The North East Law Review (NELR) is a student-led review established by Newcastle University’s Law School in 2013. This year, for the first time, the NELR will be producing regular videos alongside its yearly volumes and blog posts. In these videos, we will be inviting a wide range of guests, from academics to legal professionals, to speak with us on a variety of issues and debates facing the law.
If anybody is interested in speaking with us on the review, please feel free to get in touch with Becca (R.bestley@newcastle.ac.uk) or Nathan (N.cooper@newcastle.ac.uk) to arrange.
“No man is above the law, and no man is below it…” says Roosevelt, reinforcing the importance of upholding the Rule of Law. However, Helena Kennedy’s Eve was Framed (Vintage 1993) will show you that prejudice could be stronger than the rule of law itself, bringing injustice to someone who is “below [the law]” – to women.
This book will explain to you how the British Justice system fails women. Helena Kennedy QC (Baroness Kennedy of The Shaws, QC) uses an approachable vocabulary that makes sense to those without legal knowledge. In the book, she explains the basics of the work of the British law courts, hence I recommend this book to everyone interested in politics, feminism, and to everyone who wants to research the problem of inequality. Such brief basics will be helpful to a first-year law student since it helps you to approach law in a more rounded way.
As a feminist, Kennedy does not talk about women in a general term. She introduces you to a list of minorities oppressed by the legal system (black women, poor women, women with mental health conditions). Moreover, Kennedy shares her balanced point of view with a recall of the real-life cases as well as her private cases – these allow an even greater insight . It is important to mention the use of statistics. In my opinion, one great example could be in the first chapter, where she compares the “escalation of the numbers of women being sent to prison” in the early 90s and the start of the 2000s. The given statistics will convince you of the existence of prejudice and double standards for women everywhere in the court: whether it is behind the Bar or the bars. It is indeed shocking that double standards can affect the outcome of the trial and a woman who gets prosecuted, might suffer an even harsher sentence than her male counterparts for equivalent crimes only because she came to a court with a deep v-cut dress.
If you are afraid that this book will portray women as inevitable victims of the British judicial system and portray men as sexists, start reading this book now because this is something completely different! Kennedy accuses women as much as men and talks equally about female criminals and female victims. Her final questioning of whether women want equality with men or to be treated fairly will certainly stay with you. Published in 1993, Eve Was Framed does not fully reflect today’s society and justice system, mainly because the laws have been updated and the awareness of the inequality among people has significantly increased in comparison to the 90s. However, some problems that Kennedy addresses are still relevant to this day. It is important to understand that the problem runs deeper than the British courts simply being ‘sexist’ towards women, hence such serious matters require far more time to be dealt with.
I think overall Eve Was Framed is a successful book that should be read by everyone, regardless of gender and age. This book deserves a wider readership which could then trigger essential differences in the British legal system.
Arina Kokina won first prize in the Newcastle Law School Induction Review Blog competition.
Established in 2013, the North East Law Review is a student-led journal
and is an opportunity to gather fellow students and staff who are passionate
about law. We are looking to relaunch the North East Law Review (NELR) in 2020
and have exciting plans including Sponsored Essay Competitions. The NELR is
currently recruiting a committee of Editors to ensure its continued operation and
is an excellent opportunity for students to get involved in the production of legal
research.
Associated with the North East Law Review is the NELR Blog which is
designed to be a space for the exchange of ideas between independent thinkers
in law. The NELR Blog is currently recruiting a committee to ensure its continued
operation, production of content and smooth running and is an excellent
opportunity for students to get involved in shaping and furthering the debates
that exist in law currently. In addition to this, the Blog is also currently
welcoming contributions and submissions from staff and students across
Newcastle on any topics of interest.
The type of content NELR will be producing content includes, but is not
limited to:
Blog posts on areas of law (1,000 – 2,000 words)
‘Debates in Law’
Case Summaries of latest cases
Panel Discussions
Seminar Recordings
Podcasts
If you are interested in running for the Committee to help produce these
or similar sorts of ideas, if you are interested in writing or just want to
immerse yourself more in your studies, then please e-mail a 250 word
application and a full CV to James Merryweather and Colette Monahan (j.merryweather@newcastle.ac.uk and c.monahan@newcastle.ac.uk). The
deadline for applications is the 18th September after which
we will be looking to start driving the NELR forward. The available positions
can be found below, and the number of available places can be increased if
there are good candidates.
North East Law Review Committee
Position Available
Tasks
Artwork and Graphics x2
Works with all editors, Administrative lead, and writers to create posters/artwork/graphics for posts
Communications Officers
Advertises all content on social media
North East Law Review Blog
Podcasts Editor
Organises and oversees production of podcasts. (E.g. Interviews, discussions, Q and A’s etc.)
Videos Editor
Organises and oversees production of videos
NELR Blog Editors x 2
Organises the production of academic law blog posts; peer-reviews blogs. Includes debate pieces.
Case Summary Editor
Organises the production of NELR case summaries posts (i.e. recent UK Supreme Court or Court of Appeal cases); peer-reviews case summaries
The relationship between human rights law and international
environmental law is by no means straightforward. Human rights law,
characterised by ‘absolutes and universals’, seems to contradict with international environmental law, which bases
itself on flexibility and reciprocity. However, due to the inherent linkages
between human rights and environmental protection, human rights law and
international environmental law seem to show a tendency to mutual accommodation,
particularly against the climate change backdrop. With the emergence and
development of environmental rights, either substantive or procedural, climate
change, as the most challenging environmental concern in our age, seems to be
able to be addressed in the legal framework of human rights. We can see that regional customary
procedural environmental rights have developed, especially in Europe, which may
further contribute to the emergence of substantive environmental rights both
regionally and internationally. Delineating a legal framework for climate
change litigation on the ground of human rights infringement could help to
address the climate change problem.
Rhetorical?
As a ‘common concern of humanity’, climate change has been
primarily addressed through inter-state negotiations on multilateral
environmental agreements, including the UN Framework Convention on Climate
Change and the Kyoto Protocol,
which call for global solidarity and emission reductions. As the slow progress
in political negotiation has frustrated environmentalists, human rights approaches, are becoming more attractive.[i] Reasons for
articulating a human rights perspective on climate change can be explored from
the lexical, pragmatic and moral levels. With a ‘lexical priority’,[ii] the
‘human rights’ terminology may add ‘normative strength’ to spur countermeasures
when used in the climate change context.[iii]
The notion of human rights is considered as a perfect response to the
far-reaching climate change issue ‘at least at a rhetorical level’.[iv]
Similarly, a human rights approach to climate change provides a ‘human face’ to
those marginalised and vulnerable groups, which in turn can raise empathy and thus
facilitate effective solutions to this global issue.[v]
Moreover, human rights stand as the moral threshold to which people are
entitled.[vi]
With this moral shield, Simon Caney emphasized the normativity of the ‘rights’ approach by claiming that certain fundamental human rights
threatened by climate change are not allowed to be derogated, such as the right
to life, the right to food, and the right to health of the environmentally
vulnerable communities, which are easily affected by the climate change risk.[vii]
However, these enticing human rights arguments, which imply ‘rights as
trumps’,[viii]
have oversimplified the relatively complicated environmental issue. Human
rights approaches fail to consider the ‘need for collective action’[ix]
in tackling climate change problem. In practice, solutions to international
environmental issues require states cooperation and collaboration. While states
remain the principal subject of international law, emphasis on ‘individual behaviour beyond state
borders’ to solve an environmental problem of global nature is unrealistic.[x]
Meanwhile, the ‘more legalistic nature’[xi]
of human rights law, which indicates its tendency to prosecution when injustice
occurs, might narrow the scope for invoking the law.[xii]
As John Knox notes, not all infringements amount to the
breach of legal obligations.[xiii]
Under the climate change scenario, where the question ‘to what degree the
violation of human rights caused by climate change can be triggered’ remains
controversial, the application of human rights law to climate change damage
faces considerable obstacles. This tricky problem can also be identified in the
High Commissioner
for Human Rights (OHCHR) report, which only recognizes climate change
as an ‘inherently global threat to human rights’, but refuses to conclude that
‘climate change itself is a human rights violation’.[xiv]
Therefore, the utility of human rights instruments seems to be ‘rhetorical
rather than juridical’.[xv]
Shift to
Juridical?
However, the growing relationship between
human rights law and international environmental law does provide possibilities
for the justiciability of environmental issues, including the issue of climate
change. The safeguarding of the environment is necessary for the very existence
of human beings and the full enjoyment of human rights. As noted by Weeramantry in the GabeTcovo-Nagymaros case, ‘protection of the environment is likewise
a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights
such as the right to health and the right to life itself’. Undoubtedly,
environmental degradation poses a direct or indirect threat to the enjoyment of
human rights. Anthropogenic climate change, in particular, has ‘implications for the effective enjoyment of human rights’. To be specific, climate change infringes a series of human rights, including the rights
to life, food, water, health, housing and self-determination. Therefore, climate change, as a massive environmental issue, is well
grounded to be granted a human rights dimension.
The convergent relationship between human rights law and environmental
protection can also be verified in the jurisprudence of the increasing
environmental caseload by human rights tribunals. Noteworthy are cases like López Ostra, Fadeyeva, Öneryıldız, Moreno and Taşkin from the European Court of Human Rights (ECtHR), which demonstrate
governments’ positive obligation to ‘regulate environmental risks, enforce
environmental laws or disclose environmental information’[xvi]
based on the Court’s creative interpretation of Article 2
‘right to life’ and Article 8 ‘right to respect for private and family life’. Furthermore, in Hardy & Maile v. The United Kingdom, the Court agrees that when there exists a risk of explosion, the
obligation arises even though the potential harm hasn’t been materialised. In Budayeva v. Russia, the court found that Russia had failed to protect the inhabitants’ right
to life due to a local authority’s inaction in the foreseeable mudslides
disasters. Moreover, in Tătar v. Romania, the Court specifies the state’s obligation of invoking the precautionary
principle for the first time in an environmental issue. In this light, it is
fair to say that though there is no reference to substantive environmental
rights under the European Convention on Human Rights, the environmental case
law developed by the ECtHR indicates a national authority’s obligation of
procedural environmental safeguards. It may be further argued that such
procedural environmental rights supported by the Court have formulated a regional customary
law in Europe,[xvii]
which has reinforced the linkages between human rights and climate change.[xviii]
As mentioned above, climate change has potential threats to the ‘full enjoyment
of human rights’;[xix]
specifically, its adverse effects such as the more frequent extreme weather,
including hurricanes, droughts, floods and heatwaves, which may threaten ‘the
right to life’. Therefore, when making decisions and adopting policies related
to climate change, governments are expected to bear the notion of human rights
in mind and have an obligation of due diligence. [xx] In this regard, procedural rights, as
Kravchenko observes, can make great contributions to combating climate change.[xxi]
Apart from courts’ jurisprudence, the well-established procedural rights
in multilateral environmental agreements (MEAs) are noteworthy, particularly, the UNECE Aarhus
Convention on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters (the Aarhus Convention). In spite of recalling Principle 1 of
Stockholm Declaration in its preamble, which claims human’s fundamental right to
live in a qualified environment allowing dignity and well-being, the Aarhus
Convention actually elaborates Principle 10 of the 1992 Rio Declaration by
focusing strictly on procedural rights in its content: individuals are granted
appropriate access to environmental information, encouraged to participate in
environmental decision-making process, and allowed effective access to judicial
redress and remedy.[xxii]
Despite the endorsement of procedural environmental rights, the Convention is
criticised for it ‘stops short, however, of providing the means for citizens
directly to invoke this right’.[xxiii]
Nevertheless, it should be asserted that the Aarhus Convention has largely
extended environmental rights and the corpus of human rights law.[xxiv]
As Boyle suggests, ‘procedural rights are the most important environmental
addition to human rights law.’[xxv] More
importantly, the Aarhus Convention’s doctrine on procedural rights, together
with its influence in the jurisprudence of the ECtHR, adds persuasiveness to the argument of procedural
environmental rights development as a customary law in Europe, which implies a
moving away from a state-focused approach to addressing environmental issues. Additionally,
both the Convention and the jurisprudence can be interpreted as facilitating
the emergence of a substantive environmental right as a result of the virtuous
circle that exists within substantive and procedural rights: a high degree of compliance with
procedural environmental duties contributes to the creation and compliance of
substantive environmental obligations. Policies and decisions related to the anthropogenic climate change, if
made with the participation of the relevant stakeholders, will ensure the compliance
of procedural rights to an adequate environment and further contribute to the establishment
of substantive environment rights in a broader level. Therefore, the
development of regional customary procedural environmental rights and the
emergence of substantive environmental rights may broaden the scope for
addressing climate change under human rights law. Consequently, there is a
possibility of climate change litigation on the grounds of human rights
violation. In this sense, both the regional customary procedural rights and the
emerging substantive environmental rights, may add a ‘juridical perspective’ to
the climate change problem.
To conclude, a convergent relationship
between human rights law and international environmental law has developed based
on the inherent linkages between human rights and environmental protection.
Despite limited substantive environmental rights under the general international
law, the enshrinement of substantive rights in national constitutions and the
adoption of procedural rights in ECtHR environmental jurisprudence as well as
in the Aarhus Convention, which can be justified as a regional customary law in
Europe, may add impetus to the creation of a substantive right to a decent
environment at the international level. In respect to the climate change
problem, the development of such procedural environmental rights and moreover,
the emergence of the substantive environmental rights are crucial as the notion
of environmental rights provides the potential to address this unprecedented
challenge, which is confronting the whole of humankind currently, in a both rhetorical
and juridical way.
[i]
Ole W. Pedersen, ‘Climate Change and Human
Rights: Amicable or Arrested Development?’ (2010) 1(2) Journal of Human Rights
and the Environment 236, 240
[ii]Simon Caney, ‘Climate Change, Human Rights and Moral Thresholds’ in
Stephen Humphreys (ed), Human Rights and
Climate Change (CUP 2010)
[iii] Stephen Humphreys, ‘Introduction: Human Rights and Climate Change’ in
Stephen Humphreys (ed), Human Rights and
Climate Change (CUP 2010)
[iv] Amy Sinden, ‘Climate Change and Human Right’ (2007) 27(2) J Land
Resources & Envt. L. 255
[v]
Stephen Trully, ‘Like Oil and Water: A
Skeptical Appraisal of Climate Change and Human Rights’ (2009) 15 Australian
International Law Journal 213
[xvii] Ole W Pedersen, ‘European
Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21(1)
Georgetown Int’L Envt. Law Review 73
Li Wang is a PhD student at Newcastle Law School. Li’s research interests lie in the field of environmental rights, environmental constitutionalism, international environmental governance, and climate change.
The US has recently
authorised the use of sanctions against the International Criminal Court (ICC) in
response to the authorisation of an investigation into Afghanistan for alleged
crimes against humanity and war crimes. Other state parties to the Rome
Statute, in the form of a collective statement, have condemned these sanctions
and reaffirmed their support for the Court. This provides ample opportunity to
reflect on what this might mean for the ICC going forward. Whether this recent
illustration of state support might constitute a watershed moment of changing
state attitudes towards the Court in the future, cannot be predicted with
certainty. Indeed, with the presence of potent considerations militating
against such a moment, for example, the increasing tendency for state rhetoric
to be unaccompanied by meaningful action, and that not all states party to the
Rome Statute have declared their support, perhaps the best we can do is only
hope for such a moment. A watershed moment would have significant implications
in terms of boosting the Court’s effectiveness and perceived legitimacy.
The ICC
The ICC was created on
the 1st July 2002, by the widespread signing and ratification of its
founding treaty, the Rome Statute 1998.
The ICC is a remarkable achievement; it is the world’s first and permanent
international criminal court designed to try and punish the perpetrators of
some of the worst crimes known to humanity. Its jurisdiction extends to
genocide, crimes against humanity, war crimes, and crimes of aggression (Rome
Statute 1998, article 5). Since its inception, the Court has made invaluable
contributions to international criminal justice by securing high-prolife
convictions, such as the recent conviction of Bosco Ntaganda
for war crimes and crimes against humanity in the Democratic Republic of Congo.
The Court currently has 13 situations under investigation, and 28 ongoing
cases, with one of its most recent investigations being the primary subject of
this blog post, the investigation into Afghanistan for crimes against humanity
and war crimes.
The situation in
Afghanistan
On the 5th
March 2020, the Court authorised the current prosecutor, Fatou Bensouda, to
commence an investigation into the Islamic
Republic of Afghanistan for alleged crimes against humanity
and war crimes committed since May 2003. They include, inter alia,
murder, extrajudicial killing, cruel treatment, and intentional attacks against
civilians,and are alleged to have been perpetrated in the context of
the continuous armed conflict between pro-Government forces and anti-Government
forces, such as Afghanistan military forces and the Taliban. The prosecutor also
alleges
that war crimes have been committed by the US military and CIA personnel
against individuals in Afghanistan detention facilities, including torture and
cruel treatment, rape, and serious infringements of personal dignity. These
were allegedly perpetrated in order to extract information from the Taliban/Al
Qaeda who may have had links or involvement with the 11 September 2001 attacks,
as well as for information about the group generally such as locations and
planned attacks. Hitherto, investigations into possible crimes committed by the
US military have been exceedingly difficult because the US it not a party to
the Rome Statute. The ICC can exercise jurisdiction in this case because the
alleged conduct occurred in Afghanistan, a state party. This is a positive development
itself, in that the Court is continuing to expand its areas of investigation
and striving to end impunity for these egregious crimes. The US has responded
in a very hostile manner, through making various threats and imposing sanctions
on the Court. When considering the background context and history between the
Court and the US, their belligerent reaction comes as no surprise.
The US’s sanctions
It is no state secret
that the US is not a fan of the ICC, nor international law more generally.
Besides not being party to the Rome Statute, they are not party to major
international human rights treaties such as the International Covenant on
Economic, Social and Cultural rights, and although they have signed and
ratified the International Covenant on Civil and Political Rights, they have
refrained from signing its first optional protocol, which allows individuals to
make complaints of violations under this treaty. For the US, safeguarding
sovereignty is their central concern and any attempts to encroach upon it is
met with fierce resistance. The US’s reluctance to join the ICC stems from a
fear that they will cede jurisdiction to the Court, which will lead to US
servicemen being prosecuted.[i] In particular, a fear
their military personnel might be prosecuted by an unrestrained and
unaccountable prosecutor for their ‘anti-terrorism’ campaign post-9/11 which is
alleged to include, inter alia, illegal acts of torture and airstrikes.
Consequently, over time, the US has taken active steps to undermine the Court’s effectiveness and legitimacy. For example, the US has concluded over ninety bilateral agreements with other states agreeing not to transfer to the Court US persons who might have committed crimes under the Court’s jurisdiction without the US’s consent.[ii] This significantly diminishes the Court’s effective functioning in the fight against impunity.[iii] In 2018, John Bolton, when he was the US’s national security advisor, stated: “[w]e won’t cooperate with the ICC. We will provide no assistance to the ICC. We will let the ICC die on its own.” Likewise, Trump, in addressing the UN, stated: “the ICC has no jurisdiction, no legitimacy, and no authority. We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.” Last year, as soon as the prosecutor merely signalled her intention to investigate Afghanistan, the US revoked her visa to prevent her entering the country. The US warned they were “prepared to take additional steps, including economic sanctions if the ICC does not change it course.” This is exactly what they have done. In response to the Court’s decision to commence the investigation into Afghanistan, Trump authorized the “blocking [of] the financial assets of certain ICC staff and [the imposition of] visa restrictions on them and their immediate family members.” Measures of this sort, designed to deter the Court from pursuing its investigation into Afghanistan, are tools normally reserved for perpetrators of international crimes and human rights violations, not individuals working for an institution seeking to hold them accountable. These sanctions are unsurprising when considered in the light of the US’s historic stance towards the ICC. However, conversely, what is surprising is the reaction by the other state parties to the Rome Statute.
A humanising
moment amidst widespread inhumanity: a watershed moment for the Court?
The sanctions against the
Court fly firmly in the face of justice, but rather than leaving the ‘naming
and shaming’ to the likes of NGOs, the President of the Assembly of State
Parties to the Rome Statute, O-Gon Kwon, called upon the state
parties to the ICC to share their condemnation and reaffirm collective
support for the Court. This resulted in 67 state parties to the ICC signing a collective statement
which “reconfirms [their] unwavering support for the Court as an independent
and impartial judicial institution.” The statement mentions states are
committed to “uphold and defend the principles and values enshrined in the Rome
Statute and to preserve its integrity undeterred by any measures or threats
against the Court.” They “will therefore continue to respect [their]
cooperation obligations under the Rome Statute… and call on all States to
ensure full cooperation with the Court for it to carry out its important
mandate of ensuring justice for the victims of the most serious crimes of
international concern.” This is a refreshing development to witness; amidst the
widespread inhumanity that has permeated the conflict in Afghanistan, states
have firmly denounced the sanctions taken by the US and reaffirmed their
commitment to ending impunity and supporting the Court, a humanising moment. Although,
whether this has the potential to constitute a watershed moment for the Court
is a difficult question to answer.
Going forward, will
states be more supportive of the Court? Will they continue to actively denounce
actions intended to undermine the Court’s legitimacy and effectiveness? Will
states actually comply with their obligations under the Rome Statute,
such as extraditing indicted individuals to the Court? (Rome Statute,
article 89). Will they actively encourage cooperation with the Court? Are
states finally going to follow through with their commitment to help “guarantee
lasting respect for and the enforcement of international justice”? (Rome Statute,
preamble). The collective statement does signal an intention to do so, but a
degree of prudence needs to be exercised in not getting too ahead of ourselves.
There are important
countervailing factors to consider when speculating. Firstly, there exists a
paradox whereby the values underpinning international criminal justice are ones
which the international community claim to agree and endorse, yet
simultaneously fail to provide the coercive powers and will to implement.[iv] For instance, the Court issued its first arrest warrant for al-Bashir,
former president of Sudan, in 2009 for charges ranging from crimes against
humanity to genocide, but this was ignored by various states in Africa,
allowing him to travel freely around the African Union for years,[v] until his capture by Sudan’s military in 2019.
Indeed, states agree with the ICC in principle, but in practice are not
disposed to offer the help and cooperation the Court needs to successfully
achieve its goals.[vi]
Secondly, and compounding this, only 3 out of the 13 states where an ICC
investigation is currently ongoing have endorsed the statement. Similarly, only
67 out of the 123 state parties to the Rome Statute have endorsed it. Therefore,
is this collective statement just mere rhetoric, not widely enough endorsed to
be meaningful, or does it signal times of changing attitudes vis-à-vis the ICC?
Whilst we cannot conclusively answer that question now, one can hope this is
a watershed moment for the Court. Its implications would be important for
several reasons; active state support would furnish the Court with some
much-needed legitimacy, and improve the Court’s effectiveness, in turn, also
furthering its legitimacy.
One can only hope
Many scholars believe the
ICC to be “living on borrowed time;” a mere temporary and failed experiment
which is in a constant battle to demonstrate its merit.[vii] In large part, this is
because the Court has suffered extensive criticism; they range from accusations
that the Court has secured inadequate convictions, is too slow in delivering
justice, has failed to adequately deter criminals, and is biased towards
African states. Without going into their merits here, they have damaged the
Court’s legitimacy to the point of crisis; the Court is rarely perceived in a
positive light.[viii]
If this is a time of changing state attitudes towards the ICC, this would
likely have the effect of vesting the Court with some much-needed legitimacy;
if the Court’s objectives and operations are more readily endorsed and
supported, it might be viewed with less scepticism and lament. Similarly, and
inextricably linked to the following point, a watershed moment would increase
the Court’s effectiveness, in turn likely bolstering its legitimacy.
The ICC has no
enforcement mechanism of its own; there is no readily available world police
force to give effect to its arrest warrants and apprehend indicted subjects. The
reality is that apprehension is states’ responsibility. As such, the Court’s
effective functioning is dependent on state cooperation and support. This was
aptly demonstrated in the al-Bashir case whereby the African Union’s reluctance
to arrest him allowed travel around the African Union uninhibited. Even with
his capture, he still has not been surrendered to the Court, illustrating the
ICC is at the mercy of states; without cooperation there can be no convictions.
The Court originally ruled against opening an investigation into Afghanistan
due to fears that Afghanistan authorities, the Taliban and the US would not
cooperate. In the absence of state support, the ICC will likely remain to be
perceived as a weak, ineffective, and illegitimate institution. This is
precisely why changing attitudes towards the Court is so important. If states follow
through with their promises made in the statement, this will furnish the Court
with some much-needed legitimacy, and help eradicate some of the criticisms
mentioned above, for instance, helping the Court secure more convictions,
further bolstering its legitimacy. Nevertheless, a note of caution is required
in taking this development as a given. Rhetoric without results is still the
order of the day internationally, but this does not mean we cannot hope for
such an occurrence. The ICC provides victims all over the world with hope – “hope that no one
is above the law and that their despair can be salved with justice- that
somebody will listen to their tales of horror- that they are not alone.”[ix]
The least we can do is hope – hope that this is a watershed moment for the
Court, and that states will continue to support the permanent international
institution designed to end impunity for egregious crimes and provide justice
to victims.
Ethan Gren
graduated from Newcastle Law School in 2020 from the LLB (International Legal
Studies) and has an avid interest in researching contemporary problems
facing both international human rights law and international criminal
law.
[i] Dominic McGoldrick, The
Permanent International Criminal Court: Legal and Policy Issues (Hart
Publishing 2004) 339
[ii] Sean D Murphy, ‘U.S. Bilateral
Agreements Relating to the ICC’ (2003) 97(1) The American Journal
of
International Law 200,
201
[iii] Human Rights News, ‘United States
Efforts to Undermine the International Criminal Court: Legal
[v] Dawn L Rothe, James Meernik and
Pordis Ingadottir, The Realities of International Criminal Justice (Brill
2013) 154
[vi] Leila Nadya Sadat and S Richard
Cohen, ‘The New International Criminal Court: An Uneasy Revolution’ (2000)
88(3) Geo LJ 381, 444
[vii] Frederic Megret, ‘The Anxieties of
International Criminal Justice’ (2016) 29(1) LJIL 197, 199
[viii]
Marieke De Hoon, ‘The Future
of the International Criminal Court. On Critique, Legalism and Strengthening
the ICC’s Legitimacy’ (2017) 17(4) Int CLR 591, 593
[ix] Leila Nadya Sadat, ‘A Rawlsian
Approach to International Criminal Justice and the International Criminal
Court’ (2010) 19(1) Tulane Journal of International and Comparative Law 1,
25-26
While the heinous crimes of
former glam rock star Gary Glitter are forever etched into the public
consciousness, the proposal for well-known musicians convicted of sex offences
to have their royalties
earned from the use of their creative works confiscated (in addition to
their statutory punishments) is difficult to justify from a legal perspective. In
such notorious cases, there is a need to: (i) maintain the rule of law, (ii) resist
“angry mob” cries for retribution, (iii) prevent judgments and punishments
which Jeremy Bentham called “private opinion in disguise” or “the mere opinion
of men self-constituted into legislature” when railing against the common law
in general,[i]
and (iv) maintain predictability and uniformity of the application of law. This
post will set out the essential nature of the Intellectual Property (IP) rights
associated with creative artistic works, followed by a short discussion of the
punishment regime for sexual offences in England and Wales to conclude that the
proposal to confiscate royalties is not justifiable on legal grounds.
Music and the introduction of personal IP rights
IP rights are a means for
individuals to make a living from their work. While artisans and craftspeople
can make a living by selling their specialised products or manual skills (which
are not easily copied), those whose living is made by using their skills to
produce ideas or creative works such as music and literature which others find
value in (such as authors and songwriters) suffer in that their work is often easily
copied. Copyright – the right of an author to prohibit another from profiting
from their work – is a means for enabling the author to make a living from
their original work.
A very early reference to personal
IP rights comes from Ancient Greece. A law stated that if a cook came up with a
recipe for his restaurant, nobody else was permitted to prepare that dish for a
year, allowing the cook to make an income from his skill and creativity.
Early composers, on the other
hand, had to make private petitions to their monarch for protection of their
work. Lully in France enjoyed the Privilège du Roi, an exclusive
authorisation to print a work, granted by an authority (namely, the King). Both
Lully and, years later, his great admirer Handel in England received Letters
Patent, which provided both with exclusive licenses to sell and profit from
their music. Handel was an impresario – his oratorios, although mainly on
biblical themes, were often first presented in theatres.[ii] Putting on performances and selling copies of
the sheet music was his living, and had the advantage (as with Lully and other
composers) of not having to rely on patrons. More importantly, these exclusive
licences allowed composers to prevent others from making copies of their works,
selling them, and keeping the proceeds, thereby denying the composers of that
income.
In England, this ad hoc
private approach was replaced by the Statute
of Anne, known as the Copyright Act 1710, “to prevent printing by third parties
without the
consent of the authors or proprietors of such books and writings, to their very
great detriment, and too often to the ruin of them and their families.”
The principle is that artists may profit from their creative labour just
as any other worker, if people find value or enjoyment in it.
Modern creative rights evolved
from this principle, and are found in the Copyright, Designs
and Patents Act 1988. Broadly
speaking, as there are some variations, this gives composers of musical
works a copyright duration from the creation of the work extending to 70 years
after the end of the year of their death (s.12), and performers
a copyright over their recorded performance of 50 years from release of the
recording (s.13). This takes into account the fact that creative people rarely
have any regular salary. Being property rights, their benefit may be passed on
to inheritors after the death of the owner, or disposed of according to their
will.
Why the call for additional punishments?
Gary Glitter is notorious, but
not unique, as a high-profile musician convicted of crimes which are now
covered by the Sexual
Offences Act 2003 (Ian Watkins, the disgraced former lead singer of
Lostprophets, is another example). The Act sets out the punishments to be
applied for each offence it includes, usually a term of imprisonment.
Hale et al., discuss the idea of
a “Folk Devil”, as “… those figures in society we are encouraged to dislike
and avoid, e.g., child sex offenders (also, in history, football hooligans, …).
The target can change. The paedophile is the folk devil of our times.”[iii]O’Brien, defining sex crimes and, in particular, those involving children, describes the concept of moral
panic as an exaggerated public outcry, based on little or no evidence and
thereby missing the main point of such offences mostly being committed by close
family members or friends.[iv]
Though this does not diminish the severity of
the crime, it may lead to “angry mob”-like reactions which may cause more harm
than good. An offender for whom there may be a hope and capability of
rehabilitation may, if it appears that all of the rights to their works are to
be confiscated along with their potential to earn a livelihood, simply give up,
undermining any efforts at re-integrating them into society, and may increase
the risk of recidivism. This sounds like a harsh judgment of people who make up
“angry mobs”, but serious mistakes
have been made.
Parliament sets out specific
punishments for specific crimes. There is also a statutory sentencing framework
since 1991, and now in the Criminal Justice
Act 2003, so judges do not have unfettered discretion in imposing a
sentence – i.e. they may not act arbitrarily. Under Article 7 of the Human Rights Act
1998, a heavier penalty than the one which was applicable at the time the
criminal offence was committed shall not be imposed. Any punishment beyond
this, or one that is not specified by the law is therefore arbitrary, and
consequently contrary to the rule of law. The application of criminal law
confines itself strictly to the offence(s) concerned, and punishment is
prescriptive with relatively limited scope for variation, with the intention
that it is appropriate and severe enough for the offence.
This is a specific case in which
IP, criminal law and, to an extent, criminology combine in an unusual manner.
In such cases, confiscation of
future IP rights from someone convicted of an unrelated offence is
impermissible because this is not prescribed in the relevant statute. Further, it
is not the case that the royalties which a convicted musician in the present
context collects for their existing work are proceeds of crime, which under the
Proceeds of Crime Act 2002
could be confiscated. The 2002 Act
refers only to assets acquired as the result of unlawful activity; income and
assets lawfully acquired during their everyday occupations are not covered by
the act. Similarly, in some US states, so-called “Son of Sam” laws have been
enacted which seek to prevent convicted felons from profiting from their crimes
by selling their stories or otherwise benefiting from publicity due to their
criminal notoriety. These laws have often been struck down as infringing First
Amendment rights to freedom of speech under the US Constitution, though an amended
statute still
exists in New York. However, this goes no further than income directly
related to the crime.
Confiscation is therefore unjustifiable
through a legal lens as it is arbitrary and contrary to the rule of law, which
requires that convictions should only be made for crimes specifically laid down
by law, and that only the punishments provided by that law should be applied, a
requirement that is stated clearly in Article 7 of the European Convention on
Human Rights. A liberal society committed to the rule of law which aims both to
punish and rehabilitate, as far as possible, its worst offenders does not need
to shy away from harsh punishments, nor compromise its principles, but must
nevertheless act fairly and resist arbitrary retribution.
[i]
Quoted in R Wacks, Philosophy of Law, a Very Short Introduction (OUP
2006) 28.
[ii] D Hunter,
“Patronizing Handel, inventing audiences: the intersections of class, money,
music, and history” (2000) Vol XXVIII/I Early Music 32-49.
Artificial
Intelligence (AI) is already influencing the legal profession and has the
potential to greatly influence the profession in the future. AI is currently
benefiting the legal profession by performing mechanical tasks and saving
substantial costs and time to both large and small law firms. This impact on
the profession will be beneficial, contingent upon laws and regulations being
introduced that will impose restrictions on AI and its application within the
profession, so that it does not come to replace humans. This blog post will
argue that the only way AI will be detrimental to the profession is if AI
technologies eventually come to replace human lawyers and judges. However, this
is a distant future prospect. AI technologies, in their present form, are
beneficial to the legal profession when they assist human lawyers in doing
their every-day tasks more efficiently, accurately and providing more
cost-effective legal advice to their clients. But, it is of paramount
importance that AI is regulated by the Government to ensure this vast use of AI
in the law is trustworthy and transparent.
AI in the legal profession
The
influence of AI in the legal profession is already evident from the fact that
numerous large law firms across the UK are using AI technologies. For instance,
the law firm Addleshaw Goddard (AG) is using AI to provide better results to
their clients. AG is using Kira, which‘is a powerful AI system’,
used to quickly interrogate and manage large volumes of information saving
significant amounts of time. Furthermore, one of the largest and most historic
law firms in the UK, Freshfields,has also invested in the AI program,
Kira, and is consistently using this program for their every-day operations,
such as reviewing contracts. Kira can identify‘all agreements with potentially problematic provisions.’
Additionally, a relatively smaller law firm, Muckle, has been using AI
technologies since 2016 to accelerate ‘large, complex disputes’. Additionally,a recent study from the Coldwell
Banker Richard Ellis (CBRE) Group, found that 89% of law firms are already
utilising AI or have imminent plans to do so. Consequently, it is illustrated
that law firms, whether large or small, are willing to invest in AI
technologies to facilitate mechanical, every-day tasks.
AI
is benefiting the legal profession by saving significant costs to its clients
while also providing more accurate, efficient and timely results. These
extraordinary results enable lawyers to tackle more complex and creative tasks
that can make an impact on the law and society. The global consulting firm,
McKinsey, has asserted thatlawyers are already utilising AI technologies
to evaluate the thousands of documents gathered during discovery, and to
determine the most important ones for further review by legal staff. The
international law firm, Cleary Gottlieb used AI during discovery to determine which
of the thousands of documents collected were documents that should not be
investigated by prosecutors due to lawyer-client privilege. As one of the
lawyers of the firm pointed out, “from the 500,000 we started with, we quickly
made our way to identifying 15,000 documents that were privileged.” Notably,the cost to perform this review by AI was $50,000,
instead of the potentially millions in billable hours the job usually would
have cost.
Additionally,
anAI
lawyer, CaseCruncher Alpha, won a challenge against 100 lawyers
from London’s magic circle firms. The challenge was to predict whether the
Financial Ombudsman would authorize a claim by analysing hundreds of PPI
(payment protection insurance) mis-selling cases. Overall, the 2 contestants
presented 775 predictions, with the AI lawyer, CaseCruncher having an accuracy
rate of 86.6 percent, whereas the lawyers merely obtained a 66.3 percent
correct. Likewise, in a new study expressed on Hacker Noon, twenty of the USA’s
top corporate lawyerscompeted against an AI program, called the LawGeex AI,
to figure out who could identify the defects in five non-disclosure agreements
(NDA) faster and with more accuracy. The challenge was set up by an impartial
team of specialists, including law professors from Duke, UCLA, and a senior
corporate lawyer. The AI program attained “an average 94 percent accuracy
rate, higher than the lawyers, who achieved an average rate of 85 percent.”
Incredibly, “it took the lawyers an average of 92 minutes to complete the NDA
issue spotting, compared to 26 seconds for the LawGeex AI.”
These
examples show that AI can genuinely assist lawyers in analysing these
documents, and to reduce the wordiness of these documents, which can enable one
party to identify the main issues. Moreover, AI can reduce the costs of legal
advice and free up time for lawyers to concentrate on more complex tasks. An AI
system that reviews contracts allows lawyers to work on ‘higher-level tasks’
and it makes ‘legal advice accessible and affordable for all.’ There are, therefore,
multiple benefits of using AI within the legal profession, including
efficiency, accuracy, costs and the ability to free up time for the lawyers to
undertake more challenging tasks.
80% of consumers think that it is more significant to obtain more cost-effective legal advice than for the job of solicitors to be retained. This, then, illustrates that clients will want to use AI because it would be more affordable and that people are, indeed, willing to use AI and do not consider it as a threat, which suggests that AI is bound for mass market acquisition. The fact that clients will be willing to receive legal advice from a law firm that encourages use of AI is shown by a statistic from PwC that 72% of business executives think ‘AI will be the business advantage of the future.’ Another incentive for clients to use AI in the UK is evident from the fact that AI is expected to add £232 billion to the UK economy by 2030 and $15.7 trillion to the global economy. Moreover, in a keynote speech by AG, it was asserted that clients are now expecting better quality services for a lesser price.[i] Hence, AI systems might be adopted by all law firms in the future, rendering the influence of AI systems on the legal profession, gigantic. This is comprehensively summarised in the statement of Girardi, who asserted that “it may even be considered legal malpractice not to use AI one day.”
Could AI replace Lawyers and legal professionals?
Identifying
the great benefits that AI can provide the legal profession, it seems that the
major detriment of AI is if it comes to replace human jobs. However, it appears
improbable that AI will replace human lawyers in the near future, due to the
limitations of its use to only mechanical tasks and the lack of interpersonal
skills that it possesses.
As
Thomas asserts, “AI is not going to replace managers, but managers who use
AI will replace the managers who do not.” AsRichardson and Girardi both agree,
no matter how sophisticated AI becomes, it will never be a substitute for the
judgment and decision-making only humans can provide. Indeed, human lawyers and
judges can provide justice, enforce the rule of law and impact society in a way
that AI may never be able to do. AsAustralian law firm Best Hooper
implies, a client will not be able to create a relationship of trust and
loyalty with their solicitor, if that solicitor is an AI robot.
Correspondingly, it is evident that AI replacing human lawyers would be
detrimental to the profession in terms of business efficacy. The firm continued
to rightly acknowledge that answers to legal questions are not always black and
white and therefore, AI technologies will not be able to replace human lawyers
in the near future, since the current AI does not possess such skill. This is
evident from the AI, CaseCruncher, which recognised that AI technologies are
only better at human lawyers in predicting conclusions when the question is
outlined“precisely”. Currently, AI can
merely analyse information they collect, lacking interpersonal and other skills
required by a lawyer.
The Observer asserted that AI is currently undertaking the tasks previously completed by entry-level lawyers and thus also issuing a warning as to the possibility of certain jobs within the legal profession being replaced. Dodd supports the position that AI could supersede some of the mechanical tasks completed by junior lawyers and paralegals. Correspondingly, Morison and Harkens observed that paralegals were ranked in the first quartile of those to be replaced by a study looking at the jobs that are likely to become automated in the future, because AI can scan documents to identify essential words and phrases.[ii] In this study, lawyers due to their interpersonal, advisory roles were placed in the fourth quartile of least likely to be superseded.
However, AI cannot currently talk to a client or present arguments in front of a judge in a trial. Similarly, “AI’s present capability meets a sizable need in the legal space by automating a number of high-volume, recurring tasks that otherwise take lawyers’ focus away from more meaningful work.” Consequently, it appears that entry-level lawyers will be allowed to focus on more significant tasks rather than performing recurring work, which is beneficial to both the profession and society. However, if AI manages to be able to replace human lawyers in the distant future, this could also benefit society in that it would provide cheaper legal advice to citizens. Nevertheless, since the study cited by Morison and Harkens indicated that lawyers are one of the most challenging professions to replace, if AI is able to reach this level of intelligence, which will be close to the ‘human-level machine intelligence’(HLMI) described by Bostrom,[iii] then the very existence of humanity is under threat. As Bostrom emphasises, once a machine can surpass the general intelligence of humans; humans will no longer be the dominant life-forms on this planet and “our fate would be sealed”. Therefore, despite the benefit to society that the replacement of human lawyers might provide, the bigger picture indicates that this would be detrimental. Correspondingly, a collaboration between AI and humans seems the most reasonable solution, as according to Forbes, ‘lawyers and judges are only as good as the information they receive, and AI has the potential to significantly increase the quality of information.’ Appropriately, although there are signs of AI threatening jobs within the legal profession, Richardson observes, “AI isn’t going to replace the need for critical thinking. We still need to prepare students to think like lawyers, and I don’t think that’s ever going to change.”
Could AI replace Judges?
Judges, in the Morison and Harkens study, were ranked in the second quartile, because robot judges will provide quicker and cost-efficient judgments, with enhanced information, making justice more accessible to people. Nevertheless, although Susskind has predicted that online courts, working with disrupting technology such as AI, will intrinsically modify the duties of traditional litigators and of judges, he does not expect them to be capable of resolving ‘the most complex and high-value disputes’.[iv]
UCL
has developed an AI judge that predicted the verdict of English cases
concerning torture and degrading treatment with a 79% accuracy. In that 79% of
cases, the AI systems provided the exact same verdict as the court itself.
Nevertheless, improvement is to be made upon that 79% if AI technologies are to
start replacing human lawyers. However, what is significant about this AI judge
is that it is able to not only consider the legal evidence, but also to
consider moral questions of right and wrong. This, then, illustrates that AI could
potentially be a threat to the job of human judges in the future.
Regulations on AI
Regulations
and laws are already changing around AI. Calo argued that AI-specific
regulations will emerge, they will likely not be significant reforms but a
continual, constant process of small steps that could apply to multiple areas
including ‘consumer protection, privacy and tort liability.’
These regulations may subsequently have to be adjusted and adapted depending on
the benefit or detriment that some of the AI systems will have in our lives. As
theLaw Society of England and Wales
has emphasised, AI is still in the early stages of its development and
therefore, they suggest that regulations should remain limited to first gain
context of its forms and the potential ramifications of its use. Similarly,Stilgoe suggested that we first need to
understand emerging technologies before we impose appropriate regulations.
However, businesses would like
clarity on theregulations of the use
of AI.
Consequently, as the Financial Times reports, strict regulations on AI are
desirable.The LSG suggests that
AI systems must have strict liability, which will hold them accountable. This is consistent, with the IBM
ethical issues on AI, as they indicated that holding AI accountable is crucial for ethical
standards. Consequently, strict liability and the AI ethical standards
developed by IBM, will ensure that AI will thrive in all
areas, including the legal profession and the regulations can be sufficient to
prevent the technologies from replacing humans. This is because the strict
liability will apply when the AI has conducted harm to individuals and it is in
the interests of justice to hold the coders who created the AI accountable.
Accordingly, despite some unexpected scenarios where the coders could not have
anticipated the actions of AI, it is only fair that this is so. In fact, this
does not have to act as a deterrent to innovation, for if the coders conduct
their operations ethically, there should be no reason for AI to act
unethically.
AI
is still in its infancy. Therefore, currently there are not many regulations
regarding the use of AI. Appropriately, theAI Principles developed by the Organisation for Economic
Co-operation and Development (OECD), to which the UK is a
party, recognises five values-based principles for the responsible
administration of reliable AI. Firstly, the OECD is proposing that AI ought to
benefit people and the Earth by propelling inclusive progression, sustainable
development and prosperity. Secondly, AI systems ought to be created with the
intention to abide by the rule of law, human rights, democratic values and
diversity, and they should involve proper safeguards. For instance, allowing
human intervention where it is required to make sure we have a fair and just
society. Likewise,Article 22(1) of the General Data Policy Regulations (GDPR),
which provides that decisions should not be solely automated and subsection(3)
provides that a data controller shall impose appropriate safeguards, which
include the right of human intervention.Calo recognised that the EU’s GDPR is
important in the regulation of AI, as through the GDPR, citizens can acquire
information regarding AI-based decisions influencing them. He rightly
identifies that public opinion is significant in this situation. If people as
citizens or consumers outline their distress regarding the administration of
AI, the reputation of companies could suffer as they attempt to build
profitable and respectable businesses, “or by governments responding to those
public pressures.” Accordingly, the OECD continued to suggest that there should
be transparency and proper information given to the public regarding AI
programs to make sure that the public understands AI-based results and can
challenge them. Fourthly, AI programs shall operate in a strong, dependable and
safe process for the whole duration of their use and probable risks should be
continually evaluated and managed. Lastly, organisations and individuals
advancing, establishing or running AI programs should be held responsible for
their appropriate operation in alignment with theabove principles. These recommendations
are crucial and will likely influence numerous Government regulations. As the
OECD has emphasised, although their recommendations are not legally binding,
they are extremely influential. The fact that the OECD has the power to influence
decisions of other organisations and governments is evident bythe
recognition of the G20 and their support for the suggestions
made by the OECD. Additionally, as Calo asserted, just like with any disruptive
technology, the government has a duty to regulate AI to be in the public
interest and to make certain that the costs and benefits of AI are evenly
dispensed everywhere in society. Consequently, the common matter in all of
these suggestions, is the fact that AI should be used in a way that is
beneficial and in the public interest.
Governments
will need to play a central role to ensure that AI is beneficial to the legal
profession. As Stilgoe implies, we cannot allow powerful private companies to
createunlimited emerging technologies,
without regulations. Similarly,Google suggests that Governments take GDPR as the
foundation to ensure safety, privacy, fairness and accountability.
TheOECD has also urged Governments to enable
public and private investment in research and development to stimulate
innovation in reliable AI; promote attainable AI ecosystems with digital
facilities and technology to share information; ensure a policy setting that
will allow implementation of reliable AI;
empower the AI experts and help employees adapt; and collaborate across
borders and branches to develop honest administration of trustworthy AI. These
regulations should be implemented immediately by Governments, as they are not
regulations which tend to hurt innovation, they are merely ensuring that AI
created from the day of the regulations onwards, is reliable. Consequently, if
the Government implements fair and transparent measures to the development of
AI, it is in the right direction to beneficial and reliable AI.
Overall,
AI is already influencing the legal profession and an even bigger impact will
likely be made in the future. Whilst it is highly improbable that AI will be
able to replace human lawyers and judges in the near future, due to the lack of
their interpersonal skills, there has been impressive work done by AI thus far like
the LawGeex’s win in a challenge against human lawyers. The use of AI technologies is currently
beneficial since it assists human lawyers to operate their mechanical every-day
functions more efficiently, cost-effective and accurately. As Dr Aletras
emphasises,“we don’t see AI replacing judges or lawyers, but we think
they’d find it useful for rapidly identifying patterns in cases that lead to
certain outcomes.” These powerful incentives will drive the
mass market success of AI in the legal profession. However, the use of AI will
only be beneficial assuming that fair and transparent AI is imposed by the
Government to ensure that AI is trustworthy, ethical and enforced in a way that
prevents the replacement of human lawyers.
[i] Addleshaw Goddard Guest Lecture, ‘Legal Technology’ (Newcastle University, Law School Lecture Theatre, 23 October 2019)
[ii] John Morison and Adam Harkens, ‘Re-engineering justice? Robot judges, computerised courts and (semi) automated legal decision-making’ (2019) 39 Legal Studies 619; R. Susskind Tomorrow’s Lawyers: An Introduction to Your Future (Oxford: Oxford University Press, 2nd edn, 2017)
[iii] Nick Bostrom, ‘Superintelligence: Paths, Dangers, Strategies’ (Oxford University Press, 1st edn, 2014)
[iv] R Susskind Tomorrow’s Lawyers: An Introduction to Your Future (Oxford: Oxford University Press, 2nd edn, 2017) 121
Lambros Spyrou
graduated from Newcastle Law School in 2020 and developed this blog post
out of his project on the Research Topic in Law and Emerging Technologies
Module.
The courts of England and Wales have long since grappled with how to approach duty of care in tort law. The search for a single test for establishing a duty of care, however, is hopeless due to the nature of negligence and society. A general test for a duty of care between a claimant and a defendant has existed since the landmark case of Donoghue v Stevenson, alongside breach, causation and remoteness, for a successful negligence claim. Unlike the other requirements, however, duty is profoundly exposed to changing social norms. This blog post will therefore narrow its scope to a socio-legal lens to demonstrate that a single test for duty is unsustainable in three ways. It will first be shown that a single test is impossible due to the nature of negligence and society. Secondly, how this is reflected in the judiciary’s failure to carve out a single test will be considered. Lastly, it will be shown how the courts’ current approach to duty, which is not contingent on a single test, is most suitable to this area of law. Many scholars and judges have accepted that the judiciary has been unable to define a single test to date, however few have conceded that an adequate solution has emerged from the courts’ examination of the duty of care to date (see, for example, Lord Lloyd-Jones’ comments at [15] in Darnley v Croydon Health Services NHS Trust). This analysis will consequently conclude that the current judicial approach to duty is the most suitable way of deciphering whether or not a duty of care is owed.
I. THE
IMPOSSIBILITY OF A SINGLE TEST
Firstly, establishing a single test for whether a duty of care exists is
impossible due to the nature of both negligence and society. Unlike most other
torts, negligence does not protect a particular interest and significantly
overlaps with other areas of law. This means that an infinite number of
possible causes of action exist in negligence, all of which a single, “special”
test could not accommodate without infringing how other interests are protected,
as noted by Lord Phillips in Gregg v Scott. Establishing a single test
is also impossible due to the evolving nature of society. This is significant
as duties specify requirements as to the way in which people engage in conduct
by capturing social “sentiment”; an idea that is largely uncontested by
corrective justice and civil recourse theorists such as Cane, Goldberg and
Zipurksy. However not only is there an infinite variety of relationships between
individuals, but the norms of such relationships are constantly evolving. This
makes it impossible to generate a single, perennial test for duty which will
apply to “every situation”, as envisioned by Lord Atkin in Donoghue v
Stevenson.
The opinion to the contrary, however, merits consideration. Buckland, for example,
contends that the concept of duty is redundant and should be abandoned. Such a
view is compelling through the “fault-based” lens of negligence liability
espoused in Fairchild v Glenhaven Funeral Services Ltd, which maintains
that an individual only has a duty to pay damages to those upon whom they
inflict loss. On this basis, duty is unnecessary as it does little to prove
fault. However Buckland overlooks the
fact that the courts determine liability by considering what “reasonable” steps
could have been taken to prevent a harm within the duty defined. The
“wrong-based” view of liability, advocated by Goldberg and
Zipursky, is consequently more compelling as by leaning in a deontological
direction, it recognises duty as ex ante as is custom in the courts. As
duty remains integral to negligence, the tort will continue to be exposed to
societal change. As a result, it is clear that the nature of negligence and
society means that establishing a single test for duty is impossible.
II. THE COURTS’
FAILURE TO ESTABLISH A SINGLE TEST
Secondly, the impossibility of a single test for duty is reflected in
the judiciary’s failure to establish one. The most commonly applied gateway to
duty has been the Caparo Industries plc v Dickman tripartite test; which
requires the foreseeability of harm, sufficient proximity of relationship, and
that it is fair, just and reasonable to impose a duty. Although other tests have
included owing a duty where one’s act or omission may foreseeably injure a
neighbour, where an individual assumes a responsibility to another, and within
the scope of the neighbour principle provided no opposing policy consideration
exists (see, for example, Donoghue v Stevenson, Hedley Byrne & Co Ltd v
Heller & Partners Ltd, and Anns v Merton LBC). However, as pointed out
by Nolan, these tests
have proven unable to accommodate “new” types of harm such as psychiatric
illness and economic loss, for which the courts have been forced to develop new
categories. Each will be dealt with in turn.
Firstly, due to difficulties associated with the foreseeability of
psychiatric harm given its idiosyncratic nature, the courts have forged
separate tests for primary and secondary victims of such harm. These tests are,
however, fail to provide a suitable response to social complexity. For example, the test for secondary victims,
who witness but do not participate in a given event, requires “close ties of
love and affection” between the claimant and the injured victim following Alcock
v Chief Constable of South Yorkshire. Yet, the Law Commission has been quick
to highlight how this does not capture modern society in which the family unit
typically includes grandparents and cohabitants, who are generally considered
not to satisfy this test. Similar criticism can be directed at the Alcock requirement
that the claimant viewed the event with their “own unaided senses”. Whilst the
case of Alcock concerned when liability might arise for incidents that
people might apprehend through the medium of television, the content of which
was restrained by the Broadcasting Code, the modern spectator can view events
as though present through a miscellany of social media platforms untethered by
such codes (see the Broadcasting Act 1990). Such considerations cast doubt over this
category, particularly as new psychiatric illnesses emerge such as occupational
stress and nomophobia.
Secondly, the courts have developed a category for economic loss. This
is again due to difficulties in relation to the foreseeability requirement,
given that financial loss is often a matter of “pure chance”, as noted by Harvey. In cases
concerning misstatements and services which cause financial loss not consequent
on physical damage, duty has come to hinge instead on whether a responsibility
has been assumed via the ‘Hedley
Byrne v Heller’ exception. The fact that the judges in Hedley Byrne
disagreed over whether this could be applied alongside tests of foreseeability
ought to have foreshadowed the problems this would cause. Since the decision, a
dichotomy has arisen in cases of pure economic loss: with the
foreseeability principle being ignored in some cases yet applied generously in
others (see, for example, Smith v Eric S Bush, Spring v Guardian Assurance plc,
Williams v Natural Life Health Foods Ltd, and Commissioners of Customs
and Excise v Barclays Bank plc).
This approach has come at the expense of long established doctrines such as that which prohibits liability
for omissions and acts of third parties, and contractual privity and
consideration; the significance of all of which has been diminished.
The courts, however, have justified these separate categories on public
policy grounds under the ‘Anns’ and ‘Caparo’ tests: arguably to
prevent what Lord Steyn has described
as a litany of cases that may otherwise arise under a general test of
foreseeability. This is compelling when the social capriciousness of psychiatric
illness and economic loss is considered; namely, that cases involving these
elements often involve a set of unique and socially complex facts which could
give rise to any number of possible lines of liability. However, as noted by Nolan, regardless of
the plausibility of the courts’ approach within the categories, it
remains that the very existence of these categories shows a dissonance in the
judicial approach to duty. These new categories, therefore, are inherently
problematic and serve to highlight the courts’ failure to supply a single test.
III. THE
SUITABILITY OF THE CURRENT APPROACH
This post’s final contention is that the current approach adopted by the
courts is most suitable to this area of law, set out in Robinson v Chief
Constable v West Yorkshire by Lord Reed. This approach maintains that
duties of care should be developed incrementally by “analogy” with established
principles, unless in genuinely “novel” cases in which the Caparo test
should be deployed. The merits of this approach are best seen through a pluralist lens, which in
rejecting the monistic approach of corrective justice scholars such as Weinrib who seek to explain tort by reference to a single
ideal (corrective justice), endorses the balancing of principle and policy by
reference to a range of countervailing concerns. Each element will be dealt
with in turn. Firstly, the current approach alleviates the need for new
categories of duty by establishing the “universal touchstone” of principles
envisioned by Lord
Lloyd-Jones, rather than a single test, from which the law can be developed
coherently in line with modern losses and harms. For example, the fruits of the
late twentieth century expansion of duty, largely justified by policy
reasoning, are already being reversed: with the exceptions to the rule against
omissions being retightened and any
immunity for public authorities renounced. Secondly,
this has been balanced with the restricting of policy reasoning to cases which
are genuinely novel. This “bottom-up” rather than “top-down” approach serves to
restrain the judiciary from deploying policy rationale too readily, as shown in
ABC v St George’s Healthcare NHS Trust.
Functionalist justificatory models (which aim, generally, to
provide torts with a normative grounding by defending the goals which they seek
to achieve) may contend that the current
approach could lead to the erosion of the compensatory aims of tort law by
lending too much discretion to the courts. This is perhaps evident in Darnley
v Croydon Health Services; where Lord Lloyd-Jones, who is associated with a
generous approach to duty, found a duty to be present whilst Sales LJ, who has
contrastingly denounced the “weaker” approach to duty extra-judicially, found the contrary in the
Court of Appeal. This same concern can directed at the retention of public
policy use, particularly as the courts have failed to define what constitutes a
“novel” case; a point well covered by Morgan. However, both these contentions oversimplify
the area. Firstly, as noted by Lord Lloyd-Jones in Darnley, any
uncomfortable analogies drawn at the duty stage would be accommodated in the
standard considered at the breach stage. Secondly, it is unlikely that the
courts will be unable to find an applicable established principle and therefore
resort to Caparo. This is evidenced by the novel James-Bowen v
Commissioner of Police case, in which the policy justification of divided
loyalty was indirectly harnessed from the established principle that an
important duty to one group precludes a cross-cutting duty to others. As a
result, the current approach can be deemed to have successfully balanced
principle and policy to provide a viable solution to establishing a duty of
care.
CONCLUSION
In conclusion, the search for a single test to establish a duty of care
is a hopeless one. This has been shown by highlighting how defining a single
test is impossible, considering how the courts have failed in doing so, and by
demonstrating why the current approach to duty, which accommodates socio-legal
change by balancing principle and policy rather than via a single test, is most
credible. In this regard, the courts’ journey in seeking to find a single test
has served to shape and mould judicial precedent to create an adequate solution
after all; even if not the one initially envisioned. Going forward, however, it
is vital that this relatively new solution is continuously scrutinised as new
cases rise through the court system and the socio-legal landscape continues,
inevitably, to evolve.
Christy O’Neil is a third-year law student at Lancaster University, who is eager to tackle the disconnect between legal academia and practice.
Thousands of students across the UK
rent their accommodation from a private landlord. Lured into signing contracts
for a shared student house from only a few months into starting university and
meeting your new housemates, this is an exciting time of adulthood, but the
problems a shared tenancy can hold are rarely discovered until it is too late.
In March of this year when the severity of the global pandemic became clear, many
students requested a reduction or a halt in rent from landlords. There are multiple reports of
landlords ignoring the requests of these compromises, and rebuffing
any pleas to give leeway on the cost of rent in unoccupied houses.
Absolutely no practical support has
been given by the UK government for vulnerable student renters during this
crisis. Student loans often do not cover the high costs of their accommodation
and living expenses, and many students juggle more than one part time job along
with a full-time degree in order to make ends meet. Already paying extortionate
money for overpriced rooms in a house, student renters have been left feeling
abandoned, whilst students who live in accommodation that is managed by the
university or private student corporation flats have had their rent completely
stopped. How is it just or equal, that one group of students have had their
rent completely stopped during this global crisis, and thousands of vulnerable
student renters are left being threatened and forced to pay full rent? Many of
these overpriced student
houses across the UK are barely livable, filled with mould,
damp and broken beds, with landlords and letting agencies refusing to
adequately respond to the shocking conditions.
Furthermore, Northern Irish citizens studying in England
are disadvantaged from the very start of their degree. The maximum available
loan for those from a low-income family is £3,000 less than English students from the same financial bracket. £3,000 makes a
massive difference when considering travel costs, accommodation costs, and
general student living costs. This is an issue which I disputed last year and
tried to contact MPs, and Ministers for Education and Finance, all of whom
essentially dismissed this inequality and did little to help. It seems clear to
me that those whose roles are to listen and fight for the inequalities of local
citizens seem to forget the issues facing students, and we are time and time
again cast to the bottom of the priority pecking order.
Students are an irreplaceable part and
vital contribution to our economy yet have been left battling against greed and
injustice whilst having to complete their degrees in extraordinary
circumstances. Shame on the government for throwing us to the side. As the
financial stability and mental health of young, vulnerable renters rapidly
declines, the government should be supporting students through urging landlords to release students from
their contracts upon request, particularly over the summer months when
university (pre-Covid) is not occurring. Landlords have been allowed to have
the monopoly over the banks of student renters for too long, and it is time for
change.
Rianna Curran is 21 and a Law student at Newcastle University. She is Co-President of It Happens Here, a student lead society that tackles sexual violence and helps empower survivors of sexual assault.
