This chapter analyses the enforcement of international law by States acting individually, that is, decentralized enforcement, including by their courts, as well as through retortion or countermeasures (once called reprisals). This is the typical form of enforcement under traditional international law. At the same time, enforcement might take place through measures taken by States acting collectively, that is, through mechanisms that include resort to collective measures, such as those adopted at the UN level (or within other international organizations), which can lead to collective sanctions. The first form of enforcement looks at the traditional law governing retortion and reprisals or countermeasures (as they are now called), as well as at the post-1945 law, taking into account that the ban on the use of armed force in international relations imposes that all enforcement measures taken by States individually must be peaceful. The second form examines the issue of collective sanctions, such as those taken at UN level.
12
Chapter
J. E. Penner and E. Melissaris
This chapter explores classical positivism. The discussions cover Bentham’s concept of jurisprudence; Bentham and Austin’s command theory of law; the attachment of sanctions; Kelsen’s pure theory of law; and the significance of classical positivist theories.
Chapter
This chapter discusses active case management and the use of sanctions. The Woolf reforms and more recently the Jackson reforms have supported the concept of active case management, the focus of which is to ensure that cases are dealt with ‘justly’ and ‘at proportionate cost’. The objectives of case management are set out in Civil Procedure Rules (CPR) Part 1 and the courts case management powers are in CPR Part 3. The powers of the court in relation to case management are wide and directions given after the issue of proceedings should provide a framework and timetable for dealing with a case right up to trial. The final section of the chapter deals with the sanctions that might be imposed where there is a failure to comply with case management requirements.
Book
Edited by Alison Liebling, Shadd Maruna, and Lesley McAra
As the most comprehensive and authoritative single volume on the subject, the sixth edition of the acclaimed Oxford Handbook of Criminology is a completely revised collection of 44 essays by leading authors in the field. It is organized into four sections: Constructions of crime and justice; Borders, boundaries, and beliefs; Dynamics of crime and violence; and Responses to crime. Criminology is expanding its borders, and seeking new answers to questions of crime and punishment, citizenship, and democratic living, including issues of state crime and globalisation. Some of the newest areas of study in criminology include migration, asylum, and the integration of global populations following war or famine; privacy and the governance of ‘big data;’ and the privatisation of justice and security. All of these topics, as well as classic questions of the causes and consequences of crime, receive attention here. The new editors have also made room for greater inclusiveness and diversity, with a wider range of newer scholars taking account of new developments in the field such as zemiology and green criminology, as well as previously neglected themes such as domestic violence and sex work. The chapters contain extensive references to aid further research, and the book is accompanied by an online resource centre featuring: selected chapters from previous editions; guidance on answering essay questions; practice essay questions; web links; and figures and tables from the text.
Chapter
This chapter focuses on enforcement short of force in international law, particularly studying countermeasures, the primary measures available to States in order to induce compliance of wrongdoers with their international obligations. In the last decades, there has been the codification and attempted development by the ILC, in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) of an international regime regulating countermeasures. To characterize an act as a ‘countermeasure’ is to concede its illegality in normal circumstances: by definition, countermeasures are acts which are ‘intrinsically unlawful, but are justified by the alleged initial failing to which they were a response’. Countermeasures may not in any case involve the use of armed force. The chapter also discusses the category of reprisals, the so-called ‘acts of retorsion’, and sanctions.
Chapter
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter is concerned with environmental crime and the enforcement of environmental law. It starts with some consideration of the difficult definition of ‘environmental crime’, including the distinction between moral and legal meanings of the term. Some of the basic framework of environmental crime, which helps to explain several of the approaches to the enforcement of environmental regulation, is then considered. For example, the fact that many environmental crimes are strict liability offences explains why the rate of successful prosecutions is high, but may also provide an explanation as to why some consider the sanctions that are imposed by the courts to be too low. A large part of the chapter is dedicated to a discussion of the enforcement practices adopted by regulatory agencies in England and Wales, including discussion of the use of civil sanctions instead of prosecutions and the recently enacted sentencing guidelines for environmental offences.
Chapter
This chapter assesses the possible sanctions for refusing to engage in alternative dispute resolution (ADR) processes. The court will look at whether a party complied with the requirements of Practice Direction—Pre-Action Conduct and the Pre-Action protocols in making decisions about costs. If a party unreasonably refuses to consider ADR, before issue, after issue, or after judgment and pending appeal, they can be penalized in costs. If a successful party unreasonably refuses ADR, they may be deprived of some or all of their costs or ordered to pay some or all of the losing party's costs, including costs on an indemnity basis. Pulling out of an ADR process at the eleventh hour is likely to be judged unreasonable conduct and may result in an adverse costs order. Moreover, the court will not consider ‘without prejudice’ material in considering costs, unless privilege is waived by all the parties to the dispute, or the correspondence is explicitly written on the basis that it is ‘without prejudice except as to costs’.
Chapter
This chapter discusses the place that punishment occupies as a response to crime. In many ways, the idea of punishment lies at the heart of our thinking about crime and criminal justice. It acts as a kind of balancing factor to the offence and seems like an obvious and natural consequence of a wrongful act, as in the biblical idea of ‘an eye for an eye’. However, the criminologist’s task is precisely to interrogate fundamental assumptions and to question the obvious. As such, there is a need to consider, with a critical eye, some well-established conventions such as the principle of ‘just deserts’ and the idea that we should make ‘the punishment fit the crime’. The chapter explores aspects of the historical development of punishment and its changing role in society and looks at particular forms of penal sanction, notably the death penalty, the use of imprisonment, and community-based alternatives to the deprivation of liberty. The chapter then assesses the role of the judiciary in administering punishments, the consequences of imposing punitive measures, and the criticisms of the use of punishment.
Chapter
Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Kadi and Al Barakaat International Foundation v Council and Commission (‘Kadi I’) (Joined Cases C-402/05 P and C-415/05 P), EU:C:2008:461, [2008] ECR I-6351, 3 September 2008. The document also includes supporting commentary from author Noreen O’Meara.
Chapter
Gwen Robinson and Fergus McNeill
This chapter examines the development and expansion of community sanctions and measures in the UK since the introduction of probation and parole in the early twentieth century. After introducing the main types of punishment in the community (supervision; unpaid work; treatment and other activities; restrictions and prohibitions), it considers their evolution in relation to four main rationales: rehabilitation, reparation, management, and punitiveness. The chapter then reviews some key sociological perspectives on punishment in the community, focusing on work inspired by Foucault, Durkheim, and Marx. Finally, it provides an introduction to recent research on punishment in the community in other jurisdictions, particularly Europe and the USA. The chapter presents two main conclusions: firstly, that there is now substantial international evidence to suggest that the expansion of punishment in the community has failed to deliver reductions in the use of imprisonment; and secondly, that arguments for penal moderation should take into account the ‘painful’ character of community sanctions and measures.
Chapter
This chapter focuses on enforcement short of force in international law, particularly studying countermeasures, the primary measures available to States in order to induce compliance of wrongdoers with their international obligations. In the last decades, there has been the codification and attempted development by the ILC, in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), of an international regime regulating countermeasures. To characterize an act as a ‘countermeasure’ is to concede its illegality in normal circumstances: by definition, countermeasures are acts which are ‘intrinsically unlawful, but are justified by the alleged initial failing to which they were a response’. Countermeasures may not in any case involve the use of armed force. The chapter also discusses the category of reprisals, the so-called ‘acts of retorsion’, and sanctions.
Chapter
A court can impose sanctions to ensure that its case management directions and orders are complied with, and to retain control over the conduct of litigation. These range from adverse interim costs orders through to striking out the whole or part of the defaulting party’s statement of case. This chapter discusses sanctions for non-compliance with pre-action protocols, with the Civil Procedure Rules 1998 (CPR), and with directions; application for sanctions; non-compliance with an unless order; striking out; less serious immediate sanctions; extending time and correcting errors; and relief from sanctions and setting aside.
Chapter
Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Kadi and Al Barakaat International Foundation v Council and Commission (‘Kadi I’) (Joined Cases C-402/05 P and C-415/05 P), EU:C:2008:461, [2008] ECR I-6351, 3 September 2008. The document also includes supporting commentary from author Noreen O’Meara.
Chapter
A court can impose sanctions to ensure that its case management directions and orders are complied with, and to retain control over the conduct of litigation. These range from adverse interim costs orders through to striking out the whole or part of the defaulting party’s statement of case. This chapter discusses sanctions for non-compliance with pre-action protocols, with the Civil Procedure Rules 1998 (CPR), and with directions; application for sanctions; non-compliance with an unless order; striking out; less serious immediate sanctions; extending time and correcting errors; and relief from sanctions and setting aside.
Chapter
Essential Cases: EU Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Kadi and Al Barakaat International Foundation v Council and Commission (‘Kadi I’) (Joined Cases C-402/05 P and C-415/05 P), EU:C:2008:461, [2008] ECR I-6351, 3 September 2008. The document also includes supporting commentary from author Noreen O'Meara.
Chapter
This chapter focuses on company officers (secretaries, auditors and managers), with emphasis on their responsibilities and liabilities under the Companies Act 2006 (CA 2006) and the appropriate sanctions for breach of its requirements. It first considers who, in general terms, is an ‘officer’ or ‘manager’ of a company for the purposes of criminal or fiduciary liability. Then it deals with the appointment and qualifications of secretaries and the appointment and reappointment of auditors. There is discussion of auditors’ remuneration, integrity and independence, the required contents of an auditor’s report and an auditor’s investigative powers. There is analysis of an auditor’s liability in contract and tort for negligence in carrying out the audit and negligent misstatement in an auditor’s report. The chapter cites relevant legislation, including CA 2006 and UK Corporate Governance Code, and considers two particularly significant cases: Caparo Industries plc v Dickman [1990] 2 AC 605 and Stone and Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] AC 1391.
Chapter
This chapter introduces criminal liability for non-compliance with English environmental law. Environmental crime can be defined as behaviour that contravenes statutory provisions for the protection of the ecological and physical environment, where there is some kind of punitive sanction imposed for the contravention, with such provisions sometimes also pursuing the protection of public health. Environmental crime can also include criminal offences created through the common law, such as public nuisance. The purpose of this chapter is to discuss overarching themes, such as key elements of strict liability offences, in criminalizing behaviour that damages the environment, rather than details of specific offences spelt out in particular statutes. The argument here is that environmental crime sits uneasily within the environmental law regulatory landscape, which has been shaped in the UK in recent years by co-operative, ‘better regulation’ agendas that seek to reduce burdens on business.
Chapter
This chapter discusses the pre-action protocols, which provide guidance on the exchange of information and evidence before proceedings are commenced. It covers the 14 pre-action protocols established by the Ministry of Justice; cases not covered by pre-action protocols; professional negligence pre-action protocol; personal injury protocol; different approaches to the appointment of experts; sanctions for non-compliance with protocols; the Road Traffic Act 1988; agreements with the Motor Insurers’ Bureau; and pre-action Part 36 offers.
Chapter
This chapter discusses the pre-action protocols, which provide guidance on the exchange of information and evidence before proceedings are commenced. It covers the 14 pre-action protocols established by the Ministry of Justice; cases not covered by pre-action protocols; professional negligence pre-action protocol; personal injury protocol; different approaches to the appointment of experts; sanctions for non-compliance with protocols; the Road Traffic Act 1988; agreements with the Motor Insurers’ Bureau; and pre-action Part 36 offers.
Chapter
This chapter focuses on company officers (secretaries, auditors and managers), with emphasis on their responsibilities and liabilities under the Companies Act 2006 (CA 2006) and the appropriate sanctions for breach of its requirements. It first considers who, in general terms, is an ‘officer’ or ‘manager’ of a company for the purposes of criminal or fiduciary liability. Then it deals with the appointment and qualifications of secretaries and the appointment and reappointment of auditors. There is discussion of auditors’ remuneration, integrity and independence, the required contents of an auditor’s report and an auditor’s investigative powers. There is analysis of an auditor’s liability in contract and tort for negligence in carrying out the audit and negligent misstatement in an auditor’s report. The chapter cites relevant legislation, including CA 2006 and UK Corporate Governance Code, and considers two particularly significant cases: Caparo Industries plc v Dickman [1990] 2 AC 605 and Stone and Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] AC 1391.
12
