Since the end of the 20th century the protection better known to all as double jeopardy has been under attack. With public pressure put on the United Kingdom government to address individuals who had been acquitted of violent crimes, the Labour government implemented a radical overhaul of common law criminal procedural protections. The reform created an exception to double jeopardy, allowing re-prosecution of acquitted individuals. Many of the commonwealth countries starting with Australia took the U.K. exceptions and adopted them into their own criminal justice systems. This paper is going to look at the exception created, and the factors that lead to the bypass of such a critical legal protection throughout the commonwealth nations. Then analyze the current state of double jeopardy in Canada to determine if such and exception is needed; or if any factors from the exception can be adapted to strengthen the Canadian criminal justice system.

Since the end of the 20th century the protection better known to all as double jeopardy has been under attack. With public pressure put on the United Kingdom government to address individuals who had been acquitted of violent crimes, the Labour government implemented a radical overhaul of common law criminal procedural protections. The reform created an exception to double jeopardy, allowing re-prosecution of acquitted individuals. Many of the commonwealth countries starting with Australia took the U.K. exceptions and adopted them into their own criminal justice systems. This paper is going to look at the exception created, and the factors that lead to the bypass of such a critical legal protection throughout the commonwealth nations. Then analyze the current state of double jeopardy in Canada to determine if such and exception is needed; or if any factors from the exception can be adapted to strengthen the Canadian criminal justice system.

Thesis (M.A.) - Simon Fraser University, 2005. / Theses (School of Criminology) / Simon Fraser University. Also issued in digital format and available on the World Wide Web.

Thesis (M. Soc. Sc.)--University of Hong Kong, 1984.

In late 20th-century Texas, during decades of rapid economic growth and abrupt social transformation, traditional state institutions and other features of a less affluent Southern past persisted side by side with the modern and newly developed. Criminal justice, in Texas as in other states, became a realm that was fiercely contested politically and in the courts. Sentencing and corrections, in particular, bore the brunt of changes promoted by the frequently conflicting forces of federal grant aid to states and federal judicial intervention. In the case of Texas, comprehensive reforms ordered by federal courts became a crucial, if limited, impetus for change that challenged the resistance of the political establishment. The courts typically sought to compel state institutions to meet standards of service provision set by professional experts and certifying organizations. The lead role played by federal courts--rather than Texas professionals themselves and their statewide organizations--in advocating for reforms indicates that in a state political environment marked by a tendency toward concentrated power, and with few independent, politically insulated institutions of their own, Texas doctors, lawyers, academics, and other professionals had few active roles to play. As examples of courtordered reform, the cases of prison medical care and juvenile confinement both display the chronic abasement of professional standards by state institutions, the limits of effective judicial intervention over time, and the long-term cyclical patterns of state politics. Other episodes of attempted reform--the use of federal grant funds originally intended to upgrade criminal justice agencies, and a succession of initiatives to change the criminal sentencing code--demonstrate the prevalence of political pressures over state-supported professional expertise. The particular importance of physicians--and the absence of state medical organizations--in promoting the revival of a modernized death penalty is emphasized by a comparison with England, where doctors asserted a professional interest in criminal justice policies and preempted the medicalization of capital punishment. Ultimately the fate of each of these initiatives in the realm of sentencing and correction reflects the pressures tending against the creation and maintenance of independent professional authority in Texas.

No description available.

This thesis examines in detail the provisions of the Criminal Justice Act 1991 which allow for the incapacitation of the 'dangerous' offender. Incapacitation has been used as an example of a growing trend in criminal justice towards viewing crime in terms of risk. This risk discourse points to the use of actuarial practices and insurance techniques in this field, with a resultant 'abstraction' of the traditional view of crime as a moral wrong. The technologies of risk assessment are central to the very power of the discourse, it has been argued that these techniques further increase the effectiveness of control and that they are a response to a growing preoccupation in society with security. It is argued that risk is, in a sense, pre-political in that as risk takes hold, overtly political responses to crime become more difficult. Given that incapacitation has been used as an example of crime as risk, this thesis takes the form of a micro-study of the above incapacitatory legislation. It assesses the degree to which this legislation can be seen to be a part of the risk discourse. It is argued that on a general level the legislation does fit within the risk model, seeking to incapacitate 'bad risks'. However, it is argued that as the legislation has been conceived, formulated and employed, it does not make use of the actuarial techniques of risk assessment - seen as so central to 'internal dynamic' of the risk discourse - to a significant extent. Rather, it is argued that the legislation embodies a politically motivated appeal to the idea of risk rather than to risk assessment itself. It is concluded that this use of risk - once shed of its attendant technologies - far from making political responses more difficult, sits well with punitive responses demanded by a government of the right.

In this study I tackle the problem of justifying criminal punishment. Although I take heed of a traditional line of theorizing which says that punishment is an expressive and communicative endeavour, my theory breaks away from traditional approaches. This break is motivated by a recognition that theorists working in the traditional framework have failed to resolve the tension between retributivist and consequentialist reasons for punishment. I argue that punishment is justified as a type of communication from those affected by the crime to distinct and varied audiences. My naturalistic theory is structured around two fundamental themes, naturalism and pluralism about aims. The naturalism consists in the fact that the theory takes an empirically informed descriptive approach to the problem of justifying punishment. This foundation provides the resources for developing a balanced view of the moral agent which takes into account not only cognitive but also emotional capacities. This broader, deeper view of agency permits, indeed calls for, an analysis of the moral psychologies of those involved in the social practice. That analysis leads to the explanation that punishment is a type of communication of, among other things, strong but justified moral sentiments. Further development of this view suggests that punishment's various messages are intended for a variety of audiences - not just the wrongdoer but also the victim and community. That explication supports my other fundamental theme, pluralism about aims. The social institution of punishment is a complex one involving stakeholders who have differing motives and needs. Consequently, we should reject strategies which claim that punishment's justification can be reduced to one reason such as, for example, that the criminal deserves it. I argue that punishment's justification is multifaceted and complex. The arguments I put forward to justify punishment also bring to light aspects of the existing social institution that need reform. In general, they point to the need to design penal measures that promote communication among wrongdoer, victim and community. But I also call for a specific reform. I argue that the victim, whose concerns have traditionally been disregarded, should also be given a voice within the social institution.

Private defence is the civilized remnant of the ancient system of private vengeance as redress for wrong done. The Romans, in permitting self-help formulated the principle moderatio inculpatae (moderation in self-defence) which the European jurists later relied upon to develop a coherent doctrine of private defence. Certain types of intentional killings were no longer regarded as unlawful and therefore are not punished as murder. South African recognizes that killing is justifiable and therefore not murder. Despite the sound rationale underlying the defence, namely the upholding of justice theory where people acting in private defence perform acts where they assist in upholding the legal order, and despite the fact that the defence is established in both criminal law legal theory and practice, there are threshold problems with this rationale which has been subject to much academic criticism. Such criticism must be seen in the context of the wider debate surrounding the circumstances in which battered women kill their abusers - normally in circumstances where the threat is not imminent and therefore the need to uphold justice is not necessary. The purpose of this enquiry is to examine the development and functioning of the defence and more particularly to do so in light of a comparison with the means currently utilized to criminalize conduct falling outside the bounds of self-defence: one of the parent systems of South African law, namely English law and the United States, where battered woman syndrome originated and a profound influence on the way in which the elements of the defence are interpreted in that jurisdiction. For instance, in American law subjective tests for self-defence have been developed such as the particularizing standard. This standard asks whether a reasonable person with the accused’s particular non-universal characteristics would have both perceived the situation as the accused perceived it and would have reacted to that perception by committing the accused’s self-defensive act. If the answer is yes, then the act is considered reasonable. It assumes that individuals freely choose how to perceive and respond to a threatening situation but also acknowledge that certain kinds of nonuniversal characteristics (such as battered woman syndrome) exercise such a powerful causal force on individuals perceptions and actions that it would violate the voluntary act requirement when holding that individual who possess such a characteristic to a standard of conduct that does not take that characteristic into account. The study concludes with an assessment of the form the defence ought to take. In South African law the defence consists of the conditions relating to an attack which includes: an attack, and protected interest and the attack must be unlawful. In respect of the conditions relating to the defence, the defence must be reasonably necessary to avert the attack and the defence must be directed against the attacker. Aspects of these elements have proved to be controversial. In particular, the condition of reasonably necessary to avert the attack has been called into question. Furthermore the requirement of imminence has been rendered especially controversial especially when viewed from the battered woman’s perspective where battered woman syndrome plays a role i.e. the woman’s internal makeup having an influence on the way she views the situation as opposed to an objective test is used to establish if the threat was imminent. While the English and American law elements of the duty to retreat, proportionality and reasonableness approximate the equivalent condition of reasonably necessary to avert the attack, the focal point of this defence in these jurisdictions has similarly been the imminence requirement and the test utilized for self-defence i.e. objective or subjective standard. Prior to evaluating the utility of these elements, the various rationales posited as a justification for the defence will be examined. It is submitted that while various rationales have been posited to form the basis of selfdefence, the autonomy theory (narrowly circumscribed) should be followed in South African law and that the traditional elements for self-defence should remain in force. Regarding the requirement that the attack be reasonably necessary, it is submitted that the traditional mechanism for distinguishing justified from unjustified self-defensive acts should remain an objective test. This is so because by taking account of the knowledge the defender has of her attacker the legal requirements of private defence will eventually be equated with those required for putative self-defence. If putative selfdefence goes to the issue of culpability, which is seen as a particular mental attitude or state of mind - South African law will be evincing a move toward a normative concept of fault. Such an approach has not proved unproblematic in South African law. Both early and modern common law as well as modern case law has expounded a coherent statement of the elements of self-defence which include imminence as a core feature. The problem is that traditional imminence rules do not cater adequately for the battered woman’s situation and for this reason theorists have advocated its abolition. The obvious problem with such a recommendation is that something must stand in its stead to distinguish legitimate cases from illegitimate cases of self-defence. In respect of the imminence requirement, the problems created by this standard cannot be solved by replacing imminence with necessity or by claiming priority for necessity or by demanding that imminence means pacifist rather than the libertarian version of necessity. These positions pose the question but do not answer it. Furthermore, if the imminence question cannot be answered by assuming one side of the necessity debate, then it cannot be answered by referring to the distinction between justification and excuse. It is submitted that “instead of viewing objectivity as not being able to account for battered woman’s situation – the opposite conclusion should be reached – that by rethinking certain situational factors as a set of relatively innocuous and perhaps necessary normative propositions then the abused woman’s situation is consistent with some very standard propositions in the law of self-defence. If the abused women is being attacked and the threat is imminent (in the traditional sense), then she should be able to avail to herself of self-defence, although it should be noted that the court should also consider the fact that the battered women placed herself in this dangerous situation. However, the court would also have to take into consideration the difficulty that the abused woman faced in extricating herself from this position. On the basis of a discussion of the various construals that inform the question of whether proportionality should form a necessary requirement for self-defence, including (i) the liberal aspiration to neutrality, (ii) constitutional norms and (iii) a duty of social solidarity to the state, it is submitted that proportionality should form an integral part of the requirements for self-defence. The test can be set out as follows: not only must the defence be necessary but also the means used by the accused for the purpose of averting the attack must be reasonable in the circumstances. This is in accordance with the autonomy theory. Therefore, would an “ordinary, intelligent and prudent person in the accused’s situation would react to establish if the self-defence claim was justifiable. However, it is submitted that not all the characteristics of the accused should be taken into account. Only those “characteristics which have the most (or direct) bearing on the accused’s situation” should be considered. Despite the rationales underlying self-defence, it has not been entirely clear whether an abused woman is expected to flee. It is submitted that there should be a duty to retreat. In the case of the abused woman, her situation is adequately catered for within the reasonableness neutrality perspective. In respect of the defence of provocation, Roman and Roman-Dutch law did not regard anger, jealousy or other emotions as an excuse for criminal conduct, but only as a factor which might mitigate sentence, if the anger was justified by provocation. South African law with its parent system in Roman-Dutch law might have followed this lead had it not result of the Transkei Penal Code of 1887, it envisaged a type of a partial excuse: even if been for the introduction of the mandatory death penalty for murder in 1917. In 1925 as a killing was intentional, homicide which would otherwise be murder maybe reduced to culpable homicide. The test for provocation was thus an objective one. By 1949 in R v Thibani it was held that provocation was not a defence but a special kind of material from which in association with the rest of the evidence the court should decide whether the accused had acted involuntary or without intent to kill. This introduced a subjective test for provocation. But a number of crucial issues remained unresolved; could intense provocation or emotional stress serve to exclude criminal capacity or voluntary conduct. After the decision in Chretien, the question arose, if severe intoxication could exclude these basic elements of liability then could it not also exclude provocation or emotional stress. At this point, the notion of criminal capacity came to the fore. This notion was unknown in South African common law and was adopted from Continental Legal systems, specifically Germany. The notion took hold with the Rumpff Commission of Inquiry into the Responsibility of Deranged Persons and Related matters, the recommendations of which gave rise to the provision of section 78 (1) of the Criminal Procedure Act. In S v Mahlinza set out that criminal capacity of actor is an essential requirement necessary to establish criminal liability. Criminal capacity consists of cognitive component i.e. ability to distinguish between right and wrong and conative capacity i.e. the ability to act in accordance with the distinction. If either was lacking no liability would ensue. In S v Van Vuuren, the court expressed in unequivocal terms that the accused could not be held liable where failure to comprehend what he is doing is attributable to a combination of factors such as provocation or emotional stress. The very idea of allowing provocation to function as a defence excluding an accused’s criminal liability is inherently controversial. From a moral and ethical perspective people are expected to control themselves, even under provocation or emotional stress. To allow it to function as a complete defence as opposed to mitigating factor means that it gives credence to the belief that retaliation is justified in the eyes of the law and this is the very thing criminal law guards against. Despite the well established nature of the defence of non-pathological incapacity, the law has been thrown into flux by the decision of the Supreme Court of Appeal in S v Eadie which constituted a serious erosion of the notion of criminal capacity, with a concomitant “ripple effect” on other topics within the general principles of criminal law. The question this case has highlighted for South African law of non-pathological incapacity is whether the boundaries of the defence have been inappropriately extended. This is so since the court held not only that there is no distinction between the defence of automatism and nonpathological incapacity, and that it would have to be established that the accused acted involuntarily in order for her defence of lack of capacity to prevail, but furthermore held that the court should assess the accused persons evidence about his state of mind by weighing it against his actions and surrounding circumstances, thereby introducing an objective test. Theorists such as Burchell have considered this move “bold” and “encouraging” for its emphasis on objective norms, and the fact that it brings it into line with both the English and American jurisdictions, where not only is an objective element introduced into the enquiry, but where loss of self-control is not totally excusable since the law assumes that provoked party was not totally incapable of controlling anger. If an accused was unable to control himself, a full excuse would be defensible. The notion of capacity has its approximate equivalent in the English and American law of provocation where the jury must consider the subjective question of whether the accused was actually provoked to lose self-control, the defence requires that a reasonable person in the same circumstances would have lost-self control and acted as the accused did. The South African notion of capacity is examined with reference to the way provocation is treated in these jurisdictions. Should non-pathological incapacity be equated with automatism, the established precedent in provocation and other cases of non-pathological incapacity would have to be revised by implication, and would have serious implications for the principle of legality and restricting the scope of the defence for battered women. Furthermore, it is submitted that a move towards an objective test should not be followed. This is so since such an approach does not extend to encompass the battered woman’s mental and emotional characteristics including recognized psychological disorder symptoms. This results in the court not having any meaningful way to determine whether the battered woman lost self-control and furthermore it will lead to increasing attention being directed at how far the objective test be tailored to fit the capacity of the accused. The problem with the capacity test is that it has created via the Criminal Procedure Act a new element of liability by drawing from both the general physical and the mental liability enquiries. Therefore, by duplicating the voluntary act requirement under mens rea, the courts have asked the same question twice. Once the accused is shown to be acting voluntarily, there will be a measure of goal-directed conduct. Where goal-directed conduct is present, it necessarily implies that here must be a level of capacity present in the case of the defence of non-pathological incapacity. In other words, the question is not whether capacity is present, but to what extent it is present. This point is not acknowledged by our courts: the concept of psychological fault underlying South African law offers no explanation for the fact that culpability is capable of gradation. The effects of battering could be used to support a defence of diminished capacity, which focuses not on mitigating circumstances of the act, but rather on the actor’s inability to form the requisite mens rea for the offence charged. However, the introduction of such a defence could only be achieved by returning to the rules relating to provocation followed in South Africa prior to 1971. According to the specific intent doctrine, policy considerations require that an accused should not be completely acquitted. However, these considerations require that an accused should not be completely acquitted. However, these considerations also require that an accused not be convicted of murder but of culpable homicide. This compromise solution (of culpable homicide) can only be reached by treating provocation as a special defence, one which is not strictly adjudicated in terms of the general principles relating to culpability (mens rea). Furthermore, it is submitted that a subjective test must be applied, since Snyman’s objective-subjective test leads to an illogical confusion between the subjective and objective elements. / Thesis (LL.D.)-University of KwaZulu-Natal, Pietermaritzburg, 2009.

No abstract available. / Thesis (LL.M.)-University of Natal, Durban,1987.