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Injustice behind the Bar and the bars for women. Review on Helena Kennedy’s Eve Was Framed (1993)
ARINA KOKINA
“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.
Join the North East Law Review: Committee Positions Available
Introducing the Newcastle Law School Journal and Blog
North East Law Review Journal
Web: https://research.ncl.ac.uk/nelr/
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.
North East Law Review Blog
Web: https://blogs.ncl.ac.uk/nelrn/ Twitter: https://twitter.com/nelr_ncl
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)
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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 |
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North East Law Review (Journal)
| NELR Editor (UG) x 2 | Edits journal submissions |
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From ‘Rhetorical’ to ‘Juridical’: Human Rights Instruments Addressing Climate Change Based on the Development of Environmental Rights
Li Wang
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 common ground shared by human rights and environment can be identified in legal documents at the national, regional and international levels. Explicit environmental rights have been codified in over one hundred countries’ constitutions. Notions like ‘right to a general satisfactory environment’ and ‘rights to live in a healthy environment’ can be identified in regional human rights treaties like the African Charter of Human and People’s Rights and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights. Though criticized as weak, these provisions can be argued to indicate an infancy stage of substantive environmental rights. Notwithstanding the fact that no substantive environmental rights have been embedded under international law (there are no such indications of environmental rights in the 1948 Universal Declaration of Human Rights), principle 1 of the 1972 Stockholm Declaration asserts the necessity of adequate environment protection to the enjoyment of basic human rights. Despite their non-legally binding character, it is argued that articulating such a right will contribute to the creation of a substantive right to a healthy environment. It could be expected that once such an environmental right is recognised under international human rights law, climate change, with the increasing linkages between human rights and climate change reiterated by the UN General Assembly and the specialized agencies, may constitute a violation if its threat to the rights of the victims amounts to a breach of legal duty.
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
[vi] Caney (n 2) 72.
[vii] ibid 69.
[viii] Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978)
[ix] Daniel Bodansky, ‘Introduction: Climate Change and Human Rights: Unpacking the Issues’ (2010) 38 GA.J.INT’L & COMP.L. 511, 524
[x] Pedersen (n1) 242.
[xi] Bodansky (n 9) 515.
[xii] Stephen Humphreys, ‘Competing Claims, Human Rights and Climate Harms’ in Stephen Humphreys (ed), Human Rights and Climate Change (CUP 2010) 39
[xiii] John H. Knox, ‘Climate Change and Human Rights Law’ (2009) 50 VA. J. INT’L L. 163
[xiv] John H. Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477
[xv] Alan Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23 EJIL 613, 619
[xvi] ibid 615.
[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
[xviii] Pedersen (n 1) 247.
[xix] United Nations Human Rights Council Resolution 7/23 (2008)
[xx] Pedersen (n 1) 242.
[xxi] Svitlana Kravchenko, ‘Procedural Rights as a Crucial Tool to Combat Climate Change’ (2009) 38 Ga. J. Int’l & Comp. L.613, 648
[xxii] Patricia Birnie, Alan Boyle, Catherine Redgwell, International Law & the Environment (3rd edn 2009 OUP) 274
[xxiii] Tim Hayward, Constitutional Environmental Rights, (2005 OUP) 180
[xxiv] Birnie, Boyle and Redgwell (n 22) 274.
[xxv] Boyle (n 15) 616.
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 ICC’s investigation into Afghanistan: a watershed moment for the Court? One can only hope.
Ethan Gren
Introduction
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
Analysis of Impunity Agreements’ (Human Rights Watch) Available at: https://www.hrw.org/legacy/campaigns/icc/docs/art98analysis.htm
[iv] Marina Aksenova, ‘International Criminal Courts and Tribunals’ (2017) 30 LJIL 475, 477
[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
Confiscation of performers’ royalties in criminal cases, specifically sexual offences
DAMIAN BEASLEY-SUFFOLK
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.
[iii] C Hale et al., Criminology (OUP 2005).
[iv] M O’Brien and M Yar, Criminology. The Key Concepts, (Routledge 2008)
Damian Beasley-Suffolk is a PhD student at Newcastle Law School, Newcastle University.
The inevitable insurgence of AI will transform the legal profession – this begs for accountability.
LAMBROS SPYROU
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 that lawyers 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, an AI 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 lawyers competed 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.” As Richardson 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. As Australian 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 the Law 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 the regulations 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, the AI 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 the above 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 by the 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 create unlimited emerging technologies, without regulations. Similarly, Google suggests that Governments take GDPR as the foundation to ensure safety, privacy, fairness and accountability. The OECD 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.
AT LEAST SIX IMPOSSIBLE THINGS CAN BE THOUGHT OF BEFORE BREAKFAST: IS A SINGLE TEST FOR A DUTY OF CARE ONE OF THEM?
INTRODUCTION
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.
The Exploitation of Student Renters
Originally posted on Challenges NI on 30th June 2020
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.
Gemma Mainwaring, the Student Union Welfare Officer for University of Gloucestershire wrote to local MPs calling for protection for students. In her open letter she stated a key point that “the business model of housing students is based on university physically occurring. The fact that it has come to an end early this year is part of the risk that must be absorbed by accommodation providers – not students.” Students should not be punished by being trapped in tenancy contracts that offer no leeway for exceptional circumstances when many other contractual agreements such as banks, phone and internet contracts have changed their terms to help customers during this financially precarious time. A report based on a YouGov survey concluded that 1 in 8 private renters have fallen behind with housing costs since the coronavirus crisis began, yet the vast majority of landlords refuse to offer any leeway for rent arrears from tenants who have always before paid full rent exactly on time.
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.
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