VOLUME
3:2
DECEMBER 2016
163-473
  • COMPARATIVE PERSPECTIVES ON CRIMINAL JUSTICE REFORMS

    Nicola Wake and Alan Reed
Abstract

The genesis and impetus for the works presented in this special edition of the Journal of International and Comparative Law derive from a central ambition to invite leading academicians to consider optimal reform conceptualisations within the criminal justice system, guided by comparative analyses and internationalised perspectives. The aim extends to initiatives advanced by Northumbria University’s Centre for Evidence and Criminal Justice Studies. While the works themselves stand as contributions of the individual scholars, they have been influenced by the overarching theme of international and comparative criminal justice and evidence scholarship. This special edition is divided into two parts. The first half of the collection explores contemporary issues in substantive criminal law and sentencing. The second half of the collection assesses evidential issues affecting the operation of the law.

Keywords
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Introduction

The collection commences with a contribution from Barry Mitchell. Barry in “Fundamental Issues in Homicide” notes that there are good reasons why we should be less than happy with both the substantive law and the sentencing of murder. The Law Commission’s recommendations for restructuring the substantive law in 2006 have largely fallen on deaf ears and the deficiencies they identified remain unaddressed. Serious concerns have also been raised about the sentencing law. One of the main assumptions behind the mandatory life sentence — that it was supported by the overwhelming majority of the public — has been doubted following careful survey research, and Sch.21 of the Criminal Justice Act 2003 (to which judges must have regard when determining the minimum term) has been heavily criticised. Through an analysis of the principal shortcomings of the status quo in England and Wales, this article suggests how the criminal justice system should deal with the more serious cases of unlawful homicide by revisiting both the definition of murder and the punishment of convicted offenders.

In “Reconceptualising the Contours of Self-Defence in the Context of Vulnerable Offenders: A Response to the New Zealand Law Commission”, Nicola Wake and Alan Reed contend that there are compelling reasons for reconceptualising the contours of self-defence, and for the introduction of a bespoke partial defence complemented by jury directions and the admissibility of social framework evidence to assist vulnerable offenders who kill their abusers in a desperate attempt to protect themselves. In 2016, the New Zealand Law Commission recommended, inter alia, that self-defence be recategorised and broadened to specifically allow victims of family violence who kill to potentially claim a defence even in the absence of an imminent threat of harm, standardised on an “all or nothing” perspective. In truth, a far wider contextualisation needs to apply, beyond the limited and constrained terms of reference before the Commission. The contours of self-defence applicability ought to extend to extrafamilial vulnerable offenders, encompassing individuals subjected to human trafficking and/or modern day slavery, those trapped by ostensible gang membership and those experiencing third- party abuse who respond with lethal force. It is their assertion, after a comparative assessment of the theoretical and doctrinal precepts of a number of alternative legal systems, that the full and partial defence schema should be more nuanced. Extant laws fail to appropriately recognise the need for a de novo partial defence template and reflective individuated culpability thresholds.