Weekly Notes: legal news from ICLR – 13 May 2016
Posted on 15th May 2016 in Weekly Notes
This week’s scenic tour of legal news and comment includes human rights legislation, the employment law of footwear, protection of intellectual property and a plea for students to slough off their intellectual bubblewrap.
Repealing the Human Rights Act 1998 would, said the House of Lords EU Justice sub-committee in a report published on 9 May, damage the UK’s standing within the Council of Europe and the EU, and its moral authority internationally, and would risk constitutional upheaval with the devolved nations. Restricting the scope of the existing legislation would lead to increased reliance, instead, on the EU Charter of Fundamental Rights, with its stronger enforcement mechanisms, thus frustrating one of the stated aims of repeal. Yet the proposed British Bill of Rights, intended to replace it, would not depart significantly from the existing Human Rights Act. In short, replacing the 1998 Act would be neither necessary nor effective in achieving its stated aims, while incurring the risk of damaging the relationship between the component nations of the United Kingdom and Britain’s relationship with European nations.
Baroness Kennedy of The Shaws, Chairman of the House of Lords EU Justice Sub-Committee, commenting on the report’s conclusions, said:
“The more evidence we heard on this issue the more convinced we became that the Government should think again about its proposals for a British Bill of Rights. The time is now right for it to do so.”
Link to the full report.
IPO vows to dam illegal streaming
The growth of illegal streaming services has been “meteoric”, said Baroness Neville-Rolfe, the Minister for Intellectual Property, in a speech on 11 May, and the Department of Business was determined to “stem the tide of infringing material online”.*
The minister was launching the Department’s new strategy ‘Protecting creativity, supporting innovation: IP enforcement 2020’.
She reminded her audience of the UK’s central role in the development of intellectual property rights, such as patents (first granted in England in 1331), copyright (invented with the Statute of Anne in 1710) and trade marks (first legislated on by the English parliament, in 1266).
“The problem we all face, is working out how we can ensure that these valuable IP rights are usable, and how we can ensure that their value is preserved in the face of relentless infringement on an enormous scale.”
The government was, she said,.
committed to ensuring that the bargain between creator and the IP system is honoured”…
“Our strategy also commits us to look at the entirety of the legal framework, to ensure that whatever type of infringement, and whatever the IP right, creators and innovators are able to access recourse that is effective, and proportionate.”
Part of the strategy includes, incidentally, the pledge to harmonise the maximum criminal penalties for online and offline copyright infringement at 10 years, which we discussed in last week’s roundup (see Weekly Notes – 6 May 2016).
Read the speech here.
*[Quaere: can a tide grow meteorically? To be fair these metaphors were mixed from different sentences in the speech.]
Portico and PwC brought to heel
An employer this week seems to have put their foot in it sending home an employee who turned up for work in the wrong shoes. Nicola Thorp, a London temp engaged as a receptionist, was booted out without pay after turning up at the employer, accountancy giant PwC in smart flat shoes, because the dress code for her work required her to wear a “2in to 4in heel”. The requirement was not apparently part of PwC’s own policies so it seemed baffling as to why they should have put their foot down.
I was expected to do a nine-hour shift on my feet escorting clients to meeting rooms,” Ms Thorp told the BBC. “I said ‘I just won’t be able to do that in heels’.”
The agency, an outsourcing company called Portico, who seem to have been responsible for promising to supply temps in accordance with a particular set of sartorial expectations, said later (ie once it became clear they had stepped into a public relations disaster) that they would review their “appearance guidelines”. The incident happened some months ago, so why has it all kicked up now?
Well, Ms Thorp has started a petition, presumably after being advised that she didn’t have a leg to stand on legally, urging the government to change the law. But several lawyers on Twitter were suggesting there might be existing legal arguments on which she could make a stand, such as sex discrimination, or health and safety.
She said when interviewed by the BBC
I was a bit scared about speaking up about it in case there was a negative backlash,” she said. “But I realised I needed to put a voice to this as it is a much bigger issue.”
Her petition had had more than 10,000 signatures when the story broke, but within 48 hours the Guardian reported that it had stepped past the 100,000 mark, meaning it will have to be debated in Parliament. (At the time of writing it stood at 132,701 signatures)
University: warning over “trigger warnings”
Hearing that law students at Oxford had apparently asked to be protected from distressing material that might crop up in their criminal law studies, barrister Matthew Scott has written a furious piece in the Telegraph warning that it will “threaten academic freedom” and “infantilise our judges”.
The source for the story appeared to something in the Independent, about law lecturers being asked to “bear in mind” issuing trigger warnings to students before lectures containing “distressing” material, following a request passed on by the director of undergraduate studies for law. A student was quoted as saying:
Before the lectures on sexual offences – which included issues such as rape and sexual assault – we were warned that the content could be distressing, and were then given the opportunity to leave if we needed to.’
The Indy cited as a source the Mail Online, But Scott has since engaged in twitter exchanges with students so his research may well be more up to the mark.
Various academics have been wheeled out to say it is all a Bad Thing, which it probably is. Certainly, the idea that students could bunk off lectures on the pretext they might be a bit gruesome seems feeble, and they’re not going to make very robust or effective lawyers when they qualify, if they ever do.
Scott makes the comparison with studying medicine, which would be a bit of a waste of time if you never looked at blood or opened a cadaver. Or worse still, if you fainted at the sight of it. He notes that the warnings are most likely to be demanded before lectures about sexual offences, which obviously can be distressing to talk about. On the other hand, says Scott:
After a few hours struggling with fee simples and resulting trusts, most law students find it a great relief to read about the robbers, murderers and even rapists who populate the racier pages of the Criminal Appeal Reports.
He then cites the infamous case of R v Collins  QB 100 (from the racier pages of the Queen’s Bench reports published by ICLR, though it’s also in Cr App R) which anyone who has been a law student in the last 40 years will recall as the one about the naked man on the windowsill and whether he had entered the property with any part of his anatomy prior to being invited in by the unsuspecting female occupier, or not.
it would be absurd to warn students that they might prefer not to know about such a seminal case
The issue of trigger warnings seems to be entwined to some extent with that of “safe spaces”. As Scott remarks, there is a danger now of modern universities who kowtow to such notions (he mentions, alarmingly, Harvard) producing
a generation of infantilised milquetoasts who believe they have a right to avoid difficult arguments instead of engaging with them.
However else they cope with life, such students will make useless lawyers. Time to slough off the intellectual bubblewrap and tough yourselves up for reality, guys.
Bar school: survey of student satisfaction
A survey by Legal Cheek on student satisfaction with their Bar Professional Training Course (BPTC) provider suggests that their happiness with the course has little to do with their ultimate chances of success at getting into the profession. Those studying at regional schools were more satisfied than those attending schools in London with a higher rate of success in getting pupillage, the first rung on the ladder to professional life as a barrister. The law schools in London struggled in particular with the “value for money” category, not surprisingly, since the fees are higher; but the chance of getting pupillage is much higher too, even accounting for the fact that many overseas students would not be applying in this jurisdiction anyway.
Link to full survey results.
The Sausagebum Pledge: wurst case scenario
Trigger warning: the following items contains material which some readers may find offensive … and others merely ridiculous.
One of the unlooked for consequences of the election of former shadow Lord Chancellor Sadiq Khan as Mayor of London last week was the possibility that the Daily Mail columnist Katie Hopkins might make good on her pledge, via Twitter, to run naked along Regent street with a sausage inserted into her anus.
If Sadiq Khan wins London, I will run naked down Regent Street with a sausage up my bum in protest #LondonMayor2016
— Katie Hopkins (@KTHopkins) May 4, 2016
This was widely reported, or at any rate featured in Huffington Post. Reminded of her pledge, after Khan’s victory, Ms Hopkins explained the delay in fulfilment of her self-imposed obligation on the need to source a halal sausage, so as not to offend Khan’s many muslim voters.
Suspecting that she might be suffering from cold feet, I very gallantly sought a way out for this feisty controversialist, by issuing a general invitation on Twitter for any criminal law commentators to identify what possible offences Ms Hopkins might commit, if she carried out the promised streak. If she were given the right legal advice, it might justify her pulling out. After all, one could hardly be blamed for not doing something you rashly promised to do if you later learned that to do it might get you into trouble with the law.
— Paul Magrath (@Maggotlaw) May 7, 2016
My tweet was answered when the blogger Secret Barrister (@BarristerSecret) came to the rescue, with a timely and comprehensive analysis of possible offences to which the sausage-enhanced streak might give rise. At a time when the CPS has to remind the police that it actually isn’t possible to prosecute dead people so please don’t waste time trying to frame an indictment, it seems more than ever necessary to have bloggers like the Secret Barrister on hand to provide the population with intelligent and timely legal advice on criminal law.
He identified four possible offences:
- Outraging public decency
- Exposure, contrary to section 66 of the Sexual Offences Act 2003.
- Disorderly behaviour, under section 5 of the Public Order Act 1986.
- Public nuisance.
Other commentators on twitter pointed out that there might be food safety violations involved in the sausagey bit of the conduct. Many people posted images on twitter of sausages which they deemed suitable for use in the event, which you can find using the hashtag #sausagebum
New Bar chair
Andrew Walker QC, a commercial and chancery silk, has been named as Vice Chairman-Elect of the Bar Council, the representative body for barristers in England and Wales. Andrew Langdon QC, the current Vice Chairman, has been confirmed as the next Chairman of the Bar for 2017. He will take over from the current chairman Chantal-Aimée Doerries QC on 1 January 2017.
Details – Bar Council
MLDI is hiring a Legal Director
The Media Legal Defence Initiative (MLDI) provides legal support to journalists under threat. Now they are hiring a Legal Director to lead their legal strategies and advance media freedoms globally. The Legal Director leads a small and dedicated team while working closely with a large network of pro-bono lawyers and law firms. They must have excellent strategic and creative legal thinking, a global and international outlook, and passion.
This an exciting opportunity, for the right lawyer, to undertake responsibility for a critical role in a unique and dynamic international charity at the forefront of global freedom of expression litigation.
Further details can be found here.
(Via Inforrm’s blog.)
Consultation: youth sentencing
The Sentencing Council has launched a consultation on its proposed guideline on sentencing youths. Its proposals are in two parts: the overall approach courts should take when sentencing young offenders aged between 10 and 17; and draft sentencing guidelines covering robbery and sexual offences committed by young offenders. It aims to provide judges and magistrates with up-to-date guidance that will help ensure consistency in sentencing in England and Wales.
The consultation began on 12 May 2016 and will end on 3 August 2016.
LGBT + Bar
Dr Stephen Vaughan of Birmingham Law School and Marc Mason of Westminster Law School are running a survey – the first of its kind – to find out about the career experiences of LGBT+ members of the Bar, to ask those members about the extent to which (if at all) their sexuality has impacted on their practice and to explore the role and function of LGBT+ support networks for barristers.
If you’d like to take part, follow this link
Law (and injustice) around the world
Queensland to remove “gay panic” defence to murder
The Homosexual Advance Defence (HAD) has been on the statute books of a number of Australian states for decades, but Queensland is now moving to repeal it. The defence is based on the idea that a person may enter a moment of temporary insanity and violently attack, even kill, a person as a result of the “provocation” of a homosexual advance.
According to the Brisbane Times, the mandatory penalty for murder is a major reason for the ingenuity of the development of what looks from afar like a rather bogus defence. Attorney General D’Ath said
Queensland’s criminal code must not be seen to condone violence against the gay community, or indeed any community.”
In the last week, South Australia has been urged to follow Queensland’s example in removing the statutory defence, according to the Guardian.
Imprisoned journalist’s prize acceptance speech
On World Press Freedom Day (3 May) imprisoned Azerbaijani journalist and PEN main case, Khadija Ismayilova, was awarded the 2016 UNESCO/Guillermo Cano World Press Freedom Prize.
Azerbaijan was urged to free her on that day, but has not done so. Her mother accepted the award on her behalf, and delivered her acceptance speech, which English PEN has now published. You can read it here.
It concludes with the following rallying cry to all those around the world who seek to uncover corruption and reveal the abuses of power:
- Stand up for the truth, and dare to ask questions and be critically minded;
- Accept no excuse for political prisoners. Societies cannot develop without scrutiny and public criticism. Dissent is not grounds for jail;
- Fight corruption and demand integrity and the rule of law from your governments and allies. Corruption is evil and profoundly degenerative. Don’t ignore it, or abet it;
- Expect no security without trust, and no meaningful strategic alliance with partners that hold international standards and commitments in contempt;
- Don’t be afraid. Your sacrifice is worth it.
- I accept tonight’s award with humility, in view of the work and sacrifice that has preceded me and the work that remains to be done.
- Fight with me for freedom, and for truth.
Supreme Court upholds validity of defamation law
India’s highest court said this week that the current criminal defamation law is constitutionally valid and dismissed a batch of petitions that said the law has a “chilling effect” on free speech. According to The Times of India:
Sections 499 and 500 of the Indian Penal Code make defamation a criminal offence. A person’s right to freedom of speech has to be balanced with the other person’s right to reputation and therefore the two Sections are necessary…
The petitions had, the newspaper said, been filed by a “motley crew” of politicians, some of whom had been charged with criminal defamation under ss 499 and 500 after making political speeches. The court held:
“Freedom of Right to speech and expression does not confer any right to a person to trample the reputation of others…Defaming a person amounts to offence against society and the government is entitled to lodge a case against a person under criminal defamation law…
Italian court upholds takedown asks without URLs
The essential IPKat website reported this week on a decision of il Tribunale Civile di Roma (Rome Court of First Instance) in a dispute concerning the liability of Break Media, a company operating video sharing platform break.com, for unauthorised streaming of content broadcast by the claimant, RTI – Reti Televisive Italiane (owned by broadcasting company Mediaset). Break contended that generic cease-and-desist letters asking for the removal of “all TV programs” (without also indicating the relevant URLs) would not be appropriate under art 14 of the Ecommerce Directive as transposed into Italian law. The court concluded, however, that Break was not a simple, passive, hosting provider but rather an active content provider, so it could not not enjoy the safe harbour protection granted by art 14 of the Ecommerce Directive.
Moreover, the court said RTI did not have any obligation to indicate the URLs where the allegedly infringing works could be found. Although Break did not have a general and preventative monitoring obligation, once a content owner such as RTI has notified it of alleged infringement, it came under a general obligation to root out and remove such material wherever found on its site.
That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions or news values of ICLR as an organisation.
Comments welcome on Twitter @TheICLR.