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

Visiting scholar from the University of the Western Cape in South Africa shares his reflections after visiting UWE Bristol

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In December 2018, visiting scholar  Dr Windell Nortje from the University of the Western Cape in South Africa spent two weeks at the Bristol Law School. Below he shares his reflections of the visit: 

Guest blog by Dr Windell Nortje

I visited UWE between 4 and 18 December 2018. My home institution, the University of the Western Cape (UWC), in Cape Town, South Africa, granted me funding for a two-week international visit at a university abroad. I am truly grateful for the UWC Deputy Vice-Chancellor’s Research and Innovation Office for giving me the opportunity to visit UWE.

In October 2017 I started collaborating with Dr Noëlle Quénivet with a view to writing a journal article. This project turned into a book (Child Soldiers and the Defence of Duress in International Criminal Law) that has been accepted for publication by Palgrave. The manuscript is due to be submitted in March 2019. I approached Dr Quénivet in October 2018 and enquired whether UWE would be willing to host me as a visiting scholar. UWE graciously agreed. In my time at UWE I felt part of the Bristol Law School. I was warmly welcomed by Dr Quénivet, Dr Sarah Grabham, the Head of the Department of Law as well as all the academics and students.

This made my experience at UWE very fulfilling and rewarding.

The initial aim of the two-week visit was to work on the book and to collaborate with some of the academics at UWE. As it turned out, I held two guest lectures and presented my research to UWE academics. In addition, I collaborated with a number of academics with the view to writing journal articles, attended the first annual Criminal Justice Research Unit (CJRU) Lecture and importantly, also discussed the possibility of establishing a new LLM Programme between UWC and UWE. Finally, I also drafted a funding application with Dr Noëlle Quénivet for a potential writing workshop to be held in Cape Town in July 2019. I will be sharing some of the highlights of the activities above.

We are in the final stages of writing the book. Most of the chapters are completed. We are still finalising the conclusions and recommendations. Dr Quénivet had a few new books on child soldiers which I had not yet read and so I was able to incorporate some of the views of these authors in our book. Dr Quénivet and I also discussed the footnoting and referencing of the book as well as a follow-up article to be published in 2020. Dr Quénivet, being a leading expert in the field of international law, has been influential in turning the article into a book. I am grateful for her continuous support and guidance throughout the project. I would also like to thank Ms Shilan Shah-Davis and Dr Suwita Hani Randhawa for their invaluable comments when I discussed the book with them.

In a first for me, Dr Quénivet and I had the opportunity to present a public lunchtime lecture at the Bristol Central Library. This was a unique experience as we presented the lecture in the reception area of the Library and anyone was welcome to attend. The lecture entitled: “Child soldiers: Busting The Myth of their Victimhood to Better Understand who they are”, centred around the myth that child soldiers are victims only and that they should not be held accountable for their crimes. The audience found it fascinating to note that so many girls are also child soldiers since the perception is that the iconic child soldier is that of a boy. However, in some conflicts, the girls outnumber the boys. The audience, who consisted of about 20 people, had an opportunity to ask questions. I was grateful for this opportunity to discuss our work with the public as this is not an opportunity that comes by too often.

At UWE, I was invited by Mrs Evadne Grant to present a guest lecture on the International Law and Institutions module offered on the LLM progamme. The lecture, entitled: “The Fragmentation of International Law: An African Perspective” focused on the fragmentation of international law and how this has resulted in a conflict between African States and the International Criminal Court (ICC). There is no homogenous system of international law as different regulations are applied in different situations, thus a fragmented system. To explain this to the students I used the example of the concept head of state immunity within the context of Africa. The incumbent President of Sudan, Omar Al-Bashir, is wanted by the ICC for the commission of war crimes and genocide. He attended the African Union Summit in South Africa in 2015. During the Summit a South African Court issued an arrest warrant for his arrest. However, he was able to return safely to Sudan and is still wanted by the ICC. As a result, the ICC ruled that South Africa had a duty under the ICC Statute to arrest Al-Bashir. This was affirmed by the Supreme Court of Appeal in South Africa. In the case of head of state immunity, there are various regulations that could be applied in this case hence alluding to the fragmentation of international law. After presenting the lecture, the students had an opportunity to discuss several question posed to them by Mrs Grant. This included whether fragmentation should be regarded as a positive or negative aspect of international law. The students provided constructive feedback on the questions. In South Africa we are not used to this style of interactive lectures, even at LLM level. This was a refreshing experience for me and something that I will be considering at my institution as well.

I was also given the opportunity to present my research at the final Criminal Justice Research Unit/International Law and Human Rights Unit end of semester talk. My research article entitled “The Protection of the Identities of Minors upon Reaching the Age of Majority: Centre for Child Law and Others v Media 24 Limited and Others (871/2017) [2018] ZASCA 140 (28 September 2018)” dealt with the Supreme Court of Appeal’s judgment concerning the ongoing protection of the identities of minors involved in criminal proceedings. The identity of child witnesses, victims and perpetrators when they reach the age of 18 is not protected and it is argued that this could have a damaging effect on the development of the child, depending on whether the case receives wide publicity or not. I received valuable feedback from Dr Tom Smith and Mr Ed Johnston.

I was invited by Dr Smith and Mr Johnston to attend the first annual CJRU lecture which dealt with the disclosure of evidence by the police in the Liam Allan case. It was a fascinating experience for me as this was the first time for myself, and many others, where we could hear the experiences of a former accused, his defence lawyer and the state prosecutor all in one lecture. It was clear from the speakers that the current situation in the UK needs proper reform, and hopefully initiatives such as those of the CJRU will encourage policy change. This event also inspired me to ask questions about the South African law regarding the disclosure of evidence and what lessons could be learned from the UK criminal justice system.

Regarding collaboration, Mrs Grant and I talked about the idea of creating a joint LLM between UWC and UWE in the future. We exchanged ideas and will be looking at funding opportunities to launch a new LLM between our institutions.

Lastly, Dr Quénivet and I embarked on a funding proposal to be submitted to the British Academy which would enable us to hold a writing workshop in Cape Town in July 2019. This workshop will potentially bring together leading international journal editors, UK based scholars and young and emerging African PhD students/scholars and give the emerging PhD students/scholars the opportunity to present an article to the specialist panel and receive constructive feedback on how to publish in international journals. The workshop aims not only to remedy the lack of quality publications by African scholars but also to support them more generally in their career.

In sum, my visit at UWE was an unforgettable experience which has left a lasting impact on my own emerging research profile and my development as a scholar in the field of international criminal law. I hope to see you again in the future!

 

The disclosure crisis: A suspect and practitioner perspective

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On Wednesday 5 December 2018 UWE Bristol hosted the first annual Criminal Justice Research Unit lecture on the topic “The disclosure crisis: A suspect and practitioner perspective.” The event was organised and chaired by Dr Tom Smithand Dr Ed Johnston and funded by the Centre for Applied Legal Research.

Roughly a year ago today our first speaker Liam saw accusations of rape dismissed after the police failed to disclose crucial evidence which fundamentally undermined the claims made against him. Liam gave us a very a personal account of his experiences with the criminal justice system. Jerry Hayes and Anthony Edwards each provided varied and valuable professional perspectives on the problem of disclosure. We hope that this lecture will help to promote meaningful and long term change in this area as well as furthering our goal here at UWE Bristol of research that shapes the future of organisations.

The lecture has been recorded and is available to watch online as a video, or to listen to as a podcast:

View Full video

Listen to Podcast

Liam Allan

Liam Allan is a criminology and criminal psychology graduate who was charged with rape in 2015 and spent two years on bail before his case collapsed owing to failures with the disclosure regime. Liam gave us a very personal insight into his experience and the trauma of accusation, from the moment he was arrested until the case was dropped. Liam described being made to feel that he was “guilty until proven innocent”. Liam arrived at the Crown Court charged with 13 counts of rape; days into his trial, it emerged that the police had 60,000 non-disclosed text messages containing vital information which led to the collapse of the case against him. Following these events, there was huge media interest and public outcry. Subsequently, 600 cases were dropped, 6 of which were rape cases. Since that time, Liam has continued his studies and founded the Innovation of Justice campaign, which seeks to unite organisations, lawyers and barristers, individually seeking to improve different aspects of the criminal justice system.

Jerry Hayes

Jerry was the prosecution barrister for Liam’s trial, and played a fundamental role in the discovery of the non-disclosed evidence. Jerry described some of the fundamental issues with the criminal justice system, in particular in relation to sexual offences. He argued that many members of a jury jump to conclusions in a “no smoke without fire” reaction to rape cases (something Liam suggested he had previously done, prior to his accusation). Jerry emphasised the importance of remembering that people are complainants, not victims, until a conviction or a plea of guilty. Jerry described in detail how and why the system very nearly failed Liam Allan – who would have served up to 12 years in prison and been on the Sexual Offenders Register for life. He suggested that the evidence that was withheld had been deemed “too personal” to be revealed and not relevant to the case. Yet, he argued, it was not only capable of undermining the prosecution case; it made it absolutely clear that Liam Allan could not be guilty. Jerry described Liam’s case as the worst he had seen in 41 years of practice.

Anthony Edwards

Anthony Edwards has been a practising solicitor for 45 years and gave us a professional overview of how disclosure should be handled to avoid major miscarriages of justice. Anthony explained some of the provisions of the Criminal Procedure and Investigations Act (CPIA) and gave an overview of the recent Attorney General’s review of disclosure. He argued that, with sexual offences, there is added complexity and difficulty due to frequent “credibility contest” in such cases – that is, they turn on one person’s word against another. He stated that it is a routine part of defence practice to deal with non-disclosure issues; from major fraud to cases of minor assault. He suggested that poor disclosure practice undermines the criminal justice system, as police and prosecutors do not look for what is actually needed in a case. Anthony highlighted that this issue will not just go away (and not done so for decades), arguing for an enormous cultural shift from the police, the prosecution and defence, to ensure that all evidence is properly disclosed from the start. Anthony highlighted the need for an independent disclosure review process, conducted by an independent barrister, arguing that history tells us that the police nor the prosecution can or will do a satisfactory job. Anthony highlighted the related issues associated with the use of social media by parties in a case; particularly the problems of detecting and accessing such material when it stored on a third party’s account. He asked: how an accused can find such material if they do not know it exists? Anthony suggested that, with an independent disclosure counsel running the process, a significant proportion of cases that currently reach court and are subsequently dropped or dismissed by a jury would be filtered out of the system at an early stage, avoiding injustice.

Question and Answer session

We had a range of questions, some sent in advance and then opened up questions from the audience. Liam talked about how the case affected his personal life and that he was suspended from his job for 2 months. The emotional strain of the case understandably caused Liam to breakdown in court, but he also spoke about the impact on his family and friends. There was much discussion around the CPS and CPIA, whether they were fit for purpose and whether Liam was judged fairly. Anthony and Jerry gave an insightful discussion of the failings of the criminal justice system and how these failings impact genuine victims of sexual abuse. The idea of anonymity for those accused of certain types of offences was discussed by all three speakers, and the idea that it should be anonymous until a judge, because there may be other offences, directs that it should be made publicly known. There was criticism of the CPS and police using their lack of resources as an excuse for their failings, and whether this is a valid excuse or reason, nonetheless it needs to be addressed.

The entire lecture is available online here:

Full video

Podcast

Professor Anthony Arnull’s Distinguished Professorial Address – UWE, 24 October 2017

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‘Should we trust the EU?’ was the controversial title of Professor Anthony Arnull’s Distinguished Professorial Address held on 24 October 2018 at the Bristol Law School, UWE. Prof Arnull who holds the Chair of European Union Law at the University of Birmingham and is the author and editor of a wide range of well-known scholarly works in the field (eg The European Union and its Court of Justice (OUP, 2nd ed, 2006), European Union Law: A Very Short Introduction (OUP, 2017), The Oxford Handbook of European Union Law (OUP, 2015)) started his Address by asking the question ‘What does trust have to do with the EU?’. He pointed out that the concept of trust is increasingly invoked by the CJEU in its jurisprudence. The view of the CJEU is that because Member States share the same values they should trust each other to respect them and thus cannot insist on evidence to show that they are being complied with.

Prof Arnull’s first task was to define the notion of ‘trust’. First, he noted that in an article published in 2004 Lenaerts identified a number of principles that should enhance the trust of individuals in the EU: transparency, equality of arms, legal certainty and predictability, and sound administration. (‘In the Union We Trust’: Trust-Enhancing Principles of Community Law’ (2004) 41 CMLRev 317-343). Writing on the same issue in 2017 Lenaerts explained that the CJEU was expecting the constitutional courts of all Member States to monitor the lower courts. (‘La vie après l’avis: Exploring the Principle of Mutual (yet not Blind) Trust’ (2017) 54 CMLRev 805-840).

Looking at the concept in a more general way Prof Arnull explained that Baier understands trust as ‘reliance on others’ competence and willingness to look after, rather than harm, things one cares about which are entrusted to their care’ but that it might be possible to add another dimension to trust, that of risk, a notion introduced by Niklas Luhmann in his extensive writings on the subject. In this context, both parties expect things to go smoothly for the benefit of both (eg hiring a babysitter). So, the question boils down to asking how can someone draw the conclusion that another person is trustworthy? After all, it is about good judgment and usually one relies on evidence to establish such trustworthiness. In other words, the question is: ‘does the person have a good track record?’ Sometimes as it is not easy to gather evidence one needs to use proxy indicators. This is particularly the case in decentralised systems when it is often difficult to find whether trust is met. Trust can indeed be misplaced and so there might be a lack of trust.

Going back to the European Union Prof Arnull asked whether it is rational to trust the EU. He observed that a high degree of trust had been displayed by the European States between the 1950 Schuman declaration and the 1957 Treaty of Rome that established the European Economic Community. Yet, the States also seemed not to trust each other, considering the possibility that a State might not live up to its treaty commitments. The Commission was tasked with ensuring that the treaty be applied, and an enforcement procedure was established under Article 169. Prof Arnull also went back to the enforcement procedure under the European Coal and Steel Community to prove his point. After all, the idea of policing States tends to show a lack of trust. Such an argument is supported by the introduction in the Treaty of Maastricht of the possibility for the Commission to start a second set of proceedings against States with a view to obliging them to pay financial penalties if they did not comply with the initial CJEU judgment. The Lisbon Treaty went a step further allowing the Commission to ask for financial penalties to be applied without having to seise the CJEU again, though that is only allowed in limited circumstances (Article 260(3) TFEU). Prof Arnull argued that there is trust in the Commission to enforce EU law but it was much higher in the past, especially under the European Coal and Steel Community. The Amsterdam Treaty also introduced in Article 7 TEU the possibility to check on States failing to comply with the key values of the European Union. Now such a procedure is being used against Poland and Hungary.

Prof Arnull then provided a myriad of examples of trust and lack thereof towards both Member States and the institutions of the European Union. As he pointed out in the Q&A session the permutation of trust relations in the EU does not permit a structured analysis of how trust works in the EU. He also explained that mutual trust is the basis of EU law as well as an assumption. That being said, if there is a lack of trust it does not mean that there will be no trust anymore; rather, it means that trust must be re-established at a later stage.

The application of the European Arrest Warrant is an example of the trust or lack thereof between EU Member States as the recent preliminary reference to the CJEU on a case brought by an Irish court shows (Case C-216/18 PPU). Indeed, the Irish court questioned whether the right to fair trial would be guaranteed should Ireland extradite the individual to Poland.

With regard to individuals and how much they can trust the EU, Prof Arnull highlighted that originally, under the ECSC treaty, legal and natural persons had a relatively easy access to judicial review but the Treaty of Rome severely curtailed that right. The reason for this was that such judicial review was viewed as detrimental to the good functioning of the then European Economic Community.

To ensure though that individuals benefitted from EU law, the Court established the principles of direct effect and supremacy. If it had thought the Member States could be trusted to comply with EU law it would have probably not created these principles. The CJEU also works on the basis of trust in the sense that it assumes that the highest national courts comply with EU law as well as monitor lower courts. Unfortunately, this was recently put to the test as the Danish Supreme Court refused to follow a preliminary reference in 2016 (Ajos Case). So, if a constitutional court does not comply with EU law such monitoring disappears or, at least, becomes more difficult. Some academics claim that the Danish court’s reaction was because it views the CJEU as too activist and this does not work well with the Danish legal culture. The question however is why such an issue is raised after Denmark has been for so many years in the European Union.

The European Commission is viewed as one of the most powerful institutions and so trust in it is paramount. Unfortunately, a number of events have permitted us to doubt the trust we put in it. For example, in 1999 the Santer Commission resigned. In 2006 Edith Cresson, a Commissioner, was found guilty of misconduct (Case C-432/04). More recently in 2018 the Ombudsman has had to deal with two cases of maladministration against the Commission, the first one relating to Barroso, the former President of the EU Commission taking up a job as advisor with Goldmans Sachs and, the second one relating to the appointment of Selmayr as Secretary-General. It should however be noted that in the latter case the Ombudsman did not attack the individual, rather it was the process that led to his appointment that was put in question. This all does not look good when the Commission is, according to the treaties, the guardian of the treaties and yet seems to contain a number of individuals who cannot be trusted.

The history of the European Monetary Union (EMU) is another point in case. Italy wanted to play a strong role in the EU and thus had to show that it fulfilled the convergence requirements to be part of the EMU. The criteria were flexibly interpreted in 1998 and so Italy became part of it. Later, Italy and Greece became the victims of the 2008 financial crisis. This led to asking the question why Greece had been accepted in the Eurozone in the first place. The criteria, so it seemed, did not appear to have been rightly applied or, possibly, there was a deliberate attempt by Greece to mislead other EU Member States. In any case the issue of trust was raised in this context. The problem was that the Council is the only body that can oblige a State to correct the deficit within a certain timeframe. Yet, the Council, notably due to its composition is unwilling to do so. As a result we end up in a situation whereby commitments are made but not upheld and then the breach is not rectified because of collusion between Member States. All this reveals that the actors at stake cannot be deemed trustworthy, at least in the field of monetary policies.

Another good illustration of the issue of trust in the EU is the enlargement process. At the Copenhagen European Council it was agreed that Cyprus could become a Member of the EU and that accession by a united Cyprus was encouraged. Consequently, the process launched by Kofi Annan, then Secretary-General of the United Nations, was supported by the EU. Yet, the EU did not attach any conditionality and so, despite the rejection by the Greek Cypriots of the unification of the island in a referendum organised by the United Nations, the EU allowed Cyprus to join the EU but on the understanding that the acquis was suspended in the northern part.

In conclusion, Prof Arnull explained that first the EU treaties have express provisions showing the lack of trust in the Member States. Second, practice also reveals that at times neither the Member States nor the EU institutions can be trusted. In other words, there are many reasons for not trusting the EU and the Member States. Does that mean that there is a crisis? No, according to Prof Arnull. Rather, all institutions must show that they are trustworthy and this can be done by setting practical guidelines and examples of good governance.

Bristol Law School’s Thomson Reuters Legal Student Representative awarded First Place Award at the annual Thomson Reuters Conference

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2nd year Law student Anita Dangova has been named First place at the annual Thomson Reuters Conference for the work she has achieved this year as a Thomson Reuters Legal Student Representative (TRLSR).

As a TRLSR, Anita organises different Westlaw workshops and sessions to help her fellow students achieve the best results possible.

As part of her role, Anita has worked closely with the Bristol Law School librarians to produce customised workshops and sessions for our students currently involved in the African Prisons Project (APP).

The APP offers high quality, accessible legal services to the most marginalised communities in East Africa through their training and leadership programme.

They operate in partnership with those who live and work within the justice system – from prisoners, to prisons staff and the judiciary – to those in government and other agencies, with individuals and organisations, towards a common goal, ensuring that everyone has access to justice.

Anita and the School Librarians have helped the APP Research Associates conduct their research effectively, using Westlaw. The research can be exported and shared with the group leaders from the APP which may be the first steps towards an African prisoner’s freedom.

Congratulations to Anita for the award and congratulations to both Anita and the Law School Librarians for a great collaboration!

Guest blog post: A student representatives’ perspective of the Times Higher Education awards ceremony

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Guest author: Mia Collins, 3rd Year Business and Management Student 

Currently in my final year of studying Business and Management, I have been fortunate enough to represent the department as its Lead Department Representative and the Finance, Business and Law faculty as its Learning, Teaching and Student Experience Committee member. These roles have demonstrated huge benefits to my educational and professional development, yet, the most monumental opportunity the positions have brought me is attending the Times Higher Education Awards in London. As a typical student does, I have had significant exposure to Bristol’s nightlife – but none of them compare to the night I had at the awards ceremony.

The night began on, rather, a stressful start; having only 1 hour to get to get ‘black tie’ ready, I was under significant pressure– for those who know me well enough, will understand exactly the level of stress I mean. Despite this, I was immensely excited. We ventured over to the JV Marriott Grovesnor House in London, where we were met with bubbly and snacks. Walking into the reception room, in itself, was an experience; everyone had gone above and beyond with their appearance and looked fantastic. Before the night had really began, this was a great opportunity for me to get to know the people who facilitate the day to day operations of UWE; as a team of 14 (2 being myself and Lily Liu, the only students in attendance), were able to get to know the likes of Steve West, Donna Whitehead and lot more. Before one too many glasses of prosecco, we got a #teamUWE picture:

(Don’t we scrub up well!)

After a chatter and a social, we were taken into the main awards hall. Merely walking towards the hall, you are greeted by the most amazing floor imaginable (see below). From the onset, everything about the night was glamourous. Once we (eventually) found our tables, we sat down to a starter of crispy salt cod fritter (essentially, the fanciest fish finger ever), followed by slow braised beef short rib with vegetables, finishing off with a Greek yoghurt tart and petits fours – yum.

As time went on, the more nervous we all became, and before we knew it, our category was up next. We had thankfully been shortlisted, for the second year in a row, Business School of the Year and were up against some intense competition. The category was announced… UWE’s participation was mentioned… a huge cheer from all of our 3 tables… on the very edge of our seats…the winner was announced… and THEN, ah. ESCP Europe Business School were awarded the winners of 2018. Despite not winning, this year(!), we didn’t lose spirit. We were up for Most Innovative Contribution to Business-University Collaboration. Again, we didn’t quite get it this time; we did, however, receive a special commendation for our efforts. Not all bad, eh?

The night didn’t end there – a disco was to follow. Thankfully, we were sat the closest to the stairs, so UWE were the first to get to the dancefloor. I must add, we took over the ENTIRE dance floor, truly a UWE takeover. The night didn’t purely involve partying, it was a great opportunity for me to develop my networking skills and get to meet some senior figures from all across the country – one in particular, the Sponsorship Director of the Times Higher Education awards. After hours of singing our hearts – out at the very top of our lungs – lunging and squatting(?) to the beat and showing the other universities why UWE really are the best, the disco came to an end – it takes a lot of skill and endurance to be the FIRST and LAST ones on the dancefloor, but we executed it so well.

We got back to our hotel in the early hours of the morning and, with no voice left and feet in agony from high heels, we sat in the lobby, each with our takeaway laughing and chatting until it was time for bed.

The night as an entity was phenomenal, I am incredibly grateful to be 1 of the 2 students fortunate enough to attend. I’ve not only taken away great memories from it but have also made great relationships with senior staff whom I would never usually have the opportunity meet. A huge thank you to everyone who facilitated the evening and made it as incredible as it was. Every day I am more and more honoured to represent UWE and everything we achieve. Bring on Business School of the Year 2019!

Below are a few photos from the evening:

   

Student blog post: To which extent is it possible to include cultural genocide in the definition of genocide as stated in the ICC Statute?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, 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 Noelle Quenivet. Learning and teaching on the module was developed by Noelle 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.

Guest author: Nikita Isaac

In this blog post I am addressing the highly topical issue of ‘cultural genocide’ and its potential inclusion in the definition of genocide. Whilst there is no legal definition of cultural genocide, we can still consider it as falling within the definition of genocide as stated in Article 6 of the ICC Statute. Several definitions of cultural genocide have been propounded by academics, one being a ‘purposeful weakening and ultimate destruction of cultural values and practices of feared out groups’ (pp 18-19). I believe that cultural genocide is present in many situations such as Darfur. This blog post argues that it is possible to include cultural genocide in the definition of genocide.

Signature of the Genocide Convention (Source: here.)

The work of Lemkin who coined the term genocide supports my view as in his broad definition he included cultural genocide alongside physical and biological genocide. He believed that physical genocide and cultural genocide were ‘one process that could be accomplished through a variety of means(D Short, ‘Cultural Genocide and Indigenous Peoples: A Sociological Approach’ (2010) 14 IJHR 833, 835), whether through mass killings or coordinated actions aimed at destroying essential foundations of group life.

The resulting definition in the ICC Statute is far from what Lemkin envisioned as still today cultural genocide is unrecognised legally. The travaux préparatoires of the Genocide Convention included a section on cultural genocide which was then excluded from the final version even though it had been deemed a serious human rights violation and thought to be a stand-alone crime. It is this version, that of the Genocide Convention, that was adopted in the ICC Statute. Political factors had played a part in the exclusion of cultural genocide as the United States were against formulating criteria relating to cultural genocide given their historical relationships with indigenous peoples (L Kingston, ‘The Destruction of Identity: Cultural Genocide and Indigenous Peoples’ (2015) 14 Journal of Human Rights 63, 65). So, ‘[t]he wording of the Convention was shaped … not to criminalize their own behaviour’ (C Powell, ‘What do Genocides Kill? A Relational Conception of Genocide’ (2007) 9 Journal of Genocide Research 527, 532).

The ICC Statute preamble states that parties to the statute are ‘[c]conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time’. Thus, if culture is a protected interest by the states that are parties to the ICC Statute why is cultural genocide not recognised?​​​​​​​

This picture shows how indigenous children were stripped of their cultural identity when forced into westernised schools. (Source: here.)

The example of what has happened to some indigenous groups in North America such as the Winnemem Wintu (see article by Kingston) substantiates my view that cultural genocide should fit within the definition of genocide. Cultural genocide affects these tribes as their culture and identity are stripped away over time and destroyed, though they may not suffer physical harm. The Winnemem Wintu are federally unrecognized (Kingston, p 70) by the US government and so are unprotected. Of the 14,000 Winnemem Wintu people only 123 remain (Kingston, p 70). They have continually lost land from the 1800s onwards (Kingston, p 70) and their cultural life as they know it is being decimated in front of their eyes. Their very means of life have been restricted through fishing bans, using plants for medicine and loss of ceremonial grounds (Kingston, p 70). The definition of genocide clearly does not safeguard indigenous people even though the loss of culture to them is just as devastating as loss of life (Kingston, p 72; see also this video). The UN Declaration of Rights for Indigenous People offers protection now, but it has taken over 60 years to reach this point and in that time indigenous people suffered detrimentally. I argue that culture can be seen as a fundamental human right. Yet, although this shows progress with regard to cultural issues, in no way does it criminalize the behaviour against indigenous people which means that there is still no international platform to criminalize cultural genocide.

This picture displays the shocking difference before and after a child was forced into school (Source: here.)

A case which reaffirms my opinion is Prosecutor v Krstic as it dealt with the genocide of Muslim men and boys in the safe area of Srebrenica (see video). It is interesting to note that the ICTY opened the discussion of cultural genocide stating that ‘[t]he destruction of culture may serve evidentially to confirm an intent, to be gathered from other circumstances, to destroy the group, as such (para 53). So, it is taken that cultural destruction satisfies the test of dolus specialis needed to fulfil the mens rea of genocide. Judge Shahabuddeen dissenting acknowledged, ‘it is not convincing to say that the destruction, though effectively obliterating the group, is not genocide because the obliteration was not physical or biological’ (para 50). So, referring back to the Winnemem Wintu, although they have not physically or biologically suffered, it does not mean that they have not suffered through other means. The Winnemem Wintu have suffered through losing their culture due to the construction of a dam on their historic and sacred land. This undoubtedly reinforces the claim that cultural genocide can be recognised via case-law despite not being expressly included in the statute of an international criminal tribunal.

(Source: here.)

Overall, I truly support the idea that it is possible for cultural genocide to be included in the definition of genocide as stipulated in the ICC Statute. As discussed, originally, a much broader definition of genocide was drawn up that included cultural genocide; however, this was excluded, thereby leaving indigenous people unprotected for decades. This has had a knock-on effect in the case law which, although making obvious references to cultural issues in relation to genocide, does not recognise ‘cultural genocide’ as a crime as such.

Voluntary work through UWE Bristol helps inmates in Kenya get a law degree

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Law students from Bristol Law School have helped inmates and wardens in prisons in Kenya to study for a law degree, by giving them access to course materials and providing legal tuition through a volunteer project over the summer.

Several students from UWE Bristol worked with the three biggest high-security correctional institutions in Kenya through the African Prisons Project (APP), a charity that gives inmates and prison officers the chance to study for a law degree through the University of London.

Twenty-five students (19 first years and six second and third years) first spent several months meticulously resourcing and downloading legal materials from the Westlaw and Lexis libraries, with the help of the faculty librarian.

They then sent these over to the men’s (but also some women’s) prisons to help the African students, given that most of the institutions do not have access to the internet. This provided the students with valuable reading materials they would otherwise not have been able to access, and led to them gaining higher marks in their final examinations.

Starting in July, five UWE Bristol law students then travelled to Kenya for four to 10 weeks, where they taught a foundation course for those inmates and prison officials looking to start the law degree.

Kathy Brown, who is senior lecturer in UWE Bristol’s department of law and who overseas student participation in APP, said: “Studying for a law degree has enabled the prisoners to gain a higher level of education, act as paralegals for other inmates and represent themselves in court. Many of them are given extreme sentences for relatively small crimes, such as being given death penalty for aggravated burglary, and are on remand for several years.

“Prison officers, who are badly paid, are also given the chance to learn a discipline and make a better life for themselves, as well as provide better support for the prisoners. Often this leads to them no longer seeing prison as a place of punishment but a place that must enable change for vulnerable members of society.”

In September former inmate Morris Kaberia was released from Kamiti high security prison, when his sentence was quashed after serving 13 years. Fellow inmates formed part of the legal team that prepared court documents and these helped him to defend himself successfully in court. During his second appeal, the court found that Kaberia’s rights at the original trial had been violated and ruled against both his sentence and conviction.

Although a free man, Kaberia still regularly attends Kamiti, one of the prisons UWE Bristol’s volunteers work with, to finish the final year of his law degree. Brown said: “It used to be notoriously violent and dangerous, but it isn’t anymore and I think the culture of education has made it a place of learning.

“By supporting APP to deliver legal education, our students have contributed to the likely success of hundreds of inmates being released due to the work of the inmate paralegals. Those students who undertake the LLB in prison are also more likely to be considered for presidential pardons.”

The five students who travelled to the East African country were selected based on their motivation, rather than on academic achievements so far on their law degree programme. UWE Bristol sponsored the trip by paying for expenses. “This was about giving students that would otherwise never have done these things, a chance to shine,” explained Brown.

Kelly Eastham, a second year law student who travelled to Africa as part of the scheme, said: “I never thought I would spend my summer working in three maximum security prisons in Kenya and that these would be the places that would inspire me the most. I am beyond moved by every single inmate and their motivation to achieve a law degree purely to help others with no regard for financial gain.”

Third year student George Ufumwen, who also volunteered, said: “I am very grateful for this opportunity as I would not have been able to finance this of my own accord. Integration into the project has given me new found confidence, as I was able to work closely with other students in a dynamic environment and gain a good understanding of how these skills work in a real life scenario.”

So far, through the APP scheme, which also works in Uganda, three inmates have graduated with the LLB law degree in Uganda and two in Kenya. Eight more are set to graduate in October.

Student blog post: With Reference to the Case-Law of the European Convention on Human Rights Do Prisoners Have the Right to Vote and, if yes, to which Extent?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, 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 Noelle Quenivet. Learning and teaching on the module was developed by Noelle 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

Guest author: Magdalena Vakulova

Introduction

The right to vote has always been a hot topic. In fact, fights to achieve universal suffrage have been here for centuries, and still continue today. Even though the right to vote is one of the basic principles of democratic society and the strongest ‘say’ the citizen can have as well as one of the fundamental human rights encapsulated in Article 25 of the International Covenant on Civil and Political Rights (ICCPR) there are still many ambiguities over potential restrictions to this right.

The current law in the United Kingdom denies the right to vote to prisoners while incarcerated (People Act 1983, part 1 section 3). However, according to Hirst, a case decided by the European Court of Human Rights, the denial of right to vote for prisoners falls outside the given margin of appreciation as the automatic ‘blanket ban‘ contradicts the very essence of this right.

Referring to the relevant case law I will examine the right to vote for prisoners in the UK. I decided to focus on the UK because the judgment (Hirst v UK) was not only the first one in a long series of cases relating to universal suffrage for prisoners but was also applied in different jurisdictions across Europe. I will be arguing that even though the States were given a wide margin of appreciation to exclude prisoners from the voting process, this can only be done if it does not violate the whole essence of the right. In my opinion reasonable restrictions of this right should be allowed and approved as compatible with Article 3, 10 and 14 of the European Convention on Human Rights (ECHR)

Mr Hirst’s Argument

In this video Mr Hirst, convicted of murder, argues in favour of prisoners’ right to vote as a basic human right. 

The Right to Vote as the Basis of Democract

First, we must understand that the right to vote is not only a basic aspect of citizenship but also viewed as the ‘core principle’ (L Beckman ‘The Right to Democracy and the Human Right to Vote: The Instrumental Argument Rejected’ (2014) 13 Journal of Human Rights 381) of the democratic system (Watch this video which explains why a voting right for everyone is so important in a democratic society.) In order to ensure effective democracy within the State the basic human rights of every citizen (Scoppola v Italy, para 51) must be preserved and this without discrimination or unreasonable restrictions incompatible with the terms of the ECHR (Hirst v UK (paras 27 and 41)). Moreover, everyone’s right to participate in voting is implied in Article 21 of the 1948 Universal Declaration of Human Rights and more explicitly outlined in Article 25 of the ICCPR where the right to vote is established as a binding norm of international law. Further Article 3 of Protocol 1 to the ECHR states that the right to vote is not only the key aspect of effective political democracy but also an important element of the Convention system (Mathieu-Mohin and Clerfayt v Belgium, para 47). Therefore the exclusion of prisoners from the right to vote must be reconcilable with the purposes of Article 3 of Protocol 1 (Hirst v UK (No. 2), para 62). However, in my opinion, the UK has departed from this fundamental norm as it has prevented prisoners from exercising this basic right and so has fully blocked their access to the democratic system.

The Margin of Appreciation and UK Arguments 

In the case of Hirst v UK it was held that a blanket ban on prisoners’ right to vote under s. 3(1) of the 1983 Act is not compatible with Article 3 of Protocol 1. Even though the States are endowed with a wide margin of appreciation and the rights under Article 3 are not absolute, the automatic ban falls outside these margins (Hirst No 2, para 82) as it is not proportionate (Scoppola, paras 93-102; Hirst No 2, paras 76-85) (see also Sauvé v Canada (Supreme Court of Canada), paras 37 and 54-62).

The first  argument that the UK submitted to the European Court of Human Rights was that as prisoners had breached a social contract, they lacked moral virtue and therefore did not deserve this right. The second ground of the government’s reasoning was that this restriction was a punishment which helped enhancing civic responsibility (Hirst No 2, para 50).

The Response of the ECtHR to the UK Arguments 

The ECHR rejected the UK arguments. Firstly, it argued that the lack of moral virtue is contradictory to the fact that the State requires prisoners to fulfill other civic duties. Moreover the ECHR emphasized that the right to vote is a right and not a privilege (see also Sauvé, paras 14, 19-24 and 37; Hirst No 2, paras 59 and 75) which you deserve through a good moral virtue.

Secondly, it was held that incarceration per se is not a reasonable justification for violating fundamental rights. Whilst the ECHR to some extent approved the idea of a voting ban being understood as a punishment (Hirst No 2, paras 74-75, see also Dikson v United Kingdom) it however stressed that any such restriction  needed to have a clear link between the punishment and the restriction (see Hirst No 2, Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens, para 8 and Dissenting Opinion of Judge Costa, para 3). Yet, there was no such evidence that the UK had even thought about the link to the offense (see discussion by Weston) or any other justification of the punishment. In contrast the UK applied the automatic ban to every prisoner. The UK reasoning was not objective at any point and therefore I agree that the ban contradicts the very essence of the universal suffrage (see Mathieu-Mohin, para 52).

Conclusion 

In my opinion the reasoning of the European Court of Human Rights in Hirst was correct as the UK’s justification for the ban was discriminatory and not legally tenable. In this light I think that the UK should carry out debates and amend the current legislation so that the restriction of the right to vote is possible to some extent at least. Furthermore I believe that enfranchisement will help prisoners in their rehabilitation.

Future Impact Webinar Series: The exploitation of money by financial criminals – do you know enough?

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The second webinar, taking place on the 15th November from 12pm, in the Future Impact Webinar Series will aim to illustrate the threat posed by financial crime. The webinar concentrates on the current trends adopted by financial criminals towards disguising their proceeds of crime, the threat posed by terrorist financing and the problems associated with increasing levels of compliance.

Nicholas Ryder, Professor in Financial Crime, will head up a panel tackling these questions and the problems associated with increasing levels of compliance. Hosted by Dr Noordin Shehabuddeen, with guest panellists from PwC and Lexis Nexis, this webinar promises to tackle the big questions and leave you better prepared to take positive action to protect you and your business.

Nicholas is a Professor in Financial Crime who has authored four monographs: The Financial War on Terror (2015), The Financial Crisis and White Collar Crime (2014), Money laundering an endless cycle (2012) and Financial Crime in the 21st Century (2011). Nicholas has also published two edited collections The Financial Crisis and White Collar Crime – Legislative and Policy Responses (2017) and Fighting Financial Crime in the Global Economic Crisis: Policy, Trends and Sanctions (2014). He has also authored three text books The Law Relating to Financial Crime in the United Kingdom (2013 and 2016) and Commercial Law: Principles and Policy (2012).

The Bristol Business Engagement Centre (BBEC) at Bristol Business School is proud to present our Future Impact Webinar Series. This webinar series will feature exciting new developments in technology, science and management practice and highlight their impact on the future of business and society. Thought provoking yet practical, you will develop a better appreciation of what these advances will mean for you, your business and community.

Register for your free place here.