Andrew Roberts - Academia.edu (original) (raw)
Papers by Andrew Roberts
Oxford University Press eBooks, Nov 11, 2010
The Oxford Handbook of Empirical Legal Research provides a comprehensive guide to one of the most... more The Oxford Handbook of Empirical Legal Research provides a comprehensive guide to one of the most central developments in modern legal scholarship. 43 chapters trace the development of the field, its methodology, and its contribution to ...
Modern Law Review, May 1, 2015
In Digital Rights Ireland Ltd v Minister for Communications, the European Court of Justice found ... more In Digital Rights Ireland Ltd v Minister for Communications, the European Court of Justice found the EU Data Retention Directive, which required the retention of communications data for up to two years, to be incompatible with Articles 7 and 8 of the EU Charter of Fundamental Rights – the rights to privacy and to the protection of personal data. It is argued in this note that the decision ought to be taken as one that is concerned with the exercise of arbitrary power, a concern that is captured by the concept of domination.
Social Science Research Network, 2017
Social Science Research Network, 2009
This paper provides critical comment on proposals set out in the Consultation Paper (CP 190, 2009... more This paper provides critical comment on proposals set out in the Consultation Paper (CP 190, 2009) on the admissibility of expert evidence in criminal trials published by the Law Commission of England and Wales in 2009.
European Data Protection Law Review, 2018
BYU Law Review, 2019
Several countries have recently introduced laws allowing the police to hack into suspects’ comput... more Several countries have recently introduced laws allowing the police to hack into suspects’ computers. Legislators recognize that police hacking is highly intrusive, e.g., to personal privacy, but consider it justified by the increased use of encryption and mobile computing — both of which challenge traditional investigative methods. Police hacking also exemplifies a major challenge to the way legal systems deal with, and conceptualize, privacy. Existing conceptualizations of privacy and privacy rights do not always adequately address the types and degrees of intrusion into individuals’ private lives that police hacking powers enable. Traditional privacy pillars such as the home and secrecy of communications do not always apply to computer-based police investigations in an era of mobile technologies and ubiquitous data. In this Article, we conduct a comparative legal analysis of criminal procedure rules in the United States, Germany, Italy, the Netherlands, and the United Kingdom to ...
The Journal of Criminal Law, 2006
SSRN Electronic Journal, 2019
It is often claimed that the criminal justice system has not taken sufficient account of the find... more It is often claimed that the criminal justice system has not taken sufficient account of the findings of experimental studies that have revealed much about the limitations and vulnerabilities of human memory and cognition. Indeed some have suggested that those responsible for the administration of justice are generally disinterested in what psychologists have to say about the nature of memory and its frailties, and unwilling to consider the adequacy of legal rules and practices in light of what is known about these matters.
SSRN Electronic Journal, 2014
There is widespread disagreement about the terms in which privacy ought to be defined and consequ... more There is widespread disagreement about the terms in which privacy ought to be defined and consequently about the scope of the concept. It is said to lack coherence, leading some to question its value for practical reasoning. In this essay I argue that disagreement about privacy is, at least in part, a manifestation of disagreement about more general moral-political values that the concept of privacy is invoked to serve. Commitment to these values will lead not only to differing views on the value of privacy, but also as to the terms in which it ought to be defined. Locating accounts of privacy in political theory will enable us to impose order on what appears to be a chaotic conceptual landscape.
Law & Social Inquiry, 2018
The criminalization of offensive, privacy-intrusive behavior is an important form of privacy prot... more The criminalization of offensive, privacy-intrusive behavior is an important form of privacy protection. However, few studies exist of visual observation in criminal law. We address this gap by researching when nonconsensual visual observation is deemed harmful enough to trigger criminal sanctions, and on what basis the law construes the “reasonableness of remaining unobserved,” through a nine-country comparative study. We distinguish between voyeurism-centric approaches (focusing largely on nudity and sex) and broader, intrusion-centric approaches (such as observation inside closed spaces). Both approaches explicitly or implicitly reflect “reasonable” privacy expectations, listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We present a framework for criminalizing nonconsensual visual observation, encompassing factors of technology use, place, subject matter, and surreptitiousness, supplemented by factors of intent, identifiabil...
SSRN Electronic Journal, 2015
SSRN Electronic Journal, 2013
This article provides an account of the value of privacy in securing the republican aims of self-... more This article provides an account of the value of privacy in securing the republican aims of self-government and conditions of non-domination. It describes how loss of privacy might lead to subjugation to dominating power. The republican concept of domination provides the foundation of a broad and coherent account of the value of privacy. One that encompasses circumstances in which the subject (i) suffers interference as a result of the loss, (ii) is aware that he has suffered a loss of privacy, but suffers no subsequent interference, and (iii) is unaware that he has suffered any loss of privacy, and suffers no subsequent interference. Liberal accounts explain the value of privacy in the first two circumstances by pointing to the possible effect of the loss on the autonomy of the subject, but because they focus on autonomy are unable to explain why privacy is valuable where an agent is unaware of the loss. The republican account provided here explains why loss is harmful in all three circumstances. The final part of the article argues that because privacy is a pre-requisite for effective participation in political life, and republicans consider such participation to be the essence of self-government and the means through which a polity can secure conditions of freedom, in a republican democracy individual privacy will be seen as a collective good.
The Modern Law Review, 2008
This paper sets out the normative basis of a claim to procedural rights concerning the fair use o... more This paper sets out the normative basis of a claim to procedural rights concerning the fair use of eyewitness identification procedures. It is argued that there are two aspects to suspects' procedural rights. The first aims to secure an opportunity for the suspect to participate in procedures where doing so might result in exculpatory evidence (a participatory right). The second is the state's obligation to take reasonable measures to prevent wrongful conviction on the basis of mistaken identification by providing the suspect with a satisfactory degree of procedural accuracy (a protective right). This normative analysis provides the basis of a claim that Article 6 of the European Convention on Human Rights provides a suspect with similar rights. The final part of the paper considers whether domestic procedure is compatible with these putative rights, and whether it could be said to provide an effective remedy if they were to be breached.
Federal Law Review, 2022
Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudi... more Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudice has long been a fundamental safeguard against unfair trials and wrongful convictions. In 2016, IMM v The Queen (IMM) curtailed that safeguard by holding that trial judges should assess probative value on the assumption that the evidence is reliable and credible. The IMM majority placed emphasis on the capacity of the evidence. In doing so, it provided a mysterious qualification: some evidence may lack probative value not because it is unreliable, but because it is ‘simply unconvincing’. The majority illustrated unconvincingness with the example of an unreliable eyewitness identification. Courts and legal scholars criticised the majority judgment for its harmful implications and for its apparent incoherence. From a review of almost 4 years of post- IMM jurisprudence and deeper exploration into one particular case, we find that ‘simply unconvincing’ has accentuated the confusion and inc...
Social Science Research Network, 2013
This article provides an account of the value of privacy in securing the republican aims of self-... more This article provides an account of the value of privacy in securing the republican aims of self-government and conditions of non-domination. It describes how loss of privacy might lead to subjugation to dominating power. The republican concept of domination provides the foundation of a broad and coherent account of the value of privacy. One that encompasses circumstances in which the subject (i) suffers interference as a result of the loss, (ii) is aware that he has suffered a loss of privacy, but suffers no subsequent interference, and (iii) is unaware that he has suffered any loss of privacy, and suffers no subsequent interference. Liberal accounts explain the value of privacy in the first two circumstances by pointing to the possible effect of the loss on the autonomy of the subject, but because they focus on autonomy are unable to explain why privacy is valuable where an agent is unaware of the loss. The republican account provided here explains why loss is harmful in all three circumstances. The final part of the article argues that because privacy is a pre-requisite for effective participation in political life, and republicans consider such participation to be the essence of self-government and the means through which a polity can secure conditions of freedom, in a republican democracy individual privacy will be seen as a collective good.
Oxford University Press eBooks, Nov 11, 2010
The Oxford Handbook of Empirical Legal Research provides a comprehensive guide to one of the most... more The Oxford Handbook of Empirical Legal Research provides a comprehensive guide to one of the most central developments in modern legal scholarship. 43 chapters trace the development of the field, its methodology, and its contribution to ...
Modern Law Review, May 1, 2015
In Digital Rights Ireland Ltd v Minister for Communications, the European Court of Justice found ... more In Digital Rights Ireland Ltd v Minister for Communications, the European Court of Justice found the EU Data Retention Directive, which required the retention of communications data for up to two years, to be incompatible with Articles 7 and 8 of the EU Charter of Fundamental Rights – the rights to privacy and to the protection of personal data. It is argued in this note that the decision ought to be taken as one that is concerned with the exercise of arbitrary power, a concern that is captured by the concept of domination.
Social Science Research Network, 2017
Social Science Research Network, 2009
This paper provides critical comment on proposals set out in the Consultation Paper (CP 190, 2009... more This paper provides critical comment on proposals set out in the Consultation Paper (CP 190, 2009) on the admissibility of expert evidence in criminal trials published by the Law Commission of England and Wales in 2009.
European Data Protection Law Review, 2018
BYU Law Review, 2019
Several countries have recently introduced laws allowing the police to hack into suspects’ comput... more Several countries have recently introduced laws allowing the police to hack into suspects’ computers. Legislators recognize that police hacking is highly intrusive, e.g., to personal privacy, but consider it justified by the increased use of encryption and mobile computing — both of which challenge traditional investigative methods. Police hacking also exemplifies a major challenge to the way legal systems deal with, and conceptualize, privacy. Existing conceptualizations of privacy and privacy rights do not always adequately address the types and degrees of intrusion into individuals’ private lives that police hacking powers enable. Traditional privacy pillars such as the home and secrecy of communications do not always apply to computer-based police investigations in an era of mobile technologies and ubiquitous data. In this Article, we conduct a comparative legal analysis of criminal procedure rules in the United States, Germany, Italy, the Netherlands, and the United Kingdom to ...
The Journal of Criminal Law, 2006
SSRN Electronic Journal, 2019
It is often claimed that the criminal justice system has not taken sufficient account of the find... more It is often claimed that the criminal justice system has not taken sufficient account of the findings of experimental studies that have revealed much about the limitations and vulnerabilities of human memory and cognition. Indeed some have suggested that those responsible for the administration of justice are generally disinterested in what psychologists have to say about the nature of memory and its frailties, and unwilling to consider the adequacy of legal rules and practices in light of what is known about these matters.
SSRN Electronic Journal, 2014
There is widespread disagreement about the terms in which privacy ought to be defined and consequ... more There is widespread disagreement about the terms in which privacy ought to be defined and consequently about the scope of the concept. It is said to lack coherence, leading some to question its value for practical reasoning. In this essay I argue that disagreement about privacy is, at least in part, a manifestation of disagreement about more general moral-political values that the concept of privacy is invoked to serve. Commitment to these values will lead not only to differing views on the value of privacy, but also as to the terms in which it ought to be defined. Locating accounts of privacy in political theory will enable us to impose order on what appears to be a chaotic conceptual landscape.
Law & Social Inquiry, 2018
The criminalization of offensive, privacy-intrusive behavior is an important form of privacy prot... more The criminalization of offensive, privacy-intrusive behavior is an important form of privacy protection. However, few studies exist of visual observation in criminal law. We address this gap by researching when nonconsensual visual observation is deemed harmful enough to trigger criminal sanctions, and on what basis the law construes the “reasonableness of remaining unobserved,” through a nine-country comparative study. We distinguish between voyeurism-centric approaches (focusing largely on nudity and sex) and broader, intrusion-centric approaches (such as observation inside closed spaces). Both approaches explicitly or implicitly reflect “reasonable” privacy expectations, listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We present a framework for criminalizing nonconsensual visual observation, encompassing factors of technology use, place, subject matter, and surreptitiousness, supplemented by factors of intent, identifiabil...
SSRN Electronic Journal, 2015
SSRN Electronic Journal, 2013
This article provides an account of the value of privacy in securing the republican aims of self-... more This article provides an account of the value of privacy in securing the republican aims of self-government and conditions of non-domination. It describes how loss of privacy might lead to subjugation to dominating power. The republican concept of domination provides the foundation of a broad and coherent account of the value of privacy. One that encompasses circumstances in which the subject (i) suffers interference as a result of the loss, (ii) is aware that he has suffered a loss of privacy, but suffers no subsequent interference, and (iii) is unaware that he has suffered any loss of privacy, and suffers no subsequent interference. Liberal accounts explain the value of privacy in the first two circumstances by pointing to the possible effect of the loss on the autonomy of the subject, but because they focus on autonomy are unable to explain why privacy is valuable where an agent is unaware of the loss. The republican account provided here explains why loss is harmful in all three circumstances. The final part of the article argues that because privacy is a pre-requisite for effective participation in political life, and republicans consider such participation to be the essence of self-government and the means through which a polity can secure conditions of freedom, in a republican democracy individual privacy will be seen as a collective good.
The Modern Law Review, 2008
This paper sets out the normative basis of a claim to procedural rights concerning the fair use o... more This paper sets out the normative basis of a claim to procedural rights concerning the fair use of eyewitness identification procedures. It is argued that there are two aspects to suspects' procedural rights. The first aims to secure an opportunity for the suspect to participate in procedures where doing so might result in exculpatory evidence (a participatory right). The second is the state's obligation to take reasonable measures to prevent wrongful conviction on the basis of mistaken identification by providing the suspect with a satisfactory degree of procedural accuracy (a protective right). This normative analysis provides the basis of a claim that Article 6 of the European Convention on Human Rights provides a suspect with similar rights. The final part of the paper considers whether domestic procedure is compatible with these putative rights, and whether it could be said to provide an effective remedy if they were to be breached.
Federal Law Review, 2022
Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudi... more Exclusion of evidence when its probative value is exceeded by its risk of creating unfair prejudice has long been a fundamental safeguard against unfair trials and wrongful convictions. In 2016, IMM v The Queen (IMM) curtailed that safeguard by holding that trial judges should assess probative value on the assumption that the evidence is reliable and credible. The IMM majority placed emphasis on the capacity of the evidence. In doing so, it provided a mysterious qualification: some evidence may lack probative value not because it is unreliable, but because it is ‘simply unconvincing’. The majority illustrated unconvincingness with the example of an unreliable eyewitness identification. Courts and legal scholars criticised the majority judgment for its harmful implications and for its apparent incoherence. From a review of almost 4 years of post- IMM jurisprudence and deeper exploration into one particular case, we find that ‘simply unconvincing’ has accentuated the confusion and inc...
Social Science Research Network, 2013
This article provides an account of the value of privacy in securing the republican aims of self-... more This article provides an account of the value of privacy in securing the republican aims of self-government and conditions of non-domination. It describes how loss of privacy might lead to subjugation to dominating power. The republican concept of domination provides the foundation of a broad and coherent account of the value of privacy. One that encompasses circumstances in which the subject (i) suffers interference as a result of the loss, (ii) is aware that he has suffered a loss of privacy, but suffers no subsequent interference, and (iii) is unaware that he has suffered any loss of privacy, and suffers no subsequent interference. Liberal accounts explain the value of privacy in the first two circumstances by pointing to the possible effect of the loss on the autonomy of the subject, but because they focus on autonomy are unable to explain why privacy is valuable where an agent is unaware of the loss. The republican account provided here explains why loss is harmful in all three circumstances. The final part of the article argues that because privacy is a pre-requisite for effective participation in political life, and republicans consider such participation to be the essence of self-government and the means through which a polity can secure conditions of freedom, in a republican democracy individual privacy will be seen as a collective good.