CUSLJ 2014 by CULawSoc

The Cardiff University Law Society would like to thank Macfarlanes LLP for their generous sponsorship and continued support of the Student Journal.

The views expressed in this journal are not necessarily of those of Cardiff University Law Society, Cardiff Law School, Cardiff University, or the Editor. Whilst every effort has been made to ensure that all information is factually correct, the editor cannot be held responsible for any errors, omissions, nor consequences following from them.

2013-14 Editorial Board

Academic Officer and Journal Editor John Kirk

Academic Committee & Assistant Editors Trevor McGeer Sarah White Huw Sensier Matt Curzon Chris Doherty ScarletThomas-Perry

Photography and Media Luke Addison

The Advisory Board I would like to thank the following lecturers for freely and willingly dedicating their personal time to ensure that the publication will reach a suitable standard:

Annette Morris James Davey Julie Doughty Anita Krajewska Demetra Arsalidou Elen Stokes James Young Aaron Khan Russell Sandberg Daniel Newman Cathy Cobley NormanDoe

Contents 1. An Introduction from the Editor

John Kirk

2. Annetteâ&#x20AC;&#x2122;s Academic Assistance

Annette Morris

3. Addicted to Criminalisation - Why the UK's Drug Laws Need Reform

Georges Prat

4. Sociology of Law: The Effects of Prison and its Role in Society Anthony Bowen

5. Above and Beyond Consumer Protection: Addressing the realities of online shopping and recommendations for consumer policy. Pamela Patterson

6. Conspicuous Disability Discrimination in S.1(d) of the Abortion Act, with a comparison to the approach to the Severely Disabled Neonate. Josh Gibbs

7. The Compatibility of Islamic law with International Human Rights Law Zulfia Abawe

8. Imbalanced Scales of Justice: A critical discussion of Criminal Defence Luke Addison

9. Section 4 (2) Charities Act 2011 provides that “in determining whether the public benefit requirement is satisfied in relation to any purpose falling within section 3(1), it is not to be presumed that a purpose of a particular description is for the public benefit’. Did the presumption exist prior to the Charities Act 2006 (consolidated into the Charities Act 2011) and if so, has there been a removal of such presumption? Megan Cooke and Sharmin Chowdhury

10. The EU Court’s concept of agreement of ‘agreement’ within the meaning of Article 101(1) TFEU: An overinclusive interpretation. Martin Gassler

12. To what extent should parties mediate rather than litigate their disputes? Chee Ching Chan

103

13. Legal Aid Cuts: An Unwelcome Hindrance on Justice Harry Scott

116

14. Sexual Offences: A time for change? Madeleine Weber

127

15. Common Intention Constructive Trusts: A new threat to the certainty of land law? Bing Yap

140

Introduction: A message from the Editor It is with great pleasure that I can introduce the sixth edition of the Cardiff University Law Society Journal (“CULSJ”). On behalf of the Society I would like to thank our sponsors Macfarlanes LLP without whom the publication would not be possible. The law journal now consists of entirely independent articles submitted by students across the different academic tiers of the Society. Each article receives intense scrutiny from both the Society’s Academic Committee, and a board of 15 lectures, each article is critically appraised until it reaches a first class standard. The Society is proud to publish an interesting an engaging piece of academia ranging from topical commercial issues to socio-political debates. I hope that you enjoy reading our students analytical rigour and precise evaluation as must as I have enjoyed assisting them. I am extremely grateful for the exemplary determining shown by everyone involved.

John Kirk Academic Officer Cardiff University Law Society

Annette’s Academic Assistance: The best essays/articles:  Demonstrate an excellent understanding of the issues arising within the debate being addressed and the arguments advanced by academics, politicians, judges, practitioners and other commentators on these issues;  Analyse

the

arguments

advanced

academics,

politicians, judges, practitioners and other commentators;  Evaluate

the

arguments

advanced

academics,

politicians, judges, practitioners and other commentators in order to develop a clear and reasoned line of argument;  Synthesise the discussion of the issues/arguments well so that the essay/article has a clear and logical structure. The following provides some guidance on to how demonstrate understanding and on how to analyse, evaluate and synthesise.

Understanding Demonstrating understanding is a matter of explaining the issues/arguments arising within a debate not only in detail but also clearly, precisely and succinctly. Whilst there is a clear

link between levels of understanding and academic ability, demonstrating understanding also has much to do with writing style. Getting to the point quickly, writing in short, clear, crisp sentences and avoiding overly complex 'academic' and 'legal' language can make all the difference.

Analysis Analysis is a matter of breaking material down with a view to examining

detail

and

from

different

perspectives. Analysis is crucial as it deepens levels of understanding and forms the basis of evaluation. It is best to think about analysis on two levels. First, it is necessary to analyse (i.e. break down) the debate you are discussing (e.g. on whether the current law is satisfactory) into its component parts. For many, the starting point will be to focus on the pros and cons (e.g., of the current law) or the advantages and disadvantages (e.g. of the reform options). However, it is often better to take a more sophisticated approach and to focus on identifying and extracting the different issues arising within the debate. For example, if discussing the recent legal aid reforms within the Legal Aid, Sentencing and Punishment of Offenders Act 2012, one approach would be to identify the pros and cons of the reforms. The more sophisticated approach would be to

extract the issues within the debate, e.g. the cost of legal aid, the quality of legally aided services and the need for legal aid in light of alternatives such as online self-help and selfrepresentation. This analysis/breaking down of the debate can then be used as the basis for your structure, i.e. you can take each issue in turn and discuss it in detail with a view to developing a clear line of argument. Second, having identified the issues within the debate, you then need to analyse (i.e. break down) the arguments advanced by academics, politicians, judges, practitioners and other commentators on these issues. Arguments have two elements. First, the claim or the assertion which forms the basis of the argument. Second, the reasons for that claim or assertion. To analyse, you need to think about the bases of the arguments you are considering in depth.  Is the argument based on rhetoric or evidence or assumption?  If based on rhetoric, can it be taken seriously?  If based on evidence, is the evidence reliable and representative or suspect and selective? Could that evidence be interpreted in a different way?  If based on an assumption, is that assumption justified?  Are the reasons for the claim/assertion logical and coherent? Do they fail to consider things that ought to be

considered? ď&#x201A;ˇ What are the wider (legal, social, economic, political etc.) consequences of the argument being made and are these consequences desirable? ď&#x201A;ˇ What are the counter-arguments and are these stronger and, if so, why? Undertaking this detailed analysis will stand you in good stead for the next stage: evaluation.

Evaluation Evaluation is a matter of judging, i.e. assessing the strengths and weaknesses of the arguments and counter-arguments advanced by academics, politicians, judges, practitioners and other

commentators

the

issues

you

have

identified. Analysing the arguments and examining their bases in detail, as outlined above, will naturally allow you to see the strengths and weaknesses of the arguments advanced in the debate. This in turn will allow you to form your own point of view on the issues you are discussing. This view should

clear

throughout

your

essay.

The

best

essays/articles advance a clear argument (e.g. the law is unsatisfactory, the law is in need of reform, the law should be reformed in a particular way etc.) but this argument should be well-reasoned i.e. it should be based on a decent analysis and

evaluation of the various arguments advanced within the debate. The more you explain the strengths of the arguments you agree with and the weaknesses of the arguments you disagree with, the more convincing your own argument will be.

Synthesis Synthesis is a matter of drawing together the issues and arguments you have analysed and evaluated into a coherent whole. Therefore, it is important that your essay/article has a logical and clear structure. It is generally a good idea to:  Take each issue in turn;  Describe

the

arguments

advanced

academics,

politicians, judges, practitioners and other commentators on each of these issues;  Explain the strengths and weaknesses of those arguments with a view to making your position on each issue clear;  Then draw your views together on each of the issues you have discussed to develop an overall conclusion/argument on the debate you are addressing. Taking this kind of structured and reasoned approached will help you to build the argument you are seeking to make in your essay/article.

- Annette Morris ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Addicted to Criminalisation - Why the UK's Drug Laws Need Reform Georges Prat

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

"It seems likely that a mixture of ideology, fear, inertia, and political cowardice all contribute to the perpetuation of the current policy regime in spite of the virtual certainty that the current policies are very harmful indeed. "

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

1. Introduction If youâ&#x20AC;&#x2122;ve taken a criminal law module, no doubt youâ&#x20AC;&#x2122;ve read the case of R v Evans1, where a young woman died of a heroin overdose because her mother and her half-sister, afraid that they would get into trouble, failed to call an ambulance when the victim showed signs of an overdose. The case is a straightforward example of how an omission can lead to liability for gross negligence manslaughter when a duty of care is owed to the victim. However, the case is significant for another, less acknowledged reason: it is a noteworthy illustration of the harms of drug prohibition. Indeed, this essay will argue that it is likely that the harms of drug prohibition greatly outweigh the putative benefits, and that future drug policy should be decided from the framework of drug use as a public health issue rather than a law enforcement issue. The principle arguments in favour of prohibition will be examined and shown to be inferior to arguments against it, either because they have worse unintended consequences, are incoherent, or are empirically questionable. Finally, some alternative policy choices will be considered. Drug crimes, along with prostitution and gambling laws, are unusual because there is no victim in the same sense as with crimes against a person or property. The act is consensual, so the argument for the existence of these so-called 'victimless' crimes must be grounded on the fact this consensual activity results in harms to wider society and/or that they protect citizens against themselves. It is certainly the case that drug

[2009] 2 Cr App R 10

use, and particularly drug addiction, can have devastating effects on those afflicted, in addition to their friends, family and wider society. If we accept that government has a role to play in selecting policy that leads to the most overall desirable consequences, any drug policy should be aimed at minimising these harms. Given this, we must also consider if drug prohibition leads to other, more undesirable, unintended consequences.

2. Current Consequences

Policy:

The

Unintended

The first, most severe, unintended consequence of drug prohibition is the flourishing of criminal syndicates, who regularly use violence to fight over 'turfs' and market share 2. Most drug-related policing activity is aimed at eliminating the supply of drugs3. However, no administration in the UK has been able, or willing, to devote enough police resources to successfully eliminate the supply of drugs, and to do so would be prohibitively expensive 4. Rather, the police have been successful at reducing the supply of drugs, but not to the extent that interested users cannot regularly acquire their drug 2

Nowhere is this more apparent currently than in Mexico, where an estimated 34,000 people have died in the years 2006-2010 due to gang warfare. Daniel Hernandez, 'How Many Have Died in Mexicoâ&#x20AC;&#x2122;s Drug War?', Los Angeles Times (Los Angeles 7 June 2011) <http://latimesblogs.latimes.com/laplaza/2011/06/mexico-war-deadupdate-figures-40000.html> accessed 5 March 2014

Peter Reuter and Alex Stevens, An Analysis of UK Drug Policy (UK Drug Policy Commission 2007), 9 Drug control spending is already roughly a billion pounds per year in England alone. Department of Health, 'United Kingdom Drug Situation: Annual Report to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) 2011' (UK Focal Point on Drugs 2011), 34

of choice5. In turn, the reduced drug supply has led to increased prices and massive profits for members of criminal syndicates that have yet to be caught6. In other words, there is a compensatory affects that for every shipment of drugs that is intercepted, scarcity goes up and so do prices. In turn, the remaining drug traffickers are further incentivised to continue trafficking as their profits rise. This is basic economics; as long as the demand for drugs remains high, there will be traffickers willing to risk their liberty in order to make money, and the â&#x20AC;&#x2DC;invisible hand of the marketâ&#x20AC;&#x2122; will set the price at which they are willing to take this risk. In the case of heroin, the variability of supply as a result of seized shipments leads to overdoses in users. When a supplier has had shipments seized, they 'cut' what remains of their supply with innocuous similar looking material. At times when the police have not been so successful, the purity of heroin will rise. For the addict, this means they have little way of knowing how pure their drug is until they try it. A dose, which would usually have a normal effect, may suddenly be life threatening because it came from a particularly pure batch7. Alternately, impure heroin may be supplemented with another drug such as alcohol to boost the effects, the mixture of which greatly increases the risk of overdose8. The user's reliance on the black market means no quality control and no warning labels. 5 6

Richard Boreham and others, The Arrestee Survey 2003-2006 (Home Office Statistical Bulletin 2007), 102 The drug trade has been estimated to be $13 billion at the production level and $322 billion at the retail level. RSA Commission on Illegal Drugs, Communities and Public Policy, Drugs: Facing Facts (The Royal Society for the Manufacture of Arts, Manufactures and Commerce 2007), 39 Shane Darke and others, 'Fluctuations in Heroin Purity and the Incidence of Fatal Heroin Overdose' (1999) 54(2) Drug and Alcohol Dependence, 155 Stanton Peele, 'The Persistent, Dangerous Myth of Heroin Overdose'

Another, less obvious unintended consequence of drug prohibition has been the recent rise of designer drugs. Certain research scientists have developed new psychoactive drugs that are analogues of existing ones, yet because their chemical composition is slightly different, they are not illegal themselves9. Many interested users will acquire the drugs through online sources from foreign chemical companies, but their novelty means they have unpredictable effects and may even be more dangerous than their illegal analogues 10.

3. The Faulty Logic of Prohibition Occasionally proponents of drug prohibition argue that one of the reasons why we need prohibition is because of the resulting lawless behaviour of the drug addict, but in fact the prohibitionists have it backwards. The high price of drugs due to their prohibition is what leads the addict to commit property crimes, or more property crimes, than they otherwise would in order to feed their habit. Indeed, criminals with an addiction to heroin or cocaine easily eclipse non-users in rates of such crimes11. This stimulates another black market trade in stolen goods. DPFT (Drug Policy Forum of Texas) 1999 August, 5 See for example Richard Gray, 'Hundreds of New 'Legal High' Designer Drugs Flooding Into Europe, Warns Report' The Telegraph (London 25 August 2013) <http://www.telegraph.co.uk/news/uknews/crime/10249399/Hundredsof-new-legal-high-designer-drugs-flooding-into-Europe-warnsreport.html> accessed 5 March 2014 10 Two salient examples are the designer drugs Bromo-Dragonfly and Mephedrone. For example see Mette Andreason Findal and others, 'A Fatal Poisoning Involving Bromo-Dragonfly'. (2009) 183(1â&#x20AC;&#x201C;3) Forensic Science International, 91 11 Richard Boreham and others, The Arrestee Survey 2003-2006 (Home Office Statistical Bulletin 2007), 84 9

Proponents of drug prohibition will also sometimes argue that it must be done to protect adolescents. However, the reality is that prohibition actually makes drugs more accessible to the young compared to the accessibility of legal drugs 12. Illegal drug dealers generally have no problems selling to the underage, but age limits for the sale of alcohol and tobacco make it more difficult for the young to acquire them than it otherwise would be, bearing in mind the ubiquity of these legal drugs. In other words, drug prohibition is a worse method for preventing the young from acquiring drugs than a regulated market.

4. Other Countries: the Lessons Learned Although the UK has moved away from the policy of criminalising the drug user in comparison to the early days of drug prohibition, the laws criminalising possession remain in place13. This is surely the wrong approach to take, as putting addicts in prison is very harmful to the addict and society. Consider the costs of maintaining one person in prison every year14 and the unsuitability of prison, where drugs are routinely smuggled, to break the addict's habit 15. Consider 12 In The Arrestee Survey the availability of heroin, crack and cocaine was found to be the same across all age groups. Richard Boreham and others, The Arrestee Survey 2003-2006 (Home Office Statistical Bulletin 2007), 102 13 Misuse of Drugs Act 1971, Schedule 4 14 The costs per year to incarcerate a single person is roughly ÂŁ 40,000. Ministry of Justice, 'Cost per Place and Cost per Prisoner by Individual Prison' (Ministry of Justice Information Release 2011), 4 15 For example, roughly 30% of inmate survey respondents said it was easy/very easy for them to get drugs in prison. Her Majesty's Chief Inspector of Prisons, Her Majesty's Chief Inspector of Prisons for England and Wales Annual Report 2012-2013 (The Stationery Office Ltd 2013), 89

also the negative effect of having a criminal record once released, which severely limits work opportunities. This would be defensible if the deterrent effect of serving time in prison reduced demand, but there is little empirical evidence supporting this. Rather, the example of Portugal before and after decriminalisation of drug possession point slightly in the opposite direction16, while in the Netherlands, at least with regard to cannabis, there remains little evidence that rates of consumption bear a strong relationship to its criminalisation17. Perhaps there is no better way to understand the undesirable effects of drug prohibition than to look at the United States' experiment in alcohol prohibition in the 1920's. During that era, organised crime soared18, most infamously illustrated by the rise and fall of the violent gangster Al Capone. Quality control was gone, leading to alcoholic products sold with dangerous cost-cutting adulterants19. Spirits replaced the more benign beer and wine as the beverage of choice because of its ease of transport and smuggling20. Adolescents drank more21. Corruption was rampant 22. Consumption went down 16 Portugal decriminalised drug possession but not trafficking in 2001 and drug use has decrease since, especially among adolescents. Glenn Greenwald, 'Drug Decriminalisation in Portugal â&#x20AC;&#x201C; Lessons for Creating Fair and Successful Drug Policies' (The Cato Institute 2009), 12-13 17 Dirk J Korf, 'Trends and Patterns in Cannabis Use in the Netherlands' (Parliament of Canada Hearing of the Special Committee on Illegal Drugs 2001) 18 William Bruce, 'Senate Judiciary Committee Hearings on National Prohibition' (1926), 15 19 Deborah Blum, 'The Chemist's War: The Little-told Story of how the U.S. Government Poisoned Alcohol During Prohibition with Deadly Consequences' Slate (2010 February 19) <http://www.slate.com/articles/health_and_science/medical_examiner/2 010/02/the_chemists_war.html> accessed March 5 2014 20 William Roberts, 'Senate Judiciary Committee Hearings on National Prohibition' (The National Prohibition Law Hearings 1926), 211 21 Horatio M Pollock, Mental Disease and Social Welfare (State Hospital Press 1942), 113

at first, but as crime networks developed alcohol was readily available again within half a decade23. No doubt opponents of drug decriminalisation would say that comparing the failure of alcohol prohibition in the US to the current drug prohibition regime is a flawed analogy because alcohol was such a widespread part of the social fabric that its prohibition never had a real chance of success. In essence, the 'floodgates' for alcohol were already wide open such that it was no longer possible to successfully curb its use. To decriminalise other drugs would be to open the floodgates for them as well, the argument goes, and might lead to the disastrous result of being unable to backtrack should a decriminalisation policy fail. However, this fear-based argument neglects the nuances of policy choices available, which would hardly open floodgates at all. It also does not account for the empirical evidence available to evaluate policy choices. We shall look at these alternatives now.

5. The Sound Alternatives At the bare minimum, the UK would benefit from using a rational approach to drug classification that is based on the best available science. A good starting point would be to consider the classification system developed by Dr David Nutt, former chair of the Advisory Council on the Misuse of Drugs in the Brown Government. His ranking of drugs

22 Jeffrey Miron and Jeffrey Zwiebel, 'Alcohol Consumption During Prohibition' (1991) 3675 National Bureau of Economic Research (NBER) Working Paper Series, 2 23 ibid 8

according to their harm was widely reported and is illustrated in the following table:

Table 1 â&#x20AC;&#x201C; Ranking of Harm for Selected Drugs. Note that cannabis has since been reclassified into class B 24. As we can see, the classification of the harm of drugs is poorly matched to their classification in terms of legal sanction. The most striking disparities are found in alcohol, which is among the most harmful drugs yet legal with some mild regulations, and ecstasy (aka MDMA), which is among the least harmful of drugs and a Class A drug. This scale has some limitations, one being that it does not consider whether the harms of certain drugs are inherent in the drugs 24 David Nutt and others, 'Development of a Rational Scale to Assess the Harm of Drugs of Potential Misuse' (2007) 369(9566) The Lancet 1047, 1050

themselves or the result of one or more of the aforementioned unintended by-products of prohibition. For example, in addition to overdoses, prohibition of heroin is also partly responsible for unsafe injection practices leading to the spread of diseases such as HIV. Another limitation to the scale is that it does not capture the particular characteristics of each drug and the origins of their harmful effects. This is particularly apparent when contrasting tobacco, which is highly addictive but only mildly psychologically impairing 25, and LSD, which is highly intoxicating yet barely addictive 26. Nevertheless, a reconsideration of the drug classification system in the UK would be a small step in the right direction. Of the available policy choices, however, the ideal one would eliminate the unintended consequences of prohibition while ensuring rates of consumption, and especially addiction, are lowered. One possible option would be to make some of these drugs available through the NHS by prescription to addicts27. This would severely cut down criminal syndicates' profits, as they would be stripped of their most lucrative customers. The cost to the state would surely be made up for by the savings in policing and incarceration costs. The supervision of a physician would also ensure drugs are taken in the least harmful way possible by providing clean needles, unadulterated drugs and careful doses. In addition, the physician could provide access to treatment information and resources. To some extent this policy already exists in the UK with methadone (a cousin of heroin) treatment used to

25 ibid 1051 26 ibid 1048 27 Switzerland has shown success with this approach for heroin addicts not responding to the usual methadone treatment. Peter Reuter and Alex Stevens, An Analysis of UK Drug Policy (UK Drug Policy Commission 2007), 77-78

mitigate withdrawal symptoms in recovering heroin addicts 28, but a more consistent and comprehensive policy, one aimed at addicts of other drugs as well, could be much more beneficial. Another, more radical option, would be to allow the sale of currently illegal drugs at designated government-run stores. Again, they would contain warning labels and resources for the addict to get help. They would also be heavily taxed to discourage use, but not so heavily taxed to allow the black market to remain viable (much like with alcohol and tobacco in many jurisdictions). This would have the advantage of completely eliminating the crime syndicates' drug profits while also providing a potential source of revenue for the state to re-invest in education and treatment. It could also potentially lower the stigma of drug use, making it easier for the addict to seek help.

6. The Unsound Alternatives One thing that is certain about these currently illegal drugs is that any decriminalisation or legalisation scheme cannot allow them to be sold like any other good in the market. If private companies were freely competing with each other to distribute currently illegal drugs, rates of addiction would soar as they sought to promote them through sophisticated marketing efforts like the ones used for alcohol. This highlights an important point, which is that the current drug policy towards alcohol is arguably far too relaxed. If the state is serious about public health, given that alcoholic products account for considerable social ills, â&#x20AC;&#x201C; including addiction and

28 ibid 37

its related diseases, violent crime, and car accidents29 â&#x20AC;&#x201C; manufacturers should not be allowed to market them so freely. Notably, rates of cigarette smoking have decreased dramatically in western countries due to various government policies that include the banning of cigarette advertisements30. Similar efforts aimed at lowering alcohol use would surely have a positive effect on public health as well. A policy that is worth mentioning is the one followed in Singapore. Singapore is one of the countries with the harshest drug laws, imposing the death penalty for illegal drug trafficking under its own Misuse of Drugs Act 31. Its draconian policies have been very effective at keeping drug use to very low levels. However, it is questionable that in a liberal democracy such as the UK it would be appropriate to impose such disproportionate criminal sanctions against drug use and distribution. A harsh policy mirroring Singapore's would indeed be effective but also highly unjust. As such, it would be far less desirable than some of the decriminalisation policies outlined above.

7. Conclusion

29 For a useful compilation of some of the impacts of alcohol on UK society see Rachael Harker, 'Statistics on Alcohol' (House of Commons Library Standard Note 03311 2012) 30 For example see Jane Ellison, 'Reducing Smoking' (Department of Health Policy Paper 25 March 2013) 31 For the specific penalties for various drug offences, which include caning, see the Second Schedule of the Act. Note part III of the Act also includes evidential presumptions that amount to a reverse burden of proof.

The UK and other Western countries have been mostly holding fast to a regime of drug prohibition since the early 1970's in spite of its terrible side effects. Ideologically diverse publications, including The Guardian32, Forbes33, and The Economist34, have all publicly opposed current drug policies, yet meaningful reform has yet to be seriously considered. It seems likely that a mixture of ideology, fear, inertia, and political cowardice all contribute to the perpetuation of the current policy regime in spite of the virtual certainty that the current policies are very harmful indeed. A more rational approach would at the very least reclassify the illegal drugs according to their harm, and at most move towards a regulated decriminalisation regime, while also reconsidering the under-regulated policy towards alcohol.

32 Russel Brand, 'Phillip Seymour Hoffman is Another Victim of Extremely Stupid Drug Laws' The Guardian (London 6 February 2014) <http://www.theguardian.com/commentisfree/2014/feb/06/russell-brandphilip-seymour-hoffman-drug-laws> accessed 5 March 2014 33 Jacob Sullum, 'The Wasteful War on Drugs is Doomed by Economics 101' Forbes (New York 10 April 2014) <http://www.forbes.com/sites/jacobsullum/2013/10/04/the-wasteful-waron-drugs-is-doomed-by-economics-101/> accessed 5 March 2014 34 Editorial, 'How to Stop the Drug Wars' The Economist (London 5 March 2009) <http://www.economist.com/node/13237193> accessed 5 March 2014

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Sociology of Law: The Effects of Prison and its Role in Society Anthony Bowen

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" â&#x20AC;Ś the criminal law in general is far too narrow and focuses far too much on causing pain for individuals. This leads to factors causing crime such as poverty and social exclusion being ignored when these are often the principle causes. "

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1. Introduction Over the years the role of the prison has changed from storing offenders before execution through to the prison ships transporting convicts to the Americas and Australia and eventually to prison as the punishment itself in the mid-19th century.35 The evolution since has slowed and modern British prisons are large, overcrowded and expensive institutions which according to statistics are not effective at reforming their inmates.36 With continuing questions over the effectiveness of the prison37 as an institution, this essay will look at the effect that prison has on inmates and on crime rates. It will consider whether prison can still play a role in society and whether it is still a valid form of punishment. The third part of this essay will look at alternatives to prison. The main argument put forward is that the prison is not a panacea with regard to punishment and is in fact an expensive and ineffective institution.38 It will be argued that it is now time to consider reforming the prison and looking more seriously at alternatives.

Y Jewkes and H Johnston, Prison Readings - A critical introduction to prisons and imprisonment (Willan Publishing, 2008) 2. 36 Ministry of Justice, â&#x20AC;&#x2DC;Proven Re-offending statistics quarterly bulletinâ&#x20AC;&#x2122; (www.gov.uk 25th April 2013) <www.gov.uk/government/publications/proven-re-offending--2> accessed 16th December 2013. 37 A Giddens, The Consequences of Modernity (Cambridge Polity Press, 1990) 11. 38 Ibid, 12.

2. The effectiveness of prison The prison can be viewed as “an ensemble of conflicting forces”.39 On the one hand by removing offenders from society, crime can be reduced.40 However by doing so this may create a better class of criminal. The “differential association theory”41 describes how offenders improve their skills through association and training by professional criminals in prison.42 Perhaps the best description of prison’s effects was given by Gresham Sykes43 who described the 5 deprivations of liberty, goods & services, heterosexual relationships, autonomy and security.44 These capture the essence of how prison punishes offenders, but by exerting this level of control over offenders it is submitted that these controls “grate and irritate” creating resistance rather than prompting offenders to become a good citizen.45 The best evidence of this is the British reoffending rate which according to recent figures for 2010 was 57.6% for offenders receiving less than 12-month sentences.46 Interestingly out of this 57.6%, 31.4% of offenders re-offended within 2 months

D Garland, Punishment and Modern Society - A study in social theory (Clarendon, 1991) 21. J Sim, ‘Abolitionism’ in E Mcaughlin and J Muncie (eds), The Sage Dictionary of Criminology (Sage, 2001) 37. 41 EH Sutherland, Principles of Crimonology (5th edn, Lippincott 1955) 3. 42 Ibid, 21. 43 G Sykes, The Society of Captives (Princeton University Press, 1958). 44 Ibid, 71. 45 R Sparks and A Bottom, ‘Legitmacy and order in prisons’ in Y Jewkes and H Johnston (eds), Prison Readings - A critical introduction to prisons and imprisonment (Willan Publishing, 2008) 81. 46 Ministry of Justice, ‘Proven Re-offending statistics quarterly bulletin’ (www.gov.uk 25th April 2013) <www.gov.uk/government/publications/proven-re-offending--2> accessed 16th December 2013. 40

of their release.47 This reoffending rate has been steady or increasing for a decade, the conclusion therefore is clear that prison “rarely or never achieves its objectives”. 48 What prison is effective at doing is constantly reminding offenders that they “have foregone their status to be a trusted-member of society”.49 This social exclusion will deter some offenders from re-offending however statistics show that offenders are often not strangers to social exclusion. 50 Offenders are 13 times more likely to have been in care as a child are 13 times more likely to have been unemployed and 10 times as likely to have been a regular truant.51 These reminders therefore may not set the offenders back to behaving in an acceptable societal manner but may confirm offenders in their criminality.52

3. The effects of prison The most important measure of prison’s efficacy as a punishment is the thoughts of the victims. In recently published statistics by the Ministry of Justice it was shown that 65% of victims were happy with the length of sentence the offender received.53 Being locked away and forgotten 47

Ibid. A Giddens, The Consequences of Modernity (Cambridge Polity Press, 1990) 152. 49 G Sykes, The Society of Captives (Princeton University Press, 1958) 73. 50 Social Exclusion Unit, Social Exclusion Unit Report - Reducing Reoffending by Ex-prisoners July 2002 (Prison Reform Trust, December 2004). 51 Ibid 5. 52 N Morris and DJ Rothman, The Oxford History of the Prison - The practice of punishment in western society (OUP, 1998) 10. 53 Ministry of Justice, Satisfaction and willingness to engage with the Criminal Justice System - Findings from the Witness and Victim Experience Survey 2010-11 (gov.uk February 2013) 48

about however is difficult and some offenders state that they “lose themselves in prison” and become “an object”. 54 This process can happen very quickly as evidenced by the “Stanford Prison Experiment”, case and point prisoner 8612.55 The effects of this can be fatal as evidenced by recent Howard League statistics for deaths in custody for 2013 which were the highest for 15 years. 56 It is unlikely that all these deaths are purely psychiatric problems and therefore this has led some commentators to argue they are an “institutional problem”.57

4. Prisons role in society The role of the prison in society has changed considerably over the centuries. Rusche and Kirchheimer argue that this shift was not driven by a need to treat offenders more humanely but was down to economics. 58 There was significant demand for manpower and the prison provided an able workforce. 59 However this quickly changed and prisons remain as wasteful of human life and extra labour as their <www.gov.uk/government/uploads/attachment_data/file/197099/satisfac tion-willingness-to-engage-with-cjs.pdf> accessed 2nd January 2014. 54 R Wyner, From the Inside (Aurum, 2003) 18. 55 C Haney et al, A study of prisoners and guards in a simulated prison (1973) 30 Naval Research Review 4, 12. 56 The Howard League, Analysis of deaths in custody in England and Wales 2013 (howardleague.org, 28th January 2014) <d19ylpo4aovc7m.cloudfront.net/fileadmin/howard_league/user/pdf/Pris on_watch/Death_in_custody_annual_report_2013.pdf> accessed 1 st February 2014 57 A Liebling, Suicides in Prison: Ten Years On (2011) 159 Prison Service Journal 35, 36. 58 G Rusche and O Kirchheimer, Punishment and Social Structure (New York, 1968) 137. 59 D Garland, Punishment and Modern Society - A study in social theory (Clarendon, 1991) 103.

predecessor the hangman’s noose. The existence of the prison spans several centuries and thus it is difficult to imagine punishment without thinking of prison. Foucault argues that the prison is “deeply rooted”60 in modern society to the extent that it is an important “societal characteristic”. 61 Foucault also argues that prison plays an unspoken role in society that it “controls the working class” by making habitual criminals that can be identified and thus effectively managed by law enforcement.62 However in terms of reforming criminals and lowering crime, prison has been less than effective which has led to calls for its abolition. 63

5. Privatisation of prisons Perhaps the biggest problem with prison is the amount it costs to maintain. This has led to privatisation by the government in a bid to reduce these costs, however this brings with it issues of legitimacy. The most important role of prison is punishment for an individual who has committed a crime against the rest of society.64 Prison privatisation therefore raises issues as to whether private prisons will have higher standards than public ones which will undoubtedly raise questions in the media and will be ceased upon by politicians as being “soft on crime”.65 Conversely if standards are too 60

M Foucault, Discipline and Punishment - The birth of the prison (Penguin, 1977) 149. 61 Ibid. 62 Ibid 151. 63 D Garland, Punishment and Modern Society - A study in social theory (Clarendon, 1991) 155. 64 M Foucault, Discipline and Punishment - The birth of the prison (Penguin, 1977) 109. 65 M Cavadino and J Dignan, ‘Prison Privitisation: Panacea or Pandora’s Box’ in Y Jewkes and H Johnston (eds), Prison Readings - A critical

low by private prisons then this could pose questions to the government about human rights issues regarding these prisons. Prison privatisation therefore could severely undermine prison’s role in society. Conversely it could enhance its role and breathe some life into this troubled institution. The main argument for privatisation is that of “free competition”66 and by bringing more parties to the table this could spark new ideas about prison and rehabilitation as well as driving efficiency and quality of service. 67 The potential gains are attractive but it is unclear if these can or will ever be achieved.

6. Punishment and alternatives to prison Over the centuries theories of punishment have slowly evolved from physical punishment or the “an eye for an eye”68 theory to the “institutional solution” 69 i.e. the prison. As discussed above, the prison as a punishment is not effective and Durkheim argues it has “lost its custodial and preventive power”.70 David Garland argues that disillusionment with prison has given rise to the notion of “rehabilitation” which is seen as the new philosophy of

introduction to prisons and imprisonment (Willan Publishing, 2008) 65. SB Kammerman and AJ Kahn, Privitisation and the Welfare State (Princeton University Press, 1989) 14. 67 M Cavadino and J Dignan, ‘Prison Privitisation: Panacea or Pandora’s Box’ in Y Jewkes and H Johnston (eds), Prison Readings - A critical introduction to prisons and imprisonment (Willan Publishing, 2008) 68. 68 EM Peters, ‘Prison before the prison’ in N Morris and DJ Rothman (eds), The Oxford History of the Prison - The practice of punishment in western society (OUP, 1998) 3. 69 T Mathiesen, Prison on Trial (Sage, 1990) 5. 70 D Garland, Punishment and Modern Society - A study in social theory (Clarendon, 1991) 22. 66

punishment.71 Rehabilitation in prisons has traditionally been ineffective however one of Britain’s therapeutic prisons (HMP Grendon) has shown that it can be.72 Grendon’s reconviction rate is 8% and if offenders complete therapy reoffending falls by 20-25%.73 Grendon allows offenders to progress personally rather than “reinforcing that it’s me against the system”.74 At Grendon, offenders have daily therapy for up to 18 months where they take responsibility for their actions and explore the causes of them and in turn are helped to a potential solution. 75 Grendon therefore is proof that prison can be effective and that incarceration can have positive results. In short, facilities such as Grendon could be a potential solution with wider application. However, rehabilitation as a continuing philosophy of punishment is, in Garland’s view “problematic at best and dangerous at worst”.76 In Durkheim’s view the best philosophy of punishment would be “purely expressive condemnation”. 77 This philosophy of punishment is seen in perhaps the best alternative to prison, restorative justice. Restorative justice is a process which brings victims and offenders together in an attempt to repair the harm.78 This can allow both offenders and victims to get closure for events of the crime. Research on restorative 71

Ibid, 103 S Weale, Softly Does It in Y Jewkes and H Johnston (eds), Prison Readings - A critical introduction to prisons and imprisonment (Willan Publishing, 2008) 94. 73 Ibid. 74 Ibid, 97. 75 Ibid, 98. 76 D Garland, Punishment and Modern Society - A study in social theory (Clarendon, 1991) 6. 77 Ibid 102. 78 Ministry of Justice, New victims funding for restorative justice (gov.uk 19th November 2013) <www.gov.uk/government/news/new-victims-fundingfor-restorative-justice> accessed 14th December 2013. 72

justice pilots in the UK have shown that 85% of victims that participated were happy with the outcome. 79 Concurrent with this was a 14% decrease in re-offending following the process.80 The government is due to invest heavily in this process in a bid to cut re-offending rates. Shapland et al however have warned that by making victims turn the other cheek they go from a position of strength to serving the offender.81 This is of course completely at odds with the traditional views of punishment but may be a step in the right direction. This allows the moral conscience of society to be expressed through victims and their families rather than punishment being monopolized by the state. 82 Restorative justice is a viable option and it takes the power to punish from the state’s hands and gives it to the citizens. The flaws in the prison system have led to a groundswell of support for capital punishment to be re-instated in Britain. This is somewhat driven by the media and politicians being “tough on crime” however if the return of capital punishment was seriously considered, this could be a mistake. This would take theories of punishment back to medieval times and a “retribution” system which would be antiquated and inhumane.83 In the USA, where the death penalty is still legal, there is popular support for it but as an effective method of crime control it is poor.84 A brief look at the murder rates per 100,000 in the USA for 2012 versus the UK shows that they 79

Ibid. Ibid. 81 Shapland J et al, Does Restorative Justice affect reconviction? The fourth report from the evaluation of three schemes (Ministry of Justice Research Series 10/08, 2008). 82 D Garland, Punishment and Modern Society - A study in social theory (Clarendon, 1991) 236. 83 N Morris and DJ Rothman, The Oxford History of the Prison - The practice of punishment in western society (OUP, 1998) 11. 84 D Garland, Punishment and Modern Society - A study in social theory (Clarendon, 1991) 247. 80

were 4 times higher in the USA despite their capital punishment policy.85 Clearly as a deterrent, capital punishment is antiquated and ineffective. To return to policies of capital punishment would be to take the modern philosophy of punishment back to square one.

7. Is current thinking in this area too narrow? Is a wider lens required? As argued above, prison is not the greatest vehicle for containing and reducing crime. In light of this it is well worth considering some of the proposals above but it is also worth looking at the bigger picture. Bookman and Maguire have argued that there is a strong link between â&#x20AC;&#x153;homicide rates and poverty levelsâ&#x20AC;?86 in the UK. They propose that in order to reduce crime long term policy needs to recognise this and address the broader issues. Bowling states that the surge in crime rates in New York in the late 1980s was directly attributable to economic downturn. 87 He notes that the introduction of social and economic policies to address the poverty in the mid 1990s led to a dramatic fall in crime rates.88 Looking at the bigger picture also requires looking at the criminal justice system in a different light. Hillyard and Tombs have explored crime and the criminal justice in zemiology terms and some of their conclusions are 85

Federal Bureau of Investigation, Crime in the United States 2012 (fbi.gov 16th September 2013) <www.fbi.gov/about-us/cjis/ucr/crime-in-theu.s/2012/offenses-known-to-law-enforcement> accessed 3rd January 2014. 86 F Bookman and M Maguire, Reducing Homicide: a review of the possibilities (Home Office Online Report 01/03, 2003) 2. 87 B Bowling, The Rise and Fall of New York Murder (1999) 39(4) Brit J Criminol 531, 537. 88 Ibid, 538.

particularly interesting. Regarding prison they argue that prisons do not rehabilitate or deter but they create greater social harms such as loss of family, job, home and exclusion from society.89 These harms are often disproportionate to the crime that was originally committed. 90 They argue that the criminal law in general is far too narrow and focuses far too much on causing pain for individuals. This leads to factors causing crime such as poverty and social exclusion being ignored when these are often the principle causes. 91 A potential solution is to look more widely at the harms that affect people from “cradle to grave”. 92 This would allow policy responses to be more accurate in their application. By looking widely at harms, empirical data could be collected allowing areas of priority to be identified and targeted.

8. Conclusion In conclusion the prison is not a panacea and for many offenders it is not effective. For these offenders the best solution is direct them towards restorative justice or therapeutic prisons like HMP Grendon. Capital punishment is not something that should be considered because it will only set back the progress that could be potentially made by looking at the problems with current punishment apparatus. However looking at punishment mechanisms may not be enough to stop offenders particularly from becoming career criminals. A more holistic approach may be required in order P Hillyard and S Tombs, ‘Beyond Criminology’ in P Hillyard, C Pantazis and S Tombs (eds), Beyond Criminology: Taking Harm Seriously (Pluto Press, 2004) 16. 90 Ibid. 91 Ibid, 18. 92 Ibid, 19. 89

to look at our education system, social care and medical systems to spot these trends early. This will allow the behaviour and inequalities to be dealt with at an early stage rather than waiting for these behaviours to manifest in committing crimes. The prison certainly has a role to play in society but society must also help the prison if real progress is to be made for all parties involved.

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Above and Beyond Consumer Protection: Addressing the realities of online shopping and recommendations for consumer policy. Pamela Patterson

"The 21st century has brought on an information overload, which has been regarded as both a benefit and a detriment to consumers. ... because of the structural and functional limitations to consumer memory, the information is never fully digested."

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1. Introduction Distance selling used to operate on rudimentary codes of practice and local authority trading standards. 93 Consequently, consumers and businesses were reluctant to conduct e-commerce over the Internet.94 Given the lack of ability to inspect merchandise before purchasing goods online, consumers could only rely on the description offered on the website and trust in the good faith of the supplier. Evidently this places the consumer in a vulnerable position. For example, what if the product is damaged upon delivery? What if they dislike like the product? What if the supplier is fraudulent? This situation can be ameliorated if the consumer is well aware they have certain legal rights before they enter into a contract of sale online, such as a right to return goods and obtain a refund. This essay will start by briefly highlighting some of the ways in which the current Distance Selling Directive 95 has helped protect online consumers. It will proceed to focus on the new Consumer Rights Directive, 96 and consider the effectiveness of Article six. It will be argued that Article six is lacking precision with regard to it’s application and more research is needed to understand behavioural economics before the provision comes into full effect within the next few months. Finally, this paper will propose solutions such as the

K Henderson and A Poulter, ‘The Distance Selling Directive: Points for Future Revision’ [2002] 16 IRLCT 289, 290. 94 Ibid, 289 95 Directive 97/7/EC Of The European Parliament And Of The Council Of 20 May 1997 96 Directive 2011/83/EU Of The European Parliament And Of The Council of 25 October 2011 93

use of summary boxes, aesthetic & technical recommendations and behavioural economic considerations.

2. The Distance Selling Directive Formally referred to as, Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts was the European Unionâ&#x20AC;&#x2122;s initiative to change the face of distance selling. Many provisions within this directive have been regarded as adequate to consumer protection. For example, the consumer has the right to withdraw the contract within 7 working days (after the receipt of the ordered goods) without incurring a penalty or having to give reason. 97 This gives the consumer added security by providing the opportunity to inspect the goods as if they were in a traditional shopping environment.98 Furthermore, where the consumer has withdrawn the contract, they have the right to a refund within 30 days.99 Consumers are also protected from unsolicited selling;100 fraudulent uses of payment cards, 101 and also have the right to delivery of goods or service within 30 days.102 Taken together, these provisions work to protect the interest of consumers. It is worth noting the Distance Selling Directive was adopted in 1997, a time where consumer protection issues

Article 6 (1) Directive 97/7/EC A Poulter, K Henderson & D McMenemy [2003] The distance selling directive: consumer champion or complete irrelevance? page 4 99 Article 6(2) Directive 97/7/EC 100 Article 9 Directive 97/7/EC 101 Article 8 Directive 97/7/EC 102 Article 7(1) Directive 97/7/EC 98

mainly related to mail-shots and telephone shopping. 103 Today, the Internet has given birth to e-commerce. Although the DSD has been amended subsequently, ecommerce continues to change the face of distance selling. Consequently, critics called for even more protection for online shoppers. Furthermore, given the ‘interconnectedness’ that the Internet brings, online shopping is unlikely to respect national legal boundaries. 104 Thus, critics also called for a levelled playing field across Europe.

3. The Consumer Rights Directive The Consumer Rights Directive will replace the current Distance Selling Directive as of 13 June 2014.105 There are many other provisions contained within the new Consumer Rights Directive, which have been regarded as step in the right direction for online consumers. For example, Article six contains a set of information requirements online retailers will have to incorporate into their websites. These requirements go far beyond those set out in the previous Distance Selling Directive.106 For example, subsection 1(o) requires information about the duration of the contract (where applicable) or, if the contract term is indeterminate, the condition for terminating the contract.107 Subsection 1(p) requires information about the consumer’s obligations under 103

A Poulter, K Henderson & D McMenemy [2003] The distance selling directive: consumer champion or complete irrelevance? page 1 104 Ibid, page 13 105 European Commission, ‘The Directive on Consumer Rights’ <http://ec.europa.eu/justice / consumer-marketing/rightscontracts/directive/index_en.htm> accessed 19 November 2012 106 Steven Weatherill, ‘The Consumer Rights Directive: how and why a quest for coherence has (largely) failed” [2012] 49 CMRL 1279, 1293 107 Directive 2011/83/EU Of The European Parliament And Of The Council of 25 October 2011

the contract.108 Furthermore, subsection 1(t) requires information about the possibility of having recourse for an out of court complaint and a redress mechanism to which the trader is subject, as well as the methods for having access to it.109 Perhaps it will be a formidable burden for the seller, but by no means is this anything more than what a sensible trader would wish to provide anyway. The addition of the new sections puts the consumer in a better position. Central to the philosophy behind Article six is the belief that disclosing this information is fundamental to consumer protection.110 This is advantageous because as consumers become better equipped with the right information before they make a purchase online, they are better able to protect their interests. While all of this is perfectly sensible on paper, whether or not it is effective in practice remains in question. However, the study of behavioural economics may provide an answer. This field of study endeavours to understand economic behaviour and its consequences.111 It extends the conventional economic theory of human behaviour by drawing on psychology, sociology and neuroscience.112 For example, behavioural economics suggest consumers may not always respond to the information provided as readily and rationally as one would imagine. 113 Presumably, they may choose not to consult the information in its entirety. Thus, it is arguable whether or not Article 6 is 108

Ibid Ibid Geriant Howells, “The Potential and Limits of Consumer Empowerment by Information” [2005] 32 Journal of Law and Society 349, 350 111 E Cartwright , Behavioral Economics (Routledge , London 2011) 4 112 Ibid. 113 Geriant Howells, “The Potential and Limits of Consumer Empowerment by Information” [2005] 32 Journal of Law and Society, 349 109 110

in fact effective. The 21st century has brought on an information overload, which has been regarded as both a benefit and a detriment to consumers. 114 What’s more, because of the structural and functional limitations to consumer memory, the information is never fully digested. 115 Herbert Simon first explored this idea of “bounded rationality” which refers to the fact that humans have “finite cognitive abilities”.116 Bearing this in mind, how can we be sure that consumers will consult, let alone remember all of the information provided under Article six. One of the ways in which humans seek to compensate for this limitation is to use mental heuristics.117 Kahneman and Tversky explain that “rules of thumb” are an example of a heuristic in which the probability of an event occurring is judged by how easy it is to recall other instances of that nature.118 For example, people are more likely to believe that the probability of getting into a car accident is higher if they have witnessed a car accident in the past.119 Thus, it is probable that a consumer may disregard the important information if they have never had any problems in the past with online shopping—where they would need to consult it. As we can see, mental heuristics can sometimes lead down a path of illogical conclusions. Therefore it is important to understand that consumers will sometimes deviate from the standard rational choice model that the

Naresh Malhotra, “Information and Sensory Overload” [2006] 1(3-4) Psychology & Marketing 9, 10 115 E O’Donnell & S Brown, “The Effect of Memory Structure and Function on Consumers’ Perception and Recall of Marketing Messages: A Review of the Memory Research in Marketing” [2011] 15 AMSJ 71, 71 116 C Jolls, C Sustein & R Thaler, “A Behavioral Approach to Law & Economics” [1998] 50 SLR 1471, 1477 117 Ibid, 1477 118 Ibid, 1477 119 Ibid, 1477 114

Directive is adhering to.120 Thus, an understanding of the nature of how consumers think and behave has important implications for the new directive. Unfortunately, there is wide concern of an apparent lack of guidance for how the online trader should regulate this information on his/her website. For example, The Office of Fair Trading noted, “it is much easier in legislation to say that this information should be given than to say how it should be given”.121 In other words, simply providing information in an effort to protect consumers is a blanket solution to a deeper-rooted problem. What good is the information provided if it’s not going to be consulted. It is argued that policy makers should take the extra step and prescribe specific guidelines for how the information should be provided. This will ensure that consumers will be well informed and not cumbered with indigestible information. 122 The new directive as it currently stands only requires that the information be provided “in a clear and comprehensible manner”.123 In light of the way consumers truly think and behave, this prescription is no longer satisfactory. The inherent tensions between providing clear information to consumers, their instinctive response to the information and how this is to be carried out seems to suggest that the Consumer Rights Directive is lacking.

Bryan Jones, “Bounded Rationality” [1999] 2 Annu. Rev.Polit.Sci 297, 308 121 European Union Committee, EU Consumer Rights Directive: Getting It Right’ (HL Paper 126-I, 2009) para 120 122 Ibid, para 120 123 Article 6 Directive 2011/83/EU 120

4. Solutions The logical solution is to issue out specific guidelines for online retailers as to how the information should be regulated. For example, bigger font sizes, notable colour selection and judicious placement. 124 Although this suggestion can be seen as prejudicial to people with disabilities there are ways to accommodate their needs to an extent. For example, the new Directive should require retailers to make their web pages compatible with assistive technologies. If a visually impaired consumer is navigating through an online store, and this particular website contains notable graphics, so long as the graphic has the accessibility feature, such as an informative alt tag, the disabled consumer is better protected.125 If on the other hand it is not compatible, the screen reader may speak sequences of incomprehensible letters and numbers rather than sensible text. 126 Nevertheless, more research is needed in order to understand how to effectively translate sensory information across different modalities beyond the information alt tag. Furthermore, a future directive should consult behavioural economics in an effort to circumvent consumer tendencies. For example, Sustein & Thaller talk about ‘avoiding the pitfalls of over optimism’.127 This is the idea that humans tend to be overoptimistic and this feature of 124

C Haugtvedt, K Machleit, and Y Richard, Online Consumer Psychology: Understanding and Influencing Consumer Behavior in the Virtual World (Taylor & Francis Psychology Press 2005) 459 125 T Childers and C Kaufam-Scarborough, “Expanding opportunities for online shoppers with disabilities” [2009] 62 JBR 572, 573 126 Ibid, 574 127 C Jolls, C Sustein and R Thaller, “A behavioral approach to law and economics” [1998] 50 SLR 1473, 1537

behaviour has strong implications for policy. Consider a safe driving campaign. Research has shown that slogans like, “Drive defensively: watch out of the other guy!” is more effective that simply, “Drive safe!”128 This because we are responding to the fact that most people tend to believe they are unusually safe drivers.129 A similar approach can be taken with the Directive. The information requirements can be labelled in such a way as to warn the consumer about protecting himself or herself against the seller, rather than for his or her own benefit. Alternatively, Consumer Focus suggests the use of summary boxes.130 This is commonly used in the financial services market, and would idealistically allow the consumer to get the information they need without having them “drowned in a slot of legalese”.131 This highlights the paradox that sometimes less information can hold a greater utility so long as it consists of the right bits of information. Or perhaps the commission intended this to be an area of flexibility where member states ought to regulate according to the needs of their national consumers. For example, studies suggest that UK consumers tend to respond more to information about unsatisfactory deliveries and incorrect orders—one of the main reasons for abandoning online shopping. 132 However, the argument here is that this would inherently contradict the integrity of the harmonization the directive purports to establish. 128

Ibis, 1537 Ibid, 1537 130 European Union Committee, ‘EU Consumer Rights Directive: Getting it Right’ (HL Paper 126-I, 2009) para 120 131 Ibid, para 120 132 H Robinson, F Dall’Olmo Riley et all “The role of situational variables in online grocery store shopping in the UK” [2007] 7 TMR 89, 99 129

5. Conclusion The Consumer Rights Directive has been a laudable initiative, and certainly a step in the right direction from the previous Distance Selling Directive. For example, one cannot deny the significance of Article 6 and how providing consumers with relevant information will ameliorate any hesitations and be the catalyst to e-commerce. However, as this essay has highlighted there are still significant problems that need to be further developed. The plague of information overload and the Commissions apathy towards behavioural economics threatens the effectiveness of Article 6. There is a habitual nature in consumer policy to gear toward an average consumer who is imbued with all the necessary skills to be reasonably informed.133 If information is to be beneficial, information must be digestible and tailored to a realistic consumer. Behavioural economics unveils a valuable perspective from the consumer’s point of view. The pioneers in this field of study have explained that humans are ‘neither rational, nor capricious’. 134 Consequently, effective legislation needs to address these realities and work alongside behavioural economics in order to combat this idea of ‘bounded rationality’ and ‘cognitive biases’. These limitations are hindering the effectiveness of Article 6. An appreciation of this insight will enable consumers to participate more effectively in the economy. As it currently stands, the commission offers no supplementary guidance on how to effectively administer the information requirements and commentators generally agree that this approach will Geriant Howells, “The Potential and Limits of Consumer Empowerment by Information” [2005] 32 Journal of Law and Society 349, 359 134 Ibid, 359 133

result in ambiguity. This is especially true if Member States will choose to implement the directive by simple â&#x20AC;&#x2DC;copying outâ&#x20AC;&#x2122; the provisions. For these reasons, it is suggested the Commission consult behavioural economics, make use of summary boxes and/or consider presentational aesthetics in an effort to grab the attention of the consumer. At the end of the day, there is no way of ensuring that every single online shopper has read the information in an effort to protect their interest, but at the very least we can rest assured that we did our very best to bring it their attention.

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Conspicuous Disability Discrimination in S.1(d) of the Abortion Act, with a comparison to the approach to the Severely Disabled Neonate. Josh Gibbs

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1. Introduction The English legal system provides that to intentionally and pro-actively end the life of an individual separated by birth is a criminal offence and this extends to those individuals in the most pitiable of states – for example the severely-disabled neonate.135 Meanwhile the termination of pregnancy 136 exceeding the usual 24 week limit, 137 insofar as it complies with s.1(d) of the Abortion Act 1967138, is prescribed by law.139 Specifically s.1(d) permits an abortion at any stage of gestational development where ‘two medical practitioners are of the opinion, formed in good faith, that there is substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped’. Though it only represents a small proportion of the total number of abortions conducted every year, this is an aspect of legislation the government’s own Disability Rights Commission has described as ‘offensive to many people […] and reinforcing negative stereotypes of disability’. 140

135

From Latin, ‘neonatus’, newborn, a newborn child, or one in its first 28 days. 136 An offence under Offences Against the Person Act 1861 c.100 s.58 and s.59 unless a defence can be found under the Abortion Act 1967 c.87 as amended by the Human Fertilisation and Embryology Act (1990) c.37. 137 Abortion Act 1967 c.87 s.1(a) 138 The Abortion Act 1967 c.87 as amended by the Human Fertilisation and Embryology Act (1990) c.37. 139 s.37 Human Fertilisation and Embryology Act 1990 removed liability under the Infant Life Preservation Act 1929 140

As quoted in Kristin Savell, 'Turning Mothers into Bioethicists: Late Abortion and Disability' in B Bennett, T Carney and I Karpin (eds), The Brave New World of Health (The Federation Press, Sydney 2008) 97.

There is of course a wider debate as to whether abortion can ever be morally justified and similarly whether quality of life in a severely-disabled neonate (or any individual) should ever take precedence over the sanctity of their life – the classic euthanasia and abortion debates. This article is not intended to advance a ‘pro-life’ argument, but instead is concerned with the differing medical standards, applicable here on the basis of ‘risk’ of disability - the conspicuous pre-birth discrimination codified in law. This article will argue that s.1(d) of the Abortion Act provides a legal framework that is inherently discriminatory and is out of line with modern principles of equality. It will argue that the legislation holds ‘serious handicap’ as determinable, when ethically it should be concerned with the concept of ‘serious suffering’; because having a disability does not itself prevent a positive quality of life. At the present time the law holds ‘birth’ as legally transformative: this is a neat threshold, but from an ethical perspective is an unsound and arbitrary one, which in terms of foetal viability – the point at which the foetus will survive if delivered prematurely - is medically irrelevant and morally illogical. By means of contrast the article will consider the approach of the law to the severely disabled and potentially suffering neonate, or new born child.

2. Legal position of the severely-disabled neonate and the unborn foetus conforming to s.1(d) For a severely disabled neonate – obviously lacking ‘Gillick competence’,141 the legal standard of competence required for the individual to be determinative of their interests – the 141

Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 (HL)

legally prescribed approach is treatment conducive of the child’s “best interests”.142 Unlike the foetus, the neonate is protected by the criminal law, the ECHR and the Human Rights Act;143 providing inter alia, the right to life144 and a prohibition of inhuman and degrading treatment. 145 The foetus, conversely, has no rights in utero146 and is confined to semantic notions of ‘moral significance’147 possessed by ‘a unique organism’148. The severely-disabled neonate may only therefore be “killed” (note the inverted commas) under the specific parameters of it being in their ‘best interests’ to have life-sustaining treatment (possibility artificial nutrition and hydration) ‘omitted’149 where a reasonable body of medical opinion would do the same – in other words in compliance with the ‘Bolam standard’.150 Or alternatively where death would be an ‘incidental’151 consequence of pain relief.152 There are distinguishing ‘unique features’ of selective non-treatment of the neonate compared with the approach for adults - caused in part according to Mason, McCall-Smith, to the neonate never having been capable of expressing their feelings. 153 There are 142

F v West Berkshire Health Authority [1989] 2 All ER 545 The Human Rights Act 1998 c.42 144 Ibid, Art. 2. 145 Ibid, Art. 3. 146 Paton v BPAS [1979] QB 276 147 Vo v France (2005) 40 EHRR 12 148 Attorney-General's Reference (No 3 of 1994) [1997] 3 All ER 936 (HL), per Mustill LJ 149 Airedale NHS Trust v Bland [1993] AC 789. 150 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 151 R v Adams [1957] Crim LR 365, per Devlin J 152 The so called ‘doctrine of double effect’ - see D. Price ‘What shape to euthanasia after Bland? Historical, contemporary and futuristic paradigms’ (2009) 125 LQR 142 153 th Mason & McCall Smith’s, ‘Law and Medical Ethics’ (8 ed, OUP 2011) p.476 143

limited cases inferring a liberal attitude to selective nontreatment of the disabled neonate; such as Re C (a minor)(wardship: medical treatment)154 and Re J (a minor)(wardship: medical treatment).155 Ultimately however Templeman LJs judgement in Re B (a minor) 156 in overturning the first-instance decision of Dunn LJ reinforces the position that non-treatment must equate with the best interests of the neonate and a prognosis of reasonable quality of life following treatment transcends disability and parental wishes. Failure to respect that potentially risks criminal liability, including a charge of murder,157 loathed though the courts generally are to prosecute doctors acting with apparent bona fides. On that basis birth appears legally â&#x20AC;&#x2DC;monumentalâ&#x20AC;&#x2122;. 158 Statistically however, if delivered prematurely a healthy foetus will have had a 50%+ chance of viability since its 24 th week of gestation,159 though obviously this is subject to the circumstances of the individual case. The point nevertheless remains, that the medical and legal positions appear difficult to reconcile; exacerbated through the waiving of gestational time limitations under s.1(d). The ethical difficulties of permitting the termination of a potentially viable foetus under s.1(d) are compounded by phraseology difficulties that parliament and the courts have 154

Re C (a minor) (wardship: medical treatment) [1989] 2

155

Re J (a minor) (wardship: medical treatment) [1990] 3

All ER 782 All ER 930 156

Re B (a minor) [1990] 3 All ER 927 157 R v Arthur (1981) 12 BMLR 1 158

M. Gross, 'Abortion and Neonaticde: Ethics, Practise and Policy in four nations' Bioethics 2002, 16 3 20 p.217 159 Tyson JE, "Intensive care for extreme prematurity--moving beyond gestational age". N. Engl. J. Med. 2008 358 (16): 1672â&#x20AC;&#x201C;81

avoided addressing. Kennedy and Grubb observe that the phrase “handicapped” is so out-dated as to cause offence.160 More concerning is Scott’s suggestion that the phrases “substantial risk” and “severely handicapped” are fundamentally moral questions and yet judicial deference to medical opinion (a common feature of medical law) renders them inappropriately within the carte blanche of medical discretion.161 Indeed, Reverend Jepson may have been well advised to abandon her application for judicial review162 following the application of s.1(d) on the basis of a (remedial – entirely correctable) bilateral cleft palate. As Sir George Baker said 163 it would be a ‘foolish judge’ who would seek to interfere with the discretion of the doctors acting under the Abortion Act without clear mala fides. And yet the idea that the new born child with a correctable164 bilateral cleft palate could effectively be euthanized, post-birth as “severely” handicapped would be repugnant to most, and so the positions seem difficult to reconcile.

3. Justifying s1(d) Despite those rare cases, in 2011 2,307 abortions were conducted under s.1(d) (1% of total figure 189,931). 165 Of 160

I. Kennedy and A. Grubb, ‘Medical Law’ (3rd edn.) (Butterworths 2000) at 1424–8 161 R. Scott ‘Interpreting the disability ground of the Abortion Act’ (2005) 64 CLJ 388 162 R v Chief Constable of West Mercia ex p Jepson [2003] EWHC 3148 163 Paton v BPAS [1979] QB 276 164 Emphasis by Scott - R. Scott ‘Interpreting the disability ground of the Abortion Act’ (2005) 64 CLJ 388, p.393 165 Dept. of Health, 'Abortion Statistics, England and Wales: 2011' Published May 2012

those 46% were on grounds of congenital malformation and 39% were on grounds of chromosomal abnormality - Down’s Syndrome contributing over 56%.166 146 abortions were conducted after 24 weeks gestation.167 Ethicists such as Sumner argue that foeti over 24 weeks gestation have ‘full moral standing’ – pointing to them being fundamentally alive, intrinsically valuable, probably sentient168, rational and viable.169170 And yet from a sociological perspective in 2011, we as a society terminated 146 pregnancies of this gestation with no more justification than they were probably disabled. Importantly, Scott suggests that 'we have not necessarily been honest about whose interests the disability section of the Act is capable of protecting'.171 Looking at the situation objectively, Sheldon and Wilkinson suggest that whether s.1(d) is ethically justifiable depends on whether it’s operation is purported to be in the interests of the foetus, or the parents.172 Although the parents have varying influence173 over treatment of the (post birth) severelydisabled neonate, that treatment will theoretically operate to the neonate’s best-interests. The question therefore remains 166

Dept. of Health, 'Abortion Statistics, England and Wales: 2011' Published May 2012 167 Dept. of Health, 'Abortion Statistics, England and Wales: 2011' Published May 2012 168 Report, Royal College of Obstetricians, 'Fetal Awareness Review of Research and Recommendations for Practice’ published 25/06/2010 – silence as to sentience after 24 weeks gestation. 169 L. W. Sumner, ‘Abortion and Moral Theory’ (Princeton: Princeton University Press, 1981) 170 A much higher threshold than in R v Bourne [1939] 1 KB 687 (which included ‘psychological’ life). 171 N.27 172 S. Sheldon and S. Wilkinson, ‘Termination of Pregnancy for reason of foetal disability: are there grounds for a special exception in law?’, Med Law Rev (2001) 9 (2): 85 173 K. J. Griswold, ‘An Evidence-Based Overview of Prenatal Consultation with a Focus on Infants Born at the Limits of Viability’ (2010) 125(4) Pediatrics p.931

as to whether a s.1(d) abortion purports to be in the ‘best interests’ (with some wide interpretation of that phrase) of the foetus or purely a consideration of the mother’s wishes. To the argument that a s.1(d) abortion is in the best interests of the foetus, perhaps sympathy may be drawn from Glover’s argument that ‘some kinds of life are perhaps worse than not being alive at all’.174 Indeed if any kind of agreement can be found with the submissions of Tony Nicklinson175, Dianne Pretty,176 Debbie Purdy177 and Tony Bland,178 who on some level have argued death to be in their (adult) best interests, perhaps one can also see merit in the euthanasia based argument that it would be better never to be born at all.179 That premise may be best illustrated through for example the most extreme conditions that new born babies may succumb to such as the miserable and debilitating Tay-Sachs genetic disease.180 The first major problem here is there is absolutely no requirement under s.1(d) that the foetus be suffering in the same way as that would be the required inference to withdraw medical treatment to the neonate. Notwithstanding the 174

J. Glover, ‘Fertility and the Family: the Glover Report on Reproductive Technologies to the European Commission’ (Fourth Estate 1989) at p.129. See also: J. Harris, Clones, Genes and Immortality: Ethics and the Genetic Revolution (OUP 1998) at p.66. 175 R (Nicklinson) v Ministry of Justice (2012) EWHC 2381 (Admin) 176 Pretty v UK (2002) 35 EHRR 1 177 R (on the application of Purdy) v the Director of Public Prosecutions [2009] UKHL 44 178 Airedale NHS Trust v. Bland (1993) AC 789 HL. 179 Reasoning Hursthouse argues influences most prospective parents: R. Hursthouse, ‘Beginning Lives’ (Blackwell 1987) at p.213 180 Tay Sachs Disease – fatal genetic disorder commonly accepted as inflicting a significant degree of suffering.

obvious difficulties of establishing (or predicting) foetal suffering, the point remains that suffering is not a requirement of a s.1(d) abortion. Sheldon and Wilkinson argue that in many cases – for example Down Syndrome - the child would have a quality of life ‘which, although less good than without impairment, is still positive overall 181 and a ‘life worth living’.’182 This is especially true where the child would receive support from a loving adoptive family,183 and so a strong argument can be made that it will generally always be in the disabled child’s interests to be born. Alternatively as Williams contends, s.1(d) is justified as operating for the welfare of the parent(s) and specifically that of the pregnant mother.184 That in accordance with the spirit of the Abortion Act, termination is a devastating but necessary decision to offset intolerable strain on prospective parents of having to raise a [quote] ‘grossly defective child’.185 Withholding abortion may threaten the physical or psychological health of parent(s), and to deny a pregnant woman an abortion at any stage presents significant implications on the rights of women generally to protect the inviolability and integrity of their own body. Having said that Morgan argues that to interpret s.1(d) in this way is to substantively repeat s.1(b) and although this presents no ethical problems, legally it may be sensible to assume Parliament did not intend to repeat itself. 186 181

http://www.downs-syndrome.org.uk/information.html S. Sheldon and S. Wilkinson, ‘Termination of Pregnancy for Reason Of Foetal Disability: Are There Grounds For A Special Exception In Law? Med Law Rev (2001) 9 (2): 85 183 See J. Glover, ‘Causing Death and Saving Lives’ (Penguin 1977) at 147. 184 G. Williams, Textbook of Criminal Law (1st edn.) (Stevens 1978) at 256. 185 G. Williams, Textbook of Criminal Law (1st edn.) (Stevens 1978) at 256. 186 D. Morgan, ‘Abortion: the unexamined ground’ Crim. L.R. 1990, Oct, 687-694 182

Also to be considered are the implications on the ‘reproductive autonomy’ of the pregnant mother, which commentators such as Robertson argue ‘legitimately encompasses not just the choice of whether or not to have children but also choice about the sorts of children one has,’187 the premise being that parents should have that extended opportunity to abort a disabled child because raising it is a substantially deviated experience from that expected. It is not the intention of this paper to comment on the general pro-choice-pro-life debate, but rather to consider whether it is justifiable to apply alternative standards based on the impairment or otherwise of the foetus. It is interesting that in the most vehement of pro-choice-pro-life debates, both sides regularly agree that whatever the general law of abortion may be, the disabled and non-disabled foetus should be treated the same. On that basis most ethically problematic, as this paper contends, are contentions of disability discrimination.188 Lord Templeman has said that neonatal treatment may be withdrawn if the child's quality of life will 'demonstrably' be 'so awful that in effect [it] must be condemned to die'. 189 Conversely for the foetus the risk of “serious handicap” 190 suffices. Disability discrimination advocates argue the biggest challenges facing disabled people are not the impairments themselves, but very often the societal

187

188

J. Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, Princeton 1996)

A foetus does not fall within the scope of the Equality Act 2010 c.15. 189 Re B [1981] 1 W.L.R. 1241 approved, per Templeman L.J., and developed by the Court of Appeal in Re C [1989] 2 All E.R. 782 and Re J (A Minor) (Wardship: Medical Treatment) [1990] 3 All E.R. 930. 190 Note the phraseology difficulties already discussed.

prejudices/attitudes that await them. 191 As Clements asserts, ‘we have created environments based on the needs of nondisabled people’. Whether this incoherence can be ethically justified depends on whether parental interests require complete legal predominance (to say otherwise will practically be to force the mother to carry an unwanted foetus). Adoption may potentially be an option – and some commentators emphasise societal acceptance of such a decision, but that may be less palatable for the prospective mother operating under the assumption that a termination is in the foetal interest. What then of the option of prematurely removing the viable foetus through caesarean-section and caring extraneously to the mother. One of many issues here - the ‘elephant in the room’ perhaps - would be the requirement for significantly greater resource allocation – both in terms of health and long-term welfare. There are also those who argue that preventing disability before birth, allows for the allocation of resources in a way that tackles discrimination of the disabled individuals already born – and similar debates took place regarding the law surrounding Pre-implantation Genetic Diagnosis.192 While society are loathed to consider or admit cost ever be a determinative issue here, there is little doubt that the current approach under s.1(d) ensures the significant financial implications for society of supporting disabled children is minimised. Currently however, the difference in treatment of severelydisabled neonates and the foetus conforming to s.1(d) is a significant and egregious, yet a conspicuously tolerated, form of discrimination against disabled people. It is difficult to 191

http://www.scope.org.uk/campaigns/disabilitydiscrimination/disability-hate-crime (10th April 2013)

192

J. Savulescu, 'Procreative Beneficience: why we should select the best children' 15 Bioethics 5-6 (2001)

escape thoughts of the twin ‘elephants in the room’ - cost and eugenics.

4. Changing the way we treat the severelydisabled neonate? Whilst pre-birth diagnostic procedures such as amniocentesis and ultra-sound scanning can determine with accuracy whether a foetus has a chromosomal defect, or congenital abnormality it will very often not be possible to determine the severity of characteristic symptoms until birth. 193 It seems ethically illogical to suggest that termination is acceptable at a time when the parent(s) would be less informed as to the quality of life and potential suffering of the child – and later when such awareness is present post birth any such action would attract the most serious repercussions the Criminal Justice System is capable of delivering. 194 The incoherence of such a stringent approach materialised by birth can be seen in Re A195 where the weaker conjoined-twin Mary existed in a state Johnson J described as ‘pitiable’ and with a prognosis of imminent death, which would inevitably result the entirely avoidable death of Jodie. Ward LJ found on appeal that despite severely limited brain function, the incapability of crying, expressing pleasure/pain, Mary’s life still had value. Not only was it in her best interests to be kept alive but that was her inherent right. Though Mary was eventually separated from Jodie, the gulf between that 193

http://www.nhs.uk/Conditions/Amniocentesis/Pages/Introd uction.aspx (10th April 2013) 194 R v Arthur (1981) 12 BMLR 1 195 Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All E.R. 961.

illustrated level of respect for the sanctity of life, and that the viable foetus is difficult to reconcile. From that basis that Mason and McCall Smith suggested a liberalising of the law on ‘selective non-treatment’ of the severely-disabled neonate in the face of medical futility. 196 They suggested 28 days be given in a medically controlled environment where it would be possible to make an informed decision as to whether ‘non-treatment’ would be a prudent option in the face of a negative quality of life – ‘suffering’. Suggestions were limited to selective non-treatment – an omission – and not a proactive ending of life 197; granted that some commentators argue there is very little difference. 198 Gross has suggested that if one is morally opposed to killing, then one should equally find repugnant the idea of a slow death through starvation or dehydration, 199 or the denial of medical treatment.200 In theory an omission is not without legal consequences for those in a position of responsibility, 201 and there is aggregate of cases that would present a legal, if not moral problem to an approach that would too readily hide behind the ‘omission fiction’.202

196

J K Mason and R A McCall Smith, ‘Law and Medical st Ethics’ (1 Ed, 1985) Butterworths, p.89 197 198

As endorsed in the Abortion Act 1967.

J. Rachels, ‘Active and Passive Euthanasia’ NEJM, 292, 1975, pp. 78-80. 199 M. Gross, 'Abortion and Neonaticde: Ethics, Practise and Policy in four nations' 16 Bioethics 3 20 (2002) p.219 200 O. Dyer, ‘Doctor Cleared of Act “Tantamount to Euthanasia” (2007) 335 BMJ 67 201 The Children and Young Persons Act 1933 c.12 makes it a criminal offence to neglect a child. 202 R v Harris (1994) 23 BMLR 122, Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 FLR 502; Glass v UK 2004 1 FCR 553

Such a radical (but medically logical) approach would obviously be tampered with huge practical and moral issues given the fact that the neonate has achieved full “personhood”.203 There would be some question as to the requisite stopping point – the suggested 28 day limit - and arguments of a slippery slope.204 It may be justifiable to utilise a liberal approach at a much later time – for example 16 months as was the requirement of Re J.205

5. Conclusion The incoherence between the treatment of the severelydisabled neonate and the foetus conforming to s.1(d) is due to a subtle yet fundamental shift in whose interests the law decides to prioritise following a medically (and morally) irrelevant passage through the birth-canal. For those who question the moral integrity of the treatment the unborn foetus it is tempting to resign behind contextual figures that s.1(d) represents only 1% of the total abortions conducted. 206 Further that only 146 abortions under s.1(d) of a total 189,931 in 2011 were conducted at a time when the ‘social ground’207 would not have also permitted it. For the parent(s) struggling with news of a potentially disabled foetus the law surrenders almost absolute discretion to decide whether that foetus should live – regardless of 203

J.K. Mason, ‘Human Life and Medical Practise’ (Edinburgh University Press 1988) ch. 6 204 M. Brazier and E. Cave, ‘Medicine, Patients and the Law’ th (5 Ed, 2011, Penguin Books) p.421 205 Re J (a minor) (wardship: medical treatment) [1992] 4 All ER 614 206 Dept. of Health, 'Abortion Statistics, England and Wales: 2011' Published May 2012 207 S.1(a) Abortion Act 1967 c.87

viability. For the severely-disabled neonate the law will make a valued judgement as to whether treatment is in the child’s best interests, ultimately irrespective of parental wishes. Indeed for most people to allow the parents the discretion to terminate a living neonate irrespective of quality of life would be ethically unacceptable. Why then does law and society acquiesce such power to the pregnant mother, apparently not on the basis of her welfare but because of that of the foetus. As Mcguinness argues, ‘s.1(1)(d) is currently operating beyond any plausible legitimate interpretation of the ground.208 It is submitted that to some extent society hides behind a ‘blissful ignorance’ of misconstrued perceptions of what it means to be disabled. S.1(d) inappropriately focuses on ‘serious handicap’ when what it should be concerned with is ‘serious suffering’. Are we are too eager to condemn a viable, but disabled, foetus as nothing more than a collection of cells, or perhaps are we too quick to award the potentially suffering neonate with the full rights (and burdens) of ‘personhood’, for which it seems doctors are forced offset suffering under a cloak of subterfuge whilst society, perhaps ignorantly, clings to a presumption of the sanctity of life. The law in this area attempts to balance massive ethical issues and the conflicting interests and views of many different groups of people – but this pre-birth form of discrimination cannot be objectively justified – and sends a very damaging message, incompatible with the values and principles of the twenty-first century social policy

208

S Mcguinness, 'Law, Reproduction, and Disability: Fatally 'Handicapped'? Med Law Rev (2013) 21 (2): 213

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The Compatibility of Islamic law with International Human Rights Law Zulfia Abawe

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“Given the years of respect rendered to patriarchy, presence of customary laws of similar character, absences of judicial review of laws for conformity to religious doctrine and international obligations, the unwritten code of Islamic law that is obvious particularly in case of Afghanistan, have raised the question of Islamic law’s incompatibility with International Human Rights norms.”

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1. Introduction The compatibility of Islamic law with modern international human rights law has consistently been debated among academics. It further forms a wide topic of discussion among Islamic States. Conflict between pre-modern and modern209 understanding of Islamic law forms the crucial point of these debates. Pre-modern Muslim jurists are of the opinion that “the totality of the Islamic legal system is the word of God: any analysis or attempts to review the Sharia would be tantamount to heresy.”210 However, modern Islamic thinkers and jurists argue that the primary sources of Sharia, which are the Quran (also called the Book of Allah) and Hadith or the Prophet Muhammad’s sayings, have been interpreted by early Muslim jurists in the second and third centuries in accordance with their personal understandings and comprehension of the word of God. Islamic principles are thus “neither rigid nor stagnant and can in fact be applied in evolving situations.” 211 Like other laws, the interpretation of Islamic law is subject to constant review and change. 212 The pre-modern views of Islamic law (hereinafter called pre-modernism) thus lead the proponents of the notion into the premise where they find most of the international human rights norms incompatible with Islamic law. Meanwhile, for modern Islamic jurists, scholars and thinkers the universality of human rights “are not alien from a Quranic point of view and that, in fact, 209

In this article, by modern Islamic law it is conferred to nineteenth and twentieth century legal developments in Muslim lands (Refer to Usama Arabi, Studies in Modern Islamic Law and Jurisprudence, (Kluwer Law International, 2001), 1) 210 Javiad Rehman, International Human Rights Law, (Pearson Education Ltd. 2nd Edition, 2003), 355 211 Ibid. 356 212 Ibid. 355

almost all the rights can be supported by the Quran and the practice of the Prophet.”213 Given the broadness of the issue, this article will provide an overview of freedom of religion and women’s human rights given, that among other rights, they generate considerable controversy among Islamic scholars with regard to their compatibility with international human rights norms, by providing specific examples from Afghanistan.

2. Freedom of Religion The right to freedom of religion is one of the oldest human rights that has been recognized internationally. The Peace of Westphalia Document (1648), Virginia’s Bill of Rights (1776 CE)214, the French Revolution (1789)215, and the American Bill of Rights (1791)216 are considered to be the threshold of protecting and promoting freedom of religion. Currently, a number of international conventions, resolutions and declarations proclaim the right to freedom of religion. As pronounced in Article 18(1) of International Covenant on Civil and Political Rights (ICCPR) the right to freedom of religion encompasses two important elements: ‘freedom to

213

Abdullah Saeed & Hassan Saeed, Freedom of Religion, Apostasy & Islam, (Ashgate Publishing Ltd. 2004) 12 214 Abdullah Saeed, ‘Pre-modern Islamic Legal Restrictions on Freedom of Religion, with Particular Reference to Apostasy and its Punishment,’ in: Anver M Emon, Mark S Ellis & Benjamin Glahn (Eds.) Islamic Law and International Human Rights Law, (Oxford University Press, 2012) 226 215 Abdullah Saeed & Hassan Saeed, Freedom of Religion, Apostasy & Islam, (Ashgate Publishing Ltd. 2004) 9 216 Ibid.

maintain or to change a religion or belief, and freedom to manifest or display one’s religion or belief.’ 217 The right to freedom of religion has been addressed in Bible and Quran. Nevertheless, the issue of changing a religion or belief is a controversial issue among pre-modern and modern Islamic thinkers. In accordance with pre-modernists, if a Muslim: converts to another religion; denies the existence of God or the attributes of God; rejects a particular messenger of God or refuses to accept any of the fundamentals of religions or which is termed as apostate. They are therefore subject to capital punishment.218 The pre-modern Islamic law further claims conversion of the apostate back to Islam by coercion.219 For example, classical Muslim jurists have quoted Prophet Muhammad as having said “Whoever, changes his religion, kill him”.220 However, the modernists argue, the Prophet Mohammad made the above statement not just because the person renounced his faith but also waged war on Islam. The modernists debate that the classical Muslim jurist’s justifications of subjecting apostasy to the death penalty are based simply on the literal meaning of the Hadith, rarely on Quranic texts. It has been argued that the pre-modern Islamic jurists arrived at such conclusion based on a ‘surface reading of some of the verses of the Quran and of Hadith texts.’221 By referring to authentic interpretation of the verses of Holy Quran and genuine hermeneutical Abdullah Saeed, ‘Pre-modern Islamic Legal Restrictions on Freedom of Religion, with Particular Reference to Apostasy and its Punishment,’ in: Anver M Emon, Mark S Ellis & Benjamin Glahn (Eds.) Islamic Law and International Human Rights Law, (Oxford University Press, 2012) 226 218 Ibid. 227 219 Abdullah Saeed & Hassan Saeed, Freedom of Religion, Apostasy & Islam, (Ashgate Publishing Ltd. 2004) 19 220 Frank Griffel, ‘Introduction’ in Abbas Amanat and Frank Griffel (Eds.) Sharia: Islamic Law in the Contemporary Context, (Stanford University Press 2007) 13 221 Ibid. 51 217

approach222 to Hadith, the modern Islamic jurist challenges the conversion by force. They assert that, according to Islam, ‘there is no compulsion in religion, and that is entirely up to the individual to choose which religion they should follow.’223 Prof. Kamran Hashemi, a modern Islamic thinker, asserts that “for early Muslims, conversion was considered not merely a matter of faith, but equal to treason, submission to foreign domination, treason against a very basic and allencompassing group identity and loyalty and an act of war against the Muslims.”224 Most supporters of pre-modern Islamic law do not emphasise the difference between treason, renegade and mere conversion from Islam, which is not intended to harm the community. Similarly in cases of blasphemy, which is defined as the offence of insulting God and the Prophet, the pre-modernists subject the act to temporal punishment. However, for modern Islamic jurists, blasphemous acts should not be subject to death and according to the holy Quran, ‘a good Muslim is one who does not care about others behaving badly.’225 Different Islamic States adopt different approaches in arriving at a conclusion with regard to apostasy. In certain Islamic States, for instance: Saudi Arabia, 226 Sudan,227 and 222

Hermeneutical approach is originally an approach used for the interpretation of ancient texts. In some articles, it is referred to the approach of collecting Hadith and interpreting them. 223 Ibid. 73 224 Kamran Hashemi, Religious Legal Traditions, International Human Rights Law & Muslim States, (Martinus Nijhoff Publishers, 2008) 28 225 Ibid. 71 226 “Saudi Arabia is an Islamic Monarchy. The Saudi Constitution is comprised of the Koran, Sharia Law and the Basic Law. Islamic Law forms the basis for the country’s legal code. Strict Islamic Law governs, and as such, the Saudi Constitution does not permit religious freedom.” (Universal Periodic Review of Saudi Arabia 2009 by European Centre

Yemen,228 apostasy is subject to the death penalty. While in others, such as Morocco, voluntary conversion is not a crime under civil or criminal codes and the constitution. 229 Turkey230 and Tunisia231 also proclaim freedom of religion in their constitutions.232 In some Islamic States, for example, in Saudi Arabia, freedom of religion has a limited definition only meaning the right to be free to exercise one’s own religion that does not include the right to convert from Islam. In 1948, the representative of Saudi Arabia to the United Nations objected to article 18 of ICCPR and deemed it contrary to Islamic law while the representative from Pakistan supported the article ‘on the basis that the Quran allows a person to believe or not to believe.’ 233 Elsewhere, there are states like Afghanistan that support modern Islamic Law in theory and pre-modern Islamic law in practice. Afghanistan has ratified and signed ICCPR without any reservation. Furthermore, article 7 of the Constitution proclaims that Afghanistan shall adhere to its international legal obligations and, based on that, Afghanistan shall protect Article 18 of ICCPR, which pronounces the right to freedom of religion including the right to change religion. Apart from the constitutional and international commitment to freedom of religion, there is no legislation, act or provision, with regard to blasphemy or apostasy in Afghanistan. Neither the constitution nor the penal code mentions explicitly apostasy for Law and Justice). Also refer to Hamza Kashghari vs Saudi Arabia [2012] particularly with regard to apostasy and its due punishment. 227 Sudan: The Criminal Act 1991 228 Yemen Republican Decree, by Law No. 12, 1994 concerning crimes and penalties. 229 Article 6 of Moroccan Constitution [1992] 230 Article 24 of Constitution of the Republic of Turkey [1982] 231 Article 5 of the Constitution of Tunisia [1959] 232 Abdullah Saeed & Hassan Saeed, Freedom of Religion, Apostasy & Islam, (Ashgate Publishing Ltd. 2004) 19 233 Ibid. 19

or blasphemy. According to Article 130(2) of the constitution, “when there is no provision in the Constitution or other laws regarding ruling on an issue, the court’s decisions shall be with the limits of the constitution in accord with the Hanafi jurisprudence and in way to serve justice in the best possible manner.” In theory, however, the government of Afghanistan has not laid down particular articles/acts with regard to apostasy in accord with the Hanafi jurisprudence – whether they support the modern approach or classical approach. In practice, however, Abdul Rahman, in 2006, has been charged in a lower court in Kabul because of his conversion to Christianity. His case was dismissed based on the findings of mental instability and he was ‘deemed mentally unfit to stand trial.’ However, it attracted much attention in the media and was argued that the accused could face the death sentence.234 In 2007, Sayed Parwez Kambakhsh, a 24-yearold journalist and student at Balkh University, was sentenced to death by the primary court in Mazar-e-Sharif, although this was later reduced by the appeal court in Kabul to 20 years imprisonment – a decision affirmed by the supreme court of Afghanistan. He was convicted of distributing writings from the Internet about the role of women in Islam that were misleading or a blasphemous act. However, after two years in detention, President Karzai signed a pardon in secret and Kambakhsh left the country.235

234

235

Kamran Hashemi, Religious Legal Traditions, International Human Rights Law & Muslim States, (Martinus Nijhoff Publishers, 2008) 71 Afghanistan Legal Education Project at Stanford Law School, An Introduction to the Constitutional Law of Afghanistan, (First Edition) (p. 177)

3. Women’s Human Rights In order to address the plight of women, the international community has attempted to adopt measures to provide full and equal participation of women in political, civil, economic, social and cultural life at national, regional and international levels and eliminate violence against women. The United Nations Charter, Universal Declaration of Human Rights and various other international and regional human rights covenants, i.e. CEDAW, ICCPR, European Convention on Human Rights, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa contain provisions that call for commitment in gender equality and eradication of violence against women. Despite substantive developments in protecting women’s human rights, there are, some aspects of international human rights law that are considered both culturally and religiously alien in many Muslim States.236 It appears as though most substantive provisions of the Covenant on the Elimination of All Forms of Discrimination Against Women (CEDAW) have evoked strong objections from many Muslim countries on the basis that they are contrary to Islamic principles. For instance, Libya entered into a broad reservation in 1989 before ratification of CEDAW that reads, “[accession] is subject to the general reservation that such accession cannot conflict with the laws on personal status derived from the

236

Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law: Equal Before Allah, Unequal Before Man? (Kluwer Law International, The Hague, 2000) 1

Islamic Shariah.”237 Most Islamic countries entered into reservations that are deemed ‘a rejection to central provisions of CEDAW, such as Article 16, which requires elimination of discrimination against women in all matters relating to marriage and family relations.’238 Nevertheless, modern Islamic thinkers and scholars challenge these propositions. They argue that the patriarchal interpretations of the Islamic sources by male scholars, jurists, writers and interpreters have constructed a vast gap between human rights and women; it has even portrayed Islam as an anti-woman religion.239 Professor Shaheen Sardar Ali, a modern Islamic scholar, argues “women’s human rights in Islam are not entirely irreconcilable with current formulations of international human rights instruments.” 240 She bases her argument on the “recognition that the Islamic tradition is not a monolithic entity…and Islamic law lends itself to a variety of interpretations that have far reaching implications for women’s human rights in Islam.” 241 She further supports the notion that literal and patriarchal interpretation of Islamic sources has silenced the more egalitarian aspects and progressive interpretation of the sources of Islamic law to the changing needs of time. 242 The Ann Elizabeth Mayer, ‘Islamic Reservations to Human Rights Conventions: A Critical Assessment,’ (1998) 15 Recht Van De Islam, 25, 25 238 Ann Elizabeth Mayer, ‘Religious Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women: What Do They Really Mean?’ in: Courtney W. Howland (Ed.) Religious Fundamentalisms and the Human Rights of Women, (St. Martin’s Press, 1999) 105 239 Ziba Mir-Hosseini, Gender in Islam: The Need for Clarity – Introduction (New Jersey: Princeton University Press, 1999), 4. 240 Shaheen Sardar Ali, Gender and Human Rights in Islam and International Law: Equal Before Allah, Unequal Before Man? (Kluwer Law International, The Hague, 2000) 3 241 Ibid. 242 Ibid. 3-4 237

pre-modern interpretation of Islamic law coupled with culture imperialism instigated the incompatibility of international human rights norms with Islamic principles. 243 Abdullah Ahmad An-Naim, a modern Islamic thinker, asserts, “I believe that a modern version of Islamic law can and should be developed. Such a modern Sharia could be, in my view, entirely consistent with current standards of human rights.”244 By referring to certain verses of Holy Quran with a modern interpretation, he challenges the guardianship and authority of men over women. He affirms that the Quran and other Islamic sources “speak of honour and dignity for humankind and children of Adam without distinction as to race, colour, gender, or religion.”245 Many academics have further challenged the position of Islamic States with regard to their reservations made on CEDAW. The reservations have been received as a political calculation rather than having a base in Islamic law. Ann Elizabeth Mayer, after a critical assessment of the reservations made by Islamic States on Human Rights conventions, concludes, “Some Muslim countries have taken a variety of stances…some ratifying without reservations of any kind and some making 243

Ibid. Abdullah Ahmed An Naim, ‘Human Rights in the Muslim World,’ in: Henry J. Steiner, Philip Alston, Ryan Goodman (eds.), International Human Rights in Context: Law, Politics, Morals, (Oxford University Press, 3rd Edition, 2008) 534 245 Ibid. 538 244

reservations that have nothing to do with Islam…[in other words] there is far too much in the way of variations in Muslim countries’ approaches to ratifying human rights treaties and far too much disarray in their substantive reservations for it to be realistic to say that these are inspired by an Islamic model. It seems more accurate to say that differing governmental human rights policies and political calculations regarding how best to present them lead to the widely diverging stances.”246 Afghanistan is one of those Islamic States that has ratified CEDAW and ICCPR without any reservation. Afghanistan constitutionally supports women’s human rights in a way entirely compatible with international human rights norms and modern Islamic law. The constitution explicitly refers to gender equality and the political rights of women. Under Article 22, “any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. The citizens of Afghanistan, man and woman, have equal rights before the law.” ‘Women are specifically mentioned six times in the constitution’247 proclaiming their right to education, 248 Ann Elizabeth Mayer, ‘Islamic Reservations to Human Rights Conventions: A Critical Assessment,’ (1998) 15 Recht Van De Islam, 25, 25 & 43 247 Laura Belkner, ‘The Secular and Religious Legal Framework of Afghanistan as Compared to Western Notions of Equal Protection and Human Rights Treaties: Is Afghanistan’s Legal Code Facially Consistent with Sex Equality?’ (2011-2012) 20 Cardozo J. Int’l & Camp. L. 501, 516 248 Article 44 of the Constitution of Islamic Republic of Afghanistan [2004] 246

providing aid by the government to the women without caretaker,249 assuring the protection of family unit and elimination of traditions contrary to the Islamic principles, 250 and supporting women’s emancipation and political participation.251 In theory, as discussed by Laura Belkner, Afghanistan has strong legal edifice to protect women’s human rights.252 This, however, does not mean that women have automatically been given equality under the law. In practice, there are a number of obstacles to fully protect women’s human rights that include prevalence of customary laws in the country, which include many practices that discriminate against and are harmful to women,253 absence of judicial review of laws for conformity to religious doctrine and international obligations, and the unwritten code of Islamic law. 254 Furthermore, recently the President endorsed a cleric’s document that emphasizes gender segregation on workplace and premises women inferior to men. The Parliament further suspended the law on elimination of Violence Against Women, which was enacted by 2009 by the Presidential decree. The reason behind the suspension was exposed as the law was westernized and against the Islamic Principles. 255 249

Article 53 of the Constitution of Islamic Republic of Afghanistan [2004] Article 54 of the Constitution of Islamic Republic of Afghanistan [2004] Article 83 and 84 of the Constitution of Islamic Republic of Afghanistan [2004] 252 Laura Belkner, ‘The Secular and Religious Legal Framework of Afghanistan as Compared to Western Notions of Equal Protection and Human Rights Treaties: Is Afghanistan’s Legal Code Facially Consistent with Sex Equality?’ (2011-2012) 20 Cardozo J. Int’l & Camp. L. 501, 516 253 Ibid. 535 254 Hannibal Travis, ‘Freedom or Theocracy?: Constitutionalism in Afghanistan and Iraq,’ (2005) 3 Nw. Univ. J. Int’l Hum. Rts. 1, 3 255 United Nations Assistance Mission in Afghanistan (UNAMA), ‘UN Calls on Afghan Authorities to Ensure Full Implementation of EVAW Law,’ (May 2013, Kabul), Available at 250 251

4. Conclusion Given the years of respect rendered to patriarchy, presence of customary laws of similar character, absences of judicial review of laws for conformity to religious doctrine and international obligations, the unwritten code of Islamic law that is obvious particularly in case of Afghanistan, have raised the question of Islamic lawâ&#x20AC;&#x2122;s incompatibility with International Human Rights norms. However, there is no doubt that the modern interpretation of Islamic law is compatible with the international human rights standards as demonstrated with regard to freedom of religion and womenâ&#x20AC;&#x2122;s human rights. Furthermore, the movement of the modernists has gained great deal of attention; specifically, in terms of challenging the pre-modernists view of rendering Islamic Laws virtually immutable. The momentum of challenging similar pre-modern interpretations of Islamic law have started that can be premised as a potential motive.

http://unama.unmissions.org/Default.aspx?tabid=12254&ctl=Details&mi d=15756&ItemID=36838&language=en-USv

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Imbalanced Scales of Justice: Criminal Defence

A critical discussion of Luke Addison

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“…access to justice cannot be permitted to become the province of those who can afford to pay for it”

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1. Introduction The Criminal Justice System in the UK operates an inherently “adversarial process”256. Under this system the statesponsored Crown Prosecution Service seeks the conviction of offenders, whilst defendants seek to assert their innocence. Defendants have a “fundamental and absolute” 257 right to a fair trial, articulated in the European Convention on Human Rights258. Criminal defence lawyers safeguard defendants’ right to a fair trial; it would be manifestly unfair for the State, with all of the resources at their disposal, to prosecute a defendant who has no chance of a defence. Thus, irrespective of whether one goes so far as to subscribe to Redmayne and Ashworth’s259 ‘rights-based’ approach to understanding lawyers’ purpose, lawyers are instrumental in protecting defendants’ Article 6 right to a fair trial. However, their importance in the process of doing justice goes beyond satisfying defendants’ rights. In the course of this essay I will explain socio-legal theories of the importance of criminal lawyers, before exploring the ways that lawyers interact with their clients. In my 256

L Hoyano, 'What is balanced on the scales of justice? In search of the essence of the right to a fair trial' [2014] Criminal Law Review, 4 257 Brown v Stott [2003] 1 A.C. 681 258 European Convention on Human Rights 1953, Art. 6 259 H Quirk, T Seddon, G Smith, Regulation and Criminal Justice: Innovations in Policy and Research (1st, CUP, Cambridge 2010) 48

assessment of whether lawyers properly fulfil their purpose in the Criminal Justice System, I note serious failings in the way lawyers treat their clients, but acknowledge that this may – in part – be due to a deficient legal aid system, whilst fails to support client-centric practice.

2. The importance of Lawyers The legal system is both complex and self-referential260, making it somewhat inaccessible and incomprehensible to the public. Lawyers serve the purpose of interpreting the law, explaining it to those involved in the criminal justice system. This purpose is closely connected with the aforementioned need to ensure a defendant’s Article 6 right to a fair trial. Beyond this, the importance which one attributes to lawyers is dependent upon one’s social values; as Nicola Lacey writes: “criminal justice can only be properly understood with reference to its normative implications” 261. The perceived importance of the lawyer depends on which model of justice is most closely identified with. Packer identified two models262, illustrative of two divergent value 260

G Teubner, Autopoietic Law: A New Approach to Law and Society (1st, Walter de Gruyter & Co, 1987) 254 261 N Lacey, 'Introduction: Making Sense of Criminal Justice' in N Lacey (ed), A Reader on Criminal Justice (1st, OUP, Oxford 1994) 34 262 H Packer, The Limits of the Criminal Sanction (1st, Stanford University Press, California 1968) 149-173

systems, ‘crime control’ and ‘due process’. The ‘crime control’ model asserts that the central function of the criminal justice system is to repress crime. As a managerial process, with emphasis placed on the importance of efficiency, the system operates a factual presumption of guilt. Under this model, the importance of the lawyer is limited; defence lawyers are involved at a late stage in proceedings. Conversely, the role played by lawyers in the ‘due process’ model is of greater importance in protecting defendants’ rights, and ensuring fundamental notions of fairness and an equality of arms in representation. Neither model is supposed to represent reality, but extremes along a broad “spectrum of doing criminal justice”263. Lawyers’ general consensus seems closer aligned with the ‘due process’ model. I believe this preferable because, whilst ‘crime control’ focusses on the conviction of the guilty, ‘due process’ is principally concerned with the exoneration of the innocent and fairness. In Packer’s own words: “The reversal of a criminal conviction is a small price to pay for an affirmation of proper values and a deterrent example of what will happen when those values are slighted”264. The ‘due process’ model champions representation and equality of arms, making the role of the criminal defence lawyer central to the process of doing justice. 263

D Newman, Legal Aid Lawyers and the Quest for Justice (1st, Hart Publishing, Oxford 2013) 3 264 H Packer, The Limits of the Criminal Sanction (1st, Stanford University Press, California 1968) 149-173

3. The lawyer-client relationship Access to justice depends upon a healthy lawyer-client relationship. Felstiner identified the importance of a healthy lawyer-client relationship: “the production of justice might be defined as a dimension of the relationship of lawyers to clients”265. I believe Daniel Newman affords some of the best research into the lawyer-client relationship, in his erudite paper: ‘Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers’266. Previously the two most significant studies offered conflicting findings as to this relationship; ‘Standing Accused’267 from McConville et al. and ‘The Reality of Law: Work and Talk in a Firm of Lawyers’ from Travers268. McConville launched a scathing indictment on professional standards, challenging lawyers’ commitment to defendants. Travers asserted McConville’s work was short-sighted, failing to recognise the good work W Felstiner, '‘Synthesising socio-legal research: lawyer–client relations as an example’' [2001] International Journal of the Legal Profession, 191 266 D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession 267 M McConville, J Hodgson, L Bridges, A Pavlovic, Standing Accused (Oxford University Press, Clarenden 1994) 268 M Travers, The Reality of Law: Work and Talk in a Firm of Lawyers’ (Aldershot, Oxford 1997) 265

that lawyers do. The contradictory findings are explained by methodological difference; McConville studied many firms for a short time, Travers studied one firm for a sustained period. Newman’s addresses the methodological conflict by studying three firms for a sustained period. Newman’s research is strengthened by using ‘ethnography’ which, in the words of Flood, is the only research method which “gives us insight into the richness of social life”. 269 Newman’s research illustrated a discrepancy between the values espoused by lawyers in a formal interview, and the observed practice of lawyers. In interview, lawyers referred to a “client centric” practice. Lawyers claimed the “social agenda”270 of providing access to justice and saw themselves as a “facilitator”271 of this access. In interview most lawyers referred to the “satisfaction”272 they derived from their role, and from helping clients. However, in practice they made critical character judgements of their clients, operated upon a

269

J Flood, Socio-Legal Ethnography, in R. Banakar & M. Travers (eds) Theory and Method in Socio-Legal Research (Hart Publishing, Portland 2005) 270 D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession, 9 271 D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession, 10 272 D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession, 11

factual presumption of guilt, and had disregard for clients. 273 However, Newman’s assertion that the lawyers were wrong to articulate a “distinction between ‘us and them’”274 is perhaps a little simplistic, as there is a noteworthy distinction between a defendant and his counsel; recognition of this distinction should not instinctively be taken as evidence of prejudice. Interestingly, “all of the lawyers blamed the government for the mistreatment of clients”275, for the sustained and systematic cuts to the legal-aid budget, which they believe hampers their ability to adequately operate their ideal clientcentric practice. This feeling of animosity towards the government is perhaps enhanced by the fact that these cuts come from Christopher Grayling, the first non-lawyer to be appointed to Justice Secretary. Newman notes “more money [does

not]…

automatically

herald

increase

276

standards” , however less money will almost inevitably result in decreased standards.

273

D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession, 12 274 D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession, 13 275 D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession, 18 276 D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession, 21

Another objection which Newman observed that many legalaid

lawyers

mentioned

was

that

their

pay

was

disproportionately lower than in other areas of legal-practice, which many suggested dis-incentivised pursuing justice for their clients with as much vigour as perhaps they would if the remuneration was better. However, Newman notes that: “while this branch of the legal profession may have lagged behind their peers in remuneration, it was ever so”277. Furthermore it has been found that even legal-aid lawyers receive an income which is, at minimum, equal to the national average278. However, I have already observed that the legal system is fundamentally self-referential, and I feel that the same self-reference will apply to lawyers themselves; the fact that legal-aid lawyers earn a sum equivalent to the national average is of comparative insignificance when their counterparts in large Commercial Law firms in the City are earning in excess of ten times as much as them. This is of great significance in terms of the detrimental effect it will have on the quality of access to justice for defendants. For the experienced lawyers, those who entered legal-aid as high performers at a time when the pay gap between criminal 277

D Newman, 'Still standing accused: addressing the gap between work and talk in firms of criminal defence lawyers' [2013] International Journal of the Legal Profession, 21 278 S Rogers (2009) ‘The Queen, Johnathan Ross, nurse and teachers. What do people get paid in the public sector?’, The Guardian, 17 Novembe

and commercial wasn’t so significant, the self-referentially substandard salary will dis-incentivise and demoralise. The enthusiasm to work will dwindle in the face of poor pay in reference to their peers of comparable ability who earn vastly more simply because they chose a different practice sector. The pay discrepancy between legal-aid work and other practice areas does not only hamper access to justice by deterring the experienced and able lawyers who already practice legal aid, but it serves to prevent and deter the most able new lawyers to enter legal aid work. The emphasis within law schools, which I myself have observed, is that ‘success’ in law means graduating into the high-paying Commercial Law firms, meaning that the high achieving and able lawyers chase such careers279. By virtue of this, the less able lawyers enter somewhat less competitive legal-aid firms. Thus, lower pay in legal-aid work adversely affects the quality of access to justice for defendants. This has grave and unsustainable repercussions as the cuts to legal aid show no sign of relenting in the imminent future. Given the significant – often life changing – Implications that failings of the criminal justice system has, such as deprivation of liberty, more should be done to attract the very best legal talent to Criminal defence, even if this is at the sacrifice of a little extra 279

E Duff, M Shiner, A Boon, Entry into the legal professions: the law student cohort study (1st, Law Society, Research and Policy Planning Unit, London 2000)

taxpayers’ money.

4. Conclusions: Lawyers are of crucial importance to the process of doing justice because defendants have a right to a fair trial in a ‘due process’ model of criminal justice. In the interest of fairness this includes an equality of arms in the adversarial court system. An exploration of the lawyer-client relationship reveals severe and widespread failings in the way lawyers relate to their clients. However, the idealised responses afforded in the interview stage of Newman’s research indicates a wish to fulfil their purpose in the Criminal Justice System, in a truly client-centric manner, if the legal-aid budget were to be made sufficient to support such practices. Thus I conclude that lawyers do not currently fulfil their purpose in the criminal justice system, but that this is because the legal aid budget prevents them from so doing. Crucially, I conclude that access to justice cannot be permitted to become the province of those who can afford to pay for it; if such a situation is to be prevented then an imminent review of the judi-care model of legal aid is needed, and a review of salaries in Criminal Law.

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Section 4 (2) Charities Act 2011 provides that “in determining whether the public benefit requirement is satisfied in relation to any purpose falling within section 3(1), it is not to be presumed that a purpose of a particular description is for the public benefit’. Did the presumption exist prior to the Charities Act 2006 (consolidated into the Charities Act 2011) and if so, has there been a removal of such presumption? Sharmin Chowdhury and Megan Cooke

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“Presumption of public benefit is to make a decision without reason; where there is no reason given the law is left in an unsatisfactory uncertain state.”

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In order for a purpose trust (a trust for a purpose as opposed to human beneficiaries) to be charitable it must fall under one of the accepted heads of charity found in the Charities Act 2011. The charity must also be for the public benefit. Charitable trusts enjoy many benefits including

tax

exemptions. Such privileges can generate controversy where the view exists that some charities benefit the public more than others. However much of the academic debate centres on whether a presumption of public benefit exists when a trust falls under one of the heads accepted prior to the Charities Act 2006. For this reason, s 3 (2) of the Charities Act 2006 will be referenced instead of s 4 (2) Charities Act 2011. This article will argue that such a presumption did not exist and the cases were decided based on evidence before the court. The cases predominantly concern the advancement of education and the advancement of religion due to the fact they can have an exclusive nature. Many would argue it is not charitable if such an organisation excludes a large section of the public because the public benefit element is unlikely to be satisfied. The validity of the claim will be considered having regard to Charity Commission guidance and academic commentary. Scottish and Irish law will also be considered in relation to whether an organisation confers a benefit on the public.

Modern charity law began and has been developed from Pemsel’s case280 in which Lord Macnaghten stated the ‘four heads of charity’ which comprises: relief of poverty; advancement of education; advancement of religion and other beneficial purposes to the community.281 These accepted heads are now codified and have been developed in s 3 (1) Charities Act 2011. Lord Wright, in the case of National Anti-Vivisection Society v IRC282 stated that “The test of benefit to the community goes through the whole of Lord Macnaghten's classification, though as regards the first three heads, it may be prima facie assumed unless the contrary appears”.283 Upon reading this case it would appear that there is a presumption of public benefit made in relation to these accepted heads of charity. However this is disputed; Luxton argues that it is possible for s 3 (2) Charities Act 2006 to have been drafted for the purpose of reversing the dictum of this case.284 The following case law would suggest that this may have been the intention behind Parliament’s legislation but this does not necessarily give rise to the fact that a presumption existed before 2006. It is argued that the legislation is simply a public reflection of what Parliament Pemsel’s case [1891] AC 531 Ibid [583] 282 National Anti-Vivisection Society v IRC [1948] AC 31. 283 Ibid [42]. 284 P Luxton, ‘Making Law? Parliament v The Charity Commission’ Politeia (2009), 10. 280

281

has always accepted - that a presumption of public benefit it not applied when dealing with charitable trusts which fall under the first three heads of charity. Thornton v Howe285 is a case in which a testatrix left funds in her will for the publication of the writings of Joanna Southcote, a woman who claimed she was pregnant with the next Messiah. Though the trust is evidently of a religious nature, the public benefit of such writings is doubtful. However Sir John Romilly stated that although the works were ‘incoherent and confused’ they were intended to extend the influence of Christianity.286 The trust was void as the bequest was given out of land, not personally, and there was legislation which prohibited this. However a public benefit was still found. Harding argues that it was the presumption of public benefit which decided the case even though there was evidence against the conferral of a public benefit.287 In context, this is a case which was decided in 1862; an era in which society was predominately Christian. A presumption may have been accepted here because of that context but this does not necessarily mean there is a presumption of public benefit in relation to the other heads of charity or even other trusts for the advancement of religion. 285

Thornton v Howe (1862) 31 Beav 14. Ibid [21-22]. 287 M Harding, ‘Trusts for religious purposes and the question of public 286

benefit’ (2008) 71(2) MLR 159, 165.

However, in Re Shawâ&#x20AC;&#x2122;s Will Trusts288 the judge concluded that there was no need for evidence that the trust for the advancement of education was for the public benefit, as trusts for these purposes would speak for themselves.289 In contrast, in Re Wedgwood290, the court did not presume that there was a public benefit; it was said that there must be some public purpose in order to be a valid charity and here this was found to exist because the trust promoted public morality in relation to animal cruelty. However this case does not fall under one of the accepted heads of charity where a presumption would be made so is not directly relevant to whether a presumption of public benefit existed in relation to religious or educational charitable trusts. The case of Neville Estates v Madden291 concerned whether a trust for the benefit of a Jewish Synagogue was charitable. The trust was held as charitable because members live in the world at large and so some benefit would flow to the public because they mixed with citizens, even though the Synagogue services were not open to the public. Cross J argued that any religion is better than none, and the court is entitled to assume that there is some benefit from attendance at places of

Re Shawâ&#x20AC;&#x2122;s Will Trust [1952] Ch 163. Ibid [170]. 290 Re Wedgwood [1915] 1 Ch 113. 291 Neville Estates Ltd. v Madden and Others [1962] Ch. 832. 288

289

worship and religious people who mix with fellow citizens.292 Whilst Cross J explicitly refers to a presumption of public benefit, he proves such presumption by showing that a benefit derives from religious persons integrating with the public; even if there was no presumption it could be proved that there was a public benefit. In the case of Gilmour v Coats293 the prevailing argument was that the nuns lived in a secluded community and did not come into contact with the outside world, therefore conferring no public benefit and thus they could not be considered charitable. However, there was no question of presumption in this case. This is contrasted to Neville Estates v Madden in which the individuals to be benefitted did have contact with the outside world and the judges also considered whether there was a presumption of such public benefit. Walton J in Holmes v Attorney General294 also explicitly refers to a presumption of public benefit with regard to religious charitable purposes stating it has â&#x20AC;&#x2DC;long been settledâ&#x20AC;&#x2122; that the law makes the presumption that it is better to have a religion than not.295 In spite of this, the judge goes on to cite supporting evidence for the presumption in explaining that that as the Brethren publicly campaign and certain meetings are open to the public, it cannot be denied that there is a 292

Ibid [853]. Gilmour v Coats [1949] AC 426. 294 Holmes v Attorney General (1981) The Times 12 February. 295 Ibid 293

public benefit.296 Harding takes a different approach in arguing that there was a presumption that played the role of ‘tie breaker’ in this case where there was evidence both for and against public benefit. It is submitted that this is an incorrect analysis in that a decision was made based on the stronger evidence provided, not a presumption. More importantly, the recent Charity Commission decision in relation to the Preston Down Trust replaces the precedent effect of Holmes.297 The Charity Commission argues there was a presumption of public benefit which existed before 2006 and the effect on Holmes (the presumption) is removed by s 3 (2) Charities Act 2006 (now 4 (2) Charities Act 2011). It is argued by Hackney that s 3 (2) is no more than a restatement of the old law; this is beneficial as it prevents complications arising in relation to lack of certainty within charitable trusts law.298 Presumption of public benefit is to make a decision without reason; where there is no reason given the law is left in an unsatisfactory uncertain state. However even in the cases where a presumption appears to have been made, closer examination shows that there was evidence of public benefit.

296

M Harding, ‘Trusts for religious purposes and the question of public

benefit’ (2008) 71(2) MLR 159, 163. 297 http://www.parliament.uk/documents/commons-committees/publicadministration/LetterfromKennethDibble.pdf <accessed on 18 December> 298 J Hackney, ‘Charities and public benefit’ (2008) LQR 347, 350.

The explanatory notes for the 2006 Act emphasise that the government sought change in the legal and regulatory framework of charities.299 However, its importance is reduced in the argument that a presumption never existed; in relation to education, public benefit is a matter of common sense.300 Having to demonstrate public benefit to something which is common sense hinders the advancement of charities by increasing bureaucracy therefore increasing legal costs.301 In addition, the Charity Commissionâ&#x20AC;&#x2122;s 2013 guidance indicates a change in their view that a presumption of public benefit previously existed; it acknowledged that there is no presumption in relation to Lord Macnaghtenâ&#x20AC;&#x2122;s first three heads of charity. The case law underpinning their opinion now focuses on the recent case of ISC v Charity Commission302 in which it was stated that the 2006 Act has simply brought the pre-existing law into focus and that the law requires the proof of benefit and to whom the benefit will apply.303 There has been much confusion as to whether there was a presumption of public benefit prior to 2006. However in light of the arguments made it would seem that such presumption

299

Explanatory Notes to the Charities Act 2006, para 8. Joint Committee on the Draft Charities Bill, Memorandum from Hubert Picarda QC (DCH 297). 301 Ibid para 16. 302 ISC v Charity Commission [2012] Ch 214 303 Ibid 88. 300

did not exist. One way of avoiding this confusion could have been with a statutory definition of public benefit. Scottish law does not provide a definition, but provides guidance as to how it will be assessed. s 8 of the Charities and Trustee Investment (Scotland) Act 2005 requires that it must be shown how the public benefit is obtained and the disbenefit which is likely to occur from exercising the trust.304 The Charities Act (Northern Ireland) 2008 echoes the Scottish provision. A public benefit test is beneficial for reasons of certainty and clarity. Both Scotland and Ireland require the relevant commissions to issue guidance as to the application of the test. Therefore it is argued that if the legislature in England and Wales were to adopt such a test, there should be supplementary legislative guidance as to how to apply it. This would provide a solution to all the uncertainty and confusion regarding public benefit. On the back of his proposal that s 3 (2) Charities Act 2006 had the purpose of reversing the dictum of National Antivivisection, Luxton argues that even if this is the case, in each of the cases aforementioned, the decision was made on evidence or a rule of law anyway.305 Therefore the provision has limited significance. It is submitted that this is the correct 304

Charities and Trustee Investment (Scotland) Act 2005 s 8 (2) (a) (i)

(ii) 305

Peter Luxton, â&#x20AC;&#x2DC;Making Law? Parliament v The Charity

Commissionâ&#x20AC;&#x2122; Politeia (2009), 10.

analysis as evidenced in case law. Having considered the case law it is said the cases were decided on balance of evidence before the court. Prior to 2006 there were cases concerning religion which were not considered for the public benefit because they were too secluded as in Gilmour v Coats. This strengthens the argument that not all religious trusts were found to benefit the public before 2006. In relation to education the Charity Commission agrees with the ISC decision that the 2006 Act simply restates pre-existing law. It is submitted that the law can be improved if the legislature provides a definition of public benefit in addition to the Commission giving continued guidance in order to ensure flexibility. It must also be taken into account that a significant number of the cases which have been considered were decided at a time when religion played a far more predominant role in society. As Luxton states ‘what is charitable in one age might not be so in another’.306

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P Luxton, ‘Making Law? Parliament v The Charity Commission’ Politeia (2009), 27. 306

The EU Court’s concept of agreement of ‘agreement’ within the meaning of Article 101(1) TFEU: An over-inclusive interpretation. Martin Gassler

"The Court misuses the requirement of an ‘agreement’ to protect the integrating of the Internal Market and tries to prohibit all kind of manufacturer’s attempts to prevent parallel trading."

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1. Introduction Article 101 of the Treaty on the Functioning of the European Union (TFEU) is one of the central Treaty Articles governing EU Competition Law. It prohibits agreements and concerted practices between undertakings and agreements, concerted practice and decisions of associations of undertakings that have as their object or effect the restriction of competition. As such, Art 101 TFEU seeks to protect the competitive process between undertakings. It prohibits inter alias ‘agreements’ between undertakings that would undermine this aim. In contrast, if an undertaking acts unilaterally (‘unilateral conduct’) it does not fall within the scope of Art 101 TFEU. Art 102 TFEU may catch unilateral conduct of a dominant undertaking if it is an abuse of dominant position. The precise scope of an ‘agreement’ is in particular important for non-dominant undertakings as they can only be caught by Art 101 TFEU. This article will evaluate the EU Courts’ case law concerning the concept of an ‘agreement’ within the meaning of Art 101(1) TFEU. It is necessary for the CJEU to provide a definition because the concept of an agreement is not defined in the Treaty itself. It will critically discuss (chronologically) four of the leading cases. The article will argue that the EU Court’s definition of an agreement is over-inclusive and goes too far. The EU Courts has gone far beyond the idea of an agreement as a mere concurrence of wills between two

parties. Indeed in some case it was concluded that an ‘agreement’ exists despite the fact that such is clearly against the interest of one party. The EU Courts’ criterion on whether two conducts constitute an ‘agreement’ is whether the conduct of one party (in all discussed case the manufacturer’s conduct) has the intention to prevent parallel trading. This is when dealers trade manufacturer’s products from ‘low-priced countries’ (where they buy the product from manufacturer at low costs) to ‘high-priced’ countries (where they would need to pay much more of the same product) and make profit at of this.307 Thus, the objective of the integration of the European market (i.e. to allow parallel trading in order to harmonize prices on the European market) has been a very strong incentive for the EU Courts for their case law concerning ‘agreements’.308 But from a legal perspective this has very little to do with a ‘concurrence of wills’.

2. Case Law

2.1 The AEG case – the tacit acceptance of agreements

The first important case is AEG where the Court of Justice of the European Union (CJEU) held that the form of consent is irrelevant to whether an agreement exists or not. 309 A concurrence of wills can be achieved by explicit or tacit acceptance. AEG, used its selective distribution network (‘SDN’) to fix prices. Normally SDNs are used to maintain 307

Jakobsen & Broberg (2002), The Concept of Agreement in Article 81(1), European Competition Law Review 127, p. 1. 308 Ibid. pp. 1-2. 309 Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151.

certain qualitative standards when dealers sell manufacturer’s products310. In this case, however, the SDN was not just based on objective criteria as AEG also tried to maintain high prices for its products. It refused to approve those distributors that did not want to maintain a high-price-level although they satisfied the objective criteria.311 Both, AEG and its approved distributors (which accepted the high-price-level), had a common interest, namely higher profits at the cost of consumers. The Court of Justice of the European Union (CJEU) stated that “the admission of a distributor, approval is based on the acceptance, tacit or express, by the contracting parties of the policy pursued by AEG”.312 Thus the unilateral conduct of party A (‘offer’) can be accepted tacitly (not just explicitly) by party B and therefore constitute an agreement. 313 The outcome of AEG is that the form in which the consent is expressed should irrelevant as both, tacit and explicit consent, are legally significant. The real intentions - not the form should matter. In this (early) case the concept of an agreement is not over-inclusive as in most European legal systems contracts can be made by tacit acceptance. It is a necessary approach as there is a need to catch both tacit and explicit agreement. AEG’s approvals were seen as antiA selective distribution network (‚SDN’) is a network of approved retailers which fulfil certain objective standards. These standards are set out by the manufacturer in order to ensure in particular qualified staff, good technical equipment etc. Although the manufacturer is not vertically integrated (that is a undertaking which produces and sells its products without the intermediate step of dealers; he is manufacturer and dealer at the same time), the manufacturer’s aim is to ensure some qualitative standards when dealers sell its products. 311 One can say AEG added in its SDN-approval-process a subjective ‘price-fixing-criterion’ to the objective criteria (e.g. good knowledge of staff, etc). 312 Supra 3, para 38. 313 Tacitly acceptance means that the actual behaviour of a distributor can be seen as an acceptance. 310

competitive ‘agreements’, since AEG’s approval was dependent on the distributors’ will to maintain high prices. This ‘will’ was seen as the tacit acceptance. However, later cases seem to go beyond that simply ‘offer-and-acceptancemechanism’.

2.2 The Ford case – unilateral conduct as a part of agreement because it is necessary for the nature of the framework agreement

Two years after AEG the CJEU delivered the Ford judgement. 314 Ford sold its cars in Germany through a SDN. After currency fluctuations the prices of right-hand-drive cars in Germany were significant lower than on the British market and the demand for right-hand-drive cars shifted to Germany. To shift demand back to British dealers, Ford notified its German distributors that all right-hand-drive cars had to be purchased from a British dealer or form its subsidiary Ford Britain. The main difference with AEG is that agreements between Ford and its German distributors already existed as both parties wanted to set up their continuous business relation upon solid legal ground. Such agreements can be described as ‘framework agreements’, and as the CJEU noted, “[b]ecause technological developments are not always foreseeable over such a period of time, those [framework] agreements necessarily have to leave certain matters to be decided later by the manufacturer”.315 This is significant because such 314

Case 25/84 and 26/84 Ford Werke AG, Ford Europe Inc v Commission [1985] ECR 2725. 315 Ibid., para 20.

framework agreements - general in their nature and could not foresee every new technological development - allowed Ford to unilaterally decide ‘certain matters’ later. These unilateral ‘determinations’ will be part of the framework agreement to which distributors consented in advance. It is therefore crucial to determine what falls within the meaning of ‘certain matters’. The CJEU stated that Ford’s decision to discontinue accepting orders for right-hand-drive cars fell within these matters as this concerned the deliveries of their car models.316 It is submitted that the Court uses an over-inclusive interpretation because such unilateral ‘determinations’ fall within the scope of the framework agreement irrespective of the fact that they are against the dealers’ interests. If they are covered by the framework agreement then they fall within the scope of Art 101 TFEU. It goes too far to construct an ‘agreement’ (out of these unilateral ‘determinations’) without considering the dealers’ interests. Such unilateral ‘determinations’ should not be seen as part of an ‘agreement’ because they are only in Ford’s interest. If the Court stated that is ‘necessary’ to leave certain matters to be decided later, it seems to use a purposive and objective interpretation. It is a purposive interpretation because the purpose of such framework agreements is to give the manufacturer some discretion (and not to wait every time for the explicit consent of its distributors) when new technological developments arise which were necessary to be implemented. It also represents an objective interpretation because if parties agree upon such a framework agreement then the manufacturer’s discretion comes automatically with it. But such discretion has to be interpreted objectively and in the interest of both parties. Otherwise, the manufacturer can abuse its (automatically given) discretion to include matters that are 316

Ibid., para 21.

solely in his subjective interest. The Court ignored the implied objective interpretation of such unilateral ‘determinations’ because of the subjective intentions: namely Ford’s reason to shift demand from Germany to the higher priced British market. The clearest explanation for the Court’s conclusion is that it wanted to prohibit manufacturer’s efforts to prevent its dealers from parallel trading. The problem with that approach is that whether a later following manufacturer’s unilateral conduct fits within the framework agreement dependents then on whether this unilateral conduct is anti-competitive (in particular when it prevents parallel trading); but not whether it is objectively necessary in the light of technical development. The Court merged two requirements into one: the ‘agreementrequirement’ and the ‘restriction-of-competitionrequirement’’.317 Instead, the right approach should be to apply the ‘offer-andacceptance-mechanism’ and consider the interests of both parties. If for instance some dealers are willing to accept the new offer from Ford (to order now only from British dealers or Ford Britain) then a new agreement exists. This agreement may or may not be anti-competitive, but this is assessed as the fulfillment of a separate requirement. If they do not accept the new offer then Ford’s conduct, not to supply righthand-drive cars (based on the ‘old’ framework agreement), enables dealer to sue Ford for non-complying with a contract. 2.3 The Sandoz case – ‘unilateral’ conduct creates an See Article 101(1) TFEU: „The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market [...]“. 317

‘agreement’ if the conduct is used systematically and repeatedly and the other party does not protest against it In Sandoz the Italian subsidiary of the pharmaceutical manufacturer Sandoz tried to obstruct the parallel trading of their Italian distributors to other EU member states because the prices of their pharmaceutical products in Italy were much lower than in other EU states. 318 It tried to achieve that by including export restrictions on the invoices (invoices stated “export prohibited”). The CJEU stated that these export-ban-statements constitute a framework agreement because they were dispatched systemically and repeatedly and because dealers did not protest against them.319 320 There are two related issues here. The first issue relates to Sandoz’s conduct and the second to dealer’s conduct; to start with the former. In Ford the framework agreement already existed and the manufacturer’s unilateral conduct was seen as part of that existing framework agreement. In Sandoz no such explicit framework agreement (i.e. written contracts) existed. But the Court concluded the systematic dispatching of invoices by Sandoz (stating “export prohibited’) created such framework agreements with its dealers because the dealers did not protest against these statements. As Advocate General Van Gerven pointed out, this ‘process of creation’ can be described as the normative effect of a unilateral conduct,321 Unilateral conduct (here: systemically dispatching of invoices) may become normative by establishing an ‘agreement’ if dealers do not protest. The second issue relates 318

Case 277/87 Sandoz v Commission [1990] ECR I-45. This framework agreement had the purpose of governing the general business relations between both parties. 320 Supra 12, para 1. 321 Opinion of Advocate General Van Gerven on Case 277/87 Sandoz v Commission [1990] ECR I-45. 319

to the dealer’s conduct. James E. Thompson 322 points out the Court’s approach is a ‘contextual’ as it does not assess whether both parties have actually agreed on anything 323. If dealers do not protest, tacit acceptance can be assumed irrespectively of the real interest of the distributors. The Court’s understanding of an agreement is (again) overinclusive because it has little to do with an ‘agreement’ understood as a concurrence of wills.324 As in Ford, the Court (again) completely ignores the dealer’s interests. Instead the Court is protecting the integrity of the internal market and is trying to prohibit all kind of manufacturer’s attempts to prevent parallel trading. But the European Union is based on the principal of legality.325 The Court’s interpretation of Article 101(1) TFEU is, as Broberg and Jakobson point out, at a point were it is very close to the outer limits of that principle.326 They might even consider that it has been exceeded. The Court’s approach is legally inappropriate and Sandoz’ conduct should be considered as unilateral conduct. Firstly, the Court should consider both parties’ interests. If dealers’ interests are contrary to manufacturer’s interest then tacit acceptance should not be assumed. This is even truer when there are no sanctions on side of the manufacturer (in particular no refusal to supply if dealers still engage in parallel trading). Secondly, the Court should not merge the two-steps-test of the ‘offer-and-acceptance-mechanism’ into one step. The CJEU not just requires from dealers to consider 322

See E. Thompson (1990), Case-note to Sandoz P.F. and Tipp-Ex, C.M.L.Rev. 589. 323 Supra 1, p. 10. 324 Even the General Court (GC) pointed this out in its later judgments like Case T-41/96 Bayer v Commission [2000] ECR II-3383, para 173. 325 Article 13(2) of the Treaty on European Union (TEU) provides that „each institution shall act within the limits of the powers conferred on it in the Treaties“. 326 Supra 1, p. 11.

systemically dispatched manufacturer’s statements as possible ‘offers’ for a new agreement (‘offer-requirement’); but at the same time demands from them to explicitly protest against these statements, even if dealers act contrary to the manufacturer’s statement (here: still engage in parallel trading) and clearly do not express any tacit acceptance of that offer (‘acceptance-requirement’). 2.4 The Bayer case – without articulated intentions it is very unlikely for the Commission to prove the existence of an agreement (first limits to the wide interpretation of an ‘agreement’)

The Bayer327 case has shown the limits of the broad concept of an agreement. Bayer distributed its pharmaceutical product ‘Adalat’ in various EU states where the prices differed. Spanish and French wholesale distributors saw that opportunity and exported Adalat to the UK (‘parallel exporting’). The approach of Bayer was different from Sandoz as it decided to limit supply to those parallelexporting-wholesalers. It reduced the supply insofar as exporting was not possible any more. The distributors were obliged by national law to stock a certain amount of drugs for their domestic market. Bayer was able to identify this quantity and supplied exactly this amount. It did not refuse to supply them completely but just insofar so that they were not able to export. Bayer did not articulate the reason for the reduced supply to those distributors as the staff was even told not to speak about the real rationale for the reduced supply. Thus, it was not possible to derive from the mere fact of supply reduction Bayer’s intention to obstruct parallel trading. 327

Case T-41/96 Bayer v Commission [2000] ECR II-3383.

The Court stated that it is sufficient to speak of an ‘agreement’ if undertakings have expressed “their joint intention to conduct themselves on the market in a specific way.”328 It added that in the context of contractual relations between Bayer and its distributors ‘unilateral’ conduct can form the basis to be qualified as an ‘agreement’ 329. The CFI is referring to the case law, in particular the Sandoz and Ford cases, where unilateral conduct of the manufacturer was seen as an agreement. The difference 330 between the Sandoz and Ford on the one hand and Bayer on the other hand is that Bayer had not articulated its intention, while Ford did so in form of circulars and Sandoz in form of a export-restrictionclause on the invoices331. The CFI (upheld by the CJEU332) concluded that the Commission has neither proven Bayer’s intentions to impose export bans on its wholesaler, nor that a systematic monitoring of the final destinations of Adalat were established, nor that threats and sanctions were used against the wholesalers to comply with a export ban, nor that the supply was conditional upon the compliance with the export ban333. Thus, the Commission’s decision was annulled.

328

Ibid., para 67. Ibid., para 72. Although some claim that there is no difference, like WA Rehmann (2004), Kein Freibrief für Kontingentierungsmaßnahmen der Pharmazeutischen Industrie: Urteilsbesprechung EuGH 6. Januar 2004 Bayer Adalat, Rs. C 2/01 P and C 3/01 P, Pharma Recht 2, pp.76-77. But the reason why he argues that way is that he was one of the unsuccessful appellants. 331 See for example Wickihalder (2006), The distinction between an ‘agreement’ within the meaning of Article 81(1) of the EC Treaty [now Article 101(1) TFEU] and unilateral conduct, European Competition Journal 2(1), pp. 87-117, p. 108. 332 Case C-2/01 P and C-3/01 P Bundesverband der ArzneimittelImporteure eV v Bayer AG [2004] ECR I-23. 333 Ibid., paras 77-109. 329 330

The Commission334 derived from this case that it has not proven Bayer’s intentions to prevent parallel trading. This judgment is not over-inclusive as the EU Courts showed for the first time the limit of its understanding of an agreement. The outcome is legally desirable, as the burden of proof is by the Commission. The Commission has to prove manufacturer’s real intention by convincing the Court that. In Ford and Sandoz the Commission had also to prove the manufacturer’s intention, but it was effortless as it was articulated (in form of circulars or invoices). 3. Conclusion

The EU Courts’ interpretation of an ‘agreement’ within the meaning of Art 101(1) is far too broad and over-inclusive. While in AEG the understandable principle of tacit acceptance was established, the Courts went far beyond that. In Sandoz and Ford the CJEU concluded that an ‘agreement’ existed despite the fact that manufacturer’s intentions were contrary to the distributors’ interests. In Sandoz it presumed the dealer’s tacit acceptance if they did not explicitly protest against export-ban-statement; and that despite the fact that dealers were still supplied by the manufacturer if they did not stop engaging in parallel trading. The Court misuses that requirement of an ‘agreement’ to protect the integrating of the Internal Market and tries to prohibit all kind of manufacturer’s attempts to prevent parallel trading. But the European Union is based on the principal of legality 335. The Court’s interpretation of an agreement within the meaning of Article 101(1) TFEU might even have exceeded that. The Bayer case is one of the Court’s attempt to rebalance that 334 335

Commission MEMO/01/4, 10 January 2001. Supra 19.

over-inclusive concept of an agreement: If the manufacturer intentions are not articulated then the Commission cannot simply assume that the intention is to prevent parallel trading but has to prove it..

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To what extent should parties mediate rather than litigate their disputes? Chee Ching Chan

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"â&#x20AC;Ś it is reasonable to consider the nature and merits of the case when parties want to refuse mediation. However, mediation should always be

considered when the case is appropriate, regardless of whether other types of methods are available or not."

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1. Introduction Disputes happen when two parties do not agree on a particular matter.336 Traditionally, this adversarial disagreement may make its way to the court if the disputes cannot be resolved by simple negotiation. 337 Alternative dispute resolution refers to a range of techniques for resolving disputes other than by means of traditional court adjudication.338 It is a relatively new concept in England and Wales but there are signs that it is gaining momentum and popularity with the Government, practitioners, academic experts and even parties.339

Alternative dispute resolution is an umbrella term that covers mediation, arbitration and conciliation. 340 In this essay, the emphasis will be on mediation â&#x20AC;&#x201C; one of the principal 336

Jonathan Crowther (ed) Oxford Advanced Learner's Dictionary (Oxford University Press 1996) 335. 337 Ministry of Justice, The Dispute Resolution Commitment: Guidance for Government Departments and Agencies (AGO, 2011). 338 Hazel Genn, Judging Civil Justice (1st edn, Cambridge University Press 2008) 82. 339 Hazel Genn, Twisting arms: court referred and court linked mediation under judicial pressure (Government Social Research, Research Series 1/07, 2007). 340 Ministry of Justice, Solving disputes in the county courts: creating a simpler, quicker and more proportionate system (Consultation Paper CP6/2011, 2011).

alternative dispute resolution methods. Unpacking the title, there are two keywords to be dealt with in this essay. Firstly, should parties mediate rather than litigate in their disputes? There are different views expressed by authoritative commentators.341 And secondly, how far an extent should parties go in terms of mediation before going for litigation?

The framework of this essay is laid down in the following structure. Firstly, background knowledge of mediation and litigation will be discussed. Secondly, this essay will argue that parties should mediate before turning to litigation as a resolution, such as the mandatory mediation applied in Ontario Scheme 1999.342 Thirdly, this essay will look at the factors that are important in determining the extent of mediation when parties choose to elect this approach. And lastly, this essay will conclude with what the potential outcomes might be with mediation in England and Wales with the publication of an authoritative mediation handbook as recommended by Lord Justice Jackson. 343

2. Litigation Litigation is a formal mechanism to resolve dispute when informal mechanisms no longer have the power to deal with

Bryant Garth, â&#x20AC;&#x2DC;From civil litigation to private justice: legal practice at war with the profession and its valueâ&#x20AC;&#x2122; (1993) 59 Brook L Rev 931. 342 Robert G. Hann and Carl Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report -- The First 23 Months (Ontario Ministry of the Attorney General, March 2001). 343 Lord Justice Rupert Jackson, Review of Civil Litigation Costs (TSO, 2010). 341

the problems that arise.344 Historically, this adversarial method involves preparation for trial before a judge under a fine set of rules.345 Parties are allowed to resolve legal disputes in a disciplined manner without the need for bloodshed. Litigation is potentially lengthy and costly, and the adversarial process is like to damage parties’ relationships. Cases are heard before a third party, the judge and the idea is that there is a decision, and generally a winner(s) and a loser(s).346 Some cases are required to be brought before the judge and they are not suitable for mediation. For example, test cases to set a precedent or cases where publicity is both necessary and desirable. 347 The purpose of this essay is to explore mediation, which is why litigation has been briefly discussed.

3. Mediation

Mediation is a relatively new means in England and Wales to settle disputes, and it is often quicker and cheaper than normal litigation.348 It has a long history in family and labour disputes particularly in the Far East and it is gaining its place in commercial disputes.349 In England and Wales, the interest in mediation has grown over the past two decades. Perhaps the most significant starting point is Lord Woolf’s interim report on Access to Justice 1995 and final report on Access to 344

Gary Slapper and David Kelly, The English Legal System (12th edn, Routledge 2012) 551. 345 Ministry of Justice, The Dispute Resolution Commitment: Guidance for Government Departments and Agencies (AGO, 2011). 346 Rhys Clift, ‘The phenomenon of mediation: judicial perspectives and an eye on the future’ (2009) 15 JIML 508. 347 Ibid. 348 Ibid. 349 Gary Slapper and David Kelly, The English Legal System (12th edn, Routledge 2012) 551.

Justice 1996.350 He said that parties would be encouraged to start court proceedings only as a last resort and to use prelitigation alternative dispute resolution instead. 351 His final report led to the introduction of the Civil Procedure Rules via Access to Justice Act 1999, making a reform of the legal aid system in England and Wales.352 Previously, the Legal Aid Act 1988 largely ignored other ways of resolving disputes beyond litigation.353 The Access to Justice Act 1999 allowed all forms of alternative dispute resolution to have at least equal validity to court proceedings. 354 The Legal Aid, Sentencing and Punishment of Offenders Act came into force on 1 April 2013 and it provides help with family mediation in particular.355

The Government promoted the use of alternative dispute resolution in 1998 due to the rising cost on criminal justice system and the need to control expenditure on civil justice system. This led to the publication of White Paper, Modernising Justice in 1998.356 In this paper, the Government wanted to improve the options of alternative dispute resolution so that mediation can play a prominent role in saving cost in the civil justice system. 357 In Canada, the Ontario Scheme was launched in 1999 to implement mandatory mediation to all cases. A report 350

Lord Woolf, Access to Justice: Interim Report to Lord Chancellor on the civil justice system in England and Wales (Ministry of Justice, 1995). 351 Ibid. 352 Lord Woolf, Access to Justice: Final Report to Lord Chancellor on the civil justice system in England and Wales (Ministry of Justice, 1996). 353 Legal Aid Act 1988. 354 Access to Justice Act 1999. 355 Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 49(2). 356 Department of Constitutional Affairs, The Government's White Paper, Modernising Justice (Stationary Office, 1998). 357 Hazel Genn, Judging Civil Justice (1st edn, Cambridge University Press 2008) 82.

evaluating the Ontarioâ&#x20AC;&#x2122;s scheme success concluded that mandatory mediation had saved time and costs, led to early settlements and resulted in greater satisfaction to parties. 358 The results were compared with the automatic referral to mediation (ARM) in Central London County Court but did not show similar positive results as with Ontario Scheme. 359 There was a high rate of objection to mediation in the ARM pilot. This pilot scheme was unfortunately affected by the Hasley judgement which held that the court had no power to compel parties to enter a mediation process thereby reducing its potential affect.360

In December 2003, the Funding Code Guidance stated that the application for mediation legal aid for representation may be refused if there are alternative dispute resolution options that ought to be tried first361. This has been updated by the newer version of the Legal Services Commission Funding Code and Guidance 2005.362 Again this signifies the Governmentâ&#x20AC;&#x2122;s commitment to encouraging mediation. To summarise, since the emergence of mediation two decades ago in England and Wales, there has been a significant gain in popularity and support across the timeline.

4. Case law

358

Robert G. Hann and Carl Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report -- The First 23 Months (Ontario Ministry of the Attorney General, March 2001). 359 Hazel Genn, Twisting arms: court referred and court linked mediation under judicial pressure (Government Social Research, Research Series 1/07, 2007). 360 Halsey v Milton Keynes General NHS Trust [2004] EWCA 3006 Civ 576. 361 Ministry of Justice, Funding Code Guidance (December 2003). 362 Legal Services Commission, Funding Code and Guidance (2005).

This essay will analyse the landmark cases that affect the development of mediation in England and Wales. Starting with Cowl and Others v Plymouth City Council363, the court attached an “unreasonable” refusal to mediate civil disputes for the first time. The effect was that the party cannot refuse mediation unreasonably. Subsequently in Dunnett v Railtrack364, the court dismissed Mrs. Dunnett’s appeal against Railtrack, but nonetheless refused to order Mrs. Dunnett to pay Railtrack’s costs in the appeal. This was due to Railtrack’s refusal to contemplate mediation prior to the appeal. Hurst v Leeming365 reinforced Dunnett v Railtrack, it was held that it is for the judge to decide whether a refusal to mediate was justified. This was further confirmed by Leicester Circuits Ltd v Coates Brothers PLC366 that the court will seek to promote and enforce mediation. However, there was a tide-turn in Halsey v Milton Keynes General NHS Trust367. The Court of Appeal requested the opinion of Civil Mediation Council, the ADR Group, Centre for Effective Dispute Resolution (CEDR) and the Law Society about the value of mediation in this case. The court eventually accepted the Law Society’s submission that each case should be evaluated by the court on a case-by-case basis to see whether mediation had been unreasonably refused by parties.368 In this case, Lord Justice Dyson held that the courts have no power to order mediation because this might infringe the Human Rights Act 1998 of the right of access to the courts.369 Hasley slowed down the mediation momentum. In 363

[2001] EWCA Civ 1935. [2002] 2 All ER 850. 365 [2001] EWCH 1051. 366 [2003] EWCA Civ 333. 367 [2004] EWCA 3006 Civ 576. 368 Ibid. 369 Human Rights Act 1998, art 6. 364

the case of Burchell v Bullard370, mediation has regained its momentum when the Court of Appeal imposed penalties for unreasonable refusals to mediate.

5. Extent of mediation It is beyond the scope of this essay to discuss all the details regarding litigation and mediation. However, with some basic background knowledge, commentatorsâ&#x20AC;&#x2122; views and research outcomes on these topics, this essay will now firstly argue that parties should mediate rather than litigate. Secondly, this essay will discuss the extent of mediation before going for litigation; in particular, this essay will outline the suitable cases for mediation based on various commentatorsâ&#x20AC;&#x2122; opinion and arguments. Lastly, this essay will discuss the reasons that parties can use to refuse mediation. Through the arguments, this essay will hope to define the extent of mediation. This essay argues that commercial and family dispute cases should all be considered for mediation. The Ontario Scheme showed evidence that mediation has a high settlement rate for commercial cases.371 Furthermore, the Government encourages mediation in family disputes by specifically allocating aid for family dispute under the Legal Aid, Sentencing and Punishment of Offenders Act which came into force in April 2013.372 Hazel Genn takes a more liberal view and she is in favour of mediation as an important option 370

[2005] EWCA Civ 358. Robert G. Hann and Carl Baar, Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1): Final Report -- The First 23 Months (Ontario Ministry of the Attorney General, March 2001). 372 Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 49(2). 371

for all civil disputes.373 However, personal injury cases are less likely to use mediation. This is because parties either settle at negotiation, or parties emphasise heavily their legal rights and thus make their way to court. The type and nature of the case is a factor to be taken into consideration when deciding the extent of mediation.

6. The Parties’ willingness to mediate It is necessary to define the extent of mediation; parties’ willingness to mediate must be established. This can be done by the process of “Reality Testing”. 374 If parties are not motivated by mediation, there is no prospect of settling a dispute. Some parties view mediation as a real means of settling disputes, whilst others view it as another hurdle before reaching the court. Hence, it is important to establish parties’ attitude towards mediation. It will be fair to argue that parties should mediate if there are positive outcomes from both parties in “Reality Testing”. If one party or both parties produce a negative result in the test, they should not proceed with mediation and they should go for litigation instead. It is to this extent that parties should mediate rather than litigate according to their willingness. Courts have a major role in deciding on whether parties have refused mediation unreasonably. Test cases such as Dunnett v Railtrack375, Halsey v Milton Keynes General NHS Trust 376 have given precedent authority to impose sanctions or 373

Hazel Genn, Judging Civil Justice (1st edn, Cambridge University Press 2008) 82. 374 Hazel Genn, Twisting arms: court referred and court linked mediation under judicial pressure (Government Social Research, Research Series 1/07, 2007). 375 [2002] 2 All ER 850. 376 [2004] EWCA 3006 Civ 576.

penalties to parties who refuse mediation unreasonably. The legal effect of these cases will be that parties could only refuse mediation with valid reasons.

7. Lawyersâ&#x20AC;&#x2122; contribution Lawyers must make the mediation option to the parties. This practice should be made compulsory for lawyers, a similar principle to â&#x20AC;&#x153;informed consentâ&#x20AC;? in the medical field. 377 Lawyers should ensure that their clients are aware and understand mediation at an early stage of the consultation. This practice may seem harsh to lawyers, but the argument is that if the parties do not know about or understand about mediation, then they will not consider it as an option. Therefore, it can be argued that this compulsory practice should be enforced with the broader extent of mediation. The weakness of this argument is that every lawyer would need to be trained to understand mediation in more detail and this would be expensive, time-consuming and time inefficient.

8. Funding, facility and administration The extent of mediation should not be limited by funding, facility or administrative issues. This essay argues that the Government should fully encourage the use of mediation in appropriate cases by the means of funding, and these include facility and administrative support. Over the years and more recently, the Governments have been clear on their support for mediation from a legal aid point of view. 378,379,380 If 377 378

Chester v Afshar [2004] UKHL 41. Legal Aid Act 1988.

mandatory mediation were to be implemented, facility and administrative support for mediation must be in place. For example, providing a dedicated team of mediation to parties is preferable to merely providing a telephone number of a mediator.381 For suitable cases, the costs of mediator should be given incentives or reimbursement by Governments to the parties to fully extend the use of mediation. The effect of this would be that mediation would become more popular if this was to happen.

9. Reasonable refusal to mediate and access to justice Appropriate selected cases should be made compulsory to have mediation. If parties do not agree with mediation, they should apply for the court order with valid reasons. If parties refuse unreasonably, they should be penalised in order to deter them from doing so. There are certain ground rules for what constitutes a reasonable refusal from the parties. In Halsey the Court of Appeal set out the factors to be taken into account in determining whether a party has unreasonably refused to mediate, including the nature of the dispute (when the nature reasonably prevents the case being suitable for mediation); merits of the case (when the successful party has a reasonable belief that his or her case is watertight); use of other settlement methods; costs of mediation; risks of delay; and whether the mediation has a reasonable prospect. 382

379

Access to Justice Act 1999. Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 49(2). 381 Hazel Genn, Twisting arms: court referred and court linked mediation under judicial pressure (Government Social Research, Research Series 1/07, 2007). 382 [2004] EWCA 3006 Civ 576. 380

Analysis of reasonable refusal to mediate and the effects of law will be discussed below. Considering the listed factors above, it is reasonable to consider the nature and merits of the case when parties want to refuse mediation. However, mediation should always be considered when the case is appropriate, regardless of whether other types of methods are available or not. Apart from that, the cost of mediation (£1500 to £2000) should not be a reason to refuse mediation; this is especially true for commercial disputes when the cost of mediation is comparatively low. Former Lord Chancellor Kenneth Clarke supports this and he would want to make claim less than £5000 compulsory for mediation.383 It is agreed with Hasley that the prospects of success can be a valid reason to refuse mediation. A major concern by Owen Fiss is the access to justice in mediation.384 He is of the opinion that parties might settle while leaving justice undone. He argued that anti-litigation involves the compromise of legal rights and would interfere and distort the adjudicative process.385 However, Bush and Folger argued that mediation frees up the courts for other disputes, reduces delay and increases access to justice. 386 Both arguments are persuasive, but the heavy caseload in civil courts in England and Wales may prove that Bush and Folger’s argument is more applicable. It is acknowledged that mandatory mediation may infringe parties’ legal rights to fair trial.387 Unfair access to justice should be a valid reason for a party to refuse mediation, in addition to other accepted 383

Ministry of Justice, The Dispute Resolution Commitment: Guidance for Government Departments and Agencies (AGO, 2011). 384 Owen M Fiss, ‘Against Settlement’ (1983-1984) 93 Yale LJ 1074. 385 Ibid. 386 Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: The Transformative Approach to Conflict (Jossey-Bass 2005) 9-19. 387 Halsey v Milton Keynes General NHS Trust [2004] EWCA 3006 Civ 576.

reasons listed in Hasley. 11. Conclusion In conclusion, parties should mediate rather than litigate in their disputes when their cases are judged to be appropriate by the court. The extent of mediation is developed by the arguments above – close to mandatory mediation in appropriate cases coupled with accepted reasons to refuse. Many countries such as Canada have proven success in commercial cases with mandatory mediation. When cases are deemed to be appropriate for mediation by the court, parties should obey and attempt mediation; otherwise they can face penalties. Nevertheless, parties would be given an option to request for a court order if they have valid reasons to refuse mediation. The highly expected authoritative mediation handbook by Lord Justice Jackson which is published in April 2013 gives clearer guidance on suitable cases for the use of judges, litigators and parties.388 Undeniably, the Government has recognised the role of mediation in England and Wales in recent years. Government’s effort to utilise mediation to an appropriate extent via policy implementation is more obvious now than ever. It will not be a surprise if there were a Mediation Act in the future.389

388

Susan Blake, Julie Browne and Stuart Sime, The Jackson ADR Handbook (1st edn, Oxford University Press 2013). 389 Anthony Evans, ‘Forget ADR - think A or D’ [2003] CJQ 230.

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Legal Aid Cuts: Hindrance on Justice

Unwelcome Harry Scott

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"â&#x20AC;Ś thousands of low earners will be caught between an inability to afford representation and an inability to apply for assistance

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1. Introduction On 6th January 2014, for the first time in UK legal history, barristers and solicitors withdrew from practice, effectively going on strike in response to the latest reduction of legal aid funding. As such it seems apt to look at how the legal aid system has changed and whether or not this is positive. This article will firstly look at how legal aid has been reduced across the board through recent legislation and why the government chose to do this, before proceeding to look at how this has affected lawyers, clients and more broadly the justice system. It shall then consider the positive and negative aspects of the changes from the point of view of academics and evaluate how our legal aid system stands in comparison to other countries. It will conclude that despite supposed justifications, which we will look at, the cuts are unsatisfactory both financially and in terms of their impact upon individuals.

2. A background to the cuts Legal aid is a vital service, providing financial assistance for representation and advice for those unable to afford it. In England and Wales, the system is tied closely to the idea of a welfare state and the need for citizens to have access to justice, a right enshrined in Article 6 of the European Convention on Human Rights, The Right to a Fair Trial. Before recent reforms, legal aid for civil cases used to be awarded to those whose household income did not exceed ÂŁ31,884 a year and whose â&#x20AC;&#x2DC;disposable incomeâ&#x20AC;&#x2122;, accounting

for taxes, child support and other expenses, did not exceed £8,796 a year.390 Legal aid was also provided under similar circumstances for criminal cases, both during police custody and throughout the trial. This was already a transformation of the original provisions established by the Labour Government in the 1949 Legal Aid and Advice Act, through which around 80% of the population could be awarded some form of assistance.391 However, prior to the changes, it is arguable there was a still significant overspend on legal aid, with around £2.2 billion being allocated to it every year. In the continuing effort to cut costs across the board, the Government looked to this as the next obvious target, notably through the Legal Aid, Sentencing and Punishment of Offenders Act (2012) (‘LASPO’).392 The latest reductions of legal aid have caused contention amongst both the public and members of the legal profession since being staggered into effect over the past year or so.

3. What has actually changed? With respect to civil legal aid, all aspects of family law used to be covered by the now abolished Legal Services Commission. Providing one was financially eligible, this included areas like divorce proceedings and childcare. The LASPO Act restricts the range of eligible areas significantly, with people now left without access to financial assistance for 390

Neasa Macerlean, ‘Legal aid: who qualifies and how much help can you

get?’, (The Guardian, 25 September 2010) 391

Save Legal Aid, ‘The History of Legal Aid’, <

http://www.savelegalaid.co.uk/history.html#_ftn2> Accessed 22 January 2014 392

‘Legal Aid, Sentencing and Punishment of Offenders Act (2012)’, Part 1

most private family law. Personal injury cases have been removed from the legal aid budget since the 1999 Access to Justice Act and now nearly all areas of clinical negligence, except those relating to specific cases of child brain injury have also been cut. The majority of cases involving welfare benefits, employment, housing, education and immigration not involving asylum will also be cut from the welfare budget. The then Justice Secretary Kenneth Clarke, argued that these measures were intended to “ensure taxpayers’ money is being spent where it is most needed and most effective”393 and in practice aimed to slash the budget for civil legal aid by around 15% (£350 million). The Government claimed that funds were being wasted on long, expensive and unimportant cases, and that there was a need within the industry to move away from reliance on the current compensation culture and look to ways to deal with matters such as marital troubles out of court through alternative dispute resolution. Legal aid for criminal law has also been targeted in an effort to cut a further 10% (£220 million) with Justice Secretary Chris Grayling arguing it as “by far the largest element of our remaining legal aid spend”.394 A key element of the plans for cutting criminal legal aid is a reduction of lawyer’s fees of up to 30%. These proposals were seemingly put forward as a response to lawyers exploiting the system by dragging out criminal trials in the courts in order to claim more money for cases395, although this characterisation of lawyers as fat cats burdening the taxpayer is misguided and strongly disputed, 393

Ministry of Justice (Press Release), ‘Royal Assent for Legal Aid,

Sentencing and Punishment of Offenders Bill’, (Justice, 1 May 2012) 394

‘Legal Aid: Criminal Case Cuts Planned’, (BBC News, 5 March 2013)

<http://www.bbc.co.uk/news/uk-21666224> Accessed 20 January 2014 395

‘Royal Assent for Legal Aid, Sentencing and Punishment of Offenders Bill’, (Justice, 1 May 2012)

with the reality being that many juniors earn as little as £25,000 a year.396 Many in the profession argue that this will kill off the Criminal Bar as we know it, with many being unwilling to work for such fees and the justice system playing second fiddle to the wills of those in charge of the public purse.

3. Government Justification It has been argued by Government ministers and others that opponents of the cuts have exaggerated the impact they will have. Justice Minister Shailesh Vara claimed “even after the latest proposals, we will have one of the world’s most generous legal aid systems in the world”.397 Whilst it may be true that a large amount of money is devoted to legal aid, it is our duty to provide adequate access to justice regardless of what may seem like a vast expense on the face of it. They also assert that these cuts are vital to sustaining the system in the first place and are keen to demonstrate that the intended targets are rich lawyers rather than those in need. The Ministry of Justice published figures supposedly supporting this argument, showing that 1200 barristers earned a minimum of £100,000 each from legal aid in criminal cases in 2012.398 However, Nigel Lithman QC. - Chairman of the Criminal Bar 396

Liberty, ‘Legal Aid’, <http://www.liberty-human-rights.org.uk/human-

rights/justice/legal-aid/index.php> Accessed 23 January 2014 397

Catherine Baksi, ‘Legal aid cuts will not affect quality, Vara insists’ (The

Law Society Gazette, 13 November 2013) Owen Bowcott, ‘Barristers and Solicitors Walk out over legal aid cuts’ (Guardian.com, 5 January 2014)

Association, has contested that these figures fail to deduct costs including VAT and chambers fees and are therefore a misrepresentation.399 It is also clear that by reducing the scope of legal aid to the very lowest income group and no more, thousands of low earners will be caught between an inability to afford representation and an inability to apply for assistance as a result of the narrow requirements. Roger Smith contends that this attitude towards the system reduces it to simply providing “the lowest level of service that will comply with our minimum obligations under the European Convention on Human Rights at the least possible cost”. 400

4. Victims of LASPO The fees of solicitors and barristers are not however, the most significant effect of the reforms. From an Equality Impact Assessment conducted in response to LASPO, it is estimated that around 623,000 people each year involved in legal problems, will no longer be able to access assistance which they would previously have been able to rely on. 401 Removal of funding to several areas such as family law and immigration is likely to disproportionately affect women and ethnic minorities. Victims of domestic violence will now be denied legal aid for advice or representation in family law cases unless they have proof of their abuse. 402 Although 399 400

O. Bowcott, (Guardian.com, 5 January 2014) Roger Smith, "After the Act: what future for legal aid?" Tom Sargant

memorial annual lecture 2012, London, Tuesday October 16, 2012 Prof. D. H. Genn, ‘Do-it-yourself law: access to justice and the challenge of self-representation’, Civil Justice Quarterly 32(4), (2013) P.4 402 Laura Gray, ‘Legal Aid Cuts: What has Changed’, (BBC News, 18 June 401

2013) <http://www.bbc.co.uk/news/uk-politics-22936684> Accessed 23 January 2013

ministers have assured critics that LASPO has taken care to account for victims of domestic violence and argued reforms as a way of cutting out frivolous claims, it is clearly a dangerous move which could see more female victims being ignored. The requirement for victims to provide evidence of their abuse before any legal aid is awarded shows a disregard for the complexity of domestic violence which is often not reported or is covered up by both the victim and the abuser. 403 Some have suggested that women are also less likely to act as ‘Litigants in Person’ (representing themselves), and will therefore have reduced access to justice in comparison to men.404 This is exacerbated by the massive cuts to advice centres such as the Citizen’s Advice Bureaux, which has seen its funding slashed from £22 million to just £3 million as of April 2013.405 This will leave some feeling less confident in pursuing a case as a litigant in person due a complete lack of legal advice, so they will resign to the fact that they will not have their day in court. This exclusion from the justice system is arguably an affront to the rule of law. Immigrants will also suffer as a result of the cuts, because unless their case is related to asylum or they are currently in detention they will be denied legal aid. Sheona York argues that they will be one of the most vulnerable groups as a result of LASPO, which she says is “likely to lead directly to the break-up of families and the removal of long-term residents from the UK in breach of their human rights”. 406 403

Samira Shackle, ‘How legal aid cuts are harming the voiceless and most

vulnerable’, (New Statesman, 13 January 2014) 404

L. Gray, (BBC News, 18 June 2013) Prof. D. H. Genn, (2013) P.4 406 S. York, ‘The end of legal aid in immigration- a barrier to access to 405

justice for migrants and a decline in the rule of law’, Journal of Immigration, Asylum and Nationality Law 27(2), (2013) P.1

5. The economic argument Aside from criticism of its effects on individuals and vulnerable groups within society, many argue that the LASPO reforms are actually a false economy.407 They have been criticised as ineffective in saving the taxpayer money, due to an increased inefficiency within the courts. Genn argues that the Act will lead to an increase in the number of litigants in person, which in turn will present problems for “the judiciary, the courts and tribunals service, and to litigants themselves”.408 This is clearly important, as the purpose of LASPO was to save money but any benefit could be offset by the extra costs associated with a slower court process. Lord Neuberger argued to this effect, stating the “court hearings will last longer [and] the burden on court staff and judges will increase”.409 As well as a more sluggish court process, the cost-effective aim of the reforms may also be impacted on by the resultant fallout from a lack of legal support. The Citizens Advice Bureaux estimated that “for every £1 spent on housing advice, debt advice, employment advice and benefits advice the state saves between £2.34 and £8.80”.410 Although these sorts of estimates are difficult to make or falsify, if true this would suggest that the reforms are not only unethical but also financially impractical.

407

‘The History of Legal Aid’, (Save Legal Aid) <

http://www.savelegalaid.co.uk/history.html#_ftn2> Accessed 22 January 2014 408

Prof. D. H. Genn, (2013) ‘Q&A: Legal Aid Changes’, (BBC News, 20 March 2013) <http://www.bbc.co.uk/news/uk-21668005> Accessed 23 January 2014 410 Citizen’s Advice Bureaux, ‘Towards a Business Case for Legal Aid’, (2010), P.2 409

6. An international comparison As we saw earlier, the justice minister proclaimed that even in light of the LASPO reforms to legal aid, our system is actually very inclusive when compared to foreign jurisdictions. Whether or not this can be considered a valid justification for the changes is debatable, but it is necessary still to look at the situation from a broader international perspective. The Ministry of Justice has published figures showing how legal aid expenditure in England and Wales compares to countries in the European Union and around the world.411 They estimate that we spend around £39 per head, which is shown to be “higher than the latest estimates available for other countries with similar legal and judicial traditions”.412 The figures reveal that our legal aid expense is higher than any other EU nation except for Northern Ireland. For example, as of 2008; Scotland and Norway were spending £31 per head, Sweden a mere £15 per head with France and others just £5 per head.413 However the government do concede that different approaches to legal systems and the administration of justice “explain at least part of the difference”414, but countries with similar legal systems to England and Wales also appear to be spending less. The report shows that in 2009, Canada was spending around £10 per head and New Zealand around £18.415 As both adopt 411

Ministry Of Justice, International Comparisons of Public Expenditure on Legally Aided Services- Ad Hoc Statistics Note (2011) 412 Ministry Of Justice , International Comparisons of Public Expenditure on Legally Aided Services- Ad Hoc Statistics Note (2011) P.2 413 Ministry Of Justice, International Comparisons of Public Expenditure on Legally Aided Services- Ad Hoc Statistics Note (2011) P.2 414 Ministry Of Justice, International Comparisons of Public Expenditure on Legally Aided Services- Ad Hoc Statistics Note (2011) P.2/3 415 Ministry Of Justice, International Comparisons of Public Expenditure on Legally Aided Services- Ad Hoc Statistics Note (2011) P.2/3

common law legal systems similar to ours, the disparity in expenditure is not so easily explained. However, legal aid is managed somewhat differently in New Zealand. Whilst it is awarded to criminal and civil cases, even including areas of family and employment law, conditions are often a lot tighter. Far more emphasis is placed not only on financial eligibility, but also on the relative merits of each case in considering whether or not to provide legal support.416 As well as this, recent changes have led to a fixed ‘user charge fee’ of $50NZ dollars being introduced for many areas, in order to encourage out of court or alternative settlements.417 It has been suggested that lower divorce and crime rates have also led to significantly less money being spent on legal aid, along with other factors such as different market forces and regulations. 418 Due to factors such as these and others, international comparisons are not always reliable and arguably cannot be used in order to justify or denounce legal policy in England and Wales.

7. Conclusion The Legal Aid, Sentencing and Punishment of Offenders Act (2012) has only recently began to impact upon the law in practice, so it is difficult to say accurately whether or not it 415

International Comparisons of Public Expenditure on Legally Aided Services- Ad Hoc Statistics Note (2011) P.8/9 416 ‘Can I get civil legal aid?’ (Ministry of Justice- New Zealand) <http://www.justice.govt.nz/services/legal-help/legalaid/civil/eligibility> Accessed 1 February 2014 417 ‘What to expect from your legal aid lawyer’ (Ministry of Justice- New Zealand) <http://www.justice.govt.nz/services/legal-help/legal-aid/yourlawyer/what-to-expect> Accessed 1 February 2014 418

International Comparisons of Public Expenditure on Legally Aided Services- Ad Hoc Statistics Note- MOJ (2011) P.4

has fulfilled its objective to save money by reducing the legal aid budget. Whilst cuts have so far gone according to what was planned, ‘knock-on’ effects as mentioned before may only be apparent in future years. Aside from the financial aspect, the reforms have had visibly adverse effects already. Lawyers are complaining of firm closures as a result of a complete lack of legal aid funding in their area, as well the obvious decrease in wages across the board419. As we have already discussed, evidence of individuals suffering as a result of the reforms is also widespread with vulnerable people being denied access to justice. However, although many academics and legal professionals have denounced the reforms, Lord McNally has insisted “We have not found the kind of damage or destruction that they [critics] have alleged or forecast”.420 I would conclude that the LASPO reforms are not at all satisfactory, and although a full evaluation of the changes may not be possible for some time, at present it appears they are short-sighted and are merely seen as an easy target by the Government in the current cuts to public funding.

419 420

‘Legal Aid’, (Liberty-Human-Rights. Org.uk) L. Gray, (BBC News, 18 June 2013)

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Sexual Offences: A time for change? Madeleine Weber

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“It appears to be a popular belief that rape can only be committed ‘by a stranger in a dark alleyway’. It is important that the law concerning sexual crimes is clear, accessible and effective in eliminating 'rape myths'”.

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1. Introduction Sexual offences occur on a daily basis and represent a continuous problem in our society. Only a fraction of the victims report sexual crimes committed to them.421 As an obvious consequence, only a small percentage of the perpetrators are convicted. The law must protect the society’s individuals, in order to prevent long-term physical/mental damage and in a further sense preserve a healthy and safe environment for the people it governs.422 Therefore, it is important that the law concerning sexual offences is clear, accessible and effective in pursuing offenders. The aim of this paper is to show why the law on sexual offences required the changes, brought about by the Sexual Offences Act 2003. It will then conclude by advocating the need for further reform.

2. Why was change needed? The law on sexual offences has evolved considerably. Before the Sexual Offences Act was introduced in 2004, the law was rather a disarrangement of random rules. 423 Common law and

421

Ministry of Justice, Office for National Statistics: An Overview of Sexual Offending in England and Wales – Statistics bulletin (January 2013) Such as a ‘Hobbesian War’ as described in R. H. Fallon ‘The Rule of Law as a Concept in Constitutional Discourse‘[1997] 97 Colum. L. Rev. 1 422

423

Home Office: Setting the Boundaries: Reforming the Law on Sex Offences (July 2000)

statute were no longer appropriate, as the law was misleading and unclear in several aspects. Statute law defined rape unsatisfactorily, as it excluded certain sexual conduct which is comparable to rape, such as forced oral sex, which was merely treated as indecent assault. 424 Such mild treatment is seen as no longer appropriate for the modern era. The way in which consent is viewed has also caused problems. In the past, there have been cases where women who did not expressly struggle with the offender, because of fear or shock, were held to have consented, despite the fact the lack of express consent.425 The state of the law is seen as undesirable as the offender was not found guilty. In DPP v Morgan the court held that the defendant could be acquitted, if he believed the complainant to be consenting. 426 The subjective approach has the advantage of avoiding injustice, as the defendant would be judged on the facts of the situation, as he believed them to be. However, such an approach does not cover situations where the defendant should have accepted that the victim was not consenting, whether he believed the victim to be consenting or not. Therefore, the failure of the law was seen unsatisfactory. It was necessary to replace it with an objective approach.

See P. N. S. Rumney, â&#x20AC;&#x161;The Review of Sex Offences and Rape Law Reform: Another False Dawn? (2001) 64 MLR 890 424

Joan McGregor, Is it Rape? On Acquaintance Rape and taking Womenâ&#x20AC;&#x2122;s Consent seriously (Ashgate 2005) 426 [1976] A.C. 182 425

Prior to 2004, R v Olugboja was the authority on issues of consent. 427 It was held that the jury must decide what the word ‘consent’ in an ‘ordinary sense’ meant, and determine where the dividing line between ‘consent’ and ‘mere submission’ lies.428 This, however, left several questions unanswered, such as what the exact definition of ‘consent’ was. The concern arose that this direction was too broad and uncertain.429 There are several misconceptions concerning consent in sexual offences. It appears to be a popular belief that rape can only be committed ‘by a stranger in a dark alleyway’. As a matter of fact, however, the majority of sexual crimes are committed by an acquaintance of the victim.430 The consequence - if consent would not be defined appropriately - would be that rape in certain circumstances would not be treated as seriously. There is evidence that along the legal process, parties concerned with crime prosecution, including police officers and judges, express an attitude of disbelief of the victim’s. 431 These misconceptions could be eliminated if the definition of consent and situations where consent is definitely not present were to be placed on a statutory footing.

3. What changes have there been?

427 428

[1982] Q.B. 320 ibid

J. McEwan, ‚Proving consent in Sexual Cases: Legislative Change and Cultural Evolution’ (2005) Int. J. of Evidence and Proof 9 1 (1) 430 Joan McGregor, Is it Rape? On Acquaintance Rape and taking Women’s Consent seriously (Ashgate 2005) 431 Jennifer Temkin, Rape and the Legal Process (2nd edition, OUP 2002) 429

The SOA 2003 conjoined three new offences under the category of sexual assault:432 assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent.433 This extension of sexual assault aims to bring defendants to justice. The Act further recognises the seriousness of forced oral sex, which used to be treated as an indecent assault. It has been argued that it is equally traumatising as other forms of penetration. It was therefore brought within the legal definition of rape in order to be punished in a more appropriate manner.434 Concerns have been expressed that the offence of rape would be perceived as less serious if put in the same category as forced oral sex.435 Forced oral sex is sometimes viewed by society as ‘less serious’. This is an illusion and it remains a fact that oral rape has similar psychological implications for the victim as rape. This essay makes the argument that there should not be a difference in legal terms. 436 There have been arguments that the definition of rape should encompass non-penile penetration as well, as it equals or at least resembles the offence of rape.437 The offence of assault 432

These three offences were formerly treated as indecent assault under the Sexual Offences Act 1956. SOA 2003 – for complete act see: http://www.legislation.gov.uk/ukpga/2003/42/contents 434 Home Office: Setting the Boundaries: Reforming the Law on Sex Offences (July 2000) 435 ibid 436 Merril D. Smith, Encyclopaedia of Rape (Greenwood Publishing 2004) 433

P. N. S. Rumney, ‚The Review of Sex Offences and Rape Law Reform: Another False Dawn? (2001) 64 MLR 89 437

by penetration has been placed on a statutory footing, but does not constitute rape. It may be fairer to the victims of non-penile penetration to change the definition’s legal scope.438 A statutory definition for ‘consent’ clarifies that: ‘a person consents if he agrees by choice, and has the freedom and capacity to make that choice’.439 This definition aims to resolve the uncertainty caused by Olugboja.440 Whether this has been achieved to a satisfactory standard is subject to wide debate. In Victoria, Australia a similar definition was enacted and has received academic applause. 441 However, in the UK, there has been substantial academic criticism. Elvin argues that the ‘freedom to make a choice’ can be widely interpreted. For example, there are women consenting to sex for economic reasons. 442 Freedom of choice is a subjective notion. Some would perceive freedom of choice in a literal sense: for example where an employer gives his employee a choice of either having sex with him or being sacked, the employee is free to choose. Problems arise where it is unclear if the complainant was free to choose or not. Another difficulty of the definition is that it is unclear in what circumstances the victim ceases to have capacity. Difficulty arises in cases involving sexual assault and rape during intoxication. It has been held that ‘a drunken consent is still consent’, but the statute does not give any further 438

In Germany the definition of rape includes penetration with any object. T. de Castella, J. Kelly: ‘Assange Case: How is rape defined’ BBC Online (22 Aug 2012) http://www.bbc.co.uk/news/magazine-19333439 [accessed 26 Dec 2013] 439 SOA 2003 section 74 440 [1982] Q.B. 320 441 For further information B. Fileborn, Sexual assault laws in Australia, Australian Institute of Family Studies (February 2011) http://www.aifs.gov.au/acssa/pubs/sheets/rs1/rs1.pdf 442 J. Elvin, ‚The Concept of Consent under the SOA 2003’ (2008) 72 J Crim LJ 516

direction.443 This issue should be given further guidance and expressly explain what capacity means in order to better serve society. The evidential presumptions about consent accompanying this definition cover classic circumstances, such as a threat of violence. The list aims to clarify when crimes under SOA 2003 occur and should thus facilitate the just conviction of rapists. The list is justified, as less discretion over when rape/consent occurs is left to the jury. The effect of these clauses does, however, not go far enough: there are certain situations that the definition of consent does not sufficiently cover. An example is where consensual intercourse takes place, but one of the participants hides the fact that he/she is infected with HIV, consent cannot be negated, even though, had this fact been disclosed, the other would not have consented.444 There has been criticism that only Parliament can make additions to the list. Government has rejected further additions, arguing this would cause too much uncertainty. This appears to be an unconvincing argument as the current definition of consent also causes some uncertainty. In other jurisdictions, such as Canada or Australia, the list is nonexhaustive.445 A non-exhaustive list would give the courts considerable power, but would also the flexibility to enable them adapt to changing attitudes within society. 446 The idea 443

R v Bree [2007] EWCA Crim 804 J. Scott, ‚The Concept of Consent under the SOA 2003‘ (2010) Plymouth Law Review 445 J. Temkin, A. Ashworth, ‚Rape, Sexual Assaults and the Problems of Consent‘ (2004) Crim. LR 328 446 The courts could add certain situations to the list which are relatively uncommon and have not been contemplated by Parliament. Such an approach would be flexible and has been successful in Canada and Victoria. 444

behind the non-exhaustiveness was to help educate law enforcement agencies and judges. Furthermore, there was hope that more victims would step forward, knowing that the boundaries of law are flexible and that their case could lead to justice.447 It can be argued whether such power granted to the courts would lead to more uncertainty or not. In theory there could be a breach of article 7 of the Human Rights Act.448 However, it appears that the non-exhaustive list works well in other common law jurisdictions and should be considered by Parliament in the future. The mens rea of the offences was also changed. The concept of recklessness was abandoned in sexual offences. Before the 2003 Act, it was required that the defendant knew or was reckless as to whether the complainant consented.449 The ‘couldn’t care less’ test was replaced with the requirement that the defendant did not reasonably believe that the complainant was consenting.450 Effectively, a subjective test has been replaced with an objective test. Hence, whether the offender believed the victim to be consenting or not, he must have had reasonable grounds for his belief. A clear standard of reasonableness the offender has to comply with allows fairer results and is more satisfactory.

4. Further reform?

447

ibid Council of Europe, The European Convention on Human Right (ECHR) <http://www.echr.coe.int/Documents/Convention_ENG.pdf> 449 See Sexual Offences Act 1956 450 J. Temkin, A. Ashworth, ‚Rape, Sexual Assaults and the Problems of Consent‘ (2004) Crim. LR 328 448

Various academics suggest to further reform the law on sexual offences. Rumney speaks for a greater legal emphasis on rape committed by women. He argues that it is not uncommon that men are coerced into involuntary sex or are sexually assaulted by women. He finds that the Act’s effort to make rape gender-neutral has not been satisfactorily. 451 However, it has to be said that the law does recognise under section 4 that a woman can compel a man to have sex with her. 452 Yet, it is not classified as rape and therefore seems to devalue the offence. In 1994 the legal definition of rape was extended to include anal intercourse, thereby recognising rape committed by men on men. This was a significant improvement in recognising male rape victims. Nevertheless, it would be fairer and avoid gender-discrimination if rape perpetrated by a woman against a man would be recognised as such, despite the fact that the number of male rape victims is lower. 453 Herring has argued in his article ‘Mistaken Sex’ that where consensual sex takes place, but had certain facts been disclosed to the other party which would cause him or her not to consent, the consent should be retroactively negated. 454 At present the law negates consent only under section 76 in

P. N. S. Rumney, ‚The Review of Sex Offences and Rape Law Reform: Another False Dawn? (2001) 64 MLR 890 452 SOA 2003: section 4: causing a person to engage in sexual activity without consent 451

For further information see: S. LeTrent, ‘Against his will: Female-onmale rape’ (10 Oct 2013) CNN (http://edition.cnn.com/2013/10/09/living/chris-brown-female-on-male-rape/) [accessed 27 Dec 2013] 454 J. Herring, ‚Mistaken Sex‘ (2005) Crim. LR 511 453

situations where there is either a mistake as to the nature or the purpose of the act or to the identity of the defendant. 455 Herring argues that the law should negate consent in other cases, as the complainant was not able to make a fully informed choice. 456 He thinks that not only material facts, but also the defendant’s subjective state of mind have to be true. For example where the defendant dishonestly claims his love and the complainant therefore agrees to have sex, the complainant actually did not consent. However, Herring also agrees that providing evidence in such a case would be difficult. The principle makes sense and would be a very fair rule in an ideal world. Certain conduct such as concealing HIV infection from a sexual partner should negate consent. Facts and information with a material evidential basis should be disclosed to the partner. Nevertheless, in practice it may be unworkable. A criminalisation of such behaviour could lead to a wave of arrests and would perhaps do more harm than good.457 The Sexual Offences Act covers a wide range of offences against children. Spencer argues that child and family offences in the Act are still unsatisfactory.458 He denounces the ‘legislative overkill’ in the sense that the Act criminalises behaviour which would be regarded as ‘acceptable’ by the majority of the public. In theory, the law criminalises two 15year olds who are consensually kissing. 459 In fact such 455

SOA 2003: section 76: conclusive presumptions about consent An example would be R v Linekar: a customer had run off without paying, after sexual intercourse with a prostitute; she argued that she would not have consented if she had known that he would not pay. The court ruled that deceit of this kind would not negate consent. 456

457 J. Temkin, “Towards a Modern Law of Rape” (1982) 45 M.L.R. 399 458J. R. Spencer, ‚The SOA 2003: Child and family offences‘ (2004) Crim. LR 347 459 SOA 2003: Section

conduct would not be prosecuted, but is only criminal in order to protect children from manipulation by same-aged.460 However, that the ‘…CPS have a discretion not to prosecute runs contrary to the notion of the rule of law.’461 It seems questionable to have a law which is not wilfully enforced.

5. Will there be further changes? Whether a woman can be charged with rape in the future remains to be seen, as in several other countries the perpetrator can be either male or female. 462 At the moment there is no immediate call for reform on this issue, but it is possible. The law on child and family offences could be subject to further reform, as the argument to retain criminalisation of consenting children engaging in sexual activity is not very convincing. The government is considering further action in the area of sexual offences, considering the decline in conviction rates. 463 An emphasis on educational campaigns has been placed. It has been recommended to introduce a training course for 460 G. Wilson, ‚Teenage kissing: The new sex crime? ‘ (30 April 2004) BBC News Online Magazine (news.bbc.co.uk/2/hi/uk_news/magazine/3672591.stm) [accessed 28 Dec 2013] 461 J. R. Spencer, ‚The Sexual Offences Act 2003: Child and family offences‘ (2004) Crim. LR 347 462 For example Sweden or Germany for further information see: T. de Castella, J. Kelly: ‘Assange Case: How is rape defined’ BBC Online (22 Aug 2012) http://www.bbc.co.uk/news/magazine-19333439 [accessed 26 Dec 2013] 463 Home Office, ‚Cross Government Action Plan on Sexual Violence and Abuse’ (April 2007)

barristers involved in criminal prosecutions for serious sex offences. Research reports have shown that individuals in the legal process are not fully informed about how victims behave after rape or whether the victim’s sexual behaviour before the assault play a role.464 The government is thinking about giving guidelines to juries ‘to address popular misconceptions about rape’.465 ‘Rape myths’ are supposed to be part of the reason why unfair acquittals occur. In some jurisdictions it is compulsory that expert evidence is given to educate jurors.466 It is possible that such methods will become common practice in the UK, despite some criticism stating that the spread of rape myths is overestimated and that we are in the process of creating myths about myths. 467 There seems to be a shift of focus on the attitudes of the law enforcement agencies, rather than on the law itself.

6. Conclusion The recent changes have definitely helped make the law clearer and fairer. Academics, as well as campaigners for rape victims have welcomed the 2003 Act. However, there is always room for improvement. I think, for the time being, the

464 L. Kelly, Lovett, Land Regan, J ‘A Gap or a Chasm? Attrition in reported rape cases’ (2005) Home Office Research Study 293 465 Claire de Than and Russell Heaton, Criminal Law (3rd edition, OUP, 2011) 466 Rumney, ‚The Review of Sex Offences and Rape Law Reform: Another False Dawn?’ (2001) 64 MLR 890 467 H. Reece, ‚Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?’ (2013) 445 OJLS 33 (3)

law has been brought up to date, but I would welcome further change in the future. I believe it is unfair that rape is not treated in a gender-neutral manner. Disclosure of certain information in a sexual relationship should be a legal obligation. If there would be a duty to disclose sexually transmittable illnesses, perhaps spread of these infections could be prevented. Admittedly, such an obligation could cause problems where to draw the line in determining what information should be disclosed. I would also encourage a review of the law regarding offences against children. It seems strange to criminalise certain conduct, such as consensual kissing between minors, which cannot be perceived as ‘criminal’ in the traditional sense. This ‘legislative overkill’ can be eliminated, without devaluing the crime itself. The law must reflect a change in society’s perception. However important the law is to ensure justice, it is also what the people make it. There are still opportunities to improve and clarify the law. Whether these will be taken remains to be seen.

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Common Intention Constructive Trusts: A new threat to the certainty of land law? Bing Yap

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“… such a device is problematic as it is much dependable on the courts’ subjective views and has the unintended effect of injecting vast uncertainties into the law of property”

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Introduction:

The

New

Trend

Cohabitation The number of cohabiting couple families has increased significantly since 1990s.468 This trend has been problematic in terms of the disputes arisen from the acquisition of shares in the property, especially when there is a breakdown in family relationships. The position where courts can distribute matrimonial property based on what is fair and just is a privilege entitled to those who are married or civil partners. Cohabiting couples are left disarrayed in such legal limbo. The courts are active in providing remedies for cohabiting couples as observed by Probert, while the legislature seems reluctant to take any initiative to remedy such a lacuna. 469 In the context of land ownership, the doctrine of common intention constructive trust has been developed to provide a non-legal owner of a property a means to acquire 468

The number of opposite sex cohabiting couple families has increased significantly, from 1.5 million in 1996 to 2.9 million in 2012. The number of dependent children living in opposite sex cohabiting couple families doubled from 0.9 million to 1.8 million over the same period. ONS, 'Statistical Bulletin: Families and Households, 2012' <http://www.ons.gov.uk/ons/dcp171778_284823.pdf> accessed 8 March 2014 469 Rebecca Probert, â&#x20AC;&#x2DC;Cohabitation in Twentieth Century England and Wales: Law and Policyâ&#x20AC;&#x2122; (2004) 26 Law and Policy 13, 23

an interest in the property.470 The court will either construe such a trust by finding the express discussions between the parties, or by inferring an intention from their conduct. Constructive trusts was described by Cardozo J to be “the formula through which the conscience of equity finds expression.”471 This concept lacks a coherent theory which defines the circumstances the imposition of constructive trusts be justified. It is argued that such a nebulous concept might threaten the system of land law that highly demands certainty and uniformity.472 The question is whether the constructive trust after Stack v Dowden causes the area of property law to be filled with uncertainties and hidden with arbitrariness. 473 This article will focus more on family homes co-owned by joint legal cohabitants by analysing the development of the law in relation to the ‘common intention’ constructive trust. Next, two important elements of the Stack and Jones v Kernott new approach in quantifying the shares of joint legal owners, namely ‘common intention’ and the ‘holistic approach’ as spelt out by Baroness Hale will also be discussed.474 The author will also draw the reader’s attention to a comparative analysis between the current English jurisprudence and other Commonwealth legislations on this 470

See Lloyds Bank v Rosset, (1990] 22 HLR 349 Beatty v Guggenheim Exploration Co. (1919) 225 NY 380, 386 472 Snell's Equity (13th edition, 2000) p221 473 [2007] 2 WLR 831 474 [2011] 3 WLR 1121 471

subject matter. The article will conclude that the constructive trust approach is uncertain and has the potential of undermining the order in property law.

2. Development of the â&#x20AC;&#x2DC;common intentionâ&#x20AC;&#x2122; constructive trust The common intention constructive trusts were first employed in sole legal ownership cases in the context of the family home. The House of Lords in Pettitt v Pettitt held that the courts are not entitled to vary the existing proprietary rights of the parties according to what is fair and reasonable to independent person.

475 476

This principle is confirmed in

Gissing v Gissing, where the orthodox trust principles were applied strictly to deny the wifeâ&#x20AC;&#x2122;s beneficial interest, because she had not made any direct financial contributions to the acquisition of the property. 477 This principle reflects the social attitude of that time which led to the courts' failure in recognizing that women did play some role in the acquisition of their matrimonial homes by non-monetary contributions.478 The court approached the matter without putting it into the

475

[1969] 2 WLR 966 Ibid at 85 477 [1970] 3 WLR 255 478 Gray and Gray, Element of Land Law (4th edn, 2004) [10.132] [10.137] 476

domestic context. This rigid approach was reaffirmed in Burns v Burns, a cohabitant who had not made any financial contribution towards the acquisition of the property was held not to have any beneficial interest over the matrimonial home.479 The court refused to impose a constructive trust on the other cohabitant, as the court was unable to discern a common intention from their dealings. In Lloyds Bank v Rosset480, Lord Bridge attempted to restate the law on common intention constructive trust by stating that a common intention will only be discovered if the parties expressly showed their common intention by means of 'any agreement, arrangement or understanding reached between

them

that

the

property

shared

beneficiallyâ&#x20AC;&#x2122;.481 After the court has found a common intention, in order for a constructive trust to arise, the claimant must show that they have acted to their detriment or substantially changed his position in reliance on the agreement. However, in the absence of express â&#x20AC;&#x2DC;common intentionâ&#x20AC;&#x2122;, a common intention will only be inferred if the 479

[1984] 2 WLR 582 (1990) 22 HLR 349 481 (1990) 22 HLR 349 480

claimant has made direct monetary contributions to the purchase price of the property. By stating that 'it is at least extremely doubtful whether anything less will do', Lord Bridge seems to suggest that this is the only way to justify the creation of a constructive trust.482 Lord Bridge’s statement has been subject to criticism in the legal community. 483 It seems unfair for not taking into account the parties' indirect contribution simply based on the absence of express discussion among the parties. As mentioned by Waite LJ in Midland Bank plc v Cooke, people agreed to live in joint homes believing that their relationship will endure, it would be anomalous to not provide any remedy for cohabitants who have not expressly discussed dissolution.

about

their

respective

after

their

484

Although the decision in Rosset has the aim of ‘increasing the efficiency of the judicial system by putting the law into concrete “bright-line” formulae’, nevertheless the fundamental ambiguity remains and causes uncertainties in practice. 485 486

482

ibid at 357 See J.D. Davies, ‘Informally Created Trusts of Land and Some Alternatives to Them’ (1990) 106 Law Quarterly Review 539, 540-2 484 [1995] 27 HLR 733, at 745 485 [1990] 2 HLR 349 483

Establishing a share in the beneficial interest is confusing; the issue of quantification is where the main confusion occurs. The court used to prefer to imply a resulting trust as it is a 'convenient approach'. 487 The quantification method is straightforward, where the parties’ shares are proportionate to the amount of their contribution respectively. However, in Midland Bank plc v Cooke, the court adopted a different approach to quantify the parties’ respective shares.488 Waite LJ stated that the duty of the judge is to look upon the whole course of dealing between the parties and held that the wife was entitled to a 50% share of the property by way of a constructive trust although she had only contributed 6.47% to the purchase price. The decision is criticised for being too generous and 'allow quantification on the basis of a presumed, fictitious intention' as the parties in the case had never discussed about the allocation of their respective shares. 489 The decision utilises the constructive trust analysis 486

Simon Gardner, ‘A Woman’s Work…’ (1991) 54 Modern Law Review 126, 128 487 Pearson, Stevens & Bar, 'The Law of Trusts and Equitable Obligations', 5th edn, OUP 2010 , 347 488 [1995] 27 HLR 733 489 Martin Dixon, 'A Case Too Far?' Conv. Jan/Feb 1997, 66, 72

by giving the claimant what was termed as a 'fair' share. The seeds of such an approach were sowed and began to grow steadily as one can see from subsequent cases concerning cohabitantâ&#x20AC;&#x2122;s domestic property. 490

The Search for Intention in Joint Legal Ownership: Inferring or Imputing? Lord Bridge insisted that the direct contribution of the purchase of the property is necessary in relation to the inference of the common intention. However, in Le Foe v Le Foe, Nicholas Mostyn QC held that a wifeâ&#x20AC;&#x2122;s contributions towards the household expenses could be treated as an indirect contribution to the purchase price of the property. The latter case seems to relax the strict approach in Rosset.491 Nonetheless, the courts had not produced a coherent approach to discover the common intention. The vague approach in searching for a 'common intention' has been clarified to a limited extent in the following two cases. In Stack v Dowden, Baroness Hale held that 'the starting point where there is joint legal ownership is joint beneficial ownership' following the maxim 'equity

490

See Le Foe v Le Foe [2001] 2 FLR 970, Oxley v Hiscock [2005] Fam 211 491 [2001] 2 FLR 970 at 973

follows the law'.492 Such a presumption is rebuttable if the person seeking to effectively show that the beneficial ownership is different from the legal ownership. 493 The parties' common intention, in the absence of express agreement, may be inferred and even imputed by the court in light of the whole course of conduct in relation to the property.494 This view was confirmed by the Supreme Court in Jones v Kernott.495 The court held that a change of intention about the parties' beneficial interests could be inferred to rebut the Stack presumption.496 If there was no evidence for which such intention could be inferred, the courts are permitted to impute intention relating to the parties' shares which they consider to be fair and just.497 The test of inferring in Jones introduces a further level of “objectivity”. 498 The test looks at what a reasonable person in the shoes of the claimant would have taken the defendant, in relation to his conduct and all the relevant circumstances, to have intended, rather than looking at what 492

[2007] 2 WLR 831 ibid at para 56 494 [2007] 2 WLR 831 at para 60 495 [2011] 3 WLR 1121 496 Ibid at para 71 497 ibid at para 31 498 John Mee, ‘Jones v Kernott: Inferring and Imputing in Essex’ [2012] Conv 167 493

was actually intended by the parties.499 Such an 'objective' test is likely to cross the borders into the province of imputation of a common intention on the parties. The dangers of imputation were well appreciated by Lord Neuberger who dissented by stating “it would involve a judge in an exercise which was difficult, subjective and uncertain”.500 Mark Pawlowski applauded the re-introduction of the concept of fairness in this limited way by the Supreme Court. 501 He thought that this is both sensible and practical, if the courts are disallowed to impute what is fair, parties will be denied ‘the liberty of assuming that fairness will be relevant in determining their eventual interests’, arising from their own default to declare their intentions at the beginning.502 The practicability of the test of inference is the main difficulty. Jones has clearly illustrated the uncertain nature of the process of inference.503 Would all the judges be coherent in providing an answer based on inference and imputation? It has become difficult for the lower courts to apply the principles laid down in Stack and Jones. An interesting argument raised by Ajmal Azam was that the process of 499

ibid at 176 Stack v Dowden [2007] 2 WLR 831 per Lord Neuberger 501 Mark Pawlowski, ‘Imputed Intention and Joint Ownership- A Return to Common Sense: Jones v Kernott’ [2012] Conv 149, 156 502 Mark Pawlowski, ‘Imputed Intention and Joint Ownership- A Return to Common Sense: Jones v Kernott [2012] Conv 149, 156 503 John Mee, ‘Jones v Kernott: Inferring and Imputing in Essex’ [2012] Conv 167, 171 500

imputation permits the court to fill the evidential gap by its own determination of what is fair--in effect. 504 Therefore, the court has enunciated a robust presumption on the one hand (of joint beneficial ownership), whilst on the other finding the presumption rebutted by its own determination of what is fair. 505

From a philosophical perspective, the importance of 'common intention' in the allocation of benefit endorsed a liberal approach to the resolution of property over cohabited home, in which personal autonomy is manifested. 506 On the other hand, the presumption of 'joint legal ownership is joint beneficial ownership' endorsed a communitarian flavour, namely an ideology that refuses to consider the position of the individual in isolation from her relationships and social networks. This is because in the case where a cohabiting couple takes the legal title as joint tenants, the fact that the parties are a cohabiting couple might itself be of some justificatory significance when making a finding of fact as to their common intention.507 It has been argued that the Stack decision had a weak flavour of communitarianism, as its liberal approach concerns unjust enrichment outweighs 504

Ajmal Azam, ‘Jones v Kernott: To Impute or Not to Impute’ (2012) 2 Private Client Business 57, 60-61 505 Ajmal Azam, ‘Jones v Kernott: To Impute or Not to Impute’ (2012) 2 Private Client Business 57, 60-61 506 Matthew Harding, ‘Defending Stack v Dowden’ [2009] Conv 309 507 ibid at 314

communitarian approach.508 For instance, the courts focus on the finding of the common intention within the individuals rather than apply a status-based rule triggered by the status of the parties. According to Harding, such criticism is defensible as the ideal platform to adopt a communitarian approach is Parliament which has the 'representative and deliberative processes' to answer such wide-ranging question. The courts, on the other hand, are 'ill-equipped' to accomplish such a monumental task.509 The courts should not be criticised for its decision lacking communitarian flavour. Liberalism highlights the centrality of private property rights, hence it is inseparable from property; the central value of classic liberalism is reflected in the property paradigm. 510 It is the very foundation of the pillars of property law. The function of the court was merely to discover what the parties had agreed, or their joint intention and give effect to it. 511 Nevertheless, the courts are now allowed to impute the intention that they think fair and it is argued that this tantamount to an indefensible departure of the liberal approach.512 508

ibid ibid at 317 510 Nick Piska, ‘Constructive Trust and Constructive Intention’ in Martin Dixon (ed) Modern Studies in Property Law (5th ed, Hart Publishing 2009) 207 511 ibid 512 Matthew Harding, ‘Defending Stack v Dowden’ [2009] Conv 309, 323 509

The trust concept - with its limitations - may not be the best measure for the resolution of financial disputes between cohabitants.513 Inferring or imputing a common intention appears to be 'unrealistic and artificial', 514 thus strengthening the case for a more appealing alternative – a statutory regime.515 The legislature should debate on the questions of distributive justice and articulate a device to achieve a fair allocation of cohabitant’s interests at the end of their relationship.

'Too Wide' Scope of ‘Whole Course of Dealings’ In looking the whole course of dealing, Baroness Hale in Stack provided a non-exhaustive list of factors that could be taken into account and invited criticism as being too wide and open to uncertainty. 516 As Dixon mentioned, these factors may become 'the property lawyer's equivalent of a Pandora box - everything included with only a small hope that this will not lead to endemic uncertainty.'517 513

Paul Todd, 'Cohabition and Property: The End for the Road of Traditional Trust?' Plymouth Law Review (2008) 1 514 Nick Piska, ‘Constructive Trust and Constructive Intention’ in Martin Dixon (ed) Modern Studies in Property Law (5th ed, Hart Publishing 2009) 207, 209 515 Rebecca Lee, ‘Stack v Dowden: A Sequel’ (2008) 124 Law Quarterly Review 209, 212 516 Stack v Dowden [2007] 2 WLR 831 517 'Dixon [2007] 71 Conv 353' in 'Pearson, Stevens & Bar, "The Law

It is therefore 'very unusual' for claimant to rebut the presumption of equal shares under such wide list of factors.518 Unfortunately, the court failed to clarify when and how the presumption can be rebutted. Certainly in the near future the lower courts will encounter problems in deciding whether the presumption has been rebutted. This may invite expensive and time consuming exercises at all stages and legal advisors having difficulty to predict the outcome of their clients’ cause.519 Such a wide approach is driven by concept of unjust enrichment and fairness as a solution brings uncertainty to the law of property.

Solutions to dissolution of cohabitation: What do other Commonwealth Jurisdictions have that the England and Wales don't? The proper enactment of legislation in Australia was based on the fact that this legislature thought that the property situation of cohabitants is identical to that of married couples

of Trusts and Equitable Obligations", 5th edn, OUP 2010 , 389' [2007] 2 WLR 831 para 69 519 Lord Neuberger of Abbotsbury, ‘The Conspirators, The Tax Man, The Bill of Rights and A Bit About the Lovers’ (Chancery Bar Association Annual Lecture, 10th March 2008) 518

and deserve the same treatment. 520 There are various factors to determine if the couple are in de facto relationship. Once such relationship is established, the cohabitants are entitled to the same legal entitlements as spouses on a divorce, and the same maintenance rights.521 England and Walesâ&#x20AC;&#x2122; lack of such legislation provides the court with clear guidelines as to how to enforce their discretion in distributing these quasi-matrimonial assets. The Law Commission perceived the inadequacies of the current state of law and has recommended a statutory scheme for cohabiting couples.522 The scheme suggested to determine the property rights of cohabitants on a similar basis to married couples and registered civil partners. On relationship breakdown, the court is empowered to make a property adjustment that reflects the extent of contributions as well as several other factors. Despite the recommendations shed lights to resolve the ambiguities in this area of law, they were not given effect. The legislature in the UK remains passive and reluctant to provide a clear and certain solution.

520

Goran Lind, 'Common Law Marriage: A Legal Institution for Cohabitation' Oxford University Press 23 July 2008 521 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 522 Law Commission Report, Cohabitation: The Financial Consequences of Relationship Breakdown (No. 307 Cm 7182, 2007)

Conclusion

Cohabitation is an inevitable social phenomenon in 21

century. Ostensibly, the device of constructive trust,

because of its flexibility, might be useful for discovering and giving effect to the intention of the parties. However, such a device is problematic as it is much dependable on the courtsâ&#x20AC;&#x2122; subjective views and has the unintended effect of injecting vast uncertainties into the law of property. Hence, the usage of this device can only ease the problem temporarily. Sadly, the recommendation by the Law Commission remains a draft bill and no further legislative steps were undertaken. It seems that the fate of cohabitants still lies on the hands of the judiciary and the common law that seems to 'continue lurching from one seemingly arbitrary precedent to another'.523

523

Swadling, 'The Common Intention Constructive Trust in the House of Lords: AN Opportunity Missed' [2007] LQR 511, at 518