Tag Archives: criminal law

The Rape Trial and the Limits of Liberal Reform. And Why Legal Scholars need to do Theory Better

By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).

Orestes Pursued by the Furies (1922-25) by John Singer Sargent

In recently published work I engage in a philosophical and psychoanalytic excavation of legal discourse on (and in) the rape trial.[1]  In this post I briefly summarise my key claims arguing, while I do, that legal scholars must diversify the theoretical tools they draw on in confronting issues of social justice.

Much feminist scholarship on rape asserts that the law has reached a best practice plateau and justice for victims is now being held back primarily by the aberrant ‘attitudes’ of criminal justice actors charged with implementing the law. Those attitudes, it is argued, militate against the best intentions of law makers charged with stemming burgeoning attrition rates. Attrition refers to the phenomena – not anomalous in the criminal justice system, but particularly marked in cases of sex crime – whereby alleged instances of sexual violence drop out of the criminal justice system.  This occurs at multiple points, the most notable of which is the first point where a victim makes the decision to report to police.  Continue reading

Criminal Law to the Rescue? ‘Wolf-Whistling’ as Hate Crime

By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).*

Eugène Delacroix’s Liberty Leading the People

Eugène Delacroix’s Liberty Leading the People

On July 13, 2016 Nottinghamshire police became the first force in the UK to recognise misogyny as a hate crime.  Hate crime is defined as ‘any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a personal characteristic’. In practical terms, this means that in Nottinghamshire police can record reported incidents such as wolf whistling, verbal abuse, taking photographs without consent, and using mobile phones to send unwanted messages with an additional ‘flag’ or qualifier on their incident log as hate crime.  It appears that the move is largely symbolic, as gender animus is not a relevant aggravating factor for the purposes of sentencing under relevant UK ‘hate crime’ legislation,[1] and does not create any new criminal offences.  However, the initiative has been supported by the force working in partnership with the Nottingham Women’s Centre and has involved the specialised training of officers to better identify and respond to the public harassment of women by men.

The announcement last week of the initiative was met with the predictable level of teeth gnashing and cries of ‘political correctness gone mad’ characteristic of any policy announcement addressed to countering gender inequality.  While the move may be largely bureaucratic, it does present an opportunity to look again at the spectre of criminalisation in our time and consider a related question: What is the role of the criminal law in regulating gender (in)equality, and what should it be? Continue reading

Potions and prosecution: a case from medieval Herefordshire

By Dr Gwen Seabourne, Reader in Legal History (University of Bristol Law School).*

© M.J. Seabourne. Tomb of John de Swinfeld, Hereford Cathedral

© M.J. Seabourne. Tomb of John de Swinfeld, Hereford Cathedral

In 1292, Herefordshire, close to the Welsh border, received a visit from the royal justices, touring England with a view to hearing legal disputes, investigating crimes and making a tidy profit for the king from the various fines imposed upon individuals and communities. Precociously bureaucratic, the machinery of royal government recorded much of what went on before the justices, bequeathing to future generations priceless insights into life and law at this early time.

One intriguing case from the rolls of this 1292 session gives important glimpses of several different aspects of medieval law and life. As I have noted in a recent article in Social History of Medicine, Isabella Plomet, a woman from Hereford, managed to obtain some measure of legal redress from Ralph de Worgan, a surgeon of sorts, who was found to have agreed to treat her for leg problems, but actually gave her a drug called dwoledreng and proceeded to rape her. Continue reading

Testing the boundaries of fraud by abuse of position

By Dr Jennifer Collins, Lecturer in Law (University of Bristol Law School).

7306229-seasonal-workersThe Court of Appeal has delivered an important judgment in R v Valujevs [2015] 3 WLR 109, on the scope of fraud by abuse of position under section 4 of the Fraud Act 2006 (on which see J. Collins, ‘Fraud by Abuse of Position and Unlicensed Gangmasters’ (2016) 79 Modern Law Review 354).  The importance of ensuring legal certainty in drafting a general fraud offence was emphasized when the Fraud Bill was debated in the House of Commons a decade ago (Hansard, HC 12 June 2006, col 549).  Dominic Grieve MP’s concerns that fraud by abuse of position was ‘too widely drafted’, and would lead to ‘a catch-all provision that will be a nightmare of judicial interpretation’ (Standing Committee B, 20 June 2006, col 25) remain relevant to what has resulted in sections 1 and 4 of the Fraud Act 2006.  Does R v Valujevs shed new light on the principled operation of the offence?  And is the Court of Appeal’s interpretation in line with concerns at the Committee stage to safeguard vulnerable categories of persons (Standing Committee B, 20 June 2006, col 26)? Continue reading

What is Legal Geography?

By Prof Antonia Layard, Professor of Law (University of Bristol Law School) *

Legal geography is an exciting and emerging cross-discipline, exploring how people and places co-constitute the world. It proceeds from the premise that the legal co-creates the spatial and the social while the social and the spatial co-create the legal. There is reflexivity. Once we accept this premise, however, the hard work begins. How do we work out what ‘work’ legal provisions and practices are doing to create spaces (national, regional, local or private) and how do spatial and social settings inform the application of legal rules and principles?

In a piece that was commissioned by Geography Compass, both to provide an overview of where legal geography is today as well as to consider where it is heading, Luke Bennett and I developed the idea of becoming a ‘spatial detective’. We suggested that there is much to learn by both legal scholars and geographers becoming ‘spatial detectives’ – of learning, Sherlock Holmes-like, to search out the presence and absence of spatialities in legal practice, and of law’s traces and effects embedded within places. To make this argument, we revisited the debates around the case of R –v Dudley & Stephens ((1884) 14 QBD 273, still a classic in Law Schools).

bookOn 6th September 1884, three sailors arrived in Falmouth and reported to the local Customs House, resenting sworn statements there about their recent activities. One month later, these candid statements became evidence in their trial for murder held at the Devon & Cornwall Winter Assizes, in Exeter. This case, R –v Dudley & Stephens, proved to be one of the most contentious legal decisions in English legal history. For the courts ruled that the killing and eating of a cabin boy by these sailors, was a crime under English Law. This was so, even though the sailors would have died had they not done so, as they drifted helplessly aboard a lifeboat in the South Atlantic, 1600 miles off the Cape of Good Hope. Continue reading