Competition: Queen Mary University of London

ShenSmith Barristers are very pleased to announce a new competition exclusively for students of the Queen Mary University of London law school.

The competition is open for entries as of 16th December 2016 and will receive entries until the 31st January 2017 inclusive.

Your composition can be single or multimedia, combining written submissions of no more than 2000 words, audio podcast and/or video compositions on the following subject matter:

A guide for lay clients: The Bar of England and Wales supporting access to justice.

The winning entry will be judged by one of our barristers and receive high levels of publicity and submitted to the Bar Council for consideration in future publications. ShenSmith Barristers may also publish other, excellent entries.

Prizes for the competition will include the opportunity for a mini-pupillage with one of our barristers, prize money, and other awards from our partners to be confirmed at a later date.

Please submit your entries via the form below:

 

Fill out my online form.

IMAGINING A LEGALLY UNIFIED EUROPE

The European Union (EU) is a unique supranational construct of a kind that has never existed before and which has attracted plenty of criticism. Whether further legal integration is to be continued has been subject to a heavy debate. Critics in the camp contesting a common European constitution argue that Europe lacks a collective identity and that such a constitution would not effectively represent all its people. This essay attempts to invalidate this argument. It will approach the subject matter from a sociological angle and argue that a common European constitution is indeed possible. It will begin with an assessment as to why nations can be seen as imaginary communities and how this results in the idea that law does not need a single nation to function effectively. For this reason, it can be said that a supranational constitution is a realistic possibility, despite the EU consisting of so many nation states. It is simply the politics that prevent this from happening.

Anderson has coined the expression ‘imaginary communities’. It refers to the idea that a nation is ‘imaginary’ because all members of a nation will never know each other and yet they perceive themselves as a community, that is, a unified group bound by nationality.[1] It is imagined because there is no actual or physical connection between the people of a same nation, only the belief. This idea can be justified on numerous grounds.

It can be argued that each of us belong to a nationality, because we believe this to be the case. From the outset it appears that people think they belong to a nationality due to linguistic and cultural similarities. However, in any given nation there will be a multiple of dialects and traditions. For example, in the UK many people consider themselves English despite differences in accent, cuisine and culture. It is possible that any differences amongst people belonging to the same nation are swept away because they are told to do so. This point can be supported by the theory of socialisation. It contends that children adopt certain behavioural patterns when exposed to different ‘agencies of socialisation’, including their family and friends, i.e. they learn from their surroundings.[2] It is likely that if for example, a child born to British parents happens to grow up in Argentine, he or she is most likely to grow up considering him- or herself Argentinian, probably not even knowing about his or her origins and unlikely to even consider him- or herself belonging to a different nation. The Austrian historian, Wilhelm Bauer pointed out that ‘children of the same parents can in certain circumstances belong to different nations.’[3] He effectively argues that nationality is not achieved by blood but by where an individual feels he or she belongs to. Another good example is the case of the unification of Germany. In the 19th century, the German people were distributed in a vast number of small principalities. They did not form a unified nation until much later. [4] Nevertheless, all of them would have generally described themselves as ‘Germans’. It shows that the same people need not live in the same country in order to form a community.

To further enhance Anderson’s argument, it is worth pointing out that the majority of nations are not surrounded by natural, but by arbitrarily drawn boundaries. There is no nation which contains a single culture, language or ethnicity. Therefore, it is arguable that nations are invented.[5] This point is bound to be heavily contested by dedicated nationalists. For example Fichte was convinced that the ‘German Nation’ differs from its neighbours by nature and especially language, despite the fact that the German people did not form a single nation.[6] It is arguable that the idea that language must adhere to its borders is rather naïve. Leersen points out that states constitute of ‘mutually exclusive jurisdictions’, whilst cultures ‘shade’ into each other.[7]
It can be said that defining the nation as an ‘imaginary community’ appears to be a sensible approach from a sociological point of view.

After defining the nation state as an imaginary community, it is necessary to establish its relationship with the law. A nation state undoubtedly requires some form of law in order to manage its people and to give effect to its mentality. For example, for security reasons the use of pepper spray is forbidden in the UK as it falls within the category of forbidden weapons under section 5(1) (b) of the Firearms Act.[8] On the other hand, Austria, which has a more liberal approach towards weapons and a different crime culture, allows its use.[9]

However, it can be argued that law does not need a single nation to function. There are numerous legal systems which function beyond and not within the nation state: religious laws, such as for example the Sharia, do not apply to a single state but to all members of the religious community, no matter in what nation they find themselves in.[10] The Lex Mercatoria[11], have enjoyed international application and are not restricted to a nation state.[12]
The same people need not be represented by the same law: in the English legal system, some extra-territorial legal rules e.g. deriving from the Privy Council or other common law nations, may be applied, as the principle of stare decisis is exempted by persuasive precedent.[13]
A nation does not need a single legal system to function: the American state of Louisiana is a civil law sub-state in a common law nation. Whilst the foundations of Louisiana’s legal system are based on the French civil law traditions, its practices, including the application of precedent, are intertwined with English common law notions.[14]

It could be argued that this is the case because nations are ‘imaginary communities’. If nations could be distinctively compartmentalised such transnational laws would not be possible to enforce. Laws can indeed represent communities, but as communities are not confined to borders, neither are the laws that govern them. Therefore, it can be argued that laws can function effectively beyond the nation state. For example, religion and commerce consist of universal rules which can effectively apply to a wide range of nations and people. However, more sensitive areas such as the control over weapons, may be required to be regulated by more specific laws which are adjusted to individual nations in order to give effect to its mentality. Such an approach is possible on any level of governance, whether on national or international levels. Most federal states devolve certain powers to local governments in order to make provisions that allow effect to be given to local cultures. A common European constitution could follow a similar approach, thereby ensuring that local traditions and mentalities can be observed.
Overall, it can be said that it is clear that the nation needs law, but the law does not need a nation.

Having established that nations are likely to be imaginary communities which do not require their own single legal system, it is possible to discuss the postnational settlement in Europe. The term has been established by Habermas and describes how the importance of sovereign nationhood has been substituted with an increasing number of interstate organisations and institutions.[15] This has been prevalent in recent times, in particular with the emergence of the EU. It can be said that the economic and political desire for peace has contributed to the development from isolated nation states to the postnational constellation. The experience of the World Wars provided a fruitful setting to enhance a co-operative network. It could be argued that a new larger ‘imaginary community’ amongst the European nation states could be formed as a result of the common desire for peace, economic stability and the emergence of the concept of European citizenship.[16]

This postnational constellation poses a fundamental question: is further integration in Europe desirable and if so likely to occur in future? To a certain extent, integration in the EU has already progressed relatively far. The EU treaties, including the Maastricht, Lisbon and Nice Treaties appear to give the EU a constitutional character. These provide the foundations of the European supranational institutions.[17] The ‘Constitutional Treaty’ suggested a single and consolidated constitution, which was not ratified due to the rejections achieved in the referendums in France and Holland. A watered-down version of it was drawn up and ratified with the Treaty of Lisbon.[18]

A number of theorists have argued against the establishment of a European constitution. Grimm argues for the conservation of the EU as it exists today and against further legal integration. He points to the existing European democratic deficit. He believes that a European constitution would not be democratically accountable as it would not be based on a single collective.[19] According to Majone the current ‘democratic deficit is democratically justified’ because voters are preferring a non-federalist approach.[20] It appears that integration is prevented from happening due to politics. If integration is not enhanced, neither can democratic accountability.[21] Therefore, it could be argued that that a new constitution might change voting patterns and enforce new democratic standards.

Habermas gives a powerful counter-argument to Grimm’s conclusions[22]. He contends that a constitution for Europe would be desirable as it would increase economic welfare and allow the states to co-operate on a more sophisticated level.[23] He, in general, agrees with ‘Grimm’s diagnosis’ but finds that a ‘European identity can in any case mean nothing other than unity in national diversity’. [24] He effectively argues that a collective does exist in Europe. Habermas points out that as national consciousness has developed in artificial conditions, there is no reason why it cannot be extended beyond traditional borders.[25] If we return to the concept of nation as an imaginary community, supporting Habermas’ point does not represent much difficulty. As briefly mentioned above, it is possible to view the entirety of the European nation states as an ‘imaginary community’. If we consider the matter, it can be seen that the majority of people in the EU enjoy a certain standard of life, share democratic notions and fundamental ideas of human and basic rights. Obviously there are differences in language and mentality, but it can be debated as to what extent these differences matter in the modern context of globalisation and transnational communities. Cultures are not confined to borders, but rather ‘shade’ into each other.[26] Local laws can give effect to these. Habermas also points out to the successful unification of a formerly disintegrated Germany. Metaphorically speaking, if we could see the formerly disintegrated Germany as a miniature of today’s Europe, many arguments against further integration could be swept away. Habermas rightly argues that ‘… German federalism … might not be the worst model’, considering Germany’s wealth and stability.[27]

When drawing a conclusion, it is visible that the idea that nations form imaginary communities can be supported as nationality can be said to be a state of mind rather set in stone. Therefore, laws can apply to any community constituting of any number or type of people. Although it has to be said that it is probably more beneficial and efficient if countries have the ability to decide on sensitive and mentality-based issues themselves, such as weapons, taxation and education. However, fundamental laws, such as human rights, can be universal. A consolidated European constitution and admittedly a move towards federalism is possible (unless people vote against it as they did in France and Holland in 2009)[28], no matter how many different people are in it. Furthermore, it can be argued that a European collective can be established in a similar sense as the German identity in the 19th century. Every country consists of a variety of people and nevertheless has a functioning legal system, there is no reason why Europe could not. Absolute integration in Europe has not occurred yet, not because it is not possible, but because it does not want to. Whether this will be changed in the future will depend on whether an imaginary community will be formed.

Madeleine Weber

[1] Anderson, Imagined Communities (Verso, London 3rd ed., 2006), p. 6

[2] Giddens, Sociology (Cambridge: Polity, 7th edition, 2013), p. 339; see further: Kozulin, Vygotsky’s educational theory in cultural context (Cambridge University Press, 2003)

[3] Schmidt, ‘The National Question in Europe in the Historical Context of Germany’ in Teich and Porter, The National Question in Europe in Historical Context (Cambridge University Press, 1993), p. 197

[4] Kitchen, A history of modern Germany, 1800 to the present (Wiley, 2nd edition, 2012), p. 1

[5] Gellner, Thought and Change (Weidenfeld and Nicolson, 1964), p. 168

[6] Moore, Fiche: Addresses to the German Nation (Cambridge University Press, 2009), Chapter 4: The Principal Difference between Germans and other peoples of Teutonic descent

[7] Leerssen, National Thought in Europe (Amsterdam University Press, 2006), p. 172

[8] Firearms Act 1968

[9] This is covered under §3 StGB (Strafgesetzbuch) (Austrian Criminal Code)

[10] Esmaeili, ‘Australian Muslims and Citizenship’, Alternative Law Journal Vol 36 (2011)

[11] The Lex Mercatoria is the law of commerce.

[12] Teubner, Global Law without a State (Dartmouth, 1997), p. 3

[13] Algero, ‚The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation‘, Louisiana Law Review (2005)

[14] Ibid.

[15] Krisch, Beyond Constitutionalism – The Pluralist Structure of Postnational Law (Oxford University Press, 2010), p. 5

[16] European Commission, European Citizenship (Standard Eurobarometer 77, Spring 2012) <http://ec.europa.eu/public_opinion/archives/eb/eb77/eb77_citizen_en.pdf>

[17] Tillotson and Foster, Text, cases and materials on European Union law’ (Cavendish Publishing, 4th ed., 2003), p. 16

[18] Ashiagbor, Countouris and Lianos, The European Union after the Treaty of Lisbon (Cambridge University Press, 2012), p. 2

[19] Grimm, ‚Does Europe Need a Constitution?‘, European Law Journal (1995) 282

[20] Majone, ‚Europe’s Democratic Deficit‘: The Question of Standards‘(1998) European Law Journal 5

[21] Ibid.

[22] Habermas, ‘Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution’, European Law Journal (1995) 303; see also Habermas, ‚Why Europe Needs a Constitution‘, New Left Review (2001) 5

[23] Habermas, ‚Why Europe Needs a Constitution‘, New Left Review (2001) 5

[24] Habermas, ‘Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution’, European Law Journal (1995) 303

[25] Habermas, ‚Why Europe Needs a Constitution‘, New Left Review (2001) 5

[26] Leerssen, National Thought in Europe (Amsterdam University Press, 2006), p. 172

[27] Habermas, ‘Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution’, European Law Journal (1995) 303

[28] BBC News, ‘EU constitution: Where member states stand:’ (BBC, 25 March 2007) http://news.bbc.co.uk/1/hi/world/europe/3954327.stm accessed April 18

Intellectual Property and Copyright Law

Intellectual property is the term that refers to a range of different creations of the mind/intellect, such as artistic works or inventions. There are a number of different statutory instruments which aim to protect the creator and owner of intellectual property (IP), for example, Copyright, Designs and Patents Act 1988 etc. One of the areas which will be discussed is the law around file sharing and the debate as to whether sharing or downloading amounts to theft. Another area which will be covered is whether music and other forms of modern artistic expression are adequately protected under copyright laws.

The debate around file sharing reached a peak in 1999 when an organisation called Napster[1] created software which allowed internet users to connect with each other and share/copy files stored on each other’s hard drives. This gave rise to a large amount of controversy regarding file sharing and whether it should amount to a theft.

A problem arose with artistic works which were protected by copyrights, such as musical compositions etc, as under the Copyright, Designs and Patents Act 1988, material transferred via an internet connection should be treated and protected in the same way as other media; CDs, DVDs etc. It also states that copying should be defined as “reproducing…work in any material form”[2]. The internet, as a whole, requires the storage of data via its RAM memory in order for it to be functional. Kabushiki Kaisha Sony Computer Entertainment Inc, Laddie J held that loading software or the content of a page of a website into the RAM memory of the computer involves the act of copying even if only done transiently[3]. The Digital Economy Act 2010[4] came into full force in June 2010 after receiving royal assent in April. The Act aimed to increase the ease of tracking down and suing persistent infringers; however, it gave rise to a number of other issues, one being the lack of presumption of innocence. In Polydor Ltd v Brown, it was held that innocence, or ignorance of copyright law can be no defence to an infringement[5]. Where a person may be innocently browsing the net and come across a file which is copyright protected, due to it being stored on the internal RAM memory of the computer, that person may be seen to be infringing copyright legislation and face prosecution and termination of their internet connection indefinitely. This can be seen as extremely unjustified as the person has not intended to duplicate such file, and yet will still be considered guilty without the presumption of innocence. In MGM v Grokster, the US Supreme court held that “[any person] who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps for fostering infringement, is liable for the resulting acts of infringement by third parties”[6]. This in itself can be seen as unjust as anyone who then obtains the device would not be considered liable by the state as the infringement would not have occurred had the device not been distributed illegally in first instance; furthermore, the person distributing the device first would feel the burden of all subsequent infringements.

            Now, can duplicating/copying a file be considered a theft under the law of copyright? Under the Theft Act 1986[7] the basic definition of theft is that “a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it…” Being technical, due to the nature of file sharing, the act of making a duplicate of something cannot amount to a theft as it has not deprived the owner of the original thing. It can be argued that there is an element of theft regarding the deprivation of profits; however this would require the act to be taken broadly to allow such monetary value to be considered as property. Stuart P. Green, an expert in the field of theft, stated that “yes, one might try to argue that people who use intellectual property without paying for it steal the money they would have owed had they bought it lawfully. But there are two basic problems with this contention. First, we ordinarily can’t know whether the downloader would have paid the purchase price had he not misappropriated the property. Second, the argument assumes the conclusion that is being argued for — that it is theft.”[8]. In A&M Records Inc v Napster[9], it was held that the infringement by Napster amounted to an assault on the recording industry in the form of loss of profits. Due to the large amount of confusion and controversy in this area, it is necessary that the Digital Economy Act 2010 be reformed or amended to confirm whether this type of infringement should be considered as theft, or a separate offence as a whole.

            Next, we move on to a very complex matter: are modern forms of artistic creation protected under copyright law? The rights given to the creator of the intellectual property are in compliance with the Information Society Directive, which requires EU states to give authors of original works and owners of neighbouring rights the reproduction right, communication right and distribution right. The Copyright, Designs and Patents Act creates two types of infringement; primary and secondary, both of which it aims to protect the creator from. Primary acts include copying, issuing to the public, performing or showing the work in public, communicating to the public, making an adaption and rental or lending the work. Secondary acts require activity in relation to an infringing copy of a work i.e. selling copies of the works, possessing in the course of trade, offering or exposing for sale, importing etc[10].

The general principle is that, when an artist creates intellectual work, for example a composition of music, which isn’t immediately paid for due to broadcasting or replaying, the originator should generally receive the return of profits for that work unless otherwise agreed, i.e. for charitable cause. F A. Harper once stated that the right to create something and the right of ownership over the thing are inextricably bound. The coupling of these two principles is essential. This would act in favour of the Act as it seeks to protect the creators of the artistic expression. However, many make a fundamental error – How can a person own an arrangement of words in language, or an arrangement of musical notes? It is essential to recognise such thing but it is somewhat impossible to own such thing as a proprietary right. Also, owning a thing, and owning that thing’s economic value are often confused, or mistaken. When a piece of music is originally created, it will be at its peak value in the media, the same would apply to a house that has just been bought. If the value of that house depletes due to market price changes, a person will not be able to claim for its economic value loss; price values will naturally fluctuate, if the market price of something changes, a person cannot argue they are a victim of theft as they own only the property and not its economic value. However, with regards to music, many artists are claiming for the economic value lost due to the reproduction or sharing of the music without directly benefitting from its sale. The significant difference here is the loss of economic value due to the reproduction of the work, which is what copyright law aims to prevent and protect the creator from. Copyright law aims to prevent people from gaining from something that in theory, does not belong to them i.e. it was obtained via peer-to-peer file sharing. This can be considered as protection for the owner against the unlawful sale of the creation however, it may not necessarily provide such protection where the creation is reproduced without a return of profit, and subsequently the market value of the creation depletes. Under section 20 of the Copyright, Design and Patents Act, there may be infringement by simply “making available” to the public, therefore it is difficult to say whether the creator is protected in all.

One final issue would be, for example, a person has bought a CD of a musician’s album, and uploaded it to their personal computer for personal use. They will be allowed to rely on a defence of private use under Section 28B of the Act for the copying and uploading onto their hard drive. However, where does the law stand when that person sells the CD on at a boot sale or online, and what about the person actually purchasing the CD rather than from the artist directly? Would they then be bound by copyright laws and owe to the creator for any losses suffered due to the infringement?

            It is clear that the law is in need of vast clarification and amendment if not reform. The presumption of innocence is non-existent, as in Polydor; whether the peer-to-peer sharing and downloading of data amounts to a theft is unclear and causes confusion when interpreting copyright laws; and finally, the Copyright, Design and Patents Act does not adequately protect the creator of a work where the work is not physical. And although it protects artists against unlawful copying and unlawful communication of the work to the public, it does not necessarily protect the creator against subsequent economic loss due to market demands after the creator has already been subject to copyright infringement. The Digital Opportunities Report of 2011 recommends the implementation of an efficient copyright licensing system. Under section 4.8 of the review it states that “The review agrees with the Plan for Growth when it says that the creative industries ‘rely on a strong intellectual property (IP) regime’ but also when it adds: ‘the interests of IP holders need to be balanced against those of potential innovators, protecting incentives to invest in content, without damaging innovation and opportunities for new entrants’. Copyright seeks to achieve this by giving creators temporary exclusive rights (life plus 70 years for most works) to their original creators enabling them to exploit them economically or to license them to others”[11]. It is now clear to everyone that digital technology is transforming copyright, for better and for worse. Infringement is widespread; understanding of the law is poor; millions of works cannot be digitised for conservation of accessed at all and content industry business models are under strain, prompting companies to look to Government for vigorous enforcement action against consumers and suppliers of “pirate” content[12]. It is clear that the Review has recognised a number of the above issues stated within their scope of recommendations and therefore, due to the ever improving and developing intellectual property laws, it is without doubt that change will be in the near future and will seek to clarify the law and improve the rights of the creators and the owners of intellectual property. The result, we shall see.

Emma Brown

[1] A & M Records, Inc v Napster, Inc (2001) 239 F.3d 1004

[2] Copyright, Design and Patents Act 1988 Section 17(2)

[3] Kabushiki Kaisha Sony Entertainment [2005] HCA 58

[4] Digital Economy Act 2010

[5] Polydor & Others v Brown & Others [2005] EWHC 3191 (Ch)

[6] MGM v Grokster [2005] 545 U.S. 913

[7] Theft Act 1986 Section 1(1)

[8] ‘Theft’ Law in the 21st Century, ‘When Stealing isn’t Stealing’ (New York Times, 28th March 2012) <http://www.nytimes.com/2012/03/29/opinion/theft-law-in-the-21st-century.html?_r=0> Accessed 24th August 2015

[9] A & M Records, Inc v Napster, Inc (2001) 239 F.3d 1004

[10] Tim Press, Concentrate Intellectual Property (2nd ed, OUP 2015)

[11] An Independent Report, Digital Opportunity: A review of Intellectual Property and Growth (Professor Ian Hargreaves, May 2011) Para 4.8

[12] [12] An Independent Report, Digital Opportunity: A review of Intellectual Property and Growth (Professor Ian Hargreaves, May 2011) Para 4.2

How does the legal professions dress code affect women’s progress and legitimacy as a lawyer?  

 

The gender imbalance in the legal profession has been a constant problem ever since women were accepted in the Bar. Many initiatives like trying to introduce gender quotas are being considered to further the representation of women. However, it seems that even the oldest of indoctrinated views towards women and their sexuality still exists in the form of dress codes. Whilst this may sound slightly absurd further research does suggest that the legal professions dress code and standard beauty standards are affecting women’s progress and legitimacy as lawyers. However, how much of an effect does something as frivolous as a dress code limit the diversity of the legal profession?

 

The lookist culture currently dominating society has developed a business objective[1] of ethical egoism[2]. It seems business are willing to do anything, including rejecting employees who are not traditionally attractive to increase their clientele and in turn their success. Wiley[3] is quick to blame “commercialism” as the reason behind appearance discrimination. Commercialism is an aggressively protected system in today’s society and is essential for law firms to thrive in this current, arguably, over-saturated profession. This idea is supported by the notion that attractive people earn on average “3-4% more”[4] than their “below average” colleagues. Wu[5] argues that the time and money spent on reaching a level of “attractiveness” reduces the efforts women put into furthering their careers. It is almost as if women are stuck in between two stones, if they edge towards perfecting their careers they may not be attractive enough to be hired but if they edge towards their outer appearance they are stopping themselves from pursuing job opportunities which may require more funds or commitment.

 

The legal dress code for women is arguably a patriarchal restriction that demonises women for “tempt(ing)…men”[6].  The Chicago Bar Association had stirred much controversy concerning their “What Not to Wear”[7] fashion show where women were slated for their “tramp stamps” [8]. The derogatory manner in which women were addressed reflects the attitudes that have given women a slow start to careers in the legal profession. Rather than focusing on how to help women progress, legal officials are further restricting them to “”skirt suits”, which are more “rewarded”[9] due to their sexual appeal.  It was also unearthed that “Virginia judges” do not like the sight of “cleavage” or “legs displayed in court”. The word “displayed” itself suggests how quickly women are treated as visible aesthetics. The male figures in the legal profession seem to be projecting women as sirens, which evidently devalues their roles and reputations. Kopf concurs this idea by stating that men are both “pigs and prudes” when it comes to imposing dress standards on women.

 

Many commentators even go as far as to recommending that potential employees remove their “large” “engagement rings”[10] as it would ignite “jealousy” and “rage” amongst female interviewers. By suggesting that women are naturally jealous creatures gives potential employers the impression that women are ‘risky’ associates who will pass judgments based on pettiness and perhaps do anything to sabotage fellow female employees. By labeling women of a competitive nature in this way, suggests that there is an issue regarding how women are viewed when they go against their ‘traditional’ role. This viewpoint is what potentially discourages many employers to limit the number of females they take on board and the supposed rivalrous nature may also dissuade women from applying to major firms because of the rumored “bitchy” nature of higher ranked women. The fact that the visibility of one engagement ring can create such serious hurdles for women seeking a position in the legal profession shows just how frivolous and infuriating these archaic dress standards are.

 

Male imposed dress standards have left women, as Rhode[11] states, in a “double bind”. If they conform to both dress and beauty standards they, theoretically, become more successful, but are supposedly more inclined to experience jealousy from other females in the legal profession. In fear of being labeled as “vain” and a “narcissistic”[12] from their other colleagues, many women become “homely harpies” who are “ridiculed” for their choice to represent themselves in a way, which is professional but not necessarily “attractive”. It is clear that the physical appearance of women in the legal profession is a deeper concern than initially thought. It shows how archaic beliefs about women and inter-women relationships are exaggerated which essentially affects both the employer and the potential employee.

 

The dress code for both men and women is understandably stricter when they are present in the Courts. However, Corbett[13] states that “demands and expectations” are “greater” for women. Kopf[14], a US federal judge even went as far as to tell women to not dress like “ignorant sluts”. Such demeaning and misogynistic comments have devalued the position of women in the legal system; simply because of the way they dress. In addition, if women are addressed as “sluts” or singled out for their “inappropriate” dress it can demean their authority as representatives for their client. This would not only damage their own, personal careers but it could also affect the reputation of the firm they represent. This could make employers more cautious towards future female employees.

Most of the above arguments concern immodesty and the idea that women are sexual objects. However, the controversy surrounding the Hijab is seen as another way of preventing women progressing in the legal system. Whilst the traditional item intends to avoid “distracting” men it is stirring up controversy regarding the balance between the freedom of expression and neutrality of the legal system. Views are split between Ghadban[15], who believes allowing the headscarf in the courtroom “constitutes a step by step erosion of the state” and Finkel[16] who states that the neutrality obligation “does not apply to lawyers”.

 

Germany’s “patchwork of rules”[17] regarding the permittance of the headscarf amounts to “demeaning compromises” that had burdened the same Muslim female barrister on two separate incidents. Both incidences had allowed the woman to wear a head covering that “no longer had a religious appearance”. To an outside body, it could be argued that the “peasant scarf”[18] or “type of cap”[19] the lawyer had re-styled held the same sentiment and that it was pointless for the judges to create such a protest against it. Obama[20] parallels with this idea, stating in a speech in Cairo that the “western world” must avoid “impeding Muslim citizens from practicing…as they see fit.” However, President Sarkosy[21] claims wearing clothing like the burqa and the hijab is a problem regarding the “dignity of a woman.” The irony with Sarkosy’s claims is that he identifies that the “subservience” of the religious dress as the true “problem”, a problem that does not belong in a court of justice.  Here a paradox emerges, whilst the “problem” of the hijab is seen negatively amongst the German courts the similar, if not, identical, “problem” of male imposed dress standards is promoted in the courts of law across the world.

 

Kolat’s concern with the controversy of the hijab in German courts is that it essentially “amounts to an occupation ban”[22]. Not only does this reduce the likelihood of women comfortably working in the legal system, it also has a backlash for ethnic minorities. A 2011 Berlin case[23] in which a colleague refused to even be in the same room as a headscarf wearing defence lawyer shows just how easily social influences and, in this instance, racial hatred, can not only embarrass but prevent female lawyers from effectively doing their jobs. Mahajan[24] states that beauty standards tend to reflect “dominant groups” so typically, a woman in a hijab is, according to Mahajan’s thesis, less attractive than the typical “white” woman. This itself leaves many Muslim women to earn less than “3-4%” due to them not being as “attractive” thus not as successful. This statistic alone can disinterest female ethnic minorities in to joining the legal profession and giving it the diversity it truly needs. This lack of interest shows that traditional beauty standards have indirectly affected women progressing and even beginning their legal careers, which has the potential to further deepen the gender imbalance we are currently trying to omit.

 

Zaretsky is correct in identifying that “clothes do not make”… a “lawyer”[25]. However the problem of the female dress code is still a controversial matter in the legal profession. Whilst addressing these controversies may not be a very pressing matter regarding the problems facing women working in law, there seem to be many indirect consequences from preserving both beauty and dress standards that are disadvantaging many women from progressing with their careers in the legal system. “Dominant groups” are represented as the more attractive thus, theoretically, more successful lawyers, a dogma that disadvantages the many ethnic women trying to pursue and further their legal careers. In addition it seems conformists to these beauty standards are supposedly subjected to jealousy from fellow colleagues in an already competitive field. However, this idea of “jealousy” is an archaic description of women that has been fashioned by the media and arguably, a fear of women in powerful positions, and in reality many women will never come across this problem. It seems that it is simply the imprinted idea that women are jealous of more “attractive” colleagues and thus will be more unpleasant towards them that is swaying many away from starting a career in the legal system. In conclusion the supposedly ‘innocent’ dress codes of female lawyers is disinteresting women from joining the legal profession by creating an amalgamation of fears and stereotypes that will effectively drive women away from dismantling the gender imbalance we are faced with today.

Sania Nissar

[1]

[2] F J cavico and others, ‘Appearance discrimination in employment: Legal and ethical implications of “lookism” and “lookphobia”’ [2012] 32(1) Equality, Diversity and Inclusion: An International Journal 83

[3] D Wiley, ‘Beauty And The Beast: Physical Appearance Discrimination In American Criminal Trials’ [1995] 27(1) St Mary’s L,J 193

[4] Stranger , ‘ Attractive People Are Simply More Successful ‘ ( buisinessinsider.com) < http://www.businessinsider.com/attractive-people-are-more-successful-2012-9?IR=T> accessed 21 August 2015

[5] E Y Wu, ‘Cross cultural patriarchal demands on women’s dress-appearance ‘ [2011] 33(1) Women’s RTS L Rep 169

[6] Foxrothschildcom, ‘The Fashion Lawyer’s Guide to Work Attire | Fashion Law Blog’ (Fashion Law Blog, 14 April 2010) <http://fashionlaw.foxrothschild.com/2010/04/articles/the-business-of-fashion/the-fashion-lawyers-guide-to-work-attire/> accessed 21 August 2015

[7] Hill Abovethelawcom, ” (Above the Law,) <http://abovethelaw.com/2010/04/fashion-dos-and-donts-from-the-windy-city-if-you-have-a-tramp-stamp-it-may-already-be-too-late/?utm_source=feedburner> accessed 25 August 2015

[8] Professor Collins John Marshall Law school – Hill Abovethelawcom, ” (Above the Law,) <http://abovethelaw.com/2010/04/fashion-dos-and-donts-from-the-windy-city-if-you-have-a-tramp-stamp-it-may-already-be-too-late/?utm_source=feedburner> accessed 25 August 2015

[9] Akbari Abovethelawcom, ‘Summer Associates: Please Don’t Dress Like Fashion Victims’ (Above the Law, 5 June 2012) <http://abovethelaw.com/2012/06/summer-associates-please-dont-dress-like-fashion-victims/> accessed 21 August 2015

[10] Chicago bar association fashion show HuffPostStyle huffingtonpostcom, ” (The Huffington Post, ) <http://www.huffingtonpost.com/2010/04/13/chicago-bar-association-t_n_535493.html> accessed 27 August 2015

[11] E Y Wu, ‘Cross cultural patriarchal demands on women’s dress-appearance ‘ [2011] 33(1) Women’s RTS L Rep 169

[11] Foxrothschildcom, ‘The Fashion Lawyer’s Guide to Work Attire | Fashion Law Blog’ (Fashion Law Blog, 14 April 2010)

[12] Rhode, D.L. (2009), “The injustice of appearance”, Stanford Law Review, 61(1) 1033

[13] Corbett, W.R. (2007), “The ugly truth about appearance discrimination and the beauty of our employment discrimination law”, Duke Journal of Gender Law and Policy, 14(1), pp. 153

[14] Millhiser Thinkprogressorg, ” (ThinkProgress, ) <http://thinkprogress.org/justice/2014/03/27/3419556/federal-judge-tells-women-attorneys-not-to-dress-like-an-ignorant-slut/> accessed 27 August 2015

[15] Wagner Spiegel online, hamburg, germany, ” (SPIEGEL ONLINE, ) <http://www.spiegel.de/international/germany/muslim-lawyers-seek-clarity-on-allowance-of-headscarf-in-court-a-922522.html> accessed 27 August 2015

[16] Wagner Spiegel online, hamburg, germany, ” (SPIEGEL ONLINE, ) <http://www.spiegel.de/international/germany/muslim-lawyers-seek-clarity-on-allowance-of-headscarf-in-court-a-922522.html> accessed 27 August 2015

[17] Wagner Spiegel online, hamburg, germany, ” (SPIEGEL ONLINE, ) <http://www.spiegel.de/international/germany/muslim-lawyers-seek-clarity-on-allowance-of-headscarf-in-court-a-922522.html> accessed 27 August 2015

[18] Wagner Spiegel online, hamburg, germany, ” (SPIEGEL ONLINE, ) <http://www.spiegel.de/international/germany/muslim-lawyers-seek-clarity-on-allowance-of-headscarf-in-court-a-922522.html> accessed 27 August 2015

[19] Wagner Spiegel online, hamburg, germany, ” (SPIEGEL ONLINE, ) <http://www.spiegel.de/international/germany/muslim-lawyers-seek-clarity-on-allowance-of-headscarf-in-court-a-922522.html> accessed 27 August 2015

[20] E Y Wu, ‘Cross cultural patriarchal demands on women’s dress-appearance ‘ [2011] 33(1) Women’s RTS L Rep 169

[21] E Y Wu, ‘Cross cultural patriarchal demands on women’s dress-appearance ‘ [2011] 33(1) Women’s RTS L Rep 169

[22] Wagner Spiegel online, hamburg, germany, ” (SPIEGEL ONLINE, ) <http://www.spiegel.de/international/germany/muslim-lawyers-seek-clarity-on-allowance-of-headscarf-in-court-a-922522.html> accessed 27 August 2015

[23] Wagner Spiegel online, hamburg, germany, ” (SPIEGEL ONLINE, ) <http://www.spiegel.de/international/germany/muslim-lawyers-seek-clarity-on-allowance-of-headscarf-in-court-a-922522.html> accessed 27 August 2015

[24] Mahajan, R. (2007), “The naked truth: social media discrimination, employment, and the law”, Asian-American Law Journal 14(1) 165

[25] Zaretsky Abovethelawcom, ‘Judges Want Women Lawyers To ‘Stop Showing Off’ Their ‘Distracting’ Cleavage, Legs In Court’ (Above the Law, 20 February 2015) <http://abovethelaw.com/2015/02/judges-want-women-lawyers-to-stop-showing-off-their-distracting-cleavage-legs-in-court/> accessed 30 August 2015

 

The Serious Crime Act 2015: A Focus on Confiscation, Protection and Organised Crime

The Serious Crime Act (“the Act”) received Royal Assent on 3rd March 2015. The Act brought about changes to a number of areas including computer misuse, prison security and child cruelty.   There are three main areas that will be of interest to those practising within the areas of fraud or financial crime. This paper is intended to provide a useful summary of these three areas. Given the extent of the amendments to confiscation, particular attention has been devoted to highlighting and explaining those provisions.

 

The three changes

  1. Improving the State’s ability to recover criminal assets by amending the Proceeds of Crime Act 2002 (“POCA”).
  2. Creating protection from civil liability for those who report suspicions of money laundering in good faith.
  • Creating a new offence aimed at those who participate in the activities of an organised crime group.

 

  1. Changes to confiscation – effective from 1st June 2015

With recent reports showing that only 26 pence is recovered for every £100 ordered under confiscation proceedings, it is little surprise that this area was tabled for review. The new variations to confiscation provide deterrents and methods by which the courts can restrict the ‘wiggle room’ on the part of defendants trying to avoid paying confiscation. These methods include; increasing the term of default sentences; decreasing the amount of time available to repay; mandating the consideration of travel restrictions; taking money directly from bank accounts and more efficient consideration of third party interests.

Increase in term for default sentences

Section 10 deals with the increase in term of default sentences when a defendant is unable to pay an amount ordered under confiscation proceedings. The number of sentencing ranges has been decreased from twelve to four with a maximum of fourteen years for a failure to pay an order of more than £1 million. This represents a significant change as previously the maximum was ten years for an order of this amount. This section also removes the automatic release trigger at the half way point for prisoners in custody with orders of a value higher than £10 million. This marked increase in the consequences for failure to pay higher value orders is a clear attempt to lower the appeal of going to prison instead of paying for confiscation.

Decrease in time available to repay confiscation

In relation to the changes in time available to repay, section 5 of the Act stipulates that where a defendant cannot pay immediately he or she can be given up to three months to repay; in exceptional circumstances this can be extended up to six months. These deadlines under the previous regime were six and twelve months respectively. The new requirements also state that an extension to six months may only be given where the defendant has made all reasonable efforts to repay within the initial three month specified period.

Mandatory consideration of travel restriction

Section 7 provides that the court must consider whether any restriction or prohibition on the defendant’s travel outside the United Kingdom ought to be imposed for the purpose of ensuring that the order is effective. This provision will therefore force the judge to consider whether the defendant could readily dispose of assets overseas; meaning those who could will be likely to face commensurate travel restrictions for the duration of time taken to repay any order.

Taking money directly from the defendant’s account

When defendants do not volunteer their confiscation repayments directly, section 14 gives magistrates the ability to order that money be paid directly from a bank or building society to the designated officer of the court. This provision can also be amended by the Secretary of State to cover money from an institution other than a bank or building society or to include a product other than an account.

Third party interests

The Act also contains amendments intended to speed up enforcement by dealing with third party claims at an earlier stage. Sections 1 to 4 create a requirement for prosecutors to set out any known details of third party claims at the start of confiscation proceedings. Section 1 specifically allows those who have an interest in property held by the defendant, and liable to inclusion in calculations for confiscation purposes, to make representations to the court. The court can also order the provision of information by third parties and its ultimate decision on the allocation of beneficial interest in property will be binding subject to appeal. This appears to be an attempt at eliminating the delays caused by considering third party interests at the enforcement stage.

Discharge of an order by a defendant’s estate

Section 8 allows a defendant’s estate to make an application to discharge the order. Such an application should succeed in the event of the defendant’s death where the order has not been fully satisfied and either it is not possible to recover anything from the estate or it would not be reasonable to attempt to recover from the estate. The Home Office envisages that such discharges might apply where, for example, there are no assets remaining in the defendant’s estate.

Victim surcharge order

Section 15 adds victim surcharge orders to the list of relevant orders that can be paid for using monies recovered under a confiscation order. When a defendant does not have sufficient means to satisfy both a confiscation order and a relevant order, the amount recovered under the confiscation order may be used to satisfy the relevant order.

Will these changes be effective?

Most of these changes are aimed at speeding up the confiscation process and encouraging the repayment of orders more promptly. It remains to be seen, however, whether decreasing the time available for defendant’s to dissolve assets and increasing the amount of time spent in prison for those who fail to pay higher value orders will actually achieve these aims.

  1. Protection from civil liability for reporting suspicions of money laundering – effective from 1st June 2015

Certain professionals are obliged to make Suspicious Activity Reports (often referred to as SARs) to the National Crime Agency (“the NCA”) where they have reasonable grounds to know or suspect that their client is engaged in money laundering. It is a criminal offence not to report in these circumstances.

Practical difficulties can arise with the client management aspect of reporting since there is also an obligation not to ‘tip-off’ an individual under suspicion. When this individual is a prized client of an international financial services firm, being prohibited from revealing the report can damage the working relationship since the transaction cannot be completed until approval is given by the NCA. The client is therefore effectively ‘in the dark’ as to the reasons for any delay.

In certain cases a fundamental breakdown occurs between the regulated firm and the client which can lead to litigation. The Act has therefore introduced welcome protection for those who report suspicions of money laundering in good faith. Section 37 states, “where an authorised disclosure is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by or on whose behalf it was made”.

The contrary view in relation to the newly afforded protection is that it has the potential to be abused. As long as an individual can assert that a report was in good faith, their potential exposure to civil liability will be reduced according to the strength of that assertion. It is not unforeseeable that a competitor would look to report a transaction maliciously in order to prevent a commercial advantage where they can create the appearance of bona fide intentions. There is scant material available to show how the NCA will deal with such a situation, or indeed to suggest that they properly considered this as a possible unintended consequence of this newly afforded protection.

iii. Offence of participating in activities of an organised crime group – effective from 3rd May 2015

Section 45 has introduced this new offence which is targeted at professionals and others who may be participating in the criminality of an organised crime group. The criminal activities participated in must be serious enough to amount to an offence carrying a sentence of seven years’ imprisonment. This provision allows the authorities to target both those individuals who participate actively in certain activities and also those who contribute to the overall criminality through the provision of services, information and similar means of support.

This development is a clear attempt at making it easier for prosecutors to target and capture the activities of those on the fringes of groups who were perhaps more likely to evade charge and/or conviction before. One imagines this would include professionals who assist these groups (such as accountants and in some cases corrupt lawyers too) and also the leaders of the organisations who typically attempt to distance themselves from the criminality. An interesting point to note and monitor for the future is whether this provision will be any more effective than a simple conspiracy charge was in the past. Lawyers working on cases involving these issues will no doubt look to developments in cases such as the recent August 2015 arrests of individuals connected with the Adams brothers of the notorious Clerkenwell crime family. One of the arrested suspects was a chartered accountant.

With the above aims in mind some consider that the threshold is too low in that the accused need only partake in an activity that he or she knows or reasonably suspects is a criminal one. In addition, it is not necessary for the accused to actually know any members of the crime group. Indeed this new offence has even attracted criticism from some professional organisations including the Institute of Chartered Accountants of England & Wales. One of their main criticisms is that the Act will cause professionals to fear giving advice to higher risk clients. It will certainly be interesting to watch and see whether such concerns are well placed.

Conclusion

These changes are consistently focused on dealing with the disposal of criminal assets. The POCA amendments to confiscation proceedings are concerned with returning the proceeds of criminal assets to the State, the new offence in relation to organised crime groups can be interpreted as an attempt at preventing professionals from assisting criminal groups in retaining assets, and finally, the protection from civil liability for those who report in good faith is clearly an attempt to alleviate fears for those who wish to report suspicious activity surrounding potentially criminal assets. While the success of these amendments is largely unknown, the State orientation surrounding these sections of the Act is clear: a notable focus on pursuing criminal assets. The next challenge for practitioners will centre on navigating these provisions, particularly in relation to organised crime.

William Glover

Will is starting pupillage at 3 Temple Gardens in October 2015

Sources

House of Commons Committee of Public Accounts, Confiscation Orders, Forty-ninth Report of Session 2013-14

The Serious Crime Act 2015: http://www.legislation.gov.uk/ukpga/2015/9/contents/enacted

Home Office Fact Sheet, Serious Crime Bill Overview, March 2015: https://www.gov.uk/government/collections/serious-crime-bill

Shah and another v HSBC Private Bank (UK) Ltd [2012] EWHC 1283 (QB)

http://www.icaew.com/en/about-icaew/what-we-do/act-in-the-public-interest/policy/budget-and-pbr/flawed-serious-crime-bill-wont-make-it-easier-to-convict-crooked-professionals

http://www.lawgazette.co.uk/law/practice-points/serious-crime-act-2015/5049338.fullarticle

http://www.standard.co.uk/news/crime/adams-brother-on-dirty-cash-charge-a2414616.html

http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/ukfiu/legal-basis-for-reporting

Alternative Imprisonment – The Law on Assisted Suicide

At present the law on assisted suicide in the UK is fatally flawed with too much resting upon prosecutorial discretion and artificial distinctions leaving those most vulnerable most alienated. Proposals have been made to reform the law in this area but these plans will not go far enough in guaranteeing the human right to die. In this article I shall outline present failings and the flaws in future proposals and suggest reforms that will achieve adequate recognition of the right to die.

The current legal position

Section 2 of the Suicide Act 1961 rendered aiding, abetting, counselling or procuring the suicide of another a criminal offence despite section 1 abrogating the criminality of self-directed suicide. Section 4 affords prosecutorial discretion to the DPP. The law was amended in the Coroners and Justice Act 2009 section 59 stating that a person commits an offence if “D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and D’s act was intended to encourage or assist suicide or an attempt at suicide.” Notably the offence may be committed regardless of whether suicide actually occurs. Section 2A covers a form of vicarious liability derived from arranging for another individual to encourage or assist in suicide.

In 2009 the House of Lords in R (on the application of Purdy) v DPP1 required the CPS to clarify its approach to prosecution. The result has done little to assist the situation. The guidelines2 clearly state that the law has not changed and assisting suicide remains an offence. The present position as such offends the principle of legal certainty, a core tenant of the rule of law. One may argue that the question of legality is unquestionably resolved but to do so avoids the true basis of this concept; namely the ability to accurately plan and pre-judge social interaction and personal conduct. The law ought not to adopt a position whereby individuals are left to determine their actions solely by reference to prosecutorial discretion that operates on a scale of likelihood not certainty. When the criminality of an action and the attitude towards prosecution pull in opposite directions profound uncertainty arises and adversely impacts individual decision making.

For the CPS to prosecute a Full Code Test must be satisfied requiring sufficient evidence and that the prosecution is in the public interest. Too much turns on the latter element. The evidential component is unlikely to be in issue. Defendant’s who have escorted relatives abroad to die have done so plainly. Yet a possible consequence of using a full code test as the legal measure is that it may result in assisted suicides taking place in secret removed from medical safeguards on competence and court approval and in manners less humane than the administration of lethal drugs. In addition the further and determinate question is one of public interest and by preferring the issue to be dealt with by parliament, the Supreme Court’s acquiescence has permitted a framework whereby the position is not settled but rather open to reevaluation by the CPS. One might argue that the CPS merely decides whether an assistant is prosecuted and therefore does not prevent a suffering individual from dying in the manner of their choosing. But fear of prosecution adversely affects the participation of assisting parties and engineers a conflict for the individual seeking to die between the knowledge that their wishes may leave relatives open to prosecution and the necessity of dignified death. The CPS wields more power in the decision making process than may initially be appreciated. Public interest is an inherently flexible concept and the guidelines indicate that each case must be taken in turn. The position was exacerbated following the House of Lords decision in R (on the application of Pretty) v DPP3 in which it was

held that the DPP had no power to give an undertaking not to prosecute a future crime. Better a unified policy on the matter than the uncertainty inherent in the law as it presently stands.

In 2014 the UK Supreme Court rejected an appeal in R (on the application of Nicklinson and another) v Ministry of Justice4. Five Justices concluded that the court had the constitutional authority to make a declaration of incompatibility but only Lady Hale and Lord Kerr viewed the blanket ban as an issue requiring a declaration of incompatibility. Subsequently in appeals to the ECtHR the cases were also rejected. Further in the case of R (o.t.a A.M) v. General Medical Council5 the High Court held that GMC guidance to staff that limits action to providing information on the legality of assisted suicide and the availability of sedation and palliative care did not infringe the applicant’s Article 8 right to private life. Section 2 of the Suicide Act has been deemed compatible with Article 8 even as a blanket ban. The derogation from the prohibition comes in the judicial recognition of the doctrine of double affect by the House of Lords in Airedale NHS Trust v Bland6 whereby treatment may be withdrawn even if death was an inevitable result; drawing a formalistic distinction between acts and omissions that restricts modes of euthanasia to inhumane starvation. Further Lord Sumption in Nicklinson refers to pain management which may lead inexorably to death as a further application of double effect; creating a further classification of cases based on the presence of pain that can be validly treated. A further issue exists in the relationship between murder, manslaughter and assisted suicide which isolates those who cannot self-administer. The distinction reveals the inadequacies of using discretion as de facto determinate of unlawfulness because though captured within the same two-part test an action falling on the murder side of the technical distinction attracts a greater likelihood of prosecution. On a semantic note the use of rigidly labeled offences and associated stigma fails to do justice to the spectrum of individual conduct and motive present within a given category.

The current law mirrors the tone of social discourse that places dying in the realm of legal privilege rather than human right. The idea that the right to die is one capable of being legally granted perversely suggests that society is the final arbiter of rights that are more truthfully based on individual humanity. Instead of recognising that this right applies to all individuals the present law is inhibited by knotty legal distinctions that ultimately fail the individuals who ought to be at the centre of the issue; permitting only those with the ability to take the required self-action full enjoyment of their human right.

Lord Falconer’s Assisted Dying Bill

The Assisted Dying Bill7 seeks to decriminalise assisted suicide and provide a strict regulatory framework for the timing of declarations, the status of individuals who may receive drugs and those who may provide for the administration of such drugs. The Bill represents a step forward and conducts the balancing exercise, that the Supreme Court saw itself unfit to address, between the recognition of a right and the need for safeguards to ensure that all actions are taken to allow for the exercise of the right rather than the abuse of a sick individual. Valuably the Bill also expressly permits conscientious objection. However there are a number of issues with the proposals.

Chief amongst these difficulties is the terminally ill requirement found in section 1 of the Bill. Requiring terminal illness places an arbitrary limitation on human freedom. Though placing a medical limitation on those to whom the law may apply can be viewed as a concession to broader public concerns of potential abuse, drawing a distinction between those “reasonably expected to

die within six months” and those subject to long and torturous existences is unsustainable. The right being recognised is one of individual autonomy and the limitation in the Bill simply affords an alternative artificial constraint. The law ought to recognise the right of all individuals to die, not the right to die in a restrictive manner and at a time that the law approves as this takes any reform only somewhat further than the present position by retaining artificial delimitations that prioritise safeguards over universal rights.

There are two further issues in the propositions in section 4 Assistance in Dying. The first is the use of ‘the attending doctor…may prescribe’ which appears to afford doctors a discretion that puts up a barrier to the exercise of the right. Aside from the question of conscientious objection one might argue that in situations where the decision is without medically legitimate grounds for assisted suicide such as pain or progressive immobilisation and is based on purely psychological factors practitioners ought to remain free to deny treatment. However patient autonomy ought to be prioritised over medical beneficence and this issue therefore speaks of a need to reassess what qualifies as a medically relevant factor and more broadly of a persistent failure to equalise the status of physical and mental factors in treatment and policy considerations. The UK courts are trending towards a recognition of individual autonomy such as in the recent case of Montgomery v Lanarkshire Health Board8 and this trend should continue into assisted dying reform. The latter issue is that the provisions only permit the doctor to implement a method of self-administration and “Subsection 4 does not authorise an assisting health professional to administer 
a medicine to another person with the intention of causing that person’s death,” regardless of how profoundly the patient might wish for the doctor to do so. Retaining distinctions between self and third-party administration perpetuates a legal position that renders those in vegetative states or with advanced motor neuron conditions most abandoned; beyond the remit of even newly reformed law.

Proposals

The law on assisted dying ought to permit the provision of drugs required to commit suicide to those who have made a reasoned, conscious and fully informed decision to utilise them; the current permitted method of self-starvation is dehumanising. Doctors and relatives ought not to face prosecution for assisting suicide, and the former ought not to fear being struck from the register by the GMC for acting in their patients best interests because the assessment of best interests is for the patient not the court, parliament or any other body; the Mental Capacity Act 2005 adequately sets the approach to best interest decisions. In conjunction with this facet equilibrium must be achieved between psychological and physical factors in the process of medical assessment and though this cannot be manufactured by legislation it can be promoted by abandoning requirements for terminal illness and a six month death projection that renders the issue entirely physical. In all instances suitable medical procedures such as treating physical and psychological symptoms must be followed but the law must nonetheless progress to support rather than stigmatise assisted suicide as a course of treatment. The law of murder and manslaughter also require contemporaneous reform to recognise mercy killing as a defence to murder and remove the formalistic distinction between assisting suicide and committing murder that places those with the worst illnesses beyond humane assistance. All of these changes must be codified to create a rule of law adherent framework and avoid the current failings that allow the issue to turn on prosecutorial discretion.

Conclusion

In sum the present legal position is unsatisfactory and in need of urgent amendment. The Supreme Court and ECtHR could not as a matter of legal reasoning and constitutional orthodoxy have altered the position regardless of how pressing the need for recognition of this human right. Parliament has been left to address the situation and Lord Falconer’s Bill provides a vital step forward though retaining some of the arbitrary distinctions that prevent the law giving full voice to the right in question and create a morally objectionable position. Formal checks and procedures are needed to prevent abuse but the distinctions undermine the right in question and provide no such safeguards. The proposals outlined ameliorate damaging formal distinctions and ensure greater alignment of the law with moral imperatives.

Footnotes:

1 [2010] 1 A.C. 345
2 Crown Prosecution Service, ‘Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide’, (http://www.cps.gov.uk) http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html. accessed 11 August 15 3 [2002] 1 A.C. 800
4 [2015] A.C. 657
5 [2015] EWHC 2096 (Admin)
6 [1993] A.C. 789
7 Assisted Dying Bill (HL Bill 25, 2015-16)
8 [2015] UKSC 11

Author:
James Saunders,
3rd year UCL 
 
 
Featured image credits:
“Writing”