This article explores the legal constraints imposed on the rising number of so-called ‘dangerous’ sex offenders in England and Wales, in particular once they have been released from prison into the community. The main methods of constraint are strict licence conditions, Multi-Agency Public Protection Arrangements and civil protective orders such as Sexual Harm Prevention Orders. ‘Control’ in the community is thus widespread, but is difficult to assess whether it is either effective or necessary without a great deal more research and analysis. Post-sentence ‘punishment’ has been largely ignored by both academic lawyers and criminologists. The article concludes that financial austerity might prove to be as important as the human rights agenda in curbing the disproportionate use of powers of control. |
Search result: 40 articles
Year 2016 xArticle |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | Dangerous, sex offenders, human rights, community supervision, punishment |
Authors | Nicola Padfield |
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Article |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | Supervised release, supervision, sex offenders, dangerousness, safety measures, societal upheaval, proportionality |
Authors | Lucía Martínez Garay and Jorge Correcher Mira |
AbstractAuthor's information |
This article presents an overview of the legal regime provided in the Spanish system of criminal sanctions regarding the control of dangerous sex offenders in the community. It focuses on the introduction, in 2010, of a post-prison safety measure named supervised release. We describe the context of its introduction in the Spanish Criminal Code, considering the influence of societal upheaval concerning dangerous sex offenders in its development, and also the historical and theoretical features of the Spanish system of criminal sanctions. We also analyse the legal framework of supervised release, the existing case law about it and how the legal doctrine has until now assessed this measure. After this analysis, the main aim of this article consists in evaluating the effectiveness and the proportionality of the measure, according to the principle of minimal constraints and the rehabilitative function of the criminal sanctions in Spanish law, stated in Article 25.2 of the Spanish Constitution. |
Article |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | Dutch penal law, preventive supervision, dangerous offenders, human rights, social rehabilitation |
Authors | Sanne Struijk and Paul Mevis |
AbstractAuthor's information |
In the Netherlands, the legal possibilities for post-custodial supervision have been extended considerably in recent years. A currently passed law aims to further increase these possibilities specifically for dangerous (sex) offenders. This law consists of three separate parts that may all result in life-long supervision. In the first two parts, the supervision is embedded in the conditional release after either a prison sentence or the safety measure ‘ter beschikking stelling’ (TBS). This paper focuses on the third part of the law, which introduces an independent supervisory safety measure as a preventive continuation of both a prison sentence and the TBS measure. Inevitably, this new independent sanction raises questions about legitimacy and necessity, on which this paper reflects from a human rights perspective. Against the background of the existing Dutch penal law system, the content of the law is thoroughly assessed in view of the legal framework of the Council of Europe and the legal principles of proportionality and less restrictive means. In the end, we conclude that the supervisory safety measure is not legitimate nor necessary (yet). Apart from the current lack of (empirical evidence of) necessity, we state that there is a real possibility of an infringement of Article 5(4) ECHR and Article 7 ECHR, a lack of legitimising supervision ‘gaps’ in the existing penal law system, and finally a lack of clear legal criteria. Regardless of the potential severity of violent (sex) offenses, to simply justify this supervisory safety measure on the basis of ‘better safe than sorry’ is not enough. |
Article |
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Journal | Erasmus Law Review, Issue 2 2016 |
Keywords | Preventive detention, mandatory supervision, sex offenders, retrospective penal laws, legality principle |
Authors | Martine Herzog-Evans |
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France literally ‘discovered’ sexual abuse following neighbour Belgium’s Dutroux case in the late 1990s. Since then, sex offenders have been the focus of politicians, media and law-makers’ attention. Further law reforms have aimed at imposing mandatory supervision and treatment, and in rare cases, preventive detention. The legal framework for mandatory supervision and detention is rather complex, ranging from a mixed sentence (custodial and mandatory supervision and treatment upon release or as a stand-alone sentence) to so-called ‘safety measures’, which supposedly do not aim at punishing an offence, but at protecting society. The difference between the concepts of sentences and safety measures is nevertheless rather blurry. In practice, however, courts have used safety measures quite sparingly and have preferred mandatory supervision as attached to a sentence, notably because it is compatible with cardinal legal principles. Procedural constraints have also contributed to this limited use. Moreover, the type of supervision and treatment that can thus be imposed is virtually identical to that of ordinary probation. It is, however, noteworthy that a higher number of offenders with mental health issues who are deemed ‘dangerous’ are placed in special psychiatric units, something that has not drawn much attention on the part of human rights lawyers. |
Article |
The Role of ODR in Resolving Electronic Commerce Disputes in China |
Journal | International Journal of Online Dispute Resolution, Issue 1 2016 |
Keywords | ODR, China, electronic commerce disputes |
Authors | Jie Zheng |
AbstractAuthor's information |
Online dispute resolution (ODR) has been developed in response to the growth of disputes in electronic commerce transactions. It is based on the legal framework of alternative dispute resolution (ADR) by taking into consideration electronic communications and information technology. This article will introduce the current legal framework and practice of ODR in China, find legal issues that affect the development of ODR and, finally, propose suggestions to overcome these barriers. |
Article |
Is ODR ADR?Reflections of an ADR Founder from 15th ODR Conference, The Hague, The Netherlands, 22-23 May 2016 |
Journal | International Journal of Online Dispute Resolution, Issue 1 2016 |
Keywords | alternative dispute resolution, justice, process pluralism, dispute system design, history of conflict resolution |
Authors | Carrie Menkel-Meadow |
AbstractAuthor's information |
This essay presents the observations of a founder of the dispute resolution field to new developments in online dispute resolution, expressing both concerns and hopes for greater access to justice. |
Case Reports |
2016/57 No compensation for an invalid non-compete clause where no harm shown (FR) |
Journal | European Employment Law Cases, Issue 4 2016 |
Keywords | Non-compete, Damage compensation |
Authors | Claire Toumieux and Susan Ekrami |
AbstractAuthor's information |
An employee who could not prove any harm resulting from an invalid non-compete clause in his employment contract could not obtain damages. |
Article |
Prologue: The IALS Law Reform Project |
Journal | European Journal of Law Reform, Issue 3 2016 |
Keywords | statute, common law, codification, consolidation, implementation |
Authors | Jonathan Teasdale |
AbstractAuthor's information |
Law, particularly enacted law, needs to be as simple and as accessible as possible, clear and concise and – perhaps above all – fit for the purposes of modern society. Laws passed in one decade may prove to be less than adequate for the needs of later generations because of changes in the social fabric or social mores or because of technological advance or economic challenge. Societies needs mechanisms for keeping law under review, particularly when governments are focused on introducing more law – sometimes layered on top of existing law – to fulfil electoral promises. The position is compounded in common law systems where the senior judiciary add to the legal corpus. |
Article |
Managing the EU Acquis |
Journal | European Journal of Law Reform, Issue 3 2016 |
Keywords | EU, legislation, accessibility, updating |
Authors | William Robinson |
AbstractAuthor's information |
EU legislation plays a key role in filling in the gaps in the framework created by the EU Treaties. The body of EU legislation known as the acquis has grown piecemeal over 60 years to a confused and confusing patchwork of over 100,000 pages. There is an urgent need for a more coherent approach to updating, condensing and revising that legislation to ensure that it is readily accessible. New mechanisms should be established for those tasks, or else the existing mechanisms should be enhanced and exploited to the full. |
Article |
The Mechanisms Used to Review Existing Legislation in the Civil Law SystemCase Study – Italy |
Journal | European Journal of Law Reform, Issue 3 2016 |
Keywords | codification, consolidation, law revision, legal restatement, legislative scrutiny |
Authors | Enrico Albanesi |
AbstractAuthor's information |
The aim of this article is to describe the mechanisms that are used in the civil law system to review existing legislation. The case study will be based on the Italian system. In the civil law system we are not familiar with the concept of law reform, in the sense used in the common law system, because there is no law reform agency in the civil law world. The mechanisms used to review the existing law in civil law systems are: codification, consolidation, repeal, law revision and legal restatement. To understand how the mechanisms used to review existing legislation work in Italy, an overview of the Italian law-making and drafting processes will be carried out here, underlying the bad impact that the Italian equal bicameralism has on the quality of legislation and also on the mechanisms to review existing legislation. After this, the article will focus on the specific tools that are used in Italy for codification and consolidation (decreti legislativi), for law revision (the so-called taglia-leggi) and for legal restatement (examining the role of the Consiglio di Stato). Particular attention will also be paid to the parliamentary scrutiny on the quality of legislation. Finally, the article will focus on the constitutional amendment process Italy carried out in 2014-2016 and that was expected to fundamentally change the Italian law-making process, superseding the equal bicameralism arrangement (a referendum on this was held on 4 December 2016, and the reform was rejected by the Italian people). |
Opinion |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2016 |
Keywords | Geert Wilders, hate speech, freedom of opinion, District Court of The Hague, conviction |
Authors | Jogchum Vrielink |
Author's information |
Article |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2016 |
Keywords | sovereignty, constitutional law, positivism, constructivism, common law |
Authors | Pavlos Eleftheriadis |
AbstractAuthor's information |
Legal and sociological theories of sovereignty disagree about the role of legal and social matters in grounding state power. This paper defends a constructivist view, according to which the constitution is a judgment of practical reason. The paper argues that a constitution sets out a comprehensive institutional architecture of social life in terms of principles and official roles that are necessary for any legitimate scheme of social cooperation to exist. It follows that legal and sociological theories of sovereignty capture only part of the truth of sovereignty. Legal reasoning engages with political power, but it is not determined by it. There is no causal chain between power and validity, as suggested by the legal positivists. The relation between power and law is interpretive, not causal. It follows that the circularity of law and the constitution, namely the fact that the law makes the constitution and the constitution makes the law, is not a vicious circle. It is part of an ordinary process of deliberation. |
Article |
The New Handshake: Where We Are Now |
Journal | International Journal of Online Dispute Resolution, Issue 2 2016 |
Keywords | consumers, consumer protection, online dispute resolution (ODR), remedies, e-commerce |
Authors | Amy J. Schmitz and Colin Rule |
AbstractAuthor's information |
The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection. |
Article |
Digital Justice: Introduction |
Journal | International Journal of Online Dispute Resolution, Issue 2 2016 |
Authors | Ethan Katsh and Orna Rabinovich-Einy |
Author's information |
Article |
A More Forceful Collective Redress Schemes in the EU Competition LawWhat Is the Potential for Achieving Full Compensation? |
Journal | European Journal of Law Reform, Issue 4 2016 |
Keywords | full compensation, private enforcement, damages actions, collective actions, deterrence |
Authors | Žygimantas Juška |
AbstractAuthor's information |
The damages actions reform of the European Union is predetermined to fail in achieving its stated goal of full compensation. There are two main reasons for this. First, the Directive on damages actions fails to maintain a balance between the claims of direct and indirect purchasers. Second, the EU policy is not designed to collect a large group of antitrust victims, who have suffered only a low-value harm (e.g., end consumers). The only way to achieve compensation effectiveness is to overstep the bounds of the EU compensatory regime, which is trapped in the grip of conservatism. In such circumstances, this article will explore three forceful scenarios of collective redress that include different types of deterrence-based remedies. The principal aim is to assess the chances of these scenarios in achieving full compensation. After assessing them, the best possible mechanism for compensating victims will be designed. In turn, it will allow the evaluation of to what extent such a scheme can ensure the achievement of full compensation. |
Article |
An Epochal Bifurcation: The International Criminal Court, the African Court and the Struggle against Gross Human Rights Abuses |
Journal | African Journal of International Criminal Justice, Issue 1-2 2016 |
Keywords | ICC, African Court, gross human rights abuses, transitional justice, human rights |
Authors | Ato Kwamena Onoma |
AbstractAuthor's information |
Focus on whether a criminal chamber in a reformed African Court represents progress or retrogression relative to advances made in the Rome Statute shifts attention from the similar foundation of the two courts on an epochal bifurcation between the worst human rights abuses and quotidian wrongs. This bifurcation compromises our understanding of how abuses are related, what we should do about them and how we should go about studying them. It is at the core of aspects of the International Criminal Court (ICC) that have come under severe criticism. It also imperils the criminal chamber of the nascent African Court. |
Article |
The Prosecution of Corporations before a Hybrid International Criminal TribunalThe New TV and Akhbar Beirut Contempt Jurisdiction Decisions of the Special Tribunal for Lebanon |
Journal | African Journal of International Criminal Justice, Issue 1-2 2016 |
Keywords | Special Tribunal for Lebanon, international criminal law, personal jurisdiction, corporate criminal liability, interpretation of Rules of Procedure and Evidence |
Authors | Manuel J. Ventura |
AbstractAuthor's information |
This case note considers two decisions from two separate Appeals Panels of the Special Tribunal for Lebanon (“STL”) which held that the STL possessed the inherent power, pursuant to its inherent jurisdiction in matters relating to contempt, to exert its ratione personae jurisdiction over legal persons – two Lebanese corporations – accused of contemptuous conduct. These decisions opened the door for the first trials of corporate defendants in the history of international criminal law. The analyses of the Appeals Panels are pertinent to unresolved debates before United States (“US”) courts on whether the US Alien Tort Statute recognizes corporate liability for violations of the law of nations; raise the issue of the proper place of the principle of legality when jurisdictional questions arise as well as the proper interpretation of the STL’s Rules of Procedure and Evidence; and also have implications for other international criminal tribunals with provisions regulating contempt of court that are similarly worded to those in place at the STL. |
Editorial |
Editorial |
Journal | African Journal of International Criminal Justice, Issue 1-2 2016 |
Article |
The Fight against Corruption in Sierra LeoneChallenges and Opportunities in the Jurisprudence |
Journal | African Journal of International Criminal Justice, Issue 1-2 2016 |
Keywords | Accountability, corruption, judicial approach, jurisprudence, reforms |
Authors | Michael Imran Kanu |
AbstractAuthor's information |
The fight against corruption in Sierra Leone gained momentum, at least in terms of policy direction, following the enactment of the Anti-Corruption Act 2000 and the Amendment Act in 2008. It is considered to be one of the most robust anti-graft laws in the world and its promulgation is in recognition of the international and national resolve to fight the menace, owing to its devastating effects, especially in the Least Developed Countries (LCDs) of the world. The Anti-Corruption Act of 2000, though viewed as a tremendous move towards curtailing corruption, was riddled with shortcomings. Practitioners viewed the Act as limited in the number of proscribed offences created, coupled with the lack of independence signified by the absence of prosecutorial powers. With the enactment of the Amendment Act in 2008, it is crucial to examine the opportunities it has created to eradicate corruption. Critical also to the national and global resolve is the consideration of challenges that may have sprouted. This paper will examine some of the opportunities and challenges in the jurisprudence in the fight against corruption in Sierra Leone, with the aim of providing an avenue for reflection as well as a prompter for legislative reforms or change in judicial approach. |