Andrew Roberts | University of Melbourne (original) (raw)

Papers by Andrew Roberts

E. Bant, W. Courtney, J. Goudkamp, and J. M. Patterson, (eds.), Punishment and Private Law, (2021: Bloomsbury, Hart), 2021

While private law has developed various causes of action for breach of privacy, the criminal law ... more While private law has developed various causes of action for breach of privacy, the criminal law has seldom used the concept of privacy in defining its proscriptions. There is no recognised category of ‘privacy crimes’. But new technologies are posing ever more serious threats to our privacy. On the one hand, this has led to a ‘ramping up’ of privacy law protections, including a tort of misuse of private information recognised by UK courts (and explicit reliance on a broadly construed doctrine of breach of confidence for the protection of privacy in Australia). At the same time, there is a growing appreciation that privacy is a collective and social good, not only an individual good, and that some breaches of privacy affect large numbers of people and constitute serious public harms. In this chapter we suggest that as the law of privacy generally tilts more towards the public interest side, greater thought should be given to the benefits of including a punitive element in privacy cases that still ostensibly fit within the rubric of private law (or a data protection regime, or both together) but involve significant public harms. However, there is still a need to reconcile this position with the basic tenet of criminal law that that law, along with all its traditional protections, should be employed as the primary means of dealing with cases of egregiously wrongful conduct that results in serious harm. Specifically, the question we address concerns the role that private law ought to play in punishing breaches of privacy.

The use of street identification procedures—informal procedures in which witnesses attempt to ide... more The use of street identification procedures—informal procedures in which witnesses attempt to identify an offender, usually soon after the commission of a crime and close to where it occurred—has attracted significant concern. These procedures are generally thought to give rise to a greater risk of mistaken identification because they lack the safeguards of formal procedures conducted under controlled conditions. This article describes the findings of empirical research undertaken by the authors. The research had three broad objectives. The first was to collect data which would provide some indication of the extent to which street identifications are used by police in England and Wales. The second was to compare the reliability of street identifications and video identification procedures involving the use of foils. The final objective was to investigate the influence that a street identification procedure would have on a subsequent video identification procedure involving the same witness and suspect. The findings suggest that substantial numbers of street identifications are conducted but, perhaps counter-intuitively, in terms of the risk of mistaken identification of innocent suspects, such procedures may be no less reliable than video identification procedures. Following identification of a suspect in a street identification, there is a very high likelihood that a formal procedure involving the same suspect and witness will result in the suspect being identified again, notwithstanding that the suspect is innocent.

Social Science Research Network, Mar 7, 2012

A street identification or live show-up provides an eyewitness with an opportunity to identify a ... more A street identification or live show-up provides an eyewitness with an opportunity to identify a suspect shortly after a crime. In England, the majority of suspects identified are subsequently included in a video line-up for the same witness to view. In Study 1, robbery squad data from three English police forces recorded 696 crimes, the identification procedures employed and prosecution decisions. A street identification was the most frequent identification procedure, being attempted in 22.7% of investigations, followed by mugshot albums (11.2%) and video line-ups (3.4%). In Study 2, data of 59 crimes were collected in which suspects, identified in a street identification, were subsequently filmed for a video line-up. Across both studies, most (84%) suspects identified in the street were subsequently identified in a video line-up, indicative of a commitment effect, in which a witness conforms to their first identification decision. All suspects identified in two procedures were eventually cautioned or charged to appear in court. The ground truth of suspect guilt in these field data cannot be determined. However, suggestions are made for reducing the likelihood of a mistaken identification of an innocent suspect caught up in an investigation; all possible steps should be taken to reduce the inherent suggestiveness of the street identification procedure.

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 ...

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...

Australian Journal of Forensic Sciences, 2016

White, 'How to cross-examine forensic scientists: A guide for lawyers' (2014) 39 Australian Bar R... more White, 'How to cross-examine forensic scientists: A guide for lawyers' (2014) 39 Australian Bar Review 174. 2 Like HTCE, the discussion of methods (e.g. validation and error rates) in this article is primarily, though not exclusively, directed toward the comparison and pattern recognition domains. Though, the remaining discussion has more general application to the forensic sciences and medicine.

International Commentary on Evidence, 2009

This article provides critical analysis of some of the more notable procedural developments relat... more This article provides critical analysis of some of the more notable procedural developments relating to eyewitness identification evidence over the past decade.

Objectives: Following a crime report, the police in England and Wales may use a street identifica... more Objectives: Following a crime report, the police in England and Wales may use a street identification (showup) to obtain evidence when there is insufficient evidence to arrest. This may involve encouraging a witness to view an individual, or to conduct an area search of the vicinity. The aim of this research was to survey police use of street identifications, comparing outcomes with alternative visual procedures and to extrapolate national estimates of use. Design: Case data involving identification procedures were obtained from four police forces. These included street identifications, familiar suspect identifications, CCTV evidence, ‘mug shot’ images, facial composites and video lineups. Methods: Three types of data were collected. Firstly, diary studies of robbery squad officers provided details of 701 cases involving an identification procedure and their outcomes. Secondly, data of 37 cases in which positive street identifications were followed by a video lineup of the same suspect. Finally, data of 80 cases in which an area search was conducted with or without a witness present in a police vehicle. Results: A street identification was attempted in approximately 25% of robberies and was the most frequently used identification procedure. Approximately, 12% resulted in a suspect identification. The majority (66%) were later charged or cautioned, particularly if a witness identified the same suspect in a subsequent video lineup. Conclusions: The police rely on street identification in the investigation of street robbery. Despite a modest success rate, it is more likely than any alternative procedure to result in a suspect being charged.

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...

Applied Cognitive Psychology

A live showup (known as a street identification in the UK) allows the perpetrator to be identifie... more A live showup (known as a street identification in the UK) allows the perpetrator to be identified shortly after a street crime. If the suspect disputes the identification, a video line‐up often ensues. Four experiments examined the reliability of live showups and their influence on a subsequent video line‐up using realistic procedures and conditions. Similar proportions of culprits and innocent suspects were identified from live showups and video line‐ups. Both culprits and innocent suspects previously identified were likely to be identified again in a subsequent line‐up, with delays from a few minutes to a month. Only a weak effect of clothing bias was observed. There was strong evidence of commitment to a previous identification but no reliable evidence of source monitoring errors. The results suggest that a live showup is not less fair than a line‐up, but the use of repeated identification procedures introduces an unfair bias against innocent suspects.

Applied Cognitive Psychology, 2011

A live showup (known as a street identification in the UK) allows the perpetrator to be identifie... more A live showup (known as a street identification in the UK) allows the perpetrator to be identified shortly after a street crime. If the suspect disputes the identification, a video lineup often ensues. Four experiments examined the reliability of live showups and their influence on a subsequent video lineup using realistic procedures and conditions. Similar proportions of culprits and innocent suspects were identified from live showups and video lineups. Both culprits and innocent suspects previously identified were likely to be identified again in a subsequent lineup, with delays from a few minutes to a month. Only a weak effect of clothing bias was observed. There was strong evidence of commitment to a previous identification, but no reliable evidence of source monitoring errors. The results suggest that a live showup is not less fair than a lineup, but use of repeated identification procedures introduces an unfair bias against innocent suspects.

The Journal of Criminal Law, 2006

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.

Sydney Law Review, 2011

In early 2009 the National Research Council (NRC) of the US National Academy of Sciences publishe... more In early 2009 the National Research Council (NRC) of the US National Academy of Sciences published a report that was highly critical of many established areas of forensic science and the role of criminal courts in regulating them. In the same year, the Law Commission of England and Wales released a Consultation Paper, proposing that England and Wales should effectively embrace the approach to expertise associated with Daubert, guiding the US Federal Courts and many state courts (though criticised by the NRC). In 2011 the Law Commission formally recommended a reliability standard in a draft bill. In Australia, courts and reformers have done little in response to problems of reliability and the serious criticisms identified by the NRC have been muted. This essay aims to explain how notions of rectitude, practical authority, fair trial rights, and so called fundamental principles of evidence law (e.g. the presumption of innocence, the right to examine witnesses, the allocation of burdens and standards of proof, the premium placed on liberty and not convicting the innocent) can help us to reconsider legal approaches to the admission and use of expert evidence in adversarial criminal proceedings in response to emerging and institutionally unsettling empirical evidence.

Criminal Law Review , 2019

The argument presented in this paper is that not only should the state make greater use of scient... more The argument presented in this paper is that not only should the state make greater use of scientific research, it is under a moral and legal obligation to do so. The source of this obligation is the right to the most accurate procedures for determining innocence and guilt. I will suggest that this right is implied by the presumption of innocence.

The paper compares and contrasts the way in which the evidence of witnesses to events, eyewitness identification evidence is obtained and tested. It goes on to envisage what the most accurate procedures for obtaining and testing the former class of evidence might look like.

European Data Protection Law Review, 2018

Law and Social Inquiry, 2018

Criminalization of offensive behavior is an important form of privacy protection, but few studies... more Criminalization of offensive behavior is an important form of privacy protection, but few studies exist of visual observation in criminal law. We address this gap by researching when criminal law protects someone's reasonable expectations to remain unobserved, and on what basis the law construes this " reasonableness of remaining unobserved, " through a nine-country comparative study (Canada, and US). We focus on two broad offense categories: voyeurism-related crimes (largely relating to nudity or sexual activities), and intrusion-related crimes (such as observation inside dwellings). These offenses explicitly or implicitly reflect reasonable privacy expectations, by listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We analyze these criteria to understand how lawmakers protect visual aspects of privacy in view of individuals' underlying interests in autonomy, and show how these can be interpreted as ways to assist people in their impression management in situations where disruptions occur in self-presentation and where normal techniques of rebalancing impressions provide insufficient redress. Discussing whether legal frameworks reflect contemporary socio-technical realities, we observe a gap in legal protection relating to non-covert taking of autonomy-undermining images in public, as a major up-coming challenge to impression management.

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 e

E. Bant, W. Courtney, J. Goudkamp, and J. M. Patterson, (eds.), Punishment and Private Law, (2021: Bloomsbury, Hart), 2021

While private law has developed various causes of action for breach of privacy, the criminal law ... more While private law has developed various causes of action for breach of privacy, the criminal law has seldom used the concept of privacy in defining its proscriptions. There is no recognised category of ‘privacy crimes’. But new technologies are posing ever more serious threats to our privacy. On the one hand, this has led to a ‘ramping up’ of privacy law protections, including a tort of misuse of private information recognised by UK courts (and explicit reliance on a broadly construed doctrine of breach of confidence for the protection of privacy in Australia). At the same time, there is a growing appreciation that privacy is a collective and social good, not only an individual good, and that some breaches of privacy affect large numbers of people and constitute serious public harms. In this chapter we suggest that as the law of privacy generally tilts more towards the public interest side, greater thought should be given to the benefits of including a punitive element in privacy cases that still ostensibly fit within the rubric of private law (or a data protection regime, or both together) but involve significant public harms. However, there is still a need to reconcile this position with the basic tenet of criminal law that that law, along with all its traditional protections, should be employed as the primary means of dealing with cases of egregiously wrongful conduct that results in serious harm. Specifically, the question we address concerns the role that private law ought to play in punishing breaches of privacy.

The use of street identification procedures—informal procedures in which witnesses attempt to ide... more The use of street identification procedures—informal procedures in which witnesses attempt to identify an offender, usually soon after the commission of a crime and close to where it occurred—has attracted significant concern. These procedures are generally thought to give rise to a greater risk of mistaken identification because they lack the safeguards of formal procedures conducted under controlled conditions. This article describes the findings of empirical research undertaken by the authors. The research had three broad objectives. The first was to collect data which would provide some indication of the extent to which street identifications are used by police in England and Wales. The second was to compare the reliability of street identifications and video identification procedures involving the use of foils. The final objective was to investigate the influence that a street identification procedure would have on a subsequent video identification procedure involving the same witness and suspect. The findings suggest that substantial numbers of street identifications are conducted but, perhaps counter-intuitively, in terms of the risk of mistaken identification of innocent suspects, such procedures may be no less reliable than video identification procedures. Following identification of a suspect in a street identification, there is a very high likelihood that a formal procedure involving the same suspect and witness will result in the suspect being identified again, notwithstanding that the suspect is innocent.

Social Science Research Network, Mar 7, 2012

A street identification or live show-up provides an eyewitness with an opportunity to identify a ... more A street identification or live show-up provides an eyewitness with an opportunity to identify a suspect shortly after a crime. In England, the majority of suspects identified are subsequently included in a video line-up for the same witness to view. In Study 1, robbery squad data from three English police forces recorded 696 crimes, the identification procedures employed and prosecution decisions. A street identification was the most frequent identification procedure, being attempted in 22.7% of investigations, followed by mugshot albums (11.2%) and video line-ups (3.4%). In Study 2, data of 59 crimes were collected in which suspects, identified in a street identification, were subsequently filmed for a video line-up. Across both studies, most (84%) suspects identified in the street were subsequently identified in a video line-up, indicative of a commitment effect, in which a witness conforms to their first identification decision. All suspects identified in two procedures were eventually cautioned or charged to appear in court. The ground truth of suspect guilt in these field data cannot be determined. However, suggestions are made for reducing the likelihood of a mistaken identification of an innocent suspect caught up in an investigation; all possible steps should be taken to reduce the inherent suggestiveness of the street identification procedure.

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 ...

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...

Australian Journal of Forensic Sciences, 2016

White, 'How to cross-examine forensic scientists: A guide for lawyers' (2014) 39 Australian Bar R... more White, 'How to cross-examine forensic scientists: A guide for lawyers' (2014) 39 Australian Bar Review 174. 2 Like HTCE, the discussion of methods (e.g. validation and error rates) in this article is primarily, though not exclusively, directed toward the comparison and pattern recognition domains. Though, the remaining discussion has more general application to the forensic sciences and medicine.

International Commentary on Evidence, 2009

This article provides critical analysis of some of the more notable procedural developments relat... more This article provides critical analysis of some of the more notable procedural developments relating to eyewitness identification evidence over the past decade.

Objectives: Following a crime report, the police in England and Wales may use a street identifica... more Objectives: Following a crime report, the police in England and Wales may use a street identification (showup) to obtain evidence when there is insufficient evidence to arrest. This may involve encouraging a witness to view an individual, or to conduct an area search of the vicinity. The aim of this research was to survey police use of street identifications, comparing outcomes with alternative visual procedures and to extrapolate national estimates of use. Design: Case data involving identification procedures were obtained from four police forces. These included street identifications, familiar suspect identifications, CCTV evidence, ‘mug shot’ images, facial composites and video lineups. Methods: Three types of data were collected. Firstly, diary studies of robbery squad officers provided details of 701 cases involving an identification procedure and their outcomes. Secondly, data of 37 cases in which positive street identifications were followed by a video lineup of the same suspect. Finally, data of 80 cases in which an area search was conducted with or without a witness present in a police vehicle. Results: A street identification was attempted in approximately 25% of robberies and was the most frequently used identification procedure. Approximately, 12% resulted in a suspect identification. The majority (66%) were later charged or cautioned, particularly if a witness identified the same suspect in a subsequent video lineup. Conclusions: The police rely on street identification in the investigation of street robbery. Despite a modest success rate, it is more likely than any alternative procedure to result in a suspect being charged.

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...

Applied Cognitive Psychology

A live showup (known as a street identification in the UK) allows the perpetrator to be identifie... more A live showup (known as a street identification in the UK) allows the perpetrator to be identified shortly after a street crime. If the suspect disputes the identification, a video line‐up often ensues. Four experiments examined the reliability of live showups and their influence on a subsequent video line‐up using realistic procedures and conditions. Similar proportions of culprits and innocent suspects were identified from live showups and video line‐ups. Both culprits and innocent suspects previously identified were likely to be identified again in a subsequent line‐up, with delays from a few minutes to a month. Only a weak effect of clothing bias was observed. There was strong evidence of commitment to a previous identification but no reliable evidence of source monitoring errors. The results suggest that a live showup is not less fair than a line‐up, but the use of repeated identification procedures introduces an unfair bias against innocent suspects.

Applied Cognitive Psychology, 2011

A live showup (known as a street identification in the UK) allows the perpetrator to be identifie... more A live showup (known as a street identification in the UK) allows the perpetrator to be identified shortly after a street crime. If the suspect disputes the identification, a video lineup often ensues. Four experiments examined the reliability of live showups and their influence on a subsequent video lineup using realistic procedures and conditions. Similar proportions of culprits and innocent suspects were identified from live showups and video lineups. Both culprits and innocent suspects previously identified were likely to be identified again in a subsequent lineup, with delays from a few minutes to a month. Only a weak effect of clothing bias was observed. There was strong evidence of commitment to a previous identification, but no reliable evidence of source monitoring errors. The results suggest that a live showup is not less fair than a lineup, but use of repeated identification procedures introduces an unfair bias against innocent suspects.

The Journal of Criminal Law, 2006

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.

Sydney Law Review, 2011

In early 2009 the National Research Council (NRC) of the US National Academy of Sciences publishe... more In early 2009 the National Research Council (NRC) of the US National Academy of Sciences published a report that was highly critical of many established areas of forensic science and the role of criminal courts in regulating them. In the same year, the Law Commission of England and Wales released a Consultation Paper, proposing that England and Wales should effectively embrace the approach to expertise associated with Daubert, guiding the US Federal Courts and many state courts (though criticised by the NRC). In 2011 the Law Commission formally recommended a reliability standard in a draft bill. In Australia, courts and reformers have done little in response to problems of reliability and the serious criticisms identified by the NRC have been muted. This essay aims to explain how notions of rectitude, practical authority, fair trial rights, and so called fundamental principles of evidence law (e.g. the presumption of innocence, the right to examine witnesses, the allocation of burdens and standards of proof, the premium placed on liberty and not convicting the innocent) can help us to reconsider legal approaches to the admission and use of expert evidence in adversarial criminal proceedings in response to emerging and institutionally unsettling empirical evidence.

Criminal Law Review , 2019

The argument presented in this paper is that not only should the state make greater use of scient... more The argument presented in this paper is that not only should the state make greater use of scientific research, it is under a moral and legal obligation to do so. The source of this obligation is the right to the most accurate procedures for determining innocence and guilt. I will suggest that this right is implied by the presumption of innocence.

The paper compares and contrasts the way in which the evidence of witnesses to events, eyewitness identification evidence is obtained and tested. It goes on to envisage what the most accurate procedures for obtaining and testing the former class of evidence might look like.

European Data Protection Law Review, 2018

Law and Social Inquiry, 2018

Criminalization of offensive behavior is an important form of privacy protection, but few studies... more Criminalization of offensive behavior is an important form of privacy protection, but few studies exist of visual observation in criminal law. We address this gap by researching when criminal law protects someone's reasonable expectations to remain unobserved, and on what basis the law construes this " reasonableness of remaining unobserved, " through a nine-country comparative study (Canada, and US). We focus on two broad offense categories: voyeurism-related crimes (largely relating to nudity or sexual activities), and intrusion-related crimes (such as observation inside dwellings). These offenses explicitly or implicitly reflect reasonable privacy expectations, by listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We analyze these criteria to understand how lawmakers protect visual aspects of privacy in view of individuals' underlying interests in autonomy, and show how these can be interpreted as ways to assist people in their impression management in situations where disruptions occur in self-presentation and where normal techniques of rebalancing impressions provide insufficient redress. Discussing whether legal frameworks reflect contemporary socio-technical realities, we observe a gap in legal protection relating to non-covert taking of autonomy-undermining images in public, as a major up-coming challenge to impression management.

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 e