Book reviews

Thinking Differently

Making a Difference using Mediation

David Lee

PUBLISHER: Core Solutions Group

PRICE: £19.50 (+£2.50 if posted)

This is a selection of essays on mediation, published by Core Solutions Group, one of Scotland’s foremost providers of mediation and mediation training. While it might be easy to dismiss this volume as a plug for their services, it would be a serious mistake to do so. The contributors come from a wide range of backgrounds, including gurus such as William Ury and Kenneth Cloke, and many self professed mediation sceptics who have been converted.

While many of us in the legal profession may think of mediation simply as an alternative to litigation, one of the many interesting features of this book is its wide range of sectors. Sections include, amongst others, Health and Education; Customer, Employment and Family Relations; and Human Rights, Sport, Church and Leadership. While one would expect those involved to be in favour of the system, many are honest enough to express their own initial doubts, many of which have been dissolved by positive experiences along the way.

Most of us who have been involved in litigation over the years have expressed the view from time to time that there has to be a better, quicker and cheaper way. Ironically, the employment tribunal system, once a model for a quick and less complex way of resolving issues, has now become even slower and more cumbersome than the traditional court system. The people responsible for this book are determined to make us all look at our present systems with fresh eyes.

The quality of the writing varies, but at its best it is very good indeed, combining insightful analysis with excellent common sense. Charlie Woods points out that while much time and effort is spent on legal and financial due diligence, “if more attention was paid to human due diligence, stronger foundations for new ventures could be laid”. Many of the contributors place weight on the importance of the feelings of the parties to the process. One can win a litigation or tribunal, yet come away from the process terribly damaged by the experience. Carol Paton of the Royal Bank describes how the process can be used in assisting her company to “seek reputational recovery and to regain the trust of the communities it serves”.

Another to stress the people aspects of the process is Human Rights Commissioner, Shelagh McCall. I could comment that hers is one of the best written chapters, but as she is my niece, I shan’t. I shall finish instead with the quotation from Abraham Lincoln. “Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will be business enough.”

Whether you are a devotee or a sceptic, I commend this fascinating and thought provoking book.

Extradition and Mutual Legal Assistance Handbook

2nd edition

John R W D Jones and Rosemary Davidson

PUBLISHER: Oxford University Press

ISBN: 9780199574049

PRICE: £145

A Government paper in 2001 on the review of extradition noted that the arrangements then in place were outdated and “unnecessarily complex”. The review sought to “create a simplified, unified scheme..., which aims to remove… the complexity and potential for delay”.

The Framework Decision on the European arrest warrant (EAW) was agreed on 13 June 2002 and came into force in the UK by the Extradition Act 2003 with effect from 1 January 2004.

Whether the aims of the review have been achieved in practice through the legislation has been a matter of comment by others. For the practitioner, this excellent handbook provides an overview of an area of law that remains complex and the operation of which has significant international impact and effect both for the state and the individual.

In brief chapters the book sets out the essential elements of the law of extradition and mutual legal assistance. As an introduction to these areas of law and practice the handbook is accessible and to be welcomed, being as it is the most up-to-date book to date.

The authors address the legislation and case law as it relates to both part 1 (the EAW scheme) and part 2 (non-EU states) of the 2003 Act, and draw distinctions as appropriate. There is also discussion of the London Scheme for Commonwealth states, and a brief but valuable overview of the Crime (International Cooperation) Act 2003 and the mechanism for the recovery of evidence from overseas.

The strongest elements of the book (which has been roadtested as part of the review) are on the statutory bars to extradition and the application of human rights law as a bar. For the busy or unfamiliar practitioner, in the spirit of a good handbook, the authors quote usefully from case law with further references for research.

Its 14 annexes are each an essential text for the diligent practitioner, including primary and secondary legislation (as amended), and Council of Europe, European and Commonwealth schemes for mutual legal assistance and extradition.

As a handbook, the work does not aspire to provide detailed analysis of the development of the law of extradition, nor to address complex issues such as the admissibility of evidence lawfully recovered abroad and sought to be led in the UK courts. However within the context of the handbook, less is indeed more.

Judicial Creativity at the International Criminal Tribunals

Shane Darcy and Joseph Powderly

PUBLISHER: Oxford University Press

ISBN: 9780199591466

PRICE: £70

When I was first appointed to the bench of the International Criminal Tribunal for the Former Yugoslavia, a distinguished colleague suggested that the appointment would particularly suit me since there was no such thing as international criminal law and I could make it up as I went along. It therefore came to me as no surprise that the editors could devote a whole volume to judicial creativity in the sphere of international criminal law, and probably do so several times over.

This volume is marked by the experience and reputation of a number of the contributors as well as by the quality of the contributions. It is divided into five principal sections, each comprising a number of essays. The headings of these sections demonstrate that judicial creativity has made its mark in every area of the subject, from interpretation of the sources of law, through the definition of crimes and the forms of criminal responsibility, to the huge area of “due process” including the development of defences and fair trial rights, procedural innovations and judicial legislation in the field of procedural rule making.

The titles of the three essays comprising the middle section of the book, on “Forms of Criminal Liability, illustrate perfectly the variety of subject matter and the quality of contribution. Thoughtful and provocative pieces on joint criminal enterprise by retired ICTY Judge Shahabuddeen, on the law of command responsibility by Professor Rob Cryer, and on omission liability by Professor Gideon Boas, former senior staff member at the ICTY, illustrate the significant role of judges in developing international criminal law and stimulate reflection on what restraints exist to keep judicial lawmaking in the public international sphere within bounds.

The book is published at an interesting time in the lives of the various international criminal tribunals. Although the work of the most prominent is nearing completion, they are far from moribund. Judgments have yet to be pronounced in a number of major trials and appeals. Perhaps we may yet see some of the analytical criticism expressed in those essays reflected in the ongoing development of the law in the closing stages of the work of the tribunals.

I expect the volume to be widely read. It is bound to be of great interest to practitioners and judges involved in international criminal trials. It will plainly attract significant academic interest. It will also repay study by those who are interested in the role played by judges in general in the development of law in the domestic as well as the international field. In addition it provides insight into the historical role and development, as well as the work in general, of the international criminal tribunals. I hope that it is widely read; it deserves to be.

The Control of People Smuggling and Trafficking in the EU

Matilde Ventrella

PUBLISHER: Ashgate

ISBN: 9780754674665

PRICE: £60

The text has two stated aims: to demonstrate that the problems of people smuggling and trafficking are not ones that can be dealt with by any one state alone; and to demonstrate the author’s view that support for the victims of the said crimes can lead to their elimination.

Ventrella’s approach is unusual among the literature relating to human trafficking in that she treats smuggling and trafficking as one and the same. Legally, they are distinguishable, based on the notion of consent: those who have been smuggled are considered to have agreed to their illegal movement, whereas those trafficked will have been deceived, coerced or threatened.

Obviously these legal certainties are frequently hard to apply in reality, and often those smuggled are as vulnerable and susceptible to exploitation as those identified as trafficked. However, Ventrella’s conflation of the two concepts appears somewhat cavalier, particularly based as it is on her stated non-acceptance of this “favouring” of trafficking victims, while acknowledging the law does not support her view.

In using the particular case study of the Italian island of Lampedusa to conduct a comparative analysis of the legal framework and anti-trafficking activities of the UK, Ventrella has arguably taken a road that leads to examining in detail two situations which will be of interest to only a few needing a high degree of specialisation.

The author has certainly conducted a great deal of concentrated, detailed research, and while this has resulted in a thorough examination of the responses of two member states of the EU to combating human trafficking, it does raise the question of how wide a readership this book will attract.