'The Denial of Procedural Safeguards in Trials for Regulatory
Offences: A Justification ' Criminal Law and Philosophy (2016)
Regulatory offences are a complex phenomenon, presenting problematic aspects
both at the level of criminalisation and at the level of enforcement. The
literature abounds in works that study the phenomenon. There is, however, an
aspect that has remained largely unexplored. It concerns the relationship
between the regulatory framework within which the crime occurs and the
procedural safeguards that defendants normally enjoy at trial or at the
pre-trial stage: defendants tried for regulatory offences are often denied
safeguards that are generally considered as important constituents of trial
fairness. Relying on a new conceptualisation of regulatory offences, this paper
advances a theory that justifies these exceptional rulings.
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'Generalisations, causal relationships and moral
responsibility' The International Journal of Evidence & Proof (2016) 20
(2) pp.121-135
In Chapter 4 of his book Character in the Criminal Trial, Mike Redmayne
addresses a series of non-epistemic arguments against the use of bad character
evidence. Redmayne is particularly successful in debunking arguments focusing on
the defendant’s autonomy. Inspired by the early drafts of Chapter 4—which I had
the honour to read—I published an article trying to contribute to the debate. At
the time of writing, however, I was not aware of a beguiling argument concerning
the use of behavioural generalisations, formulated and defended by Amit Pundik
in a recent research paper. According to this argument, we should not prove
guilt using generalisations that presuppose a causal relationship between an
antecedent factor and individual behaviour, if this relationship negates the
freedom of the individual under any theory about determinism and free will that
one may adopt—be it a libertarian or a compatibilist theory. In this article I
critically assess this argument and attempt to show that it does not succeed.
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'Base-rates of Negative Traits: Instructions for Use in
Criminal Trials' Journal of Applied Philosophy (2016) 33 (1) pp.69-87
Decision-makers in institutional and non-institutional contexts are sometimes
confronted with the issue of whether to use generalisations expressing the
statistical incidence of a negative trait in a disadvantaged and
discriminated-against social group in order to draw an inference concerning a
member of that group. If a criminal court were confronted with such a question,
what answer should it give? First, the article argues that, our qualms
notwithstanding, morality does not demand that these generalisations be
disregarded. In doing so, the article addresses the relationship between factual
accuracy and the demands of morality in criminal trials. Second, the article
considers the implications of this conclusion for the legal question as to
whether the evidence at issue should be excluded, in particular, on grounds of
unfairness — pursuant to section 78(1) of the Police and Criminal Evidence Act
1984.
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'The threshold lies in the method: Instructing jurors about
reasoning beyond reasonable doubt' The International Journal of
Evidence and Proof (2015) 19 (3) 139-153
The last few decades have seen several scholars and courts striving to understand the meaning of
the reasonable doubt standard and, in particular, to produce instructions that would enlighten
jurors in this regard. The focus has been on defining the standard as a threshold indicating the
quality and quantity of evidence sufficient for a finding of fact, or the degree of confidence that the
fact finder should have before convicting. The results of these endeavours have not been satisfactory
and nowadays it is still frequent that juries ask the court for clarification on the meaning of
the standard. This paper argues that the reasonable doubt standard is better conceived and
explained to the jury as requiring a particular method of reasoning, rather than merely a threshold.
A direct explanation of the threshold is elusive and potentially encroaches on the fact finder’s role.
Reference to a method of reasoning instead promises to provide useful directions to the jury which
promote compliance with the threshold itself. The paper advances methodological directives
inspired by works in philosophy of the mind and virtue epistemology. The paper then concludes
with practical recommendations for devising a new instruction on the standard of proof.
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'Legal Reasoning as Fact Finding? A Contribution to the
Analysis of Criminal Adjudication' (2014) 5(2) Jurisprudence 299–327
This paper attempts to shed light on the dynamics of criminal adjudication. It starts by exploring some significant—and often ignored—similarities and dissimilarities between the practices and disciplines of, respectively, legal reasoning and fact finding. It then discusses the problem of defining the nature of these processes—legal reasoning, in particular—in terms of their being instances of practical or theoretical reasoning. Thus understood, the problem is shown to be distinct from two traditional questions of jurisprudence, namely whether law consists of facts and, if so, whether these facts are social or (also) moral. Two theses are proposed as solutions to the problem: (T1) 'in the majority of cases legal reasoning is theoretical', and (T2) 'when legal reasoning is practical it generally involves complex theoretical operations'. Finally, the paper shows how T1 and T2 can make sense of the phenomena presented at the outset.
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'Innocence and burdens of proof in English criminal law'
Law, Probability and Risk (2014) 13 (3-4): 243-257
Since the Human Rights Act 1998, scholars and courts have
dedicated considerable attention to the presumption of innocence. A major strand
of the ensuing debate has focused on the scope of this safeguard. Many academics
have argued in favour of according to the presumption a substantive—as opposed
to a procedural—role. In other words, these scholars maintain that the
presumption set in art. 6(2) of the European Convention on Human Rights (ECHR)
should have some influence on the definition of criminality. Courts seem
sympathetic to this approach, albeit not following it to the full extent. The
article, instead, defends a procedural understanding of the presumption of
innocence, on the basis of interpretive arguments concerning art. 6(2) ECHR.
Besides, it shows that adopting this conception does not entail lowering the
protection of the individual before the substantive criminal law.
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‘Le Narrazioni nella Giustizia Penale’, in Diritto Penale
Contemporaneo, 15 October 2013
'Two Meanings of "Reasonableness": Dispelling the "Floating"
Reasonable Doubt' Modern Law Review (2013) 76 (5) pp.845-875
‘La Decisione della High Court Inglese nel Caso Nicklinson:
Confermata l’Illiceità dell’Eutanasia Attiva’ – Comment to Tony Nicklinson v.
Ministry of Justice, [2012] EWHC 2381 (Admin), in Diritto Penale
Contemporaneo, 9 October 2012
‘Regno Unito: un Nuovo Importante ‘Right-to-Die Case’ in
Materia di Eutanasia Attiva’ – Comment to Tony Nicklinson v. Ministry of Justice
and Others [2012] EWHC 304 (QB), in Diritto Penale Contemporaneo, 13
April 2012
'Nascere e Risiedere in Italia non Basta per Essere Cittadino
Italiano…’, in Questione Giustizia (2012), 5, pp. 153-156
'Structuring Inferential Reasoning in Criminal Fact Finding:
An Analogical Theory' in Law, Probability & Risk (2012) 11 (2/3)
pp.197-223
The article proposes a normative theory of inferential
reasoning for criminal fact finding, centred on the concept of ‘analogy’. While
evidence law scholars have devoted little attention to the topic, the article
maintains that analogy deserves more consideration. In particular, it argues
that an analogical theory of inferential reasoning has three main advantages.
First, the theory makes it possible to incorporate within a single coherent
framework the important insights of different approaches to ‘reasoning under
uncertainty’; indeed, it welcomes both the Pascalian notion of ‘relevance’ based
on the Bayesian likelihood ratio and the Baconian concept of ‘weight’. Secondly,
it helps advance the conventional understanding of the reference class problem,
an evidential conundrum widely discussed in the recent legal scholarship.
Finally, the theory allows for a functional taxonomy of reasonable doubts.
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'A Retributive Justification for not Punishing Bare Intentions
or: on the Moral Relevance of the ‘Now-Belief' in Law and Philosophy
(2012)
According to criminal law a person should not be punished for a bare intention
to commit a crime. While theorists have provided consequentialist and epistemic
justifications of this tenet, no convincing retributive justification thereof
has yet been advanced. The present paper attempts to fill this lacuna through
arguing that there is an important moral difference between a future-directed
and a present-directed intention to act wrongfully. Such difference is due to
the restraining influence exercised in the decisional process by the
‘now-belief’, i.e. the belief that the time has come to act, which is
exclusively involved in the latter type of intention.
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'Factual Inference as Analogical Reasoning. A Comment on Peter
Tillers’s "The Structure of Proof in Modern Trials"’ in Law, Probability &
Risk, 10, p. 7 (2011)
Diritto Penale, Patteggiamento e Ragionevole Dubbio, in
Rivista Italiana di Diritto e Procedura Penale, 52, p. 1457 (2009)
‘Lo Stato d’Ebbrezza tra Accertamento Sintomatico e Soglie di
Rilevanza Penale’, in La Prova dei Fatti Psichici (Carmela Piemontese and
Emma Venafro eds., Giappichelli, 2009)
L’Accertamento Sintomatico nella Nuova Fattispecie di Guida
Sotto l’Influenza dell’Alcool alla Prova del Ragionevole Dubbio, in Corriere
del Merito, 23, p. 601 (2008)
