Dicta 2015

DICTA 2015

Magna Carta: 800th Anniversary An interview with Lady Hale A war of words: defining terrorism London courts: masters of international commercial dispute What was wronga with Wonga?

Dicta 2015_Proof NEW.indd 1

27/04/2015 22:05

MAKERS OF FINE LAWYERS We have a single objective: to create lawyers of extraordinary quality.

We carefully select and nurture individuals with character, commitment and curiosity.

We then give them the opportunities and the support they need to become exceptional lawyers, capable of advising the world’s leading businesses and business leaders. www.macfarlanes.com

Dicta 2015_Proof NEW.indd 2 4421_Macfarlanes_Adverts_253x190 - A4.indd 2

27/04/2015 15:37:48 22:05 09/07/2010

Note from the Editor-in-Chief

2

015 brings with it the 800th Anniversary of Magna Carta: a potent symbol of our constitutional aspirations and a marker laid down in history enshrining the UK’s status as a champion of the rule of law on the global stage.

So worthy of our attention is this milestone that the UK held the inaugural Global Law Summit in recognition of Magna Carta’s enduring relevance and legacy, acknowledging too the important role the UK has, and will continue to play in safeguarding all that it stands for.

Though it is all too easy to underplay the significance of our cultural and legal heritage (worse still to neglect it), the recent resurfacing of Magna Carta’s popularity - and with it ideologically charged notions of what we have come to represent and what we take pride in aspiring towards - is something that we ought to embrace with open arms.

Editors

This landmark occasion, if nothing else, affords us an important opportunity to be introspective. As future Editor-in-Chief: lawyers, this message takes on added relevance since Managing Editor: it is we who will soon be in the privileged position Editor: to contribute to, and help shape, the UK’s legal landscape.

Robert Cox Roberto Merola Allie Miller Eric Edward-Selvaraj James Marlow Ned Kemp

My team and I would like to pass on our many thanks to all who contributed to this year’s edition of Dicta.

I’d also personally like to thank my fantastic editorial team for all the tireless enthusiasm and commitment they have so readily shown.

We received a tremendous interest in Dicta this year - no doubt due to the substantial strides made by the editorial teams in years before us - and we hope that this level of interest only increases year-on-year.

Happy reading!

Robert Cox Dicta 2015 | Page 3 15:37:48 Dicta 2015_Proof NEW.indd 3

27/04/2015 22:06

Contents The symbolism and legacy of Magna Carta by Ellie Horder............................................................................ p.5 An interview with Lady Hale by Robert Cox and Roberto Merola......................................................................... p.7 London courts: masters of international commercial dispute by Kato Verbouwe............................................. p.14 Democratic Republic of Congo: whose rule of law? by Jim Robinson............................................................. p16 Making sense of abortion law by Alex Farrell-Thomas and Roberto Merola........................................................ p.20 What was wronga with Wonga? by Ned Kemp................................................................................................ p.22 An exploration of the UK fracking debate: does the law protect public interests? by James Marlow............. p.24 The big oil drop: some repercussions and what it means for the commercial lawyer by Robert Cox.............. p.26 An interview with Coffee Republic’s Sahar Hashemi by James Marlow and Ned Kemp.................................... p.29 A war of words: defining terrorism by Shyma Mukred..................................................................................... p.33 Singapore: why “rule by law” when you can have Rule of Law by John Wu................................................. p.36 Singapore: a story of success and the relativism of right by Max Fu............................................................. p.38 The financial sector: regulation boom, industry gloom? by Tom Walker........................................................ p.42 Why Indians took to English law by Eric Edward-Selvaraj............................................................................... p.44 Oscar Pistorius verdict: “justice has been served”. Has it? by Allie Miller...................................................... p.47 A reaction to revenge porn law: without consent and with intent? by Milly Ball.......................................... p.48 An interview with San Francisco Senior Court Judge Angela Bradstreet

by Allie Miller and Eric Edward-Selvaraj............................................................................................................. p.50 Advancing appreciation of miscarriages of justice by Jemma Webster............................................................ p.52 The struggle of the common law to attain justice by Ami Sodha.................................................................... p.54 Decriminalisation of assisted dying: prospects by Lewis Graham.................................................................... p.56 The tale of the Black Spider Memos: and why we should care by Darcy Rollins........................................... p.58 University of Bristol Law Club 2014/15 by Miles Pope.................................................................................. p.60 Think careers: getting your foot in the door by Calvin Yang........................................................................... p.61 University of Bristol Bar Society 2014/15 by Spencer Turner.......................................................................... p.62 The Hunt Cup 2015 by Kirsty Parker.............................................................................................................. p.64 Mooting 2014/15 by Lauren Webb.................................................................................................................. p.65 Before I Finnish - a year of study abroad in Finland by Patrick O’Kane.......................................................... p.66

Dicta 2015 | Page 4 Dicta 2015_Proof NEW.indd 4

27/04/2015 22:06

The symbolism and legacy of Magna Carta by Ellie Horder

I

n September 2012, the British Prime Minister David Cameron appeared on American TV’s “The Late Show”. Within minutes, he failed to correctly translate the words “Magna Carta” from their Latin origin. As the 800th Anniversary of “The Great Charter” (one point to me, Dave) approaches, we are led to ask ourselves, is it really relevant? The discussion of the legacy of Magna Carta and its pertinence today will be seen all over the world as this significant milestone in its history draws ever nearer.

The momentous document that has been hailed as a sourcebook of basic human principles and civil rights will be put under the spotlight and subjected to mass scrutiny. It is this scrutiny that will reveal just how crucial Magna Carta has been throughout the centuries after its enactment in 1215. At its very foundation, it holds key ideas pertaining to the limitation of absolute power and the extension of the rights of those subject to this power. Despite criticisms that privileges were only made to the baronial classes and did little to change the lives of ordinary Englishmen at the time, as a society we must look at the legacy of the Charter and the influence it had, and still has, in pressurising governments worldwide to recognise and grant basic human rights.

Winston Churchill once hailed Magna Carta as the “Supreme Law”, for even the King was not above it. This Charter, over a number of centuries, has become an enduring witness to the fact that the power of the Crown was not absolute. It was one of the first attempts by barons in history to stop a king from abusing his power. Terry Kirby, a writer for the Guardian, once stated that Magna Carta became a universal acknowledgement that “the monarch – then indistinguishable from the state – could be bound by the law”. This fundamental principle, although limited in its immediate effects, created notions and ideals within British society and throughout the world that would show an everlasting legacy. It set out the terms of a de facto constitutional settlement between kings, the most powerful families in the country, and

the wider community as a whole. The upper nobility, despite being granted greater privileges than the ordinary citizens, now acted as a kind of safeguard against tyrannical use of monarchical power. With recent events in areas of the world such as Ukraine and Syria, this attempt 800 years ago to limit the influence of the powerful elite, can be seen to be as relevant today as it was at the time of King John in 1215.

However, it was The Great Charter’s role in the progression of human rights that set it apart from many other historic documents. Arguably its most famous excerpt, Clause 39, states that “no freeman shall be taken or imprisoned…except upon the lawful judgement of his peers or the law of the land”. At a time when the poor were unlikely to be able to access the law courts and often faced unfair punishments, this clause was at the forefront of making the law equal for all men. These ideas and values created the impetus for a much larger movement, and by 1689 the British government had passed the first Bill of Rights in history, ten years after their enactment of the Habeas Corpus Act of 1679. Together they established the civil and political rights of all men, not just barons and lords, and proved to be influential in the drafting of the US Constitution of 1797 and America’s Bill of Rights.

The relevance of these gained liberties today, however, lies in their importance after the atrocious events of World War Two and the Holocaust. In light of this, the UN adopted the Universal Declaration of Human Rights, legislation that Eleanor Roosevelt described as “the international Magna Carta” - an apt and pertinent reminder of its very origins. The Great Charter thereafter became a symbol around the globe for the fight against oppression and the withholding of citizens’ rights. While on trial for his life in 1964, Nelson Mandela cited Magna Carta, alongside the Bill of Rights, as “documents which are held in veneration by democrats throughout the world”. In the words of Lord Denning, it stands as “the greatest

Dicta 2015 | Page 5 Dicta 2015_Proof NEW.indd 5

27/04/2015 22:06

constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”. It has a residing legacy in the 1998 Human Rights Act, and can be seen as highly influential in the on-going Guantanamo Bay debate surrounding the rights of detainees. In 2008,

term that almost definitely did not include even the richer merchants, let alone the more humble classes of the country. The aristocracy benefitted highly from this piece of legislation, but if you were a Jew, a Scot, or any kind of foreigner for that matter, you would not have felt liberated by the Charter. It is then made difficult for us to glorify a text that was riddled with the sort of discrimination we have come to castigate in the modern day.

If Magna Carta was simply a document of extortion designed by a discontent ruling class that insisted on certain privileges and sought redress for their many grievances, then we might easily begin to question its relevance today as something that has become increasingly obfuscated. The answer for many critics is simply that it isn’t as relevant as we often make out. Take, for instance, the Law Commission’s 1965 recommendations to repeal laws that “cannot be shown to perform a useful function”. They proposed a Bill repealing eight chapters of the Great Charter that they found to be “of no practical significance today, being either obsolete or superseded by the modern law on the subject”. Following this, by 1970 only four provisions of Magna Carta were left intact. Today, a document that is highly revered as the cornerstone of the promotion of civil rights and liberties home and abroad, has been reduced still further from the original sixty-three to a measly three. As such, one might suggest that we take more of a tokenistic approach towards Magna Carta since, beyond a few hallmark clauses, it affords us no real protection in its the majority opinion in Boumediene v Bush at the original state.

US Supreme Court traced the history of the writ of habeas corpus back to Magna Carta, and relied on this Yet the legacy of Magna Carta, although not always lineage to rule that detainees were entitled to petition directly or materially apparent, is still felt in countries for habeas corpus, despite Congress explicitly denying throughout the world. At its 800th Anniversary, it is them that right in various legislative provisions. important to see the document as symbolic. It may not have provided individual rights for every man in Nevertheless, despite its highly influential legacy, England at the time, but it was a huge milestone in Magna Carta is still a document whose original our history for its abolition of absolute monarchy and meaning appears far removed from what we have its propagation of the idea of human rights. It has a now come to view it as. Many of its clauses offered long and colourful past, and has been advocated in legal protection for the Catholic Church and the more ways than can be imagined. It is a document aristocracy, along with tax breaks for the wealthiest, that should be learned about and celebrated - even if and appear to cite little of the basic human rights now an Oxford-educated Prime Minister has difficulty in hailed as originating in this Charter. Indeed, the word translating its name. “freeman” cited in Clause 39 was a technical feudal Dicta 2015 | Page 6 Dicta 2015_Proof NEW.indd 6

27/04/2015 22:06

An interview with Lady Hale

by Robert Cox and Roberto Merola

A

ny attempt to introduce someone of Lady Hale’s stature will, undoubtedly, fall short.

So, for the avoidance of doubt, we try only in vain. Though she would be the last person to say so, as any student of law past or present will tell you, she is a quite remarkable person. Remarkable not just in her countless past and ongoing achievements as one of this country’s foremost legal figures and ambassadors, but remarkable too in her herself as a person of great intelligence, wit, compassion and humility.

It was this later point, above all else, that made meeting her Ladyship one of the lasting privileges of our time at the University of Bristol. She is a person of many “firsts”: she graduated from Cambridge with a starred first; achieved the highest mark in her Bar finals; was the first female to be appointed to the Law Commission; the first academic to be appointed as a full-time Judge of the Family Division of the High Court; the first female Law Lord; and, currently, the first and only female Justice of the Supreme Court.

Suffice it to say, there is an unmistakable theme surfacing here. But underlying this body of achievement is something altogether more distinguished and worthy of our attention: her unfailing sense of justice and her stalwart commitment to breaking down the many barriers of convention that serve to halt and limit true progress in our society. We’d like to extend our thanks to her Ladyship, on behalf of Dicta 2015 and the University of Bristol more broadly, for the following thoughts she generously had to share with us.

Kingdom are engraved with one of the Magna Carta’s most important and emblematic clauses: ‘To no man shall we sell, or deny, or delay, right or justice’ (article 40). Given that 2015 marks a celebration of the 800th Anniversary of the Magna Carta, what would you say it is that makes it so worthy of our celebration?

A: Well, two things. One, it is the recognition that there are limits to power. The king had to accept that there were limits to what he could do. They may not have been very obvious limits at the time, and they may not have been very favourable to most of the people. They were meant to preserve the privileges of the barons as much as anything else. But they were limits to power nonetheless. The second thing is the idea that justice is not for sale, that you shouldn’t be buying your way to the outcome that you want, that it should be the product of a fair process and the law.

Q: Does it hold valuable symbolic resonance?

Or is it simply a tokenistic gesture that bears little real relevance or application today?

Q: The doors into the library of the Supreme C o u r t of the United

A: As to the celebrating it, I couldn’t say why such a fuss is being made about it. But it is worth celebrating. The two things that I’ve mentioned are as important today as they have ever been.

It’s not a token. Our judges aren’t bribed, in any sort of way. We don’t deny justice, although we can make it quite difficult, but we do try to abide by the same law for everybody. So it’s all very important.

Q: Would you say that comparative studies of other jurisdictions are useful in informing the way we perceive, understand and articulate our own ways of going about things?

A: Yes; within limits. It is instructive when you get a new problem, and quite a lot of the problems we get in the

Dicta 2015 | Page 7 Dicta 2015_Proof NEW.indd 7

27/04/2015 22:06

Supreme Court are new, to look and see at what the approach of other legal systems has been to that problem, particularly if it is a legal system that is quite like ours. So Canada is a useful source because the Canadian Charter, although not identical to the European Convention, is quite similar; and Canada as a society and as a legal system, apart from the Francophone parts, is very much like ours. So they’re usually quite instructive. South Africa is often quite instructive because they have a fantastic modern Constitution and a fantastic Constitutional Court. So we are looking, but we don’t necessarily do what they do. They are a persuasive authority, not a binding one.

rest of the world, rather than set ourselves up as a model to be emulated. I suppose the way that things have developed in the post-World War Two era, not only with the Human Rights Act but also with the development of judicial review (which took off long before the Human Rights Act came along), we probably have set quite an example in holding governments to account.

But I wouldn’t like to be too imperialist about it!

Q: In that respect, would there be anything to gain, possibly, by adopting something from other jurisdictions? Or on the flipside are we, as a pioneer and champion of the rule of law, a model to be emulated on the global stage?

A: That’s difficult isn’t it? At home, there’s no overt threat to the rule of law. Everybody subscribes to the rule of law, everyone thinks it’s a good idea – going back to the Magna Carta – that power has its limits. But of course there can be little things that make it more difficult. It’s not a deliberate slicing away – at least I have no reason to suppose that it is a deliberate slicing away – but the more difficult you make it for people to bring perfectly good claims before a court or a tribunal, the easier you make it for people to ignore other people’s rights and their own responsibilities.

You can do that by making access to legal services more difficult.

You can do it, by

A: I think there are many ways in which we have been very important in that sense. A model to be emulated is maybe not the right way of putting it, given that, of course, a lot of the world has what the Americans call an Anglo-American legal system because they were part of the British Empire. So in a sense we imposed a lot of law on the

Q: In the modern day, what would you say is the single greatest, or perhaps most likely threat to the rule of law?

Dicta 2015 | Page 8 Dicta 2015_Proof NEW.indd 8

27/04/2015 22:06

charging, for instance, very high fees to bring a discrimination claim or even an unpaid wages claim in an employment tribunal.

This chips away at people’s respect for the law, which depends on their feeling there will in the end be a remedy if they are wronged.

Q: A feeling that there’s something worth subscribing to in the first place?

A: Yes, definitely.

Q: Given the need for the judiciary to be independent and impartial, how do you personally address issues of competing interests in the area of fundamental rights?

A: It’s in the very nature of human rights adjudication that it is a perpetual balance between the freedom of the individual and the general interests of the community.

Sometimes that balance is struck by

Parliament and sometimes it has to be struck by the courts. But it’s difficult for the courts, because different people can have different views about where to strike that balance. The most difficult case that we had illustrating this, I think, is the Carlile case [2014] UKSC 60. This was a very recent judgment of the Supreme Court, where some Parliamentarians led by Lord Carlile of Berriew wanted a female Iranian dissident to come and address Members of Parliament in the Houses of Parliament. She lived in France and had been banned from entering the UK by the Home Secretary since the 1990s. So they and she claimed that this was an interference with their right to freedom of expression under Article 10. The Government’s answer to this was that if the ban was lifted it would be seen as a hostile act by Iran and our relations with Iran are “fragile but imperative” - the words used – so, very very tricky, but we need them. The Government did not judge that the benefit to the United Kingdom from allowing her in was sufficient to outweigh the disadvantages. Now how do we gauge that, as against freedom of expression? In the end we were 4-1 in favour of the Government, but with great difficulty and agonising.

Q: Politics is often criticised for being too detached from and inaccessible to ordinary people. To what extent do you think this can be said about the law in general, and the judiciary in particular? Are you happy with the current level of public interest in and awareness of how the law and the courts’ work affect the lives of everyone, and if not what more do you think can be done to increase transparency and accessibility?

A: That’s a very interesting question to which I don’t have lots of ready answers. I do think that people should be able to feel that the legal system is for them, which goes back to what I’ve just been saying – that everybody needs a legal system and that it should be one that they can feel they have ownership of. So accessibility is part of it. As for openness and transparency, we have loads of that in the Supreme Court: as you know, you can watch us! I don’t suppose you

Dicta 2015 | Page 9 Dicta 2015_Proof NEW.indd 9

27/04/2015 22:06

often do, but you can watch our proceedings online (if you feel that way inclined!). So openness is fairly important, but I also feel that diversity on the bench is an important aspect of making people feel that the courts are their courts, not a narrow elite band ruling over them.

A: Yes, and of course people do want it both ways. Some newspapers (I wouldn’t dream of mentioning them by name!), whenever they want to complain about an out-of-touch fuddyduddy judge, put up a picture of the judge wearing a wig. But at the same time, public opinion surveys rather indicate that people want criminal courts to go on with wearing wigs. Ambivalence, as always.

Q: In an interview with the Telegraph, you recently spoke out about your dislike of men’s wigs worn in court and of your own personal Q: As the only female Supreme Court judge, desire when in practice, instead, to wear a what is your opinion on the value of being Madame Pompadour wig! singled out because of the uniqueness of your situation has on the promotion of a more A: You bet! Recently? I’ve always been saying that! gender and socially varied legal profession?

Q: We might be reading too much into your A: [laughs]. comment, but do you think that this is reflective of a bigger, systemic problem of gender Q: Perhaps if I can put it more bluntly – do you ever get tired of being singled inequality in the British legal out for being the only female system, or is it just a silly Supreme Court judge? tradition that we shouldn’t pay too much attention to?

A: Yes I do. I would love there to be more, not only because I’m quite different A: Well, I think that continuing to wear in several ways. If there were more than 18th Century wigs in a 21st Century one of us then we could be different Court is absurd. And I think that most from one another, and people wouldn’t of the people who wear these wigs do not be saying “oh that’s the woman’s point realise how absurd they look, and most of view”. My point of view is Brenda’s of the people who aspire to wear these point of view. I happen to be a woman, wigs – which, of course, might include and maybe that has something to do with young people like yourselves – also do not having strong views on equality and realise how absurd they look. It’s a kind discrimination. I don’t think I’ve suffered of badge, and people are affectionate much discrimination in my life (and if about it because it’s a tradition and I have it’s been positive discrimination), because we are one of the very few places in the world that still does this. And there’s a bit of elitism there; but if you have ever felt that you are in a worse position than barrister means brainy, posh, articulate person, and “I’m one everybody else because you’re a woman then you can understand of those because I’m wearing this on my head”. But I do object the underdog to a much greater extent than the people who’ve that women are made to wear a man’s wig, because it projects never been in that position. an image of the law and an image of justice – despite the fact that it’s a woman on the top of the Old Bailey – that is male. I Q: You began your career as a family law understand why women want to wear them, because they want practitioner. Family law is often regarded to be taken as seriously as the men are taken. They should get as an area of law in which lawyers have to be particularly thick skinned and emotionover it, but it’s understandable. detached. Would you agree with that Q: So, in that sense, it has forever perpetuated assessment?

“diversity on the bench is an important aspect of making people feel that the courts are their courts, not a narrow elite band ruling over them”

a rather backwards stereotype of how the law A: No I wouldn’t agree with it. It requires you to be empathetic is perceived?

Dicta 2015 | Page 10 Dicta 2015_Proof NEW.indd 10

27/04/2015 22:06

not only to your clients but also to where the other side is coming from. You have to have a degree of empathy because otherwise you will not be able to understand the case, but you have to be very tough – particularly as a judge, because you have to do some terrible things to people.

Q: As a judge you are known for your empathy and you awareness of those who are directly affected by your judgments. Do you feel like basic emotions of human compassion can in fact play an important role in delivering justice to those who are perhaps most vulnerable?

Do they help contextualise and ground your decisions in relevant practical consideration as well as on the black letter of the law?

A: [without pausing] The Children Act (1989). Absolutely no doubt about that. It made a huge change. We didn’t necessarily think it would at the time, but it did. We brought together all the different bits of child law so that it was the same in every court. That’s a revolutionary idea in family law. That laid the foundation for having a family justice system.

RM: Are there any areas of law which you feel demand reform either through the judiciary or through direct legislative intervention?

A: We’d be here until next week if I gave an answer to that question. There are limits to what the judiciary can do. We can only develop the common law and if we develop the common law we must have some sort of nose for what we should leave to Parliament and what is open for us to do. And actually different A: Empathy is important. All the best judges have it. The black judges have different opinions on that. letter of the law is what we have to apply, but you always have to apply it to a particular set of facts. For most judges, the first Q: Since 2012, what has been your highlight thing they have to do is work out what the facts are, and that in the Supreme Court? What cases have been is the hardest bit of judging. So obviously understanding the perhaps most interesting or problematic? witnesses, where they’re coming from, why they might be telling you lies and why they might be telling you the truth are all A: They are all problematic – they wouldn’t be with us if they weren’t. And they are all interesting. Occasionally you read a important factors. case and you don’t think it is very interesting, but once you get Q: How significant an impact do you think into the cut and thrust of the debate with Counsel and with your background as an academic has had on your fellow Justices then they all become interesting. I think the most interesting one in recent years has been the Nicklinson your work at the supreme court? case [2014] UKSC 38 on assisted suicide. These were very A: Most of us at the Supreme Court have had a significant disabled people who didn’t want to carry on living, but who academic background. I’m the one who actually opted for an couldn’t kill themselves without help. The problem with the case academic career rather than a career at the bar, but most of us was that it started as a case about mercy killing. It morphed have done academic work and there are now four of us who have from a mercy killing case to an assisted suicide case, and there is either been members of or chaired the Law Commission in either a very important distinction between the two. By the time it got England or Scotland. That is a wonderful mixture of academic to the Supreme Court it was basically a case about whether the and practical experience, because you have to use academic skills absolute prohibition on assisted suicide was incompatible with to work out what the present law is, what is wrong with it, the ECHR article 8 right to self-determination. Strasbourg has and what might be done to make it better. But you must also said that article 8 encompasses the right to choose the time and be practical about devising solutions that can actually work. manner of your death if you wish to do so. Five of us said that And then you have to get Parliamentary Counsel (draftsmen) it was open to the court to make a declaration of incompatibility. to translate those into legislation, which is the hardest part of Two of those five (one of whom was me) said that we thought the job. it was incompatible because there are less intrusive means of protecting vulnerable people from the pressure to take their own Q: Regarding your work at the Law lives. And that’s the only reason for the absolute ban. The other Commission, what would you say was the three said they were not prepared to go quite that far, but if most significant piece of reform which you Parliament doesn’t do something about it fairly soon they would oversaw and helped bring about? look at it again. The other four said that it was not a matter for Dicta 2015 | Page 11 Dicta 2015_Proof NEW.indd 11

27/04/2015 22:06

the Court to consider, but rather one for Parliament.

Q: What was it that drew you to law in the first place?

A: Oh dear, why did I get into law in the first place? Well it was such a long time ago that, like all witnesses, my evidence is deeply unreliable. One of the stories I tell was that my headmistress wanted me to go to either Oxford or Cambridge.

My best subject at school was history, but she thought that I might be better at something else. She suggested economics, but I didn’t like economic history. So I asked her what she thought about going into law, because I had liked constitutional history.

Instead of telling me not to think about that “because girls don’t do law” and there were no lawyers in my family, she said it was a good idea. And I was right. The moment I got myself to Cambridge and started studying law I realised that it was the right thing for me, and that it is the most wonderful subject. I mean there are boring bits, but that is true about anything. The knowledge that the law and how it works makes a difference in people’s lives is brilliant.

Q: This is probably quite a challenging question given a career with so many highlights, but is there anything that you would consider to be your greatest single achievement?

A: This is very difficult, because I have to regard being the first – and so far very sadly the only – woman in the highest court in the land as amazing and unbelievable. I cannot believe how it happened, and I’m delighted that they found a woman to appoint. But I am really sad that they yet have not found another one and I don’t want to retire until they have done. So I have to regard that as my greatest achievement, but the other one is the Children Act. Q: Given your academic career at Manchester University, was one of your principal motivations in accepting the office of Chancellor of Bristol a desire to reconnect with academia? What do you enjoy the most about the office and the University of Bristol in general?

A: I became Chancellor because they asked me, and they asked me when I’d been in the Court of Appeal for five years. Of course I didn’t know I would go to the House of Lords. So I Dicta 2015 | Page 12 Dicta 2015_Proof NEW.indd 12

27/04/2015 22:06

thought that I was ready to take on something else. And then the moment I agreed to do this job they promoted me to the House of Lords. But yes, the idea of having a formal connection with a University again was extremely attractive, because obviously I love universities. I have always been a great admirer of the University of Bristol, even though my greatest connection with it until I became Chancellor was that I turned down a job there in 1966. It is a fantastic university, and I hope you think so too.

Q: Finally, what one piece of advice would you give Bristol law student as they embark on their own legal careers?

A: What I usually say to people is to do your best at what you are currently doing, because doing so is your best stepping stone to the future, but also to be open to all sorts of offers and possibilities that come your way. That’s what happened to me: interesting things dotted in and I said yes. I think that that works well, rather than necessarily having a specific game plan. Some people have one, but the problem with game plans is that you might have to divert. So work hard and be opportunistic.

Dicta 2015 | Page 13 Dicta 2015_Proof NEW.indd 13

27/04/2015 22:06

London courts: masters of international commercial dispute by Kato Verbouwe

I

n the past decades there has been a noticeable increase of international disputes due to globalization and the growing success of international commercial transactions. In general, such disputes are either solved through negotiation, litigation before the court or through an alternative form of dispute resolution such as arbitration or mediation. Leaving aside its success in alternative dispute resolution, it seems that London is the absolute leading authority in the area of international commercial litigation. People from all over the world are standing in line to make use of the English court system to the detriment of their own national system.

However, certain problems are threatening its preeminent position and it remains to be seen whether it will be able to maintain its dominance or not.

status as a hub of international commercial litigation.

However, London’s dominance is being threatened by recent developments. Other jurisdictions are lurking to grab a piece of its success and make it their own. Dubai and Qatar, for example, have created their own commercial courts, functioning the exact same way as the

If London courtrooms are the masters of international commercial litigation, then the London Commercial Court is the star of the show. As part of the High Court of Justice, it deals with the more high-value national and international business disputes. In practice it seems that it has become a specialized court for international disputes, which is reflected in its efficient and speedy procedures. Its success in corporate, banking and financial disputes is truly overwhelming and clearly illustrates the popularity of the court in international disputes. Figures show that four in five cases in the commercial court involved a foreign party this year and almost half of all claims before the commercial court involved only parties based outside of England and Wales.

This overwhelming success of the Commercial Court was partly handed on a silver platter because of the English language as the official language for commercial transactions. The other part however, is the result of hard work leading to an impeccable reputation of the London courtrooms in general and the Commercial Court in particular. Its history of impartial and specialist judges, consistent and high quality decisions and efficient and speedy procedures, to name a few, all contributed to London’s current

C o m m e rc i a l Court in London and even poaching former English judges. Also Singapore is planning to establish an International Commercial Court with

Dicta 2015 | Page 14 Dicta 2015_Proof NEW.indd 14

27/04/2015 22:06

the objective to take legal business away from London.

High government investment in combination with Singapore’s solid reputation could score a direct hit on London as the number one choice, especially with the rise of the Far East as a market for trade and investment. If Singapore is equally or even more competent, why bother to go all the way to London?

Critics argue that Singapore will at the utmost become Asia’s legal hub as it will only deal with FarEastern cases and therefore only take an insignificant part of business away from London. Even so, it is an encroachment on London’s dominance and therefore important not to

system itself. IT problems in the Commercial court are hindering the flow of information and the efficient transfer of documents, the introduction of the new disclosure rules as part of the Jackson reforms does not seem to reduce the high disclosure costs, rendering the whole process very expensive. The Commercial court applies too wide disclosure norms while in fact it should make use of its case management powers by searching for the right level of disclosure tailored to each case individually. Moreover, overly frequent changes to the rules of litigation results in satellite litigation involving parties initiating new proceedings all because of uncertainties about the new rule in the connected main proceedings. These internal deficiencies are consuming time and money that the Commercial court and the parties do not have.

The threats to London’s dominance as a hub of international commercial litigation should be taken seriously, but there is no imminent danger as of yet. The most urging threat coming from inside the English legal system itself - the high litigation costs are, up to a certain point, clearly not regarded as an obstacle. Parties who litigate in London are able to afford it and if they are not, then they abstain from litigating or go somewhere else. The observation that Russian oligarchs are still inclined to litigate before the London courts on disputes relating to sanctions imposed by the EU and the US also illustrate that London courts remain a popular venue for high-value commercial contracts far outside of Europe. It seems that for now, England, and particularly London, is able to rely on its global reputation as first choice for business law disputes from all around the globe.

ignore.

Besides the emergence of competitor jurisdictions, there is an even more imminent threat to London’s success: the deficiencies inside the English legal Dicta 2015 | Page 15 Dicta 2015_Proof NEW.indd 15

27/04/2015 22:06

Democratic Republic of Congo: whose rule of law? by Jim Robinson

D

But what exactly is rule of law?

emocratic Republic of Congo, 2009.

Conflict is over, officially at least. An uneasy peace hangs by a thread. The international peacebuilding and statebuilding machinery is in town; projects, programmes and initiatives to build Rule of Law is ubiquitous in the programmes and and rebuild the state are up and running. Security. policies of our global institutions. From Aristotle Infrastructure. Disarmament. Justice. to Tom Bingham, the UN to the World Bank, the ‘international community’ are universal in their In such post-conflict, or transitional contexts, support of rule of law, and it is commonly found at government authority is often absent at best. What, the heart of the interventions in situations of conflict then, might rebuilding state institutions look like? and development carried out by UN agencies, What might the rule of law look like? Despite the governments, international organisations and NGOs. ‘official’ end to war in Congo, with the signing of peace And yet – as even its strongest advocates attest – it agreements in 2003 and subsequent Parliamentary remains an elusive and slippery concept, difficult to and Presidential elections, the Eastern Provinces of define, especially beyond specific national contexts the country remain beset with insecurity and violence. and Aristotle’s proclamation that “The rule of law is They are effectively outside the authority of both the better than that of any individual”. The UN itself has national government in Kinshasa and the largest a dedicated Rule of Law Unit (UNROL), committed United Nations (UN) peacekeeping force in the to assisting governments develop a single, state-run world, MONUSCO. Chronic violence and massive legal system organised around a clear and consistent displacement (over 2.2 million) persists. legal framework. With well-equipped justice, security, governance and human rights institutions, the overall The rule of law is absent. If anything, the last 10 affect is to hold public officials and institutions years have been a transition not out of conflict, but accountable. from one form of conflict to another, less acute and more chronic in nature.

Establishing the rule of law has become a critical pillar of contemporary international post-conflict intervention such as that seen in Congo, and something the UN agencies are actively supporting in over 150 of its member states. Since 2000 the rule of law has been promoted as a universal postconflict cure, dominating peacebuilding missions and becoming a means of guaranteeing the liberal state that many international organisations hope for. This sentiment is captured in the comments of Australian lawyer Mark Plunkett, part of the UN team working in Cambodia, ‘True and enduring peace only occurs when there is a genuine return of the rule of law, which is the guarantee for a proper functioning of any emerging or restored state’.

Fit for its post-conflict purpose?

Whilst this interpretation of rule of law is at the heart of so much post-conflict intervention activity, situations of prolonged violence struggle to display the conditions on which rule of law is predicated: that a modern state exists, and that such a state exhibits the strength and organisation to hold a monopoly of law and law-making. The rule of law is very much the rule of state law. Eastern Congo exemplifies the combined impact of a largely absent and untrusted state judiciary, hollowed out through years of violence, corruption and opportunistic meddling, with the co-existence of numerous non-state legal systems typically found cross much of rural Africa.

Up to 90% of tenure arrangements and transactions

Dicta 2015 | Page 16 Dicta 2015_Proof NEW.indd 16

27/04/2015 22:07

are outside formal, state legal and administration systems. Land tenure, access and rights are socially embedded and negotiated processes, grounded in relationships between individuals, and between individuals and their communities. The challenge is that in conflict situations such as eastern Congo these relationships are increasingly informal, and in a state of constant flux. This can have a devastating impact on the population, particularly in the context of large numbers of internally displaced persons.

Necessity, the mother of invention?

However, whilst the aspiration and status of rule of law remains undiminished, there is a shift underway in

which governments and international institutions are beginning to recognise the significance of informal legal systems and actors in the transition from war to peace. Research by Laura Grenfell and Deborah Isser, and borne out in my own research on the UN’s agency for human settlements (UN-Habitat), suggests that ignoring the parts of the population that have no contact with the state and its institutions severely limits the impact that policies and programmes can have. Legal pluralism must be considered. Proponents of this legal pluralism challenge state centrism as an ideological illusion. Multiple sources of law exist – state and non-state – and as they interact, each affects the other in some way, be it through imposition, collaboration and resistance.

Dicta 2015 | Page 17 Dicta 2015_Proof NEW.indd 17

27/04/2015 22:07

This perspective is shaping those in the upper echelons of the United Nations. The UN Secretary General’s 2011 report ‘The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’ advocates for the first time the ‘potential of informal mechanisms in strengthening the rule of law in post-conflict states’.

This position reflects, and shapes, recent moves by UN-Habitat to engage with non-state actors in the development of its work in humanitarian situations in Africa.

In eastern Congo, UN-Habitat mobile mediation teams work on housing land and property disputes, drawing on multiple sources of law in attempts to broker solutions. These teams work alongside traditional leaders, local organisations and communities to interpret cases with respect to customary, informal and statutory law to find the most appropriate solution. They combine the application of negotiated ‘customary’ legal approaches with an understanding of the national and international frameworks that shape their intervention. Increasingly the government is convinced that to see stability in the east of the country, custom and informality must be part of the solution.

the very institutions charged with establishing rule of law, this contentious perspective offers a necessary corrective that embraces alternative actors and legal systems.

Interventions based primarily on strengthening formal legal frameworks are not responsive enough to the rich, complex realities of post-conflict situations.

Alongside Congo, there is a growing body of evidence (see East Timor, Liberia, South Africa) that awareness of this is having an impact at international level. And, significantly, with alternative non-state sources of law come alternative non-state sources of legitimacy and authority. The extent to which governments and international institutions will be willing to embrace this challenge to their authority, even in the interests of peace, remains very much to be seen.

From UN-Habitat’s perspective, this simply reflects the reality on the ground and is the only way to have an effective impact. Having land title formally recognised is no way to secure land in the region, and often an ‘owner’ will opt out of the formal legal system to seek negotiation. One man I spoke with explained how his land was under attack from a man he knew, who had raped his daughter, and kept returning with men and guns. This man had confirmed his ownership of the land through the courts – but in his words, ‘what good was this when there is no-one to enforce it?’

This dilemma is captured in the controversial words of one UN-Habitat official, ‘… you can blather on about the rule of law as long as you like, but if there is no capacity to enforce and no commitment to comply, then what is the point really? You can try to force it, it never works. UNDP has never been successful in implementing a rule of law project where the preconditions of clear capacity and opportunities don’t exist. Look at Somalia… Emanating from inside Dicta 2015 | Page 18 Dicta 2015_Proof NEW.indd 18

27/04/2015 22:07

Untitle

EXCEPTIONAL LAWYERS.

WITHOUT EXCEPTION.

FOR GRADUATE OPPORTUNITIES VISIT

MACFARLANES.COM/CAREERS

Dicta 2015 | Page 19 Dicta 2015_Proof NEW.indd 19 Untitled-1 1

27/04/201510:45:23 22:07 31/10/2014

Making sense of abortion law

by Alex Farrell-Thomas and Roberto Merola

Ireland Spain

Under the Protection of Life During Pregnancy Act 2013, abortion is only legal where the pregnancy involves a risk to the life of the woman, which includes the risk of suicide (in circumstances such as rape and incest).

Nevertheless, critics have argued that the guidelines issued to doctors make it too difficult for women to prove that they are suicidal, given the excessive degree of scrutiny provided for. These guidelines seem to render largely redundant the degree of flexibility introduced by the 2013 Act, as the document purports to “restate the general prohibition on abortion”, and to impose on the procedure “a clear criminal prohibition”.

Any woman can legally terminate a pregnancy within 14 weeks or up to 22 weeks if there is a risk either to the mother’s life or of foetal abnormality.

In 2013, the conservative government proposed a bill under which abortion would only be legal in cases of rape or risk to the life of the mother. However, the bill was later withdrawn due to widespread opposition by the Spanish electorate. A new amending bill has been proposed, which would obligate young girls to obtain consent from their parents or legal guardians before terminating the pregnancy. Several pro-choice NGOs have accused the bill of posing a serious threat to the health and reproductive right of Spanish girls.

Canada

Canada has no law establishing circumstances in which an abortion may not be performed. Although doctors may encourage a youth to inform her parents of her intention to terminate the pregnancy, there is no legal age at which consent of a parent is required.

Pro-life activists argue that this raises serious concerns, as it means some girls might arguably too young to fully understand the implications of their decision when they decide to seek an abortion. There is also here a legal conflict between the legal framework on abortion (or rather lack thereof) and the legal age of sexual consent (set at 16).

Mexico

In many of Mexico’s 31 states abortion is a punishable offence. In 2007, the Mexico City Federal District was the first to decriminalise abortion and to render it free in public health centres in the first 12 weeks of pregnancy.

The rate of illegal abortions in Mexico is high, with an estimated 36% of these resulting in medical complications that require medical attention.

Mexico’s largely Catholic population strongly opposes a change in the law or a relaxation in its enforcement. Between 2009 and 2011, at least 679 women were reported or sentenced for undergoing abortion procedures.

Brazil

In Brazil, abortion is illegal unless the life of the woman is in danger or if pregnancy is the result of rape. Under the Brazilian Penal Code, women who undergo illegal abortions can be sentenced to one to three years in prison, and doctors carrying out the procedure can be punished with up to 20 years incarceration. Despite the restrictive legislation, Brazil’s Ministry for Health estimates that about 1 million illegal abortions are performed in the country annually, and that about 200,000 women are hospitalised every year from infections, vaginal bleeding, and other medical complications.

Dicta 2015 | Page 20 Dicta 2015_Proof NEW.indd 20

27/04/2015 22:07

UK

Abortion in the UK was legalised through the Abortion Act 1967 on the condition that two medical practitioners are in agreement that it is the best available option and that the pregnancy has not exceeded its 24th week. Before 1967, most women who wanted to end their pregnancy were forced to resort to self-induced or backstreet abortions. In 1966, this resulted in the deaths of up to 40 women. At present, approximately only 7% of abortions are due to rape or health complications, the rest being due to personal or other issues.

Russia

Abortion is legal in the first 12 weeks of pregnancy, and in the first 22 weeks if there pregnancy is a result of rape or poses a risk to the mother’s health.

In response to the serious population decline and to an abortion rate that is much higher than that of the European Union or the United States (and that was once considered to be the highest in the world), the Russian government has placed serious restrictions on abortion advertisement. As a result, abortion rates have been steadily declining.

Saudi Arabia

Due to the principles of Islamic Sharia law, abortion is illegal in Saudi Arabia unless it is to save the life of the mother or preserve her mental or physical health, and provided that permission from her spouse or guardian is granted. Thus, abortion is not available where the pregnancy is the result of rape or incest, where there is foetal impairment or for economic and social reasons. A person who performs an illegal abortion is subject to the payment of “blood money”, i.e. restitution paid to the next of kin of a murder victim.

Nigeria

Abortion is only legal when performed to save the life of the mother.

Nevertheless, it has been reported that at least 760,000 abortion happen every year - most of which are illegal -, and that from 3,000 to 34,000 women die annually from unsafe abortive procedures.

Nigeria has one of the highest rates of maternal deaths in the world, and this is said to be considerably linked to the widespread practice of backstreet abortions. The number of unwanted pregnancies is partly attributable to Nigeria’s poor policies regarding access to contraceptive services.

China

The Chinese Criminal Code allows abortion under all circumstances, and termination procedures are provided by the State as a public service. The “one child policy” coupled with traditional consideration of births of girls as a burden (the policy allows parents to have a second child if their first is a girl) have led to a concerning sex ratio of 116 men for every 100 women (natural population variation sees the ratio roughly at 105:100). The one child policy has recently been relaxed to allow families to have two children if one of the parents is an only child.

South Africa

India

Under the Choice on Termination of Pregnancy Act, all women have the rights to terminate the pregnancy within the first 12 weeks, and from weeks 13 to 20 in certain circumstances (including where there is a risk to the woman’s health or where having the baby would significantly affect the woman’s social and economic situation). Some have criticised the implementation of the legislation as inadequate.

Though state services are free of charge, they are often not readily accessible. Moreover, when seeking an abortion women often face strong harassment and stigmatisation based on the predominantly pro-life social norms and beliefs of the country.

The 1972 Medical Termination of Pregnancy Act renders abortions legal up to 20 weeks where the pregnancy involves a risk to the mental or physical health of the woman, and where there is a substantial risk that the child will be born with serious physical or mental abnormalities. An adult woman seeking an abortion requires no other person’s consent except her own.

The Indian government has sought to curtail the country’s growing population by incentivising women to be sterilised (often in exchange of 1,400 rupees, i.e. 14£). Between 2003 and 2012, 1,434 women died from such procedures, often carried out in what are known as “sterilisation camps”.

Dicta 2015 | Page 21

Dicta 2015_Proof NEW.indd 21

27/04/2015 22:07

What was wronga with Wonga?

by Ned Kemp

A look at the recent changes affecting payday loans and implications for their clients The Financial Conduct Authority has imposed new regulations resulting in payday loan companies’ APR falling from 5,853% to 1,509% and the repayment total would never exceed double the loan amount.

For most, these changes are heralded as a success against the bullying, immoral, money-hungry ‘sharks in disguise’ that prays on the financially vulnerable.

The media has painted payday loan companies as a dark hand dropping the suggestible working class into a downward spiral of debt using underhand advertising and marketing techniques. But are the new regulations adequate and will these changes put those in need of short-term loans in the hands of unregulated and more dangerous means of lending?

Wonga insists that it has always been transparent. I wouldn’t dispute this, they have always told customers up front how much it’s going to charge them and it being entirely up to them to decide whether to agree to such extortionate costs.

This is somewhat of a ‘take it or leave it’ choice with little alternatives; unfortunately some people being in such a financial situation that they have to take it.

People who call upon payday loan services do not have the option of seeking out cheaper alternatives as this segment of the market has little price competition. The industry has been described as a necessary evil that uses high

interest rates to protect against the precarious nature of their loans and higher probabilities of default.

There is undoubtedly a pressing need for companies that provide credit to those who would otherwise be shunned by mainstream lenders.

Ultimately, it wasn’t the higher interest rates that meant lending practices were immoral; it was company neglect of their obligations in ensuring that their customers were capable of repaying the loans.

Subsequently abandoning the very economic concept of ‘payday loan’ and thus creating a questionable market for lending that never previously existed.

The new FCA regulation that came into force on the second of January 2015 focuses primarily on the price cap for highcost shortterm credit.

I fear this is a misapplied challenge of what the media has painted as the cause and what is in reality the cause. The cause is the flouting of the affordability checks with poor scrutiny of loan-to-income ratios.

Ultimately people were falsifying their income on application forms and, as BBC’s Panorama found, even openly declaring they were unemployed in branches and still gaining payday loans.

It is for this reason that payday loans became an attractive means of credit for the unemployed, those on benefits and the most financially

Dicta 2015 | Page 22 Dicta 2015_Proof NEW.indd 22

27/04/2015 22:07

vulnerable. Greater scrutiny into the payday loan industries adherence to the affordability rules has fallen as a secondary consideration for the FCA. We are yet to see if payday companies will comply with such rules and how the FCA aims to investigate and ensure compliance in ensuring prospective customers are capable of repayment. Wonga having to repay £220m to customers for inadequate checks has certainly been made an example of - deterring other payday lenders from ignoring regulations. What should be noted is that a probable alternative for those who may be now turned away from payday lenders are illegal loan sharks.

Many will associate Loan Sharks as fictitious mobster entities seen on 80’s gangster movies that will ‘cap your knees’ if you don’t meet the repayments. Whilst a fedora and a tommy gun is no longer a necessity, the risk of getting into hostile debt and the potential for violence and threats from illegal loan sharks is real. Unfortunately, illegal money lending in England saw a 62% rise in 2013-14 and an estimated 310,000 households are borrowing up to £700million a year from illegal lenders. At a conservative estimate, one in four people who used payday loans will now no longer be able to access the level of credit they need. This need for credit is not going to disappear, the reduction in access to these forms of regulated lending opens up huge opportunities for unregulated lending beyond the guise of the FCA. Those who were exploited and dependent on payday loans during the period of lax regulation now seek credit alternatives. Banks won’t give loans due to poor credit and low income. If your lucky enough to be offered a credit card with a poor credit rating it won’t be from high street banks and you will be expecting to pay 35%+ APR against the competitive 0-3% high street credit cards. Then we have credit unions, frequented touted as offering an ethical alternative to banks – but are they a safe place to put your money and do they fill the gap that payday loans has left?

Credit Unions cannot charge more than 2% interest a month on the amount owed – an APR of 26.8%.

institutions. Whilst credit unions certainly appear to be a lifeline for those struggling to qualify for high street borrowing and a safe alternative to payday loans, they do have some drawbacks.

Credit unions illegibility is determined by criteria fields such as employee groups, associations, religious or fraternal affiliations and residential areas. Credit unions have fewer account options, poor online services, limited ATM locations and hurdles of credit checks and account stability prior to acquiring a loan.

An average of 6 UK Credit Unions are going bust each year. Liquidation is mainly caused by being hit with bad debts. The current expansion of Credit Unions coupled with the increased requirement to cater for short-term loans for those no longer able to access payday loans is going to put a strain on their ability to cope with an undoubted increase in risky lending and bad debts.

Ultimately, those most likely to utilise a payday loan may not pass credit checks and have the account stability to acquire a Credit Union loan let alone fall into the criteria field such as employment to even be eligible for an account. Payday loans provide ‘funds in 15 minutes’ and ‘no need for a guarantor’, and this is what attracts their clientele. They don’t want to fill in forms and open accounts, they want to slide digital scales and cash in hand.

The requirement for easy access credit is not disappearing but with tighter regulations the providers of such loans are disappearing. It is a real risk that illegal lending from loan sharks may be the only source of emergency credit available for the most financially vulnerable.

They are a financial community that mutually benefits members and are ‘not-for-profit’ in that cash is only used to run the service and reward members, and not to pay outside shareholders like most other financial Dicta 2015 | Page 23 Dicta 2015_Proof NEW.indd 23

27/04/2015 22:07

An exploration of the UK fracking debate: does the law protect public interests? by James Marlow

A

storm is coming. As the government intensifies its efforts to push fracking into the forefront of energy policy and to move into exploration phases across the country, industry and government relationships with the public are being tested at a new level. A deep rooted mistrust of the oil industry and scepticisms about the cosiness between government and oil majors fuels the growing public argument that hydraulic fracturing companies should just “frack off”. Please read the phrase twice, the writer does not wish to subject himself to claims of public offence. In this vociferous context, to what extent can individuals look to the law for shelter?

be legally removed from the land and only allowed to protest in other areas for “hours at a time.” At a period when members of the public would look to the legal system for protection of valid expression of belief, it is almost shocking that the High Court, by seeking to protect the private interests of the Council, effectively insulated Cuadrilla Resources from consistent and qualified protest. Moving on, exploration of specific pieces of legislation underpinning the onshore extractive industry reveals that current law is woefully inept at protecting individual’s rights both to know that their environment will be protected and to know that their land is protected from the drilling claws of companies such as Cuadrilla.

“Government and industry are rushing towards fracking exploration and effective legal restraints are being swept aside”

A fundamental right that citizens in that United Kingdom enjoy is a right to protest. The recent protests in Balcombe, Sussex against the exploratory drilling activities of Cuadrilla Resources raised significant public awareness of the fracking industry and made many people think critically about whether the UK should embrace this oil and gas extraction process.

One protester held that Cuadrilla’s activities had the potential to lead to “a violation of our geology that could threaten our water, fresh air and our children”.

Soon enough, the protesting reached the High Court with the local council seeking an injunction against the protestors from occupying, obstructing, and interfering with the use of the council’s land.

Considering environmental protection, current UK law provides that companies that intend to extract from an area greater than 1 hectare must carry out an environmental impact assessment. This process requires the developer to construct a report which identifies the main effects of a project on the environment and allows members of the public to engage with improvement of the project. The legislation, however, is prone to a fundamental weakness. This is namely that companies can “salami slice” their projects, effectively splitting the projects into smaller slices so that an environmental assessment is not required. This is not an irrational fear. In 2009-2010, Cuadrilla applied for a series of planning permissions for exploratory drilling at sites Judge Seymour reached the conclusion that “there is in Singleton, Kirkham, Becconsall and Wharles. It is no right…to establish a camp which is intended to be almost comic that each of the proposed sites was filed at least indefinite as to duration upon public land” as concerning 0.99 hectares of land. This illustrates and this was notwithstanding Articles 10 and 11 of both the ability of fracking companies to deceive the the European Convention on Human Rights. The legal process as well as the fundamental deficiencies result of the decision was that the protestors could that exist in a piece of law which aims to protect our Dicta 2015 | Page 24 Dicta 2015_Proof NEW.indd 24

27/04/2015 22:07

environment; our most precious resource.

Most recently, the controversial Infrastructure Act 2015 has reformed trespass laws so that fracking companies will be allowed to drill under homes beyond 300 meters without the permission of the owner. Whilst the High Court sought to protect Sussex Country Council’s private land interests, this new law has significant potential to violate the right home owners have to peaceful enjoyment and ownership of the whole of their own land. One might be prone to argue “who cares?” If a metal pipe passes under one’s sofa 300 meters below, this is unlikely to infringe peaceful enjoyment. What the Act does represent, however, is a use of the law to steamroll

over the rights of the public. Furthermore, this writer is not encouraged that the current legal limit of 300 meters beneath the surface will hold. Who genuinely believes speed limits are adhered to? The fracking floodgates have been opened and it may not be long until new law is passed which permits drilling at 200 metres, 100 metres, 50 meters.

The rather unfortunate conclusion to be drawn from the above is that members of the public seeking to assert their opinions and rights to have protection of their environment as well as their own land will find themselves facing a political tsunami. Government and industry are rushing towards fracking exploration and effective legal restraints are being swept aside.

Dicta 2015 | Page 25 Dicta 2015_Proof NEW.indd 25

27/04/2015 22:07

The big oil drop: some repercussions and what it means for the commercial lawyer by Robert Cox The precipitous crash in the price Brent Crude Oil in the summer of 2014 - from over $115 per barrel to near six-year lows of below $50 per barrel - was big news for just about everyone. A booming shale gas market in the US and an unyielding price-war effectively declared by OPEC nations in their (or more appropriately Saudi Arabia’s) uncompromising but understandable refusal to cut oil production created a glut in supply. This was met by flagging global demand, symptomatic of a prolonged period of sluggish and stalling growth in Europe and China.

When this nexus of factors compounded and reached tipping-point, the only way for oil prices was down, hard and fast.

For us, the consumer, the effects have been comparatively nominal. The price of oil at the pumps, energy at home, even the cost of flying, has seen some minor decline. But the trickle-down benefits for the consumer, despite some notional political will, have been slow and, well, underwhelming given the noise being made on the issue. Analysts had predicted that the plunge would put more cash in pockets and bolster consumer confidence on the long road to recovery.

While this may yet be so, all things considered, the impact on consumers is sadly not the reason why the oil price slump is so worthy of our attention.

gas sector at large. Already there are signs of recoil throughout the industry, as billions have been wiped from oil company stock prices. No industry player - not even a market-dominant oil major is immune to a systemic shift of this magnitude and rapidity, and there is no place for idle inaction. Determined to secure dividend pay-outs to shareholder, one by one some of the biggest names in the sector announced a string of eye-catching cuts in capital expenditure and called, essentially, for a period of reset.

BP announced a $1bn a year savings plan through some stoic capital expenditure cuts, with T o t a l

What is, and will continue to be, of greater interest is the pervasive impact the drop is having on the global oil and

Dicta 2015 | Page 26 Dicta 2015_Proof NEW.indd 26

27/04/2015 22:08

similarly planning to shed its capital expenditure by 10% alongside the accelerated flurry of asset disposals in underperforming areas of its business. Jobs are certainly at risk, and the work of specialist freelance contractors will no doubt begin to dry up. Across the board, attempts are being made to streamline businesses, increase operational efficiencies and productivity and, ultimately, ring-fence and protect that precious little thing called profitability.

Back to the drawing board with business strategies and investment plans, as many recognise the need to redirect and adapt, if not overhaul, the direction their business is headed in the current climate of low prices. Even as prices begin to rise tentatively and price volatility starts to plateau, the prospect of a return to normality - to business as usual - any time

soon looks bleak. The International Energy Agency recently announced that this process of “adjustment is playing out against a backdrop which is constantly changing”. It warned that this act of rebalancing remains delicately poised, with the outlook for the global oil market “only getting murkier”. The economic climate for the oil and gas industry has changed irrevocably.

Readjustment: this is the word on the lips of those sensible and prudent enough to realise that the dip is not fleeting or transient. Rather, it is the new industrywide norm which companies will have to confront squarely at least for the short-to-mid term to keep cautious lenders from pulling the plug and anxious shareholders from jumping ship.

Mature, expensive, technologically challenging, highrisk and less profitable projects are being scrapped or put on hold. Shell, for instance, has abandoned plans for one of the world’s biggest petrochemical plants, a $6.5bn project with Qatar Petroleum, blaming the prevailing poor economic climate in the energy industry. Premier Oil, too, has put off a $2bn Faulklands oil deal. Investment opportunities in projects will now be scrutinised with a much more thorough and refined degree of risk analysis and conservatism.

Project financing itself may also suffer as banks become increasingly reluctant to fund projects whose flow of revenue, usually used to pay back loans directly as it is generated, has inevitably dwindled. The fall in the price of oil will depreciate the value of one of an oil company’s most intrinsic assets: its oil reserves. This would often represent the value of collateral which a company is able to provide a bank in exchange for a drawdown of funds. The less the value of what it can offer in security, it follows, the less the

Dicta 2015 | Page 27 Dicta 2015_Proof NEW.indd 27

27/04/2015 22:08

amount banks are willing to risk lending. Making substantial strides towards achieving organic growth when the price of oil has hit the floor is all but out of the question; it is a risk which companies, and their banks, would be prudent to avoid for now.

more than a decade. As oil companies scramble to cut costs and marginalise their losses, this mega-deal is expected to set in trend a spate of M&A deals and trigger a period of industry-wide consolidation.

Commercial lawyers may also be tasked with If organic growth is not the answer, bringing with it substantial restructuring work, as energy companies a host of its own problems, then this goes some way look to restructure their debt/equity ratios to ensure towards explaining the shift in sentiment towards that they have healthy enough balance sheets to inorganic growth through merger and acquisition maintain their credit ratings and receive, if possible, (M&A). At both ends of the spectrum within the sector, uninterrupted access to capital. On the disputes side M&A will likely see something of a boom period. At too, commercial lawyers will most certainly be kept busy. Oil producers often lockone end of the spectrum, smaller in prices well in advance in order highly-leveraged companies which to meet certain lending criteria. would otherwise collapse are Under historic deals, oil-dependent looking for rescue deals that might buyers on the other side of these provide immediate financial relief lock-in contracts that have not and a crucial pooling of resources hedged their exposure to sudden that will help see them through price fluctuations may be paying a sustained period of faltering up to double the spot price of oil. organic growth and low prices.

This, in turn, is likely to give rise to increased instances of parties defaulting on their contractual ExxonMobil has already obligations, with buyers looking for any excuse to walk let known its feverish away from their now highly onerous and unprofitable opportunism in the bargains. current market, looking for M&A deals with small Helping businesses manoeuvre with agility the harsh companies to expand its and unforgiving contours of a market plunged into expertise and geographical volatility is but one vital function of the modernreach incrementally and day commercial lawyer. The big oil drop is not all at a bargain. On the other doom and gloom. Though the price of oil has come end of the spectrum, oil crashing down, the opportunities for commercial majors could look to lawyers should soar as they continue to help protect each other for strength and shore-up the operations of those who play in this and consolidation. global market.

Shell’s recent acquisition of Indeed, it is precisely in problematic, transitory BG Group for periods like these when commercial lawyers are called £47bn stands upon most to hold the rudder steady and steer the as the ship. i n d u s t r y ’s biggest deal for

“adjustment is playing out against a backdrop which is constantly changing”

Dicta Dicta 2015 2015 || Page Page 28 28 Dicta 2015_Proof NEW.indd 28

27/04/2015 22:09

An unlikely path to entrepreneurialism: An interview with Coffee Republic’s Sahar Hashemi

by James Marlow and Ned Kemp

S

ahar Hashemi went from Bristol Law graduate to founder of the UK’s first US-style coffee bar chain Coffee Republic. With an OBE, author of bestselling book ‘Anyone Can Do It – Building Coffee Republic from Out Kitchen Table’ and founder of her more recent business Skinny Candy, Sahar gives us an insight into her short career in the law and how her legal experiences influenced her life in business.

Q: So having been a lawyer, do you think that it is glamorous?

A: After leaving Bristol my career in law began with Frere Cholmeley and Bischoff. I loved writing legal articles, but the work wasn’t glamorous for me because I do not think I was a particularly good lawyer. For a lot of my colleagues who were good at it, it was glamorous because they enjoyed it and they were doing something they were really good at. But the key to life is to find something that you’re actually good at and being Q: Why did you initially decide to study law? a solicitor did not play to my strengths so I did not perform to A: There used to be glamorous programmes about lawyers when my best.

I was growing up – I think it was called Legal Eagles or LA Law – that gave me the impression that being a lawyer was Q: Was being a solicitor quite different from rather glamorous. Also when my family came over to move to what you expected? the UK we had some problems with VISA’s and a lawyer from Freshfields came and saved us and it was from that moment, A: Not really, the slight shock was moving on from being a I must have been eleven or twelve, that it became my dream to trainee. As a trainee I was always moving from project to project grow up and be a lawyer: I admired the power and influence which was interesting and stimulating. However, as soon as I became a qualified solicitor, I was left inside a room and given they had. documents to draft. As a junior associate I was more involved in Dicta 2015 | Page 29

Dicta 2015_Proof NEW.indd 29

27/04/2015 22:09

the clients’ business but it was a lot of dotting I’s and crossing and unsure of their career direction that it is T’s and it did not really work for me. Others were relishing and beneficial to have that grounding in a legal training environment? flourishing in it.

Q: Do you think your experience in the law A: It is the best training. As you know, I advise a lot of and your legal training has influenced your entrepreneurs and I always say to young people to get experience in a big company as they can train you well. Just as a lawyer, approach to business? you learn the basics of business and this is how you get the A: Tremendously. As you know my book is called ‘Anyone Can foundation for entrepreneurship if you choose it. It is so valuable, Do It’ and I think that anyone can do it but what you need is a I learnt so many lessons in my first two years at the law firm certain discipline and persistence and my training as a lawyer even the photocopying, and working right from the bottom of the gave me good grounding for this. The way you are taught to gather organisation and seeing how things work is such a huge asset. facts and to meticulously process information has been incredibly Make the most of your legal education and being at a great useful. It is a huge asset and I always suggest to people to not university where you will get the offers for training at reputable go off and be an entrepreneur straight from university. Instead, firms. It is the best use of the first three years of your life after go and get some proper training and for me the law was the best you graduate. training I could have ever have received.

Q: This leads us nicely on to considering a Q: Do you actually ever delve into the legal big buzz word now which is ‘commercial awareness’. Do you think it is extremely side of your businesses? important to not just have the legal knowledge A: No, I did not touch the legal side. Some people are often but to have the business knowledge and surprised saying ‘well aren’t you a lawyer?’, but I did not want commercial awareness? to be involved. The adult side of law just did not resonate with me. You just have to go with what comes naturally to you and A: When you are in a law firm, you have different kinds of the only way to know what that is, is trial and error. You have to clients and are exposed to different kinds of businesses. It is leap into something, give it a try and see how you are against it extremely important to have an appreciation of the commercial world. As an entrepreneur you are stuck in a room by yourself and find something both your good at and you enjoy. calling up suppliers and trying to get money, you need lawyers Q: What are your thoughts on how vocational to understand your objectives and the commercial mechanisms, not just rules and statutes. Seeing the mechanisms of a large a law degree is? company such as a law firm is such a huge asset. One of the A: I think that if you are going to do a law degree it is a good biggest assets in my career and the reason I have confidence to idea to go off and train as a lawyer because a law degree is do things is because of that time I spent in a firm of solicitors. vocational, it is not going to hugely expand your mind, there is a purpose to a law degree. In order to make the most of your law Q: As a prospective trainee going into a degree, its worth doing the LPC/BPTC and going into the law. commercial law firm, you mentioned training I find that for those who studied a more general degree, there is and entrepreneurialism being fairly different. a lot of confusion as to what they will do after so it can take a Would you say that it is possible for a lawyer to long time to find their feet. When you are young it is good to have be entrepreneurial during their training? the focus; like a machine you go straight into your legal training and into a law firm. In a way, there aren’t that many choices A: When I was growing up, there was Richard Branson, so in and that is healthy because you are fast-tracked into a job and that context the only way you could be an “entrepreneur” was if you chose not to go to university and you were some sort of get all the experience and learn it fast. school drop-out. People who went to university and studied law Q: Would you say then to students that are were the stereotypically the opposite of entrepreneurs. When I daunted of being in the outside world of work first started Coffee Republic I became the client rather than the Dicta 2015 | Page 30 Dicta 2015_Proof NEW.indd 30

27/04/2015 22:09

lawyer. We (my brother and I) hired the typical old-style solicitor as I knew no better. All s(he) told me was how I could not do something and I dreaded every phone call from him because his brain was completely left-brain and everything I was doing was completely right-brain. Then I came across a solicitor who was very entrepreneurial who had a completely different approach.

They understood me and my business and tried to make my ideas happen rather than being the one to tell me what I could and could not do. That is what I believe the solicitors of the future will be, you can be a solicitor and be entrepreneurial; that means having more empathy with your customers and creating solutions. I think the law firms that are going to survive are the ones that genuinely connect with their customers and are able to be entrepreneurial and align their thinking with their customers. This new world demands lawyers to have commercial awareness and understand how to make things work for clients.

You are there to find the solution, and that’s what I think an entrepreneurial lawyer is.

Q: Do you regret publicly listing Coffee Republic? It was a way for expansion but it arguably led to its demise.

A: When I was studying at Bristol, if someone had told me I was going to be doing this with my brother I would have never believed it. But together we made the perfect entrepreneur, I was focused on products and he had a commercial mind. There were moments when we were plotting each other’s deaths but the next day going for a drink. That’s the good thing about starting a business with family, there is no politics and you can be honest about how you feel and your decisions can be totally transparent.

Coffee Republic benefited from it.

Q: You recently sold your latest business Skinny Candy which is a sugar free sweet business. What made you decide to move into confectionary?

A: Hugely, I think if we could do it again we would have expanded much slower and kept the company to ourselves. I think public companies put huge pressure on performance and I was doing something I loved with no one to answer to. However, the agenda of public companies can be quickly distorted and values undermined.

Q: Do you think that it is possible for companies to retain their integrity and values whilst being committed to growth?

A: Yes, that is what I do at the moment. When companies get big the key is to keep it small. I don’t think we realise it but the successful company of the future is a company that is big but still feels small to retain that level of agility, flexibility, and Q: Moving away from your legal background, creativeness and out-of- the-box thinking. Mistakenly, when you started your first business with your Coffee Republic was growing, we thought ‘we get big, we go brother. Was that relationship tested during public’, but going public and big is the opposite of innovation and what we need at the moment is innovation.

Coffee Republic’s early years and beyond?

Q: Bristol is now known for its independent coffee shops, do you think that people might start to move away from the big chains?

A: I always start businesses for my own personal need. I loved cappuccinos and skinny lattes and that’s how Coffee Republic started. I love sweets but clocked onto the evils of sugars that everyone is very aware of these days. So I thought ‘what about coming up with sugar free confectionary?’, what if I could have my fruit pastels but they be sugar free, instead of just being restricted to sugar free gum?

Q: What would you say to people who argue A: Definitely. 100%. I think people are tired of the big chains there are no gaps in the market any more and and the really exciting stuff is the independent artisan coffee everything has been invented? shops. If I were to open one I would open a non-branded chain. When we first started Coffee Republic the idea of being A: I would refer to the quote from Chairman and CEO of IBM a chain was consistency. Before America, my inspiration came Thomas Watson who said ‘I think there is a world market for from a good coffee shop opposite the Wills memorial building. maybe five computers’. Its ridiculous, the more things change the I remember every break we would all gather in that coffee shop more gaps there are. People say we live in difficult times, but the and my first love of Cappuccinos happened there. How amazing advantage of difficult times is that things move more quickly and that is where the gaps are. The key is to always be looking that Bristol has these artisan coffee shops now, its brilliant!

Dicta 2015 | Page 31 Dicta 2015_Proof NEW.indd 31

27/04/2015 22:09

for the gaps and when you see it you grab the opportunity!

Q: What are your plans for the next five years?

Q: You are a very successful businesswomen A: At the moment I advise a lot of companies on how to think with many accolades, but what is your like entrepreneurs. I do not work towards long-term goals but proudest achievement? rather six months ahead. I set myself shorter goals because they are more realistic to achieve and I think that goals that are too A: My proudest achievement is doing something I absolutely big can be daunting. In 6 months time I want to start a blog love that does not feel like work. Coffee Republic showed me and this will be a completely new thing for me. I would like to that doing something that you enjoy is an amazing feeling. I communicate more on my thoughts about being entrepreneurial. am happy that what I do and the way I earn my living is something I would do even if I was a billionaire, its like a My final advice would be there is always time for entrepreneurship; hobby, its something I do out of choice. Money is not my biggest there is no time limit or age limit. As lawyers, you have the motivator. People may be in a job that earns them a lot of money opportunity for proper training and to learn from the ground up but they consider their job a life sentence. Real success is finding how businesses work. That’s the best opportunity. Legal training something that you enjoy doing. can provide the base for entrepreneurship.

Dicta 2015 | Page 32 Dicta 2015_Proof NEW.indd 32

27/04/2015 22:09

A war of words: defining terrorism

by Shyma Mukred

L

anguage shapes the way we think. It is a powerful political tool. There are literal definitions, which can say one thing, and there are connotations that influence our thought and emotions. “Terrorism” is a word that we hear all too often. Although we can agree with the Representative of the UK to the UN when he said “what looks, smells and kills like terrorism is terrorism”, as lawyers we need an objective and abstract definition that can be applied before the fact rather than on a retrospective basis.

Indeed on the inter national law level, defining terrorism as a legal concept has been an arduous task. Richard Baxter, a prominent inter national lawyer has famously noted “we have cause to regret that a legal concept of “terrorism” was ever inflicted upon us. The term is imprecise; it is ambiguous; and above all, it serves no operative legal purpose.”

The United Nations does not have an internationally agreed definition of terrorism. The lack of a consensus on the definition has even prevented the UN from adopting a Comprehensive Convention on International Terrorism.

On a national level, there are legal definitions for terrorism. The Terrorism Act 2000 defines terrorism as the use or threat of action designed to influence the government or an international government organization or intimidate the public for the purpose of advancing a political, religious, racial or ideological

cause.

Of the 63 proscribed international terrorist groups in the TA 2000, 53 are based on Islamic ideology. It would be safe to say that the connotations of terrorism primarily evoke notions of Islamic extremism.

For the past decade, the poster children of terrorism have been those so-called “Islamic extremists”: the likes of Al-Qaeda, Taliban and, more recently, ISIS. While it is very easy to label organizations that are universally despicable such as AlQaeda and ISIS as terrorists, it becomes more difficult to define groups who commit acts outside of the traditional terrorism norm. The subjective politically and emotionally charged nature of the term is most evident when the discussion turns towards distinguishing between “terrorists” and “freedom fighters”.

Israel classifies Palestine’s Hamas as a terrorist organization, so does Australia, Canada, Egypt, Japan and the US. However, Palestinians, along with Iran, Russia, Turkey, China and Qatar would classify Hamas as a legitimate resistance movement against unlawful Israeli occupation. Much in the same way Great Britain viewed the IRA compared to how they were viewed by the Irish public in the early 70’s. It is an overlooked fact that Al-Qaeda and Taliban were once known as “Mujahideen” and were financially

Dicta 2015 | Page 33 Dicta 2015_Proof NEW.indd 33

27/04/2015 22:09

backed by the US when they fought against the same difficulties arise if the attackers were Caucasian, Soviet Occupation of Afghanistan during the Cold Christian and non-immigrants?

War. This shows that perceptions of terrorism are subjective and subject to change over time.

The bigger concern is the consequence of this sort of thinking on the way that the Muslim population The boundaries are even more blurred in the context is viewed by the rest of society. The language of of a civil war or military coups where state terror is terrorism and its connotations play a large role in combatted by rebel oppositions. To President Assad isolating Muslims from the rest of the community, and the National Syrian Army, the Free Syrian Army albeit on a subconscious level, particularly in response is a terrorist militia. The rest of the world celebrates to attacks, rather than on an explicit everyday the FSA as “freedom fighters” combating against discriminatory level.

Assad’s state terrorism.

It is this precise point that David Cameron failed In the discussion of terrorism, much of the focus to realise when he condoned the letter written by is placed on foreign organizations and “Islamic Communities Secretary Eric Pickles addressing The extremists”. Understandably so, given not only the Muslim Council of Britain with regards to tackling high profile nature of their attacks but also due to extremism. Part of the letter encourages the MCB to years of the media and political leaders subjecting the take responsibility to demonstrate how “Islam can be public to relentless fear mongering. part of British identity”. The MCB took issue with the wording of the letter because it suggests “the idea Domestic terrorism is used to describe violent crimes that Muslims and Islam are inherently apart from committed by national citizens that are ideologically British Society”. motivated. Eco-terrorism is a type of domestic terrorism motivated by environmental issues. Tactics We have come along way from resorting to the invasion usually include causing economic damage but it of sovereign nations as a response to terrorism. can also be fatal. The infamous eco-terrorist, the Islamophobia is drastically less pronounced than it “Unabomber”, killed 3 people and injured 23 others was 10 years ago. The public and social media have through letter bombs. come to the defense of Muslims following attacks such as the Sydney Seige and Charlie Hebdo with The FBI considers eco-terrorism the no.1 domestic #I’llRideWithYou and #JeSuisAhmed showing their terrorism threat in the US. Yet it seems the layperson solidarity with Muslims. The world is beginning to does not take this threat quite so seriously. The realize that a few rotten apples does not spoil the term “radical environmentalism” does not bear bunch. In other words, the acts of radical minorities the same menacing tone as “Islamic extremism”. are not a reflection on the entire religion and the Environmentalism is commonly associated with beliefs of the majority who follow it. imagery of peace-loving, tree-hugging hippies. One would struggle to conceive such an ideology as capable In their display of solidarity people often use a version of producing violence. Yet these reservations do not of the following statement: “I know a lot of peaceful/ apply when thinking about Islam. These attitudes friendly Muslims and the mainstream/moderate/ allude to hardwired perceptions that influence the average Muslim does not condone the acts of those way we think about terrorism which hinder the search radicals/extremist”. There are several issues with for an objective definition. statements like this. While the sentiment is admirable, the language is somewhat flawed.

The attack on Charlie Hebdo in Paris, the 7/7 bombings in London, and the Boston Marathon Why is there a need to specify Muslims of the “peaceful” bombing were all committed by nationals. Yet there or “friendly” variety? If you can substitute the word is a reluctance to refer to these attacks as domestic, “Muslim” with “Pit Bull” and still make sense, we instead the perpetrators’ beliefs and backgrounds are have a problem. Using qualifiers such as “peaceful” emphasized in an attempt to explain their acts by or “friendly” has the undesirable consequence of portraying them as “outsiders” and demonstrating actually perpetuating the stereotype that Muslims are their remoteness from the national culture. Would the by default, hostile and unapproachable.

Dicta 2015 | Page 34 Dicta 2015_Proof NEW.indd 34

27/04/2015 22:09

Moreover, contrasting “moderate” Muslims against “extremist” Muslims implies a link between religious conformity and the tendency to condone or commit acts of religiously motivated violence. It suggests that Islam is a spectrum. On one end, you have your friends and neighbors. At the other end, you have underwear bombers and people who behead journalists. This logic is tragically misguided. You wouldn’t consider a priest or a nun a “Christian extremist”.

A consequence of this assumption is that Muslims may feel the need to downplay their level of conformity in order to divert the negative connotations that might arise and prevent people from making judgments about them.

This erroneous correlation leads to the misconception that Islam at its purest form and when practiced to its full extent is a religion of terror and violence. The source of this misconception is these fanatics who have stained the reputation of Islam with blood and hatred. They abuse Islamic expressions by featuring them on their flags and posters and recite out of context and misinterpreted Quran verses in their propaganda videos.

Prominent religious scholars and authority figures have repeatedly condemned terrorist groups. In an open letter contributed by over 120 Muslim scholars denounced the Islamic state by reference to fundamental Islamic principles. A summary of the letter includes the following: “It is forbidden in Islam

to kill the innocent”; “Jihad is a defensive war”; and “It is forbidden in Islam to attribute evil acts to God”.

Labeling terrorists as extremists is a misnomer.

Terrorist groups follow not an extreme version of Islam, but a wholly warped and unfounded conception of it. What they call Islam bears no resemblance to its actual true form and inherently contradicts its most fundamental values. They use the rhetoric of religion to serve their malicious political agendas and justify their pre-existing disposition for evil. Therefore, terrorist groups have by their very actions lost any claim to the religion. Regardless of what holy purpose they claim to be serving. To quote the brother of the French Muslim police officer who was killed in the Charlie Hebdo attack: “one must not confuse extremists with Muslims. Mad people have neither colour or religion”. Continuing to refer to these people as “Islamic” only gives substance to their claim to be acting in the name of religion. It validates and further fuels their distorted beliefs.

I propose to refrain from using the term terrorist and specifically Islamic extremist. Instead referring to perpetrators by their criminal acts and not by their beliefs, whether they are “bombers” or “murderers”.

Not for the sake of politeness or in the pursuit of a policy of political correctness. But in an effort to rehabilitate the stained reputation of Islam in the West, revoke legitimacy from violent criminals, and begin to reverse the damage that this language has done to perpetuate subconscious social inequality and the isolation of Muslims from British society.

Dicta 2015 | Page 35 Dicta 2015_Proof NEW.indd 35

27/04/2015 22:09

Singapore: why “rule by law” when you can have Rule of Law by John Wu

A

ccording to Sir Isaac Newton, for every action there is an equal and opposite reaction.

Similarly, Singapore’s majestic growth from a “rejected” nation to one of the economic power houses in Asia came with considerable sacrifice. The price Singapore has paid: allowing the rule of law to give way to empty legalism. Respect for the rule of law cannot solely be engendered by formal conception, since this would give way to mere legalism which could, potentially, allow unjust laws to perpetuate through valid procedures. It is hoped that Singapore’s 50th anniversary will serve as a reminder to its people not to forget why they struggled to break free from their colonial masters. It is envisioned that one day, Singapore will embrace and encompass notions of natural justice, equality and liberty.

Singapore legal system is one of “rule by law”, not “rule of law”, where law is apprehended in formalist terms rather than the more substantive and justiceoriented concept so as to produce benefits for society and individuals beyond economic well-being. A legal

“as part of the ideal of law, the rules in the book capture and enforce moral rights” regime not validated in democratic practices and not respecting human rights does not qualify as a manifestation of the “rule of law”.

Conceptualising the lack of Substantive Rule of Law: The Singapore Model Rule of Law For those who are unfamiliar with the history of Singapore, we were formally part of Great Britain.

When we gained independence (in 1965), the English common law was imported into Singapore.

Fundamental aspects of British constitutional theory were relied upon namely the concept of parliamentary supremacy, separation of powers and the rule of law but, through the adoption of a written constitution, the Singapore constitution has flavours of American constitutionalism.

The hallmark of a liberal democracy is that we cannot rely solely on an entirely formalistic, Kelsenian notion of the rule of law.

In sharp contrast, the predominance of “Neo-Confucianist” school of thought in Singapore, which is the concept of government by honourable men who have a duty to do right for the people forms the foundation of Singapore’s national ideology. This is reflected in Singapore’s priorities in effective governance: the need to secure political and social stability by At the time of nation building, much focus was placed curtailing civil and political rights so as to facilitate on regulating commercial transactions in order to economic growth. promote economic developments. This has fostered a sense that law should be applied practically, word If natural rights are the foundation and limits of for word. To this end, a high ranking minister in the Government, as John Locke argues, the prime Singapore government remarked that the concept purpose of Government is to protect our rights of the rule of law in Singapore must be applied with and a failure to do so will destroy its legitimacy. “hard-nose practicality”. This over-emphasis on the How legitimate, then, is it for the Singapore formal aspect of the rule of law must be criticised. constitutional framework to deviate from Professor Thio Li-Ann of the National University liberal conceptions of human rights, of Singapore charges a barrage of criticisms against democracy and the rule of law? Under this over-emphasis on formalism. She argues that the what circumstances can we really Dicta 2015 | Page 36 Dicta 2015_Proof NEW.indd 36

27/04/2015 22:10

respect and concern? Dworkin’s “rights-based” conception of the “rule of law” provides that “as part of the ideal of law, the rules in the book capture and enforce moral rights”.

While the interpretation of one’s moral rights may differ in meaning and reach, it is argued that human beings are born with inalienable rights including individual liberty, freedom from cruel punishment and the right to property which are rudimentary to the most basic constitutional framework. These lies close to the heart of our convictions about justice and fairness. It is observed that the Singapore Land Acquisition Act which empowered government acquisition of land for public housing and industrial development, thereby depriving citizens of property rights may obscure these fundamental notions.

Additionally, in PP v Mazlan, an argument that an accused had a privilege against self-incrimination or that failing to inform the accused of such right violated constitutional guarantees to criminal due process was rejected. In the absence of an express constitutional right, the Court was unwilling to deduce it from the right not to be deprived of personal liberty entrenched in Article 9(1) of the Constitution as part of the bundle of rights associated with “fundamental principles of natural justice”. Thio argues that this reduces the Court’s guardianship role to merely ascertaining the correct enactment of a “derogating law, noxious content notwithstanding.” Therefore, Singapore’s interpretation of the rule of law – one that permits a lack of

substantive ethical or moral content – cannot properly qualify as a correct manifestation of the rule of law.

Celebrating 50 years of success – for our future generations Singapore’s success did not come by chance.

There is no doubt that the government should be heavily credited for the success of the country. The celebration of its 50th year of independence serves as a timely reminder that it should continue to strive to do what is best for its people. Much more can be done to guarantee its people’s freedom and fundamental rights of equality and democracy. It must be recognised that respect for the rule of law is not a panacea in our legal system, but it is clearly necessary. Its values are not achieved in a “reign” where law is used simply as a tool of government in order to promote economic growth or possibly, repressive means. There must be room made for substantive justice which will encourage a greater accession of human dignity, equality and fairness.

Dicta 2015 | Page 37 Dicta 2015_Proof NEW.indd 37

27/04/2015 22:10

Singapore – A Story of Success and the Relativism of Rights by Max Fu

T

he uppermost tiers of international human rights rankings are frequently, and often fully, dominated by Western states, so much that the Western construction of human rights has become synonymous with what is perceived as international human rights. This trend is not new – and nor is the noticeable correlation between protection of human rights and the general prosperity and flourishing of a state. Why is this? According to Maslow’s ‘hierarchy of needs’, the securement of basic rights – e.g. physiological and safety needs – is the pre-requisite for subsequent fulfilment of higher order desires.

Human rights in the West essentially guarantee what is regarded as basic needs (through the Human Rights Act 1998 in the UK, for instance), keeping the government responsible and encouraging citizens to strive towards greater aspirations.

leaders have also successfully brought defamation suits against both local and foreign offenders. In 2010, the International Herald Tribune apologized and paid damages to former Prime Minister Lee Kuan Yew and Prime Minister Lee Hsien Loong for an article it published. The country is also notoriously tough on what are seen as social vices. Gambling – online or at gambling dens – is outlawed via a number of statutes, except for Singapore Pools, the state-owned lottery company. Famously, the sale of chewing gum is banned in the country, and recently, so too the smoking of shisha. In terms of counterterror measures, the Internal Security Act grants the executive power to arrest and detain terror suspects for an indefinite period, without trial. The courts in Singapore have so far consistently upheld the validity of all of the above practices, and more.

In the sort of international rankings of human rights mentioned at the start, Singapore – a small Southeast Asian city-state – is by no means in the same bracket as the very worst performers, yet is not known to fare especially well either. The IHRRI, for example, placed it only 125th out of 216 countries in its latest rankings.

Indeed, the Western media has, on more than one occasion, vocally criticised the putative dearth of Western-style human rights in Singapore. In general, the two common critiques most outsiders have are: firstly; that surely, the country cannot be doing very well in other indicators of success if the familiar construct of human rights do not seem to be being upheld; and secondly; regardless of the answer to the first question, human rights as practiced in the West ought be upheld as an end in themselves. Both these issues deserve discussion.

Singapore is known to be strict on freedoms of expression and assembly. Banning of controversial films is practiced under the Films Act, as is censorship of other sensitive and socially unacceptable material. Government

It may be surprising then that Singapore comes near, or

Dicta 2015 | Page 38 Dicta 2015_Proof NEW.indd 38

27/04/2015 22:10

at the top, in global rankings for objective measures of wealth and success. The IMF’s World Economic Outlook Database ranked it the third in the world according to GDP based on PPP (Purchasing Power Parity) per capita in 2013; the UN Conference on Trade and Development (UNCTAD) scored it sixth for foreign direct investment inflows in the same year. The country’s education system is renowned for its rigour, and looked to as a benchmark of quality across the globe. Its public housing system – flats managed by the Housing Development Board – is pre-eminent in terms of quality and accessibility. While homelessness and destitution exist, they are in extremely short supply.

gross human rights abuses in North Korea, for instance, on relativistic grounds is difficult. Moreover, there remains a palpable sense that relativism does better at evading the problem, rather than providing solutions. So while I agree with the general relativistic approach, but would further propose a two-tiered approach to determining when a deviation from the Western/international human rights norm is acceptable: the ‘intention’ and ‘outermost limit’ tests.

Firstly, the guiding intent of the government must be legitimate.

Naturally, the discussion about what exactly constitutes ‘legitimate’ could itself span a few more articles, but as a general rule, the government should be enacting policy in accordance with what they genuinely regard to be in the best interests of the people. The pursuit of the common good, true to the core values of the society which they have been elected to govern.

In terms of counter-terror measures, the Internal Security Act grants the executive power to arrest and detain terror suspects for an indefinite period, without trial.

This should be sufficient to disabuse the notion that the correlation between Western ‘human rights’ and success in other areas is absolute. Some already recognize this, though, but insist upon the second issue: that each and every of these rights should be defended at all costs as ends in themselves.

The intuitive riposte to that is to claim moral/cultural relativism – that the validity of moral judgment is dependent upon time and place. Essentially, no society can impose any moral code upon any other we cannot speak of objective moral truth across socio-political boundaries.

Even if the ‘intention’ test is achieved, the ‘outermost limit’ test acts as a safeguard. It is essentially – to tap upon a popular term in Singaporean parlance – outof-bound markers for out-of-bound markers. That is, even supposing something so appalling as

Yet, explaining away

Dicta 2015 | Page 39 Dicta 2015_Proof NEW.indd 39

27/04/2015 22:10

A day in the life of… … Sally Ann Morrison second-year trainee, Taylor Wessing Departments to date: Private client, patents University: Durham Degree and class: Chemistry, 2(1)

9.00am: I check my emails and compile my to-do list. Some emails relating to one particular pharmaceutical litigation matter have circulated between the Taylor Wessing litigation team, our barristers and our client. I read them all so that I am fully up-to-date.

1.00pm: Following the training session I go to Cloud 9, the firm’s staff restaurant, to catch up with the other trainees. It is a beautiful day so we sit out on the terrace and enjoy the sunshine.

1.30pm: Next week I will be attending

9.30am: One of my responsibilities is to update a ‘patent status table’ relating to two pharmaceutical drugs. This involves contacting Taylor Wessing lawyers from a number of our European offices and requesting that they send me information on whether patents for these drugs are valid in their jurisdictions. The Taylor Wessing team in London then uses this information to advise our clients on potential European litigation.

the European Patent Forum – a business development event hosted by Taylor Wessing.

Patent lawyers from across Europe will come to Taylor Wessing and will each speak about an interesting aspect of patent law within their jurisdiction. An associate and I are helping to organise this event. I grab a coffee and knuckle down to finish amending the welcome packs.

2.30pm: A client has asked my supervisor for a judgment from a past case. My supervisor disclosure task which relates to the litigation gives me a description of what the judgment of a pharmaceutical patent. My task is to relates to. I read through all the judgments read each of the documents supplied by the stemming from the action, and use the defendants in this action, and analyse whether information provided by my supervisor to the contents of any of the documents will identify the correct judgment. strengthen or weaken our client’s position.

3.00pm: Having finished my first review of the 12.00pm: I attend an internal training seminar disclosure documents mentioned above, I relating to Taylor Wessing’s international focus proof read the summary table and forward it groups. The presentation discusses Taylor to the associate working with me on this task.

Wessing’s growing presence in the Middle I will be responsible for providing a summary East and India. I am very interested in joining a report of the review to our barristers. geography focus group, so I note down who I should speak to about getting involved. I will 3.45pm: At 4.00pm every week the Taylor be sure to drop them an email.

Wessing team working on a particular

litigation matter has a telephone conference call with our client. In advance of the call, I spend a few moments going through the call agenda.

4.00pm: During the conference call, the team updates the client on the progress of the litigation, and we discuss the proposed ‘An associate and I are helping to organise the European Patent Forum – a business development event hosted by Taylor Wessing’

10.30am: I am involved in an ongoing

4 • The Lex 100

strategy. My job throughout the call is to make notes, which I will use to create a list of action points. Following the call with the client, the team discusses how to move forward.

6.30pm: I have a spare moment so I make the amendments to the patent status table which I discussed with the associate this morning.

7.00pm: Today is another trainee’s birthday so a couple of post-work drinks have been suggested. I check my to-do list and, having made sure that there is nothing urgent that needs to be completed, I head to our local.

http://graduate.taylorwessing.com

www.lex100.com

Dicta 2015 | Page 40 Dicta 2015_Proof NEW.indd 40

27/04/2015 22:10

other than the Internal Security Act. All these are reflections of Asian values in public policy.

In turn, Singaporeans consistently and repeatedly express their endorsement at the ballot box – the ruling party in Singapore, the People’s Action Party, As far as Singapore is concerned, the country would has won each general election since independence. It check both boxes of the two-tiered test. Singapore is is stability at work, and on the evidence, it continues still a country very much guided by Asian values, which to be good news for Singapore. have its roots in Confucianism. While any exacting definition of Asian values is admittedly nebulous, it Clearly, the ‘Western versus Asian values’ debate is broadly entails concepts including the maintenance certain to continue. Caveats do remain, of course – if of societal stability; community over self, and so on. it is to work. ‘Asian values’ as a concept still needs to be Viewed through that cultural lens, one can now easily fully concretised, accepted by the various states in the see how the country’s strict and exacting policies, region, and then properly translated into responsible therefore, are at least in part reflective of these public policy. The current generation of leaders are Asian values that are generally cherished throughout still heading Singapore in the right direction – few other nations, within or beyond Asia, can stake a Singaporean society. claim to benefit from such leadership.

Freedom of speech in the country is not unbridled such that communities are less likely to be riled up against Even in the West, rights are a nebulous construct. For one another. It also means Singapore’s leaders earn a example, recently, courts in this country have been degree of respect which comes from not having to put clamping down on what is now being regarded as up with completely unfounded, defamatory claims, unbridled application and abuse of the right to family while the government still remains accountable to the life under Article 8 of the HRA. Rights evolve both populace at the ballot box. Ministers in Singapore in theory and in application, and they certainly have are paid world-beating salaries – but then again, why done so since Runnymede in 1215. The Singaporean not, for the world-beating job they are doing? The government has always welcomed and encouraged government has argued that top salaries in the public foreign talent and investment, which often hails from sector attracts the best talent to govern the land. This the West. Could it also be that this unique melting engenders respect for the country’s leaders as well as pot of cultures and ideas contributes to the country’s stemming corruption –Singapore’s public sector was unique success? In any event, this should allow all of the seventh least corrupt in the world, according to us to pause our thinking.

Transparency International’s Corruption Perceptions It should hence be the case that, subject to the Index 2014. aforementioned two-tiered test, there exists an Furthermore, Singapore’s intolerance for crime and inalienable right for individual societies to shape terror has paid off handsomely in terms of internal public policy in accordance with their own values, peace and security. The country is well known for in order to achieve their own national objectives. For having an extremely low crime rate, as a result of strict any metric to credibly claim itself as an ‘international penalties – including the possibility of capital and human rights ranking’, surely this is the next step corporal punishment. In 2001, Singapore successfully forward – recognition of the fact that there can be foiled a plot by the terrorist group Jemaah Islamiyah to many right answers to the same question. Singapore’s bomb the diplomatic missions of the USA, Australia, success has shown that.

Israel and the UK in Singapore, including several other targets such as a train station. The terrorists were swiftly arrested, together with further suspects in the few years that followed – and all held under none genocide would in fact be in line with the social views of a particular state, it must be regarded as universally unacceptable, as it would well surpass the ‘outermost limit’.

Dicta 2015 | Page 41 Dicta 2015_Proof NEW.indd 41

27/04/2015 22:10

Regulation boom, industry gloom? Is there less incentive for undergraduates to aim at careers in the financial sector? by Tom Walker

I

t is widely accepted that the behaviour and culture within banks played a major role in the global financial crisis. So, it is not surprising that we are seeing major changes to regulation of the financial sector and a tangible shift in tone towards it in the media. However, in spite of this significant scrutiny, there has been relatively little discussion about how this increased regulation will impact on current and future undergraduates looking at careers in the financial sector. The impacts could be huge, with there being potentially less incentive to aim at senior roles in, or to do with, finance than there has been historically.

In order to gain some insight into the impact of the changes to regulation in the UK on the prospects of current and future graduates, I spoke to Elisabeth Bremner. Elisabeth is a partner at Norton Rose Fulbright, a leading international law firm. She specialises in regulatory investigations in the financial sector and so is able to give an unparalleled insight into the issues addressed in this article.

The Parliamentary Committee on Banking Standards (PCBS) concluded that a lack of accountability contributed to the mismanagement of key risks, leading to the global financial crash. So, it is understandable that perhaps the most significant change in regulation is an increased focus on the accountability and responsibility of individuals. At the most senior levels within the banking sector, the aim has been to increase accountability for a narrower group of senior decision makers, clearly identifying individuals who will be accountable for any failings in their field of responsibility. Furthermore, from the spring of 2016, the burden of proof will be reversed, meaning that if you are investigated it is up to you to prove you are not culpable.

If you are investigated by the Financial Conduct Authority (FCA) and found wanting, then the punishments can be severe. The FCA is authorised to issue fines, suspensions and even to ban individuals from ever re-entering the industry. Senior managers also face potential criminal liability where any reckless decision-making causes a bank to fail. Beyond the most senior levels, the net of accountability will widen even further. Middle management will have to be certified as fit and proper by their firms and virtually all staff will have to abide by a new code of conduct.

All breaches will be reportable to the regulator. An unwelcome ability of the FCA when investigating individuals is that it can publicise details of intended enforcement action before the individual has had access to the evidence relied on and before they have had the ability to make representations to the FCA’s internal decision-making body (the Regulatory Decisions Committee (RDC)). An act, one could say, which creates an improper balance of power.

But perhaps even more devastating for an individual, is the mere commencement of an investigation. In many cases, this will lead to an individual being suspended by their employer and the suspension of their FCA authorisation, with no certainty as to when they may be able to return to work.

Cases can take anywhere from 6 months to 3 years to conclude. The potential damage to an individual’s career of a long-running investigation hanging over their head is massive regardless of whether or not the individual is eventually cleared or not, in the same sense that being publicly accused by any authority of misconduct is damaging. It can be a career-ending move. This amounts to a situation where people can be punished before any proper enquiry takes place, with little if any chance to swiftly and adequately

Dicta 2015 | Page 42 Dicta 2015_Proof NEW.indd 42

27/04/2015 22:10

defend themselves. In a liberal democracy such as danger that a situation has, or will soon arise, where ours, we should find this concerning. the potential fallout from making a mistake, along with the decreased reward for doing the job in the Is this allocation of responsibility and punishment first place, means that there is less and less incentive realistic and effective in large financial organisations? for the best qualified people to aim at these jobs.

If you are in a position of seniority, are you going Of course, that is not to say that there is no incentive. to be able to work in an environment where you are Indeed, in response to the question of whether there personally responsible for the mistakes of the people is less incentive for undergraduates to aim at the below you (regardless of how senior and qualified financial sector, Elisabeth suggests that: they are), where such mistakes could potentially lead to the end of your career? Elisabeth sheds some light “The short answer is it will depend on what graduates are on these questions: looking for. The financial rewards are still there, but graduates will be under increased scrutiny as senior managers will expect “At one level, there is a general acceptance that the right steps clear accountability from those working for them. This “trickleneed to be taken to restore public confidence in the banking sector down” effect will be an inevitable consequence of the reverse and to stave off ever increasing political intervention. On the burden of proof imposed on senior individuals. Banks will be other hand, there is real concern within the industry that the less willing to give second chances where staff fail to show the implementation of the senior manager accountability regime right behaviours.” may be a step too far. The new regime could lead to operational inefficiencies, with senior managers driven by a desire to protect So, whether or not the pros outweigh the cons will of their own positions in key decision-making – lengthening the course be for the individual to decide. Moreover, it is whole process. Individuals may become more unduly risk- worth bearing in mind that the financial sector is still averse. Whilst at first this may appear a good thing, a reduced in a state of flux, with it not being clear exactly what willingness to take on risk could have a significant impact upon it will look like a few years down the line. Therefore, profitability and reduce competition in the banking sector.” whatever challenges may exist at the moment, there remains the possibility of future rewards and an One could perhaps argue, however, that the incentives industry changed for the better. As Elisabeth suggests: to take on these roles in the first place are such that people will hardly be discouraged from aiming for “Graduates joining the industry over the next few years will them. That being said, the incentives for doing such face enormous challenges, but at the same time will be entering jobs, namely pay, is an area that is also fast changing. the industry at the start of a new era. What is now deemed a Political action to curb banker bonuses has been burdensome regime could eventually become business as usual well publicised. But it looks increasingly likely that as new joiners will benefit from the foundations laid by today’s curbs will not be limited to bonuses, and will extend senior managers.” to pay as well. Mark Carney (Governor of the Bank of England) has already stated that regulators will So, to sum up, when looking at the question of whether consider putting additional controls on banker pay. there is less incentive for current undergraduates to This change would lead to fixed pay being treated aim at the financial sector, there is clearly a case for in a similar way to bonuses. Therefore, it seems that saying that there is less incentive and urging caution, potential future candidates for such roles can be far as the challenges and changes the sector faces are from sure of what the rewards will be or how constant evidently great. However, this is not to say that it is and reliable they will be, a view that Elisabeth echoes: an industry to be universally or habitually avoided, despite the quite reasonable concerns one might “The unknown is whether senior individuals will be willing to have as to how it is now being regulated. There are accept increased personal liability alongside a decrease in their still benefits to be had, and industry-wide change remuneration packages.” could still, of course, be for the better in the longterm. There may well be less incentive than there was From this it seems reasonable to say that, currently, during more prosperous times, but there is certainly there is less incentive for undergraduates to aim at still incentive to be found. these roles than there has been historically. There is a Dicta 2015 | Page 43 Dicta 2015_Proof NEW.indd 43

27/04/2015 22:10

Why Indians took to English law

by Eric Edward-Selvaraj

The oddities of the Common law, and the similarities of European Civil law and Classical Indian law

I

’ve always found the English somewhat detached from their fellow European counterparts in history. Perhaps, it’s the islands. England’s legal institutions and its role in economic liberalisation perplexed scholars like Weber. The law is basically a constructed, staged and structured form of coercing a person or a group to do something by another group or individual. In its most ordinary sense, the Rule of Law concerns the enforcement of such a thing. Only when we subject it to specific historical contexts do we see particular concepts of rule of law. It is unthinkable then that the institution of estates never made much headway in practice in England, beyond the rituals of law-making where Acts of Parliament are made by the Lords “Temporal and Spiritual” in the House of

Commons. The Common law is odd. Let me explain, by looking at why India benefits from the Common law.

English law was strange even to their European counterparts. Their Civilian tradition was built around a more rigid conception of the Estates of the realm composed of the clergy, the nobility and commoners. Take France for example. The previous Ecclesiastical courts which governed disputes among the clergy according to the Church’s cannon law may no longer be there with all its trappings, but, even today, disputes between the state (the previous nobility) and individuals are tried in a separate judicial hierarchy to that of private disputes. It was not until

Dicta 2015 | Page 44 Dicta 2015_Proof NEW.indd 44

27/04/2015 22:10

the post-WW2 era did a new class of constitutional Here are its most prominent features. judges emerge to be placed atop of the two streams of the court system, to rectify the notorious excesses of the political imbalance.

i. The position of traders

Parallels could be drawn here between the Indian and European legal traditions. Indians had the ubiquitous notion of dharma, “the ought-ness” that manifests itself in duties, behaviour, and so on, passed on father to son in an unquestioning patrilineal hierarchy. It is the maintaining of the intactness of such social relations through the performance of one’s duties as is expected of them that constitutes the law. This vacant ought-ness allowed for numerous social evils historically.

In both European and Indian traditions, traders were looked down upon in society, with a suspicion with regards to the practices of their profession. After all, it was granted in society that neither the clergy, with their closeness to the divine, nor the nobility, with their noble rectitude, could possibly be as corrupt as, say, a surreptitious salesman of adultered milk or something like that. By no account was social mobility easy in England, but it was certainly possible to the extent that the French needed a historical revolution to change the status of the estates, and the Indian social institution of the caste system appears only to have strengthened under a liberal democracy; but the English only needed their Common law developed from lex mercatoria, a system of common customs applied to traders all around Europe in the middle ages so that traders could trade securely.

Firstly, you have a social order rather like the three Estates in mainland Europe whereby upon birth one is cast into a caste, a social fold that determines your social standing for the rest of your life. The topmost of the hierarchy are the clergy who perform rituals and offer worship to gods in the temples (the brahmana), then the warriors and rulers who maintain the state (the kshatriya), and then the ordinary tax-paying For the English, most things they did were legal, citizens and traders (the vaishya), and finally are including invading other countries as was the the serfs who in the past were barred from handling international norm in the pre-world war epoch. money (the shudra).

It is easy to forget that for the first two-thirds of British rule, India was ruled by a private company In other words, the Lords Spiritual, the Lords not by the British. In fact, the world’s first legally Temporal, the Commons and the Serfs in more incorporated company (at least by some accounts), European terms. Each of these rest on the belief importantly by Royal Charter in 1600 to monopolise that one inherits ones features (guna) and functions trade everything east to Africa, was the British India (karma) from parents. And that each of these features Tea Company. Like all traders do, even today, they and functions, somewhat-like Aristotle’s function used money to expand and monopolise their profitcausation, determines one’s duties and capabilities making institutions. The company bought, and (dharma), all of which are found in the legal codes acquired, by all sorts of means, titles to the various (dharmashastra). different countries and princely states that would eventually form much of South Asia and Myanmar The logic being that, since it was obvious that a lion (then, Burma) today. After failed Acts by the British possessing features like sharp teeth with the function Parliament to regulate the company which was said of acquiring energy by eating would be a carnivore, to be seeped in corruption, the Government of India likewise, a child born in a certain caste acquires of its Act 1858—essentially nationalising the company and own accord the features and functions pertaining to acquiring all its titles. its immediate social peers. The lack of such elaborate codified law in the English tradition characterise the Seeing as it had been split into 175 different territories English zeitgeist: individualism, and a somewhat fluid from constant in-fighting, in one sense, the notion of social mobility. a stable, united India, was a feat which no previous Dicta 2015 | Page 45 Dicta 2015_Proof NEW.indd 45

27/04/2015 22:10

of treatment of persons as functionally necessary, but as individual agents capable of justiciable choices. In Indian law, children not only inherited the caste and property of their parents, they also inherited their crimes and were liable for their proper expiation.

Likewise, depending on the crime that a person committed, his entire family may be liable not just the perpetrator. By contrast, English law dealt with crimes with little reference to previous committed English law was not necessarily divinely instituted. by the individual, and certainly no merit is given to Hindu law was essentially obedience to one’s his actions in a previous life. Moreover, the sentence svadharma determined by one’s social status among rendered affects directly him alone, and he alone may four archetypal human births. It was divine. If you fully expend it. did not believe in your svadharma as decided by your family’s social standing, many do not in practice By contrast, the judge-led English tradition was, today, you do not need to follow the law. Of course, somewhat, romantically appreciative of fundamental if you refused your dharma, your social peers would rights of individual people. Two immediate examples have legitimacy to stigmatise, ostracise or even kill you come to mind from the 18th century. The first is a (these are called ‘honour’ killings). The emphasis was case called Entick v Carrington, where Lord Camden on the maintenance of an objective cosmic order, the presided over a suit for trespass made against the deviation from which was not so much a secular as a King by a less-than-politically-astute writer, John Entick, whose house was broken by a warrant spiritual affairs. issued by the former. Lord Camden ruled in favour As for English law, you had rights (to appeal, for of Entick saying: “By the laws of England, every example), and more importantly, a certain and invasion of private property, be it ever so minute, is predictable institution to change the law. For Hindu law, a trespass,” notwithstanding that the state or King’s you will have had to wait for another dharmashastra involvement. Another, Somerset v Stewart is a famous (code of law) to be written, and wait yet another Lord Mansfield that declared that people could not century or so for it to gain widespread acceptance be held as a chattel (i.e. as slaves) in England. One of and eventually trickle down into practice. Indeed, the appellent’s counsel in that case cited a case from the social resistance to the Indian constitution is quite 1569 which said: “One Cartwright brought a slave similar. Moreover, all the legal codes for all the epochs from Russia…it was resolved, that England was too (yuga) are written already; the best you can therefore pure an air for a slave to breathe.” expect is a different bhashya, or interpretation. The In summary, English law allowed a small, oddball of implicit belief here is that the law is something eternal an island nation to rise as one of the earliest industrial and incorruptible, that ought not be tampered with. superpowers. It allowed the once despised class of The degeneration of the intactness of the cosmic traders to fashion a new world order where neither order manifesting itself in society. The English law, by religion nor politics holds as much sway as trade does. contrast, not only acknowledged change but allowed The irony of the previous social order, the ancien the organic development of its cases responding to regime, was that it was to be outdone by a system changing social perceptions. of law whose inception lies in trade, and had sought ruler achieved, who either missed out certain core territories or held them together for a relatively short periods, was tremendous. Especially the irony of it that it was feasible by foreign traders. No sensible person with Indian interests would have wanted to remove English law; both for the sake of social mobility and financial stability.

ii. Change

iii. Centrality of human agency

to protect traders. And Indian law, being hyperconservationist and discouraging of social mobility to maintain a fixed, eternal order, was superseded by a The final, and arguably the most important, contrasting system English law, draws benefits from characteristic of English law, to which its quintessential having the duality of a rigid, Indian social order sat individualism may be credited to, must be the absence alongside an organic, evolving legal system.

Dicta 2015 | Page 46 Dicta 2015_Proof NEW.indd 46

27/04/2015 22:10

Oscar Pistorius verdict: “justice has been served”. Has it? by Allie Miller

F

ive years. The death of Reeva Steenkamp, model and law graduate, caused by her partner and famous (or, better, infamous) Paralympian Oscar Pistorius was worth a meagre sentence of five years. This anticlimactic end to the emotionally turbulent and widely publicised 49-day trial led to a plethora of anguished responses and a loss of faith in the Justice system.

Surprisingly, the most shocking revelation of all came after the verdict, when Steenkamp’s mother declared, “justice has been served”. Given the melodrama of the trial, and the manner in which it was sensationalised in the press, such a statement appears extremely muted.

“Justice has been served”. In a period of renewed interest in the Magna Carta, many postulate on what exactly Justice is. Its most renowned clause attempted to elucidate the term and, in doing so, laid down the foundations for the Justice system in England:

sentence seems wildly disproportionate to the fact that a life was lost in such brutal circumstances. Since the excitement of the trial has abated, commentators (quite naturally) have asked: would the sentence have been the same if it were not for Pistorius’ celebrity status? Justice should be served to all equally, blind to social circumstance and fame.

Pistorius proved to be a poor witness, making inconsistent statements and producing dubious evidence. However, this is not synonymous with guilt. Of course, murder has to be proved beyond reasonable doubt, with the presumption of innocence resting in the defendant’s favour. These are essential notions that surfaced in 1215, and still hold true today.

In spite of this, even in full recognition that alternate jurisdictions will carry differentiating standards of Justice, a five-year sentence seems excessively lenient.

The “Great Charter” is a cornerstone of English “No free man shall be seized or imprisoned, or liberty, and is a persisting reminder of the importance stripped of his rights or possessions, or outlawed or of law, liberty and justice. Whatever interpretation exiled, or deprived of his standing in any other way, is made of the rather abstract and elusive word nor will we proceed with force against him, or send “Justice”, both generally and in regard to the Pistorius others to do so, except by the lawful judgment of his verdict, it is crucial to pursue and encourage this sort of discourse. equals or by the law of the land”.

In the case of the Pistorius trial and verdict, the root of the issue lies in whether Justice can be quantifiable.

On the night of February 14th, 2013, Pistorius fired four consecutive shots through a locked bathroom door, with no chance of escape, killing Steenkamp. He claimed that he mistook his girlfriend for an intruder.

Pistorius was charged with “culpable homicide”, the South African equivalent of manslaughter. “Culpable homicide” in South Africa typically carries a maximum sentence of fifteen years, with the prosecution calling for a minimum ten-year prison term.

Rumours surfaced shortly after the verdict, handed down on the 21st of October, 2014, that Pistorius could serve a mere ten months in custody, carrying out the remainder of his sentence from home. Such a fleeting Dicta 2015 | Page 47 Dicta 2015_Proof NEW.indd 47

27/04/2015 22:10

A reaction to revenge porn law: without consent and with intent? by Milly Ball

R

evenge porn is the term coined by mainstream media to describe the distribution of sexually explicit images without consent. It has risen from obscurity in recent years thanks to well reported instances of ex-partners vengefully uploading compromising photos to social media, along with a phenomenon, crudely dubbed “The Fappening”, which saw celebrities watch in horror as their private nude photos were uploaded by hackers to the ever remorseless world wide web.

medium to perpetuate an already existing problem.

Whereas in previous years a disgruntled ex-boyfriend may have posted sordid snaps through the letterbox of his previous partner’s boss, social media sites have created an avenue to cause maximum damage in minimum time with the click of a button. Herein lies the problem; because of the unforgiving nature and popularity of the internet, pictures can go viral in a matter of minutes, and will quite literally become immortalised in cyberspace, making the issue all the more serious for victims. The repercussions of this As technology expands its horizons, new laws are can destroy lives, with one study reporting 51% of needed to deal with unfolding issues. Just as the victims having contemplated suicide as a result of Computer Misuse Act 1990 was necessary at the dawn being targeted. A particularly traumatic case is that of of the Internet age in response to security concerns, Audrie Pott, a 15 year old girl that committed suicide revenge porn legislation is vital, now more than ever, in 2012 after nude pictures of her sexual assault at a in order to protect the Article 8 right to privacy in party circulated around school and social media sites. today’s social media obsessed society.

Unsatisfied with the efficacy of existing offences in But revenge porn is by no means a new issue. covering instances of revenge porn, the UK (along Arguably the Internet has merely provided a new with many other jurisdictions) have identified a need Dicta 2015 | Page 48

Dicta 2015_Proof NEW.indd 48

27/04/2015 22:10

to make revenge porn a specific offence. In doing so, they hope to give victims the full backing of the law and allow for ease of prosecution against perpetrators.

But should we really be using the word “revenge” at all? The connotations of the word seem to exclude a whole demographic of perpetrators that do not act out of desire to cause emotional distress, instead spreading these unsavoury photos to gain notoriety or financial gain. In fact, in 2014, the aforementioned widespread distribution of hundreds of photos of celebrities in the nude taken from iCloud accounts originated from a hacker “selling” them in exchange for the online currency BitCoins; he was not outwardly trying to cause distress. It is for this reason that a campaign named End Revenge Porn, headed by victim Holly Jacobs, favours the term “nonconsensual pornography”.

Similar attitudes have been mirrored in soon-to-beenacted UK legislation, with government guidance proposing that “for the offence to be committed the disclosure must take place without the consent of at least one of those featured in the picture disclosed and with the intention of causing that person distress”. The need for the motive to “cause distress” to be paired with the mens rea element of the crime is not a welcomed move by anti-revenge porn campaigners. Campaign group End Revenge Porn has released a “guide to legislators” which states that these requirements “arbitrarily distinguish between perpetrators motivated by personal desire to harm and those motivated by other reasons”.

Perhaps they are right. The founder of revenge porn website “IsAnybodyDown” caused outrage at the start of this year after publicly stating: “we don’t want anyone shamed or hurt, we just want the pictures there for entertainment purposes and business”. The requirement for distress leaves an open playing field to those that might use this loophole to get around new laws for their own financial gain, which is potentially dangerous for victims. After all, the simple act of uploading the offending material without consent does the real damage, perpetrators are feigning naivety if they don’t think there is a possibility the victim will be hurt.

In light of this, a more sensible suggestion may be to remove the requirement of intent altogether, or

at least to reduce the requisite mens rea to being “subjectively reckless as to causing emotional distress”. The US state of Illinois seems to have hit the nail on the head with their version of revenge porn legislation, with the Cyber Civil Rights Initiative labelling it the “best example”, as it “prioritises harm to the victim over motivation of the offender”. Taking effect in June 2015, the Illinois legislation will protect against images going viral by imposing a duty on “downstream distributors”, asking if a reasonable person would know that the person in the picture had not consented to its distribution and, if so, imposing liability on persons that do so. This policy has the added effect of halting the spread of the offending image, protecting the victim as well as reinforcing the message that revenge porn is an invasion of privacy and, as such, morally wrong.

There is no doubt that the quality of revenge porn legislation has improved over recent years. At first, California enacted a revenge porn law which victims weren’t able to rely on if they had taken the picture themselves. Thankfully, the nonsensical “no selfies” policy was struck off and the law modified accordingly, but there is an important lesson to be learned here.

There is a real danger that the urgent need to enact legislation will supersede the corresponding need for quality and thorough policy. The Criminal Justice and Courts Bill is not due to become law until later on in 2015; its outcome in this important regard remains to be seen.

Note fr om t he Edit or:

Since the wr iting of this art icle, the UK “Revenge Por n Law” came int o effect on Monday the 13th April 2015. It criminalises the distri but ion of nude photos or videos wit hout consent of all parties, and wit h intent to cause distress, render ing offenders liable to 2 years’ incarceration. It is a welcome addit ion, and testament to the abilit y of English law to hold true to its foundat ions of respect and justice, while being dynamic enough to tackle develo ping issues.

Dicta 2015 | Page 49 Dicta 2015_Proof NEW.indd 49

27/04/2015 22:10

An interview with Angela Bradstreet

by Allie Miller and Eric Edward-Selvaraj

F

ollowing an intellectually stimulating interview and conversation with San Francisco Senior Court Judge and Bristol alumnus Angela Bradstreet, we were able to glean five extremely valuable lessons.

allows the difficulty to manifest further. Cracks in the glass ceiling have already been made in Bradstreet’s home of San Francisco, with over a third of female judges now inaugurated. Hopefully this will soon be mirrored in the UK. The “trickle-down process”, by which more women are currently in law school which will soon translate into more roles for women in the legal system, has already begun to take effect. We are currently at the threshold of increasing gender equality and it is time for that to be reflected in every area of the law. This is not simply a pressing matter for women, but the working world at large.

In the words of Bradstreet herself: “Achieving gender equity in the workplace is more than a women’s issue. The glass ceiling is a fundamental business issue that negatively affects the growth, economic prosperity, recruitment, and business development of law firms and legal departments nationwide.”

Come out of the legal closet

Bradstreet offers as a key to her success another charming phraseology: “Be yourself.” “Everyone has their own personality—their own style. The main The delightfully candid Bradstreet shared her (truly thing is to be true to yourself and not be afraid of Americanised expression) and life mantra: “Go for it!” change.” As the legal world acquires a more diverse Following an undergraduate LLB at the University of face, the best way that we could let others benefit from Bristol, Bradstreet relocated to the incredibly diverse us is to show our personality and style. Bradstreet and cultured California. The prospect of applying for spoke also of “internal glass ceilings” built by selffurther legal training is daunting for all law students, doubt, especially by women. “We are at a point now but there is added pressure in transporting one’s that law firms are recognising that diversity not only whole life. Bradstreet made the application, unsure of is the right thing to do but good for their business.” A whether it would be successful, sold her car for money sure shift from 30 years ago when women becoming to fund the move and began life anew. Throughout the barristers was simply unheard of. interview, great stress was placed on the importance of embracing change. This will not only prove character-building, but is salient to a successful legal Although written in 1215, the Magna Carta is still of career. The ability to adapt, improve and be decisive great legal significance today. From the substratum of are essential features of future (and present) lawyers. codified English law, its principles have sustained and allow comparisons to be drawn between two distinct jurisdictions, the UK and California.

Angela Bradstreet has dedicated an enormous amount of time and effort to advocating women’s Bradstreet has taken it across the pond to disseminate rights and the rights of the LGBT community. It is its message in San Francisco: “Every time we bring in still a fact universally acknowledged that certain areas a Jury, I share with them the provision in the Magna of the law, principally the bar, are harder for women. Carta that created the jury of peers.” Indeed, no law It might be the male bravado or, as Bradstreet student or fanatic needs to be reminded of the crucial suggests, it might be the result of an “internal glass importance of the jury system, but perhaps it is easy ceiling”. Accepting that it is harder for women to forget that such an enduring principle is the result

Just Do It

Viva Magna Carta

Shatter the Glass Ceiling

Dicta 2015 | Page 50 Dicta 2015_Proof NEW.indd 50

27/04/2015 22:10

of an age-old agreement between a King and a rabble of rebel barons.

Embracing change

“If you are not happy in a working environment, don’t just sit around there and complain.” This is probably very appropriate for law students, considering the immense variety of career paths laid out for us that can afford us a great deal of versatility. Yet it also comes with the added risk that we are more likely to find ourselves sat in an unassuming vocation at some point. So as Bradstreet reminds us “everyone is entitled to lead a happy and productive working life - we spend most of our lives working, so we ought to be happy in it.” It was not an easy change that Bradstreet made to go into public service having spent 25 years running a lucrative law firm as Managing Partner.

Of course, she was “burnt-out doing that.”

Despite being afraid of change, she had made one of the best career decisions of her life. “Every month I think I am the victim of identity-theft because I keep living beyond my means”, exclaimed Bradstreet. Despite the thinned paycheck, Bradstreet affirms, “I’m all rejuvenated again. I love public service.”

Bradstreet is one of the few genuinely brave people for having taken control of what could easily have been a runaway life, and steered it exactly as she wanted. The decisions she made could not have been replicated by everyone. Being unafraid of change, being yourself and just going for it is sure to make any career choice successful.

Dicta 2015 | Page 51 Dicta 2015_Proof NEW.indd 51

27/04/2015 22:10

Advancing appreciation of miscarriages of justice by Jemma Webster

L

iving in unqualified reliance on a criminal justice system that often claims to be among the best in the world, the population of England and Wales should be granted the ability to have high expectations of those professional bodies which promise to ensure their safety and security. In reality, that is not the case. The United Kingdom is seeing miscarriages of justice occurring at an alarming rate. Government cuts to legal aid and changes in policy supposedly designed to systematize trials in Magistrates’ Courts are increasingly contributing to the lack of justice served in our administration.

Miscarriages of justice are often considered by the nation in quite a stereotypical manner. Cases in which people have been wrongfully convicted and subsequently exonerated are usually associated with the idea of factual innocence versus legal guilt. That is, people who have been convicted of a crime by the law despite their factual innocence. Due to the nature of society and the influence of the media, infamous ‘factual innocence’ cases such as those of the Birmingham Six or the Bridgewater Three are usually the ones we most readily take into account.

The Internet or news archives will produce various lists of noteworthy cases in which those convicted of brutal crimes such as murders and rapes have been acquitted after the criminal justice system has accepted the factual innocence of those convicted – Adolf Beck, Timothy Evans and the Guildford Four, to name but a few.

Cases such as these have been incessantly reviewed and analysed in the public eye, and some of the most high-profile cases have even been reproduced as entertainment – consider, for example, the Derek Bentley case, which was simulated as a film (‘Let Him Have It’) in 1991. However, these are not the only types of cases that can be considered miscarriages of justice.

A factor deliberated on much less by the public is that of ‘factual guilt versus legal innocence’. In these

cases, suspects who can be proved as factually guilty of a crime must be allowed to walk free because of some loophole in the criminal justice system. Here we must take into consideration factors such as the effects of procedural impropriety or the precarious nature of the admissibility (or inadmissibility) of evidence. An example here is the case of Christopher Halliwell, a man serving a 25-year sentence for the murder of a young woman in 2011. Despite Halliwell leading police to the grave of a second victim, he was formally cleared of her murder when the judge on his trial ruled procedural impropriety had occurred after the police breached major questioning rules when interviewing Halliwell as a suspect. It is no wonder the general public has difficulties in understanding the notion of a miscarriage of justice when so many intricacies are involved in their occurring.

If we are to move forward in this area and provide ourselves as a society with a tighter criminal justice system, we must first properly educate ourselves on the matter – without a better understanding in ourselves, we cannot expect to see a decrease in the volume of miscarriages of justice we see coming from the judicial system as a whole.

The Criminal Justice Act 1988 gives no categorical definition of a ‘miscarriage of justice’ – in fact, no lucidity is given in any statute in our jurisdiction.

The courts’ definition of the term lacks clarity and is vulnerable to constant change alongside the development of case law. Taken at face value, miscarriages of justice can be defined simply as failures to achieve justice. But even with this definition, not enough emphasis is placed on the hardship endured by victims. The constant difficulty in defining miscarriages of justice has a cumulative effect – how are those who have suffered at the hands of justice expected to be reintegrated into society when the people around them have no real appreciation of what they have experienced?

Yet another branch of the issues surrounding

Dicta 2015 | Page 52 Dicta 2015_Proof NEW.indd 52

27/04/2015 22:10

victims can be seen in the government’s attempt to make restitution for their suffering. Abolition of the discretionary compensation scheme has now left victims with only the statutory scheme to aid with their reintegration into normal life. This scheme aims to atone for any losses suffered by a victim due to the miscarriage of justice by which s/he was afflicted.

Victims are only eligible to receive compensation if her/his conviction was quashed or if s/he was pardoned by virtue of a new (or newly discovered) fact that “shows beyond reasonable doubt that there has been a miscarriage of justice”. Furthermore, the monetary value of the compensation is determined by an independent assessor and, although the maximum figure is £1,000,000 where the victim has spent at least 10 years wrongly imprisoned, the sum paid out may be nominal.

On a more positive note in the field, Cardiff University’s Innocence Project has made a breakthrough very recently. Dwaine George was just 18 when he was convicted of murder, and through much hard work and a real thirst to develop their understanding of situations like his, the Cardiff University Innocence Project has achieved the admirable feat of getting his sentence of 12 years overturned. The group simultaneously achieved the first successful case in any United Kingdom university innocence project group, and catapulted miscarriages of justice back into the media limelight. We can only hope that this event will refocus the minds of our nation onto the seriousness of miscarriages of justice in order for us to broaden our appreciation.

Dicta 2015 | Page 53 Dicta 2015_Proof NEW.indd 53

27/04/2015 22:10

The struggle of the common law to attain justice. Britain and France: two jurisdictions, one mutual objective

by Ami Sodha

T

he British justice system has been dubbed a ‘failure’. With 1100 convicted people maintain their innocence and seeking to have their convictions overturned in Britain each year, such a label can be rightfully ascribed to our system of common law. Comparatively, a civil jurisdiction, prominent in France, is a model for a system which strives to achieve justice, incorporating the rights of all citizens. How can these miscarriages of justice be avoided in the UK? The key to differentiating between the two must be considered by: the use of the jury, the adversarial and inquisitorial nature and current human rights legislation.

It is stressed that juries are one of the most democratic aspects of the UK constitution. Democratic they may be in principle, but in this day and age, juries can be easily influenced by the media and the internet, raising the question as to the fairness of the jury. Also consider the competency of jurors with regards to the miscarriages of justice prominent in our system.

Wrongful convictions are no doubt a consequential factor of the power attributed to the jury, a matter that our system seems to overlook.

“In France the innocent are rarely even charged due to a series of pre-trial filters”

(51%) found them too difficult to understand.

Their comprehension of the judge’s legal directions was also examined, with over half perceiving the judge’s directions as easy to understand, but only a minority (31%) actually understanding the directions fully in the legal terms used by the judge. Surely, this reinforces the fact that there is not a consistent view amongst jurors at all courts about their ability to understand judicial directions. Are juries really as effective as one thinks they are?

Consider The Vicky Pryce trial. Pryce, wife of Chris Huhne, perverted the courts of justice after accepting driving licence penalty points incurred by Huhne.

During her trial, the jury was unable to reach a verdict, discharged following hours of deliberations, a day after they submitted questions indicating that they had not grasped the basics of their task. Prosecutor Andrew Edis had urged the judge to discharge them on the basis that it was ‘ultimately unlikely’ any verdict could be considered a safe and proper one.

Due to the jury’s deficits in understanding, Pryce had to face retrial.

Statistically, the UK has thousands of wrongful convictions each year. In France the innocent are rarely even charged due to a series of pre-trial filters, whilst 95% of those who are ultimately charged are convicted, with most civil hearings take less than a day.

The UK’s Criminal Cases Review Commission received 1625 applications in 2013 from A report compiled by the UK’s Ministry of Justice prisoners claiming they have been wrongfully revealed involved 797 jurors at three courts who convicted, asking the body to investigate their attended the same simulated trial and heard the same cases. This surge in applications followed the cuts judicial directions on the law. Whilst most jurors at in legal aid.

Blackfriars (69%) and Winchester (68%) felt they understood the directions, most jurors at Nottingham Much of France strongly opposes the jury system.

Dicta 2015 | Page 54 Dicta 2015_Proof NEW.indd 54

27/04/2015 22:10

Decisions by the European Court of Human Rights raises the possibility that jury systems are at risk because jury verdicts do not fulfil the requirements of reasoned decisions. That is, the verdicts do not provide specific legal and evidentiary justifications for the jury’s judgments. This reasoning behind France’s restrictive use of the jury may seem undemocratic but can be a contributing factor to France’s lower wrongful conviction rate than that of the UK. Arguments against the jury system also include the inevitable stress often felt by jurors. According to a study, conducted on 68 British jurors, undertaken by the French legal newspaper Faits Et Causes: ‘the task may cause great anxiety and may even, lead to cases of severe stress or a post- traumatic disorder.

Some jurors reported experiencing feelings of fear and helplessness.’ The study revealed their personal traumas at trials, highlighting the effect of jurors’ emotions on erroneous judgements.

examine witnesses of their own accord. Our system emphasises the use of cross-examination, assuming that it better tests witnesses’ credibility and that the parties are more willing to accept the results when given control. There is the underlying belief that the judge is better informed about the case by parties and that there will be less cost to the public purse. Yet, France’s judge-led, inquisitorial approach to justice is a better way of conducting family and civil cases where litigants are unrepresented, supporting the principle of a fair trial for all. The UK can learn from this, particularly after legal aid cuts, causing a rising number of unrepresented litigants in family and civil cases. In France, independent judges conduct inquiries, accountable to no one, preferable to an investigation conducted by a prosecutor who is not independent.

Judges investigate without any hierarchical issue, remaining free of political or financial pressure when ascertaining the truth of the facts.

The adversarial nature of our justice system means that parties define the subject matter of their dispute and determine the information on which the judge may base his decision. This contrasts the French inquisitorial system judges whereby t h e decide what relevant facts to be proved are and

It is time our system overlooks tradition and accommodates reform. A dependence on jury verdicts for the sake of democracy must be reconsidered.

We can help avoid misunderstandings at an early stage by reforming the adversarial reliance on witnesses of our system which does not promote justice for all, particularly in times of austerity.

One thing is certain, once the UK wakes up to the flaws of the common law and embraces inquisitorially inspired reforms, it too can pursue the common objective held of an unequivocally just system.

Dicta 2015 | Page 55 Dicta 2015_Proof NEW.indd 55

27/04/2015 22:11

Decriminalisation of assisted dying: prospects by Lewis Graham

T

he campaign to decriminalise assisted suicide in the UK has, until recently, been a fairly unsuccessful one. The Suicide Act 1961 contains a provision in s.2, still entirely in force, which incriminates those who “aid, abet, counsel or procure” the suicide of another. Recent attempts to undermine this section under the catalyst of human rights have failed on the substantive issue both domestically (R (Pretty) v DPP [2001]; R (Purdy) v DPP [2009]; R (Nicklinson) v Ministry of Justice [2014]) and at the European Court of Human Rights in Pretty v UK (2002), although the litigation did result in the publication of detailed prosecution guidelines and a notable (yet theoretical) warning that failure to take the issue seriously in Parliament may lead to the provisions being ousted at some point in the future.

treatment.

The proposals have drawn much support, from euthanasia campaign group Dignity in Dying to more surprising sources such as Lord Carey, former Archbishop of Canterbury. In addition, The British Social Attitudes Survey suggests that up to 80% of the public approve of relaxing the law on assisted dying to some degree. Dr Kailash Chand praised the proposal as championing equality, making life fairer for those who haven’t the financial resources to travel abroad for the same procedure (traveling abroad for assisted dying procedures is a legal grey area, but as of yet there hasn’t been a single charge brought against those who have elected to do so). On the other hand, the Bill has drawn criticism from religious groups (notably Archbishop Justin Welby) and medical bodies such as the British Medical Association. Objections range from moral considerations (including apprehension over “playing God”); sufficiency of safeguards (and the worry of a “slippery slope”); scope for malpractice or undue influence and the role of doctors.

That Parliamentary debate comes largely through the heated discussion of Lord Falconer’s Assisted Dying Bill, the sixth of its kind within the last decade (following four attempts by Lord Joffe from 20036 and a earlier attempt by Lord Falconer in 2013).

The Bill is making achingly slow progress through the House of Lords but made history by being the Whether or not the current Bill passes into law, its first Bill to make any significant legislative progress, landmark progress and its reinvigoration of a muchneeded debate about assisted suicide is extremely passing its first reading on 7th November 2014. significant. Yet the public approval rates and shifting The provisions under the Bill would allow for certain stances of key players, including core medical and lethal medications to be prescribed, with the dosage religious bodies, may indicate that consensus in what being self-administered under supervision of a was previously considered a moral impasse may medical professional. Naturally, there exist numerous cautiously be swinging in favour of decriminalisation. safeguards; any assisted suicide which would take place under the framework set out in the Bill would be subject to the following conditions: the patient must be over 18 and would need to prove sufficient mental capacity to make an informed decision about the procedure; they must be suffering from a terminal illness with prognosis of less than six months to live; the procedure must be approved by two doctors (and, thanks to an amendment by Lord Pannick, assessed by a High Court judge); the patient must be informed of alternative options to euthanasia and they must undertake a mandatory reflection period prior to the Dicta 2015 | Page 56 Dicta 2015_Proof NEW.indd 56

27/04/2015 22:11

A day in the life of… … Sally Ann Morrison second-year trainee, Taylor Wessing Departments to date: Private client, patents University: Durham Degree and class: Chemistry, 2(1)

9.00am: I check my emails and compile my to-do list. Some emails relating to one particular pharmaceutical litigation matter have circulated between the Taylor Wessing litigation team, our barristers and our client. I read them all so that I am fully up-to-date.

1.00pm: Following the training session I go to Cloud 9, the firm’s staff restaurant, to catch up with the other trainees. It is a beautiful day so we sit out on the terrace and enjoy the sunshine.

1.30pm: Next week I will be attending

9.30am: One of my responsibilities is to update a ‘patent status table’ relating to two pharmaceutical drugs. This involves contacting Taylor Wessing lawyers from a number of our European offices and requesting that they send me information on whether patents for these drugs are valid in their jurisdictions. The Taylor Wessing team in London then uses this information to advise our clients on potential European litigation.

the European Patent Forum – a business development event hosted by Taylor Wessing.

Patent lawyers from across Europe will come to Taylor Wessing and will each speak about an interesting aspect of patent law within their jurisdiction. An associate and I are helping to organise this event. I grab a coffee and knuckle down to finish amending the welcome packs.

2.30pm: A client has asked my supervisor for a judgment from a past case. My supervisor disclosure task which relates to the litigation gives me a description of what the judgment of a pharmaceutical patent. My task is to relates to. I read through all the judgments read each of the documents supplied by the stemming from the action, and use the defendants in this action, and analyse whether information provided by my supervisor to the contents of any of the documents will identify the correct judgment. strengthen or weaken our client’s position.

3.00pm: Having finished my first review of the 12.00pm: I attend an internal training seminar disclosure documents mentioned above, I relating to Taylor Wessing’s international focus proof read the summary table and forward it groups. The presentation discusses Taylor to the associate working with me on this task.

Wessing’s growing presence in the Middle I will be responsible for providing a summary East and India. I am very interested in joining a report of the review to our barristers. geography focus group, so I note down who I should speak to about getting involved. I will 3.45pm: At 4.00pm every week the Taylor be sure to drop them an email.

Wessing team working on a particular

litigation matter has a telephone conference call with our client. In advance of the call, I spend a few moments going through the call agenda.

4.00pm: During the conference call, the team updates the client on the progress of the litigation, and we discuss the proposed ‘An associate and I are helping to organise the European Patent Forum – a business development event hosted by Taylor Wessing’

10.30am: I am involved in an ongoing

4 • The Lex 100

strategy. My job throughout the call is to make notes, which I will use to create a list of action points. Following the call with the client, the team discusses how to move forward.

6.30pm: I have a spare moment so I make the amendments to the patent status table which I discussed with the associate this morning.

7.00pm: Today is another trainee’s birthday so a couple of post-work drinks have been suggested. I check my to-do list and, having made sure that there is nothing urgent that needs to be completed, I head to our local.

http://graduate.taylorwessing.com

www.lex100.com

Dicta 2015 | Page 57 Dicta 2015_Proof NEW.indd 57

27/04/2015 22:11

The tale of the Black Spider Memos and why we should care

by Darcy Rollins

T

he case of the Black spider Memos concerns a classic clash between the press and the government with a very British twist.

For nearly a decade, our democratically elected government (represented by Attorney General Dominic Grieves) has been engaged in a tug-of-war with the press, general safe-guarders of democracy and freedom of speech (in the form of Guardian journalist Rob Evans).

The subject is 27 letters sent by heir-apparent to the throne, Prince Charles, to ministers between September 2004 and April 2005. The pushing and pulling for the release of these letters has been provided by the Freedom of Information Act 2000. It is a case that involves three mighty public institutions: the monarchy, the government, and an ever-vigilant press. Naturally, then, this case invokes equally mighty constitutional questions of power: how powerful is the government’s veto in s.53(2) of the FOIA and, conversely, how powerful is the Act itself as a tool for obtaining information?

as well as itself, and while the press, public and government all seem to have clearly defined positions, the part of the monarchy in question - the heir to the throne - does not. Lurking in the shadows of this case is, of course, the content of these letters. Content which is sure to bring up questions of whether Prince Charles is able to influence government and whether it lies within his constitutional role to do so.

A veto is, by definition, a very contentious legal instrument. It lacks intrinsic proportionality. It feels like the brasher and less subtle cousin of discretion and is beloved by autocratic enemies of democracy the world over throughout modern history.

In light of these associations, it is perhaps not surprising that the courts so far in this case have construed the veto under s.53(2), which allows the government to override the decision of an upper tribunal if an “accountable person” has “reasonable grounds” for doing so, narrowly. The Court of Appeal held that this overriding requires more than “mere disagreement” as a justification.

It placed great emphasis on the fact the Attorney General was not relying on anything new which the tribunal had failed to consider, as if to dispel those very associations of absolute government power.

However, the subject of the letters lurks beyond the realm of official and legally independent charities.

They concern government.

Something which is supposed to be democratic.

The essential utility of the FOIA rests not only in its engendering of principles of openness and transparency within government, but also in its more practical function as a legal instrument by which the press is armed to challenge the government on behalf of the people in the name of the “public interest”.

However, it is a double-edged sword, as this case plainly indicates. S.53(2) grants a power of veto as the ultimate defence to “attacks” for government information. What makes this case unique is that the government seems to be protecting the monarchy

The state has also seemed wary of a “veto” and all its connotations. It has been used sparingly as a kind of self-defence for the government on extremely hot topics, notably on the morally suspect and potentiality illegal Iraq War, harm which may arise from current government policies to the NHS, and the contentious

Dicta 2015 | Page 58 Dicta 2015_Proof NEW.indd 58

27/04/2015 22:11

and important question of devolution. These are areas where unfavourable information would threaten to substantially undermine the government’s position if released. In light of this, it begs the question: why this particular issue? The general perception of the Royals these days is a fluffy one, to say the least. Their lives touch ours only through a rosy media hue of babies and weddings (Prince Andrew controversy aside). But perhaps the power of the Royals is far more than the trance adorable Prince George and his parents can set upon the media.

Aside from the veto another unusual twist in this case is of course the author of its subject matter: heir to the throne, Prince Charles. The role of heir to the throne in a modern Britain would always be difficult; a democracy with an increasing flock of social media activists, adding new ammunition to the traditional 4th Estate, determined to hold public figures to account. But the personality of the heir alone is unique. His manner of writing the letter is by itself symbolic of his character.

be perceived to exist when certain information is not made available, then that perception swiftly becomes tainted and, ultimately, crumbles.

These are questions which the government has left in the hypothetical unless and until the letters are released. It is only natural that the monarchy has some marginal influence, and naïve to expect otherwise.

However, where this influence stretches too far, it is for the law to take action. It seems to be this point that the government is keen to avoid. In an era where the monarchy is affectionately trivialised, the influence they possess should not be underestimated.

The letters are typed but Prince Charles often writes more comments in a black scrawl (thus the nickname of the case: Black Spider) with frantic underlining and energetic exclamation marks. An impatient, passionate man full of energy ironically stuck in a position defined by waiting. He is a man known for his devotion to many worthy causes, from architecture to education, and in his period of waiting these causes have no doubt been much furthered by this devotion.

However, the subject of the letters lurks beyond the realm of official and legally independent charities.

They concern government. Something which is supposed to be democratic. Although we can have sympathy with the paradoxical position the Prince has found himself in, this sympathy surely does not extend to allowing him, essentially, an elevated quasi-official seat of influence in to minister? To do so would be subverting the very essence of democracy, would it not?

An almost paradoxical justification given by Dominic Grieves, former Attorney General, in itself indicates something suspect: the letters cannot be made public as to do so would undermine the Prince’s political neutrality. If a stance of political neutrality can only Dicta 2015 | Page 59 Dicta 2015_Proof NEW.indd 59

27/04/2015 22:11

The University of Bristol Law Club 2014/15 by Miles Pope (President)

W

hat a year it has been for the UBLC! When I took on the role of President, I could only have dreamt that I’d be writing this article reflecting on the degree of the success that we have achieved this year. Firstly, I would like to express my genuine and sincere gratitude to all of those who contributed to the amazing achievements of the 2014/15 academic year. Particular thanks must be extended to the fantastic law school staff, our incredibly generous sponsors without whomour events would simply not happen and to the dedicated committee who have worked tirelessly throughout the year.

I am extremely proud of our successes across the board, but the area where most progress has been made is undoubtedly in the realm of careers. This year served as the inaugural year for several unique and innovative initiatives, and their reception has been unprecedented. With the first edition of the Commercial Law Guide, the immensely successful Women in Law Conference and the unique Commercial Deal Perspective Competition, the UBLC has continued to prove itself to be at the forefront of Student Law Societies’ efforts to increase the employability of their members. The results speak for themselves with the abundance of First Year opportunities, Vacation Schemes and Training Contracts awarded to deserved UoB students. Many firms have already indicated a sharp increase in applications from the University of Bristol, with a significant proportion being converted into offers.

Another highlight of the year was undoubtedly the visit of Ken Clarke QC to the University and his talk on the European Union. It was an honour and privilege to host such a distinguished speaker and an ideal supplement to the already successful Distinguished Alumni Programme, which itself attracts highly notable speakers.

The aforementioned achievements and events coupled with two of the best Law Balls the UBLC has ever hosted, numerous successes of Inter-Varsity competitions and the most successful sporting year for the UBLC teams culminates in what can only be heralded the most successful year in UBLC history.

This was cemented by the UBLC’s three nominations in the “LawCareers.net Annual Law Society Awards”, including “Best Overall Law Society”, where we eventually fought off 31 competitors to be awarded “Best Social Event” for the Burges Salmon Winter Law Ball.

I would personally like to thank each and every UBLC member for making this society one of the very best in the UK. I have been fortunate enough to see the direct contribution that the student body makes to the the law school and the achievements of this year are something for which we can all be incredibly proud.

All that is left to say is to wish Sam Unsworth and the incoming Committee the best of luck for the coming year; I have no doubt that you will continue and, indeed, build on the successes of this year.

Dicta 2015 | Page 60 Dicta 2015_Proof NEW.indd 60

27/04/2015 22:11

Think careers – getting your foot in the door by Calvin Yang

T

he careers side of the Law Club has been brimming with new ideas and initiatives in recent years, with the notable launching of the Commercial Awareness Programme last year. This year was no different! UBLC’s very own Commercial Law Guide was published, a very successful Deal Perspective competition organised in partnership with Pinsent Masons, and a new workshop introducing first year students to the different careers in commercial law was held.

As for our favourite careers and networking event, the Careers Dinner, this year saw further positive changes.

A new firm - Pinsent Masons - has joined the current prestigious consortium of firms attending the event.

We also increased the number of representatives from each firm from two to three to increase the amount of interaction between them and student attendees. As in previous years, the restaurant Bordeaux Quay served us savoury food and wine at their marvellous venue.

All of the firms’ representatives and the students thoroughly enjoyed the evening and benefitted from Over the summer, the new Commercial Law Guide the event. We very much look forward to organising was secretly written and produced. We were extremely the dinner again next year. proud to present our Bristol law students with UBLC’s third ever publication. The Guide was written with We also collaborated with various firms in holding the aim of providing readers with a single source of workshops, mock interviews, and open days during introductory information to commercial law. It covers the year. Norton Rose Fulbright and Simmons & essential information such as the different practice Simmons held applications and contracts and drafting areas and types of law firms, advice on applications, workshops respectively. Robert Byk, recruitment and the current status of the legal market. It was partner of Slaughter and May, a Bristol alumnus, and great to see that almost all of the thousand copies a fervent supporter of the UBLC, held a workshop printed snapped up in the first term! A new edition and mock interviews on campus, providing an will be published in the new academic year and invaluable opportunity for a few lucky students to it will be updated with new content and the latest practice and hone their interview skills. TARGETjobs developments. Make sure to keep a lookout! also collaborated with Mayer Brown, Ashurst, and RPC to deliver an information-packed afternoon of Early in the year, Sam Unsworth (your new UBLC workshops. president), conceived of and conducted a lengthy workshop giving our first year students an overview of As can be seen, the UBLC works very hard to bring various careers in commercial law. The workshop was our members a variety of opportunities for students incredibly successful, and was attended by a massive to gain career-related skills and information and number of students. Needless to say, the content provide them with support. We believe that Bristol was remarkably informative and beneficial to all the law students have every chance of landing a training attendees. Given the positive feedback received, it is contract in their dream firm. I strongly encourage most certain that a similar workshop will be delivered you to take up every opportunity we have for you! again next year!

Dicta 2015 | Page 61

Dicta 2015_Proof NEW.indd 61

27/04/2015 22:11

University of Bristol Bar Society 2014/15 by Spencer Turner (President)

W

fantastic scholarship information session held by the Director of Education at Gray’s Inn. It was particularly pleasing to see such a strong turn out from first year lawyers, clearly keen to make the most of their opportunities from the off.

Now in its fifth year of existence the University of Later in the term, BPP and the University of Law Bristol Bar Society is a student-run society which aims both delivered commercial awareness sessions as part to inform students about a career at the Bar and train of their wider programmes which allowed students them in the skills necessary to becoming a successful to receive a certificate in commercial awareness. The advocate. Throughout the academic year, we organise Society also took part in a fantastic trip to Gray’s talks from barristers and judges, advocacy training Inn where we met the Director of Education and workshops in collaboration with BPTC providers, attended a Legal Cheek panel talk about the current visits to the Inns of Court, and the popular annual state of the Bar. Mock Trial, which marks the culmination of the academic year at the University of Bristol Law School. A regular fixture in the Bar Society calendar, the bail After a summer of wrangling with sponsors, booking application competition, took place in December. rooms, enticing new members, we were delighted to Elliot Evans, Vera Yeh and Darcy Rollins performed hold our opening social at Goldbrick House. The fantastically to come first, second and third respectively. event was kindly sponsored by Cardiff Law School The Bar Society carried on the tradition of hosting and St John’s Chambers, and gave sixty students the an Annual Networking Dinner, this year hosted at the opportunity to network with barristers and pupils, as gorgeous Mansion House in Clifton. The event saw well as the chance to 35 practitioners and 65 students come together over get to know the dinner and drinks. The event gives the opportunity committee and for Bristol students to meet practitioners in a relaxed other members setting and discuss the Bar. The event was fantastically well received by students and practitioners alike, with of the Society. many impressed by the calibre of the students from In the weeks Bristol. following our opening The second term promises to be just as successful as social, the the first. The Society will be visiting the four Inns Society held of Court for lunches, dinners and tours, as well at and “Introduction the RCJ and the Supreme Court. There will also be to the Bar” talk, a various talks from high profile chambers, including “How to Moot” Blackstones and Brick Court. There will also be wo rk s h o p further competition, where the Society will have and a team representing them in the FTB Kingsland Mooting Competition, the Inner Temple Debating a Competition, the National Advocacy Championship and in a Mock Trial Competition vs Swansea University. Internally, we will see the return of the plea in mitigation competition and the year will culminate in the ever popular mock trial. ith every passing year, the strength of the societies within the Law School increases, and the 2014/15 academic year has proved to be no different.

Dicta 2015 | Page 62 Dicta 2015_Proof NEW.indd 62

27/04/2015 22:11

In my three years at the University of Bristol, the profile of the Bar Society has increased massively.

This is due, in part, to the huge successes of the Presidents that preceded me. Without their hard work in laying the foundations, the Society would not be in the position it is in today. In the same time frame, the Bar has undergone radical change. The impacts of Legal Aid, Sentencing and Punishment of Offenders Act 2012 are beginning to be understood, and the harsh realities of how difficult it is for students of our generation to reach the Bar are there for all to see.

It’s within this context that the progress and successes of the University of Bristol Bar Society has made me most pleased.

plethora of amazing events that are designed to help your understanding of legal careers, and to give you the opportunities to build up your experiences and, in turn, enhance your CV. It has been an absolute privilege to be the President of the Bar Society this year. Albeit a significant amount of work, I can say it has been one of the most demanding and enjoyable experiences of my university career. Good luck to next year’s committee; I wish them all the best.

“The Bar Society carried on the tradition of hosting an Annual Networking Dinner, this year hosted at the gorgeous Mansion House in Clifton.”

As costs and the number of applicants rise, whilst places decrease, competition to reach the Bar has become more and more fierce. It’s now crucial for any potential applicant to have as much experience on their CV as possible. At the Bar Society, by offering our students the opportunity to gain commercial awareness, to compete, to improve their public speaking, and gain good general knowledge about the Bar, our members are able to put themselves in the best position possible. It is by taking part in these extracurricular events that students can set themselves apart from the competition, give themselves an edge and position themselves well in today’s job market.

To anyone reading this, particularly those who will be embarking on their degree in 2015, make sure you take the chances that are there for you. The Law School has two fantastic societies which put on a Dicta 2015 | Page 63 Dicta 2015_Proof NEW.indd 63

27/04/2015 22:11

The Hunt Cup 2015 by Kirsty Parker

T

he Hunt Cup is an annual debating competition that enables law students from across the faculty to debate on a broad range of contemporary and contentious issues. The competition involves 64 debaters competing over 5 rounds and is sponsored by local leading international law firm DAC Beachcroft.

All of these skills are valuable in an increasingly competitive job market!

• communication and presentation skills • ability to think critically and creatively

under pressure • teamwork • networking skills • negotiation and persuasion skills

Overall, this year has been a fantastic opportunity for all involved and I highly recommend any students reading this to get involved next year under the chairwomanship of Nicole Brendel!

On January 15th this year the top 8 debaters from the first round were invited to attend a “CV Clinic” at the DAC Beachcroft offices near Temple Meads. Having pre-submitted their CVs a week prior, each debater was given a one-to-one session with a member of The level of interest in participating in the competition the graduate recruitment team with advice on how this year was at its highest yet. The launch night in to make their CVs even more attractive to potential October was attended by close to 150 students. This employers. event provided a fantastic opportunity for students to learn more about the competition, network with the Another highlight of the competition this year has sponsor law firm’s employees and enjoy some good been the introduction of floor debates from the wine and nibbles! The audience were particularly second round onwards. This involves giving audience entertained by an example debate given by Richard members opportunities to ask questions to individual Collier, Spencer Turner, Imogen Lowden and Megan debaters after the main debate has finished. We have Elms on the motion “This House believes woman been very fortunate this year to have been blessed with a large number of people participating in the have it easier than men”. floor debates.

It is important to stress that although branded as a ‘competition’, there has nevertheless been a But where would a summary of the Hunt Cup be relatively informal social atmosphere throughout without a mention of the much anticipated final! On the competition with networking drinks occurring the 12th March a packed lecture theatre watched as both before and after the debates each week. Anyone the top 4 debaters – Richard Collier, Spencer Turner, was welcome to join the competition, regardless of Alanna Toner and Connor Donnithorne – battled it debating experience. Indeed, DAC Beachcroft were out to win the Hunt Cup. The motion for the debate particularly excited by the number of first years was: “This House believes that the UK should adopt an “opt out” system for the organ donor register” and applying to participate this year! stimulated many questions from the floor at the end.

The Hunt Cup has provided excellent opportunities A huge congratulations to Spencer Turner, 3rd year, who ultimately won the Cup. for participants to develop their:

Dicta 2015 | Page 64 Dicta 2015_Proof NEW.indd 64

27/04/2015 22:11

Mooting 2014/15

by Lauren Webb (Senior Mistress of the Moot)

T

he past academic year has been the most successful mooting year in Bristol’s history!

Furthermore, the Mooting Team are incredibly proud to announce that we have been awarded the opportunity to hold a moot at the Supreme Court, to Our year began in October when the Masters of the be judged by Baroness Hale! Our First Year Finalists Moot (Tom Murrell and Julian Goering) organised will be mooting in front of Baroness Hale on 28th the immensely successful Mooting Launch Night. In April 2015. We would like to wish our finalists - Lucy front of 150 attending guests, including students, staff Bennett, Rosa Shand, Sam Unsworth and David Lui and Herbert Smith Freehills representatives, Hannah - the best of luck in their final moot!

Quinney and Anthony Asindi provided a sample of the sort of Mooting excellence which the competition Not only has this year been a great success for our facilitates at Bristol every year. Following the Launch internal mooting competition, but our inter-varsity Night, the most oversubscribed 1st year Mooting presence has gone from strength to strength under sign-up in the history of the competition, with over the excellent leadership of Michael Bingham. At 150 people queuing for 64 places, took place at Wills the beginning of the year, Bristol won our first interMemorial Building. Similarly both the 2nd and 3rd varsity moot against Exeter on our annual Interyear competitions had the highest sign-up rate of Varsity Day. We also held the second ever University of Bristol Inter-Varsity Mooting Competition, recent years. sponsored by Lexis Nexis, Bond Dickinson and St The calibre of mooting talent this year has been Johns Chambers. Against 16 universities, our Bristol exceptionally high and was showcased perfectly in Team (Hannah Quinney and Anthony Asindi) came the 2nd and 3rd Year Final on 2nd March 2015. Both a very respectable 2nd place to deserving winners, the years were judged by representatives from Herbert Open University, and were honoured to be judged Smith Freehills, with the second years mooting on by Lady Justice Victoria Sharp from the Court of a Contract case and the third years on Trusts. We Appeal. would like to further congratulate this year’s winners: I would like to thank our kind sponsors, Herbert Smith Freehills, without whom this competition would not be possible.

2nd Year Winner: Joe McBrien

3rd Year Winner: Bethan Cowlam 2nd Year Runner-up: Joe Docherty 3rd Year Runner up: Natasha Miller

Dicta 2015 | Page 65 Dicta 2015_Proof NEW.indd 65

27/04/2015 22:11

Before I Finnish - a year of study abroad in Finland by Patrick O’Kane

W

elcome to Finland and the far north!

Finland is often called the “country of thousands of lakes” – but this is a slight understatement. Anyone who comes here can look forward to some 200,000 lakes, 2 million saunas and sheer endless forests.

a vibrant Erasmus culture, welcoming over 100 exchange students a year, with other UK partners including the Universities of Glasgow, Sheffield and Warwick. I have enjoyed the challenge of familiarising myself with the Finnish education system, which contrasts with that of the UK. Indeed, students in the law faculty have the opportunity to select a wide My motivations for applying to study abroad were variety of courses, the majority of which only last for a twofold: I wanted to gain invaluable international few weeks. This has allowed me to explore somewhat experience and, equally, I believe the transition from “niche” areas of law. second year of university into third and final year happens too quickly. I did not feel ready or prepared Another unique aspect of studying law in Helsinki to commence my final year studies. Thankfully, from which I have benefited immensely concerns Trusts law would have to wait. “But why Finland?” the University’s strong history of participating in is a question with which I am all too familiar when international moot court competitions. This year, I explaining to friends and family that I chose to study was selected as one of five members of the University in Helsinki. The answer is simple: the country offers of Helsinki moot team to participate in the Philip C. a unique learning experience, both culturally and Jessup International Law Moot Court Competition. academically.

Not only has this presented me with the opportunity to hone all the skills demonstrated by a successful Culturally, I was immediately attracted by the deep lawyer but, in April 2015, our team will also travel to and abiding love that Finns have of nature and in Washington DC to moot in the international finals. particular of their country’s forests and lakes. Indeed, Indeed, Moot Court competitions are one of the Finland is one of the world’s most relaxing, joyful reasons for the increased international recognition of places to be – a reason they traditionally have not the Helsinki Law faculty. been big travellers. Also, no matter where you are in Finland, you’ll also never be far from a sauna! With I really cannot speak highly enough about the benefits over two million in homes, hotels, summer cottages, of studying abroad. You can gain a greater knowledge camp sites and numerous other unlikely places, saunas of and a fresh perspective on law, which can set you offer a place to socialise over a few beers and respite apart from your peers. Indeed, it has been proven to from the cold and dark winter months. Interestingly, be academically and professionally beneficial, with Finnish thermometers have more numbers below the students who study abroad regularly performing line than above! While many students prefer to spend academically better than their peers who did not, not their Erasmus year sunbathing on the beach in France to mention that most returning students cite it as by or Spain, I believe studying in Finland’s unique Nordic far the most exciting and fun part of their degree. climate only enriches your exchange period.

Choosing to study in Helsinki is a good option, in my Academically, the University of Helsinki is the view, for students with an interest in International leading Law Faculty in Finland and is well regarded and EU law, providing a manageable city with an internationally, having been ranked consistently excellent university and an unusual location. It also in the top 100 universities in the world since 2007. acts as a gateway for travelling within the other Nordic The Faculty offers a choice of over 50 units taught countries and Eastern Europe. I am eagerly awaiting in English, the opportunity to learn Finnish, and the next stage of my journey here in Finland.

Dicta 2015 | Page 66

Dicta 2015_Proof NEW.indd 66

27/04/2015 22:11

Develop quickly

Scan the code to see the bigger picture.

Taylor Wessing are proud sponsors of

>>

the Photographic Portrait Prize 2014

Forward Faster Training Contracts & Summer Vacation Scheme Early exposure. Ongoing development. A focus on helping you become a trusted business adviser, as well as a good lawyer. You can expect all of this – and more besides – when you start your career with Taylor Wessing. We’re a top 20 international law firm with an impressive global network and a client list spanning sectors including: Energy, Life Sciences, Private Wealth and Technology, Media and Communications.

If you have a commercial outlook, expect to achieve a 2.1 or higher, and want to take your career forward faster, let us put you in the picture at Taylor Wessing.

If you are in your penultimate year of a law degree or final year of non-law degree, sign up to attend our open days in London To apply or for full details, please visit our website www.taylorwessing.com/graduate.

Europe > Middle East > Asia

www.taylorwessing.com

© Taylor Wessing LLP 2015

Dicta 2015_Proof NEW.indd 67

27/04/2015 22:11

Dicta 2015_Proof NEW.indd 68

27/04/2015 22:11