Colourful evolution from shades of grey
The Handbook of the Criminal Justice Process. First edition - Criminal Law. Second edition - Criminal Law. Third edition - Central Issues in Criminal Theory. First edition - Criminal Law
As students and lecturers are aware, criminal law and criminal justice are constantly changing, so it is no surprise that several new books have been published in these areas, if (in some cases) only as updates of previous editions.
Two books offer essentially “black-letter” accounts of the criminal law (that is, principles that define criminal offences and defences), namely that by Jonathan Herring and that by Alan Reed and Peter Seago.
Reed and Seago’s book is a clear and comprehensible account. It tackles the topics commonly found in criminal law courses: general principles (including defences and parties), inchoate offences, fatal and non-fatal offences against the person, and offences against property. It is thus specifically aimed at undergraduate students on law-degree courses and postgraduates on common professional examination (CPE) courses.
Reed and Seago’s book is well written and explains the law as it is interpreted by the courts. Criminal law is constantly evolving as the courts are faced with new and often very complex questions, many of which raise difficult ethical, philosophical and social issues. The authors deal with these carefully, emphasising the legal as opposed to the non-legal dimensions. The second edition incorporates a number of new developments, especially in case law, but also covers the implications of the Human Rights Act.
Earlier editions of Herring’s book were perhaps more introductory than Reed and Seago’s, but subsequent editions have kept pace with developments. Like Reed and Seago’s book, Herring’s volume will appeal to students on law degrees, CPE and various other professional courses, including those in the police, social work and the magistracy. In addition, it is a suitable text for second-year A-level criminal law students. Perhaps one of the obvious differences between this and Reed and Seago is that Herring offers more succinct explanations of individual topics whereas Reed and Seago’s are a little more discursive.
Even though significant portions of the criminal law have become quite complex and problematic, Herring’s book is also written in a clear, uncomplicated style. Some obvious distinguishing features have been adopted in an attempt to facilitate the process of learning and understanding the law.
Certain cases are asterisked in the text, then reproduced in more detail (rather like the head note in a law report) in a “Case notes” section at the end of the chapter. Indeed, each chapter concludes with a summary and a list of further reading. Each chapter also has a “Hot topics” section, where the author discusses topical issues in slightly more depth. These characteristics will not only be helpful to the student/reader but some of them also help to distinguish the book from its closest rivals, such as Nicola Padfield’s Criminal Law (2002).
As with Reed and Seago, Herring’s text addresses the usual topics in a criminal law syllabus, and the third edition brings case law up to date including a useful discussion of the Human Rights Act. This all makes for a bigger book than the original edition. It provides a contemporary account of black-letter law and includes a modest analysis of the law, a brief discussion of some of the major criticisms and the very occasional reference to legal theory.
The second edition of William Wilson’s Criminal Law: Doctrine and Theory appears to be aimed at a similar market. It addresses all the topics commonly found on such courses, and is written in a clear, lucid style that makes it readily comprehensible.
However, two specific features distinguish it from many other criminal law texts. It constitutes one of the first attempts to integrate black-letter law with some (albeit introductory) criminal law theory. Explanation and analysis of the law in practice is provided alongside discussion of some of the fundamental principles and values that underpin the substantive law. To date, the only other book that seeks to do this is Andrew Simester and Robert Sullivan’s Criminal Law: Theory and Doctrine (2003). The second quite distinctive feature is Wilson’s use of hypotheticals, or mini-problem scenarios, to illustrate his discussion of the more abstract areas of the law - these are likely to be especially helpful for newcomers to the subject.
Quite rightly, the first edition was greeted with general acclaim, largely because the book reflects an appropriate balance between doctrine and theory. The second edition brings the law up to date, with a new section on the Human Rights Act and a discussion of recent case law. The use of hypotheticals, the inclusion of summaries (or overviews) and the easy style of the author should make this a valuable source and guide, particularly for students new to the subject.
But the criminal law is far from cut and dried, and the author has very properly drawn attention to the types of arguments and differences of opinion (especially among lawyers and philosophers) that help to shape and influence it. Wilson is to be applauded for producing a valuable tool in our efforts to enhance understanding of the subject.
He has also produced a different but complementary book on criminal law, Central Issues in Criminal Theory . Although in the preface he states that he has assumed “no prior knowledge or significant degree of philosophical sophistication” of the reader, this book is not for beginners. It will appeal to postgraduate students, teachers and scholars keen to develop their understanding of the subject.
This is not a text about criminal law per se, rather it is concerned with the philosophical foundations that underpin the law. The whole book is devoted to this topic, interest in which has dramatically increased in recent years, and the book draws on the writings of commentators and theorists from US and western jurisdictions in particular.
Wilson begins by looking at the “ethics of criminalisation and punishment”, the justification for punishment and especially the concept of desert - are we punished because we break rules, or because of our culpable wrongdoing? And what makes wrongdoing culpable? The book then moves on to examine the structure of criminal liability, and the author is particularly exercised by the way we traditionally separate discussion of the actus reus and mens rea from issues such as voluntariness and wider questions of responsibility.
Central Issues in Criminal Theory is a most welcome addition to a small group of books on the subject, such as Stephen Shute and Simester’s Criminal Law Theory: Doctrines of the General Part (2002), Simester and A. T. H. Smith’s Harm and Culpability (1996), and George Fletcher’s Rethinking Criminal Law (1978) and Basic Concepts of Criminal Law (1998).
As Wilson rightly points out, communication of criminal theory has been hindered not only by the complexity of the issues but also by the largely inevitable desire to test ideas by argument and counterargument. In an excellent attempt to avoid such pitfalls, Wilson has produced a book that is relatively small, but that addresses the basic questions in a logical and coherent manner. Indeed, one of the author’s considerable strengths is his ability to explain particularly intricate and often obscure points in simple, comprehensible language. The way in which each chapter begins with a general introduction to the topic, identifying the important issues, is helpful in this regard.
Compared with criminal law, criminal justice is a much more recent feature of law and other degree courses, but publishers have recently made considerable strides in offering a range of books on the subject.
A notable recent addition to the list is Mike McConville and Geoffrey Wilson’s The Handbook of the Criminal Justice Process . This first edition comprises a comprehensive collection of essays written by leading specialists that deal individually with the full range of criminal justice issues in England and Wales. Through critical analysis, each essay enables the reader to understand fundamental and controversial issues relating to the specific topic and how the criminal process has reached its current state.
Following a structural and organisational overview of the system, the book begins with a careful examination of the work of the police, focusing on their accountability and their investigative powers, especially controversial issues such as surveillance and questioning suspects in the police station. This is balanced by discussion of suspects’ rights and legal representation, legal aid and bail.
From there, the book moves on to prosecution and its alternatives, and there is an overview of the main evidential laws. This is followed by essays on the disclosure of information, the role of lawyers and the judiciary, the treatment of witnesses and victims, plea bargaining and publicity.
The book is not confined to mainstream adult crime and includes essays on juvenile justice, economic crime, and mentally abnormal offenders. Post-trial matters are addressed, namely the sentencing process and the very topical issue of restorative justice, along with chapters on the appeals system and miscarriages of justice. The book concludes with an evaluation of the criminal justice process, within the context of political and social influences.
Such a comprehensive work will inevitably appeal to a wide audience of those interested in the criminal justice system - students, academics, practitioners and policy-makers alike. It provides more expansive discussions than Andrew Ashworth’s The Criminal Process: An Evaluative Study (1998). Some of its potential competitors omit important topics: Andrew Sanders’ and Richard Young’s Criminal Justice (2000), for example, ignores sentencing.
The editors are to be congratulated for organising a book that concentrates the reader’s mind on the values and principles underlying a criminal justice process and the choices that must be made. The essays are well constructed and thought-provoking, encouraging the reader to consider fundamental questions about the balance between the individual and the state.
Barry Mitchell is professor of criminal law and criminal justice, Coventry Business School.
The Handbook of the Criminal Justice Process. First edition
Editor - Mike McConville and Geoffrey Wilson
ISBN - 0 19 925460 5 and 925395 1
Publisher - Oxford University Press
Price - £69.99 and £26.99
Pages - 581