The Governance of Sexual Offending Across Europe: Penal Policies, Political Economies and the Institutionalization of Risk

This article examines why England and Wales have comparatively one of the most stringent systems for the governance of sexual offending within Western Europe. While England and Wales, like the USA, have adopted broadly exclusionary, managerialist penal policies based around incapacitation and targeted surveillance, many other Western European countries have opted for more inclusionary therapeutic interventions. Divergences in state approaches to sex offender risk, particularly in relation to notification and vetting schemes, are initially examined with reference to the respective theoretical frameworks of ‘policy transfer’ and differing political economies. Chiefly, however, differences in penal policies are attributed to the social and political construction of risk and its control. There may be multiple expressions of risk relating to expert, lay, moral or emotive aspects. It is argued, however, that it is the particular convergence and alignment of these dimensions on the part of the various stakeholders in the UK – government, media, public and professional – that leads to risk becoming institutionalized in the form of punitive regulatory policies for managing the dangerous.

Crime, Punishment and Article 3 ECHR: Puzzles and Prospects of Applying an Absolute Right in a Penal Context

Article 3 of the European Convention on Human Rights (ECHR), which provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, is considered to enshrine an absolute right. Yet it contains an under-explored element: inhuman and degrading punishment. While torture has been the subject of extensive academic commentary, and inhuman and degrading treatment has been examined to some extent, the prohibition of inhuman and degrading punishment has not been explored in significant depth, in spite of its considerable potential to alter the penal landscape.

This paper elucidates the key doctrinal elements of inhuman and degrading punishment ‘and treatment associated with it’, in the words of the European Court of Human Rights (ECtHR). It addresses a number of ‘puzzles’ or problems which arise in applying the absolute right enshrined in Article 3 of the ECHR to sentencing and imprisonment, clarifies ECtHR doctrine and highlights some of its key implications. Bringing a theoretically informed understanding to bear on the application of Article 3 of the ECHR in a penal context, the paper provides clarity and coherence to a complex and crucial intersection between human rights and penology.

Acaso moral e tentativa jurídico-penal

No primeiro capítulo exploro a noção de tentativa jurídico-penal no ordenamento jurídico português e a noção de acaso moral, recorrendo na primeira parte a legislação e a doutrina; na segunda a argumentos filosóficos e jurídicos. No segundo capítulo defendo a inaplicabilidade do acaso moral à tentativa jurídico-penal. Esta tese fundamenta-se em argumentos filosóficos e jurídicos, procurando espelhar uma ligação intrínseca entre eles. A conclusão pretende sustentar uma posição ancorada na teorização da tentativa.

Da valoração de gravações e fotografias obtidas por particulares no processo penal

Recordings and photographs obtained by private individuals can be two of the most relevant evidences in helping finding the truth; however, they can also conflict with fundamental rights such as privacy, spoken word or image of the targets. It is not enough that only the violation of the right to privacy is withdrawn because rights to spoken word or image, unattached from the first one, show up independently as the main violated rights and are criminally protected in article 199º of the criminal code. Its use as evidence is, on a first moment, dependent on the private's conduct lawfulness, as it is stated in article 167º of the criminal procedure code. In order to consider its lawfulness, and accept its use as evidence, portuguese higher courts have been defending constructions mostly based on legal causes of defense. Although agreeing with a more flexible position of weighing all the interests at stake instead of denying its use as evidence, we believe notwithstanding that some of these solutions are misleading and shall not be spared from critics. Lastly, even if we reach a positive conclusion about the lawfulness of obtaining and using recordings and photogtaphs carried out to court by private individuals, they must not be however automatically admitted as evidence, still being necessary to proceed to a separate weighting, within the criminal procedure and its own legal rules, about their real purposes in the case.

As 'conversas informais' extraprocessuais como meio de prova em processo penal

In the present thesis, we examine the approach to the so-called “informal conversations”, especially between a suspect or defendant and criminal police authorities. Our goal is to understand if criminal police authorities are allowed to testify about the content of these conversations, revealing facts that the suspect or defendant may have shared with them, as well as about evidence that they may have acquired through these statements. Firstly, we briefly present the notion of “informal conversations” and the great variety of situations they may encompass: intra or extra-procedural; prior or subsequent to someone acquires the status of defendant. Secondly, we analyse some of the principles and rules that are involved in this controversial issue: principles concerning the procedural structure, organization and dynamic; principles concerning the production and assessment of evidence in the trial hearing; principles concerning the prosecution and the powers of criminal police authorities; the procedural status of the defendant; the rules concerning the reading of statements in the trial hearing; the rules concerning hearsay testimonies. Thirdly, we go through the great amount of case law on the so-called “informal conversations” and related matters, analysing the most relevant cases and the arguments that sustain them, as well as the legal literature. Our goal is to understand the evolution, throughout the last two decades, of the different opinions regarding the approach to the various situations in which “informal conversations” may occur and in which the admissibility of a testimony by criminal police authorities is questioned. Finally, we defend a different approach for testimonies by criminal police authorities prior and subsequent to someone acquiring the status of defendant. We see the moment when someone acquires the status of defendant as a border area in the admissibility of “informal conversations”, because from then on the statements have to be collected and assessed according to the law, so all the other conversations (or any other evidence) collected informally are irrelevant. As to the specific case of the testimony about the re-enactment of the crime, given the high degree of difficulty in separating the defendant’s contributions that may be considered essential and those that may be considered less useful, but still relevant, we support the qualification of the defendant’s contributions as inseparable from the re-enactment, allowing it to be replicated and assessed in the trial hearing with no restrictions.