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Talk is cheap and litigation is expensive.

March 2013

INSIDE India gang-rape murder: the rights of victims and suspects......2 Gay marriage...........................................................................4 Closed material procedure....................................................5 ...

QM Pro Bono Society goes global...............................6 Is anti-Semitism still a problem in society?...............8 Interview with Mark Harries......................................10

THE ADVOCATE The Newspaper of the QMSPBG Since 2004

Horsemeat controversy: consumers should not forget their role in market

Public confidence in jury system shaken by Pryce trial

Mika Schröder

News Briefs 31 alleged sexual abuse victims are suing the estate of Jimmy Savile and the BBC. The late Radio 1 DJ and the presenter of the Jim'll Fix It show on BBC One, who died in 2011, is alleged to have abused victims across the country. All victims are taking action against Savile’s estate and eight are suing the BBC. !

Prime Minister David Cameron has stated that those liable for passing off horsemeat as beef will face legal action. Recently, an EU meeting about the horsemeat scandal has taken place in Brussels. In addition to legal action, tougher inspection regulations are to be put in place. !

The recent horsemeat scandal has unearthed a dysfunctional and deceiving food industry. It has raised concerns as to what consumers actually purchase and what regulations control the flow of goods between EU Member States. Although the mislabeling was clearly contrary to current legislation, the fact remains that government policy seems inadequate in its ability to control the market and ensure full transparency. In their report from 2008, the House of Commons Environment, Food and Rural Affairs Committee (EFRAC) acknowledged the ultimate goal for establishing sufficient and sustainable food production is “making sure that people have access to sufficient, safe, sustainable and nutritious foods at affordable prices”. In light of the recent events, it is clear that these goals will not be achieved by current policies, especially if citizens, and in fact the government itself, is unaware of what is being imported into the country. In their report, the EFRAC discusses the complicated mess within meat and dairy production. NGOs such as the WWF have urged governments for years to support a decrease of meat and dairy consumption. First, they claim that it is a “wasteful” use of resources: “It takes up to 2.6 kg of feed to produce 1kg of chicken meat, 6.5kg of feed to produce 1kg of pig meat and 7kg of feed to produce 1kg beef.” Continued on page 3

President Obama’s call for restricting some semi-automatic rifles and high-capacity magazines as well as reinstating the federal ban on military-style rifles that expired in 2004 has received mixed reactions. Some predict that he will face strong resistance in the Republicancontrolled House of Representatives, and possibly even in the Democratic-led Senate. !

Chris Huhne MP has been caught up in controversy after ex-wife Vicky Pryce claimed he forced her to take his speeding points Image: David Spender

Megan Jones Following Mr Justice Sweeney’s decision to discharge the jury in the first trial against Vicky Pryce, the exwife of Liberal Democrat MP Chris Huhne, questions have been raised about the role, and perhaps even the future, of the jury system in England and Wales. In a retrial, after the first jury failed to reach a verdict, Pryce was found guilty of perverting the course of justice by taking speeding points in 2003 for Huhne. In 2003, Huhne’s BMW was caught by a speed camera speeding on the M11 as he made his way home from Stansted Airport to Clapham. As he already had nine points on his driving licence, and would therefore face a driving ban if he were given any further points, it is claimed that Pryce falsely informed the police that it was she who was driving the car at the time.

During the initial trial, Pryce accepted that she had taken Huhne’s points, but argued a defence of marital coercion, claiming that he had made her sign a form he had already completed in her name. Whilst this may not seem to be a particularly complex case, the first jury had immense trouble in getting to grips with their role in the trial process. After more than two days of deliberations, the jury submitted ten questions to the judge which strongly suggested that they had little understanding of their purpose. These questions included: “can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?” This question goes to the very heart of the role of a juror. Each juror will have taken an oath or affirmation that he or she will “faithfully

try the defendant and give a true verdict according to the evidence”. Therefore, to misunderstand the juror’s role as a judge of fact based on the evidence presented in court, and that alone, is to misunderstand the very purpose of his or her being in the courtroom. The confusion of the first jury was further evidenced by a question wholly unrelated to the case before them: “would religious conviction be a good enough reason for a wife feeling that she had no choice i.e. she promised to obey her husband in her wedding vows and he had ordered her to do something and she felt she had to obey?” Whilst this is, no doubt, a fascinating legal and philosophical question, which would be ripe for debate and discussion by legal academics and commentators, it had no place in the case as Pryce had not suggested or argued that such reasoning was behind her decision to take the points. Continued on page 3

Christian British Airways employee Nadia Eweida, who claimed she suffered religious discrimination at work over wearing a visible cross, won her case at the European Court of Human Rights. Her Article 9 rights had been violated and the UK was ordered to pay her compensation and costs. !

The question of who owns the fictional character Superman, and the right to make money off the character, has been the subject of ongoing court battles for years. The latest move in the Ninth Circuit Court of Appeals on Jan 10th (U.S.) awarded Warner Bros. (which owns DC comics) the victory.





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The Advocate is a student-run legal newspaper delivering up-to-date legal news and comment. Established in 2004 and sponsored by the Queen Mary Student Pro Bono Group, The Advocate provides a platform for students to express their views on current legal issues.

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EDITORIAL POLICY: Articles over 900 words may not be accepted (pending on subject-matter). The Editorial Board reserves the right to edit all submissions for length, grammar, and clarity. Views illustrated in such submissions are those of the author(s) and not necessarily those of the The Advocate or QMSPBG. All articles must either be submitted in hard-copy bearing a handwritten signature along with an electronic version, or be mailed from the author's e-mail account.

Note from the Editor

Welcome to Issue VII of The Advocate, our last issue of this academic year. We’ve covered some controversial stories, such as the horsemeat scandal and gay marriage, and there’s an interview with a top criminal defence barrister who gives a unique insight into life at the Bar. So hopefully this should prove to be a very informative form of procrastination for when you can’t face any more revision! Happy reading. Lauren Stone, Editor-in-Chief

Myself and Matthew Collins are running the 10k ASICS British 10k Run on the 14th July 2013 on behalf of the charity Refuge. Refuge is a national charity for women and children who experience domestic violence, providing emergency accommodation and emotional and practical support.

The issue of domestic violence has always interested me in the way it is perceived in society as such a taboo. Why should such an important issue be classified as something we cannot openly speak about when it affects so many people? One in four women experience domestic violence in their lifetime. However, it affects people of all ages, cultures and genders. In tackling the issue we as a society have to be able to speak out about domestic violence and the effects it has. This is why I want to run for Refuge, to raise awareness of such an important issue so people feel they are able to stand up and talk about their experiences of domestic violence. Everyone should have the right to feel safe and empowered, and this is why we need to give a voice to the voiceless. Please help me continue the battle against domestic violence and sponsor me today at HannahPaigeFryx

India gang-rape murder: the rights of victims and suspects Jessica Robin Hewlett The highly publicized gangrape murder of a 23-year-old female student has sparked outrage and severe criticism of India's criminal justice system. Since the brutal attack, demonstrators have called for stricter penalties for sexual offences and more accountability of the police when handling similar cases. According to the police, Jyoti Singh Pandey and her fiancé were attacked after being lured onto a bus in New Delhi on 16th December 2012. The six men allegedly drove around the city taking turns raping the victim, assaulting her with an iron rod and beating the male with the same weapon. The victims were then dumped naked on the Pandey subseroadside. quently died 13 days later as a result of massive internal injuries. In response to the outrage, the Indian government established a three-member panel led by ex-Chief Justice JS Verma. The 630-page report of the panel called for a complete overhaul of the criminal justice system in relation to crimes against women. The

committee recommended, amongst other things, a broader definition of sexual offences, faster trials and appeals in cases of crimes against women, longer sentences for those found guilty of rape and the criminalisation of marital rape. The government responded by passing an ordinance on sexual harassment, implementing some elements of the Verma report. Two key demands of women's rights groups, the removal of legal impunity enjoyed by members of the armed forces and the criminalisation of marital rape, however, were not included in the ordinance. The automatic consent of marital sex has remained unchanged since the penal code was first implemented by British colonial rulers in 1862. These developments and Pandey's case highlight the stigmas attached to sexual offences against women in India. Many people, including one of the defence attorneys for the accused, has stated that it was the victim's fault she was raped for being out at night, for her dress, for walking in a poor neighbourhood. Instead of changes to

legislation, one state legislator called for a ban on allowing females to wear skirts as uniforms. Women are often blamed for the sexual crimes committed against them, resulting in only a small percentage of offences being reported. When victims do come forward, they are often coerced by police into settling the issue privately with the accused or dropping their complaint completely to avoid "shame" in their communities. Many police officers blame the rape survivors for such an event taking place. The government has yet to comment on calls from activists for more accountability of police officers in registering complaints. Changing perceptions is not an easy task. The Indian government alone cannot combat the prevailing stereotypes surrounding sexual offences against women. Reform of the penal code, recognising the violation of victims' rights to integrity and dignity, rather than the current violation of "modesty", will assist in changing the nation's mindset. This, coupled with the effective enforcement of law, will hopefully create a

substantial dent in misogynist attitudes. There is however, no quick fix, and any alterations to both legislation and mindset will require diligence and support from the Indian government. For justice to be served there is another fundamental issue that must be addressed; the right to a fair trial. Due to overwhelming outrage and international media attention, a specially convened fasttrack court was established for the trial of the five accused. The sixth suspect, who is 17, will be tried in a juvenile court. In light of the political and international pressure for swift justice, there are strong assertions that the court is conducting itself in direct opposition to the principles of fairness and transparency. Police have had to put together evidence at record speed. With allegations of suspicious activity by the police, there are serious concerns in relation to tampering of evidence and possible physical abuse of the accused to extract a confession. When the suspects went before the court to be formally charged with murder and rape, the local bar

association refused to allow members to represent them. Fearing an uproar as the result of this ban, Magistrate Namrita Aggarwal cleared the court and declared that the trial would be held on camera, effectively shutting out the media and the public. Three men who rushed forward to represent the accused (nonmembers of the association) have spent more time arguing with each other over who is the defence lawyer than putting forth a case. "However wicked and depraved society may perceive a person to be, he deserves a fair trial. He deserves a good defence," said Markandey Katju, a retired judge of the Indian Supreme Court. For justice to be served, suspects must have a transparent, credible, incontestably fair trial; one that sends a definitive message that sexual offences against women will no longer be disregarded or unpunished. Irrespective of public opinion, they must be innocent until proven guilty. Otherwise, any reforms to legislation regarding sexual offences against women will be counterproductive.



Continued from front page Mr Justice Sweeney’s reaction to the jury’s inability to comprehend their role and purpose speaks volumes. He claimed that they had “absolutely fundamental deficits in their understanding” and that he had not, in over thirty years of criminal trials, come across such circumstances. Evidently, the first trial represented a case of serious misunderstanding amongst the jury. However, such cases are thankfully very rare. Hung juries occur in less than 1% of Crown Court cases, and whilst they create an obvious inconvenience, they are an inevitable part of allowing twelve ordinary men and women to decide the verdict of a criminal case. Can we, in all honesty, expect twelve people with different backgrounds, beliefs, principles and morals, to agree on such important matters in every single case? The strength of the jury system, in allowing a cross-section of society to bring their various experiences together to come to a verdict, is also its weakness. However, we should not be too quick to condemn the jury system on the basis of one

trial, in one court, tried, if rather ineptly, by one jury. As Lord Woolf, former Lord Chief Justice, stated on BBC Radio 4’s Today programme: “I certainly would not want to condemn a well tried jury system on the basis of one particular case.” This was supported by Lord MacDonald, former Director of Public Prosecutions, who said that one case should not “knock our faith” in the jury system. It is easy to judge or mock, the initial jury in the first trial of the Pryce case for their apparent complete misunderstanding of their role. Such criticism, however, should not be extrapolated to the wider jury system. One confused jury does not mean that every jury in every court across the land is confused. One discharged jury in London does not mean that every jury in every court must be discharged. Treating the behaviour of the first jury in the Pryce case as indicative of the behaviour of juries in other cases, and acting accordingly, be that by changing the jury system or even disposing of it, would be a case of throwing the baby out with the bathwater.

Huhne and Pryce sentenced to eight months in prison Lauren Stone Following a high-profile trial, former Liberal Democrat MP Chris Huhne and his ex-wife, economist Vicky Pryce, have both been sentenced to eight months in prison for perverting the course of justice. Huhne pleaded guilty and Pryce failed in pleading the defence of marital coercion. Huhne will most likely be sent to Wandsworth whereas Pryce will most likely be sent to Holloway. When sentencing the couple, Mr Justice Sweeney remarked that: “To the extent that anything good has come out of this whole process, it is that now, finally, you have both been

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brought to justice for your joint offence. Any element of tragedy is entirely your own fault.” He also commented that Pryce was motivated by, “an implacable desire for revenge, and with little consideration of the position of your wider family”. It is likely that the couple will only serve around two to four months each; although prison life will be a world away from the comfortable lifestyle the couple have become accustomed to. In an interview with Channel 4, Huhne said that, “the most important message I wanted to get across is really to say sorry to my family, friends, colleagues and constituents.“

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March 2013

Photo: Anthony Albright

introduced where random DNA testing will be made on beef products. There is also a requirement that results from current investigations become available immediately, allowing countries to take direct action in cases of suspicion. This will enable a quicker response from Europol in instances of possible criminal activity. The publication of the European Commission’s report and recommendations on labeling the origin of all processed meat has been accelerated, so that consumers have clearer and more reliable information onproduct origination. Is there a case for reform? I believe so. The changes being made within the EU are only temporary. After the three months of DNA checks, we are again at the mercy of a system that allowed horsemeat into the country in the first place! Ultimately, we as consumers have lost trust in our suppliers, and worse yet, we have lost trust in the instruments and institutions implemented to keep these suppliers in check. Regular DNA-testing and health checks at the UK border would hinder suppliers that are temped to change labels. They would also give States a better idea of what is being imported into the country and leave consumers assured that what they buy is what they chose to buy. It is important that we as consumers do not forget our role in this market. Our choices have direct consequences upon it and we are the ones laying down these rules by consciously making decisions, without consideration to the many aspects that are at play. By demanding cheaper meat we have pushed suppliers to make choices that, inevitably, lead to issues of health, animal welfare and clearly unsustainable environmental policies. Furthermore, one would argue for increased government initiatives in relation to meat and dairy production, providing the public with tools to make responsible and informative decisions.

Continued from front page Putting it simply, people would be more efficiently fed if these feeds were used for direct human consumption. This is interconnected with the second issue, namely environmental concerns. Livestock currently accounts for 18% of gas emissions, including the changes brought on by landuse. Deforestation is a major issue, urged on by the need to expand pastures and cultivable land for feeding crops. Thirdly, there is the obvious concern for animal welfare, which is strongly dependent upon the increasing demand for meat at affordable prices. Keeping animals in small spaces, restricting their exercise, feeding and killing them within 40 days would be energy efficient. This would mean cheaper production, allowing farmers to meet the demand for meat at affordable prices. However, it is clear that those affordable prices come at a cost. So, how did horsemeat end up in the UK food market labeled as beef? In the case of Findus frozen meals, Findus places an order for beef lasagne to the French Comigel HQ, who turns to its subsidiary Tavolta in Luxembourg to make the dishes. The meat for the dishes is provided by the French Maison Spanghero, who receives its meat from a Romanian abattoir. It has been confirmed that the horsemeat left Romania correctly labeled. At the moment, neither Spanghero or Tavolta are willing to accept responsibility. According to Iulian

Cazacut, the General Manager and owner of the abattoir in Romania, anyone working in the meat industry would be able to tell the difference between horse or beef. Not only is the taste different, but due to unalike muscle fibre, the meats also look distinctly different. Consequently, a conclusion has been drawn that the mislabeling was made either with the wrong intentions or grossly negligently. Current legislation does not require food transported within the EU to be subject to any custom checks. The goods must however follow EU regulations concerning food labeling and packing (e.g. clear and non-misleading labeling) and food safety (e.g. safe for consumption). As for labeling of products, there are no requirements that meat from within the EU must be labeled with the country of origin. These regulations, or lack thereof, are what has contributed to the current scandal we face today. The government has been fast in claiming innocence in the case, and true enough, they are guilty of no crime. However, are today’s regulations sufficient to ensure the protection and transparency of our food chain that we expect from our elected representatives? According to Secretary of State for Environment, Food and Rural Affairs (DEFRA) Owen Paterson, changes are being made following the meeting held with EU representatives on 13th February as a result of the scandal. A three-month program is being

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Speak now or forever hold your peace Is the UK ready to commit to gay marriage? Megan Jones On the 5th February 2013 the UK took a significant step towards the legalisation of same-sex marriage. The Marriage (Same Sex Couples) Bill was passed by 400 votes to 175 at its second reading. This is undoubtedly a welcome development for equality in the UK, and a sign that attitudes towards the LGBT community are slowly, but surely, changing for the better. For too long same-sex couples and their rights have been largely ignored by the state. Even the passing of the Civil Partnership Act in 2004, allowing same-sex couples to enter a civil partnership, only emphasised the difference in treatment between same-sex couples and heterosexual couples. Same-sex couples were expected to be grateful for the crumbs left for them by those feasting at the wedding banquet. Soon, hopefully, samesex couples will be able to enjoy all the rights that heterosexual couples have been free to enjoy for centuries, and will at long last be allowed to marry. However, it is still far too early to book the venue, order the flowers or buy the wedding cake. Despite the bill passing with a substantial majority, it must now go to the committee stage, report stage and receive a third reading in the House of Commons, before moving to the House of Lords, and if all goes well, entering the statute book. Whilst the Marriage (Same Sex Couples) Bill was passed by a not unsubstantial majority of 225, it faced considerable opposition from Conservative MPs, despite being tabled by the Coalition government and being expressly supported by the Prime Minister. The voting figures show that 136 Conservative MPs of the 303 sitting in the House of Commons, voted against the bill, whilst approximately another 40 Conservative MPs either did not vote or actively abstained. This strong opposition to same-sex marriage amongst some Conservatives MPs was clear from the tone of the debate which took place before the vote. Tim Loughton, Conservative MP for East Worthing and Shoreham said: “Who are we, this government or this country, to rede-

fine the term marriage that has meant one man and one woman across cultures, across ages, across geographical barriers since before state and religion themselves?” Whilst Sir Gerald Howarth, Conservative MP for Aldeshot said: “I believe that marriage can only be between a man and a woman and I shall not surrender my principles. I believe this bill is wrong, the consultation process was a complete sham, it is opposed by the established church, it has caused deep and needless divisions within the Conservative party, there is no mandate for it, there are huge potential consequences, not least the prospect of endless legal challenge.” These speeches show a reluctance to embrace recent changes in social attitudes, and perhaps more importantly show that a large number of Conservative MPs are out of touch and old-fashioned. This inability to come to terms with change and adapt to developments was explained by Minister for the Cabinet Office and Conservative MP, Francis Maude who said: “sometimes part of the Conservative party move but they move more slowly, or a few paces behind the centre of gravity of social attitudes which have changed and will probably continue to change in ways that is hard to predict. But we get there, maybe at different speeds.” It is doubtless better to get to the end destination late, rather than never to get there at all. It is nonetheless galling to expect same-sex couples to wait patiently for some Conservative MPs to catch up with the rest of society. After all, same-sex couples have already had to wait for far too long to enjoy the same rights as heterosexual couples. However, all Conservative MPs should not be tarred with the same brush. Mike Freer, Conservative MP for Finchley and Golders Green spoke passionately in favour of the Marriage (Same Sex Couples) Bill and said, “I say to my colleagues that I sit alongside them in committee, in the bars and in the tea room, and I queue alongside them in the division lobby. But when it comes to marriage, they are asking me to stand apart and to join a

March 2013

Fame, fortune and lawsuits

Vladimir Yaitskiy

separate queue. I ask my colleagues, if I am equal in the house, to give me every opportunity to be equal.” This emphasis on equality was also reflected in the speech of David Lammy, Labour MP for Tottenham: “let me speak frankly: separate but equal is a fraud. It is the language that tried to push Rosa Parks to the back of the bus. It is the motif that determined that black and white people could not possibly drink from the same water fountain, eat at the same table or use the same toilets.” This is the crux of the matter. Being treated differently under a veneer of equality is still inequality. Until same-sex couples have the option of marrying, rather than merely entering into a civil partnership, they will still be treated unfairly and unequally by the state. Whilst it may not please a proportion of the population to treat same-sex couples equally, there is a growing movement for the recognition of the equal rights of same-sex couples. A little over a week after the vote in favour of passing the equal marriage bill in the House of Commons, on February 13th, France’s National Assembly approved a measure allowing same-sex couples to marry. This measure must be approved by the Senate before coming into force, but as the Senate is dominated by Francois Hollande’s Socialist party and their allies, it is very likely that it will become law by May or June. It is clear, both from the vote in the House of Commons and the similar vote in the National Assembly, that social attitudes towards samesex marriage have changed, and that at long last, politicians are reacting to this change, and, willingly or unwillingly, embracing it. However, until we see the first same-sex marriage in the UK, there is still a long way to go.

Paris Hilton registered her catch phrase “that’s hot” as a trademark Photo: Eva Rinaldi Celebrity and Live Music Photographer

Stacee Smith On Tuesday, January 22nd 2013 the Queen Mary Centre for Commercial Law Studies hosted an intellectual property guest lecture on ‘Publicity Rights and Celebrity Licenses in the U.S’ at the Charterhouse Square Campus. Despite my limited knowledge of intellectual property law, having not studied the subject, the event seemed too intriguing to miss! My instincts were definitely correct. The guest lecturer was Mr. Gary J. Rinkerman, partner at Drinker Biddle & Reath LLP in Washington D.C. He specialises in intellectual property law and has an immensely broad scope of experience and expertise. To give you an idea of his accomplishments, he is former Senior Investigative Attorney at the United States

International Trade Commission and he provides legal services in areas ranging from entertainment and retail systems to Internet services and medical equipment. Mr. Rinkerman discussed cases regarding well-known celebrities, adding sprinkles of humour to his presentation from time to time. His visual and audio aids helped to paint a clear picture of the relevant legal issues. Titled ‘U.S. Rights of Publicity: Origins, Applications & Prospects - From Edison to Elvis to Paris and Every 15 Minutes in Between’, his PowerPoint presentation began with a look at Mark Twain. Twain was widely associated with cigar smoking and was therefore featured on cigar boxes in the late 1800s and early 1900s, as well as other consumer goods. Continued on page 5




Continued from page 4 This early recognition of the value of celebrity endorsement only expanded with the invention of the camera, necessitating the U.S. Copyright Act to extend to photographs in 1865. Photography and new image printing methods meant there were increased celebrity merchandising opportunities as well as opportunities to exploit non-celebrity images on a large scale. It became common for illustrated publications such as ‘Harper’s Weekly’ to find their place in many households within the U.S. The portability of photographic equipment and inconspicuous product designs such as the ‘detective camera’, ‘watch camera’, ‘concealed vest camera’, ‘book camera’ and the ‘deceptive angle graphic camera’ quickly led to a concern for the protection of human dignity and privacy. The invasive and pervasive nature of technology made it increasingly important for the common law to protect individuals from unwanted intru-

sions on their private life. A plethora of intellectual property issues continued to develop over the years, creating a broad range of case law on the topic. Questions about what features constitute protectable identity such as a person’s name, likeness or physical appearance, how long the right of publicity lasts and whether the right is transferable or descendible surfaced. On the flip side, the First Amendment to the Constitution of the United States, which establishes a right to freedom of speech, had to be upheld. The term ‘right to privacy’ became a ‘right of publicity’ in the 1953 case of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. where it was recognised that, contrary to any strong dislike for such exposure, many celebrities actually relish opportunities to receive money for authorising various advertisements. Therefore, a right of publicity was created that would enable them to gain financially through an exclusive grant which prevented any other

advertiser from using their pictures, for example. The case of Hirsch v. S.C. Johnson & Son (1979) involved the use of a famous U.S. football player’s nickname ‘crazy legs’ on a Johnson & Son women’s shaving gel product. It was established that it does not need to be a person’s actual name that is wrongly used for there to be a cause of action. All that is required is for the name to clearly identify the wronged person. We learned that the time period permitted for statutory post mortem rights of publicity vary from state to state, and that such a right does not exist in the UK. We were also informed that the extension of the First Amendment to the U.S. began with the case of Gitlow v. New York (1925). Mr. Rinkerman continued with a number of other cases, one of which involved the music group ‘Outkast’ and the civil rights icon Rosa Parks. Parks did not appreciate the fact that a song, laced with obscene lyrics on their ‘Aquemini’ album, was titled ‘Rosa Parks’.

March 2013 In this 2003 case (Parks v. LaFace Records), the issue was whether unauthorised third-party use of an individual’s name in connection with a third party’s artistic work was legitimate or merely an attempt to capitalise on the fame or commercial value of the name. If it was not legitimate and did not reflect something about the work’s actual content, then Parks’ rights of publicity claim could trump an artistic freedom of expression defence. On April 14th 2005 the suit was settled, with Outkast, their producer and record labels paying Parks an undisclosed cash settlement and agreeing to work with the Rosa and Raymond Parks Institute for Self Development in creating educational programmes about the life of Rosa Parks. The case of Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) established a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be

transformed into something more than a mere celebrity likeness or imitation. It was held that ‘Three Stooges’ t-shirt images did not contain a transformative element sufficient to defeat the Three Stooges right of publicity. Celebrity heiress and socialite Paris Hilton registered her catch phrase “that’s hot” as a trademark with the United States Patent & Trademark Office. As a result, when Hallmark Cards used the phrase and her image on a card she sued for, inter alia, violation of her right of publicity. In response, Hallmark argued that Hilton was improperly trying to stifle their freedom of speech. However, Hilton won the case (Hilton v. Hallmark Cards, 2009.) Mr. Rinkerman concluded the evening with an outline of the 1993 Proposal of the Subcommittee on Right of Publicity International Trademark Association (INTA). Following that there were chuckles in response to his final slide that was titled “THE ‘BIG FINISH!’ SLIDE”.

When, if ever, should the ordinary demands of a fair trial give way to the needs of national security by the use of a closed material procedure? Charlotte Seymour ‘When, if ever, should the ordinary demands of a fair trial give way to the needs of national security by the use of a closed material procedure?’ The fair trial is prized, at least in theory. It is advocated by those with even the slimmest conception of the rule of law that fair trials are essential if the law is to reign supreme. The rule of law has long been regarded as a critical pillar of the UK constitution. It is not an exaggeration to say, then, that an individual’s right to a fair trial lies at the heart of our constitution. While the fair trial is rarely defined per se, according to Lord Bingham there are three principles of fairness that apply to all proceedings. There must be ‘equality of arms’, judicial independence, and acceptance of the fact that the concept is ‘evolving’. Today the most notable legal guardians of the fair trial are the common law rules of natural justice and Article 6 of the European Convention on Human Rights (ECHR). The Justice and Security Bill 2012-13 (JSB) threatens the conduct of fair hearings by

proposing the introduction of closed material procedures (CMPs) into civil proceedings. A CMP can currently be adopted in just a handful of legal contexts, such as immigration and employment tribunals. Under this procedure, where the disclosure of certain material to a party to proceedings would be ‘contrary to the public interest’, the material is retained as evidence, but the proceedings are split into a closed session and an open session. The closed session, where the ‘closed material’ is presented, is held in the absence of one of the parties and their legal representatives. The excluded party’s interests may be represented by a security cleared lawyer or ‘special advocate’. Evidently, many of the ‘ordinary demands’ of a fair trial cannot survive under a CMP. These include a party’s right to know the case against them, to present their own case in rebuttal, and to know the basis for a judicial decision. Contrary to what the government suggests, CMPs are rarely used in response to the ‘needs of national security’. Under the existing common law procedure of ‘public inter-

est immunity’, where there is a public interest in the nondisclosure of material, it will not be disclosed and will be omitted from proceedings. The role of a CMP is to enable one party to use material in proceedings without disclosing it to the other party. The government has argued that CMPs may “benefit the interests of justice”. CMPs do not reduce the risk of miscarriages of justice however, but actually increase it. Even if a party is represented by a special advocate in the closed session, this lawyer is unable to challenge material effectively. The special advocate cannot realistically call on evidence to counter the claims of the closed evidence and has only limited contact with the person they are representing. This is no small matter. Lord Macdonald cites his experience of seeing seemingly “persuasive, truthful and accurate” evidence ‘disintegrating’ under properly conducted cross-examination. Lord Kerr warns that “untested evidence” may “positively mislead”. The government contends that the inability to draw on a CMP may itself be a source of

unfairness. This is where sensitive material would be likely to have an impact on the determination of civil proceedings. Where the claimant is the party that wants to make use of sensitive material, the case may be struck out or some of the material excluded. The status quo is arguably more unfair on the defendant, who has no power to withdraw from proceedings. If the case is not dropped or struck out, the party may either defend itself without reference to the material, or settle the case because it is unwilling to do so. This unfairness must nevertheless be balanced against the inherent unfairness of the proposed ‘solution’. Arguably a CMP would be less objectionable if the claimant party opts for it in preference to the case being struck out. With regards to the defendant, it is vital that the court understands when the exclusion of material is to their serious disadvantage, and in such a situation, the balance of fairness would be best served not by invoking a CMP, however, but by striking the case out. Trials which make use of CMPs are unfair and are less

likely to see justice done. Public interest immunity may be a sufficient safeguard against the disclosure of damaging material. Where the loss of a case by the government has national security implications and the use of a CMP reduces the risk of loss, the fact remains that an innocent individual could be stripped of basic liberties on the basis of unreliable evidence which they have no opportunity to contest. CMPs may appear to address some procedural unfairness at no great cost where the excluded party desires their use. However, the party may not be able to anticipate the impact that this will have on his or her case. Crucially, where a trial adopts a CMP, it departs radically from our system of adversarial justice, with one party left ignorant and impotent. A CMP could only ever be justified in response to a situation of even graver unfairness. Yet, to quote the special advocates, “in our view, none exists”. This is an extract from the essay that won Charlotte the recent ‘Blackstone Chambers Essay Competition’ conducted in partnership with Queen Mary Student Bar Society.




March 2013

Queen Mary Pro Bono

Ghana 1 placement

South Afri 1 placeme

Natasha Mehta Manager, Commonwealth and International Department, Queen Mary Pro Bono Society. The Commonwealth Department is a thriving venture in the Queen Mary Pro Bono Society. The aim of this department is to encourage students to get involved in pro bono work in an international setting, in order to gain a better understanding of interna-

tional legal systems from countries with diverse social, political and economic backgrounds. The School of Law has given valuable support to this scheme by providing bursaries towards travel costs. The Society currently has five placements across the Commonwealth Member States. The earliest liaison was with Projects Abroad for placements in Ghana and South Africa. Our partnership with The

Law Society of Singapore was established in October 2011 and students began volunteering in July 2012. Following a positive reflection of our initiative by last year participants, Mercedes Chiabotti and Christina Wan, the Law Society of Singapore doubled the range and number of placements offered. In the summer of 2013, two additional placements will be offered to our members. David Boyd, a participant in the Ghana placement in 2012, following this placement has

now set up a project on his own initiative called ‘Energy for Old Fadama’. This project aims to provide the urban slum of Old Fadama in Accra, Ghana with a sustainable, cost efficient solution to the complex problem of the distribution of electricity from a legitimate source to residents of slums. Amrit Dhanoa, who attended the South African placement in 2012, described her experience as, “extremely insightful and enjoyable. I was able to meet people from

all over the world, and working at the Human Rights Office enabled me to further enhance my interest in Human Rights, whilst allowing me to see it being used in practice”. This year the Commonwealth team is proud to bring two more countries into this initiative. We have formed a liaison with DLA Piper in Sydney, Australia to offer two students the opportunity of three-week summer placements and with ALMT Legal, Advocates and




Group goes global

March 2013

News Briefs Julie Taymor, the ousted co-writer and director of the Broadway musical ‘Spider Man: Turn off The Dark’, sued producers Michael Cohl and Jeremiah J. Harris in November 2011. Her lawsuit, which continues, claims copyright infringement and demands a seven-figure sum in damages, in addition to past and future royalties. !

South African double-amputee Olympic and Paralympic sprinter Oscar Pistorius, who faces murder charges over the fatal shooting of his girlfriend, was granted bail on 22nd February after a four-day hearing. Pistorius denies murder, saying he shot Reeva Steenkamp thinking she was an intruder at his home. !

Bombay 2 placements

The Supreme Court has ruled that the principle of vicarious liability covers organisations, such as churches and charities, that depend on volunteers. It has been speculated that this could impact on the liability of churches for the behaviour of priests that has come to public attention in a series of high profile scandals. !

Singapore 4 placements

The police have ordered social media websites such as Facebook, Google and Twitter to remove photographs purporting to show one of the killers of Jamie Bulger, Jon Venables. Venables was given a new identity after being released from prison for the murder of toddler Jamie Bulger. Attorney General Dominic Grieve has threatened to bring contempt proceedings against any websites publishing the photographs. !

ica ent

Sydney 2 placements

Solicitors in Bombay, India to offer two fortnight placements in the months of July and August.

“To work in a different jurisdiction and explore a new culture is a great experience as well as a superb addition to your CV” As we are continuously try-

ing to expand our reach, the focus of our research this year was on Hong Kong and Canada, two countries we are trying to liaise with for future students. The department has also formed a link with Pinsent Masons, for international placements in Qatar. In two years, this department has exceeded its goals and has been the flagship policy of Phil Mutton, President of the QM Pro Bono Society, who said, “There has been a lot of dedicated work behind the

scenes to achieve these placements, but it is great to be able to offer such an exciting range of opportunities. To work in a different legal jurisdiction and explore a new culture is a great experience as well as a superb addition to your CV. More importantly we have raised awareness of the Commonwealth’s wonderful ethos and put it at the heart of the Queen Mary Law faculty”. The Commonwealth Department is also committed to ensuring a series of bursaries are available to students in as-

sisting them with travel costs. This reflects the Pro Bono Society’s commitment to promoting our members’ futures on the principle of merit, irrespective of background and financial circumstances. It has been a pleasure to manage this department over the academic year and I hope this legacy will continuously endeavour to liaise with several other Commonwealth nations in order to secure more placements thus developing the department in its true sense for our members.

! A soldier has admitted to leaking information to Wikileaks about his experience in the US military. Bradley Manning, 25, faces a life in military custody. He said the American people had a right to know the “true costs of war” after witnessing the “bloodlust” of US forces in Baghdad.

Eastenders actress Jessie Wallace received damages in an action against Reveal magazine after they alleged that she had deliberately snubbed her co-star Letitia Dean. The magazine admitted the allegations were untrue and apologised in a statement read out in the High Court. !




March 2013

Is anti-Semitism still a problem in society?

Anna Freund

World War and the Holocaust in schools in order to give children an understanding of the consequences that radical racism can have. It is without question much more difficult to convince already prejudiced children that racism in general and antiSemitism in particular is wrong, than children who are unprejudiced. Therefore, the teaching of Jewish history should be started as early as possible because, if it begins in elementary school, it is more likely to prevent prejudices occurring and therefore prevent anti-Semitism. The problem with this solution is that the parents are excluded and they have the main influence on their children‘s education. This links this solution to the second possible approach; the education of the public. Several organisations commit themselves to the topic of minimising or preventing anti-Semitism. For instance, The International Institute for Education and Research on Anti-Semitism offers talks and presentations about past and current issues. The Institute takes the Kreuzberg Initiative against Anti-Semitism (KIgA), which is also partly supported by the German Ministry of Youth and Family, as a positive example of co-operation. The KIgA operates in two areas: education and research.

In the first area, it focuses on schools and youth centres and tries to educate the pupils in Jewish history. In workshops, it deals with “various aspects of anti-Semitism” such as “conspiracy theories” or “myths about the foundation of the state of Israel”. As we are living in the age of the Internet, online platforms and archives of Jewish history are a good approach to address a wide public. Several websites provide a huge amount of information about the Holocaust such as the Holocaust Education Resources website. The problem with the approach to educating the public is indubitably that the public must show an interest in the topic. Not only is education important but also governmental support is essential in order to prevent anti-Semitism. It is important that the government works with other countries in order to exchange information and possible solutions to anti-Semitism. Abraham H. Foxman, ADL National Director said in a press release in April 2003: "We are confident that through vigilance, security and deterrence, the governments of France and Germany will be able to ensure the future safety of their Jewish citizens”. In the same press release, the German Minister of Inte-

rior Otto Schily said that: “Germany continues to provide a high level of security for Jewish community institutions and Jews.” This can help to ensure the safety of the Jewish Community living there. The Parliamentary Committee against Anti-Semitism suggests the use of the Metropolitan Police Model in the United Kingdom to guarantee the safety of the Jewish community. Safety is of course essential for all citizens of the United Kingdom and should be guaranteed for all, which the government tries to guarantee for example with the use of CCTV. Anti-Semitism is therefore still a very current problem and hard to tackle as it occurs in many different forms. Several approaches are necessary and in particular education presents one of the most important fields in which action can be carried out. The government’s task is firstly to ensure the security of the Jewish population and then to invest in various forms of education to prevent this form of racism. Education must start with the younger generation because children are likely to be less prejudiced. It can be shown that by interacting with other children from different backgrounds, children become more openminded later on and develop a better understanding of other cultures.

Nawal El- Saadawi and a life of oppression

Prison’ on a toilet paper roll using eyebrow pencil which she been smuggled into her cell from a young woman from another cell. After she was released from prison, El-Saadawi found The Arab Women’s Solidarity Association, however, not too long after this, the government issued a decree to close it down. However, ElSaadawi did not give in to the radical fundamentalists, who tried to subsequently break her marriage. More shockingly, her life was threatened in 1988 when Islamists put her name on a death list, forcing her to flee from Egypt. She continued to educate others, and began to teach in North Carolina as well as Seattle. Today, El-Saadawi continues to express her views, and she was amongst the protesters in Tahrir Square in 2011. Although El-Saadawi presently lives in Egypt, it remains to be seen what the future holds for her in the newly Islamist Egypt.

Anti-Semitism is still very prevalent in society and omnipresent in the media. With the increasing success of extreme right-wing parties within Europe, it is obvious that racism is a current problem in Europe. As William Irvine remarks, anti-Semitism has changed and is nowadays a “struggle against a race” and no longer solely connected to wealth or religion. Anti-Semitism is a very complex form of racism and the issue of anti-Semitism is itself complex, as it is connected to the history of Europe. Germany, Austria and France in particular have faced many problems connected to antiSemitism in the last few years, but anti-Semitism is also present in the United Kingdom. According to the census of 2001, the Jewish population of the United Kingdom comprises of approximately 267,000 people. It is assumed that the share of Jewish population in the United Kingdom is decreasing and in 2006, Rabbi Adin Steinsaltz even talked about the “extinction” of the British Jewish community. For him, this decline is a result of two causes: firstly, problems of assimilation and secondly, intermarriage. Perhaps a more obvious reason for the decline of the British

Khalif P “Writing: such has been my crime ever since I was a small child. To this day writing remains my crime. Now, although I am out of prison, I continue to live inside a prison of another sort, one without steel bars. For the technology of oppression and might without justice has become more advanced, and the fetters imposed on mind and body have become invisible. The most dangerous shackles are the invisible ones, because they deceive people into believing they are free.” Nawal El-Saadawi, an Egyptian radical feminist and activist, was born in 1931 in the small village of Kafr Tahla. Today, El-Saadawi continues to heavily criticise the Arab world and patriarchal society and has written several books focusing on women in Islam. However, many do not know El-Saadawi’s own story.

Jewish population is the rise of anti-Semitic incidents within the United Kingdom. CST, a British organisation aiming to protect the Jewish community, recorded 924 antiSemitic incidents in 2009 and according to their homepage this is the “highest annual total” since they started recording incidents of antiSemitism in 1984. According to its Anti-Semitic Incidents Report 2009, the organisation recorded the most attacks dealing with violence in the last year. Furthermore, it also links the number of anti-Semitic incidents with political events in the Middle East and remarks that political motivation is still an important reason. The increase in anti-Semitic incidences demands a solution to the problem of antiSemitism, in order to prevent the creation and distribution of this form of racism. It is important to consider that antiSemitism affects the whole of society and therefore every part of society should be included in the process of minimising or preventing it. The approaches to the problem can be divided into two main categories: educational solutions, and solutions connected to the government. The first solution is simply the teaching of Jewish history in schools. It is essential to introduce education of the Second

This writer has experienced exile, imprisonment and death threats, but continues to advocate her radical views. El-Saadawi grew up in a traditional and conservative Egyptian family. However, ElSaadawi was not one to follow tradition. She resisted becoming a child bride by blackening her teeth and spilling coffee over a potential husband. Interestingly enough, her father was progressive, and encouraged his children to speak their mind. He especially insisted that his sons and daughters be educated, due to the fact that in those times women suffered from oppressive traditions, persecution and many other social and political pressures. Nawal El-Saadawi graduated from the Cairo University Madison College in 1954, and later got a permit in Medicine from the University of Columbia in the United

States, specialising in the field of respiratory diseases. Through her education and career, she especially observed the physical and psychological problems that women faced due to oppressive cultures and traditions.

Photo: Duke Human Rights Center

When working in her rural birth town of Kafr Tahla, she especially observed the oppression of women. ElSaadawi was herself circumcised and raped at a young age.

As a result of her literary and scientific writings, ElSaadawi lost her job as a doctor in the Egyptian Ministry of Health, especially due to publishing her book ‘Women and Gender’ in 1972. Religious and political authorities saw her views as controversial and extremely dangerous. In some chapters, she particularly talked about prevailing taboos, including female genital mutilation. Furthermore, she linked sexual problems to political oppression. Moreover, in the period of the former Egyptian President, Anwar Al-Sadat, she was again imprisoned as a result of her views and her writings in 1981. While El-Saadawi was subsequently held at Qanatir Women’s Prison, she continued to write and defend women’s rights as well as intellectual and social freedom. In prison, in 1983, she wrote ‘Memoirs from the Women’s




Fashion v The Law Stacee Smith Fashion and law collided at the ‘Fashion and Intellectual Property Rights: Past and Present’ conference on the 20th February 2013. The event, hosted by The Centre for Commercial Law Studies, was held at the Charterhouse Square campus. I arrived with my girly instincts bubbling and a sense of eagerness to learn about the integral link between the legal field and such a vibrantly creative industry. The keynote speaker was Professor Susan Scafidi of Fordham University School of Law (New York City). A graduate of Duke University, Yale Law School, Berkeley and the University of Chicago, Professor Scafidi is an expert in a wide range of areas including intellectual property, legal history and international law. She is both founder and director of the non-profit Fashion Law Institute, which is located at Fordham Law School. The Institute was established with the support and advice of the Council of Fashion Designers of America and its president, Diane von Furstenberg. Professor Scafidi also created and maintains the first website on fashion law ‘Counterfeit Chic’, which has been recognized as one of the American Bar Association’s top 100 blogs. At the conference Professor Scafidi spoke about “re-fashioning intellectual property” and provided a global perspective on the industry. She introduced the subject with visual images of style icons Victoria Beckham, Michelle Obama, Carolyn BessetteKennedy and Kate Middleton, each wearing elegant dresses that were illegally copied by so-called ‘knock off artists’. Mrs. Scafidi explained that the repetitive production of copies due to the success of one knock off artist is a difficult problem that has been going on for centuries. To give some background on the issue, she told us about the first couturier, Charles Frederick Worth of France. In the 1850s he developed a business model that provided a season’s worth of dresses that were ordered in advance and tailor made specifically for each client. This was revolutionary because the collection was shown first and ordered later, rather than a single designer supplying clothing for a par-

ticular household, as was previously common. Worth’s new model therefore meant that not only would clients see his designs in advance, but potential knock-off artists would as well. Presently there are various international laws that protect different forms of intellectual property including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Berne Convention, patents, trademarks, copyrights and designs. However, whilst there is protection for some areas of fashion, it does not cover fashion design as a whole. In fact, France is the only country that offers full copyright protection to fashion. Since the 1700s there was textile protection and the law evolved to cover manufactured garments as well. Many other countries have followed the French lead, giving protection under the category of ‘designs’ including the UK since the late 1980s and the EU. However, there is a weak level of patent protection in countries like the U.S., particularly for the garments themselves. Due to the global nature of the fashion industry, designers, fashion houses and giant fashion companies have various methods of responding to the inconsistent level of international protection. These include enlisting the services of lawyers, stretching existing intellectual property law to cover the relevant issue and attempting to secure more effective legal protection via the courts and legislature. In fact, Professor Scafidi has herself testified regarding the proposed extension of legal protection to fashion designs and she works actively with members of Congress and the fashion industry on this very issue. Some designers have also developed their own methods of protection by developing techniques that would be hard to copy, sending messages through the media (such as the ‘Sex and the City’ episode regarding a fake Fendi bag) and by re-producing their own brand in various forms. Giorgio Armani adopted the latter method by creating different sub-labels including ‘Armani Collezioni’, ‘Emporio Armani’ and ‘A/X Armani Exchange’. In the words of Professor Scafidi “he was knocking himself off” because his suc-

cess had provided the resources to do so. Another method, although not effective in all jurisdictions, is to put logos outside rather than inside of designs and to use a unique and recognisable trademark that automatically brings the company to mind. The red soles of Christian Louboutin shoes are an example of this approach. One might wonder why there is such limited protection of fashion designs, unlike fine arts and many other creative industries. Professor Scafidi said there are various cultural and historical biases that are to blame, including those relating to gender, consumer social classes, race and ethnicity and a view that there exists high versus low art forms, with fashion being on the lower spectrum. There are

March 2013 only few countries that actually make fashion part of their national ethos she said, which is also a hindrance. On a positive note however, these negative attitudes are changing for the better. There is a declining cultural bias, which has influenced celebrities who now want to be designers and even children are growing up dreaming about a career in fashion. As a result of the manner through which the fashion industry has evolved it is no longer possible to be a huge success and remain in your home market. As a result Professor Scafidi stressed the importance of international legal harmonisation. New technologies, changes in the locus of production and the existence of creativity at all price points have also made this a pressing issue. It is becoming increasingly common for emerging designers to suffer whilst corporate design pirates and counterfeiters bene-

fit. After a tremendously insightful overview of the legal issues within the fashion industry, Professor Scafidi concluded her presentation on a lighthearted note: “And finally, I just think fashion designers should be able to reap what they sew.” Also speaking at the event were Queen Mary Professors Uma Suthersanen, Dr. Noam Shemtov, and King’s College Professor Evelyn Welch. Professor Welch elaborated on the historical origins of complex fashion law in early modern Europe, proving that the desire to know that you’re wearing something that is not only of quality but has also been worn by prominent individuals is not a new phenomenon. The speeches given by the aforementioned Professors included a range of trademark issues and interesting case law such as Louboutin v Yves Saint Laurent and Louboutin v Zara.

Christian Louboutin have previously been at the centre of a legal battle over the rights to the distinctive red sole of their shoes Photo: foeoc kannilc




March 2013

“Barristers are hard working, competitive people who are driven by the adrenaline rush when you stand up in court, properly prepared, and the adrenaline rush when you win.” The Advocate meets criminal defence barrister Mark Harries of Carmelite Chambers to talk about becoming a barrister, barriers to legal aid and the duty of law students to get involved in pro bono work. Lauren Stone The grand building that is Carmelite Chambers, with its picturesque views of the Thames, is a million miles away from the hustle and bustle of Mile End. Yet, that is exactly where barrister Mark Harries embarked upon his legal career as an undergraduate at Queen Mary. Harries specialises in criminal defence work and is ranked by the Chambers & Partners Directory as a Leading Junior both in Crime and in Fraud. Harries talks me through the defining moment that led him to set his sights on a career at the Bar. He didn’t do any law at school, but says he wanted to come to the Bar ever since reading a book about Edward Marshall Hall. (Edward Marshall Hall, known as ‘The Great Defender’, was a criminal defence barrister in the late nineteenth and early twentieth century.) It is clear that Marshall Hall had quite an impact on Harries. “He was extraordinary because he was so theatrical and so dramatic. Of course back then there was no TV, so criminal cases were the source of everybody’s soap opera hit.” Although, Harries was not convinced whether this theatrical style of advocacy is likely to make a return. “Some juries warm to it, some might even expect it, but you have to be adaptable in your advocacy style depending on the case and the evidence” Harries comments that there is a lot more restraint now, but he was keen to point out that this doesn’t mean a barrister can’t make a closing speech with passion or humour or charm as long as it’s the right case. He grins and adds, “I don’t think I’ll ever resort to blowing up a whoopee cushion or knocking over a carafe of water as a distraction, which is the sort of thing he did”. Giving me a brief account of his journey to the Bar, Harries explains how he went straight from school to Queen Mary. He describes with genuine enthusiasm his love of living in London as a student, labelling it as “right at the

heart of the criminal epicentre of the legal world.” However, where the law really came to life for Harries was at Bar school, which he describes as unquestionably the best year of his educational life. It was participating in cross-examinations, writing closing speeches and running mock trials that confirmed Harries’ aspiration to become a barrister. After finishing bar school, Harries went straight into tenancy after a pupillage with 6 Gray’s Inn Square and spent four years building a practice. In 1999 he moved to Carmelite Chambers and is now approaching 17 years call. Distinguishing between a career as a barrister or a solicitor can be tough for some students starting out in law. However, for Harries the choice was always clear. He tells me, with an infectious enthusiasm, how he wanted to be a courtroom lawyer, wear the wig and gown and defend the indefensible. Harries makes an amusing but surprisingly accurate analogy with bounty hunting, as a “dirty job that everybody hates you for” and asks ‘how can you represent someone you know is guilty?’ To which his reply is, “you never know and it’s not for me to judge”.

“To have an innocent person unrepresented is a shocking thing and that’s why I came to the Bar, to represent people who needed a voice on their behalf” He acknowledges that as a barrister you sometimes have to present unpalatable cases and causes that are unpopular with the general public, but that you do it because if you don’t no one else will. “One of the worst things I can think of is somebody who is innocent who finds that what they’ve been accused off is so heinous or unattractive that nobody represents them. To have an innocent person unrepresented is a shocking

thing and that’s why I came to the Bar, to represent people who needed a voice on their behalf.” It is clear that Harries has a fierce passion for what he does. It is not some grandiose claim lacking in any substance, but a genuine desire to defend the underdog.

“Pro bono work is a civic responsibility that we have, and I think if we don’t do it we should be ashamed of ourselves.” This right to representation is one that is currently under threat by the enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LAPSO). The continuous cuts to legal aid and their implications for justice have been a source of great unease for Harries. “The more you cut legal aid rates, the less quality you’re going to get at those areas of the Bar, because these people are going to be enchanted by the money they can earn elsewhere.” He suspects that over the last four or five years criminal barristers’ fees have suffered cuts of up to 40% in some areas and that a junior member of the Bar might average £20,000 to £30,000 in his first few years. Harries is clearly concerned about the impact of these cuts on access to justice. He insists that cuts to legal aid are unjustifiable and that it will mean innocent people go to prison, and in the civil sphere, people won’t be able to bring claims when their claim is justifiable. Harries does not think that pro bono work will plug the gap that these ruthless cuts have created. He explains that when you have a properly funded criminal bar, then barristers will be more keen to give up some of their time to do pro bono work. “The reality is the more they cut us the less time we have to give up. That’s an absolute scandal.” As cuts mean barristers are gradually becoming less able

to undertake pro bono work, Harries stresses how essential it is for students to undertake this work at university. He praises pro bono work as fabulous experience that brings a great deal of humility. Worryingly he also says that due to the cuts, undertaking pro bono work at university may be the only opportunity students get to do so. He also emphasises its benefits in terms of making your mini-pupillage or pupillage application stand out. If people apply for a mini pupillage without that sort of commitment and responsibility to a social cause, says Harries, it will be questioned why it is not there. “It’s a civic responsibility that we have, and I think if we don’t do it we should be ashamed of ourselves.” Students are always eager to hear what chambers or law firms look for in applications, although equally sought after is an insight into what a career as a barrister actually entails. Harries meticulously talks me through a typical day for him at the moment. His alarm goes off at 5.20am and he gets up at 5.30am. That ten-minute snooze, he assures me, is essential. He commutes into London, as he explains, because these days trials can be anywhere and you go where the work is rather than having it fall in your lap. He leaves home at 6:30am to be in court for 8.30am. A couple of hours preparation work on cross-examination or a closing speech and then sitting in court from around 10:00am to 1:00pm. After a working lunch, which usually involves sandwiches at a desk, he sits in court from 2:00pm to 4:30pm, before it’s back to chambers to pick up papers on other cases that need preparation work or

for conferences. He tries to be on a train by 7:40pm, home by 9:00pm, followed by a quick bite to eat and bed by 11:00pm. So, not a typical nine to five then. A career as a barrister is clearly not for the faint hearted. “Ultimately, it’s a job about winning. I’m not saying lawyers don’t want justice, they do, the reality is most of us do this job because we are hard working, competitive people who are driven by the adrenaline rush when you stand up in court, properly prepared, and the adrenaline rush when you win.” In a unique insight into the kind of work that a career as a criminal defence barrister involves, Harries tells me about the two most memorable cases of his career. The first is his involvement in the Lincoln Prison riots in 2002, which was the first case in which he was instructed as leading counsel. The defendant was accused of throwing fire extinguishers that he pulled off the wall onto a fire and causing an explosion. The main witness against him was another prisoner who gave evidence describing the defendant going from one area of the prison to another. Harries reveals how he got hold of the prison schematics and realised that the route the witness claimed that the defendant had taken was impossible as it was barred off by a security gate. It exposed his whole story as a lie. The witness had committed his account to a plan, including the location of the gates. Harries leans forward as he tells me how the rest of the case unfolded. “I handed out my plan to the jury and I said to the witness, ‘what we’re going to do is play a little game, it’s called




spot the difference’. And as I said this, I heard one of the jury whisper, ‘there’s a gate there!’ and within half an hour I’d cross-examined that in, the judge threw the case out at half time and the defendant was acquitted. That was a very special case.” After a case with such a sensational turn of events, you might expect that it would be difficult to recall an equally memorable case. However, delving into his wealth of experience, Harries comes up trumps with a case that received a considerable amount of media attention. Harries was junior counsel for Erkin Guney, who had previously been falsely accused of possession of guns and drugs and imprisoned for 14 years. After his release, the Court of Appeal quashed his conviction. The judgment was heavily edited because material had become available which cast doubt on the credibility of the police officers involved. A few years later, Guney was accused of soliciting the murder of his late father’s mistress. An undercover police officer started to have meetings with him and covertly recorded him talking about his plan to kill this woman. There were discussions that she would either be battered to death or run over by a car. Guney made a call after it had been planned to happen and the police officer gave him a code to say it was done. In reality, the woman had been pulled into a witness protection programme and police officers subsequently arrested Guney. However Guney maintained his innocence, claiming that he knew all along that the police had fit him up. The defence at trial was that

Guney had known from day one that it was a set up and had only played along in order to find out which police officers were behind the effort to fit him up for the second time. It was a fascinating, difficult case to run, Harries tells me, and despite the salacious press reporting, Guney was acquitted.

“If you’re aspiring to become a barrister, you must make sure you’re prepared to work” Before our meeting came to an end, I could not let Harries escape without answering that unrelenting question that is on the lips of every wannabe barrister: what is your best piece of advice for someone aspiring to a career at the Bar? Harries says there are two things. The first is that you must make sure you are prepared to work. “What I mean is work at university. As if you don’t have a 2.1, you’ve got no chance. You work at Bar school because if you don’t get the distinctions, you’ve got no chance. You work in terms of getting your pro bono work, mini pupillages and work experience done. Because if you don’t, and we cant see that you have in your pre-application years then we’ll have no confidence that when you get into this job you’ll be a hard worker. And beyond anything else, you need to be a hard worker.” Harries’ second piece of advice is that, if it is crime specific, not only do you need to work hard, but you need to love it. “If you don’t, you will not last.”


GOT ANY BOOKS TO SELL? The Green Law Department is organising a charitable book sale at the beginning of the next term. If you have any books (not just law!) you would like to sell, hand the books in to the Law Reception with a bookmark containing your: - Name - Contact details - Price you would like to sell the book (or leave to our discretion) 50% of the profits will go to charity, and 50% will go back to you! Hand your books in before the end of this term and we will store them over the summer. For more information contact"

March 2013

Reform of the House of Lords: the composition of the new Upper Chamber Anna Freund The United Kingdom is known to be a very traditional country. Even its constitution is formed by sets of values and traditions, along with several old documents, the oldest being the Magna Carta. This makes the constitution very flexible, which is the reason that throughout history the constitutional framework has evolved together with society. The reform of the House of Lords has now been going on for nearly a century. It started with The Parliament Act 1911, but it is still not finished. At the Opening of Parliament in 1968, Queen Elizabeth II stated in her Royal Speech that the current House of Lords could not perform its essential role as a “second chamber in the framework of a modern parliamentary system” in the way that it should, and that it was not as effective as needed. The central question surrounding the reform is the composition of the new second chamber. In 2003, the Joint Committee proposed seven different options for the composition of the new Upper Chamber, ranging from a fully appointed chamber to a fully elected one. Abolition was one of the seven options, and the members of both chambers voted for and against their preferred option for the best and worst case scenarios. In the House of Lords, the option for a fully appointed new chamber received a majority vote, with 45.7% of the vote. Whereas 48.9% of the Commons preferred a hybrid chamber with the balance of 60% elected, 40% appointed members as the best solution. Comparatively 26.6% voted for the abolition of the second chamber altogether. These extremely different views about the composition of the new Upper Chamber remained so until the second round of votes in 2007. This time, even more members of the House of Lords, 49.2%, voted for a fully appointed new chamber, whereas 47.2% of the Commons wanted to see it as a hybrid, with a ratio of 80% elected and 20% appointed members. The different views of the two current chambers remain

the main reason why it is still unclear how exactly the chamber will be after the reform is put into place, but arguably a combination of appointed and elected members would be the desirable solution, that is to say, a hybrid composition. According to the government report ‘House of Lords: Reform’ from 2007, “all major cross-party proposals” concerning the composition of the new second chamber favoured this option. The point on which they still do not agree is the balance between the elected and the appointed members. A new chamber with appointed and elected members would not challenge the supremacy of the House of Commons; party-dominance could be limited and independence kept. By combining them (appointment and election), the new Upper House would become more democratic and it would be more unlikely that it would challenge the supremacy of the first chamber. To ensure this, a ratio of more appointed members than elected members would need to be sought. This would also help to limit the risk that party-dominance occurs in the House and, where the membership of appointed members is long term, their independence is kept. Principles that remain from the elected chamber are the democratic principle and the representation of the diversity of the United Kingdom regarding religion, regions and ethnicities. Other challenges are possible rivalry between the two groups of members, costs and transitional problems, in addition to the several questions previously raised that are still not answered.

The first one is the question about the balance of the appointed and elected members. The votes from 2003 show that the Commons were in favour of a ration of 60:40 elected and appointed respectively, but four years later, in 2007, they favoured a ratio of 80: 20 for the new chamber. The majority of the current House of Lords, however, favoured a 100 % appointed new chamber, which illustrates that the view of the two current chambers are almost completely opposite. These opposing views make it very difficult to find a solution to the question of balance. Another question is of course by whom the appointed members should be chosen and whether or not they should need the approval of the current elected members and how the elected members should be elected. Finally, costs must be considered and the question about the salary is hard to answer because the current members do not receive a salary and can only claim a certain amount of money for expenses per day if they attend the House. Appointment, election and the combination of the two can be seen as considerable possibilities for the composition of the new Upper Chamber. By combining appointment and election in order to create a hybrid new chamber, most of the main disadvantages could be eliminated. It would be desirable to have more appointed members than elected ones, which would still be similar to the current House of Lords and the United Kingdom could therefore preserve an important part of its traditions.

Call for submissions Want to have your say on current legal affairs? Want to have your work published? We want to read what you have to say! We are looking for students, academics and organisations who are keen on writing a piece for our issues throughout the year. Have an idea for an article? Drop us a line at: ‘Pile of newspapers’ © CC-BY 2012 Howard Lake




March 2013

Europe moves East: UK reaction to the impact of nationals of A2 countries exercising their right to free movement Alina Anca Sigheartau Following vehement debate amongst the members of the UK Parliament, a flow of Eastern European migrants are expected to arrive in Britain post-January 2014. As the transitional restrictions applied to Romanian and Bulgarian citizens will be lifted, the UK has responded fearfully to this change in the law. Bulgaria and Romania received the A2 country status upon joining the European Union in 2007 and the last Labour Government subsequently agreed to temporary controls on immigration from the two aforementioned states. The agreement will expire at the start of next year following the lapse of a sevenyear ‘probation’. Upon the lift of the transitional controls, Bulgarian and Romanian citizens will enjoy the same rights as other EU member states in the European labour market. The UK government publicly expressed concerns that the A2 nationals will migrate to the UK and abuse the benefits system and use the NHS service for free medical treatment. As a solution, tougher restrictions on targeted areas such as social security and child benefits were proposed. As part of the domino effect created by the negative atti-

tude expressed by the UK government, multiple anti-immigration attacks including hate-speech and bad press have followed. Indisputably, there is a clear legal framework foundation that guarantees free movement of people within the EU. All EU member states are required to operate within this framework. Accordingly, MEPs from both Bulgaria and Romania expressed their concerns to the EU Commission about possible preventions to exercising their rights guaranteed by the EU treaties. The wave of hostile statements from the UK government at the beginning of the year were arguably aimed at stigmatising citizens of A2 countries as second-class Europeans who pose a threat to the social systems, just because they want to exercise their basic rights to free movement and work. The UK government's own Migration Advisory Committee says there is evidence Bulgarians and Romanians would move to Britain because of its stronger economy. According to a recent study immigration is supposedly the biggest problem facing Britain. In addition, UK Prime Minister David Cameron announced his intentions to prepare action to ensure that public services and welfare are not as easily accessible for

David Cameron wants to ensure UK public services not “soft touch” for migrants Photo:!World Economic Forum

migrants, including those coming from other EU states. Communities Secretary Eric Pickles announced that the UK did not wish to portray itself as an unpleasant place to be but migrant workers had to have realistic and sensible expectations when they arrived. However, the Free Movement Directive is not a Directive on which Britain can opt out. Free movement is one of the foundations of the single market and the single market is one of the most cherished EU rights. Migration creates a reciprocal situation; more precisely it creates rights that counterpart obligations. There are a large number of British citizens living in other member states. Since the British are allowed indiscriminate enjoyment of rights, the

UK should give their immigrants the same rights. Among the alleged negative influences of Eastern immigration to the UK to date are accusations such as; benefit tourists, NHS abuse, decrease in the value of education, and fragmentation of the society. What authorities fail to see is the fact that we are dealing with human beings and not mere statistics. The Minister for the Romanians Abroad expressed his concern that once people are legally allowed to work in the UK, they must be allowed to enjoy the same rights are the other nationals with no discrimination. Migration seen as a formative experience does impact both migrants and their adopted country. Migrants

often relocate from countries where democracies are young, social values are still emerging, and economies are still developing. They relocate to other countries where democratic values, human rights, civil society and equal opportunities have a long tradition in seek of an immensely rich learning experience. Nearly all Romanian migrants to the UK are working people who pay their share of taxes and themselves are also frustrated by a very small minority who come here to get an easy ride by abusing the system. While it is true that NHS will treat the migrants as needed, a young, working-age migrant population conventionally puts much more into the system than it takes out. On the downside, talented foreigners are being put off Britain by unwelcoming rhetoric about immigration. Britain was always a member state that pushed for the enlargement of Europe. Consequently, minimum standards in this enlarged Europe are required in order to have equilibrium of rights for all citizens as these rights come from the European citizenship status. Once those rights are limited, the freedom of movement of people in the EU space is hindered as they work in counter dependence.

Farewell message from QMSPBG President Phillip Mutton President, QMSPBG Just three short years ago I was thinking forward to what was then the biggest change in my life: coming to London to begin my degree. Like all of my friends I had no idea what to really expect, but soon found out that there were reasons to be optimistic. My involvement in our Pro Bono Group at Queen Mary turned out to be one of the most rewarding experiences I could ever have dreamed of. In brief, it has entailed bringing benefits to our local community, making new friends and being part of a forward-

thinking group. During this time our academics and administrative support team have never shied away from supporting our work. After my tenure as President and previously as Vice President, I am particularly proud of two achievements in the Queen Mary Student Pro Bono Group. Enthusiasm and Dynamism of the Commonwealth Forty years ago, many argued that the UK’s entry into what was then the European Economic Community (now the EU) would spell the end to our well-established bonds with the Commonwealth. In 2013 awareness and enthusi-

asm for the Commonwealth within our law faculty couldn’t be stronger. Every year, a substantial proportion of our faculty’s student intake is from the Commonwealth. So too is the presence of Commonwealth case law in our studies. Our two organisations are alike in our commitment to environmental awareness, human rights, access to justice. Our flourishing Commonwealth placements initiative and bursaries scheme will enable our members to nurture this dynamic community of nations for decades to come. A More Efficient and Compassionate Committee

We have cut through overbearing bureaucracy and have placed greater responsibility in the hands of our assistants. Subsequently our ability to listen and act upon the views and demands of our membership and the communities we serve is vastly improved. Our constitutional referendum in March is an opportunity for our group to modernise while still remaining true to our founding ethos. Like every Olympic games, the time must come for the flame of each Presidential term in the Pro Bono Group to be extinguished. That time has now come for me. Now it is time to look to the

future with hope and excitement. The year ahead under the leadership of my successor, Axel-Charles Monin Nylund, will be one to look forward to with optimism. Our group will affirm its green credentials through our rapidly evolving Green Law department, and move into new terrain. The Queen Mary Student Pro Bono Group is a successful society because it never loses sight its defining values and more importantly, the future. That is why serving the group has been such a huge honour, and why I will continue to support it for many years to come.

The Advocate Issuu VII  

Issuu VII, March 2013: Pryce trial, celebrity brand rights, anti-Semitism, gay marriage and more legal news and comment.

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