Case study: UWE Bristol Law Alumni

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My name is Miriam C Nkomalago, a UWE Bristol alumni from the graduate year of 2018. I transferred to UWE Bristol in my last year of LLB from HELP University, Malaysia, through the UK Law Degree Transfer Program offered at HELP University.

Moving and studying at UWE Bristol was very life changing for me. I enjoyed the hospitality shown to me by my flat mates at the Hollies, where a lot of good memories were created with them.  The career fairs hosted by the University enabled me to network with individuals creating great impact in their communities and helped me get a volunteer opportunity at Nilaari Agency.

Nilaari was home to me. Everyone was keen to help me learn about their work and participate in their decision meetings and events. Through Nilaari, I was able to learn a lot about their efforts in dealing with mental health in Bristol and the whole of UK. I was able to understand the harsh living conditions and the impact it has on the mental health of the immigrants and people in BAME communities. My time at UWE gave me the chance to explore a leadership position as the Vice President of the East African Society. This position taught me about the different personalities and characters we associate with and how to communicate and cooperate with one another positively.

Another thing that made my time at UWE worthwhile was the 24 hour access to the library facilities at Frenchay campus. I never liked studying or working in the library because I preferred my own space; but when I moved to UWE, a lot of my work was done in the library because of the options like the ‘silent floor’ which was rarely fully occupied and there were no distractions when working.

Once I returned back home, I founded a legal database for law students and lawyers in Tanzania, Lex Scripta. The platform provides vital legal resources to legal scholars and practitioners in Tanzania. It currently provides access to cases, Acts and student written articles for free. Moreover, I work closely with law students by teaching them ways to navigate through law school and other practical skills they need in order to catch up with the changes of the legal field.

I am a strong believer that an individual’s personal development and career growth can be positively enhanced through the accessibility and affordability of the right studying and working resources. With this platform, I get to work closely with law students and lawyers in my country by enhancing their research and practical skills through short online sessions and workshops.  In the short period of working with them, students have reached out to me with positive feedback that Lex Scripta has been of help in their studies by being able to research and access case laws, having ease in attempting and answering exam questions because they now understand what answers to give the examiner and more. So far, I already see myself creating the difference I envisioned for Lex Scripta and I am looking forward to reaching out and helping more law students and lawyers.

To stay in touch with UWE Bristol and access news and benefits for alumni, visit our Stay Connected web page.

Pre-trial detention decision-making during the COVID-19 crisis: the urgent need for open justice

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In April 2020, Tom Smith, Senior Lecturer in Law at UWE Bristol, published a short article for criminal justice NGO Fair Trials, discussing the use of pre-trial detention during the Covid-19 emergency. The full post was written by Tom Smith and was first published on the Fair Trials website.

Whilst the COVID-19 pandemic has the majority of the world confined to their homes on lockdown, vital public services – most visibly healthcare – continue to operate in very difficult and risky circumstances. The criminal justice system is one such public service. Whilst most jurisdictions have made significant changes to their working practices in response to the pandemic, work must continue to ensure that justice is delivered fairly and effectively. An essential element of doing so is ensuring justice is seen to be done; this principle of open justice is crucial to a fair and effective justice system, but is currently under threat. In England and Wales (E&W), this is particularly so in relation to cases involving pre-trial detention (PTD), which are, at present, the main work of the criminal courts. The vast majority of cases deemed non-vital are currently not being heard, most notably in magistrates courts (in which all cases start and most cases conclude). HM Courts and Tribunals Service (HMCTS), which has been publishing daily operational updates, identifies ‘overnight custody cases from police stations’, ‘productions from prisons’, and ‘applications to extend custody time limits’ as the only work currently being conducted by the Crown Prosecution Service (which prosecutes most criminal cases). All involve PTD. Overnight custody cases are, in effect, the first appearance at court of someone charged with an offence. If detained by the police after charge, this must happen the next working day. Productions from prisons will also normally relate to a relevant time limit on PTD, such as the requirement for a defendant to be returned to court within 8 clear days after their first detention. Custody Time Limits (CTLs) apply to all cases involving PTD, and vary depending on the seriousness of the charge. If the limit expires, the defendant must be released on bail – hence the need to return them to court to extend a limit (which courts have the power to do). Other work is identified as continuing in magistrates courts, but the above will be the main case load currently being dealt with – and all involve, exclusively, PTD decision making. 

This is important for several reasons. There are no new jury trials; the Crown Court (the higher criminal trial court) will only cover urgent work. The senior courts, such as the Court of Appeal (which cover a fraction of the cases dealt with in trial courts) are similar. Therefore, dealing with PTD decisions are and will represent the primary day-to-day activity of the criminal courts system as a whole for the foreseeable future. This makes sense in the current situation, but raises questions about pre-existing issues related to PTD. For example, concerns have been raised about the brevity of PTD decision-making, lasting on average a few minutes. Set against a general atmosphere of ‘urgency’ both outside of and within the courts, this may be exacerbated. Similarly, previous concerns about limited reasoning for PTD decisions may be affected by the desire to work swiftly in the current circumstances. Both of the above may also be impacted by the now pervasive use of video link technology (VLT) to avoid the attendance of all parties at court. This is clearly justifiable for public health reasons and the safety of all involved; but this has also been implemented very quickly. VLT has been criticised in the past for not facilitating proceedings adequately in terms of quality, reliability and engagement of all parties involved (particularly defendants). In terms of speed and reasoning, one would hope that more time would be taken over VLT to ensure decisions are thorough and clear. But it might be argued that technology tends to enable and encourage us to do things more quickly. There is a risk this could deepen the problems above. 

The same might be said of disclosure of information and evidence in advance of PTD hearings. Defendants and their lawyers have previously reported consistently failing to be given full information prior to consultation and representation before a court on PTD matters. Lawyers would often receive such information shortly before or even during hearings, sometimes by physically being shown material in court. This may be even more problematic in the current circumstances if none of the parties are actually present in the same room. One must wonder whether remote conduct of PTD hearings will help or hinder defence lawyers in this regard; after all, sharing of evidence prior to the pandemic was done entirely electronically, and yet has consistently been a problem. It is also worth noting that it appears that most PTD decision making in the courts is currently being made by District Judges (DJs, professional judges) rather than a bench of lay magistrates (ordinary, legally untrained citizens). Previous research  has suggested distinct modes of practice depending on the decision-maker, with DJs tending to be quicker, but better in terms of reasoning. Some research has also shown a tendency of DJs to be more willing to detain defendants, though this has varied. Again, this factor could have some impact on PTD decision-making over the coming months. 

Aside from aggravating existing problems in PTD practice, the current situation creates new issues. It has been pointed out by many that it is imperative to reduce the use of detention generally (including PTD) for public health reasons. Keeping defendants out of custody where possible and lawful should be a priority. As such, decisions need to be well considered and not relapse into habitual ways of approaching cases. Previous research has shown PTD practice stubbornly resistant to change in many respects (with some exceptions); we must therefore hope that the long-term issues highlighted above do not restrict this important need to think differently about detention in light of Covid-19. It is hard to say how much of a problem the issues above will be; these suggestions are purely speculative, but that is for good reason. At present, in E&W, it is almost impossible for a researcher or the public to observe PTD decision-making in the courts: they are effectively inaccessible. HMCTS has announced ‘a range of measures to support the principle of open justice’, including: 

  1. access to open hearings if a public gallery is available 
  2. remote access for a third party 
  3. transcripts (if available) for any party or interested person 
  4. audio recording which can be listened to in a court building 
  5. notes of a hearing to be made available on request 
  6. access for accredited media  

On paper, this looks to be a good range of access to PTD decision making in the current difficult circumstances. In reality, they are arguably unfeasible. Numbers 1 and 4 are almost impossible in light of strong guidance to the public not to leave home unless it is essential. Number 2 will, effectively, depend on the goodwill and engagement of particular court staff to facilitate such access. Transcripts may not, in fact, be made and if requested, will depend on definitions such as ‘interested party’. Number 5 may not provide useful information to an observer since notes will not necessarily be comprehensive or reflect their interests. It is also worth noting that for none of the above is further information available on how one might pursue these routes of access. 

Number 6 is the only route that appears to be currently operational, but only to some extent. Some journalists have reported good access to proceedings via remote links. For example, Tristan Cork of the London Evening Standard reported on the bail hearing of Julian Assange (who had a bail request denied on the basis he might flee – a questionable decision in light of the extreme travel restrictions presently in place in the UK). However, this was a high profile case, likely to attract attention – unlike most PTD hearings. Moreover, most of the journalists reporting good access are London-based. It might also be added that many – including Cork – will now be on furlough due to Covid-19, like many members of the working public, and will therefore not be reporting on cases. As such, at present, it is unclear how accessible PTD decision-making is to the media, the public, or researchers. We might therefore ask – beyond the lawyers involved in cases, who is checking current practice? PTD decision-making directly affects the liberty of unconvicted persons and this will (and should) continue despite the various restrictions currently in place. However, the latter fact creates potential for lengthy delays to trials since none are being listed, and therefore much longer periods of detention for unconvicted defendants. It is very important to be able to properly scrutinise such decision making; a lack of scrutiny in any discipline enables (and in some cases encourages) poor practice to flourish.

All the above might be dubbed an overreaction, but the conviction of Marie Dinou has already proven the risks to be real. Dinou was approached by police at Newcastle Central train station and asked to account for her presence. She did not do so and was arrested on suspicion of an offence under the new Coronavirus Act 2020. She spent two days in custody before being brought to a court hearing; after failing to confirm her personal details, she was returned to the court cells, and was convicted in her absence without a lawyer. Dinou allegedly did not say a word on arrest; to her lawyer at the police station; or at court. It appears no mental health assessment was made of her, nor was it confirmed whether she spoke English. After persistent inquiry by journalists and lawyers via social media, it transpired that Dinou had been charged with a non-existent offence under the legislation, and therefore wrongfully convicted. This has now been set aside. As has been pointed out by lawyer Robin Murray, there appear to have been a catalogue of breaches of the Criminal Procedure Rules (which govern criminal court proceedings) and legislation relating to disclosure, compounded by a lack of legal representation and failure to confirm the defendant’s ability to comprehend proceedings. This case, however, bucks the trend of invisibility for most; it was a minor offence dealt with in a lower court, which are generally paid little attention. Yet Dinou spent two days in PTD, to be convicted incorrectly. This raises the very real possibility that this may already be happening across E&W (a jurisdiction with a comparatively robust PTD framework), and beyond; and with very limited access to the courts for external observers to scrutinise and question poor practice, there is real risk of not only unnecessary and excessive detention of unconvicted persons, but wrongful convictions. It is therefore imperative that access to external observation be realistically operationalised as soon as possible; and that practitioners ensure that thoroughness and care is taken in PTD decision-making in the admittedly very difficult – but, equally, medium-term – circumstances in which criminal justice now functions. 

Karl Brown: My legal life

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This blog was originally posted by the Law Society Gazette. UWE Bristol Law School alum and Faculty of Business and Law advisory board member, Karl Brown, speaks about his career to date.

At school my best and favourite subjects were English and history. I quickly realised that I would like a career which would involve analysing documents and using communication skills. In the sixth form I got a short work experience placement at a local law firm. This confirmed to me that I would like to study law at university and then go on to a legal career.

I found it very difficult to get a training contract. I did not secure one until four years after I had finished my degree, following more than 100 applications. I eventually obtained a contract with Porter Dodson in Somerset and my training was in its Taunton office. My seats were commercial property, litigation (a combination of civil and family litigation), residential conveyancing and private client.  

Many of the titles I had to review as part of my commercial property seat were large bundles of unregistered title documents or complicated titles related to rural properties. Despite this steep learning curve, I really enjoyed it and my confidence increased rapidly. My seat in residential conveyancing helped me fully understand each step involved in the property buying/selling process and also confirmed to me that I would ultimately want to specialise in property law.

I am a passionate believer in diversity, inclusion and social mobility. Working every day with the Bristol property industry I saw the fantastic opportunities available for anyone who would like a challenging and rewarding career, but I was concerned that not all young people in Bristol were aware of these opportunities. To address this I set up and launched the Bristol Property Inclusion Charter. This involves firms, companies and organisations working in the Bristol property industry signing up to pledges which aim to make the industry more diverse and inclusive. It is the UK’s first city property inclusion charter. I have been heartened by the enthusiastic response and to date have secured more than 15 signatories, including social housing associations, corporate building and architectural firms, estate agents and the University of the West of England. 

I saw the fantastic opportunities in the Bristol property industry available for anyone who would like a challenging and rewarding career, but I was concerned that not all young people in Bristol were aware of them

The Bristol Junior Chamber (BJC) is a business group for people under the age of 40. I joined the BJC in 2008 and from 2009 spent four years as its chair of education and skills (which included coordinating mock interviews at local schools), one year as vice-president and then in 2014 I became its first-ever black president. I had three main objectives: (a) organising speakers and events to help members become future leaders; (b) promoting products made or industries located in Bristol (for example, I organised a tour for BJC members of Bottle Yard Studios in Bristol, which has been the location for some major films and TV series); and (c) promoting the importance of social mobility to the business community in Bristol. Among other things, I arranged for the then deputy chair of the Social Mobility Commission, Baroness Gillian Shephard, to give a speech on social mobility at an inaugural BJC President’s Lecture.

In 2015 I was invited by the mayor of Bristol to sit on the new Bristol Learning City Partnership Board. Bristol was the first learning city in England. The aim of the board was to promote the idea that learning is for everyone regardless of age or background and should not stop when a person concludes their formal school/university education. 

It is clear that the legal sector has recognised the importance of diversity and social mobility. This can be seen when you look at firm websites and when you read articles from law firm leaders. I do think, however, that it is also recognised that law firms have not only to confirm that they have a diversity/social mobility agenda, but also demonstrate results. I am sure that if law firms do adopt procedures such as name-blind CVs and contextual recruitment, more firms will, in time, be able to demonstrate results from their social mobility objectives.  

Karl Brown, Senior Associate, Clarke Willmott. Image: Law Society Gazette.

Research into court reporting in criminal courts: Evidence submitted by UWE Bristol academics

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Written by Tom Smith and Marcus Keppel-Palmer.

In October 2019, the House of Commons Justice Committee published the report of its inquiry into Court and Tribunal reforms (see the full report here). The inquiry was prompted by “[s]erious concerns… about the effect on access to justice and its efficient despatch of the current court and tribunal modernisation programme, led by the Ministry of Justice and the senior judiciary of England and Wales” (p.3). As part of the inquiry, Tom Smith (UWE Law), Marcus Keppel-Palmer (UWE Law), Sally Reardon ( UWE Journalism) and Phil Chamberlain (Journalism, University of Bath), submitted evidence on their research into court reporting in criminal courts:

“In January 2018, we held a project at Bristol Magistrates Court, attending every case held in open court during one week. During this period of time, only one case was attended by a reporter from local media. We fear that important work shining a light on the work of the Courts will continue to diminish.

During the project, a number of cases were conducted using video link. The positioning of the video screens in court meant that it was often difficult and, in some instances, impossible to follow the evidence being presented. Actually being present in court, researchers were able to clarify details with the CPS, something that will not be possible if the hearing is online.”

They argued that:

“Open Justice is held up to be one of the great values of our legal system. At a time when economics dictate that many local media outlets are closing or cutting back on staff, it would be detrimental to that principle if the Courts Service enacted changes to hearings that impacted further on the ease of reporting the courts.”

The Committee’s report recognised this problem, and quoted the UWE team’s evidence as follows:

“The University of the West of England expressed concerns that the reform proposals would create further barriers preventing the reporting of the courts by the local media. They noted that: “[t]he number of dedicated Court Reporters on local newspapers is shrinking, and given the distances reporters would have to go to listen in on an online hearing at a booth at Court [this] can impose a further deterrent.” (p.54)

As mentioned above, the submitted evidence was based on an empirical study examining levels of court reporting, which was published by peer-reviewed journal, Journalism, in August 2019; and has attracted the attention of the Ministry of Justice, Department of Digital, Culture, Media and Sport, and journalism trade publication the Press Gazette.

The UWE Bristol team are currently undertaking a national survey of court reporting during one month in 2019 and preparing to bid for funding to expand the empirical study, underpinned by the concept of ‘Justice Reporting’ – the idea that reporting on courts should go beyond merely relaying facts and case details, but should examine the processes and issues that form part of criminal cases.

The team has also presented its findings at the SLSA 2018 Conference, the What’s The News Conference 2018 in Brussels, the MECCSA 2019 Conference in Stirling, and the Future of Journalism 2019 Conference in Cardiff, as well as presenting the research to visiting Chinese Judges.

Law Student of the Year awarded to Sam Louwers

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Congratulations to final year UWE Bristol Law student, Sam Louwers, for recently becoming Law Student of the Year at the Bristol Law Society awards 2019. Sam was nominated by Shilan Shah-Davis, Associate Head of Department, UWE Bristol, on behalf of the Law Department.

The Law Department started working closely with Sam last year through his involvement with the UWE Law Society. Sam was ‘made-up’ by Shilan’s submission and says it has been the proudest moment of his time at UWE Bristol so far.

“Sam is a highly motivated, hardworking, forward-thinking and compassionate individual with a strong commitment to the values of inclusivity, diversity and justice. Through his work in the UWE Law Society and involvement in other projects, Sam truly stands out as a champion for inclusion and diversity and an inspirational leader. Sam is very highly thought of within the Law Department and his values and commitment emulate all that UWE Bristol is seeking to achieve for its students.

Sam winning the Bristol Law Society Student of the Year Award is absolutely fantastic and very well-deserved. His passion, drive and commitment are truly inspirational and he is a great role model and ambassador for UWE Bristol.”

Shilan Shah-Davis

Interestingly, Sam’s career started in the Armed Forces, however, that abruptly ended in 2017 when he was medically discharged due to two injuries. Sam says, “I had always had an interest in Law but I never thought that University was where I would end up and never thought that I would be good enough to take that path.”

He joined UWE Bristol after getting medically discharged and has gone from strength to strength from becoming the President of the UWE Law Society to push for a more diverse representation of students, to being awarded the Vice Chancellor’s Award for Representation at the Student Experience Awards in 2018.

In his spare time (amidst caring for his young daughter and family life), Sam also works for the Royal British Legion, running the Poppy Appeal in his local area and supporting the national media team. He says that the Royal British Legion have been instrumental in helping him deal with his injuries. Once Sam finishes his degree he hopes to do his Barrister Training here at UWE Bristol to start his career as a Criminal Barrister alongside Pro Bono work and giving back to others who need help within the Armed Forces Community.

Sam’s dedication and determination prove he was a worthy winner for Law Student of the Year and UWE Bristol are proud to have him as a student here. After the awards ceremony, Sam said “speaking to the selection committee and senior lawyers in Bristol, and hearing the kind comments that they had given me, the congratulations, and how much they admired the dedication that I had put into my degree – especially with the disturbance in my background, felt really worth-while, and I felt privileged to be recognised.”

Find out more about studying Law at UWE Bristol on our website.

Volunteering: Nakita’s Story

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‘My name’s Nakita Hedges, I am a second year Law student, I worked for African Prison’s Project and I was a legal skills tutor. I taught a legal skills programme, so how to read cases, statutes etc. to prisoners in maximum security prisons in Kenya.’ 

What inspired you to volunteer?

‘I came to university because I was really interested in human rights, so I took the opportunity to get involved in the Pro Bono group. It was all about supplying resources and materials to prisoners who hadn’t had legal aid and were trying to educate themselves. From there, the opportunity arose and I was like, this will be able to determine if I want to do this in my career, like providing justice for people – and it did.’

What was the most surprising thing you learned whilst volunteering?

‘I learnt that no matter how somebody is titled or how someone is stigmatised by society that they are still a human being and they’re still decent people. I met murderers and sex offenders but I got on with them and that was surprising.’

Describe a time you feel you made a difference?

‘We worked in three prisons and one of them was female, and there was a lady who was about sixty or seventy years old, and the thing that really touched me and that I walked away with is on the last day we had a bit of a cry and a goodbye, and she said “You don’t understand what it’s like being treated like a human being again. You giving us that support and being here and being nice to us and not looking at us like we’re evil horrible people” is the best thing that could have happened to them because nobody does that anymore.’

What is the impact of volunteering and why should other students get involved?

‘Well, I think every single person needs to do things more than just watch it on a TV screen or on their phones and go out and experience life and see a different side to how you live and help people when you can because it’s the most rewarding thing, no pay cheque is more rewarding. If you can find that within yourself, or support other people in that decision then the world will change, it will.’

Do you want to make a difference? Visit our volunteering pages or find out more about Pro Bono at UWE Bristol on our website.

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.

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.

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