Transnational organised crime and the International Criminal Court developments and debates

Limitation to jurisdiction of International Criminal Court (ICC) - proposal to strengthen the universal criminalisation of transnational organised crimes by enabling them to be prosecuted through an international authority - debate on whether existing offences under the ICC Statute encompass certain transnational organised crimes - whether the Statute should be expanded to include crimes that have been recognised in international treaties.

Transnational organised crime and international law: The Palermo Convention

The last decade has witnessed a significant growth in transnational organised crime activities. It has also seen multiple efforts by the international community to come to terms with this rise of organised crime and to work towards an international instrument to combat the activities of criminal organisations. In December 2000, the United Nations opened for signature the Convention against Transnational Organized Crime (2001), also known as the Palermo Convention, a treaty that is supplemented by three protocols on trafficking in persons, smuggling of migrants, and trafficking in firearms and ammunition. The conclusion of the Convention marks the end of more than eight years of consultations on a universal instrument to criminalise and counteract transnational criminal organisations. This article illustrates the developments that led to the Convention against Transnational Organized Crime and reflects on the amendments and concessions that have been made to earlier proposals during the elaboration process. This article highlights the strengths of the Convention in the areas of judicial cooperation and mutual legal assistance, and the shortcomings of the new Convention, in particular in failing to establish a universal, unequivocal definition of “transnational organized crime”.

Cyberstalking:a new challenge for criminal law

Cyberstalking has recently emerged as a new and growing problem and is an area that will probably receive a higher profile within criminal law as more cases reach court (see Griffiths, 1999; Griffiths, Rogers and Sparrow, 1998; Bojic and McFarlane, 2002a; 2002b). For the purposes of this article we define cyberstalking as the use of information and communications technology (in particular the Internet) in order to harass individuals. Such harassment may include actions such as the transmission of offensive e-mail messages, identity theft and damage to data or equipment. Whilst a more comprehensive definition has been presented elsewhere (Bocij and McFarlane, 2002), it is hoped that the definition here is sufficient for those unfamiliar with this field. The stereotypical stalker conjures up images of someone harassing a victim who is the object of their affection. However, not all stalking incidents are motivated by unrequited love. Stalking can also be motivated by hate, a need for revenge, a need for power and/or racism. Similarly, cyberstalking can involve acts that begin with the issuing of threats and end in physical assault. We also make distinctions between conventional stalking and cyberstalking. Whilst some may view cyberstalking as an extension of conventional stalking, we believe cyberstalking should be regarded as an entirely new form of deviant behaviour. It is not surprising that cyberstalking is sometimes thought of as a trivial problem. A number of writers and researchers have suggested that cyberstalking and associated activities are of little genuine concern. Koch (2000), for example, goes as far as accusing those interested in cyberstalking as promoting hysteria over a problem that may be minuscule or even imaginary. The impression gained is that cyberstalking represents a relatively small problem where victims seldom suffer any real harm. Whilst there are no genuinely reliable statistics that can be used to determine how common cyberstalking incidents are, a great deal of evidence is available to show that cyberstalking is a significant and growing problem (Griffiths et al, 1998). For instance, CyberAngels (a well-known Internet safety organization) receives some 500 complaints of cyberstalking each day, of which up to 100 represent legitimate cases (Dean, 2000). Another Internet safety organization (Working to Halt Online Abuse) reports receiving an average of 100 cases per week (WHOA, 2001). To highlight the types of cyberstalking behaviours that take place and some of the major issues facing criminal law, we briefly examine four high profile cases of cyberstalking (adapted from Bocij and MacFarlane, 2002b).

The social media paradox:an intersection with freedom of expression and the criminal law

This article begins by setting out the human rights provisions that apply to social media expression. It then provides insight into the part social media plays within our society by analysing the social media landscape and how it facilitates a ‘purer’ form of expression. The social media paradox is explored through the lens of current societal issues and concerns regarding the use of social media and how these have manifested into litigation. It concludes by analysing the tension that the application of an array of criminal legislation and jurisprudence has created with freedom of expression, and whether this can successfully mitigated by the Director of Public Prosecution’s Interim Guidelines.

Organized crime legislation in the European Union. Harmonization and approximation of criminal law, national legislations and the EU framework decision on the fight against organised crime, by Francesco Calderoni

Book review: Heidelberg, Dordrecht, London, and New York, Springer, 2010, 189 pp., £93.55 (hardcover), ISBN 978-3-642-04330-7, e-ISBN 978-3-642-04331-4

Unpacking insanity defence standards: an experimental study of rationality and control tests in criminal law

The present study investigated the impact of different legal standards on mock juror decisions concerning whether a defendant was guilty or not guilty by reason of insanity. Undergraduate students (N = 477) read a simulated case summary involving a murder case and were asked to make an insanity determination. The cases differed in terms of the condition of the defendant (rationality deficit or control deficit) and the legal standard given to the jurors to make the determination (Model Penal Code, McNaughten or McNaughten plus a separate control determination). The effects of these variables on the insanity determination were investigated. Jurors also completed questionnaires measuring individualism and hierarchy attitudes and perceptions of facts in the case. Results indicate that under current insanity standards jurors do not distinguish between defendants with rationality deficits and defendants with control deficits regardless of whether the legal standard requires them to do so. Even defendants who lacked control were found guilty at equal rates under a legal standard excusing rationality deficits only and a legal standard excluding control and rationality deficits. This was improved by adding a control test as a partial defence, to be determined after a rationality determination. Implications for the insanity defence in the Criminal Justice System are discussed.

Surveillance, criminal law and sovereighty

Seeking better understanding of the relationship between criminal law and surveillance demands investigating the evolving nature of sovereignty in an era of transnational digital information flows. While territorial boundaries determine the limits of police investigative and surveillance powers under the criminal law, several recent United States (US) examples demonstrate how new forms of extraterritorial surveillance that enable police to access online communications by foreign citizens and digital information stored in offshore locations are authorized by US courts. This discussion outlines how the processes of mutual legal assistance that ordinarily govern the search, seizure and transfer of digital evidence from one jurisdiction to another are increasingly considered to undermine police efficiency, even though they protect the due process rights afforded to crime suspects under established principles of sovereignty (Palmer and Warren 2013).

TAKING ORGANIZATIONS SERIOUSLY: RESPONSIBLE AGENCY, ORGANIZATIONS AND THE CRIMINAL LAW

In the post-Enlightenment period, Anglo-American criminal law has been applied with increased force, and an ever expanding scope, to collective actors like corporations and other organizations. Recent scholarship has focused on developing “truly organizational” bases of liability that break with the conventional approach of imputing individual conduct to an organization and instead analyze culpable conduct and intent in a way that reflects the distinct and independent capacity of organizations to pursue their interests or goals collaboratively. In 2004, Canada enacted amendments inspired by these ideas in the hope they would lead to more effective criminal enforcement against organizations. Twelve years later, however, the promise of Bill C-45 is largely unfulfilled. In this thesis, I explore how much of this failure of law reform to deliver transformational change is attributable to an individualist bias that permeates how we think about what it means to be responsible and how this then shapes the responsibility ascription process. Using an analytical framework that combines criminal law theory with selected aspects of rational-structural theory and organization culture, I suggest that a promising way forward may lie in reframing the essential qualities required to be a subject of the criminal law in a way that captures the unique attributes that make organizations different from individuals. The resulting organizational concept of responsible agency allows for an integration of organizational reality into how we assess organizational culpability while keeping the ambit of criminal liability within the limits of what is practicable and fair. This better aligns with the spirit of Bill C-45: to impose criminal liability in a way that takes organizations – and their crimes – seriously.

Power-knowledge in Australian legal education: Corporatism's reign

How and why corporatism exists and persists within Australian law schools - as a form of knowledge, corporatism's success is attributable to the convergence of a range of historical, social and political contingencies.