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Criminal law takes place in institutions. This subject studies the various public institutions that make up the official landscape of contemporary criminal law. It moves from police and prosecution offices, via anticorruption agencies and Royal Commissions, to courts and their procedures of trial and appeal, and thence to correctional prisons and allied custodial environments such as offshore detention regimes. It concludes with a consideration of criminal law reform bodies. Throughout, the central theme is the laws of criminal procedure and the ecology of institutional forums and officials that compose contemporary law. As French CJ remarked in his 2016 speech “Criminal Law in the 21st Century”, “criminal law engages the legal system generally …. criminal lawyers cannot live in silos.”
The studies of criminal institutions provide an in-depth treatment of their complex problems, procedures and forms of knowledge. Our central concern is with what contemporary criminal law is doing, how it does so and why. In addressing this concern, the course moves from institutions of inquiry and investigation, to institutions of court and adjudication (committals, trials and appeal), and then institutions of sentencing, punishment and detention. It ends with a consideration of law reform commissions that return the study of criminal law to the constellation of officials, procedures and institutions. Three questions provide orientation throughout:
- How do institutions of criminal law interact with and are affected by the conduct of other legal and social institutions?
- How are criminal procedures to be understood in relation with rule, law and administration?
- How are the lives of criminal lawyers lived with legal institutions?
These questions are developed in comparative and transnational contexts through the study of specific topics, which will be drawn from the following:
- adversarial and non-adversarial jurisdictions of criminal law
- commissions of inquiry, royal commissions, and anti-corruption agencies
- a privilege against self-incrimination and the accusatorial character of criminal trial
- police investigation techniques, and the audio-visual recording of confessions
- committal proceedings and case management
- the lives of criminal lawyers: defence lawyers and prosecution offices
- criminal courtrooms: docks and design, handcuffs and security
- trial by jury, trial by judge alone
- the performance of the trial: the authority and responsibility of the judge
- miscarriages of justice: appeals, experts and wrongful convictions
- sentencing, appeals and aboriginal disadvantage
- youth detention and youth justice
- hyperlegality: prisons, prisoners and immigration detention
- institutions of criminal law reform: commissioning institutions, procedures and officials
Invited speakers from a sample of criminal institutions studied will supplement, where possible, the in-class discussion and close reading of the essential readings. Assessment is designed to enhance research skills in criminal law, as well as explore topics of student interest in depth.
Intended learning outcomes
A student who has successfully completed this subject should have an advanced understanding of the institutions and procedures of criminal law, as well as be able to critically analyse, engage with, and evaluate to a high standard the bodies of knowledge and practices that compose this specialised area of legal study. This specifically includes an expert understanding, analysis and evaluation of:
- The various institutions that make up the contemporary landscape of criminal law, including but not limited to the institutions of police, crime commissions and royal commissions, public prosecution and defence lawyering, courts, prisons and custodial environments, as well as criminal law reform bodies;
- Institutions of investigation, inquiry and prosecution; institutions of adjudication with specific reference to trial and appeal, institutions of detention and their allied custodial environments, and law reform institutions;
- The traditions of adversarial and inquisitorial forms of criminal procedure, as well as their implications for the current conduct and understanding of criminal law.
- Specific case studies of criminal procedures, such as transnational policing, the privilege against self-incrimination, committal procedures, trial by jury, conditions of detention and fair trial, the history of the appellate jurisdiction in criminal law, miscarriages of justice and the rise of sentence appeals, parole processes and questions of liability.
- Criminal jurisprudence concerned with the institutionalisation of criminal law, its legal procedures and forms of knowledge;
- The conduct, forms and offices of various criminal institutions and their relations to legal systems; and specific lawful practices;
- The differentiated ways in which institutions of criminal law shape questions of criminal liability, evidence and procedure;
- The complex interaction between national and transnational forms of selected institutions studied, with specific in-depth comparative studies.
In addition, a student who has completed the subject will have obtained:
- A rich and nuanced appreciation of the complexity and variety of the current scholarship on specific criminal institutions, and the jurisprudence of procedure;
- A specialised and integrated knowledge of the laws of criminal procedure, and their comparative and transnational dimensions;
- In-depth knowledge of the institutional ecology of criminal law and in depth research on at least one specific criminal institution;
- The ability to analyse complex problems of criminal institutions and procedures from a variety of perspectives, as well as the capacity to exhibit a well developed judgment on the worth of those perspectives for scholarly understanding;
- The capacity to independently conduct further specialised research in criminal law, whether in higher education or in professional practice.
- Specialist knowledge in legal institutions concerned with crime and criminal law;
- Investigation, analysis and evaluation of the institutional and theoretical issues that are engaged by criminal procedure;
- Ability to respond to and effectively communicate – in both oral and written forms - cogent and nuanced arguments concerning the variety of ways through which criminal law is institutionalised;
- Conducting in-depth research independently and at a high level, including the ability to generate complex ideas and form well-developed judgments as to the worth of those ideas for thinking about and understanding institutions in criminal law;
- Writing up research which presents an extended argument that is informed by and integrates current scholarship in criminal law and the institutional study of law; and
- Exercise professional judgment in responding to the questions of criminal law raised by the social practices of legal institutions.
Last updated: 29 October 2019