Effective Legal Assistance in Pre-trial Detention Decision-Making: Regional Policy Meeting, Brussels, October 2019

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Written by Dr. Tom Smith, Senior Lecturer in Law at UWE Bristol.

Pre-trial detention (PTD) – that is, the removal of the liberty of those not yet convicted of any criminal offence – is a significant issue across all jurisdictions. It inherently interferes with the liberty of legally innocent individuals in the most significant way available to the state. This has implications for the presumption of innocence and access to justice for defendants, and its impact beyond the legal status and rights of those affected can be substantial – particularly regarding employment, family relations, housing, and mental health. Levels of PTD and decision-making regarding its use have been of particular concern across the EU for more than a decade, (including in England and Wales (E&W), a jurisdiction with a particularly high prison population). Alongside initiatives and proposals at the institutional level of the EU, both academic and third sector institutions have, for a number of years, been researching the use of PTD in various jurisdictions, and lobbying for a renewed policy focus on tackling its overuse and improving practise. A primary example is the report ‘A Measure of Last Resort?’; published by Fair Trials in 2016, the ten country study (including E&W) provided a detailed picture of PTD use and practise across the region, highlighting both good and bad practise. Amongst the many relevant issues highlighted was the importance of legal assistance for defendants in PTD hearings.

The presence of a lawyer is undoubtedly vital to fairer PTD proceedings; but it is the effectiveness of that representation, beyond mere presence, which is key. Effective representation – which challenges and scrutinises PTD decision-making in a meaningful way – gives operational value to the right to legal assistance; and underlying this is the quality of the lawyer providing the service. In 2017, Fair Trials – along with partners in Bulgaria, Italy, Hungary and Greece – commenced a project focusing on the effectiveness of legal assistance in PTD hearings, to further examine how such representation impacts on the use of PTD; the current issues existing in practice; and how effectiveness can be enhanced, thereby improving PTD decision-making. In October 2019, I attended a regional policy meeting in Brussels organised by Fair Trials (entitled ‘Effective Legal Assistance in Pre-trial Detention Decision-Making’) so that some of the findings of the project so far might be highlighted and discussed amongst practitioners, academics and policy makers from across Europe. This blog aims briefly highlight some of the major key issues raised during three panel sessions (consisting of a moderator and four practitioners from the project jurisdictions).

Panel 1 focused on the access of suspects and defendants to legal assistance in PTD proceedings. The primary issues raised included the limited time and facilities for preparation available to defence lawyers, coupled with pressure from courts to ‘get on’ with cases. Absence and poor quality of translation services for non-domestic defendants was highlighted as a problem, particularly since PTD disproportionately focused on such persons (as well as marginalised domestic citizens). The panel highlighted the problem of lawyers who lacked sufficient independence from the police/prosecution (although also pointed out that legal reforms in some jurisdictions had recently attempted to deal with this – but described the current situation as ‘new law, old practice’). Additionally, panelists emphasised the inadequate information provided to clients about their rights. Overall, the panel suggested that the role of the lawyer needed to be ‘concrete’, and provide more than a superficial form of legitimacy to what were ultimately unfair proceedings – particularly since courts would simply assume that there were no issues if a lawyer was present.

Panel 2 (moderated by myself) focused on improving the effectiveness of legal assistance. Panelists highlighted that, to truly ensure equality of arms, lawyers needed to be meaningfully acquainted with case files and materials in advance. However, problems with access (particularly for certain types of material) and time for study were again considered a major problem. It was pointed out that inaccessible drafting and organisation of case files hindered effective legal assistance, and that clear scheduling of materials would improve this. Notwithstanding the above, one panelist highlighted good practise in their jurisdiction, describing how full access to police/prosecution case files was granted to lawyers from the outset, with no ‘cherry picking’ of materials. This was bolstered by a minimum of 48 hours for lawyers to study materials and the support of the judiciary, who were generally reluctant to restrict access to files. The panelists highlighted the importance of knowledgeable, qualified and experienced lawyers, who were motivated to properly engage with cases and personally attend consultations with clients. This was, it was argued, supported by true independence and proper payment for the work done. However, good practise was also undermined by practical issues such as major delays in payment of legal aid to lawyers and lack of private physical spaces for consulting with clients. This would present serious difficulties for lawyers attempting to build a relationship of trust with their client. It was concluded that legal assistance needed to be ‘real’ and not simply ‘theatre’, and that lawyers can be both an assistant (not an obstacle) for courts, and a mediator between courts and defendants.

Panel 3 focused on the role of lawyers in promoting alternatives to detention. A central problem in this regard was the issue of credibility of alternatives; that is, a lack of trust in the effectiveness of non-custodial pre-trial measures on the part of the judiciary. Panelists felt that public/media pressure and risk aversion played a role in the under-use of alternatives to detention, which was not helped by a lack of time for all parties to fully consider alternative proposals. In some cases, poor inter-agency working appeared to undermine use of conditional release; for example, drug rehabilitation was described as being under-used in one jurisdiction because the courts and the medical profession administering rehabilitation spoke ‘two different languages, in two different worlds’. It was felt that lawyers could play an important role in promoting the use of alternatives, but that there needed to be more variety of alternatives available and some creativity as regards to their use in different cases. One panelist felt that alternatives were not simply under-used due to a lack of credibility, but due to the mindset of courts which regarded PTD as a ‘first resort’. In some cases, it was felt that prosecution/police used PTD as an investigative tool that could frustrate the accused and increase the likelihood of a confession. Overall, it was felt that lawyers needed to do more to establish a relationship of trust with the courts which would enable them to more credibly suggest alternatives to PTD.

Overall, the meeting identified a variety of key themes related to more effective legal assistance in PTD hearings, including: early and continued access to materials and information; trust; independence; privacy; quality and experience of lawyers; adequate translation; adequate time for preparation; and sufficient and timely remuneration. A key call by Fair Trials, and the project partners, was for the EU to make PTD a policy priority, in a similar form to the 2009 roadmap on minimum procedural rights of defendants in criminal proceedings. By establishing clear minimum standards across Europe in this key aspect of PTD practice, the quality and effectiveness of legal assistance could be significantly improved. Equally, individual jurisdictions (including E&W) also need to take ownership of this issue and act on some of these problems, so that PTD decision-making is robust and fair – and, as a consequence, detention is used appropriately and proportionately.

Photo by Fair Trials.

UWE lecturer, Michael Woodiwiss, recognised as a distinguished scholar in organised crime research

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Dr Michael Woodiwiss, Senior History Lecturer at UWE Bristol, has been recognised as a distinguished scholar in organised crime research by the International Association for the Study of Organized Crime for his contributions over the course of his career. He will receive his award at a ceremony on Thursday, November 14 at the American Society of Criminology at their annual meeting in San Francisco where he will be awarded a plaque in his honour.  

Michael has been working at UWE Bristol since 1996 and is now a Senior Lecturer. His contributions include four acclaimed monographs, notably and most recently Double Crossed: The Failure of Organized Crime Control (Pluto and University of Chicago Press, 2017) and many more articles and chapters in books. Recent past winners of the award that demonstrates international esteem include Professor Michael Levi, University of Cardiff, Professor Jay Albanese, University of Virginia Commonwealth, and Professor James Jacobs, New York University, School of Law. 

Michael is currently working on an interdisciplinary project with Mary Young (Law) about the construction of the international anti-money laundering regime.  

Football Fans, Policing and Article 5

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In 2015, 10 Bristol City Football Club (BCFC) fans travelled independently to Birmingham to watch a game of football. On arrival, West Midlands Police (WMP) had identified them as ‘known hooligans.’ They were surrounded and escorted back to the train station where they were told to leave the city. The police relied on ‘dispersal powers’ vested to them under s 35 Anti-Social Behaviour, Crime and Policing Act 2014. This gives a constable in uniform the authority to direct a person to leave an area if s/he has reasonable grounds to suspect that the individuals behaviour ‘has contributed or is likely to contribute to members of the public being harassed, alarmed or distressed or, crime or disorder in the locality’. The 2014 introduction of this legislation replaced s 27 Violent Crime Reduction Act 2006, which in similar fashion also authorised a constable to ‘disperse’ provided disorder, or potential disorder, was alcohol related.

As the statement from the BCFC Supporters Club and Trust outlines, the 10 BCFC spectators always maintained that they had not, or had no intention, to partake in any disorder. They claimed they had been ‘falsely imprisoned’ on their ‘escort’ back to the station: arguably a breach of Article 5 of the European Convention on Human Rights (Right to Liberty). Indeed, a constable may inform the individual/s to leave via a route if s/he wishes, but the legislation mentions nothing with regards to an ‘escort.’ That being said, escorts/containment can be justified if it is to ‘prevent and imminent breach of the peace.’ What was also slightly unusual regarding this case is that a serving police officer with Avon and Somerset Constabulary had agreed to be a witness in court in support of the 10 BCFC spectators. Nevertheless, this day did not happen as 24 hours prior to the court date, WMP offered to ‘settle’ out of court.

Indeed, the use of ‘dispersals’ amongst football fans has been a cause of concern amongst some academics and the Football Supporters Association for some time. In 2008, a number of Stoke City supporters visiting Manchester were escorted out of a pub, placed on buses and driven ‘home’ under the old s 27 powers. In total, Greater Manchester Police agreed an out of court settlement totalling around £200,000. Regarding the newer powers under s 35, a mini-bus carrying Wrexham supporters was stopped by Humberside Constabulary whom ordered to bus to turn around and return to Wrexham. The issue here, was that the police had used the powers in a blanket manner in ordering the mini-bus and all its passengers to return, as opposed to carrying out individual assessments. This led to a successful challenge in court from the Wrexham spectators whom received compensation.

What this demonstrates, is that the legislation can, and has, been used in an indiscriminate and often overzealous manner towards to fans of football, often without any real evidence as to why it is believed they pose a risk to disorder and arguably, and without any consideration towards there Article 5 obligations. Indeed, there is arguably a culture of policing towards football that requires change. A 2018 article by Dr James Hoggett and then Chief Superintendent Owen West of West Yorkshire Police advocate the use of Police Liaison Teams (PLTs) within football policing, rather than the use of the traditional ‘command and control’ approach. Common in the use of protests, PLTs have the ability to better read situations and ensure there are no unnecessary interventions from officers who may perceive a situation to be disorderly. For the authors however, the biggest barrier in adopting this style of approach to football is reluctance from many police officers themselves.

Perhaps indicative of this is the planned operation for the game between Portsmouth and Southampton on Tuesday 24th September 2019. Whilst in no doubt that this is a game that will be full of high emotions due to its ‘derby’ nature, a statement from the Commander overseeing the event has outlined that to ‘keep people safe’ help will be drawn in from ‘the dog units, the mounted section, roads policing, public order teams, drones and the use of the National Police Air Service.’ Clearly, an expensive use of resources. It has been repeated several times that on the face of it, football is changing for the better. It is important to note for the balance of fairness and relating back to WMP, that, to quote Amanda Jacks at the Football Supporters Association, ‘WMP did not have the best of reputations but in recent years, they’ve worked extremely hard and in my view, are one of the most progressive forces in the country.’ Perhaps, and with many things in life, it is a case of learning from mistakes, albeit expensive mistakes. Nevertheless, it is the often over-zealous and outdated mind set of many in authority that holds back a degree of change that is needed.

Matthew Hall

On the Basis of the 17 December 2018 Request of Consultations by the EU with Korea Regarding the Implementation of the Sustainable Development Commitments under the EU-Korea Trade Agreement, Discuss how Labour Standards can Be Maintained via Free Trade Agreements

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This post (edited for publication) is published on our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following the blogging success over the last couple of years, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noëlle Quénivet. Using innovative learning and teaching methods, Noëlle developed this module to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

By Anita Dangova

Introduction

The social ambition of the European Union to enforce and maintain sustainable development commitments has led to a radical increase of the incorporation of the International Labour Organisation’s (ILO) labour standard conventions into European Union (EU) free trade agreements (FTAs) with third parties over the past two decades (at 265). In this blog post, I will show that labour standards can be effectively maintained via FTAs through a system of consultative measures. Although such a system can be criticised for being a ‘soft’ mechanism of dispute settlement it has proven successful to enforce labour standards agreed upon in FTAs between the EU and States.  Using the recent consultations request by the EU regarding the failure of implementation of sustainable development provisions by South Korea as a case-study, I will particularly highlight how this soft resolution mechanism works with developed and developing states.

The EU’s Approach to Resolving Disputes

The EU ensures that disputes related to maintaining the ILO’s labour standard conventions in its FTAs are resolved through a cooperative and soft dispute resolution mechanism (Postnikov & Bastiaens, ‘Does Dialogue Work? The Effectiveness of Labor Standards in EU Preferential Trade Agreements’ (2014) 21 JERR 923, 925). This stands in contrast to the direct sanctions system used by the US as, in case of a dispute between the EU and a non-member state regarding failure to apply an FTA’s labour standards provisions, consultations are usually a pre-condition (Postnikov & Bastiaens). The table below explains the EU’s idea of resolving a dispute in a fair, friendly and equal-party manner by consultations, and not sanctions. That is why, in my opinion, the FTAs’ consultations system can be effective in maintaining labour standards’ provisions.

Why consultations?
They are known as means of peaceful dispute settlement, as well as a tool towards a proactive work of both the parties (see Peters, ‘International Dispute Settlement: A Network of Cooperational Duties’ 
(2003) 14(1) EJIL 1, 2).
The consultative measures encourage a flexible resolution process, 
where parties have control over the procedure, being able to set the rules, 
manage the time and conduct in a way they deem most appropriate (at 9).
However, as stated by the International Court of Justice, consultations are to be conducted by the parties in a meaningful way with a view to agreeing in good faith (para 85).
Therefore, they are not used as a tool of showing the power of one party, for example the EU, over a weaker party, for instance South Korea. 
This method means that  the dispute is explored within its context. 
This ensures that the parties are more likely to comply with the relevant agreement in pursuing the common goals of the parties. 

© Anita Dangova

How Does that Work with Developed States? 

A good example to show how such a mechanism works is the recent discussions held in the framework of the EU-South Korea bilateral FTA. Indeed, a recent consultations request was made by the EU after establishing that Korea had failed to ratify the ILO conventions regarding the right of freedom of association and collective bargaining.  Under article 14.3(1) of the FTA, either party can commence consultations, which are to be conducted in good faith and ‘with the aim of reaching mutually agreed solution’, when there is an issue regarding the implementation of the ILO labour standards, as defined under Chapter 13. Under article 14.4, unsuccessful consultations would initiate an arbitration procedure, leading to further costs, delay of settlement and intensified pressure. These consequences, therefore, can encourage Korea to ‘change its behaviour’ at the consultations, by acting in a meaningful way and eventually ratifying the labour standards, which the State is legally bound by the agreement to do. 

Another example is the EU-Canada Comprehensive Economic and Trade Agreement (CETA) agreement under which matters, related to the implementation of labour standards, can be resolved with a recourse to consultations’ request, with the objective to reach a ‘mutually satisfactory resolution’ (article 23. 11). Therefore, we can see that the EU FTAs generally encourage maintenance of the labour standards provisions through soft dispute settlement mechanism, incorporating consultations. This additionally shows that the mechanism’s effectiveness in encouraging developed states to ratify the labour provisions, which they agreed to be bound by, is considerably recognised both in the law and in practice. 

What about Developing States?

Under article 50 of the Cotonou Agreement, the parties, i.e. the EU and African, Caribbean and Pacific countries, reaffirm their commitment to enforce the application of five core ILO labour standards conventions (Abolition of Forced LabourFreedom of AssociationCollective BargainingNo DiscriminationAbolition of Child Labour.) The first step of ensuring the effective implementation of article 50 is to conduct a political dialogue (article 8). This again reflects the EU’s idea of soft, yet effective, cooperation. When all options of dialogue are exhausted, the parties can commence diplomatic consultations (article 96(2)(a)). The provision expressly states that the consultations shall be conducted in a manner, appropriate to find a solution. In case of a failure to find a solution, ‘appropriate measures‘, such as compensation, can be taken. Aware of the subsequent pressure, which will be caused by those measures, the developing states will seek to avoid paying compensation and will thus after the consultations be incentivised to ratify the relevant labour standard conventions. That is why it can be argued that the consultations mechanism, adopted by the FTAs, is an effective way of maintaining labour standards in developing states. 

The first stage (at 25) of labour standards dispute settlement is the following:                  

Statistics Never Lie 

© Anita Dangova (based on information provided in Reich, The Effectiveness of the WTO Dispute Settlement System: A Statistical AnalysisEUI Working Papers, Law 2017/11)

To assess the effectiveness of consultations more generally we can consider the WTO’s dispute resolution system as set out in article 4 of the Dispute Settlement Understanding. In case of a dispute between two member states, either one is capable of initiating a consultations request.  Between 1 January 1995 and 31 December 2016, the system has dealt with 573 requests for consultations. Out of this number, it has issued about 350 mutually agreed dispute settlement decisions (see Reich, The Effectiveness of the WTO Dispute Settlement System: A Statistical AnalysisEUI Working Papers, Law 2017/11, at 4). Therefore, this constitutes a strong evidence that consultations are generally an effective way of settling disputes in the field of economic law.  

Conclusion

In this blog post I have argued that the FTA consultations mechanism is an effective way of ensuring the implementation of labour standard commitments, based on the EU soft consultative dispute resolution system. I have, furthermore, showed that this system works with developing and developed states, basing my analysis on examples such as the Cotonou, EU-South Korea and CETA agreements. 

Pro Bono at Bristol Law School: Video

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UWE Bristol Law students speak about the benefits of taking part in Pro Bono activities.

The Pro Bono Unit enables UWE Bristol Law School students to provide free legal advice services to members of the community. We have spoken to several students about their experiences of getting involved in Pro Bono.

Here’s what they had to say:

“For my career it has helped me get work experience. I think that being involved in Pro Bono will give you that confidence to put that on your CV and when law firms can look at you being involved, they definitely would want to take you on and give you some more experience because they trust in you.”  – Manmeet Singh, Law Student

“When I was at UWE I got involved in an organisation called Street Law which is a programme that goes to help teach younger children the basic of laws. So, we would be teaching them things like civil and criminal law, the advocacy process and just a general introduction to studying law.” – Isaac Cole, Trainee Solicitor 

“It helped me build my confidence as before I couldn’t really speak in front of a group of people and now I’m accustomed to holding events of upwards of 300 people.” – Freya Whiting, Law Student

“The Pro Bono experiences I’ve done has helped me for my career in a sense that it’s developed my confidence when being in an interview situation. It’s also helped in a sense that it’s helped me further understand why I want to pursue this career.” – Rory Jutton, LPC Student

“I would recommend students to do Pro Bono activities or get involved with Pro Bono. The main reason is employability, you can’t really put a price on that – it’s invaluable experience, it’s satisfying and it’s incredibly rewarding.” – Dominik Morton, Pupil Barrister

If you would like to know more about Pro Bono at UWE Bristol please visit our webpage.

UWE Bristol wins Guardian Award for Equity Programme

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We were delighted to be finalists at this year’s Guardian University Awards but are over the moon to have actually won! This award means so much to everyone who’s been involved in developing and delivering the Equity Programme ever since our first pilot event in October 2016. It’s been a long and sometimes challenging journey to introduce a progressive positive action scheme like this. Working with students, local employers and national diversity thought leaders, we’ve created something which the University can be really proud of and which offers BAME students a chance to leverage leadership and enterprise skills as they embark upon their graduate careers. 

The Equity programme has 4 pillars: 1-2-1 mentoring, identity and leadership coaching, enterprise education workshops and large evening networking and guest speaker events. National statistics on the performance and progression of ethnic minorities in the labour market (as highlighted by the MacGregor Smith Race in the Workplace Review 2017) have to change and we are proud to be leading the way on the role universities can play in this regard. Finally, we want to thank every facilitator and the external guests who attend our events and enrich our student experience.

Equity evening events run throughout the academic year and are open to the public to attend. We warmly encourage alumni to consider attending the evening events to give our students networking opportunities as well as being part of the collective challenge to diversify the talent pipeline. To find out more please visit www.uwe.ac.uk/equityor email raceequality@uwe.ac.uk

Post written by Dr Zainab Khan- Equity Programme Lead

Take advantage of degree apprenticeship SME funding with UWE Bristol

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15 May 2019 15:00 – 17:00

Register here

Are you interested in upskilling your workforce and does the cost of training seem a barrier to accessing local talent?

This event provides an opportunity to hear first-hand accounts from existing businesses who have apprentices at UWE, and how to make it work. In addition to this, we will be highlighting upcoming degree apprenticeships and further opportunities for your business to train your employees at degree level with the funding available.

UWE Bristol is the only university in the region with funding from the Education and Skills Funding Agency (ESFA) to support non-levy employers and has secured funding to support apprentices from Small and Medium-sized Enterprises (SMEs).

David Barrett, Director of Apprenticeships at UWE Bristol, will welcome you to the event and alongside the Degree Apprenticeship Hub team will be able to help identify your training needs and suitable solutions.

Spaces are limited for this event, so please register below.

If you have any questions about this event or degree apprenticeships please feel free to contact Ellen Parkes.

We are looking forward to meeting you and beginning the degree apprenticeship partnership journey.

The event takes place in the University Enterprise Zone on Frenchay Campus from 15:00 – 17:00.

Register here

Corruption in the Global Era: Causes, Sources and Forms of Manifestation (The Law of Financial Crime)

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New book publication by Lorenzo Pasculli (Editor), Nicholas Ryder (Editor)

Professor Nicholas Ryder’s new edited collection “Corruption in the Global Era” has been published with Routledge.

Corruption is a globalising phenomenon. Not only is it rapidly expanding globally but, more significantly, its causes, its means and forms of perpetration and its effects are more and more rooted in the many developments of globalisation. The Panama Papers, the FIFA scandals and the Petrobras case in Brazil are just a few examples of the rapid and alarming globalisation of corrupt practices in recent years. The lack of empirical evidence on corrupt schemes and a still imperfect dialogue between different disciplinary areas and between academic and practitioners hinder our knowledge of corruption as a global phenomenon and slow down the adoption of appropriate policy responses.

“Corruption in the Global Era” seeks to establish an interdisciplinary dialogue between theory and practice and between different disciplines and to provide a better understanding of the multifaceted aspects of corruption as a global phenomenon. The book gathers top experts across various fields of both the academic and the professional world – including criminology, economics, finance, journalism, law, legal ethics and philosophy of law – to analyze the causes and the forms of manifestation of corruption in the global context and in various sectors (sports, health care, finance, the press etc.) from the most disparate perspectives.

The theoretical frameworks elaborated by academics are here complemented by precious insider accounts on corruption in different areas, such as banking and finance and the press. The expanding links between corrupt practices and other global crimes, such as money laundering, fraud and human trafficking, are also explored. The book is an important resource to researchers, academics and students in the fields of law, criminology, sociology, economics and ethics, as well as professionals, particularly solicitors, barristers, businessmen and public servants.

Reducing the use of pre-trial detention in the Chinese criminal justice system

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By Dr Tom Smith

In February 2019, Dr Tom Smith spent a week working in China as an expert consultant for a research and training project, entitled ‘Reducing pre-trial detention through improved defence and non-custodial alternatives’. The project forms part of a broad reform programme aimed at improving pre-trial detention practice in the Chinese criminal justice system, by lower detention rates; improving defence rights for suspects; and widening the use of non-custodial alternatives (such as conditional bail). A significant part of the reform programme is the introduction of pre-trial detention hearings (known as ‘official arrest hearings’). These can be most closely compared to a defendant’s first appearance in a Magistrates’ Court in England and Wales (although with a number of distinct differences). At present, these hearings are being piloted in a number of cities across China, with the aim of increasing the participatory nature of proceedings; improving the transparency of the process;  and enhancing scrutiny of detention decision-making. The project is being co-ordinated by the Great Britain China Centre (based in London), in partnership with academics from the Centre for Criminal Justice Reform at Renmin University of China (Beijing), and the Supreme People’s Procuratorate of the People’s Republic of China (the national agency responsible for regulating criminal prosecution and investigation).

Tom Smith and Luke Meyer at Shenzhen Procuratorate training day

Tom’s primary role in this phase of the project was the design and delivery of training sessions for a variety of Chinese criminal justice professionals, including procurators (whose role is comparable to both a Magistrate and a prosecutor); defence lawyers; and police officers. The purpose of the training was to improve the professionalism of the procurators, lawyers and officers in two pilot cities (Shenzhen, in Guangdong province; and Hefei, in Anhui province). In addition, the training aimed to influence their approach to considering the protection of human rights in criminal justice proceedings by introducing perspectives on best practice in England and Wales, whilst providing a critical insight into our pre-trial detention system. The training sought to equip defence lawyers with knowledge and skills applicable to their role in pre-trial detention hearings, which is essentially an adversarial one. Tom was accompanied by criminal defence lawyer Luke Meyer, a Partner at Tuckers Solicitors in Kent. Together, they co-designed the structure of and materials for the training sessions (lasting a day in each pilot city), combining both academic and practical perspectives. The training covered topics such as the current structure of English and Welsh law on remand (i.e. court bail and pre-trial detention of defendants); insight into day-to-day practice in police stations and courts; a review of existing research on pre-trial detention in England and Wales (largely based on Tom and Professor Ed Cape’s report, ‘The Practice of Pre-trial Detention in England and Wales’); and a series of thematic sessions examining criminal legal aid, the use of video-link technology, alternatives to detention in custody, and impact on vulnerable groups of defendants.

Tom Smith and Luke Meyer at Shenzhen Procuratorate training day

Tom and Luke delivered the first training day in Shenzhen on February 22nd and 23rd, alongside sessions by leading Chinese academics and senior figures from the Supreme People’s Procuratorate. On February 25th, they observed an official arrest hearing in Hefei, via video link technology. This offered first-hand experience of the practical implementation of the reform programme, involving a real-life criminal case. The figures involved included two procurators (acting in a similar capacity to Magistrates); a defence lawyer; two police officers (acting in a similar manner to prosecutors in England and Wales); and the defendant (who appeared via video-link). After the hearing concluded, Tom and Luke were invited to ask questions of the deciding procurators in the case as well as the participating police officers. This was a rare privilege: this might be equated to the opportunity to question a bench of Magistrates and a prosecutor about their handling of a remand decision, directly after completing it – something that simply would not happen in England and Wales. This underlines how unusual and important this opportunity was, and provided a significant and unique insight into the progress of the reform programme on the ground. The second day of training was then delivered in Hefei. During both training days, and during associated networking events, Tom and Luke met with procurators, lawyers, academics, and senior local and governmental officials, and answered a variety of questions about English and Welsh law and practice. They were also invited to offer recommendations for continuing the progress of the project.

Tom Smith at Hefei Procuratorate training day

The opportunity to be involved in this highly significant reform programme was an undoubted privilege. The processes being introduced in China are novel to its criminal justice system, which does not have the same legal traditions and adversarial roots as English and Welsh criminal procedure. The energy and effort that is being directed towards the programme by the various parties involved was impressive and engaging. It is worth remembering that these were two of several pilot cities across the country, involving and effecting thousands of people. Above all, the programme has clear potential for positive impact on the lives of criminal defendants in China, emphasising the protection of human rights, increasing the scrutiny of decision-making, and working towards reduced use of detention before trial. Such goals are shared by many jurisdictions, particularly in light of the United Nations’ Sustainable Development Goals (SDGs), one of which (SDG 16) includes reduction of unnecessary pre-trial detention. This is therefore likely to be part of the long-term agenda for reform in China and beyond. The chance to contribute to this project, by sharing knowledge and understanding of pre-trial detention practice in England and Wales, was a very positive experience. It is hoped that there will be further involvement in this project, as well as a wider strengthening of ties between UWE and China.

Featured researcher: Dr Thomas Smith

Thomas is an in Law and member of the Centre for Applied Legal Research. His research areas include pre-trial detention and bail; disclosure of evidence in criminal proceedings; criminal defence lawyers; access to justice and criminal legal aid.

Email: Thomas8.Smith@uwe.ac.uk Phone: +4411732 84617

Jack Grealish and the Media Response

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By Matt Hall

Over the last week or so, football has been the focus of much negative press attention stemming from incidents of fan/player altercation. In Scotland, Glasgow Rangers captain James Tavernier was approached by a spectator in a game versus Hibernian. Shortly after in England, Aston Villa player Jack Grealish was hit from behind during a game against Birmingham City. The incident involving Jack Grealish was highly reported across the media and perpetrator, Paul Mitchell, was subsequently sentenced to 14 weeks imprisonment.

The defendant was charged with battery contrary to s 39 Criminal Justice Act 1988 and the football-specific offence of ‘pitch encroachment’ contrary to s 4 Football Offences Act 1991. As the blog by The Secret Barrister helpfully outlines, the maximum sentence for battery is 6 months, and taking in to account the guilty plea at the earliest opportunity and the then entitled one third deduction, the magistrates could have gone to 17 weeks. The maximum sentence for ‘pitch encroachment’ is a fine. Therefore, 14 weeks was certainly the top end of the scale and on the face of it, the sentence appears stern. Moreover, the defendant was also handed a 10-year Football Banning Order contrary to s 14a Football Spectators Act 1989.

On a note regarding the sentence handed down to Mitchell, many police officers took to Twitter to highlight the swift justice ( just a little over 24 hours) and the severity of the sentence when compared to those who assault police officers. For example, a defendant recently convicted of assault under the 2018 Assaults on Emergency Workers (Offences) Actwas fined £120 and ordered to pay £50 compensation to the police officer he punched (see here). It has been suggested (in the absence of Sentencing Remarks) that the severity of the sentence handed to Mitchell was driven by the need for a deterrent, a legitimate aim of sentencing. Clearly, police officers may have a point here in asking where the deterrent is for those who assault officers going about their job. It is hard to imagine that a similar attack away from a football stadium would have resulted in a 14-week custodial sentence.

Despite the severity of the sentence, it is the knee-jerk and, to quote Stuart Hall, ‘short, simplifying and brutal’ media coverage and commentary that often follows disorder related to football that has been concerning. Following the incident involving Grealish, The Guardian reported that ‘football is urged to protect players’ whilst ex-footballer and current England Women’s manager Phil Neville drew the comparison to tennis player Monica Seles who was stabbed in the back during a tennis match in Hamburg in 1993, outlining his fears that if things do not change ‘a player will end up stabbed.’ The idea of fences returning to the stands was also mentioned and ex-footballer David Cotterill went one step further and suggested that armed police were needed at football matches to assist stewards. Whilst ex and current footballers are well within their rights to worry about their safety, some of the reporting and suggestions that the media give credit to are clearly ill-thought and nonsensical. Indeed, the media has often contributed to the moral panic that ensues when incidents such as this occur at football.

Photo by Vienna Reyes from unsplash.com

Emma Poulton has argued that the ‘hysterical headlines, emotive language and graphic imagery’ that often follow football related disorder contribute to the public viewing all fans of football as ‘hooligans,’ again, a concept that lacks a universal definition and is a construct of the media whom use it to cover an array of behaviour within the football context. What follows, and is true in this instance, is then an outburst for ‘collective punishment’ and headlines such as that in The Guardian that football needs ‘to do more’ to protect players or that armed police are necessary. Indeed, when alcohol was seen as a partial cause in 1985 to the Heysel Tragedy, again, fuelled by newspaper headlines, Parliament were quick to pass legislation that criminalised alcohol possession in direct view of the pitch. In similar vein following the Grealish incident, one media outlet published the opinions of a police officer who believes that cocaine is now a cause of much disorder at football.

Regarding Grealish, some perspective is clearly needed. The individual who attacked him was acting alone. Moreover, football fans are heavily policed and regulated in terms of legislation. As noted above, ‘pitch encroachment’ is a football specific offence and The Home Office’s own statistics demonstrate that arrests for ‘pitch encroachment’ are minimal; 188 arrests in 2015-16; 204 in 2016-17 and; 191 in 2017-18. I would argue many of these arrests take place during times of goal celebrations and not spectators running on the pitch to attack players. Moreover, and taking into account the millions who attend football, this is clearly a minute percentage. This was an isolated innocent and one that does not warrant the knee-jerk responses and ‘hysterical’ headlines that have followed.

It must not be forgotten that football is not unique in attracting disorder; many other sporting and social events attract disorderly behaviour, yet very rarely, if at all, do they attract such stigmatising or emotive headlines or suggestions. A prime example of this would be disorder at horse racing (see disorder involving 40-50 people here) or the 71 people arrested at the 2017 Glastonbury Festival for various offences ranging from drug offences, ABH and possession of an offensive weapon. The point here, is that football is targeted by the media and some members of society in a manner that no other events are.

Clearly, the media and commentators play a role in how football and its fans are perceived. The moral panic that ensues football is unique, in that no other sporting or societal event attracts such condemnation; condemnation that has led to an abundance of football-specific legislation being implemented. Therefore, and despite the media soundbites, football is heavily protected. There is no need to return to fencing in front of the stands, and clearly no need for officers at football to be armed. Statements like this by the media are irresponsible and indicative of what football and its fans have had to witness since the mid twentieth century. The result is a moral panic and a tarnishing of all spectators who pay a lot of money to watch football. As commented by Chief Superintendent Owen West of West Yorkshire Police, ‘one person did an idiotic and criminal act.’ This should not be forgotten, and you cannot legislate for the actions of one mindless individual.

Photo by Tom Grimbert from unsplash.com

Read more from Matt Hall in his previous blog post Matthew Hall presents “Thatcher’s Legacy on the Narrative Surrounding Fans of Football” at the Football Collective Conference.