The Pupil - Volume 3

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Contents

Editor’s Foreword

2 Editor’s Foreword

I am very excited to be sharing this issue of The Pupil with you all. The number of outstanding and original submissions for the magazine was astounding, as can be seen in the articles that follow. From current issues in judicial review and protest restrictions, to calls for change in the law governing dance choreography, this issue has something for everyone. I have certainly enjoyed editing it and have learnt a lot on the way.

3 How the law fails to protect vulnerable women - Mia Hynes 4 Blind Faith - Cecily Day 5 The Policing of Protests - Ebubechukwu Akojie 5 Judicial Review and Accountability - Orry Moore

This year has been a difficult one for most, including the Bar. Courtrooms have turned into video calls, pupillages deferred and cases postponed. While we would all like to forget the impacts of the pandemic, we must recognise the significance of its repercussions for the profession. You can read all about the multitudinous effects of COVID-19 in the special section of this issue, including the impact on the nature of cases as well as the barristers working on them.

6 The Child Marriage Legal Loophole - Nadia Roberts 7 The judicial qualification of corrective justice: a prima facie Rule of Law concern - Ethan Gren 8 Uber v. Aslam: Using the Law to make a “difference” - Ishaan Bhardwaj

So, whether you are currently preparing for a career at the Bar, considering one, or are simply interested in the law and all its complexities, then I am confident that you will enjoy reading what follows. Relax, make the most of the summer vacation, and savour the legal treats which follow…

Impacts of the Pandemic… 9 The Piracy Pandemic - Dylan Evans 10 The Impact of COVID-19 on Violent Crime in Greater London - Rhys Duncan 11 Human Rights and Land Law? Don’t be unreasonable! - Ryan Fincham

Sophie Cook, Hertford College

12 Dance: an intangible art in need of tangible protection - Katherine Wood

Follow us on social media!

13 In Conversation with… Sarabjit Singh QC - Matilda Pratt

Facebook: @oxfordbarsoc Instagram: @oxfordbarsociety Twitter: @bar_oxford Website: www.oxfordbarsoc.net

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feminist. Miller’s reports often included racist, misogynistic, and homophobic language. Such actions are clearly wrong, yet the law ignores them. The law protects men like Miller, even when their actions are unnecessary for their work and even when an officer forgoes protection to spite feminists. It neglects the women they deceive.

How the law fails to protect vulnerable women That the law fails to protect vulnerable women is no secret, but the extent of its failure is disturbingly widespread and varied. I will examine the three most egregious areas in which the law fails those it should defend.

Duress and Self-defence Duress laws preclude women abused and threatened by their partners. Prior association with someone who coerces you into committing a crime precludes you from pleading duress. This qualification within the law was mainly mean to deal with gang-related crimes, but also precludes abusive relationships, leaving women coerced into crimes by their abuser with no defence.

Rape Prosecutions Over the last decade, rape prosecutions have plummeted. For instance, from March 2019-2020 there were almost 59,000 rape cases recorded by the police in England and Wales. But this led to only 2,000 prosecutions, compared to 3,000 for the previous year, according to the BBC. These figures are obviously worrying, but why are rape prosecutions so low? It may be linked to the CPS’ stated target of a 60% rape conviction rate. In order to achieve this, CPS prosecuted only cases they deemed almost certain to win, while most never reached court. Although CPS claims to have dropped this benchmark in 2018, prosecutions have not recovered.

Self-defence laws also work against abused women. If a woman needs to defend herself in an altercation with her abuser, she must do so proportionately. However, women are generally physically disadvantaged against their abusers, and may be severely injured without a weapon. But unless the abuser was also armed, that would likely be considered disproportionate. The result is that many women have faced disproportionately high sentences for using weapons, as the alternative is a dangerous unarmed struggle against a stronger assailant.

Furthermore, around the time that target was implemented, the CPS also dropped its ‘meritsbased approach’. According to the charity End Violence Against Women (EVAW), this means instead of assessing a case’s own merits, prosecutors now assess it against past cases to determine the possibility of success, further limiting prosecutions. Clearly, the CPS’ failings regarding rape prosecutions are evidence of the legal system’s inability to protect vulnerable women, perhaps even verging on the decriminalisation of rape.

“It is women whom the law most comprehensively and egregiously fails.” Conclusion The law does not do enough to protect women in vulnerable situations. The CPS does not do enough to adequately enforce the law, leaving rape or sexual assault victims without justice. And that law, as it stands, is still far from adequate in protecting women. It lets undercover officers deceive women into intercourse for their own pleasure. It prevents women from pleading duress, and its narrow view of self-defence leaves women vulnerable to their abusers.

Undercover Police Officers It is well-established that an undercover officer can have intercourse with a woman he is observing, with a false identity, and it does not count as rape. Even if it becomes a relationship and the woman is deceived for years, she has no remedy. This issue came to media attention recently when undercover officer ‘Vince Miller’ was questioned in an inquiry. Miller was asked whether an activist, ‘Madeleine’, would have consented if she knew his identity; he replied, ‘of course not…I gave no thought to it, it was just a happy way to end the evening’. He also admitted to forgoing contraception with a woman because she was a

This is not to say that men are unaffected by these issues. But it is women who are disproportionately affected. It is women whom the law most comprehensively and egregiously fails in these areas. - Mia Hynes, Brasenose College 3


the need to blindfold her represents her inherent prejudice. The first portrayal of a blindfolded Justice is shown in The Litigants, a woodcut created in 1493, often attributed to the Dutch artist, Albrecht Dürer. In contrast, F. W. Pomeroy’s sculpture of Lady Justice, which adorns the Old Bailey in London, is distinctly rendered without a blindfold. Pomeroy’s rendering advocates the redundancy of a blindfold in light of Lady Justice’s intrinsic objectivity.

Blind Faith: The Iconography of Lady Justice Lady Justice, the icon of Oxford University Bar Society, stands as the ultimate symbol of justice for numerous courts and institutions around the world. She embodies over 4000 years of tradition, history and symbolism and has emerged as one of history’s most enduring icons, who profoundly captures the essence of her subject. We blindly accept that she represents impartiality, fairness and authority, as that is how she is most often depicted. But her iconography is also greatly uncertain. Her image invites interpretation, scrutiny and dispute, much like the jurisprudence and law she represents.

The scales of Lady Justice represent fairness and balance through the weighing of evidence without external interference. But in the Oxford University Bar Society emblem, the scales appear to tilt towards Lady Justice, so that they are no longer balanced. This detail raises the question of whether there are forces greater than Lady Justice that have the power to manipulate the scales.

The icon of Lady Justice was assembled from ideas and narratives which can be traced back to the Old Kingdom of Egypt. Around 2500 BCE, the concept of Ma’at originated as a universal order and balance. These ideas are depicted visually in the Egyptian Book of the Dead, c. 50 BCE, and were later portrayed in the ancient Greek tradition as goddesses Dike and Themis, guardians of justice. The ancient Roman personification of justice, Justicia, was depicted on a Roman coin around 22 CE wearing a diadem, or ornamental crown. The current emblem is the product of the evolution of the meaning of justice.

Her double-edged sword is unsheathed, signifying her power to defend, but also to punish. This dual purpose of the sword reveals how the law is vulnerable, as it can be broken, but also states the power of Lady Justice to avenge those who violate the law. Her headpiece has evolved from the Roman diadem into a crown that evokes divine right and royalty, therefore elevating her status beyond the mundane to certify her supreme judgement. This attribution hints at spirituality and autocracy, which conflict with the notions of fairness and impartiality represented by Lady Justice.

In the Oxford University Bar Society logo, we see an empty silhouette, devoid of colour, features or expression. The lack of detail in her orientation and representation means we cannot be certain if she looks towards us or away. A judge who faces away conveys her impartiality by judging only the facts that she hears. Whereas a judge who faces us engages with society to ensure that she brings justice to the people.

In conclusion, Lady Justice has evolved as the ideal icon of Justice, whose pictorial uncertainty reflects the ambiguities and nuances of the law. Through the exploration of her attributes and meaning, we have seen how the ultimate paradigm of Justice is subject to the same range of interpretations as the law itself. Her enduring image embodies the essence of jurisprudence, in all its subtlety and ambivalence, whilst promoting the objective of the law, which is to maintain order through a Justice that stands for a fair and just result.

She holds up scales in one hand, a raised sword in the other and wears a crown on her head. But contrary to the traditional representation of her impartiality, no discernible blindfold. Contrasting depictions of Lady Justice promote the longrunning debate about whether she must be blindfolded to guarantee impartiality, or whether

- Cecily Day, St John’s College 4


belief’ is uncomfortably reminiscent of the reasonable beliefs used in stop and searches. It is with reasonable belief that BAME people are four times more likely to be searched than white people. It is with reasonable belief that Black people are nine times more likely to be stopped and searched than white people. It is with reasonable belief that police officers continue to disproportionately target people of colour when conducting stop and searches, even though there is no evidence suggesting that they are more likely to be carrying the items that officers have the powers to search for. Therefore, it is with reasonable belief that I worry about how officers will use increased discretion to over-police minorities.

The Policing of Protests The Police, Crime, Sentencing and Courts Bill was introduced to the House of Commons on the 9th of March 2021, the same day that the prime suspect in Sarah Everard’s disappearance was arrested and four days before the police clashed with mourners at her vigil. In the wake of the Black Lives Matter protests last summer, Westminster looks set to use this Bill to put reactionary politics on a statutory footing. What is in the Bill? Clause 59 of the Bill criminalizes the causation of serious distress, annoyance or inconvenience. Such a clause seems to ironically both acknowledge and criminalise the fact that most protests will purposefully seek to at least cause inconvenience, because change refuses to come from a place of comfortable ignorance. Most of the time, minority issues are only recognised by the media and the public when they affect more than minorities. After all, it was not petitions and pleases and thank-yous that signed the Civil Rights Act of 1964 into law – rather, it was only when the oppressed brought inconvenience to the doorsteps of the oppressors, and onto the buses and into the diners, that change was brought about.

What could be the impact of the Bill? But how do protestors feel this Bill will impact them? Ayesha Abbasi, one of the organisers of the Palestine Solidarity March in Oxford and founder of Help the World Oxford, notes that the vagueness of words such as “serious disruption” and “annoyance” could be used to “criminalise peaceful protests”. This is something that Huda Daghem, a 1st year PPE student at Mansfield College, also echoed, noting how ambiguous terms are something that scare minorities, as they are often exploited to target minority communities as evidenced by the notorious bias of stop and searches. This is why protestors like Ayesha worry how a bill that increases policing and discretion over protests will affect members of minority groups, groups that are already targeted by police, groups that are marginalized, and groups that need to use protests to effect change because no other channel is available.

Additionally, clause 60 gives the police the power to restrain one-person protests if they ‘reasonably’ believe that the noise created by the protest may be a serious disruption (causing serious unease or distress). This clause, like its predecessor, recognises and then punishes the source of power that most protests depend on, causing unease and disruption so that the voices of the silenced will be listened to and not just heard. The subjectivity of ‘disruption’ and ‘unease’ leaves room for partiality because what may be disruptive to one person can be a reasonable and appropriate response to injustice for another. And when only 8% of court judges in the United Kingdom are Black, Asian and Minority Ethnic (BAME) it easy to foresee whom such subjectivity will and will not favour. From Extinction Rebellion’s 10-day siege of central London in 2019, to the Umbrella Movement’s 79day occupation of Hong Kong in 2014, it can be accurately said that protests can be disruptive. However, they are always a right, a right which this Bill seeks to regulate.

Ngozi Godwell, a protestor at the George Floyd Memorial Protest in Oxford, concluded that the Bill will lead to more arrests, fines and cases, however she refused to accept that the Bill would deter protestors. Because, perhaps as a homage to the Peasants Revolt of 1381, Ngozi remarked that “the peasants do it well”. Ultimately this Bill is not a reason to stop protesting, but rather a reason to continue doing so. - Ebubechukwu Akojie, Merton College

Judicial Review and Accountability Judicial review is the most valuable tool we have for challenging the decisions of government. A healthy

The increased police discretion to monitor and intervene with protests based on a ‘reasonable 5


respect for the rule of law is intimately connected to individual and institutional freedom. The government’s proposals for reform are largely unnecessary: they show contempt for the courts and the rule of law, and are yet another attempt to evade scrutiny and accountability.

unlawful action and it being unreviewable makes the law less predictable, and Parliamentary sovereignty is strengthened by an independent judiciary defending the rule of law by ensuring the executive Parliament’s law. Regardless, they say, we need to legislate to clarify the effect of ouster clauses. Legislate how? If there are certain types of decisions that aren’t to be reviewed then Parliament can enact that, and the courts will enforce it – ouster clauses have been effectively used for over seventy years. What the government really wants to do is avoid the political cost of spelling out what’s unreviewable. They can do it if they want to – the ouster clause in Privacy International v IPT [2019] could’ve been more explicit, spelling out in terms that the even purported determinations were precluded from review. But bills containing such language have been shot dead by Parliament - clause 11 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003, for example. The principle of legality requires Parliament to spell it out and face the political cost. But this cost is what the government wants to avoid facing, by ‘clarifying’ the effect of ouster clauses in advance.

The Report Despite winning most judicial reviews, the government insists that the judiciary is abusing its remit, and the Conservatives have been complaining about meritless judicial review cases for years. Yet the government’s independent report confirmed that despite recent headline cases, there is no evidence that meritless claims are a problem, and that the courts can be trusted to respect institutional boundaries. The government has mischaracterised their findings to say that the panel identified a tendency for the judges to make decisions in place of the executive, and has proposed (inter alia) that mandatory ‘prospectiveonly’ remedies be introduced, that the concept of a ‘nullity’ be virtually erased, and that the effect of ouster clauses be ‘clarified’ by statute. Nullity & Remedies The government proposes that only lack of power/competence will necessarily result in a decision being a nullity – i.e. no wrongful uses of power will necessarily be void and of no effect. While useful for technical errors that threaten to shut down big schemes, this proposal is far too wide. All wrongful uses of power will no longer be void. The effects of misuse of power will remain if the government can persuade the judge, and perversely unreasonable decisions are allowed to stand – the red-haired lady from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] may have no protection. Furthermore, the government has justified prospective-only remedies on the grounds of saving money on compensation schemes. Take the case of a vulnerable disabled claimant refused months of payments – they will be refused compensation for all their previous losses, because it saves the government money. It’s appalling. The government just has to get it right in the future, and if they don’t – don’t worry! No compensation for that either.

Conclusion The government is embarrassed by its defeats in the Miller cases and running scared of accountability, wherever its source. Their proposals beyond those recommended by their panel should be resisted at every step. - Orry Moore, Brasenose College

Did you know… …that the origin of the term ‘Bar’ comes from the barring furniture dividing a medieval European courtroom?

The Child Marriage Legal Loophole “Child marriage is often viewed as a ‘developing world issue’ and one that exclusively takes place overseas. The reality is that child marriage is an invisible but thriving issue in the UK today” (Girls Not Brides UK).

Ouster clauses The government says the current law on ouster clauses makes the law less predictable and that there is a danger of disrespecting Parliamentary sovereignty. On the contrary, being subject to

The above statement is shocking, and perhaps, too readily dismissed. It is often easy to disregard a claim on the basis of it seeming at first instance farfetched. Thus, the purpose of this article is to 6


further increase awareness of the existence of the UK’s child marriage legal loophole.

In 2017, the ONS shows 43 teenage boys and 140 teenage girls having been married with parental consent. Given that the current law states that young people must remain in education or training until the age of 18, it seems contradictory to allow at law the marriage of 16- and 17-year-olds solely upon the ground that there is parental consent. On the one hand the law is suggesting that our under18s are not adequately prepared to depart from the education system. On the other hand, they are supposedly able to take on the responsibilities of marriage. Payzee Mahmod has said in an interview that marriage is a responsibility that no child wants to take on. Not only that, but child marriage often leads to fewer educational and employment opportunities. Parents should never be able to limit their children’s freedoms to such an extent, and certainly should not be permitted at law to do so. Children are vulnerable members within our society, and they ought to be protected. Yet, the law has failed them in this instance.

The Current Law The current law in England and Wales is that 16- and 17year-olds are able to register a marriage provided they have parental consent. Child marriage is therefore lawful if parental consent is given. Furthermore, the UK at present does not have any legal provision preventing the taking place of religious or customary child marriages, irrespective of age. Fundamentally, there exists a legal loophole in the UK that facilitates child marriage. However, by law, marriage must be entered into freely; hence forced marriage is an offence. In fact, one can be prosecuted under existing laws if they attempt to coerce someone into a relationship. So, why is there a problem?

So, why must the law change? The law must protect under-18s from coerced marriage. At present, the law is not doing enough to protect these children. The law must protect their “childhoods, their futures, and in some cases, their lives” (Javed khan, chief executive of Barnardo’s). Ultimately, the child marriage loophole must be acknowledged and subsequently, eradicated.

The Impact of this Legal Loophole Campaigners are arguing that marital parental consent generally amounts to coercion. In a letter to Prime Minister Boris Johnson, campaigners have warned of the “invisible but thriving issue” of marriage by parental consent. The letter claims that the marriage of those under the age of 18 is actually one of the most hidden forms of violence taking place within the UK against women and girls. For example, Payzee Mahmod was married to a man nearly twice her age at 16, and her sister, Banaz, was married at 17. Banaz was murdered in a so-called honour killing after she decided to leave the husband that her family had selected for her.

- Nadia Roberts, St Anne’s College

The judicial qualification of corrective justice: a prima facie Rule of Law concern

Additionally, the letter to Prime Minister Boris Johnson states that: “the onus is on the child to secure their own protection under forced marriage law by speaking out against their own family and community, which can have dangerous consequences and understandably many children are too terrified to do”. After the tragic death of Banaz, it is not at all difficult to comprehend the fear that these children must feel when death is a potential consequence of their speaking out.

The judicial qualification of corrective justice in negligence law, prima facie, presents Rule of Law concerns. Vague judicial allusions to a qualifying threshold contravene the virtues of certainty and intelligibility. However, on closer inspection, these concerns are both justified and outweighed, in particular, by the manner in which judges make their decisions being somewhat inevitable and safeguarding flexibility in the law’s application. It is concluded negligence law provides adequate normative guidance to the law’s addressees.

Why the Law Needs to Change Banaz lost her life as a result of this legal loophole. Could it be rationalised as an extreme case that does not, in itself, call for the law to change?

Negligence law and corrective justice Negligence is failing to take precautions a reasonable man would take against harm a 7


reasonable man would foresee, for instance, not stopping your car at a pedestrian crossing. If a claimant fulfils negligence law’s requirements, they have a strong claim to compensation: a claim for corrective justice, namely where the defendant has wrongfully harmed the claimant, the defendant must restore them back to their unharmed position. Although, a valid claim does not always result in liability being imposed. Judges qualify corrective justice in favour of other interests, typically when strong policy or public interest-based arguments are invoked centring around the anticipated adverse costs of imposing liability. For example, when imposing medical negligence liability against doctors might encourage defensive medicine to avoid being sued. However, judges have rarely elucidated concrete guidance vis-à-vis how to balance arguments from corrective justice with public interest-oriented arguments. Judges have held corrective justice ought to be qualified when “the potential harm to the public is incontestable” (Spring v Guardian Assurance plc [1995]), or when there are “very potent counter considerations” (X v Bedfordshire County Council [1995]). These vague allusions render it difficult to ascertain when judges will qualify corrective justice claims, constituting a Rule of Law concern.

operations undermine the Rule of Law is overstated. While the Rule of Law requires its virtues be upheld, these are not to be maximised unequivocally. Too much certainty is undesirable. It is equally important to safeguard the law’s flexible application, especially in negligence where the circumstances in which cases arise are practically infinite. Hence, judges’ qualifying decisions are justified by their somewhat inevitable nature and maintaining of flexibility. Analysis of judicial decisions enables the identification of qualifying factors and the possible weightings that might be relevant in determining whether a valid claim in negligence will be qualified, enabling individuals to sufficiently plan their affairs in accordance with the law (Jason Neyers et al, Tort Law: Challenging Orthodoxy (Hart Publishing 2013)). Consequently, judges' elucidation of negligence law provides adequate normative guidance to the law’s addressees. - Ethan Gren, St Cross College

Uber v. Aslam: Using the Law to make a “difference” “Making a difference” can quickly become a cliché as we all know, used in a hackneyed and superficial way to get at a sense that the work we do actually matters, amidst the monotony and routine nature of the work we often actually end up doing. Yet the case Uber v. Aslam shows what “making a difference” in the law might look like in a concrete way, through using the law as a vehicle of social change that might inspire a barrister, solicitor, or legal academic.

Prima facie Rule of Law concerns The Rule of Law encompasses various formal attributes laws ought to possess to guide the law’s addressees, including, inter alia, the formal virtues of certainty and intelligibility. If a law is too vague, its addressees will be unable to ascertain what the law requires and shape their behaviour accordingly. Prima facie, the qualification of corrective justice presents a Rule of Law concern; judges adjudicating negligence claims have not, with a strong degree of certainty and intelligibility, articulated the circumstances under which valid corrective justice claims will be qualified. However, on closer inspection, this concern is both outweighed and justified.

My interest in this specific case was started by watching a lecture on EU law by Professor Catherine Barnard, EU law professor at Cambridge, in dialogue with the employment barrister Jason Galbraith-Marten QC. To provide a brief summary: the case began in 2016, as a number of drivers brought cases under the minimum wage jurisdiction and to do this, they had to show they were “workers” under statutory provisions. Following their success, Uber unsuccessfully appealed to the employment tribunal with a hearing, taking place in July 2020 and again this year. Their case relied on the fact the drivers did not have a written contractual relationship with the Uber entity in the UK, no specific contract with Uber London, solely with the Dutch parent company. Thus, in the reasoning of

Negligence law as providing normative guidance The manner in which judges adjudicate negligence claims is somewhat inevitable. It is inherently difficult to balance competing arguments for corrective justice and those in favour of wider, public interest-oriented concerns. Qualifying arguments and their weightings are not amenable to rigorous detail and the creation of an exhaustive list. Likewise, the degree to which negligence law’s 8


Uber, the drivers were not employed by it, for Uber contracted directly with the passenger, Uber merely acting as the “agent”. This argument, that Uber owed no duties as an employment tribunal, all the way up to the Supreme Court, rejected “employer” to drivers due to the absence of a specifically contractual arrangement. Why does this matter? Well as Dr Barnard said, the case changed how “contracts” were interpreted in labour law. Where typically, in order to establish someone was a “worker”, you had to point to a contract, which imposes personal service on that individual, in the view of Lord Legatt and Lord Regge, you don’t start with the “contract”, but the grouping that these statutory provisions are meant to protect, the vulnerable and dependents. Many questions were subsequently raised in the lecture, was the Supreme Court shifting to the left? Yet what was most interesting to me, as someone with limited experience of the law was how a pro-bono case could really make a concrete difference, and Marten-Galbraith QC underscored how many of the precedent setting cases were indeed often conducted pro-bono.

Impacts of the Pandemic… The Piracy Pandemic

The ongoing Covid-19 pandemic has necessitated Universities and education providers to adapt flexibly to the challenges of ensuring that quality learning and assessment processes can be delivered as effectively and securely as possible. However, this state of affairs has provided a ripe opportunity for a minority of students to commit malpractice during examinations and circumvent copyright laws to illegally access academic material in preparation for them.

On an altogether more personal note, it was fascinating to see two lawyers, one academic and one practicing who had studied together at university, reach a stage in their careers where the academic had to account for the impact of the barrister’s case in their daily teaching. It underscored to me the fairly concrete shape of the “impact” or “difference” a barrister can actually make, as their work contributes to the law evolving, to the extent of changing the Cambridge law syllabus he was once taught.

Did you know…

This presents a variety of legal issues for students who engage in such practices- ranging from exposure to both individual and volume litigation for illegal file-sharing through to academic sanctions and ultimately expulsion from their course. A further critical development arises from the risk of exploitation and blackmail that can arise as a result of utilising such practices; leading education law barrister Daniel Sokol raised warnings in January this year of the interrelated issue of ‘Essay Mills’ utilising underhand tactics to demand money from student clients; now similar operations have been observed within illegal peerto-peer academic file sharing groups with markedly high rates of payment.

The prototype replaces the wig’s usual horsehair with a hemp-based model, echoing the significant rise of veganism in the UK over the past decade.

The Primary Vectors of Academic Piracy Whilst the illegal distribution and access of academic material is by no means a novel development, the sheer volume and breadth of works disseminated and accessed during lockdown has increased notably, with UK-based traffic for the leading academic piracy vector Sci Hub trebling during the first lockdown.

- Ishaan Bhardwaj, St Antony’s College

…that the first vegan barristers’ wig in England was trialled this year by pupil barrister Samuel March of 5 Paper Buildings Chambers?

It's significant to observe that the primary vectors for academic piracy have become increasingly decentralised as a result of increased scrutiny and

His pioneering headgear was unveiled on his Twitter account in February… 9


action from private entities and national governments alike. Library Genesis, a critical vector for piracy noted within the European Commission's 2020 Counterfeit and Piracy Watch List, has faced several debilitating blocking injunctions and orders which has necessitated the usage of mirror sites and redistributed consumers to access material from within closed file sharing groups, which are harder to quantify the usage of. Such groups have now found safer refuge in ‘privacy-centric’ social networks and hosting

The Impact of COVID-19 on Violent Crime in Greater London In April 2020, the CPS released an instruction to prosecutors to consider the impact of COVID-19 on the courts when determining if a criminal charge was in the public interest. The intention was to ease pressure on the strained justice system, without allowing more serious offences to go unpunished. This article will consider those cases whose gravity necessitate a trial in court, assessing whether COVID-19 has reduced serious crime levels in Greater London - looking in particular at the Metropolitan Police’s violent crime statistics - or whether crime has been maintained or increased during the pandemic, worsening the already deplorable court backlog.

providers, which are typically hosted in jurisdictions within Russia and the Eurasian Economic Union (EEU) in which it is markedly arduous to effect a comprehensive takedown of the content in breach. Exploitation and Blackmail As noted prior, there exists a risk for students to become victims of exploitation and blackmail as a result of utilising illegitimate academic file sharing services. This is facilitated primarily by obtaining compromising details from the student during the accessing of the files through a phishing link or faux download approval login, the data from which can be subsequently exploited for profit. This risk has markedly intensified as a consequence of the increasing decentralization and fragmentation of academic piracy- which has shifted the focus away from the advocacy of open internet and further towards the pursuit of personal profit- now at the expense of students. The target outcomes for academic blackmail range from financial gain to acquiring the student’s sign on credentials so as to access further material for future usage- all of which constitute the offence of blackmail per s21(1) of the Theft Act 1968 when combined with the menaces to expose the student’s actions or encrypt their data in instances where direct access has been achieved.

Crime before COVID-19 Over the last decade, serious violent crime in London has risen from between 10,000 to 12,000 monthly offences in 2011, to 16,000 to 21,000 in 2019 (Met Police Crime Data Dashboard). This increase has shown a consistent pattern of annual fluctuation, with offences typically below the annual average in January and February, before seeing an increase in March, a minor decrease in April and then a sharp peak in July, with offences reaching over 20,000 in 2018 and 2019, before a significant decrease through the autumn and winter beginning in August. Crime during the past year During the pandemic, the annual fluctuations outlined above have been maintained, though exacerbated. The decrease in April 2020 reached 15,474 offences, the lowest April recording since 2015, most likely on account of the strong restrictions and limits on social interactions giving rise to violent altercations.

Conclusion It is evident that academic piracy and the interrelated issues that stem from it will remain to be a detrimental factor to providing assessment and facilitating online learning for the foreseeable future; with current legislative measures offering minimal effect upon the rate of access to online distributors. There is further a pressing need to raise a greater awareness of risks of piracy, both legally and financially, within the student population so as to deter future usage.

Similarly, July saw a typical peak, though again above any previously recorded level at 20,358 offences, before unprecedentedly rising higher in August to 20,601. This is anomalous, breaking with the previous 9-year trend of August showing lower offending levels - with August 2019 having almost 2000 fewer offences than the previous month and 2018 being closer to 3000. This is most likely due to a combination of multiple factors, including the hot weather which data suggests increases violent crime by 14% when the temperature rises above 20°c (BBC), the easing of restrictions, and

- Dylan Evans, St Hugh’s College 10


reopening of pubs in mid-July, causing a steep increase in public alcohol consumption, and creating an extended peak.

a mortgagee’s receiver served notice on a vulnerable woman, terminating her tenancy, under s 21 of the Housing Act 1988. S 21 was challenged for Article 8 compliance; it gave the court no discretion in making a possession order. The Supreme Court held that a tenant could not rely on Article 8 to justify a different order from that mandated by the contractual relationship between the parties, at least where legislation has already decided the balance of their competing interests. The ECtHR did not intervene when the case reached Strasbourg (FJM v UK), holding that courts should not override the contractual relationship between voluntary private entities where the legislature has prescribed the balance of their respective Convention rights. Neither court showed the stomach to interrogate just how ‘voluntary’ the agreement was, instead deferring to legislation and freedom of contract.

Additionally, in line with the exacerbated trends was the rise in crime during March 2021, with the number of serious violent offences reaching 18,968, a number higher than any previous March in spite of heavy social restrictions for part of the month. Although April did see a decrease as in the previous 9 years, this was a drop of less than 300 offences, maintaining high rates of offending, again likely due to the easing of restrictions and increases in public alcohol consumption and social interaction. Both this abnormally high rate in March and April 2021, and the peak of July and August 2020 have contributed to the significant 0.45% increase in violent crime levels over the previous year, in spite of bouts of social isolation and restrictions.

Procedurally, Article 8 has a better record. In Manchester City Council v Pinnock, the council terminated Mr Pinnock’s tenancy due to his children’s anti-social behaviour. His tenancy was a ‘demoted tenancy,’ mandating the court to grant a possession order so long as the council followed the correct process to terminate it. Mr Pinnock argued that the lack of discretion available to the court breached his Article 8 rights. The Supreme Court agreed; any person dispossessed by a local authority had the right to have the proportionality of that dispossession determined by an independent tribunal. Yet the Supreme Court held that a court would only consider Article 8 if the occupier raises it in proceedings. Occupiers often do not show up in court, nor receive legal advice. In Hounslow LBC v Powell, the Supreme Court deferred to the Parliament’s balance between the rights of the occupier and the responsibilities of the local authority, referring to a ‘high threshold’ for successful Article 8 claim. When a county court judge did deny an order for possession due to the occupier’s ‘exceptional circumstances’ in Corby BC v Scott, the Court of Appeal promptly reversed the decision. Lord Neuberger MR criticised the judge for focusing too much on ‘exceptionality’, affirming that ‘sympathy’ for the occupier should not affect the outcome and emphasising the high threshold ‘before an Article 8 case can have a real prospect of success.’

Conclusions The past year’s data, and particularly that for March and April 2021, pose serious concerns. With restrictions easing further and the peak of July and August yet to come, it is highly likely that the MET will face the highest levels of serious violent crime yet, potentially peaking above 21,000 offences a month over the summer. This increase in crime, combined with the incapacitation of the courts, has contributed to the backlog of 58,000 Crown Court cases awaiting trial in England and Wales, up drastically from the 37,500 in 2018 (BBC). This is a pressing issue, leaving alleged criminals and victims alike facing potential years of waiting for their cases to be heard, and putting enormous pressure on judges, the CPS, and barristers. - Rhys Duncan, Trinity College

Human Rights and Land Law? Don’t be unreasonable! Most English human rights jurisprudence pertaining to land law concerns Article 8 (respect for the home, private and family life). Substantively, it doesn’t offer much: in McDonald v McDonald,

Article 8’s effect has not permeated beyond sympathetic first instance judges who see and hear the occupiers. At appellate level, the cold gaze of 11


the law offers little protection indeed. It was even suggested recently, in Jones v Canal & River Trust, that Article 8 in possession proceedings overlaps with the ‘reasonableness’ defence already available under the 1985 Act. Loveland has called ‘proportionality’ in these proceedings little more than Wednesbury unreasonableness redressed. If he is correct - and evidence points this way - Article 8’s ‘impact’ has been to bestow on judges a duty they had anyway – don’t be unreasonable.

regulation. Somehow, lawmakers have had to draw a line between dance as a product and dance as a human instinct. In the US, for example, a choreographic copyright is only legally enforceable once it has been registered with the Copyright Office. For this to happen, according to the Copyright Act 1976, the choreography must be an original work – not a ‘social dance step’ or ‘simple routine’ – which is ‘fixed in any tangible medium of expression.’ Requiring copyright registration allows claimants and courts to approach cases of alleged copyright infringement with more certainty. In 2018, for instance, Alfonso Ribeiro claimed that two video games had incorporated a dance that he had created while playing the character of Carlton in The Fresh Prince of Bel-Air. However, Ribeiro dropped the suit after the US Copyright Office refused copyright registration for the ‘Carlton dance,’ which it considered ‘a simple routine.’

Beyond Article 8, in Dutton v Persons Unknown, private landowners sought to evict trespassing antifracking protestors. The protesters raised their Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) rights against a possession order. The balance fell in favour of the claimants, particularly because there were other ways the protestors could make their point (they had extensive publicity on social media). This reasoning is concerning. If social media presence can counteract the right to use land for political protest, it may be hard for any established protest group to resist eviction.

In the UK, by contrast, the law regulating choreography copyright remains blurry. For an artistic work to be copyrightable, it needs to be original and to have been recorded, whether in writing or otherwise (Copyright, Designs and Patents Act 1988). However, there is no requirement of copyright registration, meaning that the originality of the work is left to be judged by the court. As a result, it might not always be clear when a copyright claim can legitimately be brought, potentially leading to unnecessary litigation. This lack of registration for copyrights seems particularly arbitrary considering there is a routine process for approving and registering other intellectual property through patents and trademarks.

- Ryan Fincham, Pembroke College

Did you know… …that there are four Inns of Court in the UK; Lincoln’s, Gray’s, Inner Temple and Middle Temple? Every barrister in the UK must join one of these before training.

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Dance: an intangible art in need of tangible protection

More importantly, within the 1988 Act, choreography is unjustifiably appended to the category of ‘dramatic works’. This lack of a clearly defined position for choreography is problematic, as becomes apparent in the Act’s discussion of copyright infringement through adaptation. Section 21 defines adaptation as including the conversion of a dramatic work into a non-dramatic work. However, this can only be applied to choreography with a storyline, a rarity in contemporary choreographic work. Indeed, the misguided attempt to label choreography as a ‘dramatic work’ was one of the driving forces behind the introduction of the 1976 Copyright Act in the US.

Dance is at once intensely personal and universal. It promotes individual creativity, but it also serves as a lingua franca for humans across space and time. Many dances have anonymous creators and seem to have existed forever. Others are instantly associated with the person, group or culture that invented them, or are given new meaning when performed in a certain context. Clearly, original choreographic work should be protected by the law as intellectual property; artists should be recognised and rewarded for their achievements. On the other hand, as a ubiquitous and powerful mode of expression, dance should not be stifled by 12


Some might welcome the vagueness of the UK’s choreography copyright law, claiming that the elusive, intangible nature of dance makes it unsuited to legislative formulas. However, the view that reforming copyright law is not an issue is an issue in itself. The law serves a normative function, and its failure to acknowledge choreography implies and perpetuates a lower status of dance among the arts. Indicating the value of choreography would initiate a virtuous circle. Defining the economic rights of choreographers might not only provide financial incentives, but would also boost creativity. This, in turn, would lead to greater acknowledgement and appreciation of choreographers’ work. In the digital era, as dances can become more fixed and reach wider audiences through recordings, their creators must receive the protection and recognition they deserve. - Katherine Wood, Harris Manchester College _______________________________________________________________________________________

In Conversation with… Sarabjit Singh QC on the life of a Barrister in a COVID World and the likely future of the Bar Sarabijit Singh QC (Sab), belonging to 1 Crown Office Row Chambers, specialises in tax, clinical negligence, and public law. A Corpus-alumni who always had the ambition of wanting to become a barrister, lured by the attraction of self-employment, debating, and constructing persuasive arguments, Sab was appointed Silk in 2018 and has appeared in high-profile cases, such as being instructed by HMRC in Brexit-related litigation.


At the same time, he aims to de-mystify the Bar and encourage those from under-represented backgrounds to aspire to become a barrister. I was lucky enough to be in conversation with Sab, discussing how his own work, and the Bar more generally, has been impacted by COVID, whilst also looking into the future and considering the lasting legacy of the pandemic on the Bar. So, let us rewind to March 2020. “I was due to have a Court of Appeal hearing two days into the lockdown!” Less than 24 hours before the hearing was due to happen, the Court vacated, and initially, Sab did not anticipate too much of an impact because, like most people, this new way of remote working started off as a bit of a novelty. Hearings were adjourned, “the pace of life relaxed so much”, and suddenly, less new work came in. The nature of barristers is to “catastrophise”, so “if we’ve got too much work, it’s a disaster and we have no life!” Yet, on the reverse, if the work dries up then “we think we’re never going to get work again and it’s the end of our career!” This seemed to be the general concern at the start of the pandemic – barristers get a lot of their work from referrals, relying on people walking into solicitors’ offices and so naturally the quantity of work depleted. This was further exacerbated by litigants who began re-thinking whether they actually wanted to proceed with legal issues as these unprecedented circumstances created financial anxiety for many. Sab has previously acted for HMRC, and government departments such as these “stopped making decisions that would normally lead to litigation” because they were preoccupied with more emergency measures such as furlough schemes. With almost no footfall, this meant that barristers “could work on existing cases at a leisurely pace” whilst adapting to the new working from home lifestyle. This meant that the previously paperworkheavy profession, where “clerks are sometimes wheeling in trolleys of paperwork”, transformed into one that is “completely paperless”. Sab welcomed this adaptation, heralding the “convenience” of this new working technique. However, it is undeniable that work did deplete at the civil end, resulting in “far more barristers competing for the same limited paperwork” as they were suddenly more available due to less court hearings. But, this advocacy side of the job did not stop, as remote courts, which were considered

merely a possibility before the pandemic, began to dictate the profession. When asked if he thinks remote courts will be here to stay, Sab feels as though things will “go back almost completely to normal”. Despite the “anticlimax” of online hearings, it is undeniable that they are extremely convenient and can also improve access to justice, assisting in reducing the waiting times for cases to be heard but also resolve the issues of limited court space. Sab jokes that before the pandemic, remote connections in a courtroom were “always a nightmare, always a disaster”, but barristers had to rely entirely on platforms like Zoom and Teams to be advocates and have client meetings. Only three weeks before our conversation, Sab had an online hearing in the Supreme Court, to which he commented that “it is just not the same, it’s just not as much fun!” “If we normally finish a hearing in the Supreme Court, that’s a big thing! But here, we finished the hearing, and it was laptop screens down.” Usually, after significant events such as these, barristers will often celebrate by going out for a drink which Sab also believes has made it difficult for younger and junior members of the Chambers because they have missed out on these important social and networking aspects of the job. Despite this, Sab predicts that remote courts are likely to persist into the future, but only for “smaller and shorter hearings”, to further help free up courtrooms. This could also assist in solving the backlog of cases, combined with further government investment, which is unfortunately not considered “politically popular”. This is because the general consensus amongst people is that they feel they will not have to access these services at any point, so there is a lack of investment. However, it is still vital that we listen and learn from the experience of remote hearings during the pandemic to pave the way for the most effective legal service possible in future. In a survey held by The Bar Council published in July 2020, it was found that 80% of barristers interviewed felt that people have been unable to access justice at an acceptable level during the pandemic, painting a grave picture of remote legal services.

“Listening to your supervisors take phone calls, that’s how you learn!”


On the 17th March 2020, the first remote hearing in the Court of Protection was held. Despite positive feedback from the legal actors involved, the feedback from the lay party was significantly more negative, with them reporting that “it didn’t feel professional. It didn’t feel like justice.” It is therefore important that these personal experiences are taken into account when considering the future of remote courts, particularly in family cases where the individual is “personally-invested in the outcome”. Individuals do not want to be just sat in their living room, facing a jail sentence; instead, especially in crime and family cases, people deserve to “get the best form of hearing as possible”. Sab remarks that you “shouldn’t have to face a life sentence at the result of a Zoom trial”. It is essential that people can get their day in court and have their opportunity to interact without the “fear of being put on mute”.

improve. As much as the profession has been affected, more generally, the pandemic has encouraged many to re-evaluate what they value in our own lives. Businesses globally are increasingly recognising the importance of having a healthy work-life balance, such as the potential for 4-day working weeks, as well as the hybrid office/home working format, which Sab believes will increase productivity, as well as benefit the environment. KPMG, for example, have plans to convert certain office space into conference rooms to encourage more people to work from home. The future which Sab anticipates for himself is that he will work less and target certain firms, channelling his energies into the work he enjoys the most. Sab felt that the pandemic particularly highlighted the many different ways that we can now do marketing, which is a significant aspect of life as a QC. Talks can be arranged on certain subjects and hosted over platforms such as Zoom and Teams, connecting with individuals and firms all around the world. Furthermore, Conferences (advisory meetings with clients) are likely to be held online – Sab uses the example of clinical negligence, where you have to have a number of medical experts all in one place at one time. If you can remotely hold a Conference, then automatically people become more available as this can be accessed from home, and work can progress much quicker. Despite geographically being apart and the lack of physical contact, the opportunities for communication have advanced significantly. Sab jokes that you do not even need to be in the same country to work with someone, “you can just live on some desert island somewhere!” Although it may be a bit too early to set up in another country just yet, the fact that the Bar could adapt so easily to this remote way of working presents many opportunities for the future.

From the perspective of a barrister, it is indisputable that there is a certain buzz from being in a courtroom, “that is why we did the job!”, not just to “do advocacy to a computer screen”. Sab is adamant that “we’re going back to Court, as normal, because we all want to be back in Court”. It is likely that the future for aspiring barristers should not be too far-removed from the existing experience, perhaps with increased hybrid learning, however. Sab’s Chambers, 1 Crown Office Row, chose to defer their pupils for a year as the in-person experience is considered invaluable, “listening to your supervisors take phone calls, that’s how you learn!” Being able to meet other members of the Chambers, go to court with your supervisor, see negotiations between barristers, for example, are all significant aspects of the whole pupillage experience. However, it would be absurd to turn back on the developments that the pandemic has encouraged and to not embrace these amazingly convenient technologies which have since emerged. “When you go to the Bar, you will have known nothing else”, using similar technologies and having similar experiences as at University-level. “From being a student, we’d have tutorials and that would be a bit like going to court!” “The essay you have submitted for that week is a bit like your skeleton argument!” Therefore, “for pupils, the experience should end up being the same”. The opportunities for advocacy will not go away, and possibly with the potential of remote hearings, they might even

Even though Sab thinks that technological possibilities such as algorithmic dispute resolution (where legal issues are inputted into an intelligent algorithmic programme) might “never take off”, especially due to the bespoke legal service that the Bar is renowned for delivering, I think if anything, the pandemic has shown how adaptable and how many possibilities there are for new technologies to be integrated into our working lives. - Matilda Pratt, Corpus Christi College 15


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