Combating environmental degradation in Nigeria through the recognition of the Rights of Nature

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By Cleverline T Brown, PhD student, a member of the Environmental Law and Sustainability Research Group.

Environmental degradation has increasingly plagued the human and natural environment especially since the discovery of petroleum in Nigeria. The right to a clean and healthy environment although provided for in the Constitution,[1] has been seen to be non-justiciable[2] except by alternative pathways such as through the application of the African Charter on Human and Peoples Rights (ACHPR) [3] or in a foreign court. It is also a fact that environmental pollution cases have been lost due to technicalities.[4] This has emboldened some petroleum sector operators to continue bad environmental practices. Hence the need for alternative ways to combat environmental degradation from bad environmental practices such as the recognition of the rights of nature.

Global development of rights of nature

The concept of the rights of nature is an emerging field that is gradually being recognised by countries around the world. While the rights of human victims of environmental harm are protected under human rights law,[5] other victims of environmental harm such as nature and natural resources, exist and have been left behind by policy and law-making thereby rendering them invisible and silenced in the search for justice.[6] Rights of nature are rights that nature and natural resources possess, as distinct from the right of humans to a healthy environment. It can be a reformulation and expansion of existing human rights and duties in the context of environmental protection.[7] In some jurisdictions like India, New Zealand, Ecuador, Brazil, Columbia, Bolivia, nature is accorded human status.[8] This implies the right to be protected just like human beings under human rights laws; and the right to enforce such rights under the law.[9] Stone noted that until the rightless thing receives its right, we cannot see it as anything but a thing for the use of ‘us’ – those who are holding the rights at the time.[10] More countries are legally recognising the rights of nature in their domains. In February 2021, the Innu Council of Ekuanitshit recognised the Magpie River, a 3000km (186 miles) waterway in the cote Nord region of the Canadian province of Quebec, as a legal person.[11] Some of the sources of the rights of nature in these jurisdictions include case law,[12] the Constitution and other legal instruments.[13]

Rights of Nature in Nigeria

The non-justiciability of the environmental rights provisions in the Constitution of Nigeria has prompted victims of environmental harm to seek access to courts in pursuit of justice, through other pathways.[14] While this effort has yielded some positive results, it has not yielded an express pronouncement on the rights of nature and natural resources per se to be protected, specifically in Nigeria. When environmental harm occurs, the rights sought to be protected are the rights of the human victims alone and these rights do not extend to the protection of nature. Recognition of the rights of nature in Nigeria can expand the definition of ‘victims of environmental harm’ and extend the frontiers on which environmental degradation can be combatted. The closest to rights of nature practiced in Nigeria is the designation of protected areas. These areas include forest reserves and plantations, national parks, nature reserves and gazetted forests.[15] This implies that the areas so designated are protected against farming, hunting, trapping, timber cutting and other human activities. It does not, however, protect these natural resources and rivers from the effect of oil spills and other negative impacts of petroleum sector activities.[16] This does not also give the protected areas personhood or the right to enforce the protected status. Legally recognising the rights of nature in Nigeria could be a game-changer in the move to combat environmental harm especially from petroleum sector operations. It is argued that an outright pronouncement on the rights of nature and natural resources can provide an alternative option in the fight against environmental degradation from environmental harm and easy access to courts to enforce those rights.

Challenges of Rights of Nature

While some gains have been made by the countries that have taken the lead in establishing rights of nature,[17] challenges remain on the full realisation of the effect of the rights of nature. First, it is difficult to assess how far the courts will go on the issue of enforcement of such rights. This is because the concept of rights of nature has not been rigorously tested before the courts to establish precedents.[18] Second, like every other law, the challenges of compliance and enforcement remain due to the lack of political will to enforce compliance with the laws.[19] Third, governments still place the exploitation of natural resources for gains over the protection of nature and natural resources. This is because often, the government relies on the proceeds from the exploitation of natural resources to provide basic amenities for its citizens.[20] Fourth, individuals and small businesses fear that such rights will lead to a multiplicity of lawsuits threatening their businesses and livelihood.[21] Fifth, it is believed that existing legal and statutory frameworks adequately cater to protect nature and new laws stipulating new rights are not required.[22]

Conclusion

The significance of the attention on the rights of nature is vital to the fight against global environmental degradation. If more countries recognise the rights of nature, it could put a check on how nature is interacted with by human beings because these rights will be put into consideration in such interactions. Such considerations can be in form of complying with environmental regulations, policies and standards. Therefore, it is contended that if compliance and enforcement of environmental laws are effectively observed, the environmental rights of human beings and nature can easily be realised.

Recognition of the rights of nature could lead to stronger natural resource laws. Legally recognised rights of nature and the human right to a healthy environment can work simultaneously to promote effective compliance and enforcement because humans have an interconnectedness with the natural world and should acknowledge the rights of nature to exist, persist and maintain its vital cycles.[23] The legal recognition of the rights of nature by Nigeria can be an effective legal tool to save the Nigerian environment from a gradual but steady decline.[24]


[1] S 20 of the Constitution of Nigeria 1999 requires the government of Nigeria to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria and s 33 (1) which guarantees the right to life of every citizen of Nigeria.

[2] See s 6 (6) c of the Constitution of Nigeria 1999 which essentially prevents any enquiry into any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution (under which a protected environment is provided for in the Constitution).

[3] Articles 4 which provides for the right to life and 24 which provides the right to a general satisfactory environment.

[4]  Such as standing and loopholes in the law. See Oronto Douglas v Shell Petroleum Development Company Limited & Ors (1998) LPELR-CA/L/143/97 Law Pavilion Electronic Law Report- Court of Appeal. Some of the oil pollution related cases arising from some Ogoni communities fall into this category.

[5] EO Popoola, ‘Moving the Battlefields: Foreign Jurisdictions and Environmental Justice in Nigeria’ <https://items.ssrc.org/…environments/moving-the-battlefields-foreign-jurisd…> accessed 19 August 2019.

[6] It has been argued that other victims of environmental harm exist and have been left behind by policy and law-making thereby rendering them invisible and silenced in the search for justice. See M Hall, Environmental Harm: The Missing Victims?, vol 90 (Centre for Crime and Justice Studies 2012) 1.

[7] D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28(1) Stanford Journal of International law 103, 117.

[8] Examples are New Zealand’s Whanganui River was granted rights of personhood in 2017, India’s Ganges River, Article 71 of the 2008 Constitution of Ecuador, essentially provides that nature has the right to integral respect for its existence and the maintenance and regenerations of its life’s cycle’s structure, functions and evolutionary processes. Examples of jurisdictions that have also recognised the legal rights of nature include Bolivia (Law of the Rights of Mother Earth and the Framework Law of Mother Earth and Integral Development for Living Well 2012); Columbia (A 2018 Supreme Court decision held the Columbian Amazon to be a subject of rights based on the Columbian Constitutional’s Courts ruling that Atrato River had legal rights to be protected, conserved and restored); India (The 2018 Uttarakhand High Court decision declaring the animal kingdom to legal entities with rights, duties and liabilities of a living person); and the United States of America where Tamaqua Borough in Pennsylvania recognised the rights of natural communities and ecosystems in a 2006 ordinance) see G Chapron, Y Epstein and JV Lopez-Bao, ‘A Rights Revolution for Nature’ (2019) 363(6434) Science 1392, 1393

[9] CD Stone, Should Trees Have Standing? Law, Morality, and the Environment (Oxford University Press 2010) 264.

[10] ibid 3.

[11] J Kestler-D’Amours, ‘This River in Canada is now a ‘Legal Person’’ (2021) <https://www.aljazeera.com/news/2021/4/3/this-river-in-canada-now-legal-person> accessed 12 April 2021.

[12] As in the Indian cases of Maharaj Singh v Indian Oil Corporation (1999) A. I. R. 81; M. I. Builders v. Radhey Shyam Sahu M.C. [1999] A.I.R.  SC 2468; Mehta v Kamal Nath (1997) 1 S.C.C. 388.

[13] Constitution of the Republic of Ecuador 2008 Chapter 7, Articles 71, 72 and 73; Te Urewera Act 2014 of New Zealand; Constitution of Brazil 1993.

[14] Popoola (n 5).

[15] OI Imasuen, JN Oshodi, TUS Onyeobi, ‘Protected areas for environmental sustainability in Nigeria’ (2013) 17 (1) Journal of Applied Science and Environmental Management 53, 56.

[16] AP Onyena and K Sam, ‘A Review of the Threat of Oil Exploitation to Mangrove Ecosystem: Insights from Niger Delta, Nigeria (2020) 22 Global Ecology and Conservation 1, 3.

[17] S Borràs, ‘New Transitions from Human Rights to the Environment to the Rights of Nature.’ (2016) 5(1) Transnational Environmental Law 113, 143.

[18] CR Giraldo, ‘Does Nature Have Rights? Successes and Challenges in Implementing the Rights of Nature in Ecuador’ (2013) <https://constitutionnet.org/news/does-nature-have-rights-successes-and-challenges-implementing-rights-nature-ecuador> accessed 4 December 2020.

[19] Ibid.

[20] Ibid.

[21] OA Houck, ‘Noah’s Second Voyage: The Rights of Nature as Law’ (2017) 31(1) Tulane Environmental Law Journal 1, 29.

[22] C McDonough, ‘Will the River Ever Get a Chance to Speak? Standing Up for the Legal Rights of Nature’ (2020) 31(1) Villanova Environmental Law Journal 143, 161.

[23] Borràs (n 17) 143.

[24] DR Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (ECW Press 2017) 280.

Towards sustainable cities: best practices and challenges of urban sustainable policies implementation

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By Francesco Venuti, a member of the Environmental Law and Sustainability Research Group.

Cities’ role in achieving Sustainable Development

Cities are thrilling places that allow people to develop new and innovative ideas, offering many opportunities to put into practice the shift to the brain-based economy and mechanised labour.[1] However, they also represent the major source of greenhouse gases (GHG) emissions worldwide and the areas in which most of the resources are consumed.[2] Urban environmental footprint is even expected to increase because projections estimate that 68% of the world population will live in cities by 2050.[3]

For these reasons, the United Nations decided to pay special attention to urban areas integrating them within the 2030 Sustainable Development Agenda.[4] In particular, Sustainable Development Goal (SDG) 11 conceives the idea of a sustainable city, calling the international community to ‘make cities and human settlements inclusive, safe, resilient, and sustainable’.[5] SDG 11 comprises 10 sub-targets that address different sectors of urban sustainability. Each city’s level of compliance with these sub-targets is measured through a series of indicators developed by the UN.[6]

SDG 11 and human health

Some sub-targets are closely connected with human health, e.g., those related to the transport sector (SDG 11.2), urban development plans (SDG 11.3), and air quality (SDG 11.6). In 2014, the transportation sector alone accounted for almost 1/5 of the GHG emissions,[7] playing a central role in worsening the air quality and thus impacting the health of millions of people. Besides, in 2017 air pollution represented the fourth leading cause of death worldwide.[8] Finally, urban development plans are critical in enabling broader citizens participation in cities development, offering a means to avoid discrimination that leads to social inequality and poor standards of living.

Best practices

Research shows that some cities are role models in one of the sectors taken into consideration. In particular, Singapore regarding SDG 11.2, Medellín (Colombia) regarding SDG 11.3, and Stockholm (Sweden) regarding SDG 11.6.

In Singapore, for example, recent investments made by the government allowed the public transportation sector to achieve high-efficiency levels[9] while maintaining itself affordable even for lower social classes and vulnerable people.[10] These improvements enabled Singapore to have a percentage of people conveniently served by the public transport system near 100%.[11]

In Medellín, the concept of sustainable development firstly appeared in an urban development plan in 1993.[12] Since then, environmental concerns and citizen participation progressively gained momentum, offering alternative perspectives in solving many issues (e.g., the problem of landslides in the peri-urban area).[13]

Stockholm offers a great example of how taxing polluting vehicles can increase urban air quality and positively impact human health from different angles. The 2006 congestion scheme implementation produced positive outcomes concerning traffic reduction,[14] lower CO2 emissions,[15] and dwellers health[16] and road safety improvement.[17] The good effects on air quality are confirmed by the fact that Stockholm is currently compliant with the World Health Organisation’s recommended levels of air polluting particles.[18]

Challenges

Other cities, e.g., Milan, present an opposing situation with some sectors that are characterised by measures that promote SDG 11, while others show clear obstacles to urban sustainable development. In Milan, several measures directed to decrease air pollution targeted both the transport sector[19] and the GHG emissions generated by domestic heating systems.[20] The results in terms of air quality improvement are promising.[21] However, concerning the link between urban development plans and social inclusion and integration, research shows both an unequal wealth distribution[22] and irrational land utilisation.[23] These elements produce social fallouts related to immigrant communities’ inclusion and integration and widespread illegal housing.[24]

In conclusion, data gathered on these four cities demonstrate that the best way to address SDG 11 is by adopting an integrated approach that has collaboration between different actors as its core and gives the same importance to all the three pillars of sustainable development.

This blog is based on the LLM dissertation on ‘Are policies on Sustainable Cities complying with SDG 11? Milan as a case study’.

References:

[1] Steven Cohen, The Sustainable City (Columbia University Press 2017)

[2] United Nations, ‘Tracking Progress Towards Inclusive, Safe, Resilient and Sustainable Cities and Human Settlements: SDG 11 Synthesis Report High Level Political Forum 2018’ (2018) available at: https://unhabitat.org/sites/default/files/2019/05/sdg_11

[3] United Nations Department of Economic and Social Affairs, Population Division, ‘World Urbanisation Prospects 2018: Highlights’ (2019) 5 UN Doc ST/ESA/SER.A/421; UN Department of Economic and Social Affairs, ‘68% of the World Population Projected to Live in Urban Areas By 2050, Says UN’ (United Nations, 16 May 2018) available at: https://www.un.org/development/desa/en/news/population/2018-revision-of-world-urbanization-prospects.html

[4] United Nations General Assembly Resolution 70/1 ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (25 September 2015) UN Doc A/RES/70/1 (adopted without vote)

[5] available at: https://sdgs.un.org/goals/goal11

[6] United Nations General Assembly Resolution 71/313 (6 July 2017) UN Doc A/RES/71/313 (adopted without vote), annual refinements contained in E/CN.3/2018/2 (Annex II), E/CN.3/2019/2 (Annex II), and 2020 Comprehensive Review changes (Annex II) and annual refinements (Annex III) contained in E/CN.3/2018/2 (Annex II), E/CN.3/2019/2 (Annex II), and 2020 Comprehensive Review changes (Annex II) and annual refinements (Annex III) contained in E/CN.3/2020/2

[7] European Environment Agency, ‘Sectoral greenhouse gas emissions by IPCC sector’ available at: https://www.eea.europa.eu/data-and-maps/daviz/change-of-co2-eq-emissions-2#tab-chart_4

[8] Hanna Ritchie and Max Roser, ‘Air Pollution’ (Our World in Data, October 2017) available at: https://ourworldindata.org/air-pollution#air-pollution-is-one-of-the-world-s-leading-risk-factors-for-death

[9] ‘Completion of The Bus Service Enhancement Programme (BSEP)’ (Land Transport Authority, 9 December 2017) available at: https://www.lta.gov.sg/content/ltagov/en/newsroom/2017/12/2/completion-of-the-bus-service-enhancement-programme-bsep.html

[10] ‘Concessionary Card Fare Structures for Lower-Wage Workers and Persons with Disabilities’ available at: https://www.mot.gov.sg/docs/default-source/default-document-library/annex-a_concessionary-card-fare-structures-for-lower-wage-workers-and-persons-with-disabilities.pdf

[11] available at: https://www.singstat.gov.sg/find-data/sdg/goal-11

[12] Peter Brand, ‘The Sustainable City as a Metaphor: Urban Environmentalism in Medellín, Colombia’ in Mike Jenks and Rod Burgess (eds), Compact Cities: Sustainable Urban Forms for Developing Countries (Spon Press 2000)

[13] Joseph Claghorn and others, ‘Rehabitar la Montaña: Strategies and Processes for Sustainable Communities in the Mountainous Periphery of Medellín’ [2016] 8 Urbe: Revista Brasileira de Gestão Urbana 42

[14] Staffan Algers and others, ‘Facts and Results from the Stockholm Trials’ (2006) available at: http://www.stockholmsforsoket.se/upload/Sammanfattningar/English/Final%20Report_The%20Stockholm%20Trial.pdf

[15] Jonas Eliasson and others, ‘The Stockholm Congestion Charging Trial 2006: Overview of Effects’ [2009] 43 Transportation Research Part A 240

[16] Christer Johansson, Lars Burman, and Bertil Forsberg, ‘The Effects of Congestion Tax on Air Quality and Health [2009] 43 Atmospheric Environment 4843

[17] Jonas Eliasson, ‘A Cost–Benefit Analysis of the Stockholm Congestion Charging System’ [2009] 43 Transportation Research Part A 468

[18] European Environmental Agency, ‘Air Quality in Europe: 2019 Report’ (2019) EEA Report No 10/2019 95 available at: https://www.developmentaid.org/api/frontend/cms/uploadedImages/2019/10/Air-quality-in-europe_2019-final.pdf

[19] Milan City Council Deliberations (Deliberazioni della Giunta comunale di Milano) 1788/2007, 2526/2011, 1366/2018 (IT)

[20] Ordinance of the Mayor (Ordinanza del Sindaco) 51/2020

[21] Edoardo Croci and Aldo Ravazzi Douvan, ‘Urban Road Pricing: A Comparative Study on the Experiences in London, Stockholm and Milan’ (2016) Centre for Research on Energy and Environmental Economics and Policy available at: ftp://ftp.repec.org/opt/ReDIF/RePEc/bcu/papers/iefewp85.pdf

[22] Pietro L Verga, ‘Rhetoric in the Representation of a Multi-Ethnic Neighbourhood: The Case of Via Padova, Milan’ [2016] 48 Antipode 1080

[23] ‘Urban Development and Green Economy’ available at: https://osservatoriomilanoscoreboard.it/en/goals/urban-development-and-green-economy/urban-development-and-green-economy-2019

[24] Petros Petsimeris, ‘Social and Ethnic Transformation of Large Housing Estates in Milan, Italy: From Modernity to Marginalisation’ in Daniel Baldwin Hess, Tiit Tammaru, and Maarten Van Ham (eds) Housing Estates in Europe: Poverty, Ethnic Segregation and Policy Challenges (Springer 2018)

UWE Students Participate in Vaquita Conservation Hackathon

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Written by Ethan Franks (in collaboration with James Pettipher and Bethany Foster).

On December 12 to December 13, the world’s first dedicated Vaquita conservation Hackathon took place. A Hackathon brings a large group of people together to work tirelessly for a 48-hour time period to address separate issues that threaten a cause. The people that take part in the project come together from different countries and different career backgrounds that all relate to the issue at the base of the Hackathon. The Vaquita conservation project is a complex multi-faceted issue that spans many fields, from criminal law to biology. The aim of this Hackathon was to develop a brighter future for the Vaquita, of which the methods and lessons learned can be incorporated into other complex conservation and criminology problems. UWE Bristol Law students proudly represented almost all the United Kingdom within the ‘criminal law review’ sector of the Hackathon.

The criminal law review aimed to try and combat the issues that Mexico is having in enforcing the law against illegal Totoaba Cartels fishermen and meeting its treaty obligations. This is to be done by all the groups, collaboratively developing a white paper. The hope is that by publishing a white paper and then implementing its recommendations the Vaquita and other marine wildlife in the Gulf of California will be sufficiently protected by the Mexican government.

Each individual group comprising a small number of students was set up with a mentor. Groups worked together to suggest their solution and then go away to work on small tasks that worked towards a final solution. This process would take place repeatedly over the weekend reinforcing the solution before the closing ceremony at midnight on the Sunday.

UWE law student James Pettipher and I worked under our mentor Volcy Boilevin, forming group six of the Hackathon. We were tasked with supporting the law enforcement efforts of the Mexican government. We decided that the best approach to take to impact Mexico was to try and use Mexico’s agreements with neighbouring countries to help impose pressure on Mexico. The pressure was implemented with the intention of encouraging the Mexican government to value its environmental obligations, without using the ineffective environmental law.

Additionally, group four included another UWE student, Bethany Foster who under the guidance of Daniel Marsh and alongside other professionals and students, worked on a proposal addressing the weak judicial framework that operates in Mexico that fails to deter the illegal totoaba trade. The suggested solution was twofold: introducing a judicial exchange programme between the UK and Mexico and assisting Mexico in implementing sentencing guidelines to ensure consistent sentencing of wildlife criminals. These proposals involve mutual co-operation between the UK, Mexico and industry experts and success is largely determined by Mexico’s willingness to co-operate. However, these proposals were inspired by the work of international criminal barrister Shamini Jayanathan whose efforts have focused on judicial reform where jurisdictions have weak judicial processes. Her work has been incredibly successful which provides a blueprint for the potential success of these propositions.

The entirety of the event will be concluded this year when a decision is made as to the best legal solutions to be put forward and incorporated into a white paper. Though it is not the motivation of any of the participants, there will be a prize awarded to the best proposed solution as well.

The Hackathon was organized by the Conservation Project International, a platform dedicated to supporting and mentoring young conservationists and future leaders, in collaboration with Earth League International, Earth Hacks and the Countering Wildlife Trafficking Institute. The event was financially supported by the two research groups of the Bristol Law School (the Global Crime, Justice and Security Research Group and the Environmental Law and Sustainability Research Group).

Criminal Justice in ‘Crisis’: Covid-19 and the Right to a Jury Trial

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Blog by Dr. Edward Johnston, Senior Lecturer in Law at UWE Bristol.

In November the back log of outstanding cases in the criminal courts of England and Wales stood at 457,518. According to the same Sky News report, this is some 100,000 more than February 2020. Of the near half a million outstanding cases, just under 54,000 are for cases to be heard in the Crown Court and the remaining 403,000 cases are set to be heard in the Magistrates’ Court.

Moving forward, the picture looks even more bleak. Crest Advisory, who specialise in predictions and analytical models concerning criminal justice suggest that by 2024, there could well be 580,000 cases outstanding in the magistrates’ court and 195,000 outstanding in the Crown Court.

It is clear that something has to give to solve this ‘crisis’ – a word often used to describe the current state of criminal justice. However, is ‘crisis’ the correct term? The Oxford English Dictionary defines a crisis as ‘ a time when a problem, a bad situation or an illness is at its worst point’. From the Crest predictions, it is clear we have not even begun to hit the ‘worst point.’ Furthermore, a crisis can be defined as a period of ‘great danger’ – well, criminal justice was in a state of crisis long before Covid-19; from cuts to police officers and PCSOs to court closures throughout England and Wales. The Guardian reported in January 2019 that almost 50% of magistrates’ courts have closed and according to a report by the National Audit Office, the government plan to close another 77 courts by 2025/26. Is it no wonder that the backlog of cases is so large and continuing to grow.

As ever, it is the right to trial by jury that is the first fundamental freedom to be attacked. It always is. In 2018, Labour MP Ann Coffey suggested that we ‘do away with juries in rape trials’ in order to allow a trained judge, sitting alone decide the case Just this week, Simon Jenkins, writing for the guardian suggested that we abolish jury trials as the huge backlog of cases has allowed us to ‘reform our archaic and irrelevant court rituals.’ Jenkins suggests that after 3 terms as a juror he is convinced that they are a ‘costly indulgence’  and ‘have nothing to do with justice except often distort it.’ Additionally, he claims that his final case was a ‘blatant’ attempted murder case which involved young lawyers making mistakes, before the judge declared all relevant evidence ‘prejudicial’ and instructed the jury to acquit the defendant – quite how this has anything to do with the role or function of the jury is beyond me. But it perhaps goes some way to explain his misunderstanding about the role and its importance.

It came as no surprise this week to see Labour call for alterations to the jury system. Shadow Justice Secretary, David Lammy, called for juries to be reduced to 7 people to ‘stem the gravest crisis in the justice system since WWII‘. As highlighted above, Crown Court cases (not all will be heard by a jury because of guilty pleas) make up a fraction of this current and predicated backlog of cases. This is a marked shift from Lammy, who in his 2017 Review into the treatment of BAME individuals in the criminal justice system found that the ‘jury system was fit for purpose’ (see page 41). The system was already in a state of crisis – why suggest amendments now?

Furthermore, why would 7 people allow the backlog to be cleared any quicker – they still have to deliberate and properly consider the evidence they have heard and therefore are not likely to make the process any swifter. And if they are not going to be quicker – they will not help tackle the backlog. Writing in 2021 Dr. Hannah Quirk outlined the importance of juries and proffered a way forward to tackle the growing backlog. In her Criminal Law Review Editorial, she suggested that ‘juries may provide an important safety net against unfair prosecutions. The difficulties are immense but alternative measures should be tried, such as using university facilities or a purpose-built site. If convention centres could be turned into field hospitals in a few weeks, creating a functioning courtroom cannot be impossible. The medical profession is discovering unexpected long-term side-effects of Covid-19; the criminal justice system should ensure that the right to trial by jury is not another casualty of the crisis.’

If the criminal justice system was adequately funded (to provide opportunities to pursue a career in the CPS or defence professions), if courts were not closed and therefore unable to hear cases then that would provide a way forward to tackle the crisis. Perhaps the government ought to look to re-open the closed buildings they have not sold off or as Quirk suggests, repurpose existing buildings to be suitable for criminal trials.

Amending trial by jury will do little to reduce the backlog of cases, in fact it would be the start of a slippery slope and the death knell to jury trials in England. Following Quirk’s suggesting again,  we need to ensure that jury trials are not another casualty of the current crisis.

One Planet Development in Wales: A Sustainable Future?

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Written by Rachel Kelway-Lewis, LLM and member of the Environmental Law and Sustainability Research Group

The Institute of Public Policy Research[1] of UK has urged that ‘the historical disregard of environmental considerations in most areas of policy has been a catastrophic mistake’[2] which suggests that policy, in many instances, is failing to protect the environment. Thus, as international obligations prioritises the need for policy to promote sustainability[3] it seems necessary to begin analysing the policies which claim to do so.

One Planet Development

The Welsh Assembly Government has created the One Planet Development policy[4] (hereafter referred to as OPD) with the objective of adhering to global sustainable development targets. The OPD policy aims to encourage individuals, families and co-operatives alike to create residential developments that are either low impact, or do not significantly degrade the environment.[5] Such developments are required to meet 65% of the residents’ basic needs from the land within the first five years, including income, energy and food. The mere creation of such a policy could be deemed an achievement, however in practice, the policy appears to be facing some challenges.

OPD Challenges

The flow chart below identifies the key concerns challenging the policy’s implementation, and classifies the concerns as legal, non-legal, and procedural. The flow chart visualises the issues, the result of the issues and, the underlying constraint.

It is evident that the content of OPD policy[6] has the potential to intrinsically meet all three pillars of sustainable development (i.e., economic, social and environmental), however implementation related challenges may be restricting this. Research suggests that there is a resource deficiency within local planning authorities which is affecting the policy’s implementation from planning applications to monitoring OPD settlements’ progress. Thus, the policy cannot be successful without additional resources or a change in the policy’s specifications.[7] Despite efforts to support participants through the application process[8] as well as training being offered to planning authorities specifically for OPD developments,[9] there remains a gap which has not been addressed. Demands upon local planning authorities are likely to grow and exceed their capacity.[10] Furthermore, without addressing the challenges, the OPD is unlikely to achieve its’ objectives thus, will not promote the aims of ‘One Wales: One Planet’.[11]

Moving forward

The following reforms have been suggested to ensure that the solutions are feasible, ranging from providing mandatory online training to reducing the reporting obligations of established OPDs. Whilst these reforms are focused upon accessible improvements to the OPD policy, long-term reform is essential.

  • Community land trust

The Calon Cymru report identified the challenges associated with funding and finding suitable land due to increased prices.[12] Thus, the short-term reform suggestion to promote community land trusts is based upon a successful case in London[13] and more recently, the prospective plan to establish the first Welsh community land trusts in Solva, Pembrokeshire.[14] Furthermore, by creating community land trusts partnerships with housing associations such as Ateb[15] and ceiling prices on land for such projects, funds and prices could be more accessible. Such reform could benefit the community, promote UN Sustainable Development Goals 11,[16] the Well-being of Future Generations (Wales) Act[17] and the ‘Improving lives and Communities, homes in Wales’ scheme[18] throughout Wales. 

  • Public Transport

The long-term regional reform of improving public transport links within rural Wales could result in additional suitable land being accessible for such projects. Such improvements could also support many of Wales’ objectives at all levels, from the Well-being of Future Generations (Wales) Act[19] to the Paris Agreement[20] and UN Sustainable Development Goals 11.2.[21]

  • Low carbon building

Nationally, more must be done to promote accessible, low-carbon building. This could be achieved by mainstreaming environmentally conscious building methods and utilising training programmes to educate trades people. Furthermore, the establishment of ‘green mortgage’ can promote and incentivise low-carbon building for the public as seen in the Netherlands.[22]

Concluding comments

The fundamental constraint identified is a lack of resources, the impact of which is significant. Challenges associated with the resource deficiency range from inconsistent implementation[23] to failures of OPD settlements to submit reports.[24] The policy will require additional funding to meet its objectives, however in the short-term practical solutions could elevate the strain. Such reforms have been discussed to ensure that the solutions are feasible. Whilst the suggestions are focused upon accessible improvements to the OPD policy, long-term reform is essential specifically with regards to the resource deficiency.

This article is a brief summary of a document titled ‘One Planet Development: a sustainable future? A critical analysis of whether the One Planet Development Policy promotes the United Nations Sustainable Development Goal 11 (Sustainable communities)’ which has been published by Lammas.


[1] Institute for public policy research, ‘This is a crisis facing up to the age of environmental breakdown’, Institute for Public Policy Research, February 2019, available at: https://www.ippr.org/files/2019-02/risk-and-environment-feb19.pdf

[2] Ibid.

[3] United Nations, The Millennium Development Goals Report 2012 (New York, 2012).

[4] Welsh Assembly Government, ‘Technical Advice note 6’ (Planning for sustainable rural communities, July 2010), available at: https://gov.wales/docs/desh/policy/100722tan6en.pdf

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] One Planet Council, ‘The One Planet Council’ (Supporting One Planet Developments, no-date), available at: http://www.oneplanetcouncil.org.uk/about-the-one-planet-council/

[9] Welsh Assembly Government, ‘Technical Advice note 6’ (Planning for sustainable rural communities, July 2010), available at: https://gov.wales/docs/desh/policy/100722tan6en.pdf

[10] BBC, ‘Put a stop to eco-homes being built, says councillor’, BBC news, 29 April 2019. Available at: https://www.bbc.co.uk/news/uk-wales-48084556

[11] Welsh Assembly Government, ‘The Sustainable Development Scheme of the Welsh Assembly Government’ (One Wales: One Planet, May 2009), available at: http://www.wales.nhs.uk/sitesplus/documents/829/One%20Wales-%20One%20Planet%20%282009%29.pdf

[12] Calon Cymru Network, ‘Feasibility of a resilient neighbourhood at Llandovery’ (Affordable Homes and Sustainable Livelihoods in Rural Wales, 2017), available at: http://www.caloncymru.org/uploads/1/4/9/3/14932334/affordablehomessustainablelivelihoodsruralwales.pdf  

[13] Emma Howard, ‘ Could community land trusts offer a solution to the UK’s housing crisis?’ (The Guardian, 25 June 2014), available at: https://www.theguardian.com/society/2014/jun/25/community-land-trusts-uk-housing-crisis-east-london-mile-end

[14] Becky Hotchin, ‘Solva Community Land Trust wins Pembrokeshire County Council second home council tax grant’, The Western Telegraph, 10th October 2020.

[15] Ibid.

[16] United Nations, Transforming our world: The 2030 agenda for sustainable development (New York, 2015) No. A/RES/7011.

[17] Well-being of Future Generations (Wales) Act 2015, available at: https://www.futuregenerations.wales/about-us/future-generations-act/

[18] Gov.wales, ‘Homes in Wales’ (Improving Lives and Communities, 2010), available at: https://gweddill.gov.wales/docs/desh/publications/100421housingstrategyen.pdf  

[19] Well-being of Future Generations (Wales) Act 2015, available at: https://www.futuregenerations.wales/about-us/future-generations-act/

[20] The Paris Agreement (2015), available at: https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement

[21] United Nations, SDG 11: Make cities inclusive, safe, resilient and sustainable, available at: https://www.un.org/sustainabledevelopment/cities/

[22] UK Committee on Climate Change, ‘UK housing: Fit for the future?’ (2019), available at: https://www.theccc.org.uk/publication/uk-housing-fit-for-the-future/

[23] Louise Kulbicki, ‘Does Welsh National Planning Policy effectively address Low Impact Development in the open countryside?’ (2011) 6. Available at: http://lammas.org.uk/wp-content/uploads/2013/03/Does_Welsh_National_Planning_Policy_effectively_address_Low_Impact_Development_in_the_open_countryside_Louise_Kulbicki_2011.pdf

[24] BBC, ‘Put a stop to eco-homes being built, says councillor’, BBC news, 29 April 2019. Available at: https://www.bbc.co.uk/news/uk-wales-48084556

The GMO debate: Is law the answer to effectively regulate GM crops in India?

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This blog is by Subhashree Panda, LLM (Environmental Law and Sustainable Development)

Agriculture, the largest source of livelihoods for India, is plagued by several problems such as small and fragmented land-holdings, use of poor quality seeds, indiscriminate use of biocides causing environmental pollution, areas affected by salinity, alkalinity, water-logging due to lack of irrigation and inadequate storage facilities depriving farmers of their legitimate income.[1]

As a solution to overcome the persistent problem of food insecurity, India is promoting the use of Genetically Modified (GM) crops that offer many opportunities. These opportunities range from promoting sustainable agriculture as they may be able to reduce agriculture’s environmental footprint, reducing the use of pesticides, decreasing carbon-dioxide emissions, conserving soil moisture.[2] However, after the introduction of Bt-cotton in 2002 which is an insect-resistant transgenic crop,[3] there has been a lot of controversy in India surrounding its performance and impact on the environment and biodiversity. According to the critics, GM crops fail to reduce the need for pesticides, and mixtures of varieties being sold to farmers in the name of standardized seeds often result in uneven crop production and low yields.[4] Despite such controversy, several Indian seed companies and public sector research institutions are developing GM crops  (about 85 plant species), mainly for pest resistance, herbicide tolerance, abiotic stress tolerance (e.g. drought, salinity and soil nutrient), nutritional enhancement, and nutritional, medicinal or metabolic phenotypes.[5]

In India, even prior to joining the World Trade Organisation (WTO), the patentability and the scope of protection to be afforded to GM crops have been controversial.[6] Since joining the WTO, India has amended its Patents Act (in 1999, 2002 and 2005) to comply with the obligations set out in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. In addition, intellectual property rights in relation to plant varieties, including transgenic varieties, are the subject matter of protection under the provisions of the Protection of Plant Variety and Farmers Rights Act, 2001. These two laws play a crucial role in regulating the patentability and the use of GM crops in India.

In addition, the Environmental Protection Act 1986, the Food Safety and Standards Act 2006, the Rules for the Manufacture/Use/Import/Export and Storage of Hazardous Micro-organisms, GE organisms or cells 1989, Drugs and Cosmetic Rule 1988, Biological Diversity Act, Plant Quarantine Order 2003 and Directorate General of Foreign Trade Notification relating to inclusion of GM trade policy in foreign trade policy (2006-2009), the Seed Order 1983, the Seed Policy 2002, the Patent Act 1970 are also applicable for activities relating to GM crops in India. However, the Environmental Protection Act, Consumer Protection Act 1986 and Food Safety and Standard Act 2006 lack coherence and fail to apply the precautionary principle.[7] There is a lack of transparency and little or no public involvement in the governance process regarding agriculture and manufacture of GM crops. In addition, labelling and traceability provisions regulating GM crops are weak. For example, the recent draft Food Safety and Standards (Labelling and Display) Regulations 2018 seeks to make labelling of GM food mandatory.[8] However, the criteria for exemption from labelling of food containing GM ingredients remain lax.[9]

India as a powerful developing country has attempted to domesticate global obligations in ways which conform to its domestic priorities.[10] There is no doubt that agricultural biotechnology must give farmers and local community adequate information and a meaningful opportunity to participate in decisions that affect their health, their livelihoods, and their natural resources. It is still possible to promote transparency and include strong labelling and traceability provisions in the 2018 Draft Regulation. Such integration of the precautionary principle in GMO laws will help to strengthen risk assessment procedure and monitoring in the biosafety regime.


[1] Puja Mondal, ’10 Major Agricultural Problems of India And Their Possible Solutions’ (Your Article Library) <http://www.yourarticlelibrary.com/agriculture/10-major-agricultural-problems-of-india-and-their-possible-solutions/20988>

[2] Graham Brookes and Peter Barfoot, ‘Environmental impacts of genetically modified (GM) crop use 1996–2015: Impacts on pesticide use and carbon emissions (2017) 8 GM Crops & Food 117; David Zilberman, Tim G. Holland and Itai Trilnick, ‘Agricultural GMOs—What We Know and Where Scientists Disagree’ (2018)10 Sustainability 1514.

[3] K.S Jayaraman, ‘India Investigates Bt Cotton Claims’ (Nature, 2012) <https://www.nature.com/news/india-investigates-bt-cotton-claims-1.10015>.

[4] Suman Sahai, ‘What Is Wrong with Bt Cotton’ (Iatp.org)

<https://www.iatp.org/sites/default/files/What_Is_Wrong_With_Bt_Cotton.htm>

[5] ‘Agricultural Biotechnology Annual’ (Gain.fas.usda.gov,2017)

<https://gain.fas.usda.gov/Recent%20GAIN%20Publications/Agricultural%20Biotechnology%20Annual_New%20Delhi_India_11-28-2017.pdf>

[6] Rajdeep Banerjee and Joyeeta Banerjee, ‘The Future of Genetically Modified Crops in India | Forbes India Blog’ (Forbes India, 2018) <http://www.forbesindia.com/blog/economy-policy/the-future-of-genetically-modified-crops-in-india/>

[7] K. K. Tripathi, ‘Genetically Modified Organisms: Concerns and biosafety issues’ (2002)15 The national medical journal of India 187.

[8] ‘FSSAI Drafts New Labelling and Display Regulations 2018 – Food Safety Helpline’ (Food Safety Helpline, 2018) <https://foodsafetyhelpline.com/2018/04/fssai-drafts-new-labelling-and-display-regulations-2018/>

[9] A. S. Bawa and K. R. Anilakumar, ‘Genetically modified foods: safety, risks and public concerns-a review’ (2013)50 Journal of Food Science and Technology 1035.

[10] Peter Newell, ‘Lost in Translation? Domesticating Global Policy on Genetically Modified Organisms: Comparing India and China’ (2008) 22 Global Society 115.

Cryptoassets, social media platforms and terrorism financing: a step into the regulatory unknown

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In his new article that will be published in the Journal of Business Law later this year, Professor Nicholas Ryder investigates the link between terrorism financing, cryptoassets and social media platforms.

Terrorism financing was propelled to the top of the international community’s financial crime agenda following the al Qaeda terrorist attacks in the United States of America (US) on September 11 2001 (9/11).  Until these terrorist attacks, the international community largely focused its efforts on tackling the illegal sale and distribution of narcotic substances and related money laundering.  As a result, a global anti-money laundering (AML) policy was developed by the United Nations (UN), the Financial Action Task Force (FATF) and the European Union (EU).  Following the terrorist attacks in 2001, the international community, led by the UN, and heavily influenced by the actions of then US President George Bush, implemented the ‘Financial War on Terrorism’.  As a result of the Financial War on Terrorism, terrorism financiers were forced to modify their funding strategies. Traditionally, terrorists relied on two sources of funding: state and private sponsors. State sponsored terrorism involves government’s providing logistical and financial support to terrorists, or governments even conducting acts of terrorism against their own citizens. However, since the instigation of the Financial War on Terrorism, there has been a decline in state sponsored terrorism and it is more likely that terrorists will receive funding from private sponsors or donors. These sources used by terrorism financiers include drug trafficking, extortion, organised retail theft, fraud, misapplied charitable donations, the sale of conflict diamonds, precious metals, robbery and theft, kidnappings for ransom, counterfeit currencies, oil refining, smuggling artefacts, the abuse of natural resources, piracy, slavery and human trafficking.  The flexibility, creativity, simplicity and sophistication of the terrorism financing models represent an unprecedented threat and risk. 

Cryptoassets

The link between cryptoassets and terrorism financing is evident following several terrorism financing related convictions.  For example, in August 2015, Ali Shukri Amin, was convicted and sentenced to 11 years and four months imprisonment for using the “internet to provide material support and resources” to ISIL.  Amin pleaded guilty and admitted to using his Twitter handle ‘@Amreekiwitness’ to “provide instruction [to ISIL] on how to use Bitcoin … to mask the provision of funds to ISIL.  Another example of terrorism financiers exploiting cryptoassets was Zoobia Shahnaz, who was arrested by the FBI after attempting to transfer $62,000 worth of Bitcoin to ISIL.  The Department of Justice (DoJ) stated that Shahnaz had entered into a number of financial transactions designed to circumvent the transaction reporting obligations imposed by the Currency and Foreign Transactions Reporting Act 1970.  In March 2020, Shahnaz was sentenced to 13 years imprisonment.  Clearly, then, modern forms of technology, especially social media platforms are used by terrorism financiers.  More often than not, the payments made over the internet, the Dark Web or social media platforms involve small amounts of funding which do not raise suspicion.

Social Media Platforms

The anonymity and speed provided by the Internet is an appealing tool for terrorists to solicit financial donors.  In evidence presented to the House Foreign Affairs Committee (Subcommittee on Terrorism, Non-proliferation, and Trade Subcommittee on the Middle East and North Africa) the Washington Institute for Near East Policy stated that some of terrorism fundraising was carried out in plain sight on online social media platforms. The evidence referred to a video uploaded to YouTube in October 2016 by Abd Allah al-Muhaysini who “thanked Gulf donors for supporting jihadists in Syria: ‘As for the businessmen, and I will mention some of them, the ones who prepared these hundred rockets, may Allah reward them … I tell all the businessmen of the Muslims, this is your money now, fighting in the path of Allah’”. Further evidence of the association between social media platforms and terrorism financing is illustrated by the US Department of the Treasury, which in 2014 imposed sanctions on three terrorism financiers for “fundraising appeals on social media”.  Here, the US Department of the Treasury stated that, “Al-Ajmi operates regular social media campaigns seeking donations for Syrian fighters and is one of the most active Kuwaiti fundraisers for Al-Nusra Front.  In July 2014, Al-Ajmi publicly admitted that he collected money under the auspices of charity and delivered the funds in person”.  Further sanctions were imposed on Abdul MohsenAbdullah Ibrahim al-Sharikh, who “is a senior ANF leader and al-Qaida facilitator based in Syria … in this role, al-Sharikh has used social media posts to demonstrate his aspiration to target Americans and U.S. interests”.  Furthermore, in March 2019, Gregory Lepsky was sentenced to 16 years imprisonment after pleading guilty to attempting to provide material support to a designated foreign terrorist organisation.  Here, law enforcement authorities were able to determine that Lepsky had used several social media platforms to plan his terrorist attack.  In September 2019, the US Department of Treasury stated that “HAMAS solicit[ed] Bitcoin donations via social media, using two Bitcoin addressed.  As of late March 2019, those two known addressed had received at least $5,000 worth of Bitcoin”.  These instances illustrate that terrorism financiers are using several social media platforms in an attempt either to solicit donations or to transfer funds to proscribed terrorist groups. 

Conclusion

Terrorism financiers have continued to vary their funding activities.  Terrorism financing has moved away from its traditional funding mechanisms towards exploiting the speed, convenience and anonymity provided by the Internet and Dark Web.  In particular, this paper has identified several examples of terrorism financiers using cryptoassets, such as Bitcoin, and a wide range of social media platforms. There is no doubt that terrorism financing via social media platforms, the ‘Dark Web’ and heavily encrypted mobile devices is an unprecedented problem. 

Surprised? You shouldn’t be.

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By Professor Nicholas Ryder, Head of Research, Global Crime, Justice and Security Research Group

In its 2018 Mutual Evaluation Report (MER) of the United Kingdom’s (UK) level of compliance with its Recommendations, the Financial Action Task Force (FATF) concluded that the UK’s anti-money laundering and counter-terrorism financing regimes were “effective”. In order to implement the FATF Recommendations and achieve this unprecedented endorsement, the UK has adopted an aggressive and, at times, holistic strategy towards tackling financial crime. For example, the UK Government has published two National Risk Assessments (NRA), one in 2015 and the second in 2017. These were followed by the publication of the Economic Crime Plan, which outlined seven strategic priorities and 52 action points. Collectively, these measures have gone some way to address the shortfalls identified in the FATF 2007-2008 MER and they have contributed towards the highest rating ever provided by the FATF. 

In particular, the MER praised the aggressive stance towards investigating and prosecuting money laundering cases, the adoption of Unexplained Wealth Orders, how the UK disrupts terrorism financing, preventing the misuse of companies and trusts and how it works with its international partners. John Glen, Economic Secretary to the Treasury and City Minister said, “I am incredibly proud that today’s report confirms that the UK has one of the strongest regimes in the world for deterring these criminals”. Ben Wallace, Minister for Security and Economic Crime said, “I’m delighted with today’s report which shows our efforts are being recognised, and sends a strong message to criminals that we will come for them, their assets and their money”. However, the Royal United Services Institute (RUSI) stated that “in PR terms at least, the government’s efforts [to tackle financial crime] seem to have paid off, with the UK receiving the highest aggregate scorings under the revised FATF evaluation methodology to date”.  RUSI added that “the UK has achieved top-of-the-class marks from the FATF – government officials will be both surprised and relieved.  However, the fact that the UK remains central to global money laundering schemes brings into question the relevance of this evaluation”. 

These sixth leaked published by the ICIJ since 2012/2013 (Offshore leaks; Luxembourg, Swiss, Panama Papers and the Paradise Papers), alleges that HSBC, JP Morgan, Barclays, Deutsche Bank and Standard Chartered were involved in a variety of related transactions. The FinCEN leaked reports suggest several of the world’s largest banks allowed criminals to move approximately $2tn via illegal financial transactions. The report also suggests that the UK is a ‘higher risk jurisdiction’ and compared to Cyprus. This is due to the number of UK registered companies (over 3,000 according to the BBC) that appears in the suspicious activity reports submitted to FinCEN. If the leaked reports are accurate, they represent a significant blow to the UK’s efforts to tackle financial crime, especially since the ‘glowing’ end of term report from the FATF. The leaked report tells us that despite the rhetoric from the UK government that very little has changed in how the global financial operates.

In the short-term, ‘profound apologies’ will follow, there will be condemnation, the accused financial institutions will receive the customary bad media coverage and share prices will be affected. Financial regulatory agencies will insist that the financial sector improves its levels of compliance, and fines could follow. Prosecutions? Unlikely if previous efforts are anything to go by. In the long term, nothing will change, it never changes.

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.