‘The Disappearing Ghosh Test’

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Matt Hall and Dr Tom Smith have recently published an article in Criminal Law & Justice Weekly on the recent case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, which significantly amends the ‘Ghosh Test’ for dishonesty in criminal cases. The article summarises and analyses this highly significant case, which overturns a long-standing (and much criticised) precedent in acquisitive Criminal Law cases (for example, those involving theft).

Read the article: https://www.criminallawandjustice.co.uk/features/Disappearing-Ghosh-Test

December 5 2017 – Understanding sexual violence and abuse: causes, consequences and prevention

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This is the fifth Understanding Sexual Violence and Abuse event as part of an open discussion about sexual violence, exploitation and abuse, along with the various ways of responding to these problems. This event will feature talks given by experts, with an extended period for questions and discussion.The event is intended to promote dialogue and understanding on topics of importance to the community. Anyone is welcome to attend – from those working in the area, to those with no prior knowledge who are simply interested in the topics under discussion and would like to know more.

For more information and to register for the event please follow this link: https://info.uwe.ac.uk/events/event.aspx?id=22068

18 October 2017 Guest Talk: Adam Reuben – Climate Refugees: The Science, the People, the Jurisprudence and the Future

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In October 2017 Fores, an independent think tank dedicated to furthering entrepreneurship and sustainable development through liberal solutions to meet the challenges and possibilities brought on by globalization and global warming, published a report entitled ‘Climate Refugees: The Science, the People, the Jurisprudence and the Future’. On 18 October, one of the authors of the report, Adam Reuben, a former LLM in International law student, came to UWE to present the key findings of the report as well as his latest research on the topic of climate refugees in the European context. The talk was organised by the International Law and Human Rights Unit of the Centre for Applied Legal Research.

The study examines the most important aspects of climate migration issues as comprehensively as possible, and strives to identify the significance and magnitude of possible climate migration flows. Adam started by explaining that there are mainly four triggers to climate migration: rapid-onset climate events, slow-onset climate events, global sea-level rise, and competition and conflict over natural resources.

Rapid-onset climate events include for example floods, hurricanes and earthquakes and lead to mostly temporary displacement of the population. Such events have a push and pull factor in the sense that the population is not only pushed out of a place but also pulled inside the zone as in some instances such climate events have in the long-term created favourable conditions for eg agriculture, tourism.

Slow-onset climate events occur over time and include droughts, degradation, loss of biodiversity, and problems with access to food and water. Here, migration can be both temporary and permanent and a plethora of causes of migration can be identified. In this regard two issues need to be addressed: food security and water scarcity. Slow-onset climate events have created volatility in the market and disruption of food systems; yet, the effects on agriculture affects different regions and different types of cultures in varied manner. As Adam pointed out even if the Paris Agreement is complied with the sub-Saharan area will see a loss of 40% in maze crops. With regard to water-related issues, Adam explained that 40% of the world population experiences water shortage for at least a month a year and that 25% of the population lives in countries affected by chronic or recurring shortage of fresh water. Although the right to water has been recognised as a human right and is included in the sustainable development goals as well as in some national constitutions, little progress has been made. Adam stressed that water is not only used for human needs but is also an asset as such.

Global sea-level rise is a further trigger for climate migration. It is estimated that during the 20th century the sea level has risen by 6 cm owing to climate change. Low-lying coastal zones that include 600 million people are the most vulnerable to this phenomenon. Such rise not only affects the life and livelihoods of individuals but also challenges maritime borders, thus creating potential territorial conflicts.

This led him to discuss competition and conflict over natural resources as another trigger for climate migration. For example, water scarcity increases national instability and food scarcity may cause conflicts over land. It is often argued that the conflicts in Darfur and in Syria are examples of climate conflicts but there is no agreed consensus in the literature as to whether climate change can be isolated as the sole cause of conflict. In other words climate change contributes to conflicts and to migration but it is problematic to identify it as the cause.

It is difficult to estimate the number of climate refugees. Estimations range from 150 million to 1 billion though it seems that a consensus has emerged that by 2050 there will be over 200 million climate refugees. Adam highlighted the fact that there are marked regional differences of disaster displacement and this is partially due to the fact that there are rapid- and slow-onset climate events. At this stage Adam emphasised the fact that there is some wrangling about legal terminology here, notably the distinction between environmental and climate change refugees. This is compounded by the fact that reference is made to climate change, natural disaster and man-made disaster. Further, whilst some individuals cross the borders and are thus refugees in the sense of the 1951 Geneva Convention others do not and are thus considered as internally displaced persons. Adam stressed that international law does not recognise the concept of climate refugees which are usually defined as ‘… those people who have been forced to leave their traditional habitat, temporarily or permanently, because of marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affect the quality of their life.’

From an international law perspective climate refugees fall between two categories: those protected as refugees and those protected as economic migrants. In other words there is currently no legal framework to protect such individuals.

Adam then sought to examine the relevant legal regimes, ie international environmental law, refugee law, migration law and human rights law. The UN Framework Convention on Climate Change Agreements rarely refer to climate migration (see eg COP 16, 18 and 21) and the Paris Agreement makes a vague reference to such migration. But is the UNFCCC the relevant forum to address the issue of climate migration? The UN High Commissioner for Refugees rejects the expansion of its mandate to consider climate migration. That being said it operates on the basis of ‘climate change hotspots’ to somehow fill the gap. So, by not isolating climate change as the sole cause of displacement, UNHCR is able to protect such individuals.

Interestingly, Adam pointed out that the International Migration Office was at the forefront of the work on the protection of climate refugees having produced excellent studies on the subject-matter. Also the Nansen Initiative produced in 2015 an Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change. From a human rights perspective there appears to be some form of protection offered to climate refugees but mainly only because they fall within other categories such as refugees and displaced persons. Most importantly the principle of non-refoulement, the cornerstone of the 1951 Geneva Convention, has been read into human rights instruments via the prohibition of torture and inhuman treatment. At this juncture Adam explained how the jurisprudence of the European Court of Human Rights could be used to protect climate refugees, arguing that as the Convention is a ‘living instrument which […] must be interpreted in light of present day-conditions’ it could potentially provide an adequate legal framework for protection.

Last but not least Adam considered the issue of climate refugees in the European Union. He contended that climate refugees are not legally recognised by the EU and that it is not possible to interpret existing legislation so that it incorporates climate refugees. Various studies and papers refer to climate refugees but no clear strategy can be discerned as of now. Rather, an incoherent and piecemeal approach seems to be the preferred approach of the EU.

The discussion that ensued covered a wide range of themes. First, the issue of terminology was raised and especially why and whether terminology was of such importance. The concept of forced environmental migrant seemed to be accepted by the audience as probably most suitable to describe a variety of persons affected by climate change events. Second, the interaction of the various legal regimes and where the protection of climate refugees would sit best was discussed at length, especially in light of the doctrine of State responsibility that requires harm to be linked to a State or a State actor. Third and last the discussion veered towards the European Union’s approach towards climate refugees. It was notably pointed out that given that Member States had territories overseas that were liable to climate events the topic of climate refugees could become quickly an issue of concern for the EU.

Adam Reuben presenting his guest talk on the 'Climate Refugees' Report

Law students present their research report to a local support service for survivors of rape & sexual abuse

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On Wednesday 25 April, there was a Centre for Applied Legal Research Forum event that featured a talk by Rowan Miller who is Director of Somerset and Avon Rape and Sexual Abuse Support (SARSAS). As part of the event, Rowan was presented with a student authored research report that answered a series of questions posed by SARSAS staff and volunteers. The 26 page report is the culmination of detailed research and writing by law and joint honours degree students who have studied on the LLB’s  Sexual Offences and Offending module.  This is a voluntary project and is not a formal part of the module. It is supervised by Ed Johnston and Phil Rumney. 
Four of the authors, Ben Howells, Xavier Stride, Angharad Griffiths and Ellen Rye met with Rowan who expressed her appreciation for the detailed work involved in the writing of the report. The other student authors of the report are: Leah Blackman, Kathy Boyle, Jessica Cambridge, Rebecca Davies, Carole Orchard, Ryan Small and Thomas Watts. All the authors are LLB students, or those pursuing joint honours degrees with law.

Amnesty International Expert Meeting on Brass Plate Companies and Illicit Weapons Trafficking

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Following Dr Mary Alice Young’s participation at the Amnesty International Expert Meeting on Brass Plate Companies and Illicit Weapons Trafficking in October, Dr Young’s suggestions have been included in a follow up report which will be presented to the newly re-established Committee on Arms Export Controls, with a view to presenting the work in an oral evidence session. Dr Young’s recommendations include alternative methods to investigate, prosecute and stop the formation of brass-plate arms dealers who benefit from the UK’s relationship with financial secrecy jurisdictions.

Inter-active seminar event on 17th March 2017, Friday

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A one day inter-active seminar on ‘The Impact of Armed Conflict on the Environment and Natural Resources: A Sustainable Development Goal (SDG) 16 Perspective’ was held on 17th March 2017 at the University of the West of England (UWE), Bristol. The event was organised by Dr Onita Das, Professor Jona Razzaque, Evadne Grant and Elena Blanco from the Department of Law at UWE, Bristol. The seminar co-funded by the Society of Legal Scholars (SLS) and the UWE Centre for Applied Legal Research (CALR),The event consisted of four speakers drawn from academia and the voluntary sector presenting papers on a number of topics relevant to the overarching theme of event. Doug Weir (Toxic Remnants of War Project, Manchester) delivered a presentation on ‘Can the SDGs provide a framework for mainstreaming the environmental dimensions of armed conflict?’; Dr Sascha-Dominik Bachmann (University of Bournemouth) presenting on ‘Hybrid Warfare: Eco threats as security threats and the protection of the environment during hostilities’; Professor Karen Hulme (University of Essex) presenting on ‘Achieving SDG 16: Natural resources, good environmental governance and environmental human rights’ and finally, Professor Jona Razzaque (University of the West of England, Bristol) presented on ‘Sustainable investment and natural resources’.
Discussants from the law, politics and business faculties at UWE, Bristol, responded to each paper. Both discussants and the other attending participants (ranging from undergraduate to postgraduate students, UWE academics and law practitioners) provided excellent commentary and raised thought provoking questions, facilitating in depth discussion on the sub-topics presented. The seminar was well received by the speakers, discussants and participants.
Inter-University Environmental Law Student Conference on 22nd March 2017, Wednesday at Cardiff University
                 
Students from UWE Law School participate in the 3rd Annual Inter-University Environmental Law Student Conference at Cardiff Law School on Wednesday 22nd March 2017.

The Conference gives students from Cardiff, Swansea, Bristol and the University of the West of England (UWE), Bristol the chance to present about various topics.
Second and final year law students Sofia Anne John, Siddique Pathan, and Kayla Creque presented on topics ranging from ‘sustainable development in post armed conflict’ to ‘the relevance of sustainable development to climate change’.
The students found it an enjoyable experience and an exciting opportunity to showcase and listen to various perspectives on environmental law.
 

CALR Forum: Does and Should International Law Prohibit the Prosecution of Children for War Crimes?

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The picture of a young African boy holding a Kalashnikov in his hands has come to represent the archetypal child soldier drawn into a conflict he does not understand. It is thus claimed that children are not culpable for crimes they might commit during the conflict and, consequently, should not be prosecuted. On 1 March 2017 Noëlle Quénivet, Associate Professor in International Law at UWE, Bristol, challenged this view at a Centre for Applied Legal Research Forum. Alison Bisset, Associate Professor in Human Rights Law at the School of Law of University of Reading, responded to her paper. Noëlle Quénivet’s presentation, based on a paper that has been accepted for publication in the European Journal of International Law, argued that first, international law does not prohibit the prosecution of children for war crimes and second, in certain, narrow circumstances children having committed such crimes should be prosecuted.
The international community has for more than two decades pushed towards the prohibition of the prosecution of children for war crimes on the basis that children should be primarily viewed and treated as victims by virtue of their age and forced nature of their association with armed forces/groups. This lex desiderata created by the global civil society and UN agencies remains a wish, for the relevant lex lata, ie international humanitarian law and international human rights law allow States to prosecute children and even regulates such instances. States are encouraged to ‘[c]onsider excluding children under 18 from criminal responsibility for crimes committed when associated with armed forces or armed groups.’ (page 36) Has this permissive rule become a prohibitive rule? Or, phrased differently, have States made use of the permissive rule and thus prevented the creation of a customary norm prohibiting the prosecution of children for war crimes? After examining the practice and opinio juris relating to the prosecution at national level Noëlle Quénivet concluded that because post-conflict restorative mechanisms overshadow rehabilitative models of juvenile justice no clear answer can be given as to why States are not carrying out prosecutions. However, the fact that the US prosecuted (though not without controversy) children held in Guantanamo Bay for war crimes it was possible to draw the conclusion that States wished to keep permissive rule though in the very specific context of African post-conflict situations there seemed to be a trend towards the prohibition of prosecution. States practice at the international level is even less clear, for, while a few instances of state practice on the prohibition of the prosecution of children for war crimes can be discerned with regard to statutes of international tribunals and courts, the opinio juris seems lacking. States’ decision not to prosecute children is based on policy rather than law. In other words, States have kept the permissive rule alive.

The next question Noëlle Quénivet asked was whether the permissive rule should be retained. To answer such a difficult question she explained that the analysis of State practice and opinio juris reveal that the key element in States’ decision not to prosecute children for war crimes relates to the post-conflict context rather than to the age of the alleged offender. Put differently, the post-conflict restorative model of justice supersedes the rehabilitative model of juvenile justice. Rehabilitation of the child soldier happens within a wider restorative justice mechanism in which reconciliation among the offender, the victim and the wider community is essential. Yet, can reconciliation be achieved without justice or at least a sense of justice? Prosecution could be used as a tool to achieve this. Also, what happens to children caught in situations where there are or where is no need to create such reconciliation mechanisms and the veil of post-conflict restorative justice has been removed? This prompted Noëlle Quénivet to contend that the permissive rule should be retained but harmonised, ie applicable to a variety of situations, as well as limited in view of the fact that the prosecution of children for war crimes mainly rests on a deterrent approach towards punishment and the best interests of the child must stay the focus of any proposal. Noëlle Quénivet then proposed an elaborate system of triage and thresholds as she explained that any solution needed to work for the community by restoring a sense of justice as well as for the children in sending a message that the behaviour they have embraced is reprehensible. Further, she contended that the age of criminal responsibility should be set at 16.

Alison Bisset then shared her views on the subject. She pointed out that Noëlle Quénivet’s assessment of the international legal regimes and analysis of state practice demonstrated convincingly that in response to her first question – does international law prohibit prosecution? – the answer was no. The prosecution of child soldiers is neither prohibited by treaty, nor under customary international law. Yet, there is indeed a movement towards rehabilitation and reintegration as the favoured response and this movement finds some support in international law if child soldiers are viewed as being victims of exploitation and abuse. Treaties such as the UN Convention on the Rights of the Child as well as soft law instruments such as the Cape Town and Paris Principles view restoration and rehabilitation as in the best interests of children associated with armed groups and armed forces. Coupled with the fact that the ICC has jurisdiction over only those aged 18 and over at the time of the alleged offence and that children have not been prosecuted before international or internationalized courts, Alison Bisset argued that there is a belief at the international level that children should not be prosecuted for war crimes even if international law does not prohibit it.

Answering the second question – should international law prohibit the prosecution of children for war crimes? – was more difficult especially as recent studies point out that first, children are able to make fully reasoned choices on whether or not to join armed forces/groups and second, the affected society may seek the prosecution of lower level perpetrators such as children. Thus although Alison Bisset stated that there was no principled justification for why child soldiers should not be prosecuted, she maintained that if States were to stand the best chance of restoration and long-term peace and security, they must rehabilitate their children so that they can play a constructive role in building the future.

Alison Bisset then offered an insightful critique of Noëlle Quénivet’s restorative model of justice focused on rehabilitation and reintegration with prosecution acting as a last resort in a limited number of specific cases. First, she stressed that the creation and resourcing of programmes implementing Noëlle Quénivet’s proposal would pose a number of challenges. Necessary systems and safeguards would need to be put in place to protect children’s vulnerability and provide them with adequate support. Also where rehabilitation programmes become linked, even tentatively, to formal judicial proceedings a whole host of questions around procedural rights and protections also arise. The financial cost of these programmes cannot be overlooked. Sadly, Alison Bisset noted that even current initiatives, which are generally less complex than what was proposed, are not working well, thus questioning what chance there was of successfully introducing something even more complicated.

Alisson Bisset finished her response by sharing her views on wider issues. She, for example, noted that there was such a preoccupation with prosecution in the aftermath of mass atrocity that there was notable decline in the attention paid to and the quality of post-conflict transitional processes. This impacted on the effective rehabilitation and reintegration of child soldiers. Furthermore, the preoccupation with child soldiers deflected attention from other severe and far-reaching consequences of armed conflicts on all children.

The CALR Forum was attended by about 15 students and staff members from UWE. After Alisson Bisset’s response questions were taken from the floor. The audience was particularly interested in the nature of the charges brought against children (ie terrorism or war crimes), prosecutorial discretion in charging those fighting on the ‘good’ side, the definition of ‘voluntary recruitment’ and its application on the African continent, the effectiveness of the work of the United Nations Special Representative for Children and Armed Conflict, etc. The complexity of the issue of child soldiers and, more generally, children in armed conflict was no doubt stressed in this sober-minded exchange of views. 
 

CALR Forum: Brexit, Article 50 TEU and the British Constitution

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Brexit: A word that one cannot escape reading newspapers, watching the TV or listening to the radio. It is literally everywhere. Yet, what it means in legal terms is often misunderstood and its repercussions on the legal, and notably constitutional, framework in the United Kingdom overseen. Therefore, on 22 February 2017 the Centre for Applied Legal Research organised its first Forum of the academic year 2016/2017 on the subject. Three staff members of the Bristol Law School, Christian Dadomo, Martina Gillen and Noëlle Quénivet, shared their views about Brexit, Article 50 TEU and the British Constitution, whilst offering an international, European and national legal perspective on the Brexit debate. By way of introduction Noëlle Quénivet explained the legal bases of the European Union, ie treaties, stressing the concept of State sovereignty and the importance of understanding that both the ratification of and the withdrawal from a treaty are to be viewed as acts of sovereignty. She then explained that it was the Treaty of Lisbon that for the first time proscribed a withdrawal procedure in Article 50 of the Treaty on European Union. Noëlle Quénivet described the process from the notification of withdrawal to the ratification of the withdrawal agreement by the UK, highlighting the various stages at which the European institutions are and will be involved and underlining the difference between the legal requirements in national and European Union law. Reference was also made to the potential content of a withdrawal agreement (eg budgetary matters, institutional issues, the situation of non-UK EU citizens in the UK and of UK nationals in EU States, etc). 
Following on the idea of sovereignty that has so much been reiterated in the campaign leading to the referendum, Christian Dadomo delved into the multitude of types of sovereignty: parliamentary sovereignty, popular sovereignty and external or otherwise known as State sovereignty. After stressing that parliamentary sovereignty should be better understood as the primacy of Parliament in respect of statutes he showed the interaction and tensions between parliamentary and popular sovereignty, especially in light of the Brexit referendum. Furthermore, the relationship between the devolved authorities and the central government will be affected, as some of them after voting to remain in the EU would like a space at the negotiations table but have been denied so legally (with the Miller judgment before the UK Supreme Court) and politically. Christian Dadomo concluded by stating that Brexit will undoubtedly shake the constitutional legal edifice of the UK. 
Martina Gillen opined that Brexit will have serious repercussions on the UK Constitution and more specifically on the relationship between Westminster and the devolved regions. As she explained Northern Ireland is a case-example of how poorly thought the referendum was. Brexit will affect both the relationship between Northern Ireland and Westminster as well as between Northern Ireland and Eire and has already had the effect of reigniting nationalist Irish feelings, especially in regions that voted to remain in the EU. She then examined in details the McCord decision before the High Court of Justice in Northern Ireland, highlighting that the ruling was not a surprise as the claimants had not asked the right 
question (they asked whether Northern Ireland as a devolved authority could take part in the Brexit negotiations) and should have focused on the fact that persons born in Northern Ireland can take either British or Irish nationality and that Brexit would in fact deny equality of treatment for those who choose Irish nationality. 
The CALR Forum was attended by over 20 students and staff members from the UWE Bristol Law School. After each presentation questions were taken from the floor and a lively and insightful debate often beyond the narrower scope of the speakers’ presentation ensued. There were thus discussions on the withdrawal from the European Economic Area Agreement, the impact of the Dublin regulation on EU border States, the nature (and fate) of EU law in English law, the potential continued jurisdiction of the Court of Justice of the European Union, etc. The next CALR Forum which will be held on Wednesday 1 March, 14:00-16:00 in Room 2B065. Noëlle Quénivet will be presenting a paper on the prosecution of child soldiers for war crimes that has recently been accepted for publication in the European Journal of International Law. Dr Alison Bisset, Associate Professor at the School of Law of the University of Reading, will respond to the paper.