tag:theconversation.com,2011:/es/topics/uk-law-22265/articlesUK law – The Conversation2024-01-12T17:03:57Ztag:theconversation.com,2011:article/2209642024-01-12T17:03:57Z2024-01-12T17:03:57ZSunak’s plan to overrule courts on Post Office scandal could set a dangerous precedent – but other options would mean stumping up cash<p>In response to the outcry over what he described as “one of the greatest miscarriages of justice in our nation’s history”, Prime Minister Rishi Sunak has promised to overturn the criminal convictions of more than 700 sub-postmasters falsely accused of theft or false accounting between 2000 and 2014. In doing so, he vowed he would deliver <a href="https://www.ft.com/content/cb659c48-cfdb-4df6-a296-e50fe65ea2d9">“justice and compensation”</a>.</p>
<p>This will involve introducing emergency primary legislation in the form of a new act of parliament. The Labour party has committed to supporting the move <a href="https://www.youtube.com/watch?v=j3G4O3UzyyM">“if it meets the test of justice”</a>.</p>
<p>With all major parties in favour, it is possible that unprecedented legislation will be passed in parliament by the end of the year to clear the names of the people caught up in the Post Office scandal. Political action is needed to right this wrong, but we should also be aware that Sunak’s plan challenges British constitutional principles of the separation of power and the rule of law. </p>
<h2>Separation of power</h2>
<p>Under the principle of separation of power, all three parts of government: parliament, judges (courts), and the prime minister and ministers (the executive), have distinct constitutional roles. This is to prevent abuse of power. </p>
<p>In the UK there is some merging of roles because ministers need to be part of parliament before they can be appointed to the executive. This gives the Conservative party of Rishi Sunak considerable power to effect legal change, as it is currently the political party with a majority of seats in parliament.</p>
<p>The rule of law is also a <a href="https://constitution-unit.com/2022/12/15/the-rule-of-law-what-is-it-and-why-does-it-matter/">fundamental principle</a> of the the UK constitution. It prevents parliament from interfering with court judgments, leaving the courts free from political influence.</p>
<p>New legislation is welcome in bringing justice to sub-postmasers who have been fighting for 20 years. There were more than 900 prosecutions by the Post Office and so far only 95 convictions have been overturned. </p>
<p>The Criminal Cases Review Commission is underfunded and it would take years to <a href="https://ccrc.gov.uk/news/the-ccrc-and-post-office-horizon-cases/">work through appeals</a> for every Post Office case, especially given that the justice system is on the point of collapse and needing <a href="https://www.barcouncil.org.uk/resource/new-bar-council-chair-sam-townend-kc-calls-for-urgent-investment-in-a-justice-system-at-the-point-of-structural-failure.html">“urgent” investment</a>.</p>
<p>That leaves emergency legislation as the most practical option at this stage. But concerns have been expressed by lawyers and politicians. Dominic Grieve, the former attorney general, was of the view that this is <a href="https://www.independent.co.uk/news/uk/politics/post-office-scandal-new-law-b2476352.html">“in a sense a parliamentary interference”</a> because MPs will be disregarding the decision of a court.</p>
<p>Kevin Hollinrake, the minister in charge of postal affairs, said this case is an extraordinary one and that the action being taken <a href="https://www.theguardian.com/business/2024/jan/07/post-office-suspected-of-more-wrongful-prosecutions-of-operators-over-horizon">“must not, must never, be seen as precedent”</a>. There is justified concern that if parliament steps in to tell the criminal courts they were wrong in this case (even though they were), it opens the door for it do so again, and potentially for a less noble cause. </p>
<p>Parliament is, for example, currently passing other “emergency” legislation that overrides the supreme court judgment that it is not safe for the UK government to deport asylum seekers to Rwanda. Human rights charity Liberty has called this <a href="https://www.libertyhumanrights.org.uk/issue/liberty-response-to-rwanda-emergency-legislation/">“nothing short of constitutional vandalism and an attack on the separation of powers”</a>.</p>
<h2>Avoiding setting a precedent</h2>
<p>The UK does not have a written constitution, and that gives those in power considerable flexibility to change constitutional practice and laws. As warned by David McNeill, director of public affairs at the Law Society, the government is effectively legislating against court decisions and <a href="https://www.theguardian.com/uk-news/2024/jan/10/no-precedent-why-commons-approach-to-post-office-scandal-has-lawyers-nervous">against the independence of the courts</a>. </p>
<p>There is no guarantee that this “exceptional” law to meet the unique circumstances of the Post Office Scandal will be a one-off. </p>
<p>Rishi Sunak has said <a href="https://www.theguardian.com/commentisfree/2024/jan/09/heroes-post-office-scandal-villains">“everyone was shocked”</a> by watching the ITV drama that detailed the injustices levelled against Post Office works. This is surprising, at least on his part though. Sunak leads a government that has already set up an inquiry into the scandal. </p>
<p>Much more is needed from the government. It is shocking that this scandal has gone on for so many years without more government action, and that emergency legislation endangering the constitution is now needed. </p>
<hr>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/mr-bates-vs-the-post-office-depicts-one-of-the-uks-worst-miscarriages-of-justice-heres-why-so-many-victims-didnt-speak-out-220513">Mr Bates vs The Post Office depicts one of the UK's worst miscarriages of justice: here’s why so many victims didn’t speak out</a>
</strong>
</em>
</p>
<hr>
<p>As yet there is no timetable for the legislation, but detail is promised within weeks. When it does appear, it should be closely scrutinised to ensure it provides justice for all victims, but also to prevent damaging key constitutional principles. </p>
<p>If used effectively for the Post Office victims, it is difficult to see parliament not being able to use the tool again to meet the claims of another group. There are no constitutional limits to it doing so. </p>
<p>In an uncodified British constitution, parliament is sovereign and primary legislation cannot be challenged or set aside by the courts. The British constitution is so fluid that once the proposals become law, there is a precedent for the future use of such power. </p>
<p>Using primary legislation to change court decisions, damaging key constitutional principles of separation of power and the judicial independence, could become a new tool of government. </p>
<p>As stated by a retired judge, Her Honour Isobel Plumstead, exoneration by an act of parliament is a <a href="https://www.theguardian.com/uk-news/2024/jan/11/legal-experts-post-office-horizon-exoneration-bill">“dangereous path”</a> to follow. There are other options that could be considered, such as providing immediate funding to speed up appeals or setting up a special panel of retired judges or senior lawyers to screen all cases. </p>
<p>Legislation, even to a difficult and pressing issue, should not be used as a short-term fix if it threatens the independence of the courts and rule of law.</p><img src="https://counter.theconversation.com/content/220964/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Catherine Hobby 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>It’s hard not to support the plan to right this miscarriage of justice but the government is setting a dangerous constitutional precedent in order to correct its own mistakes.Catherine Hobby, Senior Lecturer in Law, University of East LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2076512023-12-21T14:50:53Z2023-12-21T14:50:53ZUK supreme court rules Guantánamo ‘forever prisoner’ can sue the government under English law – here’s why it matters<figure><img src="https://images.theconversation.com/files/566928/original/file-20231220-21-gtpvk.jpg?ixlib=rb-1.1.0&rect=139%2C118%2C3300%2C2178&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/close-shot-razor-wire-on-fence-2511288">Stephanie Swartz/Shutterstock</a></span></figcaption></figure><p>The UK supreme court <a href="https://www.supremecourt.uk/cases/uksc-2022-0083.html">has ruled</a> that a detainee in Guantánamo Bay can sue the UK government under English law over its alleged involvement in his detention and torture. This is the first case concerning the UK government’s liability for its participation in abuses committed by the CIA during the “war on terror”.</p>
<p>Abu Zubaydah brought a claim for damages against the UK government in 2020. The court has not yet ruled on the merits of this claim. Rather, it has ruled on an important, though obscure, part of the case to do with which country’s law applies – English law, or those of foreign countries. The answer, according to the court, is English law.</p>
<p>This means the case can now proceed to trial. It also has implications should the UK ever decide to cut ties with international legal mechanisms like the <a href="https://www.echr.coe.int/european-convention-on-human-rights">European convention on human rights</a> (ECHR).</p>
<h2>Zubaydah’s case against the UK government</h2>
<p>After September 11 2001, the CIA built and operated a global network of secret facilities to detain and interrogate terror suspects. These clandestine “black sites” operated outside the legal systems of the US and other nations where they were located.</p>
<p>Detainees were subjected to what the CIA calls <a href="https://www.intelligence.senate.gov/sites/default/files/publications/CRPT-113srpt288.pdf">“enhanced interrogation techniques”</a> – but what the UN human rights council, rightfully, classifies as <a href="https://www.ohchr.org/sites/default/files/documents/issues/detention-wg/opinions/session95/A-HRC-WGAD-2022-66-Advance-Edited-Version.pdf">torture</a>. Some detainees, despite never facing charges or standing trial for any crime, remain in Guantánamo with no foreseeable prospect of release.</p>
<p>One of these <a href="https://www.theguardian.com/law/2023/may/11/abu-zubaydah-drawings-guantanamo-bay-us-torture-policy?CMP=Share_AndroidApp_Other">“forever prisoners”</a>, Abu Zubaydah, was captured by the CIA in Pakistan in March 2002 on suspicion of being an al Qaeda member. Over the next four years, he was held in black sites in Afghanistan, Guantánamo, Lithuania, Morocco, Poland and Thailand. Since 2006, he has been held in Guantánamo.</p>
<p>Zubaydah is arguing that MI5 and MI6 officers made requests, from their London offices, to their CIA counterparts to interrogate him in circumstances where they knew or ought to have known of his rendition, unlawful imprisonment and torture.</p>
<h2>Which law applies to the case?</h2>
<p>The supreme court judgment addresses a preliminary question that had to be answered before it can be determined whether, and to what extent, the UK government is liable for Zubaydah’s unlawful imprisonment and torture. This is the question of applicable law – whether English law or foreign laws apply to the claim.</p>
<p>When a public officer commits a wrong, there are two main domestic legal avenues for compensating the victim: the <a href="https://www.legislation.gov.uk/ukpga/1998/42/contents">Human Rights Act 1998</a>, which implements the ECHR into UK law, and tort law. </p>
<p>Tort law is the law of civil wrongs, and applies when someone causes harm or loss to another person. If found liable, they must compensate the victim. Because there is no allegation that the UK hosted a CIA black site, this case falls outside the ECHR’s scope. This left Zubaydah only with the option of suing the UK government in tort.</p>
<figure class="align-center ">
<img alt="Close up photo of a statue of Justice, holding the scales of justice" src="https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=299&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=299&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=299&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=376&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=376&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566929/original/file-20231220-21-tol36.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=376&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">The question of which law governs this claim has important implications for future cases.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/statue-justice-symbol-legal-law-concept-681265648">r.classen/Shutterstock</a></span>
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<p>Tort claims are <a href="https://www.legislation.gov.uk/ukpga/1995/42/part/III">typically</a> governed by the law of the country where the harm occurred. At first glance, Zubaydah’s claim could be governed by the laws of the countries where he was held. However, because the case concerns the exercise of UK sovereign power by UK officers sending requests to the CIA from their London offices, it was not certain whether English law or foreign laws should apply.</p>
<p>The <a href="https://www.bailii.org/ew/cases/EWHC/QB/2021/331.html">high court</a> held that foreign laws applied. The <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2022/334.html">court of appeal</a> disagreed. In a four-to-one decision, the <a href="https://www.supremecourt.uk/cases/docs/uksc-2022-0083-judgment.pdf">supreme court has now</a> dismissed the appeal.</p>
<p>With the preliminary question out of the way, the case will proceed to trial. Zubaydah will have to prove that he was unlawfully imprisoned and tortured, and that the UK government is liable under English law.</p>
<h2>Why does this matter?</h2>
<p>This case is an important example of “satellite litigation”. Legal frameworks in <a href="https://global.oup.com/academic/product/constitutional-torts-and-the-war-on-terror-9780190495282?cc=gb&lang=en&">the US</a> and <a href="https://opil.ouplaw.com/display/10.1093/law/9780198744412.001.0001/law-9780198744412">other countries</a> prevent detainees like Zubaydah from suing the US in US and foreign courts. Instead, they can only bring proceedings against complicit states. Zubaydah has already successfully sued <a href="https://hudoc.echr.coe.int/fre#%7B%22itemid%22:%5B%22001-183687%22%5D%7D">Lithuania</a> and <a href="https://hudoc.echr.coe.int/fre#%7B%22itemid%22:%5B%22001-146047%22%5D%7D">Poland</a> (two locations of CIA black sites) at the European court of human rights.</p>
<p>While it may appear to be a technical issue, the question of applicable law is significant. There is an inherent peculiarity in applying foreign laws to acts committed by UK officials in their London offices.</p>
<p>This is particularly true because of the countries involved. Afghanistan’s legal system is shaped by the Taliban. Guantánamo is part of sovereign Cuban territory, leased to the US in 1903 and currently the subject of an international dispute. We therefore do not know which system of law applies there – pre-communist Cuban law, current Cuban law, or US law.</p>
<p>There is another reason why this case is important. The UK government has discussed the possibility of <a href="https://www.theguardian.com/world/2023/aug/09/uk-could-leave-european-convention-on-human-rights-to-stop-channel-migrant-boats">withdrawing the UK from the European convention on human rights</a>. The now-withdrawn <a href="https://bills.parliament.uk/bills/3227">bill of rights bill</a> aimed, among other things, to exclude the application of the convention to overseas military operations.</p>
<p>Should this ever become law, tort claims would be the only legal avenue to compensate victims of British military and security services’ wrongs committed overseas. This supreme court judgment underscores the importance of English law in such cases. In other words, it is a reminder that English law is still a viable avenue to pursue human rights cases.</p><img src="https://counter.theconversation.com/content/207651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ugljesa Grusic provided pro bono advice to the claimant’s legal team.</span></em></p>Abu Zubaydah is accusing the UK government of involvement in his torture and unlawful detainment.Ugljesa Grusic, Associate Professor of Private International Law, UCLLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2182632023-11-24T15:44:52Z2023-11-24T15:44:52ZUK’s failed asylum deportation plan puts Rwanda’s human rights and refugee struggles in the spotlight<p>The UK Supreme Court <a href="https://www.supremecourt.uk/cases/docs/uksc-2023-0093-press-summary.pdf">ruled on 15 November 2023 that</a> sending asylum seekers to Rwanda was unlawful. The plan would have seen <a href="https://www.theguardian.com/uk-news/2022/apr/14/tens-of-thousands-of-asylum-seekers-could-be-sent-to-rwanda-says-boris-johnson">tens of thousands</a> of asylum seekers sent from the UK to Rwanda, which would then process and host such refugees indefinitely.</p>
<p>Along with countless <a href="https://www.hrw.org/news/2023/10/10/uk-abandon-rwanda-asylum-transfer-plan">refugee and human rights groups</a> – including <a href="https://www.unhcr.org/uk/what-we-do/uk-asylum-and-policy-and-illegal-migration-act/migration-and-economic-development#:%7E:text=UNHCR%20believes%20the%20UK's%20announced,established%20international%20refugee%20protection%20system.">the United Nations</a> – I raised <a href="https://theconversation.com/the-uks-plans-to-send-asylum-seekers-to-rwanda-raise-four-red-flags-182709">red flags about the plan</a> and welcome the decision to halt it. My <a href="https://www.rsc.ox.ac.uk/people/evan-easton-calabria">research and work</a> over more than a decade has focused on the livelihoods and survival of refugees in east Africa, the Horn of Africa and the Great Lakes region. </p>
<p>The <a href="https://theconversation.com/supreme-court-rules-rwanda-plan-unlawful-a-legal-expert-explains-the-judgment-and-what-happens-next-217730">UK court’s decision</a> is grounded in the view that Rwanda is unsafe for asylum seekers because it might force them to return to their home country. Forced return is against <a href="https://theconversation.com/the-rights-of-refugees-in-africa-are-under-threat-what-can-be-done-182892">international human rights law</a> as refugees and asylum seekers may be persecuted again in their country of origin. </p>
<p>Much of the recent media focus has been on what the ruling means for the UK and its migration policy. But it’s also important to understand the implications for Rwanda itself and for the refugees already residing there. </p>
<p>Rwanda currently hosts <a href="https://data.unhcr.org/en/country/rwa">more than 135,000 refugees and asylum seekers</a>. Most are from the Democratic Republic of Congo and Burundi. It’s one of the <a href="https://www.cia.gov/the-world-factbook/countries/rwanda/#people-and-society">most densely populated</a> countries in Africa and has a <a href="https://databankfiles.worldbank.org/public/ddpext_download/poverty/987B9C90-CB9F-4D93-AE8C-750588BF00QA/current/Global_POVEQ_RWA.pdf#page=1">high poverty rate</a>, which matters for its ability to host refugees. In the UK’s effort to deter irregular migration, it sought to outsource the asylum-seeking process and ultimately refugee hosting to Rwanda. The east African nation would in return <a href="https://commonslibrary.parliament.uk/research-briefings/cbp-9568/#:%7E:text=In%20return%2C%20the%20UK%20has,around%20%C2%A312%2C000%20per%20person">receive development funds</a>. Neither side of this deal was taking the needs of asylum seekers into account. </p>
<p>The recent UK court ruling highlights two things that Rwanda and its development and humanitarian partners need to consider:</p>
<ul>
<li><p>the east African nation’s human rights record</p></li>
<li><p>international support for refugees and asylum seekers. </p></li>
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<p>Failing to address the current gaps in these two areas reflects a disregard for human rights that falls on the international community’s shoulders, too.</p>
<h2>Rwanda’s human rights record</h2>
<p>The <a href="https://www.supremecourt.uk/cases/docs/uksc-2023-0093-press-summary.pdf#page=4">evidence</a> considered in the UK ruling adds to ongoing documentation about Rwanda’s poor human rights record. Refugees and citizens in the country have experienced political repression, including being <a href="https://deeply.thenewhumanitarian.org/refugees/articles/2018/04/04/please-tell-us-where-we-belong-a-deadly-refugee-protest-in-rwanda">killed during protests</a>. A recent <a href="https://www.hrw.org/news/2023/10/10/rwanda-global-playbook-abuse-silence-critics">Human Rights Watch report</a> documented Kigali’s use of threats, kidnapping and even killing of Rwandan refugees and migrants abroad who undertake or are affiliated to political activism. </p>
<p>Worrying past evidence of the treatment of asylum seekers includes the outcome of a <a href="https://www.amnesty.org.uk/press-releases/israel-secret-deal-over-deporting-african-migrants-reckless-and-illegal">secretive deal between Israel, Rwanda and Uganda</a> to receive African asylum seekers (mostly from Eritrea and Sudan) between 2014 and 2017. A majority of those deported from Israel to Rwanda immediately left, some through <a href="https://blogs.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/10/moving-under">dangerous migration routes</a>. </p>
<p>In its recent ruling, the <a href="https://www.supremecourt.uk/cases/docs/uksc-2023-0093-press-summary.pdf#page=2">UK court concluded</a></p>
<blockquote>
<p>there were substantial grounds for believing that there were real risks that asylum claims would not be properly determined by the Rwandan authorities. There were, therefore, real risks of refoulement {forced return}.</p>
</blockquote>
<p>The evidence provided by the UN Refugee Agency highlighted <a href="https://www.unhcr.org/uk/sites/uk/files/legacy-pdf/631f52a84.pdf#page=3">serious issues in Rwanda’s asylum system</a>. This included a lack of adequate legal representation, the risk of bias by judges and lawyers in politically sensitive cases, and current practices of forced return. A failure to comply with international law suggests Rwanda may well continue to benefit from development funding while sending asylum seekers home or <a href="https://blogs.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/10/moving-under">pressuring them to leave the country</a>.</p>
<p>To rectify these failings, the government of Rwanda must commit to eliminating forced return. In the absence of enforcement mechanisms in Rwanda to do so, the international community – including the UN Refugee Agency and activists in the region – must continue to document evidence of human rights violations and speak out. If these violations don’t cease, Rwanda should no longer be funded as the “<a href="https://www.devex.com/news/q-a-new-book-puts-fresh-scrutiny-on-donor-darling-rwanda-99584">donor darling</a>” that it has been. </p>
<h2>Areas for improvement</h2>
<p>At the same time, the UK court ruling illustrates the need for humanitarian and development partners to support Rwanda to improve its conditions for refugees and its asylum-seeking process. In its written evidence for the case, the UN Refugee Agency <a href="https://www.unhcr.org/uk/sites/uk/files/legacy-pdf/631f52a84.pdf#page=3">assessed that</a></p>
<blockquote>
<p>long-term and fundamental engagement is required to develop Rwanda’s national asylum structures to fairly adjudicate individual asylum claims.</p>
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<p>This statement is both a critique of the limitations to the existing asylum infrastructure in Rwanda and an important call for action. </p>
<p>As of 31 October 2023, the UN Refugee Agency’s Rwanda operation was only <a href="https://reporting.unhcr.org/rwanda-funding-2023">38% funded</a>. This means that refugees within Rwanda <a href="https://reporting.unhcr.org/rwanda-operational-update-6137">lack healthcare support and have limited access to legal counselling</a> and assistance.</p>
<p>These figures demand a closer look at the treatment of refugees in Rwanda and the region. These funding deficits restrict the rights of those refugees most in need.</p>
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<em>
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Read more:
<a href="https://theconversation.com/supreme-court-rules-rwanda-plan-unlawful-a-legal-expert-explains-the-judgment-and-what-happens-next-217730">Supreme court rules Rwanda plan unlawful: a legal expert explains the judgment, and what happens next</a>
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<p>Efforts to improve the asylum system can and should build on the promising practices within Rwanda that relate to refugees. These include <a href="https://reporting.unhcr.org/rwanda-operational-update-6137">over 90%</a> of children born as refugees having their birth registered, and a provision on the <a href="https://www.refugeesinternational.org/reports-briefs/turning-policy-into-reality-refugees-access-to-work-in-rwanda/">right to work</a>. Urban refugees and refugee students can also <a href="https://globalcompactrefugees.org/good-practices/community-based-health-insurance-urban-refugees-and-refugee-students-rwanda">access</a> the national community-based health insurance scheme. </p>
<p>Non-legal barriers – such as lack of access to capital for businesses and poor camp infrastructure, including limited electricity – still play a role in impeding access to these services for many refugees. However, these are important rights to continue to actualise – and ones that many other refugee-hosting countries don’t offer at all. </p>
<p>The court’s attention to Rwanda’s human rights violations may lead to restricted development funding or wider repercussions for the country from the international community. But there’s a need for more – not less – investment in refugee assistance in Rwanda. </p>
<h2>Next steps</h2>
<p>There are two best possible outcomes of the UK-Rwanda migration deal being deemed unlawful. </p>
<p>First is that it leads to commitments by the government of Rwanda to improve its treatment of refugees, including Rwandan refugees abroad. Second is that it encourages the UK and other countries to examine their own unlawful practices, such as the <a href="https://www.redcross.org.uk/stories/migration-and-displacement/refugees-and-asylum-seekers/scared-confused-alone-the-dark-truths-of-immigration-detention">indefinite detention of asylum seekers</a> and ongoing attempts to <a href="https://theconversation.com/outsourcing-asylum-seekers-the-case-of-rwanda-and-the-uk-180973">externalise asylum</a>. </p>
<p>Just as Rwanda’s human rights record should not be brushed under the rug, neither should the international community’s limited support for refugees.</p><img src="https://counter.theconversation.com/content/218263/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Evan Easton-Calabria receives funding from the United States Agency for International Development (USAID), National Institutes of Health (NIH), and the National Oceanic and Atmospheric Administration (NOAA). Research conducted through these grants is unrelated to the contents of this article.</span></em></p>The government of Rwanda must commit to eliminating the forced return of refugees and asylum seekers.Evan Easton-Calabria, Senior Researcher at the Feinstein International Center, Tufts University, and Research Associate at the Refugee Studies Centre, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2167592023-11-01T13:32:55Z2023-11-01T13:32:55ZPalestine protest arrests: why even police are confused about hate crime law<p>Though it’s happening thousands of miles away, the Israel-Gaza conflict has aggravated tensions in the UK. In London, authorities <a href="https://www.reuters.com/world/uk/antisemitic-islamophobic-offences-soar-london-after-israel-attacks-2023-10-20/">have recorded</a> a 1,353% increase in antisemitic offences and a 140% increase in anti-Muslim offences during October compared to last year. In this emotionally charged environment, police have faced immense pressure to address hate crime, including by <a href="https://inews.co.uk/news/met-police-suella-braverman-pressuring-reach-beyond-law-jihad-protest-2705340">making arrests at protests</a>.</p>
<p>Over the last few weekends, more than 100,000 people have attended pro-Palestinian demonstrations. There has been a heavy police presence, and at least nine people have been arrested. At a recent protest, police arrested <a href="https://news.met.police.uk/news/five-charged-following-protests-in-central-london-474469">three people</a> for “racially aggravated offences”.</p>
<p>London’s Metropolitan police faced particular criticism for not arresting a man who was recorded chanting <a href="https://www.theguardian.com/world/2023/oct/22/people-chanting-jihad-in-london-inciting-violence-says-robert-jenrick">“jihad”</a> at a demonstration. Director of public prosecutions, Mark Hill KC, <a href="https://www.telegraph.co.uk/news/2023/10/27/max-hill-jihad-chant-not-automatic-hate-crime-cps-hamas/">stated</a> that such an incident was not automatically a hate crime. Senior officers explained further that this is because the word jihad can “mean a lot of things to a lot of people”. </p>
<p>Met commissioner Mark Rowley has said the force is policing within the confines of the law. But the law on hate crimes is extraordinarily complicated – so much so that even the police are expecting the government to <a href="https://www.bbc.co.uk/news/uk-politics-67197002">clarify it</a>.</p>
<h2>What is the law on hate crime, and when does it apply?</h2>
<p>When it comes to speech and placards displayed at a protest, prosecuting a hate crime is a highly complex process. </p>
<p>Hate crimes involving racist or anti-religious language expressed in (non-online) public spaces are typically prosecuted in one of two ways. The first is a two-stage process, using a combination of provisions under the Public Order Act 1986 and the Crime and Disorder Act 1998.</p>
<p>Under <a href="https://www.legislation.gov.uk/ukpga/1986/64/section/4A">one section</a> of the Public Order Act, an offence is committed where a person uses words (either verbally or in writing) or exhibits behaviour that is deemed “threatening, abusive, or insulting” and intends to cause a person “harassment, alarm or distress”. </p>
<p>The words “threatening, abusive, or insulting” are not defined in the act, so it is up to a magistrate or jury to determine whether the speech in question reaches the threshold for any of those words. Some limited guidance has emerged from the court of appeal, which has suggested that even “annoying” or “rude and offensive” behaviour may not necessarily amount to something “insulting”. </p>
<p>Even if the accused’s expression meets the threshold, a conviction could still be challenging in the context of a large protest. The law states that the speech must be targeted at a specific individual, who as a result feels harassed, alarmed or distressed.</p>
<p>Prosecutors could turn to <a href="https://www.legislation.gov.uk/ukpga/1986/64/section/5">a different section</a> of the law, which has a narrower definition in that the language used must be either “threatening or abusive” – not merely “insulting”. However, it is broader in that the prosecution needs only prove that the incident occurred “within the hearing or sight of a person likely to be caused harassment, alarm, or distress”. Given that protests are public events where the purpose is for others to hear what is being said, this requirement is more likely to be satisfied.</p>
<p>If there is enough evidence for an offence to fall under either of these sections, the prosecution must then assess whether the offence could be “racially or religiously aggravated”. They do this by applying separate provisions set out in the Crime and Disorder Act. This law requires that the offender either demonstrated, or was (wholly or partly) motivated, by “hostility” based on the victim’s (presumed) membership of a racial or religious group. </p>
<p>The term “hostility” is not defined in the law, and again is a question for a magistrate or jury to determine. The Crown Prosecution Service (CPS) applies a broad definition of hostility when preparing evidence for prosecution, which includes “ill-will, ill-feeling, spite, prejudice, unfriendliness, antagonism, resentment, and dislike”.</p>
<h2>The challenge of prosecuting racial hatred</h2>
<p>The other possible route to prosecution would require proving that a person used speech or writing that “stirs up racial or religious hatred”.</p>
<p>This differs from the above in that the prosecution need only refer to one piece of legislation. For example, under <a href="https://www.legislation.gov.uk/ukpga/1986/64/section/18">section 18</a> of the Public Order Act, a person commits the offence of “stirring up racial hatred” where they use “threatening, abusive, or insulting” words, behaviour, or written material and either “intend” to stir up racial hatred, or understand that in the circumstances, it is “likely to be stirred up”. </p>
<p>Hatred is not defined in law but is generally considered by the CPS to be a very strong emotion. It is likely that stirring up racial tension or even provoking hostility towards a racial group is not enough to proceed with a case.</p>
<p>The CPS must also gain the consent of the attorney general to prosecute such cases. For these reasons only a <a href="https://www.cps.gov.uk/publication/cps-quarterly-data-summaries">handful of cases</a> reach court each year. </p>
<h2>Freedom of expression</h2>
<p>In all criminal cases, prosecutors must consider whether it is in the <a href="https://www.cps.gov.uk/publication/code-crown-prosecutors">public interest</a> to bring the case to court. </p>
<p>This includes considering whether prosecution would violate the accused’s freedom of expression rights, protected by the <a href="https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-10">European Convention on Human Rights</a>. This right is often considered alongside a defence, provided for some of the offences considered above, that their conduct was “reasonable”. Context is key, and the fact that an individual is participating in a protest (also a protected right) will also need to be considered. </p>
<p>Given the complex web of provisions required to bring a case to court, the law on hate crime could certainly be <a href="https://www.gov.uk/government/publications/hate-crime-laws-final-report">improved</a>. But, ultimately, the accused’s human rights must be weighed against the state’s responsibility to confront harmful instances of prejudice and hatred. This will always be a complicated – but crucial – balance.</p><img src="https://counter.theconversation.com/content/216759/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Walters 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>A legal expert explains the complicated process of prosecuting speech hate crimes.Mark Walters, Professor of Criminal Law and Criminology, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2081382023-06-23T09:09:00Z2023-06-23T09:09:00ZExpanding gay sex pardons to women won’t help most prosecuted lesbians<figure><img src="https://images.theconversation.com/files/533539/original/file-20230622-17-ulbw9m.jpg?ixlib=rb-1.1.0&rect=122%2C213%2C5343%2C3434&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/mature-female-couple-waving-pride-flag-1160297098">Stephm2506/Shutterstock</a></span></figcaption></figure><p>More than a decade after launching a scheme to <a href="https://www.gov.uk/government/publications/disregarding-convictions-for-decriminalised-sexual-offences">disregard and pardon convictions</a> for historic “gay sex” offences, the government has now announced the scheme will <a href="https://www.bbc.co.uk/news/uk-65878427">apply to women</a>. But a look at the history of lesbians and bisexual women convicted for same-sex activity shows that this will do very little to right historic wrongs. </p>
<p>When the scheme was created in 2012, it was limited to cautions and convictions for buggery (anal intercourse) or gross indecency between men. Neither offence applied to sex between women. Anyone convicted of other offences on the basis of same-sex activity could not obtain a pardon or disregard. A disregard means that the offence is deleted from official records and is not disclosed during criminal record checks. Since 2017, a pardon has automatically been granted at the same time. </p>
<p>The new scheme includes any offence which has been abolished or repealed, where the “criminal” conduct was same-sex sexual activity. However, it does not do much to help women, because sex between women has never been a specific offence. (The exception is armed forces veterans <a href="https://www.gov.uk/government/organisations/lgbt-veterans-independent-review/about#background-to-the-ban-and-legal-context">convicted under military laws</a>, which were interpreted as prohibiting homosexual acts.) </p>
<p>Instead, prosecutors were inventive in their use of non-sexual offences, many of which remain in force today. I’ve detailed many of these cases in <a href="https://link.springer.com/book/10.1007/978-3-030-35300-1">my book</a> on lesbianism and criminal law.</p>
<p>Before same-sex marriage became legally recognised in 2013, some couples’ attempts to marry ended in court. They were charged with perjury, for making false statements to obtain a marriage certificate. <a href="https://transpont.blogspot.com/2021/02/a-lewisham-transgender-marriage-in-1954.html">A couple who attempted to marry in 1954</a> were convicted of this offence. The bridegroom was in fact a trans man, but the magistrates’ court considered the couple as lesbians and condemned their “unnatural passions”. Since perjury is still an offence today, they would not be entitled to a pardon. </p>
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Read more:
<a href="https://theconversation.com/pardons-for-historic-homosexual-offences-are-welcome-but-we-still-need-to-address-the-legacy-of-criminalisation-174371">Pardons for historic homosexual offences are welcome - but we still need to address the legacy of criminalisation</a>
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<p>Less serious offences were rarely reported in the press, so there have probably been many more cases than we are aware of. In particular, minor displays of public same-sex affection have come before the courts as breaches of public order. </p>
<p>Breach of the peace has been used for centuries and as recently as 1980, a lesbian couple who kissed goodbye at a railway station were detained by police. They were later released without charge, but if they had been prosecuted, they would not be entitled to a pardon. </p>
<p>Breach of the peace has not been abolished, and is technically not a conviction since a person is not punished, but is “<a href="https://www.cps.gov.uk/legal-guidance/binding-over-orders">bound over to be of good behaviour</a>” – meaning they agree to behave for a set period, and will be punished if they do not. </p>
<p>An alternative is conviction under public order offences, whose broad definitions have been used to criminalise same-sex affection. In 1986, two men were convicted of “nuisances in thoroughfares” under the <a href="https://www.legislation.gov.uk/ukpga/Vict/2-3/47/section/54">Metropolitan Police Act 1839</a> after kissing at a bus stop. This has been partially repealed, but similar offences under the <a href="https://www.legislation.gov.uk/ukpga/1986/64/section/5">Public Order Act 1986</a> are still in force so pardons would not be available.</p>
<p>One sexual offence which was used to convict women has been repealed: indecent assault. The Sexual Offences Act 2003 replaced it with sexual assault offences. However, a woman would only be convicted of “indecent assault of a female” if the other person was under 16 or did not consent. Rightly, such behaviour remains criminal today. </p>
<figure class="align-center ">
<img alt="Photo of champagne flutes raised in a toast, while two brides embrace in the background" src="https://images.theconversation.com/files/533546/original/file-20230622-23-xhm9jg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/533546/original/file-20230622-23-xhm9jg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/533546/original/file-20230622-23-xhm9jg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/533546/original/file-20230622-23-xhm9jg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/533546/original/file-20230622-23-xhm9jg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/533546/original/file-20230622-23-xhm9jg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/533546/original/file-20230622-23-xhm9jg.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">Before 2004, lesbians’ attempts to marry often ended in court.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/group-flutes-champagne-held-by-company-2198228793">Pressmaster/Shutterstock</a></span>
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<p>This exclusion of women is not just an unfortunate oversight. It is part of a <a href="https://www.open.edu/openlearn/society-politics-law/law/lesbianism-and-the-criminal-law-england-and-wales">long history of silencing</a> the possibility of sex between women as a way of repressing it. In other words, legislators did not just forget to make it a crime or decide to tolerate it. They were vehemently opposed to it, but feared that if women heard about it then their own wives and daughters might try it. </p>
<p>For example, in a <a href="https://oro.open.ac.uk/55535/">1921 debate</a> on criminalising “gross indecency between females”, Lieutenant Colonel Moore Brabazon MP insisted that rather than execute or imprison lesbians (both “very satisfactory”), it was better “to leave them entirely alone, not notice them, not advertise them. That is the method that has been adopted in England for many hundred years.” Parliament has arguably continued “not noticing” women in the newly expanded disregard and pardon scheme. </p>
<h2>A flawed scheme</h2>
<p>The lack of consideration of women’s legal position is not the only problem with this scheme. Despite thousands of eligible convictions, there have been only <a href="https://www.gov.uk/government/publications/statistics-on-the-disregard-and-pardon-for-historical-gay-sexual-convictions/statistics-on-disregards-and-pardons-for-historical-gay-sexual-convictions">208 successful applications</a> by men. </p>
<p>The strict eligibility criteria poses many barriers for applicants, and as a result, two out of three applications have been rejected. To benefit from the scheme, applicants must provide documents and share details of often traumatic events. A caseworker then considers the case records and makes a decision. </p>
<p>But establishing the circumstances of a conviction can be difficult decades after the original events. Records may be missing or incomplete. They might omit details confirming that the activity would not be criminal today (for example, whether the other party was over 16 and consented). As the <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1162391/013574_Disregards_Caseworker_Guidance_12.06.23.pdf">guidance to caseworkers</a> makes clear, applications can be rejected because of that missing information. </p>
<p>Access to a disregard and pardon is important in practice since criminal convictions can blight people’s lives. It is important in principle because it acknowledges the injustice of convictions based upon legal discrimination. </p>
<p>However, the scheme does not adequately meet these needs – and for women in particular, the recent reforms will not change that.</p><img src="https://counter.theconversation.com/content/208138/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Caroline Derry 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>Sex between women has never been specifically outlawed.Caroline Derry, Senior Lecturer in Law, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2075782023-06-14T10:56:57Z2023-06-14T10:56:57ZWoman jailed over abortion – an expert on what UK law actually says and what needs to change<figure><img src="https://images.theconversation.com/files/531693/original/file-20230613-27-cae5hq.jpg?ixlib=rb-1.1.0&rect=70%2C50%2C6639%2C4416&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/crop-close-young-african-american-woman-1863927673">fizkes/Shutterstock</a></span></figcaption></figure><p>Many people assume that because abortion is relatively accessible in England, it is not a crime. The fact that a woman has now received a <a href="https://www.theguardian.com/world/2023/jun/12/woman-in-uk-jailed-for-28-months-over-taking-abortion-pills-after-legal-time-limit">28-month prison sentence</a> for taking abortion pills past the legal time limit shows that this assumption is wrong. </p>
<p>Abortion remains within the criminal law to some extent in almost every country globally, despite the fact that it is a safe and relatively common procedure. Laws can criminalise women and pregnant people, healthcare providers or anyone who helps a woman get an abortion. The sentencing in Poland of activist <a href="https://www.amnesty.org/en/latest/news/2023/03/poland-conviction-of-activist-prosecuted-for-aiding-an-abortion-offers-chilling-snapshot-of-future/">Justyna Wydrzyńska</a> is one example. In March 2023, she received eight months community service for aiding an abortion seeker. </p>
<p>The 28-month sentence for the 44-year-old mother of three in England reflects the desperate need for a change to the law, in the form of decriminalisation. </p>
<p>In England and Wales, abortion is considered legal when it is performed by a registered medical practitioner, authorised by two doctors and meets certain conditions, such as risk to physical or mental health or risk of fetal anomaly. Abortion can only be performed after 24 weeks gestation in very limited circumstances. </p>
<p>The <a href="https://www.bpas.org/get-involved/campaigns/briefings/abortion-law/">1967 Abortion Act</a> determines the situations in which an abortion is not a criminal act and the gestational time limits when one can be performed. The <a href="https://academic.oup.com/sp/article-abstract/21/1/26/1607984?login=false">act was written</a> in response to healthcare providers’ concerns about unsafe “backstreet” abortions, rather than out of concern for women’s bodily rights or autonomy. </p>
<p>Lawmakers did not want to make abortion available on request, therefore the sections of the <a href="https://www.legislation.gov.uk/ukpga/Vict/24-25/100/contents">1861 Offences Against the Person Act</a> which criminalise abortion were not repealed. Sections 58 and 59 make it a criminal offence to administer or supply drugs or use instruments to procure an abortion. The offences carry a maximum sentence of life imprisonment.</p>
<p>While the 1967 Abortion Act applies in Scotland, the Offences Against the Person Act does not. There, abortion is considered a crime in common law, developed by court precedent. </p>
<p>The recent prosecution is not an anomaly. In the past eight years, police in England and Wales <a href="https://www.theguardian.com/commentisfree/2022/aug/19/abortion-legal-great-britain-women-life-sentences-roe-v-wade">have investigated</a> at least 17 people for procuring their own abortion outside the law. The legacy of the 1861 act as a Victorian colonial era law continues to be felt globally, and still applies in countries such as the Gambia, Malawi and Jamaica. </p>
<h2>Decriminalising abortion</h2>
<p>Northern Ireland is the only region of the UK where abortion is <a href="https://www.tandfonline.com/doi/full/10.1080/14616742.2022.2053297">decriminalised</a>. The 1967 act was never extended to Northern Ireland. </p>
<p>After years of activist lobbying and an international inquiry by the UN committee for the elimination of discrimination against women, Westminster repealed sections 58 and 59 of the Offences Against the Person Act in 2019 – but only in Northern Ireland. The <a href="https://www.legislation.gov.uk/uksi/2020/345/contents/made">Abortion (Northern Ireland) Regulations 2020</a> now govern abortion access. </p>
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Read more:
<a href="https://theconversation.com/westminster-steps-in-after-northern-ireland-fails-to-comply-with-abortion-law-change-how-it-happened-158239">Westminster steps in after Northern Ireland fails to comply with abortion law change – how it happened</a>
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<p>But while the law in Northern Ireland is now more liberal, issues remain around <a href="https://theconversation.com/westminster-steps-in-after-northern-ireland-fails-to-comply-with-abortion-law-change-how-it-happened-158239">access</a> to abortion services. Healthcare providers have had to organise themselves to provide medical abortions, rather than receiving government support and people seeking surgical abortions still have to travel to England.</p>
<p>The <a href="https://policycommons.net/artifacts/2269625/abortion-care-guideline/3029443/">World Health Organization</a> (WHO) and <a href="https://gh.bmj.com/content/7/12/e010409">international human rights bodies</a> have recommended that, at minimum, abortion be removed from the criminal law and decriminalised around the world.</p>
<p>The WHO defines this as “the complete decriminalisation of abortion for all relevant actors: removing abortion from all penal/criminal laws, not applying other criminal offences (e.g., murder, manslaughter) to abortion, and ensuring there are no criminal penalties for having, assisting with, providing information about or providing abortion”. </p>
<p>This approach recognises that making abortion a crime does not prevent abortion, nor does it protect people from having unsafe abortions. What it does do is impede access and influence how people who have abortions are viewed. Higher levels of <a href="https://www.makeinroads.org/making-inroads/2021/September/how-abortion-stigma-and-criminalization-shape-each-other">stigma</a> are often seen in regions with stricter abortion laws.</p>
<p>Removing abortion from the criminal law does not mean that it is ungoverned, simply that is it governed in the same way as other health procedures. The case of Northern Ireland shows that there is nothing stopping Westminster from repealing sections 58 and 59 of the Offences Against the Person Act. This latest case should make it an issue of political urgency.</p><img src="https://counter.theconversation.com/content/207578/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Pierson receives funding from the British Academy and is a board member of Alliance for Choice Belfast. </span></em></p>In the past eight years, police in England and Wales have investigated at least 17 people for procuring their own abortion outside the law.Claire Pierson, Senior Lecturer in Politics, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2011112023-06-09T15:09:25Z2023-06-09T15:09:25ZPyramid schemes are on the rise – but do those who join up deserve prosecution or compensation?<figure><img src="https://images.theconversation.com/files/528634/original/file-20230526-19-mop3o6.jpg?ixlib=rb-1.1.0&rect=111%2C74%2C4829%2C3214&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/concept-exchange-financial-markets-collapse-system-2151387881">diy13/Shutterstock</a></span></figcaption></figure><p>Let’s say we invite you to invest £1,000 in our new and brilliant business. We promise you an impressive return on your money, and all we ask is that you persuade a few of your friends to invest the same amount. They in turn will need to find some more investors. But remember, we’re all in this together, and everyone will end up richer.</p>
<p>Sound too good to be true? That’s because it is. Such an offer would be an example of a pyramid scheme, which is illegal in most countries. But such schemes, often promoted on social media with promises of cash and luxurious lifestyles, are rising at an alarming rate – <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/crimeinenglandandwalesappendixtables">59% annually</a> – in the UK. </p>
<p>If you do join one, you are <a href="https://www.which.co.uk/news/article/the-12-emerging-fraud-threats-to-watch-out-for-ad2T82w8ri9Y">highly likely</a> to lose money. UK authorities <a href="https://pure.port.ac.uk/ws/portalfiles/portal/62600863/Hock_and_Button_2022_AAM.pdf">once estimated</a> that in the UK millions of people every year lose several hundred pounds.</p>
<p>On top of the likely financial loss, people who participate in pyramid schemes may also face legal punishment. But if you were to join a pyramid and recruit new members, does that make you a victim because you lost money, or a criminal because your actions caused others to lose out too?</p>
<p>Another legal grey area comes in distinguishing which money-making schemes are actually against the law. Some are completely fraudulent, like the UK-based Give and Take scheme, which promised members £24,000 in cash handed over during <a href="https://www.theguardian.com/uk-news/2014/sep/18/get-rich-quick-scam-champagne-celebration-give-and-take#:%7E:text=The%20scheme%2C%20called%20Give%20and,%C2%A33%2C000%20and%20%C2%A315%2C000">“champagne celebration nights”</a>. (Its founders were jailed.) </p>
<p>Other schemes, which offer specialist training or “secrets” to getting rich quick, can be harmful but not fraudulent. <a href="https://researchportal.port.ac.uk/en/publications/why-do-people-join-pyramid-schemes">Our research</a> shows that many of those are operating in a legal hinterland. </p>
<p>Our <a href="https://www.tandfonline.com/doi/full/10.1080/15564886.2023.2186996">research</a> also reveals that policing authorities around the world are understandably confused about this strange legal situation – especially how difficult it is to draw a clear line between victims and offenders. </p>
<p>Some countries, like Australia, consider the vast majority of pyramid scheme participants to be offenders. Others, such as the US, treat those same people as victims who deserve compensation for the financial harm they have suffered. </p>
<p>Our <a href="https://www.tandfonline.com/doi/full/10.1080/15564886.2023.2186996">work</a> aimed to clarify the situation, and we ended up identifying seven distinct categories of pyramid scheme participants. Some should be considered perpetrators, others victims, and others somewhere between the two, as illustrated in the following table.</p>
<figure class="align-center ">
<img alt="Table showing range of pyramid scheme member categories." src="https://images.theconversation.com/files/515469/original/file-20230315-28-p6qc1p.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/515469/original/file-20230315-28-p6qc1p.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=389&fit=crop&dpr=1 600w, https://images.theconversation.com/files/515469/original/file-20230315-28-p6qc1p.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=389&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/515469/original/file-20230315-28-p6qc1p.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=389&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/515469/original/file-20230315-28-p6qc1p.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/515469/original/file-20230315-28-p6qc1p.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/515469/original/file-20230315-28-p6qc1p.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A wide scope of involvement.</span>
<span class="attribution"><span class="source">Author provided.</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>We found that each pyramid scheme participant deserves different treatment according to their knowledge, engagement and status. Some should be protected and compensated, others left alone, and those at the tip of the pyramid should be punished. </p>
<h2>A balancing act</h2>
<p>This is the kind of distinction that could help to clarify the situation for police authorities dealing with the increasing presence of pyramid schemes. The first step should be a better understanding of the specific characteristics of the people involved – a proper consideration of their role, their awareness, and the level of their financial gain or loss. </p>
<p>Governments also need to work on finding the right balance between punishment and reform. Yet another complication comes from the fact that pyramid schemes could arguably fall under multiple legal categories, including consumer law, competition law and fraud law. </p>
<p>This means that different authorities with competing priorities may all be involved. While some have more powers to support victims, others might be interested in prosecuting fraudsters, so it is important to coordinate policing. </p>
<p>Those police authorities also need the resources to be able to keep a closer eye on the harm caused by pyramid schemes – which is not always financial, as many victims may go on to suffer <a href="https://link.springer.com/article/10.1057/sj.2012.11">psychologically</a>. And aside from the <a href="https://www.londondaily.news/south-of-england-suffers-the-worst-from-fraud-in-the-uk/">economic damage done</a> to individuals, they are a drain on a struggling <a href="https://www.imf.org/external/pubs/ft/fandd/2000/03/jarvis.htm">wider economy</a>.</p>
<p>During a cost of living crisis, the appeal of pyramid schemes to those who are unaware of the gamble they are taking is likely to increase. With the desperation that comes with a turbulent economy, many people may see a pyramid scheme as an opportunity to transform their life. </p>
<p>But amid all the confusion and legal complications that surround pyramid schemes, the simple rule to remember is the one money making schemes that sound too good to be true. Avoid them.</p><img src="https://counter.theconversation.com/content/201111/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The Government of New Zealand has previously funded Branislav Hock's research on pyramid schemes but not directly related to this article.</span></em></p><p class="fine-print"><em><span>The Government of New Zealand has previously funded research conducted by me on Pyramid Schemes, but not relevant to this article. I am a member of the Labour Party, but not active. </span></em></p>It’s a complicated and growing grey area of the law.Branislav Hock, Associate Professor in Economic Crime and Compliance, University of PortsmouthMark Button, Professor of Security and Fraud, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2073402023-06-09T09:20:42Z2023-06-09T09:20:42ZThe UK government does have a legal case for withholding WhatsApp messages from the COVID inquiry – but here’s why it will probably lose in court anyway<p>The UK government has decided to challenge, via a judicial review, <a href="https://covid19.public-inquiry.uk/documents/ruling-in-respect-of-a-s21-notice-issued-to-the-cabinet-office-dated-22-may-2023/">a ruling on document disclosure</a> by <a href="https://en.wikipedia.org/wiki/Heather_Hallett,_Baroness_Hallett">Baroness Hallett,</a> the chair of the public <a href="https://covid19.public-inquiry.uk/">inquiry</a> which is looking into the way the COVID-19 pandemic was handled.</p>
<p>Hallett wants the “entire contents” of specified document classes, including WhatsApp messages, diaries and notebooks of Boris Johnson, the then prime minister, and an adviser named Henry Cook, to be disclosed to the inquiry. The government is resisting this request. </p>
<p>Its resistance is widely seen, even by a <a href="https://www.standard.co.uk/news/politics/government-lose-covid-inquiry-legal-challenge-george-freeman-cabinet-office-b1085116.html">government minister</a>, as unlikely to convince at judicial review but this case is both more complex and more important than it seems. Resolving the question of whether these documents must be handed over to the inquiry could set an important precedent. That said, the government is still likely to lose the case, although litigation is always hard to predict.</p>
<p><a href="https://covid19.public-inquiry.uk/documents/ruling-in-respect-of-a-s21-notice-issued-to-the-cabinet-office-dated-22-may-2023/">Hallett’s reasoning</a> is that such documents may be “potentially relevant”, even if at first sight they appear to be irrelevant. A WhatsApp message might, for example, reveal that a government minister was focusing on something other than COVID at a time when that should have been their sole concern. This is a pertinent issue since one criticism of the Johnson administration was that it was slow to take the threat of the pandemic seriously. </p>
<p>The problem is that the law <a href="https://www.legislation.gov.uk/ukpga/2005/12/section/21">states</a> that an inquiry can only call for documents that “relate to a matter in question at the inquiry”.
But the reason why Hallett is insisting that she has the right to see everything is because the chair decides what is relevant.</p>
<p>Matters were not helped by the government recently deciding to release some documents to the inquiry to show that it was only redacting “unambiguously irrelevant” material. In her ruling, Baroness Hallett pointed out that some of it was, in her opinion, indeed relevant because it concerned <a href="https://covid19.public-inquiry.uk/documents/ruling-in-respect-of-a-s21-notice-issued-to-the-cabinet-office-dated-22-may-2023/">“the enforcement of COVID regulations by the Metropolitan Police”</a>. She described this as <a href="https://covid19.public-inquiry.uk/documents/ruling-in-respect-of-a-s21-notice-issued-to-the-cabinet-office-dated-22-may-2023/">“not a promising start”</a>. She also said that <a href="https://covid19.public-inquiry.uk/documents/ruling-in-respect-of-a-s21-notice-issued-to-the-cabinet-office-dated-22-may-2023/">“the relevance of at least some of these passages may not have been apparent to the Cabinet Office and its advisers”</a> to bolster her claim that it is for her to decide what she needs to see.</p>
<h2>What is the government arguing?</h2>
<p>The government’s response makes the reasonable point that, by definition, if all the WhatsApp documents must be released then that must, inevitably, include many irrelevant documents. Genuinely irrelevant documents cannot, by definition, “relate to a matter in question at the inquiry” and so would not fall within the statutory powers of the chair.</p>
<p>Even if some of the documents thought to be “unambiguously irrelevant” may turn out to be relevant later as new issues emerge, that still means that the chair is insisting on the release of many documents that even the chair must admit are not relevant.</p>
<p>Further complexity is being added to the mix because of the issue as to whether the Prime Minister and others were wrongly focused on other policy issues in early 2020 at the expense of the looming pandemic. The government confronts that issue head-on. It claims that the inquiry could simply make targeted requests for documents such as WhatsApp messages sent within particular dates rather than making a blanket document request.</p>
<h2>The key question: ‘irrationality’</h2>
<p>Why then are the government’s chances still so slim, despite these manifestly reasonable arguments? There is a simple answer. The bar the government must clear to have the chair’s decision quashed is extremely high. It must show that Baroness Hallett acted “irrationally”. This is not an appeal.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/530833/original/file-20230608-15-h1i25h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A portrait photo of Baroness Hallett." src="https://images.theconversation.com/files/530833/original/file-20230608-15-h1i25h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/530833/original/file-20230608-15-h1i25h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530833/original/file-20230608-15-h1i25h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530833/original/file-20230608-15-h1i25h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530833/original/file-20230608-15-h1i25h.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530833/original/file-20230608-15-h1i25h.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530833/original/file-20230608-15-h1i25h.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Baroness Hallett is leading the public inquiry on the UK’s Covid response.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Baroness_Hallett.jpg">Wikipedia/UK Parliament</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Normally, the bar is set so high because judges are very reluctant to interfere in the discretionary decisions of public bodies, including primary decision-makers such as Hallett. This is a separation of powers issue, as a matter of constitutional law.</p>
<p>The test for “irrationality” itself is expressed in different ways. One version is that the decision can only be quashed if it is <a href="https://www.studocu.com/en-gb/document/university-college-london/public-law/extract-from-fenwick-et-al-on-wednesbury-irrationality-and-proportionality/46288444">“so unreasonable that no reasonable authority could ever have come to it”</a>. A slightly milder version of the test states that the decision must be <a href="https://dro.dur.ac.uk/30189/">“within the range of reasonable responses open to the decision-maker”</a>. If human rights are at stake, then the courts will apply additional <a href="https://www.supremecourt.uk/docs/speech-141104.pdf">“anxious scrutiny”</a>. The government is claiming some privacy rights of advisers and officials are in play in this case, which could therefore bring the anxious scrutiny test into the picture.</p>
<p>Even so, the government has its work cut out to demonstrate that Baroness Hallett acted irrationally, particularly as she has provided some superficially plausible reasons for her request. Irrationality and unreasonableness, in the end, turn on reasons so the question is whether the court thinks that she has satisfied the test or not. Nonetheless, her insistence on seeing documents that are clearly irrelevant means the courts will face a difficult dilemma.</p>
<p>If the decision is quashed, Baroness Hallett might regard such a defeat as a significant blow to her authority. The government is clearly concerned about the potential precedent set by the chair’s demands. The stage is thus set for a far more nuanced and difficult hearing than is being acknowledged by many commentators.</p><img src="https://counter.theconversation.com/content/207340/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Craig 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>Baroness Hallett says she should be the one to decide which government messages are relevant to her inquiry, but is she right?Robert Craig, Lecturer in Law, University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2050662023-05-10T14:49:14Z2023-05-10T14:49:14ZJurors who believe rape myths contribute to dismal conviction rates – but judge-only trials won’t solve the problem<figure><img src="https://images.theconversation.com/files/524403/original/file-20230504-21-17t77o.jpg?ixlib=rb-1.1.0&rect=112%2C51%2C5639%2C3776&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>After years of <a href="https://www.gov.scot/publications/not-proven-verdict-related-reforms-consultation/">consultations</a> and <a href="https://www.gov.scot/groups/lady-dorrian-review-governance-group/">reports</a>, the Scottish government is proposing to conduct a pilot to test out running rape trials with just a judge – and no jury. </p>
<p>The conviction rate in Scotland for rape and attempted rate is woefully low. Only <a href="https://www.rapecrisisscotland.org.uk/resources-stats-key-info/#:%7E:text=Only%2051%25%20of%20rape%20and,prosecutions%20and%20just%2078%20convictions">51% of trials</a> lead to a conviction, which is simply not acceptable in a modern justice system. Reform is clearly needed to increase convictions. </p>
<p>The idea to run juryless trials is tied to concerns that this low conviction rate is in part due to <a href="https://www.scottishlegal.com/articles/politicians-plans-to-keep-tabs-on-juryless-trials-mark-serious-attack-on-independence-of-judiciary-says-former-judge">rape myths held by jurors</a>. Rape myths are <a href="https://journals.sagepub.com/doi/abs/10.1177/0886260511403762?journalCode=jiva">false beliefs</a> about rapists, people who have been raped and the act of rape or sexual assault itself. It’s the belief that people who have been raped are at fault if they wore “revealing” clothing, for example. It’s an assumption that people commonly lie about being raped <a href="https://www.researchgate.net/publication/264124085_A_systematic_review_of_juries'_assessment_of_rape_victims_Do_rape_myths_impact_on_juror_decision-making">for revenge purposes</a>.</p>
<p>Research has consistently shown that rape myths <a href="https://journals.sagepub.com/doi/pdf/10.1177/1365712720923157">influence juror decision-making</a>. The more accepting of rape myths a juror is, the more likely they are to judge the accused with a <a href="https://www.researchgate.net/publication/264124085_A_systematic_review_of_juries'_assessment_of_rape_victims_Do_rape_myths_impact_on_juror_decision-making">not guilty verdict</a>.</p>
<p>Jurors who believe, for example, that intoxicated people are partially to blame if they are assaulted, that male sexuality is “uncontrollable” or that rape only ever happens as a violent crime committed by a stranger are <a href="https://journals.sagepub.com/doi/pdf/10.1177/1365712720923157">more likely to give a not guilty verdict in rape trials</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-do-so-many-men-get-away-with-rape-police-officers-survivors-lawyers-and-prosecutors-on-the-scandal-that-shames-the-justice-system-192782">Why do so many men get away with rape? Police officers, survivors, lawyers and prosecutors on the scandal that shames the justice system</a>
</strong>
</em>
</p>
<hr>
<p>It is not only jurors who are affected by rape myths, however. Judges are, after all, also human. They are fallible and could be potentially influenced by rape myths. Therefore, it is unlikely that judge only trials will stop the role that rape myths may play in decisions about verdicts.</p>
<p>Psychological research has shown that experts develop routine and automatic cognitive short cuts so as to make their <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">decision-making fast, efficient (and often accurate)</a>. Through experience, experts learn what information to use and what information to ignore, which allows their decision making to become more efficient. However, this efficient cognitive system can sometimes filter out important pieces of information incorrectly (such as when a particular case has an abnormal feature or the expert does not have experience of a particular case issue). It can lead to overconfidence, which can make the <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">decision maker less likely to take advice from others</a>. Expertise can be paradoxical in this way. It can lead to an over-reliance in bias. </p>
<p>Judges and other legal experts <a href="https://books.google.co.uk/books?hl=en&lr=&id=6pXEFJXxOksC&oi=fnd&pg=PA177&dq=DROR+EXPERTISE&ots=4HreLoUhSJ&sig=RCSiIm-FNXxl9qKbRjjwXrEAT9w&redir_esc=y#v=onepage&q=DROR%20EXPERTISE&f=false">are therefore not immune to bias</a>. <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/bdm.371">Research</a> has found that the decisions made by magistrates, for example, are more aligned with <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/bdm.371">biased decision-making models</a> than rational decision-making models. Their decisions are inconsistent across their own caseload and inconsistent when compared to the decision-making of other magistrates. If their decisions had been rational, we could expect significantly more consistency.</p>
<figure class="align-center ">
<img alt="A judge's gavel and sounding block." src="https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/525147/original/file-20230509-19-6guzxq.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">Judge-only trials are a novel concept in the UK.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Extra-legal factors, even trivial ones such as whether judges have had lunch, have been shown to <a href="https://pubmed.ncbi.nlm.nih.gov/21482790/">bias judges’ decisions</a>. And despite their prevalence, judges have rarely been shown to <a href="https://www.jstor.org/stable/10.1525/nclr.2010.13.4.710">counter rape myths</a> in their courtrooms. Together, the evidence makes clear that there is reasonable doubt as to whether juryless trials will positively influence rape trials.</p>
<h2>Flawed pilot</h2>
<p>The pilot is also unlikely to give an accurate reflection of what would happen were juries to be removed from rape trials.</p>
<p>Government ministers will review the results of the pilot to see if the conviction rate climbs, which is, in itself a serious problem. Any potential review of judicial decisions by ministers may undermine the independence of the judiciary. Likewise, it may potentially bias (explicitly or implicitly) judges into reaching guilty verdicts during the pilot. This pressure may also lead to an inflation of convictions during the pilot, which may not continue post-pilot once supervision from the executive is removed – hardly ideal conditions for establishing fair legal procedures from the perspective of either the accused or the accuser. </p>
<p>Judges are also likely to be more aware of the low conviction rates in rape trials than jurors, again, leading to a pressure on the decision maker to convict. This pressure or bias would outlive the pilot. Retired judge, Lord Uist, <a href="https://www.scottishlegal.com/articles/politicians-plans-to-keep-tabs-on-juryless-trials-mark-serious-attack-on-independence-of-judiciary-says-former-judge">recently made similar warnings</a>.</p>
<p>The change being proposed is a drastic one, yet it is unlikely to benefit anyone. From a complainer’s perspective, it is unlikely that the conviction rates will increase dramatically (due to rape myths influencing the judiciary). If they do, this change will be caused by pressure in the system for an increase in convictions and not due to a more rational or fair evaluation of the evidence from the decision maker.</p>
<p>The accused, meanwhile, will no longer be judged by a jury of their peers, rather their fate will be made by a legal professional, employed by the state. That means only a certain view of the world will inform the decision that will drastically alter their life, rather than multiple perspective from all avenues of society.</p>
<p>The change may even decrease confidence in the jury system more generally. Why are jurors competent enough to reach verdicts in murder trials but not rape trials, members of the public may ask. Juryless trials in rape cases may be the first step to the removal of jury trials all together. </p>
<p>A jury selection process would be an alternative strategy for increasing convictions in rape trials and for attenuating the role that rape myths play. Jurors who display a tendency towards rape myths would be screened for and removed from the jury pool using scientific measures such as the <a href="https://journals.sagepub.com/doi/full/10.1177/15248380211050575">Illinois Rape Myth Acceptance scale</a>. This would be a sounder approach than removing juries. In combination with this, rape myths can also be targeted by educating both prospective jurors and young people in schools – and even judges – about the dangers of rape myth. Hopefully education would also remove rape myths from society before individuals are selected to be jurors.</p><img src="https://counter.theconversation.com/content/205066/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>A Scottish pilot will see rape trials conducted without juries in what could set a dangerous precedent.Lee John Curley, Lecturer in Psychology, The Open UniversityJames Munro, Psychology Lecturer, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2005972023-04-17T10:57:51Z2023-04-17T10:57:51ZChatGPT: what the law says about who owns the copyright of AI-generated content<figure><img src="https://images.theconversation.com/files/517857/original/file-20230328-431-ko5ilu.jpg?ixlib=rb-1.1.0&rect=169%2C24%2C2311%2C1470&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">ChatGPT has generated enormous interest, but is some of its content protected under copyright law?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/3d-rendering-artificial-intelligence-ai-research-1721499874">Shutterstock / Blue Planet Studio</a></span></figcaption></figure><p>The AI chatbot ChatGPT produces content that can appear to have been created by a human. There are many proposed uses for the technology, but its impressive capabilities raise important questions about ownership of the content.</p>
<p>UK legislation has a definition for computer-generated works. Under the <a href="https://www.legislation.gov.uk/ukpga/1988/48/section/178">Copyright, Designs and Patents Act 1988</a> they are “generated by computer in circumstances such that there is no human author of the work”. The law suggests content generated by an artificial intelligence (AI) can be protected by copyright. However, the original sources of answers generated by AI chatbots can be difficult to trace – and they might include copyrighted works.</p>
<p>The first question is whether ChatGPT should be allowed to use original content generated by third parties to generate its responses. The second is whether only humans can be credited as the authors of AI-generated content, or whether the AI itself can be regarded as an author – particularly when that output is creative. </p>
<p>Let’s deal with question one. The technology underpinning ChatGPT is known as a Large Language Model (LLM). In order to improve at what it does, it is exposed to large data-sets, including vast numbers of websites and books. </p>
<p>At the moment, the UK allows AI developers to pursue text and data mining (TDM), but only for non-commercial purposes. OpenAI’s terms of use assign to the users “all its right, title and interest in the output”.</p>
<p>But the company says it’s up to users to ensure the way they use that content does not violate any laws. The terms and conditions are also subject to change, so do not carry the stability and force of a legal right such as copyright.</p>
<p>The only solution will be to clarify laws and policies. Otherwise, every organisation will have to take legal action individually, aiming to show that they own the works used by an AI. Furthermore, if governments do not take an action then we are approaching a situation where all copyrighted materials will be used by others without the original author’s consent. </p>
<h2>Question of ownership</h2>
<p>Now to question two: who can claim copyright to AI-generated content. In the absence of a claim by the owner of original content used to generate an answer, it’s possible that copyright to the output from an chatbot could lie with individual users or the companies that developed the AI. </p>
<p>Copyright law is based around a general principle that only content created by human beings can be protected. The algorithms underpinning ChatGPT were developed at OpenAI, so the company would appear to hold copyright protection over those. But this might not extend to chatbot responses.</p>
<figure class="align-center ">
<img alt="Man thinking" src="https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&rect=4%2C2%2C889%2C689&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=467&fit=crop&dpr=1 600w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=467&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=467&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=586&fit=crop&dpr=1 754w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=586&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/517856/original/file-20230328-17-cnp3np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=586&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">One day, AIs could own the copyright to what they produce, but we’re not there yet.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/lines-connected-thinkers-symbolizing-meaning-artificial-553521775">Shutterstock / Liu zishan</a></span>
</figcaption>
</figure>
<p>There is another option regarding the ownership of AI-generated content: the AI itself. UK law would currently prohibit an AI from owning copyright (or even recognising that an AI created it), as it is not a human and therefore cannot be treated as an author or owner under the <a href="https://www.legislation.gov.uk/ukpga/1988/48/contents">Copyright, Designs and Patents Act</a>. It is also unlikely that this position is going to change anytime soon, given the UK government’s response to the AI consultation. </p>
<p>Where a literary, dramatic, musical or artistic work is made by an employee in the course of their employment, their employer is the <a href="https://www.gov.uk/guidance/ownership-of-copyright-works">first owner of any copyright in the work</a> – subject to any agreement to the contrary.</p>
<p>For now, policymakers are sticking to human creativity as the prism through which copyright is granted. However, as AI develops and is able to do more, policymakers might consider granting legal capacity to AIs themselves. This would represent a fundamental shift in how copyright law operates and a reimagining of who (or what) can be classed as an author and owner of copyright.</p>
<p>Such a change would have implications for business as firms integrate AI into their products and services. <a href="https://blogs.microsoft.com/blog/2023/03/16/introducing-microsoft-365-copilot-your-copilot-for-work/">Microsoft recently announced</a> that it will be embedding its product Copilot – based on ChatGPT – into the company’s software, such as Word, PowerPoint and Excel. Copilot can help users with written communication and summarise large volumes of data. </p>
<p>More developments like this are sure to follow, and early adopter firms have a chance to capitalise on the current situation, by using AI to increase the efficiency of their operations. Firms can often gain an advantage when they are first to introduce a product or service to a market – a situation called the “first-mover advantage”.</p>
<h2>Future shifts</h2>
<p>The UK government recently carried out a <a href="https://www.gov.uk/government/consultations/artificial-intelligence-and-ip-copyright-and-patents">consultation on AI and copyright</a>. Two conflicting views emerged. The tech sector believes the copyright to AI-generated content should belong to users, whereas the creative sector wants this content to be excluded from ownership completely. The UK government has not acted on the findings and instead recommended further consultation between the interested parties.</p>
<p>If copyright law shifts away from its focus on human agency in future, one could imagine a scenario where an AI is classed as the author and the developers of that AI as the owners of the output. This could create a situation where a handful of powerful AI companies wield colossal influence.</p>
<p>They could end up owning hundreds of thousands of copyrighted materials – songs, published materials, visuals and other digital assets. This could arguably lead to a dystopian situation where the majority of newly-created works are generated by AI and owned by businesses. </p>
<p>It seems logical that such knowledge should remain in the public domain. Perhaps the solution is that each person or company declares their contribution when they use AI – or that their contribution is automatically calculated by software. Accordingly, they get credit or financial benefit based on the amount of work they contributed. </p>
<p>AI content that is itself based on copyrighted materials remains problematic. An inability to rely on copyrighted materials could undermine the ability of the AI system to answer prompts from end users. But if the content is to be based on protected works, we would need to accept a new era of open innovation where the intellectual property rights do not matter.</p><img src="https://counter.theconversation.com/content/200597/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>We may know what ChatGPT can do, but questions remain over who owns the copyright.Sercan Ozcan, University of PortsmouthJoe Sekhon, Senior Lecturer in Intellectual Property Law, University of PortsmouthOleksandra Ozcan, Lecturer, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1998282023-03-17T13:15:31Z2023-03-17T13:15:31ZThe camera never lies? Our research found CCTV isn’t always dependable when it comes to murder investigations<figure><img src="https://images.theconversation.com/files/514486/original/file-20230309-1177-u0roc3.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3840%2C2149&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">"The camera never lies," goes the old adage. But how true is that?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/elevated-security-camera-surveillance-footage-crowd-2198446515">Gorodenkoff/Shutterstock</a></span></figcaption></figure><p>As a victim or suspect of a crime, or witness to an offence, you may find your actions, behaviour and character scrutinised by the police or a barrister using CCTV footage. You may assume all the relevant footage has been gathered and viewed. You may sit on a jury and be expected to evaluate CCTV footage to help determine whether you find a defendant guilty or innocent. </p>
<p>You may believe you will see all the key images. You may trust the camera never lies. </p>
<p>However, the evidence we gathered during our <a href="https://www.tandfonline.com/doi/epdf/10.1080/10439463.2021.1879075?needAccess=true&role=button">study</a> of British murder investigations and trials reveals how, like other forms of evidence such as DNA and fingerprints, CCTV footage requires careful interpretation and evaluation and can be misleading. </p>
<p>Instead of providing an absolute “truth”, different meanings can be obtained from the same footage. But understanding the challenges and risks associated with CCTV footage is vital in a fair and transparent system to prevent possible <a href="https://www.lexisnexis.co.uk/legal/glossary/miscarriage-of-justice">miscarriages of justice</a>.</p>
<h2>Evidence</h2>
<p>The justice system often relies upon digital <a href="https://www.npcc.police.uk/SysSiteAssets/media/downloads/publications/publications-log/2020/national-digital-forensic-science-strategy.pdf">evidence</a> to support investigations and prosecutions and CCTV is one of the most relied upon forms. Recent <a href="https://clarionuk.com/resources/how-many-cctv-cameras-are-in-london/">estimates</a> suggest there are more than 7.3 million cameras in the UK, which can capture a person up to 70 times per day. </p>
<p>The public may be filmed on council-owned CCTV, by cameras in commercial premises, or at residential premises (home cameras or <a href="https://www.which.co.uk/reviews/smart-video-doorbells/article/genuinely-useful-things-you-can-do-with-a-smart-doorbell-a0JXE2q1niZk">smart doorbells</a>, as well as on public transport and by dash cams.</p>
<figure class="align-center ">
<img alt="A man sits at a desk in front of a bank of screens, each showing footage from CCTV cameras." src="https://images.theconversation.com/files/514644/original/file-20230310-18-zjd7oi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/514644/original/file-20230310-18-zjd7oi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/514644/original/file-20230310-18-zjd7oi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/514644/original/file-20230310-18-zjd7oi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/514644/original/file-20230310-18-zjd7oi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/514644/original/file-20230310-18-zjd7oi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/514644/original/file-20230310-18-zjd7oi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">CCTV is one of the most popular forms of digital forensic evidence.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/industry-40-modern-factory-security-operator-1936528570">Gorodenkoff/Shutterstock</a></span>
</figcaption>
</figure>
<p>In our study of 44 British murder investigations, we showed how CCTV provides many benefits to investigators. It can help identify suspects and witnesses, and implicate or eliminate suspects. It can also help to corroborate or refute accounts provided by suspects and witnesses. However, our findings also indicate how CCTV can be unreliable and problematic.</p>
<h2>Shortcomings</h2>
<p>CCTV is sometimes inaccessible or lost because the detective who is sent to retrieve the footage lacks the skills, training or equipment to recover it in a timely manner. This is especially important since CCTV is often <a href="https://link.springer.com/article/10.1007/s13347-016-0218-2">deleted</a> within three weeks of being recorded. We found that it was often over-written within 7 to 10 days. </p>
<p>At other times, owners are unable to access systems or cannot manage the volume of CCTV requested, for instance, when taking buses out of service for footage to be downloaded. And even when footage is successfully seized, there may not be officers available to view it all. </p>
<p>There is also the risk that important footage which could exonerate a suspect is not <a href="https://www.cps.gov.uk/about-cps/disclosure#:%7E:text=Disclosure%20is%20providing%20the%20defence,is%20done%20properly%2C%20and%20promptly">disclosed</a> to the defence, which could mean innocent people are <a href="https://www.sciencedirect.com/science/article/abs/pii/S1752928X18301859?via%3Dihub">imprisoned</a>.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/lQRfM4Nt6dI?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">A 2022 Channel 4 News investigation looked at whether CCTV is helping to put innocent people behind bars.</span></figcaption>
</figure>
<p>Detectives must frequently make sense of poor-quality images that are blurry or grainy. This is not easy. In some of the investigations we observed, the police tried to enhance poor-quality images, though this was not always successful. </p>
<p>Investigators must also decide whether to draw on <a href="https://www.cps.gov.uk/legal-guidance/expert-evidence">experts</a> to interpret footage and present evidence at court. However, the police have no clear guidance to help determine whether and when to draw on such expertise. We observed cases where officers decided against expert input because they were confident of their own interpretations.</p>
<p>Our study also revealed how some detectives or CCTV officers are used repeatedly to view or interpret footage because they are regarded by others (or assign themselves) as <a href="https://theconversation.com/facial-recognition-research-reveals-new-abilities-of-super-recognisers-128414">“super-recognisers”</a>. These are people who may be better at recognising faces than others. However, there is no <a href="https://theconversation.com/from-super-recognisers-to-the-face-blind-how-tests-reveal-the-underlying-cognitive-processes-176589">robust measure</a> for determining whether someone is a super-recogniser. Furthermore, if super-recognisers are incorrectly viewed as expert witnesses, their evidence could be overvalued during a police investigation or at court.</p>
<p>By the time CCTV footage is shown to a jury, it has been choreographed carefully by the police and prosecution barrister. They are often adept at selecting, organising and editing footage into slick packages. </p>
<p>These techniques are also used by the defence who deliberate over whether to use moving footage or still images, at what speed to show the clips and at what point to add commentary. This is to demonstrate an <a href="https://ejournals.bc.edu/index.php/elements/article/view/9453">“alternative truth”</a> and provide a contested interpretation of the same footage. It might be difficult for juries to determine how the footage has been edited.</p>
<h2>Gold standard?</h2>
<p>Murder investigations are generally regarded to be the <a href="https://www.tandfonline.com/doi/full/10.1080/10439463.2013.771538">gold standard</a> of criminal investigation, due to the investment of time, resources and expertise. Nevertheless, we uncovered many challenges, errors and risks involved in the use of CCTV. These are likely to be even greater in other kinds of criminal investigation, where staffing and knowledge of <a href="https://www.sciencedirect.com/science/article/pii/S1355030621001295">digital evidence</a> may be more limited.</p>
<p>The complexities of CCTV evidence need to be understood by everyone involved in handling, interpreting and presenting footage, as well as by those of us whose actions and accounts may be scrutinised on the basis of CCTV footage. </p>
<p>The challenges and risks identified here are likely to intensify as digital technologies advance - demonstrated by recent concerns with <a href="https://www.bsia.co.uk/zappfiles/bsia-front/public-guides/form_347_automated_facial%20recognition_a_guide_to_ethical_and_legal_use-compressed.pdf">automated facial recognition technologies</a> and the risk of <a href="https://theconversation.com/3-2-billion-images-and-720-000-hours-of-video-are-shared-online-daily-can-you-sort-real-from-fake-148630">deepfake videos</a>.</p><img src="https://counter.theconversation.com/content/199828/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This research was funded by The Leverhulme Trust. </span></em></p><p class="fine-print"><em><span>This research was funded by The Leverhulme Trust.</span></em></p>CCTV is a popular form of digital evidence but it can be unreliable and problematic.Helen Jones, Research Fellow, University of South WalesFiona Brookman, Professor of Criminology, University of South WalesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2006852023-03-09T11:50:14Z2023-03-09T11:50:14ZStrikes bill could breach UK workers’ human rights and expose the government to legal challenges<p>UK workers’ human rights are at risk under government plans to curb strike activity, according to a report by parliament’s Joint Committee on Human Rights. The <a href="https://bills.parliament.uk/publications/49592/documents/2846">strikes (minimum service levels) bill 2023</a> aims to set requirements for the level of service needed in certain key sectors during strike action.</p>
<p>The bill is <a href="https://bills.parliament.uk/bills/3396/stages">making rapid progress through parliament</a>. But it has already sparked concern from various quarters, including <a href="https://www.tuc.org.uk/news/unions-france-germany-italy-and-spain-condemn-uk-government-attack-right-strike">unions</a> and the <a href="https://www.bbc.co.uk/news/64313013.amp">International Labour Organization (ILO)</a>, a UN agency set up to protect social and economic justice via labour standards. </p>
<p>Most recently, a report from <a href="https://committees.parliament.uk/committee/93/human-rights-joint-committee/news/186524/strikes-bill-fails-to-meet-human-rights-obligations-jchr/#:%7E:text=Strikes%20Bill%20fails%20to%20meet%20human%20rights%20obligations,the%20Joint%20Committee%20on%20Human%20Rights%20has%20found.">the Joint Committee on Human Rights</a> said the bill falls short of UK human rights obligations. It has proposed five amendments to the new rules that it believes are needed to protect UK workers’ human rights. </p>
<p>The committee wants the government to provide more detail within the legislation about when restrictions on strike activity can be imposed, how far these limits can go and who should be involved in discussions before strikes. It also suggests more clarity on how employers decide who needs to work during a strike and greater protection from dismissal for people that do strike.</p>
<p>But even with the amendments, which are based on international standards for freedom of association and protection from discrimination at work, the UK government could still be at odds with these standards if the current version of the bill is passed.</p>
<p>The bill would allow the UK secretary of state to set minimum service levels for striking workers in the health, fire and rescue, education and transport sectors, as well as people working in the decommissioning of nuclear installations, the management of radioactive waste and spent fuel, and border security. </p>
<p>Under the legislation, employers in these industries would give a “work notice” to trade unions seven days before a strike. This would identify the services covered by the rules and the names of employees required to work during the strike. </p>
<p>The employer would have to consult with the union about the content of the notice, with the trade union then taking “reasonable steps” to ensure the named persons comply with the notice. Failing to do so could leave the union liable for up to £1 million, while employees that join the strike would lose their automatic protection from dismissal. Any person named in the notice that refuses to comply would also lose this protection. </p>
<h2>A focus on specific human rights</h2>
<p>When it launched the bill in January 2023, the government argued the new rules were <a href="https://publications.parliament.uk/pa/bills/cbill/58-03/0222/ECHRMemoStrikes(MinimumServiceLevels)Bill2023.pdf">“necessary in a democratic society”, reflecting “a pressing social need”</a>. But the committee disagreed after examining the government’s policy statements and the <a href="https://bills.parliament.uk/publications/49906/documents/2979">impact assessment</a> for the bill. The latter has already been called “<a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1137659/RPC-BEIS-5259_1__-_Strikes__Minimum_Service_Levels__Bill_IA_OPINION__f_.pdf">not fit for purpose</a>” by the Regulatory Policy Committee, <a href="https://www.gov.uk/government/organisations/regulatory-policy-committee/about">an independent watchdog</a>.</p>
<p>The joint committee’s five suggested amendments aim to address concerns about workers’ rights. They are based primarily on <a href="https://www.equalityhumanrights.com/en/human-rights-act/article-11-freedom-assembly-and-association#:%7E:text=Everyone%20has%20the%20right%20to,the%20protection%20of%20his%20interests.">Article 11</a> of the European Convention on Human Rights (which covers freedom of association). The amendments draw on the views about these issues of <a href="https://echr.coe.int/pages/home.aspx?p=home">the European Court of Human Rights</a> in case law which applies in UK law under the <a href="https://www.legislation.gov.uk/ukpga/1998/42/contents">Human Rights Act 1998</a>. </p>
<p>In its report, the committee states that “freedom of association” under Article 11 covers the right to strike and that the bill does not adequately protect this right. The committee also warns that minimum service requirements could affect some groups more than others, such as <a href="https://committees.parliament.uk/writtenevidence/118459/html/">women that work as nurses</a>. This would breach Article <a href="https://www.echr.coe.int/Documents/Guide_Art_14_Art_1_Protocol_12_ENG.pdf">14</a> which protects against discrimination.</p>
<p>Bolder claims around “<a href="https://committees.parliament.uk/writtenevidence/118472/html/">forced labour</a>”, which is covered by <a href="https://www.opendemocracy.net/en/minimum-service-levels-bill-modern-slavery-human-rights-committee/">Article 4 of the ECHR</a>, were not addressed in the committee’s report. This may be because the committee members represent a wide range of political views and they needed to reach a consensus on the report’s conclusions.</p>
<h2>Amendments in line with ILO standards</h2>
<p>The first amendment to the bill proposed by the committee reflects <a href="https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:70001:0::NO:::">ILO standards</a>, which the <a href="https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-187732%22%5D%7D">European Court of Human Rights also follows</a>. It sets out when minimum service levels should be triggered: </p>
<ul>
<li>to protect the life, personal safety or health of the whole or part of the population</li>
<li>against an acute national crisis endangering the normal living conditions of the population or</li>
<li>to protect public services of fundamental importance. </li>
</ul>
<p>Second, the committee says the bill needs more specific details about limits on strike activity to make sure that any minimum service levels set by the secretary of state do not make strike activity ineffective. The <a href="https://committees.parliament.uk/publications/34217/documents/188239/default/">House of Lords Delegated Powers and Regulatory Reform Committee</a> has also requested greater detail on the minimum levels and services covered by the bill. It said that the powers given to the secretary of state would be “inappropriate” if this information is not clearly stated in the legislation. </p>
<p>The third amendment again follows ILO norms. Rather than asking employers to simply “consult” with unions on work notices, the committee argues there should be a <a href="https://www.ilo.org/legacy/english/dialogue/ifpdial/llg/noframes/ch5.htm">negotiated settlement of minimum service levels</a>. It also suggests bringing an independent body into any disputes that arise. </p>
<p>The fourth amendment put forward by the committee would further restrict employers’ ability to choose who must work during a strike. The aim here is to ensure an employee’s trade union activity doesn’t influence their selection because, again, that could make strike action less effective. </p>
<h2>Can the Strikes Bill be salvaged?</h2>
<p>The fifth amendment in the committee’s report would prevent striking
workers from losing their automatic protection from unfair dismissal if a union failed to take “reasonable steps” to ensure named employees comply with a work notice issued under the bill. This is important because employees have no control over the steps a union might take in this situation. </p>
<p>However, this proposed amendment falls short. <a href="https://committees.parliament.uk/committee/93/human-rights-joint-committee/news/186524/strikes-bill-fails-to-meet-human-rights-obligations-jchr/#:%7E:text=Strikes%20Bill%20fails%20to%20meet%20human%20rights%20obligations,the%20Joint%20Committee%20on%20Human%20Rights%20has%20found.">The committee’s report</a> repeatedly says that it is unclear what steps would be “reasonable” or how a trade union or its members could know that this requirement was being met. This aspect of the bill clearly interferes with Article 11 rights relating to freedom of association, but the committee’s current amendments would not address this flaw in the new rules.</p>
<p>Overall, the recommendations would go some way towards protecting UK workers under international human rights law if the strikes bill is enacted. But even if it accepts these committee recommendations, the government could still be open to legal challenges to the bill, whether through judicial review before the European Court of Human Rights, or at the ILO.</p><img src="https://counter.theconversation.com/content/200685/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tonia Novitz is Professor of Labour Law at the University of Bristol and a Vice-President of the Institute of Employment Rights, but the opinions provided here are her own. She gave evidence to the UK Joint Committee on Human Rights at a session held on 8 February 2023. </span></em></p>The UK parliament’s Joint Committee on Human Rights has suggested changes to the strikes bill but even those may not go far enough.Tonia Novitz, Professor of Labour Law, University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1996342023-02-28T06:12:33Z2023-02-28T06:12:33ZWhy thousands of people who thought they were British could lose their citizenship<figure><img src="https://images.theconversation.com/files/512207/original/file-20230224-1489-7jtilj.jpg?ixlib=rb-1.1.0&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/man-handing-new-post-brexit-blue-1911595108">Max_555/Shutterstock</a></span></figcaption></figure><p>Confusion has arisen around the British government’s own understanding of its <a href="https://theconversation.com/how-changes-to-uk-law-may-provide-more-dual-citizenship-drama-97256">citizenship laws</a>, following a <a href="https://caselaw.nationalarchives.gov.uk/ewhc/admin/2023/31">judgment</a> by the UK’s high court. In a ruling handed down on January 20 2023, in the case of Roehrig v Secretary of State for the Home Department, Mr Justice Eyre determined that the restrictive approach applied by the Home Office since 2000 to how the children of EU nationals automatically acquire citizenship is the correct interpretation of the law. </p>
<p>The case in question concerns the nationality of Antoine Lucas Roehrig, who was born on October 20 2000 in the UK. His mother is a French national who had lived and worked in the UK under EU law for the five years before he was born. Roehrig claimed he acquired British citizenship at birth by virtue of section 1(1)(b) of the <a href="https://www.legislation.gov.uk/ukpga/1981/61/section/1">British Nationality Act 1981</a> because his mother was settled in the UK at the time he was born. The Home Office disputed that his mother met the act’s criteria for being settled and refused his application for a British passport.</p>
<p>Eyre’s ruling in favour of the Home Office hinges on the government’s interpretation of how the legal definition of being “settled” in the UK applied to EU nationals. It could upend the lives of many thousands of people, who have always believed that they were British.</p>
<figure class="align-center ">
<img alt="Two children eating ice-creams with a woman in the background." src="https://images.theconversation.com/files/512208/original/file-20230224-1582-xbycv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512208/original/file-20230224-1582-xbycv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512208/original/file-20230224-1582-xbycv0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512208/original/file-20230224-1582-xbycv0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512208/original/file-20230224-1582-xbycv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512208/original/file-20230224-1582-xbycv0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512208/original/file-20230224-1582-xbycv0.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">EU-national residents in Britain now face uncertainty over their UK-born children’s citizenship.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/family-eating-ice-cream-eastbourne-uk-654134167">Alexey Fedorenko/Shutterstock</a></span>
</figcaption>
</figure>
<h2>Indefinite leave to remain</h2>
<p>Before 1983, anyone born in the UK automatically acquired British citizenship. After that, when the British Nationality Act 1981 came into force, those born in the UK would only be considered British citizens if at least one of their parents were either a British citizen themselves or “settled” in the UK at the time of the child’s birth. </p>
<p>For 17 years, the Home Office deemed EU nationals exercising free movement rights in the UK to be settled and their UK-born children, thus, British. But on October 2 2000, the Home Office <a href="https://www.legislation.gov.uk/uksi/2000/2326/made">changed the rules</a>. In order to be deemed “settled”, EU nationals now had to apply for and be granted indefinite leave to remain. </p>
<p>The problem is that many EU nationals did not apply for indefinite leave to remain, simply because they did not need it to enter and reside in the UK. Why apply for something you apparently don’t need? </p>
<p>The question posed by Roehrig’s case, therefore, is whether EU nationals without indefinite leave to remain could be considered “settled”. To answer this question, the high court had to determine whether EU nationals <a href="https://www.legislation.gov.uk/ukpga/1981/61/section/50">met the definition</a>, as specified in section 50 of the British Nationality Act, of someone residing in the UK without any immigration law restrictions on the period that they could stay.</p>
<p>EU law, which had direct effect in the UK <a href="https://theconversation.com/how-eu-families-in-britain-are-coping-with-brexit-uncertainty-122659">until Brexit</a>, effectively created a conditional residence for EU nationals, who could reside in the UK for as long as they remained a “qualified person”. These residence rights were usually granted on the basis of being in employment. In certain circumstances, someone might be eligible through being unable to work due to illness or job loss, through living off personal savings, or through relying on a family member.</p>
<p>Eyre found that this conditional residence had the same effect as an immigration law restriction on the period for which EU nationals could remain in the UK. In other words, he judged that being a “qualified person” under EU free movement law did not mean you can now be deemed to have been “settled”.</p>
<p>This is a surprising interpretation of the law. Until Brexit, and the subsequent requirement to apply for the <a href="https://theconversation.com/settled-status-deadline-whats-next-for-eu-citizens-in-the-uk-163673">EU settlement scheme</a>, many EU nationals were able to reside in the UK on the basis of EU law for decades without applying for indefinite leave to remain. They were treated as settled, and their children treated as British. </p>
<h2>The impact of this judgment</h2>
<p>Importantly, new rules, like those the Home Office introduced on October 2 2000, do not actually change the law. They simply <a href="https://www.legislation.gov.uk/uksi/2000/2326/contents/made">alter</a> the interpretation of the law and how to implement it.</p>
<p>Eyre has decided that the Home Office’s restrictive approach to British citizenship, as applied since October 2 2000, is the correct interpretation of the British Nationality Act. It follows that the previous interpretation, as implemented between 1983 and October 2 2000, was incorrect. This means that the Home Office will have mistakenly granted British citizenship to many people born during this time period to parents who, like Roehrig’s mother, were “qualified persons” under EU free movement law.</p>
<p>Conversely, if Roehrig appeals the judgment, and is successful, it is the restrictive approach the Home Office has taken since 2000 that will be found to be unlawful. The interpretation of the law, as implemented before October 2000, will have been the correct one. In this instance, the Home Office will have mistakenly denied British citizenship to many people born since 2000 to EU nationals who should have been considered to be “settled” in the UK. </p>
<p>Given that the government <a href="https://migrationobservatory.ox.ac.uk/resources/commentaries/what-now-the-eu-settlement-scheme-after-the-deadline/">has greatly underestimated</a> the number of EU nationals living in the UK before Brexit, it is not unreasonable to expect the number of people who could be affected, either way, to be in the tens of thousands.</p>
<p>The secretary of state’s submissions to the high court provided reassurance that the Home Office has accepted “as a matter of policy and fairness” that affected children born before October 2 2000 are British. But this is simply a matter of policy. It provides no legal certainty.</p>
<p>As immigration barrister Colin Yeo <a href="https://freemovement.org.uk/high-court-casts-doubt-on-british-citizenship-of-children-of-eu-citizens/">warns</a>, the Home Office has nullified citizenship before, relying on the confusing logic that it was never actually held if acquired through error or Home Office mistake. At present, the policy to recognise the British citizenship of those born before October 2 2000 <a href="https://prcbc.files.wordpress.com/2023/01/roehrig_practitioners-note-20jan2023.pdf">has been paused</a>. </p>
<p>And what of those who have gone on to have their own children, thinking they had passed on their British citizenship? Guaranteeing protection for the affected group could be achieved through legislation which retroactively recognises their acquisition of British citizenship. For now, though, thousands of “possibly British” people with EU national parents are left facing great uncertainty.</p><img src="https://counter.theconversation.com/content/199634/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alice Welsh receives funding from the Economic and Social Research Council. </span></em></p>The British citizenship of the children of EU nationals born before October 2 2000 could be at risk.Alice Welsh, Research fellow, University of YorkLicensed 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>
<figure class="align-center ">
<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">
<figcaption>
<span class="caption"></span>
<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>
</figcaption>
</figure>
<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/1943932022-12-05T14:57:17Z2022-12-05T14:57:17ZShould sports cheats be prosecuted? When violence in the ring or on the field becomes criminal<figure><img src="https://images.theconversation.com/files/497213/original/file-20221124-12-i6i0cu.jpg?ixlib=rb-1.1.0&rect=301%2C184%2C6159%2C2802&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/box-professional-match-on-dark-background-1702868416">Andrey Burmakin / Shutterstock</a></span></figcaption></figure><p>Professional boxing is no stranger to controversy. The <a href="https://www.bmj.com/content/335/7618/469.1#:%7E:text=The%20BMA%20has%20been%20campaigning,olds%20as%20a%20first%20step.&text=And%20the%20argument%20that%20the,%E2%80%9Cbetter%E2%80%9D%20themselves%20is%20patronising">British Medical Association</a>, the trade union for doctors in the UK, has called for years for the sport to be banned due to its damaging effects. It has a <a href="https://sk.sagepub.com/reference/sportsmedicine/n76.xml">higher potential</a> for injury than any other contact sport.</p>
<p>Boxing encourages participants to knock out their opponent. Such conduct often involves the deliberate infliction of grievous bodily harm. Outside of the ring, this conduct could land you with a prison sentence. When boxers break the rules of a contest, there is also the potential for criminal charges.</p>
<p>Infamously, US boxer Luis Resto spent time in prison <a href="https://www.nysportsday.com/2022/08/15/the-fight-that-still-haunts-luis-resto/">for assault</a> after replacing the padding in his gloves with plaster before a 1983 fight. This seems like an obvious case for prosecution, but the line is not always so clear. Now, a doping scandal has raised the question: how does the law decide when sports violence or misdemeanours become criminal?</p>
<p>In October, welterweight contender Conor Benn failed two drug tests ahead of his highly anticipated bout with Chris Eubank Jr. A fighter failing a doping test is nothing new. But this information was revealed in a tabloid days before the fight, suggesting that without the exposé, the bout would have gone ahead. </p>
<p>Benn has <a href="https://www.theguardian.com/sport/2022/oct/26/conor-benn-relinquishes-boxing-licence-with-allegations-of-misconduct-upheld">maintained his innocence</a>, but voluntarily relinquished his boxing licence in the weeks following the tests. This sidestepped a full misconduct hearing, in a move that <a href="https://boxing-social.com/news/dan-rafael-slams-conor-benns-team/">some queried</a>. </p>
<p>In response, boxer and commentator Spike O'Sullivan has called for steroid users to be charged with <a href="https://www.irishexaminer.com/sport-columnists/arid-40978646.html">attempted murder</a>. But in cases of sporting foul play, it’s not always obvious when the criminal courts should intervene.</p>
<h2>Sports cheat or violent criminal</h2>
<p>Luis Resto’s case was clear cut. The victim, Billy Collins Jr, did not consent to the specific risks associated with fighting an opponent with “loaded gloves” just by taking part in the boxing match. </p>
<p>When it comes to other forms of cheating, the legal response has been murkier. </p>
<p>One example is the 2004 case <a href="https://www.bailii.org/ew/cases/EWCA/Crim/2004/3246.html">R v Barnes</a>, where a footballer appealed his conviction for grievous bodily harm inflicted on an opponent during a match. He performed a hard and high sliding tackle but maintained that the injury to his opponent’s leg was accidental.</p>
<p>The court of appeal overturned the conviction, reasoning that by taking part in a legitimate sport, someone effectively consents to the risk of injury, insofar as it is incidental to the game. This provides a potential defence for the accused, even if they broke the sport’s rules (for example, by fouling another player). </p>
<p>What remains unclear is what behaviour (including cheating) is actually incidental to “legitimate sport” – an important factor that depends on context.</p>
<p>Courts have intervened when competitors have engaged in “off the ball” violence. Footballer Eric Cantona was convicted of assaulting a fan during a match by leaping into the crowd and executing a <a href="https://www.theguardian.com/football/from-the-archive-blog/2015/jan/25/eric-cantona-kung-fu-kick-20-1995-archive#:%7E:text=In%20a%20packed%20court%20room,granted%20bail%20pending%20an%20appeal.">“kung-fu kick”</a> in 1995. </p>
<figure class="align-center ">
<img alt="A football referee in a light blue jersey holds up a red card during a match" src="https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/497348/original/file-20221125-16-rbczh9.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">Courts have said that playing a sport means consenting to possible injury – even if it breaks the rules of the game.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/kyiv-ukraine-december-6-2016-referee-532120480">Review News / Shutterstock</a></span>
</figcaption>
</figure>
<p>The Barnes case was concerned with tackles and foul play during a game, rather than preemptive cheating to maximise one’s potential to inflict serious injury ahead of a contest. Luis Resto’s gloves would fall under the latter category, but performance-enhancing drugs are a grey area. Neither the UK courts nor parliament have paid close attention to the boundaries of the consent defence in such circumstances.</p>
<p>Interestingly, in the now hypothetical case of Benn and Eubank Jr, <a href="https://metro.co.uk/2022/10/05/chris-eubank-jr-accuses-conor-benn-of-lying-as-drug-test-drama-takes-new-twist-17510268/">it was reported</a> that Eubank Jr was happy to proceed with the contest despite his opponent’s positive test: “I’ve prepared, I have done my job and now it is in the hands of the promoters, the governing bodies to make this fight happen. All I can do is be ready.” In such dangerous circumstances, it is questionable whether any prior consent could provide a defence to a subsequent charge of serious violence. </p>
<h2>Why is boxing legal, anyway?</h2>
<p>Legally, boxing rests on shakier foundations than other sports. Boxing originally appears to have been regarded as lawful not through any application of principle, or by reference to the legal rules applying to other sports. Rather, it appeared to 19th-century judges to be tamer than the bare-knuckle prizefights they were keen to <a href="https://www.lawcom.gov.uk/app/uploads/2016/08/No.134-Criminal-Law-Consent-and-Offences-Against-the-Person-A-Consultation-Paper.pdf">outlaw</a>. This exceptional category of legally permissible violence has endured only because of its popularity – no government has (yet) seen fit to ban it. </p>
<p>Professional and amateur boxing are also regulated. Bouts have referees, padded gloves, weight classes and other rules to mitigate medical risks to participants. The courts have found that, due to these factors, consensual boxing would be a “legitimate sport”, exempt from the ordinary operation of criminal laws prohibiting <a href="https://swarb.co.uk/regina-v-coney-qbd-18-mar-1882/">serious violence</a>.</p>
<p>Unlicensed forms of boxing, such as <a href="https://journals.sagepub.com/doi/full/10.1177/0038026119829762">white collar</a> contests and resurgent <a href="https://theculturetrip.com/europe/united-kingdom/england/london/articles/the-rise-of-bare-knuckle-boxing-in-london/">bare-knuckle boxing</a> are not so clearly exempt. The position of other combat sports such as Thai boxing and mixed martial arts is also uncertain. These are subject to varying degrees of regulation, and the senior courts in England and Wales have simply not yet had the opportunity to <a href="https://www.cps.gov.uk/publication/agreement-handling-incidents-falling-under-both-criminal-football-regulatory">definitively rule</a> on their lawfulness.</p><img src="https://counter.theconversation.com/content/194393/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joe Purshouse 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>When cheating in sport leads to injury, it’s not always clear when the courts should intervene.Joe Purshouse, Senior Lecturer in Criminal Law and Justice, University of SheffieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1875672022-08-02T16:13:35Z2022-08-02T16:13:35ZYour dream wedding might not be legal – time to update England’s old-fashioned marriage laws<figure><img src="https://images.theconversation.com/files/476707/original/file-20220729-19-qoas9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Weddings law needs to embrace the plural nature of contemporary society.</span> <span class="attribution"><a class="source" href="https://unsplash.com/photos/34C-ukllkTA">Honey Yanibel Minaya Cruz | Unsplash</a>, <a class="license" href="http://artlibre.org/licence/lal/en">FAL</a></span></figcaption></figure><p>If you’re planning a wedding in England or Wales, there’s a good chance you’re facing something of a legal conundrum. Whether it’s that you’d always wanted to get <a href="https://www.hitched.co.uk/wedding-planning/honeymoon-articles/beach-wedding-destinations/">married on a beach</a> or are piecing together <a href="https://www.brides.com/interfaith-wedding-5088093">an interfaith ceremony</a>, many betrothal options that you might think are fairly standard are actually <a href="https://lawandreligionuk.com/2021/12/04/how-we-marry-is-changing-and-the-law-needs-to-keep-up/">out of sync with current weddings legislation</a>.</p>
<p>In July 2022, the Law Commission published proposals for a <a href="https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2022/07/A-new-weddings-law-LC-report.pdf">new weddings law</a>. The fact that the report opens with a seven-page glossary of terms is a good indication of quite how complex – and how pressing – an area of legal reform this is. </p>
<p>Much of the current law <a href="https://www.jstor.org/stable/24739206">dates back</a> to the Georgian era and some of it, all the way back to the Clandestine Marriages Act of 1753. Such ancient and therefore culturally specific legislation stands in stark contrast to the cross-cultural influences writ large across the globalised world in which we live. </p>
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<img alt="Quarter life, a series by The Conversation" src="https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/451343/original/file-20220310-13-1bj6csd.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em><strong><a href="https://theconversation.com/uk/topics/quarter-life-117947?utm_source=TCUK&utm_medium=linkback&utm_campaign=UK+YP2022&utm_content=InArticleTop">This article is part of Quarter Life</a></strong>, a series about issues affecting those of us in our twenties and thirties. From the challenges of beginning a career and taking care of our mental health, to the excitement of starting a family, adopting a pet or just making friends as an adult. The articles in this series explore the questions and bring answers as we navigate this turbulent period of life.</em></p>
<p><em>You may be interested in:</em></p>
<p><em><a href="https://theconversation.com/five-dating-tips-from-the-georgian-era-186847">Five dating tips from the Georgian era</a></em></p>
<p><em><a href="https://theconversation.com/baby-names-why-we-all-choose-the-same-ones-185546">Baby names: why we all choose the same ones</a></em></p>
<p><em><a href="https://theconversation.com/sally-rooneys-conversations-with-friends-how-weve-become-tougher-on-adultery-183843">Sally Rooney’s Conversations with Friends – how we’ve become tougher on adultery</a></em></p>
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<p>As my research <a href="https://warwick.ac.uk/fac/soc/law/research/projects/wedding-not-marriage/">shows</a>, couples often borrow rituals, prioritise rites and personalise ceremonies for weddings that are not, in fact, recognised by the law at all. Many people see <a href="https://theconversation.com/marriages-and-civil-partnerships-are-regulated-by-the-government-heres-why-thats-a-problem-127303">the current law</a> as obstructive to getting married in a way that is meaningful to them. </p>
<figure class="align-center ">
<img alt="A wedding party with lights and decorations under a marquee." src="https://images.theconversation.com/files/476700/original/file-20220729-12-o3hewy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476700/original/file-20220729-12-o3hewy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476700/original/file-20220729-12-o3hewy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476700/original/file-20220729-12-o3hewy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476700/original/file-20220729-12-o3hewy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476700/original/file-20220729-12-o3hewy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476700/original/file-20220729-12-o3hewy.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">People want to be able to get married, legally, in the way that feels most meaningful to them.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/people-gathered-sitting-wedding-hall-dinner-1439385140">Amir Mukhtar | Shutterstock</a></span>
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<h2>Why couples often have two ceremonies</h2>
<p>Between 2020 and 2021, <a href="https://warwick.ac.uk/fac/soc/law/research/projects/wedding-not-marriage/research-outputs/when_is_a_wedding_not_a_marriage_-_exploring_non-legally_binding_ceremonies_-_final_report.pdf">we interviewed</a> 83 individuals and couples to investigate non-legally binding weddings in England and Wales. These included Christian, Jewish, Muslim, Hindu, Jain, Sikh, pagan, interfaith and humanist weddings, as well as weddings led by an independent celebrants. </p>
<p>Most of our interviewees had had to have <a href="https://theconversation.com/why-meghan-and-harry-and-many-others-choose-to-have-two-wedding-ceremonies-156893">a dual ceremony</a> in order for their marriage to be legal. And the legally recognised ceremony was often not the one they considered to be their “real” wedding. </p>
<p>These non-legally binding ceremonies were both religious and non-religious. Many of our participants viewed the law as obstructive to getting married in a way they found meaningful. </p>
<p><a href="https://theconversation.com/covid-weddings-why-some-couples-got-unofficially-married-during-the-pandemic-163211">COVID</a> has further impacted people’s choices. Our study found that many more non-legally binding ceremonies occurred <a href="https://warwick.ac.uk/fac/soc/law/research/projects/wedding-not-marriage/research-outputs/the_impact_of_covid.pdf">during lockdown</a>.</p>
<figure class="align-center ">
<img alt="A couple in Sikh wedding clothes seen from the back during a ceremony." src="https://images.theconversation.com/files/476703/original/file-20220729-17-iujglo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476703/original/file-20220729-17-iujglo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476703/original/file-20220729-17-iujglo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476703/original/file-20220729-17-iujglo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476703/original/file-20220729-17-iujglo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476703/original/file-20220729-17-iujglo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476703/original/file-20220729-17-iujglo.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">Couples would like to see to make their day meaningful be more personal.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/indian-punjabi-sikh-wedding-ceremony-bride-1965282955">Svetype26 | Shutterstock</a></span>
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<h2>What current wedding legislation requires</h2>
<p>There are multiple ways in which a couple can legally marry under the current law. For all ceremonies, preliminaries (the giving of notice, the publication of banns or the issuing of licences) have to be conducted. </p>
<p>Legally recognised locations include Anglican churches, registered places of worship, register offices and approved premises. Jewish and Quaker weddings can take place anywhere. </p>
<p>And who must oversee the ceremony varies similarly, from an ordained member of the Anglican clergy, a superintendent registrar, a registrar to an authorised person. Jewish and Quaker weddings can be led by anyone suitable.</p>
<p>Weddings in <a href="https://theconversation.com/english-marriage-law-discriminates-against-minorities-celebrants-could-change-that-73943">other faiths</a>, including Muslim <a href="https://academic.oup.com/ojlr/article/7/3/427/5075173">nikah weddings</a>, are legally recognised when conducted in certified places of worship which are registered for weddings. The requisite formalities here include giving notice and being conducted by an authorised person or registrar. </p>
<p><a href="https://www.tandfonline.com/doi/full/10.1080/09649069.2022.2067651">Civil ceremonies</a> have to take place in a register office or an approved premises and in the presence of a superintendent registrar and registrar. </p>
<p>All ceremonies have to include declarations of consent and terms of contract. These prescribed words include not knowing of “any lawful impediment why” the couple may not marry, and calling on the “persons here present to witness” the wedding. They stem either from the approved forms of service for Anglican weddings or, for civil weddings and those in registered placed of worship, are modelled on the Anglican service. Jewish and Quaker traditions specify their own usages.</p>
<figure class="align-center ">
<img alt="A bride in orange hugs her mother." src="https://images.theconversation.com/files/476704/original/file-20220729-14-lwt3x2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476704/original/file-20220729-14-lwt3x2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476704/original/file-20220729-14-lwt3x2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476704/original/file-20220729-14-lwt3x2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476704/original/file-20220729-14-lwt3x2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476704/original/file-20220729-14-lwt3x2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476704/original/file-20220729-14-lwt3x2.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">People would like to be allowed to use the words that have the most meaning to them.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/kampala-central-uganda-09-07-2021-2004122603">kabunga Godfrey | Shutterstock</a></span>
</figcaption>
</figure>
<h2>How people really want to get married</h2>
<p>We found that couples would prefer to consent to marry in a way which accords with their own beliefs and wishes, rather than be compelled to use the prescribed words. </p>
<p>Of course, these could continue to be used by those with whom they resonate. Removing the prescription would simply enable others to use words that hold meaning for them. </p>
<p>Some interviewees found venue restrictions to be problematic. Outdoor weddings remain limited, even with <a href="https://www.legislation.gov.uk/uksi/2022/295/contents/made">recent reforms</a> which have allowed weddings to occur outdoors on the grounds of an approved premises. Being outdoors, for example, is particularly significant for pagan weddings. Being able to choose where would also help keep costs lower.</p>
<figure class="align-center ">
<img alt="A couple look back at guests scrambling for a bouquet on a beach." src="https://images.theconversation.com/files/476706/original/file-20220729-9120-ffc3a4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/476706/original/file-20220729-9120-ffc3a4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/476706/original/file-20220729-9120-ffc3a4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/476706/original/file-20220729-9120-ffc3a4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/476706/original/file-20220729-9120-ffc3a4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/476706/original/file-20220729-9120-ffc3a4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/476706/original/file-20220729-9120-ffc3a4.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">Right now, not everyone can get married on a beach.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/young-couple-wedding-ceremony-beach-1120917671">Rawpixel.com | Shutterstock</a></span>
</figcaption>
</figure>
<p>Reforms in Scotland, Northern Ireland, Ireland, Jersey and Guernsey have all essentially recognised that people no longer live, marry and die in the same communities and that the law must evolve accordingly. </p>
<p>In the Law Commission’s radical but realistic proposals, the key idea is that the system of regulation moves from focusing on where the wedding occurs (the building) to who oversees the ceremony. The report recommends that an officiant be present at every ceremony, regardless of the shape it might take. If implemented, this would indeed provide a universal rule for all. </p>
<p>The process of marrying has to both provide certainty in legal terms, as to the contract that marriage is, and be flexible in recognition of the modern, plural society in which we live.</p><img src="https://counter.theconversation.com/content/187567/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rajnaara C Akhtar receives funding from the Nuffield Foundation. </span></em></p>England and Wales remain outliers in Britain when it comes to modernising weddings legislation. Couples are looking for laws that accommodate more personal ways of finding meaning.Rajnaara C Akhtar, Assistant Professor in Law, University of WarwickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1833922022-06-01T16:10:43Z2022-06-01T16:10:43ZHow Elizabethan law once protected the poor from the high cost of living – and led to unrivalled economic prosperity<figure><img src="https://images.theconversation.com/files/466383/original/file-20220531-14-n9xvm5.jpg?ixlib=rb-1.1.0&rect=65%2C0%2C1156%2C784&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Elizabeth I in procession, circa 1600.</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>In the closing years of Elizabeth I’s reign, England saw the emergence of arguably the world’s first effective welfare state. Laws were established which successfully protected people from rises in food prices. </p>
<p>More than 400 years later, in the closing years of <a href="https://www.britannica.com/biography/Elizabeth-II">Elizabeth II’s reign</a>, the UK once again faces perilous spikes in living costs. Perhaps today’s government could learn something from its legislative ancestors.</p>
<p>Until the end of the 16th century, it was a given throughout medieval Europe that when food prices rose there would be a consequent surge in mortality rates, as people starved to death and diseases spread among the malnourished. </p>
<p>The <a href="https://www.cambridge.org/core/books/abs/poor-relief-in-england-13501600/poor-laws-of-1598-and-1601/DD47B704ECD7DED525DC5A4310B14408">Elizabethan Poor Laws</a> of 1598 and 1601 turned the situation in England on its head. Now when food became too expensive, local parishes were obliged to give cash or food to those who could not afford to eat. For the <a href="https://www.waterstones.com/book/after-the-virus/hilary-cooper/simon-szreter/9781009005203">first time in history</a>, it became illegal to let anybody starve.</p>
<p>The laws were clear and simple, and required each of over 10,000 English parishes to set up a continuous relief fund to support the vulnerable. This included the lame, the ill and the old, as well as orphans, widows, single mothers and their children, and those unable to find work. Occupiers of land (landowners or their tenants) had to pay a tax towards the fund in proportion to the value of their holding. </p>
<p>Overseen by local magistrates, the system’s transparency provided no loopholes for avoiding the tax. In fact, it encouraged a flourishing culture of charitable giving which provided almshouses, apprenticeships and hospitals for the parish poor to alleviate destitution.</p>
<p>With this proliferation of localised mini-welfare states, England became the first country in Europe by more than 150 years to effectively put an <a href="https://www.cambridge.org/core/books/abs/first-century-of-welfare/index/EBEEAB51C199B639780C00D557051F13">end to widespread famine</a>. And it also enabled England subsequently to enjoy by far the fastest rate of urbanisation in Europe. </p>
<p>Between 1600 and 1800, huge numbers of young people left rural parishes to find work in cities, safe in the knowledge that their parents would be supported by the parish in times of need – and that they themselves would receive help if things didn’t work out. Long before the first steam engines arrived, the Poor Laws had created an urban workforce which enabled the industrial revolution to take off.</p>
<h2>Poor state of affairs</h2>
<p>Then in 1834, everything changed. The cost of this level of welfare support was deemed too high, and replaced with a deliberately <a href="https://www.cambridge.org/core/journals/irish-historical-studies/article/abs/making-of-the-new-poor-law-183239-anthony-brundage-hutchinson-university-library-london-1978-850/458D4B371AD8B2AB0CED2B760E9BC05C">harsh new system</a> in which the poorest men and women were separated from each other and their children and provided only with gruel in return for tedious chores in degrading workhouses. The fear of the workhouse was designed to force the poor to prefer work – for whatever abysmal wages the market offered. </p>
<p>It is this version of the Poor Laws which tends to stick in the popular memory, familiar from the books of Charles Dickens, and obscuring the achievements of the Elizabethan original. But <a href="https://academic.oup.com/ahr/article-abstract/118/1/254/45092?redirectedFrom=fulltext">extensive</a> <a href="https://academic.oup.com/past/article-abstract/253/1/151/6386211?redirectedFrom=fulltext">recent</a> <a href="https://www.cambridge.org/core/journals/enterprise-and-society/article/jonathan-healey-the-first-century-of-welfare-poverty-and-poor-relief-in-lancashire-16201730-woodbridge-uk-boydell-press-2014-xvi-319-pp-isbn-9781843839569-2995-paper/8A8E2B1D6BD01F1430EFF496630C7CC5">research</a> has started to highlight how Elizabethan law changed British history – and provides us with urgent lessons for today’s welfare system and the pressures of the cost-of-living crisis. </p>
<p>Just as the old Poor Laws supported an extraordinary period of economic prosperity, so too did the UK’s welfare state after the second world war. Tax-funded investment in education (secondary and higher), and the newly-created NHS saw widened opportunities and living standards take off, as the UK enjoyed over two decades of the <a href="https://www.cambridge.org/highereducation/books/cambridge-economic-history-of-modern-britain/97D02C574487738C18079CEB24F0E573#contents">fastest productivity growth</a> in its history (1951-73).</p>
<figure class="align-center ">
<img alt="A half full food bank donation container." src="https://images.theconversation.com/files/466393/original/file-20220531-22-nqgg54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/466393/original/file-20220531-22-nqgg54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/466393/original/file-20220531-22-nqgg54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/466393/original/file-20220531-22-nqgg54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/466393/original/file-20220531-22-nqgg54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/466393/original/file-20220531-22-nqgg54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/466393/original/file-20220531-22-nqgg54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In the 1600s, food distribution was legally enforced in England.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-1216-container-tesco-supermarket-1876971844">Shutterstock/Yau Ming Low</a></span>
</figcaption>
</figure>
<p>Today, people regularly speak of being forced to choose between <a href="https://metro.co.uk/2021/09/20/martin-lewis-says-people-will-be-forced-to-choose-between-food-and-heating-15287413/">eating and heating</a> as food and energy prices surge. Yet there is no corresponding compensation for those whose wages and benefits do not stretch far enough. A one-off <a href="https://theconversation.com/rishi-sunaks-15-billion-cost-of-living-package-and-windfall-tax-four-experts-respond-183945">hand out</a> when millions of households are facing both fuel and food poverty is but a temporary sticking plaster. </p>
<p>Until there is a permanent increase in safety net payments to those on universal credit, food banks will continue to proliferate and children will continue to go to school hungry. The link between wealth and taxation was effectively used by the Elizabethans to start to tackle inequality. But today’s globalised economy facilitates offshore profits and ever-rising inequality.</p>
<p>In my new book, <a href="https://www.cambridge.org/core/books/after-the-virus/748D2883622738E1F515886A9BA4953F">After the Virus: Lessons from the Past for a Better Future</a> I explore changes in the sense of moral duty and the carefully legislated collective endeavour that formed the foundation of the UK’s past – and most recent – periods of prosperity.</p>
<p>The Poor Laws were far from a perfect system of welfare. But the fact that protecting the poorest in society has previously led to widespread economic growth is a history lesson that should not be ignored by any government during a cost-of-living crisis.</p><img src="https://counter.theconversation.com/content/183392/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Szreter 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>There are valuable lessons to be learned from the England of the 1600s.Simon Szreter, Professor of History and Public Policy, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1743712022-01-06T11:30:44Z2022-01-06T11:30:44ZPardons for historic homosexual offences are welcome - but we still need to address the legacy of criminalisation<figure><img src="https://images.theconversation.com/files/439637/original/file-20220106-25-ec17oq.jpg?ixlib=rb-1.1.0&rect=53%2C67%2C4284%2C2182&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/two-gay-men-wrapped-pride-flags-1453580081">InkDrop/Shutterstock</a></span></figcaption></figure><p>About 40 years ago, a man named George was arrested in Earl’s Court, London, and charged with persistent importuning. His offence? Striking up a conversation with another man who then invited George back to his flat, only to reveal that he was a police officer. George would later plead guilty and be fined £100 (roughly £350 today), after feeling pressured by the police following his arrest.</p>
<p>For gay and bisexual men in the years following the partial decriminalisation of homosexuality, this experience was not uncommon. George’s case is one of many listed in the first annual report of the <a href="https://galop.org.uk/wp-content/uploads/2021/06/galop-annual-report-1984.pdf">Gay London Police Monitoring Group</a> in 1984. Several of these involved police officers arresting gay and bisexual men after they exited bars at closing time.</p>
<p><a href="https://www.legislation.gov.uk/ukpga/Eliz2/4-5/69/section/32">Importuning</a>, which effectively criminalised a man from making an advance on another man in public, is one of several offences that the UK government may now move to pardon. The <a href="https://www.bbc.co.uk/news/uk-59863140">recently announced reforms</a> to expand the pardoning of historic homosexual offences are to be brought forward as an amendment to the government’s <a href="https://bills.parliament.uk/bills/2839">Police, Crime, Sentencing and Courts Bill</a>. Other aspects of the bill have attracted controversy over their <a href="https://news.sky.com/story/police-crime-sentencing-and-courts-bill-mps-and-peers-say-curbs-on-protests-are-inconsistent-with-human-rights-12338171">impact on human rights</a>.</p>
<p>The existing pardoning scheme, known as the <a href="https://www.bbc.co.uk/news/uk-37711518">Turing Law</a>, was introduced in 2016 following the 2013 posthumous royal pardon for second world war code breaker Alan Turing. Under the current process, applications for past convictions to be disregarded can only be made in respect of a <a href="https://www.gov.uk/government/publications/disregarding-convictions-for-decriminalised-sexual-offences/disregarding-convictions-for-decriminalised-sexual-offences-guidance-accessible-version">limited range of offences</a>.</p>
<p>Importuning is not included among these. The offence remained on the statute books until 2003, long after the partial decriminalisation of homosexuality in England and Wales in 1967. This reflects the fact that decriminalisation only extended to consensual behaviour occurring in private. This was a recommendation of the government-commissioned <a href="https://www.bl.uk/collection-items/wolfenden-report-conclusion">Wolfenden report</a>. This report, along with <a href="https://theconversation.com/buggery-bribery-and-a-committee-the-story-of-how-gay-sex-was-decriminalised-in-britain-79597">numerous campaigns</a> led by those <a href="https://theconversation.com/against-the-law-review-a-fitting-tribute-to-gay-men-whose-persecution-in-1950s-paved-way-for-new-rights-74785">who were criminalised and persecuted</a>, was instrumental in changing the law.</p>
<figure class="align-center ">
<img alt="A bronze statue of Alan Turing sitting on a bench in Manchester" src="https://images.theconversation.com/files/439639/original/file-20220106-13-b3othr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/439639/original/file-20220106-13-b3othr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=451&fit=crop&dpr=1 600w, https://images.theconversation.com/files/439639/original/file-20220106-13-b3othr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=451&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/439639/original/file-20220106-13-b3othr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=451&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/439639/original/file-20220106-13-b3othr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/439639/original/file-20220106-13-b3othr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/439639/original/file-20220106-13-b3othr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Pardons for some now-abolished offences have been available under the Turing Law since 2016.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/manchester-united-kingdom-12292019-alan-turing-1628626516">Igor Paszkiewicz / Shutterstock</a></span>
</figcaption>
</figure>
<p>In 2021, a <a href="https://bills.parliament.uk/publications/43678/documents/964">proposed amendment</a> in the House of Lords sought to extend the pardon scheme to all offences that “regulated, or [were] used in practice to regulate, sexual activity between persons of the same sex”, which had subsequently been repealed. This amendment was withdrawn after the government committed to return to the issue as the policing bill progressed, but the new announcement <a href="https://www.theguardian.com/world/2022/jan/04/past-convictions-for-homosexual-activity-to-be-wiped-from-records-patel-to-announce">appears similar</a> to last year’s proposals. </p>
<h2>Who is left out</h2>
<p>If the scheme is broadened in this way, including cases such as George’s involving importuning, pardons may become available for many who were <a href="https://www.bbc.co.uk/news/uk-49730231">denied one</a> when the process was first introduced. The new scheme will not, however, cover behaviour that is capable of being prosecuted under current criminal law. This may, for instance, exclude some arrested in <a href="https://journals.sagepub.com/doi/10.1350/jcla.2007.71.6.506">public lavatories</a>, who could be charged with an offence under the <a href="https://www.legislation.gov.uk/ukpga/2003/42/section/71">Sexual Offences Act 2003</a> today.</p>
<p>Careful consideration of the historic context in which many gay and bisexual men were prosecuted, which often included strict policing and prosecution, is needed to ensure that pardons are extended to all who should receive one. </p>
<p>In many cases, the exclusion of convictions covered by current law is an appropriate response to behaviour that would still be prosecuted today. But this may also exclude some prosecuted for more serious offences partly due to disgust and disapproval of sexual diversity. Concerns about such attitudes <a href="https://www.gayinthe80s.com/2012/12/1982-gay-london-police-monitoring-group-galop/">contributed to the formation</a> of the Gay London Police Monitoring Group, which recorded George’s story. These attitudes are <a href="https://theconversation.com/on-sexuality-the-law-still-caters-to-the-norms-of-public-disgust-79705">still present in the law, on issues such as sadomasochistic sex</a>, today.</p>
<p>Harsh prosecutions and tactics like the use of <a href="https://www.theguardian.com/commentisfree/2017/may/23/fifty-years-gay-liberation-uk-barely-four-1967-act">“pretty police”</a> – <a href="https://galop.org.uk/wp-content/uploads/2021/06/galop-annual-report-1985.pdf">plain clothes officers</a> like the one who spoke to George – effectively subjected many men to greater surveillance and scrutiny than they would receive today. As such, the limits to the proposed pardoning scheme will need to be carefully determined. </p>
<h2>A ‘strong, symbolic apology’</h2>
<p>Lord Cashman, who – along with Lord Lexden, Lord Faulkner and Baroness Jones – put forward the proposed amendment last year, <a href="https://hansard.parliament.uk/Lords/2021-11-17/debates/42CB0ACD-EB6B-4CFA-946E-58269AFAA48E/PoliceCrimeSentencingAndCourtsBill#contribution-6E759D8C-B83B-407E-8331-866F578FFC25">said at the time</a>: “A pardon, aside from its legal status, is a strong, symbolic apology to each and every person who has been wronged.”</p>
<p>Besides the impact this symbolic apology may have for those personally affected, it can also send a message about the historic treatment of sexual minorities by branches of the state. A critical eye needs to be placed on modern law, as well as on the legacies of criminalisation. </p>
<p>Evidence suggests that the legacy of criminalisation and policing of homosexual behaviour <a href="https://www.tandfonline.com/doi/10.1080/10439463.2019.1588269">continues to impede trust</a> between the police and LGBTQ+ people today. Given <a href="https://www.theguardian.com/world/2021/dec/03/recorded-homophobic-hate-crimes-soared-in-pandemic-figures-show">recent increases</a> in hate crimes targeting LGBTQ+ people, this should be a cause for concern.</p>
<p>Even with the expansion of the pardon scheme, modern law often fails to embrace sexual diversity. Laws that position “traditional” private heterosexual relationships as the default may, for instance, hinder efforts to address issues such as domestic violence, which some suggest “has been <a href="https://www.taylorfrancis.com/chapters/edit/10.4324/9780429021589-20/legal-equality-enough-catherine-donovan">socially constructed</a> as a heterosexual problem”. </p>
<p>While this development is welcome, it should not be the end of the conversation on the legacy of criminalisation and legal reform regarding LGBTQ+ people in the UK.</p><img src="https://counter.theconversation.com/content/174371/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cameron Giles 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>Expanding the disregarding and pardoning scheme for historic homosexual offences should prompt further reflection on the law.Cameron Giles, Lecturer in Law, London South Bank UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1736832021-12-17T16:52:25Z2021-12-17T16:52:25ZHow claims of ‘consensual rough sex’ hide abuse and coercive control from courts<figure><img src="https://images.theconversation.com/files/438003/original/file-20211216-15-h527d0.jpg?ixlib=rb-1.1.0&rect=55%2C13%2C4483%2C2573&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/closeup-beautiful-eye-1083730832">Mr.Note19 / Shutterstock</a></span></figcaption></figure><p>In December 2018, British man John Broadhurst was sentenced to just three years and eight months in prison for the <a href="https://www.independent.co.uk/news/uk/crime/rough-sex-death-millionaire-john-broadhurst-murder-natalie-connolly-case-sentence-prison-jail-term-a8689366.html">manslaughter of his girlfriend</a> Natalie Connolly. While Connolly sustained 40 injuries, including a lacerated vagina and a fractured skull, Broadhurst claimed Connolly died accidentally as a result of consensual rough sex. Three years later, Sam Pybus received a <a href="https://www.bbc.co.uk/news/uk-england-tees-59263611">similarly short sentence</a> for strangling his partner, Sophie Moss, to death. Like Broadhurst, he said the death was the result of consensual sex.</p>
<p>These are just two examples of defendants using the <a href="https://wecantconsenttothis.uk/">“rough sex defence”</a> in assault or homicide cases to claim the injuries they inflicted were the result of “sex games gone wrong”. <a href="https://www.legislation.gov.uk/ukpga/2021/17/section/71/enacted">The Domestic Abuse Act 2021</a> tried to address this problem by providing that a claim of consensual rough sex is no defence to causing serious physical harm. But, as the Pybus case shows, it does not stop defendants claiming that the serious harm they caused was not intentional. This helps to avoid a murder conviction.</p>
<p>As domestic abuse researchers, we are particularly concerned with how abusers use “rough sex” in intimate relationships, which the Domestic Abuse Act 2021 provisions do not directly address. As <a href="https://www.familylaw.co.uk/news_and_comment/telling-the-wrong-stories-rough-sex-coercive-control-the-criminal-law">our new research</a> shows, perpetrators do not need to cause physical harm in order to use rough sex as a key component of their controlling strategy.</p>
<p>While people in non abusive relationships can and do sometimes consent to physically rough sex, victims of domestic abuse (or at least those who live to tell their stories) describe abusive rough sex as part of strategic patterns of domination known as “coercive control”. <a href="https://www.bbc.co.uk/news/uk-49481998">Research suggests</a> this is the most dangerous form of domestic abuse, and that evidence of control is a more reliable indicator of future homicide than the existence of physical violence.</p>
<p>Through a complex web of physical, sexual and psychological abuse, a perpetrator keeps his victim in a state of perpetual fear, often for her life. Survivors obey their abuser’s demands, because they know what might happen if they do not. Survivors describe a continuous “state of siege”, as the terror of appeasing the abuser becomes the driving force behind every aspect of their daily life.</p>
<p>The unwanted use of even minor physical force in the context of a sexual encounter communicates to the victim that the abuser is capable of hurting or physically overpowering her. It allows a perpetrator to access sex when and how he wants it, cementing his control and “ownership” over the victim. Seemingly “low-level” gestures, such as forced touching or grabbing send the message that the victim is property for the abuser to use as he pleases, alienating her from her own body and sexuality.</p>
<h2>Rough sex and the court</h2>
<p>The vast majority of rough sex in coercive controlling relationships never <a href="https://webarchive.nationalarchives.gov.uk/ukgwa/20110218135832/rds.homeoffice.gov.uk/rds/pdfs05/hors293.pdf">comes to the attention</a> of the criminal justice system. Victims <a href="http://sro.sussex.ac.uk/id/eprint/100718/">rarely report</a> these experiences because they struggle to articulate them in the language of the criminal law. </p>
<p>Even when they do, the criminal law is poorly equipped to respond. Sexual offences such as rape and sexual assault are of limited use in these cases because of <a href="https://journals.sagepub.com/doi/full/10.1177/0022018320976414">the difficulties</a> of proving a lack of consent. This is particularly tricky in cases where a woman may want to have sex with her partner – just not like that. </p>
<p>It is also difficult to charge these abusers with non-sexual assaults. The offence of battery requires proof that the victim did not consent to the use of force. This is difficult to prove when defendants’ stories of consensual rough sex are accepted as plausible. More serious offences of assault occasioning actual bodily harm and inflicting grievous bodily harm are often inapplicable because the victim’s injuries are not severe enough to charge. Yet our research shows abusers do not need to cause serious physical injuries to maintain control over their victims, they only need to show that they could if they wanted to.</p>
<figure class="align-center ">
<img alt="Close up silhouette of a woman looking sad with her hand over her face next to a window" src="https://images.theconversation.com/files/438032/original/file-20211216-21-1rifcbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/438032/original/file-20211216-21-1rifcbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=371&fit=crop&dpr=1 600w, https://images.theconversation.com/files/438032/original/file-20211216-21-1rifcbq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=371&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/438032/original/file-20211216-21-1rifcbq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=371&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/438032/original/file-20211216-21-1rifcbq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=466&fit=crop&dpr=1 754w, https://images.theconversation.com/files/438032/original/file-20211216-21-1rifcbq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=466&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/438032/original/file-20211216-21-1rifcbq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=466&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Coercive controlling relationships can leave victims in a constant state of fear.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/sad-stressed-woman-silhouette-hand-over-1981623323">KieferPix / Shutterstock</a></span>
</figcaption>
</figure>
<p>The cases most likely to come to the courts’ attention are those that result in serious injury or death. Yet even here, it appears the courts are all too willing to accept a story of accidental harm caused through consensual sex.</p>
<p>In any event, criminal offences such as rape, assault and murder usually focus on individual occurrences. This doesn’t reflect victims’ experiences of “rough sex” in coercive controlling relationships as part of an ongoing state of entrapment, fear and control. If we only pay attention to some incidents isolated from this broader context, we miss a crucial part of the story.</p>
<h2>A new story</h2>
<p>Coercive control was criminalised in England and Wales in 2015, in <a href="https://www.legislation.gov.uk/ukpga/2015/9/section/76/enacted">section 76 of the Serious Crime Act</a>. This legislation should have been an opportunity to tell a new story about abusive rough sex.</p>
<p>Drafted properly, a coercive control law would allow the prosecution of rough sex within a controlling relationship for what it is –- an insidious part of a perpetrator’s repertoire as he seeks to control every aspect of his victim’s life. Unfortunately, the offence is poorly drafted and does not include a definition of “controlling or coercive behaviour”.</p>
<p>Our research into the early case law on section 76 shows that a consideration of rough sex as coercive control is completely missing from these cases. Abuse which is simultaneously violent and sexual is still, for the most part, charged under the Sexual Offences Act 2003. This means it is treated as an individual incident rather than part of a broader pattern of abuse. In many cases, it is not charged at all, dismissed as harmless or accidental. </p>
<p>The law needs to make space for a new story: one that recognises rough sex in abusive relationships as an insidious and profoundly harmful form of coercive control.</p><img src="https://counter.theconversation.com/content/173683/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cassandra Wiener has previously received funding from the ESRC for her PHD research which this research draws upon, to an extent. Cassandra is co-founder and Trustee at Treebeard Trust.</span></em></p><p class="fine-print"><em><span>Tanya Palmer 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>Violent or ‘rough’ sex is often part of a pattern of coercive control.Cassandra Wiener, Senior Lecturer in Law, City, University of LondonTanya Palmer, Lecturer in Law, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1723272021-11-24T13:07:39Z2021-11-24T13:07:39ZDrivers and hand-held mobile phones: extending the ban won’t solve the problem – here’s why<figure><img src="https://images.theconversation.com/files/433456/original/file-20211123-15-14hsu90.jpg?ixlib=rb-1.1.0&rect=8%2C8%2C5742%2C3819&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/beautiful-woman-using-mobile-phone-while-689940928">wavebreakmedia/Shutterstock</a></span></figcaption></figure><p>The laws around mobile phone use while driving are to be tightened under new <a href="https://www.gov.uk/government/news/any-use-of-hand-held-mobile-phone-while-driving-to-become-illegal">UK government plans</a> to make any use of a hand-held phone illegal. From 2022, mobile phone law will be extended to cover taking photos or videos, scrolling through playlists or playing games while driving or stationary, say, at a traffic light. Use of a mobile phone ‘hands-free’, however, will still be allowed – even though research shows it is <a href="https://theconversation.com/car-firms-are-still-pushing-hands-free-phone-tech-despite-how-dangerous-it-is-75419">equally distracting</a>.</p>
<p>Currently, UK drivers using a hand-held mobile phone can only be prosecuted if it can be proven that they were using it for an “<a href="https://www.gov.uk/government/consultations/expanding-the-offence-of-using-a-hand-held-mobile-phone-while-driving-to-include-non-connected-mobile-application-actions/outcome/using-a-mobile-phone-while-driving-consultation-outcome">interactive communicative function</a>” such as calling or texting. The change in the law closes this loophole, and makes it easier for distracted drivers to be prosecuted, fined £200, and given six points on their licence.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1461840602845356039"}"></div></p>
<p>According to <a href="https://www.gov.uk/government/consultations/expanding-the-offence-of-using-a-hand-held-mobile-phone-while-driving-to-include-non-connected-mobile-application-actions/outcome/using-a-mobile-phone-while-driving-consultation-outcome">the UK government</a>, 81% of people who responded to its consultation supported the move. This aligns with findings from roadside breakdown group RAC, whose <a href="https://www.rac.co.uk/drive/features/rac-report-on-motoring-2021/">annual report</a> on motoring regularly shows that mobile phone use by other drivers is a top concern for motorists.</p>
<p>But <a href="https://www.brake.org.uk/files/downloads/Reports/Direct-Line-Safe-Driving/In-vehicle-distraction-Direct-Line-Safe-Driving-Report-2019.pdf">data also shows</a> that many drivers who claim to support the law nevertheless continue to use their phones while behind the wheel. <a href="https://www.rac.co.uk/drive/features/rac-report-on-motoring-2021/">One survey</a> found that more than a quarter of drivers admitted to hand-held mobile phone use, at least occasionally. </p>
<p>So why do drivers who support the law, and acknowledge the dangers of distracted driving, still use their phones? The answer partly lies in driver attitudes and biases. </p>
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Read more:
<a href="https://theconversation.com/car-firms-are-still-pushing-hands-free-phone-tech-despite-how-dangerous-it-is-75419">Car firms are still pushing hands-free phone tech – despite how dangerous it is</a>
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<h2>What the evidence tells us</h2>
<p>Research <a href="https://psycnet.apa.org/record/2007-15150-012">consistently shows</a> that most drivers consider themselves to be above average at driving. Statistically speaking, of course, this is highly unlikely. But this “self-enhancement bias” gives drivers a rationale for believing <em>their</em> mobile phone use is safe, while condemning others for doing the same thing.</p>
<p>Phone-using drivers <a href="https://sites.tufts.edu/appliedcognition/files/2015/10/Why-drivers-use-cell-phones-and-support-legislation-to-restrict-this-practice.pdf">justify their behaviour</a> by claiming they are able <a href="https://pubmed.ncbi.nlm.nih.gov/28189943/">to modify</a> their mobile phone use dependent on the driving situation, such as limiting use on busy roads. They believe they are able to multitask and <a href="https://pubmed.ncbi.nlm.nih.gov/25133486/">mitigate the risk</a> in a way that other drivers cannot. </p>
<p>Drivers with self-enhancement bias also often demonstrate “<a href="https://psycnet.apa.org/record/2007-15150-012">crash risk optimism</a>” – judging themselves to be at lower risk of a crash compared to other drivers.</p>
<p>In a sense, every journey a self-perceived above-average driver successfully completes while using a mobile phone appears to confirm to them that their behaviour is appropriate, and the law is aimed at other drivers. This helps to explain why strong support for a tightened law in this area can coexist with high rates of offending.</p>
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<img alt="A man speaking on the phone while driving." src="https://images.theconversation.com/files/433459/original/file-20211123-13-1bdt0z0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/433459/original/file-20211123-13-1bdt0z0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/433459/original/file-20211123-13-1bdt0z0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/433459/original/file-20211123-13-1bdt0z0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/433459/original/file-20211123-13-1bdt0z0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/433459/original/file-20211123-13-1bdt0z0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/433459/original/file-20211123-13-1bdt0z0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&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">Research tells us many drivers consider themselves to be above average at driving.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/men-cell-phone-use-while-driving-432261919">APM STOCK/Shutterstock</a></span>
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<p>Education campaigns that, for example, feature fatal or serious collisions caused by a distracted driver can actually play into these biases. Such campaigns appear to confirm drivers’ belief that they can handle it, while these other “inferior” drivers could not.</p>
<p>For these over-confident drivers, perhaps the only deterrent would be the threat of enforcement. But in recent years, numbers of dedicated roads-policing officers in the UK <a href="https://www.pacts.org.uk/wp-content/uploads/Roads-Policing-Report-FinalV1-merged-1.pdf">have declined</a>, and the public has, apparently, noticed. In <a href="https://www.theaa.com/about-us/newsroom/driving-offence-enforcement">one survey</a>, 54% of respondents felt they were unlikely to be caught or punished for using a hand-held mobile phone while driving. </p>
<p>This combination of circumstances makes it very difficult to persuade drivers that they shouldn’t use their mobile phones behind the wheel. If a driver thinks they can safely multitask while also avoiding prosecution, what’s stopping them? </p>
<h2>We need to change attitudes</h2>
<p>The tightening of the law may help to encourage some drivers to think about their phone use, but it seems unlikely it will solve the problem of mobile phone use among drivers, and eliminate the harm it causes.</p>
<p>In a broader sense, changes to the law will never be able to keep pace with new technologies. <a href="https://theconversation.com/in-car-technology-are-we-being-sold-a-false-sense-of-security-117473">In-vehicle distractions</a>, such as interactive screens on the dashboard and digital assistants like Alexa, are developing more quickly than the law can keep up with. </p>
<p>If we want to reduce the <a href="https://www.gov.uk/government/statistical-data-sets/reported-road-accidents-vehicles-and-casualties-tables-for-great-britain">number of people killed</a> and seriously injured each year by drivers using their mobile phones, we have to <a href="https://viewer.joomag.com/mobileengaged-compendium-2021/0552788001608635854?short&">persuade drivers</a> not to do it regardless of whether or not they’ll get caught.</p>
<p>We need to challenge the narratives that drivers regularly deploy to justify their behaviour, and address driver biases head-on by providing education, based on psychological evidence, that’s harder for drivers to resist or deny. <a href="https://www.open.edu/openlearn/health-sports-psychology/psychology/are-you-focused-driver">Interactive education</a>, which allows drivers to experience their own distraction, rather than hearing about the failures of others, would be a good place to start. </p>
<p>If we don’t address driver attitudes, we won’t meaningfully address driver distraction, regardless of what the law says.</p>
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<strong>
Read more:
<a href="https://theconversation.com/five-vital-things-you-cant-do-properly-when-youre-on-your-phone-85308">Five vital things you can't do properly when you're on your phone</a>
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<img src="https://counter.theconversation.com/content/172327/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gemma Briggs has received funding from UKROEd. </span></em></p><p class="fine-print"><em><span>Helen Wells has received funding from UKROEd and The Road Safety Trust.</span></em></p>Many drivers still use mobile phones despite the fact that it’s illegal.Gemma Briggs, Senior Lecturer in Psychology, The Open UniversityHelen Wells, Senior Lecturer in Criminology, Keele UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1556842021-02-19T18:00:19Z2021-02-19T18:00:19ZUber drivers ruling: how thousands working in the UK’s gig economy could benefit<p>It’s been a long old journey for former Uber drivers James Farrar and Yasseen Aslam. But after a five year legal battle, the pair arrived at their chosen destination – a <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKSC/2021/5.html&query=(uber)+AND+(v)+AND+(Aslam)">court ruling</a> that drivers for the taxi app firm should be treated as workers rather than independent contractors.</p>
<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/uber-drivers-ruling-how-thousands-working-in-the-uks-gig-economy-could-benefit-155684&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p>It is a distinction which could have significant implications for the earning rights of Uber drivers, at a potentially heavy cost to the firm, which is fighting similar challenges around the world. The ruling could also have a marked effect on the wider gig economy, paving the way for similar claims that could come from online tutors, supply teachers or freelancers. </p>
<p>Future cases are likely to test how far the February 2021 judgment stretches. But the court ruling certainly strengthens the message – from both <a href="https://oxford.universitypressscholarship.com/view/10.1093/oso/9780198797012.001.0001/oso-9780198797012">academia</a> and an official 2017 <a href="https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices">review of modern working practices</a> – to other online platforms in the gig economy that the “misclassification” of their workforce will not be tolerated. For example, the judgment may encourage Deliveroo riders who were <a href="https://www.bbc.co.uk/news/business-41983343">previously unsuccessful</a> at asserting their employment status in court. </p>
<p>The Uber case began when Aslam, Farrar and their fellow claimants successfully took on the firm <a href="https://www.bailii.org/uk/cases/UKET/2016/2201483_2015.pdf">in an employment tribunal</a> in 2016, contending they were workers and therefore entitled to a minimum wage and paid leave.</p>
<p>Uber lost a string of subsequent appeals, culminating in the latest unanimous judgment against them by the UK’s Supreme Court. Giving <a href="https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKSC/2021/5.html&query=(uber)+AND+(v)+AND+(Aslam)">the judgment</a>, Lord Leggatt held that the original employment tribunal was correct for five key reasons:
1. drivers have no say over their fares
2. a standardised written agreement is essentially imposed on drivers
3. Uber exercises a significant amount of control over drivers, including penalising those whose acceptance rate falls below Uber’s expectations
4. Uber dictates the way in which drivers should deliver their service and uses a rating system to manage this
5. communication between passengers and drivers is restricted by Uber (preventing the formation of any future relationship between the driver and the passenger).</p>
<h2>The balance of power</h2>
<p>In short, the Supreme Court believed the drivers were subordinate to Uber, leading to an imbalance of power. Beyond increasing the hours spent working via the platform, drivers had no means of improving their economic position through entrepreneurship – something which could reasonably be expected of an independent contractor.</p>
<p>The judgment was welcomed by Farrar and Aslam, who <a href="https://www.bbc.co.uk/news/business-56123668">told the BBC</a> they were “thrilled and relieved” by the ruling.</p>
<p>Farrar added: “This is a win win win for drivers, passengers and cities. It means Uber now has the correct economic incentives not to oversupply the market with too many vehicles and too many drivers. The upshot of that oversupply has been poverty, pollution and congestion.”</p>
<p>For its part, an <a href="https://www.theguardian.com/technology/2021/feb/19/uber-drivers-workers-uk-supreme-court-rules-rights">Uber spokesman said</a>: “We respect the court’s decision which focused on a small number of drivers who used the Uber app in 2016. Since then we have made some significant changes to our business, guided by drivers every step of the way. These include giving even more control over how they earn and providing new protections like free insurance in case of sickness or injury.</p>
<p>He went on: "We are committed to doing more and will now consult with every active driver across the UK to understand the changes they want to see.”</p>
<p>Whatever changes lie ahead, the landmark judgment is indeed a major step in tackling how vast numbers of working people are treated, with the the potential to change the shape of the gig economy as we know it. </p>
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<img alt="Cyclist with food delivery bag" src="https://images.theconversation.com/files/385324/original/file-20210219-15-trxq20.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/385324/original/file-20210219-15-trxq20.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/385324/original/file-20210219-15-trxq20.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/385324/original/file-20210219-15-trxq20.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/385324/original/file-20210219-15-trxq20.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/385324/original/file-20210219-15-trxq20.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/385324/original/file-20210219-15-trxq20.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">
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<span class="caption">More gig claims ahead?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/man-delivers-pizza-on-bicycle-1013125531">Shutterstock/Nikolay Sirota</a></span>
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<p>But it is worth noting that this judgment has been five years in the making.
What is that compared to the speed at which online platforms like Uber can update its terms and conditions or business models? </p>
<p>It seems as though the law has engaged in a game of cat and mouse in attempting to hold platforms accountable for the way they treat their workforce. It may be that a future legislative response at government level will be required to level the playing field for workers who may otherwise feel bound by the terms of their agreements. </p>
<p>For now, drivers have found a rare moment of certainty in the ever-changing gig economy. But while the drivers have won this battle, the question remains over who will win the war. We might be in for a bumpy ride.</p><img src="https://counter.theconversation.com/content/155684/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessica Gracie receives funding from York Law School, University of York, UK. </span></em></p>The UK’s Supreme Court has ruled that drivers are entitled to workers’ rights.Jessica Gracie, PhD Candidate, York Law School, University of YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1492172020-11-03T15:33:31Z2020-11-03T15:33:31ZThe Johnny Depp libel trial explained<p>On November 2 2020, London’s High Court handed down its hotly anticipated judgment in the high-profile libel case brought by Hollywood actor Johnny Depp over a newspaper article which labelled him a “wife-beater”. In his 585-paragraph ruling the presiding judge, Mr Justice Nicol, dismissed the actor’s claim, holding in essence that the words used in The Sun’s report were legally acceptable.</p>
<p>Depp brought a libel action against The Sun’s publisher (and the newspaper’s executive editor Dan Wootton) in respect of an 2018 article which was first published online under the headline: “GONE POTTY: How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?” The story asserted that Depp was violent towards his ex-wife Amber Heard during their relationship.</p>
<p>Depp’s case was that the article made seriously defamatory allegations which bore the meaning that he was guilty of serious domestic violence against his former wife. The defence <a href="https://inforrm.org/wp-content/uploads/2020/07/Defs-Closing.pdf">maintained</a> that the evidence showed the claimant “was violent towards Ms Heard on multiple occasions” during their relationship, and thus the “wife-beater” claim was justified. They relied on 14 alleged incidents of serious physical assault against Heard which had occurred between 2013 and 2016. However, Depp <a href="https://inforrm.org/wp-content/uploads/2020/07/Day-16-transcript.pdf">consistently denied</a> the “reputation-destroying and career-ending” allegations. </p>
<p>The case was heard over the course of 16 days at London’s Royal Courts of Justice in July 2020. Importantly, neither Depp nor Heard was on trial. And this wasn’t a criminal trial either. In this libel dispute, there were two central issues: the meaning of the articles complained of; and whether the imputation conveyed by them (that the Hollywood actor engaged in unprovoked attacks and violent conduct against his ex-wife) was true in substance and fact. Mr Justice Nicol <a href="https://www.bailii.org/ew/cases/EWHC/QB/2020/2911.pdf">held</a> that the meaning of the words complained of was as contended for by The Sun, namely that Depp was violent to Heard, “causing her to suffer significant injury and on occasion leading to her fearing for her life”. </p>
<p>The judge also expressly acknowledged that Depp proved the necessary elements of his cause of action, that his reputation had been damaged. But, under UK defamation law, if a defendant proves that the published words are “<a href="https://www.legislation.gov.uk/ukpga/2013/26/section/2/enacted">substantially true</a>”, they will have a complete defence: they cannot be successfully sued regardless of the gravity of the allegations. In this case, the judge found that the great majority of alleged incidents of violent physical assault against his ex-wife were proved to be substantially true and dismissed Depp’s claim.</p>
<h2>Was it all worth it?</h2>
<p>Anyone following the case may have reasonably queried whether Depp’s action was ill-advised. Traumatic, intensely intimate and unflattering details of a tumultuous relationship apparently punctuated with blazing rows, a drug and alcohol-fuelled lifestyle and allegations of domestic abuse – strenuously denied – were uncovered in court and made front-page news worldwide. </p>
<p>A parade of witnesses, including A-list actors, strode into London’s High Court to support each side’s versions of events. The court heard details of a costly trail of destroyed property, a severed finger apparently caused by a thrown vodka bottle, profoundly acrimonious texts and <a href="https://bit.ly/34OxslB">“a large pile of faeces”</a> left in a bed.</p>
<p>In addition to the revelation of unattractive details of his personal affairs, Depp had to shoulder a taxing evidential burden as a result of a recent <a href="https://www.bailii.org/uk/cases/UKSC/2019/27.pdf">Supreme Court ruling</a>. The court’s decision in a 2019 defamation case involving two UK newspaper publishers established that the threshold test for “serious harm” in defamation actions has been significantly raised under the 2013 Defamation Act. This has made it more difficult for claimants to succeed in their actions. </p>
<p>Nevertheless, Depp must have considered that the trial was the lesser of two evils compared to unanswered reputational attacks of this magnitude. The conduct alleged was essentially criminal and highly defamatory, especially in the post-#MeToo landscape. The judge’s ruling suggests that the actor correctly assessed the potential reputational damage that the words “wife-beater” would cause to his future. </p>
<p>The heavy focus on Depp’s alleged criminal wrongdoing in The Sun’s article, the extent of its publication, the long-term effect of online libel and the undesired prospect of the actor’s removal from his role in a major film franchise provided a strong impetus for the claimant. </p>
<p>NGN took an equally bold, yet somewhat risky, decision. By relying on the defence of truth, the publisher was required to establish the essential truth of the “sting” of the libel. This means that it was not necessary for NGN to prove that every single aspect of the statement complained of was absolutely true, so long as, taken as a whole, it was accurate. </p>
<p>The standard of proof needed for a truth defence is that used in civil cases generally – the material must be proved true “on the balance of probabilities”. This is a lower bar to achieve than the usual criminal standard of being sure “beyond a reasonable doubt”.</p>
<p>Although one might think that NGN had a relatively easier task to achieve, it should not be forgotten that, when the truth defence is used, the burden rests on the publisher to prove that the allegations were true, rather than on the claimant (in this case, Depp) to show that they were false. This can give rise to further complications, as the success of a claim will regularly turn on the evidence in each individual case.</p>
<p>And when opposing accounts of what happened in private cannot be entirely ruled out, lawyers will struggle to persuade the court which version is more likely to be true. This is apparent in the <a href="https://inforrm.org/wp-content/uploads/2020/07/468417995-Johnny-Depp-Skeleton-Argument.pdf">position taken by Depp’s lawyers</a> that “the claimant was not violent towards Ms Heard; it was she who was violent to him”. </p>
<p>Hence, media organisations may often be reluctant to defend libel actions and may opt for an out-of-court settlement to avoid the risk of high legal costs or damages. This was not the case with NGN, which nevertheless sought to prove true a very serious allegation. It succeeded, despite the challenges associated with this defence.</p>
<h2>The case continues</h2>
<p>The outcome was bitterly unfavourable to Depp, who arguably suffered a crushing defeat, with all that this might entail for his career. Moreover, his case has reportedly led to an estimated £5m in legal costs, and on top of that, he is likely to be made to cover a significant percentage of the winner’s legal costs. </p>
<p>The Sun, meanwhile, emerged victorious from a tense legal battle. The outcome may stiffen the resolve of the English press to report on matters of domestic violence, but it does not necessarily follow that the approach taken by the High Court in Depp’s trial is a uniform one in all cases.</p>
<p>The High Court’s decision doesn’t seem to spell the end of the legal battle. Depp’s representatives said they found the decision “<a href="https://www.bbc.co.uk/news/uk-54779430">as perverse as it is bewildering</a>” and announced their intention to appeal. It will also be interesting to see whether the outcome in London can carry some weight and indirectly affect the libel rematch next May in the US against Heard herself over an opinion piece she wrote for Washington Post.</p><img src="https://counter.theconversation.com/content/149217/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandros Antoniou 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>The ins and outs of a fiercely contested defamation case.Alexandros Antoniou, Lecturer in Media Law, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1340562020-03-20T12:50:02Z2020-03-20T12:50:02ZCoronavirus: the UK government’s new emergency powers explained<p>The UK government has <a href="https://publications.parliament.uk/pa/bills/cbill/58-01/0122/20122.pdf">introduced legislation</a> as part of attempts to manage the coronavirus outbreak, handing the government wide-ranging powers to respond to a variety of emergency situations. </p>
<p>Under the new law, public health officers, police and immigration officers will be able to direct people suspected of being infected to places where they can be screened for the coronavirus disease (COVID-19). If necessary, these officials will have the power to hold suspected patients for screening rather than simply directing them there. </p>
<p>The government can also prohibit or restrict events and gatherings and close premises if public health requires this. The focus of these powers will be the owner or occupier of the premises or anyone involved in holding such an event rather than the individuals attending. Failure to comply will be an offence.</p>
<p>So far, the government has <a href="https://www.gov.uk/government/speeches/pm-statement-on-coronavirus-16-march-2020">advised against</a> public gatherings, but this change means that the authorities can dictate public behaviour and take enforcement action for noncompliance. </p>
<p>Many have asked why the government has not yet banned events or closed bars and restaurants. The simple answer is that before now it has lacked the comprehensive legal power to do so. This is because in a liberal democracy the exercise of state power requires <a href="https://publications.parliament.uk/pa/ld201213/ldselect/ldconst/165/16504.htm">legal authority</a>. Unlike citizens, who can generally do anything that the law does not prohibit, the government can only do what the law allows it to do.</p>
<p>The new legislation provides parliamentary authority for the government to act in ways that might otherwise be considered unlawful or draconian. Like much emergency legislation, it is an attempt to <a href="https://theconversation.com/coronavirus-the-pressures-governments-face-in-balancing-safety-and-liberty-133466">balance liberty and necessity</a>. </p>
<p>The government will also be able to shut ports and airports if border force staff shortages make it impossible to maintain border security.</p>
<h2>Bringing doctors out of retirement</h2>
<p>The legislation contains measures aimed at boosting the health and social care workforce at a time when more are needed to manage the strain the pandemic will put on the NHS. Suitably qualified and experienced volunteers such as former nurses, midwives and paramedics will now be able to temporarily register as regulated healthcare professionals so they can respond to the government’s call for help. There has been <a href="https://www.telegraph.co.uk/news/2020/03/19/nhs-needs-retired-workers-urged-return-coronavirus-battle/">speculation</a> for some time that medical professionals and others might be asked to come out of retirement and these are the measures that make it possible for them to do so. </p>
<p>Other measures are also aimed at easing the burden on frontline public sector workers particularly during times of reduced staffing. For example, only one medical opinion will be required to detain and treat patients needing treatment for a mental health disorder. Usually two medical professionals need to sign off on such a decision. Also, the legislation removes the requirement that coroners must conduct an inquest with a jury where they have reason to suspect the death was caused by COVID-19.</p>
<p>And as <a href="https://www.telegraph.co.uk/news/2020/03/12/people-will-die-coronavirus-warns-prime-minister/">many families will lose loved ones</a> before the crisis is over, the legislation has removed the need for a second death certificate in cremation cases. There are also powers for local authorities to give directions on aspects of the death management process such as requiring crematoriums to increase operating times.</p>
<h2>Is this forever?</h2>
<p>Health Secretary <a href="https://www.gov.uk/government/news/emergency-bill-to-strengthen-coronavirus-covid-19-response-plans">Matt Hancock has said</a> these new powers will only be used when it is “absolutely necessary”. The current emergency suggests a situation of overwhelming necessity to safeguard the population through the curtailment of its liberty.</p>
<p>The legislation covers births, deaths, weddings, funerals, healthcare, elections, justice and even intelligence operations so it does have implications for human rights. In introducing the legislation, Hancock <a href="http://www.legislation.gov.uk/ukpga/1998/42/section/19">stated that its provisions are compatible</a> with the rights protected under the Human Rights Act 1998. The government will publish a separate memorandum explaining its assessment of the compatibility with human rights at a later date.</p>
<p>As for how long these powers will last, the legislation is intended to be limited to the extent necessary to respond to the COVID-19 pandemic. These new powers will expire automatically after two years.</p>
<p>There is provision for the powers to be extended by government for periods of no more than six months at a time but it could also be shortened if the powers are no longer required.</p><img src="https://counter.theconversation.com/content/134056/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicholas Clapham 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>New legislation gives the government power to clamp down on public gatherings – but the changes have a time limit.Nicholas Clapham, Teaching Fellow, School of Law, University of SurreyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1324732020-03-04T12:57:50Z2020-03-04T12:57:50ZThe law on underage sexting needs to change – here’s how<figure><img src="https://images.theconversation.com/files/317398/original/file-20200226-24659-uodpeu.jpg?ixlib=rb-1.1.0&rect=16%2C8%2C5370%2C3585&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/young-woman-using-smart-phone-425696977">Leszek Czerwonka/Shutterstock</a></span></figcaption></figure><p>“<a href="https://www.childline.org.uk/info-advice/bullying-abuse-safety/online-mobile-safety/sexting/">Sexting</a>”, the sharing of sexual images via mobile phones or other electronic devices, is legal if it occurs between consenting adults. But it is illegal if it occurs between children and young people. The law needs to change to provide a more proportional response to underage sexting. </p>
<p>My PhD explores the <a href="https://www.liverpool.ac.uk/law/research/postgraduate-research-students/katrina-miles/">legal regulation of teenage sexting</a> and provides an evidence-based model for change and reform. </p>
<p>In England and Wales, the <a href="http://www.legislation.gov.uk/ukpga/1978/37/section/1">production, sharing</a> and <a href="http://www.legislation.gov.uk/ukpga/1988/33/section/160">possession</a> of any indecent imagery of children aged under 18 is a crime, no matter how it was produced. <a href="http://www.legislation.gov.uk/ukpga/1978/37/section/1">Child protection legislation</a> criminalises the image or video rather than the context in which it was taken. This means that young people who share sexual imagery of themselves, even consensually, are committing a criminal offence. </p>
<p>This is not a problem in itself. There are lots of activities which are legal for those aged over 18 – such as buying alcohol, smoking tobacco, gambling and pornography – which the law stops children taking part in. </p>
<h2>The same offence</h2>
<p>The issue is with how the conduct is criminalised. Currently, a teenager who takes a photograph (or video) of themselves is guilty of “<a href="http://www.legislation.gov.uk/ukpga/1978/37">producing indecent imagery of a child</a>”. This is the same offence as an adult who facilitates and films the sexual abuse of a young child: a crime that the public perceives as <a href="https://www.bbc.co.uk/news/uk-england-47652050">more severe than rape or murder</a>. Both are an offence under Section One of the Protection of Children Act. The Act addresses all methods of production in the same way, and does not distinguish between the different levels of wrongdoing that may have occurred. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/318290/original/file-20200303-66069-15desd6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/318290/original/file-20200303-66069-15desd6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/318290/original/file-20200303-66069-15desd6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/318290/original/file-20200303-66069-15desd6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/318290/original/file-20200303-66069-15desd6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/318290/original/file-20200303-66069-15desd6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/318290/original/file-20200303-66069-15desd6.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">Under the current law, consensual sexting by someone aged under 18 is considered the same offence as the production of child pornography.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/concept-love-relationship-autumn-couple-young-214330582">View Apart/Shutterstock</a></span>
</figcaption>
</figure>
<p><a href="https://www.college.police.uk/News/College-news/Pages/Sexting-briefing-note.aspx">In reality</a>, children and young people are <a href="https://www.college.police.uk/News/College-news/Documents/Police_action_in_response_to_sexting_-_briefing_(003).pdf">unlikely to face prosecution</a> for genuinely consensual imagery offences. However, if the conduct is reported to the police it will still be <a href="https://theconversation.com/sexting-a-modern-crime-that-could-be-on-a-childs-police-record-for-life-91453">recorded as a crime</a> and could be raised in a future Disclosure and Barring Service check. </p>
<h2>Accurate labels</h2>
<p>Therefore, it is crucial that the label given to the offence accurately represents the crime committed. One way to do this would be to consider the “production of indecent imagery” as a two-part offence. First, the manner of creation; second, the material that is produced. </p>
<p>In other areas of the criminal law, offences are separated based on how they are committed. For example, <a href="http://www.legislation.gov.uk/ukpga/1968/60/section/10">burglary committed with a weapon</a> is considered separate from, and more serious than, <a href="http://www.legislation.gov.uk/ukpga/1968/60/section/9">burglary committed without one</a>. The end result is the same – the loss of money and possessions – but the former causes more harm to the victims. Similar recognition must be given to the victims of sexual abuse. This cannot happen while the crime is conflated with teenage sexting and <a href="https://www.cybercrimejournal.com/WestlakeVol12Issue1IJCC2018.pdf">other forms of youth-produced imagery</a>.</p>
<p>Making the crime a two-part offence would allow the law to distinguish between imagery produced by children and imagery taken by adults when considering the manner in which the material was made.</p>
<p>This approach – distinguishing between adults and children – is taken for physical sexual activity. In England and Wales, the age of consent is set at 16, and it is unlawful to have sex with a person below this age. But adult defendants and defendants under 18 are considered under separate sections of the <a href="http://www.legislation.gov.uk/ukpga/2003/42/section/9/2009-11-12">Sexual Offences Act 2003</a>. This acknowledges that young people who have not yet reached adulthood, and are closer in age to the victim, may be less at fault than adult offenders.</p>
<p>All children under 18 (including those under 16) are considered under the same section. The age of the children (both parties) are considered when a decision is being made about prosecution. </p>
<p><a href="http://www.legislation.gov.uk/ukpga/2003/42/section/13/2009-11-12">Section 13</a>, which addresses defendants under 18, still classifies the behaviour as a crime, but it allows for a lesser penalty and a tailored sentencing regime. The guidance included in the Act makes it clear that it will not typically be in the public interest to prosecute genuinely consensual activity between young people. </p>
<p>As a result, it is possible to prosecute abusive and coercive behaviour, while also allowing for a more proportionate response to consensual underage sex. It is possible to imagine how a similar approach could be adopted in relation to indecent imagery.</p>
<h2>A modern problem</h2>
<p>Some <a href="https://pediatrics.aappublications.org/content/143/5/e20183183">critics argue</a> that the consideration of young people producing sexual imagery as a crime at all is an <a href="https://theconversation.com/sexting-a-modern-crime-that-could-be-on-a-childs-police-record-for-life-91453">overreaction to a modern-day problem</a>. But these concerns are primarily based on how the crime is categorised, the impact this may have on a young person’s future, and the possibility that treating it as a crime will stop victims coming forward to report their abuse. Changing the law can address these issues. </p>
<p>The law could provide more clarity by splitting the current indecent imagery offence into “imagery produced by adults” and “imagery produced by children and young people”. This approach would allow parliament to continue to discourage all forms of sexual imagery of children. Equally, however, it could offer a more proportionate response (and label) for the behaviour of young people. </p>
<p>This would bring the law in line with the treatment of physical sexual activity and it would strike a better balance between respecting a child’s rights to sexual autonomy while still protecting them from the <a href="https://theconversation.com/teenage-sexting-is-not-all-the-same-criminalise-abuse-not-sexual-exploration-47055">abuse and exploitation of others</a>.</p><img src="https://counter.theconversation.com/content/132473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katrina Miles 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>The law on indecent imagery of children should distinguish between pictures or videos produced by young people and those taken by adults.Katrina Miles, PhD Candidate, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1237972019-12-20T12:41:54Z2019-12-20T12:41:54ZHow tackling ‘rape myths’ among jurors could help increase convictions at trial<p>A major review into the low rate of successful rape prosecutions has suggested that there is a “<a href="https://www.justiceinspectorates.gov.uk/hmcpsi/hmcpsi-rape-inspection-2019/">larger systemic problem</a>” in how complex cases such as rapes are investigated by the UK police and prosecuted by the Crown Prosecution Service. Despite an increase in the number of reported rapes in recent years, conviction rates are at an all-time low, with the latest figures showing <a href="https://www.theguardian.com/society/2019/sep/12/why-are-rape-prosecutions-at-a-10-year-low-england-wales">a 27% fall in convictions</a> between 2017-18 and 2018-19.</p>
<p>One issue identified as potentially contributing to low conviction rates is preconceptions among jurors. Many people may believe what have been termed “rape myths”: biased expectations and misconceptions around the realities of rape. And belief in these myths could influence jurors’ decisions. </p>
<p>Research has revealed <a href="https://www.tandfonline.com/doi/full/10.1080/13552600701661540">various types of damaging misconceptions</a> that jurors may hold. For example, in a mock trial the “jurors” had erroneous expectations: one believed that rape would result in vaginal tears in 99.9% of cases, while another believed that strangulation of the victim would be common. As these perceptions are drastically different to the <a href="https://www.sciencedirect.com/science/article/pii/S1889186115000244">reality of reported rapes</a>, this demonstrates the danger of such beliefs – jurors may wrongly acquit because the evidence they are shown differs to their biased expectations.</p>
<p>Recent research with real jurors shows they also may be unaware of the realities of rape. <a href="https://www.ucl.ac.uk/laws/people/prof-cheryl-thomas">Cheryl Thomas</a>, professor of judicial studies at UCL, <a href="https://www.judiciary.uk/announcements/valedictory-lecture-by-president-of-the-queens-bench-division-criminal-trials-the-human-experience/">reported</a> that although most jurors interviewed did not believe in the “obvious” myths, such as that all rape allegations will be reported immediately, some were unsure regarding others. </p>
<p>In particular, there was uncertainty as to whether perpetrators are likely to be known to the victim. This is worrying given that it is well-established that most rapes are committed by someone that the victim knows. For example, <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/sexualoffencesinenglandandwales/yearendingmarch2017">UK government figures</a> show that from 2016 to 2017, 45% of rapes or attempted rapes of women were committed by a partner or ex-partner, and 43% were committed by someone otherwise known to the victim. Jurors may have wrong ideas about the prevalence of “stranger rape” that may colour their perception of what a “real” rape is, and acquit on this basis.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/307450/original/file-20191217-58321-1d74vwr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/307450/original/file-20191217-58321-1d74vwr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/307450/original/file-20191217-58321-1d74vwr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/307450/original/file-20191217-58321-1d74vwr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/307450/original/file-20191217-58321-1d74vwr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/307450/original/file-20191217-58321-1d74vwr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/307450/original/file-20191217-58321-1d74vwr.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">Jurors’ views are crucial to a trial’s outcome, so education that ensures incorrect perceptions do not colour their view of the evidence is one method toward a higher rate of convictions.</span>
<span class="attribution"><span class="source">Crazy City Lady/Shutterstock</span></span>
</figcaption>
</figure>
<p>These sorts of misinformed expectations have been shown to have an impact on verdicts. <a href="https://www.sciencedirect.com/science/article/pii/S0047235218300631">Mock-trial research</a> at the University of Huddersfield found that the more deeply a person believes in rape myths, the more likely they are to acquit. Also, the deliberation process did not change people’s views – instead, many “jurors” in the mock trials had decided on a verdict pre-deliberation, which their discussions did not change.</p>
<p>As research increasingly suggests that jurors may find it hard to set rape myths aside, some have argued that jury trials in rape cases are no longer suitable.</p>
<h2>Possible approaches to the problem</h2>
<p>A <a href="https://www.bbc.co.uk/programmes/m0007wwk">recent BBC Radio 4 programme</a>, considered alternatives to current practice that included trials before a judge sitting alone, or screening jurors. There are potential problems with both suggestions.</p>
<p>For example, judges may not necessarily be better at setting aside their assumptions than jurors. There have been instances of judges making worrisome statements during rape cases. One judge reportedly made comments that indicated the <a href="https://www.theguardian.com/society/2017/mar/10/judge-accused-of-victim-blaming-during-sentencing-comments-in-case">complainant was somewhat to blame</a> for her assault. Another’s comments implied that they <a href="https://www.scottishlegal.com/article/criminal-appeal-court-critical-of-inappropriate-and-insulting-questioning-of-rape-complainer">did not believe the complainant’s allegation to be true</a>.</p>
<p>When it comes to screening jurors, careful consideration would have to be given to the measure used to identify to what extent a person believed in rape myths and the point at which such beliefs would disqualify them from sitting as a juror. Another issue is that jurors may not answer a questionnaire truthfully – they may give the answers they believe the court wishes to hear.</p>
<p>Instead of either of these approaches, judges have been given <a href="https://www.judiciary.uk/publications/crown-court-compendium-published/">guidance</a> on how to address the jury where there is a risk of stereotypes and assumptions around rape, to be tailored to the circumstances of the case. For example, in cases in which there is no reported struggle or resistance by the complainant, judges may bring up the difference between consent and submission. This is a step in the right direction, but perhaps an alternative, more standardised approach is needed.</p>
<p>Recent court observations have shown that judges directions to the jury in rape trials are <a href="https://journals.sagepub.com/doi/full/10.1177/1557085116661627">not applied consistently</a>. A standardised approach, such as providing leaflets or videos prior to every case, would ensure that all jurors on rape trials receive information around rape myths. This sort of educational material could underscore which factors are relevant to the jury’s decision and which are not. It could clarify conditions of consent, for example, emphasising which factors should not be considered when determining whether consent was given, such as the complainant’s clothing. </p>
<p>This sort of information is important – not just to guard against the influence of jurors’ beliefs, but also against the influence of defence barristers when their case draws upon those same rape myths. This occurred during a rape trial in Cork in Ireland last year, when a barrister <a href="https://www.independent.co.uk/news/world/europe/teenage-girl-underwear-rape-trial-cork-sex-latest-a8625871.html">showed jurors the complainant’s underwear</a>, suggesting the style demonstrated her consent.</p>
<h2>Creating effective counters to rape myths</h2>
<p>A pre-trial video for jurors addressing rape myths is being <a href="https://www.justice-ni.gov.uk/publications/gillen-review-report-law-and-procedures-serious-sexual-offences-ni">piloted in England</a>, however, these sorts of materials need careful thought before being widely deployed.</p>
<p>It’s essential that the materials are based on comprehensive research to ensure that their content and format are effective in addressing biased views. Research on attitude change and models of cognitive processing must be considered, taking into account the fact that different people absorb information and learn in different ways.</p>
<p>If British courts adopt this approach, it will help jurors understand what is relevant in their decisions, and this could lead to an increase in conviction rates. In turn, this may encourage more victims and survivors of sexual assault to report to the police, and perpetrators may yet be deterred from offending.</p><img src="https://counter.theconversation.com/content/123797/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lara Flynn Hudspith 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>Neither jurors nor judges can be relied upon to put aside their incorrect beliefs about rape. What’s the answer? Lara Flynn Hudspith, PhD Researcher, University of HuddersfieldLicensed as Creative Commons – attribution, no derivatives.