Essential legal aide-memoire

Criminal Law - Criminal Evidence. First edition
May 27, 2005

The perennial fear of writers and publishers of law books is that shortly after publication there will be significant changes that render their books out of date. This is especially true of criminal law and criminal justice, where the speed of change seems greater than elsewhere. Nevertheless, two recent books - one on criminal law and the other on criminal evidence - have in the main anticipated legislative changes successfully.

As the way students go about studying their subject evolves, so too does the style of textbooks. In most law subjects there is a range of texts available, thereby increasing the chances that students will be able to find something that closely corresponds not just to the subject matter, but also to the way they are taught and the emphasis of their tutors.

Jonathan Herring’s Criminal Law is an excellent attempt to provide something that fulfils a number of requirements. As the subtitle implies, his book offers a text, his explanation and a discussion of the standard topics that arise in almost every undergraduate criminal law syllabus. The text is helpfully supplemented by extracts from some of the leading cases. Second, no doubt reflecting the fact that today’s students spend less time searching relevant library materials than their predecessors, there are extracts from a variety of sources, which provide useful theoretical discussion of the principles and values that underpin and influence the law. Of course, some colleagues might argue that a particular part of an important judgment, or what they regard as an especially useful article, has been omitted, but it would be inappropriate to criticise the book for that reason. Moreover, there are regular, albeit brief, further reading lists for those who are gluttons for punishment.

The result is a book that sets out to combine an exposition of the black-letter law with a critical review of relevant philosophical and ethical theory or - to put it more simply - two books in one. Readers can dip into it to research a specific issue, or they can sit down and spend longer getting to grips with the subject.

At nearly 1,000 pages, one assumes that Herring expects, or perhaps hopes, that students will rely heavily on it for their criminal law studies. It deals with some of the notoriously difficult topics in a lucid and coherent fashion, frequently posing the sorts of questions that students raise. Indeed, questions are intermittently posed by the author so that students can test themselves as they go along (and see how well they have understood the material).

An undoubted strength of the book is the degree of integration between the text and the cases and materials. Herring’s text crystallises the important issues in each part of the syllabus, and the cases and materials then allow the reader to examine them in more detail. It should appeal to a wide range of criminal law students and be a valuable means of support, however their particular course is taught.

The timing of this publication has been gauged pretty well too. Herring was able to take account of the significant changes brought about by the enactment of the Sexual Offences Act 2003, although the impact of the House of Lords decision in the case of “G & R” on recklessness could be addressed only briefly in an appendix.

In Criminal Evidence , Paul Roberts and Adrian Zuckerman have exercised similar good judgement in the timing of their publication. Although much of the manuscript was written by late 2003, they have included the impact of the Criminal Justice Act 2003 on evidence of character and hearsay. (Needless to say, the implications of the European Convention on Human Rights and the Human Rights Act 1998 permeate much of the text.)

The distinctive scholarly analysis and critique that characterises this excellent book is reflected in its “spiritual heir”, Zuckerman’s The Principles of Evidence (1989). For although Criminal Evidence is properly described as a first edition, the authors originally set out to write a second edition of Zuckerman’s monograph. It was the sheer extent of updating needed, to take account of a mass of new statute and case law, that led them to produce what is in effect the first edition of a new book.

Much is often made of the (alleged) difference between the law in theory and what happens in legal practice. Yet criminal evidence is arguably one of the few subjects that challenges students fully to understand it without viewing it from both perspectives. Hence, a key feature of this book is that Roberts and Zuckerman have set their analysis in a procedural context, discussing rules of admissibility against the background of the criminal law in practice. Indeed, one or two of the early chapters devote much of their attention to the adversarial process and the quest to discover the facts - or at least as many of them as possible. Readers are encouraged to think about the rules of evidence in light of the ways in which lawyers seek to establish the facts, and how the law has sought to balance the conflicting interests of opposing parties. In taking this approach, Roberts and Zuckerman have produced a book that will appeal to practitioners as well as academics.
What is particularly impressive about this book is the depth of the authors’ scholarly investigation and critical awareness of the subject. The black-letter law is there, and there are parts of it that will test even the more able students. Not only do Roberts and Zuckerman set these out in a comprehensive manner but, more important, they significantly enhance the reader’s understanding and appreciation of the law by addressing the underlying principles and theories that should shape them. The only catch here is that those wanting merely to determine black-letter law are likely to be frustrated because - quite rightly - it is interwoven with discussion of the principles and theory.

In the not-too-distant future, there is the promise - “threat” may be a better word - of more legislation in various aspects of criminal justice. The problems facing authors on these subjects are unlikely to abate.

Barry Mitchell is professor of criminal law and criminal justice, Coventry University.

Criminal Law: Text, Cases and Material. First edition

Author - Jonathan Herring
Publisher - Oxford University Press
Pages - 937
Price - £28.99
ISBN - 0 19 876578 9

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