June 26, 2017, by Matt Thomason

Criminal Justice Research Centre East Midlands Postgraduate Conference on Criminal Law and Criminology

By Matt Thomason & Cerys Gibson

Matt is a PhD candidate at the University of Nottingham, researching the uses of bad character and previous sexual history evidence against non-defendant witnesses in England and Wales.

Cerys is also a PhD candidate at the University of Nottingham, whose research focuses on the use of adult conditional cautions in England and Wales.

 

On the 22^nd June 2017, the Criminal Justice Research Centre (CJRC) here at the University of Nottingham hosted its first postgraduate conference. Speakers were invited from the six universities in the three ‘Midlands Cities’ (Nottingham, Birmingham and Leicester) to present on any aspect of criminal law, criminal justice or criminology to an audience of postgraduate students and academics. One of the key aims of this conference was to facilitate improved communication between students in different universities and disciplines to encourage further co-operation and support in the future.

The event was organised by Cerys Gibson and Matt Thomason, two active members of the CJRC who have recently widened the scope of the Centre to encourage greater participation, and inclusion, of both postgraduate and undergraduate students. The postgraduate conference acted as the opening event to a second CJRC conference held on the 23^rd June, Penal Reform: Where To Next? organised by Associate Professor Nicola Carr (University of Nottingham). In this post we will give an overview of the papers given in the postgraduate conference.

Session 1

Chair: Rosella Pulvirenti (PhD candidate, University of Nottingham)

The first session began with Ermioni Xanthopoulou’s (University of Hertfordshire) paper ‘An EU level analysis of whether proportionality is a helpful or desirable means of protecting fundamental rights’. In her paper, Ermioni questioned the appropriateness of using the concept of proportionality in the EU’s area of Freedom, Security and Justice. Ermioni focused on two particular areas, the European Arrest Warrant and the Dublin III Regulations on asylum seekers, teasing out similarities and differences in how the concept of proportionality has been operationalised in the case law, ultimately concluding that in many cases proportionality is an insufficient safeguard to individuals’ human rights.

Ermioni’s paper was followed by Matthew Ayibakuro (University of Birmingham) who presented ‘When Criminalising Crimes is not Enough: Understanding the Move Away from a Criminal Law Approach to Anti-Corruption’. Matthew’s research focuses on corruption in the public sector in sub-Saharan Africa and how it can be tackled. Matthew argued that since the 1990s, the worldwide policy has been criminalisation-focused, but this approach has not had any effect on the prevalence of corruption. The criminalisation focus neglects the influence of social, cultural and economic factors from which corruption is founded. Instead, Matthew argued in favour of either a collective or rights-based approach which would tackle corruption from the bottom-up and be citizen-led.

Session 2

Chair: Dr Vicky Kemp (Principal Research Fellow, University of Nottingham)

The second session of the day began with a paper entitled ‘Treating mentally disordered offenders: Hospital-like prisons, or prison-like hospitals?’ presented by Jack Tomlin (University of Nottingham). Jack began with a discussion of the ‘not guilty by reason of insanity’ defence from R v McNaughten, problematizing the purpose of placing those with psychiatric disorders in mental health facilities rather than prisons. Jack then used the concept of ‘restrictiveness’ to draw parallels between secure mental health facilities and prisons, and set out his empirical research which aims to further explore this concept of restrictiveness in mental health facilities.

Anil Singh Matoo’s (University of Birmingham) paper ‘The Prisoner’s Appeal to the Eighth Amendment Due to the Punitive Measure of Prolonged Solitary Confinement’ began by distinguishing short-term solitary confinement (less than 3 months) from long-term (more than 3 months), with Anil noting that long-term health effects only arise during long-term confinement, though those effects are catastrophic for the individual. Anil then described and criticised decisions of the US Supreme Court which had held that there could only be a breach of the 8^th Amendment if a prison officer was directly culpable for the cruel treatment of the prisoner. This test effectively makes it impossible to argue that long-term solitary confinement breaches the 8^th Amendment, and may have indirectly legitimised a ‘psychological death penalty’.

The morning session concluded with Cerys Gibson’s (University of Nottingham) paper entitled ‘Adult Conditional Cautioning in England & Wales: A Socio-legal Analysis of Policy and Practice’. Cerys began the presentation describing the current system of adult out-of-court disposals before focussing on the policy justifications behind the introduction of conditional cautions use, including efficiency, a focus on victim participation and facilitating local responses to offending behaviour. Cerys highlighted important issues behind their use, such as due process rights, transparency and accountability, before setting out her socio-legal work to be conducted in this area involving interviews with decision-makers and policy level representatives from the police and Crown Prosecution Service.

Session 3

Chair: Professor John Jackson (Professor of Comparative Criminal Law and Procedure, University of Nottingham)

The final session of the day began with the paper ‘Crossing the Boundary between Law and Science: The Journey of Forensic DNA Technology in the United States through the Reports of the National Academy of Sciences’ by Amelia Shooter (Birmingham City University). Amelia’s research focuses on evolving judicial and policy responses to the increasing sophistication of ‘scientific evidence’. In particular, Amelia is analysing six reports of the National Academy of Sciences and how these have been incorporated or otherwise responded to by the judiciary. In the paper, Amelia flagged particular concerns around evidence admissibility, privacy, expert testimony, and how judges and juries interpret statistics admitted at trial. Amelia hopes that her research will shed some light on how these concerns are addressed, and will contribute to the continuing debate regarding the relationship between law and science.

The final paper of the conference, ‘Bad Character Evidence: A Reprehensible State of Affairs’, was given by Matt Thomason (University of Nottingham). Matt presented a doctrinal analysis of how the definition of ‘bad character’ in ss98 and 112 of the Criminal Justice Act 2003 has been interpreted in the case law. Matt argued that, in general, evidence of prior convictions is unproblematic, however there is a great deal of uncertainty and contradictions in the case law concerning evidence of ‘reprehensible behaviour’. Following a further discussion of other conceptual limitations to the definition of ‘bad character’, Matt concluded that doctrinal research was insufficient by itself to understand how ‘reprehensible behaviour’ is understood by trial judges and barristers, and so teed up empirical research questions which he aims to investigate through interviews with members of the judiciary and barristers.

Concluding Remarks

Associate Professor Nicola Carr concluded the day by providing insightful remarks which brought together the main themes of the day which emerged even amongst such varied papers. She noted that the law always aimed at providing some balance between competing interests, whether between threats and human rights, or efficacy and due process values. However, from an academic point of view, what became clear was that the law was often the beginning of the inquiry, with socio-legal research needed to fill the gaps in knowledge of how such conflicts are resolved. Finally, Nicola referred to the offender’s dog, a subject that had emerged twice during the presentations and had paradoxically come to represent the human face of such research. She noted that it was important to bear small details in mind when discussing issues raised during the day to ensure that those involved maintain some sense of individualisation.

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