As the prefaces to this book make clear, Andrew Ashworth is the greatest living criminal lawyer in England and Wales, and is amongst the leading writers in the global field. His work, spanning substantive criminal law, criminal procedure, criminal evidence and sentencing has had very great impact both in the UK and beyond, due in no small part to his command of legal doctrine and theory, criminology and the theory and practice of human rights. This collection of eighteen original essays, written to honour Ashworth on his retirement from the Vinerian Chair of English Law at the University of Oxford in 2013, reflects the honorand's diverse – yet connected – interests.
The essays in this volume thus cover a significant expanse of terrain, and the editors – Ashworth's Oxford colleagues, Lucia Zedner and Julian Roberts – were faced with an unenviable task in grouping the chapters together in a logical fashion. For the most part, the order of the contributions is sensible, but there are sometimes jumps in subject matter, which appear jarring if the text is read cover to cover. Of course this is not how Festschrifts are usually read, and a strength of this text is that it does have something for everyone, as the following overview of the chapters seeks to convey.
The first tranche of essays are collected under the heading of “Criminal Law”. Obviously, this is a broad category, and the chapters in part one of this book cover a very broad range of topics, usually from a theoretical – rather than a doctrinal – perspective. What links these first chapters together, for the most part, is their use of important distinctions. The typical format is for an author to pick up an issue raised in Ashworth's work (usually in his Principles of Criminal Law textbook (hereinafter, “Principles”)) and subject it to close scrutiny. Through this process, these first contributions tend to indicate possible ways forward for Ashworth in his future work.
In the opening essay, John Gardner builds on his earlier work on the notion of “principle” – a term which is much (ab?)used in criminal law theory. Gardner demonstrates that, in Principles, Ashworth uses the term “principle” inconsistently and often at variance with the approach of other legal theorists. The reader does not come away with any clearer idea of what Ashworth means (or might mean) by the term “principle”, but the clarity of the structure presented by Gardner is useful nonetheless.
Nicola Lacey's contribution exhibits similar concern with the overall consistency of Principles, and Ashworth's core distinction between concerns of principle and policy. Lacey places Ashworth's core text on criminal law in a historical context and examines how his treatment of issues of criminalisation, criminal liability and procedure has, in subsequent editions of Principles, responded to developments in the UK over the last 20 years.
From here, the chapters are less clearly connected to one-another. Jeremy Horder discusses Ashworth's concerns over whether the conduct element of criminal attempts in English law is compatible with Article 7 of the European Convention on Human Rights (no punishment without law). Horder's account, with its rich discussion of the roles played by courts and the legislature in framing criminal offences, is illuminating. It might, nevertheless, be a bit heavy for those coming to this area for the first time.
Next, Antony Duff discusses the presumption of innocence and its interaction with “reverse burdens of proof” in criminal trials. Duff's analysis is instructive in the way that Gardner's discussion of “principle” is: it helps the reader draw distinctions that clarify a concept – the presumption of innocence – that tends to be difficult to pin down. His discussion of the “substantive” and “formalist” versions of the presumption, and the limitations of both when it comes to criticising criminalisation decisions, is particularly useful. This is something of an undeveloped point in the literature – though it has been raised, often fleetingly, in some UK case law – and so it is very useful to have Duff's views on it.
The topic of criminalisation is also taken on by Victor Tadros, but his entry point into the discussion is rather different. Tadros looks at the importance of Ashworth's principle of “fair labelling” (in essence, that the “label” attached to a convicted offender – murderer, manslaughter, rapist, etc. – reflects properly the degree of her wrongdoing and her culpability) to questions of criminalisation. This is intriguing. Typically, criminal law theorists are interested in the role that fair labelling plays at the stages of conviction and post-punishment reintegration into society. Tadros's contribution is thus an important step forward in the literature.
The next chapter is rather an odd-one-out in its treatment of substantive criminal fault. That said, Douglas Husak's account of negligence again makes interesting distinctions to elucidate an area that Ashworth does not examine in great detail in Principles. Husak is interested in the line between recklessness and negligence, and how it might be drawn in different places when the cause of a person's inadvertence to risk is distraction or forgetfulness. What is interesting about Husak's account is his antipathy (shared by Ashworth) towards a general account of culpability for negligence. The reader might not be convinced (this one was not), but Husak's view that further types of fault element might be required for the criminal law to reflect properly the contours of culpability certainly is interesting.
After Husak's chapter, the focus changes (again) to look at defences. Andrew Simester's chapter on the structure of defences in criminal law theory is again concerned with distinctions and categories. His account – which separates exculpatory defences into irresponsibility defences, justifications, excuses and mistake-based defences – is clear and convincing, and is a rival to others that have recently been put forward by other writers in the field, such as Duff and Husak. Next is Barry Mitchell's treatment of the provocation defence, and the “loss of control” defence that replaced it in 2010. This contains by far the most detailed chapter on English law in this part of the book, and demonstrates the impact of Ashworth's work on some aspects of the recent reforms. Mitchell's frustration that some aspects of Ashworth's view are not represented in the new law is also clear.
The editors chose to group the second set of essays under the title of “Criminal Process and Human Rights”, which is again broad. Starting from Ashworth's more recent work in the area, Liora Lazarus explores the interesting interface between “coercive duties” of States and individual rights. By “coercive duties”, Lazarus means those concerns that arise from the rights of, say, victims of crime, which require the State to criminalise certain behaviour. In the criminal context, it is common to think of human rights primarily in terms of protections for defendants (with a focus on Article 6's guarantee of a fair trial), but Lazarus' essay explains how Convention rights can also encourage legislatures to criminalise certain conduct in order to protect citizens.
A similar human rights focus characterises Mike Redmayne's treatment of entrapment, which engages very clearly with Ashworth's work on this topic. The blend of English and (principally) Canadian doctrinal approaches, together with modern scholarship on the difficult issue of when (if ever) entrapment ought to constitute a defence (as in the US) or the staying of proceedings (as in the UK jurisdictions) is particularly helpful. Equally focussed on Ashworth's work is Paul Roberts' exploration of Ashworth's early (1977) work on the exclusionary rule of evidence. Roberts develops the “protective principle” put forward by Ashworth and maps out a clear structure for analysing its implications. This culminates in 243 possible iterations of the protective principle, which indicates just how tricky this area can become! Roberts nevertheless manages to keep the reader on board, even if some flicking back and forth between pages might be necessary at points.
The next two chapters alter the focus of discussion slightly to look at punishment and sentencing (sentencing, it should be noted, is the subject of the third main part of the book – the difficulties of overlap between the sections in this book are perhaps inevitable). Dirk van Zyl Smit's interesting and particularly topical chapter provides a useful overview of the European legal framework around community sentences, and their relationship with imprisonment. Of similar contemporary importance is Andreas von Hirsch and Vivian Schorscher's chapter, which examines the potential application of von Hirsch and Ashworth's theory of state punishment in the context of international criminal law. The question of what principles are to be applied in trying and punishing those who have committed crimes against humanity whilst in charge of a country is of obvious practical concern given recent high profile trials, and Von Hirsch and Schorscher's chapter is an important contribution to the emerging theoretical literature on this point.
The final essays in this collection address the matter of “Sentencing”. As will by now be expected, the chapters in this part of the book cover a diverse range of subjects. The first two chapters deal with the idea of equality in sentencing theory and practice – a matter much discussed in Ashworth's work. Kate Warner analyses the role that economic inequality ought to play in the imposition of fines on offenders; a topic that Ashworth has written on at length. Elaine Player then looks at the implications of equality legislation for the treatment of female offenders. These two chapters are more empirical, but serve as good introductions to the literature on the topic of (in)equality in sentencing.
The next three essays are more theoretical, which is not to say that they do not engage with matters of practical importance. Malcolm Thorburn's account of the state's monopoly on punishment, which draws extensively on moral and political philosophy, is lucid and convincing. Ashworth's work on punishment is set out clearly by Thorburn and put into a wider theoretical context. Again, core distinctions are drawn in this chapter, which will serve to clarify the reader's thinking on this difficult area. Equally clear and engrossing are Martin Wasik's treatment of concurrent and consecutive sentencing and Michael Tonry's discussion of double jeopardy, moral luck and unjustified acquittals. Wasik's essay is also entertaining, demonstrating the difficulties that the English courts have had in deciding whether an offender ought to serve his multiple sentences concurrently or consecutively. Tonry's chapter is both witty and provocative – arguing, in essence, that factually guilty defendants who secure an acquittal are simply “lucky”, and ought to be left alone by the state – and ought to stir up lively debate.
As this brief overview shows, this book is replete with insight and useful analysis. The chapters are typically clear enough to be engaged with by more advanced students and their true value for the more advanced reader lies in clarifying difficult issues of theory and practice raised – but not resolved – in Ashworth's work. The only disappointment is that there is no response from Ashworth to the contributions. This is not unusual for a Festschrift, but it is a shame. The essays in this collection are hardly sycophantic (as seen above, the opening chapter accuses Ashworth with being loose with a concept – “principle” – which has so characterised his work!), and the reader is left with one side of the argument. One hopes that Ashworth will take the opportunity to respond to each chapter, whilst enjoying his retirement.
