruption. On the other hand, it emphasises the extent of ‘ethical fading’ and moral disengagement amongst professional service users which is due in part to their popular typecasting as victims, and the inherently contradictory principles of practice within the legal field.