The Obiter 2014/15 by LSESU Law Society

LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE LSESU LAW SOCIETY The Obiter EDITORIAL BOARD EDITORS Robin Park Philippe Kuhn Arnav Gupta

EMAIL: su.soc.law@lse.ac.uk

EDITORS’ NOTE The London School of Economics Students’ Union Law Society is proud to present the 2015 edition of The Obiter. The Obiter is an entirely student-run journal which presents a selection of the best written works by students from the Law Department. This year the journal departs from recent tradition and has included more works from ‘foreign’ jurisdictions, as opposed to ‘domestic’ English law. The reasoning behind this is the hope that it will add to the legal discourse within the LSE by encouraging more students from outside the undergraduate courses to contribute. The editors are confident that this change continues to respect The Obiter’s traditional focus on the English law, whilst ensuring all LSE law students have the opportunity to have their works recognised, regardless of what jurisdiction their work is based on. This year’s edition is marked by the extensive range of topics that are covered, ranging from recent developments in company law to the legal issues arising from the 2014-15 Ebola epidemic. There is also a comparison between English law and German law on the issue of possessory remedies, as well as an analysis of the recent US Supreme Court judgment in Riley v California. We have been extremely fortunate to receive so many exceptional essays dealing with a breadth of contemporary legal issues. It has been an honour to be part of a project which highlights some of the best works by students at the school and we would like to express our gratitude to all of our contributors this year. We would also like to thank the LSESU Law Society’s sponsors, who continue to ensure the annual publication of The Obiter. Finally, we would like to express our gratitude to the LSE Law Department for providing assistance with the front cover and giving permission to use the Department’s photos. It has often been demanding and time-consuming, but being on the editorial board is one of the most rewarding experiences for any law student. We wish next year’s editors all the best in publishing the 2016 edition of The Obiter.

CONTENTS Prest v Petrodel: How Successful Was the Supreme Court in Limiting the Instances In Which the Court Will Pierce the Corporate Veil? KRISHNA JOSHI 1 Should the Growing Trend of Making the Exercise of Discretionary Powers Subject to Guidelines and Other Forms of Soft Law, Particularly Evident in the Recent Decisions in Purdy and Lumba, be Welcomed? PHILIPPE YVES KUHN 5 United States v Camou: Warrantless Cell Phone Searches after Riley v California MARCO WONG

Should There Be a Regime of Strict Liability for Harm Caused by Services, in the Manner of Strict Liability for Harm Caused by Products? DAKYUNG KWON

For the Purposes of the Law of Homicide, How Useful Is It to Distinguish Between Intention and Recklessness? GERALD LAI 43 How to Address Some of the Most Important Legal Issues Raised by the 2014 Ebola Epidemic CAROLIN OTT

VCR Recordings, Napster and Pirate Bay: Can We Really Develop Intellectual Property Law In a Way That Can Adapt to the Growing Infringement Challenges Brought By Peer-to-peer File Sharing? KATIE CHIN 58 Opening Pandora’s Box: a Comparative Perspective on Possession and Possessory Remedies in English and German Law CHRISTIAN PETERSEIM

Article 8, Wednesbury, and the Public/Private Divide: The Problem With Defences to Mandatory Possession Proceedings TURAN HURSIT 81 The European Parliament’s Role in EU Law-Making: A Lost Opportunity For Democracy? ANCA BUNDA

The Spitzenkandidaten: A Facelift For Democracy in the European Union? JUMANI ROBBINS

Deception and Consent: Has the Law Gone Too Far? KEVIN TAN

104

Prest v Petrodel: How Successful Was the Supreme Court in Limiting the Instances In Which the Court Will Pierce the Corporate Veil? KRISHNA JOSHI After years of conflicting court decisions and a lack of clear guiding principles, Prest v Petrodel1 represents the Supreme Court’s attempt to clarify and limit the scenarios in which the courts will pierce the corporate veil. However, the extent to which they were successful has come under scrutiny and it shall be argued that whilst this was the intention, the impact of piercing the veil has not truly been limited. First, the argument supporting Prest as a curtailer on corporate veil piercing shall be examined. This shall be challenged by arguing that the courts have and continue to rule in a way which skirts around the veil and in doing so produces the practical impacts of veil piercing without legally piercing the veil itself. Finally, the limited use of the Prest decision shall be discussed, in particular the unhelpful nature of Lord Sumption’s dichotomy, as set out in the case. I. THE DECISION IN PREST V PETRODEL In his much-discussed obiter dictum, Lord Sumption stated that the only scenarios in which the veil should be pierced are when (1) the ‘evasion principle’ is satisfied and (2) ‘if all other, more conventional, remedies have proved to be no assistance.’2 Mayson et al argue that, after Prest, it is unlikely that ‘the two conditions…will [ever] be met and it will be correct to pierce the veil’.3 Using Lord Sumption’s test, the veil will only be legally pierced if the company was set up with the purpose of evading an existing legal obligation. Therefore, it would be almost impossible to legally pierce the veil of a number of corporations, as it is most often the case that a company or a subsidiary was set up prospectively in order to avoid future legal obligations. This activity does not come under the evasion principle and, therefore, would not allow for the veil to be pierced. Even if the evasion principle is satisfied, if there is another method of making the defendants accountable, it will be used. This might suggest that the possibility for veil piercing is limited. It might be argued that this test is gaining some traction in the courts. In R v Hyde,4 Sir Brian Leveson used Lord Sumption’s test to deem the lack of evident evasion as justification of not piercing the corporate veil. Thus far, therefore, it might appear Prest has been successful in limiting the doctrine of corporate veil piercing. II. PIERCING THE VEIL WITHOUT ‘PIERCING THE VEIL’ However, it is necessary to distinguish between whether Prest limited merely the legal theory of piercing the veil and whether it also limited the practical impacts of doing so, when not legally piercing the veil. The courts have given judgments, which, 1

Prest v Petrodel Resources Ltd & Ors. [2013] 3 W.L.R 1. ibid, 20. 3 S. Mayson, D.French and C. Ryan, Mayson, French and Ryan on Company Law (30th edn, OUP 2013). 4 R v Hyde (Gary) [2014] EWCA Crim 713. 2

2 arguably, have had the same outcome as if the veil had been pierced, but without doing so in law. Perhaps the best example of this can be found in tortious liability. The courts have found a number of ways of ensuring that parent companies can still be held liable for negligence, even though they refuse to pierce the veil. Chandler v Cape5 is the leading case on this, where the court ‘skirted around’6 the veil piercing doctrine and held a parent liable for a tort that harmed an employee of its subsidiary. It was held liable because it should have foreseen that the employees of the subsidiary would have relied upon the parent’s presumed superior knowledge of health and safety in order to prevent damage. This case would have failed the Prest test, as it did not involve evasion. However, it does seem to offend principles of separate incorporation and limited liability. The use of tort law here skirted around the veil, as the courts were able to hold the parent company responsible without invoking the legal doctrine of corporate veil piercing. The difference in impact between the two legal techniques is minimal and was in effect the same here – the parent was held liable. The Prest decision cannot truly limit when courts pierce the veil, as it only works when they invoke the specific legal doctrine. As we have seen, courts can come to the same conclusion, but by using different legal tools and the Prest decision will have little impact on this. A similar outcome to Chandler v Cape happened in Prest itself, where the practical impact of piercing the corporate veil – making the properties marital and not company property, still occurred. The only difference was that a different legal mechanism was used to achieve the same outcome. By using trust law, the judges in Prest ‘skirted around the veil’ in order to allow the properties to be part of a divorce settlement. The evasion principle as set out by Lord Sumption here, though, was deemed not to apply. By looking at veil piercing through the practical impacts of a ruling, it is hard to justify the claim that Prest limited the ability of the courts to pierce the veil. Some commentators have challenged this interpretation of veil piercing, as defined by its practical impact. William Day argues that using such legal tools to skirt around veil piercing allows the principle of limited liability to remain intact ‘because it is not concerned with the issue of a company’s personality at all’.7 Day argues that cases such as Chandler8 would not in fact breach the principle. However, this view is only persuasive if one conceives corporate veil piercing in incredibly narrow terms – as when the courts call it “veil piercing”. To consider that a company’s personality is only affected when the legal doctrine of corporate veil piercing is invoked is to ignore the practical reality that cases like Chandler hold companies to account regardless of their limited liability and separate legal status. By using other legal tools, courts can skirt around the veil without the negative connotations that are associated with piercing the veil, such as the overt violation of the Salomon limited liability principles.9 5

Chandler v Cape plc [2012] 3 All ER 640. William Day, ‘Skirting around the issue: The corporate veil after Prest v Petrodel’ [2014] L.M.C.L.Q 2. 7 ibid. 8 Chandler v Cape plc (n 3). 9 Salomon v A Salomon & Co Ltd [1897] AC 22 (HL). 6

III. EFFECTIVENESS OF THE PREST TEST Whether the Prest test becomes a fundamental part of company law is also yet to be seen. Lightman and Hargreaves suggest it is too soon to know the true impact of the Prest decision as only Lord Neuberger supported Lord Sumption’s test and because the test has not yet been well trodden enough in the courts.10 This stems from deep uncertainties about the basis for the test. Lim suggests that, Gilford11 and Jones12, the two cases that Lord Sumption held as key examples of veil piercing and which he held to support his argument, could equally be decided on different bases where the corporate veil was not pierced.13 Lim argues that the latter could have been decided on the basis of land law reasoning, rather than company law reasoning. This is a persuasive argument and supports the idea that the distinction between legal veil piercing and cases where merely the practical impact is ordered, as in some tort cases, is incredibly blurred. Therefore, whether Prest does truly limit the instances in which the courts will have the impact of piercing the veil is yet to be seen and it is very likely that Prest will not be the final word on the matter. Furthermore, the effectiveness of the concealment/evasion dichotomy as a test itself is yet to be ascertained, as case law since has shown the same arbitrariness that has plagued this area of law in the past. This is exemplified in R v Sale (Peter)14. Coming after Prest, the Court of Appeal stated that here was a case of concealment which would not lead to a piercing of the veil per the Prest test. However, it was still held that the appellant, the managing director and sole controller of the company, was guilty of corruption, as the activities of both him and his company were ‘so interlinked as to be inseparable’.15 The director was held to be indistinguishable from the company for the purposes of the case, whilst the corporate veil was also deemed to be intact. Similarly in M v M, 16 the court held that, regardless of the fact that properties had been owned by separate companies and that the defendant had not breached the evasion principle, the properties were in reality owned by the defendant (husband) and, therefore, counted as matrimonial property. Therefore, although failing the veil piercing requirements of Lord Sumption’s test, the court ruled in a way so as to have an almost identical impact as if the test had been passed. This brings into question the limiting effect of the Prest test. The above cases clearly upset the principle of limited liability and separate incorporation, yet it is claimed that they do not pierce the corporate veil. It cannot truly be said that Prest has further limited the instances when the courts will pierce the corporate veil if they apply the test and then go on to skirt around the veil in order to achieve the same effect as piercing it anyway.

Daniel Lightman and Emma Hargreaves, ‘Petrodel Resources Ltd v Prest: where are we now?’ (2013) 19(9) Trusts & Trustees 877. 11 Gilford Motor Co Ltd v Horne [1933] Ch 935 (CA) 12 Jones v Lipman [1962] 1 WLR 832 13 Ernest Lim, ‘Salomon reigns’ (2013) 129 LQR 480. 14 R v Sale (Peter) [2014] WLR 663 15 ibid. 16 M v M [2013] EWHC 2534 (Fam)

4 IV. CONCLUSION In conclusion, Prest has not truly limited the ability of the courts to pierce the corporate veil because, on a broader understanding of the doctrine, the courts continue to challenge separate legal status, such as in cases of tortious negligence and even in Prest itself. Also, the clarity of the Prest test itself is questionable and its ability to protect the principles laid out in Salomon is uncertain.

Should the Growing Trend of Making the Exercise of Discretionary Powers Subject to Guidelines and Other Forms of Soft Law, Particularly Evident in the Recent Decisions in Purdy and Lumba, be Welcomed? PHILIPPE YVES KUHN Discretion continues to hold a prominent place in the British administrative state, but general rules and principles in the form of ‘soft law’ increasingly serve to constrain that discretion. This seems to reflect the growing consensus that an element of discretion is often necessary and even desirable for reasons including the need for flexibility and the relative institutional competence of administrators. The recent decisions of the House of Lords in Purdy and the UK Supreme Court in Lumba represent an increasingly pronounced trend of making the exercise of discretionary powers subject to soft law. Doubts about the Purdy/Lumba trend as a matter of authority have been laid to rest by the UK Supreme Court’s subsequent ruling in Kambadzi. The Law Lords in Purdy held that the prosecutorial Code had to be supplemented by further guidelines specific to the offence of assisted suicide to guide the execise of prosecutorial discretion, whilst, in Lumba, their Lordships required adherence to a published policy in respect of deportation of foreign national prisoners. Viewing discretion as a linear concept as KC Davis did, the desirability of soft law further confining the ambit of discretion is open to challenge, provided one is persuaded of the benefits of discretion. It is argued that a degree of discretionary power is indeed vital in most administrative contexts, but that insofar as soft law acts as a bridge between law and policy, without becoming as rigid as prescriptive legislative provisions, the Purdy/Lumba trend is positive. Consequently, it may be said that the UK courts have struck a reasonable compromise between the competing demands of rule-based government and flexible decision-making that accords with basic notions of doing justice in specific cases. I. INTRODUCTION The continued existence of discretionary powers in the British administrative state is undeniable. That said, guidelines, non-statutory codes and other forms of so-called “soft law” constraining discretion abound, more so than prescriptive legislative rules in Acts of Parliament or statutory instruments. This development prompts fresh analysis of the perennial rules versus discretion debate, with the rise of soft law perhaps offering an avenue to combining what is best about rules and discretion respectively. Admittedly, the term discretion can be quite complex, but for the purposes of this essay KC Davis’s simple definition is adopted: ‘A public officer has discretion whenever the effective limits of his power leave him free to make a choice among

6 possible courses of action and inaction.’1 The focus here will be on administrative as opposed to judicial discretion, but an effort will be made to consider a range of different administrative contexts from welfare distribution to prosecution, policing and prisons. It should be noted that discretion can be conceptualised in different ways. The more conventional view of discretion as a linear concept is espoused by Davis. As he put it, ‘[w]here law ends, discretion begins.’2 On this view, there is a continuum from pure rule-based government to pure discretion. Alternatively, Dworkin argued that discretion is relative. In other words, discretion cannot exist in the absence of rules or a legal framework that creates a ‘belt of restriction’. The metaphor of ‘the hole in a doughnut’ is illustrative of this view.3 It would appear that on the latter view rules are the norm and discretion is the exception, which would presumably make it more difficult to defend broad discretionary powers. Given that the linear conception is more common in the literature and perhaps also more intuitively appealing, discretion will be treated as being capable of independent existence. Further, ever since Davis’s seminal book Discretionary Justice was published, there appears to be a growing consensus that an element of discretion is necessary, as a pure ‘government of laws and not of men’ is unattainable.4 However, the desirability of discretion remains contested. Those who favour a heavily rule-governed state are quick to stress the consistency and equal treatment that rules enable,5 whilst pointing to the prospects of arbitrariness and inequality of treatment with discretion.6 However, in the absence of discretionary powers, considerations of equity or fairness that require a degree of flexibility are all too easily neglected.7 The relative desirability of rules and discretion will be considered at length below, as will the possibility of striking a balance between the two. The term “soft law” is helpfully defined by Snyder as ‘rules of conduct that, in principle, have no legally binding force but which nevertheless may have practical effect.’8 The recent rulings by the House of Lords in Purdy9 and the UK Supreme Court in Lumba10 and Kambadzi11 are indicative of an increasingly pronounced trend of making the exercise of discretionary powers subject to such soft law. In Purdy, their Lordships held that the prosecutorial Code was inadequate and had to be supplemented by further guidelines specific to the offence of assisted suicide. Similarly, in Lumba, the Home Office’s application of an unpublished blanket policy of deportation in contravention of its published policy was held to have been unlawful. 1

KC Davis, Discretionary Justice (Greenwood Press 1969) 4; see Ronald Dworkin, ‘The Model of Rules’ (1967) 35 University of Chicago Law Review 14, 32-40 for other definitions of discretion 2 n 1, 3 3 Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1978), 31 4 n 1, 17 5 See, e.g., C Harlow and R Rawlings, Law and Administration (3rd edn, CUP 2009) 200 6 See, e.g., Lord Bingham of Cornhill, ‘The Rule of Law’ [2007] CLJ 67, 72 and W West, ‘Administrative Rulemaking: An Old and Emerging Literature’ (2005) 65 Public Administration Review 655, 655 7 See generally R Titmuss, ‘Welfare “Rights”, Law and Discretion’ (1971) 42 Political Quarterly 113 8 F Snyder, ‘Soft law and institutional practice in the European Community’ in S Martin (ed), The Construction of Europe: Essays in honour of Emile Noël (Kluwer International 1994), 197 9 R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2010] 1 AC 345 10 R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 11 R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299

7 It is arguable that the facts of Purdy make it quite an exceptional case, whilst the Lumba decision could be viewed as judicial interference at the margins after serious executive misconduct, but the Supreme Court’s subsequent ruling in Kambadzi, a case concerning detention review procedures, seems to represent a noteworthy widening of this trend. It will be argued that it is vital to allow for a degree of discretionary power in most administrative contexts. Accordingly, insofar as soft law acts as a bridge between law and policy,12 without becoming as rigid as technical legislative provisions, the Purdy/Lumba trend should be welcomed. This is because it demonstrates judicial sensitivity to the demands for government by law, whilst being underpinned by the pragmatism to realise that hard law is often inadequate in the modern administrative state. The courts may well have struck a reasonable compromise. II. THE PRIMACY OF RULES Lawyers are notorious for their love of rules. To put this point across more elegantly, there is a strong attachment in the legal profession to the “rule of law”, with the belief that rule-based government is inherently superior. This is reflected in calls for a ‘government of laws, and not of men’.13 Without going into the intricacies of this rich concept, it is possible to outline some of the core attributes that the rule paradigm is said to entail. The usual practice is to compare rules to discretion, which is decried for all the deficiencies that rules supposedly do not have; an overstatement to be sure.14 Harlow and Rawlings nicely summarise the customary claims, namely that ‘rules support fairness, consistency and equal treatment’, whereas ‘administrative discretion contributes to inconsistency and inequality of treatment.’15 Such statements, albeit with subtle variations, are common in this discourse, hence West argues that ‘rules limit arbitrariness and capriciousness in the application of policy in individual cases.’16 Lord Bingham too believed that the rule of law ‘requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification’, given the risks of abuse and ‘arbitrariness’.17 It only takes a moment of reflection to discover that rules can also be arbitrary and capricious in their content, even though their application lives up to the virtue of consistency. Accordingly, such claims are in themselves not wholly persuasive as arguments for the primacy of rules. More persuasive are refined claims that link the ideals of ‘openness, rationality, generality and predictability’ that are part and parcel of formalist conceptions of the rule of law to the desired outcome of fairness.18 This goes beyond merely flagging up the risk of arbitrariness in the absence of rules, for openness suggests an element of public scrutiny, rationality a minimum standard of reasonableness, generality equal application, and predictability at least a modicum of foreseeability. Cumulatively these 12

L Sossin and C Smith, ‘Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of Courts in Regulating Government’ (2003) 40 Alberta Law Rev 867, 892 13 See Massachusetts Constitution, Part The First, Art. XXX (1780) 14 n 5, 209 15 ibid, 200 16 W West, ‘Administrative Rulemaking: An Old and Emerging Literature’ (2005) 65 Public Administration Review 655, 655 17 Lord Bingham of Cornhill, ‘The Rule of Law’ [2007] CLJ 67, 72 18 N Lacey, ‘The Jurisprudence of Discretion: Escaping the Legal Paradigm’ in K Hawkins (ed), The Uses of Discretion (OUP 1991) 369

8 are indeed likely to lead to fairness in some sense, although what is fair or just can be highly debatable. This is not the place to contemplate theorising a substantive conception of the rule of law that strives to address such concerns. What is more important for present purposes is that it does not take a great deal of imagination to envisage situations where rigid rules leaving no room for discretion could lead to injustice in the opinion of most. Imagine the situation where a mother receiving Jobseeker’s Allowance was unable to make a mandatory visit to her Jobcentre owing to the sudden hospitalisation of her child, resulting in the forfeiture of that desperately needed entitlement. A rule that makes no exception for such compelling circumstances would surely be unjust, notwithstanding its compliance with the formal requirements outlined above. The intention here is not to challenge the virtues underpinning the formal rule of law. Rather, the aim is to draw attention to the practical need for flexibility, even if it is conceded that rules are prima facie desirable. Before moving on to consider the merits of discretion, it is necessary to more fully articulate the advantages of rules. Schneider provides a most helpful account in this respect.19 First, it is said that ‘rules can contribute to the legitimacy of a decision’. This relates to a belief that people are less likely to object to a decision taken pursuant to an identifiable rule. The reader may be reminded of analogous non-instrumental justifications for procedural fairness in administrative law.20 Secondly, Schneider suggests that rules are advantageous given the relative institutional competence of ‘rule-makers’ when compared to ‘decisionmakers’, with the former presumed to have extra time and resources as well as offering opportunities for public participation that are lacking in the administrative context. However, parliamentary time and resources actually happen to be particularly scarce. Thirdly, there is the allure of consistency expressed through the maxim of treating like case alike. This is at the heart of the rule of law ideal. Fourthly, Schneider submits that rules are better suited to the ‘planning function’ of the law, given their public nature. In other words, individuals or entities are able to organise their lives on the basis of clearly defined rules. Yet it must be stressed that this ascribes a degree of comprehensibility to rules that is often lacking in practice.21 Fifthly, there is the claim that rules better serve the law’s communicative function. On this view, law shapes behaviour and is a force for positive societal change. It would seem that this function has been at least tacitly accepted in Western societies, because the plethora of laws in this day and age is unparalleled. Lastly, Schneider notes the rather contentious claim that rules are more efficient. Leaving aside the question of whether efficiency should be a legal value, this claim is only half-true at best. It is true that, on the one hand, a consistent practice can be developed for similar cases if rules exist and are then followed, but, on the other hand, devising rules in the first place may be too costly and time-consuming. On the basis of these six purported advantages, Schneider concludes that ‘when a good rule can be written, it is much to be preferred to a grant of discretion.’22 This conclusion will not be resisted as such, but it is submitted that it would be wise to 19

What follows is a critical summary of Carl E Schneider, ‘Discretion and Rules: A Lawyer’s View’ in K Hawkins (ed), The Uses of Discretion (OUP 1991) 69-78. 20 See J Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’ (1981) 61 Boston University LR 885 21 Consider the technicalities of modern tax or social security legislation. 22 n 19, 79

9 recognise that crafting rules that are fit-for-purpose in some of the most challenging administrative contexts such as welfare distribution or prosecutorial policy is likely to remain an elusive goal. As Rubin puts it: ‘Those who demand [highly complex, technical] rules are really registering their dislike of the administrative state and of the legislative process that has spawned it.’23 In consequence, the merits of administrative discretion warrant consideration. III. THE CASE FOR ADMINISTRATIVE DISCRETION To begin with, an empirical claim about discretion can be made, having regard to the difficulty of making rules, with Rubin’s concept of ‘transitivity’/‘intransitivity’ illuminating the analysis. Rubin submits that ‘[f]rom the perspective of the implementation mechanism, the statute’s degree of transitivity is the mechanism’s degree of discretion.’24 In simple English, a ‘transitive’ piece of legislation is one that is prescriptive in nature. By contrast, an ‘intransitive’ one is loosely textured, probably only spelling out a broad aim and/or some general principles to be followed. Accordingly, on Rubin’s view, administrative discretion is born from intransitivity in statutes, for ‘until the [administrator] acts, the ultimate target of the statute cannot know what behavior the statute will require.’25 Provided one accepts the need for modern legislatures to enact laws that cover areas in which it is difficult to legislate, Rubin’s account is helpful in explaining why discretion is abundant in a plethora of administrative contexts.26 That said, this falls short of making a positive case for the desirability of discretion. Another line of argument is to question the advantages of rules. It may come as a surprise that many of these criticisms originate from proponents of the rule paradigm. For example, Harlow and Rawlings concede that ‘the objectionable features of discretion – secrecy, inaccessibility, unfairness, arbitrariness – are possible in a rulebased system.’27 This accords with some of the doubts voiced above. Moreover, it is accepted by such writers that the ‘efficiency and effectiveness’ claim in favour of rules does not withstand probing scrutiny.28 More generally, as Schneider says, ‘rules can have disadvantages or can malfunction’.29 However, in my submission, merely emphasising the pitfalls of rules is inadequate, so a set of free-standing arguments is needed to make a compelling case for discretion. The classic defence of administrative discretion is Titmuss’s account of the British system of welfare provision. Being cognisant of the on-going transition from a claims culture to an entitlements culture, he did not go so far as to call for a purely discretionary system. Instead, he argued that it is necessary to keep discretionary justice within its proper bounds, in which it can fulfil a positive purpose, for it is (1) ‘an expensive way of administration’ and (2) ‘misuse of discretion’ is a real 23

Ed Rubin, ‘Law and Legislation in the Administrative State’ (1989) 89 Columbia Law Review 369, 396 24 Ibid, 383 25 n 23, 381 26 See too Jowell’s acceptance of the inevitability of discretion: J Jowell, ‘The legal control of administrative discretion’ [1973] PL 178, 201 27 n 5, 209 28 n 16, 659 29 n 19, 61

10 possibility, as ‘officials, like claimants, are people’.30 Having said this, Titmuss submitted that an element of ‘flexible, individualised justice’ is necessary and desirable, because (1) ‘a society without some element of means-testing and discretion is an unattainable ideal’ and (2) the ‘principles of equity’ that justify a ‘universal rights scheme’ require this.31 It is worth recalling the above example relating to Jobseeker’s Allowance at this stage. Titmuss was at pains to highlight the need ‘to find the right balance.’32 This is precisely the position adopted here and it is submitted that concerns about discretion being abused in contexts such as policing or about caseworkers controlling the lives of claimants in the welfare context are not knock-out arguments against discretion.33 As with rules, Schneider also provides a fuller, thought-provoking account of the advantages of discretion.34 First, there is the extreme view of ‘khadi-discretion’. This refers to the intrinsic ability of particular decision-makers to make good judgements without resort to rules or principles; surely a far-fetched view in any large bureaucracy whose quality is not unquestioned. We are on firmer footing with ‘rule-failure discretion’. The idea is that doing justice in the individual case will quite often require a degree of flexibility within a generally rule-governed system. This is essentially the case made by Titmuss outlined above and writers like Baldwin.35 A more novel argument is that for ‘rule-building discretion’. This concerns a preference for the organic development of rules following the exercise of discretion in administrative decision-making. On this view, discretion is useful as an instrument to achieving the end goal of government by law, the corollary of which is that it may cease to be useful in certain contexts over time. Finally, there is what Schneider terms ‘rule-compromise discretion’, with the grant of discretionary power posited as a deliberate choice by legislatures to pass responsibility to the decision-maker.36 A cynic would retort by saying that this merely reflects legislative malaise or laziness, as opposed to an informed decision. However, it is preferable to attribute more wisdom to our legislatures than that. Consequently, possible justifications for this tendency include a belief in the expertise of administrators or at least in comparative efficiency. The first justification can be substantiated by stressing the ‘complexity of decisions’37 and their regular ‘polycentricity’38 as Baldwin does. Institutionally, those handling such sensitive matters on a regular basis on the ground may well be more competent.39 The alternative justification links to the foregoing discussion of efficiency in the context of rule-making. Contrary to those claims, it is arguable that the conferral of discretion to decision-makers frees up parliamentary time and resources that can be devoted to what are deemed more urgent legislative activities.40 It is admitted that the efficiency claim is contestable, but the flexibility (‘rule-failure’) argument and the legislative mandate

n 7, 127 ibid, 131 32 ibid 33 See n 5, 208 34 What follows is a critical summary of Schneider’s account (n 19, 61-65). 35 See R Baldwin, Rules and Government (OUP 1995) 23 36 See too n 35, 41 37 ibid, 24 38 ibid, 29 39 For a similar argument based on relative institutional competence, albeit as a justification for administrative rule-making rather than discretion, see Davis (n 1, 56) 40 n 35, 46 31

11 (‘rule-compromise’) argument based on relative institutional competence seem particularly compelling. IV. STRIKING A BALANCE-RULES AND DISCRETION Having explored the arguments for rules and discretion respectively, it must be said that there is a solid foundation for both in our legal system. It follows that the choice to be made is ‘a choice between different mixes of discretion and rules’, rather than for one or the other.41 The most prominent view in this respect is that of KC Davis, who argued that ‘we should cut back huge quantities of unnecessary discretionary power’.42 Although there are noteworthy contextual differences between Britain and the United States and the structure of the administrative state has changed in the intervening decades, it is submitted that Davis’s approach is the natural point of comparison for the newer “soft law” approach. In essence, Davis called for the rise of administrative rule-making wherever the legislature has failed to promulgate the rules to be applied.43 This was identified as the best method for ‘confining discretion (fixing the boundaries) and for structuring it (guiding its exercise within the boundaries).’44 In sum, Davis urged decision-makers ‘to eliminate unnecessary discretion and to find the optimum degree of control.’45 Considerable weight appears to have been placed on eliminating ‘unnecessary discretion’, rather than on retaining such discretion and then ‘structuring’ it well. This is what distinguishes Davis’s approach from the soft law approach.46 This is a fine distinction to draw, for Davis did not offer a strict definition of rule-making, suggesting that ‘[t]he [gradual] movement from vague standards to definite standards to broad principles to rules’ via ‘administrative rule-making’ would already be a considerable improvement.47 It could be said, therefore, that he would have been satisfied, in principle, with the proliferation of soft law. However, it is probably safe to assume that his ultimate objective was the creation of rules stricto sensu, with the usual attributes of specificity and rigidity, not more loosely textured soft law. In my submission, Davis’s approach is problematic for three main reasons. First, the risk of eliminating valuable discretion that was misconstrued as ‘unnecessary’ is discounted.48 Secondly, Davis does not speak with one voice. There is an underlying tension in his work, captured best in his statement: ‘let us emphasise both the need for discretion and its dangers.’49 This is suggestive of quite a strong underlying preference

n 19, 49 n 1, 217 43 ibid, 219 44 ibid, 225 45 ibid, 20 46 It is recognised, of course, that the other central aspect of Davis’s approach is the ‘structuring’ of the discretion that remains following the elimination of ‘unnecessary discretion’ via administrative rulemaking. This is what scholars more typically highlight in discussions of Davis’s work: see Harlow and Rawlings (n 5, 201-202). 47 Consider n 1, 55 48 One may respond by saying that such discretion can always be restored, but this is at the very least inefficient and it is conceivable that once rules are promulgated administrators will hesitate to return to the status quo ante. 49 n 1, 25 42

12 for rules, despite his countenancing of discretion. Lastly, no criteria are offered for assessing what the ‘optimum degree of control’ is.50 The third criticism has prompted reflection by writers such as Galligan and Baldwin, who sought to enunciate criteria to help one decide how the balance between rules and discretion should be struck. Only a brief summary of their respective positions can be offered here. Galligan suggests four ‘political values’ for the purpose of controlling discretion: (1) ‘stability in legal relations’; (2) ‘rationality in decision-making’; (3) ‘fair procedures’; and (4) ‘general “moral and political principles”’.51 We are not told what the basis of each of these is and, as Baldwin notes, the fourth value is incredibly vague.52 By contrast, Baldwin offers more fully reasoned suggestions termed the ‘five rationales’ for ‘legitimacy claims’. These partly mirror the above justifications of discretion, such as the existence of a ‘legislative mandate’, ‘expertise’ and the ‘efficiency’ of administrators, but also point in the direction of rules, as with the socalled ‘accountability or control claim’ and, to a lesser extent, the ‘due process claim’.53 It may be tentatively concluded that neither approach is straightforwardly applicable. V. THE POTENTIAL OF “SOFT LAW” Although both Galligan’s and Baldwin’s theories deserve fuller exploration, an approach based on soft law guiding the exercise of discretion may well be preferable. This is because it could be less normatively contestable and seeks, by definition, to retain both the certainty of law and the flexibility of discretion to the greatest extent possible. However, this approach, which seems to have been welcomed by the highest courts in this jurisdiction, can also not resolve some of the long-standing dilemmas in the rules versus discretion debate.54 Accordingly, it will be suggested that the degree to which soft law may legitimately be used to fulfil this balancing function should itself be delineated to preserve the benefits of less structured discretion in certain contexts. This essay will conclude by setting out a tentative principle for the making of the decision as to the appropriateness of soft law in different contexts, after having considered the leading UK authorities on this subject. One of the foremost accounts of soft law is that of Sossin and Smith discussing the role it has played in Canada. Their argument is that ‘[s]oft law cannot in theory bind decision-makers, yet in practice it often has as much or more influence than legislative standards.’55 They submit that the Canadian jurisprudence has got to the point of suggesting ‘that guidelines may be treated, de facto, as limiting the scope of lawful discretion even if de jure they cannot be considered binding per se.’56 This submission rests mainly on the decision of the Supreme Court of Canada in Baker.57 In that case, the Court quashed the immigration officer’s decision denying a woman’s residence permit application in spite of her having four Canadian children. It was held that the 50

See n 35, 23 D Galligan, Discretionary Powers, A Legal Study of Official Discretion (OUP 1990) 90 52 n 35, 38 53 n 35, 41-46 54 Consider overarching questions about the legitimacy of prosecutorial and police discretion raised by, inter alios, KC Davis (n 1, 223-225) 55 n 12, 869 56 ibid, 890 57 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 51

13 discretion to extend permission to stay on ‘humanitarian and compassionate’ grounds had not been properly exercised. Significantly, the ruling was influenced by the officer’s failure to have regard to non-statutory guidelines outlining the appropriate approach in such cases. In consequence, the Ministry published a memo on the case and organised training sessions to ensure that this discretionary power would be lawfully exercised in future,58 demonstrating the legal significance of the decision and the weight that is now accorded to guidelines, at least in that context. Admittedly, not too much should be made of a single appellate decision nor would this Canadian decision be of great significance in Britain as a matter of authority. However, its tenor accords with the more recent British authorities that will be analysed immediately below and it shows the potential of “soft law” to ‘bridge law and policy.’59 In the words of Sossin and Smith, soft law ‘has the potential to enhance the coherence and fairness of bureaucratic decision-making.’ VI. PROSECUTORIAL AND POLICE DISCRETION The British courts have yet to decide a case that goes to the heart of the concerns that have long been raised about police discretion.60 The closest we have is the case of Gillan and Quinton,61 which was ultimately decided by the European Court of Human Rights. That case concerned the sweeping stop-and-search powers conferred upon the police by s.44 of the Terrorism Act 2000 used in that case against the applicants present at a protest against an ‘arms fair’, who were both detained for under 20 minutes. Before the House of Lords, the application failed, with their Lordships holding that there was a proportionate interference with the applicants’ Art.8 ECHR rights given the legitimate aim of ‘national security’. For present purposes, though, the Strasbourg Court’s decision focussing on whether the s.44 power was ‘in accordance with the law’ is of interest. The Court held that it was not in accordance with the law as, contrary to Lord Bingham, ‘the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.’62 In particular, the Court was concerned about the test of ‘reasonable suspicion’ having been replaced by one of expediency.63 This was an extreme case, with the broad discretion having been used to search over 100,000 people in 2007/08 alone.64 It is conceivable that the existence of guidelines stating criteria for the exercise of this discretion would have led to a different legal conclusion. This supposition is supported by the decision of the House of Lords in the leading case of Purdy.65 That case, as noted in the introduction, concerned prosecutorial discretion vested in the Crown Prosecution Service (CPS). The applicant sought judicial review of the Director of Public Prosecution’s (DPP’s) refusal to publish details of his policy as to the circumstances in which a prosecution would be brought for assisted suicide 58

n 12, 872-873 ibid, 892 60 See KC Davis (n 1, 223-224) for strong criticism of this particular type of discretion 61 R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307 and Gillan and Quinton v The United Kingdom [2010] ECHR 28 (12 January 2010) 62 ibid (Gillan and Quinton), [79] 63 ibid, [80] 64 ibid, [84] 65 n 9 (Purdy) 59

14 contrary to s.2(1) of the Suicide Act 1961 and/or of his failure to formulate such a policy. Mrs Purdy, who was suffering from primary progressive multiple sclerosis and contemplated suicide in the future to prevent unbearable pain, relied on Art.8 ECHR. The House of Lords unanimously held that the general Code for Crown Prosecutors issued by the DPP did not comply with the Art.8(2) requirements of ‘accessibility’ and ‘foreseeability’ for a person seeking to identify the factors which the DPP was likely to take into account when exercising his s.2(4) discretion. Consequently, their Lordships held that the DPP was under a duty to promulgate an offence-specific policy identifying the facts and circumstances which he would take into account.66 Their Lordships’ reasoning is well worth closer assessment. Factually, it was important that the applicant did not seek an immunity for her husband, instead only wanting ‘to be able to make an informed decision as to whether or not to ask for her husband's assistance.’67 A request for immunity would have been a clear subversion of the rule of law, whereas the status quo meant that citizens wishing to comply with the law were put in a ‘dilemma’.68 Moreover, Lord Hope confirmed the legality of clearly defined discretionary powers.69 Further, their Lordships were cognisant of the institutional realities of the CPS, for although the prosecutorial discretion is vested in the DPP, it is in fact delegated to a large number of Crown prosecutors. In Lord Hope’s opinion, this made it essential that they are ‘given the clearest possible instructions as to the factors which they must have regard to when’ exercising their discretion.70 In these exceptional circumstances, this meant that the DPP was required ‘to clarify what his position is as to the factors that he regards as relevant for and against prosecution’.71 It should be stressed that the House of Lords did not find fault with the Code in general, with Lord Hope observing that ‘[i]n most cases its application will ensure predictability and consistency of decision taking, and people will know where they stand.’72 Accordingly, it may be said that a more transitive form of soft law for the sensitive offence of assisted suicide was deemed necessary, but the broad prosecutorial discretion enjoyed by the CPS was preserved in other contexts only informed by the intransitive Code containing general principles. Lord Brown came to the same conclusion with greater reluctance, but held that although a Code meant to guide the exercise of discretion is already in existence, a specifically tailored set of guidelines is required, since the guidelines in the existing Code are ill-suited to this offence. His Lordship also observed that the reasons against prosecution in the James case published by the DPP were not applicable to all assisted suicide cases.73 In addition, Lord Neuberger felt that the correctness of their Lordships’ decision was underscored by the existence of similar offence-specific policies as to the exercise of prosecutorial discretion for, inter alia, rape and domestic violence.74 This is an interesting aspect of the judgment, since it suggests a wider shift towards reliance on soft law in the CPS above and beyond the general Code, although the previous offence-specific policies were said to be for the victim’s benefit.75 Be that as it may, 66

ibid, [56] (Lord Hope) ibid, [31] (Lord Hope) 68 ibid 69 ibid, [41] (Lord Hope) 70 ibid, [46] (Lord Hope) 71 ibid, [55] (Lord Hope) 72 ibid, [54] (Lord Hope) 73 Ibid, [85] (Lord Brown) 74 Ibid, [104] (Lord Neuberger); see too [84] (Lord Brown) 75 Ibid, [84] (Lord Brown) 67

15 we may be seeing gradual judicial recognition of the merits of soft law, when compared to rigid rules compelling prosecution whenever there is a provable case and unbridled prosecutorial discretion. It must be noted that the decision in Purdy has received its fair share of academic criticism. Only criticisms that go directly to questions surrounding the rule of law and the suitability of soft law will be considered here. Daw and Solomon argue strongly for the preservation of the “expediency principle” in respect of both police and prosecutorial discretion. Insofar as the argument relies on the claimed past success of the English and Welsh criminal justice system,76 it ignores the difficulties that were in issue in Purdy itself and wider concerns about, for example, unequal treatment of different ethnic groups.77 They make a more persuasive principled argument, pointing to the discrepancy between structured prosecutorial discretion and unstructured police discretion that now exists in such cases, but the exceptionality of Purdy should not be forgotten.78 Overall, their argument relies excessively on an alleged public aversion to an unduly strict application of the law when prosecuting.79 As such it comes across as overly assertive. Rogers’s critique is more nuanced and appealing, because it offers an alternative to the Purdy approach. He describes a more holistic and flexible ‘“system” of prosecutorial discretion’,80 which may indeed be preferable to the policy on assisted suicide formulated by the DPP. However, our concern is with the House of Lords’ embrace of soft law, not the quality of the policy in fact formulated. Rogers makes a rule of law objection to the Law Lords’ decision itself, questioning the legality of ‘a policy which suggests that non-prosecution may be in the public interest primarily on the basis of the circumstances of the offence itself’.81 On its own, such a criticism is plausible, for this policy indeed reinforces an inconsistency between the substantive criminal law and its enforcement. That said, he is objectionably selective in his application of this principle, failing to object to general prosecutorial discretion on this basis.82 A point of agreement with Rogers is that ‘being at the mercy of prosecutorial discretion’ can truly be problematic.83 It is submitted, accordingly, that the decision of the House of Lords was correct, for more detailed guidelines allow citizens to make informed decisions about their behaviour, whilst not descending to a situation where non-prosecution or prosecution is guaranteed, contrary to the criminal law in its current form. VII. ADMINISTRATIVE DISCRETION AND PRISONERS The trend in favour of requiring compliance with soft law was confirmed by the UK Supreme Court in the cases of Lumba84 and Kambadzi85. The principal legal issues raised in Lumba were the legality of following an unpublished policy that was 76

R Daw and A Solomon, ‘Assisted suicide and identifying the public interest in the decision to prosecute’ [2010] 10 Crim LR 737, 739 77 Consider the infamous Stephen Lawrence case 78 n 76, 749 79 Ibid, esp. 749-750 80 J Rogers, ‘Prosecutorial policies, prosecutorial systems, and the Purdy litigation’ [2010] 7 Crim LR 543, 559-564 81 ibid, 553 82 ibid 83 ibid, 564 84 n 10 (Lumba) 85 n 11 (Kambadzi)

16 inconsistent with the published policy, the question of causation in the tort of false imprisonment, and the availability of vindicatory damages for such strict liability torts. The issue of damages will not be discussed here. By way of background, the Home Secretary’s published policy introduced in 2006 pertaining to the exercise of the discretionary power conferred by Sch.3 Para 2 of the Immigration Act 1971 stipulated a presumption in favour of release in respect of foreign national prisoners (FNPs), whereas the unpublished policy followed by the Home Office from April 2006 to September 2008 was one of blanket detention of FNPs until deportation. This glaring inconsistency was rectified in 2008, when the published policy was altered to reflect the reality of the aforesaid presumption not applying if the deportation criteria were met. On the first issue, 8 out of 9 Justices of the Supreme Court (Lord Phillips PSC dissenting) held that the Home Secretary’s unpublished policy was unlawful, resulting in a ‘material public law error’86 or an ‘abuse of power’,87 because it was a ‘blanket policy’88 allowing for no exceptions and was inconsistent with the published policy.89 Their Lordships held that the Home Secretary had a duty to publish her policy and to follow it, in order to ensure that affected persons are able ‘to make informed and meaningful representations before a decision is made.’90 On the second issue, a narrower 6:3 majority (Lords Phillips, Brown and Rodger dissenting) held that, where a decision to detain was ‘tainted by public law error’,91 the ability to show that a lawful decision to detain the claimants could and would have been made (the so-called ‘causation test’92) does not absolve officials from liability for false imprisonment.93 In essence, this means tortious liability can arise for failure to comply with soft law. As a side-note, the Supreme Court (Lord Phillips PSC dissenting) approved the four Hardial Singh principles94 pertaining to the exercise of the discretionary powers of detention under Sch.3 Para 2, which demonstrates the courts’ eagerness to constrain what are broad, statutory discretionary powers.95 It is necessary to look more closely at the individual judgments, in particular the leading majority one delivered by Lord Dyson JSC. As Feldman notes, the holding that the Home Secretary is under a duty to apply the published policy is rather innovative,96 so it is worth assessing the reasons offered by the majority for this. Lord Dyson invoked the rule of law ideal, in particular the requirement that the law be transparent and that people can organise their lives in the light of the law.97 However, importantly, his Lordship observed that cases are to be ‘considered under whatever policy the executive sees fit to adopt’,98 so the rule of law is being relied on in a 86

n 10, [69] (Lord Dyson JSC) ibid, [193] (Lord Walker JSC); [170] (Lord Hope DPSC) 88 ibid, [41] (Lord Dyson JSC) 89 ibid, [169] (Lord Dyson JSC) 90 ibid, [38] (Lord Dyson JSC) 91 ibid, [88] (Lord Dyson JSC) 92 See Lumba (n 11) [325] (Lord Phillips PSC) for an explanation of this test favoured by the dissentients 93 n 10, [175] (Lord Dyson JSC) 94 R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (Woolf J) as distilled by Dyson LJ in R (I) v Secretary of State for the Home Department [2003] INLR 196 (CA) 95 See D Feldman, ‘Consequences of administrative unlawfulness’ (2012) 71(1) CLJ 11, 12 96 ibid 97 n 10, [34] (Lord Dyson JSC) 98 ibid, [35] (Lord Dyson JSC) 87

17 formal sense only. Lord Walker JSC relied on a different facet of the rule of law, namely the necessity of guidance ‘in order to achieve consistency in decisionmaking.’99 His Lordship’s primary concern, then, seems to have been equal treatment, stressing the fact that the relevant decisions ‘are taken by a small army of officials at different levels’.100 An intermediate position is that of Baroness Hale JSC, who pointed to the need for both rationality in the decision-making process and for transparency in the process.101 As regards transparency, the main concern was that officials had to fabricate false reasons to cover up the application of the blanket policy of deportation. It follows that such egregious executive misconduct will be found to be unlawful. What makes the Lumba decision all the more interesting, though, is that tortious liability can also arise in consequence. That said, failure to comply with soft law will not always give rise to such liability. Although the majority rejected the ‘causation test’ supported by the dissentients,102 two important caveats were introduced. First, the mere existence of an inconsistent unpublished policy would not amount to illegality. Rather, it must be proved that it was either ‘applied or at least taken into account’.103 The second and more important caveat is the requirement of materiality,104 which appears to be intended to act as a shield against actions for relatively minor public law errors. Therefore, the discretion conferred upon the Home Office officials in this context has not been restricted as much as one would have thought at first sight, even though policy guidelines have assumed a more prominent position legally. Following Lumba, a majority of the Supreme Court in Kambadzi took the Purdy/Lumba trend a step further by extending the principles in Lumba regarding the tort of false imprisonment committed on the basis of public law error from ‘substantive considerations’ concerning detention to the ‘procedure of review of a detention’.105 To summarise the complex facts of that case briefly, the claimant was a Zimbabwean national who had been convicted of the offences of common assault and sexual assault, which prompted the Home Secretary to make a deportation order against him one day before the end of his one year prison sentence. It was argued that his continued detention thereafter was unlawful, for regular reviews had not been carried out in line with rule 9(1) of the Detention Centre Rules 2001 and the Home Secretary’s own published policy. The Supreme Court (Lords Rodger and Brown dissenting) held that the Home Secretary’s statutory power under the Immigration Act 1971 to detain foreign nationals pending deportation was further qualified by the procedural rules in the published policy and that regular reviews were necessitated by the need to determine whether good grounds for continued detention exist. It was held, accordingly, that the failure to comply with the published policy, without good reason, amounted to an ‘abuse of power’ and was hence unlawful.

ibid, [190] (Lord Walker JSC) ibid 101 ibid, [205] (Baroness Hale JSC) 102 See, esp., ibid [62] (Lord Dyson JSC) 103 ibid [63] (Lord Dyson JSC) 104 ibid [68] (Lord Dyson JSC); it may have been thought that the alternative ‘abuse of power’ requirement would have been even more generous to officials, but the approach of the majority of the Supreme Court in Kambadzi suggests that both ‘material public law error’ and ‘abuse of power’ amount to a “test of materiality”: S Steel, ‘False imprisonment and the fetch of hypothetical warrant’ (2011) 127 LQR 527, 529. 105 S Steel, ‘False imprisonment and the fetch of hypothetical warrant’ (2011) 127 LQR 527, 528 100

18 Prima facie, this decision is more invasive in terms of curbing discretion than Lumba, which concerned the startling operation of an inconsistent, blanket unpublished policy for a prolonged period. However, the requirement of materiality set out in Lumba was undoubtedly satisfied, for only six proper reviews had been carried out, as opposed to the 22 required under the policy, with the trial judge having described the situation as ‘deeply disturbing and profoundly shocking’.106 Moreover, the majority all recognised that ‘[p]olicy is not law’, suggesting the test of departure from policy without ‘good reason’ so as to strike a balance between the strictures of hard law and the previously assumed laxity of policy.107 As in Lumba, this approach was said to be required by the ‘the rule of law itself’.108 The correctness of the majority decision is further confirmed by Lord Kerr JSC’s astute observation that ‘the Home Secretary had made an unequivocal statement that failure to comply with the policy would be a breach of the law.’109 In sum, though Kambadzi goes further than Lumba, it is not a quantum leap. VIII. CONCLUSION – THE WAY FORWARD The rise of soft law in this jurisdiction has been established and its potential to guide or ‘structure’ the exercise of discretion positively, without going as far as adversely ‘eliminating’ discretion altogether, has been demonstrated. The question of when it is appropriate to deploy soft law to this end remains. To conclude this essay, an attempt is made to distil a principle from the authorities discussed and the broader arguments considered. It is submitted that soft law, principally in the form of policy guidelines or codes, is most appropriate where core civil or political rights are in issue, like in Lumba and Kambadzi, but less so where the legislature has left difficult decisions with redistributive consequences, such as the most challenging aspects of welfare distribution, to administrators without itself formulating clear rules. However, there are hard cases that do not fall neatly on either end of the suggested spectrum, in particular those involving the exercise of prosecutorial and police discretion. It would be straining language to describe these as core civil or political rights cases, because the legal110 exercise of discretion presupposes that a person has committed acts that are prosecutable or suspicious respectively. At the same time, sensitive issues of liberty deprivation and fair treatment arise. Purdy and Gillan and Quinton are best seen as extreme cases that, in substance, are more like core civil or political rights cases, as in the former Parliament was lamentably slow to reconsider the law on assisted suicide, whilst in the latter the scale of police abuse was staggering. This principle can be refined following further judicial rulings on the status of soft law, but for now it delineates the proper place of soft law in structuring, rather than eliminating, discretion in fields in which such powers are particularly broad.

106

See n 11, [26] (Lord Hope DPSC) n 11, [36] (Lord Hope DPSC); see too [63] (Baroness Hale JSC) and [87] (Lord Kerr JSC) 108 ibid, [63] (Baroness Hale JSC) 109 ibid, [87] (Lord Kerr JSC) 110 This is an important caveat, because illegal exercises of discretion, or ones of doubtful legality, are said to be commonplace in this context: see generally KC Davis (n 1). 107

_______________

United States v Camou: Warrantless Cell Phone Searches after Riley v California MARCO WONG* The Fourth Amendment of the United States Constitution offers protection against unreasonable searches and seizures of our persons, houses, papers, and effects.1 While the Supreme Court has stated a preference for searches pursuant to lawfully obtained search warrants,2 it has recognized a number of “exceptions” in which a warrantless search will be reasonable.3 None of this is particularly new. What has challenged the courts over time, however, is the question of how this framework applies to continually changing technology.4 Cell phones are particularly concerning – not only can a search of one’s cell phone be more intrusive of privacy than a search of one’s home, the use of cell phones, unlike other forms of technology, has become increasingly prevalent amongst the general populace. 5 In the face of this double whammy, how do we limit government’s ability to access personal aspects of our lives? This Comment argues that requiring police to get a warrant in all cell phone searches is the best way to accomplish this. But given the harshness of the Fourth Amendment exclusionary rule,6 evidence should not be excluded where an officer relies on her own objectively reasonable mistakes or binding court precedent. * J.D. Candidate, Columbia Law School, 2016; LLB Candidate, London School of Economics and Political Science, 2015. I am grateful to Judge Debra A. Livingston for inspiring my interest in this area of the law, and to Judge Livingston, Professor I. Bennett Capers, and Professor Daniel C. Richman for invaluable feedback and suggestions. I also thank Philippe Kuhn for his insightful comments on a previous draft. 1

US Const amend IV. Thompson v Louisiana 469 US 17, 20 (1984) (“[W]e have consistently reaffirmed our understanding that in all cases outside the exceptions to the warrant requirement the Fourth Amendment requires the interposition of a neutral and detached magistrate between the police and the ‘persons, houses, papers, and effects’ of citizens.”). A search warrant is a document issued by a judicial officer, upon finding that the police have probable cause—defined as “fair probability”—to search a specified premises, and authorizing the police to do so. Illinois v Gates 462 US 213, 246 (1983). 3 Referring to a warrantless search as an “exception” is a misnomer because the courts have recognized so many of them. Akhil R Amar, ‘Fourth Amendment First Principles’ (1994) 107 Harv L Rev 757, 762–771 (“We have now seen at least eight historical and commonsensical exceptions to the so-called warrant requirement. There are many others—but I am a lover of mercy.”). See n 8, 34, 37. 4 United States v Jones 132 S Ct 945 (2012) (concluding that installation of electronic tracking device to the defendant’s wife’s car was a Fourth Amendment search); United States v Karo 468 US 705 (1984) (finding that monitoring of a beeper in a private residence implicated the Fourth Amendment); United States v White 401 US 745 (1971) (holding that the law does not protect persons whose conversations with others are recorded and transmitted to police). 5 Riley v California 134 S Ct 2473, 2490 (2014) (“[N]early three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower…many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate…[t]he average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.”); Orin S Kerr, ‘Searches and Seizures in a Digital World’ (2011) 119 Harv L Rev 531, 541–543 (2011) (observing that computers differ from houses in that they contain a staggering amount of data, most users do not know about and cannot control the storage of this information, and computer operating systems and programs generate and store a wealth of information about how the computer and its contents have been used). 6 Mapp v Ohio 367 US 643 (1961) (holding that evidence obtained by searches and seizures in violation of the Constitution is inadmissible in state courts). 2

In Riley v. California,7 the Supreme Court considered the question of whether search incident to arrest8 (“SIA”) applied to cell phones. There, the defendant was arrested for driving with expired registration tags.9 Police obtained his cell phone from his pants and searched it to find a number of text messages and videos implicating him in an unrelated shooting.10 The court unanimously held that a warrant was generally required for cell phone searches. 11 The court observed that SIA’s traditional justifications – ensuring officer safety and preventing evidence destruction – did not apply in the cell phone context. Phone data did not endanger officers as a weapon might,12 and police could easily prevent data loss by disconnecting the phone from the network.13 Importantly, although police could search car containers incident to arrest where it was reasonable to believe that evidence relevant to the crime of arrest might be found in the car,14 cell phones were not containers. This is because cell phones could “access data located elsewhere, at the tap of a screen,” and contain evidence of past crimes.15 But while Riley decided the SIA issue, it deliberately left open the question of whether other “exceptions” to the warrant requirement could justify a warrantless search of one’s cell phone.16 Since the Supreme Court’s ruling, lower courts have grappled with the question of Riley’s scope, finding that some warrantless cell phone searches can still be constitutional.17 This Comment investigates the Ninth Circuit’s contribution to this discussion in United States v. Camou.18 After detailing the court’s holding in Part I, Part II examines Camou’s analyses of the exigency and automobile exceptions to the Fourth Amendment’s traditional warrant requirement, and good faith doctrine. It suggests, in Part III, that the Supreme Court should reject exigency searches of cell phones, endorse but further elaborate Camou’s holding that cell phones are noncontainers under the automobile exception, and reject its understanding of good faith.

Riley v California 134 S Ct 2473, 2473 (2014). “Search incident to arrest” is an “exception” to the warrant requirement that allows police to search a arrestee’s person, United States v Robinson 414 US 218 (1973), police may search the arrestee’s reachable space if the arrestee is in her home, Chimel v California 395 US 752 (1969). Police may also search the arrestee’s car when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, and when it is reasonable to believe that evidence relevant to the crime of arrest might be found in the car, Arizona v Gant 129 S Ct 1710 (2009). 9 ibid 2480. 10 ibid. 11 ibid 2494. 12 ibid 2485–2486. 13 ibid 2486–2488 (discussing that police can prevent remote wiping by (1) turning off the phone or removing its battery, or (2) leaving the phone powered on and placing it in an enclosure called a Faraday bag to isolate the phone from radio waves). 14 n 8. 15 Riley v California 134 S Ct 2473, 2491 (2014). 16 ibid 2494 (observing that “other case-specific exceptions may still justify a warrantless search of a particular phone,” and referring to the exigency exception in particular). 17 United States v Dahl No. 14-382, 2014 WL 6792676 (E.D. Pa. Dec. 3, 2014) (Riley does not overrule precedent allowing warrantless search of a probationer’s cell phone based on reasonable suspicion); United States v Saboonchi No. PWG-13-100, 2014 WL 3741141 (D. Md. Jul. 28, 2014) (Riley does not alter the reasonable suspicion standard for the border search of a smartphone and flashdrive). 18 United States v Camou 773 F 3d 932 (9th Cir. 2014). 8

22 I. UNITED STATES V CAMOU In Camou, United States Border Patrol agents found an undocumented immigrant in the backseat of Camou’s truck at a primary inspection checkpoint in Westmorland, California. 19 They arrested Camou, his girlfriend, and the immigrant, and seized Camou’s truck and cell phone. 20 During the booking process, Agent Baldwin inventoried Camou’s cell phone as “seized property and evidence.”21 One hour and twenty minutes after the arrest, Agent Walla searched Camou’s cell phone for evidence of “known smuggling organizations and information related to the case.”22 He searched the call logs of the cell phone and found a number of calls from “Mother Teresa.”23 He then exited the call logs screen and searched the videos and photographs contained on the phone’s internal memory. 24 He stopped reviewing the phone’s contents after finding thirty to forty images of child pornography.25 Camou was tried for possession of child pornography.26 The District Court for the Southern District of California denied his motion to suppress the child pornography images that police found on his cell phone.27 Judge Huff held that the search of the phone was a lawful SIA.28 Alternatively, if the search were unconstitutional, she would have found that both good faith29 and inevitable discovery30 exceptions applied to prevent exclusion of the evidence.31 The Court of Appeals for the Ninth Circuit reversed the lower court’s decision.32 The court found that the passage of one hour and twenty minutes and a string of intervening acts between Camou’s arrest and the cell phone search meant that the phone was not roughly contemporaneous with arrest to constitute a SIA. 33 The

ibid 935. ibid. 21 ibid. 22 ibid 936. There was arguably probable cause to do so for two reasons: (1) Camou’s girlfriend informed Border Patrol that before picking up the undocumented immigrant, Camou received a phone call from someone who went by the alias of “Mother Teresa”; (2) during Camou’s girlfriend’s interview, Camou’s cell phone rang several times, and the phone number displayed on the screen was identified as belonging to “Mother Teresa.” ibid. 23 ibid. 24 ibid. 25 ibid. 26 18 USC §2252(a)(4)(B) (2012). 27 United States v Camou 773 F 3d 932, 936 (9th Cir. 2014). 28 ibid. 29 The “good faith exception” is an exception to the general rule that evidence is excluded if police obtained it in violation of the Fourth Amendment. It applies where police objectively relied on the error in good faith. United States v Leon 468 US 897 (1984). The good faith exception applied when the error leading to the Fourth Amendment violation was attributable to a non-police actor—for instance, a magistrate, ibid; the legislature, Illinois v Krull 480 US 340 (1987); or a court clerk, Arizona v Evans 514 US 1 (1995). 30 Like the “good faith exception”, the “inevitable discovery exception” is an exception to the general rule that evidence is excluded if police obtained it in violation of the Fourth Amendment. It applies where evidence would have been found anyway even if there were no Fourth Amendment violation. Nix v Williams 467 US 431 (1984). 31 ibid. 32 ibid 937. 33 ibid 939. 20

23 exigency34 exception did not apply because police were not faced with a “now or never situation” such as an imminent loss of evidence.35 Even if exigencies existed, the scope of the search was impermissibly overbroad because it extended beyond call logs to include photographs and videos.36 The automobile37 exception did not apply. Expressing concern with the intrusiveness of a cell phone search and that automobile exception searches were not limited by time or relevance, the court found that cell phones were non-containers.38 Finally, the court held that neither inevitable discovery nor good faith exceptions applied. The former failed because the government did not show that it would have applied for a warrant to search Camou’s phone for evidence of alien smuggling activity, and precedent prevented officers who had probable cause but simply did not try to get a search warrant from being excused.39 Nor did the good faith exception apply because the government did not demonstrate that Agent Walla relied on an external source.40 II. EXIGENCY, AUTOMOBILE EXCEPTION, GOOD FAITH At first glance, Camou appears to be a simple and faithful application of precedent. On closer examination, the Ninth Circuit broke new ground in a number of ways. This section examines the court’s pioneering efforts in its analyses of (i) the exigency exception, (ii) the automobile exception, and (iii) good faith. The court should have elaborated its holdings in each of these areas, because existing Supreme Court jurisprudence did not require its conclusions. i. Exigency Because Camou did not involve a situation where there was no time to get a warrant, the court was justified in concluding that there was no exigency.41 If police were concerned about remote wiping of data on the cell phone, the police should have turned off the cell phone, taken out its battery, and placed it in a Faraday bag.42 If there was probable cause that evidence related to Camou’s alien smuggling activity was on the cell phone, police should have submitted this information for a judicially authorized warrant. The Camou court did not stop there, however. It added that even if there was an exigency, “the search’s scope was impermissibly overbroad” because it went beyond contacts and call logs to include photographs and videos that were stored on the phone’s internal memory.43 In the physical context, the principle that an exigency 34

Like SIA, “exigency” is an “exception” to the warrant requirement that allows police to conduct a search without getting a warrant where there was not enough time to do so, as in cases involving fleeing suspects, Warden v Hayden 387 US 294 (2009); potential evidence loss, United States v Elkins 300 F 3d 638 (6th Cir. 2002); or threat of serious injury, Brigham City v Stuart 547 US 398 (2006). 35 ibid 941. 36 ibid. 37 Like SIA and exigency, the “automobile exception” is an “exception” to the warrant requirement. Police may conduct a warrantless search of a car where there is probable cause to believe that evidence is contained in it. California v Acevedo 500 US 565 (1991). 38 ibid 943. 39 United States v Camou 773 F 3d 932, 944 (9th Cir. 2014). 40 ibid 945. 41 n 35. 42 n 13. 43 United States v Camou 773 F 3d 932, 941(9th Cir. 2014).

24 search must be strictly circumscribed by the exigencies which justify its initiation has long been accepted.44 Take the example of a warrantless entry into a home while a homicide is taking place (“the bedroom gunshot example”). If a gunshot is heard resounding from the upstairs bedroom, exigency allows police to search the bedroom without a warrant. It does not, however, allow them also to search the basement unless they have a warrant or another exception to the warrant “requirement” applies.45 The reason is twofold. First, police may not have probable cause46 to search the basement. Second, police have time to get a search warrant.47 Neither of these reasons – and it is not clear upon which of these the Camou court relies – justified the court’s finding that the search’s scope was impermissibly overbroad. One possible reading of the court’s statement is that Agent Walla only had probable cause to search the contacts and call logs. The court did not, however, explain why probable cause is limited this way in the search of Camou’s cell phone. It is helpful to analogize to a physical search. Take the example of a warrantless search of a defendant who had a glassine bag containing narcotics and a memo book on his person (“the drugs and memo book example”).48 In that situation, the court would likely find that police had probable cause not only as to the bag of drugs, but also the memo book. The reason is that it is probable that the memo book would contain information about the defendant’s contacts and transactions. Applying this understanding to Camou, the court appeared to draw a bright line between a phone’s contacts and call logs, on the one hand, and its photographs and videos, on the other. But it is not immediately clear why “evidence of ‘known smuggling organizations and information related to the case’” could or could not likely be found in one’s photographs and videos. 49 One could reasonably think of photographs of other smugglers and illegal immigrants,50 or videos of the locations where smugglers met would be found.51 This information may be just as or more probative than a list of

Mincey v Arizona 437 US 385 (1978). n 3. In practice, courts have been more lenient in their interpretation of exigency, allowing officers to conduct a protective sweep where they “reasonably believed that a shooting victim or an additional armed suspect might be in the house.” United States v Goodrich 739 F 3d 1091, 1096 (8th Cir. 2014). 46 n 3. 47 A search warrant is favored because it offers a number of police power-constraining safeguards. To obtain a warrant, police must demonstrate probable cause, under oath and affirmation, to a magistrate. The particularity requirement limits the legitimate scope of searches spatially and temporally. Once a warrant is obtained, there is a further safeguard that a warrant must be executed in a constitutionally acceptable way. Wilson v Layne 526 US 603 (1999) (holding that third parties are allowed during a search only if they are in aid of the execution of the warrant); Wilson v Arkansas 514 US 927 (1995) (recognizing that absent special justification, police must knock and announce). 48 The author is grateful to Judge Livingston for this example. 49 United States v Camou 773 F 3d 932, 936 (9th Cir. 2014). 50 For an example of how photographs have been used to incriminate defendants, Nina Golgowski, ‘London Drug Dealers Sentenced after Being Caught with Boastful Cellphone Photos of Drugs, Cash’ New York Daily News (New York, 29 Oct. 2014) <http://www.nydailynews.com/news/world/londondrug-dealers-trophy-photos-drugs-cash-phones-article-1.1992100> accessed 13 May 2015; Mark Duell, ‘Busted! Drug Smuggler Caught After He Spelled His Nickname in Cocaine while Posing for Mobile Phone Photograph’ Daily Mail (London, 26 May 2013) <http://www.dailymail.co.uk/news/article2331155/Drug-smuggler-spelt-nickname-cocaine-10-man-British-gang-jailed-total-92-years.html> accessed 13 May 2015. 51 Smugglers have also used text messages to signal the presence of the Border Patrol to others. Marc Lacey, ‘Smugglers Guide Illegal Immigrants with Cues via Cellphone’ New York Times (New York, 9 May 2011) <http://www.nytimes.com/2011/05/09/us/09coyotes.html?_r=0> accessed 13 May 2015. 45

25 phone digits, especially since contacts’ names on a cell phone may be concealed and, if prepaid cell phones were used,52 contacts could be difficult to track.53 Another reading of the court’s analysis is that Agent Walla should not have ventured beyond the contacts and call logs, regardless of whether there was probable cause to do so, because he had time to get a search warrant. While limiting a warrantless search in this way in a physical search may be sensible, a number of difficulties emerge in the context of an electronic search. How are officers to know when an exigency ends in the electronic search context? In the bedroom gunshot example, the exigency arguably ends when the occupants are subdued or handcuffed.54 Similarly, in the drugs and memo book example, the exigency likely ends when the drugs and memo book have been removed from the defendant so that he is not able to destroy the evidence.55 A reasonable police officer would recognize that the exigencies presented in these cases have come to an end. The Riley answer of when a cell phone exigency search terminates does not answer this question,56 because the Camou court’s discussion of impermissible overbreadth was premised on “the exigencies of the situation permit[ting] a search of Camou’s cell phone to prevent the loss of call data.”57 In other words, Camou assumed for the purposes of its discussion that Agent Walla could look through the cell phone for exigency reasons. The court did not explain, however, why he was entitled to go as far as the contacts and call logs, but constitutionally required to stop before perusing the photographs and videos. Absent any distinctive event terminating the exigency, as there was in both bedroom gunshot and drugs and memo book examples, an ordinary police officer without specialized technological training is unlikely to know what he is and is not entitled to do.58 If, for instance, an officer were allowed to search a cell phone to prevent evidence destruction, at what point would this threat end and how would an ordinarily trained officer know? The Riley court may have had these challenges in mind when concluding that an officer should generally get a warrant before searching a cell phone.59 A third reading of the court’s analysis is that Agent Walla could have searched some photographs and videos, but not so many of them. But if this is what the court meant, 52

Jim Dwyer, ‘It’s Not Just Drug Dealers Who Buy Prepaid Phones’ New York Times (New York, 28 May 2010) <http://www.nytimes.com/2010/05/30/nyregion/30about.html> accessed 13 May 2015. 53 Associated Press, ‘Lawmakers Seek to Crack Down on Prepaid Cell Phones that Abet Criminal and Terror Suspects’ Fox News (New York, 8 June 2010) <http://www.foxnews.com/us/2010/06/08/lawmakers-crack-prepaid-cell-phones-abet-criminal-terrorsuspects/> accessed 13 May 2015. cf Justin Peters, Can Disposable “Burner” Cellphones Protect You From Government Surveillance?, Slate (New York, 7 June 2013) <http://www.slate.com/blogs/crime/2013/06/07/verizon_nsa_scandal_can_disposable_burner_cell_pho nes_protect_you_from_government.html> accessed 13 May 2015 (observing that while prepaid phones “make it more difficult for the government to determine who you are,” two qualifications render them “by no means untraceable”: (1) calls made on prepaid phones are generally transmitted over existing networks, and (2) it is not hard for the government to determine one’s location based on her phone’s communication with cell towers).f 54 Mincey v Arizona 437 US 385 (1978). 55 United States v Elkins 300 F 3d 638 (6th Cir. 2002). 56 n 13. 57 United States v Camou 773 F 3d 932, 941 (9th Cir. 2014). 58 Kerr, ‘Searches and Seizures in a Digital World’ (n 5) 574–576 (concluding that ex post standards are favored over ex ante rules because “the computer forensics process is contingent, fact-bound, and quite unpredictable,” so that “even a skilled forensic expert cannot predict exactly what techniques will be necessary to find the information sought by a warrant.”). 59 Riley v California 134 S Ct 2473, 2485 (2014).

26 and Camou held that scrolling through hundreds of photographs and videos failed the “impermissibly overbroad” standard,60 it is not clear what this means in a less extreme case involving a search of fewer photographs and videos. Nor did State v. Caroll,61 the only authority on which the court relies to reach its conclusion, mention how many images police viewed on the defendant’s cell phone.62 The Camou court committed only one paragraph of its opinion to the impermissible overbreadth question, leaving scant guidance for courts and police officers in the future. ii. Automobile Exception The traditional justification for the automobile exception is that because cars are highly moveable, evidence would be lost by the time that police are able to secure a warrant.63 Over time, this rationale has changed – the warrantless search of a car is now justified because one has a reduced expectation of privacy in one’s car.64 So long as there is probable cause to search a car, police are entitled to search containers and passengers’ belongings that are capable of concealing the object of a search,65 even though this can lead to anomalous results.66 The question that Camou faced was whether a cell phone was considered a container.67 The Camou court concluded that there was “no reason not to extend the reasoning in Riley,” holding that cell phones were not containers in the SIA context, to the automobile exception.68 If we take the question of “what is a container” in isolation, the court’s logic is attractive. In both SIA and automobile exception contexts, analyzing a cell phone as a container is strained as a matter of language.69 Also under both circumstances, searching a cell phone implicates significant privacy concerns because of the amount of information that cell phones contain.70 Finally, the definition of “container” is same for physical evidence in both SIA and automobile exception cases.71 As a matter of literal language, the court seemed justified to find that cell phones were non-containers. Two differences should be observed, however. First, whereas the government did not have probable cause in relation to the cell phone in Riley, it did in Camou. In Riley, 60

United States v Camou 773 F 3d 932, 941 (9th Cir. 2014). State v Carroll 778 N W 2d 1, 12 (Wis. 2010). 62 Because there was no reference to the quantity of images perused by police in Carroll’s holding at all, this reading of Camou’s holding is least probable. 63 Carroll v United States 267 US 132 (1925). 64 California v Carney 471 US 386 (1985). 65 Wyoming v Houghton 526 US 295 (1999); California v Acevedo 500 US 565, 579 (1991) (“We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers”). 66 California v Acevedo 500 US 565, 581 (1991) (“[I]t is anomalous to prohibit a search of a briefcase while the owner is carrying it exposed on a public street yet to permit a search once the owner has placed the briefcase in the locked trunk of his car.”). 67 United States v Camou 773 F 3d 932, 942 (9th Cir. 2014). 68 ibid. 69 Riley v California 134 S Ct 2473, 2491 (2014). 70 n 5. 71 New York v Belton 453 US 454, 460 (1981) (“‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like.”). 61

27 police had probable cause to arrest the defendant, but no probable cause to search either his person or cell phone. Police were entitled to search the defendant’s person in that case not because they had probable cause, but because of the Robinson bright-line rule that police could search an arrestee’s person.72 In Camou, by contrast, police had probable cause to search the car and any containers and passengers’ belongings that could contain evidence of smuggling.73 Since a cell phone may plausibly contain evidence of smuggling such as contacts and other information,74 Agent Walla had probable cause to search it if it were a container. Second, the court did not give enough attention to the different rationales that underlay the two doctrines. The court correctly observed that the justifications for these two warrant requirement exceptions were different. SIA was “rooted in arrest and the Chimel rationales of preventing arrestees from harming officers and destroying evidence [while] the vehicle exception [was] instead motivated by the supposedly lower expectation of privacy individuals [had] in their vehicles as well as the mobility of vehicles.”75 The court also correctly found that this difference meant that the one hour and twenty minute delay, while fatal to the state’s SIA argument, did not defeat the automobile exception argument. 76 But the court did not take this difference into account when deciding whether to extend Riley’s holding that cell phones were non-containers under SIA to searches under the automobile exception. In Riley, the court weighed the twin SIA justifications with the consequences of allowing a warrantless cell phone search. Since there were no officer safety or evidence preservation interests involved (minimal benefits) and significant privacy interests were implicated (high costs), the court concluded that cell phones fell outside SIA’s coverage.77 The Camou court should have engaged in a balancing analysis rather than accept Riley’s outcome because the factors in play in Camou were different. While significant privacy interests were still involved (high costs), the other side of the scale included that Camou had a lessened privacy expectation in his car, and that the state had an interest in getting probative evidence to build its case (high benefits).78 It is plausible that the court might have reached the opposite conclusion after engaging in this balancing exercise. The court, however, swept these distinctions aside without elaborating on its policy choice. iii. Good Faith In Herring v. United States,79 the Supreme Court held that the good faith exception applied where the violation was attributable to a police employee, so long as it was not “deliberate,” “reckless,” “grossly negligent,” or “recurring or systemic negligence.”80 The Camou court, however, interpreted Herring to draw a line between the officer’s 72

n 4. United States v Camou 773 F 3d 932, 942 (9th Cir. 2014) (“We assume that the agents had probable cause to believe Camou’s truck contained evidence of criminal activity once they saw MartinezRamirez lying down behind the seats of the truck.”). 74 n 50–51. 75 ibid 941. 76 ibid 942. 77 Riley v California 134 S Ct 2473, 2493–2495 (2014). 78 United States v Camou 773 F 3d 932, 941–943 (2014). 79 Herring v United States 555 US 135 (2009). 80 ibid 144. 73

28 own acts and a third party’s acts. According to the Ninth Circuit, the good faith exception only applied in the latter scenario.81 Since Agent Walla did not rely on someone else’s error, the good faith exception was inapplicable in Camou.82 As a matter of precedent, it is unlikely that the Supreme Court intended to draw the line between officers’ reliance on their own actions and their reliance on third party actions. This is because courts have repeatedly held that the rationale underlying the exclusionary rule is to deter police misconduct.83 Excluding the evidence in a case where an officer relies on his mistaken and reasonable belief does not further this goal. First, to pass the Herring standard, the officer’s conduct had to be something less than recurring or systemic negligence.84 This means that the officer who purposely made a mistake, the officer who knew of a risk that he was making a mistake, and the officer who did not know (but should have known) of a risk that he was making a mistake and made “routine or widespread” mistakes would be treated the same way. In all three cases, the evidence would be excluded. Camou held an officer by an even more rigorous standard—if she made and relied on her own mistake, the evidence was excluded.85 Yet it is unlikely that an officer who made a reasonable mistake could be deterred from making another reasonable mistake in the future.86 Second, in addition to failing to deter police misconduct, Camou may over-deter proper police action. Officers may be disincentivized from acting on their own understandings where there exists the slightest hint of doubt, in fear that evidence that is collected will be excluded.87 Third, Camou may ultimately have negligible effect on defendants whose Fourth Amendment rights are violated, if officers respond to it by increasing their reliance on their colleagues’ understandings. This loophole allows officers to act upon negligent beliefs, so long as they can point to someone else as the originator of those 81

United States v Camou 773 F 3d 932, 945 (9th Cir. 2014). ibid. 83 United States v Spears 31 F Supp 3d 869, 874 (N.D. Tex. 2014) (“The sole purpose of the exclusionary rule is to deter culpable law enforcement conduct.”); People v Rodriguez A134782 & A138665, 2014 WL 5509829, at *8 (Cal. App. 1st. Nov. 3, 2014) (“The purpose of the rule is to deter further Fourth Amendment violations.”); People v Allen No. B245581, 2014 WL 5469894, at *6 (Cal. App. 2nd. Oct. 29, 2014) (“To deter such conduct by law enforcement, the U.S. Supreme Court created the exclusionary rule.”). cf Herring v United States 555 US 135, 152 (2009) (“[T]he rule also serves other important purposes: It enables the judiciary to avoid the taint of partnership in official lawlessness, and it assures the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.”) (Ginsburg, J., dissenting); United States v Stephens 764 F 3d 327 (4th Cir. 2014) (“The Government must err on the side of the Constitution and obtain a warrant especially as the disturbing specter of Government agents hiding electronic devices in all sorts of personal property and then following private citizens who own such property as they go about their business becomes ever more possible.”) (Thacker, J., dissenting). 84 Herring v United States 555 US 135, 147 (2009). 85 United States v Camou 773 F 3d 932, 945 (9th Cir. 2014). 86 Herring v United States 555 US 135, 144–147 (2009) (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”). 87 Note, ‘Toward a General Good Faith Exception’ (2013) 127 Harv L Rev 773 (“If the extreme remedy of suppression were available only when police commit a clear violation of the Constitution—when it is unreasonable to think the search reasonable—officers would become less likely to abandon perfectly lawful searches out of an abundance of caution.”). Laura E Collins, ‘Davis v United States: Expanding the Good Faith Exception to the Exclusionary Rule to Objective Reliance on Binding Appellate Precedent Presents Too Many Threats to Constitutional Protections’ (2012) 81 Miss LJ 163, 192 (“If police officers know wrongfully obtained evidence will be thrown out, they may become too cautious in investigations, leaving valuable evidence unfound.”). 82

29 beliefs. The own act/third party act line generates particularly anomalous results where an officer’s own beliefs turn out to be more objectively reasonable than a third party’s beliefs, as for instance where a more experienced officer seeks advice from a less experienced officer. Even if the officer could rely on his own isolated and attenuated acts, the Camou court observed that the “governing law at the time of the search made clear that a search incident to arrest had to be contemporaneous with the arrest.”88 If the law were clear at the time of the search and Agent Walla acted contrary to it, then the court would be justified in finding that the good faith exception did not apply. In Davis v. United States,89 the Supreme Court considered an officer’s reliance on binding appellate precedent. There, an officer conducted an SIA of a car under the authority of New York v. Belton.90 Belton established a bright line rule that permitted police to search the passenger compartment of a car including containers following a lawful custodial arrest of a car occupant.91 The Belton rule was later overturned by the Supreme Court in Arizona v. Gant. 92 The Davis court held that the good faith exception to the exclusionary rule applied.93 But while Camou cited precedent stating that an SIA had to be contemporaneous with the arrest,94 it is not clear how the reasonable officer could have known that the automobile exception would not apply.95 Moreover, the search occurred in 2009,96 before Riley provided authoritative guidance on how police should handle cell phones in a SIA.97 It may be that the Ninth Circuit was reading Davis as holding that the good faith exception only applied where binding precedent existed. If this were the case, it was immaterial that there was no case law on whether an officer could search a cell phone pursuant to the automobile or SIA exceptions. That there was no precedent to which an officer could point meant that she must err on the side of caution and not conduct the search. If this was how the court interpreted Davis, it should have been more explicit because other courts’ interpretations of Davis have varied significantly.98 88

ibid 944–945. Davis v United States 131 S Ct 2419 (2011). 90 New York v Belton 453 US 454 (1981). 91 ibid 459–460. 92 n 4. 93 Davis v United States 131 S Ct 2419, 2423–2424 (2011). 94 United States v Camou 773 F.3d 932, 944–945 (9th Cir. 2014). 95 Orin S Kerr, ‘Cell Phone Exempt from the Automobile Search Exception, Ninth Circuit Rules’ (The Volokh Conspiracy, 11 Dec. 2014) <http://www.washingtonpost.com/news/volokhconspiracy/wp/2014/12/11/cell-phones-exempt-from-the-automobile-search-exception-ninth-circuitrules/> accessed 13 May 2015. There is, moreover, language in Supreme Court jurisprudence suggesting that officers could search any container in a car. California v Acevedo 500 US 565, 579–580 (1991) (“The scope of a warrantless search of an automobile…is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”). 96 United States v Camou 773 F.3d 932, 935–936 (9th Cir. 2014). 97 See Introduction. 98 cf United States v McCane 573 F 3d 1037, 1045 (10th Cir. 2009) (“Relying upon the settled case law of a United States Court of Appeals certainly qualifies as objectively reasonable law enforcement behavior.”), and United States v Clark 29 F Supp 3d 1131, 1137 (E.D. Tenn. 2014) (despite the “relative ease of asking for either consent or a warrant in the absence of an emergency situation,” the officer’s reliance on Supreme Court authority for searches of other types of containers found on the arrestee’s person, and decisions of circuit courts on cell phone SIA, was “objectively reasonable.”); with United States v Loera No. CR 13-1876 JB, 2014 WL 5859072, at *79 (D.N.M. Oct. 20, 2014) 89

30 While some have read Davis as limited to reliance on binding appellate precedent,99 others have read it as applicable even where precedent was not binding.100 In effect, those latter courts actualized Justice Breyer’s fears in Davis that the good faith exception threatened to “swallow the exclusionary rule.”101 The Ninth Circuit may be trying to protect defendants’ Fourth Amendment rights from further erosion. Yet nowhere in the Camou court’s analysis of the good faith exception did it cite Davis, examine and discuss the extensive post-Davis case law, or otherwise seek to justify its position. To summarize, the Ninth Circuit in Camou contributed a number of novel ideas to Fourth Amendment discourse in a deceptively concise judgment. Its analyses of exigency, the automobile exception, and good faith doctrine included a number of concepts that, before now, were not decided. This is the case despite the court’s outcome appearing to be a necessary corollary of existing precedent. III. RESTORING CLARIFICATION TO CELL PHONE SEARCHES At the time of this Comment, two cases have considered Camou’s scope. In United States v. Salazar,102 the Ninth Circuit cited Camou when it suppressed evidence that it obtained by a warrantless download of electronic data from Salazar’s cell phone incident to his arrest.103 The Second Circuit also referred to Camou in United States v. Raymonda.104 There, agents discovered over one thousand files of child pornography in Raymonda’s home.105 The search was based on a single incident of access to online child pornography more than nine months earlier.106 The court concluded that the warrant was invalid because it lacked probable cause, but the good faith exception to the exclusionary rule applied because the agents reasonably relied on a magistrate (“[T]o exclude evidence simply because law enforcement fell short of relying on binding appellate precedent would violate the Supreme Court's mandate that suppression should occur in only unusual circumstances: when it furthers the purposes of the exclusionary rule.”) and United States v Lopez 895 F Supp 2d 592, 605 (D. Del. 2012) (holding that the good faith exception applied because officers “acted in reasonable reliance on the absence of federal or state case law establishing that GPS monitoring of a vehicle in public is a Fourth Amendment ‘search’.”). Orin S Kerr, ‘Lower Court Interpretations of Davis v United States 131 S Ct 2419 (2011)’ (The Volokh Conspiracy, 14 Aug. 2013) <http://volokh.com/2013/08/14/lower-court-interpretations-of-davis-v-united-states-131-s-ct-24192011/> accessed 13 May 2015. 99 United States v Martin 712 F 3d 1080, 1082 (7th Cir. 2013) (“We reject the government’s invitation to allow police officers to rely on a diffuse notion of the weight of authority around the country, especially where that amorphous opinion turns out to be incorrect in the Supreme Court’s eyes.”) 100 United States v Katzin 769 F 3d 163, 182 (3d Cir. 2014) (finding that the good faith exception applied because “[t]he constellation of circumstances that appeared to authorize [police] conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a nearunanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy.”). 101 Davis v United States 131 S Ct 2419, 2439 (2011) (“But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment's bounds is no more culpable than an officer who follows erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit precedent is simply suggestive rather than ‘binding,’ where it only describes how to treat roughly analogous instances, or where it just does not exist.” (Breyer, J., dissenting). 102 United States v Salazar No. 13–50388, 2015 WL 223578 (9th Cir. Jan. 16, 2015). 103 ibid 1. 104 United States v Raymonda No. 13–4899–cr., 2015 WL 859556 (2d Cir. Mar. 2, 2015). 105 ibid 1. 106 ibid 8.

31 judge’s determination that there was probable cause and any errors in the affidavit supporting the warrant application were neither intentionally false nor grossly negligent. 107 Judge Denny Chin dissented on the applicability of the good faith exception.108 Citing Camou’s own act/third party act distinction, he would have held that the agent was not entitled to rely on the warrant because it was based on a false and misleading affidavit for which he was personally responsible.109 These cases are problematic because Salazar did not appear to recognize that Camou extends Riley, and the Raymonda dissent unquestioningly adopted the own act/third party act distinction. If an exigency search is permitted, the Supreme Court should elaborate guidelines on what these limits are and justify them. 110 However, since drawing lines in the electronic context inevitably leads to over and under-inclusiveness, 111 cell phone searches pose an intrusive threat to our privacy,112 and limits that apply in physical searches do not apply in the electronic context, 113 the court would be better off rejecting exigency searches of cell phones altogether. This is especially so in light of the “ease and speed with which search warrants nowadays can be obtained.”114 The only reasonable search of a cell phone should be one pursuant to a warrant. Since the question of whether cell phones are containers in the automobile exception context was undecided before Camou,115 the Ninth Circuit was entitled to reach its conclusion that they were not. The court’s choice may have been the preferable one.116 Were it otherwise, officers would easily be able to come up with reasons to search cell phones in the car and find vast amounts of evidence of other crimes, seriously intruding our privacy. 117 On the other hand, excluding cell phones from the 107

ibid 12. ibid (Chin, J., dissenting). 109 ibid 15 (Chin, J., dissenting). 110 Samuel Beutler, ‘The New World of Mobile Communication: Redefining the Scope of Warrantless Cell Phone Searches Incident to Arrest’ (2013) 15 Vand J Ent & Tech L 371, 401 (proposing a function-based rule under which “a law enforcement officer would be allowed to search an arrestee’s call log, text messages, and address book, but nothing more). 111 Patrick Brown, ‘Searches of Cell Phones Incident to Arrest: Overview of the Law as it Stands and a New Path Forward’ (2014) 27 Harv J L & Tech 563, 580 (“[I]t seems unclear under Beutler’s proposed rule why…other cell phone contents with clear physical analogues like notes or photographs would not be [searchable]. Moreover, text message contents are a close analogue to the telephone conversations protected under Smith and should merit similar protections.”). Albert Alschuler, ‘Bright Line Fever and the Fourth Amendment’ (1984) 45 U Pitt L Rev 227 (concluding that having too many categorical rules in Fourth Amendment law has led to incomprehensibility). 112 n 5. 113 William J Stuntz, ‘Race, Class, and Drugs’ (1998) 97 Colum L Rev 1795, 1821 (arguing that police investigations are ordinarily constrained by limited resources and time); Adam Gershowitz, ‘The iPhone Meets the Fourth Amendment’ (2008) 56 UCLA L Rev 27 (“[N]ew technology inverts the typical state of affairs because it is the individual, not the police officer, who has the new technology…unlike flyovers or costly thermal imaging devices, the technology is everywhere.”). 114 Fernandez v California 134 S Ct 1126, 1142 (2014) (Ginsburg, J., dissenting). 115 United States v Burgess 576 F 3d 1078, 1090 (10th Cir. 2009) (considering but ultimately not reaching a conclusion on the issue because “[i]nteresting as the issue may be, we need not now resolve it because the search of Burgess’ hard drives was authorized by a warrant.”). 116 Marty Koresawa, ‘Pay Phone Protections in a Smartphone Society: The Need to Restrict Searches of Modern Technology Incident to Arrest’ (2012) 45 Loy LA L Rev 1351, 1387–1388 (concluding that cell phones should not be treated as containers). 117 Elizabeth E Joh, ‘Discretionless Policing: Technology and the Fourth Amendment’ (2007) 95 Calif L Rev 199, 206 (“[D]iscretion in law enforcement is usually exercised covertly and with minimal 108

32 automobile exception search leads to anomalous results where a physical document may be seized but the same document in electronic form is protected.118 On balance, the court’s conclusion was probably the better one, because of the sheer magnitude of information that cell phones can hold.119 The court should, however, be more honest in its reasoning, and dispel any impression that Riley’s holding automatically extends to Camou. To restore nationwide uniformity, the Supreme Court should clarify what Herring and Davis stand for by explicitly endorsing or rejecting Camou’s position. In light that the good faith exception has long been rooted in deterrence of police misconduct,120 it should overrule Camou’s interpretation of Herring as establishing a distinction between own and third party acts. The court should, however, limit Davis to binding precedent. Absent clear law authorizing police to act, officers should err on the side of caution. This would allow police some latitude when they make a mistake, without opening the Pandora’s box that Justice Breyer viewed as the inevitable corollary of Davis.121 IV. CONCLUSION Riley and its progeny represent efforts by courts to retain the traditional Fourth Amendment architecture while adapt to rapid technological advances. After Riley, the Supreme Court left open a number of questions: (1) what limitations, if any, exist to constrain the scope of probable cause in exigency searches of a cell phone?; (2) should we extend Riley’s intuition that “cell phones are different” to other exceptions to the warrant requirement?; and (3) if officers make a mistake regarding searches, what leeway, if any, should we allow them? The Camou decision answers these questions by requiring that exigency searches are not impermissibly overbroad, finding that cell phones are not containers for automobile exception purposes, and suggesting that the good faith exception to the exclusionary rule should only apply where an officer relies on a negligent third party actor. Despite the matter-of-fact way in which the court deals with these issues, it is not obvious from previous case law that these results necessarily follow. These complexities should not be ignored, but combated head on. To answer (1) and (2), this Comment argues that the Supreme Court should, out of recognition that “cell phones are different,” prohibit warrantless searches of cell phones altogether. As for (3), officers should be entitled to rely on their own objectively reasonable mistakes and binding precedent, both nothing beyond. As time progresses, we will constantly be challenged with the question of whether our existing legal frameworks can accommodate rapidly changing technological developments. For now, in the cell phone context, the answer is that they can. But one can imagine a world in which our premises no longer hold—as, for instance, if criminals come up with ways to destroy oversight.”). Illya Lichtenberg, ‘Police Discretion and Traffic Enforcement’ (2003) 50 Clev St L Rev 425 (observing that Whren gives police, in effect, “unbridled discretion to stop any motorist” since “virtually every motorist is violating the law”). 118 Riley v California 134 S Ct 2473, 2497 (2014) (observing that “the Court’s broad holding favors information in digital form over information in hard-copy form…[which] leads to anomalies,” but joins the holding of the Court because he “do[es] not see a workable alternative”) (Alito, J., concurring). 119 n 5. 120 n 83. 121 n 101.

33 evidence on a phone even when placed in a Faraday bag, or turn cell phones into weapons that can be launched from afar. In that world, we would need to critically rethink Riley, and it may be that our Constitution can no longer provide us a satisfactory answer.

Should There Be a Regime of Strict Liability for Harm Caused by Services, in the Manner of Strict Liability for Harm Caused by Products? DAKYUNG KWON Under the Consumer Protection Act 19871, the liability of a producer for harm caused by a defective product is strict2. However, the English law does not impose strict liability for harm caused by services. The question of whether the different legal treatment of products and services is justified can be answered through the two theories of tort law: the model of wrongs and the model of costs. This essay will demonstrate that the model of costs tends to favour the imposition of strict liability irrespective of the subject matter of liability whereas the model of wrongs states a preference for fault-based liability without articulating any criteria for choosing between the two standards of conduct are. Despite the different conclusions that each model recommends, the analysis of service liability through the models shows that there is a stronger case for a fault-based liability for harm caused by services. The essay will conclude that a better answer will have to account for the different nature of a wide range of services offered in the contemporary market and provide a justification for the differentiated legal treatment of some services. I. MODEL OF WRONGS The model of rights/wrongs is based on the principle of corrective justice that an individual has a duty to repair the wrongful losses caused by her conduct3. It speaks of first and second order duties. The first order duty refers to a duty not to injure others, the breach of which constitutes a violation of the victim’s correlative right not to be injured. From this breach of first order duties arises a second order duty: a duty of repair. Corrective justice dictates that the remedy should not be directed at only one of the parties in a transaction but must consist in ‘simultaneously taking away the defendant’s excess and making good the claimant’s deficiency’ 4 . Depriving the wrongdoer of his wrongful gains will not suffice as the victim is left to suffer a wrongful loss; similarly, making good the losses of the victim is not enough, for the wrongdoer may still enjoy his wrongful gain5. Thus, tort law under this view is more than a mere mechanism for shifting costs of accidents but ‘justice ensouled’6 as it provides a correlatively structured remedy to rectify the injustice in transactions7. It is this notion of correlativity that underpins the normative relationship between the wrongdoer and the victim, and makes the liability of the defendant always a liability to the claimant. The model therefore requires that the wrongdoer must pay on the 1

Hereafter CPA 1987 ‘Strict’, in the context of the CPA 1987, shall mean the imposition of liability on the defendant without a finding of fault. As such, the claimant need not prove tortious intent on the part of the defendant. 3 Jules Coleman, ‘Theories of Tort Law’ (Stanford Encyclopaedia of Law, 22 September 2003) <http://plato.stanford.edu/entries/tort-theories/> accessed 17 April 2015 4 Ernest Weinrib, ‘Corrective Justice in a Nutshell’ (2002) 52 University of Toronto Law Journal 349356, 351 5 ibid. 6 Aristotle, Nicomachean Ethics, V, 2-5, 1130a14-1133b28, 1132a22 7 n 4. 2

35 basis of the special normative bond between him and the victim, which was formed when he breached his first order duty correlative to the victim’s right. Accordingly, the theory of liability advocated by this model asks two questions: a) ‘Has the defendant violated a standard of conduct?’; and b) ‘What is the content of the duty of repair?’. In order to hold the defendant liable under this model, one must show not a fault but a breach of the standard of conduct by the defendant, which constitutes a wrong. Whether the liability should be strict or fault-based will therefore depend on the formulation of the standard of conduct. If the standard of conduct is ‘defendant ought to take care not to injure claimant when providing the service in question’8 (‘Standard 1’), the liability in question is fault-based. On the other hand, if it is ‘defendant ought not to injure claimant when providing the service in question’, the model imposes a strict liability (‘Standard 2’). Unfortunately, the model itself does not articulate any independent criteria according to which we may choose one standard of conduct over the other. This means, in order to decide between the two different forms of liability, one must use this model as a critical tool to weigh up relevant factors and engage in practical reasoning. Weinrib, a leading advocate of the corrective justice theory, famously argued that the imposition of strict liability under this model could never be justified as it grounded liability on mere causation of harm: in cases where the defendant has taken care not to cause harm, a strict liability regime will inevitably involve an unjustified augmentation of the claimant’s autonomy at the expense of limiting that of the defendant9. However, we can dismiss his argument by proving that it is possible to formulate a strict standard of conduct which does not base the defendant’s liability solely on the causation of harm but on the defendant’s failure of another fault-based standard. An example of this can be found in the current product liability regime: ‘defendant ought not to supply products that fail to meet consumers’ legitimate expectations of safety’10. Substituting ‘products’ with ‘services’ generates another standard of conduct (‘Standard 3’) worthy of our attention. By comparing these three standards, we may resist Weinrib’s unconditional preference for the fault-based liability and decide which formulation of the standard of conduct is most preferred in the context of defective services. It appears that the strict standard of conduct does not cohere with what people expect from others in the reality. For instance, Standard 2 fails to provide an explanation for the fault-based standard we adopt when the activity in question is undertaken by a non-professional. It also fails to reveal a special characteristic of professional services which merits strict liability. Of course, one may call for a higher standard of care on professionals and demand that they ought to take more care given their relative expertise and skills, but whether this ought to entail strict liability for mere causation of harm is a different matter that requires more robust justification – and indeed is a 8

This is similar to that employed in liability for harm caused by defective products in negligence. See Donoghue v Stevenson [1932] AC 562 (Lord Atkin): ‘… a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.’ 9 See E.Weinrib, The Idea of Private Law (first published 1995, revised edn, OUP, 2012) 10 See section 3 of the CPA 1987.

36 tough position to defend. It is also difficult to justify the strict standard of conduct in the context of services on a theoretical level. If we accept that claimants and defendants must be treated as equals11, we must give value to not only the interests of the claimant but also those of the defendant when formulating the relevant standard of conduct. Standard 2, however, does not treat the parties equally but asks the defendant to bear most of the practical burden. A fairer solution in light of this view would be asking the defendant to take due care when providing the service in question and claimant to pay the bill when the defendant causes him harm despite being careful, for this allows them to pursue their economic activities without the fear of legal liability by making concessions. Hence, we may effectively rule out Standard 2 and choose between the first and third formulations of standard of conduct. In deciding between Standard 1 and Standard 3, one may extend the wrong-based rationale underpinning the CPA to the law governing harm caused by services and see whether it provides a sound basis for the service liability. As articulated by Traynor J in Escola 12 , a producer whose product caused harm to a consumer may be ‘responsible for its [the product] reaching the market’. Thus, the wrong under the product liability regime arguably consists in placing a potentially dangerous product in the market, thereby exposing consumers to that risk. If we applied this argument to services, the fact that the recipient has requested the service and that the provider has accepted this request13 would form a normative basis of the relationship between the two parties, which justifies the imposition of fault-based liability on the service provider. Such extension of the CPA logic to services, which effectively treats them like products, is however problematic since only some of the services such as banking and telecommunications are largely automated and mass-produced like products. Moreover, these services, even when they fail to satisfy the needs of consumers, do not endanger the recipients’ safety in the same way other services may do14. Drawing parallel to the product liability regime thus makes us realise that ‘the broad variety of cases makes it difficult to define a common denominator beyond the standard formula of the average standard of care’15, and that there is a strong case against adopting a single standard of conduct applicable to all service providers. Indeed, there appears to be no strong reason why we cannot have a flexible system with varying degrees of standards of care which correspond to different types of service. Therefore, a system where the service providers are required to exercise a high standard of care but are subject to different levels of standards depending on the respective services and their inherent risks would be preferable to the Standard 1-Standard 3 binary. Such a system could also assign different duties to passive recipients (visitors, patients) and active recipients (competitors, teammates in leisure activities) 16 . This may better accommodate the equality argument as well, for what we ask from claimants and defendants in any case would not be excessive but reasonable and fair.

n 4. Weinrib’s equality argument. Escola v Coca-Cola Bottling (1944) 150 P2d 436, 440 (US) (Traynor J) 13 Ulrich Magnus and Hans-W. Micklitz, Comparative Analysis of National Liability Systems For Remedying Damage Caused by Defective Consumer Services: A Study Commissioned by the European Commission (European Commission Final Report, Part D: The Comparative Part, 2004) 61 14 Examples would be unsafe plumbing repair services or medical services. 15 n 13, 63 16 ibid, 18. Active recipients refer to those who take part in activities which ‘presuppose a certain preparedness of the customer to engage in the risk’ whereas passive recipients participate in activities for more passive entertainment as opposed to active involvement. 12

37 II. MODEL OF COSTS The model of costs, also known as the economic model of tort law, seeks to minimise the costs of accidents and costs of avoiding them17 by compelling both claimants and defendants to take all (and only) cost-justified precautions. This means both injurers and victims must engage in a cost-benefit analysis and weigh up their respective burdens of taking precautions and the probability of loss they will suffer in the event of an accident18. In an ideal world where the costs of making a transaction19 are negligible, the overall costs and benefits will remain the same irrespective of the legal rights of each party to a transaction, allowing for the most efficient distribution of resources. Nevertheless, the existence of transaction costs in reality prevents the parties from reaching the best economic solution. In light of this problem, the role of law is to approximate the deal which the parties would have otherwise reached in the absence of transaction costs, and the legal rules are justified only to the extent that they are able to allocate rights to the most efficient right-bearer 20 . The model therefore tells us that tort law exists to facilitate the allocation of accidental losses on which the parties would agree, absent transaction costs. In each case, the liability should then rest on the shoulders of the person who is best placed to conduct this costbenefit analysis21 and work out the costs involved with relative ease. The model asks three questions when faced with social choices: a) ‘What are the competing activities?’, b) ‘Should the activity in question be governed by tort law rules or regulations?’; and c) ‘Who is the cheapest cost avoider?’. It is the third question that tells us whether a particular regime of liability should be strict or faultbased. Nevertheless, it is worth addressing the first and second questions as answers to them may help us identify the social costs and benefits at stake. We start by constructing a Coasian scenario22: we have a conflict between the business activities of the services sector on the one hand and the activities of service recipients who have legitimate expectations of safety23 on the other. Although these activities are not always competing24, resolving this instance of competition will involve making a 17

n 3. This idea is commonly known as the ‘Learned Hand formula’, named after the judge who held in US v Carroll Towing Co (1947) 159 F.2d 169, 173-4 that the standard of care in question should be determined by the comparison between the cost of the burden to the defendant and the probability of loss. 19 These are collectively termed ‘transaction costs’. Examples include costs of bargaining and information gathering. 20 See Ronald Coase, ‘The Problem of Social Cost’ The Journal of Law & Economics (1960) Vol. III 21 See Guido Calabresi, ‘Does the Fault System Optimally Control Primary Accident Costs?’ (1968) 33 Law & Contemporary Problems 429-463 22 n 20. 23 Consumers will also have an obvious interest in receiving valuable services. However, for the purposes of this essay, it seems uncontroversial to assume that protecting such an interest is better dealt with by the existing rules of contract law. Some may argue that these interests are difficult to separate in reality and the tort law must accordingly deal with both interests. However, liability systems for personal injuries resulting from unsafe services in many European countries consist of a combination of contract and tort law rules. This means whether the duty of the service provider to protect the health and safety of the recipients is grounded in contract law or tort law is often irrelevant in practice as what sets the standard of care is the recipient’s justified expectations of safety, irrespective of contract or tort. Hence, the alleged inability of tort law to address both interests effectively is unlikely to be a cause for concern. For more discussion on the topic, see Magnus and Micklitz, supra n.13 24 Coase uses Sturges v Bridgman (1879) LR 11 Ch D 852 as an example to demonstrate the problem of transaction costs (supra n.20). The competing activities in this tort case are dentistry and 18

38 social choice on behalf of the parties who would have struck an ideal agreement themselves in the absence of transaction costs25. The model of costs then asks whether the activity in question should be governed by tort law rules or regulations. It is important to note that these are not mutually exclusive solutions to the problem of risk control but can be used simultaneously to reduce the costs of accidents. Nevertheless, when designing an effective governing system for service liability, we must determine which one of the two serves as a better means of minimising social costs and reflect our finding in the balance between tort law rules and regulations. Shavell’s four ‘general determinants of the relative desirability of liability and regulation’26 can aid us here by shedding the light on the relevant social and economic considerations. Firstly, are there actors who possess superior knowledge to that of the government in relation to the risks of the provision of services?27 If the answer is in the affirmative, the resulting system will be in favour of liability rules. As discussed under the model of wrongs, the sheer variety of services on offer makes it difficult to identify a single actor whose knowledge and expertise surpass those of everyone else in the industry. For example, the regulatory agencies may be best placed to deal with medical services and other public utilities but it is doubtful if the same thing could be said in relation to gardening services. In fact, it is likely that private service providers will often possess the better information than the government in relation to the majority of services because gathering data will often be a part of their business necessary to manage risks more effectively. With respect to such services of private nature, one may have a stronger case for controlling these services primarily by liability rules. Secondly, are private parties capable of paying for the full magnitude of harm done?28 Here, we assess the ability of the defendant to pay and, if the financial burden on the defendant is beyond his/her capacity, imposing regulations will be preferable since inability to pay will then be irrelevant. Again, the different sizes and types of service providers in the market mean that the answer to this question is likely to differ depending on the subject matter. One may advocate a regulatory measure which makes the purchase of public liability insurance compulsory but statistical evidence of the proportions of services provided by small businesses and big companies will be necessary in order to answer this question. Thirdly, are parties likely to face the threat of suit for harm done?29 If the answer is ‘no’, regulations are to be preferred as liability system for the activity in question may dilute the incentives to reduce risk on the part of potential defendants. However, answering this question is not so straightforward since the victims’ incentives to initiate legal action may vary depending on the nature of the service they received and the magnitude of harm suffered. For instance, a customer for massage therapy is unlikely to sue the therapist for mild discomfort that lasted few days after receiving the service, but the same customer may sue if the therapist fractured a bone. However, in the context of confectionery. These are not ‘mutually exclusive’ in the sense that promoting one activity necessarily results in discouraging the other. 25 ibid 26 Steven Shavell, ‘Liability for Harm versus Regulation of Safety’ (1984) 13 Journal of Legal Studies 357-374, 358 27 ibid, 359 28 ibid, 360 29 ibid, 363

39 defective services, the Shavell’s list of the reasons for failure to bring suit, such as the wide dispersal of harms generated by a defendant or a time lapse before harm manifests itself, does not seem to be particularly relevant in many cases. In the example of massage therapy, physical harms will not be dispersed but focus on one consumer, is very likely to be a direct consequence of receiving the service and there will be no problem of attributing harms to the therapist. Thus, for the harm caused by services, there may be a stronger case for a tort-heavy system. Lastly, what are the administrative costs incurred by the private parties and the public in using the tort system or direct regulation?30. With respect to these tertiary costs31, a liability system has an advantage over the regulatory regime, for most of them are incurred only after harm occurs. Especially where special knowledge about the related risks is lacking, there is no guarantee that administrative costs will be focused on the categories most likely to cause harm under regulation, since these costs are incurred before the harm materialises32. Taking into account the wide variety of services and their providers in the sector, we may conclude that the avoidance of risks to the consumers’ physical safety which are inherent to the provision of services is best ensured by the joint use of tort liability and regulation. Nevertheless, the balance between them is likely to lean towards tort rules in an effort to reflect the importance of the determinants discussed above. The final stage under this model of tort– and the most important question for the purposes of this essay as the answer will reveal whether we should impose strict or fault-based liability – is identifying the cheapest cost-avoider. According to Calabresi, the cheapest cost avoider is a party to the accident who is ‘in the best position to make the cost-benefit analysis between accident costs and accident avoidance costs and to act on that decision once it is made’33. This means that regardless of with whom the fault lies, the person who is best placed to calculate all the costs associated with the accident and pay the post-accident costs should pay. Therefore, the decision as to which of the parties is the cheapest cost avoider (as opposed to the wrongdoer) necessarily leads to the imposition of strict liability under the model of costs. The first contender is a service provider. In light of the better skill and expertise they possess, these providers are likely to be the cheapest cost-avoiders in many instances. For one, the CPA regime which holds the producers strictly liable34 seems to acknowledge such an asymmetry of the financial resources and knowledge of the production process between the producers and consumers. As the consumers do not possess enough resources to hire an expert or start a litigation to prove the fault of the producer, the imposition of strict liability on the defendants may better protect the consumers. If we accept this to be also applicable to services, service providers would have to be held strictly liable as the cheapest cost-providers. However, this conclusion ignores the cases where service recipients are in a better position to self-protect. Whereas the mass-production process is opaque and consumers of products will rarely 30

ibid, 363 n 21. Such costs of the tort system would include the time and legal expenses borne by the relevant parties. Regulation, on the other hand, would involve the ‘public expense of maintaining the regulatory establishment and the private costs of compliance’ (see Shavell, supra n.25). 32 n 26, 364 33 Guido Calabresi and Jon.T Hirschoff, ‘Toward a Test for Strict Liability in Torts’ (1972) 81 Yale Law Journal 1055, 1072 34 CPA 1987, section 2 31

40 consider the possibility of getting injured by them as the chances are slim, the more personal nature of some services which directly concern the recipients’ interests in health and safety is likely to reduce the information asymmetry between them and the providers. Owing to contractual devices or common sense, the consumers are likely to be aware of the risks associated with the services in question, and this justifies asking them to take self-protective measures. We may again borrow the example of the massage therapy: the customer who is allergic to flowers can easily self-protect by disclosing the information to the therapist, thereby warning against the use of creams or oils made with flowers. Precisely for this reason, the current product liability regime under the CPA absolves a defendant of liability on the basis of the public knowledge of risks35. Given that we cannot conclusively say that service providers will always be the cheapest cost-avoider, it will be difficult to justify the imposition of strict liability when claimants can easily self-protect. III. CONCLUSION The two models of tort law, each with a different aim, provide us with general and incomplete accounts of liability. Under the model of costs, the test of strict liability is almost always preferred as it seeks to minimise the overall sum of the relevant costs by making the cheapest cost avoider pay. On the other hand, the model of wrongs fails to articulate criteria for choosing one standard of conduct over the other but undeniably prefers fault-based to strict liability. However, the assessment of various interests and considerations that deserve the attention of a service liability system through the two models of tort demonstrates that there may be a stronger case for imposing fault-based liability for harm caused by services. The model of wrongs highlights the normative relationship between the service provider and the recipient, which may justify a high – but not a strict – standard of conduct that corresponds to the respective service and its inherent risks. The analysis through the model of costs similarly reveals that holding the service providers strictly liable will be difficult to justify in cases where consumers are in fact the cheapest cost-avoider. A close look at the different nature of products and services in turn shows that adopting a flat standard of care for all services is hardly an adequate solution to the problem of controlling risks. The sheer variety of types of services makes it difficult to formulate a common standard of conduct applicable to all. Nevertheless, the introduction of varying degrees of standards of care corresponding to different types of service and classes of recipients may be able to address this difficulty.

See Richardson v LRC Products [2000] Lloyd’s Rep Med 280 where the court held, if the public accepts the risk that a small proportion of the products will have been damaged, and is aware of the need to take additional precautions to prevent the unwanted outcome, the defendant may not be liable even where it can be shown that the product in question was damaged during the manufacturing process. See also Worsley v Tambrands [1999] EWHC 273 (QB).

_______________

For the Purposes of the Law of Homicide, How Useful Is It to Distinguish Between Intention and Recklessness? GERALD LAI The notion of fault in the law of homicide intrinsically denotes that some forms of conduct are more blameworthy than others, and should be met with harsher sanctions, labels and warnings. It is conceded that there are instances in which ‘wicked recklessness’ should be as morally culpable as intent for the purposes of murder, because there is little moral difference between a man who runs a one-in-three risk of killing someone1with the desire of doing so and obliquely intending to do so, although it is not virtually certain that a one-in-three risk would cause death. In affirming R v Nedrick,2 Lord Steyn gave illustration to the above conundrum in the current test of foresight of virtual certainty as espoused in R v Woollin.3 While there are contrasting principles for and against a distinction between intentional and reckless conduct, this essay argues that at a bare minimum, the lower form of recklessness conduct currently encompassed under gross negligence and constructive manslaughter4 should remain broadly distinct from oblique intention to maintain the fragile equilibrium upon which the law rests. I. JUSTIFYING THE OVERLAP BETWEEN INTENTION AND RECKLESSNESS The jury is not entitled to find the necessary intention for murder in cases of oblique intention unless they ‘feel sure that the risk of death or serious bodily harm was virtually certain, and the defendant appreciated it.’ 5 Framing it in terms of the defendant’s subjective foresight of risk necessitates an imputation of an overlap between recklessness and intention.6 The overlap, and its accompanying level of indeterminacy is justified by giving juries moral elbowroom7 to make ‘broader moral or social judgments when deciding whether the fault element for murder is present in a case where death was known to be virtually certain.’8 The fluidity of the existing law allows jurors to draw upon some ‘ineffable, indefinable notion of intent’9 to fill in the gaps of uncertainty and make judgments as to whether a defendant had obliquely intended to cause death or grievous bodily harm or was merely reckless as to the risk of harm, upon consideration of evidence. It increases flexibility in the law of homicide in the entitlement of the jury to find intention from conduct that appears to be obliquely intentional. One often cited paradigm is the man who sets off a bomb on a flight in order to claim insurance from goods carried by the plane. He does not want the pilot and the passengers to die, but foresees their death as virtually certain should his plan succeed. In this instance, the moral elbowroom connotes that the jury may be 1

G Williams, ‘Intention and Recklessness Again’ (1982) Legal Studies 2(2), 192. R v Nedrick [1986] 1 WLR 1025. 3 R v Woollin [1999] 1 AC 82. 4 R v Seymour [1983] 2 AC 493. 5 ibid, 3. 6 Simon Parsons, ‘Intention In Criminal Law: Why Is It So Difficult to Find?’ (2000) 4(12) Mountbatten Journal of Legal Studies, 10. 7 Alan Norrie, Crime, History and Reason: A Critical Introduction to Criminal Law (3rd edn, CUP 2014), 72 8 J Horder and A Ashworth, Principles of Criminal Law, (7th edn, OUP 2013), 245. 9 D Omerod and K Laird, Smith and Hogan’s Text, Cases and Materials on Criminal Law, (11th edn, OUP 2014), 111 2

44 entitled to find that he intended to cause their death, and equate his moral culpability with that of a murderer. Post Matthews and Alleyne10 and Stringer,11 however, there is very little to distinguish its application as a rule of evidence entitling the jury to find intention, or a definitional interpretation of substantive law, compounding both the benefits and detriments which come with its application. II. THE PRACTICAL DIFFICULTIES WITH WOOLLIN It is acknowledged, on its merits, that the Woollin direction seeks to prevent the application of moral luck with the words ‘barring some unforeseen intervention’ in the jury direction. However, the continual emphasis on the foresight of a risk of harm, bearing in mind that a high probability does not equate to virtual certainty, necessarily exposes it to the operation of moral luck in borderline cases. In Woollin, suppose the infant son landed on a mattress unnoticed by the defendant and subsequently died from inadequate cushioning. Premised upon the assumption that there is no evidence of intention, the defendant may plausibly argue, at the risk of perjury, that he subjectively foresaw the risk of death or grievous bodily harm as less than virtually certain. The defendant might be incentivised (by the virtue of framing it in terms of subjective foresight of risk) to aver that he subjectively foresaw a lower risk of harm given the gravity of a murder conviction and its mandatory life sentence. Maintaining a substantively broad distinction between recklessness and obliquely intentional conduct allows for a larger margin of error to mitigate abuses of justice. III. THE EFFECT OF THE OVERLAP ON GUIDANCE AND CONSTRUCTIVE LIABILITY One of the general functions of the criminal law is to ‘designate by rules certain types of behaviour as standards for the guidance of members of society’12 ex ante. A purposeful distinction between murder and manslaughter is required to signal how a citizen should behave in order to avoid criminal sanctions.13 Gardner further argues that ‘according to the ideal known as the rule of law, those of us about to commit a criminal wrong should be put on stark notice that that is what we are about to do.’14 The criminal law should not ambush citizens unexpectedly and for that reason it should be clear, open, consistent, stable and prospective. The failure to distinguish between intentional and reckless conduct, and hence murder and manslaughter, hinders the requirements of intelligibility, certainty and predictability15 and may be said to be a form of retrospective criminalisation in that offenders are only assessed for culpability at trial. Despite the qualifications imposed16 on the inalienability of Article 7(1) of the European Convention of Human Rights, which enshrines the principles that there should be no punishment without clarity in the law, the European Court of Human Rights in SW and CR v UK17 that the main objection was that criminalisation could ‘reasonably be foreseen’. From a 10

R v Matthews and Alleyn [2003] EWCA Crim 192; [2003] 2 Cr App R 30 R v Matthew Stringer [2008] EWCA Crim 1222 12 HLA Hart, The Concept of Law (first published 1961, OUP 1997), 38 – 39. 13 W Wilson, ‘Murder and the Structure of Homicide’ in Andrew Ashworth and Barry Mitchell (eds), Rethinking English Homicide Law (OUP 2000), 38. 14 J Gardner, ‘Wrongs and Faults’ in AP Simester (eds), Appraising Strict Liability (OUP 2005), 71. 15 R v R and Goldstein [2005] UKHL 63 [2005] 3 WLR 982 (Lord Bingham) 16 n 8. 17 ibid, 7 11

45 layperson’s perspective, it can be reasonably foreseen that dangerous conduct may quickly transcend to manslaughter, but the imposition of the overlap between intention and recklessness and its consequent uncertainty gives no clear guidance on when individuals will be deemed as murderers. Furthermore, some jurists defend the uncertainty, arguing that those who ‘skate on thin ice can hardly expect to find a sign that will denote the precise spot where he will fall in.’18 The metaphor justifies the punishment of conduct by theorists that intention and recklessness are no different in that they both demonstrate the vice of ‘insufficient concern for others’,19 and that moral culpability for taking an unjustified risk of harm towards others should remain undifferentiated. This attitude-centered approach requires a normative moral and social judgment of the defendant’s initial conduct, as opposed to logical reasoning and can be difficult to justify. IV. THE MORAL EQUIVALENCE OF ‘DESIRED’ RECKLESSNESS AND INTENTION The difficult in rationalising such an approach in attaching culpability is that it often results in circularity, as seen in the criticisms of ‘wicked recklessness’ in Scottish law.20 However, a coherent objection can be raised. A lack of distinction between intentional and reckless conduct purports to be value-neutral between them and disproportionately harsh towards a lower form of recklessness attributed to a knowledge deficit, as opposed to recklessness manifesting from a value deficit. The latter is as morally culpable as intention.21 A person who drives recklessly hoping to arrive punctually at his destination cannot be ascribed a similar moral culpability with a person who drives recklessly with the oblique intention of exposing other road users to some risk of harm. The former is negligent to a sufficiently high degree, where the law deems it fit to impute his behaviour as criminally reckless, while the latter is ‘wickedly reckless’ in the Scottish sense. Likewise, Hyam22 is distinct from Miller,23 Moloney,24 and Hancock and Shankland25 in that the defendant in Hyam had carried out her calculated act of arson appreciating that her actions were highly probable, as the test for finding intention was then framed, to expose her victims to a risk of death or grievous bodily harm. The contrast in attitudes can be seen as Ms. Hyam acted knowing the risk of death, which demands higher moral culpability, possibility with that of intention. In Miller, the defendant’s omission to act in breach of a legal duty after creating a dangerous fire with his lighted cigarettes was reckless, and constituted the mens rea for his arson conviction. It leaves much to be desired that the current test for oblique intention, as espoused in the Woollin direction, does not make a distinction between reckless indifference in Hyam and reckless stupidity in Miller, by framing it in terms of subjective foresight of risk. The value neutrality is a rough form of justice, because it shies away from a 18

Knuller v DPP [1975] AC 435 (Lord Morris). Jonathan Herring, Criminal Law: Texts, Cases and Materials (5th edn. OUP 2012), 184. 20 ibid, 247. 21 RA Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Blackwell 1990), 176. 22 R v Hyam [1975] AC 55 (HL). 23 R v Miller [1982] UKHL 6, [1983] 2 AC 884. 24 R v Moloney [1985] AC 905 (HL). 25 R v Hancock and Shankland [1985] 3 WLR 1014. 19

46 normative moral distinction between the two forms of recklessness that can be justified. In framing the test for oblique intention in terms of foresight of a virtually certain risk of harm, the Woollin test only applies in a narrow range of circumstances. If Hyam was adjudicated using the Woollin test, it remains questionable whether the House of Lords would uphold her conviction for murder. It is acknowledged that moral and legal standards are not immutable, and developments in the law of homicide cannot be extrapolated to past convictions. The concept of general malice is no longer approved after Attorney General’s Reference (No. 3 of 1994).26 However, for the purpose of argument, one might venture to state that Hyam had a similar moral culpability to that of intention, because she had value-deficit recklessness. She desired to expose her victims to a risk of harm even though she did not intend to kill, although the risk was not a virtually certain risk of death or grievous bodily harm. Lord Steyn’s terrorist example in Woollin necessarily implies that such individuals are as morally culpable, assuming that sentencing and moral culpability must necessarily coincide: It is true that it may exclude a conviction of murder in the often-cited terrorist example where a member of the bomb disposal team is killed. In such a case it may realistically be said that the terrorist did not foresee the killing of a member of the bomb disposal team as a virtual certainty. That may be a consequence of not framing the principle in terms of risk taking. Such cases ought to cause no substantial difficulty since immediately below murder there is available a verdict of manslaughter, which may attract in the discretion of the court a life sentence.27

It is on this basis that these two forms of recklessness are recognised in law as distinct. V. THE LAW COMMISSION ON MURDER, MANSLAUGHTER AND INFANTICIDE 2006 Thus far, this submission has explored three principal areas. Firstly, the consequence of framing the Woollin direction in terms of subjective foresight of a risk of grievous bodily harm or death continues to expose it to moral luck and accompanying evidentiary difficulties in a practical context. It is acknowledged, however, that in the absence of stratification between intention and reckless conduct, which may necessitate the abolishment of oblique intention as a fault element, the price of moral luck is small compared to the omission of oblique intention from the criminal law. Secondly, the uncertainty in the meaning of intention and its effect on guidance and constructive liability is ameliorated by the fact that there is little to distinguish the Woollin test as a definitional interpretation of substantive law on the meaning of intention from a rule of evidence. Furthermore, as the Law Commission proposes, the meaning of intention should be codified: One or more of the fault elements for first-degree murder, second-degree murder and manslaughter use the term ‘intention’. The courts have often struggled with the meaning of this key term. However, the law has now reached a reasonably stable state. The question is whether a definition is needed that significantly alters the common law understanding of intention. We have concluded that there is no such need but that the existing law governing the meaning of intention should be codified.28 26

Attorney-General’s Reference (No. 3 of 1994) [1997] 3 All ER 936. R v Woollin [1999] 1 AC 82 (Lord Steyn). 28 Law Commission, Murder Manslaughter and Infanticide (Law Com No 304, 2006) at 3.9. 27

The jury is still not entitled to find the necessary intention, unless they feel sure that the risk of death or serious bodily harm was virtually certain, and the defendant had appreciated it. However, moving away from mere semantics towards evaluations of substance, the codification and hence recognition of the direction as a matter of substantive law, ex ante guidance, intelligibility and certainty would be improved. Thirdly, this submission ventures to suggest that the Scottish legal fault term of ‘wicked recklessness’ is morally equivalent to intention. The Law Commission Report recognises the distinction between reckless indifference and reckless stupidity. It accepts the argument that ‘some kinds of killing that were not intended are so especially heinous that they should be regarded as, morally speaking, virtually indistinguishable from intentional killings.’ 29 It quotes Sir James Stephen’s justification: Is there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and the man who stabs another in the chest with no definite intention at all as to his victim’s life or death, but with a feeling of indifference whether he lives or dies? It seems to me that there is nothing to choose between the two men, and that cases may be put in which reckless indifference to the fate of a person intentionally subjected to deadly injury is, if possible, morally worse than an actual intent to kill.

The Report further states, of the current Woollin direction, that ‘it does not cover the case of someone who intends to expose another person to a risk of death without as such intending them to suffer serious harm, as in the example where the killer plants a bomb and gives a warning that unexpectedly turns out to be insufficient.’30 However, it acknowledges the difficulties in explaining a different fault term of ‘reckless indifference’ to the jury. It recommends instead, the replacement of reckless indifference with whether ‘D intended to cause injury or fear or risk of injury and was aware that his or her conduct involved a serious risk of causing death’ 31 under second degree murder, while leaving it to Parliament to consider the nature of sentencing. At the bare minimum, it encompasses both the moral equivalence of reckless indifference with intention, and fair labeling principles. VI. CONCLUSION This essay has evaluated the law of homicide in various stages. Within the current law of homicide, it argues that while there is a need for uncertainty within the law in order for the moral elbow-room to operate, there are inherent difficulties, such as moral luck, which are not accounted for by blurring the lines between intention and recklessness and framing the test in terms of subjective foresight of risk. This is further amplified by the confusion over the Woollin test being a matter of substantive law. It further evaluates the law of homicide from a guidance perspective, and concludes that the law is insufficiently intelligible to the reasonable layperson in serving its cautionary role. It admits the difficulties in quantifying the level of moral culpability attached to different degrees of recklessness, but posits that the current value-neutral approach must be further stratified from a normative perspective. It also argues for the equivalance of ‘reckless indifference’ with intention. The arguments 29

ibid, 2.60. ibid, 2.14 31 ibid, 2.107 30

48 posited, save for the difficulties of moral luck, are congruent with the issues explored in the Law Commission Report.

How to Address Some of the Most Important Legal Issues Raised by the 2014 Ebola Epidemic CAROLIN OTT The Centre for Disease Control and Prevention estimates 18,464 cases of Ebola to date (December 2014). 6841 of these cases resulted in deaths, mainly in Sierra Leone, Liberia and Guinea.1 The true number of cases and deaths is in fact predicted to be much higher, given that many cases go unreported.2 This paper will argue that when looking at the myriad of legal and ethical issues raised by the devastating 2014 Ebola epidemic, the legal issues raised by clinical trials to test a potential treatment and the problem of resource allocation are particularly striking in their importance and complexity and thus essential to address. Given the complexity of these issues, this paper will not attempt to propose one all-encompassing solution as to how they should be addressed. Rather, it argues that transparency, deliberation and cooperation, factors which have sadly thus far been largely neglected, can help move towards greater legitimacy in making decisions on these difficult legal and by extension ethical questions. I. CLINICAL TRIALS TO TEST A POTENTIAL TREATMENT On the 24 October the World Health Organization announced plans to produce millions of doses of two experimental Ebola vaccines by the end of 2015.3 Given the risks raised by the testing of novel forms of treatment, medical research is regulated by a range of rules, which includes a sequence of stages of research through which every potential treatment goes before it can be approved. After satisfactory evidence from animal trials has been gathered, there are usually three phases of trials on humans. Phase I trials involve a small number of healthy volunteers, who are given the drug so that researchers can study its toxicity and the way in which it is absorbed.4 The drug is then given to a limited group of people suffering from the condition it is intended to treat to evaluate its effectiveness and to monitor any possible side effects.5 Phase III involves monitoring a larger group of subjects for a longer period of time.6 The first phase II and III trials are set to start in Liberia in December and in Sierra

2014 Ebola Outbreak in West Africa - Case Counts, (Centers for Disease Control and Prevention, December, 2014) <http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/case-counts.html> accessed 15 December 2014. 2 Mark Townsend, ‘Ebola: Liberia Deaths “far Higher than Reported” as Officials Downplay Epidemic’, The Guardian <http://www.theguardian.com/world/2014/oct/19/ebola-liberia-death-tolldata-sorious-samura> accessed 19 December 2014. 3 Declan Butler, 'WHO plans for millions of doses of Ebola vaccine by 2015' (newsblog, 24 October 2014) <http://blogs.nature.com/news/2014/10/who-plans-for-millions-of-doses-of-ebola-vaccine-by2015.html> accessed 18 December 2014. 4 Emily Jackson, Medical Law: Text, Cases, and Materials (3rd edn OUP 2013), 454. 5 ibid. 6 ibid.

Leone in January.7 The Liberia trial will test the safety and efficacy of the two vaccines against each other and a placebo.8 Each vaccine is to be tested on 10,000 subjects, with an equal number of subjects given a placebo.9 In randomized controlled trials (RCTs), such as this one, researchers use the controlled group, which is given the placebo, to ensure that their results are not distorted by positive results caused by factors other than treatment itself.10 A ‘stepped-wedge’ randomized trial in Sierra Leone is intended to give subjects vaccine sequentially, with no group given a placebo.11 This is useful for testing products that are expected to benefit patients and are scarce. As suggested by Rid and Emanuel ‘the rapidly evolving situation raises three fundamental questions’12: What are the legal and ethical considerations if experimental treatments or vaccines are deployed; if any interventions prove safe and effective, how can they be made more widely available; and how much emphasis should the international community place on experimental interventions in the first place? II. THE TENSION BETWEEN IMPROVING HUMAN WELFARE AND ADVANCING MEDICAL KNOWLEDGE Mass vaccinations are usually only carried out after years of trials to accumulate fully safe and effective data. ‘The proposed timeline for Ebola vaccine development is therefore unprecedented,’13 which raises important concerns. Regulation of medical research involves two basic moral commitments. One is the commitment to improving human welfare generally by advancing medical knowledge, whilst the other is to protect the health and dignity of the research subject.14 Finding a balance between these interests is an extremely complex task, not only because one has to attempt to balance fairly, but also because these interests may overlap. For example, whilst an Ebola patient may be facing significant risks when acting as a research subject, it may still be in their interest to take part because any possible treatment could benefit them or members of their family as well as the community more generally. Nevertheless, there are significant risks inherent in clinical trials, which indicate a need for caution. Importantly, while most (but not all) of those who received experimental Ebola treatments thus far survived, it remains unclear if the drug played

Declan Butler, 'WHO plans for millions of doses of Ebola vaccine by 2015' (newsblog, 24 October 2014) <http://blogs.nature.com/news/2014/10/who-plans-for-millions-of-doses-of-ebola-vaccine-by2015.html> accessed 18 December 2014. 8 ibid. 9 ibid. 10 Jackson (n 4) 456. 11 Declan Butler, 'WHO plans for millions of doses of Ebola vaccine by 2015' (newsblog, 24 October 2014) <http://blogs.nature.com/news/2014/10/who-plans-for-millions-of-doses-of-ebola-vaccine-by2015.html> accessed 18 December 2014. 12 Rid, Annette, and Ezekiel Emanuel, ‘Ethical Considerations of Experimental Interventions in the Ebola Outbreak’ (ScienceDirect, 22 August 2014) <http://www.sciencedirect.com.gate2.library.lse.ac.uk/science/article/pii/S014067361461315 5?np=y> accessed 15 December 2014. 13 Declan Butler, 'WHO plans for millions of doses of Ebola vaccine by 2015' (newsblog, 24 October 2014) <http://blogs.nature.com/news/2014/10/who-plans-for-millions-of-doses-of-ebola-vaccine-by2015.html> accessed 18 December 2014. 14 Jackson (n 4) 443-444.

any role in these positive outcomes.15 Thus, although it may be laudable that the WHO is taking a pragmatic approach to the pressing problem of a lack of treatment for Ebola, it seems that the inherent risk in clinical research is being played down. Any well-justified divergence from a strict, legalistic approach to clinical research in the name of saving lives in dire humanitarian catastrophes such as Ebola must show an acute awareness of risks and be transparent about how risks will be minimised. Whilst the stepped-wedge, sequential approach to be taken in Sierra Leone, seems to show at least some consideration for risk minimisation, the trial involving 10,000 subjects in the active arm in Liberia, whilst reflecting the aim to offer potential treatment to as many patients as possible, shows little concern for any risks this wide range of subjects face as a result of the trial. III. THE THERAPEUTIC MISCONCEPTION According to Schuklenk, ‘for patients to appreciate the magnitude of the risk they are about to take if they access experimental agents is a vital component of enabling them to make an informed choice’.16 However, this also raises important problems. When enrolling patients into clinical trials there is a danger that they might not understand that they are taking part in research, which is designed to generate generalisable knowledge rather than to meet their individual health needs. This is known as the therapeutic misconception.17 It is known that most people volunteer to participate in research as a result of perceived self-interest, so exaggerating the probability that the subject will benefit from participation or underplaying the potential risks may mean that her consent is based upon a misunderstanding.18 As Miller points out, someone’s desperation to try anything does not vitiate their consent, but it does suggest that researchers should be careful not to overstate the likelihood that the patient will receive a direct health benefit.19 Whilst the Helsinki Declaration endorses the use of unproven treatment where no other options exist,20 research is different from proven treatment in a fundamental respect: the primary purpose of research is to generate new scientific knowledge by testing a hypothesis, rather than to offer the patient individualized care.21 IV. RECONCILING THE PROVISION OF INDIVIDUALISED CARE WITH THE COLLECTION OF GENERALISABLE KNOWLEDGE It seems, however, that the approach taken regarding Ebola is different. Focus seems mainly to be on providing some form of treatment for patients. The rhetoric of 15

‘President's Visit to NIH Highlights Research on Ebola’ (NIH Directors Blog, 2 December 2014) <http://directorsblog.nih.gov/2014/12/02/presidents-visit-to-nih-highlights-research-onebola/> accessed 15 December 2014. 16 Udo Schuklenk, 'And there we go again: the ethics of placebo-controlled RCT in case of catastrophic illness' (Journal of Medical Ethics, 18 October 2013) <http://jme.bmj.com/content/early/2013/10/18/medethics-2013-101653.full?sid=3d54beb9-e62a-473ba7a4-b802831828d4> accessed 14 December 2014 17 n 4, 476. 18 n 4, 475. 19 FH Miller, ‘Trusting Doctors: Tricky Business When it Comes to Clinical Trials’ (2001) 81 Boston University Law Review 423. 20 'World Medical Association Declaration of Helsinki Ethical Principles for Medical Research Involving Human Subjects' (JAMA Network, 27 November 2013) <http://jama.jamanetwork.com/article.aspx?articleid=1760318> accessed 15 December 2014 21 n 4, 505.

‘compassionate use’22 suggests that researchers, in contrast to a typical clinical research scenario, are trying to offer care to as many as possible. The key question raised is how to offer individualised care whilst trying to generate generalisable research. This conflict is exemplified by the controversy raised by the use of RCTs, such as the proposed trial in Liberia. Whilst RCTs offer a good way of establishing whether a new treatment actually works, randomly allocating a patient to the active or control arm of the study is in conflict with the doctor’s normal duty to decide what treatment would be best for her patient.23 As pointed out by Claire Forster: ‘To decide whether or not a trial should be placebo controlled rests on whether we tend to be more goal-based (consequentialist) or duty-based (deontological) in our thinking. The goal-based approach is to conduct placebo-controlled trials wherever possible, only avoiding them when there is likelihood of real harm. A duty based approach – the view is that it is simply wrong to deny treatments, if there are any, to patients who after all expect to be treated’.24

Doctors Without Borders opposes using RCTs because vulnerable people in Ebolaaffected areas ‘shouldn’t be led to think they are either being treated or protected when they’re not.’25 Traditionally, a remedy proposed by the Helsinki Declaration for RCT scenarios offers some protection to vulnerable patients; however, in this scenario it is difficult to apply. The Helsinki Declaration recognises the problems the use of placebos pose and suggests that the legitimate use of a placebo is not only limited to a situation where there is equipoise, where there is genuine uncertainty about whether an untested treatment has benefits or risks that exceed those of conventional care,26 but also that where another course of treatment exists the participants in the controlled arm of the trial must benefit from the best proven form of treatment available.27 Currently, there is no proven alternative treatment for Ebola, apart from conventional care. However, conventional care for Ebola ‘does not much affect clinical outcomes,’ resulting in a mortality rate as high as 70 percent.28 ‘When conventional care means such a high probability of death, it is problematic to insist on randomizing patients to [a placebo arm] when the intervention arm holds out at least the possibility of benefit.’29 In response it may be argued that using a placebo control where no 22

Susan Gilbert, Nancy Berlinger, 'Responding to Ebola: Selected Commentaries on Key Ethical Questions ' (Bioethics Forum, 22 August 2014) <http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=7012&blogid=140#ixzz3WjLlAlEN > accessed 17 December 2014 23 Jackson (n 4) 475. 24 Claire Foster, ‘The Ethics of Medical Research on Humans’ (CUP: London 2001) 25 "News in Context: Ebola and Aids Comparisons." (Hastings Centre, 2014) <http://www.thehastingscenter.org/News/Detail.aspx?id=7154> accessed 19 December 2014 26 Clement Adebamowo et al, 'Randomised controlled trials for Ebola: practical and ethical issues' (The Lancet 13 October 2014) <http://www.thelancet.com/journals/lancet/article/PIIS01406736%2814%2961734-7/abstract> accessed 15 December 2014 27 'World Medical Association Declaration of Helsinki Ethical Principles for Medical Research Involving Human Subjects' (JAMA Network, 27 November 2013) <http://jama.jamanetwork.com/article.aspx?articleid=1760318> accessed 15 December 2014 28 ‘President's Visit to NIH Highlights Research on Ebola’ (NIH Directors Blog, 2 December 2014) <http://directorsblog.nih.gov/2014/12/02/presidents-visit-to-nih-highlights-research-onebola/> accessed 15 December 2014. 29 Clement Adebamowo et al, 'Randomised controlled trials for Ebola: practical and ethical issues' (The Lancet 13 October 2014) <http://www.thelancet.com/journals/lancet/article/PIIS0140-

treatment exists can be justified by the fact that the participant is not left any worse off by taking part in the trial, because if they had not taken part they would have received no treatment at all.30 However, it could further be argued that providing the best alternative treatment implies an obligation to provide the best possible conventional care, such as that provided to Western health workers who were infected in West Africa and flown back to the United States or Europe to enjoy higher quality care. It is unclear however to what extent improved conventional care would be beneficial and when conventional care means such a high probability of death, it remains problematic to insist on randomising patients. ‘Populations who are terrified by the progress of the epidemic, and who lack trust in health care and aid workers and in public authorities in the aftermath of civil wars, cannot be expected to offer informed consent to such randomised trial’.31 Thus, as suggested earlier, transparency is key in establishing patient trust and striving towards individualized treatment, which as previously argued seems to be a primary aim in this context. This paper agrees with Adebamowo’s assessment that insisting on RCTs could even worsen the epidemic, by undermining trust in the Ebola treatment centres that are central to containing it. V. RESOURCE ALLOCATION IN DEVELOPING COUNTRIES The fact that a research trial holds out the possibility of receiving medical care that might not otherwise be available is particularly problematic in developing countries.32 The offer of any medical care at all offers a considerable incentive to participation in West African states where resource allocation in health care is poor and vastly inadequate. Kass raises an important concern that again stresses the need for transparency and cooperation, namely that testing a highly experimental drug on the public under such desperate conditions may trigger accusations of exploitation, making it even more difficult for researchers to collaborate effectively with local officials to contain the epidemic.33 The Council for International Organizations of Medical Sciences (CIOMS) in their International Ethical Guidelines for Biomedical Research Involving Human Subjects states that a research project: should leave low-resource countries better off than previously, or at least, not worse off. It should be responsive to their health needs and priorities in that any product developed is made reasonably available to them, and as far as possible leave the population in a better position to obtain effective health care and protect its own health.34

6736%2814%2961734-7/abstract> accessed 15 December 2014. Jackson (n 4) 457. 31 Clement Adebamowo et al, 'Randomised controlled trials for Ebola: practical and ethical issues' (The Lancet 13 October 2014) <http://www.thelancet.com/journals/lancet/article/PIIS01406736%2814%2961734-7/abstract> accessed 15 December 2014. 32 n 4, 497. 33 Susan Gilbert, Nancy Berlinger, 'Responding to Ebola: Selected Commentaries on Key Ethical Questions ' (Bioethics Forum, 22 August 2014) <http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=7012&blogid=140#ixzz3WjLlAlEN> accessed 17 December 2014. 34 Council for International Organizations of Medical Sciences (CIOMS) in collaboration with the World Health Organization (WHO), 'International Ethical Guidelines for Biomedical Research Involving Human Subjects' (CIOMS, 2002) <http://www.cioms.ch/publications/layout_guide2002.pdf> accessed 16 December 2014 30

It seems important to note that if the main concern for individuals is to gain access to the benefits of taking part in clinical research, in addition to protection from its dangers, we need to ensure that there is a fair and equitable distribution of places in research trials and by extension access to health care. VI. POST-TRIAL ACCESS AND THE NEED TO STRENGTHEN HEALTH SYSTEMS Should researchers be under a duty to make treatments that have been proved to be effective available to all of the participants in the trial and to the wider community? If the research subjects have benefited from a better general health care during the trial, is there an obligation to continue to provide this level of care once the trial has ended? The Helsinki Declaration provides that ‘post-trial access arrangements should be set out in advance, and subjects themselves are entitled to access to interventions which have been proved beneficial’.35 But what if supply of the drug is limited? How should it be distributed? Some have suggested prioritisation of healthcare workers for receipt of the experimental treatments or vaccines, justifying this by claiming that health professionals put themselves at risk to care for patients and could help more patients once recovered.36 For instance, the Sierra Leone trial will enroll at least 8,000 healthcare workers and other frontline responders, such as ambulance drivers and burial workers.37 Adopting this utilitarian argument is problematic when considering the ethical issues with assessing humans in terms of their comparative social worth and making legal decisions on this basis.38 In addition to addressing the question of allocating any treatment developed, Rid and Emanuel raise important concerns about strengthening health systems more generally. They argue that ‘although the prospect of specific Ebola vaccine treatments is enticing, the current unproven interventions should have a marginal role in global response’ and that ‘fundamentally, this Ebola outbreak and future ones need focus on strengthening of health systems and basic infrastructure, rather than experimental treatments and vaccines’.39 To Rid and Emanuel ‘the most effective way to curb the Ebola epidemic is to adopt containment measures’ by for example training and hiring health professionals and deploying basic supplies such as gloves and soap.40 Rid and Emanuel’s arguments seem to raise important considerations regarding the need to allocate more health care resources to West Africa given that amongst other things clinical improvement based on treatment by means of drugs is dependent on other 35

'World Medical Association Declaration of Helsinki Ethical Principles for Medical Research Involving Human Subjects' (JAMA Network, 27 November 2013) <http://jama.jamanetwork.com/article.aspx?articleid=1760318> accessed 15 December 2014 36 Susan Gilbert, Nancy Berlinger, 'Responding to Ebola: Selected Commentaries on Key Ethical Questions ' (Bioethics Forum, 22 August 2014) <http://www.thehastingscenter.org/Bioethicsforum/Post.aspx?id=7012&blogid=140#ixzz3WjLlAlEN> accessed 17 December 2014. 37 Declan Butler, 'WHO plans for millions of doses of Ebola vaccine by 2015' (newsblog, 24 October 2014) <http://blogs.nature.com/news/2014/10/who-plans-for-millions-of-doses-of-ebola-vaccine-by2015.html> accessed 18 December 2014. 38 J. Harris, The Value of Life (Routledge: London, 1983) 104-106. 39 Rid, Annette, and Ezekiel Emanuel, ‘Ethical Considerations of Experimental Interventions in the Ebola Outbreak’ (ScienceDirect, 22 August 2014) <http://www.sciencedirect.com.gate2.library.lse.ac.uk/science/article/pii/S014067361461315 5?np=y> accessed 15 December 2014. 40 ibid.

factors such as nutrition and sanitation and that improved health systems and infrastructure have important collateral health benefits. VII. CONCLUSION Thus, because reasonable people will likely disagree about whether and how to ensure that health care resources are allocated to the region, who should have access to trials and how they should be protected, collaborative partnership with local communities and stakeholders is essential, particularly in times of an epidemic. Local communities should be involved in trial and resource allocation planning and plans should be implemented in a transparent and accountable way. It is generally accepted that limited resources mean that sometimes less than optimal treatment may have to be provided in order to ensure that healthcare service more generally can continue. However, if resources are so scarce that healthcare service cannot even cover basic needs, important legal questions regarding possible solutions are raised that can only be addressed by means of deliberation, cooperation and transparency.

_______________

VCR Recordings, Napster and Pirate Bay: Can We Really Develop Intellectual Property Law In a Way That Can Adapt to the Growing Infringement Challenges Brought By Peer-to-peer File Sharing? KATIE CHIN ABSTRACT This essay will have a multi-jurisdictional scope, examining in particular, landmark cases of infringement claims in the US and the UK. Such cases have been selected for the way intellectual property law has been judicially moulded in an attempt to contain the copyright issues brought by technological advancements. This analysis of IP law will be made with reference to scholars, namely Barlow and Lessig, who each lay down a theoretical framework for how regulations work in the online environment. It is argued that Barlow’s dated analogy of ‘bottling wine’ provides only a simplistic idea for how IP law should develop. It is contended that our current IP law requires reconsideration of new enforcement issues: general antipathy towards regulations, involvement of other actors such as ISPs and ranging levels of infringement. It is only by having a holistic approach that appreciates these new factors that IP law can truly begin to develop in a way that can adequately address the growing infringement challenges brought by peer-to-peer file sharing. ‘Intellectual Property Law cannot be patched, retrofitted, or expanded to contain digitised expression’- John Barlow I. INTRODUCTION In a prophetic paper, John Barlow describes the challenges that digital society would bring to intellectual property laws. He proposes that ideas were previously protected by how they were expressed and conveyed; the wine was captured in the ‘bottle’ just as an author’s ideas were captured in a printed book that could only be shared with others by physically passing it around. The image of wine being transported without a bottle is presented as an allegory for the intangible, digitised ideas that can no longer be protected by their physical manifestation. Indeed in recent years we have witnessed the phenomenon of amateur user-generated content and peer-to-peer file sharing as a result of information being easily carried without containment in a bottle. The ease of information sharing has normalised copyright infringement in online culture, much to the frustration of the entertainment industry and music recording companies. With ideas increasingly digitised and delivered via e-books and files, Barlow posits that IP regulations will also become increasingly irrelevant and impractical, as they remain predicated on protecting tangible ‘bottles’ or expression of ideas.1 He forwards that the current legal framework’s insufficiency demands an ‘entirely new set of methods as befits this entirely new set of circumstances’ of widespread copyright infringement.2 1

John Perry Barlow, ‘The Economy of Ideas: Selling Wine Without Bottles on the Global Net’ (Wired, Mar 1994) <http://archive.wired.com/wired/archive/2.03/economy.ideas_pr.html> accessed 8 April 2015. 2 ibid.

This essay seeks to explore the extent to which Barlow’s claims are valid and feasible. First, the implications of the music industry’s attempts to ‘re-propertise’ information will be examined with reference to cases where the law has in fact been ‘patched’ or ‘expanded’. Second, it will consider the feasibility of conceptualising a new framework of rules to address infringement issues when they are placed in the context of balancing the conflicting interests of copyright holders, intermediaries and amateur users. It is submitted that a re-evaluation of our current IP law is necessary as he forwards. However, it is contended here that this re-evaluation would need to address multi-dimensional considerations. It is necessary to acknowledge that the current difficulties facing policymakers far surpass what Barlow envisioned in the 1990s, which was premised on the simplistic aim of ‘containing’ digitised information. II. JUDICIAL RESPONSES TO INFRINGEMENT CHALLENGES Broadly speaking, technological developments in the last few decades have centred on facilitating our access to information, making it easier for people to copy, store and pass on files. This progress stands increasingly at odds with the entertainment industry where the traditional business model is premised on confining access to artistic work to their purchasers. As such, our discussion begins by turning to the use of VCRs and Betamax as their widespread use presented one of the first pre-eminent challenges to the entertainment industry. In the case of Sony v Universal,3 the US Supreme Court faced the issue of whether Sony’s Betamax recording device was liable for ‘contributing’ to copyright infringement. The popularity of Betamax created great concern for the possibility that a person could be liable for copyright infringement by copying a single program in his own home for his own use. As such, the decision hinged on whether home video recordings of broadcasted television programs for later private viewing had significant non-infringing uses. In a narrow majority, the court resorted to patching copyright laws with patent law principles, allowing the article of commerce doctrine to be adopted. This enabled Betamax to have a protected ‘fair use’ safe harbour for which it could not be liable for infringement. It found that ‘time shifting’ was not likely to lead to substantial harm for copyright holders and should not constitute contributory infringement, thus delivering a defence of substantial non-infringing use for Betamax. Unsurprisingly, there are many problematic implications in such a practice. It reveals quite glaringly the copyright law system’s deficiency and inability to adequately address the legal issue at hand. Furthermore, invoking principles from an entirely different regulatory system provides a cause for concern for the judiciary’s discretion and for predictability and consistency in the area. Judge Blackmun’s dissent validly highlights that the application of ‘fair use’ in patent law case law had traditionally involved purposes such as ‘criticism, comment…or research’. These examples had reflected a common theme, that this ‘fair use’ of work had a ‘productive use, resulting in some added benefit to the public beyond that produced by the first author’s work.’4 It seems that the work reproduced in the recorder’s home VCR contributed ‘added 3 4

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) ibid.

60 benefit’ to the public and followed this historical trend unless it is argued that it is beneficial for the public because the device was so popular and would lead to many to infringe unknowingly in their own homes. The doctrine of fair use was found to apply because of the case’s particular features. Here, a determining factor was the fact that the viewer used time-shifting to see a work he had ‘already been invited to witness…free of charge’. As the work was already freely accessible, the doctrine could be stretched in this manner. The court was not faced with the dilemma of balancing the public service value of the VCR technology against the risk of depriving authors a financial incentive to innovate as they would nowadays. It is unlikely that the court could envisage the speed of technological advancement when it extended the fair use doctrine in Sony v Universal. The patched up copyright law evidently became out-dated as technology brought innovations such as Napster and the issue of copyright through file sharing. This was most pertinent in the case of MGM v Grokster. Having learnt the lesson of decentralising its architecture from the Napster case, Grokster attempted to utilise the Sony safe harbour defence.5 Arguably they could have indeed qualified for this defence on the technical basis - Grokster merely provided a mechanism by which independent users could commit infringement without organisational oversight. Unlike Sony v Universal, applying the fair use doctrine had to be balanced against the significant economic cost it would bring to the music industry and the right of authors over distribution of their material – considerations that the court previously did not need to consider in depth when the principle was invoked. Nevertheless, the Supreme Court took the decision once again to extend principles from patent law within the remit of copyright law and adopted the notion of ‘active inducement’. This ‘patching’ of patent law into copyright law was justified by Justice Souter on the basis that it would be ‘sensible’ and in line with a ‘tradition’ of borrowing from patent law.6 Samuelson supports this, forwarding that technology developers who induce copyright infringement should not expect to be treated any differently than those who induce patent infringement.7 Murray contends that by further contributing to this ‘tradition’ of adopting patent law principles, they were also ‘ignoring [Sony’s] previous direction... that courts should not intervene to extend the scope of copyright protection’.8 In addition, whether there was a tradition of borrowing from patent law is also questionable. In contrast to Sony v Universal where the court could see the public value of home video recordings, the court here employed the principle to protect the value of artists and authors’ rights and innovation. Thus, to avoid immunising conduct perceived to be blameworthy, Menell and Nimmer posit that the courts ‘contorted their analyses’ and ‘effectively invented’ a new reason for the defendants to be liable.9 While this can be rationalised on the fact that Grokster did facilitate infringement in a different way to Sony, Murray contends that such piecemeal settlements will only lead to increasingly fragmented 5

MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) ibid. 7 Pamela Samuelson, ‘Legally Speaking: Did MGM Really Win the Grokster Case?’ (2005) 48 Communications of the ACM 19, 24 8 Andrew Murray, Information Technology Law (1st edn. New York: Oxford University Press 2010). 9 Peter Menell & David Nimmer, ‘Legal Realism in action: Indirect Copyright liability’s continuing tort framework and Sony’s de fact demise’ (2007) UCLA Law Review 55 6

61 approaches that will facture along lines of different technology.10 This is most evident by the fact that the safe harbour defence in Betamax has not since been successfully employed in any other cases apart from the overturned Grokster CA decision. The ignored precedent reveals the failure of the court’s patching in these instances to keep up with and contain new forms of digitised expression and their impact on industries. As Barlow had forewarned, the expansion of copyright law in this ad hoc approach via the imposition and ‘patching’ of patent law is unacceptable and distorts copyright law in confusing and inconsistent ways. It is submitted that the current intellectual property law needs to be re-evaluated for a comprehensive approach to deal with the rapid progression of technology and its legal challenges. III. HOW SHOULD INTELLECTUAL PROPERTY LAW BE RE-EVALUATED? The way in which intellectual property should develop needs to be considered carefully. The premise of Barlow’s statement is problematic as it rests on the idea that the valued utility of IP laws is derived from its ability to best protect digitised material. It is a position that strongly favours copyright holders, and is increasingly hard to develop and prioritise in current society’s legal reforms. It is my contention that it cannot be realised in the stringent simplistic manner Barlow envisioned in 1994. The prevalence of technology in society has not only brought more ease in the ways copyright laws may be infringed, but also blurred our characterisation of infringing criminals. This has led to three key features that potential legal reforms will need to consider: general antipathy to court orders; involvement of other actor; and ranging levels of infringement, which will be outlined below. i. General Antipathy to Court Orders The infamous Pirate Bay case 11 and the limited success of the court order are illustrative of the difficulties faced by Barlow’s proposition. As the courts and the prosecution learned from the Grokster case, the dissolution of its predecessor, Napster, only resulted in ‘mini-Napsters’ like Grokster that would only be more timeconsuming and costly for corporations to pursue.12 Taking this lesson, the prosecution asked the court to rule on the legality of what the defendants did with the BitTorrent technology rather than the legality of the BitTorrent itself. The charges here were taken against the four operators themselves rather than the organisation. In this case, the prosecution ‘was clearly drawing on the same principles [from Grokster that they had] actively induced copyright infringement’. 13 Although the legal framework enabled copyright holders here to technically win their case on Barlow’s terms by ‘propertising’ information again, it fails to have real significant impact beyond the legal dimension. Practically speaking it seems hard to argue that their sentences, ranging from four months to a year are substantial enough to incite real fear and have a significant deterrent effect. Moreover, while the order to pay three million pounds in damages is undoubtedly substantial, it is again doubtful that this can prevent others from attempting to ‘outpace’ the law given the lucrative nature of the industry. 10

Andrew Murray, Information Technology Law (1st edn. New York: Oxford University Press 2010). Sweden v. Neij et al., Stockholms Tingsrätt No B 13301-06 (2009) 12 Lawrence Lessig, ‘Code is Law: Does anyone get this yet?’ (Keynote Speech at the ABA-Tech Conference, Chicago, 11 April 2011) < http://blip.tv/lessig/code-is-law-does-anyone-get-this-yet5024707> accessed 10 April 2015 13 Andrew Murray, Information Technology Law (1st edn. New York: Oxford University Press 2010). 11

This is best explained with reference to Lessig’s theory of four modalities.14 His theory posits that actions of individuals are controlled by four modalities of regulation: laws, markets, architecture and norms. The four constraints ‘regulate this pathetic dot [i.e the individual]’ and can be used individually or collectively to control offline and online actions as they constrain our choices of actions and values.15 Following this perspective, the occurrence of ‘mini-Napsters’ like Grokster is arguably a result of pathetic dots (individual actors) not being additionally regulated by market-based constraints where potential profit is highly attractive. Likewise, the continued popularity of Pirate Bay and proxies that ignore the court order demonstrates the underpinning power of unchanged norms, another modality that Barlow and legal regulations have not addressed. All these examples serve to exhibit the weakness in Barlow’s proposal that focuses only on the modality of law to effect change. It has become apparent that to propertise digitised materials, a multilateral approach involving the four modalities of regulation as a collective is necessary. ii. Involvement of Other Actors Another consideration that needs to be addressed is that Barlow’s argument is premised on the idea of disintermediation. However, the progress of technology has meant that the interests of new intermediaries like ISPs do need to be collectively considered. Here, it is useful to draw from Murray’s contention that Lessig’s notion of the ‘pathetic dot’ is in fact a ‘proactive dot’ that participates in constant dialogue with communities involve larger intermediary dots, or ‘gatekeepers’.16 In turn, this reconceptualisation of Lessig’s original symbiotic network requires us to consider a wider context beyond Barlow’s simple question of how the digitised material can be figuratively ‘re-bottled’, a question which now considers more relevant actors. By appreciating the varied powers of different dots, from proactive small ones to large intermediary ones, we can also appreciate the richer dynamics behind the question of how intellectual property law should be developed. The case of Newzbin I and II sheds light into how courts can adapt to ‘mini-Napsters’ or the persistent activism of the individual dots. In this instance Newzbin was found to have encouraged widespread copyright infringement. The real issue however, arose when Newzbin was subsequently sold to a third party which then released Newzbin II – the same web address but operating from a different jurisdiction. The emergence of Newzbin II immediately gave rise to potential enforcement issues, such as preventing Twentieth Century Fox from collecting due costs. More worryingly, the site could continue operating outside the jurisdiction of the UK and would give rise to crossjurisdictional issues if further litigation were to be pursued. Nevertheless in this instance, the court and right-holders were able to employ other techniques to protect themselves against copyright infringement. Twentieth Century Fox was able to successfully deploy an injunction under 97A of the CDPA against the internet service provider, BT .17 This instrument was allowed as Lord Arnold found 14

Lawrence Lessig, Code Version 2.0 (New York:Basic Books 2006) ibid. 16 Andrew Murray & Colin Scott, ‘Controlling the New Media: Hybrid Responses to New Forms of Power’ (2012) 65 Modern Law Review 491. 17 Copyright, Designs and Patents Act 1988 15

63 on two grounds that BT had been used to allow infringement and that it was shown that the ISP had actual knowledge of the infringement. The requirement for ‘actual knowledge’ here was widened to include knowledge that some of the Newzbin II users include BT subscribers that would be using BT’s services to access these materials. A determining factor for this allowance was the court’s knowledge that BT already had a Cleanfeed system (blocking technology that could be used to filter infringing material). This meant they already had the capability to block any reports of infringing material – the court saw that it would not be disproportionate to grant the s97A injunction in full as BT would not need to employ excessive efforts to follow the court’s order. As such, it would also not go against the safe harbour provisions for neutral ISPs provided by the E-commerce Directive. Although right holders here were able to employ use of ISPs as an effective instrument against Newzbin II, it is by no means a panacea to all enforcement issues. In other areas, this particular enforcement mechanism is likely to be very limited in practice. A major consideration was the pre-existence of BT’s Cleanfeed system. In a parallel case from Belgium, Sabam v Scarlet, the ECJ did not allow such an injunction.18 It was found that employing this instrument would be an unfair and disproportionate burden on the ISP as they didn’t have financial means or technology to block all instances of reported infringing material. The BT ruling offers light into how courts and rights holders can employ other techniques and make use of ISP’s role as a ‘gatekeeper’ dot to address potential enforcement issues. Through the use of regulation as a court order, an ISP was deployed to change the ‘architecture’ of the Internet for the ‘pathetic dot’ and prevent them from accessing infringing material, as Lessig would argue. It cannot be ignored, however, that the success of this alternative solution is evidently contingent on the capabilities of the ISP to do so in the first case and the proportionality of such an injunction. Appreciating the involvement of other actors beyond the pathetic or proactive dot is necessary, however, reliance on these gatekeepers should not be the only direction intellectual property laws should take. iii. Ranging Levels of Infringement Under Barlow’s vision, it could be argued that the Digital Economy Act and HADOPI provide useful regulatory instruments towards protection of right-holders. By employing ISPs, they threaten copyright infringers with ultimately blocking their access to the Internet. However, it is in reality underpinned by political discourse. They have been seen as a catalyst for inflicting greater issues for privacy, civil liberties, and undue obligations placed on ISPs and net neutrality. Understandably, it has attracted great concern given the heavy sanctions that can disconnect a whole family from their online communities and the heavy burden on ISPs to take proactive stances to facilitate copyright enforcement. Simply, it fails to distinguish between the ranging levels of infringement by individuals: from financially benefiting criminals to a teenager using a copyrighted song in their uploaded YouTube video. This is exemplified by the tension between the stance of the Copyright Directives19 against the neutral role attributed to intermediaries through the E-Commerce Directive and the previously mentioned Sabam case.20 18

Case C-70/10 Sabam v. Scarlet Extended (2011) and Case C-360/10 SABAM v. Netlog (2010) Directive on Copyright and Related Rights in the Information Society, Dir.2001/29/EC. 20 Case C-70/10 Sabam v. Scarlet Extended (2011) and Case C-360/10 SABAM v. Netlog (2010) 19

64 Online activist Cory Doctorow contends that the law’s inadequacy to address the problem cannot be addressed with imputing a bulk surveillance of the Internet to catch infringers.21 By not comprehending the nature of the problem and tailoring our solutions appropriately, we incur the real cost of free online content – privacy infringement. With other measures like Viacom asking Google to make all useruploaded content public for Viacom to check for infringing material, there is increasing outcry that copyright giants ‘think their need to look at my videos is greater than my need to flag a video of my two year old in the bath as private’.22 As Werkers highlights, a unilateral legal approach seems increasingly incapable of ‘guaranteeing right-holders a fair return on their creative investments while ensuring the public’s access to information and respect for privacy.’23 Quite simply, it is argued that the policymakers would do well to consider coordinating their effort by employing other modes of modalities, such as changing cultural norms of casual infringement or changing the architecture of the Internet. IV. NEW SOLUTIONS? Notably, these mentioned enforcement measures have been underlined by a prevailing theme of systemic reluctance to abide by court orders, prompting a necessity to recognise other dimensions to the question of how an IP regulatory system can best protect copyright holders’ interests. General moral disengagement by the active dots has effectively allowed the issue of piracy to persist. Commentators like Lessig have stressed that this public antipathy can be attributed to the law’s inability to address the plurality of parties it affects accordingly, from intermediaries to amateur remixers. He posits that the evolution of a read-write culture demands IP laws to acknowledge this by nuancing its own stance against its traditional perception of criminal infringement. 24 Under this strand of argument, IP law would need to appreciate the subtle dichotomy of infringement instances in order to effect successful changes to our norms as a modality. It is forwarded that any attempts to enforce the protection of ideas may be rendered meaningless if it fails to acknowledge the vitality of this proactive dot, the range in different dots and engage with it directly to address ‘underlying causes of noncompliance’.25 This requires a more holistic approach in our consideration of how the wine can be bottled. Creative solutions can indeed be achieved, as evidenced by the success of the Creative Commons movement. 26 It has been advocated as a simple alternative, whereby copyright owners can make content available without these works being as tightly regulated, as they would be under the ‘all rights reserved’ model. However, many issues remain unresolved. While the Creative Commons innovation should be 21

Cory Doctorow, 'The Real Cost Of Free', The Guardian (London, 5 October 2010) <http://www.theguardian.com/technology/blog/2010/oct/05/free-online-content-cory-doctorow> accessed 26 March 2015. 22 ibid. 23 Evi Werkers, ‘Intermediaries in the eye of the copyright storm: A comparative analysis of the three strike approach within the European Union’ (2011) 32 ICRI Working Paper 4 24 Lawrence Lessig, Code Version 2.0 (New York:Basic Books 2006) 25 Evi Werkers, ‘Intermediaries in the eye of the copyright storm: A comparative analysis of the three strike approach within the European Union’ (2011) 32 ICRI Working Paper 4. 26 Lawrence Lessig, ‘The Creative Commons’ (2004) 65 Montana Law Review 1.

65 lauded for its achievements, it still garners criticism as it struggles with clarifying whether a CC-licensed material has been used for a non-commercial purpose or not. Much more progress is necessary to create certainty and distinguishing between ranging levels of infringement. Nevertheless, such initiatives are necessary to point us in the right direction by rethinking ways where seemingly opposing parties (right holders and the individual dot) can mutually benefit. Depending resolutely on laws and regulations would be problematic; it will only bode well for one party – the right holders, whilst impose a great burden on the other end – Internet users. Spotify has also made promising progress by adapting the traditional business model of the music industry from one that confines access to purchasers to one that offers free access with certain limitations to induce users to pay for a premium service. Once again, it comes with its own criticisms; however, it paves a necessary step forward for the music industry to reconsider how its relationship with its consumers is modelled. V. CONCLUSION In this discussion, time has been an underlying but pertinent consideration for IP law. The rapid development of technology makes it impossible to discern a definitive picture of the future legal landscape: once an issue has been tackled, they become just as quickly displaced by other technologies. This in itself is cause for concern for how IP law can respond adequately and appropriately with expediency without compromising all of the necessary considerations raised in this essay. This evolving digital society has in turn, rendered Barlow’s writings to be out-dated. It has been shown that the current enforcement system cannot and should not be ‘patched’ and unduly ‘expanded’ as he forwards. However, it is also contended that our considerations must surpass the simplistic question of how we can re-propertise wine. The evaluation of our current copyright law and its future direction requires careful consideration of different instances of ‘infringement’. In addition, policymakers must also question the extent we want to enforce such regulations when balanced against a plurality of interests and underlining issues of privacy and freedom.

Opening Pandora’s Box: a Comparative Perspective on Possession and Possessory Remedies in English and German Law CHRISTIAN PETERSEIM The so-called ‘property torts’ are notoriously complicated and as a result rarely studied at all, let alone in introductory undergraduate tort modules.1 However, being academically attractive as English law’s principal means of protecting interests in moveable property, these torts are also practically relevant, especially in commercial law.2 Possession lies at their heart. Still, as tortious claims, they act in personam. This intense interdependence of tort and personal property law renders analysis formidable and comprehension intricate, leading to confusion about even the most basic elements. This confusion stems, it is submitted, in part from a critical misunderstanding about the nature of actions protecting proprietary rights, possession in particular. This essay will argue that the comparison to civil law vindicatio frequently made is not entirely accurate and misses, as far as Roman law is concerned, the possessory interdicts.3 As the comparison to German law, which also features these actions, will show, more attention needs to be paid to possessory remedies when considering other jurisdictions. Moreover, the English concept of possession itself is not conclusively developed in personal property law. Inevitably, associated remedies inherit the unsolved intricacies arising as a result of its opacity. The structured approach adopted in this essay is intended to enable an appreciation for both English and German law on this subject as well as a facilitation of a structural, more precise analysis of potential problems, for which comparative law is particularly apt.4 This essay will therefore first outline the legal principles of possession, including its functions. Next, it will elucidate associated remedies in English and German law. Finally, it will compare the two jurisdictions, focusing on those similarities and differences that will reveal the true quality of possession in each legal system. It is hoped that this last section will spark an opportunity for an informed, fresh evaluation of the property torts. Peter Birks advocated a ‘determined effort’ to advance our understanding of English personal property law.5 This essay desires to make a small, yet determined contribution to this end.

Peter Birks, ‘Personal Property: Proprietary Rights and Remedies’ [2000] 11 KCLJ 1, 1 ff (Birks, ‘Proprietary Rights’)); Simon Douglas, ‘The nature of conversion’ [2009] 198, 198. 2 Sarah Green, ‘The subject matter of conversion’ [2010] JBL 218, 218. 3 S Green and J Randall, The Tort of Conversion (Hart 2009) 55 (Green and Randall) is a notable exception mentioning them, although unfortunately their significance is not thoroughly explored. 4 Cf Konrad Zweigert and Hein Kötz, Einführung in die Rechtsvergleichung (1996 Mohr Siebeck) 21. 5 Birks, ‘Proprietary Rights’ 2.

67 I. THE CONCEPT AND FUNCTIONS OF ‘POSSESSION’ IN ENGLISH AND GERMAN PRIVATE LAW i. The Concept of Possession in England and Wales a) Terminology and Meaning In English law, possession is largely a matter of fact. Consequently, it is relative in nature; whether someone can be said to be in possession varies, according to the circumstances of the case. Two elements, however, are indicative of its presence: sufficient factual control over the chattel and a concomitant intention to exclude others from the exercise of control.6 But what constitutes sufficient control? Due to the relativity of the concept, it must be such control as the nature of the case admits.7 Turning to the second, mental element, the intention to exclude others need not be constantly present. When leaving a purse in one’s house when travelling away, possession is not lost as a result.8 While in substance there is general agreement as to what elements must be present to establish possession9, the terminology employed to characterise the different forms of possession is rather incoherent.10 Pollock and Wright’s suggested analysis, distinguishing five categories of possession, is enlightening in this regard.11 1. Physical control, also known as detention, de facto possession or actual possession. These terms denote the most basic meaning of possession, ie the factual relationship between person and thing. 2. Legal possession. This concerns the legal relationship between possessor and the thing possessed. Normally, both actual and legal possession are present, but the one can exist without the other. This might seem confusing, but what ‘legal’ in this context merely seems to mean is a type of factual relationship between person and thing which is recognised in law as capable of constituting possession.12 Since it is the law that demands a certain mental element to be present, it is in this context that it must be considered. Note that even a thief can have legal, though wrongful possession. 6

Michael Bridge, Personal Property Law (3rd edn, OUP 2002) 17 (Bridge, Property Law). Young v Hitchens (1844) 6 QB 606; The Tubantia [1924] P 78. 8 OW Holmes, The Common Law (Boston 1881) 237; see also F Pollock and RS Wright, An Essay on Possession in the Common Law (Oxford 1888) 15 (Pollock and Wright, Possession). 9 S Worthington, Personal Property Law (Hart 2000) 53; Bridge, Property Law, 17; Green and Randall, 57. 10 As Earl Jowitt once remarked, after clarifying an ambiguity in terminology, ‘in truth the English law has never worked out a completely logical and exhaustive definition of “possession”’ (United States of America and Republic of France v Dollfus Mieg et Cie SA and Bank of England [1952] AC 582, 605). It is submitted, however, that often it is less the theoretical definition of the elements of possession, but merely inaccuracies and ambiguities, which exacerbate trouble with the concept and, in consequence, with remedies linked to it. What follows is designed to facilitate an appreciation for what is meant when a term relating to possession is used. 11 Pollock and Wright, Possession, 26 ff. 12 So, for example, the claimants salvaging the Tubantia were certainly not controlling the shipwreck in the same way as one holds an apple in one’s hand, but the steps taken to mark its spot were sufficient to establish control in law. 7

3. Right to possess, or right to legal possession. This is the right remaining to a rightful possessor after having been dispossessed. 4. Constructive possession. Although utilised in several distinct ways, this term usually describes the situation where one person is considered to be in legal possession, while another exercises actual control (eg custody) over a thing or finds himself in a similar position. 5. Lawful possession. This expression means legal possession which in addition is rightful (or at least excusable) and consistent with another person’s superior right to possess. b) Proprietary Nature of Possession Proprietary rights are sometimes defined as rights binding those who are not parties to the transactions that create them.13 In other words, such rights are enforceable against third parties. The English conception of possession appears to postulate this quality of right;14 a purchaser takes subject to a bailee’s possessory right15, while it can also be asserted against the owner’s insolvency representatives.16 c) Special Possessory Relationships in English Law 1) Custody English law also recognises control falling short of possession, called custody. A typical example is the employee, who is not considered to be in possession of his employer’s chattels, but rather as having only custody of them.17 In the same way, hotel guests do not possess moveable items in their rooms, nor do dinner guests possess the condiments on their table.18 However, custody can always be overridden by the clear assertion of intention by the employee to possess exclusively.19

ibid 26. The conundrum of possession as right or mere factum has occupied German jurisprudence for almost two centuries without reaching any firm conclusions and constitutes a topic on its own, see J Wilhelm, Sachenrecht (4th ed, De Gruyter 2010) para 439 ff. As to the English position, see S Douglas, ‘Is Possession factual or legal?’ in E Descheemaeker (ed), The Consequences of Possession (Edinburg UP 2014) 56, 75 ff and AES Tay, ‘The Concept of Possession in the Common Law’ (1964) MULR 476, 491 ff. 15 Rich v Aldred (1705) 6 Mod 216 (Lord Holt). 16 Re Cosslett (Contractors) Ltd [1998] Ch 495. Equally, a lease of chattels and a pledge confer on the party in possession rights of a proprietary and nor merely contractual nature, Franklin v Neate (1844) 12 M&W 481. See also On Demand Information plc v Michael Gerson (Finance) plc [2001] 1 WLR 155 (confirmed by the House of Lords, but reversed on a different point at [2002] UKHL 13) and Bridge, Property Law, 27. 17 Bridge, Property Law, 20. This ‘rule of custody’ was developed at a time when the (now abolished) offence of larceny required asportation or removal of the chattel from the possession of the owner as one of its elements, see ibid. 18 ibid 21, see also Halsbury’s Laws (5th edn, 2010) vol 35, para 1212. 19 This would, however, amount to the commission of a tort or a breach of employment contract by the employee, see Bridge, Property Law, 21. 14

69 2) The so-called ‘immediate right to possession’ From possession itself, the immediate right to possession has to be distinguished. This expression is the source of much confusion. While Bridge maintains that the notion of a ‘right to immediate possession [sic] should not be confused with [the] “immediate right to possession”’20, since supposedly only used in older cases, it is a standard term in recent cases and academic commentary on the topic.21 It is submitted that by this varying terminology, usually no more than a recognised possessory interest is meant. Most often, it is a right emanating from actual possession, eg a finder’s or bailee’s interest.22 Consequently, a considerable overlap between possession and the right to the same will be observed in practice. ii. The Concept in Germany a) Definition Possession (Besitz) is not explicitly defined, but described in § 854 I BGB.23 According to this section, possession of a thing is acquired by obtaining actual control (tatsächliche Gewalt) of it. However, an examination of the sections following § 854 reveal that Besitz is neither limited to the one sense of actual control, nor does the description sufficiently cover all aspects of the concept. As § 855 shows, it is possible to have actual control of the thing, but not be in possession of it. Moreover, the subjective intention of the possessor seems relevant, although nothing of this aspect is said in the description given in § 854 I. The reason for this is that the meaning of Besitz and therefore its content varies according to the function it serves in a particular context.24 On that account, German law distinguishes different kinds of possession or possessory relationships (Besitzarten).25 b) Possessory Relationships 1) Direct possession Whether direct possession, ie actual control, has been acquired, depends to some extent on social reality.26 When would the famous ‘man on the Clapham omnibus’ 20

Bridge, Property Law, 69. It is sometimes also merely referred to as ‘the right to possession’. See Tony Weir, An Introduction To Tort Law (OUP 2006) 169 (Weir, Tort Law); WVH Rogers, Winfield & Jolowicz on Tort (18th edn, Sweet & Maxwell 2010) para 17-16 (Winfield & Jolowicz on Tort). MA Jones, Clerk & Lindsell on Torts (20th edn, Sweet & Maxwell 2010) para 17-60 (Clerk & Lindsell on Torts); Robin Hickey, ‘Wrongs and the protection of personal property’ [2011] Conv 48, 50. 22 See Bridge, Property Law, 69. Further examples include liens and pledges, but equitable rights to property and reversionary interests are excluded, Healey v Healey [1915] 1 KB 938; Winfield & Jolowicz on Tort, para 17-17; Clerk & Lindsell on Torts, para 17-61. 23 Any sections (§§) not specifically denominated are part of the German Civil Code (BGB). 24 F Baur, FJ Baur and R Stürner, Sachenrecht (18th ed, CH Beck 2009) § 7 para 2 (Baur/Stürner). 25 The selection is limited to the types most relevant to a comparison to English law and a discussion of remedies. Further see eg Baur/Stürner, § 7 paras 76 ff. 26 BGHZ 101, 186: ‘Wertung aller Umstände des jeweiligen Falles entsprechend den Anschauungen des täglichen Lebens.’; opposing this formula D Joost in FJ Säcker, R Rixecker and H Oetker (eds), Münchener Kommentar zum Bürgerlichen Gesetzbuch, vol 6 (CH Beck 2013) § 854 para 4 (MüKo/contributor) and Frank Hartung, Besitz und Sachherrschaft (Duncker & Humblot 2001) 132. 21

70 regard a chattel to be in possession? However, two principal guiding criteria exist: First, there must be a certain spatial relationship to the chattel and this relationship has to last for a certain duration.27 Secondly, an intention to possess is required.28 However, this does not entail a conscious desire or will to have actual control, but merely a conscious relationship to a chattel.29 It is immaterial whether someone has a right to possession – whether or not a given person possesses a chattel is a question of fact.30 2) Indirect possession (Mittelbarer Besitz) Apart from being in direct possession, it is also possible to possess indirectly. A person in this case exercises possession on behalf of or, more precisely, through another person. As § 868 stipulates: If a person possesses a thing as [eg a pledgee etc] or in a similar relationship by virtue of which he is, in relation to another, entitled to possession or obliged to have possession for a period of time, the other person shall also be a possessor. As a result, the indirect possessor sustains virtually the same rights as the direct possessor. The person on whose behalf something is possessed is regarded in law as being equally in need of protection as the direct possessor.31 3) Agent in possession (Besitzdiener) The agent in possession is, in a sense, the inverse of indirect possession. Here, the agent, although having actual control of the chattel, is deemed not to be in possession his master is. As § 855 provides, if a person exercises actual control over a thing for another in […] a relationship, by virtue of which he has to follow instructions from the other that relate to the thing, only the other shall be the possessor. The agent thus has no protective rights against his master, the possessor, or the capacity to transfer possession, but is also exempted from certain duties a possessor might incur.32 He does, however, have protective rights against third parties under § 860. II. FUNCTIONS OF POSSESSION i. England and Wales The functions of possession in English law have yet to be systematically analysed, but it is possible to broadly outline several of them. While in land law, possession is still regarded as providing the root of title33, this concept is of declining importance in 27

MüKo/Joost § 854 para 4, 11; Baur/Stürner, § 7 para 5; A Stadler in H Konzen, JF Baur, M Henssler, A Stadler and R Stürner, Soergel, Bürgerliches Gesetzbuch: Band 14, Sachenrecht 1 (13th ed, Kohlhammer 2002) § 854 paras 5 ff, 8 (Soergel/contributor); M Gutzeit in KH Gursky, M Gutzeit, HD Kutter and HH Seiler (eds), J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch. Buch 3: Sachenrecht, Einleitung zum Sachenrecht; §§ 854-882 (Sellier de Gruyter 2012) § 854 paras 9 ff (Staudinger/contributor). 28 Peter Bassenge, in P Bassenge, G Brudermüller, U Diedrichsen et al. (eds), Palandt Bürgerliches Gesetzbuch (74th ed, CH Beck 2015) § 854 paras 4 (Palandt/contributor). 29 MüKo/Joost, § 854 paras 8 ff; Staudinger/Gutzeit, § 854 paras 14 ff. 30 Baur/Stürner, § 7 para 7. 31 Baur/Stürner § 7 para 30. J Berger in R Stürner (ed), Jauernig Bürgerliches Gesetzbuch (15th ed, CH Beck 2014) § 855 para 2 ff (Jauernig/contributor). 32 For example under § 836, see Bauer/Stürner, § 7 para 61. 33 E Burn and J Cartwright, Cheshire and Burn's Modern Law of Real Property (18th ed, OUP 2011) 13 ff; K Gray and SF Gray, Elements of Land Law (5th ed, OUP 2009) 105, 151, 166 ff.

71 times of land registers. In personal property law, however, where no such system exists, it evinces title – the famous 9/10ths of the law.34 In addition, possession serves as a means of transferring ownership. When making gratuitous consensual transfers, ie gifts or donationes mortis causa, delivery of the chattel effects the conveyance.35 Moreover, where the sale of goods is concerned, possession might present a basis for an exception to the nemo dat rule.36 Finally, by providing a title to sue in tort actions, possession plays a crucial role in protecting assets, including intangible property.37 It thus functions to preserve assets as live and productive economic commodities, allowing protection without any necessity to resolve potentially difficult and time-consuming questions of ownership.38 ii. Germany Traditionally, three functions are attributed to possession in German law: protection, preservation and publicity.39 Each will be considered in turn. 1) Protection (Schutzfunktion) In German law, possession protects itself. Several remedies – self-help (§ 859), restoration of possession (§ 861) and protection from interference (§ 862 I) to name but a few – attach to possession and provide for its protection. 2) Preservation (Erhaltungsfunktion) Possession preserves itself. Once someone has obtained possession, that person usually has an interest to remain in that position, notwithstanding a change in circumstance, e.g. a conveyance of the chattel.40 The law allows this interest to be enforced.41 Thus under § 986 II, a possessor, when ownership of a chattel is transferred, keeps his right to possession, if the previous owner ceded the chattel’s possession for use by the possessor.42 3) Publicity (Publizitätsfunktion) Possession provides publicity. Since in German law title to the property is not transferred by the formation of a contract – ie the cause is separated from the actual 34

The Winkfield [1902] P 42 (CA); Armory v Delamirie (1722) 1 Stra 505; Halsbury’s Laws (5th edn, 2010) vol 35, para 1222. 35 Bridge, Property Law, 92 ff. 36 Nemo dat quod non habet (‘No one can give what he does not have’). For example, by virtue of s 24 of the Sale of Goods Act 1979, a seller in possession of goods, after selling them to a buyer, is able to transfer them to a third party, as though authorised by the owner to do. See Bridge, Property Law, 129 ff. 37 This protection is of course subject to the question whether the assets considered are capable of being possessed. See Sarah Green, ‘The subject matter of conversion’ [2010] JBL 218, 218 ff. 38 ibid 242. 39 Baur/Stürner, § 6 para 1. 40 Staudinger/Gutzeit Vor § 854 ff, paras 23, 25. 41 This is not to be confused with protection. As far as preservation is concerned, it is the right to not the actual fact of possession that is preserved. 42 Further examples include §§ 268 I 2, 566, §§ 57 ff ZVG and §§ 108, 110, 111 InsO. See further Baur/Stürner § 6 paras 3 ff; W Brehm and C Berger, Sachenrecht (3rd ed, Mohr Siebeck 2014) § 2 para 3 (Brehm/Berger).

72 transfer – possession is used to evince that transfer. In other words, it is used to make visible a change in the proprietary state of affairs.43 According to the intentions for the first draft of the German Civil Code, the transfer of possession was to function as the equivalent of registration in land law.44 Depending on which provision of the BGB is considered, the function possession performs varies according to the context concerned.45 As a result, the three functions are not to be regarded as the sole basis on which the law on possession rests, it is often rather the interests of the parties in a particular legal scenario that determine the exact scope of possession. Still, they provide fundamental guiding principles when examining particular sections of the Civil Code. III. REMEDIES: PROPRIETARY, POSSESSORY, OR BOTH? i. England and Wales The fact that treatises on torts cover a considerable amount of the English law on possession strikes the continental lawyer as something of an oddity. The reason for this becomes clear, however, when recognising that English law focuses on property rights as the basis for tortious claims. Possession provides the title to sue in actions protecting these rights46, although there is also room for self-help.47 Accordingly, this essay will consider in what follows how English law, using tort law and self-help, endeavours to protect proprietary interests through possessory remedies.48 1) Trespass to goods This tort is found wherever there is a direct, immediate interference with the claimant’s possession of a chattel, which is unauthorised.49 It is actionable per se, ie without the need to prove actual damage.50 The trespassing act must not be 43

MüKo/Joost, Vor § 854 para 13. Brehm/Berger, § 2 para 3; cf also W Schubert, Die Entstehung der Vorschriften des BGB über Besitz und Eigentumsübertragung (De Gruyter 1966) 26. 45 Baur/Stürner, § 6 para 1; Brehm/Berger, § 2 para 4. 46 There are some torts that specifically protect ownership(-like) interests, but, being not strictly associated with possession, are beyond the scope of this essay; others are of a more minor interest to the topic of possessory remedies, including replevin (a summary process allowing a trespasser to regain provisional possession pending a decision on title, see ibid and Clerk & Lindsell on Torts, para 17-148 ff), nuisance, the rule in Rylands v Fletcher and rescuous and pound breach. Where an owner has no possessory interest in his chattel, but retains a reversionary interest in it (eg under a bailment), he is entitled to sue if that interest is injured. The tort of reversionary injury thus provides the owner with a right to sue, where otherwise he would be left without remedy (S Green, ‘Understanding the wrongful interference actions’ [2010] Conv 15, 34). It can be viewed as the backbone to trespass and conversion, which require a possessory interest, since proof of ownership is not sufficient (ibid 23). 47 Clerk & Lindsell on Torts, para 17-01. 48 Peter Birks identifies five ways in which personal property is protected, the first two of which mainly concerns us here: First, the direct assertion of the pre-existing proprietary right (vindicatio or simply vindication). Secondly, the assertion of an obligation arising from a wrong (torts and equitable wrongs); the remaining three ways concern the protection of equitable interests and unjust enrichment, see Birks, ‘Proprietary Rights’ 3. 49 ‘The act of handling a man’s goods without his permission is prima facie tortious.’ Inland Revenue Commissioners v Rossminster [1980] AC 952, 1011 (Lord Diplock). 50 This was settled by Transco Plc v United Utilities Water Plc [2005] EWHC 2784 (QB) (Butterfield J). Otherwise, undesirable activities such as the touching of museum exhibits would enjoy impunity, 44

73 involuntary, but otherwise liability is strict.51 In general, a claimant only has title to sue, if he is in actual possession at the time of the interference.52 This is one of the principal differences to conversion, where the right to possession, without actual possession, is sufficient to maintain a claim. 2) Conversion The tort of conversion is probably one of the least understood torts in the English legal system. Nevertheless, a considerable amount of (academic) ink has been spilled to systemise it, with few tangible results. There is some common ground as to its requirements, but a comprehensive modern judicial elucidation and definition has yet to appear.53 For the purposes of this essay, the most interesting question concerns the title to sue. Although ‘possession’ is the basis of the claim, it is far from clear what exactly this means. Is it to be actual possession, a right to possession or the so-called immediate right to possession? Before proceeding to discuss this issue, the elements of the tort will briefly spelled out. Despite senior judicial authority to the effect that defining the tort of conversion is ‘well nigh impossible’54, several attempts at this have been made, some older55, some recent56. Although there is serious disagreement about the details, the conventional position as to the elements of the tort might be stated as follows. The distinguishing feature of conversion consists in the defendant’s denial of the claimant’s title by acting in a certain way, or, stated in a more general fashion, unlawfully dealing with a chattel in a manner inconsistent with another’s right.57 The usual exposition of the tort proceeds, after pointing this out, to state cases in which the tort has been made out.58 Green and Randall, however, propose three generic elements: First, the claimant must have a superior possessory right; secondly, there must be a deprivation of at least some of the claimant’s benefit of that right and, thirdly, a corresponding assumption of

although only acts going ‘beyond generally acceptable standards of conduct’ (Collins v Wilcock [1984] 3 All ER 374 (Goff LJ)), should be covered, cf Clerk & Lindsell on Torts, para 17-128. 51 Thus, an accidental interference of a non-negligent nature does not suffice (National Coal Board v JE Evans & Co (Cardiff) Ltd [1951] 2 KB 861), yet no fault is required to be liable, the absence of fault being no defence: Wilson v Lombank Ltd [1963] 1 WLR 1294. See B Markesinis, SF Deakin and AC Johnston, Tort Law (7th edn, OUP 2013) 389 (Markesinis and Deakin, Tort Law). 52 Ward v Macauley (1791) 4 TR 489, 490; Markesinis and Deakin, Tort Law, 390; P Giliker, Tort (5th ed, Sweet & Maxwell 2014) 454. Regarding exceptions to this rule, see Clerk & Lindsell on Torts, para 17-133. 53 A recent academic treatise on the tort appeared in 2009 (Green and Randall). It is the most detailed study on conversion in years, clearly marking a surge in interest in ‘property torts’. 54 Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 & 5) [2002] AC 883, 1084, per Lord Nicholls. 55 According to Atkin J, ‘dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion’, as long as there also is an intention to do so (Lancashire and Yorkshire Railway Ca v MacNicoll (1918) 88 LJKB 601, approved in Oakley v Lyster [1931] 1 KB 148 (Scrutton LJ). 56 A ‘conversion exists whenever a defendant intentionally exercises exclusive control over the claimants chattel without his consent’ (Simon Douglas, ‘The nature of conversion’ [2009] 198, 209). 57 See Kuwait Airways (cited above) at para [425]. See also Clerk & Lindsell on Torts, para 17-07; Bridge, Property Law, 53; Weir, Tort Law, 166; Winfield & Jolowicz on Tort, para 17-6; Green and Randall, 57. 58 These are usually called ‘forms of conversion’, see Clerk & Lindsell on Torts, para 17-08 ff; Bridge, Property Law, 54 ff. Naturally, this unsystematic approach impedes analysis and shows that conversion is not theoretically very well understood.

74 that right on the defendant’s part.59 Regarding mental elements, it is generally agreed that conversion is a tort of strict liability.60 Like trespass, it is actionable per se.61 The first element, which concerns the claimant’s right to sue, requires special consideration. An examination of the cases and academic literature reveals agreement regarding a requisite existence of some kind possessory relationship between the chattel and the claimant.62 Under which circumstances, however, such a relationship is established is, again, not entirely clear. There is variously talk of mere ‘possession’,63 an ‘(immediate) right to possession’,64 a ‘right to immediate possession’,65 or a ‘superior possessory interest’66 being obligatory. It is submitted that a possessory interest, and hence a right to sue, emanates, in any case, from actual control of a chattel.67 This interpretation is in line with the functions of possession in English law as well as the concept of relativity of title, attributing a strong, quasi-proprietary status to a possessor. The confusion, it is submitted, stems from a fundamental misunderstanding about the conceptual nature of possession and possessory remedies, which will be discussed below. For now, it will suffice to recognise that the extensive overlap of actual and legal possession in English law obscures the fact that a possessory interest is often concomitant with actual possession. 3) Negligence The general nature of liability in negligence remains the same, ie there must be a breach of a duty of care causing actionable damage which is not too remote. Negligent damage to or destruction of goods is clearly covered.68 Whether financial loss, particularly purely economic loss, is also included as a result of an interference with property rights when brought under the Torts (Interference with Goods) Act 1977 is controversial.69 Although the wrongful interference torts intersect with negligence, in practice there will be little overlap, since where negligence is found, court is unlikely to proceed on the basis of the wrongful interference torts.70

Green and Randall, 75. Clerk & Lindsell on Torts, para 17-07; Markesinis and Deakin, Tort Law, 390; Bridge, Property Law, 54. 61 Bridge, Property Law, 53; Clerk & Lindsell on Torts, para 17-02. 62 Clerk & Lindsell on Torts, para 17-48. 63 ibid; Weir, Tort Law, 168; Bridge, Property Law, 63 ff. 64 Winfield & Jolowicz on Tort, paras 17-16 ff; Clerk & Lindsell on Torts, para 17-60. 65 Bridge, Property Law, 69. 66 Green and Randall, 58. 67 This view is consistent with the cases and academic literature: Armory v Delamirie (1722) 1 Stra 505; Eastern Construction Co v National Trust Co [1914] AC 197, 209. Winfield & Jolowicz on Tort para, 17-16; Clerk & Lindsell on Torts, para 17-48. 68 Clerk & Lindsell on Torts, para 17-141. 69 While Clerk & Lindsell on Torts, para 17-141 considers this doubtful, Sarah Green advocates this view, arguing that otherwise unjustifiable inconsistencies with conversion and trespass, also actionable under the Torts (Interference with Goods) Act 1977 (the 1977 Act), appear (S Green, ‘Understanding the wrongful interference actions’ [2010] Conv 15, 35 ff). 70 Markesinis and Deakin, Tort Law, 399. 60

75 4) Unjust enrichment Where personal property has been lost, be it as a result of wrongful interference or otherwise, the new possessor of that property is under an obligation in unjust enrichment to make restitution of the value received.71 5) Remedies issues As with most torts, damages are the principal remedy for any unlawful interference with goods.72 However, the special possibilities provided by the 1977 Act and selfhelp by recaption of possession are particularly interesting from a comparative perspective and will be examined next. a) Self-help As Millet LJ put it Revill v Newberry73: ‘For centuries the common law has permitted reasonable force to be used in defence of the person or property. Violence may be returned with necessary violence. But the force used must not exceed the limits of what is reasonable in the circumstances’. Thus only reasonable force may be used in defence of one’s actual possession or the right to possession of personal property.74 What constitutes reasonable force is always a question of degree, although extreme violence will probably rarely be reasonable.75 It certainly depends on the value of the property in question and the harm threatened to it.76 Whether possession needs to be lawful, ie supported by some kind of entitlement, is disputed, although it seems actual possession might be sufficient lawful recaption.77 b) Recovery of the chattel Apart from damages and self-help, the defendant in an action for trespass or conversion can be required to, at the discretion of the court, surrender the chattel or to choose between damages and surrendering the chattel.78 Since courts proceed on the same basis as that governing the award of specific performance in contract actions, it is likely that discretion will not be exercised in favour of ordering the surrender of the chattel.79 This is particularly the case where ordinary articles of commerce are concerned.80 From a normative viewpoint, however, such a restrictive treatment of specific recovery is not easily tenable. If wrongful interference actions protect 71

Birks, ‘Proprietary Rights’ 15. These claims can be made both in equity and at common law. As to their elements, in particular the requirement of a waiver of the claimants title in order to be successful, see WJ Swadling, ‘A claim in restitution’ [1996] LMCLQ 63, 65 and Birks, ‘Proprietary Rights’ 12 ff. 72 S 3 (2) b), c) and s 3 (3) Torts (Interference with Goods) Act 1977. See Bridge, Property Law, 72 ff. 73 [1996] QB 567, 580. Contra: R. v Mitchell [2003] EWCA Crim 2188. 74 What ‘reasonable’ means, will be “notoriously difficult” to establish and varies from case to case, see B Markesinis and Deakin, Tort Law, 399 and Winfield & Jolowicz on Tort, para 30-6. 75 There is authority (Moriarty v Brooks (1834) 6 C. & P. 684) for the proposition that it is never lawful for the purpose of resisting trespass to property to use violence likely to imperil life or limb, but this probably is an oversimplification: Clerk & Lindsell on Torts, para 30-09. 76 Clerk & Lindsell on Torts, para 30-09. Interestingly, more than moderate force may be used to repel an attack on property which is combined with an attack on the person (robbery etc.), cf. Attorney General’s Reference (No. 2 of 1983) [1984] AC 456. 77 R v Milton (1827) 1 M & M 107; Devoe v Long [1951] 1 DLR 203; JW Salmond and RFV Roberts, Salmond & Heuston on the Law of Torts (20th ed, Sweet & Maxwell 1992) 573 (Salmond & Heuston on Torts); Clerk & Lindsell on Torts, para 30-14. 78 S. 3(2) Torts (Wrongful Interference with Goods) Act 1977. 79 Bridge, Property Law, 76. 80 Cohen v Roche [1927] 1 KB 169.

76 possession, because it has a value of its own – in commercial transactions, for example –, it would be erroneous to award damages when specific recovery would be theoretically more sound and in the economic interest of the parties. Property actions should enable the protection of the claimant’s property, not his capital as represented his assets. ii. Germany The German law on remedies based on possession is largely built on ‘unlawful interference with possession’, as defined in § 859. According to this section, a person who, against the will of the possessor, deprives the latter of possession or interferes with his possession, acts, except where this is permitted by law, unlawfully. Against this unlawful interference lie the remedies of self-help (§ 859), claims on account of deprivation of or interference with possession (§§ 861 ff) and liability in damages under § 823 II. The claims of the former possessor (§ 1007), the claim for restitution (§ 812 I 1) and the liability in damages under § 823 I are not dependent on unlawful interference. Their sole base is possession, as defined in §§ 854 ff.81 Each of the different remedies will be briefly considered in turn, focussing on those elements which are most relevant to a comparison with English law. 1) Self-help by the possessor (§ 859), Claim on account of deprivation of possession (§ 861), Claim on account of interference with possession (§ 862), Liability in Damages (§ 823 II) The remedies under this head are based on unlawful interference with possession (§ 858). But what amounts to unlawful interference? First, it is important to note that possession need not be rightful. A thief’s possession can also be unlawfully interfered with.82 Secondly, interference need not be culpable, in the sense that it is negligent or even intentional. Liability resulting from unlawful interference can therefore be considered strict.83 Thirdly, the defendant must interfere with the claimant’s possession without the claimant’s will,84 a defence of volenti non fit iniuria being implicit. By satisfying these requirements, several remedies arise in the claimant’s favour. The first of these is self-help. Self-help has two limbs. Thus, under § 859 I, a possessor has the right to use force to defend himself against unlawful interference (Besitzwehr). However, only reasonable action may be taken – the least harmful means need to be chosen.85 Otherwise self-help is illicit and (possibly) tortious, since it is conceived of as a defence against what would constitute an act contrary to § 823.86 An agent in possession has the same right to self-help under § 860. The other limb, Besitzkehr under § 859 II, allows the former possessor to use force against the 81

See above, p 4. MüKo/Joost, § 858 para 2; Staudinger/Gutzeit, § 858 para 4. 83 Staudinger/Gutzeit, § 858 para 9; Soergel/Stadler, § 858 para 5; H Prütting, Sachenrecht (35th ed, CH Beck 2014) para 108 (Prütting). 84 Soergel/Stadler, § 858 para 9; Staudinger/Gutzeit, § 858 para 16; According to HJ Wieling, Sachenrecht (5th ed, Springer 2007) § 5 II 1 a) (Wieling), interference must be against the claimant’s will. 85 Staudinger/Gutzeit, § 859 para 8; Soergel/Stadler, § 859 para 5. 86 Wieling, § 5 III 1 a. 82

77 interferer who is caught or pursued immediately after his act. Immediacy is key here, as with the defence of possession (Besitzwehr) previously considered.87 Is the possessor is deprived of his possession by unlawful interference, he obtains a claim to its restoration against the interferer and anyone who is in defective possession in relation to him, § 861. In cases where possession is disturbed, the possessor may require the interferer to remove the disturbance or even seek an injunction, if further disturbances are feared, § 862. Under § 869, an indirect possessor obtains the same rights. Note that these are solely based on the claimant’s possessory interest. Although controversial, it is generally also thought88 possible to pursue a claim under § 823 II, the so-called breach of a statute intended to protect another person. The relevant statute breached in this context is § 858 (unlawful interference with possession, see above). However, general principles of the German law of delict will apply, ie at least negligence, causation and some damage to the claimant must be shown – in contrast to the remedies outlined above. 2) Claims of the former possessor (§ 1007 I, II) § 1007 operates in cases where previous possession was rightful or in good faith, giving rise to a claim against the current possessor, if the latter was acting in bad faith at the point of delivery or the former lost the chattel in question.89 The idea behind this is that the presumption under § 1006 continues to be effective in favour of the previous possessor; accordingly, it is also known as the ‘claim arising out of better possessory title’.90 The advantage of this section lies in the fact that, to be successful, ownership need not be proved, while the loss of possession needs not to have occurred as a result of unlawful interference. Thus § 1007 lies in the middle between vindication (§ 985) and the possessory claim under § 861.91 It protects ‘relative ownership’ and was in part designed to assist adverse possessors against third parties.92 3) Liability in Damages (§ 823 I) Although details are subject to some dispute, possession is considered to be a right protected as ‘another right’ under § 823 I.93 As a result, a claimant whose right to possession is interfered with will be able to claim damages under this head. Again, as with § 823 II, general principles will apply.

MüKo/Joost, § 859 paras 5, 12 ff; Staudinger/Gutzeit, § 859 paras 7, 17; Soergel/Stadler, § 859 paras 4, 7. 88 BGHZ 20, 169, 171; 114, 305, 314; MüKo/Wagner, § 823 para 422; partly agreeing Soergel/Spickhoff, § 823 para 236; against this proposition D Medicus, ‘Besitzschutz durch Ansprüche auf Schadensersatz’ [1965] 169 AcP 118, 137; Wieling, § 5 IV 6 a). 89 The scope of this provision within German law is heavily disputed. There are very few cases on its application, because usually a different applicable section will achieve the result desired, so § 1007 need not be resorted to, see MüKo/Baldus, § 1007 paras 1 ff, 49. 90 Baur/Stürner, § 9 para 27. 91 Prütting, para 587. 92 MüKo/Baldus, § 1007 para 3. 93 BGHZ 62, 243, 248; MüKo/Wagner, § 823 paras 220 ff; Soergel/Spickhoff, § 823 para 98; Baur/Stürner, § 9 para 31; Wieling, § 5 IV 6 a). Note that the right to possession, not necessarily possession itself is protected.

78 4) Claim for restitution (§ 812 I) Possession can also be subject to a claim in restitution for performance without a legal duty to do so (Leistungskondiktion, § 812 I 1 Alt. 1).94 Thus a claimant may also reclaim a chattel under this head, based on his possession. If the claimant had a right to possession, be it contractual or proprietary, he would also be able to claim the proceeds from any interference with his right under § 812 I 1 Alt. 2 (Eingriffskondiktion).95 IV. COMPARATIVE ANALYSIS i. General Features of Possession: Nomenclature, Nature and Functions As far as terminology is concerned, German law on possession seems to have an advantage. Having been conceived as a system, it is consistent, covering all forms of possession recognised and therefore relevant in the legal system. English law on the other hand, with its incremental approach, has produced a vast array of terms, which are used inconsistently, sometimes confusingly. In terms of substance, however, the two jurisdictions show a remarkable similarity. Concepts like ‘constructive possession’ and custody (the German Besitzdiener) exist in both legal systems. And although their exact scope is slightly different, practically, they cover like situations. For example, custody in English law chiefly concerns the employment context, whereas its German counterpart, taken by its exact wording, encompasses more relationships. Yet in practice, by far the most common example of both will be employment. The same is true, if perhaps less obviously, for constructive and indirect possession.96 In contrast, German law does not distinguish actual from legal possession, Besitz being the one basic notion to which everything else is linked.97 In effect, again, little difference will be perceived. Legal possession proves so allencompassing that as far as remedies are concerned, the distinction becomes practically irrelevant. The nature of possession is also very similar. Both English and German law emphasise a requirement of sufficient physical control, while in English law the requisite mental element appears more prevalent. The practical differences can be considered minimal.98 In addition, in both legal systems possession is regarded as evidence of ownership. 94

BGH NJW 1952, 427; MüKo/Schwab, § 812 para 6; Soergel/Schmidt-Kessel/Hadding, § 812 para 271; Staudinger/Lorenz, § 812 para 73. 95 Staudinger/Lorenz, § 812 para 73; Baur/Stürner, § 9 paras 38 f; against any restitution of possession Wieling, § 5 IV 6 b). An example for this might be the use of a wall for advertisement purposes by A of a house leased by L. L would be able to claim the proceeds from this use, since the use constituted an interference with his possessory rights, see Baur/Stürner, § 9 para 39. 96 The peculiarities of the legal systems need to be taken into account, of course. While the most important example of indirect possession are leases (which are merely contractual in German law), the lessor would not be considered a constructive possessor in English law. Still, the conceptual similarity is evident. 97 One could perhaps even go as far as saying that actual possession in German law is equivalent to English legal possession, see HP Westermann, D Eickmann and KH Gursky, Sachenrecht (8th ed, CF Müller 2011) § 7 para 1. 98 What seems somewhat peculiar, however, is the distinction between the concept of possession in land law and personal property law. Landmark decisions like J A Pye (Oxford) Ltd and Ors v Graham and Another [2003] 1 AC 419, concerning land law, play no role in personal property law, not even as a

By providing the title to sue in possessory actions, possession serves the same function in both jurisdictions. Still, traditionally it assumes a higher significance in English law, particularly because, except in equity, there are few remedies based on and protecting the enjoyment of specific property. ii. Remedies German and English law both allow self-help, within reasonable boundaries. As a next step, trespass, conversion and the tort of negligence will compensate a claimant for an infringement of his possession, using damages as the principal, specific recovery only as a secondary remedy. German law is more differentiated in this regard. For a claimant desiring monetary compensation, the tort under § 823 and restitution under § 812 is available. If, on the other hand, specific recovery based on possession is wanted, § 861 and § 1007 will be used.99 As this analysis shows, the comparison of conversion to § 985 is imprecise; whereas a claimant in conversion needs to show possession or a right to possession, a possessor in German law will never have a title to vindicate. On the contrary, it is against him that the owner would proceed. Naturally, adopting the owner-possessor’s perspective, conversion works like the vindication under § 985: The effect of an order for specific recovery in conversion (or trespass) is identical. Thus essentially, the interests protected by conversion are protected by several distinct remedies in German law. Ownership, protected by vindication (§ 985), possession as a valuable position on its own, protected by Besitzschutz (§ 858 ff), and the better possessory title, protected under § 1007, are in English law all principally protected by one single tort: conversion. The tort of negligence, in contrast, operates similarly to § 823, particularly so if one adopts a rights-based analysis of tort law.100 An interest or right having been infringed, they allow a claimant to recover damages. Unlawful interference with possession provides the foundation for possessory claims, both in Besitzschutz and the wrongful interference torts. In both legal systems, the traditional possessory actions are actionable per se and of strict liability (trespass, conversion, § 861 ff, § 1007), while the typical tortious claims require their usual elements to be fulfilled (negligence, § 823). In addition, restitution is available in both legal systems, to prevent an unjust enrichment by infringement of possessory rights. Besitzschutz, like conversion, is available against any subsequent possessor, although, unlike conversion, only as long as he remains in possession. This merely constitutes the logical consequence of possessory remedies: They attach to possession and where there is none, such claims cannot lie. Despite this, previous possessors can be liable under § 823, if they infringed a right to possession, or under § 812, if they acquired a benefit while possessing. This comparison once again shows the comprehensive nature of conversion, allowing the previous possessor with a right to possession, as guide. Admittedly, German law on possession equally applies only to chattels (Sachen, § 90), yet the concept has hardly any relevance in German land law, as a result of strict rules on adverse possession and compulsory registration of land. 99 § 812 is also available, yet as a restitutionary claim not exclusively dependent on unlawful interference or possessory rights, but on the unjust enrichment of the defendant by acquiring possession. 100 See Robert Stevens, Torts and Rights (OUP 2007).

80 well as the former legal possessor, to sue. §§ 861 ff could therefore be considered more closely resembling trespass, always requiring actual possession, than conversion, despite their overlap. Allowing, if in limited circumstances only, the return of a specific good by virtue of s 2(3) of the 1977 Act is an exceptional feature of English law in this area. In German law, specific recovery is generally possible, either based on a right of ownership (§ 985), a superior right to possession (§ 1007) or possession alone (§ 861). V. CONCLUSION If one accepts the economic theory that it is their formal legal systems of property, which enable Western nations to generate more wealth than others,101 it is evident how much is owed to the provision of sufficient legal protection of proprietary interests. It also clearly indicates the value of a functioning law of property, allowing for both the recognition and subsequent protection of possessory interests. In contrast to German law, its English counterpart lacks a coherent law of personal property,102 which could take care of central problems and fulfil the same functions as tort law. This is the consequence of a historical process and its result need not be any less effective than protection of possessory interests via a law of property. However, a clear understanding and a systematic approach to its fundamental elements is pivotal in any area of law. In the hope that the comparative perspective adopted in this essay may be of some assistance to that end, it remains to be seen whether any enlightening judicial advances will be made in relation to property law and its tortious protection in the near future.

101

Hernando de Soto, The Mystery of Capital (London 2000) 49, cf P Cane, Tort Law and Economic Interests (2nd ed, OUP 1996) 273. 102 Bridge, Property Law, 14.

Article 8, Wednesbury, and the Public/Private Divide: The Problem With Defences to Mandatory Possession Proceedings TURAN HURSIT Mandatory possession has been repeatedly challenged as contravening Article 8, Schedule 1 of the Human Rights Act (‘HRA’). The Supreme Court first accepted the validity of this defence in Manchester CC v Pinnock,1 but in doing so raised more questions than it answered. A parallel debate about the applicability of the defence to the private sector has developed simultaneously, particularly following Weaver v London and Quadrant Housing Trust.2 This paper will assess the prospects for Article 8 and public law defences against public bodies, arguing that in either case, applicants succeed only in exceptional circumstances. It will then investigate whether these defences apply to the private sector. Though the English courts have been slow to provide guidance, it is likely that Article 8 will eventually have horizontal effect. Ultimately, the difficulty of mounting a defence under Article 8 and public law does not end the debate about defences to mandatory possession proceedings. On the contrary, it fuels greater debate about the applicability of defences to the private sector. I. THE ARTICLE 8 DEFENCE Article 8, Schedule 1 HRA entitles everyone to respect for their ‘home’, preventing interference by a public authority except where ‘necessary in a democratic society.’ Its invocation obliges courts to engage in a proportionality exercise determining whether the public authority used the least rights-offensive means available. Unlike traditional heads of judicial review, which “look [strictly] at the decision-making process”,3 proportionality is outcome-based. Courts are not required to undertake a “merits” review, but the “intensity” of review is greater.4 That Article 8 can provide a defence to possession proceedings was accepted by the Supreme Court in Manchester CC v Pinnock,5 where it was held that a possession order would engage the tenant’s Article 8 right, obliging the court to consider the order’s proportionality if raised by the occupier. Though in Pinnock the incidents leading to the demotion order were too “many and serious”6 for the proportionality defence to succeed, the case suggests that an occupier’s property rights may sometimes trump those of the owner. However, applicants must first cross certain thresholds. The onus of raising an Article 8 defence is on the occupier and the party seeking possession is not obliged to address the claim. This creates a situation antithetical to 1

[2010] 3 WLR 1441. [2010] 1 WLR 363. 3 S Bright, N Hopkins, & N Macklam, ‘Case Comment: Possession Proceedings and Human Rights: Something More Required: Ker v Optima Community Association’ (2013) The Conveyancer and Property Lawyer, 5: 422 – 431, 427. 4 R (Daly) v The Secretary of State for the Home Department [2001] 2 AC 532, [25]-[28]. 5 [2010] 3 WLR 1441. 6 ibid, 112. 2

82 Strasbourg’s intention: it is the burden placed on an administrative authority to justify its actions that supposedly renders proportionality a more “rigorous” test than reasonableness.7 A case must be ‘seriously arguable’ 8 to be afforded a substantive hearing. Though the Supreme Court expressed unease with the use of ‘exceptionality’ as the criterion for granting a possession order, it stated that a possession order would be proportionate in “virtually every case.” 9 Quite what constitutes ‘exceptionality’ is unclear. Lord Neuberger MR provided limited guidance in Pinnock when he approved of the suggestions of the Equality and Human Rights Commission that proportionality is more likely to be relevant in respect of vulnerable members of society.10 The ‘special place’ of vulnerable people has certainly been emphasised by Strasbourg (e.g. Connors v United Kingdom11). Beyond this, proportionality has been left to county court judges.12 The uncertainty surrounding exceptionality is problematic for claimants. If the court intended to construe exceptionality as an outcome rather than as a test, it has instead presented it as a ‘trigger’ for proportionality.13 Claimants will be denied a remedy unless their circumstances are shown to be ‘exceptional’. Lacking guidance, they will have to guess what is expected. Judges in the lower courts will be constrained by the higher courts, which focus disproportionately on the needs of local authorities to “distribute their scarce resources effectively.”14 In Hounslow London Borough Council v Powell,15 the court stated that in seeking an order for possession, local authorities “[are] not required to advance a positive case that this will accord with the requirements of Article 8(2)”;16 they can normally point to their ownership of stock and statutory duties in managing housing stock to justify initiating proceedings. 17 That local authorities’ aims are ‘legitimate’ will, therefore, often be a “given”.18 There are numerous procedural hurdles. The initial hearing is short, and applicants are given little time to prepare. The court is not obliged to provide assistance to the applicant. Considering the emphasis placed on the exceptionality of the ‘vulnerable’, this is paradoxical. Those most in need are the least likely to seek legal representation in time, or at all. Even if this initial difficulty is overcome, public funding tends to be

J Steiner, Textbook on EC Law, (3rd edn. 1992) Blackstone Press, London, 58. n 1, 113. 9 ibid, 54. 10 ibid, 64. 11 [2004] 40 EHRR 189. 12 n 1, 57. 13 S Pascoe,‘Europe, Human Rights, and Land Law in the 21st Century: An English Example’, Property Law Review 1(3): 179 – 196, 185. 14 Latham, ‘Talking Without Speaking, Hearing Without Listening? Evictions, the Law Lords, and the European Court of Human Rights (2011) Public Law, 730 – 753, 731. 15 [2011] 2 AC 186 16 ibid, 88. 17 ibid. 18 S Hunter, ‘Editorial: Pinnock: Announcing the Decision’, (2011) Journal of Housing Law 14(1): 1 2, 2. 8

83 limited to merit-based review and may not cover expert witnesses, whose opinions may be crucial to establishing vulnerability.19 Evidential difficulties pose the most significant hindrance to applicant success. In Birmingham City Council v Lloyd,20 the Court of Appeal reversed the lower court’s decision that eviction would be disproportionate because there was no evidence that this would exacerbate the applicant’s depressive illness. Likewise, in Corby Borough Council v Scott,21 it was irrelevant that the applicant had recently been a victim of attempted murder, unless this rendered her ‘vulnerable.’ Given the absence of an obligation to advise applicants, it is unlikely that the applicants were ever aware that such evidence was required. Often, evidential difficulties result from the court’s refusal to engage in investigative exercises. In Westminster City Council v Holmes,22 the applicant was a ‘vulnerable’ person within the meaning of homelessness legislation. Possession proceedings were commenced following an alleged assault against council employees; an incident denied by the applicant. Despite the case turning on the allegations, the court did not consider it necessary to have a full hearing to determine whose version of events was the correct one. Southend-on-Sea Borough Council v Armour23 is one of few successful Article 8 cases. Mr Armour’s success was attributable to exceptional good luck. His case was not heard until eleven months after initial challenge of the council’s decision. Assisted by voluntary agencies, he was able to gather sufficient evidence by the hearing date to convince the Recorder and the appeal court that he suffered from severe depression and Asperger’s syndrome and that removal from his home would affect his capacity to stay out of trouble. The delay also allowed Mr Armour to demonstrate an improvement in behaviour: ultimately a ‘relevant’ consideration. One wonders if the outcomes of the aforementioned cases would have been any different had the applicants been similarly advantaged. Ultimately, despite initial hopes, the “holy grail” of the Article 8 defence has proven no more than an “empty chalice”.24 Applicants must not only blindly demonstrate an element of ‘exceptionality’ in their case but also face significant practical difficulties reducing their likelihood of success. II. PUBLIC LAW DEFENCES Public law grounds comprise illegality, irrationality, and procedural impropriety.25 In Kay v Lambeth London Borough Council26 and Doherty v Birmingham City Council,27 19

Loveland, ‘Case Comment: Proportionality Review in Possession Proceedings: Corby Borough Council v Nicholle Scott; West Kent Housing Association Ltd v Jack Haycraft [2012] EWCA Civ 276; [2012] HLR 23’, The Conveyancer and Property Lawyer, 6: 512 – 521, 515. 20 [2012] HLR 44. 21 [2012] HLR 23. 22 [2011] All ER (D) 21 (Nov). 23 [2014] HLR 23. 24 Loveland, ‘The Holy Grail as an Empty Chalice? Proportionality Review in Possession Proceedings After Pinnock and Powell’, Journal of Planning & Environmental Law, 6: 622 – 631. 25 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL), 410 – 411 (Lord Diplock).

84 the full range of public law grounds constituted one of the two gateways of review. Following Pinnock,28 a public law defence is now available in the county court even where the court’s jurisdiction is procedural only.29 The scope of review is also wide; following Hounslow London Borough Council v Powell,30 a public law defence can challenge not only the decision to bring proceedings but also any previous decision on which proceedings were founded. The success rate of public law defences is, however, low. The threshold for progressing to a substantive hearing is the same as for Article 8: the case must be ‘seriously arguable.’ This is more restrictive than for an ordinary judicial review, where applicants require a mere ‘arguable’ case. Those passing the first threshold will find it “exceedingly difficult”31 to plead public law defences successfully; only ‘exceptional’ cases succeed.32 That public law defences are expected to meet this degree of exceptionality can be inferred from the courts’ interchangeable use of irrationality and proportionality (notably Lord Scott in Doherty v Birmingham City Council 33), which suggests that the evidential burden in public law cases is no less rigorous than for Article 8. Exceptionality may in fact be more difficult to prove for public law defences. Judicial review is concerned with procedure rather than with substantive merit. 34 Though Wednesbury ‘reasonableness’ can at its “wider extreme allow substantive assessment,35 this is unlikely to be as extensive as proportionality review - particularly given that the court cannot rely solely on the applicant’s factual circumstances. It is difficult to imagine anything short of complete disregard for procedural requirements sufficing for public law ‘unreasonableness’ (one such example being McGlynn v Welwyn Hatfield District Council 36). Substantive review, on the other hand, requires the court to make value judgments; a less constrained exercise providing greater scope for creativity. Wednesbury unreasonableness is in any case “unrealistic”. 37 Though Lord Hope purported to widen the grounds for review in Doherty, his formulation of the test for ‘reasonableness’ did not differ vastly from the ‘traditional’ sort. He simply substituted the judgment of a ‘reasonable authority’ with that of a ‘reasonable person’.38 Where reasonableness remains the criterion, it makes little difference against whom it is measured; the standard is, by nature, an objective one.

[2006] 2 AC 465. [2009] 1 AC 367. 28 n 1. 29 ibid, 82 - 87. 30 [2011] 2 WLR 287. 31 Bright, ‘Case Comment: Ending Tenancies by Notice to Quit: The Human Rights Challenge’ (2004) Law Quarterly Review, 120: 398 – 403, 400. 32 Kay v Lambeth London Borough Council [2006] 2 AC 465. 33 n 27, 76. 34 Luba, J., Gallagher, J., McConnell, D. & Madge, N, ‘Defending Possession Proceedings’, Legal Action Group, 11. 35 N Dobson, ‘The Long Trek Away from Wednesbury Irrationality?’, Journal of Local Government Law, 6(6): 129 – 139, 131. 36 [2010] HLR 10. 37 Lester & Jowell, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’, Public Law, 368 – 382, 370. 38 Doherty v Birmingham City Council [2009] 1 AC 367, [55] (Lord Hope). 27

85 Where exceptionality is met, policy reasoning militates against the courts substituting their own opinion for those of local authorities. In Doherty,39 it was emphasised that the “requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority.” 40 This is a continuing concern in practice. In Liverpool City Council v Doran and Secretary of State for Communities and Local Government,41 the Court of Appeal held that an authority’s decision to terminate a caravan pitch licence would “rarely” be deemed irrational.42 The public law defence was characterised as facing “a high test rarely likely to be satisfied”,43 though this was specific to the situation where a one-year suspended possession order may be made. Even so, the court was careful to avoid imposing burdens on the local authority’s already-limited resources for travellers. Leicester City Council v Shearer44 is one of few examples of public law defences being successfully pleaded. The applicant’s husband was a secure tenant of the property. Following his death, Mrs Shearer was incorrectly told by the local authority that she could not remain in the property, but that she could apply for an allocation elsewhere. It was held that the authority had acted unlawfully by failing to mention direct offer consideration. This was clearly an incontrovertible breach of procedure; few judges, if any, will allow local authorities to engage in deceptive practices. The case provides a good example of the high threshold for success. It is thus clear that neither Article 8 nor public law defences are likely to trump a local authority’s rights to property. In both cases, applicants must cross high thresholds and displace difficult evidential burdens. But the debate is not yet over. Public law and human rights are two fast developing areas of law. The lack of guidance given by the courts on both defences provides fertile ground for future development of this area. III. APPLICABILITY OF DEFENCES TO THE PRIVATE SECTOR The question of the applicability of Article 8 to the private sector was left unanswered in Pinnock,45 where the court emphasised that the judgment was not intended to affect possession proceedings by a private landlord and that the issue should instead be determined when it arises. Public law defences only bear on a ‘private landlord’ performing a ‘public function’. Lord Neuberger in Pinnock46 stated that the court’s observations applied equally to other social landlords to the extent that they are public authorities under the HRA. Weaver v London and Quadrant Housing Trust, 47 in allowing judicial review of ‘hybrid’ public authorities, has extended this principle’s scope. In light of Weaver’s limited context, however, whether a body is exercising a ‘public function’ is likely to be determined incrementally. Beyond this, no further consideration is required of the application of public law defences to the private sector; ‘private’ landlords cannot be reviewed by judicial review. 39

n 38. ibid, 55 (Lord Hope). 41 [2009] 1 WLR 2365. 42 ibid, 67 (Lord Toulson). 43 ibid. 44 [2014] HLR 8. 45 n 1. 46 ibid. 47 n 2. 40

The potential applicability of Article 8 to private landlords is more complicated: it requires acceptance of the ‘horizontal effect’ of the HRA. Opponents argue that Convention rights are “rights only against national governments”.48 Had Parliament intended otherwise, it could have so specified.49 Proponents of horizontal effect50 raise two arguments: first, the courts are public authorities under s.6(3)(a) HRA and must develop the common law compatibly with Convention rights, and second, the courts are obliged under s.3 HRA to interpret legislation consistent with the Convention. Strasbourg has taken a robust approach to the protection of private tenants’ Article 8 rights. In Zehentner v Austria, 51 the court applied the Convention between two undisputedly private parties. The applicant’s home was subject to a judicial sale for non-payment of civil debts. Her claim that this breached her Article 8 right was upheld. While this case could partly be explained by the applicant’s lack of mental competence at the time of losing her home, there are others where no such factors have been present – notably Belchikova v Russia,52 where it was noted that the proportionality principle would have been applicable between the private parties but for the fact that the decision to evict was proportionate. Both cases appear to accept the s.6 argument. The English courts have accepted both s.6 and s.3 arguments on several occasions (e.g. in Douglas and Zeta-Jones v Hello! Ltd 53 and Ghaidan v Godin-Mendoza54). Reactions in the context of possession proceedings have been more cautious. The Supreme Court in Pinnock55 refused to provide guidance. Similarly, the appeal in Malik v Fassenfelt56 was dismissed on the basis that it was not necessary to consider the applicability of Article 8, which was not being pursued by the applicant. More can perhaps be drawn from the dictum of Arden LJ in Murphy v Wyatt57 that though it “[did] not fall to this court to consider Article 8”, “the court hearing any further application for possession…may have to do so.”58 Ultimately, the cases in this area are fact-sensitive and the courts are understandably unwilling to set bold precedents. But the courts, bound by s.2 HRA to consider European decisions, will eventually have to provide an answer to whether proportionality defences apply to private landlords. Considering Strasbourg’s increasing support of horizontal effect, and given that the English courts have applied other human rights provisions in private law disputes in this way,59 it is likely that Article 8 will be applicable in housing proceedings by analogy. As always in this area, courts are likely to assess matters incrementally. 48

R Buxton, ‘The Human Rights Act and Private Law’, 116 Law Quarterly Review 48, 50. I Loveland, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. Oxford University Press, 650. 50 See, for example, W Wade, ‘Horizons of Horizontality’ (2000) 116 Law Quarterly Review 217. 51 (2004) 40 EHRR 189. 52 App No 2408/06, 25 March 2010. 53 [2005] 3 WLR 881. 54 [2004] 2 AC 557. 55 n 1. 56 [2013] 3 EGLR 99. 57 [2011] 1 WLR 2129. 58 ibid, 80. 59 An example is Campbell v MGN Ltd [2004] 2 AC 457. 49

IV. CONCLUSION The mandatory possession procedure serves as a powerful reminder that property rights will rarely be trumped in English law, whichever defence is chosen. The courts continue to self-limit, paying particular attention not to substitute their own decisions for those of local authorities. For both Article 8 and public law defences, this has resulted in high ‘exceptionality’ criteria and the imposition of procedures intended to sift out the majority of cases early on. The debate concerning the extension of these defences to the private sector is significant; though public law defences will not apply to strictly ‘private’ parties, prospects of success may be higher under Article 8 where the courts are not restrained by the separation of powers doctrine. Though it is likely that Article 8 defences will be extended to the private sector in light of Strasbourg case law, we can only wait to see the courts’ chosen direction.

The European Parliament’s Role in EU Law-Making: A Lost Opportunity For Democracy? ANCA BUNDA Until the early 80’s the European Parliament was little more than a ‘talking shop’.1 Successive treaty reforms have increased its powers, making it today a co-legislator together with the European Council. This sparked a debate between proponents of ‘intergovernmentalism’, who believe it gained too much influence, making it undemocratic, and advocates of ‘supranationalism’, who press for increased powers in order to make it more democratic. This essay favours the latter side. I begin by analysing the European Parliament’s role in the EU law-making procedures, including both its formal and informal powers. I assess the influence of this institution in the context of the current ‘democratic deficit’ of the EU. After considering the academic debates between those who believe that increased powers for the European Parliament would make the EU more democratic and those who believe the opposite, I argue that, in fact, the European Parliament has too little influence in EU law-making procedures. I base this claim on an argument that I shall call ‘wasted potential’. This stems from the belief that a European Parliament with increased powers has the potential to democratise the union through increased political debate and contestation, represent citizens’ interests and improve popular acceptance of European laws. I. THE EUROPEAN PARLIAMENT’S POWERS IN EU DECISION-MAKING After the Lisbon Treaty, the ‘co-decision’ procedure was replaced with the ‘ordinary legislative procedure’ (OLP) found in Article 294 TFEU. This, as the name suggests, is the most widespread procedure. I will focus on the European Parliament’s powers in this arrangement. Formally, the European Parliament has the power of ‘double veto’. It can reject the Commission proposal at the second or third reading (not a technical veto but parliamentary assent) or after the Conciliation Committee, where it must assent. This would suggest that the European Parliament has important influence and could support the claim of those who regard its powers as excessive. However, in reality little goes beyond the first reading. There is a high tendency, based on efficiency considerations, for early agreement. This telescopes the legislative procedure. The 2007 ‘joint declaration’ 2 showed that the EU institutions are committed to reach consensus at first reading. It is clear, then, that the first reading cannot fulfil its intended function if it is the end of the conversation. This, in turn, supports my claim that the European Parliament has ‘wasted potential’. As Stie argues, ‘the actual practice of co-decision (now OLP) renders passive the democratic potential characterising the formal procedure rules’.3

Katrin Huber and Michael Shackleton, ‘Codecision: a practitioner's view from inside the Parliament’ [2013] Journal of European Public Policy 20, 7, 1040-1055, 1040. 2 European Parliament, Council and Commission, ‘Joint Declaration on Practical Arrangements for the Codecision Procedure (Art. 251 of the EC Treaty)’. OJ C 145/5, 30.6. 2007. 3 Anne E. Stie , ‘Co-decision – the panacea for EU democracy? ‘ (Arena: 2010), 270.

89 A more significant power of the European Parliament is that of amendment. Kardasheva points out that in a year the European Parliament amended 87% of proposals and was successful 65% of the time.4 This indicates that the European Parliament has real influence in decision-making. However, this success is obscured by the lack of real parliamentary debate. The amendments are negotiated almost in secrecy in the trilogues. There, the COREPER, an institution with almost non-existent democratic credentials, becomes a major player. The practice of trilogues excludes smaller parties in the European Parliament, focusing on the highly bureaucratic committees. Powerful lobby groups have a distinctive advantage over weaker parties in this type of decision-making. This is mainly because weaker parties do not even have the opportunity to find out where the meetings take place, let alone have access them. Furthermore, given that the Commission remains the agenda-setter, the influence of technocrats and lobby groups becomes even more important. This is a wasted opportunity for democracy. Therefore, although the European Parliament has significant power through the amendments it makes, this is limited by the real practice of decision-making. The European Parliament’s greatest powers are informal. Behind closed doors and in conciliation committees it can obtain the desired outcomes. It can exercise its power to delay legislative proposals, in order to force the Commission to make concessions. Eurosceptics can criticise the European Parliament for these delays on efficiency grounds. However, given that the speed of decision-making shows that the legislative procedure is efficient, this argument is weak. These powers of delay along with the shadow of the veto ensure sufficient influence for the Parliament if we look solely at the outcomes obtained and ignore the institutional design. However, it remains a wasted opportunity to democratise the Union. There is a fundamental difference between negotiation and debate. The European Parliament, unlike national parliaments, can only use the first mechanism. This undermines almost the whole purpose of this institution. Therefore, the lack of opportunity for debate shows that the European Parliament has too little influence in the legislative procedures. II. EXTENDING THE COMPETENCES OF THE EUROPEAN PARLIAMENT Grimm is one of the academics who strongly oppose extending the competences of the European Parliament, as this would make the EU even more undemocratic.5 He would agree that this institution has already got too much influence in the legislative process. He believes that since there is no ‘demos’ in the EU there is no basis of power. The language barrier, the non-existence of European media and of true European parties are seen as insurmountable obstacles for a democratic Union. He warns against any further erosion of national competences, as it would deepen the democratic deficit. An increase in the European Parliament’s powers of law-making would happen at the expense of the Council, which is a more democratic institution. Therefore, the more power the European Parliament has, the less democratic it becomes.

Raya Kardasheva, Legislative Package Deals in the EU Decision-Making 1997-2009 (Phd thesis, London School of Economics and Political Science, 2009) 5 Dieter Grimm, ‘Does Europe Need a Constitution’, [1995] European Law Journal, Vol.1, Issue 3.

90 Habermas responds to this by claiming that what unites a nation of citizens is not some primordial substrate but a shared context of possible understanding.6 Identity, in his view, must have a basis other than ethnicity. In the case of the EU, its identity can be based on shared European values such as respect for human rights. EU identity is, he believes, unity in national diversity. I disagree with both views, but believe that there is something to learn from them. Grimm’s argument is weak, as Habermas points out, because it gives insufficient account of alternative courses. He fails to acknowledge that the democratic deficit does not stagnate; on the contrary, it deepens with the expansion of EU competences. Grimm’s argument is valuable in so far as it acknowledges the current crisis of legitimacy and the factors responsible for it. The response provided by Habermas is too idealistic. While there are certainly some shared European values that contribute to the very existence of the Union, in recent years reality has shown that European solidarity is frail. The Eurozone crisis saw the increased popularity of nationalist parties and even threats of exiting the EU from some Member States. This weakens the claim for European unity in national diversity. Habermas’s critic is informative as it brings attention to the fact that capable institutions are required in order to fight the democratic deficit and stop the ‘fragmentation of political consciousness’. 7 Therefore, steps need to be taken to legitimate EU institutions and make citizens accept their authority. Strengthening the legislative powers of the European Parliament is one possible solution. Majone 8 and Moravcsik 9 would also oppose the expansion of the European Parliament’s powers. They argue that the EU is as democratic as it can or should be. Increased powers for the European Parliament would not improve the democratic deficit. Majone starts from the idea that the EU is essentially a regulatory state which produces Pareto-efficient outcomes (no one is worse off as a result of EU policies) with no redistributive value. Majoritarianism would not lead to Pareto-efficiency and, therefore, politicisation would be detrimental.10 This is indeed true, provided that all measures are Pareto-efficient. However, in reality EU measures frequently have winners and losers and redistributive effects. For example, private producers in domestic markets lose out from trade liberalisation. Furthermore, the EU has moved far beyond a purely regulatory institution. Citizenship entitlements, especially welfare benefits have significant redistributive effects. 11 Taking the premise of Paretoefficiency out of the equation, Majone’s opposition to increased powers of the European Parliament loses its force. Moravcsik believes that the EU is sufficiently democratic because national governments, in his view the most directly accountable political bodies, play an integral role in policy making. He is also satisfied with the level of scrutiny exercised by the European Parliament due to its increased powers in the legislative process.12 While his argument about the scrutiny of national governments is essentially correct, 6

Jürgen Habermas, ‘Remarks on Dieter Grimm's ‘Does Europe Need a Constitution?’’ [1995] European Law Journal, Vol.1, Issue 3, 303-307. 7 ibid, 305. 8 Giandomenico Majone, ‘The Rise of the Regulatory State in Europe’. West European Politics [1994] Vol. 17, No. 3, 78–102. 9 Andrew Moravcsik ‘In Defence of the “Democratic Deficit”: Reassessing the Legitimacy of the European Union’ [2002] Journal of Common Market Studies, Vol. 40, No. 4, 603–34. 10 n 8. 11 See Art.20 TFEU and Directive 2004/38/EC of the European Parliament and of the Council. 12 n 9.

91 he does not address an integral side of the democratic deficit: the lack of debate and political contestation. Follesdal and Hix correctly point out that increased powers for the European Parliament have the potential of increasing political contestation and provide a solution to the well-known democratic deficit within the Union. Political debate makes the difference between democracy and ‘enlightened despotism’.13 Furthermore, Moravcsik would oppose an expansion of the powers of the European Parliament, because he is sceptical about European Parliament elections and he believes that there will not be genuine ‘European contests’ for some time.14 This is, in his opinion, because European issues are simply not salient enough for voters to want to debate about them. Two points can be made about this. First, in recent years, the EU started to be more involved in fiscal policies, which led to a decrease in national competences on the matter and made European issues more important for citizens. Second, his argument does not take into account the wasted potential of the European Parliament in terms of political contestation and engagement with the citizens. The apathy towards the European elections is, as Follesdal and Hix rightly mention precisely because there is no clear articulation of positions on policies.15 It is indeed true that the European Parliament elections are still seen as second-class contests and that the media shows little interest for them, but there is no a priori reason why this cannot change. Follesdal and Hix propose a solution which, although not strictly limited to the legislative process, is coherent with the argument that the European Parliament has wasted potential and would have the effect of strengthening the institution as a whole. They advocate the expansion of European Parliament’s competences in the elections for the presidency of the Commission.16 At the time of writing it is the job of the Council and not of the European Parliament to propose candidates for the Commission presidency. This new power would increase the political stakes and the competition between European parties. Each national party would show support towards a candidate prior to European Parliament elections. This would increase the visibility of the potential presidents, who are still seen as faceless bureaucrats. More contestation can have spillover effects by increasing media interest, which can in turn increase debate, voter turn-out and general interest in this institution. The rise of UKIP was an unfortunate way of growing interest in European Parliament elections, but it did increase voting intention. This shows that there is hope for more interest in this institution. III. A WASTED OPPORTUNITY FOR DEMOCRACY What is essential in order to know whether the European Parliament has excessive powers is not to look at what it can do, but at what it should ideally do. As Follesdal and Hix rightly point out, the defence of institutions as legitimate must not only show that that present outcomes are acceptable. Proponents must also show that the institutions ‘can reliably be expected to secure more acceptable outcomes in the future than the alternatives considered’.17 I believe that the European Parliament does not have sufficient power because it wastes the opportunity to fix the democratic deficit. 13

Andreas Follesdal and Simon Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ [2006] Journal of Common Market Studies, Vol.44, Number 3, 533-562. 14 Moravcsik, (n 9), 615. 15 Andreas Follesdal and Simon Hix, 2006. 16 ibid, 554. 17 Follesdal and Hix (n 16), 574.

92 As the most representative and directly accountable institution it should have significant powers to represent citizens. Shackleton and Huber mention in their article a great example of an instance when Members of the European Parliament used their powers to represent a vulnerable part of society.18 They convinced a French member of the Council to include in a legislative proposal provisions which made accessibility for disabled persons easier in lifts, by inviting him to press the button in a lift while sitting in a wheelchair. An increased power of the European Parliament has the potential of creating a better link between citizens and their elected Members of the European Parliament. This should in turn dilute the influence of small interest groups that are currently the only ones powerful enough to lobby the Commission and achieve legislative proposals. By leaving the European Parliament in this weak state, this potential is wasted. IV. CONCLUSION All in all, from a democratic perspective, the European Parliament does not have excessive power in EU law making. To the contrary, increasing its powers is a viable solution to the current ‘democratic deficit’. Currently, the European Parliament is one of the only institutions with ‘wasted potential’ to democratise the EU. A stronger European Parliament would increase political debate and contestation and can act as a better representative of citizens’ interests. Moreover, given that its members are directly elected it would ensure a better match between electoral preferences and policy making. Unless some form of politicisation of decision-making happens, citizens will be decreasingly likely to accept authority. Increasing the legislative powers of the European Parliament may not put to rest all the protests against the EU, but this is not the worst solution and it is clearly better than leaving things as they are.

Huber and Shackleton (n 1).

The Spitzenkandidaten: A Facelift For Democracy in the European Union? JUMANI ROBBINS A capacity crowd at a lecture theatre in London has gathered to hear from distinguished scholars on the implications of seceding from the European Union (the Union, or EU). The lecture is a physical manifestation of a debate that is going on across the country (and elsewhere in the Union), and has been for some time. Dissatisfaction with the EU has grown from a confluence of different factors, but at its root is arguably one specific grievance: a perceived disconnect between European citizens and the Union itself. Seeking to remedy this, the European Parliament asserted that, from the 2014 onwards, a vote in the elections would also be a vote for Commission President, with each party nominating a “leading candidate”, Spitzenkandidat, for the role. This contribution will seek to explore the extent to which this Spitzenkandidaten innovation has successfully addressed concerns about the democratic credentials of the European Union. It will do so through a series of distinct but interrelated studies. First, we will examine the underlying necessity of the innovation, looking at the justifications for the proposal and the theoretical nature of the democratic failings that the new system is supposed to ameliorate. Secondly, proceeding on the assumption that such a change was justified, we will evaluate the degree to which the innovation has had the desired effect on democracy in the Union so far. This will entail an analysis of the constitutionality of the way in which the arrangement was implemented, and an examination of some empirical insight into the effect it had on voter behaviour. Thirdly, we will adopt a somewhat multidisciplinary approach by considering the role that new media has to play in bringing the best out of the Spitzenkandidaten innovation and in nurturing a European public sphere more generally. It will ultimately be submitted that the new arrangement has given the EU an opportunity to produce better democracy, but that this is not sufficient on its own; rather, the Spitzenkandidaten must be accompanied by parallel efforts to promote new forms of civic engagement, for which new media is well equipped. I. A “DEMOCRATIC DEFICIT” Much has been made over the years of the so-called “democratic deficit” which exists in the European Union. For the purposes of this contribution we will shortly abandon this particular term; the transposition of economic language to an area that cannot be expressed in euros and cents is not especially helpful. After all, we seldom hear of states experiencing a democratic surplus. Nonetheless, scholarship on the EU’s democratic credentials tends to have gravitated towards this nomenclature, and so it is useful as a means of briefly setting out various competing arguments. Hix and Follesdal have identified five components of the “standard” democratic deficit argument: first, that European integration has strengthened executive power and weakened national parliamentary control; secondly, that the European Parliament (EP) is too weak; thirdly, that there are no truly “European” elections; fourthly, that the EU is simply “too distant” from voters; and fifthly, that European integration

95 produces ‘policy drift’ from voters’ ideal policy preferences.1 Each of these strands of argument should be borne in mind when thinking about the context in which Spitzenkandidaten was conceived. Scholars on both sides of the debate have based their arguments on differing notions of what purpose the EU fundamentally serves. Moravcsik has posited that the very concept of the democratic deficit is born out of an unrealistic view of the Union as an ideal parliamentary democracy,2 and Majone has commented that the EU ought to be viewed as a regulatory branch of Member States.3 However, while this may have been the vision at its inception, it is no longer the case. The scope of the Union now is such that democratic canons of accountability and legitimacy are of paramount importance. It is perhaps shocking, then, to observe that there is an absence of these principles from the Union context in practice. Weiler has described Europe as ‘governance without government’, noting that, in its most basic formulation, accountability as a feature of democracy involves having the opportunity to ‘throw the scoundrels out’. 4 Moreover, it has been suggested by Kocharov that the legitimacy problem has worsened in the wake of the Single European Act 1986, as Council decision-making has moved away from unanimity and towards qualified majority voting. This transition ‘implies that Union policies no longer derive legitimacy from the national political process because individual Member States may find themselves bound against their will’.5 II. THE SPITZENKANDIDATEN: A SOLUTION IN THE ABSTRACT? It follows that this weakening of legitimacy at the national level should be counterbalanced by a strengthening of legitimacy at Union level. Kocharov identifies several alternative legitimacy sources, but there is one which appears to provide particularly strong justification for the Spitzenkandidaten arrangement: so-called input legitimacy, that is, legitimacy underpinned by citizen representation and high voter turnout. Vesnic-Alujevic and Nacarino have highlighted this as being especially important to the modern conception of the Union as an indisputably political system (as opposed to a merely regulatory system, where the drive for efficiency means output legitimacy would take precedence).6 The Spitzenkandidaten innovation aimed to ‘give a face to EP elections’7 and, in doing so, strengthen input legitimacy by

Simon Hix and Andreas Follesdal, ‘Why there is a democratic deficit in the EU: a response to Majone and Moravcsik’, (2006) 44(3) JCMS 533. 2 Andrew Moravcsik, ‘In defense of the ‘democratic deficit: reassessing legitimacy in the European Union’, (2002) 40(4) JCMS 603. 3 Giandomenico Majone, ‘Europe’s ‘democratic deficit’: The question of standards.’ (1998) 4(1) ELJ 5. 4 Joseph Weiler, ‘Challenges to electoral participation in the European elections of 2014’ in AFCO Report Strengthening European Democracy: Citizens’ Participation (2013). 5 Anna Kocharov, ‘This Time It’s Different? Constitutional Complexities of the Spitzenkandidaten Arrangement’, (2014) Berlin e-Working Papers on European Law, 3 <http://ssrn.com/abstract=2451162> accessed 8 April 2015. 6 Lucia Vesnic-Alujevic and Rodrigo Castro Nacarino . ‘The EU and its democratic deficit: problems and (possible) solutions’ (2012) 11(1) European View 63, 64. 7 Borrell Fontelles, ‘The Future Role of the European Parliament’ in Tsoukalis and Emmanouilidis (eds) The Delphic Oracle on Europe: Is There a Future for the European Union? (OUP, 2011) 54.

96 establishing a more direct link between the elections and the resulting policies.8 This appears to be a robust justification for the innovation. What might undermine the foundations of the Spitzenkandidaten arrangement is the question of necessity. It is only half of the battle to acknowledge institutional inadequacies; this must be followed by an assessment of where exactly those inadequacies lie and an attempt to target those areas. Kocharov suggests that the innovation fails to do this, outlining several pre-Spitzenkandidaten examples of times when the EP exercised its power of holding the Commission to account: notably, postponing the appointment of the Barroso Commission in both 2004 and 2009. It is also noted that in both those years ‘the political stripe of the President of the Commission followed the European party with the most seats in the EP as well as the governments of most Member States’.9 In other words, ‘already prior to the Lisbon Treaty the Commission was accountable to the EP’.10 This criticism no doubt has merit – particularly in a technical sense – but it ignores the wider issues of image and perception from which the EU suffers. A layperson is unlikely to know the intricacies of the EP’s pre-existing accountability mechanisms. They might not even care. Nonetheless, it is important that even the least knowledgeable voters have some kind of faith in the system’s democratic credentials. Weiler has enthusiastically endorsed the view that the Spitzenkandidaten procedure can address this problem, creating a closer link between citizens’ preferences and EU policymaking, and sparking a revival in voter turnout.11 This would go some way towards combatting particularly the fourth strand of the democratic deficit argument outlined by Hix and Follesdal. III. THE SPITZENKANDIDATEN: A SOLUTION IN REALITY? We have considered and affirmed the theoretical justifications for the introduction of the Spitzenkandidaten arrangement, but to what extent has it impacted democracy in the European Union in practice? i. Constitutionality First, the way in which the EP decided to effect this change raises some concerns about constitutionality. It has been argued that the arrangement is based upon an ‘erroneous interpretation of Article 17(7) TEU’ and that ‘excessive emphasis’ has been given to the phrase ‘taking into account the elections to the European Parliament’.12 It has been posited by Kocharov that the procedure, as outlined in Article 17(7), ascribes the power to propose presidential candidates exclusively to the European Council, with no priority given to those put forward by the EP13. To alter this procedure, she advances, would amount to so great a change as to require a formal Treaty amendment. Critics have argued that this represents a dangerous ‘power grab’ by the EP and, as Hobolt has commented, it will have long-lasting implications 8

Kocharov (n 5), 4. ibid, 5. 10 ibid, 6. 11 Weiler (n 4). 12 Kocharov (n 5), 8. 13 ibid. 9

97 on ‘inter-institutional dynamics in the Union’.14 These challenges risk harming the very democratic ideals that the Spitzenkandidaten innovation was designed to promote. Notwithstanding these concerns, the conclusion offered by Kocharov – that the arrangement reverses the procedure set out in the Treaties and their adjoining Declarations – is questionable. Our starting point is the five-step procedure for the appointment of the President of the European Commission:15 1. The European Council, acting by qualified majority, shall propose to the EP a candidate for President of the Commission. 2. The EP will elect the candidate by absolute majority. 3. The Council, based on the suggestions of Member States and by common accord with the President-elect, shall propose the College of Commissioners. 4. The EP will consent to the College by absolute majority. 5. The European Council will appoint the College by qualified majority. On 27 June 2014, the European Council voted 26-2 in favour of proposing JeanClaude Juncker to the EP; on 15 July the MEPs elected Juncker by a margin of 422 votes to 250; on 22 October the College of Commissioners was proposed to the EP and approved; and on 23-24 October the European Council appointed them. Thus, steps one through five were fulfilled. Evidently, the Spitzenkandidaten arrangement does not alter the procedure set forth by Article 17(7) TEU. Rather, we can conceptualise it as creating a “step zero”, antecedent to the five-step process, at which the European Council acknowledges the results of the European elections as representing a popular mandate for one particular candidate. This is not necessarily legally problematic. It might be countered, as it was by Kocharov, that this contravenes Declaration 11 on Article 17(6) and (7) attached to the Treaty of Lisbon, a declaration which asserts, inter alia, that ‘the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission’. However, upon closer inspection, we see that this is not the case. Implicit in Kocharov’s reasoning is the mistaken notion that “joint responsibility” is synonymous with “equal contribution”. Taken in the ordinary sense of the phrase, “jointly responsible” does not necessarily stipulate a fifty-fifty (or even a comparable) level of participation; rather, it merely suggests that both parties can have a say if they so desire. It might properly be argued that, in giving greater weight in the decisionmaking process to the European Parliament, the European Council is simply using its collaborative discretion. It is asserted by Kocharov that excessive emphasis has been placed on the instruction to take the EP elections into account16 but, if anything, the very nature of the “joint responsibility” prescribed to Member States and the EP ought to enable them to decide for themselves how much weight should be given to the various competing factors. While the Spitzenkandidaten innovation certainly alters the inter-institutional balance, it does not do so in an unconstitutional manner. On the 14

Sara Hobolt, ‘A vote for the President? The role of Spitzenkandidaten in the 2014 European Parliament elections’ (2014) 21(10) Journal of European Public Policy,1528. 15 Article 17(7) TEU. 16 Kocharov (n 5).

98 contrary, in fact, it does so in a way that is consistent with both the letter and the spirit of the Treaty of Lisbon.17 While the implementation of the arrangement is sound in a legal and constitutional sense, the problems that undoubtedly remain cannot be overlooked. Indeed, the very fact that a process of such great political salience requires a laborious proof of its legal basis triggers alarm bells; evidently, there exists a worrying lack of clarity. Although, as has been pointed out by one commentator, the opportunities implied in the vagueness of the Lisbon Treaty were apparent to those within the realms of academia,18 they do not appear to have been as evident to those outside of the scholarly world. Tension grew among those institutional actors who stood to lose from the new system – namely, heads of state. This dissatisfaction manifested itself publicly, with the likes of the British Prime Minister, David Cameron, speaking out against the arrangement,19 and, in the process, doing damage to the European Union’s already unfavourable perception among the Eurosceptic-leaning electorate. This particular obscurity is not an isolated incident, but a symptom of the increasingly opaque institutional context from which the Spitzenkandidaten arrangement emerged. Though space does not permit the extensive discussion that the area warrants, it is beneficial to our study to briefly consider this broader legal and institutional context. For better or for worse, the EU’s institutional actors are well-versed in utilising legislative vagueness as a means of altering inter-institutional balance. A good example of this is the trilogue. Emerging in 1995, trilogues are informal meetings between representatives of each EU institution that operate as forums in which legislative proposals are discussed and agreements are, where possible, reached. These have been of particular importance since the Treaty of Amsterdam, which enabled the Council to adopt a legislative act at first reading ‘if it approves all the amendments contained in the European Parliament’s opinion’.20 As Reh puts it, this formal provision creates an ‘informal space’ to be filled by decision-makers,21 and trilogues have been utilised as a means of doing that. These meetings are indicative of a wider shift towards informalisation that has become increasingly prevalent across Union affairs in recent years,22 and is a further illustration of the willingness of EU actors to use vagueness in Articles and Declarations (and the “space” that this vagueness creates) as a means of altering inter-institutional balance. While the legality 17

The Guardian, ‘Juncker is the democratic choice to head the EU Commission’, (The Guardian, 6 June 2014) <http://www.theguardian.com/world/2014/jun/06/eu-democratic-choice-eu-commission> accessed 16 March 2015. 18 Roberto Baldoli, ‘Shaping a Collaboration: The Spitzenkandidaten Procedure as a Transparent Best Practice’ (2015) ISL Working Paper, 7 <http://socialsciences.exeter.ac.uk/media/universityofexeter/collegeofsocialsciencesandinternationalstu dies/politics/research/ceg/policyexchange/shaping_a_collaboration-Roberto_Baldoli.pdf> accessed 9 April 2015. 19 David Cameron, ‘Electing Jean-Claude Juncker would be a back-door power-grab’, (The Guardian, 13 June 2014) <http://www.theguardian.com/commentisfree/2014/jun/13/jean-claude-juncker-backdoor-power-grab> accessed 17 March 2015. 20 Article 264 TFEU. 21 Christine Reh, ‘Is informal politics undemocratic? Trilogues, early agreements and the selection model of representation’ (2014) 21(6) Journal of European Public Policy 824. 22 See, for example, Thomas Christiansen (ed), Informal Governance in the European Union (Cheltenham: Edward Elgar, 2004). See also Dawson and De Witte’s analysis of the way in which informalisation has crept into decision-making processes in the wake of the Euro-Crisis: Mark Dawson and Floris de Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76(5) MLR 817.

99 of the Spitzenkandidaten arrangement cannot convincingly be disputed, there is little doubt that the wider legal and institutional context from which it emerged is a worrying one. The innovation itself may indeed offer the opportunity to experience better democracy at the Union level, but the way in which it materialised threatens to partially negate this by adding further fog to already murky institutional waters. ii. Empirical Guidance In terms of evaluating the success of the “Presidential horse-race” in stimulating citizen participation in elections, Hobolt has offered some valuable empirical insight. The context of the 2014 European election was such that the very idea of “Europe” underwent an unprecedented level of scrutiny, with the global financial meltdown and the subsequent Eurozone crisis fresh in voters’ minds.23 It is perhaps unsurprising to hear that during this period citizens became more likely to blame the EU for their economic conditions than their national governments.24 One might have been forgiven for thinking that this wider context combined with the Spitzenkandidaten innovation provided a “perfect storm” in which hopes of a European demos could at last be realised. On the contrary, EU-wide turnout remained at 43 per cent and ‘the campaigns continued to be dominated by national parties, national politicians and national political issues’.25 However, the data might provide some, albeit small, consolation for the likes of Weiler. In countries where awareness of the presidential candidates was high – Germany, France and Greece, for example – voter turnout did increase.26 While some have argued that this is owing to the increased prominence of Eurosceptic parties, others have seen this correlation as a promising sign that lead candidates might be helping to increase citizen participation. Notwithstanding this, Hobolt concludes that, overall, ‘the Spitzenkandidaten did not define the agenda of the 2014 European elections, nor did they greatly enhance the public’s interest in the elections’.27 It seems only fair to concur. It is, however, crucial to consider the potential involvement of time lags. As noted by Kleine, to brand the Spitzenkandidaten innovation a failure at this stage would be incredibly rash; the ‘real test’ of the efficacy of the new process will be the 2019 elections, when citizens’ votes will be influenced by the successes and failures of the incumbent Commission.28 Furthermore, Hix and Follesdal (speaking prophetically in 2006 about the merits of a battle for Commission Presidency) assert that EP elections will continue to be ‘second-order’ for some time, but that gradually the ‘incentives for national parties to compete…on European-level issues rather than purely national concerns’ will initiate ‘EU-wide coalitions and alignments between national and European actors’.29 Weiler has also commented that it will take time to dispel the 23

ibid, 1534. Sara Hobolt and James Tilley, Blaming Europe? Responsibility without Accountability in the European Union, (OUP, 2014). 25 Hobolt (n 14). 26 ibid. 27 ibid, 1537. 28 Mareike Kleine, LSE ‘Europe in Question’ Discussion Paper Series, The 2014 EP Elections: A Victory for European Democracy?, (LEQS Paper No. 78/2014, 2014) 26. 29 Hix and Follesdal (n 1), 557. 24

100 ‘false assumption’ that a politicised government does not work for the best interests of the whole polity.30 IV. CALLING ON THE NEW FOURTH ESTATE In “giving a face” to the EP elections, the Spitzenkandidaten arrangement has sought to elicit an unfamiliar dimension of Union politics – one characterised by personality, transparency and engagement. In doing so, it has also created possibilities for genuine polity contestation, a fundamental facet of any fully functioning democracy that has been conspicuously absent from the EU. 31 Efforts were made in early 2014 to capitalise on this through the holding of televised debates between the leading candidates. Survey data suggests that just 15 per cent of European citizens watched one or more of these debates, with the number as low as 6.7 per cent in the UK.32 Clearly, more needs to be done, not just in the run-up to the elections, but also throughout the prior five years. Weiler, for one, has acknowledged the challenges posed to the media by the new process, and sees them as chances to enhance democracy.33 This is optimistic, but achievable. It is the object of this contribution not only to attempt to consider the effect of the Spitzenkandidaten arrangement on democracy thus far, but also to posit a suggestion as to how the best can be brought out of the innovation in the future. It is here that the so-called Fourth Estate34 holds the key. The new arrangement offers an opportunity for media producers and consumers to sink their teeth into European politics in a way that has simply not existed previously. The role of the media as a provider of information to the public during election campaigns (and, more broadly, in fostering citizens’ investment in the outcomes) is immense, and it is thus crucial that the press and broadcasters are encouraged to put this power to good use. This is arguably truer now than at any other point in history, with the very essence of the Fourth Estate having undergone a dramatic transformation by virtue of the rise of new media and the advancement of technology. Indeed, it has been suggested that the Fourth Estate might now be fitly considered a tripartite concept, comprising the press, public service broadcasters, and the digital sphere.35 It is useful to bear in mind this new taxonomy in the course of our discussion. While a comprehensive assessment of the power of modern media to stimulate civic engagement is far beyond the scope of this paper, it is in our interests to consider how these new methods of nurturing citizenship and disseminating information can be deployed in conjunction with the Spitzenkandidaten arrangement to produce better democracy at the Union level.

Weiler (n 4), 8. See also, on the overstatement of the risk of Commission politicisation: Roberto Baldoli, ‘Shaping a Collaboration: The Spitzenkandidaten Procedure as a Transparent Best Practice’ (2015) ISL Working Paper. 31 Hix and Follesdal (n 1). 32 Alliance of European Conservatives and Reformists, ‘Post EU Election polling project’ (2014) 22 <http://www.aecr.eu/media/AECRAMR-European-election-poll.pdf > accessed 9 April 2015 33 Weiler (n 4). 34 The “Fourth Estate” is a term attributed to Irish statesman Edmund Burke, most commonly used to refer to the news media as a political force and institution. 35 Alan Rusbridger, ‘What is the future of the fourth estate?’ (The Guardian, 11 October 2010) <http://www.theguardian.com/commentisfree/2010/oct/11/future-fourth-estate-longform> accessed 22 March 2015.

101 i. New Media as Facilitator Arguably the most discernible unifying characteristic of new media is the move toward facilitation – that is, the widespread emergence of platforms for audience interaction, be it via features such as radio phone-ins or, more saliently perhaps, online discussion forums and comment sections. This has challenged traditional conceptions of the media as a predominantly one-way stream of information by encouraging the idea of dialogue, not only between media “producers” and “consumers” but also among members of audiences and readerships.36 It remains to be seen how effective these facilitative elements of new media can be in the context of nurturing citizenship, particularly on a transnational scale. Some critics have looked askance at the ability of social networks and discussion forums to generate meaningful political interaction, citing the ‘weak’ nature of the social ties on which these platforms are built.37 Moreover, there is a very real fear of ‘fragmentation’, whereby an increasingly saturated online media market forces audiences to split into ‘closed user communities’ made up exclusively of like-minded people.38 This risks having an adverse effect on civic engagement by marginalising and isolating certain groups of European citizens and, in turn, simply exacerbating the disconnect which already exists between the rulers and the ruled.39 Conversely, there is a compelling argument to be made that new media could support the development of a European public sphere by encouraging ‘processes of transnational opinion and will formation’.40 The sense of interactivity that typifies many forms of new media has the potential to ‘actively involve citizens in political communication on EU legitimacy’. 41 Indeed, platforms such as Reddit (and, to perhaps a lesser extent, Twitter) have facilitated direct interaction between voters and representatives on a greater scale and at a higher frequency than has ever before been possible. This has been utilised by a number of politicians within a vast array of polities; from Natalie Bennett, leader of the Green Party of England and Wales, to Hooshang Amirahmadi, Iranian presidential candidate, to Barack Obama, President of the United States. Obama, in concluding his “ask me anything” session which received over 5,000 comments in just 30 minutes,42 praised the platform as ‘an example of how technology and the internet can empower the sorts of conversations that strengthen our democracy over the long run’.43 The European Union is yet to subject one of its high-ranking officials to this form of scrutiny, but a small number of 36

James Grunig ‘Paradigms of global public relations in an age of digitalisation’ (2009) (6)2 Prism <http://shonaliburke.com/wp-content/uploads/2010/10/GRUNIG.pdf> accessed 9 April 2015. 37 See, for example, Malcolm Gladwell, ‘Small change – why the revolution will not be tweeted’ (The New Yorker, 4 October 2010) < http://www.newyorker.com/magazine/2010/10/04/small-change-3> accessed 24 March 2015. 38 Cass Sunstein, Republic.com (Princeton University Press 2002). 39 Pieter de Wilde, Asimina Michailidou and Hans-Jörg Trenz, Contesting Europe: Exploring Euroscepticism in online media coverage, (ECPR, 2013) 202. 40 ibid. 41 ibid. 42 Megan Garber, ‘President Obama's Reddit AMA: The Numbers Are in, and They're Huge’, (The Atlantic, 31 August 2012) <http://www.theatlantic.com/technology/archive/2012/08/president-obamasreddit-ama-the-numbers-are-in-and-theyre-huge/261858/> accessed 23 March 2015. 43 Barack Obama, ‘I am Barack Obama, President of the United States – ask me anything’, (Reddit, 29 August 2012) <http://www.reddit.com/comments/z1c9z/i_am_barack_obama_president_of_the_united_states/> accessed 23 March 2015.

102 MEPs (past and present) have taken part in similar question-and-answer sessions,44 discussing with voters issues as varied as net neutrality, nuclear power and youth unemployment. ii. New Media as Educator While the efficacy of the media as a facilitator of engagement is debatable, what is less disputable is its function as an educator. Moreover, the rise of digital technology that has gone hand in hand with the emergence of new media means that the information available to consumers is now more mobile, more immediate and more sizeable. It has been argued convincingly that this mobility of communication can help foster ‘transnational citizenship’, and that information technology in general has contributed to an erosion of the traditional idea of ‘the person who belongs to just one nation-state’.45 Research from beyond the European context has suggested that the internet opens possibilities to challenge the official political traditions that reduce individuals to identification only with their particular nation, with Rinnawi, for instance, noting that information technology has helped to nurture a sense of panArabism.46 The easy exchange of information and ideas across a geographical area with some shared linguistic, social and cultural qualities has proved conducive to the idea of “transnational citizenship”, and there seems little reason to assume that these successes cannot be emulated in Europe. In perhaps a more rudimentary way, the increased immediacy and sheer vastness of information that is available through new media can itself stimulate political engagement. The media’s role as an educator has been aided with technological advancements, because the methods of exposing citizens to content are now quicker and more efficient, and there is evidence to support the rather intuitive notion that a causal relationship exists between exposure to political stimuli and actual political engagement.47 Furthermore, research indicates that the same ‘weak ties’ which have been cited by some as a defect of social media platforms can actually have a sanguine effect on civic participation, since they ‘expose an individual to information and resources not available in his or her immediate environment of close friends and relatives’.48 The ease with which one can establish these weak ties by “following”, “liking” or “subscribing” to feeds of bite-size news articles means that we are in an age of potentially unprecedented exposure to political stimuli.

See, for example, Margrete Auken, “I am Member of the European Parliament Margrete Auken. Ask Me Anything!” (Reddit, 18 March 2014) <http://www.reddit.com/r/europe/comments/20q04q/i_am_member_of_the_european_parliament_mar grete/> accessed 23 March 2015. 45 Stephen Castles, ‘Migration and community formation under conditions of globalization’, (2002).36(4) Int. Migr. Rev 1157. 46 Khalil Rinnawi, ‘The internet and the Arab world as a virtual public sphere’, (Burda Research Centre, Ben-Gurion University, 2002) <http://ibrarian.net/navon/paper/The_Internet_and_the_Arab_world_as_a_virtual_publ.pdf?paperid=10 12712> accessed 9 April 2015. 47 Clelia Colombo, Carol Galais and Aina Gallego, ‘Internet use and political attitudes in Europe’ in Eva Anduiza, Michael Jensen and LaiaJorba (eds), Digital Media and Political Engagement Worldwide (Cambridge University Press 2012) 115. 48 Homero Gil de Zúñiga and Saif Shahin, ‘Social media and their impact on civic participation’ in Homero Gil de Zúñiga (ed), New Technologies and Civic Engagement (Routledge 2015) 85.

103 As with most social phenomena, it may simply be a case of it taking time for new media and digital technologies to nurture the ever-elusive European public sphere. However, this process can be expedited by taking sensible and responsive decisions in the realm of EU media law and policy which make the most of political innovations such as the Spitzenkandidaten arrangement. To draw on but one example, Katsirea has identified the way in which the online activities of public broadcasters have been policed in recent years under the 2001 Broadcasting Communication as highly questionable, with the Commission routinely transgressing its fairly narrow competence by questioning the rights of broadcasters to offer particular types of online services. 49 In doing so, she advances, the Commission is condemning broadcasters to a ‘fossilized existence, out of touch with technological developments’.50 More research must certainly be done to better understand the social and psychological factors that influence the relationship between new media and civic engagement. However, as we have seen, there is a compelling argument to suggest that this is an area that the European Union should seek to investigate and exploit.51 A possible way of doing this is by adopting a more open-minded, liberal stance towards new media and digital technology in its regulation of broadcasters across the Union. V. CONCLUSION The Spitzenkandidaten innovation has given the European Union an opportunity to produce better democracy, but it has brought with it some concerns. Questions have been raised about the constitutionality of the manner in which arrangement materialised, and we should be wary of fears that this ‘could result in a major institutional crisis’. 52 Though such a crisis would not stem from a lack of legality – as we have seen, the Spitzenkandidaten arrangement is sound in a legal sense – the broader shift towards informalisation and exploitation of legislative vagueness that the innovation’s implementation represents is a worrying sign for all those who favour transparency and clarity. It remains to be seen how far the EU institutions are willing to push this dynamic but, going forward, such “power grabs” risk creating a troubling irony whereby efforts to enhance democracy actually end up eroding it. Moreover, this innovation alone is not sufficient to overcome worries about democracy in the EU. Increasing input legitimacy is not just about setting up infrastructure; it is about getting citizens to use it. Therefore, the Spitzenkandidaten arrangement must be complemented by parallel efforts to engage with citizens in novel ways. For this, new media is ideal. However, in order for new media to realise its potential as both a facilitator and educator of a meaningful European public sphere, EU media law and policy must be more willing to embrace it.

Irini Katsirea, Public Broadcasting and European Law (Wolters Kluwer 2008) 373. ibid. 51 Early analyses of trends in European and Spanish data reveal a small but significant positive impact of internet use on political engagement. See Colombo et al (n 46). 52 Kocharov (n 5), 14. 50

104

Deception and Consent: Has the Law Gone Too Far? KEVIN TAN Section 74 of the Sexual Offences Act 2003 defines a person as consenting if s/he agrees by choice, and has the freedom and capacity to make that choice. These are on the face of it simple words, but recent developments in the law regarding the interpretation of this section may be exceeding what Parliament had in mind when enacting this legislation. In this essay, I hope to analyse how the law regarding section 74 of the Sexual Offences Act 2003 has developed, dealing especially with how it handles deceptions that do not trigger section 76, which deals with circumstances in which a conclusive presumption that there is no consent will be found. First, I will critique the emergence of the doctrine of conditional consent, the inclusion of gender as an attribute (deception as to which will vitiate consent), and furthermore, I will suggest that a new offence of obtaining sex by deception be created to bring the law back in line with the general public’s idea of rape. I. DISCUSSION OF THE LAW PRIOR TO THE SEXUAL OFFENCES ACT 2003 The discussion of what fraud is or should be sufficient to vitiate consent should begin with Clarence.1 That was a case of the defendant having sex with the complainant, while failing to disclose to her that he had gonorrhoea. The relevant issue for our purposes was whether this fraud had vitiated her consent as to the intercourse. In the words of Wills J, “That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent.”2 The idea that not every fraud would vitiate consent was reaffirmed in the relatively more recent case of Linekar.3 In that case, the complainant had sex with the defendant because of, or contingent on, his promise to pay her £25. Despite the fact that this promise was a fraud and the defendant had never intended to follow through on it, Morland J rightly held that the complainant had in fact consented to sex, and that ‘the reality of that consent is not destroyed by being induced by the appellant's false pretence that his intention was to pay the agreed price of £25 for her services’.4 As support for this proposition his Lordship cited the persuasive case of Papadimitropoulos v. The Queen,5 a decision of the Australian High Court, the main thrust of which was that ‘comprehending and actual consent…demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing’. Once that was so, the reality of that consent could not be destroyed by reference to its inducing cause. However, it was noted that the defendant would likely have been guilty of procurement by false pretences under section 3 of the 1956 Act.6 1

R. v Clarence (Charles James) (1888) 22 Q.B.D. 23 All ER Rep 133. ibid, 27. 3 R. v Linekar (Gareth), [1995] Q.B. 250. [1995] 2 Cr. App. R. 49. 4 ibid, 261. 5 R v Linekar [1995] Q.B. 250. Papadimitropoulos v. The Queen [1957] HCA 74. 6 Linekar. 2

105

II. THE ENACTMENT OF THE SEXUAL OFFENCES ACT 2003 The upshot of the discussion thus far is that the state of the law on consent prior to the enactment of the Sexual Offences Act in 2003 was that a) a fraud as to the identity of the person or the nature of the act would vitiate consent, and b) consent induced by false pretences not pertaining to either of the previous two categories was, notwithstanding the deception, ‘comprehending and actual’, and therefore valid. However, the 2003 Act changed this position significantly. The two categories of deception that would automatically vitiate consent were set out in section 76, presumably putting on a statutory footing the state of the common law at the time. However, the offence of procuring by false pretences was abolished, and the definition of consent was set out in section 74.7 One might think, if approaching the issue without any knowledge of the developments after the 2003 Act, that the law would not develop as it has currently, with section 74 covering the deceptions that section 76 does not. This is because sections 75 and 76 seem to deal with legal consent, in that the complainant may have factually consented, but the consent was legally invalid due to the circumstances present.8 This suggests strongly that section 74 was therefore meant to deal with whether there was factual consent. However, the courts have chosen not to go in this direction, and have instead interpreted section 74 widely to fill the gap that repealing the offence of procuring by false pretences has left. It is submitted that this has created significant difficulties and tensions in the law that have yet to be satisfactorily resolved. III. DECEPTION, CONDITIONAL CONSENT CASES POST-2003 ACT, AND THE WIDENING AMBIT OF SECTION 74 The case that set the courts down the path of using section 74 to consider deceptions not covered by section 76 is Jheeta.9 While that case is more commonly known for limiting the interpretation of section 76, the flip-side of the coin is often neglected: that the court held that the defendant’s behaviour, while not triggering section 74, was still held that the defendant had ‘deprived the complainant of her freedom to choose whether or not to have intercourse with him’.10 Karl Laird suggests that Jheeta should be read as a case of coercion, explaining why section 74 consent was not found.11 This argument is at least plausible, as the deception was that of a fictitious threat. If there had been only one single occasion of intercourse where consent was disputed, and/or it is correct to read Jheeta as a case of coercion as opposed to deception, the situation is not so clear-cut that a catch-all principle of “all deceptions that are not caught by section 76 should be considered under section 74” can easily be deduced. However, this seems to be the line that the courts have taken, and it is a large logical leap to take.

Sexual Offences Act 2003, s74. Sexual Offences Act 2003, s75-76. 9 R. v Jheeta (Harvinder Singh) [2007] EWCA Crim 1699, [2007] 2 Cr. App. R. 34. 10 ibid. 11 Karl Laird, ‘Rapist or rogue? Deception, consent and the Sexual Offences Act 2003’ [2014] Crim. LR 7, 492-510 8

106 The courts’ decision to take this line is best seen in Assange.12 In this case, the complainant had made it clear that her consent was contingent upon the defendant’s use of a condom, and the defendant had sex with her without the requisite condom.13 It was held that deception as to the use of a condom created a situation where it ‘would plainly be open to a jury to hold that, if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent.’14 Thus was a new concept in the law relating to consent created: that of conditional consent. This meant that a complainant could now make her consent contingent on a condition, and if she was then deceived as to the existence of that condition, that would in law amount to rape. This is clearly a significant change in direction from the law as Linekar sets it out to be. It should be noted that Sir John Thomas P seems to say that Linekar should no longer be followed in a world where the Sexual Offences Act 2003 exists; his (correct, it is submitted) use of ‘conditional’ to describe the circumstances in which consent was given in Linekar, followed by his pointed departure from the logical conclusions one would come to if following Linekar, are indicative of his disapproval. IV. WHAT SORT OF CONDITIONS? The natural follow-up question is: what are the sort of conditions, which if a deception as to its existence is perpetrated, will vitiate consent? The facts of R (on the application of F) v DPP15 are materially similar to Assange. Here the condition given by the victim was that the defendant withdraw his penis before ejaculation. The defendant ignored this and ejaculated in the victim anyway. The Divisional Court held, following Assange, that “choice” was crucial to the issue of consent, and the deception therefore vitiated the defendant’s consent. The choice of words by Lord Judge CJ (as he then was) is especially telling: ‘…the evidence relating to “choice” and the “freedom” to make any particular choice must be approached in a broad common sense way’,16 and ‘…she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated’.17 Here a transmutation of the original meaning of section 74 can be seen: where a plain reading of section 74 seems to simply set out when consent will or will not be present, it (section 74) is now being used to legally invalidate factual consent. It is submitted that this development is problematic and may not be as “common sense” as Lord Judge believes. The reasons why will be dealt with below in greater detail. It is also startling to note that according to this decision, the offence of rape was committed here as soon as penetration occurred.18 One last case requires some scrutiny. That case is the difficult one of McNally,19 decided after R (F) v DPP. The facts of this case are astonishing: the defendant had managed to deceive the complainant as to her gender, and the House of Lords found 12

Assange v Sweden [2011] EWHC 2849 (Admin), [2011] 108(44) L.S.G 17. It should be noted that these are the facts asserted for the purpose of a case the primary aim of which was to determine if Mr Assange could be legally extradited. 14 n 12. 15 [2014] Q.B. 581, [2014] 2 WLR 190. 16 ibid, 26 (Lord Judge CJ) (emphasis added). 17 ibid. 18 ibid. 19 R. v McNally (Justine) [2013] EWCA Crim 1051, [2014] 2 W.L.R. 200 (CA (Crim Div)). 13

107 that such a deception as to gender could vitiate consent, and in this instance did so. This case applies the R (F) v DPP concept of “choice” in consent (“her freedom to choose whether or not to have a sexual encounter with a girl”)20 and in so doing widens the scope of deception that can vitiate consent to not merely physical acts, as it was previously, but to characteristics as well. Strictly speaking, this is not a ‘conditional consent’ case; rather this is an example of a ‘deception as to attributes’ case, which throw up their own set of problems existing alongside those created by conditional consent. Here Leveson LJ also speaks of a “common sense” manner from which to approach the issue of consent. A requirement of the attribute being “fundamental” is also alluded to. V. WHAT IS THE CURRENT STATE OF THE LAW AND HOW CAN IT BE EXPLAINED? It seems that the law may now impose liability on a defendant who has failed to meet a condition of the complainant’s upon which her consent is contingent. The exact nature and scope of what this condition or conditions can require from the defendant are unclear. It will be a question for the jury to decide whether the deception as to the condition upon which consent was given extinguished the complainant’s ‘freedom to choose’. However, it should be noted that a condition must be ‘made clear’,21 such that the link between the fulfilment of the condition and validity of the complainant’s consent is made explicitly to the defendant. Is Linekar still good law? While it was not disapproved expressly in Assange, the ‘broad common-sense approach’ advocated in R (F) v DPP seems to be dominant. Linekar can be distinguished from the present cases by noting that that case concerned a promise to do an act after intercourse, whereas Assange and R (F) v DPP concerned promises to do acts before and during intercourse respectively. It is possible that the timing may be important to the courts; it seems significantly more unjust to hold a defendant liable for rape where he does not keep his promise to bring his wife on a holiday (her consent contingent on that holiday), than the case of a defendant who ejaculates in his wife without her consent. However, it is doubtful if holding a husband who had not in fact brushed his teeth guilty of rape after having sex with his wife, as long as she had said something to the effect of “I will only have sex with you if you have brushed your teeth”, is any less unjust. The problem here lies in the lack of clarity as to what condition is important enough that a deception as to its existence can vitiate consent, a problem which will be discussed below. Despite this uncertainty, it seems that Linekar may still have a place in the law, covering “non-conditional” situations, i.e. those where there is a casual link between a defendant’s promise and the complainant’s consent, but the complainant’s words have failed to amount to a setting of a condition as to the validity of her consent. VI. WHAT ARE THE PROBLEMS WITH THE CURRENT LAW? The first problem is a logical one to do with conditional consent and has been alluded to earlier: it is submitted that section 74 deals with the presence of factual consent and sets out the conditions when it will or will not exist. A plain reading of the words does 20 21

ibid [26] (Leveson LJ). Assange [86] (Leveson LJ).

108 not support the use to which the courts have put it; to legally invalidate consent factually given by the complainant. This interpretation is supported by the presence of s76, which deals specifically with circumstances that will legally invalidate factual consent. In Assange, the Divisional Court opined that ‘it would, in our view, have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s.74, conduct that was deceptive could not be’. While this is a noble sentiment, and an eminently moral one, it does not confront squarely the possibility that this is in fact what Parliament may have intended. It is submitted that what was driving the decision in Assange were policy considerations, rather than a view to follow closely precedent and established rules of statutory interpretation. The point that makes the logical problem stand out in stark clarity is this: section 74 states that the definition of consent is relevant to that Part,22 i.e. as part of the actus reus of a sexual offence in the Act. If the idea of conditional consent is accepted, this means that the complainant will now be able to, by setting a condition or conditions, alter the actus reus required to be found liable for a sexual offence to one that is different from what is specified in the statute. If the actus reus of rape is penile penetration (a), and lack of consent (b), then to allow a complainant to equate b with the performance of some other act x, or the existence of circumstance y, is to change the actus reus of rape to a + x, or a + y, where it was previously merely a + b. Note that the modification of the actus reus is done unilaterally by the complainant, and in a way that departs from any clarity the words in the Act may provide! This may be a unique state of affairs in English criminal law. Viewing the problem from this perspective lends great weight to the argument that a wide interpretation of section 74 to catch deceptions not covered by section 76 is problematic. It would be problematic because it has the potential to create great uncertainty as to what the actus reus of rape is, which is precisely the effect of allowing a complainant to set conditions that affect the legal validity of her consent. It is submitted that the unprincipled nature of such a state of affairs causes more problems than it solves; 1) the damage done to certainty in the law and its ability to guide people seeking to stay on the right side of it, and 2) its possible overinclusiveness, may be of greater concern than the laudable goal of protecting sexual autonomy. Secondly the key questions are: 1) what kind of conditions can be set, deception as to which will act to deprive a complainant of the ‘freedom and capacity’ to choose to consent? 2) When must the condition be fulfilled? To return to the above example, what can a complainant set x or y to be, and when must x or y be fulfilled? Thus far, it is difficult to reconcile the authorities.23 The emerging concept of conditional consent does not sit well with the decision in Linekar. Linekar seems like a case where a condition as to consent was set, broken and yet the defendant escaped liability for rape. Making matters more confusing is that the Divisional Court stopped short of overruling Linekar in Assange, and chose only to engage in a limited reading of the case.

22 23

Sexual Offences Act 2003, s74. Gavin A. Doig, ‘Deception as to gender vitiates consent’ [2013] J. Crim. L., 77(6), 464-468.

109 This is a far cry from the law as it currently stands: because of R(F) v DPP, it may now be possible to make it clear that one’s consent is contingent on any number of conditions, and it is unclear whether these conditions can be set prior to or after the act of intercourse in order to escape liability for rape. Linekar could today very well be decided differently on the basis that the condition of consent was the payment of the £25, and if the court held that the setting of such a condition was acceptable, a conviction for rape would be the only conclusion (upon failing to pay the money). The fact that in R(F) v DPP the offence would be made out upon penetration (assuming the defendant’s intention not to fulfil the condition)24 even though the deception was to an condition that would occur after penetration supports the contention that Linekar would be decided differently today, and suggests that the time of fulfilment of the condition can be set before or after penetration. It is submitted that this is a troubling state of affairs, and seems to veer further and further away from what general morality suggests the essence of rape is. The sheer lack of clarity surrounding the situation is due to the current examples we have being “morally clearcut” cases, with the courts deciding not to acknowledge them as such and therefore failing to provide principled guidance on how the issue of conditional consent should develop. Besides the timing of the condition, it is also unclear what kind of condition can vitiate consent if unfulfilled. This may be even more problematic than the former. Because of McNally, it may now be open to one party to set an attribute of the other party as a condition, as long as it is “fundamental”.25 It is submitted that this is a significant widening as to the conditions that can be attached to consent, and therefore a significant widening of the potential actus reus of rape. While Leveson LJ felt that it was “obvious” that deception as to wealth would not be sufficient to vitiate consent,26 it is submitted that such a conclusion may not be an obvious one to arrive at as the law currently stands. There is again little clear guidance from the courts as to what attribute will be fundamental enough as to vitiate consent. In McNally, there are signs that perhaps gender is the only attribute that can meet this hurdle of fundamentality; Leveson LJ states that “the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male”. If the determinant of fundamentality is whether the nature of the sexual act is altered by the attribute, it is possible that McNally will be limited to cases of gender deception. However, this would only be mere speculation until the courts have another opportunity to clarify the matter. Thirdly, even if the state of the law as it currently stands is accepted, it is in principle under-inclusive.27 Laird gives the example of the girl who deceives her boyfriend that she is on the pill (contraceptives).28 In such a case, the deception is clearly of the same type which the courts found troubling in the above cases, yet the girl will never be liable for rape, simply because she cannot perform the act of penile penetration, even though it seems that in law her boyfriend’s consent will be vitiated. The same kind of behaviour the law finds blameworthy is treated differently in two different offenders

R(F) v DPP [26]. McNally [27] (n18). 26 ibid. 27 n 11. 28 ibid. 25

110 simply because of their gender, and yet deception is a gender-neutral wrong. If this is the current state of affairs, it must surely be unsatisfactory. Lastly, the use of deception to obtain sex is undoubtedly a great moral wrong, and most would argue, probably deserves criminalisation (within limits, as qualified below). However, the principle of fair labelling requires that we do not go overboard with the harshness of our classifications of offenders: some offences are more stigmatic than others, and the sentencing and labelling should reflect that accurately. It is at least arguable that some cases of deception which would today in law be classified as rape, would not be thought of as such by the general public, with the highest social stigma that is attached to such a classification. This is encapsulated in the state of the law after R (F) v DPP, which allows a complainant to set a condition which must be fulfilled after the act of penetration, failure to do so resulting in a vitiation of factually given consent. Depending on what the condition set was, most people would be hesitant to say that the defendant in such a case would be a rapist. They might however be much more willing to accept that such behaviour should be criminalised, though not under the offence of rape. VII. IN WHAT DIRECTION MIGHT THE LAW DEVELOP TO SOLVE THESE PROBLEMS? It is submitted that the best way to deal with the above problems at a stroke is for Parliament to create a new offence of obtaining sex by deception, essentially a reinstatement of the old offence of procurement by false pretences in the 1956 Act. Spencer argues persuasively for an offence of obtaining by fraud, while noting the potential for difficult cases.29 Such an offence would capture behaviour clearly worthy of criminalisation, while acknowledging that their deed is less morally culpable than a rapist’s, and if the offence gives clear guidelines as to what sort of deception will be considered material for the purposes of legally vitiating consent, it will rationalise the law and bring it in line with general morality. It should however also be noted that while morally disagreeable in general, the scope of behaviour that might fall under the catch-all term ‘obtaining sex by deception’ is potentially very wide. Such a new law might be well-minded to differentiate between vague promises made for the purposes of seduction (such as to one’s financial status) and malicious deception that is significantly more morally culpable, criminalising the latter but leaving out the former. Alternatively, it is still within the Supreme Court’s power to overrule Assange and McNally, and hold that the only deceptions that will vitiate consent are those set out in section 76 of the 2003 Act, meaning that section 76 would become an exhaustive list. However, this would be a decidedly unsatisfactory solution and unlikely to occur, as it would mean that people obtaining sex by deception would not be criminally liable at all. The problem here is not that such behaviour should not be criminalised, but that such deceptions should not amount to rape.

J.R. Spencer, ‘Sex by deception’ [2013] Arch. Rev., 9, 6-9.

111 VIII. CONCLUSION In conclusion, the use of section 74 to vitiate consent for deception seems like a fiction, and one that holds great potential to be unduly harsh to defendants, notwithstanding the heinous nature of the crimes they may be accused of. The law is in an uncertain and unsatisfactory state in light of the decisions in Assange and McNally, and until further clarification by the courts or intervention by Parliament, it is likely to remain that way.

____________________