Advocate March 2018 issue by The Advocate Legal News

The Advocate is an online publication produced by the Queen Mary Pro Bono Society. We are a team of passionate and dedicated students who seek to share the voices of our BLP â&#x20AC;&#x201C; Advocate Essay Competition Winning Article

fellow students.

How far, if at all, should UK courts take into account decisions by the Court of Justice of the European Union (CJEU) once the UK leaves the EU? Marta Del Barrio Gomez

p.3

Disclosure and the Digital Divide Sarah Asher

students to engage with p.10

Case Comment: R (on the application of Bancoult No 3) v Secretary of State for Foreign and Commonwealth Affairs Raza Currimjee

p.20

p.23

The Hidden Constitutional Risk of Voter ID in the US and the UK Alvi Sattar

p.28

Landmark John Worboys Case Sarah Asher

p.34

The Autonomous Vehicle Revolution and Some Tough Questions Daryl Old

issues and express their opinions on them.

Asylum Policy within the EU and the Refugee Crisis Zoe Chen

current legal affairs and

p.15

Data Protection in the New Age Daryl Old

We aim to encourage

p.37

hope

you

enjoy

reading our publications.

THE ADVOCATE MARCH 2018

Our Team: Maria Carolina Centeno LLB Law and Politics Chief Editor

Frida P. Hoffmann LLB English and European Law Sub-Editor and Writer

Marta Del Barrio Gomez LLB Law and Politics Layout Editor Writer

Alvi Sattar LLB Senior Status Writer

Daryl Old LLB English and European Law Writer

Sarah Asher LLB with Global Law Writer

* Views expressed in this publication are expressed purely in a personal capacity. The author(s) of each article appearing in this publication is/are solely responsible for the content thereof; the publication of an article shall not constitute or be deemed to constitute any representation by the editors of The Advocate that the data presented therein are correct or sufficient to support the conclusions reached. Authors are responsible for their citing of sources and the accuracy of their references. The editors cannot be held responsible for any lacks or possible violations of third partiesâ&#x20AC;&#x2122; rights.

THE ADVOCATE MARCH 2018

Editor’s Note Welcome to The Advocate’s Spring 2018 Issue. This issue marks the end of a very exciting year for our newspaper. We have had an incredible team of editors and writers and we have hosted an essay competition in collaboration with Berwin Leighton Paisner (BLP). The winner of this year’s essay competition was our very own layout editor, Marta Del Barrio Gomez, who will be enjoying the winning prize of a 3-day work experience at BLP. Her article will also be opening this issue. I would like to thank Berwin Leighton Paisner and the QMBPS Placements Department for their invaluable role in this competition, as well as all students who have contributed with their submissions to this issue. We hope you enjoy reading our Spring publication! Maria Carolina Centeno Chief Editor

THE ADVOCATE MARCH 2018

BLP – Advocate Essay Competition

issues themselves. The question of the CJEU’s role specifically post-Brexit is extremely

complicated.

Whereas

the

Government may be tempted to cut all ties

How far, if at all, should UK courts take into account decisions by the Court of Justice of the European Union (CJEU) once the UK leaves the EU?

with

institutions

that

limit

sovereignty, on a closer analysis it becomes obvious that for practical issues maintaining some links with the CJEU may be favourable for the UK. However, maintaining the balance between keeping a close relationship with the CJEU and

Marta Del Barrio Gomez

recovering full control will be an arduous task; a midway approach is the best option

The exit of the UK from the

available.

European Union is a topic which despite being under a constant spotlight continues to be surrounded by uncertainties. The Government repeatedly makes abstract statements as to what approach the postBrexit deal with the EU will include. One of these statements would be Theresa May’s “we will take back control of our laws” after

Brexit.1

This broad statement fails to

detail the role EU law, EU derived law and the Court of Justice of the European Union (CJEU) will have once the UK leaves the EU; and these questions lead to further 1

T, May. The government’s negotiating objectives for exiting the EU: PM speech, Lancaster House, 17 January 2017, www.gov.uk/ government/speeches/the-governmentsnegotiating-objectives-for-exiting-the-eupmspeech

QUEEN MARY PRO BONO SOCIETY

The CJEU is the judicial system of the EU which encompasses the Court of Justice, the General Court and specialized courts.2 The jurisdiction of the CJEU is not limited

application

the of

interpretation treaties

and

the

implementation of EU law; rather the CJEU has been an active court which has expanded its power over time to review bodies not expressly subject to this provision. In 1986 it subjected the Parliament to judicial review under Article 230 EC, though the treaty did not include it as a body that could be subjected to such

Article 19(1) TEU.

Page 3

THE ADVOCATE MARCH 2018 review by the CJEU.3 Additionally, the CJEU

significant triumph for the City of London.7

established and enforced key principles

It has therefore been argued that the

which are now at the heart of the EU legal

reason behind British hostilities would be a

order such as direct effect, supremacy,

conflation

and state liability in damages. This active

Luxembourg and the European Court of

and expansive approach of the Court in

Human Rights in Strasbourg, which has

addition to other features of the CJEU has

been

led to numerous criticisms. Long before

controversies by challenging UK law and

the Brexit campaign began, the CJEU was

decisions by domestic courts. The most

perceived as “the root of judicial activism

recent example of this tense relationship

which may be a usurpation of power”4 or

would be the prisoners voting litigation

as “a dangerous institution, skewed by its

saga. The ECHR and the Human Rights Act

own policy considerations and driven by an

1998 have been subject to constant

elite mission”.5

widespread negative press, portrayed as

However,

Britain’s

between

involved

the

CJEU

number

hostility

legal instruments created to protect the

towards the CJEU has been described as a

rights of criminals. Although the confusion

mystery by Professor Barnard6 since the

between these two courts is a real issue,

CJEU has ruled in favour of the UK in

we cannot deny the obvious tension that

numerous occasions, including the 2015

the CJEU and the EU as a whole have had

victory against the European Central Bank

on the British constitutional framework.

on whether euro clearing houses should

This tension has led to numerous criticisms

be based in the Eurozone. This was a

even before the UK entered the EU. The supremacy of EU law8 contravenes the

Case 294/83 Partie Ecologiste ‘Les Verts’ v Parliament [1986] ECR 1339. 4 H, Rasmussen. On Law and Policy in the European Court of Justice (Martinus Nijhoff, 1986) 62. 5 P, Neill. The European Court of Justice: A Case Study in Judicial Activism (European Policy Forum, 1995). 6 C, Barnard. Farewell to the ECJ? We may end up obeying laws but having no say in them, The Guardian 19 August 2017, online [accessed 28 February 2018] https://www.theguardian.com/world/2017/aug/19 /ecj-farewell-brexit-european-union-surrenderinginfluence

QUEEN MARY PRO BONO SOCIETY

idea that there is no source of law in the UK than an Act of Parliament because in the case of incompatible legislation UK

Case T‑496/11 United Kingdom of Great Britain and Northern Ireland v European Central Bank (ECB) ECLI:EU:T:2015:133. 8 Case 6/64 Costa v ENEL [1964] ECR 585, reinforced by Case 11/70 Internationale Handelsgesellshaft [1970] ECR 1125.

Page 4

THE ADVOCATE MARCH 2018 courts will nonetheless have to uphold EU

includes amending regulations as well as

law.9 These judgments have made a great

delegated

portion of the British public regard the EU

regulations);10

with animosity due to a feeling of loss of

instruments; and of the 1,302 UK Acts

power and autonomy. This has been one

between 1980 and 2009 (excluding those

of the main arguments behind the Brexit

later repealed) 14.3% incorporated to a

campaign.

certain degree of EU law.11 EU law has

and 7,900

implementing statutory

Hence, based on the outcome of

become deeply entrenched within the UK

the referendum, in which 52% of the

legal system. If the Government was to

population voted in favour of exiting the

repeal all these laws, it would create great

EU, it is obvious that the settlement

gaps in the UK’s system. As a result, the

regulating UK-EU relations post-Brexit will

current Government’s approach towards

end the supreme character of EU laws and

the European Union (Withdraw) Bill, or the

the jurisdiction of the CJEU. Although

Great Repeal Bill, has been the opposite

some have argued that the referendum

one. Far from repealing all of the existing

question did not specify the extent or the

legislation concerning the EU the current

way in which the UK should leave the EU,

bill states that EU direct legislation12 and

the continuance of the CJEU jurisdiction is

derived domestic legislation13 will continue

not a nuance issue. From the debates of

to have effect after Brexit. In order to

the Brexit campaign it was obvious that

restore parliamentary sovereignty, it states

voting ‘leave’ in the referendum would entail the end of the CJEU’s authority over the UK. Taking into consideration the outcome of the referendum it seems that once the UK leaves the EU the CJEU should consequently lose all its authority. But this issue is not merely an issue of sovereignty and regaining control. There are currently over 12,000 EU regulations in force (this 9

R v Secretary of State for Transport, ex parte Factortame [1991] 1 All ER 70.

QUEEN MARY PRO BONO SOCIETY

EUR-Lex search run on 28 March 2017: http://eur-lex.europa.eu/search. html?qid=1490700962298&VV=true&DB_TYPE_OF _ACT=allRegulation&DTC=false&DTS_DOM=EU_ LAW&typeOfActStatus=ALL_REGULATION&type=ad vanced&lang=en&SUBDOM_INIT=LEGISLATION&DT S_ SUBDOM=LEGISLATION 11 How much legislation comes from Europe?, House of Commons Library Research Paper 10/62, 13 October 2010, 19, http://researchbriefings.files.parliament.uk/docum ents/RP10-62/RP10-62.pdf 12 Section 3, European Union (Withdrawal) Bill (HL Bill 79), https://publications.parliament.uk/pa/bills/lbill/201 7-2019/0079/lbill_2017-20190079_en_1.htm 13 Ibid, Section 2.

Page 5

THE ADVOCATE MARCH 2018 that subsequent UK statutes will take precedence

over

old

laws.14

In Horton v. Sadler, Lord Bingham stated

that “the House has exercised its power to

Factortame15 outcome will not occur

depart from its own precedent rarely and

again.

sparingly. It has never been thought If EU legislation is going to be

enough to justify doing so that a later

maintained post-Brexit, the issue then

generation of Law Lords would have

becomes what influence should CJEU

resolved an issue or formulated a principle

judgments have once the UK leaves the EU

differently from their predecessors”.19

since post-Brexit the CJEU will remain the

Hence, the approach outlined in the

ultimate arbitrator of EU law. The current

Withdraw Bill has the potential of allowing

approach is that although the courts will

the unintended consequence of the CJEU

no longer be bound by post-Brexit CJEU,16

retaining its power post-Brexit. Despite

domestic case law regarding EU law and

this possible outcome, this approach is still

CJEU case law pre-Brexit should be

the safest option since it causes the least

maintained.17 The significance of these

disruptions to the current system, and

judgments is modified since the UK

since

Supreme Court is no longer bound by EU

parliamentary sovereignty will be restored

case law and can treat CJEU judgments as

– Parliament will have the option to

ordinary precedent and can therefore

legislate

decide to depart from it in the same

judgments.20

manner as it would do from its own case

the

traditional

conception

overturn

undesired

Additionally, regarding future CJEU

law.18 Although this approach would bring

judgments

EU supremacy regime to an end and

continues to have effect in the UK post-

completely

judicial

Brexit, although UK courts are not bound

branches from the UK’s legal system, it is

by them they can still consider them if and

worth noting that it is rare for the

when they consider appropriate.21 This

Supreme Court to depart from precedent.

seems to be a half way approach which

remove

external

concerning

law

that

attempts to depart from the jurisdiction of 14

Ibid, Section 5. 15 (n.9). 16 (n.12) Section 6(1). 17 Ibid, Section 6(7). 18 Ibid, Section 6(4)(a) and 6(5).

QUEEN MARY PRO BONO SOCIETY

Horton v. Sadler [2006] UKHL 27. R, Hogarth. Brexit and the European Court of Justice, Institute For Government, June 2017,12. 21 (n.12), Section 6(2). 20

Page 6

THE ADVOCATE MARCH 2018 the CJEU as much as possible without

full power and autonomy of UK courts.

causing the current system to collapse.

Although this approach does give some

Giving no legal status to post-Brexit CJEU

power to the CJEU post-Brexit, it does so in

decisions has never been regarded as an

a controlled manner in which the UK will

option. Legal experts have described such

remain in control of its laws and

an approach as “mad”, “absurd” and

sovereignty.24

“potty”.22 These attitudes are rooted in the fact that UK courts constantly invoke

There are however several issues

judgments of courts around the world,

which

including those of Australia, Canada,

continuing jurisdiction over the UK post-

France, Germany, Greece, New Zealand,

Brexit and which have not been dealt with

Norway, Spain, the Netherlands and the

in the current European Union (Withdraw)

USA, among others.23 Hence, denying UK

Bill. First, one of the most important issues

courts the ability to rely on future CJEU

which has remained unanswered is what

judgments

will happen with pending cases post-

inconsistent with the general style in

Brexit. Currently, there are 30 cases

which UK courts operate. By allowing the

referred to the CJEU by the UK courts, by

courts to regard or depart from CJEU cases

virtue of Article 267 TFEU, are still

when considered necessary by the British

pending.25 Whereas the Government has

courts themselves, the UK is handing back

not yet made its position clear, EU

any

way

would

may

entail

the

CJEU

having

the full power of interpretation to domestic courts. It is not going to be the CJEU in Luxembourg or a few politicians who have no judicial experience that are going to be making these decisions. British judges themselves will decide when to consider CJEU cases thereby restoring the 22

(n.20), 10. For example, in Fairchild (suing on her own behalf) v. Glenhaven Funeral Services Ltd and others [2002] UKHL 22; or White and another v. Jones and others [1995] UKHL 5. 23

QUEEN MARY PRO BONO SOCIETY

As discussed in C, Barnard. Law and Brexit, 2017 Oxford Review of Economic Policy 33 (1); S, Peers. The white paper on the Great Repeal Bill, EU Law Analysis, 22 May 2017, online [accessed 28 February 2018] http://eulawanalysis.blogspot.co.uk/2017/03/ thewhite-paper-on-great-repeal-bill.html 25 Search on InfoCuria, http://curia.europa.eu/juris/liste.jsf?pro=& nat=or&oqp=GB%252C&dates=&lg=&language=en &jur=C%2CT%2CF&cit=none%252 CC%252CCJ%252CR%252C2008E%252C%252C%25 2C%252C%252C%252C%25 2C%252C%252C%252Ctrue%252Cfalse%252Cfalse &td=%3BALL&pcs=Oor&avg=& page=1&mat=or&etat=pend&jge=&for=&cid=8074 89

Page 7

THE ADVOCATE MARCH 2018 negotiating directives have stated that

sovereignty was ever restored since UK

concerning these cases the CJEU should

courts will become de facto subjected to

“remain competent to adjudicate in these

CJEU judgments and approaches.

proceedings” and the court’s rulings “must

Finally,

another

area

be binding upon the United Kingdom”.26

disagreement as to the future role of the

Indeed this seems the most coherent

CJEU is that of the potential dispute

approach.

resolution mechanisms between the UK

Secondly, we need to consider how

and the EU post-Brexit. There are two

should British judges interpret post-Brexit.

types of cases which may create problems.

British judges and the CJEU have different

There is uncertainty as to how alleged

interpretative approaches; the question

infringement cases will be solved where

arises of whether when deciding cases

the allegation takes place after Brexit day

concerning EU law British judges should

but the fact occurred pre-Brexit. The EU

follow the CJEU’s purposive interpretation

position is also that these cases should be

approach. If British judges follow the CJEU

heard by the CJEU, as with pending

approach this may potentially lead to

preliminary ruling cases. The second, and

judges regarding future post-Brexit CJEU

more controversial, type of cases which

decisions more often, and therefore using

may

s.6(2) of the European Union (Withdraw)

infringements

Bill more often than what Parliament had

withdrawal agreement post-Brexit. This

originally envisaged. If UK courts rely too

agreement will include EU citizens’ rights,

much on post-Brexit CJEU judgments, we

and therefore these kinds of disputes are

face again the question of whether

seen by the EU as within the jurisdiction of

the CJEU, which would mean that the CJEU

European Commission, Annex to Council decision (EU, Euratom) 2017 authorising the opening of negotiations with the United Kingdom of Great Britain and Northern Ireland for an agreement setting out the arrangements for its withdrawal from the European Union – Directives for the negotiation of an agreement with the United Kingdom of Great Britain and Northern Ireland setting out the arrangements for its withdrawal from the European Union, www.consilium.europa.eu/en/meetings/ gac/2017/05/Directives-for-the-negotiationxt21016-ad01re02_en17_pdf

QUEEN MARY PRO BONO SOCIETY

arise

are

those

concerning

alleged

the

future

maintains its authority over the UK. The EU will only allow an alternative dispute settlement mechanism if said mechanism “offers

equivalent

guarantees

independence and impartiality to the

Page 8

THE ADVOCATE MARCH 2018 Court of Justice of the European Union”27;

declaration as to how UK courts need to

this may lead to another CJEU kind of

interact with the CJEU post-Brexit has

court and therefore the same pre-Brexit

been regarded as fundamental by UK

restriction of UK sovereignty. Nonetheless

judges. Both Lord Neuberger and Lady

for

the

Hale have stated that the judiciary requires

Government may prefer to have an

clarity on these issues28 to ensure legal

equivalent court to adjudicate on these

certainty for individuals and businesses.

issues. It would provide an image of

This is essential to uphold the rule of law.

deflection from EU institutions.

They have also stated that UK courts will

the

sake

appearances

not be regarded as overstepping their role, Overall, it is obvious that the UK Government should disregard the CJEU

meaning that their actions will be less open to attack.29

after Brexit just to a certain extent. Although a midway approach may not always be satisfactory, it is the best approach to fulfil the political and electoral

Lady Hale’s Response:

promises of a hard Brexit made by the

On Monday 19th March The Advocate had

Government and to ensure a smooth

the chance to ask Lady Hale directly what

transition that does not shatter the

her thoughts were on this question.

current domestic legal system at the same

This was her response:

time. However, this is an extremely contested issue which will be subjected to

“We will do what Parliament tells us

further debate before the final Withdraw

to do. End of story. I’ll just hope that

Bill and the exit agreement with the EU are

Parliament tells us in certain terms

finalised. An issue which nonetheless

what it wants us to do. And that is

seems crystal clear is that, whatever the

not the end of the story.”

final

solution

these

unanswered

questions may be, it needs to be reflected on the Withdraw Act. The express

Ibid, paras 41–42.

QUEEN MARY PRO BONO SOCIETY

Select Committee on the Constitution, oral evidence: with the President and Deputy President of the Supreme Court, 29 March 2017. 29 (n.20),10.

Page 9

THE ADVOCATE MARCH 2018

Disclosure Divide

and

the

Digital

Strained Resources Angela Rafferty QC, the head of the Criminal Bar Association, believes that the

Sarah Asher

recent collapses are an illustration that the justice system is at ‘breaking point’31.

Introduction The Crown Prosecution Service is to review all current rapes cases to ensure correct disclosure

evidence

has

been

achieved.30 The necessity for review comes after the recent collapse of at least four different rape cases within the last few months, due to insufficient disclosure obligations.

The

issues

regarding

disclosure can be simplified into two key areas, those being a) the development and increase of digital evidence; and b) cultural attitudes institutions

within towards

law

enforcement

disclosure.

The

fairness of trials is, therefore, being jeopardised and prompts questions about the justice system’s quality overall. How are honest and reasonable results within courts going to be achieved, if the full picture isn’t made known?

Rafferty clarifies that: “Cost-cutting and outsourcing has put the administration of justice at risk ... I don’t think it’s bad faith by the police. They have been underresourced. They are swamped.”32 The lack of resources dedicated to an emerging and ever-increasing reliance on digital evidence among criminal justice proceedings has left a deficit on law enforcement

institutions

ability

prosecute fairly. A recent case regarding drug-related offences in Woolwich was halted due to photo evidence from a mobile phone not being submitted due to an inability to physically transfer the material into court. The detective in charge of the case refused to hand over the evidence because of a claim that the police force was unable to afford the

31 30

Owen Bowcott, ‘Urgent review of all rape cases as digital evidence is withheld’ 27 January 2018, The Guardian <https://www.theguardian.com/society/2018/jan/2 6/urgent-review-of-all-cases-as-digital-evidence-iswithheld > accessed 21 Feb. 18

QUEEN MARY PRO BONO SOCIETY

Owen Bowcott, ‘Justice system at “breaking point” over digital evidence’ 12 February 2018, The Guardian <https://www.theguardian.com/law/2018/feb/12/j ustice-system-at-breaking-point-over-digitalevidence > accessed 21 Feb. 18 32 Ibid

Page 10

THE ADVOCATE MARCH 2018 necessary USB stick to provide the

Furthermore,

evidence.33 The trial had to be suspended

appropriate

until the computer memory stick could be

addressed according to Police Chief Nick

purchased. Although this situation poses a

Ephgrave, who has stated that: ‘We have

very specific set of circumstances in which

had a cultural problem with disclosure

disclosure was threatened, it illustrates the

where it is too often seen by police officers

inefficiency of a justice system under

as a thing to be done at the end of an

pressure and the potential jeopardy posed

investigation - becoming subsequent to

to fair outcomes in court.

rather than integral to the investigation.

The lack of resources contributes to the

Changing this mindset is an immediate

two key issues highlighted above, with

challenge for us.’35 Earlier this month, the

inadequate training for officers provided

Met Police were made to apologize to a

influencing the approach taken to combat

22-year old student, Liam Allan, who was

the digital growth of evidence. Peter

under investigation for 12 counts of rape

Kirkham,

chief

and sexual assault. However, it later came

inspector with the Met Police, says that

to light that officers in charge of the

‘It’s been a growing problem for years.

investigation had withheld a disc with

Obviously, phones have got more and

40,000 text messages contained on it,

more complex, but even back in the day

having felt that there ‘was nothing

when they were fairly basic, there was a

relevant on it.’36 A joint review by the CPS

delay in getting them examined. That’s

and Met Police subsequent to the

been reduced to a certain extent because

breakdown of the case, found that the

some stuff is done without having to send

‘lack of knowledge’ by police was to blame

former

detective

it off to a specialist.’34

David Brown, Gabriella Swerling ‘Police can’t afford £14 USB stick for evidence’ 2 February 2018, The Times, <https://www.thetimes.co.uk/article/police-cantafford-14-usb-stick-for-evidence-xdz09509f > accessed 21 Feb. 18 34 Patrick Smith, ‘Police are struggling to cope with an avalanche of digital evidence’ 18 February 2018, Buzzfeed News <https://www.buzzfeed.com/patricksmith/police-

QUEEN MARY PRO BONO SOCIETY

the

culture

disclosure

needs

regarding to

are-struggling-to-cope-with-an-avalanche-ofdigital?utm_term=.hmdgJy7ZQ#.qlVylmXbz > accessed 21 Feb. 18 35 Nick Ephgrave, ‘ Police Chief Blog: Changing the culture of disclosure’ 24 January 2018, National Police Chief’s Council <https://news.npcc.police.uk/releases/policechiefs-blog-cc-nick-ephgrave-changing-the-cultureon-disclosure >accessed 21 Feb. 18 36 ‘Met Police apologise for Liam Allan rape case errors’ 30 January 2018, The BBC News <http://www.bbc.co.uk/news/uk-england42873618 > accessed 22 Feb. 18

Page 11

THE ADVOCATE MARCH 2018 for the substandard treatment of Mr

the police ‘done your job properly, there

Allan’s

the

wouldn’t be 105 victims, there would be

circumstances, in order to facilitate justice

one.’ The case is a ‘landmark’ decision, as

effectively

contextual

it sets a precedent for future claims, under

background and information of events is

essentially what can be classified as police

required to form objective judgements.

negligence when conducting investigations

case.

Regardless

the

entire

etc. The pressure to perform more Implications on Justice

effectively has therefore been reinforced.

The immediate consequence of these

Hence, the CPS’s overhaul of recent rape

failings to handle digital evidence is the

cases. However, the lack of resources to

potential for miscarriages of justice. This

facilitate this remain strained.

notion is true for both sides of a case, as without a total disclosure of the facts, the

Reliance on Private Firms

true nature of crimes can be either lost or

One such way that law enforcement

misconstrued. This becomes even more

institutions engage in to mitigate the

significant when viewed in conjunction

burden of investigative and evidence

with the ‘landmark’ ruling of the Supreme

obligations, is by using private sector firms

Court regarding victims of serious crimes

to analyse evidence on their behalf.

ability to sue the police for failures in their

According

investigations.37 The claimants and victims

Guardian, at least 15 police forces in the

of the serial rapist John Worboys, brought

United

their claims under article three38 of the

Metropolitan Police have outsourced their

Human Rights Act 1998. The women

digital forensics work to unaccredited

bringing the claim said they had poorly

private firms.39 This raises additional

treated by the police, which had resulted

concerns, however, about the quality of

investigations

Kingdom

including

The

the

in mental harm; adding further that had 39 37

‘John Worboys case: Met Police lose “landmark” appeal’ 21 February 2018, The BBC News <http://www.bbc.co.uk/news/uk-43140827# > accessed 21 Feb. 18 38

The right not to be subjected to torture or to inhuman or degrading treatment.

QUEEN MARY PRO BONO SOCIETY

Hannah Delvin and Sarah Marsh, ‘Police outsource digital forensic work to unaccredited labs’ 12 February 2018, The Guardian < https://www.theguardian.com/uknews/2018/feb/12/police-outsource-digitalforensic-work-to-unaccredited-labs> accessed 21 Feb. 18

Page 12

THE ADVOCATE MARCH 2018 the work being performed, as many of the

away from other obligations as well as

firms used do not fulfil Government

removing the cost of physical courtrooms.

conditions. The private firm, Sytech is an

The initiative is a part of a £1 Billion

example of an organisation that had its

innovation project by the Government, to

accreditation revoked by the UKAS (the

modernization the justice system; the

body responsible for regulation of private

projected growth of the project, being that

forensic firms) but was still being used by

it will be incorporated into other areas of

some police forces.40 However, the issue

law. However, one could ask whether this

remains that there is simply not enough

priority of courtroom modernization is in

time and people power to investigate the

fact second, to general evidence gathering

evidence, without outsourcing to lessen

and disclosure issues? Recent criticisms by

the obligation. The use of the firms

the charity organisation Transform Justice

demonstrates further a justice system at

reinforce this argument, by advancing the

‘breaking point.’41

idea that video-links in courtrooms hinder justice through a lack of clarity.43 The

Shifting Priorities

Director of Transform Justice, Penelope

Nevertheless, the priorities being pursued

Gibbs, has said: ‘Our report sounds a

regarding reform of justice have come in

warning bell. If video justice disadvantages

the introduction of digital courtroom

disabled people and risks undermining

hearings for tax cases. The online hearing

trust in the justice system, is it worth

will begin place this spring, with claimants

forging ahead with trial by Skype? It’s not

and their lawyers able to participate via

clear what the cash savings are and closing

video link.42 The digital system will look to

our courts will be irreversible.’ Hence, with

address

and

such contention being placed on a justice

therefore cost, as claimants are not taken

system that is barely coping with standard

issues

convenience

levels of digital involvement, how will 40

Ibid. Bowcott (n 2). 42 Owen Bowcott, ‘First online courtroom hearings to pave way for digital justice’ 15 February 2018, The Guardian <https://www.theguardian.com/law/2018/feb/15/f irst-online-courtroom-hearings-to-pave-way-fordigital-justice >accessed 21 Feb. 18. 41

QUEEN MARY PRO BONO SOCIETY

Owen Bowcott, ‘ Videolinks in court trials undermine justice system, says report’ 23 October 2018, The Guardian <https://www.theguardian.com/law/2017/oct/23/v ideolinks-in-court-trials-undermine-justice-systemsays-report > accessed 22 Feb. 18.

Page 13

THE ADVOCATE MARCH 2018 further superficial developments look to reinforce a court estate that is essentially ‘crumbling’?44

Conclusion The justice system in the United Kingdom is under immense pressure. The recent breakdown of several rape cases, as well as the momentous ruling of the human rights case regarding John Worboys victims, shows that there are significant issues in the treatment of investigations and prosecution. These issues abridged and totalled, amount to a growing gap in the appropriate standard of disclosure and officer training regarding the significance of information. Further reforms and a lot more funding is required to alleviate the burden that is currently felt in the justice system. Ultimately, for justice to continue being achieved honestly and objectively, change must occur.

Owen Bowcott, ‘Underfunded justice system 'crumbling', top criminal barrister says’ 29 January 2018, The Guardian <https://www.theguardian.com/law/2018/jan/29/ underfunded-justice-system-crumbling-topcriminal-barrister-says > accessed 21 Feb. 18.

QUEEN MARY PRO BONO SOCIETY

Page 14

THE ADVOCATE MARCH 2018 make resettlement by the Chagossians unfeasible.

Case Comment

This short article aims to explain

R (on the application of Bancoult No 3) v Secretary of State for Foreign and Commonwealth Affairs

the issue of improper motive and looks in more detail at the sub-issue of whether a bona fide decision-maker’s decision can be impugned on the basis that he is not aware of his civil servant’s improper

Raza Currimjee

motive. However, there is a preliminary question

the

early

1970s,

the

government removed the inhabitants of

answer:

how

did

the

Chagossians learn of the alleged improper motive?

the Chagos Archipelago (the British Indian Ocean Territory-BIOT) from their homes to enable the United States to establish a military base in the middle of the Indian Ocean. Since then, the Chagossians have been trying to return home (see Bancoult No 2 and No 4). In 2010, a Marine Protected Area (MPA) was established in the BIOT. The Chagossians challenged its legality

way

judicial

review

proceedings. The case went up to the Supreme

Court.

dismissed

the

Chagossians appeal by a 5:2 decision. The contentious issue concerned the possible unlawfulness of the decision of the then Secretary of State (SoS) David Miliband to establish the MPA because it may have been tainted by the improper motive to

QUEEN MARY PRO BONO SOCIETY

The admissibility of the Wikileaks cable On December 2nd, 2010, the Guardian, with the help of Wikileaks, published

document,

alleged

diplomatic cable sent by the US Embassy in London to the US Embassy in Port Louis, Mauritius. The alleged cable describes and reports on a meeting in London between representatives of the American and UK governments, on the 12th of May 2009. The meeting was attended by Mr. Roberts, the Commissioner, and Ms. Yeadon, the Administrator, for BIOT. The cable states that Roberts declared to the American officials

that

“the

BIOT’s

former

inhabitants would find it difficult, if not impossible, to pursue their claim for

Page 15

THE ADVOCATE MARCH 2018 resettlement on the islands if the entire were

The issue of improper motive

Chagos

Archipelago

marine

The Administrative Court, without

reserve”1.

The appellant’s case is that this

the cable being admissible, had decided

record indicates that the decision to

that the decision to create the MPA was

establish the MPA was motivated by the

not tainted by an improper motive and

improper aim to make resettlement by the

was thus lawful. The issue for the Supreme

Chagossians impossible. This would be

Court was whether, had the appellant

because a marine reserve would restrain

been able to use the cable (as they should

the ability of the Chagossians to develop

have), the Administrative Court could2

fishing as part of their economy if they

have decided the improper motive issue

were to resettle.

differently. The framework adopted by the

The first issue concerned the

majority and the minority for this issue

admissibility of the cable in court in order

were the same. The first step is to ask

to decide on the issue of improper motive.

whether the Administrative Court could

The Administrative Court had held that it

have taken a different view of Robert’s

could not treat the cable as a genuine

motivation to create the MPA had the

contemporaneous record of the

12th

May

cable been available. If there was a real

meeting (i.e. as a piece of documentary

possibility that the Administrative Court

evidence that could counter the oral

could have come to a different conclusion,

testimony of the civil servants) and the

then the second step is to ask whether

appellant

limited in his cross-

there was a real possibility that it could

examination of Roberts and Yeadon. The

have found that this improper motivation

Court of Appeal reversed the decision as to

by the two civil servants had tainted the

the admissibility of the cable. The Supreme

decision of the SoS3.

was

Court arrived at the same result, albeit with a different reasoning.

Lord Mance for the majority and Lord Kerr for the minority differed in answering the first question. The former thought that

R (on the application of Bancoult No 3) v Secretary of State for Foreign and Commonwealth Affairs [2018] UKSC 3, [2018] 1 W.L.R 973 [83].

QUEEN MARY PRO BONO SOCIETY

2 3

Ibid [23], [109]. Ibid [36], [121].

Page 16

THE ADVOCATE MARCH 2018 there was no real likelihood that the

evidence that David Miliband held the

Administrative Court could have taken a

alleged improper motive8.

different view of the evidence and of the motive held by the civil servants. Thus, on

Lord Mance argues that the “ultimate

this basis, the decision to create the MPA

decision-maker”, the “actual decision-

was not tainted by an improper motive

making process” and the decision were not

and was lawful4. Lord Kerr, on the other

affected by the improper motive of the

hand, considered that there was a

civil servants9. As stated above, there is no

substantial possibility that the court could

evidence

have

the

improperly motivated. Moreover, he sees

Chagossians from resettling was “at least,

the actual decision-making process as

a collateral purpose in the civil servants’

unaffected

recommendation” to Miliband to create

recommended establishing the MPA in

the reserve5.

“appropriate” and “objective” terms by a

found

that

preventing

that

David

Miliband

because

was

Roberts

note on the 05/05/09 to the SoS. The note Whether the Administrative Court could

highlighted the potential conservation and

have found that the civil servants’ improper

climate change benefits (among others) of

motivation had tainted the decision of the

an MPA. Importantly, listing the potential

SoS

risks, the note stated that creating an MPA If we assume that the civil servants did

would not “calm down the [Chagossian] debate”10.

hold such improper motive (as Lord Mance

resettlement

does in answering the second step6), can

before the Supreme Court is that this

the decision of the SoS be impugned? And

advice

if so, on what basis? Both Lord Mance and

suppression or misrepresentation of any

Lord Kerr agree that the relevant decision

fact, and that the MPA could not indeed

maker is the Secretary of State in person7.

have put paid to the Chagossians’ hopes.

They also both agree that there is no

Thus, how could David Miliband have

objective

The

advice,

position

without

failed to take into account a relevant 4

Ibid [42]. Ibid [108]. 6 Ibid [43]. 7 Ibid [26], [113]. 5

QUEEN MARY PRO BONO SOCIETY

Ibid [44]. Ibid [45]. 10 Ibid [27]. 9

Page 17

THE ADVOCATE MARCH 2018 consideration, as they were all in the note?

his civil servants. This is also a basis on

The appellant would need to find such

which the decision could be impugned12.

suppression or misrepresentation of fact in the advice, a suppression caused by Roberts’ bad motive.

Lord Mance, in response, focuses on the possible consequences of Lord Kerr’s

Thus, it is irrelevant if Roberts held

analysis. If the views of civil servants are

such an improper motive: he was not the

considered material information that must

decision-maker and he appropriately gave

be made available to a Minister when

his views to the SoS, keeping his improper

making a decision, then he fears that “any

motive for himself.

irrelevant misconception” of any civil servant at any level concerning any

Lord Kerr held that there was a real

proposal put to the Minister could

possibility that the Administrative Court

undermine a ministerial decision13. For

could have found that the SoS’ decision

Lord Kerr, this was the “outworking of a

could be impugned. The SoS “decided to

strategy” to create and MPA for an

proceed with the MPA on the basis of

improper reason and that there is a

advice that it would not, of itself, eliminate

difference between a failure to be aware

the chances of resettlement of the Chagos

of a misconception of his civil servants by

Islands. If contrary to that advice, it was

the

the view of the civil servants that the MPA

withholding

would precisely achieve that aim, the

because of an improper ulterior motive.

Minister of

and

the

relevant

deliberate information

minister should have been aware of it”11.

Logically, if Roberts was motivated to

This is the first relevant consideration that

prevent Chagossians resettlement with the

the Minister has not taken into account:

MPA, he must have had the view that the

the view of Roberts as to what the MPA

MPA was capable of achieving that aim.

was capable of achieving. The second

Then why would he proceed to tell David

relevant consideration the SoS has not

Miliband that it was not capable of putting

taken into account is the motive itself of

paid to the Chagossians’ resettlement effort in the note? If the proposal was 12

Ibid [120].

QUEEN MARY PRO BONO SOCIETY

Ibid [118]. Ibid [48].

Page 18

THE ADVOCATE MARCH 2018 bound to be put up to the SoS and if Roberts knew so and if he held an improper motive, he would not want to disclose his view or his motive to the SoS, believing that it would affect his goal of extinguishing

the

Chagossians’

resettlement hopes with an MPA. This clearly would affect the decision-making process of the Minister in a material way. The difference between the majority and the minority is that the former sees on the motive of the civil servants and their views as different. But in this case, it is difficult to dissociate them if we assume that they held the improper motive.

It is important to remind that Lord Kerr and Lady Hale ordered the issue of improper motive to be sent back to the Administrative Court, with the cable being admissible, and did not believe that the decision was unlawful, simply that it could be. In the end, these are “just” legal gymnastics and discussions that lead to an interesting debate about the process of decision-making. What remains a fact is that the Chagossians are still not allowed to return home.

QUEEN MARY PRO BONO SOCIETY

Page 19

THE ADVOCATE MARCH 2018 bad is the risks associated with the voluntary

involuntary

sharing

personal data. This concern is not new, but

Data Protection in the New Age

it is, however, growing.

Daryl Old

The DRD was drafted in a much more

It is about time that the new General Data

primitive stage of data collection. Its

Protection Regulation1 (GDPR) comes into

objective was simple; to allow for the free

force. Luckily, from May 2018, it does.

movement

Upon becoming binding on all member

unrestrictedly throughout the union. A

states within the European Union, it will

principle that became a crucial component

supersede the old 1995 Data Protection

to the well-functioning of the single

Directive2 (DRD). As it is clear from the

market. Following an array of cases before

above dates, the DRD comes from a time

the European Court of Justice, the

when the internet was far less prominent

meaning given to the Directive (and those

in our daily lives. Times have, however,

subsequent) has changed, and therefore

changed and with this change comes

these decisions have been crucial turning

further technological integration based on

points in the carving out of the new

and around our personal data. For many

regulation. We will start our analysis by

things, this further integration is great. It

examining the Schrems3 case. Here, Mr

means more precise search results when

Maximillian Schrems launched an action

looking for things such as a sushi

against Facebook Ireland. The basis of his

restaurant in downtown NYC or targeted

complaint concerned the so-called ‘safe-

adverts

most

harbour’ agreement between the EU and

consumer needs and wants. However, as

the U.S. which focused on data sharing

generally follows with something so good,

activities between them. the agreement

something bad is inevitable. This inevitable

allowed U.S. companies to self-certify

focused

satisfying

data

circulate

whether they were providing an ‘adequate 1

Regulation (EU) 2016/679 General Data Protection Regulation [2016] 2 Directive 95/46/EC Data Protection Directive [1995]

QUEEN MARY PRO BONO SOCIETY

level of protection’ to those outside the 3

Maximillian Schrems v Data Protection Commissioner C-362/14

Page 20

THE ADVOCATE MARCH 2018 U.S. Following the ECJ’s ruling, it was held

damages, a study conducted by the law

that this standard actually meant that data

firm, Baker McKenzie found that "around

had to be protected to a level that was

70 percent of respondents believe that

“essentially equivalent [to that within the

organizations will need to invest additional

EU]”.

budget/effort

comply

[with

the

regulation]4”. From this we can gather that The reason as to why this case is of

notwithstanding the additional risk created

relevance to us is because the new GDPR

by the ECJ’s new powers, businesses will

includes something similar to the ‘safe-

need to invest extensive amounts of

harbour’

difference,

capital to ensure compliance. As it is clear,

however, lies in the fact that the

with the introduction of the Regulation,

regulation concerns any organisation that

the Union is making huge endeavours to

collects or controls the personal data of EU

protect its citizens right to privacy, at the

nationals, even if that organisation is

expense of big business, with the possible,

based in a territory outside of the EU. As

unwanted,

this is a regulation, it, therefore, applies

investment within the bloc.

agreement.

The

implication

reducing

uniformly across all member states, allowing companies to comply with the

To ensure a more comprehensive picture

strict data protection laws much more

of the forces at play during the shaping of

efficiently.

and

the GDPR we must next examine Google

efficiency does, however, come at a price.

Spain5. In this case, a businessman named

The Court of Justice is granted the power

Mr Costeja González, lodged a complaint

to impose fines for breach of the GDPR of

against Google Spain requesting that a

up to 4% of worldwide turnover. For a

newspaper article outlining a historic court

This

improved

ease

large company, processing huge amounts of personal data this clearly has farreaching implications, especially when concerning industries such as social media, e-commerce

other

cloud-based

computing businesses. Aside from the

QUEEN MARY PRO BONO SOCIETY

Baker McKenzie, ‘"PREPARING FOR NEW PRIVACY REGIMES: PRIVACY PROFESSIONALS' VIEWS ON THE GENERAL DATA PROTECTION REGULATION AND PRIVACY SHIELD" (Baker & McKenzie, May 4, 2016) http://f.datasrvr.com/fr1/416/76165/IAPP_GDPR_a nd_Privacy_Shield_Survey_Report.pdf Accessed 1 March 2018 5 Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González C‑131/12.

Page 21

THE ADVOCATE MARCH 2018 proceeding

which

was

the

abuse

their

position.

However,

the

defendant, was removed from google

implications, whether positive or negative,

search results when his name was

are yet to materialise and until they do, we

inputted. He argued the personal data

can only speculate. Whatever happens, it

attached to his name was no longer

is sure to be both interesting and

relevant. The Spanish data authority held

profoundly important, and therefore close

that Google was considered a ‘data

observation should be paid to this space.

controller’, and thus, open to liability. The ECJ

agreed

with

this

determination

furthermore interpreting Article 12 and 14 of the Directive to allow for “the right to be forgotten”. This idea has gained some traction, and as a result of this case, the “right to be forgotten” is formally included within the new regulation, meaning that anyone can request to have their personal data removed from search results when required.

It is clear that with the evolution of the information society in which we now all live, the protection of our personal data to avoid a possible 1984 style dystopia is a growing concern. Two main forces tend to be at play; the right to privacy and the commercial interest of companies that capitalise on our personal preferences and data. With the introduction of this new legislation, the Union is clearly attempting to make it harder for commercial actors to

QUEEN MARY PRO BONO SOCIETY

Page 22

THE ADVOCATE MARCH 2018 Convention has been a fundamental

Asylum Policy within the EU and the Refugee Crisis

cornerstone

current

international

refugee law. The instruments of asylum policy as discussed below have an overall aim of

Zoe Chen

providing EU member states that are The multifaceted crisis encompassing the current influx of refugees in the EU had caused immense strain on its asylum policy and has generated a conflict between the protection of human rights both in respect of

the

refugees

and

third-country

nationals, and security interests.

balance between security, and the liberty and rights of victims of persecution and has long existed in the established international system of refugee protection. The regime was first introduced in 1949 when the office of the United Nations High Commissioner for Refugees (UNHCR) was created by a Resolution of the United Nations General Assembly. The first instrument was created in 1951, and the Geneva provisions have extended to the of

the

world

added support. However, the current influx of refugees has only emphasised the systematic failure and the widening gap of incoordination that these provisions have created in the different member states, demonstrating how a national capability

The EU asylum policy aims to strike a

rest

facing a higher migratory burden with

through

has become supranational and collective. The lack of consistency and comparability of the asylum standards and procedures of certain member states undermine the cohesive structure of the EU. Not all member states interpret and apply the Geneva Convention in the same way, and the varying definitions of â&#x20AC;&#x2DC;refugeeâ&#x20AC;&#x2122; among member states encourage fluctuating levels of protection and an unequal allocation

responsibility

and

accountability.

the

supplementation of the 1967 New York

Moreover, since the 9/11 attack, there are

Protocol1.

concerns that security has become a

Since

then,

the

Geneva

dominant influence on the Common 1

Christian Kaunert, Liberty versus Security? EU Asylum Policy and the European Commission (2009), 150

QUEEN MARY PRO BONO SOCIETY

European Asylum System (CEAS). As a result, some scholars have adopted the

Page 23

THE ADVOCATE MARCH 2018 notion of the â&#x20AC;&#x2DC;securitizationâ&#x20AC;&#x2122; of the EU

responsible

asylum and migration policy, meaning that

application for asylum;

asylum and migration are portrayed in the

for

examining

The Asylum Procedures Directive.

EU as security threats (Guiraudon 2000, 2003).

The

Reception

Conditions

Directive

provides a common minimum standard of The CEAS imposes a common minimum standard for the treatment of asylum seekers and refugees and establishes the harmonisation of national legislation. The cementation of asylum policy and thus the Geneva Convention in EU law represents the shift of national sovereignty to EU level. The laws governing the CEAS are not only

legally

enforceable

vertical

relations between public authority and individuals but also can be enforced in horizontal individual

relations, asylum

meaning

seekers

can

that take

member states and individuals to the

reception conditions for asylum seekers across member states. Member states must

ensure that

receive

asylum applicants

accommodation,

food

and

clothing, family unity, access to the education system for minor children and language courses, access to employment etc.2. The aim of the directive is to ensure a more harmonised standard and is very important for an asylum seeker because they can only apply for asylum once in the EU. Thus the conditions in which they are received are a significant matter in determining the choice of entry.

domestic courts. There still leaves a considerable amount of The main provisions of the Common European Asylum System include: -

The Directive on the definition of a Refugee;

The

Reception

Dublin II (replaced the Dublin Convention)

what constitutes an adequate standard of living and how it should be achieved, meaning the reception conditions will

Directive

Conditions for Refugees; -

discretion for member states to define

which

continue to differ between different states. The European Agenda on Migration has stressed that in order to build a

determines

which Member State of the EU is

QUEEN MARY PRO BONO SOCIETY

Ibid, 152

Page 24

THE ADVOCATE MARCH 2018 stronger common asylum policy within the

asylum

applications

between

other

EU, there must be a clearer system for the

member states, but instead, the state of

reception of asylum seekers. The large

first entry is responsible for processing

migratory influx has exposed the demand

each application quickly.

to ensure greater consistency in reception conditions across member state, and in

One of the main justifications for this

2016,

system is to prevent an individual seeking

further

asylum in the country of their own choice

harmonisation of the Reception Conditions

or entering Europe without any country

Directive to reduce the incentives for

being accountable for the examination of

secondary movement3. The demand is

their request. Three principles arose from

paramount considering the increasing

the Dublin regulation in order to address

hostility towards migrants within political

these issues, firstly the asylum seeker has

discourse, and the lack of willingness and

only one opportunity to seek an asylum

resources to accommodate the refugees at

application in the EU and if it is

the point of reception.

subsequently denied then such decision

the

proposal

Commission to

presented

promote

will be recognised by all member states, The Dublin III regulation is of particular

secondly there is no discretion in the

importance; it is one of the more

asylum policy and the member state

important constitutional pillars of the EUâ&#x20AC;&#x2122;s

responsible for examining the application

asylum policy which the EU sought to

must refer to the criteria established in the

safeguard in response to the refugee crisis.

Dublin

The Dublin system is used to determine

preference of the applicants themselves,

which

the

and thirdly, the asylum seeker may be

processing of an asylum application (this is

transferred to the member state to which

usually the country the refugee/asylum

they have been designated by the country

seeker firsts enters). The regulation does

processing their application.

not fairly distribute the responsibility of

The

highlighted the deficiencies surrounding

state

responsible

for

Reception conditions, (European Commission 14 March 2018)< https://ec.europa.eu/homeaffairs/what-we-do/policies/asylum/receptionconditions_en>accessed 13 March 2018.

QUEEN MARY PRO BONO SOCIETY

convention

refugee

rather

crisis,

than

however,

the

has

the Dublin regulation, it appears that

Page 25

THE ADVOCATE MARCH 2018 asylum applications has blurred the line of

was

breach

responsibility between the countries of

demonstrated

arrival and final destination, and failed to

abiding by the Dublin regulation, they

fairly allocate and alleviate the burden of

nonetheless violated article 3 of the

asylum applications in certain countries.

ECHR4. The reality of this case shows that

Unfortunately, being registered in the first

migration control appears to be the

country of arrival may lead to the rejection

paramount concern of the EU, even if this

of asylum in other member countries, and

means that it will implicate the human

as a result, it runs the risk of being

rights of refugees. It cannot be guaranteed

returned. The Dublin system is also

that they will have legal access to Europe

ineffective and the procedures can be

and many are sent to detention due to

prolonged which serves as a significant

their asylum claims being unrecognised.

that

the despite

ECHR.

Belgium

obstacle to refugeeâ&#x20AC;&#x2122;s human rights. The unequal allocation of responsibility on the

In conjunction with the issue of unequal

state of first entry creates immense

distribution of responsibility within the

pressure to accommodate all the refugees

Dublin system, the EU must consider that

which inevitably means that many asylum

the advancement of EU asylum policy will

claims may be rejected and are unable to

involve

have a proper examination.

harmonises the standards of both asylum

adopting

approach

that

procedures and reception conditions. The The function of the European Court of

current European Commissioner for Home

Human Rights has also been essential in

Affairs, Dimitrios Avramopoulos pointed

exposing and eliminating breaches of

out in 2015 that it is an imperative that the

human rights manifesting from the Dublin

same rules and standards regarding the

System. In M.S.S v Belgium and Greece,

protection of rights of migrants must be

Belgium sent an asylum applicant back to

applied by all member states and to also

Greece which exposed him to the

avoid secondary movement within the EU.

procedural

the

The transfer of asylum seekers within the

detention and living conditions which the

EU will cease to have legitimacy if the

defects

Greece,

claimant had to endure were such that it 4

QUEEN MARY PRO BONO SOCIETY

M.S.S v Belgium and Greece, ECHR, (2011).

Page 26

THE ADVOCATE MARCH 2018 common rules and standards cannot be applied.

Europe

should

champion

for

defending human rights and strive for a more liberal democratic society. It is clear that the EU must engage in a fundamental reconsideration of its asylum policy, taking note of its internal unfairness, procedural deficiencies, and excessive expectations of the border. Europe has witnessed the unfortunate EU practice and omissions regarding the treatment of the refugees which stifles the democratic continuity of an all-encompassing Europe. The diversion from a consensus-based decision-making system

has

detrimental

effects

interstate cooperation and compromises the trust between member states and the European Commission. Especially in regard to asylum policy, the EU must ensure the harmonisation of common rules and practices as well as reform the defects of asylum procedures.

QUEEN MARY PRO BONO SOCIETY

Page 27

THE ADVOCATE MARCH 2018 classes. Some of these contextual realities are mirrored in the UK, such as the

The Hidden Constitutional Risks of Voter ID laws in the US and the UK

inability of prisoners to vote. Although like Voter ID Laws, at first consideration a seemingly reasonable restriction, this is made problematic by an awareness of

Alvi Sattar

arguments that the legal systems in both

The recent introduction of Voter ID trials in

the UK and the US are unfairly harsh

the UK has caused anxiety amongst

towards ethnic minorities and people of

campaigners and charities concerned with

poorer backgrounds.

electoral integrity. On the 3rd of May, voters at polling booths in 5 council

The History and Legacy of Voter ID laws in

districts were required to present photo ID

the US

before being allowed to cast their ballots.

Susan N. Herman, President of the ACLU,

The trials were part of a greater effort by

delivered a lecture at Queen Mary

the Government to commit to voting

University in which she explained the way

regulation reform, spurred by voter fraud

in which current voter ID laws in the US

concerns in the wake of the snap election

continue the tradition of suppressing the

last year, and suggestions made in a paper

votes of Black Americans, which the Voting

published by the Electoral Commission in

Rights Act of 1965, introduced in the wake

2014.

of Selma, sought to redress. Section 2 of

Although

seemingly

innocent

enough of a proposition, attention must

the

be paid to the historical function of voter

qualifications or prerequisite to voting, or

standard, practice, or procedure shall be

disenfranchisement. This is evidenced in

imposed or applied by any State or

the way in which such regulations are

political subdivision to deny or abridge the

currently being implemented in the US.

right of any citizen of the United States to

Voter ID laws in the US must also be seen

vote on account of race or colorâ&#x20AC;?. Herman

in the greater context of economic and

explained the way in which this legislation

legal inequality, disproportionally affecting

seeks to prevent the enactment of voting

laws

instrument

Act

provides

that:

â&#x20AC;&#x153;No

voting

Black Americans as poorer economic

QUEEN MARY PRO BONO SOCIETY

Page 28

THE ADVOCATE MARCH 2018 laws in the Southern States designed to

Diego and others: “Strict voter ID laws

circumvent the 15th amendment. These

appear to diminish the participation of

laws tried to over-complicate the voting

Democrats and those on the left, while

process

doing

ways

that

would

little

deter

the

vote

disproportionately affect Black voters, in

Republicans and those on the right”. The

Alabama for example, a “Grandfather

findings of the paper correlate with a

clause” meant that you could only vote if

statement made by Susan N. Herman,

your grandfather had done so, thereby

that: “the general theory is that the more

preventing freed slaves from participating.

people who vote, the better that is for the

Herman went on to say, however, that this

Democrats, so the Republicans are always

“didn’t quite do the trick”, going on to

looking to keep down the number of

describe

people

the

use

disenfranchisement

and

criminal

other

who

are

voting,

particularly

such

amongst... racial minorities and among the

methods to prevent black people from

poor who are generally correlated with

voting. She noted that 1 in 13 African

being

Americans, compared to 1 in 56 white

commentators have argued that if stricter

Americans, have lost their right to vote

voting laws were enacted here, they would

through such laws.

serve to increase the proportion of

When considering the context of today’s

Conservative votes in a similar fashion.

democratic

voters”.

Many

laws, and the repeated statements made by the Trump administration with regards

The Potential Effects of Voter ID Laws in the

to the need to introduce stricter voting

laws and prevent fraudulent voting,

The Electoral Commission proposed the

attention

the

introduction of voter ID requirements in

overwhelming number of studies that

their 2014 paper, suggesting that “polling

seem to suggest that voter fraud occurs

station voting in Great Britain remains

only at a very insignificant level in the US.

vulnerable to personation fraud because

It hardly seems to be a coincidence that, as

there are currently few checks available to

published in one recent paper by Professor

prevent someone claiming to be an elector

Hajnal of the University of California San

and voting in their name”. According to

must

made

QUEEN MARY PRO BONO SOCIETY

Page 29

THE ADVOCATE MARCH 2018 more recent data collated by the same

the electoral system, thereby encouraging

institution, however, only 28 allegations of

participation in the democratic system.

voter impersonation were reported in

This is supported by a publication by the

2017. Another research paper by the

Northern

commission published in 2015 reported

published in 2014, analysing the effect of

that 3.5 million voters, amounting to 7.5%

Voter ID laws. The paper suggested that

of the electorate, had no access to

“Before the implementation of the 2002

sufficient examples of photo identification.

Act some two-thirds of the population

The

that

thought electoral fraud was common”, and

percentage of the voting population does

that “after its implementation, more than

not, in the light of these negligent

two-thirds had confidence that the new

instances of voter impersonation, seem

system would help to reduce fraud”. This

justified. This is especially worrying given

must be balanced against the possibility of

that many of those without photo

discouraging of those who might not have

identification would be of poorer financial

their ID readily available at the relevant

backgrounds. Labour MP Cat Smith drew

time. Such a person would be considered

attention to the fact that “the Government

by many to be an “apathetic voter”, to use

have pushed through unpopular proposals

the language of the same report, whose

to increase the cost of adult passports

participation in elections would be thought

from £72.50 to a whopping £85”. This may

of as not worth attracting. It should be

be indicative of the obliviousness of the

remembered though, that encouraging the

government towards the way in which

growth of apathy and disillusionment

small policy changes compound with each

might

other to obstruct the course of democratic

consequences,

involvement.

alienate

There is, however, the argument that,

disengaged from the political system. In

even if the voter ID laws do not actually

other words, it would push away the

provide any meaningful protection against

people in most need of the sense of

voter fraud, they will at least serve the

inclusiveness that the ability to vote might

purpose of reinvigorating public faith in

help to provide.

effect

disenfranchising

QUEEN MARY PRO BONO SOCIETY

Ireland

have

Affairs

Committee,

deeper and serve

people

who

reaching to are

further already

Page 30

THE ADVOCATE MARCH 2018 requirements, and would more adequately The Root of Recent Anxieties Regarding

be countered through regulations of postal

Voter Fraud in the UK

votes.

The regulations are also puzzling, in that

The fears are perhaps bolstered by the

the concern that seemed to gain the most

general narrative in the media surrounding

media traction in the wake of the snap

the mobilisation of the youth in both the

election was the prospect of students

recent

voting twice, abusing their ability to vote in

referendum, and the disparity in party

both their home district election as well as

affiliation and political opinion between

wherever they attend university. The claim

younger and older voters. The alleged

was drawn attention to by Conservative

epidemic proportion of the student voting

Norfolk MP Sir Henry Bellingham, who

fraud for many served to explain what was

spoke during a cabinet office questions

thought to be an unprecedented number

session, citing boastful Facebook posts as

of votes cast by younger voters in the 2017

“clear evidence of electoral fraud”. The

elections.

Electoral

1000

statistical degree to which under 25’s

complaints with regards to this issue, with

affected the outcome of the election has

a number of MP’s claiming this affected

been cast into doubt by a survey

the results in their constituencies. The

conducted by the British Election Study. As

overall effect of students fraudulently

Matt Singh explains, “the amount by which

voting

unduly

turnout changed in English and Welsh

exaggerated according to Political Analyst

constituencies between 2015 and 2017 is

Matt Singh, who suggested that “The thing

explained by the proportion of 25-44-year-

to remember is that even if a student had

olds, not under 25s”. All this lends

voted twice, it would be in a studenty area

credibility

and most of these areas are safe Labour

allegations of voting fraud are rooted not

seats anyway”. Furthermore, as Stuart

so much on an objective and evidential

Wilks-Heeg of the Democratic Audit

basis but in an effort towards the

argues, this form of voting fraud is not

discrediting of genuine democratic support

protected

for more “radical” political outcomes.

Commission

has

reported

however

against

been

voter

QUEEN MARY PRO BONO SOCIETY

snap

election

and

Interestingly

the

though,

suggestion

the

that

Page 31

THE ADVOCATE MARCH 2018 Bibliography Northern Ireland Affairs Committee Electoral Registration in Northern Ireland (HC 2003-04, 131-I) ‘Research on Voter ID’ (Brennan Center for Justice, 11 April 2017) <https://www.brennancenter.org/analysis/ research-and-publications-voter-id> accessed 14 March 2018 Electoral Commission, ‘Electoral Fraud in the UK Review’ (Electoral Commission, January 2014) <https://www.electoralcommission.org.uk /__data/assets/pdf_file/0008/164609/Elec toral-fraud-review-final-report.pdf> accessed 15 March 2018 Electoral Commission, ‘Analysis of cases of alleged fraud in the UK in 2017’, (Electoral Commission, 2018) <https://www.electoralcommission.org.uk /__data/assets/pdf_file/0006/239973/Fra ud-allegations-data-report-2017.pdf> accessed 14 March 2018 Electoral Commission ‘Delivering and costing a proof of identity scheme for polling station voters in Great Britain’ (Electoral Commission, December 2015) <https://www.electoralcommission.org.uk /__data/assets/pdf_file/0004/194719/Pro of-of-identity-scheme-updated-March2016.pdf> accessed 14 March 2018 Herman SN, President of the ACLU, ‘'Liberty, Equality, Fraternity: Reconciling National Values and Human Rights’ (Speech at Queen Mary University of London, Mile End, 21 November 2017) < https://www.youtube.com/watch?v=FMrt EifmaSw> accessed 15 March 2018

QUEEN MARY PRO BONO SOCIETY

Hajnal Z, Lajevardi N, and Nielson L, ‘Voter Identification Laws and the Suppression of Minority Votes’ [2017] 79 The Journal of Politics 363,377 Gray J, ‘Tory MP Sir Henry Bellingham Claims 'Many' Students Voted Twice In The General Election’ (The Huffington Post, 6 July 2017) <http://www.huffingtonpost.co.uk/entry/t ory-mp-sir-henry-bellingham-studentsvoted-twice-generalelection_uk_595df19fe4b0d5b458e817b4 > accessed 14 March 2018 Gray J, “Students ‘voting twice’ in general election ‘unlikely to have affected outcome’” (The Huffington Post, 18 July 2017) <http://www.huffingtonpost.co.uk/entry/t ory-mps-students-electoral-commissiondouble-votingelection_uk_596dc01fe4b0e983c0588ec7 > accessed 14 March 2018 Mason R, The Guardian (London, 17 July 2017) <https://www.theguardian.com/politics/2 017/jul/17/watchdog-investigates-claimsof-people-voting-twice-at-generalelection> accessed 14 March 2018 O’Hagan EM, ‘Voter ID is just the latest Tory Ruse to deplete the Labour vote’ The Guardian, (London, 6 March 2018) <https://www.theguardian.com/commenti sfree/2018/mar/06/tories-id-votingbooths-labour-disadvantaged-ballot-box> accessed 15 March 2018 Singh M, ‘No there really... wasn’t a youthquake’ (Number Cruncher Politics, 10 November 2017) <https://www.ncpolitics.uk/2018/02/no-

Page 32

THE ADVOCATE MARCH 2018 really-really-really-really-really-wasntyouthquake.html/> accessed 14 March 2018 Smith C, ‘We can't let the Tories take lessons from the US on using voter ID to distort democracy’ The New Statesman (London, 7 March 2018) <https://www.newstatesman.com/politics /elections/2018/03/we-cant-let-toriestake-lessons-us-using-voter-id-distortdemocracy> accessed 14 March 2018 Wilks-Heegs S, ‘Voter ID at British polling stations – learning the right lessons from Northern Ireland’ (Democratic Audit, 8 March 2018) <http://www.democraticaudit.com/2018/03/08/v oter-id-at-british-polling-stations-learning-theright-lessons-from-northern-ireland/> accessed 14 March 2018

QUEEN MARY PRO BONO SOCIETY

Page 33

THE ADVOCATE MARCH 2018 well as mental harm upon their persons

Landmark John Worboys Case

due to treatment by the Police when making their initial complaints against

Sarah Asher

Worboys. They brought their claims under

Two victims of John Worboys have succeeded in their claims against the Metropolitan

Police,

regarding

the

ineffective handling of investigations into the serial sex offender. The ‘landmark’ decision comes after an initial claim for compensation was granted in the high court but was appealed against by the Metropolitan Police Service (MPS) in the Supreme Court. This was after a primary dismissal in the Court of Appeals. The case concerned the police’s investigation into the serial sex offender, John Worboys also known as the ‘Black Cab Rapist’; who was convicted in 2009 for the sexual assault of at least 12 women, with police reports, however, estimating that this number could, in fact, be well into the 100s. The two victims that brought forward the claim, argued that due to significant errors in the investigation of their complaints against John Worboys that were made in 2003 and 2007, Police officers had failed to

charge

the

attacker.

Therefore,

impliedly leading to more time for the cabbie to conduct more sexual assaults, as

QUEEN MARY PRO BONO SOCIETY

Article 3 of the Human Rights Act 1998, which states that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’1 The appeal by the Metropolitan Police Service accepted that the HRA 1998 imposes a ‘general duty’ to investigate adverse treatment amounting to a violation of Article 3 but disputed the nature of that duty. It was ultimately held, however, that this duty could be defined into two separate provisions that function within an overall duty;

‘systems’

and

‘operational’2.

Systems duty defined in basic terms is the express duty to place in law or establish provisions that facilitate the right i.e. enacting a law that effectively punishes rape. While operational duty defined in basic terms is the positive obligation to investigate and prosecute properly to ensure that the law is effectively applied. Therefore,

was

found

that

the

Metropolitan Police Service had failed in 1

Human Rights Act 1998, Article 3 Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11 2

Page 34

THE ADVOCATE MARCH 2018 its ‘duty’ to protect the victim’s rights

the emergency police number 999 twice

under Article 3 of the HRA 1998, as there

after her boyfriend had attacked her, only

were serious failings in their ‘operational’

to be subsequently murdered after police

investigations.

Kerr

downgraded the calls and did not go

advanced further in his judgement that

immediately investigate the initial incident.

breaches of ‘operational’ duty had to be

The current case regarding the victims of

‘egregious’ and ‘significant’ to constitute a

John Worboys is therefore distinguishable

breach of the HRA 1998.

from the decision found in Michaels4, as

The Metropolitan Police Service also

the Supreme Court has utilised the

argued in defence of these claims that

provisions of Art 3 to now set a precedent

their duty to properly investigate crimes

possibly violating Article 3 of the HRA

considered.

However,

Lord

which

police

negligence

can

1998, is limited to crimes alleged to be committed by a State agent. This was,

Consequences

however, rejected by the Supreme Court.

The immediate consequence due to the

Moreover, MPS argued that by allowing

result of this case is that there is now a

this claim to succeed, a floodgate of future

reinforced rhetoric within the police force

claims for more minor crimes would be

to improve the quality and conduct of

able to use the precedent set to achieve

investigations. This means that according

consideration under the HRA 1998.

to the deputy commissioner of the

Previously, the position held by the

Metropolitan Police, Sir Craig Mackey, said

Supreme Court has been that the Police

that “there is no doubt that this will have

cannot have claims made against them for

implications for how we resource and

purported negligent conduct. This was

prioritise our investigations.”5 However, in

illustrated in the case of Michael v Chief

immediate response to the result, this

Constable of South Wales Police3, where the Supreme Court ruled that there was a bar on negligence claims regarding police conduct. In this case, Joanna Michael rang

[2015] UKSC 2

QUEEN MARY PRO BONO SOCIETY

Michael v Chief Constable of South Wales Police [2015] UKSC 2 5 Owen Bowcott, ‘John Worboys' victims win human rights case against police’ Wednesday 21st February 2018, The Guardian <https://www.theguardian.com/uknews/2018/feb/21/john-worboys-victims-winhuman-rights-case-against-police > accessed 25 Feb. 2018

Page 35

THE ADVOCATE MARCH 2018 could mean resources are funnelled from

Metropolis v DSD and another8 marks an

other areas of law enforcement to meet

evolution

the

surrounding

stringent

demands.

The

the the

legal ability

landscape to

impose

Metropolitan Police have already made

negligence claims against law enforcement

assertions that the result of the case will

institutions. The result now reflects and

amount to the reallocation of funds from

establishes that there is a positive

other enforcement fields like fraud.6

obligation on the state to conduct and

Furthermore, it will set a precedent for

facilitate an effective investigation. This

other victims of serious crimes who feel

should ensure that there is a high universal

that

failings

standard regarding future conduct. All

their

investigations will need to be documented

individual incidents. An example of a case

correctly and be transparent in their

that has a similar echoing of the Worboys

delivery for victims. This will undeniably

clumsy approach is that found in the

lead to a greater reform regarding policing

investigation of serial killer Stephen Port,

in general; one which should see pursuits

whom the Police also failed to apprehend

of justice coincide with a renewed level of

for a long period of time due to failings in

confidence in the ability of the Police.

there

concerning

may the

their investigation.

have

been

treatment

The successful result

for two of the victims of John Worboys, might be the catalyst for numerous other claims.

Conclusion To conclude, the ruling of the Supreme Court in Commissioner of Police of the

Ibid Caroline Davies, â&#x20AC;&#x2DC;Stephen Port's freedom to kill raises difficult questions for the Metâ&#x20AC;&#x2122; Wednesday 23 November 2016, The Guardian <https://www.theguardian.com/uknews/2016/nov/23/stephen-ports-freedom-killdifficult-questions-met-police >accessed 25 Feb.2018 7

QUEEN MARY PRO BONO SOCIETY

Commissioner of Police of the Metropolis v DSD and another (n 2)

Page 36

THE ADVOCATE MARCH 2018 have been at the heart of the car manufacturing industry for many years.

The Autonomous Vehicle Revolution and Some Tough Questions

of their time and effort into developing methods of transportation. Some of the creations that follow have, to one extent been

considered

pinnacle

achievements in human history. Examples would include the space rocket that put a man on the moon or the galleon that allowed

idea of Autonomous (AV) or self-driving

indeed materialised in trivial systems such

For centuries, human beings have put a lot

other,

industry, at an incredibly fast rate. The

vehicles is not, however, a new one. It has

Daryl Old

These influences continue to shape that

Sir

Francis

Drake

circumnavigate the globe. The automobile has also made extreme progress. in most of these circumstances, the principal aim has been to continue developing these methods, to increase their efficiency. This aim has many rationales including the improvement of a countries international reputation, the advancement of military capability, or to ensure greater passenger safety.

as the elevator or auto-pilot functions of an aeroplane. What distinguishes these recognised accomplishments with the car is the number of external factors that must be considered when creating such a system. A lift, follows lines, up and down, with no outside stimuli that would require it to make an autonomous â&#x20AC;&#x2DC;decisionâ&#x20AC;&#x2122; other than the queue of floors in which the elevator must stop. The car, on the other hand,

faces

huge

amount

unpredictable external stimuli such as cyclists or pedestrians in which it must coordinate its behaviour. It is here where the first problem lies, and it is associated with the adoption and regulation of Autonomous Vehicles. Human drivers tend to have different styles, for instance, some drivers will adopt an altruistic view, whereby they aim to ensure all other road

It is the latter of these motivations that we

users are not disadvantaged by their

shall focus on. Amongst other things,

decisions. Conversely, other road users will

passenger safety, comfort and efficiency

opt for a more self-centred but arguably

QUEEN MARY PRO BONO SOCIETY

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THE ADVOCATE MARCH 2018 more efficient style, whereby the user will

A second issue that arises in regard to

systematically take risks in order to get to

Autonomous

their destination in the shortest possible

algorithm ”. This frequently used phrase is

time. When Autonomous Vehicles are first

concerned with how to programme a

introduced, they will be using the road

sense of “morality” into a computer

alongside these different styles of drivers

system. For example, should a car that is

and thus require the capacity to adapt

going to hit a group of school children

extremely quickly. Autonomous Vehicles

swerve to then hit an elderly woman? The

will also need to be consistent, unlike their

first problem is the questions of how we

human counterparts. The only way to

define morals, who defines them and

achieve this equilibrium is testing. Testing

above all, having regard to the differences

on roads, alongside real drivers. In order

of what individuals and groups consider

for this to occur, ‘under-developed’ (i.e.

“morality” across different cultures. The

before they are 100% safe) vehicles will

aforementioned

have to be used, in order for that

unfortunately,

development to take place. If, in the

human driver may have to take. Therefore,

unfortunate

with regard to safety and the play-off

tragic

circumstance,

happens

whilst

something

testing,

Vehicles

“moral” something

the

“moral

decision that

is,

every

the

between rights of the individual and

reputation of these vehicles will decline

utilitarianism, regulators are in a very

rapidly leading to an even slower take up,

difficult position of where the decision

resulting in something like a ‘revolving-

should fall. For now, however, experts

door syndrome’. Coupled with this, a slow

contend that the current technology is far

take-up is likely anyhow due to the fact

from being this advanced. Despite the

that unlike most new technologies that

highlighted shortcomings of Autonomous

allow us to live more efficiently, in the

Vehicles,

early stages of AV’s, they are likely to be

discouraged from taking a progressive

less efficient than human drivers. These

approach and trying to tackle these key

factors give policymakers time to regulate

questions. Aside from “moral” decisions,

this area, however, this is running out.

an Autonomous Vehicles will also need to

regulators

should

not

make day-to-day decisions, such as if it

QUEEN MARY PRO BONO SOCIETY

Page 38

THE ADVOCATE MARCH 2018 should speed up (and break the law) or pull over to let a pursuing ambulance overtake. These issues will be easier to regulate, and thus, in the interest of expediency, more attention should be put into solving these questions first. In light of this, it can be said that until regulations are put in place, manufacturers remain somewhat in the dark as to how they go about developing their products. Thus, to avoid stifling the industry, policymakers must put their efforts into ensuring that the area is well regulated, clear but also flexible. The above-mentioned questions are just some of those that face both government regulators and manufacturers, alike. And despite the relative shortcomings of the technology so far, the more frequently it is used, the safer and more efficient it will inevitably become. It is therefore up to governments, who tend to see regulation as placing unneeded burdens on emerging industries to change this view and instead, create legislation that facilitates the market, and allows manufacturers to create products that will greatly improve our lives. The sooner this can be done, the better.

QUEEN MARY PRO BONO SOCIETY

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