The Criminal Trial in Law and Discourse

The Criminal Trial in Law and Discourse

by T. Kirchengast


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This book examines how the modern criminal trial is the result of competing discourses of justice, from human rights to state law and order, that allows for the consideration of key stakeholder interests, specifically those of victims, defendants, police, communities and the state.

Product Details

ISBN-13: 9780230577855
Publisher: Palgrave Macmillan UK
Publication date: 10/13/2010
Edition description: 2010
Pages: 252
Product dimensions: 5.50(w) x 8.60(h) x 0.80(d)

About the Author

TYRONE KIRCHENGAST is a solicitor, barrister and Senior Lecturer in Criminal Law at the University of New South Wales, Australia.His research focuses on various facets of criminal justice, including victims of crime, law and governance, and the development of institutions of criminal law and justice.He is author of The Victim in Criminal Law and Justice.

Table of Contents

Preface viii

List of Abbreviations x

Chapter 1 Criminal Trials, Foucault, Discourse 1

The trial as contested territory 7

A note on method: 'Effective history', discourse and legal hermeneutics 14

Is the criminal trial in crisis? 17

The adversarial criminal trial as rhetoric 19

Local and magistrates' courts 20

Courts of therapeutic justice 22

The trial as hermeneutic: Terrorism, the victim and human rights 24

Terrorism, national security and domestic order 25

Victim rights and human rights 31

The adversarial criminal trial in transition 32

Examining the trial in history and discourse 34

Chapter 2 A Genealogy of the Trial in Criminal Law 39

The criminal trial as an institution of social power 40

The trial in customary law 42

The trial of animals 48

Ecclesiastical trials 48

Secular trials 49

The criminal trial as local governance 51

Communal rule: Hundred court and the rise of presentment 51

The general eyre 57

Commission of oyer and terminer 59

Commission of gaol delivery 59

From inquisitorial to adversarial justice 60

Chapter 3 Shifting Boundaries: Recent Changes to Criminal Justice Policy 65

Expedient justice 66

Committal proceedings 67

The rise of summary disposal 70

Infringement and penalty notices 71

Dispensing with the jury 72

Charge bargaining 78

The law and order debate 81

Extending policing power 82

Bail 85

Control orders, ASBOs and domestic order 87

Modifying the criminal trial 92

Defences: Provocation 93

Double jeopardy 95

Victims' lawyers 97

England and Wales 98

United States 100

Australia 108

The International Criminal Court 109

The rise of terrorism 110

Control orders - A criminal charge? 110

Non-derogating control orders and the ECHR 113

Chapter 4 The Transformative Criminal Trial Emerges 119

Rethinking the public/private dichotomy 121

Emerging human rights discourse: Victims' rights, human rights and due process 125

Human rights under the ECHR 126

Human rights and statutory reform 133

Criminal procedure in European civil law 137

The International Criminal Court 138

Auxiliary prosecution in adversarial criminal trials 139

Adhesion proceedings 142

Therapeutic jurisprudence and problem-solving courts 143

Origins of problem-solving courts 144

The principles of problem-solving courts 145

Case study: The community court 147

Sentencing and punishment 151

Intervention programs, forum and circle sentencing 153

Victim impact statements 156

Victim's compensation, proportionality and the sentencing process 160

Chapter 5 The Criminal Trial as Social Discourse 165

Discourse defined 167

Power, knowledge and the adversarial criminal trial 171

R v Camberwell Green Youth Court [2005] 1 All ER 999 174

Gately v The Queen (2007) 232 CLR 208 175

Crawford v Washington (2004) 541 US 36 179

The criminal trial, disciplinary power and the periphery of justice 183

Decentralised justice 186

Chapter 6 The Trial as Hermeneutic: A Critical Review 189

Adversarial, inquisitorial and integrative approaches 192

Discursive tensions: Re-asserting the adversarial model 194

History, discourse and genealogy: Displacing truth claims 200

A note on normative thinking 205

Law and social systems 207

Chapter 7 Implications for Criminal Justice Policy 211

Substantive and procedural justice 212

On discourse and power 217

Revolutionising criminal law and justice 220

Notes 226

References 232

Index 240

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