Search results for: criminal law theory

Authors: Tahraoui Boualem

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Researching the historical framework of international crime means examining the historical facts that have contributed to uncovering this serious crime affecting international interests, and the law by which the study of the subject of international crime is determined is international criminal law, which is a branch of public international law. In this context, the historical study of international crime means recognizing the existence of an international community governed by international law, which makes us acknowledge that ancient societies lacked such stable and recurring international relations. Therefore, an attempt to monitor international crime in those ancient societies is only to demonstrate a historical fact that those societies have known some features of this crime, and have contributed in one way or another to the development of international criminal law without defining its concept or legal nature. The international community has affirmed the principle of establishing peace, achieving security, and respecting human rights. As a basis for friendly relations between the people of the international community and in case of prejudice, such as the aggressors breaching the obligations imposed on them, whether in time of peace or war.

Keywords: historical framework, of international crime, peace or war., international law

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Authors: Edlira Kalemi, Sule Yildirim-Yayilgan

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Online Social Networks (OSNs) are nowadays being used widely and intensively for crime investigation and prevention activities. As they provide a lot of information they are used by the law enforcement and intelligence. An extensive review on existing solutions and models for collecting intelligence from this source of information and making use of it for solving crimes has been presented in this article. The main focus is on smart solutions and models where ontologies have been used as the main approach for representing criminal domain knowledge. A framework for a prototype ontology named SC-Ont will be described. This defines terms of the criminal domain ontology and the relations between them. The terms and the relations are extracted during both this review and the discussions carried out with domain experts. The development of SC-Ont is still ongoing work, where in this paper, we report mainly on the motivation for using smart ontology models and the possible benefits of using them for solving crimes.

Keywords: criminal digital evidence, social media, ontologies, reasoning

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Authors: Aadita Chaudhury

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Since at least the early 2000s, DNA profiling has achieved a preeminent status in forensic investigations into criminal acts. While the criminal justice system has a long history of using forensic evidence and testing them through establish technoscientific means, the primacy of DNA in establishing 'truth' or reconstructing a series of events is unparalleled in the history of forensic science. This paper seeks to elucidate the ways in which DNA profiling has become the most authoritative instrument of 'truth' in criminal investigations, and how it is used in the legal process to ascertain culpability, create the notion of infallible evidence, and advance the search for justice. It is argued that DNA profiling has created a paradigm shift in how the legal system and the general public understands crime and culpability, but not without limitations. There are indications that even trace amounts of DNA evidence can point to causal links in a criminal investigation, however, there still remains many rooms to create confusion and doubt from empirical evidence within the narrative of crimes. Many of the shortcomings of DNA-based forensic investigations are explored and evaluated with regards to claims of the authority of biological evidence and implications for the public understanding of the elusive concepts of truth and justice in the present era. Public misinformation about the forensic analysis processes could produce doubt or faith in the judgements rooted in them, depending on other variables presented at the trial. A positivist understanding of forensic science that is shared by the majority of the population does not take into consideration that DNA evidence is far from definitive, and can be used to support any theories of culpability, to create doubt and to deflect blame.

Keywords: DNA profiling, epistemology of forensic science, philosophy of forensic science, sociology of scientific knowledge

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Authors: María José Benitez Jimenez

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This research is based on the hypothesis that, despite being found that the problem of violence against the female partner occurs in all social classes, the criminal intervention falls, above all, on victims and aggressors with sociodemographic characteristics of the most excluded social groups. The methodology used in this study has been a collection of information through Spanish official statistics from 2004 to 2016: population, police, judicial and penitentiary data from Ministry of Interior, Ministry of Justice and statistics National Institute. The data provided show that women victims and aggressors who come into contact with criminal intervention bodies for filing a complaint or having been reported, respectively, show a very high percentage, usually well above 50%, only primary studies or even that. Their employment situation is also precarious, in a percentage that could also be around 70%. The percentage distribution of these two variables is clearly above that which occurs in the whole of the Spanish population, in a particularly marked way as regards the employment situation. Immigrants triple, as victims or as aggressors of gender violence, the percentages of the Spanish population in terms of their contact with the organs of criminal intervention. Also the rate of foreign inmates in prisons for violence against the female couple doubles that of Spanish inmates.

Keywords: inmigrants, intimate partner violence, Spain, sociodemographic characteristics

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Authors: Tapiwa Shumba

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The right to fairness and access to appeals and reviews enshrined under the South African Constitution seeks to ensure that justice is served. In essence, the constitution and the law have put in place mechanisms to ensure that a miscarriage of justice through wrongful convictions does not occur. However, once convicted and sentenced on appeal the procedural safeguards seem to resign as if to say, the accused has met his fate. The challenge with this construction is that even within an ideally perfect legal system wrongful convictions would still occur. Therefore, it is not so much of the failings of a legal system that demand attention but mechanisms to redress the results of such failings where evidence becomes available that a wrongful conviction occurred. In this context, this paper looks at the South African criminal procedural mechanisms for litigating innocence post-conviction. The discussion focuses on the role of section 327 of the South African Criminal Procedure Act and its apparent shortcomings in providing an avenue for victims of miscarriages to litigate their innocence by adducing new evidence at any stage during their wrongful incarceration. By looking at developments in other jurisdiction such as the United Kingdom, where South African criminal procedure draws much of its history, and the North Carolina example which in itself was inspired by the UK Criminal Cases Review Commission, this paper is able to make comparisons and draw invaluable lessons for the South African criminal justice system. Lessons from these foreign jurisdictions show that South African post-conviction criminal procedures need reform in line with constitutional values of human dignity, equality before the law, openness and transparency. The paper proposes an independent review of the current processes to assess the current post-conviction procedures under section 327. The review must look into the effectiveness of the current system and how it can be improved in line with new substantive legal provisions creating access to DNA evidence for post-conviction exonerations. Although the UK CCRC body should not be slavishly followed, its operations and the process leading to its establishment certainly provide a good point of reference and invaluable lessons for the South African criminal justice system seeing that South African law on this aspect has generally followed the English approach except that current provisions under section 327 are a mirror of the discredited system of the UK’s previous dispensation. A new independent mechanism that treats innocent victims of the criminal justice system with dignity away from the current political process is proposed to enable the South African criminal justice to benefit fully from recent and upcoming advances in science and technology.

Keywords: innocence, forensic law, post-conviction remedies, South African criminal justice system, wrongful conviction

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Authors: Muhammad Shabbir

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This paper inspects the effects of the sentenced criminal women upon the socialization of their children, in the Pakistani context. The objectives of the study are to find out the socio-psychological and cultural effects of the jail environment on the children and behavior of sentenced women towards their children as well as analyze the facilities provided by the jail authorities for the socialization of the women. Quantitative variables and qualitative thematic variables caused by the opinions through open-ended questionnaire were collected and analyze by applying statistical measures, e.g. Social Sciences Package for Social Sciences (SPSS), to reflect out the results. It was found that the sentence of women shatters the socialization process of their children which commonly leads them to criminality. The government should review the ongoing sentence policies for an improvement and betterment. For this purpose, the idea of socialization centers would be a healthy initiative.

Keywords: socialization, criminal women, sentence, socio-psychological and cultural

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Authors: Luis Fonseca, Filipe Cabral Pinto, Susana Sargento

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The increase of the world population, especially in large urban centers, has resulted in new challenges particularly with the control and optimization of public safety. Thus, in the present work, a solution is proposed for the prediction of criminal occurrences in a city based on historical data of incidents and demographic information. The entire research and implementation will be presented start with the data collection from its original source, the treatment and transformations applied to them, choice and the evaluation and implementation of the Machine Learning model up to the application layer. Classification models will be implemented to predict criminal risk for a given time interval and location. Machine Learning algorithms such as Random Forest, Neural Networks, K-Nearest Neighbors and Logistic Regression will be used to predict occurrences, and their performance will be compared according to the data processing and transformation used. The results show that the use of Machine Learning techniques helps to anticipate criminal occurrences, which contributed to the reinforcement of public security. Finally, the models were implemented on a platform that will provide an API to enable other entities to make requests for predictions in real-time. An application will also be presented where it is possible to show criminal predictions visually.

Keywords: crime prediction, machine learning, public safety, smart city

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Authors: Pauline E. Ngo-Henha

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Existing turnover intention theories are reviewed in this paper. This review was conducted with the help of the search keyword “turnover intention theories” in Google Scholar during the month of July 2017. These theories include: The Theory of Organizational Equilibrium (TOE), Social Exchange Theory, Job Embeddedness Theory, Herzberg’s Two-Factor Theory, the Resource-Based View, Equity Theory, Human Capital Theory, and the Expectancy Theory. One of the limitations of this review paper is that data were only collected from Google Scholar where many papers were sometimes not freely accessible. However, this paper attempts to contribute to the research in clarifying the distinction between theories and models in the context of turnover intention.

Keywords: Literature Review, Theory, Turnover, Turnover intention

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Authors: Chloe Fauchon

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In Europe, the right to a fair trial is enshrined in the European Convention on Human Rights, signed in 1950, in its famous Article 6, and, in the field of the European Union, in Article 47 of the Charter of Fundamental Rights, binding since 2009. The right to a fair trial is, therefore, a fundamental right protected by all the relevant treaties. The right to a fair trial is an "umbrella right" which encompasses various sub-rights and principles. Although this right applies in all the proceedings, it gets a special relevance in criminal matters and, particularly, regarding the defendant. In criminal proceedings, the parties are not equal: the accusation is represented by a State-organ, with specific prerogatives, and the defense does not benefit from these specific powers and is often inexperienced in criminal law. Equality of arms, and consequently the right to a fair trial, needs some specific mechanisms to be effective in criminal proceedings. For instance, the defendant benefits from some procedural rights, such as the right to a lawyer, the right to be informed of the charges against them, the right to confront witnesses, and so on. These rights aim to give the defendant the tools to dispute the accusation. The role of the defense is, therefore, very important in criminal matters to avoid unjustified convictions. This specificity of criminal matters justifies that the focus will be put on them during this study. Then this paper will also focus on French and Spanish legal orders. Indeed, if the European Court and Convention on Human Rights are the most famous instruments to protect the right to a fair trial, this right is also guaranteed at a constitutional level in European national legal orders in Europe. However, this enshrinement differs from one country to the other: for instance, in Spain, the right to a fair trial is protected explicitly by the 1978 constitutional text, whereas, in France, it is more of a case-law construction. Nevertheless, this difference between both legal orders does not imply huge variations in the substantive aspect of the right to a fair trial. This can be specifically explained by the submission of both States to the European Convention on Human Rights. This work aims to show that, although the French and Spanish legal orders differ in the way they protect the right to a fair trial, this right eventually has the same substantive meaning in both legal orders.

Keywords: right to a fair trial, constitutional law, French law, Spanish law, European Court of Human Rights

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Authors: Konstancja Syller

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International law and European regulations remain hardly silent about the admissibility of evidence obtained illegally in a criminal trial. However, Article 6 of the European Convention on Human Rights guarantees the right to a fair trial, it does not normalise a proceeding status of specified sources or means of proof outright. Therefore, it is the preserve of national legislation and national law enforcement authorities to decide on this matter. In most countries, especially in Germany and Poland, a rather complex normative approach to the issue of proof obtained in violation of the right to privacy is evident, which pursues in practise to many interpretive doubts. In Germany the jurisprudence has a significant impact within the range of the matter mentioned above. The Constitutional Court and the Supreme Court of Germany protect the right to privacy quite firmly - they ruled on inadmissibility of obtaining a proof in the form of a diary or a journal as a protection measure of constitutional guaranteed right. At the same time, however, the Supreme Court is not very convinced with reference to the issue of whether materials collected as a result of an inspection, call recordings or listening to the premises, which were carried out in breach of law, can be used in a criminal trial. Generally speaking, German courts indicate a crucial importance of the principle of Truth and the principle of proportionality, which both enable a judgement to be made as to the possibility of using an evidence obtained unlawfully. Comparing, in Poland there is almost no jurisprudence of the Constitutional Tribunal relating directly to the issue of illegal evidence. It is somehow surprising, considering the doctrinal analysis of the admissibility of using such proof in a criminal trial is performed in relation to standards resulted from the Constitution. Moreover, a crucial de lega lata legal provision, which enables allowing a proof obtained in infringement of the provisions in respect of criminal proceedings or through a forbidden act, is widely criticised within the legal profession ant therefore many courts give it their own interpretation at odds with legislator’s intentions. The comparison of two civil law legal systems’ standards regarding to the admissibility of an evidence obtained in contravention of the right to privacy in a criminal trial, taking also into account EU legislation and judicature, is the conclusive aim of this article.

Keywords: criminal trial, evidence, Germany, right to privacy, Poland

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Authors: S. Tavuyanago

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Cartels within the international competition law framework have been dubbed the most egregious of competition law violations; this is because they entail a concerted effort by two or more competitor firms to knowingly ‘rob’ consumers of their welfare through their cooperation instead of competition. The net effect of cartel conduct is that the market is distorted as the colluding firms gain enough market power to constrain the supply of goods or services, ultimately driving up prices. As a result, consumers end up paying inflated prices for goods and services, which eventually affects their welfare. It is against this backdrop that competition authorities worldwide have mounted a robust fight against the proliferation of cartels. In South Africa, the fight against cartels saw an amendment to the Competition Act to allow for criminal prosecution of individuals who cause their firms to take part in cartels. The Competition Amendment Act 1 of 2009 introduced section 73A into the principal Competition Act, making it a criminal offence to engage in cartel conduct. This paper assesses the rationale for criminalisation of cartel conduct, discusses the challenges or potential challenges associated with criminalisation, and provides an evaluation of the efficacy of criminalisation of cartel conduct. It questions whether criminal sanctions for cartel conduct as a competition enforcement tool aimed at deterring such conduct are generally effective and whether they have been effective in South Africa specifically. It concludes by offering recommendations on how to effectively root out cartels.

Keywords: cartels, criminalisation, competition, deterrence, South Africa

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Authors: Drutika Upadhyay

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Rape is one of the most heinous crimes committed against the body of a woman violating her privacy and dignity. The Right to Privacy and the Right to Live with Dignity constitute the very essence of the Right to Life and Personal Liberty, a Fundamental Right guaranteed under Article 21 of the Indian Constitution. The study is conducted with the primary objective of analyzing the efficacy of rape laws in India. The study begins by explaining the origin, meaning, and kinds of rape recognised under Indian jurisprudence. Further, it explains various statutory and penal provisions relating to rape and the loopholes in such provisions. It focuses on the procedure followed during investigation and trial and also aims at developing an understanding of the rights of the victim and the sentence in cases of rape. The study also throws some light upon the amendments made to the criminal law and the recommendations of the Law Commission of India to meet the demands of the changing criminal justice delivery system. The outcome of the study suggests that the laws relating to rape have proved to be a major failure owing to the lack of proper implementation. Also, the lack of education among the masses leads to gender biasness, which is the ultimate cause for the commission of such crime. At last, the author concludes that the present criminal law system of the country contains various lacunae that need to be filled in so as to make the criminal justice system more stringent. Further, the scope of the definition of ‘rape’ needs to be widened in order to include such other acts of non-consensual and sexual nature that are currently not included in the definition. The author has adopted a non-doctrinal and analytical approach and relied upon the secondary sources of data for the purpose of the study. The scope of the study is limited to the crime committed against women.

Keywords: amendment, criminal law, fundamental right, personal liberty, privacy, rape

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Authors: Samuel Pimpong

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In most liberal and constitutional democracies, the media serves as a dominant power in the construction of the fundamental building blocks for the consolidation of democratic governance. However, the extent to which the media can enhance democratic consolidation in a country depends to a large extent on the independence of the media, the robustness of legislative frameworks and the safety of journalists in discharging their duties without fear or favor. This study sought to examine pertinent issues, practices and challenges facing the media in Ghana’s Fourth Republic and attempts to make recommendations regarding the way forward. The work adopted a qualitative study approach. A total of sixteen (16) participants were purposively selected for face-to-face interviews. The study hinges on the democratic participant media theory and the development media theory. Primary data was analyzed via thematic analysis procedure. The study revealed that although Ghana has repealed its criminal libel laws, nonetheless other statutory Acts, such as the Electronic Communications Act 2008 (ACT 775) and the Criminal and other offences Act 1960 (Act 29), among others continue to stifle freedom of expression. On the other hand, press freedom is being abused by the use of fake content publication. Further, the study revealed that the absence of a comprehensive regulatory structure impedes the activities carried out by the media. Consequently, the study recommends a regulatory structure to oversee media activities and content, as the National Media Commission (NMC) lacks the authority to do so. In this direction, the study recommends a limitation on the role of the National Communications Authority (NCA) to administer broadcasting signals and transfer its licensing and sanctioning powers to the NMC in order to create one sole and completely independent media regulatory authority that deals with all media related issues.

Keywords: media, constitutional democracy, democratic consolidation, fourth republic

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Authors: Muhammad Fatahillah Akbar

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Criminal Procedural Law is established to protect the society from the abuse of authority. To achieve that purpose, the criminal procedural law shall be established in accordance with the laws of human right and the protection of the society. One of the mechanisms to protect human rights and to ensure the compliance of authorities in criminal procedural law is pre-trial mechanism. In many countries, there are various mechanisms of pre-trial. In the recent cases in Indonesia, pre-trial has been an interesting issue. The issue is also addressed by the Constitutional Court Decision Number 21/PUU-XII/2014 which enhance the competence of pre-trial which includes the suspect determination and the legality of seizure and search. Before that decision, some pre-trial decisions have made landmark decision by enhancing the competence of pre-trial, such as the suspect determination case in Budi Gunawan Case and legality of the investigation in Hadi Purnomo Case. These pre-trial cases occurred because the society needs protection even though it is not provided by written legislations, in this matter, The Indonesian Criminal Procedural Code (KUHAP). For instance, a person can be a suspect for unlimited time because the Criminal Procedural Code does not regulate the limit of investigation, so the suspect enactment shall be able to be challenged to protect human rights. Before the Constitutional Court Decision Suspect Determination cannot be challenged so that the society is not fully protected. The Constitutional Court Decision has provided more protections. Nowadays, investigators shall be more careful in conducting the investigation. However, those decisions, including the Constitutional Court Decision are not sufficient for society to be protected by abuse of authority. For example, on 7 March 2017, a single judge, in a Pre-Trial, at the Surabaya District Court, decided that the investigation was unlawful and shall be terminated. This is not regulated according to the Code and also any decisions in pre-trial. It can be seen that the reform of pre-trial is necessary. Hence, this paper aims to examine how pre-trial shall be developed in the future to provide wide access for society to have social justice in criminal justice system. The question will be answered by normative, historical, and comparative approaches. Firstly, the paper will examine the history of pre-trial in Indonesia and also landmark decisions on pre-trial. Then, the lessons learned from other countries regarding to the pre-trial mechanism will be elaborated to show how pre-trial shall be developed and what the competences of a pre-trial are. The focus of all discussions shall be on how the society is protected and provided access to legally complain to the authority. At the end of the paper, the recommendation to reform the pre-trial mechanism will be suggested.

Keywords: pre-trial, criminal procedural law, society

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Authors: Magda Olesiuk-Okomska

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The degree of international interdependence has grown significantly. Poland is a party to nearly 1000 binding multilateral treaties, including international legal instruments devoted to criminal matters and obliging the state to penalize certain crimes. The paper presents results of a theoretical research conducted as a part of doctoral research. The main hypothesis assumed that there was a separate category of crimes to penalization of which Poland was obliged under international legal instruments; that a catalogue of such crimes and a catalogue of international legal instruments providing for Poland’s international obligations had never been compiled in the domestic doctrine, thus there was no mechanism for monitoring implementation of such obligations. In the course of the research, a definition of transnational crimes was discussed and confronted with notions of international crimes, treaty crimes, as well as cross-border crimes. A list of transnational crimes penalized in the Polish Penal Code as well as in non-code criminal law regulations was compiled; international legal instruments, obliging Poland to criminalize and penalize specific conduct, were enumerated and catalogued. It enabled the determination whether Poland’s international obligations were implemented in domestic legislation, as well as the formulation of de lege lata and de lege ferenda postulates. Implemented research methods included inter alia a dogmatic and legal method, an analytical method and desk research.

Keywords: international criminal law, transnational crimes, transnational criminal law, treaty crimes

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Authors: Burak M. Gonultas

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Criminal investigation provides a practical contribution to this process while criminology provides a theoretical background in the apprehension of criminals arrest and clarification of crimes. However, studies on criminal investigation, which is a practical aspect of this process, are not sufficient. Every crime involves different dynamics in terms of investigation. But investigations of serious crimes are versatile and contains complex processes because of cases they are conducted. Therefore, professionals who conduct serious crime investigations differ in some aspects from others in the field. The most fundamental element of this differentiation is skills and abilities of these professionals. According to Eurostat data, Turkey is in an important position in terms of homicide rates. Therefore, in Turkey practice of serious crime investigation is specialized. The present study aims to research the skills and abilities expected from professionals in conducting an effective serious criminal investigation in Turkey and so aims to offer a number of suggestions. 25 emerged ability and skills collected from literature were asked to professionals (n=289) with semi-structured form according to 5 provinces with the highest and 2 provinces with the lowest number of serious crime cases. Three data categories were collected during experience: 1- Five most important skills and abilities, 2- The most important skills for knowledge and inquiry management and 3- Ability and skills that stand out for five stages of serious criminal investigation. The most rated skills and abilities are investigative skill (13%, n=134), planning/designing (9,2%, n=95) and interpersonal relations/communication (8,8%, n=91) in 1010 skills and abilities. While the 1st and 2nd suggest elections of these professionals, the 3rd also suggests how and what type of training will be given to these professionals. This practice differs from other studies in the area in terms of separately addressing the skills and abilities expected in stages of investigation and in terms of selected methodology.

Keywords: ability, criminal investigation, criminology, homicide, serious crimes, skill, Turkey

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Authors: Fines Fatimah, SH. MH.

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Indonesia is one of the countries that has ratified the UNCRPD (United Nations Convention on the Rights of Persons with Disabilities). The ratification of this convention brings consequences on the adjustment of national legislation with the UNCRPD convention, where this ratification at the same time is a measure in the eyes of the international community that a state party could be consistent with the issues and problems of disability. Persons with disabilities often have little access to justice when they are forced to deal with the criminal justice system. Pursuit of justice through litigation are often not in their favor, therefore without any awareness of law enforcement/awareness of disability will further complicate access to justice for persons with disabilities. Under Article 13 of the UNCRPD, it appeared that the convention requires ratifying states to guarantee equal opportunity and treatment in justice for persons with disabilities. The States should also ensure that any judicial rules must be adapted to the circumstances of persons with disabilities so that people with disabilities can fully participate in all stages of the trial court and, for example, as a witness. Finally, the state must provide training to understand these persons with disabilities (for those who work in the judiciary institution such as police or prison officials). Further, this paper aims to describe problem faced by persons with intellectual disabilities to access justice in Indonesian Criminal Justice System. This paper tries to find and propose the alternative solutions to promote the quality of law enforcement in Indonesia, especially for persons with intellectual disabilities.

Keywords: access to justice, Indonesian criminal justice system, intellectual disability, ratifying states

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Authors: Jane E. Hill

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Many variables led to the changes in the insanity defense since the Wild Beast Standard of 1723 until the Federal Insanity Defense Reform Act of 1984. The insanity defense is used in criminal trials and argued that the defendant is ‘not guilty by reason of insanity’ because the individual was unable to distinguish right from wrong during the time they were breaking the law. The issue that surrounds whether or not to use the insanity defense in the criminal court depends on the mental state of the defendant at the time the criminal act was committed. This leads us to the question of did the defendant know right from wrong when they broke the law? In 1723, The Wild Beast Test stated that to be exempted from punishment the individual is totally deprived of their understanding and memory and doth not know what they are doing. The Wild Beast Test became the standard in England for over seventy-five years. In 1800, James Hadfield attempted to assassinate King George III. He only made the attempt because he was having delusional beliefs. The jury and the judge gave a verdict of not guilty. However, to legal confine him; the Criminal Lunatics Act was enacted. Individuals that were deemed as ‘criminal lunatics’ and were given a verdict of not guilty would be taken into custody and not be freed into society. In 1843, the M'Naghten test required that the individual did not know the quality or the wrongfulness of the offense at the time they committed the criminal act(s). Daniel M'Naghten was acquitted on grounds of insanity. The M'Naghten Test is still a modern concept of the insanity defense used in many courts today. The Irresistible Impulse Test was enacted in the United States in 1887. The Irresistible Impulse Test suggested that offenders that could not control their behavior while they were committing a criminal act were not deterrable by the criminal sanctions in place; therefore no purpose would be served by convicting the offender. Due to the criticisms of the latter two contentions, the federal District of Columbia Court of Appeals ruled in 1954 to adopt the ‘product test’ by Sir Isaac Ray for insanity. The Durham Rule also known as the ‘product test’, stated an individual is not criminally responsible if the unlawful act was the product of mental disease or defect. Therefore, the two questions that need to be asked and answered are (1) did the individual have a mental disease or defect at the time they broke the law? and (2) was the criminal act the product of their disease or defect? The Durham courts failed to clearly define ‘mental disease’ or ‘product.’ Therefore, trial courts had difficulty defining the meaning of the terms and the controversy continued until 1972 when the Durham rule was overturned in most places. Therefore, the American Law Institute combined the M'Naghten test with the irresistible impulse test and The United States Congress adopted an insanity test for the federal courts in 1984.

Keywords: insanity defense, psychology law, The Federal Insanity Defense Reform Act of 1984, The Wild Beast Standard in 1723

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Authors: Kolawole Oyekan Jamiu

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In Nigerian criminal law, a victim of an offence plays little or no role in the prosecution of an offender. The state concentrates only on imposing punishment on the offender while the victims of crime and abuse of power by security agencies are abandoned without any compensation either from the State or the offender. It has been stated that the victim of crime is the forgotten man in our criminal justice system. He sets the criminal law in motion but then goes into oblivion. Our present criminal law does not recognise the right of the victim to take part in the prosecution of the case or his right to compensation. The victim is merely a witness in a state versus case. This paper examines the meaning of the phrase ‘the victims of crime and abuse of power’. It needs to be noted that there is no definition of these two categories of victims in any statute in Nigeria. The paper also considers the United Nations General Assembly Declaration of Basic Principle of Justice for Victims and abuse of power. This declaration was adopted by the United Nations General Assembly on the 25th of November 1985. The declaration contains copious provisions on compensation for the victims of crime and abuse of power. Unfortunately, the declaration is not, in itself a legally binding instrument and has been given little or no attention since the coming into effect in1985. This paper examines the role of the judiciary in ensuring that victims of crime and abuse of power in Nigeria are compensated. While some Judges found it difficult to award damages to victims of abuse of power others have given some landmark rulings and awarded substantial damages. The criminal justice ( victim’s remedies) Bill shall also be examined. The Bill comprises of 74 sections and it spelt out the procedures for compensating the victims of crime and abuse of power in Nigeria. Finally, the paper also examines the practicability of awarding damages to victims of crime whether the offender is convicted or not and in addition, the possibility of granting all equitable remedies available in civil cases to victims of crime and abuse of power so that the victims will be restored to the earlier position before the crime.

Keywords: compensation, damages, restitution, victims

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Authors: Eiman Alqattan

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Kuwaiti criminal justice system’s responses to allegations of sexual violence against women during the pre-trial process, suggesting that the system in Kuwait is affected by an ethos that is male dominated and patriarchal, and which results in prejudicial, unfair, and unequal treatment of female victims of serious sexual offenses. Data derived from qualitative semi-structured face-to-face interviews with four main groups of criminal justice system personnel in Kuwait (prosecutors, police investigators, police officers, and investigators) reveal the characteristics of a complaint of sexual violence that contribute to cases being either sent to court or dismissed. This proposed paper will suggest that Arab cultural views of women appear to influence and even shape the views, perceptions, and conduct of the interviewed Kuwaiti criminal justice system personnel regarding complaints of sexual violence made by citizens. Data from the interviews show how the image of the ‘modest woman’ that exists within Arabic cultural views and norms greatly contributes to shaping the characteristics of what the majority of the interviewed officials considered to be a ‘credible’ allegation of sexual violence. In addition, it is clear that the interviewees’ definitions of ‘modesty’ varied. Yet the problem is not only about the stereotypical perceptions of complainants or the consequences of those perceptions on the decision to send the case to court. These perceptions also affected the behaviours of criminal justice system personnel towards citizen complainants. When complainants’ allegations were questioned, investigators went as far as abusing the women verbally or physically, often in order to force them to withdraw the so-called ‘false’ complaint in order to protect the ‘real’ victim: the ‘innocent defendant’. The proposed presentation will discuss these police approaches to women and the techniques used in assessing the credibility of their accusations, including how they differ depending on whether the complainant was under or over 21 years old.

Keywords: criminal justice system, law and Arab culture, modest woman, sexual violence

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Authors: Celina Nowak

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The development of information and communication technologies (ICT) and a consequent growth of cyberspace have become a reality of modern societies. The newest addition to this complex structure has been Internet of Things which is due to the appearance of smart devices. IoT creates a new dimension of the network, as the communication is no longer the domain of just humans, but has also become possible between devices themselves. The possibility of communication between devices, devoid of human intervention and real-time supervision, generated new societal and legal challenges. Some of them may and certainly will eventually be connected to criminal law. Legislators both on national and international level have been struggling to cope with this technologically evolving environment in order to address new threats created by the ICT. There are legal instruments on cybercrime, however imperfect and not of universal scope, sometimes referring to specific types of prohibited behaviors undertaken by criminals, such as money laundering, sex offences. However, the criminal law seems largely not prepared to the challenges which may arise because of the development of IoT. This is largely due to the fact that criminal law, both on national and international level, is still based on the concept of perpetration of an offence by a human being. This is a traditional approach, historically and factually justified. Over time, some legal systems have developed or accepted the possibility of commission of an offence by a corporation, a legal person. This is in fact a legal fiction, as a legal person cannot commit an offence as such, it needs humans to actually behave in a certain way on its behalf. Yet, the legislators have come to understand that corporations have their own interests and may benefit from crime – and therefore need to be penalized. This realization however has not been welcome by all states and still give rise to doubts of ontological and theoretical nature in many legal systems. For this reason, in many legislations the liability of legal persons for commission of an offence has not been recognized as criminal responsibility. With the technological progress and the growing use of IoT the discussions referring to criminal responsibility of corporations seem rather inadequate. The world is now facing new challenges and new threats related to the ‘smart’ things. They will have to be eventually addressed by legislators if they want to, as they should, to keep up with the pace of technological and societal evolution. This will however require a reevaluation and possibly restructuring of the most fundamental notions of modern criminal law, such as perpetration, guilt, participation in crime. It remains unclear at this point what norms and legal concepts will be and may be established. The main goal of the research is to point out to the challenges ahead of the national and international legislators in the said context and to attempt to formulate some indications as to the directions of changes, having in mind serious threats related to privacy and security related to the use of IoT.

Keywords: criminal law, internet of things, privacy, security threats

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Authors: Olaf Visker, Arnout De Vries, Lambert Schomaker

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Predictive policing refers to the usage of analytical techniques to identify potential criminal activity. It has been widely implemented by various police departments. Being a relatively new area of research, there are, to the author’s knowledge, no absolute tried, and true methods and they still exhibit a variety of potential problems. One of those problems is closely related to the lack of understanding of how acting on these prediction influence crime itself. The goal of law enforcement is ultimately crime reduction. As such, a policy needs to be established that best facilitates this goal. This research aims to find such a policy by using adversarial agent-based modeling in combination with modern reinforcement learning techniques. It is presented here that a baseline model for both law enforcement and criminal agents and compare their performance to their respective reinforcement models. The experiments show that our smart law enforcement model is capable of reducing crime by making more deliberate choices regarding the locations of potential criminal activity. Furthermore, it is shown that the smart criminal model presents behavior consistent with popular crime theories and outperforms the baseline model in terms of crimes committed and time to capture. It does, however, still suffer from the difficulties of capturing long term rewards and learning how to handle multiple opposing goals.

Keywords: adversarial, agent based modelling, predictive policing, reinforcement learning

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Authors: Chukwuemeka Castro Nwabuzor

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The 2015 Administration of Criminal Justice Act in Nigeria clearly sets out conditions for bail for felonies, lesser offenses and capital offenses. Even where the conditions for bail are met, granting an application for bail is not automatic as it is subject to the discretion of the court. Where the court, however, grants bail to an accused, the detaining authority which usually is the executive arm of government is bound to comply with the order of the court. This paper discusses the constitutionality of the continued detention of criminal suspects in disobedience to an order of the court and in the absence of an appeal. Particularly, the paper looks at the rights to personal liberty, the dignity of the human person and also the presumption of innocence which remains one of the crucial pillars of our criminal jurisprudence. The paper analyses the reasons posed by the executive for the continued detention of a suspect including State security and security of the suspect and questions whether the reasons are reasonable justifiable in a constitutional democratic society and whether they breach the principles of separation of powers. The paper concludes that the continued detention criminal of suspects in disobedience to court orders constitutes contempt of court and dishonours the principles of separation of powers enshrined in the Nigerian Constitution. This paper makes a strong case for the donation of more enforceable powers to the judiciary particularly with regards to the granting of compensation orders against the executive and ensuring compliance by the executive to bail orders.

Keywords: breach of fundamental rights, contempt of court, discretion of court, right to bail, separation of powers

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Authors: M. Wangai

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Following the promulgation of a new Constitution of Kenya in 2010, wide-ranging proposals for reform of the criminal justice system have been made. Proposed measures include a clear and separate system of dealing with juvenile offenders with a greater focus on rehabilitation and reintegration. As part of a broader constitutional transition, this article considers the contribution of restorative justice to reforming the youth justice system. The paper analyses Kenya’s juvenile justice legal framework measured against current international trends in youth justice. It identifies the first post-independence juvenile justice system as a remnant of the colonial period and notes that the post-2001 system is a marked improvement. More recent legal and institutional efforts to incorporate restorative justice are also examined. The paper advocates further development of the juvenile justice system by mainstreaming of restorative justice principles through national level legislative amendments. International and comparative perspectives are used to inform a diversion centered model of restorative justice. In addition, a case is made for the use of existing forms of alternative dispute resolution. Conscious of a tense political climate, the paper also proposes strategies to address challenges posed by a punitive penal environment, chiefly the linking of restorative justice to wider democratic goals and community spirit. The article concludes that restorative justice led juvenile justice reform will contribute to better treatment of young offenders under the criminal justice system and has the potential to set a new precedent for fair, sustainable and effective justice. Further, as part of far-reaching criminal justice reform, the proposed efforts may strengthen democratic progress in Kenya’s ensuing phase of political transition.

Keywords: constitutional transition, criminal justice, restorative justice, young offenders

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Authors: Dipo Dunsin, Mohamed C. Ghanem, Karim Ouazzane

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Digital investigators often have a hard time spotting evidence in digital information. It has become hard to determine which source of proof relates to a specific investigation. A growing concern is that the various processes, technology, and specific procedures used in the digital investigation are not keeping up with criminal developments. Therefore, criminals are taking advantage of these weaknesses to commit further crimes. In digital forensics investigations, artificial intelligence is invaluable in identifying crime. It has been observed that an algorithm based on artificial intelligence (AI) is highly effective in detecting risks, preventing criminal activity, and forecasting illegal activity. Providing objective data and conducting an assessment is the goal of digital forensics and digital investigation, which will assist in developing a plausible theory that can be presented as evidence in court. Researchers and other authorities have used the available data as evidence in court to convict a person. This research paper aims at developing a multiagent framework for digital investigations using specific intelligent software agents (ISA). The agents communicate to address particular tasks jointly and keep the same objectives in mind during each task. The rules and knowledge contained within each agent are dependent on the investigation type. A criminal investigation is classified quickly and efficiently using the case-based reasoning (CBR) technique. The MADIK is implemented using the Java Agent Development Framework and implemented using Eclipse, Postgres repository, and a rule engine for agent reasoning. The proposed framework was tested using the Lone Wolf image files and datasets. Experiments were conducted using various sets of ISA and VMs. There was a significant reduction in the time taken for the Hash Set Agent to execute. As a result of loading the agents, 5 percent of the time was lost, as the File Path Agent prescribed deleting 1,510, while the Timeline Agent found multiple executable files. In comparison, the integrity check carried out on the Lone Wolf image file using a digital forensic tool kit took approximately 48 minutes (2,880 ms), whereas the MADIK framework accomplished this in 16 minutes (960 ms). The framework is integrated with Python, allowing for further integration of other digital forensic tools, such as AccessData Forensic Toolkit (FTK), Wireshark, Volatility, and Scapy.

Keywords: artificial intelligence, computer science, criminal investigation, digital forensics

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Authors: Mahdi Karimi

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One of the most basic standards of fair trial is the right to defense, hire an attorney and its presence in the hearing stages. On the one hand, based on the reason and justice, as the legal issues, particularly criminal affairs, become complicated, the accused must benefit from an attorney in the court in order to defend itself which requires legal knowledge. On the other hand, as the judicial system has jurists such as investigation judges at its disposal, the accused must enjoy the same right to defend itself and reject allegations so that the balance is maintained between the litigating parties based on the principle of "equality of arms". The right to adequate time and facilities for defense is cited among the principles and rights relevant to the proceedings in international regulations such as the International Covenant on Civil and Political Rights. The innovations made in the Code of Criminal Procedure in 2013 guaranteed the presence of the accused’s attorney in the proceedings. The present study aims at assessing the result of the aforementioned guarantee in practice and made attempts to investigate the effect of the presence of accused’s attorney on reducing the punishment by asking the question and addressing the statistical population of this study including 48 judges of lower courts and courts of appeal. It seems that in despite of guarantees provided in the new Code of Criminal Procedure, Iran's penal system, does not tolerate the presence of an attorney in practice.

Keywords: defense attorney, equality of arms, fair trial, reducing the penalty, right to defense

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Authors: Judge Paul Smith

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Abstract—This paper addresses the use and admissibility of psychiatric/psychological evidence in Australia Courts. There have been different approaches in the Courts to the acceptance of such expert evidence. It details how such expert evidence is admissible at trial and sentence. The methodology used is an examination of the decided cases and relevant legislative provisions which relate to the admission of such evidence. The major findings are that the evidence can be admissible if it is relevant to issues in a trial or sentence. It concludes that psychiatric/psychological evidence can be very useful and indeed may be essential at sentence or trial.

Keywords: criminal, law, psychological, evidence

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Authors: Mehrnoosh Abouzari, Shahrokh Sahraei

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Today, with the increase in quantity and quality and variety of crimes, the discussion of crime prevention has faced a serious challenge that human resources alone and with traditional methods will not be effective. One of the developments in the modern world is the presence of artificial intelligence in various fields, including criminal law. In fact, the use of artificial intelligence in criminal investigations and fighting crime is a necessity in today's world. The use of artificial intelligence is far beyond and even separate from other technologies in the struggle against crime. Second, its application in criminal science is different from the discussion of prevention and it comes to the prediction of crime. Crime prevention in terms of the three factors of the offender, the offender and the victim, following a change in the conditions of the three factors, based on the perception of the criminal being wise, and therefore increasing the cost and risk of crime for him in order to desist from delinquency or to make the victim aware of self-care and possibility of exposing him to danger or making it difficult to commit crimes. While the presence of artificial intelligence in the field of combating crime and social damage and dangers, like an all-seeing eye, regardless of time and place, it sees the future and predicts the occurrence of a possible crime, thus prevent the occurrence of crimes. The purpose of this article is to collect and analyze the studies conducted on the use of artificial intelligence in predicting and preventing crime. How capable is this technology in predicting crime and preventing it? The results have shown that the artificial intelligence technologies in use are capable of predicting and preventing crime and can find patterns in the data set. find large ones in a much more efficient way than humans. In crime prediction and prevention, the term artificial intelligence can be used to refer to the increasing use of technologies that apply algorithms to large sets of data to assist or replace police. The use of artificial intelligence in our debate is in predicting and preventing crime, including predicting the time and place of future criminal activities, effective identification of patterns and accurate prediction of future behavior through data mining, machine learning and deep learning, and data analysis, and also the use of neural networks. Because the knowledge of criminologists can provide insight into risk factors for criminal behavior, among other issues, computer scientists can match this knowledge with the datasets that artificial intelligence uses to inform them.

Keywords: artificial intelligence, criminology, crime, prevention, prediction

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Authors: Sadiya S. Silvee

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Generally, the decision of the higher court is binding on its subordinate courts. As provided in Article 111 of the Constitution, 'the law declared by the Appellate Division (AD) shall be binding on the High Court Division (HCD) and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.' This means the judicial discipline requires the HCD to follow the decision of the AD and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent. Analyzing the application of Article 111 of the Constitution in the criminal justice system as a sentencing guideline, the paper, by examining whether there is any consistency in decision between one HC Bench and another HC Bench, explores whether HCD can per incuriam its previous decision. In doing so, the Death Reference (DR) Cases are contemplated. Furthermore, the paper shall examine whether the Court of Session follows the decision of the HCD while using their discretion to make the choice between death and imprisonment for life under section 302 of PC. The paper argues due to the absence of any specific direction for sentencing and inconsistency in jurisprudence among the HCD; the subordinate courts are in a dilemma.

Keywords: death reference, sentencing factor, sentencing guideline, criminal justice system and constitution

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Authors: Yuyun Sri Wahyuni, Fathih Misbahuddin Islam

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Nanggroe Aceh Darussalam is the special district with its long conflict history. The long conflict history started from The Free Aceh Movement’s intentions to implement Islamic principles in Aceh Province, it was actually contradicted with the principles of state. This long conflict was finally ended on 2005. Then, since 2005 Aceh had special authority to administer its local government affairs by applying Islamic principles (syariah), included criminal law matters. To administer it, Aceh Government enacted Law Number 6 of 2014 on the Jinayah. This law consists the criminal act (jarimah) and the punishment (uqubat). Khamr, maisir, khalwat, ikhtilath, zina, sexual harrasment, rape, qadzaf, liwath, and musahaqah are the kinds of the criminal act which are ruled within. Meanwhile, Hudud and Takdzir as the kinds of punishment (uqubat). After 2 years of the issuance of this law inflicting controversy from any sides and being discussed not only locally but also globally. The objectives of this paper are to analyze the fundamental value of the flagellation punishment within this law and Aceh Government review in formulating the law.

Keywords: Aceh province, flagellation punishment, Islamic Principle, Qanun Jinayah

Procedia PDF Downloads 201