G20 Hamburg Protest – looking beyond the violence

 

Kufre reduced
Kufre-Obong Medo

The ‘Welcome to Hell’ anti-capitalist demonstration took place on 6 July where Hamburg played host to the G20 Summit in Germany and police officers and protesters were left injured after violent clashing took place. People threw glass bottles and stones, vehicles and shops were set on fire and the police responded with teargas and water cannons. About 180 protesters were detained with over 200 in custody while roughly 470 police officers suffered injury.

Much of the civil movement literature tends to conceptualise resistance as an opposition of power, and this dichotomy of power and resistance is more pronounced when discussing protests. Protests are performative, involving chants and banners usually seen as a form of resistance in direct confrontation with the power they oppose. But analysing this demonstration through the lens of Foucault’s power relations would reveal a different narrative, one which sees this movement not as a complete rejection of government, but a counter-conduct, a diffused form of resistance whose behaviour simply says ‘we do not want this truth’. This shift from sole focus on the actions of the protester allows us see G20 protesters as rejecting the way in which they are being conducted through capitalism, and the way they are told to resist. Things they see as catalyst for the ongoing refugee crisis and the innocent lives lost following the war on terror. Instead, Foucault allows us to focus on how protesters actually act within the field of power relations amongst themselves, and the government, without judging the merits of their behaviour.

 

Street demonstrations are one of the few tactics available to communities or groups with little formal power. Foucault provides a more nuanced contribution to the traditional understanding of power. He brings an instrumental shift from the idea of power as a means of coercion towards the idea of power as dynamic and exercised from multiple standpoints. Power relations exist everywhere wherever people interact; we are continuously subjecting it and being objects of it. Thus, this avoids an ‘actor-centric’ approach which narrows the scope of evaluation when trying to comprehend the dynamics of power and government. Rather than focusing then on the protester, Foucault allows us to consider the effect and contribution of power on the protest itself.

 

For Foucault, governmental forms of power attempt to regulate the ‘conduct of conducts’. This covers shaping actions and norms through tactics and technologies of the State such as schools, prisons, police force and many others. Counter-conduct is the struggle against the processes implemented for conducting others, resistance to the processes of governmentality. Rather than simply a rejection of government power, it rejects a particular governmental direction. It is ‘the art of not being governed quite so much’. The counter-conduct approach looks within government to see how forms of resistance rely upon the techniques, strategies and power relations they oppose. Reading protests this way allows us look beyond simply resistance to see the G20 protests as counter-conduct.

 

The violence that erupted outside the G20 Summit – the burning cars, the smashed store fronts, the water cannons and the tear gas – marked the latest manifestation of Black Bloc protests, a European resistance that recently surfaced in American political demonstrations. The one thing both ends of the spectrum regarding Black Bloc protests agree, is that it is a tactic, not a group. Participants wear black masks and hats covering their face and heads as they engage in protest. As University of San Francisco associate professor Jeffery Paris has written, there is no formal network or ideology. What they share is a belief that peaceful demonstration is not as effective as rage. For Foucault, this embodies counter-conduct at its core. It represents a rejection of the perceived right way to protest that we have been fashioned to accept as the only acceptable way.

 

Because of the somewhat inherent violence associated with Black Bloc protests, they have been accused of hijacking what would ordinarily have been peaceful protests and are often described as anarchists. The question then becomes in the context of the Black Bloc movement, to what extent was the police force used justifiable when there are just a few violent individuals?

 

In the Hamburg protests, the police chief Ralf Martin Meyer expressed concerns of imminent violence, and the interior minister Thomas de Maizière announced that 15,000 police would be on duty at the summit. From the summit venue at Elbphilharmonie hall to the tourist area of Pferdemarkt, protest marches were met with a plethora of armed police presence responding with the use of force. The strong presence of police in riot gear as police helicopters circled above, the water cannons and the tear gas used on the protesters exemplify that. The military tactics used only fed the chaos few violent anarchist individuals sought. Rather than suppressing the rally, the heightened police presence created an atmosphere of viewing demonstrators as criminals, suppressing the resistance to governmentality by rejecting how the protester actually acts. This type of modality depoliticises the policing of radical protesting by tagging it as a crime. The implication being, that protesters not only become criminals, but are also seen as posing a threat warranting heightened police response. A telling example is the German Justice Minister Heiko Maas labelling the protesters ‘extremist criminals’ , much like Donald Trump’s recent characterization of the Charlottesville demonstration and attack on demonstrators as a display of hatred, bigotry and violence ‘on many sides’. This brands the protesters as violent and disruptive by virtue of their march. The story then becomes a rebuttal of a sort of conducting power defining the right way to resist, which outlaw’s behaviour that does not fit within this label.

 

Violent protests during G20 summits have become almost routine since the first G8 summit in Genoa whose heightened police presence caused a number of fatal incidents. Thus, one should not overstate their transformative potential in terms of law and social policy. For Foucault, because counter-conduct functions within the boundaries of governmental forms of power, it may reinforce established ways of doing things. In this case, the forms that violent protests took reinforced the established attitude by the authorities when dealing with such demonstrations. This shows the limited extent to which one can practically apply Foucault to demonstrations resulting in violence. The question then becomes whether this alternative perspective can ever shape the way the law treats protests and demonstrations and what change it can bring. Counter-conduct allows us begin a conversation about an alternate view of demonstrations without judging the merits of their behaviour. Perhaps with time, law and social policy will begin to reflect this.

Kufre-Obong Medo is a graduate student at the Nigerian Law School in Abuja, and a former undergraduate in law at the University of Sussex.

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Employment Law Faces Reality on the Supreme Court

aamir fuchs
Amir Paz-Fuchs

Two important employment law cases that reached the Supreme Court in 2017 seem to have very little in common, apart from their engagement with matters of employment rights, and employment relations. In Essop v Home Office, the Supreme Court confronted the contours of indirect discrimination. In Unison v the Lord Chancellor, the issue was the legality of Employment Tribunal Fees and their impact on access to justice.

Both claims were rejected in the lower courts, and in both cases, the appeals were accepted by the Supreme Court. But what is striking (to me) is that the similarities between the cases run far deeper, as the Court went well beyond legal doctrine and into the weight that courts should accord to social and economic reality when interpreting and constructing the law.

When one notes the impact of social and economic reality on legal decisions, the association is, almost immediately, to legal realism, the theory and paradigm developed in the early 20th century which provided the backdrop and foundations for Critical Legal Studies, Legal Feminism, Critical Race Theory, Postmodern Legal Theory, and more. For the basic tenets of legal realism allow the observer, scholar, critique and, indeed – judge (one of its foremost proponents was Oliver Wendell Holmes, Chief Justice of the U.S. Supreme court) to take the legal text as (at most) a starting point; to reflect on the effect of the law as it stands on different segments of society; that law is political, in the broad sense; to take into account the difficulties in realising formal rights and consideration of access to justice; to embrace, rather than be terrified of, the indeterminacy of law. All of the above were impressively present in the two judgments.

The Cases

In Essop, the Court was asked to determine whether a Home Office requirement to pass a Core Skills Assessment as a condition for promotion within the civil service constituted indirect discrimination. The issue was raised following a report, commissioned by the Home Office and produced by a firm of occupational psychologists, which determined that the BME candidate pass rate was 40.3% of that of white candidates; and that of candidates aged 35 and older was 37.4% of the pass rate of younger candidates. The claimants were black, over 35 or, in some case, both black and over 35. They failed the test, and claimed that it constituted a discriminatory ‘provision, criterion or practice’, and thus – indirect discrimination. The Employment Tribunal and the Court of Appeal (unlike the EAT) did not agree, stating that, notwithstanding the report, to establish indirect discrimination, the claimants had to establish the causal relationship between their personal characteristics and their failure to pass the test. In other words, each claimant had to show that they failed they test because they were black or over 35. Of course, no claimant was able to establish that.

In Unison, the background is more straightforward, from a legal perspective. In 2013, the Coalition Government imposed fees in respect of claims to Employment Tribunals (ETs) and Employment Appeals Tribunals (EATs). The ‘Fee Order’ distinguished between two types of claims: Type A claims, which covered over 60 types, demand £160 as an issue fee and £230 as a hearing fee. Type B claims, which are deemed more complicated (examples include unfair dismissal and discrimination claims) require £250 as an issue, and £950 as a hearing fee. Challenges to the Fee Order failed in a previous round, immediately after the fees were imposed, with the court holding that the effects were not yet established, so the challenge is premature. Then the evidence became difficult to ignore, and Unison initiated a second judicial review.

This followed a report the Parliamentary Justice Committee (which I discussed in a previous post) that criticised government policy, noting that the imposition of fees had dramatic effect: an overall drop of 70% in employment tribunal claims, spread across all claim ‘types’. Moreover, and unsurprisingly, the effect was particularly significant in claims where the expectation of a substantial reward was lower. Thus, working time claims saw a 78% drop and breach of contract – a 75% drop. Moreover, even within Type B categories, a disparity was noted as the proportion of successful race discrimination claims resulting in awards of less than £3,000 is recorded as having fallen from 34% in 2012/13 to 8% in 2015/16. For awards of less than £5,000, the fall was from 52% to 19%. The logic is simple, of course, if your claim is not considerable, the fee barrier renders it irrational to pursue.

And yet, the Divisional Court and the Court of Appeal dismissed the claim, holding that it cannot conclude that the decline in the number of claims does not consist “entirely of cases where potential claimants could realistically have afforded to bring proceedings but have made a choice not to” ([68], emphasis in the original).

Enter Legal Realism

A sensitive reader may already have found the thread that links the two cases. Micro vs macro; individual vs social; personal circumstances vs statistics. In other words – what are the ‘relevant facts’ that should lead a court to its decision?

The Court of Appeal in both cases asked for evidence from the individual claimants: show me that you failed the test because you’re black, or because you’re over 35; show me that you can’t afford the fees, and not that you simply had other priorities. The claimants in both cases referred to the social evidence, to statistics: black and over-35 applicants have far less chances of passing the test; there is a 70% drop in applications, and low-value claims (which correspond to workers with low wages) have all but disappeared.

The Supreme Court agreed with the claimants, following a fundamental insight of legal realism: it’s not only that facts matter, they are often the only thing that matters. To be precise: deciding what the ‘relevant facts’ are, is the most important thing a court does. Often, this is done at the hearing stage, where witnesses are heard, and not on appeal. But in these cases, the Supreme Court was asked (albeit not phrased as such) to determine which facts will rule the case. If only personal circumstances are relevant – both (and similar, in the future) claims will fail. If statistics govern – then the path to success is paved. The Supreme Court in Essop addressed the matter directly (per Lady Hale): unlike cases of direct discrimination, “it is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence … Statistical evidence is designed to show correlations between particular variables and particular outcomes and to assess the significance of those correlations” [28].

From here to a second precept of legal realism: rights that have no effect are merely ‘paper rights’. In Unison, Lord Reed does not waste much time to clarify the importance of this premise: “In order for the rights conferred on employees to be effective, and to achieve the social benefits which Parliament intended, they must be enforceable in practice” [6]. Moreover, His Lordship later offers an even deeper understanding of the importance of the possibility of pursuing a claim, to wit – its value lies not only for those who would pursue it, but on the behaviour of those who, in the absence of remedy, would have no qualms denying individuals of their rights. He says: “Parliament does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights” [72]. Or, in the words of Oliver Wendell Holmes, in his seminal article The Path of Law, we have to look at rights from “the view of our friend the bad man”.

So now the ground is set. But a further question emerges: what should be the weight of the evidence supplied? What if we find a black claimant who passed the test, or one who failed because he didn’t prepare? What if it’s not clear if all 70% of the decline in claims can be attributed to the fees or to the impossibility to pay them? Lady Hale clarifies that it is a salient feature of indirect discrimination that “there is no requirement that the PCP in question put every member of the group sharing the particular protected characteristic at a disadvantage … The fact that some BME or older candidates could pass the test is neither here nor there. The group was at a disadvantage because the proportion of those who could pass it was smaller than the proportion of white or younger candidates. If they had all failed, it would be closer to a case of direct discrimination” [27]. As for unmeritorious candidates ‘coat tailing’ claims of deserving ones – it is open for the respondent to show that there is no causal link between the PCP and the disadvantage suffered. In other words – the burden of proof is reversed. Lord Reed in Unison puts the point even stronger: “While the Review Report fairly states that there is no conclusive evidence that the fees have prevented people from bringing claims, the court does not require conclusive evidence: … , it is sufficient in this context if a real risk is demonstrated … The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded” [91, 93, emphasis added]. This, we should immediately note, is not a necessary legal principle. It is a political one, and in this case (if we may) – the right one.

Conclusion

Legal realism is a broad church. It has been argued, with some justification that “we are all realists now”. And yet, in the vast majority of cases, courts (especially lower courts) simply apply the law in an uncomplicated manner. A driver is over the speed limit – sanction. Principled cases, that eventually reach higher courts, often offer more ‘meat’ for a realist analysis. But it is truly rare for a Supreme Court to explicitly embrace legal realism – politics and theory – and more so, in two cases, a few weeks apart, in the same field of law. In doing so, it offers students and scholars a more honest vision of the law, and hopefully – one that sheds a different light on other cases as well.

Amir Paz-Fuchs is a Senior Lecturer in Law at the University of Sussex.

Why the Supreme Court is wrong on conditional intention

 

JohnChild
John Child

Within the landmark case of Jogee [2016] UKSC 8, the Supreme Court has fundamentally restructured the law on secondary liability (ie, the criminality of those who aid, abet, counsel or procure the crimes of another). Correcting a legal ‘wrong turn’ from some thirty years previous, tre headlines in relation to the current law: (1) that so-called joint enterprise (or parasitic liability) no longer represents a separate route to complicity; and (2) that the mens rea (or mental element) of complicity should be narrowed to require intention (including conditional intention) from the defendant. The second of these, which is my focus in this post, is presented as an essential clarification to avoid the over-extension of complicity liability, and to avoid potential for ‘the striking anomaly of a lower mental threshold for guilt in the case of the accessory than in the case of the principal’ [84]. By definition, the role of an accessory will always be categorically different from that of a principal: the latter commits the principal offence directly (eg, murder by killing the victim), whereas the accessory’s contribution is indirect (eg, assisting the principal by supplying a weapon). With this in mind, whatever mental state is required of the principal offender, it is logical to limit the extension of liability to the accessory/defendant by requiring intention, correcting the law pre-Jogee that had allowed for liability where a defendant merely foresaw that the principal might offend.

Despite the clarity of the headlines in Jogee, however, and despite the explicit break from the last thirty years of jurisprudence, sections of the judgment seeking to clarify the law moving forward are much more problematic, and seem hesitant and conflicted in their application of the new intention standard. This should be no surprise. Complicity pre-Jogee had become a major route to liability for some of the most serious offences, particularly murder, and so although the court are clearly convinced of the need to restrain its application, they are also sensibly conscious of what the impacts of narrowing the law might be: impacts in terms of appeals from previous convictions (from those convicted following the legal wrong turn), as well as impacts in blunting a popular and powerful prosecutorial weapon. It is a policy conflict within the judgment that leads the court into two significant errors in their treatment of intention. First, a lack of clarity as to what a defendant must intend for complicity liability; and second, a misinterpretation of conditional intention. In what follows, I summarise the first, before focusing on the second.

 

What must an accessory intend?

There are two limbs to the mens rea of complicity: the first is the defendant’s mens rea as to the effects of her own conduct, and the second is the defendant’s mens rea as to the principal’s future offence. On the first of these, Jogee is clear that a defendant must intend her conduct to assist or encourage the principal’s offence. This provides useful confirmation following some inconsistency in previous case law, and brings complicity into line with inchoate assisting or encouraging (Serious Crime Act 2007, s44). So far so good, perhaps, but subject to the court’s definition of intention discussed in the next sub-section.

Despite relative clarity on the first limb, however, the court provides little guidance on what mens rea is required of a defendant as to the principal’s future offence. The omission is surprising, as it was this second limb that was central to debate within previous cases and reviews, and it was confusion here within the previous law (culminating in the identification of a foresight standard) that led the court in Jogee to identify a wrong turn to begin with. At this point we might accuse the Supreme Court of conflating the two limbs of mens rea in a manner that is not at all uncommon among both courts and commentators, but this is not strictly the case. Rather, the court in Jogee provided a few fleeting references to mens rea as to the principal’s offence – stating that the defendant must intend the principal to act with mens rea [10], and at other points that the defendant must know the elements of the principal’s offence [9] – but such references are not fully worked through, and are anyway inconsistent with examples of complicity provided elsewhere in the judgment. The danger, of course, is that without an established requirement that the defendant must intend the principal’s offence, or at least have knowledge of it, the courts will be encouraged to interpret the law (as previously) to require wider standards of mens rea such as belief, or even simple foresight. Despite the headlines of intention within Jogee therefore, and despite the apparent aim of requiring a parity of culpability between defendant and principal, the reality is a vulnerable state of legal uncertainty.

 

Misinterpretation of conditional intention

Having narrowed complicity to require intention, at least to some extent, the Supreme Court go on to explain the application of this standard within a series of hypotheticals [90-95]. It is here, particularly in the court’s treatment of conditional intention, that the policy conflict introduced above becomes most apparent, and (I contend) most damaging to the court’s reasoning. For the court,

 

‘… it will … often be necessary to draw the jury’s attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional.’ [92]

 

Conditional intention remains a problematic and contested concept, but it is possible to identify rules for its consistent and coherent application (J.J. Child, ‘Understanding ulterior mens rea: future conduct intention is conditional intention’ (2017) Cambridge Law Journal 311). To do so, conditional intention should be defined as synonymous with future conduct intention, with a defendant’s decision at t1 to perform certain conduct at t2. Thus, for example, where a defendant decides to commit an offence if certain conditions arise (eg, a plan to assault V if she fails to pay-up), her conditional intention can be interpreted as a valid intention to commit assault, just as it would be if no conditions were explicitly considered. This definition is central to our application of all offences where a defendant must intend future conduct, including, for example, incomplete attempts, section 9(1)(a) burglaries, certain conspiracies, and so on. However, crucially, this interpretation will never apply within complicity: within complicity a defendant’s intention to assist or encourage relates to present conduct, and her intention as to the principal offence relates to the conduct of another. Application of conditional intention here would represent a significant, and I will argue inappropriate, extension of the law.

In order to understand the court’s misuse of conditional intention in Jogee, two groups of cases/hypotheticals should be distinguished. In the first, our defendant intends to assist or encourage a principal to commit Crime A, and Crime B if necessary.

 

‘The group of young men which faces down a rival group may hope that the rivals will slink away, but it may well be a perfectly proper inference that all were intending that if resistance were to be met, grievous bodily harm at least should be done.’ [92]

 

I agree that intention may be properly inferred here, but not conditional intention. We intend a result (x) where we act because we believe that doing so might cause x, or if we recognise that x is a virtually certain consequence. In this example, we are assuming that the defendant has acted to assist and encourage other members of the gang, and has done so in order to influence those other members both to confront the opposing gang and to cause serious harm if necessary. In this manner, both parts of the defendant’s foresight are motivating their present conduct, and both parts are therefore standardly intended. Our defendant is not conditioning his current conduct (ie, it is being performed), and he is not conditioning his future conduct (ie, his future conduct is irrelevant here), and so although intention should be found, talk of conditional intention is misconceived.

Although the first group of cases/hypotheticals present a mislabelling of intention, the second group is considerably more dangerous. In this group, conditional intention is identified where a defendant intends to assist or encourage Crime A, foreseeing that the principal will or may perform an unwanted Crime B if necessary. This approach is not explicitly endorsed within Jogee, but it is arguably implied from the court’s examples involving escalating violence, and certainly left open from the use of vague language such as ‘scope of the venture’ and ‘tacit agreement’. Indeed, the potential for conditional intention to apply to Crime B in this kind of example has been endorsed in case law post-Jogee, including Johnson and Anwar, as well as some academic commentary. The reason this is dangerous is because the potential assistance or encouragement of Crime B, and the principal committing Crime B, are not motivating factors in the defendant’s conduct, and are not foreseen as a virtually certain consequence either. Therefore, simply put, the courts are wrong to label the defendant’s mental state as a form of intention (conditional or otherwise), and in doing so they are collapsing the concept of intention into recklessness.

In the context of complicity, and cases previously analysed within joint enterprise, the result will be business as usual: applying a pre-Jogee foresight standard, simply with a new label. As stated clearly in Anwar, ‘… the same facts which would have been used to support the inference of mens rea before the decision in Jogee will equally be used now’ [22]. So too within more standard complicity cases, where a wide net of liability will also be maintained. Indeed, this is probably the only way to reconcile one of the courts more problematic examples (where they would find liability):

 

‘D2 supplies a weapon to D1, who has no lawful purpose in having it, intending to help D1 by giving him the means to commit a crime…, but having no further interest in what he does, or indeed whether he uses it at all.’ [90] (Emphasis added).

 

In cases of this kind, the defendant can only be said to ‘intend’ the principal offence if we read down intention into a form of recklessness. The headline narrowing of complicity within Jogee becomes illusionary.

Our problems do not end here, however. As a mens rea term of general application, the view of conditional intention set out in Jogee has the potential to impact other areas of liability as well. To provide just one example: within the inchoate offences of attempts and conspiracy, the concept of conditional intention has occasionally been used to try and introduce a recklessness standard into the law. Using this approach, sexual touching without knowledge of consent can be interpreted as a conditional intention to assault; and handling unknown property can become a conditional intention to launder goods. However, crucially, such usage has been consistently resisted by both courts and commentators. The interpretation of conditional intention in Jogee would allow intention to be found in all such cases, significantly expanding the boundaries of criminal liability.

It is concluded that the concept of conditional intention has no appropriate role to play when analysing intention for complicity liability, either as to the effects of the defendant’s conduct, or as to the potential conduct of the principal. Rather, within both limbs of mens rea, we must only inquire whether the result motivated the defendant’s present conduct or whether she foresaw it as a virtually certain consequence of that conduct. This approach will significantly narrow the law of complicity, but is the inevitable outcome of applying a genuine intention standard. To the extent that such narrowing is not desired, and parity of culpability between accessory and principal is not desired, then a lower standard of men rea should be explicitly applied.

John Child is a Senior Lecturer at the University of Sussex.

Any reform to the law on Official Secrets must provide robust protection for public interest disclosures and open justice

 

judith
Judith Townend

 Judith Townend, together with Lorna Woods and  Lawrence McNamara, comment on the Law Commission’s proposals to reform ‘Protection of Official Data’. This blog post accompanies their submission to the Law Commission’s consultation, and is part of our series documenting the submissions.  

With the election now in the past, the wheels of government are beginning to grind again. While most eyes are on Brussels, it is important that the bright lights of Brexit do not draw attention away from other work that is resuming and ongoing. Among it, the Law Commission will continue its project that considers the revision of the laws on Official Secrets, with its final proposals expected later this year.

The initiative to consider existing law on the ‘Protection of Official Data’ – primarily the Official Secrets Acts 1911-1989 – began with the Cabinet Office when it referred the project to the Commission in 2015. A 315-page consultation paper with provisional recommendations was published by the Commission in spring 2017. It will be the Government that will decide how to proceed, and whether to introduce new draft legislation, once the final recommendations are made.  (No reference to Official Data or Official Secrets was made in the Queen’s Speech).

The Law Commission, which came under – perhaps unanticipated – fire from the media and NGOs for the nature of the proposed reform plans and a perceived lack of consultation before the first report was published, has since been engaging with a wider range of groups and individuals through in-person meetings. It has also published a ‘myth-buster’ on Twitter in response to some of the reports, and shared more explanatory material ahead of meetings.

However, this has not assuaged concerns, with strong reservations about the proposals expressed in a range of written industry and third sector written submissions, a number of which are available online.

We are among those who have met with the Law Commission since publication of its report, and in our written submission we focus on aspects of the consultation that relate to freedom of expression and the public interest: the public interest defence; the Independent Statutory Commissioner model; and access to court proceedings. We also address the related issue of the conduct of trials.

In important respects our position on these issues is often substantially at odds with the Law Commission’s provisional views. In summary:

  • We reject the Commission’s view that the difficulties surrounding a public interest defence outweigh its benefits. We recommend that there should be a public interest defence in official secrets offences for all those engaged in journalism in the public interest, including sources;
  • We recommend that any reformed system should not rely solely on an independent Statutory Commissioner (as the Commission suggests). It should instead adopt the Canadian model of an Independent Commissioner in addition to a public interest defence for official secrets offences;
  • We agree that the Commission’s proposed test of necessity for closing public access to proceedings is an improvement on the current law, but we argue that the proposed change alone falls short of what is required to adhere to the rule of law;
  • We disagree with the Commission’s tentative suggestion that the availability of closed material procedures in civil cases, now permitted under the Justice and Security Act 2013, should prompt a wider review of the ways that fair trial rights and safeguarding of secrets is balanced in criminal cases. On the contrary, there is no good reason at this point in time to embark on a wider review of criminal process and national security issues.

Our full submission can be read at this link.

As a research exercise, independent from the official consultation, the Information Law and Policy Centre at the Institute of Advanced Legal Studies is continuing to publish submissions on this topic: if you or your organisation would like to share yours in this way, please contact Dr Daniel Bennett at daniel.bennett@sas.ac.uk.

Lorna Woods is professor in law, University of Essex; Lawrence McNamara is a reader in law, University of York and senior research fellow at the Bingham Centre for the Rule of Law; and Judith Townend is a lecturer in media and information law at the University of Sussex.  They are also affiliated to the Information Law and Policy Centre (ILPC) at the Institute of Advanced Legal Studies. The views expressed by the authors in this report are made in a personal capacity and do not represent the views of the ILPC. This post first appeared on the Information Law and Policy Centre’s blog.

Eligible legal aid clients left without local representation – one reason we’re taking part in the Brighton Legal Walk

judith
Judith Townend

You might think that those asylum seekers and immigrants who qualify for state-funded legal advice and representation, following cuts to the scope of legal aid in 2013, are the lucky ones.

But even where legal aid is still available for asylum applications and some other cases, such as those involving domestic violence and victims of trafficking, clients face difficulties in securing representation.

In Brighton and Hove, for example, there is now only one organisation offering legal aid funded representation in asylum cases – Brighton Housing Trust. The only other firm in the city holding a legal aid contract for immigration and asylum services has recently decided it will no longer continue state funded work in this area.

It has left those adults entitled to legal aid with limited local representation, as owing to stretched resources and the high number of child asylum seekers, Brighton Housing Trust is currently prioritising cases involving children.

As Catherine Brown, caseworker at the charity Brighton Voices in Exile explains: ‘We currently have no legal representation for our destitute clients who are entitled to legal aid – both those who are facing appeals with short notice and those who are in the early stages of their asylum claim.’ BVIE are trying to secure legal aid representation out of the area, without success.

According to Brown: ‘Without representation at appeal their chances of a successful outcome are clearly diminished.’

Earlier this year the University of Sussex Clinical Legal Education programme facilitated a meeting of stakeholders at Brighton Town Hall to assess local immigration and asylum needs. The startling revelation that adults eligible for legal aid may not be able to access it locally was one of the many concerns that came to light.

It’s clear, from talking to local communities and individuals in need of legal support, that there’s a local crisis in immigration advice and representation.

A law clinic may only provide a ‘sticking plaster’ as one attendee described it. It’s true that the local and national crisis cannot be solved with the development of a student law clinic.

Nonetheless, a sticking plaster is better than no assistance at all, and we believe it’s important that a range of law clinics support local needs, however they can, while contributing to a broader debate on national legal funding and services.

It’s our hope that by securing relevant practitioner support and the necessary financial assistance we will be able to develop a service in this area.

This is just one reason that colleagues at the University of Sussex School of Law will be walking with a range of legal organisations on 26th June 2017 to raise funds and awareness of legal needs in East and West Sussex.

  • You can support us by donating at this page here
  • More about Sussex Clinical Legal Education here
  • Find out more about Sussex Law School at the Sussex Community Festival on 25th June 2017
  • If you have concerns about local legal provision in this area, or can offer assistance to a student law clinic, please contact the project lead: Professor Nuno Ferreira

Judith Townend is a lecturer in media and information law at the University of Sussex and a volunteer with Sanctuary on Sea and the Brighton Syrian community group. This post first appeared on the Justice Gap blog and on the Brighton & Hove News website.  

No Pain, All Gain: The Case for Farming Organs in Brainless Humans

by Ruth Stirton and David Lawrence

RuthStirton
Ruth Stirton

It is widely acknowledged that there is a nationwide shortage of organs for transplantation purposes.  In 2016, 400 people died whilst on the organ waiting list.  Asking for donors is not working fast enough.  We should explore all avenues to alleviate this problem, which must include considering options that appear distasteful.  As the world gets safer, and fewer young people die in circumstances conducive to the donation of their organs, there is only so much that increased efficiency in collection (through improved procedures and storage) can do to increase the number of human organs available for transplantation. Xenotransplantation – the transplantation of animal organs into humans – gives us the possibility of saving lives that we would certainly lose otherwise.

There are major scientific hurdles in the way of transplanting whole animal organs into humans, including significant potential problems with incompatibility and consequent rejection.  There is, however, useful similarity between human and pig cells, which means that using pigs as the source of organs is the most likely to be viable.  Assuming, for the moment, that we can solve the scientific challenges with doing so, the bigger issue is the question of whether we should engage in xenotransplantation.

A significant challenge to this practice is that it is probably unethical to use an animal in this way for the benefit of humans. Pigs in particular have a relatively high level of sentience and consciousness, which should not be dismissed lightly.  Some would argue that animals with certain levels of sentience and consciousness – perhaps those capable of understanding what is happening to them – have moral worth and are entitled to respect and protection, and to be treated with dignity.  It is inappropriate to simply use them for the benefit of humanity.  Arguably, the level of protection ought to correlate to the level of understanding (or personhood), and thus the pig deserves a greater level of protection than the sea cucumber.  The problem here is that the sea cucumber is not sufficiently similar to the human to be of use to us when we’re thinking about organs for transplantation purposes.  The useful animals are those closest to us, which are by definition those animals with more complex brains and neural networks, and which consequently attract higher moral value.

The moral objection to using animals in this way arises because of their levels of cognition.  This moral objection would disappear if we could prevent the animals ever developing the capacity for consciousness: they would never become entities capable of being harmed.  If we were able to genetically engineer a brainless pig, leaving only the minimal neural circuits necessary to maintain heart and lung function,  it could act as organic vessel for growing organs for transplantation.  The objection based on the use of a conscious animal disappears, since this entity – it’s not clear the extent to which is it possible to call it an animal – would have no consciousness.  It is correspondingly difficult to ground an objection in the undignified treatment of the entity.  Arguments relying on dignity imply that there is a conscious entity that is entitled to be treated with respect.  Since this engineered pig has no capacity to possess consciousness or even cognition at all, it is difficult to argue that it is capable of possessing any dignity in this sense, that can or should be protected.  Since the sentience and consciousness has been prevented, the vessel is more akin to an agricultural field than it is to a ‘normal’ pig.  There is no sense in which we would object to a ploughed field being sown with crops.  It is equally difficult to see how we could object to this vessel made of organic matter which happens to be shaped like a pig being used to grow organs.

This brings us to another scientific hurdle.  While pig organs are likely to be the most compatible with the human body, they are not necessarily ideal, and many people may not be able to handle non-human organs.  The next stage is to use the organic vessel as a host to grow human organs from induced pluripotent stem cells.  The iPSCs have no consciousness or sentience that attracts moral value.  Nor does the organic vessel.  It is simply a complex collection of organic matter, grown in a machine that happens to be made of similar materials, that is more compatible with the protection of human life.  If organs were grown from iPSCs that were HLA tissue typed to the individual patient then organs would be perfectly matched and rejection would be even less likely to occur.  Experimentation into chimeric organisms that can do just this are underway and are increasingly successful, albeit in sentient creatures.

However, this process is still less than perfect.  Using a vessel that originated from pig matter is not the ideal growing medium for human organs.  It would be much more likely to be successful if the vessel came from human tissue matter.  We can apply the same reasoning as for our pig vessel, with an escalation.  The respect and moral value that human beings attract is due to their capacity for consciousness and feelings – the elements of personhood.  We nurture consciousness and intelligence, and we protect the ability to develop consciousness once an entity with the capacity to develop consciousness comes into being.  If we were able to genetically engineer brainless humans, then the reasons behind these protections no longer apply.  The object – it is not possible to call it a human being since it has no consciousness – has no capacity for consciousness, nor did it have the potential for capacity for consciousness since it would not have been created except in these circumstances.  It is at best, similarly to the vessel of pig origin, a collection of organic matter that happens to be shaped like a member of the species Homo sapiens.  The organs grown within this vessel would be the most compatible with patients, and would help to alleviate the organ shortage crisis.

In relation to both types of vessel there are challenges to be overcome with the growing phase.  They would have to be grown using ectogenesis, outside of the womb.  A living ‘mother’, whether pig or human, would be caused a great deal of pain and suffering through gestating a brainless foetus.  Furthermore, pregnancy itself is not without its physical risks, irrespective of any mental anguish that might be suffered.  Ultimately, it is not necessary to use human persons to host the organ growth vessels since the development of the Biobag, an external womb that has been used to continue gestating premature lambs.  It is within the realms of possibility that organic matter of human origin could be grown within the Biobag, and this would also avoid some of the criticisms levelled at ectogenesis regarding parental bonds.

The transplantable organ shortage is critical.  It is imperative to find new means of procuring organs in the context of an ageing population.  It is important to continue to encourage the population to sign up to donation registers, and to pursue research into how chimeras – human/animal hybrids – can reduce immunological rejection rates.  But we must recognise that our initial distaste may be preventing us from implementing other solutions that may be more effective and more efficient.  There is no good reason to ascribe any particular value to meat that has never – and could never have – suffered, regardless of its appearance or genetic origin.  If we can do an immense good, by reducing suffering and saving the lives of the 400 people a year who die in the UK waiting for a transplant, all whilst not causing any harm or disrespect to another creature, is it right that some sense of discomfort should prevent us from doing so?  We say no, discomfort is not a good enough reason.  Further, if we were to follow this path, it is imperative to do it in the way that has the most chance of success, the creation of genuine human organs which will avoid all the scientific issues of xenotransplantation.  It is not enough to grown organs in brainless animals.   We should go further and grow human organs in organic vessels of human origin.

We do not suggest that this is the only solution or even the right one. However, the organic vessel of human origin serves to illustrate that even those methods we may have dismissed out of hand are no longer necessarily repugnant nor even morally problematic.

Ruth Stilton is a Lecturer in Health Care Law at the University of Sussex, and David Lawrence is a Postdoctoral Fellow at Newcastle University. This post first appeared on the Journal of Medical Ethics Blog

Where did all the privacy injunctions go? A response to the Queen’s Bench ‘Media List’ consultation

According to the latest official statistics on privacy injunctions in January to December 2016 there were just three proceedings where the High Court considered an application for a new interim privacy injunction. Two were granted, one was refused.

Two appeals were heard in the Court of Appeal against a granting or refusal of an interim injunction (the refused application mentioned above) before it went to the Supreme Court, where the injunction was upheld until trial or further order (though the case isn’t identified, we can safely assume this is the well publicised case of PJS v News Group Newspapers).

This data has been collected for the past six years as a result of the Master of the Rolls’ report on super injunctions, conducted in the wake of the super injunction furore of 2010-11.

Following his recommendation that HMCTS and the MOJ investigate the viability of data collection on privacy injunctions, a new Civil Practice Direction was introduced to ensure judges recorded data relating to specified cases. These include civil proceedings in the High Court or Court of Appeal in which the court considers applications, continuations and appeals of injunctions prohibiting the publication of private or confidential information (the scheme does not include proceedings to which the Family Procedure Rules 2010 apply, to immigration or asylum proceedings, or to proceedings which raise issues of national security).

Prior to the introduction of this regime, it was impossible to say how many ‘super’ or anonymous injunctions had been granted historically, as the MR (then Lord Neuberger) conceded at the time.

But how accurate is the Ministry of Justice data? According to the Inforrm media law blog, not very. Although the data purports to show fluctuation and an overall decrease in injunction applications since a peak in January to July 2012, the Inforrm blog has shown these statistics are “clearly incomplete”. The evidence is incontrovertible: there are public judgments in five privacy injunction applications in 2016. Furthermore, there have been press reports of other proceedings with no published judgments.

Inforrm remarked: “It is difficult to ascertain the true figure as many injunctions are never the subject of publicity – often because they relate to threatened ‘privacy disclosures’ by private individuals who subsequently agree to permanent undertakings. It seems likely that there were at least four times as many applications for privacy and confidentiality injunctions in 2016 than those recorded [by the] Civil Justice Statistics Quarterly. The reasons for this under reporting are unclear.”

It was worth remarking, as the judge in charge of the Media and Communications List at the Royal Courts of Justice, Mr Justice Warby, has now launched a short consultation for practitioners and other court users.

Among other questions it asks users whether they agree that (a) collection of statistics is worthwhile, and (b) whether they think the current system is adequate.

On behalf of The Transparency Project, Paul Magrath (ICLR), Julie Doughty (Cardiff University) and I (University of Sussex) have responded: answering that (a) yes, collection of statistics is worthwhile, and (b) no, the current system is inadequate. Our submission can be downloaded here [PDF].

There is no official space for extra comment, but we offer the following observations and hope there will be an opportunity to engage further with the judiciary and the Ministry of Justice on this issue, and broader points about access to the courts (there is, for example, a problem about access to information about reporting restrictions and defamation cases, as I have previously written about here and here).

We welcomed the Master of the Rolls’ recommendation in 2011 for HMCTS to examine the feasibility of introducing a data collection system for all interim non-disclosure orders, including super-injunctions and anonymised injunctions.

Prior to this, there had been much confusion in the media and on social media about the number and type of injunctions that had been granted. There was some criticism of media exaggeration and distortion but at the same time, no reliable source of information existed with which to check the claims that were being made. 

At a press conference marking the launch of the release of the Master of the Rolls’ report, Lord Neuberger said he ‘would not like to say precisely how many’ super injunctions or anonymous injunctions had been granted since 2000. The number could not be ascertained because no reliable records had been kept.

It is our view that it is wholly unacceptable that no reliable information exists for how many injunctions were granted historically. We were pleased therefore when the Ministry of Justice began publishing results twice a year. However, we do not think the system is reliable or complete, as has recently been observed on the Inforrm media law blog. It is worrying that HMCTS and the MOJ did not appear to notice the incompleteness of the data.

We recommend that judges should record all interim and final non-disclosure orders, including super injunctions and anonymised injunctions and relating to publication of private and confidential information (by mainstream media organisations or other publishers including individuals) – as defined in Practice Direction 40F.

We have two concerns about the process to date despite the PD being in force:

First, that not all such orders have been recorded. We do not know the reason for this. It is important that PD 40F is followed and enforced. Although we ticked option 5b, we do not think the judge’s completion of the form should rely solely on legal representatives prompting the judge to complete the form as they may have no incentive to do so. HMCTS should also ensure that the data has been correctly completed by the judge. Therefore, as part of the data collection exercise, HMCTS should have an audit procedure for ensuring data is being correctly and systematically collected.

Second, we do not think that the format of the data is accessible or as useful as it could be. We think that the anonymised case names should be published alongside the statistics to allow for verification of the data and cross-referencing with any published judgments (there would be rare exception where a ‘true’ super injunction was in force). We think the MOJ and HMCTS should also collect information relating to the eventual outcome: when an order is discontinued or expires, for example.

Given the narrow remit of this consultation, we will keep these comments brief. However, we have other ideas for how transparency and access to information in media proceedings could be improved with view to improving public understanding and education in these types of proceedings. We would welcome the opportunity to discuss these with you and would like to join any future meeting and discussions of users of the Media and Communications List.

Judith Townend is a lecturer and researcher based at the University of Sussex and a member of the Transparency Project core group. This post first appeared on the Transparency Project blog.