Climate Change Litigation – A Vehicle for Changing Corporation and State Behaviour?

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By Johanna Reichel, Second Year, LL.B. Programme.

With only nine years left until climate change becomes irreversible,[1] stopping or slowing it down becomes increasingly crucial every day. One judicial instrument among others to combat climate change is climate change litigation which is gradually perceived to change climate-related policy outcomes and corporate behaviour.

The most prominent case when talking about climate change litigation is Urgenda.[2]In this case, the Dutch Supreme Court ruled in favour of 900 citizens assisted by the Urgenda Foundation and ordered the government to reduce greenhouse gas emission (GHG) by at least 25% by the end of 2020.[3] This “show horse” of climate change litigation is an almost perfect example of invoking human rights to force States to act ‘greener’.

Climate change litigation cases, especially ones relying on human rights, are increasing.[4] When the defendant is the respective government, the claimants can rely on human rights. Especially the right to life[5] and the right to effective remedies[6] have been used more often strategically and successfully by NGO’s and individuals.

Urgenda paved the way for other individuals, such as Ashgar Leghari, a farmer in Pakistan, to hold their governments accountable via litigation. Mr Leghari challenged the Pakistani government for its failure to carry out core provisions of the National Climate Change Policy of 2012. He succeeded and the government was ordered to implement a climate adaption plan.[7]

In 2018, Colombia’s Supreme Court ordered the authorities to implement action plans to address deforestation in the Amazon,[8] another major cause of climate change. As the ‘lung of the world’, the Amazon Forest stores large amounts of carbon that would otherwise be released into the atmosphere and thereby increasing the world’s temperature.[9]

As demonstrated, climate change litigation is a tool to influence climate change law and policy. Nevertheless, as corporations are responsible for over 71% of global emissions,[10] holding them accountable is essential to stop climate change. However, as the provisions in the Human Right Charters are only addressed to public bodies, corporations cannot be held liable under them.[11] After failed attempts in the early 2000s,[12] the second wave of litigation rose with cases such as Huaraz Case[13] where Saúl Luciano Lliuya, a Peruvian farmer, is suing the German multinational energy company RWE in Germany to hold them accountable for their impact on climate change. He is basing his claim on the German Code of Civil procedure, yet the outcome must be awaited as SARS COVID-19 delayed the process.[14]

The precedent for climate change litigation against corporations was recently set in Milieudefensie v Shell.[15] In May 2021, Shell was ordered to cut their GHG by 2030 by 45%.[16] Relying on the Urgenda precedent and the fact that Shell’s GHG was twice as high as the Netherland’s, the court permitted the claim under the European Convention on Human Rights.[17]

Despite the fact that courts do not always rule in favour of the environment, corporations can be influenced to act ‘greener’ due to media coverage. ExxonMobile, for example, misled the public about climate change’s potential business risks to rationalize their behaviour by funding climate change denial front groups and spreading disinformation about climate science.[18] Despite winning the case, the subsequent public and financial scrutiny damaged their reputation, and their credit rating was downgraded.[19] In conclusion, climate change litigation is accurately seen as a tool to influence climate change policies and corporate behaviour. However, cases such as Urgenda and Milieudefensie, while demonstrating an ideal outcome, are rare and must be built upon. Milieudefensie, in particular, needs to be further observed as Shell will undoubtedly appeal the decision. Nevertheless, even unsuccessful cases can drive climate change action long term as public awareness is raised through media attention and a broad public discussion is forced.


[1] General Assembly, Only 11 Years Left to Prevent Irreversible Damage from Climate Change, Speakers Warn during General Assembly High-Level Meeting (28 March 2019) < https://www.un.org/press/en/2019/ga12131.doc.htm> accessed 18 May 2021

[2] Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007

[3]’Climate Case – Urgenda’ (Urgenda, 2019) <https://www.urgenda.nl/en/themas/climate-case/> accessed 18 May 2021;  Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007

[4] Elisa de Wit, Sonali Seneviratne and Huw Calford, ‘Climate Change Litigation Update’ (Nortonrosefulbright.com, 2020) <https://nortonrosefulbright.com/en/knowledge/publications/7d58ae66/climate-change-litigation-update> accessed 24 May 2021

[5] Universal Declaration of Human Rights 1848, art. 3; International Covenant on Civil and Political Rights 1966, art. 6

[6] Universal Declaration of Human Rights 1848, art. 8; International Covenant on Civil and Political Rights 1966, art. 2(3)

[7] Asghar Leghari v Federation of Pakistan (2015) W.P. No 25501/201

[8] Demanda Generaciones Futuras v. Minambiente 11001-22-03-000-2018-00319-01, para 3.

[9] Ross W. Gorte and Pervaze A. Sheikh ‘Deforestation and Climate Change’ (Congressional Research Service, 2010) < http://forestindustries.eu/sites/default/files/userfiles/1file/R41144.pdf> accessed 2 July 2021

[10] Tess Riley, ‘Just 100 Companies Responsible For 71% Of Global Emissions, Study Says’ (the Guardian, 2017) <https://www.theguardian.com/sustainable-business/2017/jul/10/100-fossil-fuel-companies-investors-responsible-71-global-emissions-cdp-study-climate-change> accessed 18 May 2021

[11] European Commission, ‘How to report a breach of your rights’ https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/how-report-breach-your-rights_en accessed 26 May 2021

[12] Michal Nachmany and Joana Setzer, ‘Global trends in climate change legislation and litigation: 2018 snapshot’ (2018) Graham Research Institute on Climate Change and the Environment < https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2018/04/Global-trends-in-climate-change-legislation-and-litigation-2018-snapshot-3.pdf> accessed 24 May 2021

[13] Agence France-Presse, ‘Peruvian farmer sues German energy giant for contributing to climate change’ The Guardian (14 November 2017) < https://www.theguardian.com/world/2017/nov/14/peruvian-farmer-sues-german-energy-giant-rwe-climate-change> accessed 24 May 2021

[14] Luciano Lliuya v. RWE AG Case No. 2 O 285/15 Essen Regional Court

[15] The Hague District Court, 26 May 2021, ECLI:NL:RBDHA:2021:5337, English translation ECLI:NL:RBDHA:2021:5339

[16] Roger Harrabin ‘Shell: Netherlands court orders oil giant to cut emissions’ BBC News (26 May 2021) < https://www.bbc.co.uk/news/world-europe-57257982> accessed 26 May 2021

[17] Milieudefensie v Shell [2019] District Court of The Hague < http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190405_8918_summons.pdf> accessed 26 May 2021

[18] Suzanne Goldenberg ‘ExxonMobil under investigation over claims it lied about climate change risks’ The Guardian (New York, 5.11.2015) <https://www.theguardian.com/environment/2015/nov/05/exxonmobil-investigation-climate-change-peabody> accessed 8 July 2021

[19] Megan Darby, ‘Shareholder Pressure Mounts On Downgraded Exxonmobil’ (the Guardian, 2016) <https://www.theguardian.com/environment/2016/apr/28/shareholders-pressure-mounts-on-downgraded-exxonmobil-climate-change> accessed 25 May 2021

Students launch legal directory to help aspiring lawyers

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Lawtask is an online legal directory designed to help future lawyers bridge the gap between leaving university and securing their first positions in their legal careers. Lawtask allows students to gain professional skills and experience, in their pursuit of a legal career. This is achieved through the consolidation of relevant and practical opportunities and resources.

Set up in 2020, Lawtask was founded by Alessia Cucciniello, recent UWE Bristol Law graduate, and Kieran Woodhouse, LPC LLM student at UWE Bristol. Both have ambitions of becoming solicitors and have also been involved with the UWE Bristol Law Society, with Kieran being elected Vice-President.

Formed during the Covid-19 pandemic, Lawtask was a response to the competitive legal sector that students are faced with when leaving University. Alessia and Kieran launched Lawtask to enable law students to stand out through providing knowledge sharing and useful tools to give students a great place to start in the pursuit of their legal careers.

“Our aim was to bridge the gap between graduating university and securing your first legal job. There are plenty of resources out there to choose from, and our aim was to collect them in an easily accessible platform that could help students gain essential skills to stand out.”

Alessia

They explored the concept of virtual learning and discovered the huge variety of MOOCs (Massive Open Online Courses) that applied to legal students. These courses demonstrate transferable skills and a drive to seek personal improvement that employers are truly looking for.

“One thing we realised when searching for these and other relevant experiences, was that there is no single place for law students to discover the opportunities open to them. This then sparked the concept for Lawtask.”

Kieran

The platform is still in its early stages, however, the pair have seen great success so far. The feedback they have received from both students and staff at UWE has been hugely positive and led to consistent audience growth and user interaction.

“Our hope for the future is to be able to grow and provide more opportunities for students. We would like to expand our platform and start offering real work experience that graduates can use on their job applications, in order to truly help them succeed. We are still working on this, but we hope that we will be able to do this very soon.”

Alessia

“My ultimate hope for Lawtask is that it becomes the norm for law students to consider looking outside the traditional scope of experience and learning and that Lawtask can be a place that can guide people to something beneficial for them.”

Kieran

We asked them both for their advice to current students and here’s what they said:

“My advice to current students is to make good use of all the resources and opportunities offered by UWE and engage with the societies. Not only this will enhance your student experience, but it might also give you essential skills that you will carry with you and shape your future career.”

Alessia

“In my personal experience, so many people emphasise their degree being the absolute evidence of their ability to do anything and so often people forget the importance of personal development. With that in mind, my advice would be to take the opportunities that you have available to you either within your subject or elsewhere because now is the time to explore them. Who knows, you may find a whole new career aspiration.”

Kieran

You can visit Lawtask here.

Twitter Bitcoin Scam

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By Henry Hillman, Lecturer in Law at UWE Bristol.

On 15 July 2020, numerous high profile Twitter users’ accounts were hijacked to display messages promising to return double the Bitcoin sent to a published Bitcoin address. Compromised accounts included Barack Obama, Elon Musk, and Kim Kardashian,[1] as well as accounts linked to high profile cryptocurrency service providers such as Coindesk and Binance.[2] The nature of the compromised accounts meant that the incident very quickly became headline news, and Twitter acknowledged the issue publicly through its CEO[3] and support pages.[4] Needless to say, nobody who sent the Bitcoins to the scam address received any Bitcoins in return. Responsibility for the attack has been claimed by ‘Cryptoforhealth’ which was registered on Instagram at the same time as the scam tweets. The account posted a statement claiming the attack was for charity and that the “money will find its way to the right place.”[5]

As further details have emerged, Twitter has revealed that 130 accounts were targeted, 45 had their passwords reset, and the account information for 8 accounts was downloaded.[6] While the identities of the compromised accounts is clear from the accounts the scam address was tweeted from, it is not known whose data has been downloaded. Twitter has stated that no ‘verified’ accounts have had their data downloaded, meaning no account with the blue tick, assigned to high profile assure the account is genuine,[7] and, understandably, Twitter will not reveal any further details on who has had their data downloaded.

The claims purporting the charitable nature of the attack cannot be corroborated, and the real identity of the perpetrators is still not known. The ‘CryptoForHealth.com’ domain name was created on 15 July,[8] the same day of the scam tweets, using a fake address and phone number.[9]  The name ‘Anthony Elias’ was used to register the website, but no genuine identity can be traced.[10]

How?

The exact methods employed by the perpetrators of the scam will likely never be known, as it is not likely an organisation would want to provide the details of how to breach its security, for fear of similar attacks. Twitter has been relatively open in recognising the security breach so quickly, and providing a public update on 18 July 2020 stating that “attackers targeted certain Twitter employees through a social engineering scheme.”[11] Social engineering is a broad term, which refers to obtaining sensitive information from an individual or group of people in possession of the information, or with access to it.[12] This could be as simple as phishing, or more complex by duping an individual using other relevant information to gain trust. Twitter state that the “attackers successfully manipulated a small number of employees and used their credentials to access Twitter’s internal systems,”[13] in order to post tweets from high profile accounts. Given the number of affected accounts, and the complexity of two-factor authentication,[14] it is likely to have been a complex operation, but it cannot be ruled out that the perpetrators were the benefactors of a slice of good fortune in obtaining their ‘all access pass’ to twitter accounts.

Analysis

While such a scam has not made headline news before, the nature of it has many similarities to previous scams, both in Bitcoin and wider internet scams. There are issues with the term hacking, the simplicity of the scam proposition, and the behaviour of the Bitcoin address in the scam being similar to that of ransomware attacks, such as Wannacry.

While a technical point, it should be acknowledged that this is not a hack, Twitter’s security infrastructure was not breached due to a weakness exploited by the attackers. The reason the attackers were able to post tweets from compromised accounts was due to human error, if Twitter’s statements are to be believed.

The scam was a very simple one, which relied upon the fame of the account holders, and the influence they may have on their followers, to provide veracity to the address and encourage victims to send Bitcoins. If the aim was to make money then the tactics used once the attackers had access appear unsophisticated. The premise should not cause many to believe they will get their sent Bitcoins doubled, and only 12.8652 Bitcoins were sent to the address, equating to around £94,000 based on the value of Bitcoin around the time of the attack. The simplicity of the tweets may be why only 44 incoming transactions can be seen for the Bitcoin address published.[15] The second way in which the attack was crude was in the victim twitter accounts chosen, and the tweets being posted in short order. By selecting high profile victims, and tweeting from all of their accounts on the same day, the attackers were always going to be detected quickly. The attackers would have been naïve in the extreme not to realise their attack would be detected very quickly, this has led to the attack being described as a “smash and grab” exercise.[16] The crudeness of the tactics suggest acquiring Bitcoins could have been a secondary aim for the attack, with publicity being the main goal.

The behaviour of the Bitcoin address published in the tweets follows a predictable path. The Bitcoins received were not kept in the address for very long, quickly being moved to various addresses, which in turn moved the Bitcoins on again. With patience the Bitcoins can be traced, as distributed ledger technology means all transactions are published on the blockchain, but the owners of the addresses remain unknown. These practices are similar to those employed by ransomware attackers once the ransoms are paid to their respective addresses. The biggest weakness from publishing a criminal Bitcoin address is that investigators have a starting point from which to follow transactions. This issue can be addressed by using ‘mixer’ services. These services allow users to disguise which addresses Bitcoins are being sent to by completing the transaction as part of a group of transactions. Bitcoin transactions can have numerous input address and numerous output addresses, a mixer service will gather large numbers of inputs and send them all in one transaction to the outputs, but it will not be possible for investigators to know which senders correlate to which recipients.

Conclusions

This incident will fade out of the public consciousness very quickly, and it is unlikely the full details of how the attack was conducted will ever be made public. It is also unlikely that any Bitcoins sent to the scam address will be retrieved, and equally unlikely that the attack was a charitable one. For investigators, it provides an opportunity to view the behaviour of the attackers and it also serves as a very public lesson in basic financial intelligence; do not send your money to random locations on the internet, and if a deal sounds too good to be true, in invariably is.


[1] BBC News, ‘Major US Twitter accounts hacked in Bitcoin scam’ (16 July 2020) <https://www.bbc.co.uk/news/technology-53425822> accessed 20 July 2020.

[2] Cameron Winklevoss, ‘Twitter Status’ (Twitter, 21:18 BST 15 July 2020) <https://twitter.com/winklevoss/status/1283493640287989760?s=20> accessed 20 July 2020.

[3] Jack Dorsey, ‘Thread’ (Twitter, 02:18 BST 16 July 2020) <https://twitter.com/jack/status/1283571658339397632?s=20> accessed 20 July 2020.

[4] Twitter Support, ‘Thread’ (22:45 15 July 2020) <https://twitter.com/TwitterSupport/status/1283518038445223936?s=20> accessed 20 July 2020.

[5] BBC News, ‘Twitter hack: FBI investigates major Twitter attack’ (17 July 2020) <https://www.bbc.co.uk/news/technology-53439585> accessed 21 July 2020.

[6] Twitter, ‘An update on our security incident’ (18 July 2020) <https://blog.twitter.com/en_us/topics/company/2020/an-update-on-our-security-incident.html> accessed 20 July 2020.

[7] Twitter, ‘About verified accounts’ <https://help.twitter.com/en/managing-your-account/about-twitter-verified-accounts> accessed 20 July 2020.

[8] Whois Domain Tools, ‘Whois Record for CryptoForHealth.com’ (created 15 July 2020, last updated 21 July 2020) <https://whois.domaintools.com/cryptoforhealth.com> accessed 21 July 2020.

[9] Samuel Haig, ‘Who Owns the ‘CryptoForHealth’ Domain Behind the Twitter Hacks?’ (CoinTelegraph, 16 July 2020) <https://cointelegraph.com/news/who-owns-the-cryptoforhealth-domain-behind-the-twitter-hacks> accessed 21 July 2020

[10] BBC News, ‘Twitter hack: FBI investigates major Twitter attack’ (17 July 2020) <https://www.bbc.co.uk/news/technology-53439585> accessed 21 July 2020.

[11] Twitter, ‘An update on our security incident’ (18 July 2020) <https://blog.twitter.com/en_us/topics/company/2020/an-update-on-our-security-incident.html> accessed 20 July 2020.

[12] F. Mouton, L. Leenen, and H.S. Venter, ‘Social engineering attack examples, templates and scenarios’ (2016) 59 Computers & Security 186 at p187.

[13] Twitter, ‘An update on our security incident’ (18 July 2020) <https://blog.twitter.com/en_us/topics/company/2020/an-update-on-our-security-incident.html> accessed 20 July 2020.

[14] Twitter, ‘How to use two-factor authentication’ <https://help.twitter.com/en/managing-your-account/two-factor-authentication> accessed 20 July 2020.

[15] BitInfoCharts, ‘Bitcoin Address bc1qxy2kgdygjrsqtzq2n0yrf2493p83kkfjhx0wlh’  <https://bitinfocharts.com/bitcoin/address/bc1qxy2kgdygjrsqtzq2n0yrf2493p83kkfjhx0wlh> accessed 21 July 2020.

[16] Joe Tidy, ‘Major US Twitter accounts hacked in Bitcoin scam’ (BBC News, 16July 2020) <https://www.bbc.co.uk/news/technology-53425822> accessed 21 July 2020.

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. 

Using as the Starting Point the Article ‘WTO Rules against EU “Anti-Dumping” Duties on Indonesian Biofuel’ by Natasha Burton in New Economy on 26 January 2018, Discuss the Use of Anti-dumping Measures by the EU on Biofuels

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Written by Chloe Barratt

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

Anti-dumping duties are additional charges imposed by a state in response to the dumping of products into the ‘commerce of another country at less than the normal value of the products’ (Article VI GATT). They are a means of neutralising unfair trade practice, allowing states to protect their domestic industry if the dumping is having a negative effect on their economy. This blog will discuss how the European Union (EU) imposes anti-dumping measures on biofuels, a renewable source of energy that until recently was seen as an attractive alternative to fossil fuels. I will discuss how the issue that lies at the heart of the dispute with anti-dumping measures is, as Burton’s article highlights, how the extent of dumping is calculated. After examining the implications of anti-dumping measures, I will conclude that they are necessarily used to neutralise unfair trade practice and maintain economic and social stability within the EU.

Process of Bringing an Anti-dumping Measure

To ensure anti-dumping duties are imposed to counteract unfair trade practice, the process of imposing duties is heavily regulated. Accordingly, Article 1 of the  Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (ADA) requires all investigations to be initiated and conducted in accordance with the provisions of the ADA. Whilst the World Trade Organisation (WTO) does not regulate the initial act of dumping, it is responsible for regulating the process a state must follow when initiating an anti-dumping measure. If, for example, the EU believes products are being dumped into its market it must first be able to show that the dumping is taking place. In doing so it must be able to calculate how much lower the export price is in comparison to the home market price and show that it is causing injury or threatening to do so. The high threshold for establishing the injurious effect of the dumping accompanied by an investigation (see Article 5 ADA) seeks to ensure that anti-dumping duties are used productively.

Why Calculations of Anti-dumping Measures Have Proven Problematic

Whilst the process of imposing an anti-dumping measure is well regulated, the element of calculating the extent of dumping was highlighted as problematic in Burton’s article. As the EU explains in the Commission Implementing Regulation 2018/1570, following the rulings in Indonesia and Argentina (see para 8), the method of calculation has now been clarified in light of the ADA (for the original reports of the dispute settlement body, see Indonesia (DS480) and Argentina (DS473)). 

The dispute between the EU on the one hand and Argentina and Indonesia on the other (see history here) follows a number of WTO challenges to anti-dumping measures (see discussion in Crowley and Hillman, ‘Slamming the Door on Trade Policy Discretion? The WTO Appellate Body’s Ruling on Market Distortions and Production Costs in EU-Biodiesel (Argentina) (2018) 17 World Trade Review 195-213) where the underlying issue was how authorities adjusted the prices of exporting producers. For example, when constructing a home market price for Argentine biodiesel, that is the price of which biodiesel was sold in Argentina, the European Commission chose to alter the price of soybeans to compensate for the distortion in soybean prices, caused by an export tax imposed by the Argentine government (see Crowley and Hillman, at 2).  The price was adjusted based on the fact that soybeans, the primary input of biodiesel, were considerably below the international price and the Commission reasoned the adjustment was what ‘would have been the price paid… in the absence of the export tax system’.

The dispute with Indonesia was similar in the sense that it also involved a problem with  calculations: the EU had replaced the actual price of crude palm oil that was within the producers’ records with an international reference price. The price of the palm oil was lower than international prices, which meant the EU imposed higher duties on Indonesia in response to what they calculated the extent of dumping to be. When deciding on the trade disputes in the cases of Indonesia and Argentina, the Dispute Settlement Body for the WTO found the EU had indeed acted inconsistently with both GATT 1994 and ADA.

Therefore, whilst there has been a period of uncertainty in calculating the extent of dumping, this imperfection has now been clarified by the WTO. The clear guidance now states that countries are not legally permitted to take government manipulated price control into account.

Social and Economic Stability 

Since the WTO cannot regulate the act of dumping, the ability for a state to impose ‘remedial and not punitive’ measures in response to dumping are essential to nullify unfair trade practice. The measures imposed by the EU on biofuels have been used to counteract the great harm that dumping poses to the economic and social stability of the EU. 

Biofuels being dumped into the commerce of the EU not only disrupts the trading of the fuels but also distorts the standard value of the commodity. EU producers are faced with unfair competition and in considering the vast difference in Indonesia’s access to the raw materials used for biofuels (i.e. palm oil) in comparison to the EU’s access,  the EU could not physically be expected to meet the competitors’ low price without a substantial economic loss. The subsequent effect on the domestic economy could see a closure in business and vast unemployment, which the EU is able to avoid with anti-dumping measures.

Conclusion

In summary, anti-dumping measures by the EU have been imposed to minimise the economic disruption caused by the dumping of biofuels. Whilst the EU was found to have miscalculated the extent of dumping, this was recognised and rectified by the WTO dispute settlement mechanism which in turn acknowledged the lawfulness of anti-dumping measures as such. Overall, these measures have been used productively to counteract unfair competition. 

‘Who Cares?’ play comes to Bristol Law School

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The play ‘Who Cares’ was performed in the Faculty of Business and Law at UWE Bristol on 28 January 2020. It was a piece of social theatre which depicted a family in crisis and the delicate and difficult issues and decisions that might lead to a young child’s adoption.

Following the eight scenes, there was a question and answer session with the cast in role, and a facilitated discussion between the actors and the audience. This allowed the audience to interact with professionals and actors alike, helping them to gain a fuller understanding of the issues and the consequences of family proceedings for the family and professionals involved. Many of the audience were students, parents and grandparents. Many were family justice professionals. Others represented charities supporting people in the midst of a family crisis, facing homelessness or trying to address such issues as drug and alcohol misuse, and domestic abuse.

The engaging script was written by His Honour Judge Stephen Wildblood QC, the Designated Family Judge for wider Bristol area comprising 5 local authorities. He also took on the role of the Judge in the play. The performance and discussion highlighted the vital work of the Family Court, aiming to ‘show not tell’ the audience the kinds of issues that were considered there every day and how they might be resolved. HHJ Stephen Wildblood QC explained the impact of austerity and the current lack of funding on families and suggested that a preventative approach could help to avert family crises and court intervention. He pointed out the benefits of networks and charities such as The Nelson Trust which supported this production.

The play was presented in collaboration with The Nelson Trust and Gloucestershire Children’s Services’ Social Work Academy. The production was sponsored by Albion Chambers, Family Law Week and Bristol Resolution and it was performed by professional actors at ‘What Next Theatre’.

The play was brought to UWE Bristol by Senior Lecturer in Law, Emma Whewell, who is also on the steering committee of a Family Law Theatre initiative. Emma is one of two academics to sit on the Local Family Justice Board in Bristol and is currently in the process of organising a conference for the Local Family Justice Board to take place at UWE Bristol on 14th May 2020.

Karl Brown: My legal life

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

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

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

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

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

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

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

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

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

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

UWE Law Society London Trip 2019

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The UWE Law Society reports on its recent trip to visit Parliament, the Supreme Court, and The Inns of Court.

Guest post by: Sam Louwers, President of  UWE Law Society
The opinions expressed by the guest writer and those providing comments are theirs alone and do not necessarily reflect the opinions of UWE Bristol.

The 18th February began very early in the morning for 50 members of UWE Law Society who had secured places to take part in our London Trip 2019. The aim of the trip was to move 50 members to London to visit Parliament, The UK Supreme Court and attend a talk delivered by Lincoln’s Inn.

It had been the intention from the offset that all society members should feel in a position to apply for a ticket, regardless of their personal circumstances, so the price should be free. Through applications to both the faculty and student’s union enough funding was secured to pay for the coach move meaning that all were in the same position to apply for a ticket.

We left UWE at 0530 to move to Westminster, for a change a very painless journey. Once arriving the trip was split down into two tranches; one detailed to Parliament and one the Supreme Court.

Those who toured Westminster had a unique opportunity to gain an understanding of the history of the building, visit both chambers and have explained the full process of how a Bill becomes an Act. With a passionate tour guide this element was enjoyed by all and was an opportunity that many had never experienced, and I am sure that many students would have left feeling they have a confident understanding of our constitution.

Tranche 2 began their day visiting the Supreme Court. A newer building in the history of the court system, but still bathed in history from its previous role. The group had the opportunity to explore the building whilst also have its purpose and history explained to them by their tour guide. With some fantastic photo opportunities, members even had the opportunity to sit in the seat of a justice and experience the true feel of the court room. Unfortunately, Parliament were holding an emergency debate in the afternoon so Tranche 2’s tour had to be cancelled.

Then a surprise to all when we were notified that Lady Hale, President of the Supreme Court, had heard that UWE students were visiting so was giving up her lunch break to meet with us and run a Q&A session, as I am sure all readers will appreciate this is a fantastic and privileged opportunity.

Meeting with Lady Hale was an experience that many students will never experience again, but you could tell that she was more than happy to give up her time to pass her knowledge and experience onto those young minds who have a passion to progress into the legal profession.

The final part of the day saw a move to Lincoln’s Inn where we were hosted by Andrew, their outreach Co-Ordinator. Unfortunately, the talk had to be held slightly down the road in their office and conference space as the Inn itself is currently undergoing major renovations, yet still a great environment to visit. Andrew gave a talk to the society members about what the purposes of the four inns of court are, their history and how they play a key part to anyone looking to progress to a career at the bar. He also took the time to discuss the vast range of scholarships available and in doing so demonstrating that there is financial support available to those who need it.

Lincoln’s Inn also paid for Sally Anne Blackmore of Ely Place Chambers to come and talk to our members. Sally is a former UWE Alumni and prominent member of the Inn, often involved in the residential and qualifying sessions that are run. As a former Alumni Sally was keen to talk to our members about her non-traditional route to the bar and her vast experiences surrounding the profession. Not only did she inspire members she was also happy to hand out her contact details should members want to seek further guidance.

The day ended with the journey back to UWE, getting in at 2230. After a long day I think I can honestly say that every attendee was able to get something special from the day and I have taken the time to thank every element of the trip personally for making it possible. If it wasn’t through keen networking and producing a positive image of UWE Law Society this trip would never have been possible. Dr Liam Fox MP was happy to support our tours, Lady Hale gave up her time and Lincoln’s Inn gladly hosting us at their location is proof that UWE Law Society have built a positive and strong reputation in the last year. We also thank UWE Law Department and the Students Union at UWE for their kind donations, as without them we would not have been able to meet our aim of making this trip open and accessible to all and by doing so we met our equality and diversity targets.

Although coming to the end of our term as a committee I am sure that now the ground work has been laid so future committees will be able to offer these fantastic opportunities to their members also.

Sam Louwers
President
UWE Law Society

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