from left to right: Jerry Buting, Kirsty Brimelow QC and Prof Dimitrios Giannoulopoulos
Defense attorney Jerry Buting from cult Netflix series ‘Making a Murderer’ took part in a live Q&A event with our Head of Law, Prof Dimitrios Giannoulopoulos, and Visiting Professor Kirsty Brimelow QC
The popular Netflix series has made a huge impact on television audiences worldwide, igniting political debate and bringing the US criminal justice system to the forefront of conversation across an enormous and varied spectrum of viewers. It has rapidly become one of the most important TV series of our time.
In what proved a very thought-provoking event, that was brought to Goldsmiths by the Student Union with the support of our department of Law, conversation focused on analysis of the Steven Avery case; the systematic failures of the American criminal justice system that it has brought to the surface; comparisons with miscarriages of justice and suspects’ rights in the UK criminal justice system.
Professor Giannoulopoulos, whose cross-cultural research centres on defendants’ rights, and whose recent monograph explored in detail judicial remedies for violations of suspects’ rights at the police station, moderated the discussion.
We are always delighted to showcase the research of our academics in this blog. This time, the spotlight is on Dr Alex Dymock’s recent work.
Alex’s work is primarily concerned with gender, sexuality and crime and her latest publication is a chapter on defending pornography in the criminal courts for the Research Handbook in Gender, Sexuality and Law. The Handbook explores current debates in the area of gender, sexuality and the law, and points the way for future socio-legal research and scholarship.
She has also been invited to present her work at Public Health England, and been interviewed for the second season of the Drug Science podcast, which regularly attracts a global audience of over 250,000 listeners (her episode on sex and drugs will be part of season 2, released April 2020).
She was also recently invited to attend the first national conference on chemsex and criminal justice hosted by the Metropolitan Police.
ICTY Through Children’s Eyes – Sarajevo Kids Festival 2014 Edin, 14 years old, Sarajevo.
Our LLB Law class had the privilege of being taught by Sir Geoffrey Nice QC this week. Sir Geoffrey, who is a Visiting Professor in Law at Goldsmiths, has led on the prosecution of Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia, where the former President of Serbia was charged with crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war, including for planning, instigating, ordering or otherwise aiding the widespread killing of thousands of Bosnian Muslims and Bosnian Croats, during and after the take-over of territories within Bosnia and Herzegovina and the killing of thousands in detention facilities there or for the forcible removal of the majority of the Croat and other non-Serb population from the approximately one-third of the territory of the Republic of Croatia that he planned to become part of a new Serb-dominated state.
Against the backdrop of such seminal experience, that defined the development of international criminal law at the beginning of this century, Sir Geoffrey undertook a historic review of international criminal law, focussing on several milestones: from the post WWII Nuremberg trials to the Universal Declaration of Human Rights and the setting up of the international criminal tribunals for Rwanda and the former Yugoslavia and, more recently, the International Criminal Court.
The lecture was delivered in the context of ‘English Legal System in a Global Context’ module, which has the key aim of introducing our students to UK legal institutions, but goes further than what is normally covered in introductory modules of this nature, in comparing and contrasting UK legal institutions to foreign legal systems and in international law, with a view to enhancing the students’ knowledge of, and ability to critically analyse, how our domestic institutions operate and creating, more generally, a cosmopolitan legal spirit, that ensures we understand there is more to ‘Law’ than our domestic legal institutions and processes.
Sir Geoffrey presented his lecture in conversation with the Head of the Law programme at Goldsmiths, Professor Dimitrios Giannoulopoulos. The lecture was delivered online, in an interactive format, as a response to the emerging Coronavirus crisis. Students had the opportunity to ask several questions and expressed their excitement for Sir Geoffrey’s invaluable contribution.
LLB Law cohort at the Royal Courts of Justice (January 2020)
29 January 2020
Goldsmiths Law students in Year 1 of the LLB Law programme took part in a mock murder trial at the Royal Courts of Justice today, during the second RCJ visit of the LLB Law cohort this year.
The mock trial concerned a joint enterprise murder case. Students undertook the roles of judge, barristers, witnesses, clerk and jury, and were provided with background to the case and scripts to work from.
With a little prompting from the National Justice Museum facilitator, mock barristers questioned and cross-examined eight witnesses to establish the chain of events that led to the killing, the relationship between co-defendants and victim, and the specifics of the crime scene.
Jurors were provided with evidence of CCTV footage of the co-defendants fleeing the scene, and were asked to assess witness testimony on the basis of whether it helped establish whether the offence of murder had been proven beyond reasonable doubt.
The defendant was found guilty by the jury and was duly sentenced to life imprisonment.
The study visit and mock trial were part of the ‘English Legal System in a Global Context’ Year 1 module which introduces students to key legal institutions and concepts, and to relevant institutional parties and practice. Goldsmiths Law’s Dr Alex Dymock offered guidance to the students during the trial.
We are thankful to the National Justice Museum, for coordinating the mock trial and study visit, and our continued collaboration.
Goldsmiths LLB Law students at the Royal Courts of Justice, holding written guidance about their role as defence and prosecution counsel, judge, member of the jury, defendant and other parties in the criminal trial.
As part of the English Legal System in a Global Context module, LLB students recently got a chance to participate in a professional activity by acting out a criminal trial for ‘murder’, in a real court room at the Royal Courts of Justice.
As part of this constructive and fun day, the students, with their lecturer, Dr Dagmar Myslinska, got a glimpse of the history and function of the impressive RCJ building, which houses the High Court and the Court of Appeal of England and Wales. Opened by Queen Victoria in 1882, it is one of the largest court buildings in Europe. On their way into the building, students were also fortunate to unexpectedly witness a procession of newly-appointed judges and court officials, in their finest regalia.
Students learned first-hand about observing protocol in a court house, which unfortunately includes a no-pictures policy. They were introduced to court room decorum and to the intricacies of the English court system by a representative of the National Justice Museum, the award-winning museum and education provider on law and justice topics.
Students then took on various roles in a mock criminal trial, which was inspired by real events. In their roles as a judge, jurors, barristers, solicitors, witnesses, and an usher, students were faced with the task of deciphering complex facts and challenging legal issues and to ultimately decide a defendant’s fate. Depending on their roles, students practiced public speaking, deliberation, organisational, and analytical skills. Having prepared their strategies beforehand with the support of their solicitors, defence and prosecution barristers debated with confidence, drawing on evidence to highlight weaknesses in their opponents’ arguments. As witnesses, students presented relevant facts objectively and were also tasked with improvising on the spot as needed. The judge impartially presided over the proceedings and kept order, with the usher’s assistance. All of this hard work paid off as the mock trial was conducted professionally and smoothly, and the jurors reached a verdict.
Conducting the mock trial in a real court room at the RCJ inspired the students’ enthusiasm and confidence, and made textbook learning of criminal law come to life. As part of our pioneering module design, more professional activities are to follow throughout the year, aimed at immersing the students in the practice of law.
A new book by Goldsmiths’ Head of Law, Prof Dimitrios Giannoulopoulos, explores the perennial controversy over the use of improperly obtained evidence in criminal trials. This is the first book to do so from a cross-cultural – comparative and international human rights – perspective.
The book compares and contrasts various procedural mechanisms, within Anglo-American and continental legal systems (with a focus on the United States, Greece, France and England and Wales), that may stop the jury, or the judge as a fact-finder, from accessing or using unlawfully obtained evidence – sometimes crucial, reliable evidence – when reaching a verdict or making a finding of guilt.
Analysis focuses on confessional evidence and evidence obtained by search and seizure, telephone interceptions and other means of electronic surveillance.
The book attempts to reinvigorate the idea of excluding evidence to protect constitutional or human rights (the rights thesis), arguing that there is significant scope for Anglo-American and Continental legal systems to place a renewed emphasis on it, particularly in relation to confessional evidence obtained in violation of custodial interrogation rights. This is because we can locate an emerging rapprochement, and unique potential for European Court of Human Rights jurisprudence to build consensus, in this respect.
In marked contrast, remaining divergence with regard to evidence obtained by privacy violations means there is little momentum to adopt a reinvigorated rights thesis more widely.
English law, in particular, offers a key illustration of discordance between privacy violations and violations of custodial interrogation rights. The discretionary powers that courts possess in relation to the latter often lead to exclusion. In contrast, the exclusion of evidence obtained in violation of the right to privacy is a rare occurrence in the related jurisprudence.
Book presentation at Berkeley Law School (10 April 2019), hosted by Prof Charles Weisselberg (first from left) and Prof Jonathan Simon (second from right)
Since publication of the book, Prof Giannoulopoulos has presented his research in this area to academic audiences in England (most recently at the Law School at the University of Exeter), Greece (at a major symposium of the Hellenic Criminal Bar Association) and in the United States, where the ‘exclusionary rule’ has been the source of one of the most enduring and controversial debates in American constitutional criminal procedure.
“Policing Los Angeles Forum” presentation, Loyola Law School (8 April 2019). From left to right: Prof Eric Miller, Prof Dimitrios Giannoulopoulos, Prof Christopher Hawthorne
“The UK Supreme Court is entirely accustomed to analysing human rights (protected by the European Convention on Human Rights), but if you ask those daily tackling crime, the answer is they’re rarely necessary in the average criminal trial”, noted Lord Hughes of Ombersley, former Justice at the UK Supreme Court, opening up his keynote address in Goldsmiths Law’s annual criminal justice symposium at the British Academy (on 27 March 2019).
The reason is that these rights are “implicit in English criminal procedure”; “we had arrived at these rights long before the drafting of the European Convention on Human Rights” (ECHR), he explained, taking the examples of ‘habeas corpus’, which had been guaranteed for the best part of three centuries before finding its way into Article 5 of the ECHR, the ‘burden of proof’, which was in place hundreds of years before being incorporated into Article 6, or the prohibition of torture, which was inherent in the common law since the 17thcentury.
What is interesting is the discussion about the extent and scope of rights since their incorporation into the ECHR via the mechanics of “fairly energetic judicial glossing in Strasbourg”, Lord Hughes pointed out.
He invited English criminal lawyers, and the many scholars attending the symposium, to look at two features of this process of judicial creativity.
The first, most obvious, feature was the extent of it. “These fundamental rights have been expanded enormously”, noted Lord Hughes.
The second feature is the very interesting interaction between the common law and European civil law traditions, which does not have the starting point as the common law when it comes to interpreting the Convention.
We need to “remember that whilst the common law may be very longstanding, and we’re rightly proud of it, and it may be very widespread across the world, and we’re rightly proud of that as well, it is by no means a universal system”, said Lord Hughes.
In highlighting the idiosyncratic character of the European Court of Human Rights, the former Supreme Court Justice, whose illustrious career included the Vice-Presidency of the Criminal Division at the Court of Appeal, added:
“It also behoves us to remember the difference between running a very long-established legal system such as ours in which an enormous amount can be taken as read, and, on the other hand, running a transnational court such as the Strasbourg Court where the judges come from an enormous variety of cultures, from a huge range of personal career experience, where there is no single common language, where the range of systems under consideration is enormous”.
“The Strasbourg Court is having to cope with all the systems of former Eastern Europe as well as former Code Napoleon central Europe as well as the common law, and when we run into occasional elements of frustration, we ought to remember just how difficult it is to administer a transnational court of that kind”.
In discussing examples of “direct importation into the UK systems of fundamental rights as interpreted in Strasbourg”, Lord Hughes started with the “very well-known example of Cadder” (which led to the incorporation of the right to speak to a lawyer from the beginning of police interrogation in Scotland).
The reform was in reality “judicial legislation in Strasbourg based on the kind of review of national practice all around the Council of Europe which they’re in the habit of conducting; it’s one of the things they do extremely well, to produce a synthesis of practice around the member-states”.
One other way in which rights had been expanded was by attaching to an Article of the Convention an ancillary or secondary duty to investigate things that might involve a breach, said Lord Hughes.
The classic example was “Article 2 inquiries into deaths in state custody or state hands”. “Article 2 does not say anything at all about investigation, but it’s a perfectly rational extension on the basis that the primary right won’t be effective unless you also have a secondary right to investigation. But it is pure judicial legislation of the kind which – if it happened in relation to an English statute by an English court – would attract, rightly, some would say, a great deal of criticism”.
A similar duty to inquiry had been expanded to Article 3 of the Convention, as illustrated in the case of Commissioner of Police of the Metropolis v DSD (the John Worboys case). “The effect of the expansion of Article 3 is that a victim of crime now has – as a result of DSD – a right of action against the police for breach of the secondary duty to investigate serious violence, and they will succeed if the police fall below reasonable standards”.
“It sounds perfectly straightforward, but entirely contrary to English tort law as it had stood until DSD; though police had public duties, they did not owe a duty of care to individual victims”, observed Lord Hughes.
He then asked:
“Does it matter that rights which are, as drafted, so expansively interpreted by judges – not by Parliaments, but by unelected judges, without any reference back to the States which originally agreed them?”
“Or maybe this is what states have voluntarily signed up to in accepting the Convention.”
In other words, Lord Hughes noted, these fundamental rights and their interpretation are a potent example of what is really a perennial problem faced by all legal systems, which is “how far should or can judges be creative in their interpretation of the Law or how far are they – like everybody else – bound by what it actually says; it’s a perpetual problem particularly faced by courts of final appeal but also, to some extent, by courts lower down”.
We could ask the same question by reference to other rights, for example Article 6 para 2 of the Convention, on the presumption of innocence or hearsay and the right to confrontation under Article 6.
It was equally important to observe, noted Lord Hughes, that although “a good deal of criminal procedure and evidence may fall to be reasoned according to fundamental rights, a larger part of English criminal procedure is entirely independent of fundamental rights”. Human rights are not “the prime source of our rules of fairness in the English criminal justice system; it’s actually the other way round … most of English criminal procedure was in place before these rights were derived from it very largely”.
“In fact, when the Convention was drafted, very largely by English lawyers, only some of the common law principles went into it. Others were deliberately left out, for example jury trial, the discretion not to prosecute (which would be quite incompatible with the Continental culture, where in many cases it is mandatory to prosecute), the cab-rank rule (the obligation of a barrister to accept any work in a field in which they practice, either acting for the defence or the prosecution), which wouldn’t work in Europe where you have division between public prosecutors and others, or the mandatory recording of police interviews.”
This line of thinking led Lord Hughes to a final conclusion:
While “these fundamental rights [ECHR rights] are very important – they’re often debated, they’re sometimes inspirational, they throw up the most fascinating meeting points of the common law and different legal cultures – they’re a long way from being the prime source of English criminal law and procedure.”
“They’re fundamental to us, in the sense that their ideas are embedded in our system, absolutes they’re not and we need to be careful about claiming that they’re absolutes.”
“The reality is that there is a huge scope for debate about their content and that debate has to be resolved by judges by exactly the same tensions that you meet domestically between the legitimate bounds of judicial creativity and the rule that judges – like anybody else – are bound by the law.”
“That’s a tension which has to be resolved here as it does everywhere else. They’re fundamental rights, they’re not absolute rights.”
LSE’s Prof Nicola Lacey chaired the keynote address.
Prof Nicola Lacey: Lord Hughes’ keynote raises some fascinating comparative and socio-legal questions about the impact of different legal cultures and different institutional structures in how courts work and how communication between systems works.
The symposium was coordinated by Goldsmiths’ Head of Law Prof Dimitrios Giannoulopoulos, and it was attended by major experts in criminal justice and human rights, from the UK and abroad.
from left to right: Prof Paul Roberts (Nottingham), Hannah Quirk (King’s), Richard Glover (Wolverhampton) and Prof Andrew Choo (City)
from left to right: Prof David Sklansky (Stanford), Yvonne Daly (DCU), Prof Dimitrios Giannoulopoulos (Goldsmiths), Prof Sarah Summers (Zurich), Prof Theodore Konstantinides (Essex) and HH Judge Donald Cryan (Visiting Prof, Goldsmiths)
Abenaa Owusu-Bempah (LSE) with Prof Sarah Summers (Zurich)
The symposium followed up on Goldsmiths Law’s criminal justice lecture, which took place the day before and was delivered by Stanford Law School academic Prof David Sklanksy.
Goldsmiths’ Prof Giannoulopoulos with Lord Hughes. The Inner Temple’s academic fellowship scheme has brought Goldsmiths Law closer to the profession, including eminent representatives of the UK judiciary and Justices at the Supreme Court
The Department of Law at Goldsmiths places strong emphasis on the study of criminal justice and human rights. Students taking the LLB Law at Goldsmiths can choose to specialise in these subjects, by taking the synonymous pathway degree (LLB Law with Criminal Justice and Human Rights).
For information on the annual criminal justice symposium or the LLB Law and LLB Law with Criminal Justice and Human Rights degrees contact the Law department at Law@gold.ac.uk
What role can psychology play in criminal proceedings, sentencing and the post-sentencing stage? Is criminal justice practice sufficiently informed by psychological research? What can we do to better incorporate evidence-based practice into the criminal justice system and avoid the pitfalls of miscarriages of justice?
These are some of the questions that have been examined in the Psychology and Law conference organised by the Forensic Psychology Unit at Goldsmiths, in association with SL5 Legal, a Law firm with expertise in prison law, human rights, judicial review and parole, and Red Lion Chambers, one of the leading sets specialising in criminal and regulatory law.
The conference, organised by Caoimhe McAnena, a Psychology lecturer at Goldsmiths, brought together psychologists, solicitors, barristers, judges, probation officers and other senior criminal justice experts, including the Law Commissioner for Criminal Law and Evidence in England and Wales, Prof David Ormerod, HH Noel Lucas QC who is the Resident Judge at Wood Green Crown Court and the newly appointed Chair of the Parole Board, Caroline Corby.
from left to right: Prof Dimitrios Giannoulopoulos, SL5’s Fiona Dunkley and Prof Fiona Gabbert
The conference also underlined the emerging collaboration between the Law programme at Goldsmiths and the Forensic Psychology Unit. Head of Law, Prof Dimitrios Giannoulopoulos and Head of Psychology, Prof Fiona Gabbert, paired up in the first panel. Prof Gabbert discussed evidence-based interview skills to elicit reliable information from individuals; how these skills are being adopted into policy and procedure in both local (UK) and global initiatives. Prof Giannoulopoulos highlighted the risk of miscarriages of justice, where self-incriminating statements have been obtained from suspects in violation of their procedural rights. Taking a comparative law perspective, he explained that exclusionary rules for improperly obtained confessional evidence help reduce this risk, but more could be done to avert violations of suspects’ rights in the first place, including placing stronger emphasis on evidence-based interviewing, audio-visual recording of police interviews and police training programmes. Stronger preventive mechanisms would go hand-in-hand with efforts in transnational law to enhance procedural protections for suspects at the police station.
The Law programme at Goldsmiths gives students the opportunity to combine the study of Law with the study of Psychology, through a final year optional module. The ‘Psychology and Law’ module provides the opportunity for advanced study of psychological science applied to the investigation of crime and the process of criminal law, with the syllabus covering current issues in psychology and law, for example: interviewing suspects and witnesses, confessions, detection of deception, eyewitness testimony, eyewitness identification, offender profiling, and CCTV.