This study examines the compatibility of the Law of Criminal Procedure of 2001 in Saudi Arabia with the international human rights standards, and provides recommendations for criminal procedure reforms. The recent developments in the Saudi Arabian criminal justice system make it important to examine the right to a fair trial within the legal system of Saudi Arabia. This study starts by examining the international human rights standards related to the right to a fair trial and the right to a fair trial under the Saudi Arabian legal system. The study then examines the extent to which Shariah law recognizes the international human rights standards related to the right to a fair trial. This will involve the sources of Shariah and the school of thought in the Islamic jurisprudence as well as the crimes and punishments in Islamic law. The main argument is highlighted in Chapters Four and Five of this research, the former of which study the pre-trial process in the Saudi Law of Criminal Procedure in the light of international human rights standards, and the latter has evaluated the right to a fair trial under Saudi Arabia legal system. Various cases are examined in these two chapters, and the sources of those cases vary in terms of the level; for instance, some of them were provided by the General Court in Riyadh; others were provided by the Supreme Judicial Council; and others were obtained from the Modawanat-Al-Ahkam, which is the publication of the Ministry of Justice containing a variety of cases. Cases in the international domain were brought mainly from the Working Group of Arbitrary Detention in the HRC. The study provides suggestions necessary for the Law of Criminal Procedure in relation to specific articles.

No description available.

This thesis examines the interpretation and application of the Criminal Justice Act 2003 (UK), Part 11 Chapter 1, which came into force on 15 December 2004. Part 11 Chapter 1 concerns evidence of bad character, a concept approximately comparable with common law similar fact evidence, in relation to all parties who may be connected with a criminal trial. The admission and use of similar fact evidence has often been the subject of controversy, and the significant changes made by the CJA 2003 have attracted their own body of support and criticism. The nine chapters of this thesis attempt an in-depth study into the impact of the legislation on the robustness and effectiveness of the criminal trial, and consider whether the criminal trial is suited to the level of exposure of bad character now facilitated by the CJA. In particular, the thesis focuses upon the key provisions governing the uses of bad character evidence of the defendant: the seven gateways set out in s 101 of the CJA. The operation of those gateways and their accompanying explanatory provisions is examined through a combination of engagement with the Law Commission’s Report 273 (which preceded the enactment of the legislation), the range of Court of Appeal cases dealing with the legislation, and academic commentary. It was foreshadowed by commentators and early case law that the new provisions might not be easy to interpret or apply, and subsequent cases have borne out this prediction. An analysis of the bad character provisions suggests that, even though the CJA was intended to provide clarity in regulation, it has itself led to confusion in some important respects. Certain central terms lack definition, and some provisions have unintended consequences. The case law reflects this in its frequent, often brief, and sometimes inconsistent analysis of the specific parts of the legislation, which can make it difficult to determine the defendant’s guilt or innocence in a precise and scrupulous manner.

No description available.

Contemporary American Criminal Law, as represented by the American Law Institute's Model Penal Code, defines the structure of criminal offenses in a manner that establishes certain psychological processes of the defendant as necessary conditions for criminal liability. In order to convict a defendant, the state must prove all offense elements including the voluntary act and culpability requirements. These provisions involve the actor's psychological processes, but neither the exact nature of these requirements nor the relationship between them is clearly understood. Certain general defenses, such as automatism and insanity, also address the defendant's psychological processes. It has been notoriously difficult, however, to develop a satisfactory formulation of either of these defenses or of the relationship between them and the system of offense elements. This dissertation presents a conceptual framework that grounds the Model Penal Code's structure of offense elements in philosophical action theory. On this interpretation, the offense requirements that involve the defendant's psychological processes can be understood as part of an integrated attempt to establish the criminal law as a behavior guiding institution that is uniquely appropriate to those who have the capacity to direct their conduct through a process of practical reasoning. The key offense requirements are designed to limit criminal liability to those behaviors that are appropriately attributed to the offender as a practical reasoner. Certain general defenses, including insanity, exculpate defendants when their behavior is not attributable to them as practical reasoners as a result of certain types of impairment that are not addressed by the offense elements. This conceptual framework provides a consistent interpretation of the relevant offense elements and defenses as part of an integrated system that limits criminal liability to those acts that are appropriately attributable to the defendant in his capacity as a practical reasoner. In addition, this dissertation contends that this system reflects a defensible conception of personal responsibility.

The punishments of Islamic criminal law and in particular, the notoriously severe ḥadd punishments, were never systematically justified in classical Islamic jurisprudence (fiqh). However, the fiqh tradition is ripe with debates about ḥadd punishments, and theories of justification, while not fully spelt out, are often implied in the writings of Muslim jurists. In Part I of this thesis, three fiqh strategies for the justification of ḥadd punishments are described and critically evaluated: one that seeks to characterize the ḥadd punishments as divinely ordained, immutable “rights of God” (ch. 1), one that describes the purpose of ḥadd punishments as serving general as well as individual prevention (ch. 2), and one that stresses that to suffer ḥadd is an expiatory act that amends for sins and thus ensures salvation in the Hereafter (ch. 3). The Sunnī legal schools (madhāhib), salient representatives of which are studied in this dissertation, controversially discussed the meaning and purpose of ḥadd punishments in the context of each of these three fiqh discourses. Part II of this thesis proceeds to describe and discuss contemporary Muslim debates about the applicability and justifiability of ḥadd punishments today. While only few Islamic regimes currently implement ḥadd, the topic has a large symbolical importance because it exemplifies the struggle of Muslim thinkers to reconcile Islam with modernity. In a first step, this thesis aims to clarify to what extent contemporary positions echo, attack or simply sidestep classical fiqh positions: how, in other words, the present is connected to the traditional fiqh framework of the past (ch. 4). In a concluding chapter, a number of salient topics of debate in the contemporary ḥadd controversy are analysed within the cultural and political contexts in which they are located (ch. 5). While classical legal doctrines about ḥadd punishments, despite the controversies between the madhāhib, tend to be rigid, emphasizing the immutable character of the criminal law norms found in the Sharīʻah, the periodic calls among contemporary thinkers for the implementation of ḥadd are, it is suggested, largely driven by political agendas.

The current criminal law of England and Wales does not assess mens rea in a consistent manner. The law applies two distinct methods of assessing mens rea – subjectivism and objectivism – which are based on conflicting principles of criminal liability. A subjective test depends upon what the defendant himself foresaw, believed or intended whereas an objective test will label the defendant culpable for what a hypothetical ‘reasonable person’ would have foreseen or how he would have reacted. This thesis will show that, if the law is ever to take a consistent approach to assessing mens rea, both subjectivism and objectivism must be cast aside. As they place undue importance on foresight of the consequences, neither of these doctrines are capable of providing an accurate reflection of an individual’s moral culpability. Subjectivism is too narrow because it ignores any other states of mind that, although inconsistent with subjective foresight, may be considered to display a high degree of moral culpability. Objectivism is too broad because, by labelling all who fall below the reasonable standard as culpable, it takes no account of those individuals who lack the capacity to foresee what the reasonable person would have foreseen. It will be shown that an approach based on the defendant’s attitudes and reasons for acting will allow for a much more accurate inference of an individual’s moral culpability than is achieved by either subjectivism or objectivism. Accordingly, this new approach is one that could be applied across the scope of the criminal law without the need for any special exceptions or illogical deviations from the norm. As a result, the way in which the English and Welsh criminal law assesses mens rea would achieve a consistency that it currently lacks.

This thesis is a critical examination of the boundaries of recklessness and negligence in English and Welsh criminal law and of the extent to which these mentes reae terms reflect the leading theories of culpability. The general principle requiring mens rea to be established before criminal liability is justified stems from the maxim ‘actus non facit reum nisi mens sit rea’, and the historical foundations of this concept will be analysed to assess whether there can be criminal liability for inadvertent conduct whilst still upholding this tenet. The interpretation of recklessness and negligence has proven to be problematic as both have included inadvertent actions and subjective and objective labels have been employed inconsistently, exacerbating an already difficult situation. What becomes clear is that the recent judicial pronouncements that have given rise this state of affairs is the result of a desire for flexibility so that justice can be done in a particular case, but this has culminated in a lack of transparency and some confusion. The aim of this work is to determine appropriate limits for criminal recklessness and negligence with regard to serious offences. Over the last century recklessness has had three main interpretations, none of which are satisfactory as will be demonstrated. This is partly because they cannot be adequately underpinned by the theories of choice and character, the leading theories of culpability. Further, the objective/subjective labels attached to the three interpretations are inaccurate and misleading, with the potential for injustice. Accordingly, other culpability theories are scrutinised and a new interpretation of recklessness is advocated in an attempt to provide a more consistent philosophical and practical approach to determining criminal recklessness and negligence.

University of Macau / Faculty of Social Sciences / Department of Sociology

This thesis is an enquiry into the regulation of immigration through criminal law and its institutions. It looks at the range of immigration offences in British legislation, and whether and how they are being used in practice. The criminalisation of immigration status has historically served functions of exclusion and control against those who defy the state’s powers over its territory and population. In the last two decades, the prerogatives to exclude and punish have been enhanced by the expansion of the catalogue of immigration offences and the more systematic enforcement of these powers. The great reliance on the criminal law to regulate immigration is distinctive of a period in which crime and immigration have been increasingly politicised. As a consequence, more offences have been created and more individuals have been subject to the hybrid immigration and criminal justice system. While immigration offences largely remain under-enforced, some of them –particularly those penalising document fraud and identity stripping- are used against foreign nationals who cannot be removed from the country. In this thesis I explain what I consider to be the most pernicious consequences of this expansion of formal and substantive criminalisation of immigration breaches. The existence of a parallel system of sanctions allows enforcement agencies wide margins of discretion. Therefore, similar cases may be dealt with in very different ways. When the criminal route is chosen, the use of criminal law in the vast majority of cases reaching the criminal courts is unnecessary, disproportionate and extremely harmful. Both the decision to prosecute and the sanction eventually imposed are justified by preventive and regulatory purposes. The actual practice of criminalisation reveals that the criminal procedural safeguards are weakened and those accused of immigration crimes are likely to be convicted and imprisoned for these offences. I conclude that the formal and substantive criminalisation of immigration represents a departure from liberal criminal law principles and the purposes of criminal punishment. These conclusions cast doubts about the pragmatic, non-principled use of criminal law to regulate immigration flows, and call for the need to look at other, more humane alternatives in the treatment of ‘unwelcome’ migrants.