Prof Vanessa Munro's forthcoming publication on sexual offences law and policy in Social and Legal Studies is now available to read online at: http://journals.sagepub.com/doi/full/10.1177/0964663916682584

Although the consent threshold remains fundamental to the demarcation of acceptable from unacceptable forms of behaviour within contemporary sexual offences law and policy, there has clearly been a shift in recent years in England and Wales towards more ‘contextual’ understandings and interpretations thereof. In many respects, this is a welcome development, which has the potential to at least partially redress the problematic assumption of a disembodied, individualistic and self-determining chooser, which critics maintain has underpinned many conventional (liberal) accounts of autonomy. At the same time, however, there are risks associated with this turn to context that require vigilance. More specifically, this shift has opened the door to greater reliance upon the often closely associated concepts of vulnerability and exploitation. In this article, I will argue that, while these concepts can be valuable in highlighting and challenging the constraining conditions under which (sexual) choices may be made, they can also be deployed in the service of moral and political interventions that entrench precariousness in the name of protection and/or increase surveillance in pursuit of responsibilization. To assess their impact, therefore, it is necessary to explore the concrete implications of this turn for those most immediately involved. In the following discussion, I will do so first by highlighting some of its perhaps unintended, but certainly undesirable, effects in the specific contexts of sexual assault and sex work policy. Having done so, I will move on to explore what we might learn more broadly from this experience about the benefits, blind spots and backfire in using vulnerability as a lens and lever for the pursuit of social justice.

The Criminalization series arose from an interdisciplinary investigation into criminalization, focussing on the principles that might guide decisions about what kinds of conduct should be criminalized, and the forms that criminalization should take. Developing a normative theory of criminalization, the series tackles the key questions at the heart of the issue: what principles and goals should guide legislators in deciding what to criminalize? How should criminal wrongs be classified and differentiated? How should law enforcement officials apply the law's specifications of offences?

In the sixth volume in the series, Victor Tadros offers a philosophical investigation of the relationship between moral wrongdoing and criminalization. Considering they justification of punishment, the nature of harm, the importance of autonomy, inchoate wrongdoing, the role of consent, and the role of the state, the book provides an account of the nature of moral wrong doing, the sources of wrong doing, why wrong doing is the central target of the criminal law, and the ways in which criminalization of non-wrongful conduct might be permissible.

A flyer with a voucher valid until 17 March 2017 is available.

In this follow-up to Law and the Beautiful Soul, Alan Norrie addresses the split between legal and ethical judgment. Shaped by history, law’s formalism both eschew and requires ethics.

The first essays consider legal form in its practical aspect, and the ethical problems encountered (‘law’s architectonic’). The later essays look at the complex underlying relation between law and ethic (‘law’s constellation’). In Hegel’s philosophy, legal and ethical judgment are brought together in a rational totality. Here, the synthesis remains unachieved, the dialectic systematically ‘broken’.

These essays cover such issues as criminal law’s ‘general part’, homicide reform, self-defence, euthanasia and war guilt. They interrogate legal problems, consider law’s method and its place in the social whole. The analysis of law’s historicity, its formalism and its relation to ethics contributes importantly to central questions in law, legal theory and criminal justice.

Prof Jackie Hodgson and Asher Flynn from Monash have a new edited collection on 'Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need' published by Hart.

This book considers how access to justice is affected by restrictions to legal aid budgets and increasingly prescriptive service guidelines.

As common law jurisdictions, England and Wales, and Australia, share similar ideals, policies and practices, but they differ in aspects of their legal and political culture, in the nature of the communities they serve and in their approaches to providing access to justice. These jurisdictions thus provide us with different perspectives on what constitutes justice and how we might seek to overcome the burgeoning crisis in unmet legal need.

The book fills an important gap in existing scholarship as the first to bring together new empirical and theoretical knowledge examining different responses to legal aid crises both in the domestic and comparative contexts, across criminal, civil and family law. It achieves this by examining the broader social, political, legal, health and welfare impacts of legal aid cuts and prescriptive service guidelines. Across both jurisdictions, this work suggests that it is the most vulnerable groups who lose out in the way that law is now done in the 21st century.

The book is essential reading for all those interested in access to justice and legal aid.

The last year has seen the award of PhDs to three Criminal Justice Centre researchers carrying out empirical work. Under the supervision of Prof Jackie Hodgson, each student conducted observations and interviews at court and with legal practitioners, as well as in other jurisdictions and with the Criminal Cases Review Commission.

Yu Mou's PhD thesis 'Written Evidence and the Absence of Witnesses: The Inevitability of Conviction in Chinese Criminal Justice' draws on insights from empirical data gathered during her observations in a prosecutor's office in China for a period of six months in 2012 and 2013, and semi-structured interviews with 28 legal actors (including 7 police officers, 7 prosecutors, 7 judges and 7 defence lawyers, from 8 different regions of China). It approaches the Chinese criminal process from an internal perspective of the criminal justice system and outlines the strategic inter-relationships between key legal actors, the deep-seated legal culture embedded in legal practice and the structural injustices that follow. The thesis follows the investigative dossier in the criminal process---how it is constructed, scrutinised and used to dispose of cases and convict defendants in lieu of witnesses' oral testimony---as its focal point. It systematically analyses the functional deficiency of the Chinese criminal justice system, which fails to prevent innocent individuals from being wrongly accused and convicted. It examines the legal culture shaped by managerial mechanisms of institutions and the extent to which changes to the formal legal structure have influenced legal practice. The findings reveal that the political regime demands that the criminal justice system serves mainly as a state apparatus of social control, which has been framed through performance indicators, bureaucratic management, and the central value of collectivism in such a way as to maintain the stability of the authoritarian power.

Laurène Soubise’s PhD thesis ‘Prosecutorial discretion and accountability – A comparative study of France and England and Wales’ bases its analysis upon direct observations and interviews in the two jurisdictions under study. It endeavours to understand how the French and Anglo-Welsh criminal justice systems attempt to combine the necessities of accountability for public prosecution services in modern democratic societies with the flexibility and reactivity needed in the application of the law provided by prosecutorial discretion. The thesis argues that neither system observed achieves a satisfactory balance between accountability and discretion for public prosecutors. In France, although democratic and hierarchical accountability channels are well developed in theory, oversight is weak due to the primacy of the concept of ‘adaptation’ in the legal culture and the strong professional ethos of procureurs as independent judicial officers. In England and Wales, public prosecutors are part of a highly bureaucratic and centralised structure, which strictly enforces consistency in prosecutorial decisions at the expense of much discretion and autonomy for individual prosecutors whose responsibility is limited to narrow and repetitive tasks due to the segmentation of the prosecution process. This overbearing accountability structure, coupled with a historical balance of power in favour of the police, appears to prevent prosecutors from making decisions perceived as unpopular with their hierarchy or the police. Finally, pressure on resources and a drive for efficiency in both jurisdictions have resulted in the bureaucratisation of the criminal justice process with part of the prosecution workload being delegated to unqualified staff and minor cases being processed as quickly as possible into a one-size-fits-all system.

Juliet Horne’s PhD thesis, ‘A Plea of Convenience: An Examination of the Guilty Plea in England and Wales’, combines empirical research and theoretical analysis in assessing how the appeal courts and the Criminal Cases Review Commission (CCRC) respond to challenges to guilty plea convictions and the accounts of the guilty plea they provide to justify these responses. Juliet’s empirical research included an examination of CCRC files in guilty plea cases, an observational study of defence plea advice and hearings, and interviews with lawyers and CCRC staff in order to assess whether the accounts offered by the courts and the CCRC have any foundation in practice. The research reveals that the criminal justice system, as designed and operated, prioritises efficiency over fairness and accuracy in its treatment of guilty pleas. Despite the consequent risk of injustice, the appeal courts resist challenges to guilty plea convictions, relying on unsupportable accounts of the guilty plea as a confession, and of defence lawyers as sheltering defendants from plea pressures. In turn, the CCRC’s approach to such cases is characterised by confusion and, ultimately, the prioritisation of efficiency and finality. In response to these problems, Juliet proposes an account of the guilty plea as the defendant’s prediction of the likely trial outcome (the ‘defendant-assessed verdict’). While requiring procedural changes to allow defendants to be supported and informed in assessing the case, this account could provide a justification for guilty plea convictions (which account for around 90% of criminal convictions) and offer a framework for assessing challenges to such convictions in the future.