Reviews of Prescription and Limitation (Johnston); European Criminal Law: An Integrative Approach (Klip)
Prescription and Limitation
PUBLISHER: W GREEN/SULI
The usefulness of a book is often best assessed by the number of sticky notes round the edge where people have marked pages. By this measure the copy of the first edition of David Johnson’s excellent text on my bookshelf rates high, and I fully expect this new edition quickly to sprout a crop of yellow tags.
Readers will be pleased to learn that the author has avoided any temptation to make wholesale changes to the layout and headings. This is very much a case of revisiting and updating the existing text, and is arguably all the better for that. The only significant alteration is that the individual chapters now have a number of sub-chapters, so that chapter 4, "The beginning and end of the prescriptive period", now has three sub-chapters. This would appear to be a helpful change, allowing the reader to find the section most relevant to the question in hand.
The text of the 1973 Act, which forms appendix 1, contains the pending amendments made by the Land Registration etc (Scotland) Act 2012, and the author makes clear that the text is based on the 1973 Act as so amended, so that what we are presented with is a book which is, if anything, slightly ahead of its time. Such an approach, however, is commendable and should ensure that it remains relevant for many years to come. Appendix 2, dealing with prescription or limitation periods contained within other legislation, has likewise been updated to take account of legislation passed since the first edition. The addition of table grid lines in the new edition does, however, in the mind of this reviewer at least, make it easier to read.
What else is new? As we would expect, the text takes on board the relevant developments in the case law since the work first appeared. While it may not always be obvious that much has moved on in the world of prescription, the significant expansion of the table of cases demonstrates that, in practice, the law continues to develop and refine concepts that all practitioners may be familiar with. There is also a useful discussion, in relation to common law delay, of the effect of the decisions in Tonner v Reiach & Hall and Hepburn v Royal Alexandria Hospital NHS Trust.
There is a new chapter dealing with proceeds of crime, and the issues of defamation and harrassment now each merit their own chapter. Unsurprisingly, the chapter dealing with real rights in land (chapter 17) is substantially rewritten to take account of the 2012 Act, but to a non-conveyancer, the text appears to be as concise and accessible as the rest of the book.
Robin Millar, Young & Partners
All told, this is a worthwhile new edition of what was always a most useful text, and much to be recommended.
European Criminal Law: An Integrative Approach
In this second edition, Professor Klip has built of the undoubted value to practitioners of his first, groundbreaking, edition. While the first edition took account of the then anticipated impact of the proposed Lisbon Treaty, this scholarly work includes reference to the field of activity in the area of freedom, security and justice since the Treaty entered into force. In addition to the book, Intersentia has produced a compendium of EU measures referred to in the book, which is utterly invaluable.
Since the adoption of the free movement of people within an area of freedom, security and justice, it has been deemed necessary to ensure there is likewise free movement of judicial decisions based on the principle of mutual recognition of member states' national law and procedure. Harmonisation is seen as too sensitive a task, but as Professor Klip demonstrates, member states have been able to agree on legal instruments with transnational effect such as the European evidence warrant, the European arrest warrant, and various framework decisions on the freezing of assets and their confiscation.
The book is all-encompassing. It starts with a consideration of the legal foundations of the European Union, before moving on to consider the constitutional position and status of EU law. There follows detailed, practical consideration and analysis of the various instruments, bodies and institutions of the EU with reference to case law of national and EU courts, principally the European Court of Justice which, subject to the final determination of the opt-in/out, will have jurisdiction within the UK under the Treaty of Lisbon.
For instance, Professor Klip provides a clear, sequential explanation of the case law relating to the ne bis in idem principle. There is careful consideration of all major issues such as mutual recognition, its scope and application, Europol, Eurojust and the European Judicial Network.
Chapter 7, entitled “Bilateral Cooperation in Criminal Matters”, has been largely rewritten and is perhaps the heart of the text. It now takes account of recent instruments such as the Framework Decision 2008/909 on Custodial Sentences, which will allow for states to move prisoners to the state where rehabilitation is best undertaken. Professor Klip offers an interesting although slightly superficial discussion on the place where challenge to evidence may be taken. He correctly identifies that the issue of extraterritorial application of the engagement of a member state's obligations under the European Convention on Human Rights is largely unanswered, and from a defence perspective unmined. However, it ought to be noted that the European Evidence Warrant Framework Decision and the draft European Investigation Order both provide that the place of challenge to recovered evidence is before the courts of the jurisdiction within which the evidence was recovered, subject, of course, to the requirement of the executing member state to recover such evidence in a manner that makes it admissible under the national law of the requesting state.
In the autumn of 2012, the United Kingdom Government indicated its intention to withdraw from all 133 legal instruments related to this field of activity. The House of Lords EU Subcommittee E launched an inquiry which posed the question: “Should EU laws on policing and crime adopted before the Lisbon Treaty entered into force in December 2009 continue to apply in the UK after they become subject to the jurisdiction of the European Court of Justice in December 2014?” Anyone who seeks to understand and answer the impact of that question and its answer would do well to read Professor Klip’s outstanding text, as he meets the objective he sets “to present a coherent picture of the influence of Union law on national criminal law and criminal procedure, and to sketch the contours of the emerging European criminal justice system within the European Union”. Professor Klip has produced a well woven picture from a patchwork of legal instruments.
David J Dickson, solicitor advocate, Head of Extradition, Crown Office, Edinburgh