Monthly Archives: March 2017

The Rape Trial and the Limits of Liberal Reform. And Why Legal Scholars need to do Theory Better

By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).

Orestes Pursued by the Furies (1922-25) by John Singer Sargent

In recently published work I engage in a philosophical and psychoanalytic excavation of legal discourse on (and in) the rape trial.[1]  In this post I briefly summarise my key claims arguing, while I do, that legal scholars must diversify the theoretical tools they draw on in confronting issues of social justice.

Much feminist scholarship on rape asserts that the law has reached a best practice plateau and justice for victims is now being held back primarily by the aberrant ‘attitudes’ of criminal justice actors charged with implementing the law. Those attitudes, it is argued, militate against the best intentions of law makers charged with stemming burgeoning attrition rates. Attrition refers to the phenomena – not anomalous in the criminal justice system, but particularly marked in cases of sex crime – whereby alleged instances of sexual violence drop out of the criminal justice system.  This occurs at multiple points, the most notable of which is the first point where a victim makes the decision to report to police.  Continue reading

Panorama: Behind Bars: Prison Undercover

By Dr Michael Naughton, Reader in Sociology and Law (University of Bristol Law School).

The BBC Panorama programme, Behind Bars: Prison Undercover, aired on Monday 13 February 2017. Culled from footage from an undercover reporter in HMP Northumberland, it claimed to “reveal the reality of life behind bars in Britain’s crisis-hit prison system.”

Leaving aside the obvious methodological issues with such a claim, i.e. that such a generalisation cannot be made from a few insights in a single, adult, male, category C, private prison, what we got, instead, was an entirely biased, one-sided view. On this occasion, it was the fears of clearly overworked and overwhelmed prison staff that was the central focus of concern. The narrative depicted was simplistic: prisoners are both out of control and in control of the day to day running of prisons, supported by images of drug taking, drunken and abusive prisoners. A strong case was being made for more prison officers, which is totally justified in the context of overcrowded prisons and savage cuts to prison staff.

A major problem was that this was at the expense of a more balanced programme that took account, also, of the prisoner side of the story – the desolation, monotony and periods of sheer terror of everyday life behind prison bars. This is well documented in the research and it might, also, go some way, at least, to contextualising and/or explaining the images of the relatively small handful of misbehaving prisoners that were selected to persuade viewers to accept the underpinning narrative without question. Continue reading

Rape Investigations and police accountability: the case of the Black Cab Rapist

By Prof Joanne Conaghan, Professor of Law (University of Bristol Law School).

The case of the Black Cab rapist, John Worboys, may well qualify as one of the most egregious failures of modern policing of our times. Alleged to have assaulted over 100 women using his taxi as a lure and a crime site, Worboys terrorised women in the London Metropolitan area for the best part of a decade before eventually being apprehended and imprisoned in 2009 for 19 separate sexual assaults.  This week the Worboys case is once again in the public eye as a claim by two of his victims, DSD and NBV, that the Metropolitan Police violated their human rights by failing adequately to investigate their claims comes before the Supreme Court.

One has to wonder how such serious criminal activity in a public setting could go unchecked for so long. The simple answer is that the Metropolitan Police failed Worboys’ victims utterly and unequivocally, their investigation marred by multiple systemic and operational failings, as elaborated in painstaking detail by Mr Justice Green in a High Court judgment in 2014.  Continue reading

The law governing an arbitration clause

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

A leading commentator has observed that ‘[t]he choice of the law applicable to an international commercial arbitration agreement is a complex subject’ (Born, International Commercial Arbitration (2nd edn, 2014) p 472). This complexity is reflected by the case law illustrating that the courts of different countries adopt different approaches to certain common scenarios. One area of divergence is the case where parties to a contract containing an arbitration clause choose state A as the seat of arbitration, but the law of state B as the law governing the matrix contract: which law governs the arbitration clause – the law of the seat or the law of the country chosen to govern the substantive contract?

Some legal systems, influenced in part by the doctrine separability (according to which a contractual arbitration clause is, conceptually, treated as a contract separate and independent from the matrix contract) and article V.1.a of the New York Convention of 1958, take the view that, in the absence of an express choice by the parties of the law applicable to the arbitration clause, the law of the seat should govern questions of material validity. English law, however, has never taken this view – although, arguably, the Court of Appeal came close to doing so in C v D [2007] EWCA Civ 1282. Continue reading

Righting the Injustices of the Past: The Case of Alice Wheeldon

By Prof Lois Bibbings, Professor of Law, Gender and History (University of Bristol Law School).

Right – left: Alice Wheeldon, Winnie Mason, Hettie Wheeldon and a guard, taken when on remand in 1917. © Alice Wheeldon Campaign.

History matters in the context of criminal justice; it matters that our criminal justice system lives up to standards of justice and upholds due process in respect of the past. The strength of support for this view is, for example, shown in the successful campaign to pardon men executed by British Forces during the First World War (the Shot at Dawn campaign).

Miscarriages of justice cases, such as those of the Birmingham Six and Judith Ward, also illustrate the importance of righting the wrongs of the past when it comes to crime. One hundred years ago today another such injustice occurred and efforts are now being made to right this wrong.

At the Old Bailey on March 10th 1917 Alice Wheeldon, her daughter, Winnie Mason, and her son-in-law, Alf Mason, were convicted of conspiracy to murder the Liberal Prime Minister David Lloyd George along with the leader of the Labour Party Arthur Henderson and other persons unspecified. Alice was sentenced to 10 years of penal servitude, with Alf receiving 7 years and Winnie 5. Their efforts to appeal were rejected and so they were sent to prison. Alice went on hunger strike, was released early due to ill-health but died of influenza in 1919. Alf and Winnie were released unexpectedly at the end of the war. Continue reading

Reflections on the ‘Three Knights Opinion’ and Article 50 TEU

By Miss Rosie Slowe LLM, Research Collaborator (University of Bristol Law School).

On 17 February 2017, Bindmans LLP published an Opinion that it had solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration, not least because of the constitutional significance they pose.

The Opinion was asked to address three questions: whether it was a ‘constitutional requirement’, within the meaning of Article 50(1), that Parliament authorise the final terms of any deal reached with the EU; whether the UK is able to validly notify its intention to withdraw from the EU, pursuant to Article 50(2), subject to such a requirement; and the legal consequences if that requirement is not satisfied. It is submitted, for reasons that will become apparent, that the latter question of consequence is effectively answered by examining the possibility of conditionality being attached to notice under Article 50, and this post accordingly considers the two issues together. Continue reading

The UK’s spousal and family visa regime: some reflections after the Supreme Court judgment in the MM case

By Prof Christopher Bertram, Professor in Social and Political Philosophy (University of Bristol School of Arts) & Co-Director of the Bristol Institute for Migration and Mobility Studies;
Dr Devyani Prabhat, Lecturer in Law (University of Bristol Law School) and Dr Helena Wray, Associate Professor (University of Exeter Law School).

For thousands of British citizens and residents separated from loved ones by the onerous financial requirements in the immigration rules, the headlines after the Supreme Court decision on 22nd February 2017 in the case of MM v SSHD were disappointing.[1]

The case concerned the entry criteria for a non-EEA national to join their British citizen (or long term resident) spouse or partner (“the sponsor”) in the United Kingdom. These include a requirement that the sponsor has an income of at least £18,600 per annum or substantial savings, with additional sums needed for dependent non-citizen children (“the minimum income requirement” or MIR).

As the press reported, the Supreme Court did not find the MIR incompatible with article 8 of the European Convention on Human Rights (the right to respect for private and family life) and therefore unlawful. However, hidden behind the government’s reported “victory” is a more complex legal and political picture which offers hope to at least some of those affected. Continue reading

Argentina’s Restrictive Turn on Migration: Trump’s First Imitator in the Americas?

By Dr Diego Acosta Arcarazo, Senior Lecturer in Law (University of Bristol Law School)  and Ms Leiza Brumat, postdoctoral researcher (CONICET).*

Argentina’s history and national identity are inextricably linked to immigration. Indeed, between 1880 and 1930 the country was the world’s second largest recipient of migrants, behind only the US. The immigration policies of both nations were often aligned during the period. In 1902, for example, Argentina adopted a law facilitating the expulsion of foreigners amid concerns about labour movements and anarchists; in 1903 the US banned the naturalization of anarchists. After the US approved its 1917 Immigration Act, which excluded from entry numerous groups including epileptics, alcoholics, criminals, beggars, and those with a physical disability, Argentina quickly reacted with similar laws in 1919 and 1923, fearful that those denied permission to disembark in US ports would continue their journeys to Buenos Aires.

Of course the days when those refused entry into the US would instead try their luck in Argentina are long gone. Whilst Argentina continues to be the largest recipient of migrants in South America, in the global context it’s no longer a significant destination country. Fewer than 5% of its population are foreign born according to official statistics – almost 90% of them from South America.

Yet one can see similarities between the executive order signed by Donald Trump on 27 January prohibiting entry into the US for certain nationalities, with the alleged objective of protecting the US from terrorism, and the executive decree adopted on the same day in Argentina curbing immigration in the name of the fight against criminality. Discursively, the presentation of other South American nationals as criminals recalls Trump’s infamous haranguing of Mexicans. Is this pure coincidence or rather another example of the influence on Latin America of the US’s ideological stance on migrants and refugees? To answer that question, we need to look at the context for current events. Continue reading