Pre-trial Detention in England & Wales: An academic analysis

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In November 2018, Dr Tom Smith hosted a delegation of visitors from China, including academics from two universities, several prosecutors and lawyers from city, provincial, and national procuratorates (the bodies responsible for prosecution decisions), and colleagues from the Great Britain China Centre. The purpose of the visit was to discuss pre-trial detention practice in England and Wales, with a view to promoting reform in China (following on from a pilot project conducted in various provinces in 2016-17). Alongside a question and answer session and a court visit, the visit included a presentation by Dr Thomas Smith. This blog is a written form of this presentation.

This presentation aims to summarise the current regulatory structure for pre-trial detention (PTD) in England and Wales (E&W); to summarise research conducted in this area of practice; and to identify future issues which will be faced in ensuring PTD is used appropriately and decisions are made fairly. It is hoped that this presentation will assist the delegation in promoting reform of PTD practice in China over the coming years, an area of both great importance and great challenge.

 

Law and Procedure in E&W

Before engaging in analysis of the system, it is first necessary to briefly summarise the stages at which a person suspected or accused of a criminal offence can be detained prior to trial (commonly known as pre-trial detention (PTD)). PTD traditionally refers to detention of a person, by a court, prior to trial. However, since the police also have the power to detain unconvicted persons (both before and after a charge), these have been included in this summary. After a person is arrested on suspicion of an offence, decisions about their detention or release can be made at various stages prior to any potential trial. The first, and earliest, point at which this can happen is before a person is charged with any offence (hereafter, the pre-charge stage). The second stage is after a suspect is charged with offence, but before their first appearance at court (hereafter, the post-charge stage). At both of these stages, the decision as to whether a person should be released or detained is made by the police (specifically, a custody officer). The third stage at which such decisions will be made is after the accused person (now referred to as a defendant) has appeared at court for the first time (hereafter, the court stage). The court stage also includes such decisions made at the conclusion of any subsequent court hearings involving the defendant. At the court stage, PTD decisions are made by judicial figures – specifically, Magistrates or District Judges in a Magistrates’ Court; or professional judges (such as Circuit Judges) in the Crown Court. Whilst PTD will not normally be the primary focus of court hearings, all such hearings must end with a decision about the liberty of the defendant. Decisions or hearings relating to PTD in E&W are commonly referred to as ‘bail’ or ‘remand’ hearings; in this sense, if one encounters a reference to bail or remand in relation to court proceedings, this can be equated to PTD decision-making. Notwithstanding the different figures responsible for these decisions, one element is common across all stages: a person suspected or accused of an offence is at risk of being deprived of their liberty; or, if they are released, of being the subject of ‘conditions’ which can regulate or control their behaviour. As such, PTD at all stages has a significant impact on the fundamental rights of people who have yet to be charged, tried or convicted.

Pre-charge

If suspects are not charged with an offence, there is a presumption that they will be released without bail (that is, unconditionally). This presumption was recently introduced by the Policing and Crime Act 2017. However, this presumption can be overturned if certain pre-conditions are met, meaning that a suspect can be released on bail for 28 days (initially). This will allow the police to attach conditions to release. Crucially, if the police decide it is necessary (to secure or preserve evidence or obtain evidence through interrogation), a suspect can also be detained until they are charged with an offence. This is, initially, for a maximum of 24 hours (which can potentially be extended) and is subject to review.

Post-charge

After a person is charged, they can either be released (with or without bail); or detained (if the police believe that they may fail to attend court, commit an offence or interfere with witnesses). Whatever decision is made, it will apply until the charged person’s first court hearing. Both pre and post-charge, all suspects held in police custody are entitled to legal representation if they request it, regardless of means (under s.58, Police and Criminal Evidence Act (PACE) 1984).

At court

If an accused person is detained post-charge, they must appear before a Magistrates’ Court quickly. Normally, this will be no later than the first court sitting after charge (generally, within 24 hours of being charged). At the end of this first court hearing, the defendant must be released or detained; as such, this represents the first ‘formal’ PTD hearing for those accused of criminal offences. Importantly, there is a presumption of release on bail for every defendant (under s.4, Bail Act 1976). This applies at all stages of proceedings (there are some exceptions to this presumption). The presumption can be overturned if the court has reasonable grounds for believing that detention is justified. There are a number of available ‘grounds’ for detention under the Bail Act 1976, with the main ones being the fear that the defendant may fail to surrender to the court; may offend on bail; or may interfere with the administration of justice (for example, by intimidating a witness). In deciding whether the ‘grounds’ to detain a defendant are established, the court should consider various factors, including the nature and seriousness of the offence; the probable outcome/sentence; the character of the defendant; antecedents (previous convictions); and the defendant’s bail record (that is, whether they have breached bail conditions in the past).

If the presumption of release is not overturned by the court, a defendant will be released on either unconditional bail or conditional bail. With the former, the only requirement is for the defendant to return to court for a future hearing (for example, a trial). With the latter, the defendant can be released subject to additional requirements, commonly known as ‘conditions’. Conditional bail is effectively an alternative to detention; that is, when the court feels that the defendant needs to be subject to some measure of control or monitoring, but detention is inappropriate or disproportionate. Conditions can therefore be attached to release, primarily if the court believes that the defendant might fail to surrender to custody; might offend on bail; or might interfere with witnesses or the administration of justice (among others). The court has significant discretion in terms of the type of conditions it can impose. There are three basic categories: a surety (the surrender of something of value, such as a passport); a security (sometimes known as ‘money bail’); and ‘other conditions’. The first two categories (particularly securities) are generally unusual in E&W. Other conditions are common, and can include (theoretically) anything the court thinks is necessary. However, frequently used conditions include a residence requirement; a curfew and/or electronic monitoring (or ‘tagging’); or the requirement to stay away from a location or person (for example, a witness).

Defendants can be represented by a lawyer at court, but – in contrast to police custody – are not entitled to this (with some limited exceptions). Whether a defendant will qualify for legal aid will depend on whether they pass an interests of justice test; and a means test. If the defendant does not qualify for legal aid or cannot afford their own lawyer, they may be unrepresented. A ‘duty’ lawyer scheme operates in English and Welsh criminal courts, which provides a lawyer to unrepresented defendants on a rota system. That is, a lawyer will be assigned a ‘slot’ during which they will provide representation at court to defendants who require it. However, if the current duty lawyer is not available when a defendant requires one (perhaps because they are covering another case); or is unable to deal with the case because of its nature, a defendant may be left unrepresented.

Research on pre-trial detention in E&W

E&W has one of the lowest ‘proportional’ PTD populations both in Europe and globally, at approximately 10% of the prison population. However, this figure needs additional context. E&W also has one of the highest prison populations per capita in Europe (141 per 100,000); therefore, the gross number of pre-trial detainees is significant (roughly 9,000 persons on any given day). It should also be added that this figure relates only to those placed in detention by the court – it does not include those in police custody, a figure which is not routinely published. The number of persons placed in PTD annually has varied over the years, but was estimated to be roughly 80,000 in 2016. In that year (and the following year), it has also been suggested that 10-12,000 people facing less serious offences were kept in PTD. Finally, the average number of persons held in PTD on any given day has been decreasing over the last decade (whilst the overall prison population has been increasing, until recently). PTD has largely received little attention from policymakers, although the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 did usher in some significant changes with the aim of lowering the PTD population. In essence, this legislation restricted the circumstances in which the presumption of release could be overturned at the court stage in relation to summary (that is, minor) non-imprisonable offences and introduced a ‘real prospects’ test – that is, courts making PTD decisions needed to consider whether there was any ‘real prospect’ that a defendant would receive a custodial sentence if convicted.

Some research has been conducted on PTD at the court stage over the past two decades, but a limited amount. Hucklesby conducted research on bail and detention in the late 1990s; HMIP undertook a thematic review of remand prisoners in 2009; and the Howard League for Penal Reform conducted some examination of this area in 2014. Most recently (2016), Professor Ed Cape and Dr Tom Smith undertook research in England and Wales as part of a 10 country study of PTD (coordinated by Fair Trials International, and backed by the EU Commission), producing a report entitled the ‘Practice of Pre-trial in England and Wales’. The project examined five aspects of PTD decision-making: process (how decisions are made); substance (content/nature of decisions); review (scrutiny of decisions); alternatives to PTD (specifically, the use of conditional bail); and outcomes (the case outcomes for defendants subjected to PTD). The project examined these aspects of practice based on observation of PTD hearings; interviews with lawyers and judges; a survey of defence practitioners; and a review of prosecution case files.

Processes used in E&W PTD hearings were broadly compliant with European Convention on Human Rights (ECHR) standards. Detained defendants were promptly produced; were normally present at hearings, and represented by a lawyer. When defendants were detained, trials normally took place quickly. However, PTD hearings were often uncontested (that is, parties did not challenge each other); were reliant on police and prosecution information, rather than an extensive, objective body of evidence; and were generally short and formalistic. Disclosure of information to the defence prior to hearings was the subject of limited regulation; so much so, that it was possibly in breach of the EU directive on the right to information by virtue of its narrow scope. There were significant problems with timely disclosure, with concerns about the lack of material available to the defence prior to hearings (although prosecutors were generally observed to share such information if it was available). Defence practitioners generally felt that most disclosure was ‘somewhat’ sufficient.

The most common outcome in observed hearings was unconditional bail; the most common outcome in reviewed cases was conditional bail. Defendants were detained in approximately 40% of observed hearings and reviewed cases. Most applications for detention by prosecutors were granted, and where detention was approved by the court the most common ground for doing so was fear of further offences. In establishing grounds for detention, the most important factor influencing the decisions of courts was a defendant’s history of offending. In terms of the nature of the decisions made, witnesses were rarely called to give evidence in PTD hearings. Additionally, the reasoning provided by judges for their decisions was limited at times, arguably in breach of ECHR jurisprudence. In some cases, Magistrates were observed confusing ‘grounds’ for detention with the ‘factors’ to be taken into account. As such, rather than using a factor as evidence to establish a ground (for example, using a history of offending to establish the ground of ‘fear of further offences’), some Magistrates would simply detain on the basis of a factor (for example, the seriousness of the offence). This was therefore in breach of domestic legislation, specifically the Bail Act 1976.

In terms of the use of alternatives to detention, bail (both types) was granted in approximately 60% of observed hearings and reviewed cases. Extensive use was made of a limited range of bail conditions, with the most frequently imposed being a residence requirement; an order to stay away from person or location; and imposition of a curfew or electronic monitoring via a ‘tag’. The research also found that bail was not limited to less serious cases; in one observed case, a defendant accused of rape was released on unconditional bail (although this was exceptional). Concerns were raised by practitioners and judges about monitoring and enforcement of conditions, which could potentially undermine confidence in their use as an alternative to custody. Additionally, there was concern about the lack of available bail hostels and bail information schemes, which were felt to be helpful in ensuring that defendants were not detained unnecessarily.

Generally, review of PTD decisions took place quickly. When a defendant was detained by the court, such a review had to take place within 8 days. When PTD decisions were reviewed in the Crown Court (for example, when a defendant appealed a decision or when a routine review took place in serious cases), defendants were generally not present (although were normally represented by a lawyer). Practitioners and judges could not adequately explain why this was, with the ultimate conclusion being that non-appearance was simply habitual. Review hearings experienced the same issues as at initial hearings, namely limited reasoning, a lack of evidence, and short length. There was some anecdotal evidence to suggest that an informal ‘reversal’ of the presumption of release operated at the review stage. That is, when a defendant was detained at a previous hearing, the review court would expect the defendant to show why they should be released. This appeared to be a prima facie breach of the presumption under the Bail Act 1976, suggesting that securing release at the review stage was significantly harder for detained defendants. Finally, the research examined final outcomes in cases where defendants had been detained at some point during proceedings. This was only recorded for case file reviews as observed cases could not be followed through to completion. The research found that nearly 25% of defendants detained at some stage were acquitted or had the case against them dropped. Of the remainder, just under one-third received a non-custodial sentence. Additionally, nearly half of defendants detained at some stage prior to trial did not go to prison after conviction. Of those who did receive a custodial sentence, nearly all received a sentence longer than the time spent in PTD.

On the basis of these findings, the authors made a number of recommendations. It was suggested that the law regulating PTD should be simplified and codified in one statute. It was also suggested that judges and prosecutors should receive consistent and regular training on ECHR standards, due to an apparent lack thereof. The report also recommended clarified and extended regulation to ensure defendants had access to all relevant information, material and evidence prior to PTD hearings. The research recognised that a lack of time and resources was a significant factor in a number of the problems identified, and suggested that more time and resources be made available to the courts, the prosecution and the defence to ensure thorough and fair consideration of PTD decisions. It was also suggested that more resources be made available for the provision of bail information services and bail hostels, and that the mechanisms for monitoring and enforcing bail conditions should be reviewed and strengthened.

Recent reform in this area

Since the research was published, some progress has been made in implementing these recommendations. In March 2016, Professor Cape and Dr Smith engaged with the Criminal Procedure Rule Committee (hereafter, the Committee), the agency responsible for drafting the rules governing criminal proceedings (the Criminal Procedure Rules, hereafter CrimPR). The Committee had pre-existing concerns about aspects of PTD practice, including problems with disclosure of information and evidence to defendants prior to hearings and the amount of scrutiny undertaken during hearings. Based on the research report, the authors engaged in dialogue with the Committe over a period of several months; attended Committee meetings; and submitted a position paper relating to the recommended changes to PTD practice. On the basis of this (alongside contributions from a number of other stakeholders), the Committee proposed changes to the CrimPR in late 2016. These changes would clarify and expand the scope of initial disclosure required of prosecutors before a PTD hearing; introduce a new rule requiring defendants to be given sufficient time to consider information and evidence before a PTD hearing; and amend an existing rule, to require the court to ensure sufficient time is taken in considering PTD decisions. These proposals were accepted, becoming law in February 2017.

Current and future issues in pre-trial detention practice

Notwithstanding these very positive developments, the research – and other developments since – suggest that PTD practice in E&W has a number of ongoing challenges that should, ideally, be addressed. These include the problem of limited information and disclosure; the ‘routinisation’ of PTD hearings; the viability of alternatives to detention; access to lawyers and legal aid; and the use of Video Link (VL) technology in PTD hearings.

Limited information and disclosure

Courts rely primarily on police and prosecution information and summaries in PTD hearings. The research (alongside a more recent study by Transform Justice, in 2018) suggests that such material has some problems of reliability, accuracy, completeness, and availability at the early stages of a case. Whilst this is, to some extent, understandable considering that a hearing will normally take place within a day of charge, there is undoubtedly a gap in terms of material that can and should be supplied. This problem is exacerbated by a lack of clear and extensive regulation for disclosure of information to the defence in advance of PTD hearings. At the time of the research, this was primarily regulated by the CrimPR, specifically Rules 8 & 14. The requirements were fairly limited, both in terms of scope and the obligation to provide material to the defence in advance of proceedings. The regulation therefore appeared to be in breach of Articles 6 and of the 7 EU directive on information, which mandate disclosure of a more extensively defined category of material and information. As described above, the CrimPR were amended in 2017 and this went some way toward addressing these issues on paper. However, it is as yet unclear whether these amendments have been impactful in practice. As noted earlier, prosecutors did generally share available information with the defence when they could; but equally, 30% of surveyed defence lawyers stated that they regularly received no paperwork pre-hearing. Such issues impact on the accuracy of decision making and the fairness of the hearings for defendants, since a lack of information will inevitably limit the ability of defendants and their lawyers to challenge detention applications.

Similarly, PTD prior to the court stage is also afflicted by problems in relation to disclosure. These are, arguably, even more acute and impactful. At the pre-charge stage the police and prosecution have few requirements to disclose information (with some limited common law requirements and some regulation in PACE 1984, Code of Practice C). Post-charge, disclosure is generally regulated by statute (specifically, the Criminal Procedure and Investigations Act 1996) although this primarily relates to disclosure once a defendant pleads not guilty or is anticipated to plead not guilty. Generally, there is an ongoing ‘crisis’ in relation to the disclosure of evidence and information which might assist the defence at the pre-court stage (which covers material which would be useful for the purposes of PTD decisions). There have been a number of high profile cases involving disclosure failures (for example, that of Liam Allan, in December 2017). This has led to the halting of a number of prosecutions due to concerns about inadequate disclosure; a critical parliamentary inquiry into the issue (published in July 2018); and a review by the Attorney General (published in November 2018). As such, at all stages, the failure to provide information and evidence to the defence can impact on the ability of accused persons to adequately engage with and challenge bail decisions and the ability of authorities to make fair and proportionate decisions which take such representations into account..

Routinisation of PTD hearings

Another concern raised by the research was that PTD hearings are ‘routinised’ – that is, conducted in a very routine manner with limited engagement with individual cases on the part of practitioners. Hearings were largely uncontested, with little discussion or debate amongst lawyers or judges. Hearings were also very swift, lasting only a matter of minutes on average. Whilst this is not inherently inappropriate, the frequency with which proceedings were dealt with in this almost cursory manner raises the risk that cases of genuine complexity might be not be scrutinised properly. The brevity of hearings and the speed of the overall PTD process can arguably be explained by a range of factors, including the actual or perceived simplicity of many cases; pressures on lawyers and judges to make decisions quickly; the long-running agenda of maximising efficiency in courts; and statutory time limits on the detention of defendants (which would therefore motivate all parties to proceed with in-custody cases as quickly as possible to avoid any undesired release of a defendant). Hearings also appeared to be formalistic; that is, the submissions of parties and the judgments of the court were often repetitive, generic, and closely reflected the ‘formal’ wording of the law. There was often a lack of individualised rationale for decisions in cases – that is, one which relied on and engaged with the specific facts and issues in the case before the court. It might therefore not be obvious to a defendant exactly why decision has been made (even if such reasons were obvious to the judge and lawyers). Generally, the reasoning provided by judges was limited – in some cases, no reasoning was provided at all or no decision was clearly announced. Such practice appeared to pose issues of compliance with ECHR jurisprudence. Overall, the findings (and the response to their publication and dissemination) suggested an attitude of complacency and political lethargy to PTD practice in E&W. An exception was the proactive and engaged response of the Criminal Procedure Rule Committee; otherwise, no action has been taken by Government or other bodies, despite the inclusion of PTD as part of the 2030 Sustainable Development Goals (which the UK is committed to). Most practitioners who engaged in the research appeared to think the PTD system in E&W was adequate, despite identifiable problems and areas for improvement.

Viability of Alternatives to Detention

The research also identified three significant problems with alternatives to detention: bail information schemes, which practitioners considered to be useful but lacking provision across courts; the lack of availability of bail hostels when a defendant did not have a suitable address to be released to (which could lead to unnecessary detention); and concerns about the monitoring and enforcement of bail conditions. Bail information schemes involve specialist assessment of the needs and circumstances of a defendant, which is used to provide recommendations to the court about appropriate conditions for release. This is normally conducted by probation officers. Whilst the input of the scheme was not always necessary, practitioners and judges noted the usefulness of this support in some more challenging cases, particularly those involving issues such as mental health and addiction. As such, this was generally regarded to be a valuable service for prosecutors and judges when making PTD applications and decisions. However such schemes were not consistently available at courts, with some schemes only being available on certain days or simply not being available at all in other locations. This might therefore rob decision-makers of valuable insight into the best way forward. A similar problem affected bail hostels, officially known as ‘approved premises’ – a form of accommodation used to house released defendants in the community. These are utilised when a defendant does not have an appropriate address to which they can be released on bail. They are particularly useful for offences involving domestic violence (which will often involve a defendant and complainant who co-habit) or homeless defendants. Like bail information schemes, bail hostels were lacking in terms of availability or might be located in inappropriate locations (such as being some distance from a defendant employer). As such, when a defendant had no address or no suitable address, the court might have no choice but to detain them. In some cases, this might be unnecessary or disproportionate.

In terms of monitoring and enforcement of alternatives to detention, it would be fair to say that prosecutors and judges were generally confident in using conditional bail. Electronic ‘tagging’ was considered to be the most effective condition, and appeared to be used commonly. However, some practitioners and judges expressed concerns about effective and consistent monitoring of conditions and enforcement of breaches. There was, to some extent, a lack of clarity as to who was responsible for checking defendants were abiding by conditions. The default assumption was that the police should do so, although this was not necessarily clear. Particular concern was expressed about monitoring and enforcement of residence conditions; ‘no contact’ orders (especially via social media); and the condition to report to a police station. Ultimately, it was felt that, in many cases, it was difficult to ensure that adherence to these conditions was effectively supervised and that breaches could be detected and acted upon (with the exception of ‘tagging’, which has a fairly clear protocol for this). In this sense, confidence in the effectiveness of the conditions as regulators of defendant behaviour – and therefore as alternatives to detention – could be undermined. That being said, the courts utilised conditional and unconditional bail in the majority of cases, suggesting that such misgivings have not necessarily translated into more restrictive use of alternatives.

Access to lawyers and legal aid

As highlighted earlier, access to a lawyer is an entitlement for all suspects in police custody regardless of means; but not for all defendants at court. Access to a lawyer is a vital element of the right to a fair trial (Article 6, ECHR) which should be available from the very start of criminal proceedings (for example, see the case of Salduz v Turkey). In relation to PTD (in both police stations and courts), access to a lawyer helps an accused person understand what is happening; challenge decisions; and ensure those decisions are taken legitimately. Provision of lawyers and the quality of representation is affected by both the amount of legal aid funding for lawyers and the law firms who employ them, as well as the eligibility of defendants at court for legal aid. With this in mind, it is important to highlight that (notwithstanding claims it has ‘spiralled out of control’) legal aid funding has reduced year on year since 2004, and fees for legal aid lawyers have been effectively ‘frozen’ since the mid 1990s. Significant cuts to fees were imposed in 2014; and further planned cuts were either abandoned (2015) or ruled unlawful (2018) – although, may well be imposed in the future. Evidence suggests that the overall number of firms and providers of criminal legal aid services has reduced, with a consequent impact on the numbers of lawyers available to provide such services. We might therefore ask what the impact of this is on PTD decision-making.

Notwithstanding the challenging climate in which criminal legal aid now exists, suspects in police custody continue to remain entitled to a lawyer if they request it. However, the reality of uncompetitive, fixed fees for police station advice work may mean an impact on the availability of providers (for example, in rural areas) and the quality of advice provided (for example, if firms are forced to rely on less experienced and/or qualified advisors for financial reasons). A lack of available lawyers may mean long delays in arrival at the police station; those who request advice may be deterred from waiting for their lawyer, leaving them unrepresented and the police freed from external scrutiny in considering PTD decisions. Fewer defendants in court now qualify for a legal aid lawyer due to restrictions on the rules of eligibility. Moreover, a smaller pool of legal aid providers and lawyers may mean that ‘duty’ schemes in courts are stretched beyond capacity, with demand outweighing supply. A major concern is that defendants may be forced to appear as ‘litigants in person’ (that is, unrepresented) in PTD hearings. Some evidence suggests this is happening in criminal proceedings (for example, a suppressed Ministry of Justice report and research undertaken by Transform Justice). Unrepresented clients at court is rarely a desirable outcome for any party, with defendants potentially disadvantaged and the time of courts wasted. Overall, the fundamental concern is that fewer lawyers with less time and shrinking resources may impact access to a representative and therefore the quality of PTD decisions affecting defendants. PTD hearings should have meaningful input from both parties; without a defence lawyer involved, a defendant is at a significant disadvantage and the court is robbed of a valuable perspective in choosing whether or not to overturn the presumption of release.

Video Links and PTD

The use video link (VL) technology in court proceedings is not new, and is relatively widespread (although is not the norm in criminal proceedings generally). Currently, the Ministry of Justice is in the midst of a £1bn reform programme designed to ‘modernise’ the courts, and the use of VL is a major part of this. In terms of PTD hearings, the primary benefit is saving time and money by avoiding the need for detained defendants to be transported to court from a prison or police custody. Many PTD hearings are already conducted using VL; the Ministry of Justice has also suggested that, in the future, VL might be used for all but exceptional PTD hearings. However, some concerns exist about the use of VL in such hearings. The reliability of the technology used has been called into question (for example, when the virtual connection between the defendant and the court is lost during proceedings). Questions have been raised about the variable quality of VL and the impact it has on PTD decision making (for example, poor audio and visual quality). Access to legal advice for those on VL may be more inconsistent; the ‘duty’ lawyer (if available) will be at the court centre rather than custody. There may be problems of access for lawyers in custody locations (particularly prisons). As such, defendants appearing virtually may not have a lawyer at all. If they do, it may be more difficult for them to consult their lawyer in private, as there are significant concerns about how well police stations and prisons ensure defendants are not observed or monitored. Some research suggests that the psychological impact of a virtual appearance, specifically feelings of isolation and disengagement from proceedings (particularly for those with vulnerabilities) may impact the fairness of proceedings. Finally, there are also concerns about the accuracy of claims that it saves time and money, particularly if proceedings are slower or interrupted. In 2010, research by the Ministry of Justice suggested defendants appearing via VL in PTD hearings were less likely to be represented. A more recent study by Transform Justice (2017) found that 58% of court users thought VL made it more difficult for defendants to engage. Multiple studies of VL in bail immigration hearings have been critical, noting that applicants are depersonalised and isolated from the court. All of these concerns should be borne in mind for the use of VL in PTD hearings.

Conclusions

When compared with other systems – both in Europe and globally – it is reasonable to argue that E&W operates a system that, in theory, is well designed, fair and balanced. In practice, PTD does not appear, when taken at face value, to be used excessively – but it is difficult to determine what proportion of cases may involve detention which is inappropriate, unjustified or possibly unlawful. Considering the proportion of defendants who are either not convicted or not imprisoned after conviction (in combination with the somewhat superficial approach PTD decision-making observed in a number of cases), PTD does not appear to operate as a matter of last resort. If this were the guiding principle, it appears difficult to justify the detention of 40% of defendants. Whilst the system and its practical operation do compare favourably with some European neighbours, there are undoubted problems which have existed for a number of years and which, if unchecked, can feed unfair and opaque decision-making, inadequately regulated conditional release and, ultimately, unnecessary deprivation of liberty. Complacency as PTD practice in E&W, at both a political and practice level, appears to be entrenched. Bearing in mind that PTD is likely to be in the ‘front line’ of future reform of criminal proceedings (both financial and technological), this apathy towards the need for improvement is concerning. That being said, interest in the area has been growing in recent years. In March 2018, Transform Justice undertook research into remand hearings which provided further insight into the issues affecting this area of practice, and have proceeded to lobby for reform. In April 2018, the Commonwealth Human Rights Initiative gathered a roundtable of academics (including Dr Smith) to discuss pre-trial detention in relation to the UN’s Sustainable Development Goals (to which the UK Government is committed), which includes limiting excessive pre-trial detention. In July 2018, the House of Commons Justice Committee published an inquiry into disclosure in criminal proceedings, referencing written evidence based on Professor Cape and Dr Smith’s research. One can only hope that, with sustained effort, awareness can be raised and action taken on the issues highlighted in this presentation.

 

 

 

 

 

 

 

 

 

 

 

 

The Criminal Justice Research Unit share their latest scholarly writings

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The Criminal Justice Research Unit organised on 12 November a Staff Research Seminar giving colleagues the opportunity to talk about their latest scholarly writings.

Matt Hall launched the seminar by presenting a fascinating and highly topical research piece on the legal framework relating to alcohol consumption in airports. This topic is not far off from his own PhD that examines the (ab)use of alcohol at football events and the law that governs it. As Matt pointed out, drunkenness at airports is not a new phenomenon, though it is not causing as much trouble as the media would like to portray it. What seems however new is the fact that individuals, particularly those about to embark on hen/stag/18-30’s etc., arrive at airports in a state of drunkenness which is indicative of the ‘pre-loading’ phenomena that is popular amongst many drinkers. Moreover, over indulgence in unregulated access to free alcohol in some departure lounges is also a concern. The abuse of alcohol at airports is a source of unease for the safety of the aircraft and of the passengers. It leads to disruptions to passengers, (including the planes having to be diverted) for which the airlines incur costs.

So, how is alcohol consumption regulated within society and at airports? As Matt explained, the most important piece of legislation relating to alcohol is the Licensing Act 2003. Its objectives are to prevent crime and disorder as well as public nuisance, ensure public safety and protect children. Anyone selling alcohol must comply with the Act’s principles. The system works on the basis of a licence which must be renewed and thus can also be lost. When applying for an application renewal, representations can be put forward to the relevant Licensing Authority from members of the public or the authorities, highlighting any concerns that the aforementioned principles are not being adhered to. The Act also lists a number of offences such as the sale of alcohol to drunk persons on the relevant premises, the failure to leave the relevant premises when requested to do so, obtaining alcohol for a drunk person on the relevant premises and the sale of alcohol to an individual under the age of 18, etc. The key problem is the enforcement of these offences, as for example, drunk people are regularly still being served alcohol. Remarkably, the Licensing Act 2003 does not apply to airside bars within airports as they are exempt under Section 173 which lists several designated airports. Two justifications are adduced for this exemption: a licensing officer would need to obtain airside security clearance, as well as any ‘sting’ personnel who ‘test’ licensed premises by sending in under 18’s to ‘test purchase’ and secondly, the exemption is in line with practice at airports in other countries. There is thus no surprise that in 2017 the House of Lords Select Committee on the Licensing Act 2003 recommended the repeal of Section 173.

Another important piece of legislation is the Civil Aviation Act 1982 which lists as offences entering the aircraft drunk, endangering an aircraft, endangering the safety of a person, etc. Yet, it turns out that the enforcement is poor here too as drunk individuals are very rarely stopped when boarding an aircraft. There are however on average 40 prosecutions per year which result in anything from a fine of £2000 up to 13 months custody.

Matt highlighted the fact that one problem resides in the definition of drunkenness, thus raising the issue of legal certainty. At which point is an individual deemed drunk? To explain this Matt referred to the situation of drunkenness in public places and at football events. In the former case, offenders are often ‘dispersed’ and told to go home; in the latter, they are prevented from accessing the football stadium as arresting drunk individuals is not a priority for law enforcement officers. Discretion is the key word here. A similar situation is happening at airports as fighting drunkenness is not a priority for airport officials and so enforcement of the law is low.

How can the issue be tackled? Matt went through a number of possible solutions. First, Section 173 could be repealed thus allowing airside bars to be licensed and thereby adhering to the Licensing Act’s principles. There could also be a blanket ban on alcohol consumption at airports and on board of aircraft, however, this would be unlikely given the financial interests of various stakeholders and also, issues of jurisdiction such as when an aircraft leaves UK airspace. Alternatively, individuals who are drunk could be barred from entering an aircraft, which would require a stricter approach in applying the law. In his opinion, the thrust of the problem is that there is no clear definition of the concept of ‘drunk’.

The second presentation held by Dr Noëlle Quénivet focused on the defence of duress and whether it was a justification or an excuse under international criminal law. Her presentation is based on a chapter of a book she is co-writing with Dr Windell Nortje (University of Western Cape, South Africa) on child soldiers and the defence of duress (to be published by Palgrave). Noëlle started by highlighting that, as strange as it may sound, defences are an essential component of international criminal law: individuals who have committed war crimes, acts of genocide or crimes against humanity are allowed to raise defences. The possibility to use defences should be welcomed as a sign that international criminal law is not about victor’s justice and human rights standards, and particularly the right to a fair trial, are complied with. After all, the use of defences does not mean that the act finds approval; it however does not merit condemnation and punishment.

Duress is one of the defences available to alleged perpetrators prosecuted before the International Criminal Court (ICC). It is usually understood as the compulsion of perpetrator to commit a crime because he/she fears for his/her life and limb, the threat stemming from another person (see Article 31(1)(d) of the ICC Statute). As a result, the perpetrator is placed in a position where his/her freedom of will and decision-making abilities are restricted to such level that he/she is not able to make a moral choice.

Noëlle explained that to understand how the defence of duress is applied one needs to examine the Anglo-American common law tradition in as much as the latter has been key in influencing case-law in international criminal law, namely via the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). Under national law criminal law defences are often subdivided into justifications and excuses to distinguish between wrongfulness and blameworthiness. A justified action is not criminal because the conduct, although unlawful, is permissible or tolerated as its benefits outweigh the harm or evil of the offence. Here the focus is on the act. An excuse involves an action that is produced by the impairment of a person’s autonomy. Here the focus is on the actor.

Duress is a highly controversial defence in international criminal law. In common law countries it is a justification whilst it is an excuse in Romano-Germanic (civil law) systems. Moreover, duress is not admitted as a full defence in common law countries which means that it can never be invoked in the case of killing. To illustrate the issues relating to the application of duress Noëlle recounted the facts of the Erdemovic case and how the ICTY had come to the conclusion that ‘[d]uress does not afford a complete defense to a soldier charged with a crime against humanity and/or war crime involving the killing of innocent human beings.’ (para 19)

She then suggested that the ICC Statute might have overruled this jurisprudence since duress is accepted as a ground excluding responsibility that applies to all crimes and does not stipulate that it cannot be pleaded when taking a person’s life. Whether it is an excuse or a justification remains to be seen as the criteria for duress have been amalgamated with that of necessity (usually viewed as a justification) in a single provision and the fact that the provision requires the actor to carry out a lesser evil test seems to indicate that the defence is considered a justification.

Noëlle then explained that she would prefer the defence of duress to be an excuse. First, it ensures that the wrongful acts are viewed as such, the message being that such acts cannot be tolerated. Second, it allows to understand the act in its wider context, the focus being on the actor and his/her lack of autonomy in the given circumstances. Third, it can be used as a full defence, including killing though at this stage she indicated that she supported the application of the principle of proportionality, rather than a balance of harms test, as a limit to using duress as the defence.

UWE Bristol’s first Interdisciplinary Symposium on Organized Crime with Dr Mary Young.

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On 10th October 2018, Dr Young convened and hosted the First Interdisciplinary Symposium on Organized Crime. The day long Symposium (sponsored by UWE Bristol’s CALR) attracted 45 participants, with many from outside of UWE and academia. Five senior officers from the Metropolitan Police Service attended, as well as participants from the South West Regional Organised Crime Unit, the Institute of Statecraft, the Tax Justice Network and also attachés from several Embassies. Speakers included, Professor Tim Hall, Human Geography, University of Winchester; Dr Anna Markovska, Criminology, Anglia Ruskin; Dr Michael Woodiwiss, History, UWE; Mr Chris Atack, Detective Sergeant in the Metropolitan Police Service specialising in Economic Crime; Mr Mark Berry, PhD Researcher, Cardiff University, Trustee for the International Association for the Study of Organised Crime; Dr Phil Legg, Computer Science and Programme Leader for MSc Cyber Security, UWE Bristol.

 

On the back of this success Dr Young has created the entirely “Independent Organized Crime Research Network for Law Enforcement and Academics”, which had its inaugural meeting on Friday 16th November and saw colleagues from FET, HAS and law enforcement officers come together.

 

In October and November 2018, Dr Young was also a Panel Discussant, ‘Towards tax justice: challenging global tax avoidance” RebLaw, University of Law, London; and an invited Session Discussant, Open Society Justice Initiative & Tax Justice Network, Closed Meeting on Strategic Litigation to Combat Tax Havens.

 

“Justice is not being seen to be done – and we’re all the poorer for it”- Research on reporting in criminal courts

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By Dr Tom Smith.

In January 2018, researchers from the School of Journalism (Phil Chamberlain and Sally Reardon) and the Department of Law (Marcus Keppel-Palmer and Tom Smith) supervised journalism students for a week of observations in Bristol Magistrates’ Court. It took three days before they spotted a news reporter. The students sat through more than 200 cases, with the vast majority going entirely unreported in mainstream media

It’s been a complaint for many years that criminal courts are not being covered sufficiently by reporters. It requires a particular skill set, and too many of today’s depleted newsrooms don’t have the resources to spare for such work. High-profile cases – such as the recent trial of Ben Stokes at Bristol Crown Court in August 2018 – still get attention; but the vast majority of people passing through Magistrates’ Courts do so anonymously. As a result, the public has little idea how, or indeed if, justice is being served fairly and effectively in their local area.

In January 2018, the Society of Editors convened a seminar to consider the problem and launched a working group to consider solutions (see here). Meanwhile Her Majesty’s Courts and Tribunals Service has been making efforts to make courts more ‘open’ to the media. At the aforementioned seminar, a number of media executives said that if they had more resources, they would employ the journalists to do this vital job. They directed their anger at organisations such as Facebook and Google, who they accuse of profiting from their labour without putting any money back into the industry. John Whittingdale MP, the former chair of the House of Commons’ Culture Select Committee, has said this issue needs addressing. The National Union of Journalists has also highlighted the lack of court reporting. The consensus therefore appears to be that more coverage of court proceedings is ‘a good thing’.

Yet, for an issue which lawyers, journalists and politicians all agree on, there is surprisingly little analysis of court reporting, and quite a lot of received opinion. Dr Judith Townend (University of Sussex) has written extensively on the principle of open justice and its importance. In 2014, Professor Leslie Moran (Birkbeck University) examined the level of court reporting in the local and national press for one day. He found that a few stories dominated most media reports, rather than providing a representation of the range of cases. In 2016, the Justice Gap’s Brian Thornton (University of Winchester) repeated the exercise, identifying a decline in coverage (see here). This was, he suggested, probably due to the fact that half of local newspapers did not have a court reporter. The limited number of studies so far have looked at the presence and volume of court reporting. This study wanted to identify what was being missed by this lack of coverage. In short: if the objective is to send more reporters into court, what might they find?

The small-scale pilot study in January 2018 saw the research team supervise student journalists, who observed cases in Bristol Magistrates’ Court for a week, recording every case they encountered. They utilised a coding sheet designed to record key details; these were structure so as to include not only basic detail about offence with which defendants were charged, but also other potentially relevant details and factors such as mental health, drugs, and housing. Crucially, the observers gave each case a ‘newsworthiness’ rating. Using criteria developed by Galtung and Ruge, and refined by others over the years, the students judged how valuable a local newspaper would view each story. Various factors contributed to this rating such as the seriousness and location of the offence, how easily the case could be understood by a lay audience, or the profile of those involved. These were rated on a Likert Scale of 1-5, ‘one’ being cases of little interest to the potential audience (i.e. the public) and ‘five’ for high interest. They also recorded if any reporters were present during proceedings.

In what staff at the court said was a relatively quiet week, the study recorded 240 cases. On average, six courts were open each day. Of these cases, the number given a score of ‘three’ or more was approximately 50 (roughly 20% of the sample). Stories in this batch included:

  • a man charged with breach of the peace after sparking a terror alert in a local shopping centre;
  • a man who had taken natural remedies for a cold, finding himself over the drink-drive limit
  • Bodycam footage showing a man who failed to produce his driving licence being punched by police officers

What was also clear was the number of stories about the ‘process’ of justice rather than the substance of the case itself. Mental health issues were a common part of cases, as were drug addictions and social security problems. Defendants were not always best served by the use of technology in court and on a number of occasions were unrepresented during their hearing.

Although the research team only encountered a single reporter, the media did report some of the cases. This was, however, done so without the use of ‘inperson’ reporting; instead, media outlets re-published information issued to them the Crown Prosecution Service (CPS) on cases which it had successfully prosecuted that week. Whilst this provides a useful indication of the cases heard, there are obvious problems with, in essence, subcontracting reporting on criminal proceedings to the CPS. The ‘list’ of convictions clearly relates to only a fraction of the cases (primarily the most ‘newsworthy’ according to internal CPS standards) and does not account for acquittals or other types of hearing. It is highly unlikely that the list would include any which called CPS competency into question – such those with disclosure failures, missed deadlines, or acquittals. Yet, the team observed cases where the procedural and evidential competence of the CPS (and other parties) was questioned by Magistrates. Ultimately, the nuance of the criminal justice process is lost in this simple ‘guilty list’ approach. A huge slice of public life – impacting on many people’s lives and our perceptions of criminality and justice – is passing by, unreported and uncontested.

We should be concerned by this. The reporting gap cannot be made up by anyone; it requires specialist skills and there are legal penalties should it not be done correctly. A topical example is the case of Stephen Yaxley-Lennon (better known as Tommy Robinson). In May 2018, Yaxley-Lennon was convicted of contempt of court after live broadcasting from Leeds Crown Court during a highly sensitive trial of a number of Muslim men accused of running a child sex ring. His primary justification for doing so was the perception that mainstream media were ignoring cases of Islamic men engaged in serious sexual offences, and that in taking such actions he was providing an informative and valuable public service. Whilst one can fairly dispute the true motivations behind these actions and criticise the methods used (and the potential impact on the fairness of the trial), it is arguable that non-specialist laypersons such as Yaxley-Lennon may be catalysed to undertake, in essence, ‘vigilante’ journalism, should they perceive a deficit in journalistic coverage of criminal justice. Whilst a fairly extreme example, this case – which was appealed by Yaxley-Lennon and is currently in the hands of the Attorney General – does demonstrate how a lack of media reporting of criminal court proceedings leaves a vacuum which will, without appropriate action, inevitably be filled by those unsuited to an important, challenging, and sensitive role.

The experience of the study was, generally, encouraging. The research team found Bristol Magistrates Court staff to be polite, helpful, and professional; one magistrate wanted to hear much more about the research project. Another wanted us to look at particular areas where the justice system wasn’t working. At the same time, we were also aware of an incident last year where a citizen reporter was ordered to stop taking notes in court. Anecdotal evidence from around the country has painted a similarly mixed picture of the attitude towards open justice and external scrutiny. With this mind, it is worth highlighting that the general availability of information on the court’s work for the public is poor. There are no transcripts; full court lists are off limits to non-journalists; and mobile phones are treated as weapons of mass destruction (although the aforementioned Yaxley-Lennon case demonstrates the worst fears of court staff in this regard).

Bristol has a vibrant media community. As well as its established daily newspaper, it is home to regional BBC and ITV offices; it has MadeInTV; a vigorous community newspaper (the Bristol Cable); and radio stations, from independents such Ujima to commercial and BBC outlets. There are bloggers, tweeters, and very popular freesheets in the Voice series. Yet the courts remain largely ignored. Subject to funding, we hope to develop (through research and collaboration) ways of increasing court coverage. We also aim to repeat our study across the country and provide a fuller picture of the state of court reporting in England and Wales, and highlight what is being missed. We think it likely that some places will be well served by agencies, trained independent reporters, or traditional media. We hear of others where a reporter has not been seen for years.

Finally, business as usual isn’t going to do justice to justice stories. Simply having more reporters cover the relatively few high profile or unusual cases from the many that pass through the courts each year is not going to add greater understanding or provide better scrutiny. Some stories are about patterns, better understood through data analysis. Some are about social issues which need following up by specialists. The failure of ‘business as usual’ also extends to the endemic opaqueness of the criminal justice system, and its inherent caution in opening up to the outside world. Without doing so – and without addressing the growing chasm left by traditional media – more Yaxley-Lennons may emerge to take their place. Few would approve of this. There are some 300 Magistrates’ Courts in England and Wales. If Bristol is any guide (and, at present, it is the only yard stick we have), each week 15,000 newsworthy stories are potentially being missed by the media and the public are none the wiser. Justice is not being seen to be done; and we’re all the poorer for it.

 

Showcasing undergraduate student law research at UWE Bristol.

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We are pleased to introduce the inaugural issue of the UWE Bristol Student Law Review (UWESLR), edited by Dr Tom Smith.

The future of legal research is, like the legal profession, dependent on our current students. As such, it is essential to both encourage the efforts of young scholars and to assist in the development of their research and writing skills. This publication intends to do so by showcasing outstanding examples of research by undergraduate Law students at UWE. This fulfills twin objectives: to reward their endeavours by sharing their work with a wider audience, and to demonstrate to both their peers and others the quality of the research produced by our future academics and lawyers.

This issue includes three articles; these are based on the submissions of undergraduate students as part of the final year Dissertations module for the Law and Joint Awards programmes. Annie Livermore writes about the use of surgical and chemical castration in the treatment of sex offenders; Amber Rush writes about the regulation, reintegration and rehabilitation of child sex offenders; and Georja Boag writes about the identification, protection, support and treatment of victims of human trafficking. All have produced excellent and engaging pieces of research, and should be congratulated for their efforts.

The Review represents part of an ongoing effort to make students a part of the academic research community within the Department of Law at UWE. The research culture of any university should reach beyond the individual and collective activity of professional researchers; students should feel part of the scholarly environment in which they are learning. It is hoped that the Review will help to create an unbroken chain between academic and undergraduate research. In doing so, researchers can pass on their expertise and experience to the next generation of scholars, and students can better develop their skills.

We hope you enjoy reading it. The full  UWE Bristol Student Law Review (UWESLR) is available to read and download here.

Application for three year study to investigate student success and retention

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By Kathy Brown

Last year two academics from the School of Criminology and Law at Liverpool John Moores University (JMU) contacted Jane Rees and me to see if they would like to join them in a longitudinal study that investigates student success and retention.  As academics both responsible for, and with particular interest in the retention and success of law students in Bristol Law School, Jane Rees and I joined the planned study. 

Jane Rees at a previous talk

Having previously been entertained by JMU colleagues at their Liverpool campus as part of a first planning exercise, last week Jane and I hosted Bleddyn Davies and Ester Ragonese (JMU) showing them the sights of Bristol and more particularly UWE’s Faculty of Business and Law building.  The purpose of the meeting was to draft an outline bid for Nuffield Foundation funding for a three year study across three universities starting in September 2019.  We were fortunate to be joined by Craig Lennox , from Research, Business and Innovation (RBI) at UWE Bristol, who shared valuable knowledge with us (‘we want a Craig’ – the words of Ester and Bleddyn!).  It was also fortuitous that Sarah Grabham was proximate to our meeting room and accepted our invitation for her to join us for a short time. 

Kathy Brown receiving an award for outstanding teaching

 

The proposed principal investigators will be Liverpool JMU.  Lauren Devine kindly shared her expertise and provided some advice and guidance for the Nuffield Foundation application with Jane and I and this, together with support from Thom Oliver from RBI is hoped will give the application the right focus and detail.  Once the application has been made each university will be embark on a pilot which will emulate our planned three year longitudinal study.  Funding for the pilot exercise is our next focus.

Ultimately it is hoped the results of the research will have multiple applications ranging from recruitment through to supporting law schools and other university departments to identify ‘why students stay’.

 

 

 

 

Jackie Jones addresses the United Nations on women’s human rights

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By Jackie Jones:

Professor Jackie Jones was one of only 9 representatives of all UK Non-Government Officials (NGOs) speaking at the United Nations in Geneva.

Professor Jones was author of the United Nations Wales Shadow Report on Women’s Human Rights that has been submitted to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW).  The Shadow Report compiles  evidence from the Third sector (NGOs) on how well the Welsh and Westminster governments are complying with their international law obligations.

The report highlights some serious gaps, including, closure of courts, rape crises centres, lack of funding opportunities and increases in violence to name but a few. It also calls for transposition of the CEDAW into domestic law to ensure no regression in rights for women in the future. The report has been received by the Committee and is on its website.

CEDAW monitors the implementation of the Convention on Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979).  Countries who have become party to the treaty (States parties) are obliged to submit regular reports to the Committee on how the rights of the Convention are implemented.

During its sessions, the Committee members discuss these reports with the Government representatives and explore with them areas for further action by the specific country. The Committee also makes general recommendations to the States parties on matters concerning the elimination of discrimination against women.

In this instance, Jackie Jones was giving evidence to the pre-session of CEDAW. The Committee heard evidence about the compliance of the UK with its human rights obligations towards women.

Professor Jones focused on domestic transposition/implementation of CEDAW into UK law – and the effects of devolution on women’s unequal position in the 4 nations – as reflected in British society, policy and law.

 

For more information about the process, please see:

https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/CEDAWIndex.aspx

Jackie Jones’ submission heard at the Supreme Court of Moldova

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By Jackie Jones:

In July, Professor Jackie Jones submitted an amicus brief on behalf of the European Women Lawyers Association in support of the Women Lawyers Association of Moldova. This was then received and considered by the Supreme Court of Moldova.

The case concerns women lawyers right to the same treatment in relation to payment into the health insurance system while on and after maternity leave. Female lawyers are treated differently to other self-employed female workers.

The amicus brief is based on international and domestic constitutional laws to equality and dignity. It argued that Moldova was in breach of its international law obligations and discriminated against women in the lack of provision of health insurance for women lawyers whilst on maternity leave.

The amicus brief was accepted into evidence by the Court, yet the case was lost, denying the remedy suggested by the national equality body that ruled in the Association’s favour.

The Association now plans to appeal to the United Nations CEDAW Committee. Professor Jones will remain involved in the process. 

Note: Amicus briefs are legal documents filed in court appeal cases by non-litigants with a strong interest in the subject matter. The briefs advise the court of relevant, additional information or arguments that the court might wish to consider.

Second CALR Staff Research Seminar

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A second staff research seminar was held on 19 March 2018 and featured two presentations from members of the International Law and Human Rights Unit.

***

Noëlle Quénivet, Associate Professor in International Law and Head of the aforementioned Unit, started her presentation entitled ‘Is Duress a Successful Defence for Children Having Committed War Crimes?’ by explaining that often child soldiers are viewed as victims although they are involved in international crimes. Scholars argue that if they were to be prosecuted they would not be found guilty, notably because they would be able to use a number of defences to negate and/or excuse culpability. One of the most common defences cited in literature is duress which is defined as the compulsion of a perpetrator to commit a crime because he/she fears for his life and limb, the threat stemming from another person.

Noelle contended that the strict application of the requirements of duress actually leads to the conclusion that this defence cannot be successfully invoked by child soldiers. This is mainly due to 1) the lack of a contextual approach in the application of the defence of duress and 2) duress being viewed as a justification rather than an excuse. A potential solution would be to understand duress as an excuse and integrate some contextual elements into the elements of this defence.

First, it recognises the wrongfulness of the act whilst stressing that there is no criminal intent. This would ensure that the gravity of the acts children commit is recognised whilst the children’s lack of criminal intent is acknowledged too. Indeed, research shows that children who commit international crimes are not devoid of moral values and in fact feel culpable.

Second, the defence of duress would not require sacrifice or martyrdom. Duress as a justification requires the act to cause no greater harm than the harm that would be inflicted upon the perpetrator. Understood as an excuse, the defence of duress would mean that children only need to make an ‘understandable choice’.

Third, it would acknowledge the lack of autonomy of the child soldiers. After all excuses focus on the actor whilst justifications focus on the act. In the case of child soldiers it would mean understanding the limits of their agency as they are reduced to a tool by means of which another person commits murder. Yet, as Noelle explained, even such a broad understanding of the defence of duress does not offer a comprehensive defence to children who have perpetrated international crimes. In other words, child soldiers are unlikely to be able to avail themselves to this defence.

***

The next speaker, Amy Man, Lecturer and PhD Candidate at the Bristol Law School, presented a paper on ‘New Players and Old Rules: A Critique of the China-Ethiopia and China-Tanzania Bilateral Investment Treaties’ which is due to be published in late 2018. Amy began by explaining that international investment agreements which are formed by specific chapters in free trade agreements, regional agreements and a complex network of bilateral investment treaties (BITs) are often silent on social issues such as human rights.

The neoliberal assumption is that investment treaties boost the economy of developing States. However, this is still unconfirmed. The reality is that increasingly such treaties have a negative impact on the society of developing States. Indeed, such treaties create competing obligations in the name of investment protection. These obligations often lead to the host State to freeze its legislation (which is known as ‘regulatory chill’) to avoid disputes with foreign investors. This ‘regulatory chill’ prevents the host State from introducing labour and welfare laws as well as from development policies and measures that comply with the concept of sustainable development.

Amy argued that China, as an emerging and prominent actor in international investment law, is an innovator inasmuch as it has included the principle of sustainable development in bilateral investment treaties whilst recognising the importance of economic development and mutual cooperation. The most notable example is the China-Tanzania BIT. Under this BIT, the concept of sustainable development is explicitly referenced in the preamble, which highlights that the substantive provisions in the Agreement need to be read from the perspective of sustainable development. Furthermore, under the national treatment principle articulated in Article 3(2), the host State (which is most likely to be Tanzania) is allowed to adopt measures to promote local entrepreneurship. In contrast, the principle of national treatment is conspicuously absent from the China-Ethiopia BIT. Since Tanzania is the main recipient of capital in that particular relationship, the inclusion of this provision is remarkable as it demonstrates China’s more nuanced approach to its host partners. It also alludes to a Chinese approach to investment that is more in line with the concept of sustainable development, which is based on intergenerational equity.

Amy argued that incremental changes, such as Article 3(2) in the China-Tanzania BIT, in Chinese investment agreements are a step in the right direction. However, China is only one actor in a complex regime. The more traditional capital-exporting actors in international investment law must also develop an approach based on sustainable development, which needs to be evident in their investment agreements.

Noelle Quenivet Lectures at the International Criminal Court Summer School in Galway

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By Noelle Quenivet:

For the second year, Dr Noelle Quenivet, Associate Professor in International Law at Bristol Law School, was invited to lecture on ‘Prosecuting Crimes of Sexual Violence’ at the International Criminal Court Summer School organised by the Irish Centre for Human Rights of the National University of Ireland Galway.

The prestigious and long-standing school opened on 18 June with a public lecture by Judge Solomy Balungi Bossa of the International Criminal Court. The school also offered a special session on Africa and the ICC in collaboration with the Institute for Security Studies.

Besides, as previous years, eminent scholars, including Professor William Schabas who founded the school, and practitioners such as Dr Fabricio Guariglia (Director of the Prosecution Office of the ICC) and Peter Robinson (Defense Counsel at the Mechanism for International Criminal Tribunals), shared their knowledge and expertise with LLM students, PhD candidates and practitioners, all specialised in international criminal law.

Noelle Quenivet offered the participants a tour of the jurisprudence of the international criminal tribunals, focusing on the ICC and especially the latest case, Bemba, that has signalled the Court’s willingness to condemn sexual violence perpetrated against men as rape.

Noelle Quenivet explained that she was particularly pleased with this groundbreaking case, as in her PhD thesis, (later published in 2006 as a book Sexual Offenses in Armed Conflict and International Law), she had already argued in favour of a gender-neutral definition of rape and sexual violence. Despite the fact that the defendant had been acquitted on appeals she stressed that the jurisprudence on the definition of sexual crimes remained unaffected by the latest judgment.