Antisocial personality disorder and therapeutic justice court programs

It has become commonplace for courts to supervise an offender as part of the sentencing process. Many of them have Anti Social Personality Disorder (ASPD). The focus of this article is how the work of specialist and/or problem solving courts can be informed by the insights of the psychology profession into the best practice in the treatment and management of people with ASPD. It is a legitimate purpose of legal work to consider and improve the well-being of the participants in the legal process. Programs designed specifically to deal with those with ASPD could be incorporated into existing Drug Courts, or implemented separately by courts to aid with reforming offenders with ASPD and in managing the re-entry of offenders into the community as part of their sentence. For the success of this initiative on the part of the court, ASPD will need to be specifically diagnosed and treated. Close co-operation between courts and psychologists is required to improve the effectiveness of court programs to treat people with ASPD and to evaluate their success.

‘Not a criminal in the classic sense': @DrRimmer on the sentencing of Jono Moylan #leardblockade #standwithjono

On July 25, 2014, Justice David Davies sentenced Jonathan Moylan at the Supreme Court of New South Wales for a breach of section 1041E (1) of the Corporations Act 2001 (Cth). The ruling is a careful and deliberate decision, showing equipoise. Justice Davies has a reputation for being a thoughtful and philosophical adjudicator. The judge convicted and sentenced Moylan to imprisonment for 1 year and 8 months. The judge ordered that Moylan be “immediately released upon giving security by way of recognisance in the sum of $1000 to be of good behaviour for a period of 2 years commencing today”.

The High Court of Australia and the Marlboro Man: The Battle Over the Plain Packaging of Tobacco Products

In 2012, the High Court of Australia handed down a landmark decision on the plain packaging of tobacco products. This chapter considers the historic ruling in the case of JT International SA v Commonwealth; British American Tobacco Australasia Ltd v Commonwealth. This chapter explores several themes in the decision. First, it highlights the historical work by the High Court of Australia on the role of health regulation, the use of health warnings, and tobacco control. Second, the chapter considers the High Court of Australia's view that intellectual property law promotes the public interest.Third, it explores the High Court of Australia’s analysis of the constitutional law on acquisition of property on just terms. Finally, this chapter contends that the High Court of Australia's ruling on plain packaging of tobacco products will spark an 'Olive Revolution' — and will encourage superior courts and policy-makers to follow suit.

The grapes of wrath: The Coonawarra dispute, geographical indications and international trade

The famous wine region of Coonawarra in South Australia has been promoted as ’Australia's other Red Centre', emphasizing its terra rossa soil and its cabernet sauvignon. In his atlas of the wine regions of Australia, John Beeston comments upon the rich and contested history of the region: ’Coonawarra is certainly the most famous cabernet sauvignon region in Australia, and some would argue, the most renowned wine region in Australia per se'. A reporter, Penelope Debelle, captures a sense of the legal conflict over the parameters of the boundaries of Coonawarra: ’Behind the name Coonawarra, an inglorious contest is being waged that pits the romance of South Australia's terra rossa cool-climate wine region against the cold commercial reality of the label.'This Chapter tells the story behind the Coonawarra litigation, addressing the parties to the dispute; the legal and historical context of the case; and the immediate impact case, as well as its lingering significance. It considers the ’Coonawarra' case as, very literally, a landmark in Australian jurisprudence in respect of intellectual property. This chapter engages in the methodology of ’legal storytelling'. In the field of new historicism, the use of anecdotes - petite histoire - has been seen as a useful way of challenging grand historical narratives. Joel Fineman has observed that the anecdote is ’the literary form or genre that uniquely refers to the real.' This chapter has three parts. Part 1 outlines the European Community - Australia Wine Agreement 1994, and the operation of the Australian Wine and Brandy Corporation Act 1980 (Cth). Part 2 considers the various stages of the dispute over the Coonawarra region - moving from the decision of the Geographical Indications Committee, to the ruling of the Administrative Appeals Tribunal; and the conclusive decision of the Full Court of the Federal Court of Australia. Part 3 examines the implications of the Coonawarra litigation for other wine regions of Australia - most notably, the King Valley in Victoria; but also the Hunter Valley in the New South Wales; and the Margaret River in Western Australia. The conclusion considers the ramifications of the European Community-Australia Wine Agreement 2007, which has been initialed by both sides.

Access to essential medicines: Public health and international law

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases. Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research. In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing. In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable... The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

"Secoituxesta järjettömäin luondocappalden canssa" : Perversiot, oikeuselämä ja kansankulttuuri 1700-luvun Suomessa

Bestiality was in the 18th century a more difficult problem in terms of criminal policy in Sweden and Finland than in any other Christian country in any other period. In the legal history of deviant sexuality, the phenomenon was uniquely widespread by international comparison. The number of court cases per capita in Finland was even higher than in Sweden. The authorities classified bestiality among the most serious crimes and a deadly sin. The Court of Appeal in Turku opted for an independent line and was clearly more lenient than Swedish courts of justice. Death sentences on grounds of bestiality ended in the 1730s, decades earlier than in Sweden. The sources for the present dissertation include judgment books and Court of Appeal decisions in 253 cases, which show that the persecution of those engaging in bestial acts in 18th century Finland was not organised by the centralised power of Stockholm. There is little evidence of local campaigns that would have been led by authorities. The church in its orthodoxy was losing ground and the clergy governed their parishes with more pragmatism than the Old Testament sanctioned. When exposing bestiality, the legal system was compelled to rely on the initiative of the public. In cases of illicit intercourse or adultery the authorities were even more dependent on the activeness of the local community. Bestiality left no tangible evidence, illegitimate children, to betray the crime to the clergy or secular authorities. The moral views of the church and the local community were not on a collision course. It was a common view that bestiality was a heinous act. Yet nowhere near all crimes came to the authorities' knowledge. Because of the heavy burden of proof, the legal position of the informer was difficult. Passiveness in reporting the crime was partly because most Finns felt it was not their place to intervene in their neighbours' private lives, as long as that privacy posed no serious threat to the neighbourhood. Hidden crime was at least as common as crime more easily exposed and proven. A typical Finnish perpetrator of bestiality was a young unmarried man with no criminal background or mental illness. The suspects were not members of ethnic minorities or marginal social groups. In trials, farmhands were more likely to be sentenced than their masters, but a more salient common denominator than social and economical status was the suspects' young age. For most of the defendants bestiality was a deep-rooted habit, which had been adopted in early youth. This form of subculture spread among the youth, and the most susceptible to experiment with the act were shepherds. The difference between man and animal was not clear-cut or self-evident. The difficulty in drawing the line is evident both in legal sources and Finnish folklore. The law that required that the animal partners be slaughtered led to the killing of thousands of cows and mares, and thereby to substantial material losses to their owners. Regarding bestiality as a crime against property motivated people to report it. The belief that the act would produce human-animal mongrels or that it would poison the milk and the meat horrified the public more than the teachings of the church ever could. Among the most significant aspects in the problems regarding the animals is how profoundly different the worldview of 18th century people was from that of today.

Criminal intent

The High Court recently heard submissions of counsel in Zaburoni v The Queen. This case concerns an appeal against conviction for transmitting a serious disease with intent under section 317(b) and (e) of the Queensland Criminal Code. It raises important issues about the meaning of intent and how intent can be proven in Queensland criminal offences. Since intent is an element of so many of the more serious crimes, it is surprising to see that the courts, both in England and Australia, continue to grapple with how best to define it. In murder, for example, the accused is potentially going to be locked up for a very long time, so it is essential that the courts and juries are very clear on what intent actually means, so that they can be confident in correctly finding that it was present on the facts of the case.

Medicalising Prohibition : Harm reduction in Finnish and International Drug Policy

The increase in drug use and related harms in the late 1990s in Finland has come to be referred to as the second drug wave. In addition to using criminal justice as a basis of drug policy, new kinds of drug regulation were introduced. Some of the new regulation strategies were referred to as "harm reduction". The most widely known practices of harm reduction include needle and syringe exchange programmes for intravenous drug users and medicinal substitution and maintenance treatment programmes for opiate users. The purpose of the study is to examine the change of drug policy in Finland and particularly the political struggle surrounding harm reduction in the context of this change. The aim is, first, to analyse the content of harm reduction policy and the dynamics of its emergence and, second, to assess to what extent harm reduction undermines or threatens traditional drug policy. The concept of harm reduction is typically associated with a drug policy strategy that employs the public health approach and where the principal focus of regulation is on drug-related health harms and risks. On the other hand, harm reduction policy has also been given other interpretations, relating, in particular, to human rights and social equality. In Finland, harm reduction can also be seen to have its roots in criminal policy. The general conclusion of the study is that rather than posing a threat to a prohibitionist drug policy, harm reduction has come to form part of it. The implementation of harm reduction by setting up health counselling centres for drug users with the main focus on needle exchange and by extending substitution treatment has implied the creation of specialised services based on medical expertise and an increasing involvement of the medical profession in addressing drug problems. At the same time the criminal justice control of drug use has been intensified. Accordingly, harm reduction has not entailed a shift to a more liberal drug policy nor has it undermined the traditional policy with its emphasis on total drug prohibition. Instead, harm reduction in combination with a prohibitionist penal policy constitutes a new dual-track drug policy paradigm. The study draws on the constructionist tradition of research on social problems and movements, where the analysis centres on claims made about social problems, claim-makers, ways of making claims and related social mobilisation. The research material mainly consists of administrative documents and interviews with key stakeholders. The doctoral study consists of five original articles and a summary article. The first article gives an overview of the strained process of change of drug policy and policy trends around the turn of the millennium. The second article focuses on the concept of harm reduction and the international organisations and groupings involved in defining it. The third article describes the process that in 1996 97 led to the creation of the first Finnish national drug policy strategy by reconciling mutually contradictory views of addressing the drug problem, at the same as the way was paved for harm reduction measures. The fourth article seeks to explain the relatively rapid diffusion of needle exchange programmes after 1996. The fifth article assesses substitution treatment as a harm reduction measure from the viewpoint of the associations of opioid users and their family members.

An Axiom of Military Law : Applicability of National Criminal Law to Military Personnel and Associated Civilians Abroad

States regularly deploy elements of their armed forces abroad. When that happens, the military personnel concerned largely remain governed by the penal law of the State that they serve. This extraterritorial extension of national criminal law, which has been treated as axiomatic in domestic law and ignored by international law scholarship, is the subject of this dissertation. The first part of the study considers the ambit of national criminal law without any special regard to the armed forces. It explores the historical development of the currently prevailing system of territorial law and looks at the ambit that national legal systems claim today. Turning then to international law, the study debunks the oddly persistent belief that States enjoy a freedom to extend their laws to extraterritorial conduct as they please, and that they are in this respect constrained only by some specific prohibitions in international law. Six arguments historical, empirical, ideological, functional, doctrinal and systemic are advanced to support a contrary view: that States are prohibited from extending the reach of their legal systems abroad, unless they can rely on a permissive principle of international law for doing so. The second part of the study deals specifically with State jurisdiction in a military context, that is to say, as applied to military personnel in the strict sense (service members) and various civilians serving with or accompanying the forces (associated civilians). While the status of armed forces on foreign soil has transformed from one encapsulated in the customary concept of extraterritoriality to a modern regulation of immunities granted by treaties, elements of armed forces located abroad usually do enjoy some degree of insulation from the legal system of the host State. As a corollary, they should generally remain covered by the law of their own State. The extent of this extraterritorial extension of national law is revealed in a comparative review of national legislation, paying particular attention to recent legal reforms in the United States and the United Kingdom two states that have sought to extend the scope of their national law to cover the conduct of military contractor personnel. The principal argument of the dissertation is that applying national criminal law to service members and associated civilians abroad is distinct from other extraterritorial claims of jurisdiction (in particular, the nationality principle or the protective principle of jurisdiction). The service jurisdiction over the armed forces has a distinct aim: ensuring the coherence and indivisibility of the forces and maintaining discipline. Furthermore, the exercise of service jurisdiction seeks to reduce the chances of the State itself becoming internationally liable for the conduct of its service members and associated civilians. Critically, the legal system of the troop-deploying State, by extending its reach abroad, seeks to avoid accountability gaps that might result from immunities from host State law.

La reinserción social de los ex-presidiarios en la Argentina de las primeras décadas del siglo XX : algunos comentarios biográficos sobre Jorge H. Frías, fundador del Patronato de Liberados y Excarcelados de la Capital Federal

Resumen: Este trabajo pretende avanzar sobre una problemática escasamente abordada por la historiografía jurídica y social argentina: la reinserción social de los egresados de las prisiones. Así, partiendo de la utilidad que tienen para la historiografía los estudios biográficos y de instituciones penitenciarias y post-penitenciarias, analizaremos algunos aspectos de la labor profesional de Jorge H. Frías, distinguido jurista, presidente de la Cámara de Apelaciones en lo Criminal y Correccional y fundador en 1918 de la primera institución de reinserción social de la Argentina: el Patronato de Liberados y Excarcelados de la Capital Federal. Esperamos que este breve trabajo contribuya a alentar la realización de otros estudios sobre diferentes aspectos del universo penitenciario argentino (directores de presidios, viajeros penitenciarios, congresos penitenciarios nacionales e internacionales, revistas de los funcionarios de prisiones, etc.) que aún hoy en día permanecen desconocidos.

A política criminal de drogas do Brasil e da Colômbia: uma análise comparativa

O objetivo deste trabalho é estudar de maneira comparada o impacto da política internacional de drogas no Brasil e na Colômbia, analisando a maneira como estes países têm adotado as diretrizes internacionais estabelecidas, adaptando-as de maneira distorcida a sua própria realidade. De igual maneira se analisa como dita política internacional, contrariando seus objetivos, tem estimulado o desenvolvimento de um mercado ilegal de drogas ilícitas na região, com o qual tem aumentado a violência e os problemas causados pela dependência a estas substâncias. Para alcançar os objetivos propostos, antes, faze-se, de maneira específica, uma breve análise da evolução da política internacional sobre drogas e, em termos gerais, da política criminal, para o qual se distingue os discursos que a compõem e o contexto social em que estes se reproduzem; em outras palavras, distinguindo a ideologia da realidade que aquela modifica. Portanto, resulta imprescindível começar qualquer estudo de política criminal sem passar por sua fonte que é o Estado. Nesse sentido, a tese central deste estudo é que de maneira similar como acontece com o Estado, a política criminal de drogas se constitui numa ideologia que cria a realidade que a sustenta, ocultando as relações de poder que há por detrás da política internacional de drogas; em outras palavras, a política internacional de drogas adotada pelo Brasil e pela Colômbia produz os males que ela pretende combater. Por último, este trabalho pretende mostrar que o debate sobre as drogas ilícitas vá além duma simples questão da ciência criminal ou o direito penal. Um debate, que parta da realidade da política criminal de drogas e de sua ideologia, leva a romper com o pensamento tradicional sustentado no saber-poder que a sustenta, e que há permitido sua acolhida no contexto tanto brasileiro como colombiano, apesar de tratar-se de realidades diferentes em quanto ao tráfico e o consumo das drogas ilícitas.

Who has the Right to Govern Online Activity? A Criminal and Civil Point of View

Kohl, U. (2004). Who has the right to govern online activity? A criminal and civil point of view. International Review of Law, Computers & Technology 18 (3), 387-410 RAE2008

Identifying the Aggressor under International Law: A Principles Approach

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The analytical approach of the European Court of Human Rights in surveillance cases—the implications, justifications, and future of the Court’s reasoning, with a focus on the legislative impact in Ireland

A notable feature of the surveillance case law of the European Court of Human Rights has been the tendency of the Court to focus on the “in accordance with the law” aspect of the Article 8 ECHR inquiry. This focus has been the subject of some criticism, but the impact of this approach on the manner in which domestic surveillance legislation has been formulated in the Party States has received little scholarly attention. This thesis addresses that gap in the literature through its consideration of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993 and the Criminal Justice (Surveillance) Act, 2009. While both Acts provide several of the safeguards endorsed by the European Court of Human Rights, this thesis finds that they suffer from a number of crucial weaknesses that undermine the protection of privacy. This thesis demonstrates how the focus of the European Court of Human Rights on the “in accordance with the law” test has resulted in some positive legislative change. Notwithstanding this fact, it is maintained that the legality approach has gained prominence at the expense of a full consideration of the “necessary in a democratic society” inquiry. This has resulted in superficial legislative responses at the domestic level, including from the Irish government. Notably, through the examination of a number of more recent cases, this project discerns a significant alteration in the interpretive approach adopted by the European Court of Human Rights regarding the application of the necessity test. The implications of this development are considered and the outlook for Irish surveillance legislation is assessed.

Victims' rights in Ireland: influences, illusions and impacts

Following international trends victims of crime in Ireland have increasingly become a source of political, policy and to a lesser extent academic concern. Although it is assumed that the Irish victims’ rights movement is having a profound impact on the criminal justice system there are very few studies addressing this assumption or the genesis of the Irish movement. At the time a victims’ rights movement was established in Ireland there were movements already established in the U.S. and Britain. To determine which model Ireland followed, if any, in establishing its movement a comparative analysis of the emergence of the victims’ rights movements in these three common law jurisdictions was undertaken. This research examines possible victim policy transfer to test the transfer route perception that the victims’ movement began in the U.S., was transferred into Britain and then onto Ireland. At the same time that the victims’ rights movements were emerging in the U.S., Britain and Ireland, and asserting pressure on their national governments for beneficial changes for victims of crime, international organisations such as the U.N. and Council of Europe were being pressured by victims’ rights groups into introducing victim centered instruments of guidance and best practice for member states. Eventually the E.U. became involved and enacted a binding instrument in 2001. These victim centered instruments provide legal and service provision rights to Irish victims of crime, but they do not generate much academic interest. This research, in addition to providing a detailed account of the victim centered instruments, analyses the jurisprudence of the European Court of Human Rights, and identifies and analyses the primary victim centered statutory modifications and case law in Ireland over the past three decades. Lastly, the current law and practices in Ireland are evaluated against Ireland’s obligations under international and E.U. law.