The Pupil - Volume 2 by Oxford University Bar Society

THE PUPIL The Magazine of the Oxford University Bar Society

Vol. II, Hilary Term 2021 oxfordbarsoc.net

Contents: Editor’s Foreword

Editor’s Foreword 2

Our aim in compiling this edition has been to make improving reading for anyone at Oxford considering a career at the Bar. Not only do we have several articles written by Oxford students, which between them cover various areas of law and address important questions surrounding the profession, we are also very pleased to be able to include a contribution from a law student in India – our first ever foreign correspondent, no less. We extend sincere thanks to all those who have taken time out of their studies to contribute.

From Pupillage… Anirudh Mandagere Crown Office Chambers

Readers’ Submissions Banksy’s Failed Trademark Application P. Whitlock

The Right Approach to Money Laundering? B. Stanley

Re-Evaluating the ‘Cab Rank’ Rule A. Kam

Is the Monarchy a Stain on the Constitution? J. Knapman

The True Meaning of Jihad C. Glynn

‘Preventive Self-Defence’ in International Law A. Singh

Our heartiest thanks go to the two barristers and Oxford alumni who have given us interviews: Stephanie Tozer QC, a property specialist at Falcon Chambers, and Anirudh Mandagere, a pupil at Crown Office Chambers. Both interviews are engaging and highly informative, not just about what each does now but how they got to where they are and what advice they would give to those seeking to emulate them. Whether you are a first-year lawyer in the midst of Mods, a fourthyear Classicist desperate not to let your knowledge of the Rhetorica ad Herennium go to waste or anything in between, we hope that you enjoy The Pupil and exhort you, if you do, to attend or continue attending Bar Soc events next term, and perhaps even volunteer for the committee. Thank you for reading.

…to Silk Stephanie Tozer QC Falcon Chambers

Matthew Pugh Somerville, Classics

The Pupil is exclusively sponsored by BPP University Law School

Anirudh Mandagere, Crown Office Chambers

Could you give us an outline of your route from starting your legal training to your current pupillage?

When and why did you first decide to pursue a career at the Bar?

After completing my legal studies, I worked as a judicial assistant at the Court of Appeal to Sir Rupert Jackson and Lady Justice Asplin. This role was an enormous privilege. I assisted with ground-breaking cases spanning commercial, human rights and personal injury law. I gave my views on the merits of applications for permission to appeal, and drafted opinions on upcoming cases for judges.

My interest in the Bar crystallised during my graduate legal studies. I volunteered for the School Exclusion Project, a charity which provides free legal representation to parents who wish to appeal their child’s permanent exclusion. I represented children in front of review panels who were accused of misbehaviour, theft and even serious violence.

I particularly enjoyed working on commercial appeals, and undertook a role as a research assistant at Keating Chambers, a set specialising in construction law. Carrying out research for barristers was excellent training for pupillage. I had to process cases quickly and accurately, meet unexpected demands and produce research at short notice. This gave me a practical understanding of the realities of life at the Bar, and made me stand out on my pupillage application form.

This experience gave me a flavour of a career as an advocate. I liked creating a strategy to win a case, cross-examining witnesses and fielding questions from a sceptical panel. Having debated at university, I found it naturally appealing.

Is there a particular area of your current practice that interests you most? I find insurance law interesting. Many of the insurance cases which I have worked on during pupillage stem from property damage. This means that I have to read expert reports about engineering to grasp the fundamentals of the dispute. I enjoy learning about the science of infrastructure and applying it in a practical context.

Further, I enjoyed the fact that I had little supervision. I decided the grounds of appeal, the lines of cross-examination and the evidence which I would adduce to bear on the case. Independence is a hallmark of a career at the self-employed Bar, and is something to which I was drawn.

Insurance law is challenging. It was an area which I had practically no exposure to during my academic studies. In essence, it consists of contract law overlaid with a statutory framework. I like grappling with the application of centuries-old principles to modern commercial practice. While in some areas of practice the established law is settled, insurance law is constantly on the move. This means that there is always room for dispute!

How would you describe your typical working week? My supervisor sets me tasks during the working week. I will usually have one ‘big task’ which has a long deadline and several smaller pieces of work which are expected to be done in a shorter period. I spend my week researching, analysing and writing advices or statements of case. I have also produced research work for my supervisor, and even drafted lines of cross-examination in an upcoming trial. From April, I will enter what is known as the ‘second six’ (i.e. the second six months of pupillage). During this period, I will spend two days a week representing clients in court. These hearings are small and won’t hit the headlines. Nevertheless, they are vital for defending the interests of those whom I represent.

Do students who aspire to be barristers need to know even approximately which area of the Bar might interest them most? Keep your options open. Law in practice is very different to the study of law. Do not rule out areas based on preconceived notions. A good starting point is to undertake a wide variety of minipupillages. I remember being on a mini-pupillage at a criminal set, and quickly realising that I was unsuited to the emotional pressures of the Criminal Bar.

Where do you hope to be in 20 years’ time? One of the great things about being a barrister is the flexibility it offers as a career path. Crown Office Chambers specialises in commercial, civil and regulatory law, and at present I would like to keep my options open as to which area of law I end up specialising in. Nevertheless, I hope that I have a thriving practice with satisfied solicitors and lay clients.

Experience is the greatest teacher. Volunteering in a law centre, representing clients pro bono in hearings and undertaking research for practitioners will help you assess whether a particular area of law interests you. It will also help you stand out from the army of pupillage applicants.

What one final piece of advice would you give someone at university keen to pursue a career at the Bar? Moot. Seek out opportunities to represent people. Care about the law.

Copyright is for losers: The Cancellation of the Flower Thrower CANCELLATION No 33 843 C (INVALIDITY) Full Colour Black Limited v Pest Control Office Limited

Crown Office Chambers is a leading set of chambers specialising in commercial and civil work. Its members provide high-quality legal advice and advocacy in several areas of law including insurance, property damage, medical negligence and personal injury. Its members are known for their broad expertise, commercial acumen and modern, strategic approach. The set, which currently has 22 silks and 75 juniors on its roster, offers up to three pupillages annually. Pupils have three supervisors during their year, two for three months each and one for the entirety of the second six. Crown Office Chambers offers a pupillage award of £65,000, part of which may be drawn down during the BPTC year. More information can be found at www.crownofficechambers.com/careers/pupillage.

Background: The artist known as ‘Banksy’ created the artwork in Jerusalem, Israel in 2005 and it was registered as a trademark in 2014 by Pest Control Office Limited (PCO) who represent the artist. The primary purpose of registered trademarks is to allow consumers to identify the commercial origin of goods or services. Trademarks also allow for registration in classes for the provision

of goods and services. In 2014, PCO obtained the registration of the figurative mark in relation to goods and services in classes 2, 9, 16, 18, 19, 24, 25, 27, 28, 41 and 42.

SARs and the Proceeds of Crime Act 2002: The Right Approach to Money Laundering? You’re involved in a transaction. It could be the culmination of long weeks of work in one of the City’s famous law firms. It could be a conveyance of land. It could be something rather humble: authorisation for an every-day movement of assets or funds. But something doesn’t seem right. You have a nagging feeling that the proceeds or funds involved are suspect; they might have come in part or indirectly from illegal activity. Illegal activity in England and Wales, that is. The events and assets may be wholly foreign. You don’t know what to do, and have a feeling your supervisor may wish to be informed. Then again, you’re new to the job and a lot rides on this transaction. And it’s only a suspicion.

Proceedings: In 2019, Full Colour Black Limited (FCBL) applied to obtain a declaration of invalidity for all relevant goods/services on grounds of bad faith. This was under Article 59(1)(b) of the EUTMR as the rule against bath faith applications. The applicant also cited Article 59(1)(a) of the EUTMR as the trademark application was made contrary to the principles of Article 7 of the EUTMR. FCBL argues this was because PCO had never used the sign as a trademark and Banksy himself has only ever reproduced the sign as an artwork. The nature of the artwork, i.e. graffiti sprayed in a public place, which is a criminal act, also means it should not have trade mark protection. Banksy has also taken a well-publicised personal stand that ‘copyright is for losers,’ which FCBL argues means that PCO and Banksy would only be seeking trademark protection to avoid protecting his artistic rights under copyright law, which would require him to lose his anonymity. The monopolisation of registered images for an indefinite period is contrary to the principles of copyright law.

If you decided to proceed as normal, you might well have committed an offence under Part 7 of the Proceeds of Crime Act 2002 (POCA) and could be liable for up to six months in prison. Part of the current legislative response to the problem of money laundering in the UK – a hundred-billion-pound problem – is these 34 complex, cross-referencing and delicate sections of an already vast and sprawling act. Personal criminal liability is Parliament’s way of enforcing good behaviour in the so called ‘regulated sector.’

Findings of the EUIPO: The EUIPO held that the applicant succeeded and issued a declaration of invalidity. There were two key points of the judgement.

The most appropriate course of action in the above scenario is to make what POCA calls an ‘Authorised Disclosure’ to the UK Financial Intelligence Unit (UKFIU). UKFIU, and its parent body, the National Crime Agency (NCA) call these ‘Defence Against Money Laundering Suspicious Activity Reports’ (DAML SARs). They are reports outlining the relevant details and the nature of the reporter’ suspicions. Once a report is filed, a sevenday period begins. If consent is given by the NCA (or nothing is heard back), no offence is committed in continuing the transaction. During this seven-day period, the transaction is effectively frozen; proceeding further is an offence, as is informing the person subject to the disclosure.

Definition of Applicant: The EUIPO considered the word ‘applicant’ in Article 59 (1)(b) EUTMR. PCO was acting as the Agent of the artist known as Banksy. In the proceedings, there was a connection between the Artist and PCO who are the Proprietor of the trademark. However, these facts are unusual as the identity of the Artist cannot be legally determined so it would be difficult to bring copyright proceedings against any infringers. Therefore, the Artist and their Agent have used trademarks to circumvent this issue which has led the EUIPO to assess the trademark on a bad faith basis. In making this assessment the EUIPO cited the findings of the Court of Justice in the case Sky Plc vs Skykick C 371/18, which held that where there is no intention to use a sign as a trademark, then to obtain a collateral benefit in the obtaining of a trademark constitutes an abuse of the system and an act of bad faith. Meaning of Bad Faith: There is no precise legal definition of the term ‘bad faith’ which means it is open to various interpretations. Bad faith is a subjective state based on the applicant’s intentions when filing a EUTM, as evidence by the invalidity applicant. As a general rule, for a finding of bad faith there must be some action by the trademark owner of a dishonest intention and an objective standard against which bad faith can be determined. The EUIPO determined that when PCO filed the trademark they did not have any intention of using the sign to commercialise goods or provide services and that good use of the mark was only made after the initiation of the present proceedings. The EUIPO held as a key finding that Banksy’s main concern was not losing his anonymity which he would have been required to do in copyright proceedings. Phoebe Whitlock PgDip, Intellectual Property Law

Though the system and criteria for reporting suspect transactions is more complex than the outline presented above, the transactional principle underpinning it is simple. By allowing transactions to proceed after information is provided and consent is given, the regulated sector is given a limited degree of immunity in exchange for intelligence offered to law enforcement. This is the balance between ease of business and security, and the deal between the regulated sector and the authorities. But is the balance right, and is the deal good?

Many would say no. One criticism is the cost. Though it is impossible to assess all indirect costs (delays, client frustration etc.) a survey conducted by the Law Society of 21 solicitors’ firms as part of a Law Commission consultation paper suggested compliance costs some firms over a million pounds each year. UK Finance, which represents the financial services sector (accounting for over 95% of SARs submitted) estimated total costs across their members in excess of five billion pounds annually. This doesn’t take into account disruption to business, including to private individuals when access to bank accounts is frozen. The NCA’s own figures suggest that over 98% of DAML SARs prove to false alarms. The Law Commission remarked that ‘the volume of assets restrained or seized, (£171m was denied to criminals in 2019/20) is not proportionate to the cost of the regime.’

The Cab Rank Rule: an instrument for equality, or an excuse to take on unscrupulous but wellpaying clients? Recently, a British barrister has come under fire for taking on a case that appeared to undermine the rule of law and human rights. David Perry QC was criticised for acting on behalf of governmental authorities in Hong Kong against various prodemocracy activists. He defended his decision on the basis of the ‘cab rank rule,’ and stated that he had no choice but to accept the brief. But is this really the case, or is the ambiguity surrounding the cab rank rule providing a cover for taking on unscrupulous, but well-paying clients? To explore the issue, I will examine the content and principle behind the cab rank rule, before applying it to the case in question to determine if the rule’s principles stand up in reality.

Then there is the questionable value of the information gained to the overall intelligence picture. 573,085 DAML SARs were submitted in 2019/20. Each one requires labour by both the reporter and UKFIU. ‘Quantity over quality’ is the obvious criticism. As the Law Commission acknowledges, an ‘advantage’ of the system is the ability of agencies to ‘switch off the flow’ of certain SARs. This paints a picture of the bulk collection of data, much of it leading to nowhere, with authorities making filtered selections to fulfil their needs. Even if such a system yields results, it is doubtful whether it utilises private or public sector resources in an optimal fashion. This volume of reports is a direct result of two elements of the system. There is both a low standard of ‘suspicion’ and an ‘all crimes approach’, meaning no distinction is made in the kinds of suspected offences warranting an SAR. This last aspect is particularly criticised by the legal sector, since it can result in ‘technical’ offending leading to delays in large transactions, likely of little value for the UKFIU and of limited public interest.’ Since the consequences of not complying with the SAR regime are criminal, those involved tend to err on the side of overreporting. This goes some way to explaining the volume of SARs, as well as their quality. Law Commission data suggested that 15% of DAML SARs do not meet the test for suspicion, and that about 36% do not even specifically identify the predicate offence.

The Cab Rank Rule: The cab rank rule is the idea that barristers must accept whatever case they have been instructed on, no matter their own personal or public opinion on the case. It is set out by the Bar Standards Board under their Code of Conduct in Rule C29. Although barristers will have this obligation to accept any instruction that they are given most of the time, there are various exceptions that allow a barrister to refuse to take on a case, outlined under Rule C30. These include timing clashes, incompetency or lack of experience in the subject matter, and risk of or actual conflict of interest between 'personal interests and the interests of the prospective client in respect of the particular matter.’

More fundamentally, one can ask whether all this is the right approach at all. In a fast-paced and competitive environment, with actors less well placed to ask questions than they might be, unlawful activity will inevitably seep through. Seen in this way, the DAML SARs act as nothing but a bandage. Periodically reporting suspicious activity does not go any of the way to asking how a client ended up being taken on, and how they were comfortable authorising a professional to proceed with something containing an obvious element of criminality. ‘Know your client,’ as well as other, more wholistic, compliance procedures – which aim to change the incentives of organisations rather than their obligations – require a greater reckoning with more essential aspects of the way different industries operate. The defensive use of SARs, therefore, may seem burdensome for the regulated sector, but whatever might effectively replace them may be more dramatic.

The principle underlying the cab rank rule is one of equality before the law. The rule gives every client the chance to be represented by a barrister of their choice, which in turn provides fair access to justice. It does this by ensuring that even the poorest or most societally rejected defendant can have the opportunity to be represented and tried in court. The cab rank rule also prevents major organisations and corporations from placing a price on access by ‘buying’ barristers out of the system or increasing rates to the point that the layman would be unable to afford legal representation. The Instant Case: Having established that the idea of the cab rank rule is to provide equal representation and protect the lower classes of society, the principle seems to have come under strain under the recent case of David Perry QC. Bearing in mind that Mr Perry had been instructed by authorities, who will likely be able to pay better than the legal aid-funded criminal law case, I will argue that he has gone against the principle upon which the rule is founded.

Benedict Stanley St John’s, Law

Mr Perry had been instructed by the overseas authority of Hong Kong to act on behalf of their authorities. One of the exceptions to the cab rank rule is that it does not extend to cover overseas cases. Upon this basis, the provisions in the British cab rank rule do not require him to take instructions to prosecute prodemocracy activists. Although he could argue that he has to adhere by the cab rank rule in Hong Kong by being a part time member of their Bar, the Hong Kong Bar Association objected that the justice department had hired a foreign QC without even attempting to find a local barrister. If the idea is that justice does not discriminate, why did Mr Perry feel the need to overcome the various hurdles so that he, specifically, had professional obligations to take on this case?

Phantom of the Opera for her husband’s birthday? Did an impoverished Londoner really have a ten-minute conversation with the Queen in her bedroom? Whilst Morgan’s liberty with the truth caused a minor stir, there are far more profound questions which those interested in the British monarchy should be asking. In a 21st century democracy which prides itself on its support of the rule of law, equality and democracy, how is it that our constitution still allows an unelected family to hold the title of ‘Head of State?’ Is the British monarchy an indispensable thread in the complex patchwork of our unwritten constitution, or is it a persistent stain in dire need of removal? The role of the monarchy has been eroded so much that the Queen theoretically no longer plays an active role in British political life. This is surely correct. As Bagehot suggested, there is little point in attempting to justify the monarchy as a rational part of British society. If Parliament designed a constitution today it would be unacceptable to vest sovereign power in someone on the basis of birthright alone; the hereditary principle is wholly anachronistic in a meritocratic society in which political power is vested in individuals on the basis of effort and achievement as opposed to wealth or social class. Amongst the customs and conventions which ensure the delicate balance of political power in our ‘unwritten constitution’, numerous conventions have emerged to remove the problematic issue of an unelected monarch influencing British politics. For example, since it is customary that the monarch never refuses Royal Assent, the power to veto parliamentary legislation by withholding Royal Assent has become redundant. However, The Guardian’s recent revelations regarding the controversial use of not-to-be-confused Queen’s Consent suggest these convention-based safeguards against royal intervention in democratic procedure are insufficient.

Additionally, he has been instructed on a case concerning the National Security Law of Hong Kong, which has been criticised as undermining the rule of law by containing provisions so vague that almost anyone could be caught under it, for crimes with an unclear scope. If the rationale behind the cab rank rule is to provide the fair access to representation needed to uphold the rule of law and a just society, then it should not be used by barristers to accept cases that appear to do the complete opposite of this. Therefore, Mr Perry’s reliance on the cab rank rule appears to favour the latter interpretation of it, that it can be used as a front to take on wealthy but unscrupulous clients.

Unlike royal assent, which has become a mere ‘rubber stamp’ on laws which have already been through the various stages of parliamentary procedure, Queen’s Consent involves an active intervention on behalf of the Crown which occurs during the parliamentary procedure. It is an opaque procedure whereby ministers are required to notify the Queen when proposed legislation affects either the royal prerogative or the Crown’s private interests. The Guardian’s revelations suggest the consent process has been used by the Queen as an instrument to influence

Conclusion: While the intentions of the cab rank rule are noble, the instant case has demonstrated how it can be contrived to act as a cover for taking on high-paying clients even when they tread the edges of what is morally acceptable. In this way, the cab rank rule can be used to hurt the very system it seeks to protect, and we should be wary about its invocation as a justification. More widely, this case illustrates that, like many aspects of legal ethics, in practice the application of the cab rank rule is far from black-and-white, and that individual barristers still have scope to think twice before accepting instructions which they know to be morally dubious. Athena Kam Pembroke, Law

Monarchy: a Stain on the British Constitution? Despite its popularity, Peter Morgan’s television drama The Crown left many viewers vexed by an apparent confusion of fact and fiction. Did the Princess of Wales really perform a piece from

the progress of legislation: Queen Elizabeth II allegedly used the procedure against transparency legislation promulgated in 1976 to ensure the inclusion of a clause which would exempt the Crown’s shareholdings from being published. Further investigation by The Guardian suggests that Queen’s Consent was used as recently as November 2020 to obtain the Queen’s Consent to environmental legislation affecting her Sandringham estate. Thomas Adams, professor of constitutional law at St Catherine’s College, Oxford, suggests Queen’s Consent gives the monarch ‘the kind of influence over legislation that lobbyists would only dream of.’ This is at odds with the democratic principle – why should an unelected monarch impose their views on an elected Parliament? It is deeply concerning to consider that the country’s largest landowner possesses an effective veto over environmental legislation; this would be totally unacceptable in relation to any other individual. In November 2020 the Queen consented to the legislation, but events in the 1970s suggest we cannot be confident this will always be the case.

However, even if weighty consideration would be required before abolishing the monarchy and establishing a commonwealth, given the upheaval this would necessitate and the difficulty in settling the subsequent argument of who should be head of state, more transparency regarding the royal prerogative is needed. The Public Administration Select Committee suggested in March 2004 that legislation should be promulgated requiring the Government to list the prerogative powers vested in ministers and allowing for greater oversight by Parliament of their exercise. Perhaps similar legislation should be passed requiring the setting-out of the Monarch’s remaining powers and enshrining in law the customs curtailing their exercise. This would not be an easy task as the scope of the royal prerogative is notoriously difficult to define. However, a move towards codification would provide an opportunity for a full review of the remaining powers of the monarch and a chance to set stronger legal limits controlling their use. Whilst the abuse of prerogatives such as Royal Assent may seem so unlikely as to render it unproblematic, if the last twelve months have taught us anything, it should be that the unforeseeable can occur.

Despite its difficult relationship with democracy, the monarchy continues to survive and support for a commonwealth in the UK remains low, at just 15-25%. This suggests the public is broadly satisfied by the knowledge that the bulk of the prerogative powers once exercised by the Crown are now exercised by government ministers, and that convention and personal restraint are perceived as generally sufficient restraints on the remaining vestiges of the royal prerogative.

The time has come for clarification of the remaining role of the monarch in the United Kingdom, even if this will not be a straightforward exercise. Like all stains, the monarchy has left a mark on our constitution which will not easily be removed. Jasmine Knapman Wadham

Finally, non-combatants must not be attacked in the just war tradition of Islam. Al-Qaeda’s killing of almost 3,000 people in the 9/11 attacks blatantly disregards this requirement of Islamic jihad. Their militancy cannot therefore be said to fulfil the Islamic limitations on just war. As Shaykh Afifi al-Akiti notes, the nature of this prohibition on jihad is ‘so specific and well-defined that there can be no legal justification, nor can there be a legitimate lawful – shar’i – excuse for circumventing this convention.’ Any actions involving the killing of non-combatants are categorically prohibited (haram) in Islamic law, falling outside the specifications of jihad and contravening a principal commandment of the Muslim way of life. In sum, although the actions of bin Laden and al-Qaeda appear to everywhere embody the understanding of jihad, this militantism is fundamentally incompatible with the Islamic theory of just war. We must be careful, then, to distance the two. We should recognise the truly un-Islamic nature of bin Laden’s so-called jihad and recover the authentic tradition of just war which Islam endorses.

Why bin Laden's terrorism must be distanced from jihad, according to Islamic law In common parlance, the term jihad carries great weight yet is often employed in a manner which is distortive of its true significance. The literal meaning of jihad is that of a ‘struggle’ or ‘effort,’ which is rooted in the Qur’an’s command to ‘struggle’ or exert oneself in the path of God. Importantly, jihad is carefully controlled in Islamic law. Below, I will explore three of the primary criteria which must be fulfilled for the commencement of just warfare in Islam. From this, it becomes clear that it is necessary to distance the actions of al-Qaeda from the Islamic concept of jihad, on the basis that none of the required standards for legitimate Islamic warfare were fulfilled in their acts of terrorism.

Cameron Glynn Worcester, Theology and Religion

From our international correspondent, at the

National Law University Odisha…

Firstly, jihad must be called by a duly constituted state authority. In bin Laden’s 1998 fatwa, he construed the occupation by ‘infidel’ – specifically American and European – armies of the lands of the Haramayn (the region surrounding the holy cities of Mecca and Medinah) as the chief ground for warfare. Interpreting this ‘occupation’ as an act of religious aggression against Muslims, bin Laden proclaimed the necessity to fight those who declared ‘war on God, His messenger, and Muslims.’ Similar grounds for warfare were asserted in bin Laden’s Al Jazeera broadcast following 9/11. Clearly, then, al-Qaeda’s ‘jihad’ was called on the basis of bin Laden’s own judgement. As an individual with no stately authority, such a declaration of jihad constitutes a clear extension of the rights accorded to individuals in Islamic law. In consequence, it is essential to recognise this supposed jihad as illegitimate from the perspective of Islamic law.

…Amrashaa Singh The ‘preventive self-defence’ theory: the cases of the Iraq war and Qasem Soleimani It has been more than a year since the US killed Maj. Gen. Qasem Soleimani (head of Iran’s paramilitary Quds Force) in an airstrike in Iraq. The US justifies the killing on the grounds it acted in selfdefence in the face of an imminent threat, much like it did in the case of Saddam Hussein. But were the two cases really that similar, and is such a justification permissible under international law? We will first address the question of what international law says on the subject. Article 2(4) of the UN Charter forbids war and the threat of the use of force – albeit with two exceptions: in cases of self-defence as enshrined in Article 51, and the actions of the Security Council under Chapter VII. The former, the self-defence principle, which has evolved over time to reach its present form, will be the focus of this article. As things now stand, Article 51 expressly permits the use of force in self-defence but only when it is the last available option. The measures taken by the state need to be reported to the Security Council and if the Council decides to act, the defending state must stop its measures undertaken to respond to the armed attack. The are many types of self-defence but the one that concerns us is ‘preventive selfdefence,’ which forms the basis of the so-called ‘Bush doctrine.’ Preventive self-defence was first codified after the ‘Caroline

Next, Islamic law states that jihad must be preceded by a call, ‘dawah’ to Islam or a treaty. Importantly, whereas militant movements within Islam have interpreted this as justification for forced conversion, the notion of dawah must be considered in this context. It centres on a universal invitation to Islam from within the faith, as opposed to the forced conversion of non-Muslims to Islam. The Qur’anic verse, ‘there is no compulsion in religion,’ (Q. 2:257) is vital in this context. Indeed, the Arabic ‘al-Islam’ is derived from the same root as al-salam, meaning ‘peace’; in submitting to the Sharia, Muslims must uphold peaceful action, in turn affirming the place of harmonious relationships in Islamic tradition. As such, whereas al-Qaeda advocated forced conversion to Islam under the pretext of Islamic jihad, such an interpretation neglects the fundamental Islamic ethic and Muslimfocused teachings of the Qur’an.

Affair’, a clash between British and American forces in Canada in 1837. It is applied when there is no imminent threat but only a fear that a threat exists. This doctrine was applied to justify both the invasion of Iraq by the US-led coalition in 2003 – Operation Iraqi Freedom – and the assassination of Soleimani in 2020.

Justification for killing Qasem Soleimani: Since there were no allegations that Iran possessed and was prepared to use WMD, the US had to base its justification for the killing solely on the threat of an imminent conventional attack. President Trump, Secretary of State Mike Pompeo and the National Security Agency stated that Soleimani was planning attack on American diplomats and military personnel in the region and that he needed to be stopped. No further explanation was given as it was felt that this provided sufficient grounds to invoke the principle of preventive self-defence. The British Government supported the killing and agreed that the principle of preventive self-defence was applicable. However, since Soleimani was inside Iraq at the time, the US theoretically needs to justify what amounts to an attack on Iraq as well as Iran. It is yet to do so at the UN.

Justification for invading Iraq in 2003: The US believed that Saddam Hussein was in possession of weapons of mass destruction (WMD). Iraq did not comply with UN Security Council Resolution 1441 which offered Hussein ‘a final opportunity to comply with its disarmament obligations.’ Therefore the US decided to take the initiative, invade Iraq and depose Hussein. President George W. Bush knew that he could not justify the use of force under Article 51 of the Charter since no armed attack by Iraq had been perpetrated. The US therefore tried to build a case around the customary international law allowing for preventive self-defence and stemming from the Caroline Affair, combined with Iraq’s failure to comply with Resolution 1441. The resolution stated ambiguously that Iraq would ‘face serious consequences’ if it failed to comply. The American justification for the invasion rested heavily on the ambiguity of these words. It could not be proven that Hussein had used these WMD or passed them on to other terrorist groups. America therefore pointed to Hussein’s history of using chemical weapons – on his own people, no less. The US argued that it simply could not wait for Hussein to make a first move with his WMD. Since the Security Council did not agree to act, the US took the matter into its own hands and decided to use force. Internationally, the American initiative was met largely with scepticism, though the UK and a few others were supportive.

Looking at both cases, one might go so far as to conclude that the US repeatedly flouts the UN Charter and takes arbitrary and unlawful decisions. At the very least, it can be said to have set a dangerous precedent by expanding the scope and applicability of the principle of preventive self-defence. With the spread of weapons technology enabling more and more countries to carry out targeted airstrikes outside their own borders, rogue states might also try to take the law in their hands and justify such attacks under the banner of preventive self-defence. That is why it is worrying that, while the Bush administration tried hard to justify the invasion of Iraq, the Trump administration has been less assiduous in making the case for the legality of the killing of Soleimani. Merely bandying about the term ‘preventive selfdefence’ is not enough. They should have been much more open about the threat Soleimani posed and how killing him served to neutralise it.

Later in 2003, having invaded Iraq, it proved difficult to find physical evidence that Hussein had been stockpiling WMD. In the eyes of many, this weakened the US’ justification for the invasion.

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Stephanie Tozer QC – Property Law specialist – Falcon Chambers How did you come to be a barrister and how did you come to be at Falcon?

to when I first started: the baby juniors tend to travel to County Courts all over the country in my line of work, but, as your fees go up and your cases increase in importance, you tend to spend more time in the London courts. Of course, most hearings are remote at the moment anyway, so I’ve only had to attend Court physically once in the past year – that was three days in North Shields.

I’m not sure how I came to decide to become a barrister… I was a shy child, and not terribly argumentative, but, according to my dad, I was ‘always’ going to be a barrister. This must have been an idea that someone planted as there are no lawyers in my family! What I do know is that by the time I came to make my A-level choices, I had in mind reading Law at university as a possibility, so no-one objected when I decided to take Maths, Further Maths, French and Geography… a combination that left me unable to read much else. So, that was that. I enjoyed Law and found I had some aptitude for it, and I didn’t seriously consider doing anything other than Bar School after University – although I was worried about the cost of the extra year’s education for my parents. Fortunately, I got a scholarship from Lincoln’s Inn which helped.

Even though I’ve specialised in property law, I have quite a range of different types of problem crossing my desk, which keeps it interesting. I could break it down into 4 broad subject areas:

• Real property issues, like rights of way and restrictive covenants, particularly in the context of developments; • Disputes arising from the appointment of receivers by mortgagees; • Commercial landlord and tenant disputes – such as disputes between retail tenants and the owners of shopping centres; and • Claims by mobile phone operators for rights to install apparatus on third party land. In the past two or three years the volume of this type of work has really increased, and I’m really pleased to be involved in some of the key cases in this critical sector. I’m due in the Supreme Court on one of these cases later in the year.

I’d enjoyed company and property law during my degree, so applied for Chancery pupillages. Back then, it was normal to have a six-month pupillage in two different chambers, and I was lucky enough to have several offers – so I picked one general commercial chancery one, and a property one. I found I enjoyed the property work immensely and was offered a tenancy by those chambers (9 Old Square) at the end of my pupillage. That chambers merged into a general chancery commercial chambers some years later, and after a few years there, I decided that I wanted to return to a specialist property chambers, so I applied to Falcon. Somewhat to my surprise, they accepted me.

Is there a particular case which sticks in your mind?

How common is it to move chambers, and what are the usual reasons for doing so?

The grizzliest thing I’ve ever been asked to do was to settle particulars of claim complaining, basically, that a woman had died messily in a house – and expecting her children, who had watched their father kill her, to pay damages from the estate. Fortunately, the case did not fight!

Most barristers don’t move chambers at all – they stay in the same chambers their entire practising lives. Occasionally, there will be a personality clash or relationship breakdown which will cause a barrister to look to move, and sometimes there can be dissatisfaction with the clerking or other management decisions taken in chambers, but generally chambers are happy places and the barristers who move do so, with regret, for career reasons – so, for example, a barrister who finds that he or she is the only one in chambers undertaking a particular type of work might wish to move. In my case, I wanted to be in the top property chambers, surrounded by people involved in the top cases in the field, where the other barristers’ aims were similar to mine: to focus on building a pre-eminent practice in the property field.

But legally, I feel most vexed by the Court of Appeal: in Parshall v Hackney¸ the Court of Appeal rejected my client’s claim to adverse possession (a.k.a. squatters’ rights), on the basis that since she had been registered as the owner of this land (due to a mistake by the Land Registry), she could not have acquired title by ‘adverse possession.’ This decision was overruled seven years later – in another case I was in, Rashid v Nasrullah, where a person who had committed a fraud in order to get registered was permitted to acquire title by adverse possession, despite his registration. So, a fraudster was not precluded from claiming title by adverse possession by his registration, but someone who was the victim of a mistake by Land Registry was precluded from relying on adverse possession – my client in the first case was clearly hard done by! Fortunately, though, Land Registry had to compensate her, so she didn’t end up out of pocket.

Can you give us some more detail about your day-to-day practice? Although barristers are first and foremost advocates, the reality of my practice, and that of many other barristers, is that many days of the week are spent advising – either in written opinions, conferences (which, these days, are invariably virtual), or by email or phone. Some weeks I am not in Court at all – but other weeks I might be in Court several days. The longest case I’ve had so far was 21 days, I think – and a case that long is quite unusual in property work. I travel out of London a lot less now than I used

Do you think the recent leasehold reforms will significantly alter practice at the property Bar? Changes in the substantive law rarely affect lawyers all that much: new legislation or a new appeal decision might generate more

work or allow new arguments to be deployed or mean that some arguments that used to be good no are longer – but fundamental change to the way in which we work only really arises if there is a change to the procedural rules or Court practices. The introduction of remote hearings during this pandemic has, in my view, brought about the most substantial change to the way we work in the time that I have been at the Bar; before that, the major change in the way law is practised came from the introduction of the new Civil Procedure Rules which were intended to, and have, changed litigation culture in this country.

Falcon Chambers has long been the leading property chambers in the country. It won ‘Real Estate Set of the Year’ and members won ‘Silk of the Year’ and ‘Junior of the Year’ at the Chambers and Partners Bar Awards 2020. Members have been involved in the litigation over the Tate Modern viewing platform, the ownership of a mural produced by Banksy, and most of the key cases under the Electronic Communications Code. Lord Neuberger, the former President of the Supreme Court, was a member before he went to the Bench.

You hold a Diploma in Advanced Business French – how useful do you think foreign language skills are at the Bar? Believe it or not, that was something I did for fun! I can honestly say that I can only think of two cases where my French has been of any use: in one, I had a French speaking witness so I was able to follow the answers given in his native language, rather than wait for the interpreter’s translation; in another, a French company’s internal emails etc. came to me at the advice stage – but in litigation, everything has to be translated officially and the official translation is the one that matters. So, certainly in my line of work, I have found very few opportunities to use my language – it may be different in other fields.

The set has 32 juniors and thirteen silks, and offers up to two pupillages annually. During a year-long pupillage, a pupil will sit with four supervisors, but will have the opportunity to work with other members too. Pupils are able to draw down some of their pupillage award early in order to help fund Bar School. Tenants are typically recruited from pupils, and always share a room with a more senior member of chambers to start with, so that there is someone on hand to ask those practical questions that you never thought of asking during pupillage!

Is there anything you think ought to be done to improve diversity at the Bar? The Bar as a whole, and the Chancery/Property Bar in particular, is very conscious of the need to increase diversity – this is now one of the key competencies that applicants for silk, and I think judicial posts, must demonstrate. There are a number of initiatives in place to try and encourage a wide range of applicants to the Bar, but there is an increasing recognition that change is needed in society as a whole if the Bar is to become truly diverse: children whose parents didn’t go to university need to know that they can, and that they CAN go on to become a barrister – and, ideally, they need to be told that from primary school onwards, repeatedly. The Chancery Bar Association has recently set up a mentoring scheme for school children to ensure that children who might not have any exposure to this type of career can develop a relationship with a barrister, which is, I think a step in the right direction.

More information can be found at www.falcon-chambers.com/join-us/pupillage.

Where do you hope to go from here? I’ve only been in silk a couple of years, and I’m really enjoying it… for now, I’m living in the now and have no plans to move on. I already sit as a part-time judge in the First-tier Tribunal (Property Chamber), am a qualified mediator, and have contributed to a couple of legal books, so I’ve got plenty of variety in my professional life to keep me occupied! What one piece of advice would you give someone at university keen to pursue a career at the Bar? One of the things that people maybe don’t focus on is the fact that the Bar is a collection of self-employed professionals. Being self-employed brings many benefits, but there are down-sides too: no maternity or sick pay is an obvious one, but I think it’s also worth bearing in mind that when you start at the Bar you are starting your own business, and you have to have the resilience to cope with the demands of a busy professional life without the same sort of support structures that you would have if you were employed in a large firm. I don’t mean that chambers are not friendly places and other barristers won’t do their best to help you out when needed, or that there aren’t support staff – most

chambers will have excellent clerks to look after you and some form of IT support, marketing etc – but rather that in most fields, you will be carrying the can on most of your cases from day one, without a supervising partner. And…. you won’t get a regular salary; you won’t get appraisals; you won’t be given a training budget…... Obviously chambers vary in the amount of support that they give to starters, and this is something you should definitely consider when choosing which chambers to apply for.