Extradition and Mental Health in UK Law

Abstract

The response of UK extradition law and practice to requested persons presenting with mental health disorders is multi-faceted and unnecessarily complex. There are a number of reasons for this. They centre upon the law failing to adequately recognise that mental health cases can give rise to concerns not present in physical health cases. The deficiencies of the law are found in the three applicable bars to extradition; oppression, human rights and forum. They also can be seen in the applicable rules of evidence and the practice of diplomatic assurances. The time has come for UK law to specifically and systematically respond to mental health disorders in the context of extradition.

Gravity in the Statute of the International Criminal Court and Cyber Conduct That Constitutes, Instigates or Facilitates International Crimes

Abstract

This article explores the application of the gravity threshold to cyber conduct that might fall under the jurisdiction of the International Criminal Court. It first looks at how international crimes within the jurisdiction of the Court can be committed, instigated or facilitated in and through cyberspace and then discusses the problems that might arise when assessing gravity in this context. In particular, the article applies the elements of the gravity assessment identified in the Court’s case-law and by the Prosecutor, i.e. the identification of those “most responsible” for the alleged crimes and certain quantitative and qualitative factors, in order to determine the gravity of a case or situation involving cyber conduct.

Books Received

Colloquium Report: Sentencing/ Strafzumessung – Comparative Insights

A Thin-Slice of Institutionalised Police Brutality: A Tradition of Excessive Force in the Chicago Police Department Abstract In the Chicago Police Department, a sustained tradition of tolerating violent conduct has contributed to the fostering of a police culture in which the use of force is celebrated. Evidence suggests that there has been a historical reluctance to take action to discipline officers accused of misconduct – many of whom are highly decorated veterans of the Chicago Police Department. It is the contention of this article that the long-standing endorsement of excessive force in Chicago policing has compromised officers’ ability to thin-slice, a psychological process in which people are able to draw on their experiences and socio-cultural context to make quick decisions under pressure. Instead, officers are instinctively drawn to engage in misconduct as a means to an end, with the confidence that their actions will not attract the sanction of their superiors.

Safe Convictions Abstract It is clear today that there is a significant phenomenon of wrongful convictions. Since safety theory and safety measures are not developed in the criminal justice system, we have to learn it from other areas, where modern safety is common practice, such as aviation, transportation and engineering. The article proposes some general principles for modern safety from false convictions, based on principles guiding other areas, as well as specific modern safety methods that can and should be applied in the criminal justice system, including: Establishing a “Safety in the Criminal Justice System Institute”; Enforcing accident (false convictions) and incident reporting duties; Developing education, training and a culture of safety; Applying “Identify-Analyze-Control” using the innovative STAMP safety model (“System-Theoretic Accident Model and Processes”); Creating redundancy; and Conducting an ongoing process of improvement. The high rate of false convictions is not an inevitable fate.

A critical evaluation of the prohibition on the South African prosecuting authority to appeal against decisions on questions of fact Abstract Following the common law tradition in respect of criminal procedure, South African legislation does not allow the National Prosecuting Authority of South Africa (hereafter referred to as “the State”) to appeal on a question of fact decided in favour of an accused person. This is the case even in the event of a material factual error. The State increasingly makes use of its limited statutorily conferred right to lodge appeals in criminal cases. As a result, the distinction between questions of fact and questions of law has received considerable attention by the superior courts of South Africa in the last decade. One of the many cases wherein considerable time was spent on dealing with the distinction between a question of fact and a question of law, was the widely reported appeal by the State against the conviction of the athlete Oscar Pistorius on a charge of culpable homicide. This contribution summarises the manner in which the South African judiciary has dealt with the juridical distinction between a question of fact and a question of law. It further examines the arguments advanced for limiting the powers of the State to appeal, as well as arguments in favour of extending the State broader appeal rights. Some of the author’s conclusions are that the right to a fair trial also extends to the State representing the community and as such the right to full appeals by the State ought to be allowed. A criminal appeal is not a trial de novo but merely a continuation of the lis between the State and the accused person. As such the State should also have the right to a fair trial until the last court has spoken the last word on the matter. Furthermore, it is pointed out that the historical reasons for denying the State a full right of appeal is not necessarily valid any longer. The South African legislature should make work of ensuring that the recommendations made nearly twenty years ago by the South African Law Commission (now, the South African Law Reform Commission) that the State be granted broader appeal rights.

Books Received

Correction to: Gravity in the Statute of the International Criminal Court and Cyber Conduct That Constitutes, Instigates or Facilitates International Crimes In the original publication, the affiliation of corresponding author Prof. Marco Roscini was published incorrectly.

Out of Africa: Exploring the Ethiopian Sentencing Guidelines Abstract To date, the literature on sentencing reform has largely focused on western jurisdictions, particularly the United States and Europe. Developments in other parts of the world, particularly on the African continent, have been overlooked. This article explores sentencing in a lesser-known African jurisdiction: Ethiopia. The focus of the essay is upon the issue of structured sentencing. Sentencing in Ethiopia, like most jurisdictions, has historically been a very discretionary stage of the criminal process. That has now changed with the introduction of a comprehensive guideline scheme. Although sentencing guidelines in the US and England and Wales have been the subject of much critical scrutiny, nonwestern guidelines have attracted very little attention from scholars. Although there are parallels between the structure of the Ethiopian system and guidelines in other countries, there are also important differences. Since they are more developed than guidelines in adjacent countries, the Ethiopian guidelines constitute a model for other regional nations, including those with a post-colonial legacy. After providing an overview of sentencing in Ethiopia, the article describes the origin, nature, and consequences of the Ethiopian guidelines. The guidelines provide sentence ranges for different levels of seriousness for many crimes, and also prescribe a methodology to guide courts sentencing for offences for which no such guidance exists. They also provide some structure for the judicial use of mitigating and aggravating factors at sentencing. We conclude by identifying some deficiencies of the current guidelines and propose some specific remedies.