North East Law Review Blog Competition


(Image Attribution: By adrian8_8 [CC-BY-2.0 (], via Wikimedia Commons)

– Keira Constable (LLB Law, Newcastle University)

With the 2014 Winter Olympics having just finished, I still wonder why the International Olympic Committee (IOC) chose to have these high-profile games in Sochi, Russia. Aside from the outrageous laws that were passed concerning gay propaganda, and the dangerously uncompleted accommodations for the press and tourists, Russia is still one of the largest source countries for trafficking in persons (TIP); specifically the trafficking of young women and girls. And while TIP occurs in every country around the world, Russia has been particularly lax in enforcing it’s laws on human trafficking, to the point where the U.S. Department of State’s Trafficking in Person’s Report 2012 labeled it as Tier 2 on the watch list, which basically means the country has legislation in place, but the current laws aren’t doing much to suppress TIP. I’m sure a country’s track record in combatting human trafficking doesn’t even appear on the radar when the IOC chooses where it will host the upcoming Olympic Games, perhaps it should be a factor for upcoming games.

Large international sporting events draw in massive amounts of people – athletes, media, and tourists alike. While tourist money does affect the local economy in many positive ways, it is also proven that tourist dollars can be used for evil, for instance, buying a pre-teen girl for a couple of hours; something that if one were to get caught doing in one’s home country, they would be criminally charged and thrown in jail. The sad fact of the matter is, sporting events such as the Olympics drive up the demand, and supply, of trafficked victims and if the host country’s TIP laws are already not up to international standards, how can we (the international community) help the victims of such a terrible crime, if we are the ones perpetuating the demand?

In 2000, the United Nations Office on Drugs and Crime (UNODC) created the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children which defined what TIP as the “recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” (United Nations Office on Drugs and Crime, 2000) Russia signed the protocol in 2000 and ratified it into domestic law in 2004. This (relatively) quick ratification was probably due to the government knowledge of the widespread abject poverty after the collapse of the Soviet Union in the early 1990s, which would lead people to try to make money by any means. Also, the lifting of the Iron Curtain freed the movement of peoples across former Soviet countries’ borders, either through legal or illegal means.

The Winter Olympic Games may not bring as many spectators as the Summer games, but they still bring a surge in tourism to the host city. In 2010, the Winter Olympic Games were hosted in the Canadian city of Vancouver, British Columbia where, according to the CBC (Canadian Broadcasting Corporation), “The [Canadian Tourism Commission] said the value of Canada’s tourism brand in 2010 was $132 billion, which it said was a 7.2 per cent increase compared with the pre-Olympics valuation.” (CBC, 2011) In countries with strict immigration laws, traffickers use these events as an easy way to obtain visas and masquerade their victims as spectators. (Hayes: Human Trafficking for Sexual Exploitation at World Sporting Event, 1106). But what about places like China, or Russia – two very significant source countries for human trafficking victims?

According to the Consortium for Applied Research on International Migration for the Eastern Neighbourhood of the European Union (CARIM-East) report on Russia, an estimated 30,000 to 60,000 women are trafficked out of Russia each year. This makes it one of the largest source countries on the planet. These women, for the most part, are trafficked into sexual slavery. While there is obviously no data to reflect the impact on sex trafficking in Russia in relation to the Winter Olympics as it is too early to tell, one can easily assume that traffickers would keep their girls local for the games. Not only is it less expensive for traffickers, since they don’t need to pay for plane tickets to send these women to another country, but they have thousands of people flocking to a country where sex laws are less strict than their own (for the most part) which drives the local demand way, way up, which, in turn, enables the traffickers to jack up the prices for pimping out these women – money that these women will never see themselves.

Taking all this into consideration, perhaps the IOC should start taking into account the impact that sex trafficking has on a country before that it is chosen to host one of the world’s biggest sporting events. While no country is immune to TIP, there could be bigger sanctions in place for those countries that fail to have proper legislation, or enforcement of existing legislation, concerning human trafficking, and are being considered to host an international sporting event. Despite the Olympics only just ending in Russia, from the notoriety of it being a source country, we can easily assume that the exploitation of women and children for sexual purposes in that country has  drastically increased this year due to the Olympics and its poor reputation in regards to TIP. From this, the IOC needs to look beyond the gold medals and the bright lights of the pistes and racetracks, to the broader impact the Olympics has on a host country and its people – namely, the women and children that fall prey to human traffickers and are sold to rich tourists to be used as sex slaves.



 (Image source:–wants-engage-UK-politics.html)

 – Harry Dyson (LLB Law, Newcastle University)

Constituents being able to sack their own MP, televised trials, Scottish independence, and prisoner’s rights to vote; these are all constitutionally significant changes that have been proposed.  The Government have shown little in the way of support for any of these, and in the case of Scotland outright opposition. The Government should exercise caution in passing any constitutionally significant legislation and take a hard look at constitutional reform implemented by New Labour.

With our Constitution being more complex and ambiguous than Starbucks’s tax return, how did New Labour fare in their plight to modernise it? An un-written constitution is a wonderful thing, it facilitates modernisation and social change. However the reforms since 1997 have shown both the positives and negatives of an un-written constitution. New Labour’s reforms principally advocate one message to any government aiming to reform; partisan politics have no place in such a process.

The House of Lords have been a thorn in the side of the Labour Party since the days of Ramsay Macdonald, and in 1999 New Labour fought back. The main weapon in Blair’s arsenal being the House of Lords Act 1999. The casualty of this fight against the Lords was unfortunately the relationship between the two houses, which was unwittingly reshaped. The creation of life peerages and the reduction of hereditary peerages to just 92, as pledged in their manifesto, aimed to be more proportionate of Parliament therefore Labour wielding more power. However this unwittingly granted the Lord’s a slither of the one thing that could make them more powerful; legitimacy. Thus the Lords started to challenge their constitutional role, starting with constitutional conventions. That very same year Lord Strathclyde boasted that the convention that the Lords would not veto secondary legislation was ‘dead’. Lib-Dem Lords went as far as to openly oppose the Salisbury convention! Labour’s partisan legislation thus unwittingly inspired a train of thought advocating the Lords vetoing manifesto pledges – counter-productive for both our democracy as a whole and for the Labour Party.  The 1999 Act was short sighted and failed to protect conventions which are key to our democracy. Lesson one; stay well clear of partisan party politics.

A question that will haunt Tony Blair forever; did New Labour get anything right? The Human Rights Act 1998. This radical constitutional change was carried out very well. The 1998 Act incorporated most of the Human Rights Act into our law. However it did so while protecting the holy grail of constitutional theory; Parliamentary sovereignty. Dicey advocates Parliament is not ‘politically sovereign’ – It would be almost impossible, politically, to repeal the HRA without a suitable replacement. However legally Parliament could repeal it whenever they pleased. The Act allows the court simply to file a declaration of incompatibility if new legislation breaches the convention. So Parliament could in theory legislate contrary to every article in the ECHR. Despite this the ECHR is seemingly obeyed, for example the Belmarsh case. Here it was held the Anti-Terrorism Crime and Security Act 2001 incompatible and Parliament swiftly amended it as appropriate. The Act may have appeared moderate by having such limited court power, however understanding of Diceyan theory explains why this approach works well. New Labour exercised the caution and restraint here that was missing in their Lords reform. Lesson two; respect Dicey.

Maintaining the separation of powers is an underlying theme throughout Labour’s reform. The Constitutional Reform Act 2005 removed the Law Lords from the Upper Chamber and removed the Lord Chancellor’s judicial functions. This stripped Blair’s old friend and mentor Lord Irvine of the role of speaker of the Lords – a welcome modernisation. This constitutional reform, in contrast to Lords reform, although not escaping criticism, showed almost apolitical legislation. Any future constitutionally significant legislation will have to, in order to benefit the country, be somewhat apolitical in nature. Lesson Three; to coin a phrase used by Ramsay Macdonald in 1929 – reform should ‘put country before party’.

Allowing prisoners to vote may seem a fresh liberal approach, and yet another chance to throw around the term ‘human rights’, however it should be looked at with both foresight and caution. Lords reform is a prime example. I wouldn’t go as far to suggest that the ‘criminal vote’ would have a significant impact on British politics – however how would the political parties win this vote? If this would cause a lean in policies ever so slightly towards prisoner friendly policy, is this something we can allow? Despite the fact Labour may benefit from a prisoner vote, perhaps it should follow Blair’s stead in the case of the Lord Chancellor and put country before party.

Televising trials is also a risky proposal. The media already have an unwelcome influence on trials, especially given the lack of anonymity for defendants (Operation Yewtree being a prominent example), should we really be welcoming more? The possible political influence also shouldn’t be underestimated, as we have seen before in the Venables case. Labour’s reforms were successful because of their maintaining of the separation of powers – keeping politics out of the courtroom. Once again caution has to be exercised. In the meantime Mr Pistorius will be making for interesting viewing.

Scottish independence would easily dwarf Labour’s efforts in terms of constitutional reform. The unintended results of relatively minor Lords reform should be a huge warning shot to politicians on both side of the debate. Should Scotland vote for their independence it will prove to be the biggest ever test of a Government’s ability to implement constitutional reform.

Whatever your political persuasion one thing is clear; the Government of the day need to take extreme care in even the most moderate of reforms. New Labour’s efforts were on the whole beneficial for our country, however they highlight the need for foresight and caution. Scotland’s bid for independence is currently the biggest threat to our constitution, the changes it would force could have very unpleasant results in the long term for our constitution. However what is for certain is that a yes vote on the 18th of September would make for a very interesting couple of years for Public Law students and commentators.



Image Source:

– Michael Keightley (LLB Law, Newcastle University)

First of all, it makes sense to start with some important statistics regarding judicial diversity in the last twelve years. Starting from April 2001 the percentage of women in the judiciary has increased from 14.1% to 24.3% by April 2013, with those of an ethnic minority in the judiciary increased from 1.9% in April 2001 to 4.8% in April 2013. This is a gradual increase over the past twelve years, but that is only a general average. Baroness Hale raises some more specific, and less positive, statistics: “only 26.6% of the upper tribunal judiciary are woman, though 11% are BME” and no BME or women are sitting as Court of Appeal judges, Heads of Division and there only one woman in the Supreme Court, which is Baroness Hale herself.

All of which begs the question: why is there such a lack of diversity in the judiciary? And does diversity even matter?

The lack of diversity is, obviously, a poor representation of the general population. Considering the judiciary are empowered to adjudicate upon and enforce constitutional principles, then they should both represent and uphold constitutional principles of diversity and equality. The duality between the representation of values and the upholding of values is crucial to the question of whether or not diversity in the judiciary really matters.

It is mere common sense that the judiciary should represent the constitutional principles they aim to enforce, or face the label of hypocrisy, with principles of equality and diversity being at the forefront when you consider the secular and diverse nature of the United Kingdom. However, what is more important than the face-value representation of equality and diversity is the enforcement of equality and diversity. For example, if there was a candidate for the position of a judge then merit would be the obvious primary influence upon the choice over gender or ethnicity. This is reflected in s.63 of the Constitutional Reform Act 2005, which states that selection must be based on merit and ‘good character’. However, considering the current lack of diversity in the judiciary, if two candidates were of equally ‘good character’ and one was a female of an ethnic minority and the other was a white male, it would be the constitutional duty of the selecting body to enforce the principles of diversity and give priority to the first candidate to promote judicial diversity. Sadly, the lines are not that clear-cut and the situation is simple in theory alone. But generally it is easy to conclude that even though both the representation and enforcement of equality and diversity are important, they are not of equal importance.

Although, this view is quite basic as it fails to consider further implications of a lack of judicial diversity and merely assumes that judicial diversity has no implications beyond that of the face-value representation in the courts. Keith Vaz, MP, argues the important point that “a more diverse judiciary would bring different perspectives to bear on the development of the law and to the concept of justice itself.” It would be nonsensical to ignore the fact that somebody’s social background can influence the development of the law; and that a diverse set of backgrounds is likely influence the development of the law in a more positive manner. It is important to recognise that generations of females and people from ethnic minorities may have “broken the glass ceiling, but to make this achievement worthwhile others have to follow and do better.” Both democracy and justice are perpetually evolving concepts, yet they will fail to develop at a satisfying rate if the judiciary that interprets and enforces the law does not do that to a standard that runs parallel to the standards the public expects. Thereby leading only to a serious risk of undermining public confidence in the courts if the judiciary is not diverse.

The problem itself needs to be traced back further than just to the selection process of the judiciary. There is a much more representative amount of both women and ethnic minorities graduating with degrees, with women often outweighing men in most universities. Not to mention, for law students, there are schemes offered by The Law Society offering various scholarships, the most relevant of which is the Diversity Access Scheme. This scheme helps provide financial assistance to those who have faced exceptional obstacles in the course of gaining a professional qualification and are wanting to fund their year doing the LPC or Bar. On the surface it appears that there is encouragement of diversity and the promotion of equality at a basic level. But somewhere in between university graduates and the judiciary members there is a significant dip in representation.

This leads to the conclusion of two broad theories. The first being that there is a lack of diversity within the judiciary because there are still structures such as the Old Boy’s Network that exist and consequently encourage the white, middle-class male figure to dominate the judiciary. The second, being the more positive theory, which is that the diverse nature of the judiciary is simply yet to fully develop as there have been developments in diversity; with 1.9% of the judiciary from an ethnic minority and 14.1% female in 2001, which has gradually increased to 4.2% and 22.6% respectively. There may be a simple answer for the lack of diversity and it is impossible to force such diversity to happen overnight.

This, by no means, an attempt to promote positive discrimination in order to improve the situation – which has actually been suggested as a strategy by Police Minister Damian Green to remedy the unrepresentative percentages in the police force (27.3% of police offices being female and 5% being from an ethnic minority) – such a consideration would undermine both the ideals of meritocracy and the genuine skill that the current members of the judiciary hold.

But when “an analysis of almost 13,000 case files found that the CPS was more likely to object to bail for male African Caribbeans (13.2%), compared with white men (9%)” then there is a genuine concern in the public over equal treatment; and this concern would likely see improvement if the judiciary that attempts to enforces such equality was more representative.

It is unclear whether there is a direct link with the enforcement of justice and the diversity of the judiciary, but what is and has always been clear, is that to not have (or not attempt to develop) a diverse and representative judiciary not only undermines public confidence, but undermines the equal justice that is being enforced. It is logically and obviously a constitutional issue when the public are not represented by the judicial bodies that are meant to assist them.

A prisoner

(Image Source:

– Michael Keightley (LLB Law, Newcastle University)

The European Court of Human Rights (ECHR) ruling that embodies more than the question of prisoner’s rights to vote in the UK is the case of Hirst v United Kingdom ((2006) 42 EHRR 41, [70]). It was a ruling that sparked controversy in 2005 and has set an eight-year resistance against a ruling that has been followed by an incredible 2,354 ‘clone’ cases of people claiming an infringement of their human rights – thereby forcing the question ‘should prisoners be allowed the vote?’

Regardless of your answer it is easy to see that, in principle, a blanket ban is somewhat immoral. It seems unconstitutional to withhold a right that is crucial to the continuation of democracy from a group of people only on the basis that they are part of that group. Arguably, comparisons can be made to the mistreatment of people based on their gender, race, or belief; if it is immoral to unequally treat people based on such groupings, then is it not immoral to disenfranchise prisoners?

These examples, however, are incredibly general and do not follow similar patterns to the disenfranchisement of prisoners. Take someone’s gender and race, obviously these are dependent upon biological circumstances, as opposed to an active decision. Beliefs are born from socialisation, which can influence action – but people are imprisoned for actions against the state, not the beliefs that may or may not influence that action. Prisoners are sentenced for their actions against the state and consequently are, as a group, disenfranchised for those actions. Allowing prisoners the right to vote in the democratic society that they have committed a crime against undermines the idea of taking responsibility for one’s actions – with civil responsibility being crucial in the structure of a healthy democracy, undermining such a concept is counterproductive to the sustainment of democratic principles.

Outside of constitutional and moral considerations are the wider implications of the European Union (EU). The financial implications seem to be the first at hand as the Strasbourg court could issue orders of compensation as a result of this failure to follow the ruling of the UK courts; seen as though no damages have been awarded in such cases previously, it is open to theory and contemplation as to what financial loss this could cause the government and the taxpayer. Say, for example, if a mere £1,500 was awarded in compensation to all 2,354 prisoners; the government would suffer a loss of £3,532,500 in total (not including court fees). Dominic Raab, Tory MP, simply argues “the Strasbourg court can’t force Britain to give any of these prisoners the vote, let alone compensation.” He then goes on to say that it is a matter of “democratic principle” to let Parliament make such a choice – however, Parliament have been delaying this crucial decision for eight years, surely now is the time for the EU to step in? Regardless of whether or not Raab is correct, defying the issuing of compensation from Strasbourg would hardly benefit the current tenuous relationship that the UK has with the EU. With murmurs of referendum from the Conservatives, shouts of independence from UKIP, and a plethora of statistics scattered across the web stating the consequences of being remaining in the EU the pressure only mounts for action to be taken.

But by blatantly ignoring the ECHR ruling for eight years are we not – in the words of Dominic Grieve, attorney general – “creating a degree of anarchy in the international order that [the UK is] trying to promote?” Thorbjørn Jagland, the secretary-general of the Council of Europe, views England as a “founding father” of convention and a “leading nation on human rights”; and the UK’s refusal to co-operate with the convention they are said to embody undermines the foundations and values of the EU and threatens the UK’s EU-membership.

MPs have now made the decision to draft the Voting Eligibility (Prisoners) Draft Bill, which outlines three main options for allowing prisoners to vote: continue with the current blanket-ban that is in force (option one), allow those with sentences of four years or less to vote (option two), or to allow prisoner’s with sentences of six months or less to vote (option three). This Bill is clearly influenced by the political motivation to hold off threats from Strasbourg and not influenced by a motivation to alter, or grant, constitutional rights.

The political motivation is reflected in the Bill’s inflexible options, which fail to address the real issue of prisoners voting rights. First of all, it does not fully consider the crime committed and its context, only sentence length. The issue here being that there seems to be no clear reason as to why the limit was set at four years, or even six months. The inflexibility and general-nature of these options only lead one to believe that such legislation would only be enacted to allow the UK to attempt to maintain positive relations with the EU and not to respect the concept of human rights; this political move is a poor attempt to respect the value of the right to vote and only shows a lack of consideration of the real issue.

Perhaps it would be more constitutional to create a system where people are not subject to a blanket disenfranchisement, or disenfranchisement based on general sentence length, but a consideration of the crime and its context before disenfranchisement; which could lead to a disenfranchisement system based upon precedent as opposed to generalised sentencing. This proposition opens up room for further debate on how such a system would initially be judged and where the limitations of disenfranchisement should lie. Not to mention, the bill that the taxpayers would be footing to have the cases considered in court could be potentially enormous.

The question to consider in regard to prisoner’s voting rights is whether or not you consider the right to vote as a privilege or a human right. If you consider it a privilege then you delve into further questions of defining what would allow such a privilege; but if you consider it a human right then, considering that prisoners are human, then prisoners should have the vote – I feel it is fair to say that there is little deliberation about the definition of human.

Whatever your personal opinions on prisoners voting rights and the UK’s membership to the EU it is clear that these two issues would ideally be decided separately. However, given the eight-year long wait for action in consideration of the ECHR’s ruling and the distant proposals for a referendum these issues have become closely intertwined and something of concern to the UK public. In theory, the outcome here stands on the same grounds as the infamous Factortame decision (Factortame Ltd v Secretary of State for the Environment, Transport and the Regions (Costs) (No.2) [2002] EWCA Civ 932) – deciding a crucial constitutional decision for the UK and concerning the supremacy of UK Parliament over the European Union.



Dr Maggie Atkinson, the Children’s Commissioner for England, believes all smacking should be illegal (source:

– Alicia Jones (LLB Law, Newcastle University)

In today’s society many struggle to comprehend how smacking one’s child could be considered legal. However, for others the age old phrase ‘I was smacked and I turned out fine’ still rings true. Dr Maggie Atkinson, the Children’s Commissioner for England, has recently expressed her poignant personal view that the current law gives pets and adults more rights to be protected from violence than children. A view which for many is heart-wrenching. In stark contrast, Tottenham MP David Lammy has suggested that the law regarding smacking children should be relaxed so ‘working-class parents could still instil discipline in their homes without fearing prosecution’. However, I would be interested to hear why Mr Lammy believes that this is a problem only faced by the working-class? In the UK, parents can mildly smack their child if it can be regarded as reasonable chastisement.  However, the law regarding smacking one’s child remains a grey area; particularly with regard to the linguistic frailties that the term ‘reasonable’ offers. For example, when does reasonable chastisement become child abuse? For some, a punch in the face is equitable to a slap on the bottom.

For many the advantages of an outright ban on smacking children are clear. It protects vulnerable children from corporal punishment which could cross the boundary into abuse. John Cameron, the Head of Child Protection Operations at the NSPCC has suggested that ‘there is a greater likelihood of children being involved in criminal and antisocial behaviour if they have been in receipt of smacking as a standard form of parenting’. It is common knowledge that if one adult hits another adult this is regarded as assault in the eyes of the law. Moreover, it is widely accepted that children learn their own behaviour through imitating their parents. Therefore, Cameron’s statement is entirely comprehendible. It can also be suggested that if an outright ban on smacking is enforced, an individual’s internal beliefs and morals could be changed. For some, this may mean their beliefs of what is right and wrong regarding child chastisement could be entirely shifted and the horrific violent crimes against children, we so often read about in the media, reduced.

Although there are many benefits to an outright ban on smacking children, there are also many practical implications of such a law being enforced. Perhaps, as Dr Atkinson describes, the most significant implication being that ‘no public body can be behind the front door of every family in the land’. Therefore, it would be practically impossible to ensure that no parent ever breaks the law and does not hit their child through frustration or anger. In fact, such a law, could potentially hide the problem behind the front door of the child’s own home, ironically where the child should feel most safe. Thus, although in the abstract legal sense the problem would appear solved, in reality the problem would just be hidden further by those who are responsible for protecting and nurturing their offspring. Arguably, this could result in even more violent crimes towards children becoming undetectable by Social Services. A further implication would be the number of parents that would be labelled a criminal if an outright ban was enforced. A recent poll on found that 81% of parents have smacked their child at least once. Although this statistic seems unbelievably high, if it is true, it would be incomprehensible to legislate a law which criminalised 81% of parents. Moreover, even if the problem of criminalising 81% of parents was dismissed; it would be practically impossible for Social Services to intervene in every single case where a parent was convicted for hitting their child. This would further heighten the risk of Social Services missing the crucial cases where a child’s life is in danger, whilst they are focusing on a parent who had hit their child through frustration and despair.

If Tottehnham’s MP Mr Lammy is correct in stating that the law should be relaxed to allow parents to instil discipline, I would suggest that the law is not the problem; arguably, smacking is primarily used to replace inadequate parenting. As an individual who has never been hit, the methods of punishment avoiding physical chastisement are obvious and satisfactory. When one reads the opinions of the public on this controversial issue it is clear to see public opinion is largely in favour of Lammy and the majority appear to believe that smacking is a valid punishment. This could suggest that the problem lies in the parenting skills of individuals who neither know nor understand alternative methods of discipline and are not equipped to teach and guide a child to understand that frustrations are a normal part of everyday life and that through communication, patience and understanding we can modify our feelings and frustrations to co-exist in a community without corporal punishment. This prepares a child to integrate into today’s society whereby no one can assault another member of the public without prosecution.

Ultimately, it can be seen that this debate will rumble on for decades, with both sides having strong opposing arguments.  However, it could be suggested that the conclusion of this debate will not be found in a change in legislation. Rather, the need to educate parents on how to guide a child’s behaviour and the rather poignant issue of inadequate funding to local services; which have already been drastically cut in the austerity measures in recent times. Which have consequently reduced access to classes and programmes which teach families alternative methods to discipline their children and mechanisms to control their anger.