Per Incuriam Michaelmas 2016 by Per Incuriam, Cambridge University Law Society

PER INCURIAM MICHAELMAS 2016

CSPS (CRIMINOLOGY, SENTENCING AND THE PENAL SYSTEM) Bias against black defendants

PRIVACY IN THE AGE OF SOCIAL MEDIA The fundamental right to privacy, enshrined in Article 8 of the European Convention of Human Rights

WHICH WAY IN?

The case for the BPTC as the first step on a varied career

MICHAELMAS 2016 President’s Welcome

PRESIDENT’S WELCOME

Dear Readers,

wondered what an essay that got 80% in an exam looks like? You’ll find out reading the essays in Per Inc. They are carefully selected by the Editors for their excellent quality and serve as a highly useful revision tool.

Welcome back! I hope everyone had a fantastic break across the summer and feels ready and refreshed for Michaelmas 2016.

Most importantly, thank you to Alicia Loh, the Per Incuriam Editor, and her team, for all of the hard work that went into producing this issue across the summer.

For new freshers, I would like to introduce you to Per Incuriam. Known as ‘Per Inc’, the magazine has played an historic role in showcasing the work of the Law Faculty’s most talented lawyers for the last few decades. It is a fantastic platform for young budding academic writers to submit articles to. Incredibly important too, in Per Inc, is the model tripos essay section. Ever

All the best, Jack Lewis

PER INCURIAM Editor’s Message

EDITOR’S MESSAGE

Alicia Loh | Editor

Yukiko Lui | Deputy Editor

Dear Readers,

As you write your supervision essays and prepare for the Tripos examinations, Jasper Wong’s article on five steps to a good exam essay will help you nail that paper.

A warm welcome to Per Incuriam!

We are also pleased to feature nine First Class Tripos essays (marked over 70%), many of which have received Starred Firsts (over 80%). To cater to all years, we have essays for the compulsory subjects, along with selected optional subjects. We are particularly excited to share with you an LLM essay from Vanya Kumar dealing with trademarks.

This term, we are excited to share with you an exciting range of articles to whet your appetites as we embark on the new year and fresh beginnings. We are pleased to have an article on the House of Lords by a team at The Wilberforce Society (a student-run think tank here in Cambridge), exploring the issues currently plaguing it, and possibly policy reforms to turn it around. Rebecca Agliolo’s article, on the other hand, offers insight into privacy in the digital age, and how social media platforms handle our data, focussing on Facebook.

Many thanks goes to the wonderful Cambridge University Law Society Committee for their support and assistance. A big thank you of course to Yukiko Lui, whose hard work and dedication has helped to bring our first issue of Per Inc together as a team.

On the career side, we have two articles. For budding barristers and those seeking to do the BPTC, James Welsh, the joint Director of BPTC Programmes, provides insight into the exciting opportunities that BPTC students have gone on to pursue. Those of you contemplating a non-traditional career will be interested in the article by David Lewis, a recent LLM graduate, as he shares his unique career path into working for international organisations such as the United Nations, providing insight and options for you to explore a outside of law.

Thank you also to Allan Hennessy for his contributions to the publication. Special thanks to Michael Warman, Ben Lock, Taro Tan, Joel Koh, Faith Edmunds, and Sanjana Ayagari for helping collate the question papers! With all good wishes, Alicia Loh for the Per Inc Editorial Team

If you are interested in contributing to Per Inc, drop us a line at per-inc@camlawsoc.com. We accept articles from all, whether you are an academic, professional, or current student, including people from all universities.

Keep in touch! ‘Like’ our Facebook page for the latest legal developments and updates on Per Inc. Facebook: fb.com/CULSperincuriam Contact: per-inc@camlawsoc.com

We also welcome First Class Tripos essays. Please send them typed, and with their respective year, question number, and marks indicated, along with your name and College. 3

CONTENTS

PER INCURIAM Contents

REFORMING THE HOUSE OF LORDS: THE WAY FORWARD DATABOOK: PRIVACY IN THE AGE OF SOCIAL MEDIA WHICH WAY IN? THE CASE FOR THE BPTC AS THE FIRST STEP ON A VARIED CAREER ADVENTURE AWAITS: PATHWAY TO AN INTERNATIONAL CAREER A GOOD EXAM ESSAY: FIVE STEPS CONSTITUTIONAL LAW ‘It is the constitutional task of Parliament to hold ministers and government to account’ Yen Jean Wee | St John’s College CRIMIMAL LAW ‘Common law authorities offer little beyond the contradictory and, at best, half-articulated theoretical explanations of the nature of the connection between the accessory’s conduct and the principal offence.’ (KJM SMITH) Harrison Fookes | Corpus Christi College LAW OF TORT Stephanie Sinclair | Fitzwilliam College LAW OF CONTRACT Taro Tan | Wolfson College CSPS (Criminology, Sentencing and the Penal System) In January 2016, the government announced a review of the criminal justice system to investigate evidence of possible bias against black defendants and other ethnic minorities. Harriet Codd | Peterhouse JURISPRUDENCE Natural law theories show us the need for positive law. Legal positivism is a theory about the character of positive law. So there is no real conflict between natural law and legal positivism. Alicia Loh | Peterhouse EQUITY LAW Joel Koh | Girton INTELLECTUAL PROPERTY Xavier is the owner of a European patent valid in the UK with a priority date of January 2001, which is the basis of his successful business selling wound dressings. He is considering whether to bring infringement proceedings against Yolanda. Ben Lock | Trinity Hall LLM ESSAY Do you agree that free riding, of any sort, on a registered trade mark is unfair? Vanya Kumar | Sidney Sussex College

MICHAELMAS 2016 Articles

REFORMING THE HOUSE OF LORDS: THE WAY FORWARD Zoe Adams, Francois Vanherck, Shani Wijetilaka, Maximilian Campbell, Joshua Richman, Jack LeGresley, Umang Khandelwal What is the wrong with the House of Lords? How should it be reformed? These questions have dominated political discourse throughout the 20th and 21st centuries. The debate over the future of the House of Lords reached its zenith when, in its 1997 manifesto, the Labour Party committed itself to reform. Ever since, there have been many different suggestions as to what reforms are required. Nonetheless, beyond the general consensus that hereditary peerages should be phased out, there has not been any agreement over what further reforms are required.

seems all the more problematic given the low rates of attendance and participation. The gender balance in the Lords has also long been a cause of concern. The sheer number of problems that had been identified illustrate why it is essential to ground any reform programme in a comprehensive theory of the English constitution. The strength of any criticism of the House depends upon the meaning we attribute to the concept of legitimacy, and what exactly we mean when we argue for a more representative chamber. There is a risk that these different criticisms may encourage a departure from the appointment system in favour of an electoral one, simply because legitimacy and popular elections are believed to go hand in hand. There is also likely to be a temptation to address the problems associated with the gender, age and ethnicity imbalance by imposing membership quotas. Such temptations should be avoided unless they are conducive to realising what must be the objective of any reform: to increase the capacity of the Lords to ensure that public policies take account of a wide variety of social interests. Under theorised reforms are unlikely to enhance the legitimacy of the House in the long term if they do not, at the same time, improve the quality of public policy making.

The dominant arguments for reform have consistently drawn on ideas of democracy, legitimacy and representativeness by way of justification. It seems that the Lords is perceived by these reformists to be lacking in one or more of these qualities. Nonetheless, one cannot help but notice that there is widespread confusion about what exactly these different concepts mean, and thus what exactly it means to argue for a more democratic, legitimate or representative House. Criticisms of the House of Lords abound. These range from criticisms concerning the under-representation of the regions, of women, non-Christian religions, ethnic minorities and the non-political professions, to a belief that the composition of the House should reflect either the vote or seat share of the Commons. The persuasive force of these criticisms, however, depends upon whether they can be situated within the context of a cohesive constitutional theory. Any such theory must present a picture of the constitution that not only provides a convincing explanation of the salient features of British constitutional practice, but also is normatively desirable. This means engaging with the reasons for which we wish to retain a bicameral parliamentary system today. The idea is founded upon two main principles: that of ‘checks and balances’, and that of the need for wisdom in government. Many have also argued that an upper chamber could play a useful role as a ‘constitutional long-stop’. Indeed, there may be a strong case for entrusting them with such a role in a system such as ours where the constitution is highly flexible, and important constitutional statutes vulnerable to repeal.

The concerns identified are but a select few of those which dominate the contemporary debate over how to reform the House of Lords. The extent to which these individual problems need to be addressed, and how, depends upon the constitutional theory we believe best describes the English constitution. This is why we must situate the Lords within the broader context of the British constitution, and articulate more precisely what is understood by the terms legitimacy and representativeness, before embarking on reform. The definitions offered provide a useful starting point for this exercise. Conceiving of legitimacy as a combination of input and output legitimacy, and linking the latter with a substantive conception of representation, is a useful foundation from which to build a programme for reform. Such a programme would have as its ultimate objective the improvement of public policy making, and the protection of a broad range of interests in society.

Today, the British constitution is organised around the principle of parliamentary sovereignty. But the replacement of the theory of mixed government has not weakened the case for a system of checks and balance. Nor has it altered the fact that legislation can be improved by the input of expertise and the exercise of independent judgment. Since as early as the 1832 Reform Act, the powers of the Lords have diminished and the power of the House of Commons has grown. The spread of democracy has called into question the existence of an appointed chamber in a modern democratic society. It is generally true that those who have questioned the legitimacy of the Lords have done so on the basis of a belief that popular democracy is the prerequisite to the legitimate exercise of public power. The problem is that legitimacy is not only about procedure. The legitimacy of government depends as much on outcome as it does on having its basis in a popular vote.

The House of Lords is suffering from an identity crisis. This is as much due to short sighted reform efforts as it is to issues of legitimacy. Reform needs to be seen as a priority, conceived as part of a normative vision of the role that the House of Lords could, and should play in the context of the modern British constitution. It is time to recognise that the House of Lords can make a meaningful contribution to our democracy, and defend it against the widespread criticism to which it is subject today. This paper is by The Wilberforce Society (TWS), which is an independent, non-partisan, student think tank, based at the University of Cambridge. It facilitates a unique, mutually beneficial dialogue between Cambridge students and national policymakers, across all areas of public policy.

There has been widespread criticisms of the cost and size of the Lords. The chamber is now the largest upper chamber in the world, and many feel that its size is an obstacle to the day-to-day running of business. This

Read the full paper here including recommendations for reform: http://thewilberforcesociety.co.uk/ reforming-the-house-of-lords-the-way-forward-2/

PER INCURIAM Articles

DATABOOK: PRIVACY IN THE AGE OF SOCIAL MEDIA Rebecca Agliolo | Corpus Christi College

The fundamental right to privacy, enshrined in Article 8 of the European Convention of Human Rights, stipulates ‘everyone has the right to respect for his private… life’. While privacy in any form is a nebulous concept, defining privacy in the context of social media is particularly perplexing. Constricting year-by-year, questions surround what online privacy actually means, and also what it ought to mean. By analysing the approach to user privacy by Facebook, the world’s largest social network, the nature and inherent challenges surrounding social media privacy may be assessed.

It is not so much a vindication of privacy rights as a mediator between the producers of data and its consumers.

How data is collected Google knows what you search for; Facebook knows who your friends are; Amazon knows what you buy. Each day, the Facebook behemoth absorbs 10 billion messages, 4.5 billion hits on the ‘like’ button and 350 million uploaded pictures . Social media wields this ‘big Data’ – large, often unstructured volumes of data, which may be analyzed with technology to expose trends and information – to harvest a complete consumer profile from an individual’s life.

What is privacy? In Britain, privacy laws are tightly entwined with EU legislation. In 1995, the EU recognised the right to online privacy with the Data Protection Directive; three years later, the UK Data Protection Act (DPA) 1998 was implemented. Since then, the Directive has been supplemented by the frequently updated ePrivacy Directive 2002 , which is often vilified as ineffective and inadequate. The DPA, conversely, has not been updated for twenty years, reflecting Britain’s undeveloped conceptions of online privacy and its impotence in dealing with contemporary technological conflicts.

Facebook’s data is as valuable, and as ethical, as a gold mine. Data is commoditized and plundered by companies seeking to advertise. In 2015, Cambridge University discovered that based on Facebook likes, a computer can identify one’s personality better than their friends . Facebook generated $6.4 billion through advertising in the first quarter of 2016, a 63% increase from 2015. In August, Facebook made public a comprehensive list of targeting options for advertisers. A staggering 98 personal data points are available , from ‘users with an anniversary within 30 days’ to ‘users likely to need auto services’.

In the Web 2.0 world, the relationship between online privacy and data protection is interdependent. Data protection describes individuals’ ability to control how much of their personal information is available online, who can access it and for what purpose. The Information Commissioner’s Office (ICO) cites the DPA’s aim ‘to strike a balance between the rights of individuals and the sometimes competing interests of those with legitimate reasons for using personal information’. Though prevalent in the EU Directive on which it is based, the DPA never expressly mentions ‘privacy’.

Although Facebook has recently revamped its Data Policy pages pursuant to calls for greater transparency, the comparison of Facebook’s seemingly innocuous, babyblue blurb with their data processing reality suggests users are being misled and inadequately informed.

MICHAELMAS 2016 Articles

Not only does Facebook collect data from your profile, it also tracks browser activities through the placement of ‘datr cookies’. Moreover, external websites that contain a ‘like button’ automatically affix Facebook’s datr cookies to visitors, whether they click the like button or not. In March 2016, several German e-commerce sites were asked to remove the like button from their website as it violated EU data protection law ; it is only a matter of time before other countries follow suit.

Following the Snowden affair, Facebook has published statistics of governmental requests for information. From July - December 2015, the government made 4190 data requests to Facebook, of which 82% were granted . Though Facebook allegedly screens requests for legal justification, the number of requests has been steadily increasing, and is the third highest in the world. Following the FBI’s hacking of Apple data for the San Bernardino shooting earlier this year, tensions are rife between government, tech giants, and individuals concerned for their data privacy.

Moreover, Facebook has been found to track the browser history of non-users . In June 2016, the Belgian Privacy Commission sought, and failed, to stop this practice. In the Court of First Instance, Facebook was found to contravene the EU Directive, as non-users cannot provide consent nor invoke an agreement without a Facebook account. Unfortunately, the judgment was overturned by Facebook’s appeal: as Facebook is based in and processes data in Ireland, the Belgian Commission had no jurisdiction. Nevertheless, as the initial ruling was based on the EU Data Protection Directive, it is likely that other national regulators may bring cases against Facebook in the future.

Recent Developments Like frogs in boiling water, we’ve incrementally agreed to infringements on our privacy. A new EU data protection framework has been adopted in 2016, coming into force in 2018, aiming to return control of personal data to individuals and make the regulatory environment more transparent. The General Data Protection Regulation (GDPR) aims to harmonize data protection by incorporating expanded territorial reach, Data Protection Officers, and explicit consent. By vindicating these rights, it is possible that Facebook’s data collection will be more strongly challenged, and perhaps the Belgian Commission’s initial

Is this legal? Essentially, without consent (and, for the majority, awareness or understanding), Facebook stalks individuals online. Ostensibly, this tracking is justified by security considerations, thus exempting the need for consent. However, the Article 29 Data Protection Working Party , an advisory body established in correlation with the EU Directive 1995, advises that consent exemption for security purposes is only valid if essential for a service explicitly requested for the user, not for general security.

ruling would be upheld. Only time will tell if it adds transparency to currently murky laws of data protection. Due the UK’s reliance on EU legislation for its data protection, ‘Brexit’ will have an impact on data privacy. The ICO has pointed out that for data to travel between the UK and EU, Britain will have to provide data standards equivalent to the GDRC, similar to ECJ’s Safe Harbour judgment . Due to commercial and legal necessities, it is likely that the GDPR will remain effective in the UK, at least for the time being.

The ‘restricted control theory’ of informational privacy posits that privacy exists if one can limit access to their personal data. A recent survey from ‘Scooptshot’ revealed that over 70% of individuals worry about how social media uses their data . Though you can remove ads you don’t like, Facebook does not allow you to directly opt-out of its tracking methods, nor can you stop their tracking of your interests. Similarly, governments themselves can obtain personal data on Facebook, through legal or illicit means. Thus, control over one’s personal data is limited in a significant way.

Is privacy dead? Mark Zuckerberg has stated unequivocally that ‘privacy is dead’, and that lack of privacy is now a ‘social norm’. Personal lives have melded into the public domain, resulting in competing interests between individuals’ right to privacy and commercial utilization of data.

Legally, Facebook is not technically at fault: users willingly engage, agree to its privacy clauses, and thus consent to their data being farmed. Nonetheless, it remains uncertain whether users are actually aware of what they agree to, and whether their consent is explicit.

Professor Christian Fuchs acknowledged the transformation of Internet consumers into a ‘prosumer’ , who not only consumes a service, but also provides a commodity in return – data. Social media is effectively a transaction: individuals enjoy for free the convenience and connectivity, while Facebook charges the currency of data. Arguably, this is a price users are willing to pay.

Ultimately, the ambiguous interpretation of existing legislation has resulted in inadequate data protection for users.

Implications

If online privacy designates individual control of the availability, use and destination of their data, it appears that privacy is on life support. Facebook illicitly collects mountains of information through the use of cookies, and is virtually unrestricted in doing so. Data’s destination is often unclear, and susceptible to violations from hackers or governments.

Storing information online inevitably engenders vulnerabilities, particularly from hackers and government association. Last July, Ashley Madison, a site for extra-marital affairs, had the private data of 36 million users stolen and published online. Owing to its policy of collecting – and never deleting – personal information, data including names, addresses, credit card transactions and phone numbers was dumped into the web. Subsequent research showed that the site’s security measures were woefully inadequate and highly susceptible to hackers. If Facebook, with its 1.7 billion active monthly users, were similarly hacked, the implications would be devastating.

As our relationship with technology continues to evolve, so too must the laws which govern and regulate it. Through active government, transparent data collection and informed citizens, social media privacy can be resuscitated into the 21st century.

PER INCURIAM Articles

Sources

Gurney, D, (2016). How Facebook Is Using Big Data - The Good, The Bad, And The Ugly - Integrated Multi-Channel Marketing Services’, Alchemetrics [online] Available at: http://home. alchemetrics.co.uk/facebook-using-big-data-good-bad-ugly/

Fuchs, C (2011) ’An Alternative View of Privacy on Facebook’, Information 2, Linklaters, (2014), Social media and the law: A handbook for UK companies, Available at: www.linklaters.com/pdfs/mkt/london/tmt-social-media-report.pdf

Itpro.co.uk. (2016). ‘Facebook hits 1.7 billion monthly active users’, [online] Available at: http://www.itpro.co.uk/strategy/27003/ facebook-hits-17-billion-monthly-active-users

Acar & Preneel, (2015), ‘Facebook Tracking through Social Plugins’ Available at: https://securehomes.esat.kuleuven. be/~gacar/fb_tracking/fb_plugins.pdf

Article 29 Data Protection Working Party, (2015), ‘Opinion 03/2015’ Available at: http://ec.europa.eu/justice/data-protection/article-29/documentation/ opinion-recommendation/files/2015/wp233_en.pdf Court of Justice of the European Union, (2015), PRESS RELEASE No 117/15, Available at: http://curia.europa.eu/jcms/upload/ docs/application/pdf/2015-10/cp150117en.pdf Court of Justice of European Union, (2015), Judgment in Case C-362/14, Available at http://curia.europa.eu/jcms/upload/ docs/application/pdf/2015-10/cp150117en.pdf Digital Single Market. (2016). Public Consultation on the Evaluation and Review of the ePrivacy Directive - Digital Single Market - European Commission. [online] Available at: https://ec.europa.eu/digital-single-market/ en/news/public-consultation-evaluation-and-review-eprivacy-directive

Publications.parliament.uk. (2016). House of Lords - Social media and criminal offences - Communications Committee. [online] Available at: http://www. publications.parliament.uk/pa/ld201415/ldselect/ldcomuni/37/3704.htm Reuters. (2016). German court rules against use of Facebook. [online] Available at: http://www.reuters.com/article/us-facebook-like-germany-idUSKCN0WB1OI Telegraph.co.uk. (2016). Facebook knows you better than your members of your own family. [online] Available at: http://www. telegraph.co.uk/news/science/science-news/11340166/Facebookknows-you-better-than-your-members-of-your-own-family.html

Economist.com. (2016). Daily chart: Government data-requests to Facebook | The Economist. [online] Available at: http://www. economist.com/blogs/graphicdetail/2015/11/daily-chart-11

The EU General Data Protection Regulation (2016), Allen and Overy, Available at: http://www.allenovery.com/SiteCollectionDocuments/Radical%20 changes%20to%20European%20data%20protection%20legislation.pdf

Loc.gov. (2016). Online Privacy Law: United Kingdom | Law Library of Congress. [online] Available at: https://www.loc.gov/law/help/online-privacy-law/uk.php

Washington Post. (2016). 98 personal data points that Facebook uses to target ads to you. [online] Available at: https://www. washingtonpost.com/news/the-intersect/wp/2016/08/19/98personal-data-points-that-facebook-uses-to-target-ads-to-you/

Govtrequests.facebook.com. (2016). Facebook. [online] Available at: https:// govtrequests.facebook.com/country/United%20Kingdom/2015-H2/

Directive 2002/58 on Privacy and Electronic Communications, Available http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32002L0058

Govtrequests.facebook.com. (2016). Facebook. [online] Available at: https://govtrequests.facebook.com

MICHAELMAS 2016 Articles

WHICH WAY IN? THE CASE FOR THE BPTC AS THE FIRST STEP ON A VARIED CAREER James Welsh | (Joint) Director of BPTC Programmes

The Bar has always held a certain mystique. Our heartland in the Temple has been a global film set (Downton Abbey, Mission Impossible, The Da Vinci Code, Shakespeare in Love, and so it goes on), but finding it is curiously tricky, almost magical – a bit like entering through platform 9 ¾ . With the wigs and gowns, and alumni such as Gandhi, it’s no wonder that we are seen as a rather exotic breed.

working in a firm providing bespoke legal advice beyond crime and made an application to one of the most famous of all firms for good private client work, Mishcon de Reya. She was given a job, and is now a litigation partner. She acts on a wide variety of private client matters (of which very little is criminal work). These first two examples are of those who obtained and completed pupillage. That they can move across the profession is perhaps of no great surprise upon reflection. But with pupillages scarce, what then? Would someone not be taking too big a risk in doing the BPTC without pupillage in the bag? The route is tough, but the path is by no means a dead end. Mark Beeley did the BVC, but not pupillage. He is now a partner at Vinson & Elkins, conducting multi-million pound arbitrations in the energy sector. He says that arbitrations are good examples of legal activity for which barristers and solicitors compete. A solicitor well trained in negotiation and presenting is in pole position. He is clear that his Bar training was the ideal launchpad for the very good work he now secures.

To become a barrister, the traditional pathway has been to have wanted nothing but to be a barrister from childhood, and to have no intention of doing anything other than being a barrister until decrepitude (and in some cases – beyond). But it seems that the 21st century has now touched the Bar and career paths are less a case of climbing into a lifelong bubble, and more like passing through the revolving doors which characterise other employment sectors. This seems to me to be both healthy and reassuring. The DNA of training for the Bar has been, and continues to be, based in communication skills. Much more so than the LPC. These skills are more sought after than ever - in law and beyond. This article is aimed at demonstrating the wide range of career paths that can flow from a BPTC qualification (or its very similar forerunner, the BVC). The cases I cite below go no further than students I have taught or with whom I have come into contact.

Those who do not take pupillage are not sniffed at or seen as rejects. I am aware of ex-BPTC students, without taking pupillage, who have training contracts at firms such as Eversheds, Allen & Overy, King and Wood Mallesons, and Addleshaw Goddard. The appeal of BPTC qualified students goes beyond simply the Bar and the solicitor’s professions. Carl Fain did not undertake pupillage on completion of the BVC, but rather went to PricewaterhouseCoopers (PwC) on completion of his BVC, to do management consultancy. I remember him telling me at the time that the selection process for PwC seemed designed for those who had had Bar training. The candidates had to distill a mass of information to clear issues and concise points. That’s what we teach for the Bar. Presentations were required, both written and oral, and it was clear the high regard in which these professional skills were held. He said he didn’t think that the undergrads stood a chance. Having been at PwC for a year he then did take pupillage. He was phlegmatic in saying that he could easily envisage a career where he had stayed in management consultancy, and would have thanked his Bar training for a great kickstart to this career. The BPTC develops the skills of giving advice on legal risk. There is only a short step sideways into giving advice on financial risk, and indeed regulatory risk.

Let’s start conservatively. If one is torn between becoming a barrister and a solicitor, what is the right way into the profession? Well good candidates now seem to move increasingly effortlessly between the Bar and employment as a solicitor. Jasmine Fisher’s case seems a good example. On completion of the BPTC, like many others, there was a bit of hard graft before pupillage came. Whilst on pupillage, she worked on a case where Freshfields were the instructing solicitors. She liked them, and they were impressed with her. She went directly from pupillage into employment with them as an associate. She values her BPTC training, and has enjoyed the badge of quality that her training gave her. Victoria Pigott started off at the Bar cutting her teeth on criminal work in the magistrates’ and subsequently the Crown Court. She liked many aspects of the role, in particular building strong relationships with clients she had over a longer duration when conducting larger fraud cases. She wondered about

PER INCURIAM Articles

Carl’s account was echoed very strongly by Anjeza (Annie) Ahmagjoka (a student from the BPTC now working at Coutts Bank), Peter Sanderson (now working as Head of Blackrock’s Financial Markets Advisory), and Katie Pollard (at the BBC). Neither Peter, Katie nor Annie did pupillage, but proudly defend their Bar training and indicate that any job which involves giving advice on risk is founded on the skills taught on the BPTC. Most advisory work is written, but often there is the need to give oral presentations to Boards, CEOs, regulators, government departments and other stakeholders. Imagine the job Katie has of explaining the risks of producing ‘Top Gear’ when there are up to 350 million people in the world wanting to watch auto mayhem! The Bar does not have the monopoly on high stakes persuasion, but Bar training is surely the industry leader in providing the training in the necessary persuasion skills. All three are still proud of being amongst the strongest of their peers in these areas, and their BPTC training was formative in their development.

On the BPTC at BPP, we are focused on equipping students to succeed in gaining pupillage and converting that into tenancy. A number of top sets, such as Matrix, Doughty Street and Fountain Court have well over half their tenants (since 2008) coming from BPP. But to bolster employability and reduce the risk of taking the BPTC, we have the following provisions in place:

The study of ‘black letter law’ helps in the practice of that area of law. Increasingly though, the specialist areas of law are being learned ‘on the job’ and the best training to bridge academia and a professional life, is focused on skills. The Bar seems like such a specialised and closed world, but I suggest that the skills of the barrister are actually very portable. The skills training on the BPTC represents very broad and useful postgraduate training which many employers would welcome seeing on a candidate’s CV. Some of those who are deeply within the bubble of the Bar have not yet fully appreciated the transferable value their own skill set, and would seek to ward off those proposing to invest in the BTPC’s skills training.

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We offer the LPC (or indeed any other law school or business school course) free of charge to those who do not obtain pupillage within 6 months of successful completion and wish to cross qualify.

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We offer, free of charge, an upgrade of the BPTC to an LLM (by doing more legal modules) or an MA (by taking business school modules) to enhance CVs.

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We offer a ‘practice ready’ module, designed to make candidates more commercially aware. It is optional and again, free of charge. One element of the module is membership of ‘High Stakes Persuasion’, an online community with lots of engaging content to enhance transferable skills.

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We offer exclusive internships to BPTC students. (Our first internship programme is with Duke Corporate Education, who train the managers of global companies such as Microsoft, Google and Disney.)

James Welsh is a barrister (1994) at 9 Bedford Row, and (jointly) the Director of Programmes for the BPTC at BPP University. He will happily take any enquiries on jameswelsh@bpp.com.

MICHAELMAS 2016 Articles

ADVENTURE AWAITS: PATHWAY TO AN INTERNATIONAL CAREER David Lewis, MCL | Sidney Sussex College Your first international job

The other potential starting point are direct hires by international organisations into legal roles; however, those jobs often require you to have several years of international experience under your belt. The Union of International Associations estimates that there are around 68,000 different international organisations. Given the magnitude of opportunities this presents it is always worth checking out lesser-known organisations for potential law related roles. Always check the different websites and advertisements of each UN Agency or independent international organisation for roles since they each maintain their own direct hire systems that are totally separate from the central INSPIRA system for direct hiring by the UN Secretariat (www.un.org/en/peacekeeping/about/work.shtml).

If Barristers, Solicitors and Legal Executives are the traditional legal careers then the most often thought of alternative roles are the in-house counsel and legal academic. If one is willing to look further afield there is also the possibility of having an alternative legal career internationally. Despite slow hiring in the traditional legal market there is an abundant world of options open to lawyers in careers where law studies are needed to support their work or a law degree is a significant advantage to candidates. For instance, the world of public international law and in particular development and peacekeeping support roles ‘in country’ with international organisations and NGOs offer a plethora of interesting opportunities for those graduating with a law degrees. The great thing about these opportunities is that they are not contingent on being qualified in any particular jurisdiction and most often only require a basic degree. They are however very much contingent on the right attitude and flexibility — desire a fascinating job: will travel anywhere.

I sat for the then National Competitive Recruitment Examination, which today is known as the United Nations Young Professionals Program. To participate, firstly, your State has to be on the list, and then you have to get convoked to take the exam. After a lengthy written general and specific legal examination, oral examination and interview process you could get on a special roster where you could get a job at the P-2 or P-3 level, which is not necessarily a job in a law related field. For instance, I was initially recruited into an economic role and moved into document vetting and management. Many people wait years on that roster before securing a position (although supposedly it has improved under the new system), while I know of many interns who find a position directly after their internship despite the terms of the internship stating unequivocally that they cannot be employed until six-months after termination. It would seem from experience that if you prove yourself essential you can often get hired on a not-so-exceptional ‘exceptional’ basis such as short-term contracts or other special consultancies that will eventually provide you with an ‘unofficial’ pathway into the organisation. Resultantly, as an intern coming through the back door, you might actually have much more power in selecting which legal role you wind up working in and getting hired for a paid a whole lot sooner (most internships with the UN are unpaid). Even if you are going to try the front door, getting an internship can be helpful experience if you can get the funding to complete one for a few months.

Having worked as an election observer with OSCE, at the UN Secretariat in Bangkok and in two EU peacekeeping missions in Kosovo and Georgia, I learned that the thing about international careers is that there are few obvious pathways. Certainly the university career service is often ill-equipped to logically point out the options for interested candidates. It can be confusing to even find out where to get started since it seems that people enter these roles from just about everywhere — through consultancies, examinations, internships, and even as UN Volunteers. It is therefore useful to understand the relative merits of several potential entry points to a prospective role related to law with an international organisation or NGO.

The Front Door versus the Backdoor After several years of litigation work in traditional legal roles, I sought employment with the United Nations. I didn’t really know anything about international careers but I was pretty sure that I desired one. I looked for obvious pathways that would allow me to get a job through the front door. Many international organisations run Young Professionals Programs and that was my starting point as well (See, http://iocareers. state.gov/Main/Content/Page/young-professionals-programs).

Recruitment for UN peacekeeping missions is a world unto itself, although you apply through the same careers portal mechanism as direct entry (http://www.un.org/en/ peacekeeping/about/work.shtml). These missions offer many

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law related roles ranging from Administrators and Board of Enquiries Officers to specific political and legal posts. All peacekeeping missions operate within a very stringent and specific legal framework the interpretation and implementation of which requires a vast amount of legal skill sets. Most roles require at least an application on INSPIRA, an exam, and a panel interview to be selected for the position and health, academic, and reference checks before deployment. Often peacekeeping roles, particular hardship ones, can provide an easier pathway into the organisation (especially during a crisis where there is a surge in capacity) where you can build meaningful international legal experience while proving your commitment to this type of work in a less than convivial place. It should be noted that these posts do require you to have relevant experience, often also experience from the field. That being said, working closely on law related issues with the local populations of Kosovo proved to be some of the best and most rewarding experiences of my career. The other advantage of UN peacekeeping applications is that even if you are not selected for the role you can be retained for several years on a backup roster of qualified candidates that may give you preference for selection in future vacancies. It is also good to remember that regional organisations such as the European Union and African Union have their own pool of peacekeeping personnel and own recruitment systems.

many positive interactions with local people and engagement with the election material generated my enthusiasm for this type of legal work. I could also sense that our presence mattered since the very fact we travelled thousands of miles to volunteer underscored the importance of the election to local people. Election observation is a wonderful way to have a taste of an international deployment in a highly legal and political context without the commitment required of other types of jobs or missions. There are many international and local NGOs that participate in international Election Observation, however the main international organisations that do frequent large-scale missions are OSCE ODIHR and EUEOM . Short term observations can be for as little as a week and long term missions can be several months in duration. In the UK recruitment for election observation missions with the OSCE is done by SOLACE and the Westminster Foundation for Democracy currently does recruitment for EUEOM . If you are thinking about getting selected for short term missions it is best to do a course in this topic to increase your knowledge of the field and demonstrate commitment. A good one is the one run by ZIF or EIUC or EUODS .

Imagine the possibilities Since international legal careers rarely offer candidates clear transparent step-by-step processes, pursuing these opportunities requires creativity, flexibility perseverance. That being said, more than a handful of people have gotten their start by literally showing up ‘in country’ on the doorstep of a crisis or mission ready to offer their services. Except for a handful of persons selected for career tracked Young Professionals Programs, the first couple of years will often be a struggle of trying to find the right career path. Unfortunately, to initially get in the door at ground level one often has to balance how far away from home you are willing to be, how much hardship you can undergo, and how much unpaid/underpaid work you can sustain. While these factors will certainly make an international legal career prohibitive for some they will offer invaluable field experience opportunities to those willing and able to submit to these discomforts. In the alternative world of international legal careers there is no certainty of progression from associate to senior associate to partner. Networking and LinkedIn are great tools for finding out about career trajectories for international legal careers and understanding how people got started and navigated their way to a specific role.

Side Doors Another way into international legal work is the side-door. While side-doors are all over the place, the best ones are often the roles created by your State to facilitate entry into certain types of missions or organisations. Many governments “second” legal positions to international organisations and missions in connection with their foreign policy objectives. For instance in the UK many of these seconded roles are selected by the Stabilisation Unit , which maintains a roster of Deployable Civilian Experts, including several legal related roles. Another possibility is the Junior Professional Office Program , where many states, including the UK since 2014, send preselected young professionals into entry-level positions with international organisations for a period of at least 2 years. These roles often give people the credible experience they need to continue in that role or transition into another type of international legal career. These positions are filled through direct application, usually through the foreign ministry of a State that participates in the JPO program.

Out of the House, but in the House

If you need further details on anything contained in this article or you have a specific question about beginning an international legal career feel free to contact me at davidlewis@cantab.net.

I know it sounds weird, but UN Volunteers actually get paid, albeit much less than similar staff who do the same role. (See, https://www.onlinevolunteering.org/en) UN Volunteers can often allow people with limited international experience to secure their first field position. It is great for gaining experience with the UN agency to which you are assigned. I got to know people who started as UNHCR rookies in refugee matters and became relative experts in helping Thailand’s diverse refugee populations. These assignments are time limited. And although you are doing the same work as UN colleagues, they also come with an unwritten stigma in the ‘volunteer’ label, making it hard if not impossible to transition from one of these roles into a comparable fully paid position with the same organisation. UN Volunteer roles do give you valuable experience, but most often do not offer a structured career path.

Sources http://www.osce.org/odihr/elections/ http://eeas.europa.eu/eueom/becomean-observer/index_en.htm http://www.solace.org.uk/InBusiness/InternationalElections/ http://www.wfd.org/what-we-do/elections/ http://www.zif-berlin.org/en/training/zif-trainingcourses/short-term-election-observation.html https://eiuc.org/education/training-seminars/ international-electoral-observers/fees.html http://www.eods.eu/how-to-apply

Knock on the Door My first ever international legal work experience was as an OSCE Short Term Observer to the 2008 Presidential Election in Azerbaijan. I was an observer in the Barda region where

MICHAELMAS 2016 Articles

A GOOD EXAM ESSAY: FIVE STEPS Jasper Wong | Peterhouse

In an exam situation, it is essential to stay calm. One way of achieving calmness is by sticking to a plan that you mechanically follow. I outline one such plan below.

be a polished version of your plan. You take the reader through the argument, each step corresponding to what you will say in a later paragraph. You end with the conclusion you will reach.

(1) Read the Question. What is the examiner getting at? Ignore the form: look to the substance. What is the writer try to say with this question? Highlight the key words; rephrase; break the question up into different parts. Make sure you know what you are asked to do.

(5) Main body of the essay. This should be a mechanical activity. Your mind should be completely familiar with your argument: all your attention can now be placed on sentence structure and handwriting. The only tip is to refer back to the question now and again: this is a failsafe device, so that an examiner who doesnâ&#x20AC;&#x2122;t agree with you can see that you are answering the question.

(2) Materials. Very quickly jot down the materials you are expected to mention. Take a broad approach at this stage. There are lots of things you can mention by the wayside, to earn extra points. Keep them on record now, so that you know where to look if you need them.

For an hour-long closed-book essay, I would recommend spending the first 10-15 minutes on reading the question and planning the answer. Essays are seldom won or lost on length. With minimal practice, you should have an idea how much you will write. What makes writing difficult and interesting is the precise way you explain your ideas. Often shorter, more succinct essays are more powerful than longer, conversational pieces.

(3) Planning. This is what makes or breaks exam essays. You need to make an argument: ideally a fresh argument targeted at the exact question the examiner has in mind. Once you have the steps of the argument, you can make a plan. Use numbers and sub-headings to outline your argument. Then think about the sub-arguments you need to make to support the points in your essay. Then think about the examples you would like to mention, to liven up the essay.

Finally, remember the whole thing is very difficult, and that no essay is perfect. This is actually the third time I am writing on this topic, and obviously itâ&#x20AC;&#x2122;s still far from perfect! It is just a difficult craft that one can improve with practice: like classical singing or dancing in a nightclub!

(4) First paragraph. The first sentence should answer the question: usually yes or no, only in more words. The rest should

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MICHAELMAS 2016 Constitutional Law

The answers provided are not model answers. They are mere examples of answers that received a First Class. Do keep the following in mind: (a) There is more than one way of constructing a First Class essay. Each example shows only one way of constructing an answer of the relevant Class. (b) The examples may contain incorrect statements of law, and incorrect references. The examples may omit relevant points and relevant citations of legal materials. The mark awarded to any given answer reflects an evaluation of all the characteristics of the answer, including errors and omissions. Obvious typos have been corrected for publication.

CONSTITUTIONAL LAW ‘It is the constitutional task of Parliament to hold ministers and government to account’ Discuss the factors and mechanisms that make Parliament effective and those that make it less effective than it might otherwise be. Yen Jean Wee | St John’s College In the absence of a ‘written’ or codified constitution in the United Kingdom, considerable responsibility for upholding fundamental constitutional values and ensuring that there are sufficient checks against unconstitutional conduct is borne by political constitutionalism, as distinct from legal constitutionalism – political institutions, actors and processes being entrusted with upholding the constitution. Within the political constitution, Parliament plays a critical role in ensuring that the executive is held to account – indeed, this is (part of) its ‘constitutional role’. This essay will argue that the effectiveness of Parliament in discharging this role depends on what can broadly be classified as institutional, as distinct from political and administrative or bureaucratic, factors: there are a number of institutional mechanisms in place that enhance Parliament’s capability to supply effective scrutiny, but the efficacy in practice of these mechanisms must be qualified by political considerations and bureaucratic structures that render them less effective than they might otherwise be.

proposed Bills for their compatibility with constitutional values – provide a more in-depth form of scrutiny in specific areas. Beyond this, Joint Committees across both Houses of Parliament, such as the Joint Committee on Human Rights (JCHR), further enhance the ability of Parliament as a whole to ensure the executive’s compliance with standards of legitimacy and good governance – the JCHR in particular plays an important role in supplementing the mechanisms for protecting human rights provided by the Human Rights Act 1998’s section 19 requirement that Ministers must make statements of compatibility of proposed Bills, scrutinising Bills for potential incompatibilities and thus helping to ensure that legislation incompatible with human rights cannot be passed covertly without the government being held – publicly – to account. The reports produced by Select Committees are also influential and the government aims to produce a considered response to each report within 2 months; for example, the government is in the process of responding to recent Select Committee reports on the Criminal Justice Inspectorate and the prisons system. Select Committees themselves can also provide a powerful source of political restraint, as when the government’s Asylum and Immigration Act 2014 received considerable criticism, including from a number of Parliamentary Select Committees, and this eventually led it to withdraw its proposals.

Institutional factors and mechanisms that make Parliament effective First, it must be acknowledged that there is an extensive network of accountability mechanisms that operate so as to allow Parliament to hold government and ministers to account. Although Parliament is often unable to supply a meaningful form of control over the executive, these mechanisms enable it to exert a more subtle influence over the government’s agenda, giving rise to what can be called a “constructive institutional tension” that encourages restraint on the part of the executive itself.

In addition, the Backbench Business Committee – established as part of the Rebuilding the House package of reforms in 2010 – and the election of Select Committee chairs by secret ballot, also introduced as part of that package of reforms, have enhanced the independence of these mechanisms from the executive and thus their ability to provide effective scrutiny. The Backbench Business Committee in particular has enabled MPs to bring issues that might not otherwise have been brought to the forefront of political discourse to be discussed by setting aside 35 days in each sitting of Parliament for backbench business. As Howarth argues, the Backbench Business Committee has already fulfilled the hopes of those who wanted to see greater discussion on topics that party leaders sought to avoid.

The first of these mechanisms is the presence of Select Committees within Parliament, which supply a much more searching form of scrutiny than Parliament as a whole can provide on a regular basis. Departmental Select Committees have a membership drawn from different political parties so as to ensure independence and reduce partisanship as far as possible; each is attached to a governmental department and oversees its activities. Other committees like the House of Commons Public Administration Committee – which oversees the work of government and reports on its findings – and the House of Lords Constitution Committee – which scrutinises

Political factors that qualify Parliament’s effectiveness The above, however, must be qualified by the consideration that Parliament’s effectiveness in holding the executive to account is constrained by the prevailing political climate and

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Administrative and bureaucratic factors making Parliament less effective

the political complexion of Parliament itself. The extremely close relationship between the executive and Parliament means that Parliament’s efficacy as a scrutiny mechanism is necessarily limited by its inherent lack of independence from the body it is supposed to be scrutinising. The ‘dual function’ of Parliament in the constitution – to ensure executive accountability but also to sustain the executive – helps to explain why the executive is sometimes considered to be an ‘elective dictatorship’ – the executive dominates Parliament, and around one-sixth of the members of Parliament are members of the governing administration. This means that Parliament is naturally partisan, and often tends to become what Polsby described as an “arena legislature” for political theatre and posturing. This is illustrated vividly by the lack of efficacy of Parliamentary Questions – supposedly a mechanism for ensuring more effective scrutiny, but in practice all too often an opportunity for rival political parties to attempt to one-up one another rather than engaging with important issues of the day.

For Ministers in particular, Parliament’s ability to ensure accountability is limited by the fact that in the modern complex structure of bureaucratic government, the constitutional convention of ministerial responsibility to Parliament has become, in Drewry’s words, “largely fictional”. With the increasing contracting out to the private sector, spearheaded by moves like the 1988 Next Steps programme, the line between operational and policy matters – the latter for which ministers traditionally assume responsibility – is increasingly blurred. In addition, the increasing bureaucratization of government departments, with more and more important tasks left to civil servants, can often shield both Ministers and civil servants from accountability. As Freedland has argued, the Carltona doctrine – under which Ministers take responsibility for their civil servants – cannot really be meaningfully applied when the chain of accountability is so strained. For example, the Howard-Lewis Affair in 1995 demonstrates how Ministers seek to shift responsibility to their departments and agencies, leading to a difficulty in holding them meaningfully to account.

Political developments and responses to Parliament’s attempts to exercise effective scrutiny can also hinder its capabilities. The recent Strathclyde proposals are one such example – they recommend that the House of Lords be stripped of its powers to veto secondary legislation, in response to the Lords’ refusal to pass a piece of delegated legislation. This has been seriously criticised by Parliamentary Select Committees as this would further shield the executive from accountability and undermine the Lords’ ability to supply a particularly independent and non-partisan form of scrutiny. More generally, the reluctance of political actors to cooperate with Parliament – for example in its requests for information – by giving only evasive non-responses or even invoking the Freedom of Information Act 2000 – obstruct Parliament’s efforts, for example when the government twice vetoed attempts to seek disclosure of the Iraq cabinet minutes.

Conclusion In conclusion, the institutional mechanisms available – like Select Committees and Parliamentary Questions – must be seen in the broader context of the political and administrative considerations that undermine their effectiveness. Ultimately, therefore, effective scrutiny depends on a sort of “institutional morality” (Jowell) – where government is willing to cooperate with Parliament in the shared endeavour of ensuring accountability.

MICHAELMAS 2016 Criminal Law

CRIMINAL LAW ‘Common law authorities offer little beyond the contradictory and, at best, half-articulated theoretical explanations of the nature of the connection between the accessory’s conduct and the principal offence.’ (KJM SMITH) Discuss. Harrison Fookes | Corpus Christi College

Generally the criminal law associates with criminality the requirement that it is D’s own personal conduct which directly causes the harm. This is why liability for secondary participation is particularly anomalous and complex – it is P (the principal) and not D (the secondary party) who commits the definitive act. What, then, is the relationship between D’s conduct and P’s offence? This essay will argue that in light of the common law’s confused and contradictory explanations – even after the celebrated decision in Jogee – we must muse for ourselves on the doctrinal justification we desire.

(No. 2) the conduct of P must in law therefore be treated as breaking the chain of causation, given P is (presumably) a free and informed actor. Secondly, Lord Toulson himself retreated from the causation analysis in the subsequent judgment of Stringer, a clear indicator of its fallibility. The alternative proposed by Lord Toulson in Stringer is the archetype of Smith’s ‘half-articulated’ normative justification – there exists ‘connection’ between the conduct of D and P’s offence, therein justifying criminalisation. This is in effect a truism; of course there is connection in normal complicity. But this is trivial; what we want to know is the nature and nuances of this connection. If some abstract and esoteric conception of connection were sufficient, the net of criminal liability for catching those liable as secondary parties would be wildly broad, a notion which the courts clearly desire to move away from given the abolition of joint enterprise liability (JEL) in the recently delivered judgment in Jogee.

The most rudimentary conception of the relationship is to describe it as one of some causal potency – that D’s conduct causes P’s offence. The early case law rejects this notion – in AG’s Ref. No 1 of 1975 the court unanimously held that only for procurement under s8 of the Accessories and Abettors Act 1861 (AAA) was such causality required for conviction. The recent case law, however, threatened to reintroduce this elementary analysis; in A, B, C and D Lord Toulson stated that we hold D to have caused P’s result in cases of secondary participation. This statement is unsustainable on two levels. Firstly, it is unclear whether Toulson refers to actual legal causation or merely an imputing of the relevant causation. It is clear that D is a ‘but for’ cause under White, but that is scarcely sufficient normative justification to uphold the former argument given the multitude of de minimis ‘but for’ causes which operate in every offence. The latter should similarly be rejected on the basis of its being a pure legal fiction – such legal fictions are the antithesis of the principled justification we are searching for in this essay. Indeed, Virgo rightly points out that in light of the causation analysis espoused in Kennedy

What other normative justification is given in the case law, then? The judgment in A,B,C and D muses on the idea of association vis-à-vis the now (thankfully) extinct JEL. The idea is that D, in agreeing to offence A, was sufficiently associated with offence B (as performed by P in the commission of A) that he could be liable for B as long as he foresaw it as a possibility (Chan-Wing Siu) and it was performed in a way not fundamentally different to that which D foresaw (Powell and Daniels). Simester conceptualises this as a change in D’s normative position vis-à-vis the second offence, justifying his liability in a sort of quasi-constructive liability for crime B which he merely foresaw. It is submitted that though this analysis

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seems prima facie sustainable, Simester misses the nuance of how such ‘normative position’ arguments play out in English criminal law. Where we impose constructive liability on D on the basis of his altered normative position, it is usually as a consequence of some further harm inextricably bound up in the intended harm which D autonomously perpetrates – for instance, the GBH rule for murder. In such a case, whether V dies (and constructive liability is activated) is contingent on the arbitrariness of luck, and importantly luck which D brought upon himself. This intimate ‘association’ was not necessarily present in the (former) JEL – it is hard to see the association between D’s and P’s crime A of burglary, and P’s crime of murder. Even where they move closer (say battery and murder) the nuanced distinction lies in the fact that A is entirely at the mercy of independent agent B – he could even have been liable where he actively discouraged P from perpetrating crime B. Moreover, the closer in nature the two offences converge, the greater the normative justification of ‘association’ required, given D is going to be liable for a sentence of the same relative magnitude for crime A as he would for crime B.

Does Jogee itself give us the clear normative justification we seek? Regrettably, for all the it does well, Jogee does not. It is submitted, however, that the court’s treatment of secondary participation gives us an insight from which to try logic the desired explanation. Given the continued existence of normal complicity in much the same form as operated pre-Chan WingSiu (and Carter and Richardson vis-à-vis knowledge of the offence; it is submitted that Johnson v Youden and National Coal Board remain good law in that respect, notwithstanding a lack of explicit endorsement in Jogee) Lord Toulson’s ‘connection’ hypothesis (though vague) remains, whilst neither causation nor association can be considered adequate. A more nuanced and satisfactory resolution, then, is perhaps a refinement on the Stringer connection – ‘endorsement’, as Krebs argues for. My conception of endorsement differs from that of Krebs, but it is submitted that the idea of ‘endorsement’ might explain the enduring position of normal complicity (where, as Ormerod points out, D lends his ‘unconditional support to P’ notwithstanding that he need not necessarily intend the completion of the offence – under Jogee, D need only intend to assist, encourage or procure the offence were P to commit it, not necessary intend that P does in fact commit that offence) but the abolition of JEL as it existed under Chan Wing-Siu (given foresight cannot sustainably be justified as changing D’s ‘normative position’ vis-à-vis P’s independent offence in such a way to constitute active ‘endorsement’).

This is why the ‘association’ justification under A, B, C and D and Powell and Daniels is, though superficially appealing, insufficiently nuanced to explain liability in secondary participation. This is especially apparent in light of Jogee’s resigning JEL to the dustbin of history – it is difficult to buy Virgo’s justification that the ‘association’ explanation for JEL can be equally applied to normal complicity where the court has just ruled definitively that such ‘association’ does not generate sufficient culpability for criminalisation of D for P’s independent offence.

MICHAELMAS 2016 Criminal Law

LAW OF TORT The alleged ‘strict liability’ of the rule of Rylands and Fletcher is a superficial theory at best. Due to the excess of defences available, the number of requirements and the introduction of the non-natural user, the practical purpose of the rule has been diminished significantly. The UK should follow in Australia’s footsteps, and be rid with this rule all together. Stephanie Sinclair | Fitzwilliam College

Defences:

the scope of the rule greatly. In Read v Lyons, the explosion occurred within the confines of the defendant’s land, injuring the claimant. However, the claimant could not bring an action, as, according to the rule, there had been no escape. This ‘arcane’ restriction meant that if the claimant had been on adjoining land when injured, the claim would have succeeded. This arbitrary requirement is necessary to access the rule, clearly evidencing the definitive lack of any strict liability. Critic Fleming argues that this was an outrageous decision, as it ‘stunted any development of strict liability for ultra-hazardous activities’. Thus, not only did the ruling in Lyons introduce an ‘indefensible restriction’, but it also severely limited the development of the law’ developments which would have been very beneficial to the improvement of public safety.

Designed to impose strict liability on people who keep dangerous things, that if escaped, could cause mischief, the rule is significantly limited by the vast number of available defences. An Act of God, acts of third parties or having a statutory authority to do so all absolve any liabilities if an escape were to occur. As a result, the number of situations this rule applies to is limited greatly; not all keepers of ‘things of mischief’ are held to a strict standard, as their actions can be excused. While in the case of Perry rain was classed as an act of God, children setting off an explosion have also been classed under the third party interference defence. These defences are indeed ‘indefensible restrictions’ as they limit the scope of the act to a very limited number of defendants.

Non-natural user requirement:

Defences and carelessness:

By introducing the ‘non-natural user’ requirement, Cairn aimed to clarify the rule and thus improve its ‘practical significance’. However, this only proved to be detrimental. By adding yet more requirements the rule was only distanced further away from its alleged strict liability element. As well as this, the non-natural user requirement made the rule more convoluted, and only further limited the already narrow application of the rule. The non-natural user requirement only forced the rule further into the shadows of ‘its former self’, and evidences the need to abolish this rule.

Some critics, as a result of the overly-large scope of defences available, suggest that this encourages keepers of dangerous things to act more carelessly. The overly protectionist nature of this rule may mean defendants do not adopt as high a standard of care in relation to ensuring an escape does not occur, as what motivation is there to take every possible precautionary step when multiple defences will protect the defendant in a large variety of circumstances? A rule that was meant to deter people from keeping things of mischief may actually be having the opposite effect, a point that clearly highlights the ‘lack of rationale’ of this rule.

Conclusion: It is thus evident that the Rylands and Fletcher rule is, as argued by Nolan, ‘arcane’ and has a multitude of ‘indefensible restrictions’. The number of defences, the lack of strict liability and the introduction of additional requirements have all limited the scope of the rule to such narrowness that it indeed lacks ‘practical significance’. However, it should be argued that Nolan does not go far enough in his criticism of the rule; he fails to note that the rule is dangerous. The over protection of defendants and the lack of truly strict liability leaves society in a very vulnerable position. By providing defendants with such a large safety net, there is little motivation to take every possible precaution to prevent an escape, and thus leaves society unprotected against the peril of keepers of things of mischief. Not only are the restrictions indefensible, but so is the rule as a whole. This rule has no place in society, and should be abolished.

However, more importantly, it is indefensible that this rule may jeopardise the safety of the public; if the wind blew down a wall and a tiger escaped and killed a young child, there would be no repercussions under this rule for the keeper. As well as being ineffective in regards to imposing strict liability, it is out of line with society’s moral compass; through incremental changes the rule has lost he single element that gave it a purpose. Now, it is indeed a ‘shadow of its former self’, a shadow that overprotects defendants, encourages carelessness and puts society in grave danger.

Strict liability In the case of Read v Lyons, strict liability was definitively detached from the Rylands and Fletcher rule, a result that greatly reduced the ‘practical significance’ of the rule. It was in Read v Lyons that the rule developed to include the requirement of an ‘escape’ of the thing of mischief. This introduction of a prerequisite in order to access the rule limited

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LAW OF CONTRACT ‘[I]n England, there are relatively few restrictions on the right of termination [the breach]. Where the defaulting promisor is in repudiatory breach, the injured promise enjoys a broad ability to terminate. This facilitates his expeditious release from the contract, enabling him to put his resources to better, potentially mitigatory, use elsewhere. It reflects the wider policy in English law… that contracting parties should not be tied together when their contract has failed.’ (ROWAN). Discuss. Taro Tan | Wolfson College

It was held in White & Carter that an innocent party (IP) has an unfettered right to elect following breach. This includes the right to terminate, as Rowan highlights, and the right to perform for an action in debt. However, as there was no majority without Lord Reid’s concurrence and his qualification of a “legitimate interest” on the IP, “legitimate interest” thus presently serves as a “restriction” to the IP’s unfettered right. It is submitted that there are a number of exceptions to the right to terminate, thus Rowan’s claim is untrue to a large extent. It will also point out that English law’s policy is not to tie contracting parties together, as seen from the right to elect to perform, and will advocate Morgan (2015)’s suggestion that mitigation policy ought to be imported into this context.

Kong Fir unless it is serious enough, such that it amounts to something that is fundamental to the contract, such as an extremely late delivery of a ship under a charterparty. As outlined above, the law under The Seaflower refutes Rowan’s claim that there are “relatively few” restrictions on the right to terminate. It is submitted that this is sound. Firstly, albeit in a different context (penalty clauses), Lord Diplock in Robophone advocated the pacta sunt servanda principle, that of loyalty to the bargain, which may be applied to a normal term such as an innominate term or a warranty. Secondly, such restrictions also reflect (perhaps ironically, as Rowan advocated the recognition of performance interest in a different article) a right to performance that is, if I may be so bold to suggest, increasingly being accepted in English law. This was illustrated by Coote with the recognition of the cost of cure in Radford v De Froberville and Ruxley v Forsyth, and the dissenting speeches in Panatown. Further, in Makdessi v Cavendish, Parkingeye v Beavis, the scaling back of penalty clauses shows increasing respect for liquidated damages clauses, and from a greater level of abstraction, increasing recognition of performance interest.

Chitty’s principles on the right to terminate were adopted in The Seaflower. In essence, whether there is a right to terminate depends on the type of term. There is no right to terminate for a breach of a warranty, although it is highly circumscribed after the recognition of innominate terms in Hong Kong Fir. For statutory terms, such as s12-15 of the Sale of Goods Act, the IP can terminate even upon a minor breach, as it is a condition. The IP also has a right to terminate on minor breach, if is a condition Stocznia v Gearbulk which has to be expressly stipulated. There is no right to terminate following a breach of an innominate term Hong

MICHAELMAS 2016 Contract Law

Thirdly, the assertion that the “policy of English law that contracting parties should not be tied together when the contract has failed” is untrue as seen from the right to elect under White & Carter. As seen from most subsequent cases, courts have by and large found a legitimate interest as the IP’s right to continue performing, The Aquafaith, The Dynamic, Ministry of Sound v World Service, and Barclays v UniCredit. Simon J in The Dynamic notably highlighted that “legitimate interest” is extremely narrow; damages have to be inadequate, the election has to be “unreasonable”, the burden of proof is on the breaching party to prove the above, and the fact that benefits are insubstantial is irrelevant.

charter but not in The Alaskan Trader where it was held that to hold the charterer liable for the remaining 7 months of a 2-year charter would be “commercially absurd” (Rix LJ in The Aquafaith). Such factual distinctions import uncertainty into the law. Furthermore, such a right should be restrained as Leggatt J in MSC v Cottonex would have found the demurrage clause as a penalty clause. Leggatt J’s alternative finding would be disastrous, from a freedom of contract and commercial point of view (Morgan: 2013 Contract Law Minimalism, 2015 White & Carter / mitigation article, 2016 CLJ). The restrictions on the right to termination may also be argued to contradict efficient breach (Holmes), thereby advocating no restrictions on termination. It is submitted that the law on termination is satisfactory, and English law should not welcome efficient breach.

Such a state of affairs is unsatisfactory, and the right to elect ought to be circumscribed by the use of mitigation, as have been proposed by Morgan. Morgan’s chief argument for the use of mitigation to reform White is that it would be palatable to commercial parties as a default rule, and does not contravene freedom to contract as it allows parties to contract out of it (thereby circumventing the Payzu problem).

Firstly, it is paternalistic. It suggests that parties should take heed to economic considerations, which are generally viewed from a systemic level. Secondly, Morgan points out that there are costs to bringing a claim, and that damages are subject to control devices like remoteness and mitigation.

Secondly, it also encourages self-reliance, puts the least cost on the Robinson v Harman measure (Campbell and Harris), discourages waste Ruxley v Forsyth, and is one of the many reasons why anticipatory breach was conceived [in] Hochster v De la Tour.

Thirdly, such economic analysis (Posner) has no place in English law. In sum, it has been argued that there are more than just a “few restrictions” on a right to terminate, although the law on termination is satisfactory. In contrast, English law does not pursue the policy of not tying contracting parties together, because of the right to elect, and Morgan’s suggestion of importing mitigation should be welcomed, contrary to Qiao Lu’s 2011 thesis.

Thirdly, it has strong academic support (Andrews, Burrows, McGregor). However, the decision in MSC v Cottonex confined the mitigation principle to the liquidated damages context. It is submitted that it should be extended to the White & Carter context of anticipatory breaches, and restrain White & Carter’s direction, as it has led to decisions such as The Aquafaith, which allowed the right to elect for 94 days remaining on the

PER INCURIAM Essays | CSPS

CSPS

(CRIMINOLOGY, SENTENCING AND THE PENAL SYSTEM)

In January 2016, the government announced a review of the criminal justice system to investigate evidence of possible bias against black defendants and other ethnic minorities. Is such a review needed? If you were advising the Government, to which factors would you want to draw attention, and why? Harriet Codd | Peterhouse

In January 2016 David Cameron announced review of the CJS’s treatment of BME offenders headed by MP David Lammy. Such a review was long overdue as the overrepresentation of BME offenders at all stages in the CJ process is a continuing cause for debate and concern. The main factors that need to be considered within this review are the extent to which this overrepresentation is justified by different patterns of crime in this group, the potential overuse of discriminatory and discretionary stop and search powers and the potential for disproportionate sentencing in CJS.

so would be Soukhami’s (2012) suggestion of ensuring the different categorisations were at least consistent across the different modes of data collection (eg. between police recorded data and BCS) so that meaningful and helpful comparisons can be drawn. Such categorisations should be more nuanced and fragmented than the current restrictive and inappropriate categorisations (case 2013). Attention must also be drawn to the question which remains as to the extent to which the police and the criminal justice system as a whole can be labelled “institutionally racist”. This claim was made in 1999 by the Macpherson report following enquiry into the death of Stephen Lawrence. While criticism has been made of the potentially unscientific and dramatic extrapolation of a few racist events by individual officers into a label which has blighted the entire system for over a decade (Lea, 2007) the stop and search figures that persist today present some doubts as to whether this label has been truly shifted (Strickland 2014).

The statistics for BME offenders within the CJS are startling at first blush, and make good “media fodder” and political rhetoric. Such examples include Phillips 2004 declaration that for every Afro-Caribbean on-campus there were two in jail, echoed in David Cameron’s recent 2016 interview with the BBC in which he pointed to the disproportionate number of BME offenders in prisons alongside the shocking statistics pertaining 24 members of Oxford’s 2,500 2014 intake were black. These claims may appear to be inflated or exaggerated to serve persuasive point but the MOJ 2015 statistics show over 27% of the prison population to be of BME origin in comparison to constituting to just 14% of the total population. Strickland et al 2014 shows black people to be seven times more likely to be stopped and searched than their white counterparts and Douglas 2011 showed that the [?] people were five times more likely to be arrested. The question of whether the system is racially biased is therefore an urgent and important one. It is imperative that the recently commissioned report gets an answer.

A review is needed to answer this crucial question which may provide an insight into the blatant overrepresentation of BME offenders as a group. Phillips (2014) and Souhami (2011) make important and correct suggestions that label “institutionally racist” is inherently unhelpful and that debate should be refrained. Drawing on writings by Rattisani and Souhami, Philip suggests a multilayered enquiry should be taken and the debate reframed as one of “racialisation”. This looks at the question of disproportionality from a micro, meso and macro level. Such a fresh and desirable reframing of the debate is needed and it would allow the report to make suggestions as to the various points of intervention that can be made in order to a) determine if racialisation in CJS is a problem and b) how to address this. The approach would enable us to move away from the “nebulous” label of institutionalisation of racism (Hart, 2014) which sees racist incidents simultaneously everywhere and nowhere (Souhami) meaning it becomes impossible for those charged with responding to know how to effectuate an adequate response.

Attention also needs to be drawn to the fact that in such a homogenous society with a multitude of different faiths and ethnicity denominations and subcultures, the blanket categorisation of offenders as BME is unrealistic, unhelpful and potentially offensive (Bowling and Philips 2014). It draws attention away from the intricacies of subcultures and sub-ethnicities that may have there in an influential impact on crime patterns or pathways in and out of crime for these groups. Young’s recent (2015) report highlights the failure of the plight of Muslim offenders to be recognised and dealt with accordingly within current system – both in terms of being drawn into it through perceived prejudice basis and unfounded assumptions of radicalisation and the treatment within the system, in courts and prisons alike. The 2016 reports must address these criticisms and move away from the “blanket notion” of BME. One way of doing

Furthermore attention must be trying to the sentencing of BME offenders is very little is known about whether the suffered disproportionate discrimination in this regard. The West Midlands research done by Hood in 1992 showed some discriminatory treatment BME offenders in court with outcomes were 5% higher chance of receiving a custodial sentence and the white counterparts. This

MICHAELMAS 2016 CSPS

study, while informative and relevant in its day, becomes of doubtful importance nearly 25 years later and the factors such as social acceptance, demographics and the effects of the study itself are likely to have had statistical and substantial impact in the intervening years.

2008 may also still be a problem – again this is something much to report must address. Finally attention must be drawn to the notion of the “gang”. With strong arguments coming from both sides about the very existence of the “gang” (Pitts, 2015 cf case 2007) as well as arguments as to its precise definition and extent 2016 report should seek to determine how much of a problem, if at all, gang culture and gang violence is and whether this disproportionately affects BME communities and if so how.

Thomas 2010 research demonstrates almost no discriminatory sentencing in the Crown Court and claims that the jury trial is one place where we can be certain disproportionately discriminatory sentencing is not the norm. On the other hand Maguire 2015 has called for more research and awareness programs to be implemented in the magistrates court where evidence shows BME offenders were 2.5 times more likely to get a custodial sentence (MOJ). This could be due to other factors such as offence seriousness and aggravating and mitigating factors – but ultimately these are questions which Lammys report must answer.

in conclusion the report has a huge task but one which is vital to the central core of legitimacy. We need to know whether the system is still institutionally racist by using Phillips multilayered assessment framework of racialisation and if so how to tackle this. The current situation of largely unexplained disproportionality is “unacceptable” (Bowling 2015) and “scandalous” (David Cameron, 2016).

Over representation of BME young offenders in eight YOTs studied by fees land and heard in

PER INCURIAM Essays | Jurisprudence

JURISPRUDENCE Alicia Loh | Peterhouse

Natural law theories show us the need for positive law. Legal positivism is a theory about the character of positive law. So there is no real conflict between natural law and legal positivism.’ Discuss. Legal positivism is concerned with the character of positive law, and as articulated by Hart (its chief proponent), points to social facts as the basis of the content of law, and holds that the criteria of legal validity counts as social fact. Natural law has numerous definitions, from substantive to procedural natural law (Fuller), and theorists who only reluctantly call themselves natural lawyers (Dworkin). As its main adherent is Finnis, I shall base my treatment of natural law on his views. As he proposes, the starting point is that there are seven basic forms of human good (discussed below) which make up a good life and contribute to ‘human flourishing’, the pursuit of which societies must protect. This essay shall set out the commonalities between the two theories of law and explore the differences between them in reference to the quote. I conclude that it is indeed correct that ‘there is no real conflict’; rather, I submit that natural law theories indeed reveal the need for legal positivism. The latter argument is forwarded mainly in examining the differences and reconciliation.

possible, contrary to Austin’s narrower view, for people to obey rules out of social norms than out of fear of sanctions. Both theories additionally attempt to distinguish between legal and moral rules. To Hart, the strength of morality, where it is able to influence law, is in being a pull factor, not a push. Finnis concurs with Hart that though ‘legal rules, qua legal, are always subject’ to the possibility of being changed, ‘moral rules, which qua moral rules morally considered have no dateable origins and cannot be amended’. Furthermore, both Hart and Finnis emphasise the importance of the internal point of view. Hart submits that where there is an accepted rule, the pattern of conformity (‘external aspect’) is accompanied by an ‘internal aspect’; people regard a rule from an internal perspective (which is ‘critical’ and ‘reflective’) where those who break from the regular pattern and standard are justifiably criticised. Finnis too stresses the need to employ it, believing that our understanding of legal systems should revolve around the fact that law influences our reasons for action. However, he argues that in constructing and evaluating legal theory, one should not take perspective of those who accept the law as valid, but the point of view of persons who accept the law as binding simply as they believe that valid legal rules create moral obligations to obey them. Unlike Hart, he requires theorists to evaluative the moral merits of legal systems, and holds that it is vital that in some situations, law does create moral reasons for action. From this point, it seems that though both theorists stand on mutual ground on which point of view to adopt, their position on what place morality should hold in the exercise of legal theory reveals fissures in their common ground. Thus, we turn to the differences between positive and natural law theories.

Common grounds Whilst Hart and Finnis may disagree as to the origins of law, with Hart pointing to social facts and Finnis to nature (which may be inherent in our nature, apparent through human reasoning, or inherent in the physical world around us), they both explore the social function of law. According to Finnis, law consists of ‘rules for the guidance of officials and citizens alike, not merely a set of predictions of what officials will do’. Following this, law is a means of effecting some goods which would require the coordination of many people and could not otherwise be effective, for example, a city wall or irrigation system. With this, Hart concurs: legal rules serve as ‘common standards of behaviour’. Here, we see signs of the basis of the argument that natural law reveals a need for legal positivism: where natural law highlights the need for rules, legal positivism seeks to determine these rules with reference to social standards. Having set the backdrop, we observe further agreement in how they both reject Austin’s command theory, whereby laws are simply ‘orders backed by threats’. Austin, an early legal positivist, set out that laws are commands of the sovereign (a person/body who receives habitual obedience from members of society, without himself habitually obeying anyone). Whilst it is unsurprising that Finnis, with his natural law perspective, rejects this as it means that a morally incomprehensible law would have effect if it came from the sovereign, Hart too rejects Austin’s theory. He first observes that it is difficult to speak of there being a sovereign, and highlights that Austin’s command theory cannot explain the continuity of law (society can hardly be said to have a ‘habit of obedience’ toward a newly-crowned sovereign). He asserts that Austin ignores the ‘internal aspect’ of law, whereby it is a norm that people will embrace ‘certain patterns of behaviour as a common standard’. In expanding on the character of positive law as rooted in social facts, Hart therefore sees that it is

Fissures in opinions Disagreements arise primarily in the relationship between law and morality. For Hart, the answer is simple: law can be detached from morality. Law is a type of social institution, and from this perspective, a morally-neutral theory is both plausible and valuable. The content of law depends upon the rule of recognition accepted by the society’s officials (see Question 2). If they simply accept that what Parliament enacts is law, there is no guarantee that morals will be respected. It is significant that the legal positivism point is generally not that there is no connection between law and morality – Hart acknowledges that law may derive some of its content from morality – rather, the assertion is that there is no necessary connection. It may be noted that exclusive (‘hard’) legal positivists (eg. Raz) deny any connection at all, whilst inclusive (‘soft’) legal positivists (eg. Hart, though Dworkin disputes whether he actually is) view that there is no necessary connection. Finnis conversely holds that a neutral theory of law is not possible, and that even if it is, it would not be valuable.

MICHAELMAS 2016 Jurisprudence

Natural law theory instead focusses on how, whether, and when, positive law adds to our set of moral obligations, viewing that it only succeeds in doing so when the rules enacted are consistent with moral principles, and promulgated by a party (an official or sovereign) acting within its authority. Thus, ‘the principles of natural law explain the obligatory force (in the fullest sense of “obligation”) of positive laws, even when those laws cannot be deduced from those principles’. The law is therein a main reason for action, and cannot be truly comprehended except in the context of what would be a good (moral) reason for action. Finnis accepts it as a ‘given’ ‘that legal obligation presumptively entail a moral obligation’. When we reverse this, we see that it may also be true that natural law suggests the necessity of positive law. Whilst the two ways that rules may come from natural law are that they result from more general principles or that they derive from a determination of certain general features (D’Entreves), Hart’s legal positivism establishes a straightforward method for rules to come into existence with his rule of recognition. Though it lacks the morality that natural law seeks, it sets a minimum standard (both with regard to requirements for acceptance and recalling Hart’s ‘minimum content of law’), and can usefully be employed by natural law. The additions that legal positivism brings to natural law’s rules are therefore significant. Natural law may not need legal positivism in the fullest sense, but to the extent that it provides minimum criteria that natural law can employ, and bearing in mind the complex laws that exist today that would be difficult (though not impossible) to trace back to first principles, natural law indicates that positivist law can be a powerful workhorse.

that we see hope for reconciliation. These two conditions, after all, do not conflict: Finnis’s is merely more extensive. Given that Finnis wrote after Hart, I submit that it is possible to postulate that in this particular aspect, Finnis was building upon the bricks that Hart laid. In this sense again, natural law may not need legal positivism per se, but it is herein essential and its minimum conditions are also respected by natural law theory. If we seek to reject Finnis’s basic goods (which are part of his own elaboration of natural law, not part of its tradition) or if there is significant disparity in how members of society weigh the basic goods, then we will see greater importance of legal positivism to natural law, as it provides a substantial tool with which we can determine whether something is a law.

A further conflict may is their treatment of the ‘common good’. Hart’s conception of it is much more minimalistic than Finnis’s. Instead of looking for what would entail a ‘good life’, Hart simply seeks necessary truths; he accounts for how legal systems ban laws such as murder by saying that whilst they are not requisites for law, they are ‘natural necessities’ that flow from us being human (mortal, with finite resources, and to some extent requiring one another). The most evident of these necessities is survival. However, it is plausible to submit that if survival can be accepted as a natural necessity, other considerations may be as well. This leads us to Finnis, who sets out seven basic goods (he accepts his list is nonexhaustive and that there are other possible objectives) which individuals must have, or seek to gain more of, in order to live ‘flourishing lives’. These are: (i) life (‘signif[ying] every aspect of the vitality [...] which puts a human being in good shape for self-determination’); (ii) knowledge (desirable for its own sake); (iii) play; (iv) aesthetic experience (which overlaps with play, but distinctly, does not require one’s own action, and is usually the creation of and/or active appreciation of some satisfying work); (v) friendship (acting for the sake of one’s friend’s purposes and well being), which Finnis regards as particularly important; (vi) practical reasonableness (being able to use one’s own intelligence to choose one’s own actions and lifestyle, and being able to shape one’s own character); and (vii) religion (the establishment and maintenance of proper relationships between oneself and the divine). All of these, according to Finnis, are ‘equally self-evidently a form of good’, and none may be subsumed under another. Having stated this, however, Finnis accepts that individuals may weigh each differently (Hart would probably assign greatest importance to ‘life’/ survival), and submits that it is the duty of societies to ensure that individuals are given the freedom to pursue these to lead ‘flourishing lives’. Finnis’s ‘common good’, therefore, is much more extensive than Hart’s. Whilst Hart’s ‘minimum necessary condition’ seems only to ensure survival, Finnis’s basic goods showcase a robust attempt to outline the conditions for a flourishing life. Despite the clear distinction, it is at this point

My point is supported by the underlying rationales in the two concepts of the creation of legal rules. Hart maintains that the basis is to promote institutional efficiency. He posits the rule of recognition as a means to ward off uncertainty, thus performing a vital function. Natural law as Finnis presents it does not contradict with this. Following his approach, legal rules must also meet the requirements of practical reasonableness, which are recognisable to ‘anyone of the age of reasons’, though they need not universally recognised. These requirements are: (i) having a rational plan for life; (ii) non-arbitrariness; (iii) impartiality amongst persons; (iv) openness to the basic forms of goods; (v) commitment; (vi) efficiency within reason (not in the utilitarian or consequentialist manners, which Finnis rejects as ‘senseless’); (vii) respect for every basic value in every act; (viii) favouring the common good of one’s communities; and (ix) following one’s conscience’. This enables society to promulgate laws that promote coordination for the realisation of the ‘common good’ and ‘flourishing life’ for all members. Hart’s ideals of certainty and efficiency can only work to contribute to this (indeed, they will aid most of the requirements), and are thus necessary for natural law to be effective.

No real conflict: a reconciliation I shall now seek to reconcile the two theories to show that there is no substantial conflict between them, and further highlight that natural law theories point us to positive law for guidance. From a historical perspective, natural law theories endeavour to distinguish the reasonable from the unreasonable. Positivist law theories, on the other hand, create guidelines by which we can ascertain the content of law; Hart asserts that this is done through the ‘rule of recognition’, which we use determine if rules are really rules (see Question 2). Here, we see that the vagueness of natural law’s charge to separate the reasonable and unreasonable can – and perhaps must – be resolved by the practicalities of legal positivism.

Conclusion Therefore, I conclude that positive and natural law theories are not mutually exclusive. Indeed, the requirements of the latter bolster the need for positive law, which go far in aiding us in identifying laws that meet Finnis’s requirements of practical reasonableness, and will help societies pursue the common good. Natural law indeed explains why we need positive law, as when positive law is just and its criteria met, it makes more specific and determinate the requirements of natural law. After all, we need an authority to determine a society’s shared plan for the common good. Thus, we see that there is no true conflict in the relevant areas.

PER INCURIAM Essays | Equity law

EQUITY LAW ‘The possibility of rationalising trusts as specialised types of contract is obstructed by doctrines that maintain that many trust documents and decisions of trustees must remain confidential. Those doctrines reflect a time when most trustees were faithful family friends; they are not relevant now that most trustees are commercial actors.’ To what extent do you agree with this statement? Joel Koh | Girton

This essay disagrees that the contractarian account of trusts is inherently obstructed by the doctrine of trustee confidentiality, as the case law highlights a shift towards increased trustee accountability. Furthermore, the notion of the irreducible core of the trust includes beneficiaries being accountable to commercial trustees.

hand out trust assets confidentially, as LoWs are generally not legally binding and technically do not form part of trust terms and the discretionary documents. Thus trustees need not disclose LoWs under the regime of trustee confidentiality whilst making discretionary decisions (Re Beloved Wilkes). Under this regime of trustee confidentiality, the court recognised that disclosing such sensitive documents could potentially affect intimate family relationships, and thus often refused to disclose discretionary trust documents. However, in Re Londonderry, the court recognised that the old notion of entitlement to access of trust documents is a qualified proprietary right: that certain discretionary trust documents could not be disclosed, even if the beneficiaries were absolutely entitled and not potential objects of appointment. Schmidt v Rosewood marked a sea change, as the court declared that the right to access trust documents was not linked to proprietary entitlement, but rather fell under the court’s inherent jurisdiction to enforce the administration of the trust, as confirmed in Breakspear v Ackland. Tey notes this represents a shift from the traditional confidentiality doctrine, to a more transparent regime of trustee accountability. As evidenced in Breakspear itself: potential objects of appointment were enabled to access trust documents, but the court did stress that it was an exception case. In some ways, this may defeat the settlor’s intent: surely he had intended for the LoW to be confidential? But

Rationalising trusts as a contractual bargain between settlor and trustees is the core thesis of Langbein’s contractarian account. According to Langbein, express trusts hand settlors a great deal of autonomy in determining the scope of the trustee’s duties and beneficiaries entitlement. Whilst the rules of certainty of objects does force settlors to be more conceptually certain in defining who to benefit as the court is reluctant to step in and impose their own construction of what the settlor intended and intervening in sensitive family matters, the court does try to give effect to the settlor’s intent wherever possible. Re Tuck allows the settlor to delegate questions of determining who is in the intended class of beneficiaries to a third party, and Re Manisty allows settlors to appoint new beneficiaries to a small specified class of beneficiaries. These all evince clear respect for settlor autonomy in drafting around default rules in equity. In Re Hay, it was noted that general fiduciary powers are not necessarily void for conceptual certainty, as long as settlors gave trustees a letter of wishes (LoW) directing them on how to make suitable appointments. This is in fact a valuable tool for the settlor and trustees to

MICHAELMAS 2016 Equity Law

the decoupling of proprietary rights from trust documents does largely support the contractarian account of trusts.

how does one construe the nature of the trust. For Parkinson, it should be based on an obligation owed by the trustee to the beneficiary. For Langbein, it is the contractual bargain between the trustee and settlor. For Haansman, it is more proprietary in nature, and he sees the trust as a tool for asset partitioning, which may be more suited for commercial needs. However, the position in English law seems to strike a balance between all of the aforementioned considerations.

In some ways, this has opened the door to new possibilities: if the settlor intends for the LoW to be disclosed, he can do so by using strong mandatory language that is intended to be part of the trust deed (Chen v Ling; Chase Manhattan v Goodman). If he does not wish for it to be disclosed, he could ostensibly make it clear that it is not meant to be disclosed, and the court may respect that, in deciding whether to disclose the said LoW.

Nolan raises an oft-overlooked point that the contractarian account of trusts is ill-adopted to the notion that the court has an inherent jurisdiction to enforce trusts. Trusts are not privy to absolute freedom of contract, which explains the strict certainty requirements of subject matter as the court’s remedial discretion is primarily specific performance of trustee duties, not secondary compensation. Seen in this light, the contractarian account must accept that it can never oust the jurisdiction of the court to enforce the trust, as it forms part of the ‘irreducible core’ of the trustee’s duty to be accountable. On the other hand, the court has shown that it will only intervene in exceptional circumstances (Breakspear). So if the settlor intends for trusts to be confidential, the court will respect it to the extent it does not cause injustice to potential objects or beneficiaries, and it is likely that commercial trustees will be given such broad leeway and discretion by the court, in accordance with settlor autonomy, unless equity feels compelled to exercise its remedial jurisdiction.

Armitage v Nurse makes it clear that the irreducible core of a trust necessitates that the core duty of trusteeship is to act in good faith, and more importantly, to be accountable to beneficiaries. This means that trust accounts and terms of the trust should be disclosed to absolutely entitled beneficiaries; the same can be said for potential objects, if they are aware of the existence of the power (Re Hay). On the other hand, the court will be more reluctant to disclose documents relating to trustee’s discretion unless there is a clear prima facie case that the settlor intended for it. Seen in this light, the case law does support a contractarian account of the trust. Fox (2011) believes that the irreducible core should go further, in including a duty for trustees to give reasons for their decisions, and a right to inspect trust documents. However, such an approach is contrary to settlor autonomy in deciding the level of confidentiality and not consistent with the case law. Indeed, Fox admits that the notion of the irreducible core of the trust is highly dependent on jurisdictions, and

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MICHAELMAS 2016 Intellectual Property

INTELLECTUAL PROPERTY

Xavier is the owner of a European patent valid in the UK with a priority date of January 2001, which is the basis of his successful business selling wound dressings. He is considering whether to bring infringement proceedings against Yolanda.

Xavier’s patent claims: 1. A gauze dressing impregnated with a composition made of: 2. A combination of honey and a gelling agent; 3. Wherein the amount of gelling agent in the composition is such it forms a pliable putty that can be readily moulded to fit the gauze; and 4. Wherein half of the composition (by weight) is honey. Advise Xavier in light of each of the following facts: •

Yolanda is a London nurse who has recently started treating her patients’ wounds with honey. To avoid a sticky mess, she adds a thickening agent to honey and spreads it on gauze dressings. The thickening agent does not create a gel, but it increases the viscosity of the honey so that it does not drip. She is not pedantic about the precise composition of her mixture. She has a ‘feel’ for how much thickening agent she needs to add. In notes to herself, she describes it as ‘roughly half’.

•

Yolanda has no intention of negotiating a patent licence with Xavier. She says that it is legally preposterous that someone could patent a method of medical treatment, and that nurses who work for the Crown (via the NHS) and are motivated by their patients’ best interests should never be liable for patent infringement because it is a fair use.

•

Health food stores have widely advertised ‘the natural biological benefits’ of honey since the early 1990s. Since 1995, Xavier has been using the honey-impregnated gauze dressings, including on his bare arms with no clothing over the top. However he has not given any other person a sample.

(i) Xavier may bring an infringement claim against Yolanda

human body by surgery or therapy. While this may look promising for Yolanda, it will not held her as X has not invented a method of treatment, but rather a product, and so s.4A(2) prevents subsection (1) from applying.

under s.60 PA 77. As X’s invention is a product, Y will infringe if she makes it, which it is arguable that she is doing. In order to assess this, Art 69 and its Protocol say that the claims of X’s patent must be given a ‘middle ground’ interpretation. In Catnic v Hill and Smith it was said that the claims must be given a purposive rather than a literal construction, and Lord Hoffmann in Kirin-Amgen held that this was consistent with Art 69. In that case he went on to say that there was only one question which must be asked in construing the patentee’s claims, which was ‘what would the person skilled in the art have understood the patentee to mean?’ The questions formulated in Improver v Remington were said to be a useful guide in answering this question and will also help assess whether Y’s use infringed. The first is whether the difference between the alleged use and the claim has a material effect on the operation of the product. In this case the difference is that X’s claim is for gauze with enough gelling agent to form a putty and Y’s use is to add enough thickening agent to prevent the honey from dripping. This does not seem to make any material difference to the operation of the product as in both cases the end result is just thicker honey on a bandage. The same result follows in assessing the difference between ‘roughly half’ and ‘half (by weight)’. It is therefore unnecessary to look at the following question which is whether this difference would be obvious to the PSA.

Yolanda’s argument raises valid points about patents for medical products. As Bostyn (2005) points out, the rationale for excluding methods of treatment applies equally to medical products, and authors including Seville and Wilson have also pointed out the difficulty in balancing the need to respect patentees’ interests and rights with others such as the right to life. However, s.55 provides a defence to infringement for use for the services of the Crown, so Yolanda may be able to rely on this. She only would if she was authorised in writing by a government department, which seems to be missing on these facts, and there is no general defence of fair use. In addition, Y’s use falls outside the categories of ‘services of the Crown’ in s.56.

(iii) Yolanda may also argue that X’s parent should be

invalidated because it is either not new or did not feature an inventive step as required by s.1. In relation to novelty, s.2(1) says an invention is new if it did not form part of the state of the art. In Synthon v Smith Kline Beecham, Lord Hoffmann laid out a two-step test, namely that the product must have been the subject of a prior enabling disclosure. Disclosure was assessed using a ‘reverse infringement test’, whereby the matter relied on as the prior art will be taken to disclose an invention if it would have amounted to an infringement if it was done after the patent’s priority date. In Windsurfing v Tabur Marine, using the product in public was taken to make it form a part of the prior art, so X’s use on his bare arms means his invention was disclosed. However, it seems unlikely that it would have been enabled as although the PSA is willing to make trial and error experiments at

Yolanda’s treatment therefore seems to infringe X’s patent, however by bringing such a claim, X would open himself up to a counterclaim from Y for invalidity of his patent by virtue of s.74(1)(a).

(ii) In a counter-claim by way of defence, Y may argue

that X’s gauze is not a patentable invention and so should be revoked. Under s.4A(1) PA 77, it is said that a patent may not be granted for a method of treatment of the

PER INCURIAM Essays

Ben Lock | Trinity Hall

this stage (Synthon) it seems unlikely that he would be able to reproduce the invention just by observing X in public, unless it was very obvious to all passers-by that there was honey in the gauze. Even then there would arguably be no enablement as the gelling agent would not be obvious.

differences between the inventive concept and the prior art. Although honey was said to have natural biological benefits, the difference is that in the patent it was applied to a specific dressing. Step 4 is to assess whether this would have been obvious to the PSA. In Pfizer’s Patent, he was said never to think laterally or stumble on the inventive, and so he probably would not have thought to impregnate gauze with honey.

Y may instead argue that X’s patent should be invalid on the ground that it does not feature an inventive step. In Pozzoli, Jacob LJ elaborated a 4-step test for assessing this, adapted from Windsurfing. Step 1 is to identify the PSA and his common general knowledge. In this case the PSA would have some medical expertise. Beloit v Valmet said that something is common general knowledge when it is generally known and regarded as a good basis for further action, so the use of gauze to treat wounds would be regarded as common general knowledge. Step 2 is to identify the inventive concept in the patent, which in this case is the impregnation of gauze with honey and a gelling agent. Step 3 is to identify the

X’s patent therefore seems to feature an inventive step. The secondary indicia from Haberman v Jackel are of limited use here as there is not very much evidence of how successful X’s invention was or whether it truly did address a long-felt want. Therefore X’s patent seems to survive any counterclaim by Y and he can confidently pursue her for infringement.

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PER INCURIAM LLM

LLM ESSAY

Do you agree that free riding, of any sort, on a registered trade mark is unfair? Vanya Kumar | Sidney Sussex College

The Court of Justice of the European Union (CJEU) noted in Arsenal v. Reed that the essential function of a trademark is to guarantee the origin of the marked goods, enabling consumers to distinguish such marked goods from those of other origin. However, apart from this primary function, trademarks also have several non-origin functions that are valuable to the proprietor in a commercial context. These include investment, communication and advertising functions, as it is understood that a specific message as to the quality of goods is conveyed to the consumers by the use of a trademark, and the goodwill associated with a mark may have independent economic value.

repute of the senior marks by direct association. However, Jacob LJ in L’Oréal’s litigation in the England Court of Appeal, noted that, despite the advantage accruing to Bellure, there was honest competition between the parties, as the intent of the defendant was to let the consumers know which of their products were smell-alike to the products of the appellant, and if the products are themselves lawful, trademark law should not prevent traders from making honest statements about them. He also criticized the use of value-judgmental terminology such as ‘free-riding’ for being ‘subtly and dangerously emotive’. As argued by Gangjee and Burrell in their critique of the CJEU’s position in L’Oréal, the employment of the Biblical language of ‘reaping without sowing’ condemns the concept of ‘free-riding’ per se without adequate analysis of the economic or competition elements underlying it.

In context of protection of this intangible value, Article 5(2) of the Trade Marks Directive (TMD) deals with the right of the proprietor to prevent the usage of such signs by third parties as are identical with or similar to their registered mark, in the course of trade of dissimilar goods, wherein the usage takes unfair advantage of, or is detrimental to, the distinctive character or the repute of their trademark. The three kinds of harms covered under the Article are dilution, tarnishment, and taking of unfair advantage, which exist independent of the likelihood of consumer confusion. There are two caveats in their application however; that the proprietor’s mark should have a reputation in the Member State, and that the use of such sign should be without due cause.

The question therefore arises whether free-riding on a registered trademark is unfair in itself. Such a conclusion would seem overbroad as, notably, free-riding is not prohibited as regards registered trademarks, but only as regards registered marks of repute. As noted in General Motors v. Yplon, for a mark to have a reputation, the relevant public’s knowledge of it must have crossed a certain threshold, which would suggest a high degree of recognisability and possibility of association with a similar mark in the relevant market. Further, as held in Intel Corporation v. CPM United Kingdom, the existence of a link between the claimant’s mark and that of the third party is an essential condition for the conclusion of unfair free-riding. The relevant public must make a connection between them, otherwise the usage of the later mark is not likely to take unfair advantage of the earlier mark.

While dilution and tarnishment deal with active detriment to the senior mark, the CJEU, in the leading case of L’Oréal v. Bellure, concerning “smell-alike” perfumes and usage of well-known registered marks of L’Oréal in price and smell comparison charts made by Bellure, observed that ‘unfair advantage’ of the earlier mark is taken when a third party using an identical or similar sign seeks ‘to ride on the coattails of the mark with a reputation’ and undeservedly benefits from the its associated prestige associated. This conduct was labelled as ‘parasitism’ or ‘free-riding’, wherein, as noted by Lord Neuberger, the wrongdoing attributable to the third party was not concerned with the detriment caused to the mark but to the undue advantage taken by the third party. The same was followed in Specsavers v. Asda wherein the CJEU held that Asda’s use of the Specsavers logo was intended to bring the Specsaver’s brand to mind and to convey Asda’s superiority in price and choice, which was an unfair advantage as the logo enabled Asda to exploit Specsaver’s reputation without compensation for the marketing efforts make by Specsavers, and thus freely ride on the hard-gained reputation of the latter.

Additionally, Article 5(2) of the TMD suggests that the freeriding is unfair only when it is without due cause. CJEU in Interflora v. Marks & Spencer, a case relating to keyword advertising on Google, which concerned the non-consensual usage of the trademarks of Interflora by Marks & Spencer, advertising flower deliveries through Google AdWords, reiterated its position in the L’Oréal case that any intentional riding on the ‘coattails of the reputation’ of an earlier mark is unfair. However, it took into account the legislative caveat of ‘without due cause’ and set out examples of uses that would satisfy ‘due cause’ based on considerations of fair competition. These included the permissible usage of keywords that were the trademarks of another party by internet advertisers to offer for sale goods which were an alternative to the goods of the proprietor, without offering imitation goods or causing dilution or tarnishment or adversely affecting the functions of the senior mark. Further, in Leidseplein Beheer v. Red Bull, the CJEU introduced the notion of ‘good faith’ under Article 5(2) and held that the

The focus in both cases was presumably on the ‘predatory intent’ of the third party, where their mark usage could have no practicable alternative other than to take advantage of the

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proprietor of a reputed trademark may be obliged to tolerate the usage of a sign similar to their registered trademark by a third party, even in relation to identical products, if it is successfully demonstrated by the latter that the sign was being used by them before the mark was filed by the proprietor and their usage is in good faith. It was observed that the concept of due cause was not meant to restrict the rights of the proprietor but rather to ‘strike a balance’ between the competing interests of the proprietor and the third party in light of the enhanced protection enjoyed by the mark.

interest is nonetheless engaged. Absent the consumer interest in nonconfusion, as under other areas of trademark law, the question arises as to whether the consumers have a greater interest in free competition in the market as opposed to the proprietor’s commercial interests in deriving the highest possible commercial benefit from their investment in their mark. An argument can be made that the prohibition of freeriding, rather than restricting, in fact enhances competition in the market, as the party taking unfair advantage of the claimant’s mark shall then seek to enhance its own reputation through better quality goods. Further, such prohibition is necessary as the immediate competitors of such a party in the market may be disadvantaged through the permission of free-riding, as the advantage gained by the junior mark through association with a mark of repute would be disproportionate to their investment in their own product and may give them an unfair competitive advantage over equally able competitors through such goodwill transference.

This enhanced protection in itself has divided legal scholars. As noted by Apostolos Chronopoulos, the argumentation of the CJEU as regards free-riding, particularly in the L’Oréal and Specsavers cases, appears to hinge on an ethical condemnation of the unjust enrichment which accrues to the third party through their unmerited association with a reputed mark. These decisions were welcomed in legal circles that interpreted the ‘unfair advantage’ provision as primarily seeking to benefit the proprietors of a reputed mark in allowing them to derive full commercial benefit from their marketing strategies aimed at creating a brand image and enhancing its reputation in the relevant market.

Alternately, giving an overbroad protection to reputed trademarks may interfere with competition in the market by creating monopolistic tendencies in the proprietor. Lemley and Neukom argue that the rhetoric of free-riding in intellectual property is fundamentally misguided as in no other area of the economy is the full capturing of social benefits permitted. Competitive markets only aim to allow the producers to cover their costs and make a reasonable profit. If the aim was full internalization of social costs, then the market would favor monopolies and cartels over competition. There are suggestions that even if there is an advantage gained by the junior mark in its association to the senior mark, as long as no confusion to the consumers or damage to the senior mark is caused, there seems to be very little justification for legal interference.

Others have criticized the Court in its extension of the traditional grounds of trademark protection to nonconfusing usage in the cases of dilution and free-riding as, apart from identical usage, all other marks are required to prove likelihood of confusion to invoke protection. Further, as argued by Aplin and Davis, the key distinction between dilution and unfair advantage seems to be that of damage. In the Intel case, the CJEU held that the question of dilution depends on actual damage or the likelihood of damage to the claimant’s mark. However, following L’Oréal, there seems to be no equivalent requirement in the case of unfair advantage. In addition, it appears uncertain as to what is necessary to render an advantage unfair. As noted by Lord Neuberger, while the detrimental use of a mark has been circumscribed by the requirement of a change of economic behaviour, there is no similar certainty about use which takes an unfair advantage. The English courts too have exercised caution in their application of the law as in Whirlpool v. Kenwood, wherein the Court of Appeal appeared to seek additional factors in order to classify an advantage as ‘unfair’. However, Bently and Sherman suggest that the Whirpool decision must be regarded as incorrect in its adamant insistence on demonstrated unfairness.

In conclusion, free-riding is a recognized harm in the field of trademark law. However, there is a need for clearer legal distinctions between permissible and impermissible free-riding, based on whether the advantage gained by the third party in the use of the claimant’s mark is unfair or with due cause. The same would have to be assessed according to the facts and circumstances of each case, taking into account the reputation of the claimant’s mark, the degree of similarity between the marks, and the commercial advantage gained by such usage. The Courts need to strike a balance between conflicting interests of both consumer and producers in the protection of investment and innovation, as well as free competition in the market.

The need for delimitation of the monopoly accorded by trademark registration has been a major source of concern in interpreting the free-riding provision. Although this area seems more concerned with proprietor interest, consumer