Ogden, Luke --- "Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth" [2013] UTasLawRw 21; (2013) 32(2) University of Tasmania Law Review 365

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Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth

Edited by Lucia Zedner and Julian V Roberts

United Kingdom: Oxford University Press, 2012, pp 368, ISBN 9780199696796, $115.95.

Principles and Values in Criminal Law and Criminal Justice (‘Principles’) is a comprehensive celebration of the valuable contribution made by Andrew Ashworth to the study of criminal law. Written on the occasion of Ashworth’s retirement as Vinerian Professor of English Law at the University of Oxford, the Festschrift^[1] facilitates in-depth discussion of the normative principles that guide the development of the criminal law, while also highlighting the lacunas in those arguments that serve to inspire future work. While the book traverses a large amount of subject matter, such variety is an effective acknowledgement of Ashworth’s experience in a multitude of areas including sentencing, human rights and criminology.

Given that the criminal law is a product of its social context, much is made of the fact that the law is often a product of incorrect assumptions and inbuilt prejudice. In this context, it is clear that during the criminal process the law must balance the moral convictions of the public against the need for a legislative approach that reflects the importance of objectivity. In this regard, Ashworth’s work in enunciating a body of principles that underpin the criminal law has been extremely valuable. While it is assumed that fundamental principles like the presumption of innocence are sufficiently protected by statute and case law so as to prevent their manipulation, recent cases in Australia concerning the reversal of the onus of proof^[2] demonstrate that continual examination of the scope and meaning of fundamental principles remains necessary in a modern context.^[3] While Ashworth himself does not make a contribution to the work in this book, Principles continues his tradition in a changing environment, with Ashworth’s colleagues selecting the most pertinent aspects of his work, and subjecting them to scrutiny.

The book commences with an overview of Ashworth’s achievements and the areas of his work that are to be addressed within it. Such an outline is a vital feature of the Festschrift as a genre, and is useful for the reader who is unfamiliar with Ashworth’s work.^[4] The substantive content of the book is divided by the editors into three broad sections, each connected to a core element of Ashworth’s scholarship. The first is broadly termed ‘criminal law’, and speaks to Ashworth’s study of the normative principles that have underlined his work; prominent principles are then identified by the contributors and are applied to modern contexts. This is particularly exemplified by Antony Duff’s essay, where the meaning of the presumption of innocence is examined in relation to modern terrorism legislation.^[5] The second part concerns the relationship between the criminal process and principles of human rights as posited by Ashworth in his well-known book Human Rights and Criminal Justice.^[6] While the contributions in this section may be considered to be more relevant within a European context where human rights directly influence the criminal law through the European Court of Human Rights,^[7] the effect of the work in this part can be considered instructive insofar as clear connections are made between broad international principles and their effect on domestic law. This is particularly demonstrated in the context of Lazarus’ article, which examines the way in which individual rights enunciated in the European Convention on Human Rights may impose positive duties upon the state to protect victims of crime.^[8] Finally, the third section examines the relationship between sentencing and the general principles that Ashworth has developed in this area through his contributions to academia and policy. While such a structure is not flawless insofar as almost all of the contributions may be seen to fit into more than one category, Zedner and Roberts have largely succeeded in arranging the book in such a way that develops the debate from abstract notions of principle through to a demonstration of their practical utility in the context of sentencing and the criminal process.

While a noted strength of Principles is its coverage of a large number of areas in which Ashworth is known, a potential critique is that the work lacks a definitive argument that unites the book’s multiple themes. While the editors have attempted to address this difficulty both through a structured introduction and by the suggestion that the book furthers Ashworth’s ‘quietly authoritative case’ for restraint within the criminal process,^[9] it is arguable that the ambiguous nature of the principles that guide his work remains a cause for concern. In this regard, the early chapters succeed in providing clarity to Ashworth’s methodology. In particular, John Gardner’s analysis of Ashworth’s past work demonstrates that principles in the criminal law must not exist solely because they are strongly adhered to and rarely strayed from. Rather, Gardner argues that Ashworth’s approach in requiring principles to be actively created, defended and subjected to scrutiny through academia and the common law justifies their use in legal scholarship. While it remains difficult to determine with certainty what principles currently exist, certainty is provided by Gardner’s framework which demonstrates that a new principle may always be tested upon its merits. This process is reflected in Tardos’ contribution, where fair labeling is justified as a normative principle because of the need for the criminal law to appropriately reflect the judgments made by the community about impugned conduct.^[10] Further to this, even where contributors have taken issue with Ashworth’s ideas, counter-arguments and responses in Principles continue to be based upon principles which reflect the need to balance community desires with the need for fairness.^[11] These arguments reflect Ashworth’s influence insofar as it demonstrates that the study of criminal law continues to be framed through principled analysis.

While the book makes a significant contribution to the theoretical analysis of principles within Ashworth’s work, the work also demonstrates a high degree of application to practical considerations, particularly through the way in which contributors to the Festschrift have developed Ashworth’s work. This is effectively demonstrated by Von Hirsch and Schorscher, whose contribution applies Ashworth’s domestic justification of the penal system to an international context. Given that the institution of punishment in a domestic context stems from social norms that determine the blameworthiness of conduct, it is arguably possible to compare that system with an international one that is premised upon individual responsibility.^[12] The transposition of Ashworth’s domestic principles to an international context is a timely and useful extension, particularly given the increasing prominence of institutions such as the International Criminal Court.

While the work covers a large amount of conceptual ground, Principles and Values in Criminal Law and Criminal Justice succeeds in recognizing and honouring the substantial contribution made by Andrew Ashworth to the study of criminal law and human rights. While a number of contributors challenge the assumptions and arguments made by Ashworth, in so doing the editors give effect to the purpose of the Festschrift as a genre. This has been successfully done by allowing current scholarship to engage with and critique the principles that Ashworth has identified, while at the same time extending and modifying those principles so that they may maintain their relevance as the criminal law continues to develop.

Luke Ogden ^[∗]

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^[1] As to the origin and purpose of the Festschrift as a genre see Michael Taggart, ‘Gardens or Graveyards of Scholarship? Festschriften in the Literature of the Common Law’ (2002) 22 Oxford Journal of Legal Studies 227, 228.

^[2] See for example R v Momvilovic (2011) 245 CLR 1.

^[3] Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241, 242.

^[4] Taggart, above n 1, 230.

^[5] Antony Duff, ‘Presuming Innocence’ in Lucia Zedner and Julian V Roberts (eds), Principles and Values in Criminal Law and Criminal Justice (Oxford University Press, 2012) 51, 59.

^[6] Ben Emmerson, Andrew Ashworth and Alison Macdonald, Human Rights and Criminal Justice (Sweet & Maxwell, 2^nd ed, 2011).

^[7] Dyrk van Zyl Smit, ‘Community Sanctions and European Human Rights Law’ in Lucia Zedner and Julian V Roberts (eds), Principles and Values in Criminal Law and Criminal Justice (Oxford University Press, 2012) 191, 192.

^[8] Liora Lazarus, ‘Positive Obligations and Criminal Justice: Duties to Protect or Coerce?’ in Lucia Zedner and Julian V Roberts (eds), Principles and Values in Criminal Law and Criminal Justice (Oxford University Press, 2012) 135, 136.

^[9] Lucia Zedner and Julian V Roberts, ‘Editors’ Introduction’ in Lucia Zedner and Julian V Roberts (eds), Principles and Values in Criminal Law and Criminal Justice (Oxford University Press, 2012) viii and xi.

^[10] Victor Tadros, ‘Fair Labelling and Social Solidarity’ in Lucia Zedner and Julian V Roberts (eds), Principles and Values in Criminal Law and Criminal Justice (Oxford University Press, 2012) 67, 70.

^[11] Michael Tonry, ‘‘Wrongful’ Acquittals and ‘Unduly Lenient’ Sentences – Misconceived Problems that Provoke Unjust Solutions’ in Lucia Zedner and Julian V Roberts (eds), Principles and Values in Criminal Law and Criminal Justice (Oxford University Press, 2012) 307, 309.

^[12] Andreas Von Hirsch and Vivian C Schorsher, ‘A System of International Criminal Justice for Human Rights Violations: What is the General Justification for its Existence?’ in Lucia Zedner and Julian V Roberts (eds), Principles and Values in Criminal Law and Criminal Justice (Oxford University Press, 2012) 209, 210.

^[∗] Fourth-year BA-LLB student at the University of Tasmania, and Board Member of the University of Tasmania Law Review for 2013.