In 2012 Mr Justice Tugendhat, ahead of his retirement in 2014, made a plea for more media specialist barristers and solicitors to consider a judicial role: “As the recruiting posters put it: Your country needs you.”
He emphasised the particular burden of freedom of expression cases, which require judges, for example, to consider the rights of third parties, “even if those third parties choose not to attend court” and to provide reasons for the granting of injunctions at very short notice.
Without expert knowledge of the applicable law, this is no easy task. Fortunately, media law cases have not fallen apart with the respective retirements of Sir Michael Tugendhat and Sir David Eady, and recent specialists to join the High Court include Mr Justice Warby in 2014, and Mr Justice Nicklin in 2017 – both formerly of 5RB chambers.
The arrival of Mr Justice Warby, who was given the newly created role of Judge in charge of the Media and Communications List, has provided a welcome opportunity to propose changes to the procedure of media litigation in the Queen’s Bench Division, where the majority of English defamation and privacy claims are heard.
Since taking on responsibility for the cases involving one or more of the main media torts – including defamation, misuse of private information and breach of duty under the Data Protection 1998 – Mr Justice Warby has spoken about his hopes and plans for the list, and also conducted a consultation among those who litigate in the area, as well as other interested parties.
The consultation considered the adequacy of Civil Procedure Rules and Practice Directions; the adequacy of the regime for monitoring statistics on privacy injunctions; and support for the creation of a new committee.
As a socio-legal researcher rather than legal practitioner, my interest was piqued by the latter two questions.
For some time, I have been concerned that efforts by the Judiciary and the Ministry of Justice to collect and publish anonymised privacy injunction data have been insufficient, and also that the availability of information about media cases could be improved more generally.
My own efforts to access case files and records in 2011-13, to update research conducted by Eric Barendt and others in the mid 1990s, and to interrogate assertions of defamation’s “chilling effect”, proved largely unsuccessful and I was astonished how rudimentary and paper-based internal systems at the Royal Courts of Justice appeared to be.
Although public observers are entitled to access certain documents – such as claim forms – the cost and difficulty in locating claim numbers prohibits any kind of useful bulk research which would allow more sophisticated qualitative and quantitative analysis of media litigation.
I jumped, therefore, at the opportunity of the consultation to raise my concerns about the injunctions data, and to support the creation of a new user group committee.
My submission, with Paul Magrath and Julie Doughty, on behalf of the Transparency Project charity, made suggestions for revising the injunctions data collection process, including the introduction of an audit procedure to check information was being recorded systematically and accurately.
Following the consultation, Mr Justice Warby held a large meeting at the Royal Courts of Justice for all respondents and other interested parties at which he shared a table of proposals from the consultation, provisionally ranked as “most feasible”, “more difficult” and “most difficult”.
The last category also included proposals which would require primary legislation, which would be a matter for Parliament rather than the Judiciary.
I was pleased that our initial proposals on the transparency of injunctions data have been deemed practical and feasible in the first instance.
Also considered achievable are some of the proposals related to case management and listings, updating the pre-action protocol (PAP), the Queen’s Bench Guide, and civil practice directions in light of developments in privacy, data protection and defamation litigation and press regulation (not least to reflect the Defamation Act 2013).
This meeting also established the creation of a new Media and Communications List User Group (MACLUG) to which a range of representatives have been appointed.
The group comprises members of the Bar and private practice solicitors (including both claimant and defendant specialists), in-house counsel, clerks, and a costs practitioner.
Additionally, I have joined as a representative of public interest groups – i.e. those engaged in academic research and third sector work. The new committee met for the first time at the end of 2017, and members have formed smaller working groups to take forward the “feasible” proposals, which will be discussed with our respective constituencies in due course, and where relevant, eventually proposed to the Civil Procedure Rule Committee to consider.
All of which were “easier said than done”, in his words. Quite so. But it is right that it should be attempted, and with judicial input where appropriate.
Mr Justice Warby’s efforts to date are to be applauded, and in particular, his open approach in addressing some of the flaws and inconsistencies of current practice, and evaluating structural and systemic issues.
That said, a committee formed by the judiciary is constrained in its remit, quite rightly. The consideration of changes to primary legislation should fall to Parliament.
It is therefore important that media law practitioners and other stakeholders should also work with the Ministry of Justice and HM Courts and Tribunals Service to inform ongoing work on courts modernisation, and push for wider consultation and involvement in reforms. A further challenge is to persuade government and parliamentarians to take on any issues requiring changes to legislation.
Part I of the Leveson Inquiry addressing, in part, the relationship between media proprietors, editors and politicians showed that the process of consultation on public policy affecting the news media has been subject to undue influence by certain private interests, and insufficiently transparent.
To this end, perhaps the new Lord Chancellor and Secretary of State for Justice, David Gauke MP, and the new Secretary of State for Digital, Culture, Media and Sport, Matt Hancock MP, might consider ways in which they can consult more openly and fairly in their development of policy and draft legislation on freedom of expression, reputation and privacy.
Dr Judith Townend is lecturer in media and information law at the University of Sussex and a member of the Queen’s Bench Division Media and Communications List User Group Committee.This is an edited version of an article which first appeared in Communications Law journal, volume 23, issue 1 (Bloomsbury Professional) and PA Media Lawyer, and the Transparency Project Blog and is re-published here with permission and thanks.
On 27 June 2017, the European Commission closed its investigation in the Google Shopping case. It found a breach of article 102 TFEU in relation to Google’s “more favourable positioning and display of its own comparison shopping service compared to competing comparison shopping services” (hereinafter, “the conduct”). The Commission’s Decision is important for several reasons. First and foremost, it constitutes the first application of the leveraging theory in an algorithmic context, where as a result of certain algorithmic design choices a dominant undertaking systematically directs (“nudges”) consumers towards its own goods or services in a secondary market. Google apparently didn’t see it coming, as it argued both in the proceedings before the European Commission and in the appeal it lodged against the Decision that the Commission used a novel theory of abuse, and therefore in accordance with its previous practice should not have imposed a fine. However, the Commission rejected this argument, noting that it had already used a self-favouring theory to establish abuse in a number of cases. It therefore imposed a fine of almost 2.5 billion euros and ordered Google to take adequate measures to bring the conduct to an end, and refrain from repeating it, or engaging in any act or conduct with the same or an equivalent object or effect.
The divergence of views between Google and the Commission relates to the specificities of the application of leveraging theory (and in particular the so called ‘self-favouring’ abuse) in this particular context. In this short Comment, I acknowledge the peculiarities of algorithmic leveraging and sketch some of the implications of a broad definition of preferential treatment in a world where algorithmic mediation, and to some extent “nudging”, becomes pervasive.
The notion of preferential treatment in Google Shopping
In order to appreciate the Commission’s definition of preferential treatment, it is necessary to make a clarification about the technology under discussion: to provide users with the most relevant results, search engines undertake editorial functions in indexing, triggering, ranking and displaying content. Those choices are made primarily by designing algorithms, i.e. rules that will govern the operation of Google’s crawling, triggering, ranking and displaying technologies to perform the desired process. Because of these editorial functions, algorithms can have in-built biases which lead to systematically favouring certain content, although that may not necessarily be the result of a deliberate choice of the designer. Since the stage of algorithmic design is removed from the generation of results, it is often difficult for the designer to anticipate all the possible consequences. This holds even more true when it comes to machine-learning algorithms, recently incorporated into Google Search, that are characterized by the property to automatically learn and improve from experience without being explicitly programmed. The problems of transparency, fairness and accountability of algorithmic systems are so complex and important that they have come to define an entire field of research, much of which focused on machine-learning. They are now an increasing source of headaches for courts and regulators.
Given the challenges in predicting the nature and effects of algorithmic design decisions on the market, it is particularly significant that the Decision condemns a conduct resulting from algorithmic design choices. Taken at face value, this could mean that a dominant company having developed or used an algorithm is strictly liable for any possible anticompetitive effects derived therefrom. Consequentially, it requires the adoption of wide-ranging measures of self-monitoring to ensure compliance by design, which is something that Commissioner Vestager has recently alluded to. However, the Commission provides no guiding principle on how far that compliance framework should go: neither in the substantive part of the decision nor in its remedial order, where it requires Google to ensure equal treatment concerning “all elements that have an impact on the visibility, triggering, ranking or graphical format of a search result in Google’s general search result pages” . While Google may be able to get to a good compromise in the definition of the conduct it is required to adhere to under the remedy, we may query what that high-level definition of equal treatment means for future developers of algorithms?
To compound those challenges, it is worth noting the Decision does not specify a threshold of materiality for differential treatment by a dominant company to fall foul of Article 102. The Commission presents data showing that the conduct in question is sufficiently capable (a threshold that is notably lower than likelihood) of driving competitors out of business, reducing incentives to innovate and consumer choice, and leading to higher prices. To supplement its findings, it puts forward some colorful evidence of intent by the concerned undertaking to favour its own services over those of competitors in order to leverage its position in general search into the market for shopping comparison services. Regrettably, however, the line between permitted and prohibited conduct is rather blurred, as nowhere in the Decision does the Commission detail what amounts to preferential treatment, other than stating that it involves the application of different standards for ranking and visualization to Google Shopping than to other comparison shopping services.
Most notably, the Decision begs the question of whether a dominant undertaking remains free to set up its ranking and selection (“triggering”) criteria, so long as those are applicable indistinctively both to its products and services and to those of its competitors. The Commission seems to gloss over those details, affirming that “[it] does not object to Google applying certain relevance standards, but to the fact that Google’s own comparison shopping service is not subject to those same standards as competing comparison shopping services”. This leaves us with the suspicion that a dominant undertaking such as Google could in fact be found liable for designing its algorithms in a way that leads to a disparate impact on a given class of competitors (or in the case of the implementation of the remedy, its competing comparison shopping services), despite the indiscriminate application of those algorithms to all products and services.
However, a blanket prohibition of self-favouring formulated in these terms would be likely to impose a disproportionate burden on a range of undertakings, if not accompanied by some limiting principle: much like a dominant company’s indiscriminate conditions of sale may lead to refusal to supply in violation of Article 102 when it fulfills the specific conditions established in Bronner, an algorithm with indiscriminate application but disparate impact on competitors should be held in violation of Article 102 only if it meets specific requirements serving as proxy of consumer harm. To be clear, this is not a call for the application of the Bronner conditions, which is unsurprisingly invoked by Google, but rather a recognition that the Commission would be well advised to narrow the net it casts to catch anticompetitive conduct perpetrated through algorithmic nudging. Perhaps one could take the Commission’s emphasis on the “active” nature of the refusal to grant competitors access to a proportion of its general search result pages (in the sense of exempting Google Shopping from demotions and “hardcoding” its position in the ranking) to mean that the use of certain types of instructions or criteria would be considered “passive” refusal, and therefore escape the prohibition. However, this distinction necessitates further elaboration. In the absence of clarifications on the constitutive elements of the self-favouring abuse, the extent of antitrust deference towards the design of “relevance standards” for ranking and selection algorithms is nebulous, and therefore problematic for investment and innovation.
Transparency is important, but not enough
Another piece of the puzzle in understanding the Commission’s stance towards algorithmic design is its concern for transparency as a means of protecting both market players and final consumers in their interactions with a dominant company. First, the Decision highlights the ample discretion to remove or demote websites retained by Google in its Webmaster Guidelines, where the company warns against certain identified practices but also reserves the right to “respond negatively to other practices not listed”. Second, it recognizes that only a fraction of Google’s users (“the most knowledgeable users”) is likely to take the “Sponsored” label to mean that different positioning and display mechanisms are used for the corresponding search results. It is worth noting that the Decision does not provide empirical support for the latter position, and that this specific issue was at the core of the Dissenting Opinion to the recent Indian Competition Commission’s Decision finding that Google leveraged its dominant position in general web search to favour its own flight comparison service (Google Flights) over competing ‘travel verticals’. Nevertheless, these statements indicate that an important element of the Commission’s condemnation of the conduct lies in the opaqueness of Google’s prioritization and/or penalization practices, which affects the structure of competition in the market for shopping comparison services.
One may therefore expect that the transparency and intelligibility of algorithmic practices will play a role in determining the scope of differential treatment that may be caught under Article 102. However, even admitting the relevance of those considerations, it remains to be seen the extent to which those can serve as defense to a self-favouring allegation. One could argue, for instance, that Google should not be allowed to escape scrutiny by making it crystal clear that its search services systematically prioritize content coming from domains starting with “Goo”, or pages displaying its official logo. Condoning such conduct would run counter to the antitrust doctrine rejection of formalism, including the established principle that an abuse of dominant position is prohibited regardless of the means and procedure by which it is achieved. Following this argument, the fact that Google has come consistently on top of the auctions run for its Shopping Unit slots as part of its remedial measures should at least raise some eyebrow about the adequacy of those measures, highlighting the importance of the link with a clear and consistent definition of the abuse in question.
Towards a negligence-based safe harbor for impactful algorithms?
The main criticism of this Comment is that the Commission must look harder into the criteria underlying algorithmic design. Attributing strict liability for any algorithmic conduct that is capable of affecting competition is extremely far-reaching. What is needed is thus a limiting principle, for example in the guise of a ‘safe harbour’, that provides legal certainty for undertakings offering ranking and selection algorithms. A safe harbour could rely on conditions similar to those set out by article 14 of the E-commerce directive, which grants a content host immunity from liability under European law for the information stored provided that: “(a) it does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; and (b) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information” . Those conditions could then be used to design, with appropriate institutional and procedural safeguards, a framework of ‘notice and re-adjustment’ of disproportionately and unjustifiably affected competitors. Additionally, the Commission could ensure that a dominant company is not negligent by prescribing a due diligence procedure for the design of algorithms that can effectively impact consumer choice through the selection or ranking of content. Such procedure could for instance rely on established techniques to detect the existence of bias, maintain a record of that testing for inspection by a competition or judicial authority, and even define a threshold of adverse impact warranting a change of the existing rules or criteria. While algorithmic accountability is a regulatory challenge that is here to stay, the global antitrust community has a responsibility to clarify the scope of the nascent antitrust duty to police one’s own algorithm. This should aim to ensure a sufficient protection against unfair manipulation (a task shared with consumer and data protection authorities), but without undermining the incentives to invest and innovate in algorithmic technologies.
 By “design choices”, I refer here to the rules and criteria embedded in the algorithm, including any subsequent changes or “updates” (as they are typically called in the context of Google search). Further, I am using a specific notion of algorithm, as a set of mathematical instructions to provide gatekeeping services.
 See Case T-612/17, Action brought on 11 September 2017 – Google and Alphabet v Commission, OJ C 369, 30.10.2017, p. 37–38.
 Decision, para. 649, referring to Case 311/84, Télémarketing, EU:C:1985:394; Case C-333/94 P, Tetra Pak II, EU:C:1996:436; Case T- 228/97, Irish Sugar, EU:T:1999:246; Case T-201/04, Microsoft, EU:T:2007:289. It bears noting that the case-law suggests that self-favouring may be caught as a manifestation of various types of conduct prohibited by article 102: see in this regard Nicolas Petit, ‘Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf’ (April 29, 2015). Available at SSRN: https://ssrn.com/abstract=2592253 or http://dx.doi.org/10.2139/ssrn.2592253. See also the Decision by India’s Competition Commission in Cases Nos. 07 & 30 of 2012, Matrimony.com v Google LLC, Google India and Google Ireland, available at http://www.cci.gov.in/sites/default/files/07%20%26%20%2030%20of%202012.pdf (finding that Google’s leveraging amounted to an imposition of unfair conditions in the purchase or sale of goods or services, in contravention of Section 4 (2) (a) (i) of the Competition Act).
 In some instances, the preferential treatment ostensibly results from the criteria generating a given algorithmic result. A good example is the “signals” for triggering the appearance of Product Universal, and/or its appearance in the middle to top position of the results in the first page: the number of stores and the number of shopping comparison engine in the top-3 generic search results. Decision, para. 391. In other parts of the Decision, however, the Commission merely takes issue with the exclusion of Google Shopping from the application of certain criteria that adversely affect the position of competing price comparison services (notably the […] and Panda algorithms). See Decision, para. 512.
 The only limit it provides in that respect, presumably reflecting the feedback received in the ‘market-testing’ of the commitments offered to Commissioner Almunia in 2013 and 2014, is that any measure chosen by Google to comply with the order “should not lead to competing comparison shopping services being charged a fee or another form of consideration that has the same or an equivalent object or effect as the infringement established by this Decision”. Decision, para. 700.
 The Commission can find support for “capability” in a series of cases, many of which are listed in the Decision at para. 602; Case C-52/09, Konkurrensverket v TeliaSonera Sverige AB, EU:C:2011:83, para. 64; Case C- 549/10 P, Tomra Systems and Others v Commission, EU:C:2012:221, para. 79; Case T-336/07 Telefónica SA v Commission, EU:T:2012:172, para. 272, upheld on appeal in Case C-295/12 P, EU:C:2014:2062, para. 124; Case C-23/14 Post Danmark, EU:C:2015:651, para. 66; see also Case T-286/09, Intel v Commission, ECLI:EU:T:2014:547, para. 85, on this specific point confirmed on appeal in Case C-413/14, ECLI:EU:C:2017:632, para.149.
 In particular, the Commission found in internal documents that the Google’s Engineering Director responsible for Froogle, the previous version of Google Shopping, stated that “Froogle stinks” and warned that “(1) [t]he [Froogle] pages may not get crawled without special treatment; without enough pagerank or other quality signals, the content may not get crawled. (2) If it gets crawled, the same reasons are likely to keep it from being indexed; (3) If it gets indexed, the same reasons are likely to keep it from showing up (high) in search results […] We’d probably have to provide a lot of special treatment to this content in order to have it be crawled, indexed, and rank well”. Decision, para. 491.
 Id., para. 440 (emphasis added). By choosing to use the word ‘certain’, the Decision suggests that the use of certain other criteria may be problematic. This hypothesis appears to be confirmed by para. 537, according to which “the Commission does not object to Google applying specific criteria per se but to the fact that Google prominently positions and displays results only from its own comparison shopping service and not from competing comparison shopping services” (emphasis added).
 Namely, that the facility that is the object of refusal is indispensable to compete on a downstream market, and that refusal is not objectively justified. See Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Case C-7/97, 1998 E.C.R. I-7791,  4 C.M.L.R. 112.
 For a useful mapping of types of deference towards design choices, see Stacey Dorgan, ‘The Role of Design Choice in Intellectual Property and Antitrust Law’, 15 Columbia Technology Law Journal 27 (2016).
 See Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17.7.2000, p. 1–16. Applying these conditions to the Commission’s reasoning, they could be used to give content to the notions of “active” and “passive” conduct mentioned at para. 650: see supra, note 17.
 See Christian Sandvig et al. ‘Auditing Algorithms: Research Methods for Detecting Discrimination on Internet Platforms’, Data and discrimination: converting critical concerns into productive inquiry (2014), 1-23.
Nicolo Zingales is a Lecturer in Competition and Information Law at the University of Sussex. This piece first appeared on Competition Policy International’s Europe Column for February 2018.
Despite missing from the public debate, the rights and needs of children active in the labour market are in desperate need of reform. Nuno Ferreira outlines the shortcomings of the current framework, and explains how policymakers and academics could – and should – come to the rescue.
Judged by the level of political debate, public policy and academic literature, the work of children (under-18s) in England and Wales is neither of interest nor of concern. And yet the absence of this topic from the policy agenda is far from indicative of its lack of relevance or timeliness. In fact, figures from the Labour Force Survey suggest that about a third of young people aged 16-17 are active in the labour market. Many of these young people, and others even younger, work illegally for a range of reasons: because of the number of hours worked, their age, the type of work carried out, the time of day worked, or because they lack a work permit.
Indeed, in 2013, Nils Muižnieks – the Council of Europe’s Commissioner for Human Rights – reported on children working long hours in the UK as a consequence of the 2008 economic crisis. And in 2015, at a seminar held in Liverpool, several children of high school age spoke candidly about practices of dubious legality that they experienced at work, including low pay, informal work arrangements, deficient health and safety conditions, and sexist recruitment procedures, not to speak of detrimental effects to their education. More generally, we should be alarmed that children who work mainly carry out unskilled and manual labour, are poorly paid, acquire limited recognisable skills, jeopardise their educational attainment, sustain accidental injuries, may not be covered by insurance, are often burdened with caring duties, and may even be recruited by the military. So, what is being done to address these issues?
Can the law help us?
The current legal framework on child work in England and Wales is constituted by a fairly outdated and fragmented range of norms, which include disparate statutes. It is in Part II of the Children and Young Persons Act 1933 that we find the most relevant rules applying to working children, including the protection of school attendance, working time limits, and the prohibition of night work. Although the minimum employment age is set at 16 – which corresponds to the school leaving age in England and Wales – from the age of 13 onwards children are allowed to carry out light work. Sadly, this framework lays down the bare minimum rules to comply with the EU Young Workers Directive, which was not an ambitious instrument to start with.
To make matters worse, the enforcement of this legal framework – including issuing work permits – falls on local authorities. Considering the limited scope for action and increasingly small budgets of local authorities, one is justified in asking whether their resources and structure are sufficient and appropriate for such a task. It is thus urgent to either effectively equip local authorities to deal with the enforcement of child work regulations (ideally allowing them to engage more with public campaigning, spot-checks and collaboration with schools), or to radically overhaul the enforcement of these regulations.
Unfortunately, help is unlikely to come from the other UK labour standards enforcement bodies. The 2015 Tackling Exploitation in the Labour Market public consultation and subsequent government responseremained oblivious to the existence of issues affecting working children. The resulting legal reform – in the shape of the Immigration Act 2016 (something criticisable in itself) – also brought about a renewed Gangmasters and Labour Abuse Authority, but a survey of the Authority’s website indicates that ‘children’ only come up in the context of modern slavery, forced labour and trafficking, thus again ignoring working children’s issues more broadly.
There is scope in this reform for supporting working children through a renewed focus on the fight against the widespread illegal practices that affect apprentices’ wages. Yet, no actual measure or result in this regard has materialised so far. So, what else can we do?
Can policy-makers help us?
For some reason, issues affecting child workers are consistently off the radar of policymakers. It may be that raising children’s work rights would not bring politicians any electoral advantage (children don’t vote) or that the labour market ethos and protestant work ethic create the belief that the sooner children start to earn a living the better. The reality remains that, for British policymakers, child work only becomes problematic when discussing foreign affairs, as in the case of the 2017 Human Rights and Business report. Another recent example of the side-lining of child work issues can be found in the 2017 Taylor review of modern working practices, where there is not a single reference to child work in a 111-page report.
Rather than being concerned with ensuring that children only engage with the labour market legally and that they have access to professionally useful experiences, the current emphasis seems to be on integrating young people into the labour market, as illustrated by the 2016 Employment Opportunities for Young People Inquiry. It may be that this approach is based on a preference for more relaxed work regulations and a wish to offer our children the benefits of greater involvement with the labour market, as Fran Abrams has argued. Yet, others – such as Maggie Atkinson, ex-Children’s Commissioner for England – undoubtedly believe that working on top of a demanding educational workload could be the ‘last straw’ for some youngsters.
In the face of such oblivion about the existence of working children amongst us and the issues that affect them, perhaps the best way forward is to invest more in producing a solid body of evidence to convince both local authorities and policymakers of the need for greater intervention. It appears that extensive research in this field stopped being carried out in the early 2000s, so there is an imperative need to collect more up-to-date empirical data. Ideally this would be allied with longitudinal empirical research on children’s work experiences in England and Wales, to enhance our understanding of the medium- and long-term consequences of children engaging with the labour market.
Simultaneously, academics and researchers need to remain alert to the risk of the UK’s departure from the EU translating into the further weakening of the legal framework available to working children, for example by doing away with the standards in the EU Young Workers Directive. The much discussed use of delegated powers in the context of the ‘Great Repeal Bill’ are a very real threat to all workers in the UK, children included. Parliament and the Government need to be lobbied, not only to uphold, but to go beyond European and international labour standards affecting children. And how wonderful it would be if this could be done whilst bringing together all English and Welsh relevant regulations on child work under a single, clear, and concise statute, to offer legal certainty about the applicable legal framework to all stakeholders. One thing is certain: the current state of oblivion to the rights and needs of working children must not continue.
How can the UK uphold its commitment to leaving the EU Single Market and Customs Union while also preserving the invisible intra-Irish border? Leaving aside crucial questions of political feasibility, this post looks at some of the options and their trade and border implications. Notably, there are limits to ‘flexible and creative’ solutions that involve turning a blind eye to customs and regulatory checks solely on the intra-Irish border: trade rules leave little room for such ad hoc approaches.
Option 1: Regulatory divergence between Northern Ireland and the rest of the UK
Northern Ireland could diverge from the rest of the UK, forming a customs union with the EU and continuing to harmonize its domestic regulation with EU regulation and standards for goods and services. Arguably, such full integration is a necessary condition for maintaining the open border (though note that Turkey, which has a customs union, and broad regulatory alignment with, the EU, still faces border checks).
There are models for Northern Ireland to maintain formal independence from the EU while gaining the benefits of an invisible border. Close to home, we can look to the Channel Islands. As ‘Crown Dependencies’ they are not EU Members nor strictly part of the UK; they have judicial independence and the right of self-government. They voluntarily follow EU standards and legislation, and are part of the EU Customs Union. Their Single Market participation is limited to free trade in goods, and does not extend to services or people.
Yet the situation in Northern Ireland is more challenging than just maintaining formal independence: it requires preserving political unity with one country, the UK, whilst forming a customs territory and regulatory union with another, Ireland (and the EU). In theory, such a model could preserve an open intra-Irish border for goods – and services, if extended further – and allow Northern Ireland to maintain integration with the rest of the UK in some areas. But it is difficult to see how the United Kingdom could continue to function as a union. In order to preserve the integrity of the EU’s Common External Tariff, the EU would likely require Northern Ireland to align all of its Free Trade Agreements with those of the EU – rather than the UK. Northern Ireland would also likely be bound by European Court of Justice rulings pertaining to EU regulations which it has incorporated, thus limiting its ability to have an independent judiciary. As has been well noted, such divergences in customs and regulatory regimes would also necessitate border checks between Northern Ireland and the rest of the UK.
Option 2: Regulatory ‘alignment’ between the UK and the rest of the EU
David Davis MP, Secretary of State for Exiting the European Union, has ‘clarified’ the position that the UK as a whole – not just Northern Ireland – will align its regulation with the EU, stating that: “Alignment … isn’t having exactly the same rules. It is sometimes having mutually recognised rules, mutually recognised inspection – that is what we are aiming at.”
It’s a curious word choice: in the recently-concluded EU-Ukraine Association Agreement, ‘regulatory alignment’ means that Ukraine is expected to incorporate the EU acquis, its body of law and regulation, in covered areas. Determining whether it has fulfilled this obligation is down to the EU.
This is quite different from mutual recognition, which Davis then advocates. The Mutual Recognition Agreements the EU has concluded are limited in scope and application. They allow companies in a sub-set of sectors to certify that their products meet EU standards at the point of production (mutual recognition of conformity assessment), thus obviating the need for checks to happen twice.
This is a far cry from an invisible border. It does nothing to prevent border checks resulting from tariff barriers and rules of origin checks. Davis notes that mutual recognition would only happen ‘sometimes’ such that border infrastructure would need to be in place for non-covered sectors. Which leads us to….
Option 3: Sectoral alignment
Northern Ireland could identify sectors in which regulatory alignment was particularly useful– say, health care, transport, environmental regulation and agriculture. In these areas it could align with Ireland and the rest of the EU, departing from the rest of the UK.
Bonus section: Ad hoc solutions to achieving frictionless trade
But what if the UK, desperate for a solution, decided to simply look the other way – not worrying about lost tariff revenue or accepting goods that did not meet UK standards? Under any of the models considered above, turning a blind eye would facilitate frictionless trade. This would give goods coming in from Ireland – the UK’s only land border – a de facto special status. Aside from the other problems that this would create, the UK would run into problems with WTO rules.
Turning a blind eye would necessitate admitting goods from Ireland tariff-free. The Most Favoured Nation (MFN) principle prohibits the UK from giving special tariff rates to one WTO Member that it does not extend to all of the others. There is an exception for Free Trade Areas, in which tariff barriers are eliminated for substantially all trade. Thus such an arrangement would only be possible as an extension of a zero-tariff UK-EU Free Trade Area; otherwise it would violate WTO MFN obligations.
Another WTO obligation, GATT Article X, would also prove problematic. In the words of the WTO Appellate Body, it ‘establishes certain minimum standards for transparency and procedural fairness in the administration of trade regulations’. It also requires that there ‘uniformity’ in the administration of trade-related regulation. In other words, countries should not treat some goods – or some countries – much differently than others in the administration of customs procedures. There are a dozen or so disputes focusing on this requirement. A light-touch approach applied only on one border could certainly prompt another.
Article 7 of the Trade Facilitation Agreement, which recently entered into force, also obligates each WTO Member to ‘apply common customs procedures and uniform documentation requirements for release and clearance of goods throughout its territory.’
On the other hand, Article XXIV of the GATT Agreement, which applies to Customs Unions and Free Trade areas as well as territorial application and frontier traffic, seems to provide some scope for differential treatment of goods coming through the land border. Article 3(a) states that:
The provisions of this Agreement shall not be construed to prevent:
Advantages accorded by any contracting party to adjacent countries in order to facilitate frontier traffic.
There is no case law clarifying this provision and what is meant by ‘frontier traffic’. Yet even if there were no WTO complaints, such an approach could turn the intra-Irish border into a ‘smuggler’s paradise.’ Nor would it eliminate border checks unless the EU participated as well – and it is notoriously protective of its internal market.
In sum, leaving aside the political challenges associated with each of these flexible and creative options, they still fall short of re-creating the invisible intra-Irish border – and create a number of subsidiary challenges. However, if all Parties are willing to accept the introduction of a ‘hard’ intra-Irish border, there are some options that can help soften it – such as the UK aligning with EU regulation. The harder the Brexit, the harder the border.
Emily Lydgate is a lecturer in Law at the University of Sussex and a fellow of the UK Trade Policy Observatory. This blog first appeared on the UKTPO’s website.
Hungary has been in the spotlight for all the wrong reasons for quite a while. From legislation targeting ‘foreign-operating universities’ to border walls to keep refugees from entering Hungarian territory, the populist right-wing government of Viktor Orban has been sparking outrage in many sectors of Hungarian society, and the European institutions. The most recent reason for alarm again relates to migration and refugees, an area of widespread criticism of Hungarian authorities. Building on extremely hostile policies towards refugees that have been admonished by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), Hungarian authorities now intend to resort to highly dubious means to assess the applications of individuals claiming asylum on grounds related to their sexual orientation. It was already public knowledge that this category of claimants was subjected to poor treatment by the Hungarian authorities, but recent events suggest that the authorities have reached a new low.
The most recent incident came to the public knowledge through a reference for a preliminary ruling to the CJEU by the Hungarian Administrative and Labour Court Szeged on 29 August 2016 in the Case C‑473/16, F v Bevándorlási és Menekültügyi Hivatal (the ‘F case’). The case concerns a Nigerian national who had submitted an application for international protection in Hungary based on his sexual orientation, and dealt with the use of projective personality tests and other means for ‘proving’ sexuality. The Hungarian domestic court posed two questions to the CJEU, essentially asking whether the application of Article 4 of Council Directive 2004/83/EC, in the light of Article 1 of the Charter of Fundamental Rights of the European Union (EU Charter), precludes forensic psychologists’ expert opinions based on projective personality tests from being used in asylum adjudication relating to LGBTI (lesbian, gay, bisexual, trans and intersex) claimants. Should that possibility be precluded, the referring Court then asks whether the asylum authorities are prevented from examining by expert methods the truthfulness of these claims.
The questions thus refer to the interpretation of particular provisions of Council Directive 2004/83/EC. Yet, the material facts under analysis in the case referred to the CJEU occurred in April 2015, so the law that applies to the facts and that needs to be interpreted in this case is the successor to Council Directive 2004/83/EC – Directive 2011/95/EU of 13 December 2011 (the recast Qualification Directive) – in force since 22 December 2013.
Following the hearing on 13 July 2017, Advocate General Wahl delivered his Opinion on 5 October 2017. The focus of our analysis will be on this Opinion, but first it is important to recall the case law the CJEU has already produced on sexual orientation and gender identity (SOGI) claims of asylum. Indeed, this is the third case the CJEU has dealt with on SOGI-related asylum claims, and we expect this third case to better reflect international standards than the previous two, particularly in the light of the EU Charter and UNHCR Guideline No. 9.
This judgment is important as it establishes some core principles on credibility and evidence assessment; however, the Court could have offered more positive guidance in that regard. At the outset, the CJEU found that although the applicants’ mere declarations are not sufficient per se to establish their sexual orientation, authorities are bound by certain limits when assessing a SOGI asylum application. Notably, such assessment must be conducted on an individual basis and must not be based merely on stereotypes, which is a mistake too often committed by decision-makers in SOGI cases. Nonetheless, the CJEU did not completely overrule the use of stereotyped notions, but considered them a useful element in the overall assessment. As for evidence, the Court precluded the recourse to detailed questions on sexual practices and to ‘tests to establish applicants’ sexual orientation in light of Articles 1 (human dignity) and 7 of the EU Charter. It also banned the production in evidence of films showing the applicant’s engagement in same-sex activities. Finally, the CJEU also affirmed that late disclosure of an applicant’s sexual orientation as the main reason for the asylum claim, does not per se impinge on the applicant’s credibility.
In a nutshell, the Court gave a ‘black list’ of what authorities cannot do, but it did not provide any clear guidelines of what, they should do to assess SOGI asylum claims. Notably, the Court made it clear that there is no room for evidence that, by its nature, infringes human dignity and which does not have any probative value. This prohibition, the Court argued, cannot be circumvented even if it is the applicant’s choice to submit such evidence, as this would incite other applicants to do the same, creating a de facto requirement. While the Court’s judgement in X, Y and Z fully establishes the possibility of recognising SOGI applicants as refugees, the Court’s findings in A, B and C constitute the backdrop against which the F case will ultimately be decided.
‘Tell me what do you see… is it gay enough?’
The F case has put back on the CJEU’s agenda the evidentiary standards to be applied in SOGI asylum cases. Several contentious practices have been criticised throughout the years in this context, from the use of stereotyped questioning to authorities resorting to practices of no medical or psychological value such as phallometry, whereby reactions of gay male asylum claimants to watching pornography were supposed to indicate their sexual preferences. Despite such practices having been highly criticised both by the UNHCR and NGOs, the F case makes it clear that they persist in different ways.
The precise tests in question in this case are the ‘Draw-a-Person-in-the-Rain’test, Rorschach test and Szondi test. Such projective, drawing tests attempt to elicit information that ‘patients’ may struggle or prefer not to verbalise otherwise, helping psychologists to form an opinion about individuals’ personality, emotional well-being and mental health. These tools are generally contentious, even if they go on being used by psychologists routinely in most countries. Their use to determine one’s sexuality is fundamentally abhorrent, thus simply not considered by the relevant literature or reputable professionals.
AG Wahl recognises how scientifically discredited such tests are in relation to sexual orientation matters, citing an American Psychological Association 2009 report. The question of whether one is gay or not is, itself, poorly framed, as one’s sexual orientation can lie somewhere along a complex continuum and change overtime. Attempts to determine one’s sexuality objectively have invariably been held to be ‘junk science’, for relying on baseless stereotypes. As Weber has rightly stated in the context of the recent debates around using Artificial Intelligence (AI) to determine one’s sexuality on the basis of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals and fail to recognise that the ‘homosexual’ and the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ will be used in the West in the context of SOGI asylum.
The tests in question in the F case assume that individuals with a particular sexual orientation have certain personality traits, which not only is patently false, but also runs against the prohibition on stereotypical decision-making established by A, B and C. At the oral hearing in this case, the Hungarian authorities tried to justify the use of these tests with the A, B and C judgment. The argument ran as follows: as the judgment precluded questions about claimants’ sexual orientation, the authorities had to resort to tests. The problem with this assertion is that it is based on a false premise: the judgment in A, B and C did not prevent authorities from asking any questions about claimants’ sexual orientation, but simply precluded certain questions and practices that clearly breach the dignity of the individual.
Although both the Commission and the Hungarian authorities suggested in the oral hearing that these tests should be allowed because they only constitute an element of the overall assessment of the asylum claim and may lead to the confirmation of the credibility of the applicant, the exact opposite happened in this case. Indeed, the test was used by the Hungarian authorities to discredit the applicant’s account and deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to prevent the claimant from being recognised as refugee. Unfortunately, AG Wahl’s Opinion fell far short from precluding such tests.
The Advocate General’s Opinion
In his Opinion, AG Wahl rightly frames this case as one that is very clearly about using psychologists’ expert opinions in assessing the credibility of claimants. The provision at the centre of this debate – as framed by the referring questions – is Article 4(5) of the recast Qualification Directive, which discharges applicants from the need to prove their asylum claims through documentary or other evidence when a range of conditions is fulfilled, including the applicants having made a genuine effort to substantiate their claims, having offered a satisfactory explanation for the lack of further evidence, and having provided an overall credible account. Based on this provision, the applicant used the oral hearing to highlight that there was no need for any further tests in his case, because there were no inconsistencies. The Hungarian authorities counter-argued that there were contradictions in the applicant’s statement (without specifying exactly which contradictions), so it was necessary to probe its veracity.
Another EU law instrument turns out to play a more important role in this Opinion, namely Directive 2013/32/EU (the recast Asylum Procedures Directive). Indeed, the Qualification Directive establishes the general rules to follow in terms of evidentiary standards in asylum cases, in particular Article 4, but it is Article 10(3) of the Asylum Procedures Directive that determines that Member States’ asylum authorities should reach individual, objective and impartial decisions, and that they have the possibility to seek expert advice to assist in their decision-making. On this basis, AG Wahl proceeds by considering the benefits of involving psychologists in the adjudication process (para. 33-34), but is also very clear about the impossibility of a psychologist determining an applicant’s sexual orientation based on personality tests (par. 36). Nonetheless, AG Wahl goes on to analyse under which circumstances such tests can nevertheless be admitted, thus effectively accepting them.
AG Wahl tries to soften the blow of admitting the tests in question by stating that consent is required, and that the tests need to be carried out in a way that is compatible with the rights to dignity and to respect for private and family life (Articles 1 and 7 of the EU Charter and Article 8 of the European Convention on Human Rights). Although AG Wahl expressly acknowledges the difficulties in withholding consent in the context of an asylum claim, he does not seem to find it problematic that – in his own words and in a likely violation of the applicant’s rights under EU law – the ‘applicant’s refusal [to consent to the tests] may have certain consequences that the applicant himself has to bear’ (par. 45). In other words, refusing a test with no probative value that could violate applicants’ rights may lead to the refusal of their asylum claim – a highly disproportional and unfair outcome, we would argue.
The Opinion goes on to further qualify the admissibility of such tests by questioning the probative value of examinations based on dubious science or used in the wrong context (par. 48). And yet, AG Wahl also offers domestic courts a wide margin of appreciation in this regard, by stating that it is not for the CJEU to assess such tests. Having seen how the tests in question had been used in relation to a gay male applicant to deny him asylum, it is patently unwise to offer domestic authorities such leeway in asylum cases relating to sexual orientation. The fact that AG Wahl refers to the right to an effective remedy (Article 47 of the EU Charter) and to the freedom of domestic courts to depart from the ‘findings of the expert’ (par. 50) may be an implicit suggestion that the domestic court in this case should differ from the experts’ opinions and feel free to grant asylum to the applicant. Yet, that is clearly insufficient to appease the legitimate concerns of asylum seekers in similar situations, since they will be at the mercy of (administrative and judicial) authorities who may happily offer probative value to ‘junk science’ detrimental to their asylum claims.
AG Wahl’s Opinion accepting in principle the use of projective personality tests in cases involving asylum claims on the basis of sexual orientation is deeply disconcerting. On the one hand, he clearly doubts the usefulness or appropriateness of such tests (even referring to Principle 18 of the Yogyakarta Principles protecting individuals from medical abuses based on sexual orientation or gender identity), and he alerts domestic courts to the possibility of disregarding them even when they are carried out. On the other hand, he does recommend that such tests should be allowed (even if with a range of supposedly helpful caveats), thus abandoning claimants to the mercy of potentially unsympathetic domestic authorities. Equally disconcerting is the fact that nowhere in the AG’s Opinion is there a reference to the principle of the benefit of the doubt: although it may not be strictly necessary to refer to this principle in this context, its absence is striking for leaving out of the equation an essential element of the evidentiary standards in refugee law (para. 203-204 of the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status). It is submitted that the focus of the Opinion should have been on the line of questioning that should have been used, such as per UNHCR Guideline No. 9.
he Opinion in this case could have much more simply asserted, as AG Sharpston did in her Opinion in A, B and C (largely followed by the CJEU), that ‘medical [or psychological, we would add] tests cannot be used for the purpose of establishing an applicant’s credibility, as they infringe Articles 3 and 7 of the Charter’ (par. 61), and that applicants’ consent is both essentially irrelevant and questionable (par. 67). Instead, AG Wahl offers poor guidance to the CJEU.
‘Projecting’ this Opinion onto the CJEU’s Judgment
In the F case, the CJEU will be called upon to interpret EU law with regard to the evidentiary assessment of SOGI asylum cases in a more targeted way than it did in A, B and C. Predicting a Court’s verdict is something one should try to avoid; however, the relevance of the issues at stake in the F case allows us to contemplate some potential scenarios. First, the CJEU has the option to build on and expand its approach in A, B and C and therefore construe its whole reasoning on the basis of respect for the EU Charter, particularly Article 1. In this sense, psychological personality tests to evaluate sexual orientation would be precluded, as the prohibition set forth by the CJEU in A, B and C is arguably not limited to physical examination, but extends more generally to all ‘“tests” with a view to establishing […] homosexuality’. Secondly, should the CJEU follow the AG’s opinion, it would need to carefully construe how it is possible to ensure that psychologists’ expert opinions are truly limited to an evaluation on the general credibility, and not just a loophole to pave the way to unreliable psychological assessments of sexual orientation.
Further, the Court should make sure that any such expert opinions on credibility are not used as ‘lie detectors’ based on preconceived assumptions – otherwise we could well resort to Harry Potter’s veritaserum for all asylum claims. Moreover, the CJEU would need to explain how genuine consent can be sought, since the option of taking tests that are not compulsory but seen as useful for credibility assessment would put pressure on other applicants to take the tests, thus undermining the validity of any consent obtained. Finally, should the CJEU agree with the use of projective personality tests in SOGI asylum claims, it would compromise the progressive steps previously taken in this area – a slippery slope we strongly hope the Court will not enter. The CJEU has already spelled out, in A, B and C, some of the crucial elements for deciding the present case; now, it is a matter of entrenching those elements, so as not to leave room for ambiguity or for the use of evidentiary means that are in breach of asylum seekers’ dignity and fundamental rights.
Nuno Ferreira is Professor of Law at the University of Sussex and Denise Venture is a PhD candidate in Refugee Law at Scuola Superiore Sant’Anna. The authors wish to thank the useful comments provided by Dr Carmelo Danisiand Dr Moira Dustin on previous drafts of this text, which first appeared on the EU migration blog.
Where do things happen online? This is the eternal question of Internet regulation. While we like to think of the Internet as a global medium, increasingly we are faced with a regulatory clampdown and real-world solutions to online incidents. The latest decision dealing with online jurisdiction comes in the shape of Bolagsupplysningen OÜ and Ingrid Ilsjan v Svensk Handel AB (Case C‑194/16), an online defamation case.
The case involves Svensk Handel, the Swedish trade federation of the commercial sector, and the Estonian company Bolagsupplysningen, which offers corporate search services and conducts its businesses mostly in Sweden. One of Svensk Handel’s functions is to provide consumer information with regards to dubious commercial practices, and it lists several websites that engage in potentially damaging and/or fraudulent practices. Svensk Handel has an entry on Bolagsupplysningen (still live at the time of writing), which warns users that the Estonian company sends out incorrect address forms to its customers, which when sent back contains a clause to sign up for a business subscription. The page has comments open (over 1600 at the time of writing), most of them of consumers criticising the Estonian company and offering their own experiences.
Bolagsupplysningen sued Svensk Handel in an Estonian court for defamation, alleging that both the information on the page and the comments were defamatory. They claim that the comments were filled with insults and even death threats to its employees. The Estonian court in first instance rejected the claim because the page was published in Sweden and it was in Swedish, so no damage could be established in Estonia; furthermore the fact that the content had been published in Estonia via the Internet did not not automatically justify an obligation to bring a case before an Estonian court. The case was appealed, and the Talinn Court of Appeal sided with the first ruling. The decision was then appealed to the Estonian Supreme Court, which decided to stay the proceedings and deferred three questions to the Court of Justice of the European Union.
Can a legal person sue for the entire harm caused by infringing comments online in the country where the information was accessible?
Can a legal person sue for the entire harm caused by infringing comments online in the country where the that person has its centre of interest?
In case question 2 is affirmative, in which jurisdiction could the injured person seek remedies?
The CJEU answers the first question quickly in the negative by ruling that a person “cannot bring an action for rectification of that information and removal of those comments before the courts of each Member State in which the information published on the internet is or was accessible.” This is the most logical conclusion, as a positive answer would have opened the floodgates to online defamation suits in all Member States with no other connection than the fact that some information was published online. That way madness lies.
The Court merged the second and third questions, and delved on the underlying legal issue in more detail. The Court posed the legal question thus:
“…a legal person claiming that its personality rights have been infringed by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located and, if that is the case, what are the criteria and the circumstances to be taken into account to determine that centre of interests.”
The previous authority in this subject from the CJEU had been eDate Advertising and Others (C‑509/09 and C‑161/10), in which it was decided that the main consideration when it came to online jurisdiction for a tort, delict or quasi-delict was to bring an action where the harmful event had taken place, or will take place, the Court was clear to interpret it broadly, and commented that this can be deemed to be as the same place where the person resides, as this is where the harm could occur the most, taking into account that the damage will be “felt most keenly at the centre of interests of the relevant person, given the reputation enjoyed by him in that place.” (at para 33). The Court explains this reasoning further:
“Thus, when the relevant legal person carries out the main part of its activities in a Member State other than the one in which its registered office is located, as is the case in the main proceedings, it is necessary to assume that the commercial reputation of that legal person, which is liable to be affected by the publication at issue, is greater in that Member State than in any other and that, consequently, any injury to that reputation would be felt most keenly there. To that extent, the courts of that Member State are best placed to assess the existence and the potential scope of that alleged injury, particularly given that, in the present instance, the cause of the injury is the publication of information and comments that are allegedly incorrect or defamatory on a professional site managed in the Member State in which the relevant legal person carries out the main part of its activities and that are, bearing in mind the language in which they are written, intended, for the most part, to be understood by people living in that Member State.”
The Court then answers the referred questions:
“The answer to the second and third questions therefore is that Article 7(2) of Regulation No 1215/2012 must be interpreted as meaning that a legal person claiming that its personality rights have been infringed by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located.
When the relevant legal person carries out the main part of its activities in a different Member State from the one in which its registered office is located, that person may sue the alleged perpetrator of the injury in that other Member State by virtue of it being where the damage occurred.”
For the most part this seems like a rational decision based on the law, but not such a good ruling regarding the specifics of this case. It feels strange to give jurisdiction to a court in Estonia for a potential defamation occurring in a Swedish website, published in Swedish and dealing mostly with Swedish consumer issues, even if the company is based in Estonia. While it is understandable that the harm may occur where the person resides and conducts businesses, the harmful act itself took place in Sweden. The Court leaves this option open as well, the result being that at least in principle those affected by defamation (or other civil harm) could sue in both the country where they reside, and where they hold their centre of interest.
I for one do not see any changes to current practices, but I am willing to see what others think.
Andres Guadamuz is Senior Lecturer in Intellectual Property Law at the University of Sussex. This article first appeared as a blog post on his Technollama blog
It is almost twenty years since the UK Government enacted specific race hate crime offences (ss. 28-32 Crime and Disorder Act 1998 (CDA)). Since then, the legislation has been amended to include religious-based hate crimes, while sentencing provisions that prescribe sexual orientation, disability and transgender hostilities have also been introduced (as set out in the Criminal Justice Act 2003 (CJA)). The piecemeal way in which hate crime laws have been enacted in the United Kingdom means that there are now different levels of legislative protection for the current five recognised groups commonly targeted for hate crime. In response to this, in 2012, the Ministry of Justice requested that the Law Commission examine whether the Government should extend the aggravated offences in the CDA (England and wales only) to apply equally to all five protected characteristics. In its final 2014 report, the Commission recommended that a wider review of the law be carried out in order to determine how the law should be amended, abolished or extended.
In response to the Commission’s report, the University of Sussex recently conducted a 24 month study on the application of hate crime laws in England and Wales, which was funded by the EU Directorate-General Justice and Consumers department as part of a wider European study on hate crime legislation across five EU member states (England and Wales; Ireland; Sweden; Latvia; and the Czech Republic). A mixed-methods approach was employed for the project which enabled us to compare and contrast the stated aims and purposes of policies and legislation with the experiences of those tasked with enforcing and applying the law. This approach included: (a) an assessment of existing policies and publically available statistics; (b) a review of over 100 reported cases; and (c) 71 in-depth, qualitative semi-structured interviews with “hate crime coordinators” and “hate crime leads” at the Crown Prosecution Service (CPS), District (Magistrates’ Court) and Circuit (Crown Court) Judges, independent barristers, victims and staff at charitable organisations that support victims of hate crime, police officers, and local authority minority group liaison staff.
Using publically available statistics and new data analyses provided by the ONS for us on hate crime, we calculated an approximate number of offences that are likely to “drop out” of the criminal justice system. The total number of cases that drop out of the system represent what is known as the “justice gap” for hate crime. Analysis of the Crime Survey for England and Wales (CSEW) suggests that between 2015-16 approximately 110,160 hate crimes were reported to the police. Yet official police statistics for the same period recorded just 62,518 hate crimes. This suggests that only 57% of those incidents reported to the police are recorded as hate crimes. During the same year, the CPS prosecuted 15,442 hate-based offences, of which 12,846 resulted in a conviction. The CPS also recorded the announcement of sentencing uplifts in court as 33.8% of total hate crime convictions, which equates to 4,342 cases. If these data are accurate, it means that out of an approximate 110,160 reported hate crimes, only 4,342 offences (4%) resulted in a sentence uplift based on identity-based hostility. In other words, approximately 96% of reported hate crimes (102,658 cases) may not result in a sentence uplift.
There are a number of possible reasons for this significant “justice gap” for hate crime, including: differences in definitions of hate crime used by the police compared with the courts; diverging dates between reporting and legal action; victims retracting statements; and perpetrators never being apprehended (amongst various other factors). However, we also identified a number of factors that restrict the successful application of hate crime legislation within the legal process for hate crime that are likely to exacerbate the rate of attrition for hate crimes. During our study we identified the following problems:
A systemic failure to identity and “flag” disability hate crimes, as well as a reluctance amongst many judges and legal practitioners to accept evidence of targeted violence against disabled people as proof of “disability hostility”;
A general lack of awareness of ss. 145 & 146 of the Criminal Justice Act 2003 amongst certain key professionals, indicating that disability, sexual orientation and transgender-based hate crimes are less likely to attract a sentence uplift;
A reluctance in parts of the judiciary to accept “demonstrations of hostility” committed in the “heat of the moment” as falling within the scope of the legislation;
A perceived reluctance amongst jurors to accept “demonstrations of hostility” committed in the “heat of the moment” as falling within the scope of the legislation;
The potential for “double convictions” in the Magistrates’ Courts, where defendants are convicted for both the basic and aggravated version of the offence (though only punished once);
Diverging approaches to calculating “uplifts” for enhanced sentencing, with calculated uplifts ranging from 20%-100%;
A general lack of use of rehabilitation or community-based sanctions for hate crime offenders.
The study concludes that hate crime laws are still too frequently ignored or incorrectly applied by the courts. Without legal reform, along with amendments to procedure and new options for alternative justice, we believe that many victims and defendants will be denied justice. In order to address these perceived problems within the legal process for hate crime we advocate four key law reform options:
We recommend, as a minimum, that Parliament amend s. 28 of the Crime and Disorder Act 1998 to include sexual orientation, disability and transgender identity.
Based on the statistics and analysis of interviewee data, the following offences should be considered for inclusion under the CDA: Affray; Violent disorder; All sexual offences; Theft and handling stolen goods; Robbery; Burglary; Fraud and forgery; S. 18 Grievous bodily harm; Homicide offences
The Government should legislate to create a new Hate Crime Act that consolidates the existing fragmented framework which would prescribe anyoffence as “aggravated” in law where there is evidence of racial, religious, sexual orientation, disability and/or transgender identity hostility. Sentencing maxima for the aggravated offences should be the same as for the basic offence, with the legislation mirroring ss. 145 and 146 CJA in so far as the courts “must” take into consideration hostility (or the by reason selection, explained below) and state in open court how the sentence has been affected by the aggravation.
We propose that the successful prosecution of all types of hate crime will be enhanced were the legislation to be amended at s. 28(1)(b) (or equivalent in a new Hate Crime Act) so that the provision now reads as follows: “the offence is committed by reason of the victim’s membership (or presumed membership) of a racial or religious group, or by reason of the victim’s sexual orientation (or presumed sexual orientation), disability (or presumed disability), or transgender identity (or presumed transgender identity).”
If these options for reform are taken up by the Government, we strongly believe that the criminal justice system will be better equipped to tackle the growing problems associated with hate crime in England and Wales.