tag:theconversation.com,2011:/global/topics/english-law-17504/articlesEnglish law – The Conversation2023-08-11T14:14:53Ztag:theconversation.com,2011:article/2111532023-08-11T14:14:53Z2023-08-11T14:14:53ZWhy imprisoning repeat shoplifters rarely breaks the cycle of offending – and what may work better<figure><img src="https://images.theconversation.com/files/541706/original/file-20230808-25-1obzzr.jpg?ixlib=rb-1.1.0&rect=0%2C16%2C5364%2C3910&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The possibility of introducing mandatory prison sentences for prolific shoplifters has been mooted by government ministers. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/londonenglandunited-kingdomjuly-21-2019-waterloo-rail-1676652064">Neil Bussey/Shutterstock</a></span></figcaption></figure><p>The UK government is taking a <a href="https://www.gov.uk/government/news/action-plan-to-crack-down-on-anti-social-behaviour">harsher approach</a> to tackle criminal activity which is blighting local neighbourhoods. And recently, government ministers have been talking tough about repeat shoplifting, including <a href="https://www.thetimes.co.uk/article/shoplifters-face-prison-under-crime-crackdown-ggdbv3j99">the possibility</a> of introducing new laws which would see prolific shoplifters imprisoned. This has all been against a backdrop of concern about a <a href="https://www.theguardian.com/society/2023/jun/01/one-guy-uses-us-like-a-larder-the-british-shoplifting-crisis-as-seen-from-the-tills">rise in shoplifting</a> across the UK.</p>
<p>But there are some serious practical problems with any such measures and questions remain over whether such a policy could break the cycle of offending. Meanwhile, there is an innovative approach to this issue which may be a better way of dealing with crimes such as shoplifting called “<a href="https://www.gov.uk/guidance/integrated-offender-management-iom">integrated offender management</a>” (IOM). </p>
<p>Rolled out over the past few years, IOM is a novel criminal justice approach that is designed to break the cycle of re-offending. It is operated by 39 out of 43 police forces in England and Wales. </p>
<p>IOM involves police officers working closely with prison and probation services and criminal justice intervention teams. These are support staff who provide both clinical and therapeutic interventions for drug users involved in the criminal justice system. It is all in an effort to change or control the criminal activities of prolific offenders. </p>
<p>IOM was designed to address the underlying causes of offending. By the end of 2020, it was <a href="https://www.gov.uk/government/publications/integrated-offender-management-strategy">central</a> to the government’s neighbourhood crime strategy. In a report issued that year, former minister for crime and policing Kit Malthouse and former minister for prisons and probation, Luzy Frazer, said: </p>
<p>“We need a new approach – one with the tools to come down with full force on those responsible, but which also encourages rehabilitation and supports offenders to overcome the complex problems that we know can fuel this type of behaviour, such as substance misuse, poor mental health and issues with housing or employment.”</p>
<p>Any proposals which would see prison sentences for repeat shoplifters could risk undoing any positive progress made under IOM. </p>
<h2>The problem with prison</h2>
<p>The UK’s prison estate is running out of capacity for adult males. In November 2022, <a href="https://www.theguardian.com/society/2022/nov/30/uk-government-requests-urgent-police-cells-male-prisoners">the Ministry of Justice announced</a> emergency measures that would see some offenders who would ordinarily be imprisoned (typically remand prisoners) housed in police cells. <a href="https://www.gov.uk/government/publications/prison-population-figures-2023">Figures</a> released in August 2023 show a total of just 980 available prison places.</p>
<p>The government has <a href="https://www.gov.uk/government/news/500-million-boost-to-create-thousands-of-new-prison-places">already stated</a> that more prisons need to be built. But any criminal justice initiative that requires new prisons will take a long time to deliver. This is because, on average, new prisons take <a href="https://consult.justice.gov.uk/digital-communications/proposed-new-prison-in-chorley/supporting_documents/chorleynewprisonconsultation.pdf">two to three years to build</a> and open. </p>
<p>Also, <a href="https://www.centreforsocialjustice.org.uk/wp-content/uploads/2018/10/CSJ-Desperate-for-a-fix-WEB-1.pdf">70% of shoplifting</a> is estimated to be carried out by people funding an addiction to class A drugs – typically heroin and crack cocaine. These people arrive in prison as addicts and likely leave as addicts and so will continue shoplifting. Custody is not a panacea for prolific shoplifting and is unlikely to break the cycle of offending. </p>
<h2>Integrated offender management</h2>
<p>IOM work is done through a mix of rehabilitative and restrictive or enforcement-orientated interventions. Here, the police take a “<a href="https://www.tandfonline.com/doi/full/10.1080/10439463.2018.1547719">carrot and stick</a>” approach to the management of offenders. Plain-clothed officers, deployed as police offender managers, gather intelligence and monitor people for signs of re-offending. </p>
<p>Simultaneously, these officers attempt to draw offenders away from crime by working alongside the other agencies, facilitating access to drug services, education, employment and transitions into stable housing arrangements. This is the “carrot” approach. </p>
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<img alt="A police officer wearing a yellow high visibility jacket" src="https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=715&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=715&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=715&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=899&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=899&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=899&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Integrated offender management involves police officers working closely with other agencies.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-19th-april-2019-police-1392717764">John Gomez/Shutterstock</a></span>
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<p>Where there is evidence that a person is failing to comply with licence conditions, or engage with IOM positively, traditional catch-and-convict policing methods are used by uniformed patrol officers. This is the “stick” approach.</p>
<p>Prolific shoplifters are the type of offenders IOM schemes should be engaging with. </p>
<p>My own <a href="https://www.routledge.com/Integrated-Offender-Management-and-the-Policing-of-Prolific-Offenders/Cram/p/book/9780367254148">research</a> has focused on how police officers contribute to IOM schemes. </p>
<p>I have also spoken with offenders who were engaged with IOM in the community. A number said that, while it was initially challenging to do so, in time they were able to form working relationships with police officers. </p>
<p>And, significantly, because of this, IOM had had a positive impact on their lives. This was particularly the case when it came to IOM helping them enter employment and tackle any drug-related issues they were experiencing. </p>
<p>Broadly, IOM seemed to have a strong motivational influence and a positive impact on those who wanted to leave their criminal lifestyle behind. </p>
<p>But IOM can only fully operate when people are able to access the relevant support services in the community. People may be able to get very limited employment and substance misuse help when in prison, but IOM offers a much deeper and enduring level of support. </p>
<p>The prospect of removing sentencing discretion for prolific shoplifters from magistrates and judges and introducing mandatory jail sentences, would risk disrupting a significant criminal justice programme. IOM may be a better and more cost effective way to deal with the pressing issue of repeated shoplifting.</p><img src="https://counter.theconversation.com/content/211153/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>My original research, on Integrated Offender Management, was supported by the Economic and Social Research Council. Grant number: EF/H011382/1.</span></em></p>Integrated offender management is a better way of dealing with shoplifters than prison.Frederick Cram, Lecturer in Law, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1979312023-02-13T12:51:00Z2023-02-13T12:51:00ZCohabitation: it’s time to take legal reform seriously<figure><img src="https://images.theconversation.com/files/508450/original/file-20230206-23-biiruh.jpg?ixlib=rb-1.1.0&rect=0%2C11%2C7423%2C4933&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/relocation-day-cohabitation-new-house-young-2164076925">fizkes/Shutterstock</a></span></figcaption></figure><p>We live our lives differently today. Marriage is no longer the go-to choice for couples. The <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2019">marriage rate</a> is now the lowest since records began in 1862 and many couples are instead cohabiting. The unmarried family has become the <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2018">fastest-growing family type</a> in the UK. </p>
<p>The <a href="https://researchbriefings.files.parliament.uk/documents/SN03372/SN03372.pdf">number</a> of cohabitants has grown from around 1.5 million in 1996 to around 3.6 million in 2021, representing an increase of 144%. That amounts to one in five couples today and that figure is predicted to rise to one in four by 2031. </p>
<p>Despite this trend, it is alarming that cohabiting couples in England and Wales are often left without legal protections when they break up. Take the hypothetical example of Tom and Mary who have cohabited for ten years in a house owned by Tom and have a child together. Unlike their married or civilly partnered counterparts, if they split up, their home and other property would not be divided by the courts based on what is fair, having regard to the financial needs of the parties and contributions to the relationship. While child support would be payable, Mary herself would not be entitled to any maintenance.</p>
<p>Tom and Mary would be largely treated as two unconnected individuals subject to the complexities and costs of property and trusts law instead. If no agreement was reached between the two that ownership of the home was to be shared and Mary had not made financial contributions to its acquisition, she would be left without a remedy. Work in the home and looking after their child would not make a difference in the eyes of the law as it stands. </p>
<p>Of course, couples like Tom and Mary can create wills, purchase property jointly or enter contracts, but in practice many people do not get around to it. Life is messier than that. </p>
<h2>The myth of common law marriage</h2>
<p>What exacerbates this issue is that many couples believe they do not need to put their legal affairs in order and are already protected as so-called “common law spouses”. But this is completely untrue. Merely living together does not create legal entitlements, yet this myth is widespread and endures. </p>
<p><a href="https://theconversation.com/common-law-marriage-a-myth-nearing-its-end-114037">Research</a> in 2019 showed 46% of the population in England and Wales thought unmarried cohabiting couples have a “common law marriage” with the same legal rights as spouses. </p>
<p>Academics and practitioners have long called for reform of this area. Graeme Fraser, the chair of Resolution’s (an organisation of family justice professionals) cohabitation committee <a href="https://www.ft.com/content/ea82e8dc-d95d-42b0-891d-1b0d6d90c8b1">branded</a> the law “unfair”, “not fit for purpose” and capable of leaving couples “at significant financial risk”. Lawyers frequently have to advise disappointed cohabiting clients that the law cannot provide solutions. The problem is lack of political will.</p>
<p>A comprehensive reform <a href="https://www.lawcom.gov.uk/document/cohabitation-the-financial-consequences-of-relationship-breakdown/">proposal</a> was produced by the Law Commission in 2007 and later shelved. Last year, the Women and Equalities Committee of the UK parliament released its <a href="https://committees.parliament.uk/publications/23321/documents/170094/default/">report</a> calling for the introduction of remedies for cohabitants who have lived together for a specified period of time or have a child together. But in November 2022 it was <a href="https://committees.parliament.uk/publications/31430/documents/176284/default/">rejected</a> by the government.</p>
<p>Resistance to reform is usually based on <a href="https://publications.parliament.uk/pa/cm5803/cmselect/cmwomeq/92/report.html#heading-5">fears of undermining marriage</a>, imposing rights on couples that do not want them, or that the scheme might be too difficult to operate. None of these are convincing arguments but they require closer inspection. </p>
<p>Regarding the undermining of marriage, no proposal to reform cohabitation rights in England and Wales has, to date, called for cohabitants to be treated identically to married people. Other countries, including New Zealand and Australia, do indeed treat cohabitants – or “de factos” as they call them – equally once they have lived together for a period of time or have had a child together. </p>
<p>But, in England and Wales, the calls for legal reform are not about collapsing the distinction between cohabiting and married people. Rather, reforming the current system would create a legal safety net for cohabiting couples.</p>
<p>The idea that reform might impose rights on couples who do not want them disregards the meaning of choice in this context. Some couples choose cohabitation because they do not want to marry. </p>
<p>Cohabiting couples who are knowledgeable of the law could opt out of legal protections, thereby exercising and preserving their autonomy. But <a href="https://www.natcen.ac.uk/blog/common-law-marriage-a-peculiarly-persistent-myth">research</a> on the common law marriage myth reveals a significant proportion of couples do not feel the need to marry because they believe they already are protected by the law. </p>
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<img alt="Two wooden figures are set in front of a small wooden house." src="https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/two-people-standing-near-house-wooden-1035680527">Andrii Yalanskyi/Shutterstock</a></span>
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<p>The complexity of operating a scheme is another counterargument. Critics may question how we define cohabitants and ask whether the law will inadvertently catch casual relationships or even flatmates. </p>
<p>The answer to this is careful drafting and drawing inspiration from other jurisdictions where cohabitation protections already exist. Both Scotland and the Republic of Ireland have legal frameworks that operate on relatively clear parameters. They tend to be used by couples who were in lengthy, committed relationships with children.</p>
<p>It is naive to think, or indeed romantically hope, that marriage works for everyone. The time has come for cohabitation reform to be taken seriously and placed back on the political agenda, as advocated by the <a href="https://www.birmingham.ac.uk/research/law/family-law-reform-now/securing-cohabitation-reform.aspx">Family Law Reform Now Project</a>, a group of academics, practising lawyers and policymakers. Last year, it was revealed that <a href="https://theconversation.com/over-half-of-children-in-england-and-wales-are-now-born-to-unmarried-parents-overturning-a-history-of-stigma-and-discrimination-189025">more than half of children</a> in England and Wales are now born to unmarried parents, which makes the need for legal reform all the more imperative. </p>
<p>It is time for society to confront the reality of modern families and offer cohabiting couples the basic legal protections they deserve.</p><img src="https://counter.theconversation.com/content/197931/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andy Hayward acted as Specialist Adviser to the Women and Equalities Committee's Rights of Cohabiting Partners Inquiry. The views expressed here are his own and should not be taken as representing the views of the Committee. </span></em></p>Cohabitation reform is needed in England and Wales to better protect couples legally upon relationship breakdown.Andy Hayward, Associate Professor in Family Law, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1764222022-02-08T10:04:20Z2022-02-08T10:04:20ZThe case of the caterpillar cakes: why legal protection for a shape is so hard to come by<p>UK retailers Marks and Spencer (M&S) and Aldi have finally <a href="https://www.theguardian.com/business/2022/feb/01/marks-spencer-and-aldi-call-truce-in-colin-the-caterpillar-cake-war">called a truce</a> to the trademark-based legal spat pitting their caterpillar cakes, Colin and Cuthbert, against each other. While details of the settlement have not been made public, Aldi’s Cuthbert will <a href="https://www.theguardian.com/business/2022/feb/01/marks-spencer-and-aldi-call-truce-in-colin-the-caterpillar-cake-war">not reportedly</a> return in quite the same form. As Aldi tweeted, upon announcing that an agreement had been reached:</p>
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<p>Colin the Caterpillar, a roll sponge cake decorated with milk and white chocolate icing and sprinkles, has been an M&S stalwart for more than 30 years. The retailer claims to have sold more than 15 million to date. Since 2011, <a href="https://www.independent.co.uk/extras/indybest/food-drink/colin-caterpillar-cuthbert-aldi-cake-b2005818.html">rival products</a> with similarly alliterative names have appeared: Asda’s Clyde, Tesco’s Curly, Waitrose’s Cecil, Co-op’s Curious and <a href="https://metro.co.uk/2019/10/05/aldi-selling-cuthbert-caterpillar-cake-yes-ms-knows-10867060/">Cuthbert</a>.</p>
<p>In April 2021, presumably because it was thought that, of all the caterpillar cakes, Cuthbert most closely resembled Colin, M&S launched legal proceedings to protect its intellectual property and get Aldi to remove the product from its shelves. The retailer claimed that the similarity between the two cakes would lead consumers to think that they were of the same standard, thereby allowing Cuthbert to ride on Colin’s coattails. </p>
<p>Companies often seek to protect, <a href="https://www.youtube.com/watch?v=_CM9-4Qrj3I&list=PLij_WrWeezY8lmE7_m35m_LxPm2H3bta0&index=3">as trademarks</a>, certain signs that help them distinguish their products and services from those of their competitors, such as brand names, logos and slogans. Along with patents (which protect innovative technical solutions) and copyright (which protects creative or intellectual works such as books and music), they are a form of intellectual property. </p>
<p>The Colin v Cuthbert dispute hinges specifically on trademarks, because it related to the distinctive characteristics of commercial assets. M&S has held trademarks in the UK in relation to <a href="https://trademarks.ipo.gov.uk/ipo-tmcase/page/Results/1/UK00002499694">Colin’s name</a> and <a href="https://trademarks.ipo.gov.uk/ipo-tmcase/page/Results/1/UK00003509740">green packaging</a> since 2009 and 2020 respectively, but these have not been infringed. </p>
<p>The problem for M&S is that its trademark would probably not extend to the underlying idea of a chocolate roll with a smiley face on it. Securing protection for the shape of a product is <a href="https://doi.org/10.1093/jiplp/jpx028">actually quite difficult</a> in trademark law – not to mention proving that a competitor has presented his goods as those of somebody else.</p>
<p>The <a href="https://www.independent.co.uk/news/business/news/nestle-kit-kat-trade-mark-denied-eu-court-four-finger-chocolate-shape-a7477196.html">four-finger-shaped KitKat</a> chocolate bar and the <a href="https://www.theguardian.com/world/2017/nov/01/black-cab-shape-not-distinctive-enough-to-be-trademark-say-judges">shape of the London taxi</a> are two examples of iconic shapes that have not succeeded. One key reason behind this is that the average consumer doesn’t usually make assumptions about the origin of products on the basis of their shape, or that of their packaging, when other graphic or word elements are absent.</p>
<h2>Passing off</h2>
<p>There have been cases in the UK where shapes and packaging have attracted protection under what jurists refer to as the law of passing off. <a href="https://www.gov.uk/how-to-register-a-trade-mark/unregistered-trade-marks">Passing off</a> offers legal protection against harm to what is termed the “goodwill” of a business. And it can be used to protect unregistered trademarks.</p>
<p>Goodwill here is a <a href="https://heinonline.org/HOL/Page?handle=hein.journals/edinlr13&div=15&g_sent=1&casa_token=oT2yr7CIW7EAAAAA:aUZr8kIEfsPoGbidzl9h1oXNL2899aQaZAJ_qeBbw9qeXo_OZbuf8KPC86e2qRvXFk1BVJOIEuA&collection=journals">legal concept</a>, which refers to a business’s means of attracting people’s custom. It is harmed when a trader suggests – through misdescription on packaging or parasitic copying of a well-known product – that their product or service has some association or connection with another trader, when this is not the case. </p>
<p>In 2015, pop-star Rihanna famously <a href="https://www.judiciary.uk/wp-content/uploads/2015/01/fenty-others-v-arcadia-others1.pdf">won her battle</a> to stop fashion brand Topshop using an unlicensed image of her on a T-shirt. She did so by convincing a judge that customers buying the top would think she had endorsed it. The Court of Appeal ruled that the unauthorised use of her photograph amounted to passing off.</p>
<p>Passing-off claims are notoriously difficult to establish. If someone promotes their bottled drinking water business as “the De Beers of still water”, they may be infringing the De Beers trademark but it is unlikely that a judge would find that they were passing themselves off as connected to De Beers in any commercial sense.</p>
<p>To win a passing-off claim against Aldi, M&S would have essentially had to prove that Colin had built up such a reputation as a signature product – in the same way that Rihanna had done as a music artist and <a href="https://www.judiciary.uk/wp-content/uploads/2015/01/fenty-others-v-arcadia-others1.pdf">style icon</a> – that customers would be able to recognise it without difficulty. The retailer would also have had to prove that Cuthbert was so similar to Colin that consumers, after opening the packaging, would be misled into thinking that the two were somehow associated.</p>
<p>What is more, the fact that so many supermarket chains now have their own version of a caterpillar cake – coming in a variety of sizes and decorative features – would not have helped in establishing that Colin is unique. M&S would have had to prove that in the minds of cake buyers in the UK, the caterpillar has not become a generic shape for cakes.</p>
<p>Further, Aldi’s <a href="https://twitter.com/AldiUK/status/1383076426224705540?s=20&t=px0UuyGf_zbaeoAJgpTcyw">excellent Twitter campaign</a> – and the widespread publicity the lawsuit has attracted – will have also contributed to dispersing any consumer confusion. </p>
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<p>Lastly, it would have been difficult for M&S to argue that Aldi’s caterpillar cake had damaged or had the potential to damage the goodwill in Colin – that is, its power to attract and retain buyers of the cake. The market for caterpillar cakes is saturated: there are just so many to choose from. </p>
<p>The agreed settlement between the two parties means there was no court judgement on the facts. The terms of the settlement remain confidential. It is unknown whether liability – that is, blame – was admitted by Aldi for the wrong allegedly suffered by M&S.</p>
<p>Rarely does a party in a settlement walk away thinking, I have won. Typically, there is no winner and no loser in a negotiated resolution. This case will nonetheless have seen both M&S and Aldi benefit from the kind of marketing exposure that money cannot readily buy.</p><img src="https://counter.theconversation.com/content/176422/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trademarking a shape of a product, or proving that a competitor is passing off their product as your own, is not easy. A high-profile settlement, though, is marketing gold.Stavroula Karapapa, Professor of Intellectual Property and Information Law, University of EssexAlexandros Antoniou, Lecturer in Media Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1696042021-11-04T12:25:43Z2021-11-04T12:25:43ZWhy are medieval weapons laws at the center of a US Supreme Court case?<figure><img src="https://images.theconversation.com/files/429798/original/file-20211102-17-1arnn9t.jpg?ixlib=rb-1.1.0&rect=5%2C5%2C3988%2C2652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A gun rights advocate walks through the rotunda of the Kentucky Capitol. Some lawyers argue that the 1689 English Bill of Rights created the legal basis for public carry of weapons in the U.S.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/marcus-olmstead-stands-in-the-rotunda-of-the-state-capitol-news-photo/1197733926?adppopup=true">Bryan Woolston/Getty Images</a></span></figcaption></figure><p>In the opening scene of “<a href="https://www.youtube.com/watch?v=mgygUwPJvYk">The Last Duel</a>,” the new film set in 14th-century France, a herald announces the rules for conduct at a tournament to the death. He declares that no members of the public – whatever their social background – are allowed to bring weapons to the event.</p>
<p>This scene might seem far removed from 21st-century America. But <a href="https://firearmslaw.duke.edu/2021/09/observations-regarding-the-interpretation-and-legacy-of-the-statute-of-northampton-in-anglo-american-legal-history/">medieval weapons laws</a> – including a 1328 English statute prohibiting the public carry of edged weapons without royal permission – are at the center of dueling legal opinions in a case now before the U.S. Supreme Court, <a href="https://www.oyez.org/cases/2021/20-843">New York State Rifle and Pistol Association v. Bruen</a>.</p>
<p>The plaintiffs are challenging New York’s “<a href="https://www.ny1.com/nyc/all-boroughs/politics/2021/04/28/supreme-court-will-review-new-york-s-concealed-carry-gun-law">proper cause</a>” gun law, which tightly restricts public carry of firearms. If they win, similar laws in several other states will be called into question. That means that concealed carry licensing laws <a href="https://bostonreview.net/law-justice/jonathan-m-metzl-supreme-court-new-york-state-rifle-pistol-association-v-bruen-corlett">could be broadly liberalized</a> for millions of Americans currently living in those more restrictive jurisdictions.</p>
<p>Few people realize how big a role history has played in the battle over gun rights – the topic of a 2019 collection of essays, “<a href="https://scholarlypress.si.edu/store/all/right-to-bear-arms-contested-role-history-contemp/">A Right to Bear Arms? The Contested Role of History in Contemporary Debates on the Second Amendment</a>,” that I co-edited with Smithsonian Museum of American History curators Barton Hacker and Margaret Vining. </p>
<p>The book explores how courts in the United States have turned to history for instruction in how guns should be treated – decrees, laws and interpretations of the past that are at the forefront of the case before the Supreme Court today.</p>
<h2>Scalia points to the English Bill of Rights</h2>
<p>The United States legal system grew out of the English legal tradition. This connection – which is often <a href="https://texaslawreview.org/the-foreign-founding-rights-fixity-and-the-original-constitution">referenced by originalists</a> – is crucial to making sense of the arguments around gun rights in America today.</p>
<p>Originalism <a href="https://slate.com/news-and-politics/2021/11/supreme-court-originalism-new-york-rifle.html">is a legal philosophy</a> that attempts to interpret legal texts, including the Constitution, based on what lawyers think is their original meaning.</p>
<p>An important victory for gun rights advocates took place in <a href="https://www.law.cornell.edu/supct/html/07-290.ZS.html">District of Columbia v. Heller</a>. In that 2008 decision, the Supreme Court for the first time ruled that the Second Amendment protects an individual right to possess a firearm for personal self-defense in the home.</p>
<figure class="align-center ">
<img alt="Majestic white courthouse with columns." src="https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/429976/original/file-20211103-17-1pvttj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">New York State Rifle and Pistol Association v. Bruen is the most significant gun rights case before the Supreme Court since 2008.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/portico-of-the-supreme-court-royalty-free-image/523683894?adppopup=true">Ron Watts/The Image Bank via Getty Images</a></span>
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</figure>
<p>Justice Antonin Scalia, author of the 5-4 majority <a href="https://supreme.justia.com/cases/federal/us/554/570/#tab-opinion-1962738">Heller opinion</a>, claimed that there was a long tradition of the English state’s granting freedom to possess weapons dating back to the 1689 English Bill of Rights, which <a href="https://www.bl.uk/collection-items/the-bill-of-rights">includes a clause</a> that reads “the subjects which are Protestant may have arms for their defence suitable to their conditions and as allowed by law.”</p>
<p>Scalia’s argument relied heavily on the work of historian <a href="http://www.joyceleemalcolm.com/about/">Joyce Malcolm</a>, the author of “<a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674893078">To Keep and Bear Arms: The Origins of an Anglo-American Right</a>” and a Second Amendment scholar at the Antonin Scalia Law School at George Mason University. Malcolm and lawyers who support the expansion of gun rights argue that this clause created the legal basis for having weapons for personal self-defense in Colonial America.</p>
<p>Having prevailed in Heller, gun rights activists are seeking the liberalization of restrictions on public carrying of guns outside the home. In the New York case, <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/183837/20210713165751150_2021.07.13%20FINAL%20NYSRPA%20v.%20Corlett%20Opening%20Brief.pdf">some lawyers</a> and <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/184351/20210720115439756_20-843%20Amici%20Curiae%20Brief.pdf">other parties</a> are now arguing that medieval statutes restricted only public carry that “terrified” the public, and that such statutes were never actually enforced to prevent “normal” public carry.</p>
<h2>Historians object</h2>
<p>However, most scholars of English and American history vigorously <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195147865.001.0001/acprof-9780195147865">dispute the accuracy of this claim</a>. In fact, since the Heller decision, the history of firearms regulation in England and the U.S. has been the focus of what Fordham University law professor Saul Cornell <a href="https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780195147865.001.0001/acprof-9780195147865">has called an</a> “explosion of empirical research.” </p>
<p>Many of these findings appear in <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/193309/20210921191001002_20-843%20bsacProfessorsOfHistoryAndLaw.pdf">an amicus brief</a> presented to the Court in New York State Rifle and Pistol Association v. Bruen.</p>
<p>Signed by 17 professors of law, English history and American history – including me – the brief <a href="https://www.law.com/nationallawjournal/2021/11/02/as-scotus-takes-on-gun-laws-neither-british-nor-early-american-history-support-the-nearly-unfettered-right-to-carry-arms/">demonstrates through a review of historical evidence</a> that “neither English nor American history supports a broad Second Amendment right to carry firearms or other dangerous weapons in public based on a generic interest in self-defense.”</p>
<p>It highlights 700 years of trans-Atlantic weapons regulations, from the <a href="https://slate.com/news-and-politics/2015/10/wrenn-v-d-c-gun-case-turns-on-english-laws-of-1328-and-1689.html">English tradition of restricting public carry</a> through <a href="https://www.brennancenter.org/our-work/research-reports/police-power-and-authority-regulate-firearms-early-america">the American tradition of doing the same</a>. </p>
<p>The brief makes clear that limitations on the public carry of dangerous weapons, including firearms, <a href="https://www.nytimes.com/2021/11/02/us/politics/conservatives-new-york-gun-law.html">are a centuries-old legal and cultural norm</a>.</p>
<p>Early royal proclamations dating as far back as the 13th century regularly prohibited going armed in public without special permission. In 1328, <a href="https://press-pubs.uchicago.edu/founders/documents/amendIIs1.html">the Statute of Northampton</a> banned the public carry of swords and daggers, open or concealed – this was before the invention of firearms – without express permission from the authorities.</p>
<p>As legal scholar and historian <a href="https://harvardpolitics.com/interview-with-geoffrey-robertson-qc/">Geoffrey Robertson</a>, an expert on the English Bill of Rights, put it: “There was never any absolute ‘right’ to carry guns. As the Bill of Rights (1689) made clear, this was only ‘as allowed by law.’”</p>
<figure class="align-center ">
<img alt="Two pistols." src="https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=542&fit=crop&dpr=1 754w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=542&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/429803/original/file-20211102-54198-z8d8cv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=542&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A pair of flintlock pistols that were common in 17th-century England.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pair-of-flintlock-pistols-england-1640-60-artist-unknown-news-photo/1349693063?adppopup=true">Heritage Art/Heritage Images via Getty Images</a></span>
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<h2>An American tradition of limiting public carry</h2>
<p>The English tradition of broad public carry restrictions continued across the Atlantic into the Colonies.</p>
<p><a href="https://books.google.com/books/about/The_Skulking_Way_of_War.html?id=f-G0tLVZ-dwC&source=kp_book_description">During periods of heightened risk of attack</a>, some Colonies required certain individuals to carry guns to church or when working in fields away from fortified or populated areas. However, this obligation was not understood as establishing a right to carry firearms in public.</p>
<p>After the American Revolution, states continued to adopt regulations echoing the Statute of Northampton. <a href="https://scholarship.law.duke.edu/lcp/vol80/iss2/3/">Recent scholarship</a> has uncovered that early-to-mid-19th-century firearms regulations varied considerably by jurisdiction and geography, but 19 states had restrictions for public carry on the books.</p>
<p>After the Civil War, <a href="https://firearmslaw.duke.edu/2021/10/new-research-from-the-uc-davis-symposium-the-theoretical-lethality-index-reconstruction-regulation-and-enforcement/">as the lethality of firearms increased exponentially through technological advances</a>, municipalities and states <a href="https://www.washingtonpost.com/outlook/2019/09/12/when-texas-was-national-leader-gun-control/">like Texas</a> imposed <a href="https://www.brennancenter.org/our-work/research-reports/police-power-and-authority-regulate-firearms-early-america">even broader public carry prohibitions</a>. </p>
<p>By 1900, there was a legal consensus that <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/184400/20210723164521988_20210723-164257-95754288-00000402.pdf">states and localities generally had the authority to limit public carry</a>. While the American approach to public carry restriction was fluid – varying across time and jurisdiction based on social and political changes – there is a consistent history and tradition of many American Colonies, states, territories and municipalities imposing broad prohibitions on carrying dangerous weapons in public, particularly without a specific need for self-defense.</p>
<h2>An invented tradition?</h2>
<p>So how did a 1689 English Bill of Rights that never gave any absolute right to carry guns turn into a key justification <a href="https://bostonreview.net/law-justice/jonathan-m-metzl-supreme-court-new-york-state-rifle-pistol-association-v-bruen-corlett">for that very right</a> in the U.S.?</p>
<p>Patrick Charles, the author of the 2019 book “<a href="https://www.illinoislawreview.org/online/the-invention-of-the-right-to-peaceable-carry-in-modern-second-amendment-scholarship/">Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry</a>,” argues that pro-gun advocates have selectively interpreted the historical record to justify a personal right to possess and carry weapons in public. </p>
<p>Essentially, they invented a tradition. </p>
<p>[<em>Over 115,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-newsletter-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>“Invented traditions,” a concept highlighted in the 1983 book “<a href="https://www.cambridge.org/core/books/invention-of-tradition/B9973971357795DC86BE856F321C34B3">The Invention of Tradition</a>,” which was edited by historians Eric Hobsbawm and Terence Ranger, are cultural practices that are thought to have emerged from long ago but actually are grounded in a much more recent past. A classic example is <a href="https://www.atlantamagazine.com/news-culture-articles/the-troubled-triangle-of-scottish-heritage-southern-racial-politics-and-stone-mountain/">the Scottish tartan kilt</a>, once believed to derive from the ancient garb of the Scottish Highlanders but actually invented in the 18th century by an Englishman. </p>
<p>The “<a href="https://bostonreview.net/law-justice/jonathan-m-metzl-supreme-court-new-york-state-rifle-pistol-association-v-bruen-corlett">individual right</a>” to carry firearms in public <a href="https://www.washingtonpost.com/outlook/2019/09/09/why-accurate-history-must-guide-coming-debate-about-guns-second-amendment/">seems to be another</a>.</p><img src="https://counter.theconversation.com/content/169604/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Tucker is a signatory to the Historians Brief for the respondent in New York State Rifle and Pistol Association v. Bruen.</span></em></p>Many gun rights advocates claim that the right to carry guns is a universal right that has spanned centuries and nations. History tells a different story.Jennifer Tucker, Associate Professor of History and Science in Society, Wesleyan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1155892019-04-18T12:55:35Z2019-04-18T12:55:35ZLandlords will be forbidden from evicting tenants for no reason – but reform has only just begun<figure><img src="https://images.theconversation.com/files/269990/original/file-20190418-28103-jwn7fs.jpg?ixlib=rb-1.1.0&rect=0%2C32%2C5463%2C3604&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">No place like home. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/brick-houses-on-panoramic-shot-muswell-285246164?src=A1xaQbH2jMwQ7eDNWhucIg-1-22">Shutterstock.</a></span></figcaption></figure><p>Change is coming. Soon, private tenants in England will have the security <a href="https://www.tandfonline.com/doi/abs/10.1080/13676261.2016.1184241">they need</a> to call their rented house a home. The UK government <a href="https://www.gov.uk/government/news/government-announces-end-to-unfair-evictions">has announced</a> plans to abolish “no fault” Section 21 evictions in England, meaning that landlords will no longer be able to evict tenants without a legitimate reason. </p>
<p>Nearly <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/774820/2017-18_EHS_Headline_Report.pdf">one in five households in England</a> live in the private rented sector. At present, no fault evictions cause significant insecurity for tenants, as well as negative impacts on <a href="https://housingevidence.ac.uk/publications/housing-insecurity-and-mental-health-an-evidence-review/">mental health</a> and <a href="https://housingevidence.ac.uk/wp-content/uploads/2018/08/R2018_06_01_Frustrated_Housing_Aspirations_of_Gen_Rent.pdf">well-being</a>. So an end to Section 21 will have a real, positive impact on millions of households, preventing them from being uprooted at short notice. It could also help to <a href="http://england.shelter.org.uk/professional_resources/policy_and_research/sustain/downloads/6424_Sustain_Final_Report_for_web_opt.pdf">prevent homelessness</a>, since <a href="https://www.homeless.org.uk/sites/default/files/site-attachments/HL-in-Numbers-The%20single%20biggest%20cause.pdf">the biggest single cause</a> is the ending of a tenancy in the private sector. </p>
<p>As <a href="https://www.theguardian.com/society/2018/jun/09/more-than-1m-families-waiting-for-social-housing-in-england">waiting lists</a> for social housing grow, the private rented sector is accommodating more vulnerable and low-income households, as well as growing numbers of families with children. Yet <a href="https://housingevidence.ac.uk/wp-content/uploads/2018/08/R2018_06_01_Frustrated_Housing_Aspirations_of_Gen_Rent.pdf">research shows</a> that insecure tenancies aren’t the only challenge facing private tenants. Poor quality and unaffordable housing remain key concerns, right across the UK. </p>
<h2>A state of disrepair</h2>
<p>The latest government statistics show that <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/774820/2017-18_EHS_Headline_Report.pdf">one in four privately rented houses</a> in England did not meet <a href="https://www.gov.uk/government/publications/a-decent-home-definition-and-guidance">the government’s own standards</a> for decent homes. This means that around 1.1m private renters are living in homes which contain dangerous hazards, are not in a reasonable state of repair, or lack suitable heating. </p>
<p>With Section 21 in place, tenants are vulnerable to “<a href="https://www.bbc.co.uk/news/newsbeat-47613386">revenge evictions</a>” if they complain about poor conditions in their homes. Citizens Advice found that tenants had a <a href="https://www.citizensadvice.org.uk/about-us/policy/policy-research-topics/housing-policy-research/Touch-and-go/">46% chance</a> of being served a Section 21 notice if they complained to the local council about their landlord. </p>
<p>Ending Section 21 should give tenants more confidence to speak out against dangers, without the threat of losing their home. But this will depend on whether councils have the funding needed to enforce standards and compel landlords to carry out repairs. </p>
<p>Historically, enforcement has been <a href="https://research.rla.org.uk/wp-content/uploads/post-code-lottery-enforcement-prs.pdf">a postcode lottery</a> and landlords are rarely prosecuted. In the context of austerity, where local councils have seen spending cuts of <a href="https://www.bbc.co.uk/news/uk-england-46988310">up to 40%</a> since 2009/10, there’s little to indicate that more consistent enforcement will be possible.</p>
<h2>Rent controls and reclamation</h2>
<p>Tenants also face issues of affordability; particularly vulnerable, <a href="http://www.nationwidefoundation.org.uk/wp-content/uploads/2018/09/Private-Rented-Sector-report.pdf">single parent families and low-income renters</a>. This issue has worsened due to <a href="https://theconversation.com/housing-benefit-freeze-still-driving-tenants-from-their-homes-despite-universal-credit-reforms-110332">the housing benefit freeze</a>, which has kept allowances at the same rate since 2016, while rents have continued to rise, meaning families are facing considerable hardships. </p>
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Read more:
<a href="https://theconversation.com/housing-benefit-freeze-still-driving-tenants-from-their-homes-despite-universal-credit-reforms-110332">Housing benefit freeze still driving tenants from their homes, despite Universal Credit reforms</a>
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<p>Even with the reforms to Section 21, it would still be possible for landlords to take advantage of affordability issues, and unreasonably increase the rent to force tenants out of their home. Appropriate safeguards must be in place to stop this from happening.</p>
<p>Rent stabilisation measures – like those in place <a href="http://lselondonhousing.org/2018/10/rent-controls-lessons-from-international-experience/">across much of Europe</a> – are one solution. These measures, which can restrict when rent can be increased, or by how much, are even supported by <a href="https://research.rla.org.uk/wp-content/uploads/Longer-Term-Tenancies-and-the-Private-Rented-Sector.pdf">nine out of ten landlords</a> in England and Wales. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/269992/original/file-20190418-28100-1lhbaku.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/269992/original/file-20190418-28100-1lhbaku.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=345&fit=crop&dpr=1 600w, https://images.theconversation.com/files/269992/original/file-20190418-28100-1lhbaku.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=345&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/269992/original/file-20190418-28100-1lhbaku.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=345&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/269992/original/file-20190418-28100-1lhbaku.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=434&fit=crop&dpr=1 754w, https://images.theconversation.com/files/269992/original/file-20190418-28100-1lhbaku.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=434&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/269992/original/file-20190418-28100-1lhbaku.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=434&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Berlin is well known for its rent controls.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/aerial-view-central-berlin-on-bright-1082554628?src=cMVhvGqds3l54wrm4PMFkQ-1-23">Shutterstock.</a></span>
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<p>Reforms need to be introduced carefully, to minimise any unintended consequences. For example, landlords might become more risk averse, which could lead to <a href="https://england.shelter.org.uk/__data/assets/pdf_file/0009/1581687/Stop_DSS_Discrimination_-_Ending_prejudice_against_renters_on_housing_benefit.pdf">greater discrimination</a> against tenants who claim benefits. Or, they could decide to let their property on <a href="https://research.rla.org.uk/report/long-term-lets-short-term-lets-airbnb-new-buy-to-let/">Airbnb</a> instead. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/airbnb-and-the-short-term-rental-revolution-how-english-cities-are-suffering-101720">Airbnb and the short-term rental revolution – how English cities are suffering</a>
</strong>
</em>
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<p>So the <a href="https://www.gov.uk/government/consultations/overcoming-the-barriers-to-longer-tenancies-in-the-private-rented-sector">government’s proposed reforms</a> to the <a href="https://www.gov.uk/government/consultations/considering-the-case-for-a-housing-court-call-for-evidence">court process</a> and <a href="https://www.rla.org.uk/landlord/documents/rent_arrears/section8.shtml">Section 8</a> are vital, to give landlords confidence that they can reclaim possession of their property quickly, for legitimate reasons. This will help to ensure that good landlords have the support needed to continue letting out safe and secure homes. </p>
<h2>Learning from Scotland</h2>
<p>Clearly, ending Section 21 is only the first step on a long path of reforms needed to modernise the private rented sector. But English lawmakers can look to Scotland for a good example of how to tackle all the different challenges facing the private rented sector in a joined-up way. </p>
<p>There, all new private tenancies since December 2017 are “<a href="https://scotland.shelter.org.uk/get_advice/advice_topics/renting_rights/renting_from_a_private_landlord/the_private_residential_tenancy">private residential tenancies</a>”. They are open-ended, meaning the tenant can remain in the property as long as they wish, unless the landlord uses one of the 18 grounds for eviction, such as wishing to sell the property. When this happens, the amount of notice required varies depending on how long the tenant has lived there and the grounds for eviction used.</p>
<p>Rent increases are restricted to once a year, and can be referred to a “rent officer” to adjudicate. Local authorities can also apply to the Scottish government to <a href="https://scotland.shelter.org.uk/__data/assets/pdf_file/0011/1527590/Shelter_RentReport_May18_screen3_1.pdf/_nocache">limit rent increases</a> in specific areas.</p>
<p>Private tenants can take complaints to <a href="https://blog.scotland.shelter.org.uk/tribunal-wins-private-tenants-show-powers-new-rules/">the new housing tribunal</a> for free, without needing a solicitor to represent them. It is designed to be less adversarial than the court process. Among its many powers, the tribunal can serve a Repairing Standard Enforcement Order on landlords, which specifies work the landlord must undertake to ensure the property meets the <a href="https://www.gov.scot/publications/repairing-standard/">“repairing standard”</a>. </p>
<p>Though these reforms are still in their infancy, and by no means perfect, they show how security of tenure is only one element of a modernised sector. Other parts of the UK would do well to learn from the different approaches, all while collecting evidence on what works, sharing experiences and supporting tenants and landlords to understand their new rights and responsibilities.</p>
<p>Ending the “no fault” ground for eviction is <a href="https://www.tandfonline.com/doi/abs/10.1080/13676261.2016.1184241">vital for tenants</a> to be able to put down roots, feel settled and make their private rented property a home. But reform can’t stop there.</p><img src="https://counter.theconversation.com/content/115589/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tom Simcock receives funding from the Residential Landlords Association to undertake research on welfare reforms and the impact of Universal Credit on the private rented sector. Tom previously worked for the Residential Landlords Association as a Senior Researcher.
Tom is a member of the Housing Studies Association Executive Committee. </span></em></p><p class="fine-print"><em><span>Kim McKee is a Co-investigator within the UK Collaborative Centre for Housing Evidence. It is an independent housing evidence centre which is funded by the Economic and Social Research Council, the Arts and Humanities Research Council and the Joseph Rowntree Foundation. Kim has also previously received research funding from the Leverhulme Trust, the Carnegie Trust and the Scottish Government to research issues relating to housing inequalities and housing aspirations.</span></em></p>Housing laws in England can still leave tenants without proper protection, but the latest reforms offer hope for the future.Tom Simcock, Research Fellow, Edge Hill UniversityKim McKee, Senior Lecturer, Social Policy and Housing, University of StirlingLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/795882017-06-16T12:13:50Z2017-06-16T12:13:50ZCorporate manslaughter: what is it and could it bring justice for Grenfell Tower victims?<figure><img src="https://images.theconversation.com/files/174178/original/file-20170616-545-1s6gzod.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">from www.shutterstock.com</span></span></figcaption></figure><p>The disaster at Grenfell Tower has been described by David Lammy, Labour MP for Tottenham, as a case of “<a href="https://www.theguardian.com/uk-news/2017/jun/15/grenfell-tower-death-toll-rises-to-17-as-hope-to-find-survivors-wanes">corporate manslaughter</a>”. According to <a href="http://www.legislation.gov.uk/ukpga/2007/19/contents">English law</a>, companies and organisations can be found guilty of <a href="http://www.hse.gov.uk/corpmanslaughter/about.htm">corporate manslaughter</a> as a result of serious management failures, resulting in a gross breach of a duty of care. </p>
<p>Amid <a href="http://metro.co.uk/2017/06/15/grenfell-tower-fire-is-corporate-manslaughter-and-arrests-should-be-made-says-mp-david-lammy-6710440/">calls for arrests</a>, it’s time to consider whether the failings that led to the Grenfell disaster could possibly justify the use of the label “corporate manslaughter” – and what this would mean for victims who seek justice. </p>
<p>Prosecutions for this offence are of a corporate body (defined broadly enough to include public authorities) and not individuals – so we probably won’t see any pictures of executives being led away in handcuffs. That said, directors, board members and others may still be liable to prosecution under health and safety law or general criminal law. The offence also covers contractors and sub-contractors, so long as they owe a duty of care to the victims. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"875459401661992960"}"></div></p>
<p>A <a href="http://www.gkstill.com/Support/Links/Documents/2007-justice.pdf">duty of care</a> is an obligation, whereby an organisation must take reasonable steps to protect a person’s safety. Legally, it is broadly understood as avoiding negligence by not placing people in danger. These duties also exist in relation to workplaces and equipment, as well as to products or services supplied to customers. This suggests that when an entity exercises control over people and spaces it has a responsibility to protect them. </p>
<p>The corporate manslaughter offence uses the same definitions of duty of care as the common law offence of gross negligence manslaughter. This means that the threshold for the offence is high – the way that activities were managed or organised must have fallen seriously far below reasonable standards.</p>
<h2>The consequences</h2>
<p>Any organisation convicted of this offence would face a fine of anywhere <a href="https://www.sentencingcouncil.org.uk/wp-content/uploads/HS-offences-definitive-guideline-FINAL-web.pdf">between £180,000 and £20m</a> (though there is no hard maximum limit). They would also be handed a publicity order, which requires them to publicise the conviction, along with certain details of the offence, as specified by the court. The court can also set a remedial order, requiring the organisation to address the cause of the fatal injury, which in this case could have consequences for similar tower blocks.</p>
<p>While there is no direct precedent for this kind of tragedy – involving massive loss of life for non-workers – to help us estimate penalties, some indications can be gleaned from the fines imposed on rail operators for train accidents. In 2003, Thames Trains and Network Rail were fined over £2m and £4m respectively, in relation to the health and safety breaches that led to the <a href="http://news.bbc.co.uk/1/hi/uk/1397112.stm">1999 Ladbroke Grove train crash</a>, which killed 31 people. And <a href="http://www.bbc.co.uk/news/uk-england-beds-bucks-herts-11560482">in 2006</a>, Network Rail was fined £3.5m and Balfour Beatty an eventual £7.5m (following an appeal) for faults leading to the fatal derailment of a train near Hatfield in 2000.</p>
<p>It’s also possible for an organisation to be charged with both corporate manslaughter and health and safety offences in the same proceedings. In these circumstances, if an organisation is convicted of corporate manslaughter the jury may still be asked to return a verdict on the health and safety charges if the interests of justice so require, which can have further consequences for individuals.</p>
<h2>Potential defendants</h2>
<p>Corporate manslaughter is an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death. Even before knowing the full extent of the Grenfell disaster, it’s safe to say that it is likely to fall in this category. </p>
<p>Potential defendants in this case – should one eventually be brought – would probably include the building’s <a href="http://www.independent.co.uk/news/uk/home-news/london-fire-grenfell-tower-company-asks-donations-victims-money-fndraise-kensington-chelsea-tenant-a7790371.html">management company</a>, the Royal Borough of Kensington and Chelsea Tenant Management Organisation (KCTMO), and possibly also contractors involved in <a href="https://www.theguardian.com/uk-news/2017/jun/14/towers-managers-were-reviewing-safety-after-fire-at-another-block">the tower’s recent renovation</a>. </p>
<p>But advocates for the victims are likely to be looking further than that, seeking to challenge the behaviour of public authorities and political decisions about spending on improvements to social housing in London. Prosecutions of public authorities would have far-reaching political consequences. </p>
<p>If the defendant is a public authority, exemptions may apply to decisions about public policy. For example, strategic funding decisions and other matters involving competing public interests, cannot be challenged in criminal proceedings. But decisions about how resources were managed are not exempt, which means that deliberate under-investment in maintaining safety could lead to prosecutions.</p>
<p>According to the law, the offence is concerned with how an organisation’s activities were managed or organised. So, courts will look at management systems and practices across the organisation in question, and investigate whether an adequate standard of care was applied. A substantial part of the failing must have occurred at a senior management level for a conviction to be successful.</p>
<p>Juries would be required to consider the extent to which an organisation was in breach of health and safety requirements, and assess how serious those failings were. They would also consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches. What’s more, it would not be necessary for the management failure to have been the sole cause of death, so a tenant’s actions in starting this fire would not exonerate those responsible for inadequate safety measures.</p>
<p>For now, London is in mourning. But when the immediate phase has passed, the law will turn its attention to those who may be responsible, and see that justice is carried out.</p><img src="https://counter.theconversation.com/content/79588/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ioannis Glinavos does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Amid calls for arrests, a law expert explains what the offence actually entails.Ioannis Glinavos, Senior Lecturer in Law, University of WestminsterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/657562016-09-23T12:44:39Z2016-09-23T12:44:39ZWhat are McKenzie friends and why are they appearing in more courtrooms?<figure><img src="https://images.theconversation.com/files/138968/original/image-20160923-29916-13g3pw5.jpg?ixlib=rb-1.1.0&rect=0%2C299%2C1000%2C669&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Going to court? Who's your true friend?</span> <span class="attribution"><span class="source">Paul Matthew Photography / Shutterstock.com </span></span></figcaption></figure><p>It used to be that if you needed a lawyer but didn’t have the money to hire one, you could usually get support through legal aid. But since big cuts to the civil <a href="http://www.bbc.co.uk/news/uk-politics-22936684">legal aid budget in April 2013</a>, the number of people accessing free legal services <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/533178/legal-aid-statistics-england-and-wales-bulletin-jan-to-mar_16.pdf">has fallen dramatically</a> as cases such as divorce, child contact and welfare benefits no longer qualify for legal aid.</p>
<p>Although it’s not clear how many people are now representing themselves in court as a result, <a href="https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/lapso-report/">a report by a group of MPs</a> indicated that the numbers are significant and rising. Being a litigant in person can be a daunting process with a lot riding on the outcome. </p>
<p>Into the breach have stepped so-called McKenzie friends. These are people who are not qualified lawyers but are allowed to represent a party to civil proceedings if they have been given permission by the judge to do so. The term McKenzie dates back to a divorce case in 1970 in which the husband, Levine McKenzie, used the support of an Australian barrister who was not registered in the UK. While McKenzie friends are therefore not new to English courts, there is <a href="http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2014%2004%2017%20MKF_Final.pdf">evidence</a> of an increase in their use following the cuts to legal aid. </p>
<p>Today, there are two main types of McKenzie friends: those that are free and those that charge fees. Free McKenzie friends include a number of university law schools and charities who provide assistance to litigants in person. </p>
<p>Fee-paying McKenzie friends are more controversial. They are not regulated and not required to have professional indemnity insurance, which means that clients cannot be sure they will be compensated if bad advice loses their case. Free McKenzie friends are not formally regulated either, but they typically do not offer legal advice, confining themselves to assisting clients with tasks such as note-taking, putting documents into chronological order or providing emotional support. Usually they are also insured. </p>
<p>By contrast, fee-paying McKenzie friends will often engage in advocacy on behalf of clients as well as offer detailed legal advice. Sometimes their fees can be high with <a href="http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2016/april/mckenzie-friends-bar-chairman-says-consumer-protection-has-to-be-paramount/">reports</a> of some charging £100 per hour for their services. This does not offer any saving as it would be possible to employ a junior qualified lawyer for a similar amount. </p>
<h2>Bad behaviour</h2>
<p>There have also been concerns expressed over the behaviour of some McKenzie friends. In mid-September, one was accused (by the opposite party) of hijacking the case to pursue his own agenda while acting on behalf of a boatowner. While the judge ultimately <a href="http://www.lawgazette.co.uk/law/relentless-and-obstinate-mckenzie-friend-allowed-to-be-advocate/5057687.fullarticle">allowed him to act</a> on behalf of the claimant, the complaint reflects one of the fears relating to McKenzie friends: that they will be used by pressure groups to advance their own agendas.</p>
<p>This follows other cases where distinctly undignified courtroom behaviour has taken place. For example, in 2015 a McKenzie friend who had served prison sentences for dishonesty and public order offences <a href="http://www.lawgazette.co.uk/news/ex-bouncer-mckenzie-friend-banned-after-calling-lawyer-a-lying-slag/5049010.fullarticle">was banned</a> from representing anyone for life after insulting an opponent and for other bad behaviour. </p>
<p>In response to incidents like this the judiciary have <a href="http://www.lawgazette.co.uk/practice/judiciary-proposes-ban-on-fee-charging-mckenzie-friends/5053851.fullarticle">consulted</a> on a ban on fee-paying McKenzie friends. The Law Society and the Bar Council have supported the idea. Yet some regulators, such as the Legal Services Board and the Solicitors Regulation Authority, are <a href="http://www.lawgazette.co.uk/law/no-case-for-ban-on-paid-mckenzie-friends-regulators/5055493.fullarticle">opposed</a>, saying there is not enough evidence for a ban.</p>
<p>Not all fee-paying McKenzie friends engage in such egregious behaviour. Some have had experience in related disciplines like social work, and provide useful complementary perspectives to courts. Others are paralegals who are not legal professionals but have legal qualifications. There are <a href="http://www.lawgazette.co.uk/practice/solicitors-becoming-mckenzie-friends-to-avoid-regulatory-costs-cma-told/5054974.fullarticle">also reports</a> of solicitors becoming fee-paying McKenzie friends in order to avoid regulatory costs, enabling them to provide assistance at a more affordable cost to clients. There are also attempts at voluntary self regulation. For example, the <a href="http://www.mckenziefriends.directory/">Society for Professional McKenzie Friends</a> requires its members to carry professional indemnity insurance.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/138971/original/image-20160923-29921-1ivhj5t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Keep it simple.</span>
<span class="attribution"><span class="source">Evlakhov Valeriy/ www.shutterstock.com</span></span>
</figcaption>
</figure>
<h2>Making justice more accessible</h2>
<p>When even middle-income people <a href="http://asauk.org.uk/wp-content/uploads/2013/09/Dramatic-drop-in-civil-legal-aid-eligibility.pdf">are struggling</a> to afford legal services it is clear that there is a huge issue about access to justice. Changes in business and regulatory practice – such as solicitors charging fixed fees, charging for specific tasks instead of conducting the entire case a practice known as “unbundling” and use of online courts and telephone hearings – may alleviate the problem caused by regulatory burdens which make legal services expensive. But, professional indemnity insurance, which solicitors are required to have, is a gold-plated service which comes at a price: it offers effective consumer protection but increases the cost of services. </p>
<p>The term McKenzie friend is not informative to consumers. It is also confusing as it suggests they are part of the court system, which they are not. A “court assistant” might be a more informative title, though it would mean they are part of the court system. This would give greater clarity to their role, but if they were part of the system they would need to adhere to a disciplinary code that would need to specify the tasks they could undertake – and would require insurance. To some extent, formalising them like this would mean a trade-off between enhanced consumer protection and affordability.</p><img src="https://counter.theconversation.com/content/65756/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Owen is a member of the Law Society's Wales and Access to Justice Committees. However, all views expressed are personal opinions.</span></em></p>Legal aid cuts have made people going to court turn for help elsewhere.Richard Owen, Director Essex Law Clinic, School of Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/420252015-06-02T10:10:10Z2015-06-02T10:10:10ZFive years after the end of provocation, jealous male killers still receive leniency<figure><img src="https://images.theconversation.com/files/83545/original/image-20150601-6967-1o8y6op.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is justice being done?</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/ronmacphotos/8013465002/">Ronnie Macdonald</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>In the UK, men can no longer claim they were provoked by jealousy into killing their partner.</p>
<p>Our research published recently in the <a href="http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9695914&fulltextType=RA&fileId=S0008197315000318">Cambridge Law Journal</a> revealed the extent to which that change, enacted in 2010, has altered the way the English courts have responded to murder motivated by sexual infidelity. The answer is not as much as we might have hoped.</p>
<p>As a defence to murder, provocation had long caused controversy in the English courts. On one hand, the defence largely failed to accommodate the desperate experiences of women who have killed a long-term abusive male partner. On the other, the defence too readily accommodated the contexts within which jealous and controlling men killed women who were leaving them or had committed infidelity.</p>
<p>The replacement of the provocation defence with a new partial defence of loss of control signalled an effort to ensure the law was able to better address the gendered contexts that surround a large number of homicides.</p>
<h2>Loss of control</h2>
<p>The new partial defence of loss of control retains some features of the old provocation defence, while also bringing in new provisions. One provision limits the defence reducing murder to manslaughter in cases where someone loses control when they find evidence of what the law now calls “sexual infidelity”. At the time the reforms were introduced, the <a href="http://webarchive.nationalarchives.gov.uk/20100505212400/http:/www.justice.gov.uk/consultations/docs/murder-review-response.pdf">Ministry of Justice stated</a>:</p>
<blockquote>
<p>The government does not accept that sexual infidelity should ever provide the basis for a partial defence to murder.</p>
</blockquote>
<p>In practice, this means that in cases when words or conduct constituting sexual infidelity trigger the defendant’s loss of self-control in killing the victim, a jury is to disregard this evidence in deciding whether the conduct amounted to murder or manslaughter.</p>
<h2>The Clinton case</h2>
<p>One of the first cases to test the boundaries of the sexual infidelity provision was that of <a href="http://www.thelawpages.com/court-cases/Jon-Jaques-Clinton-6882-1.law">Jon Jacques Clinton</a>. Clinton killed his wife in November 2010 after she allegedly admitted to having sex with multiple men and sniggered at the prospect of Clinton committing suicide as a result of their relationship breakdown. </p>
<p>Clinton had previously discovered messages on his wife’s Facebook profile containing sexual innuendos and discovered that her personal status was listed on Facebook as “separated”. It was these images, her listed status as well as her alleged admissions of sexual infidelity that Clinton argued led to his loss of self-control and use of lethal violence.</p>
<p>Clinton was convicted of murder as the trial judge determined that, given the new requirement to exclude evidence of sexual infidelity as a basis for a plea of loss of control, there was no other evidence to justify leaving the partial defence for the jury to consider. </p>
<p>On appeal, however, the <a href="http://www.bbc.co.uk/news/uk-england-berkshire-16595756">Court of Appeal held</a> that the provision does not wholly exclude evidence of sexual infidelity as irrelevant, where a defendant raises a plea of loss of control. The court stated that where sexual infidelity evidence is one part of a wider and more complex “provocation narrative”, the defendant can still raise a plea of loss of control. It will be where evidence of sexual infidelity is the sole basis for a plea of loss of self-control that the partial defence must fail. </p>
<p>The decision in Clinton has since raised concerns as to the ongoing likelihood of “jealous man” defences continuing to have credence in English law. </p>
<h2>Sentencing</h2>
<p>Beyond Clinton, the reforms also failed to significantly change the way English courts sentence jealous men who kill. Given the abolition of provocation, it was anticipated that such cases <em>should</em> fall into the category of murder. However, no guidance was provided on the extent to which evidence related to sexual infidelity should be influential in sentencing. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/83546/original/image-20150601-6955-ckcaij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/83546/original/image-20150601-6955-ckcaij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=937&fit=crop&dpr=1 600w, https://images.theconversation.com/files/83546/original/image-20150601-6955-ckcaij.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=937&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/83546/original/image-20150601-6955-ckcaij.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=937&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/83546/original/image-20150601-6955-ckcaij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1177&fit=crop&dpr=1 754w, https://images.theconversation.com/files/83546/original/image-20150601-6955-ckcaij.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1177&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/83546/original/image-20150601-6955-ckcaij.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1177&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Justice has gender.</span>
<span class="attribution"><span class="source">From www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>Our analysis of relevant murder cases since 2003 reveals that the English higher courts have regarded the change in law purely as a technical one, relevant only to the pre-conviction trial phase. Judges have not viewed the change in law as demanding a shift in moral thinking at sentencing.</p>
<p>Indeed, contrary to the spirit of the 2010 reforms, English judges have continued to view sexual infidelity evidence as having the potential to constitute grave provocation and justify a significantly lower term of imprisonment. </p>
<p>For example, in the <a href="http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9695914&fileId=S0008197315000318">2011 case</a> of Haywood, the defendant began a relationship with “W”, after his wife died. After they had bought a house together, W took a lover and later another lover, following which she informed the defendant that she was going to move in with her second lover. The defendant armed himself with an iron bar, attempted to disguise himself and fatally attacked W’s new partner. </p>
<p>Despite the 2010 reforms, on <a href="http://www.bbc.co.uk/news/magazine-29612916">appeal</a> the court stated that the case involved “the greatest possible provocation in the non-technical sense”. The defendant’s sentence was reduced to a minimum term of nine years. </p>
<p>This case, and others sentenced since the 2010 reforms, suggest that the courts have failed to incorporate the gender perspective of the 2010 reforms into sentencing practices. </p>
<h2>Where to next?</h2>
<p>Our research reveals that combating leniency in the law’s response for murders triggered by sexual infidelity is a task not yet achieved. </p>
<p>While the 2010 reforms have made some gains in improving the law’s response to the different contexts within which men and women kill, further review and reform is needed to ensure that the leniency previously afforded at the conviction stage is not merely transferred to sentencing.</p><img src="https://counter.theconversation.com/content/42025/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Men are still getting away with blaming jealousy for killing women.Kate Fitz-Gibbon, Lecturer in Criminology, Deakin UniversityJeremy Horder, Professor of Criminal Law, London School of Economics, London School of Economics and Political ScienceLicensed as Creative Commons – attribution, no derivatives.