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TCLR Secondary School Essay Competition Winner: Should States Be Held Liable for Their Contribution to Global Warming?

TCLR Secondary School Essay Competition Winner: Should States Be Held Liable for Their Contribution to Global Warming?

Jane Prendergast, St. Mary's Secondary School

The last year has been a landmark period for the climate movement. Motivated by young activists, from Greta Thunberg to Ireland’s Beth Doherty and Saoirse (Saoi) O’Connor, millions of people have taken to the streets to march in protest of climate inaction by their governments around the world. Major businesses have also taken steps to “greenify” their companies. Fast food giant McDonald’s has eliminated certain plastic items, and multiple fashion chains, such as H&M and Zara, have bowed to demand and began to produce environmentally sustainable ranges. Ethical veganism has recently been declared a philosophical belief in England after a legal case (Casamitjana v. League Against Cruel Sports), meaning that its followers are now protected from discrimination under the Equality Act 2010.

However, recklessness has still been shown by various governments. In Ireland, the fiasco that is the Shannon Liquefied Natural Gas Terminal still drags on, and the Norwegian government has announced plans to increase fossil fuel exploration over the next number of years.

In this essay I will outline why yes, states should be held liable for their contribution to the climate crisis, and suggest a method of doing so.

Firstly, why should states be held liable for their contribution to global warming? Many argue that most damage is done to the climate by major corporations or industries in general, e.g. the oil industry, and this is quite true. The Carbon Majors Report of 2010 pinpointed how only 100 fossil fuel companies are responsible for 70% of the world’s greenhouse gas emissions since 1988.

Therefore, some believe that states should not be held accountable for something that is not directly their fault. This is technically true, except climate damage by industries or corporations is legalised and justified by the State in the majority of cases. Also, thanks to the existence of the law, official bodies alone have the power to prevent major damage to the climate via corporations or industry.

States give licenses to fossil fuel companies, for example, for oil and gas exploitation. These are extractive industries that have immensely negative effects on local flora and fauna. These industries also produce massive amounts of waste which is usually only suitable for landfill, and they are directly responsible for an abundance of CO2 and methane in the atmosphere. 

Thus, states are still responsible for negative climate action, and they should be held liable for the simple reason that State decisions are made by elected officials. They are chosen to represent the country on a grander scale and to make sweeping positive changes for their country. Therefore, when they continue to legalise reckless exploitation that will do nigh on irreversible harm to our planet, they must be held liable.

The State is held up by the will of the people, and when the State fails to act in the best interest of the people, the State must be held liable.

Furthermore, states should be held liable for climate damage by the pressure of their citizens. Only a colossal human effort can halt the climate crisis in its tracks, and the widespread demands for change over recent months show that there is a sincere desire for positive action to take place. Democratically elected politicians should never forget that they owe their position to the will of the majority, and defying climate action would be a clear contradiction of what is desired globally at present by the younger generation - their future voters.

On a practical level, the current method of punishing countries for their contribution to global warming is ineffective. Permitting countries to purchase “allowances” that will let them exceed their allowed emissions level means that there are no serious implications for failing to reach targets. For example, the Republic of Ireland is not on track to achieve their 2030 or even 2050 emission targets. The State will be allowed to pay allowances of around €150m, entitling them to miss their targets for what is really a minimal punishment. Consequently, countries face minimal repercussions if they fail to reach their targets, thus providing them with a minimum of motivation. 

Therefore, I believe that states should be held accountable for their crimes to the environment by an overseeing body. Ideally, I believe that a coalition of environmental scientists and lawyers would best oversee an action like his. The United Nations could commission eminent scholars to;

  1. Review current Climate Action Plans and modify them if necessary, in light of recent events.
  2. Create a panel of independent overseers who would monitor each country’s commitment to the amended Climate Action Plan, deciding if they pass or fail the desired action levels every year.
  3. If a country is found to fail on any element of the Plan, they will receive aggressive fines on a yearly basis (the size of which will be proportionate to the economy of the country and its contribution to climate damage). If the damage is severe enough, I would also recommend some form of political exclusion on an international scale, such as restricted access to EU grants if the country is in the EU.

I believe that holding states liable for their contribution to the climate crisis in this manner would result in a genuine desire to take action on state levels. The will of the Irish people has, for example, caused referendums to be held and even eliminated government taxes. It would be wise for states to yield to the calls for climate action that are echoing around the world, and make a lasting impact. 

Having an official body to oversee the action, headed by those who have studied the problem in great detail, would also promote action. The threat of severe punishments for the states that do not take adequate action would be a further motivator for action. 

As Thunberg says, “Our house is on fire - we want you to listen to the science”.

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The Legal and State Repression of the 1970s European Punk Movement

The Legal and State Repression of the 1970s European Punk Movement

Lily Murphy

Patrick Devlin argued in 1965 that the law should serve as a tool with which to enforce the norms of a society’s culture.[1]In 1970s Europe, no subculture presented itself as a challenge to these norms with such boisterous pride as punks. As a movement, punk can be difficult to define, largely due to the pluralism of identities and political aspirations associated with it. Since its emergence in the 1970s, punks have adopted a wide variation of symbols, clothing, and ideologies to express their oppositional and anti-conformist views. Kevin Dunn states that punk is best understood as a set of social practices, which in tandem function as resources for empowerment against establishment status quo.[2] This rebellious attitude, linchpin of the subculture, is why, as punk gained popularity throughout the 1980s, it came under the scrutiny of European authorities. Official reactions to punk were ambivalent. In the United Kingdom, punk’s perceived violent degeneracy kickstarted a media-fuelled, moralising panic. Meanwhile in Eastern Europe, Soviet authority consensus was that punk was a product (and proof) of capitalism’s failings. This essay examines how state laws were used or developed to suppress the European punk movement of the 1970s and ‘80s.

In November of 1976, many in the UK received their first introduction to punk with the release of the Sex Pistols’ “Anarchy in the UK”. The snarling lyrics were “a call to arms”[3] to those who felt disenfranchised amid the economic downturn of the 1970s, and the proudly declared affinity for anarchism irreparably sowed in the minds of listeners punk’s violent nature. The subsequent controversy and popular outrage surrounding the release of the iconoclastic “God Save the Queen” during the celebration of Queen Elizabeth II’s Silver Jubilee, was enough, in 1977, to bring the topic of punk to the attention of parliament. Here, an official consensus was solidified among the top echelons of government, on both sides of the political spectrum: punk was neither music nor culture, but a deliberate provocation of violence.[4] In spite of Parliament’s disapproval of the culture, the Home Office was hesitant to introduce new legislation to regulate ‘music and dancing’ for fear of inciting ‘political controversy’.[5] Subsequently, no official legislation was newly introduced to suppress punk in the UK, it was instead left to the discretion of local councils to use powers granted under the Public Health Act of 1890 to regulate places of music and dancing.[6] This permitted local authorities to ban punk bands from playing in their towns over concerns regarding ‘social disorder’.[7]

When comparing legal perspectives between Eastern and Western Europe, a key difference to note is how great a threat punk was perceived to be by authority. The fact that there was no mass, sweeping suppression of punk in the UK was largely due to the belief that, though crass, violent, and degenerate, punk was not a political threat.[8] Concerns over punk in the UK were moral and aesthetic.[9] Of course, this varies substantially from the perception of punk which was held by Soviet authorities behind the Iron Curtain. From the first moment that punk music began to make its way into the Eastern bloc, authorities tried to understand, appropriate, and mainly to censor it.

Following WWII, popular culture in the Soviet Union was hyper-politicised, done to facilitate the recovery of cultural life. Soviet policy and law oversaw culture. As rock and roll eventually made its way across the Wall in the 1960s, the Central Committee of the East German Communist Party established new laws for music and band licensing. To work as a professional, musicians would now have to study music and audition in order to receive a license permitting them to play in public.[10] Strict categories of approved music were upheld: ‘serious’ music, which was thought to uplift culture, and ‘recreational’ music, which facilitated entertainment and relaxation. In the eyes of the Soviet states, punk fit into neither category.[11] Furthermore, in certain Soviet countries, such as Poland, punk emerged seemingly in lockstep with the rise of labour unions in the 1980s.[12] The atmosphere of crisis and dissent was sufficient in the eyes of communist government to declare martial law in 1981. Under this regime, punk, along with many other aspects of cultural expression, were strictly monitored and censored. At the Jarocin rock festival, an event seen by authorities as a ‘safe’ outlet for restless youth, performing bands were expected to submit their song lyrics for inspection.[13] If their content was deemed overtly anti-establishment, they would be removed, and the bands themselves could be suppressed following a 1984 security report for the Division of Culture advising the “prevention and elimination” of punk.[14] Such was the case with the band Brygada Kryzys (Crisis Brigade), who saw their shows routinely raided by police, and who would eventually be banned and forbidden to leave the country.[15] Anti-punk policy was even more stringent in areas such as Ukraine, where the punk movement was so heavily suppressed it was forced entirely underground,[16] and in the German Democratic Republic (GDR), where authorities were troubled by the punk’s Western influences. During punk’s naissance in East Germany, Stasi forces would arrest or detain young punks for minor infractions, from loitering to ‘asoziales Verhalten’. This was the crime of antisocial behaviour, understood as failure to be productive to the regime.[17] Stasi authorities sought to keep punks out of public view; any punks they encountered in public could be subject to interrogation, and there was a ban put in place in bars, restaurants, and youth clubs preventing their entry.[18]

Punk, from its inception, presented itself as contrary to the status quo. Its passionate anti-establishmentarianism provided tools for self-empowerment, as well as space for expressions of political resistance. While its boastful anti-conformity won it many followers and adherents among European youths, European authorities were more sceptical, even threatened. Law was one apparatus used to suppress the movement, particularly within the Eastern bloc. Despite establishment attempts to quash the movement, punk remains forty years on an important facet of Europe’s cultural narrative.

[1] Patrick Devlin, The Enforcement Of Morals (1st edn, Oxford University Press 1965); Robert Post, 'Law And Cultural Conflict' (2003) 120 UC Berkeley Public Law Research Paper.

[2] Kevin C. Dunn, Global Punk: Resistance And Rebellion In Everyday Life (Bloomsbury Academic 2016).

[3] 'The Wisdom Of Malcolm Mclaren' (NME.COM, 2010) <https://www.nme.com/photos/the-wisdom-of-malcolm-mclaren-1423776#17>.

[4] Raymond A. Patton, Punk Crisis: The Global Punk Rock Revolution (Oxford University Press 2018).

[5] John Street, Matthew Worley and David Wilkinson, '‘Does It Threaten The Status Quo?’ Elite Responses To British Punk, 1976–1978' (2018) 37 Popular Music.

[6] Raymond A. Patton, Punk Crisis: The Global Punk Rock Revolution (Oxford University Press 2018).

[7] John Street, Matthew Worley and David Wilkinson, ‘Does It Threaten The Status Quo?’ (2018)

[8] Ibid.

[9] Patton, Punk Crisis (2018)

[10] Tim Mohr, Burning Down The Haus: Punk Rock, Revolution And The Fall Of The Berlin Wall (Dialogue Books 2019).

[11] Patton, Punk Crisis (2018)

[12] Balázs Apor, Péter Apor and Sándor Horváth, The Handbook Of COURAGE: Cultural Opposition and Its Heritage in Eastern Europe (Courage Registry 2018).

[13] Jacek Skolimowski, 'Anarchy In The E.U: The History Of Punk In Poland' (Europavox, 2017) <https://www.europavox.com/news/anarchy-in-the-e-u-the-history-of-punk-in-poland/> accessed 1 March 2020.

[14] Patton, Punk Crisis (2018) 157

[15] Dunn, Global Punk (2016)

[16] Apor, Apor and Horváth, The Handbook Of COURAGE (2018)

[17] Mohr, Burning Down The Haus (2019)

[18] 'Punk Persecution: How East Germany Cracked Down on Alternative Lifestyles - In Pictures' (the Guardian, 2019) <https://www.theguardian.com/world/gallery/2019/nov/05/punk-persecution-east-germany-stasi-secret-police-in-pictures>

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Public Access in Ireland: A Challenge to the Bar?

Public Access in Ireland: A Challenge to the Bar?

Cormac Donnelly

‘The Bar has developed as a referral profession’[1]

Introduction

The evolution of the Common-law system saw the creation of two distinct professions for lawyers; solicitors, employed to interact directly with clients and manage the requisite documents of the court, and barristers, referred by solicitors to cases in order to present arguments in court and offer specific legal expertise in cases.  Traditionally, barristers were required to act only on the instructions of a solicitor and could not accept private employment from individual members of the public.  This has created an inter-reliant profession in the practice of law.  In modern times, the distinction between the two occupations has devolved significantly.  Solicitors now enjoy a right of audience in all Irish courts, allowing them to assume the role of barristers in the court system.[2] Solicitors are now in a position to compete in court and in business with barristers.  Should barristers in turn be permitted to work directly for clients in the court system in order to compensate for the modern changes in the legal profession? If so, in what way, and to what extent does this jeopardise their role as the ‘referral profession’?

Historical development of  a ‘ Split Profession’

The origins of the split legal profession and restrictions upon barristers lie in the common-law legal system of medieval England.  Out of informal roles fulfilled by plaintiffs and their associates arose two distinct categories of lawyer; ‘Pleaders’, the predecessor of barristers, employed to present the case of a plaintiff and argue points of law in court, and ‘Attorneys’, from which arose the solicitor; employed to represent the client in court and perform the complex clerical work associated with pursuing a case in court.[3]  By the eighteenth century these roles had largely evolved into their modern counterparts.[4]  This distinction was maintained in Ireland until the Courts Act of 1971 granted practising solicitors rights of audience in all Irish courts.[5] Similar privileges would not be granted in England and Wales until 1990.[6] Initial use of this right was limited in the courts, accentuated by the barrister-centred nature of the courts system: until 1995, solicitors could not be considered for appointments to the judiciary in Ireland.[7]  However as the court system developed, solicitors increasingly appeared both before and within the courts. The number of practising solicitors in Ireland today is far higher than the number of barristers: approximately 2,300 barristers[8] are now left to compete with the 11,618 practising solicitors recorded in 2019.[9]  Since 1888, English barristers had been forbidden to receive instructions from clients directly and instead had to act on the instructions of solicitors.[10]  This has left members of the bar caught between their role as a ‘referral profession’ and the evolving legal field in which they operate.

Modern Problems Posed by a Split Profession

The problem posed by the ‘split profession’ model to a modern litigant is straightforward: to pay for costs of court and the services of one or more legal professionals is prohibitively expensive.  This is highlighted in the comments of  Chief Justice Clarke in SPV OSUS v HSBC Institutional Trust Services: ‘I remain very concerned that there are cases where persons or entities have suffered from wrongdoing but where those persons or entities are unable to vindicate their rights due to the cost of going to court’.[11]  In England and Wales similar criticisms have been levied against the current system, notably in the ‘Access to Justice’ report by Lord Woolf wherein it is acknowledged that ‘litigation is so expensive that the majority of the public cannot afford it unless they receive financial assistance.’[12] This prohibitive cost of justice is only increased in a system wherein two separate class of legal professionals are expected to be employed by a litigant.  The duplication of costs for potential litigants by maintaining this traditional divide and mandatory use of barristers as representatives has thus proven untenable in the modern justice system which increasingly involves litigants of average means, resulting in the aforementioned reforms to the courts system and provision of rights of access to solicitors.

As much as this approach has sought to address inequality of access within the courts and streamline the legal system, it leaves members of the Bar in a perilous position: as solicitors are equal in access to barristers, and the justice system de facto mandates the retention of a solicitor for the majority of individual cases in order to navigate the complexities of court application and the legal process, the ‘referral role’ of the barrister is now more than ever placed into sharp relief in this jurisdiction.  The modern barrister is, by virtue of the expanded remit of solicitors, no longer a necessary actor in the pursuit of justice, and represents an expensive addition to a case which may or may not prove useful in deciding its outcome.  The advantages of enlisting the services of a barrister, in particular the objectivity with which they may view a case owing to their separation from a given client, are lost if their roles as advocates are incorporated into the sundry services supplied by a solicitor.  In essence,  the dualistic nature of this aspect of the legal profession has bound barristers to their detriment to a position of strict referral, preventing them from pursuing cases independently, whilst no such burdens are placed upon solicitors, who need not act within the strict parameters of this traditional model.

Direct Access

The Westminster parliament extended full rights of audience to solicitors in 1990.[13]  This led to a broad amalgamation of the two professions in the early 21st century: according to the Clementi report, it was not uncommon to find solicitors addressing in court while many barristers carried out the clerical duties formerly expected of solicitors.[14]  In order to address this, the Public Access Scheme was introduced in England and Wales in 2004.[15]   Under the terms of this scheme, barristers were permitted to accept instruction directly from clients to represent cases in court or simply provide legal advice with specific caveats; court proceedings could not be drafted nor submitted by the barrister, barristers could not manage client’s cases nor handle client money, could not submit documents to court and were not permitted to instruct witnesses on the client’s behalf.[16]  This scheme addresses the issue of high fees for those litigants to whom it applies: if a barrister’s counsel and ability to act in court is required by the litigant, it is unnecessary to pay both a barrister and solicitor provided the litigant is willing to undertake the management of a case themselves.  This Public Access scheme did not destabilise the legal field upon its introduction, as in a 2008 poll of 11,981 barristers only 66 performed public access work.[17]  However the low number of participating barristers would suggest that this scheme does not have the requisite impact upon the Bar as a whole to realign it from its current referral status and attempt to resolve the above issues of partial amalgamation highlighted in the Clementi report.

The tight restrictions placed upon the role of the barrister in such cases seem to incentivise the use of this scheme not for the lay-litigant but for larger bodies which may retain the use of legal professionals or be sufficiently familiar with the legal process that the retention of a solicitor is unnecessary in their case.  Thus the Public Access scheme does not seem to address the problems of the wider public, from which little experience or competence in the navigation of the courts system should be expected.  Nor does it aid the majority of barristers in pursuing cases beyond the scope of their traditional ‘referral’ remit.  This ‘Public Access’ thereby confounds the convenience of private sector interests with a provision of service to the broader public and a novel route to employment for barristers.  Such a scheme in this jurisdiction would require an overhaul of its requirements with respect to the duties of the litigant in order to fulfil its eponymous role and allow the public to access the talents of barristers, and vice versa.

A similar scheme does exist in Ireland to permit a more circumscribed form of direct access to barristers in the form of the ‘Direct Professional Access’ scheme.[18]  This system allows certain organisations to apply to the Bar council of Ireland in order to be permitted to contact barristers directly for legal advice.  The extent of this scheme ends here, however; barristers may not represent clients nor assist them in contentious manners within the courts. The self-stated aim of the scheme is to ‘provide cost-effective and speedy professional advice’ and ‘helping to avoid litigation in the long term’.[19]  This form of barristerial relationship is further narrowed in scope by the strict set of criteria which organisations are expected to meet in order to be considered for acceptance to this system.  Thus the Irish public access equivalent is beset with an amplified set of the issues associated with its English counterpart; namely, that it is not truly public access, nor broadly applicable to the majority of cases within the courts.

It is reasonable to expect some heightened level of increased competition between solicitors and barristers due to this scheme, and a further break from the traditional  litigation system, however the origins of any such conflict lie in the lack of distinction between the two guilds, a result of modern legislation granting greater advocacy privileges to solicitors.  It cannot be said that the Public Access scheme would serve to overhaul the nature of barristerial work in Ireland if the results of such a scheme in England and Wales are a reliable forecast.  Instead more comprehensive and radical change to the litigation system would be necessary in order to implement such a system in this jurisdiction with the aim of removing the mandatory referral process for barristers whilst retaining the privileges of yesteryear hitherto granted to solicitors.  Neither scheme, in Ireland nor England, gives any clear method on which to base this overhaul, as the neutered forms of ‘public access’ and ‘direct professional access’

Professional Fusion

What alternatives exist then, in implementing such a radical overhaul of the legal system and addressing the issues of the current professional division?  In many common law jurisdictions, notably the United States and Canada, the traditional division between barrister and solicitor is absent, and legal representatives known as ‘attorneys-at-law’ perform both clerical work and advocacy.  Such a fusion of professions is complemented by many aspects of the American legal system; attorney’s fees are as a rule paid by those for whom the attorney is operating, whereas solicitors and barristers are paid for by the defeated party.[20]  This unification of the legal profession allow attorneys full oversight in cases and provide litigants a closer connection to their advocates in court, as they are directly hired and not referred by another professional.  It has the potential to reduce costs as the litigant is paying a single lawyer in order to both manage and plea their cases before the courts, and streamlines the process of litigation by reducing the number of actors upon which a litigant must rely upon.

The concept of a fused profession is not a novel idea in Irish legal theory.  Calls for such a fusion of professions had been made and rebutted by the Incorporated Law Society of Ireland as early as 1884 when it was posited that it would be “to the advantage of the public and of the profession that the professions of barrister and solicitor should be amalgamated, so that all members of the legal profession should have the same rights and privileges.”[21]  The prevailing opinion at the time was that whilst it may be of economic value to the public to amalgamate the professions, such a fusion would bring a lower standard of litigation before the courts as the fused professional would be expected to perform twofold work in managing and presenting cases, leading to a decline in quality of legal work.  In short, “though cheap law may be a good thing, bad law is worse.”[22]

Further calls for such a fusion have been made in recent years in England and Wales, leading to a revived discussion of the respective merits of fusion and division.  Such discussions are framed more easily in the modern era of quasi-amalgamation of the professions, with solicitors and barristers adopting the traditional roles and skillsets of their analogues.  The distinction between the two could today be seen to be “outdated and irrelevant.”[23]  Might developments in the devolution of the divide between solicitors and barristers simply serve to increase the need for fusion and the abandonment of the bisected model of the legal profession?

Conclusion

Ireland has had a history of embracing change in common law, often more eagerly than in the UK. The right of audience was extended to solicitors a full 21 years ahead of the 1990 act in England and Wales and the Irish Supreme Court was established upon the adoption of the constitution, whereas the English supreme court only formed in 2009.[24] The Irish court system is, by virtue of its republican nature, not as heavily bound by common law and feudal tradition as the English legal system, and therefore it is logical to assume a more rapid rate of change in Ireland.  It is disappointing then to see little attempt to address the above issues with the split profession model in Ireland.  The lack of a broadly applicable scheme of public access and a diffuse distinction between barrister and solicitor directly impact public access to justice through their effect on the costs of court.  The high costs of a court case involving barristers could be mitigated by allowing public access akin to the UK: limiting the role of the barrister to an advisory and representative role to avoid the subsumption of the solicitor in the legal process, while incentivising the use of solicitors to avoid the labour associated with managing complex cases and court submissions.  Should such a scheme prove ineffective or limited in its application, the legislature, alongside the governing institutions of the respective legal professions, must examine whether the continuation of the present division is tenable, necessary, or sustainable moving forward In elevating the role of solicitor and allowing their advocacy in court, the legislature created an imbalance in the courts and the wider legal world, which they now bear the responsibility of redressing.

[1] John Flood & Avis Whyte, ‘Straight there, no detours: Direct access to barristers’ (2009) 16 IJLP 131.

[2] Courts Act 1971, s 17.

[3] W.W. Boulton, ‘The Legal Profession in England: It’s Organization, History and Problems’ (1957) 43 ABAJ 507.

[4] ibid 508-509.

[5] Courts Act 1971, s 17.

[6] Courts and Legal Services Act 1990 (UK)

[7] Courts and Court Officers Act 1995 s 16(7)(a)

[8]The Bar of Ireland, ‘About Us’ (Bar of Ireland Website)  <https://www.lawlibrary.ie/About-Us.aspx> accessed 10 October 2019.

[9] Michael Quinlan, ‘Annual Report 2018/2019’ (Law Society of Ireland Website) <https://annualreport.lawsociety.ie/> accessed 1 March 2020.

[10] Flood & Whyte (n1) 133.

[11] [2018] IESC 44, [2018] 7 JIC 3106.

[12] Lord Woolf, ‘Access to Justice: Final Report’ (HMSO 1996) 2(7).

[13] Courts and Legal Services Act 1990.

[14] Sir David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales (UK Ministry of Justice, 2004) <https://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/report/index.htm> accessed 3 March 2020.

[15] Bar Standards Board, ‘The Public Access Scheme Guidance for Lay Clients’ (2010) < https://www.barcouncil.org.uk/media/119600/public_access_guidance_for_lay_clients_-_mar_2010_-_as_at_25_oct_2011__1_.pdf> Accessed 10 October 2019.

[16] ibid, 3.

[17] Flood & Whyte (n1) 137.

[18] The Bar of Ireland, ‘Direct Professional Access’ (Legal Services) <https://www.lawlibrary.ie/Legal-Services/Direct-Professional-Access.aspx> Accessed 3 March 2020.

[19] The Bar Review, ‘Direct Professional Access’ (2006) 11(3), 74.

[20] Harry Cohen, ‘The Divided Legal Profession in England and Wales – Can Barristers and Solicitors Ever be Fused?’ (1987) 12 J Legal Prof 7.

[21] William Lawson, ‘The Fusion of the Two Branches of the Legal Profession’ (1891-92) 9(72) JSSIS 632.

[22] ibid 636.

[23] Quentin Bargate, ‘Time for a Fused Legal Profession in England’ (Bargate-Murray, 28 April 2014) <https://bargatemurray.com/time-fused-legal-profession-england/>  Accessed 5 March 2020.

[24] Constitutional Reform Act 2005, s 23.

 

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Criminalisation & Consent: Sadomasochism in R v Brown

Criminalisation & Consent: Sadomasochism in R v Brown

Hugh Gallagher, Junior Editorial Board

 

Introduction

Consensual sadomasochism(SM) constitutes criminal assault in the United Kingdom.[1] This comes from R v Brown,[2] a House of Lords case in which a group of men were convicted for their involvement in consensual sadomasochistic sexual acts. The key issue facing the Court was whether consent was a valid defence to assault in these circumstances. The Court answered in the negative. Within the judgement Lord Templeman stated this question can only be answered through consideration of policy and public interest”.[3] The aforementioned judgement has been called “autonomy-constricting moralism”[4] while justified as an act to protect society by criminal sanctions against a cult of violence which potentially fostered proselytisation of young men”.[5] This critique will focus on key aspects of; the potential miscategorisation of the sadomasochistic acts therein as ‘violent’ as opposed to ‘sexual’, the consensual element at play, the dissenting judgements’ arguments on the acts’ illegality under existing laws on violence, and the level of harm issue in the ratio decedendi. With those in mind this critique will aim to highlight the potential legal weaknesses of this House of Lords decision.

 The Facts, Judgement, and Ratio Decedendi of R v Brown [1993] UKHL 19

In this case, a group of men (appellants) willingly participated in the commission of sadomasochism against each other, including genital torture, for the sexual pleasure it evoked.[6] Passive partners consented to the acts committed and suffered no permanent injury.[7] The activities occured in private; albeit recorded solely for the delectation of the group.[8] The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. The initial trial judge held that the consent of the victim afforded no defence to the charges, the appellants then pleaded guilty and were sentenced to terms of imprisonment.[9] The appellants appealed against their convictions, contending that a person could not be guilty of assault of that nature in respect of consensual acts conducted in private. The Court of Appeal dismissed their appeals.[10] The appellants appealed to the House of Lords who held, with Lord Mustill and Slynn dissenting, that consensual sadomasochistic encounters which occasion actual bodily harm to a victim is an assault. They held this in the interests of public policy. It thus followed that the appeals would be dismissed.[11] The law following Brown seems to be that consensual assault causing ‘harm’ above the level of assault (such as in sadomasochism) is prima facie unlawful unless such behaviour falls within one of the exceptional categories grafted by the common law, which would subsequently legalise the conduct in question.[12]

Sadomasochism: Sex or violence?

In Brown the sadomasochistic acts were misguidedly characterised as ‘seriously violent’ and not ‘sexual’ thereby making them incapable of being ‘ratified’ by the concept of consent.[13] Hence the judgement assumed: ‘that sex and violence are distinct and easily separable’ and that ‘consent to one is not necessarily consent to the other’.[14] So, if the law insists upon mutual exclusivity, ‘is Brown about sexual practices between consenting adults in private, or is it about deviant, legally unprotected ‘violent’ sexual practices’?[15] To support the former statement, it must be established that SM is legitimate sexual expression albeit involving violence, if so, then consent should and does play a role determining the criminalisation of any resulting harm. In Brown the ‘violent’ categorisation was founded on the infliction of pain within the acts. Yet what if pain is a subjective experience intrinsically linked with pleasure within the human nervous system? Hence, pain in a sadomasochistic context may not constitute ‘pain’ but sexual pleasure. Recent studies shed light on this phenomenon.  In one study, researchers used fMRI to visualise the brains of women as they stimulated themselves to climax, found that more than 30 areas of the brain were active, including those involved in pain.[16] Another found cancer survivors, who had spinal nerves severed to relieve chronic pain, lost the ability to have orgasms.[17] If their pain returned, so did the orgasms. Then a study into paracetamol affecting emotions[18] found the painkilling drug relieved emotional pain, but blunted feelings of pleasure. The drug levelled-off highs as well as lows – an indicator that pain and sexual pleasure operate on shared biological pathways. For human beings, then, it appears that pain and pleasure are intertwined.[19] Nafsika Athanassoulis communicated how this relates to Brown quite eloquently with the words “sadomasochism is sex expressed through violence”.[20] Hence the characterisation of Brown as ‘violent’ is debunked and it is now asserted that sadomasochism is better characterised as ‘sexual’.

Consent in Brown

If accepted that Brown sadomasochism is sexual then it is subject to the general rules of sexual consent and examined alongside the exceptional category of HIV transmission. If consent means ‘factual expressive consent’ [21], this was achieved in Brown. The conditions of freedom, knowledge, capacity, and motivation that are deemed necessary to ‘transmute X’s factual (expressive) consent into legal consent’,[22] were fulfilled so the participant’s consent was not ‘legally defective’ due to coercion, deception or incompetence.[23] Hence in Brown sadomasochism was sexually consensual. Robin Mackenzie criticised that only isolated acts of apparently sudden violence were exhibited on video to the judges, because ‘were the actions placed in the context of on-going negotiations and gradually increased stimulation (as seen in other parts of the video), a more empathetic understanding of such practices as [sexually consensual] might be, and indeed should be fostered’.[24] However there is the element of harm occurring within Brown but a common law exceptional category exists which allows for informed consent to the risk of serious harm for sexual ends.

This is R v Dica.[25] Dica concerned the transmission of HIV, which the law defines as grievous bodily harm (GBH) - a significantly more serious level of consensual harm than Brown allows for. Dica stated that parties can consent to the risk of transmission, which can be construed to mean that one can consent to the risk of serious harm for the sake of sexual gratification. Brown, by contrast, states that parties cannot consent to the risk of actual bodily harm (ABH) and ‘wounding’ for the sake of sexual gratification.[26] Cowan observes that Dica allows for consensual harm within a sexual context, which justifies its derogation from Brown on the assumption the acts therein were ‘violent’. However this distinction from Brown is highly questionable if it is ‘sexual’ as our previous critique asserted. Furthermore the ‘harm’ in Brown came nowhere near the level of harm which was permissible in Dica, as HIV infection is tantamount to permanent debilitating illness and ultimately, premature death[27] whereas in Brown there was no lasting injury. The Dica ratio itself states there is a realm of private sexual relations in which the criminal law should not interfere,[28] such logic which is clearly applicable to Brown. Therefore there is little evidence to justify this exclusion of Brown from the Dica exception. If sadomasochism, in the absence of permanent injury, constitutes the infliction of violence, it is illogical that HIV infection resulting from consensual risk-taking does not.[29]

Dica emphasises the severity of HIV infection to distinguish it from the ‘ordinary’ risks of unprotected sexual intercourse, such as unwanted pregnancy or common STIs. One can implicitly consent to these ‘lesser’ risks without an exceptional category. It is asserted that while Dica is right to distinguish the severity of HIV from the relative triviality of ‘ordinary’ sexual risks, it is misguided in its attempts to contrast SM with the ‘ordinary risks’, by equating it with HIV infection.[30] This is questionable as Dica can seem to implicitly propose that one, if fully informed, ‘can expressly consent to the risk of HIV infection but not SM, because the risk of HIV is still one of those risks that (‘ordinary’) heterosexual intercourse incurs’[31] which can be construed to evidence the court’s normative approach to sexually deviant homosexual practices. It is problematic if the law perceives the heterosexual transmission of a fatal disease more positively than impermanent/superficial injury caused by homosexual sadomasochism.

Inclusion of sadomasochistic behaviour as an offence under assault

Henceforth this critique shall proceed assuming that the courts are not in a position to accept sadomasochism as a legitimate means of sexual expression. It will focus on the legal content of the judgements in R v Brown, with an emphasis on the rationale of those dissenting. As previously outlined, the decision in Brown was made with public policy at its core, to protect society through criminal sanctions from a ‘cult of violence’ which could convert young men to it.[32] Yet, Lord Mustill outlines in his dissenting judgement, ‘corruption of youth is already catered for by the existing legislation’ ‘if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrong-doing’.[33] Therein lies two important statements that reference other aspects of this judgement. That the public policy concern was addressed within pre-existing legislation, hence the Brown ratio is undermined and that there was not sufficient ground for declaring the Brown activities to be criminal under the Offences against the Person Act 1861.[34] The later matter is debatable with contentions that the majority focused on the wrong legal idea,[35] they fixated on establishing the sadomasochistic acts were criminal and did not adequately consider ‘Were they criminal under the Act of 1861?’. Lord Mustill stated the statute was “intended to penalise conduct of quite a different nature” and ponders “should in this new situation be interpreted so as to make it criminal”.[36] Furthermore, Lord Slynn in his dissenting judgement in response to the DPP’s submission that it was a matter of policy; should the courts “adopt a paternalistic attitude as to what is bad or good for subjects, in particular as to deliberate injury”? He established it was an area of policy where social and moral factors were extremely important and changeable, hence “it [was] a matter of policy for the legislature to decide.”[37] He further asserted it was not for the courts “to introduce into existing statutory crimes, concepts which did not properly fit there”. In his eyes it was the duty of Parliament to amend the Act of 1861 or the Sexual Offences Act 1967 for the Brown activities to be criminal under them.[38] Hence it becomes apparent that the House of Lords, in their revulsion and eagerness to sanction the behaviour in Brown, may have extended the Offences Against the Persons Act 1861 to cover actions distinctly outside of its legal remit.

Level of harm

Aside from its inclusion under assault, there is another legal issue in Brown: the level of harm. In Brown the Lords heard from Mr. Purnell Q.C. that the appellants were liable under general law because the harm was to a degree where it went from non-criminal consensual violence to criminal.[39] Hence the court sought to establish a border between the two, thus the level of harm appears in Brown’s ratio.[40] Lord Slynn raised his concerns on this matter stating if a line is drawn “to be workable, it cannot be allowed to fluctuate within particular charges”.[41] This has been evoked in recent works which ask ‘are the courts to start evaluating the validity of consent on the basis of some undeclared judicial barometer of the severity of harm?’[42] Perhaps the qualifying level of harm is arguably determined by judicial creativity on a case by case basis?[43] If we look to preexisting examples of applying the level of harm principle the negative answer becomes arguably more concrete. The Brown practices have been equated with those in R v Emmett,[44] where a man tied a plastic bag over the head of his partner and on another occasion poured lighter fluid over her and set it alight in the pursuit of sexual gratification, and was therefore deemed to cause harm of too high a level to be legal. But this is debatably wrong, because the risks posed and harm caused in the latter were arguably much higher than those in Brown, including loss of consciousness and serious burns.[45] The European Court of Human Rights subsequently distinguished R v Wilson,[46] which concerned the branding of a woman by her husband for sexual gratification but was deemed legally exempt under assault due to the exceptional category of body modification (specifically tattooing), because the injuries in that case were considered ‘not at all comparable in seriousness’[47] with those in Brown or Emmett. Yet in Wilson the injuries themselves amounted to ABH namely the level of harm incurred in Brown. Hence if we are to look at how the precedent of Brown has been interpreted it solidifies the argument that Brown is an inherently poor judgement with respect to the factors considered in its determination.

Conclusion

R v Brown and the subsequent criminalisation of the sadomasochistic behaviour therein under the Offences against the Person Act 1861 coupled with the legal precedents it created are inherently flawed. As established within this critique the Court’s characterisation of Brown as ‘violent’ is questionable given the compelling evidence and arguments that is is better understood in a ‘sexual’ context. Had it been viewed within this context the consensual nature of the sadomasochistic behaviour could have absolved the appellants of criminal culpability. Furthermore, if accepted as ‘sexual’, then Brown’s potential inclusion under Dica becomes notably less objectionable and thus the question of allowing one to consent to GBH but not ABH sheds light on the Court’s normative approach to Brown. Additionally, the dissenting judgements in Brown present insight into the Court’s potential manipulation or misconstruing of the Act of 1861 in their efforts to criminalise the aforementioned actions and express a notable concern over the usage of a ‘level of harm’ principle in a legal setting. As evidenced by the subsequent case examples provided they were undoubtedly and assuredly correct to voice such worries. Hence the legal weaknesses in Brown are apparent and it is my assertion, with these in mind, that the criminalising of sado-masochistic activities in this case was plainly wrong.

[1]Halsburys Laws(5thedn, 2010) vol 26, para 125.

[2][1993] UKHL 19.

[3] R v Brown[1993] UKHL 19.

[4]Paul Roberts, ‘The Philosophical Foundations of Consent in the Criminal Law’ [1997] 17 Oxford Journal of Legal Studies389, [413].

[5]R v Brown[1993] UKHL 19.

[6]R v Brown[1993] 2 All ER 75.

[7]Ibid.

[8]Ibid.

[9]Ibid.

[10]Ibid.

[11]Ibid.

[12]Halsburys Laws(5thedn, 2010) vol 26, para 125.

[13]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).

[14]  Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).

[15]Nicholas Bamforth, ‘Sadomasochism and Consent’ [1994] Criminal Law Review661, [663]

[16]Komisaruk, Barry & Wise, Nan & Frangos, Eleni & Liu, Wen-Ching & Allen, Kachina & Brody, Stuart,  Women's Clitoris, Vagina, and Cervix Mapped on the Sensory Cortex: fMRI Evidence (2011) The Journal of Sexual Medicine 8 <https://www.researchgate.net/publication/51529414_Women's_Clitoris_Vagina_and_Cervix_Mapped_on_the_Sensory_Cortex_fMRI_Evidence> accessed 17 October 2019.

[17]Aerts, Enzlin, Verhaeghe, Poppe, Vergote, Amant, Long-term sexual functioning in women after surgical treatment of cervical cancer stages IA to IB: a prospective controlled study (2014) International Journal of Gynecological Cancer <https://www.ncbi.nlm.nih.gov/pubmed/25180463> accessed 17 October 2019.

[18]Durso, Luttrel, Way, Over-the-Counter Relief From Pains and Pleasures Alike: Acetaminophen Blunts Evaluation Sensitivity to Both Negative and Positive StimuliPsychological Science26(6), 750–758. <https://doi.org/10.1177/0956797615570366> accessed 17 October 2019.

[19]Zaria Gorvet, Why pain feels good, (BBC Future,1 October 2015) <https://www.bbc.com/future/article/20151001-why-pain-feels-good> accessed 17 October 2019

[20]Nafsika Athanassoulis, ‘The role of consent in sado-masochistic practices’ (2002) 8 Res Publica141.

[21]Kimberly Kessler Ferzan, “Clarifying Consent: Peter Westen's The Logic of Consent”, [2006] 2 Law and Philosophy25.

[22]Peter Westen, The Logic of Consent: the diversity and deceptiveness of consent as a defense to criminal conduct (Ashgate 2004).

[23]Kelly Egan, ‘Morality-based Legislation is Alive and Well: Why the law permits consent to body modification but no sadomasochistic sex’, [2007] 70 Albany Law Review1615, [1616].

[24]Rosemary Hunter, Claire McGlynn and Erika Rackley (eds) Feminist Judgments: From Theory to Practice(Hart Publishing 2010).

[25][2004] EWCA Crim 1103.

[26]Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).

[27]Roger Pebody, ‘Life expectancy for people living with HIV’ (Aidsmap, May 2018) <http://www.aidsmap.com/about-hiv/life-expectancy-people-living-hiv> accessed 17 October 2019

[28]R v Dica  [2004] EWCA Crim 1103.

[29]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law

[30]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law

[31]Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).

[32]R v Brown[1993] UKHL 19.

[33]Ibid.

[34]Ibid.

[35]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).

[36]R v Brown[1993] UKHL 19.

[37]Ibid.

[38]Ibid.

[39]Ibid.

[40]Ibid.

[41]Ibid.

[42]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).

[43]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law

[44]Times, October 15, 1999.

[45]Ibid.

[46]R v Wilson[1996] Crim LR 573.

[47]Laskey, Jaggard and Brown v United Kingdom (1997) 24 E.H.R.R. 39.

 

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First Year Tip Series: Introduction to Case Notes

First Year Tip Series: Introduction to Case Notes

Ben Conlon, Senior Editorial Board (Online Editor)

A case note is something that every law student is asked to write at some point in their studies and, without some direction, can be a daunting task. This article aims to briefly explain what a case note is, what the benefits of writing a case note are, and how to actually write a case note. Further information is also included at the end of the piece about the Gernot Biehler Case Note competition.

What is a Case Note?

A case note is a summary and analysis of a single case, as opposed to an article, which examines an area of law. A case note should outline the facts of the case, as well as its ratio decedendi, and also provide a critical analysis of the decision. The analysis should concern the correctness of the decision, with reference to case law, accepted logic and academic opinion. A good case note usually contains analysis of the effect that the decision may have on future cases, especially if the decision is a departure from a previously settled point of law.

What to Keep in Mind when Selecting a Case

If you have the option of selecting the case you would like to write on, below are some factors you should keep in mind:

  • Try to pick an area of significant concern or a topical issue
  • Does the case seem to ignore reason/common sense?
  • Is there a recent case where the court departs from precedent or a position accepted in other jurisdictions?
  • Does the decision which may have significant extra-legal repercussions.
  • Will this decision prompt interesting results in future cases?
  • Was this the first case in a newly-legislated area?
  • Has there already been substantial academic commentary written on this case? Often it may be better, for originality’s sake to write on a new case, or one that has not been subject to as much discussion.

How to Write a Case Note

(A) Research

As with any piece of legal writing, the first step in writing a case note is conducting the necessary research. Read the case multiple times and note down the facts and the ratio decedendi. The case should be read in the context of the area of law as a whole; understanding how the case relates to existing principles and case law is key in forming a critique and analysis. Further consideration should be given to whether the law is still relevant, and whether it is still considered to be a strong precedent. While a case note tends not to rely on academic sources as much as a legal essay, it is still worth exploring academic commentary around the case, from which a greater perspective can be gleaned.

(B) Writing

There is no rigid structure for how a case note should be written, but this article will attempt to lay out a basic structure and guide for writing the case note itself. It is worth noting that many brilliant case notes do not follow this structure, and can often depart from it dramatically, so there is no pressure to follow this structure.

As is the case in most legal writing, it is generally recommended that the piece is broken down into separate headings. This can make the case note easier to follow, and direct the reader to the important elements of the piece. When writing a case note for a legal journal or a university assignment, regard should be had for the word-count when deciding on how specific the headings are; if there is a lower word-count, it might make sense to merge some of the headings together.

(i) The Introduction

The introduction of a case note should introduce the case and indicate the court in which it was decided. It should lay out the structure of the case note, explain the significance of the case (i.e. the change in the law brought about by the case), and briefly outline your opinion of the case.

(ii) The Facts of the Case

The second section of the case note should briefly outline the facts of the case. It is important to keep in mind that a case note is not simply a summary of a case; the facts simply set out the background for your analysis. Due to this, this section of the case note should not be too long, and the aim should be to illustrate the facts that were relevant in the court’s reasoning, rather than the entirety of the factual circumstances. This is generally a good place to mention the decisions of the lower courts in relation to the case at hand.

(iii) The Decision and the Ratio Decidendi

This section of the case note should deal with the reasoning that lead to the court’s decision, and specific emphasis should be placed on the key decisions and the ratio decedendi. Here, detail should be provided on the case law that the court either relied on or moved away from, and a short explanation of the reasoning behind such moves should be given. The way that the decision was handled should also be mentioned (e.g. was the judgment suspended to allow the government to amend the issue?), as this is often indicative of the attitude of the courts in relation to the issue at hand.

(iv) Critical Analysis/Further Discussion

The primary aim of a case note is to critically analyse a particular decision and the effect it has on the law. “Critically analyse” can be a confusing phrase, so considering some of the following questions may be a useful starting point:

  • Is the logic of the judgment sound? Do you agree with it? Why or why not?
  • Does the judgment differ or depart from previous decisions? Does it follow some aspects but not others?
  • How does the judgment compare with international precedent?
  • Does the judgment reflect political/economic/cultural tensions?
  • Does the judgment fail to acknowledge any legal or extralegal repercussions it may have?
  • Has the judgment failed to address any important questions?
  • Do you agree with the decision? Why?

It is worth noting that “critically analyse” does not mean you have to disagree with a judgment; the best critical analysis praises some aspects of a judgment, and attacks others. Commentary on previous related decisions may help to inform your opinion on a case, and help with the critical analysis. It is recommended that some thought is given to how the case may have a lasting impact, and it should be acknowledged whether or not the case might be open to appeal. However, as in any legal piece, it is advisable that a certain degree of critical analysis is woven throughout the piece, rather than isolated to one section.

(v) Conclusion

The conclusion should very briefly summarise the decision, the flaws and achievements that have been discussed throughout the case note, and your overall opinion. A general rule for any piece of writing is that new substantive arguments that have not been discussed in the body of the piece should not be introduced in the conclusion. Finally, some concluding remarks could be offered about the effect of the case on that area of law, and how future cases may be influenced by it.

Some Final Tips

As is the case with any piece of legal writing, there should be a cohesive thread of argument that runs through the case note, but this may be difficult to  pick up on  after several hours of writing by yourself.  As a result, the argument you have crafted might make sense to you, but not to a new reader. One of the best ways to deal with this is to ask someone else to read over the piece and offer some of their own comments.

While it is always advised to read through previous academic pieces written on your chosen area, make sure when citing academics that you are also evaluating their arguments to the reader. Do you agree with what the academic has said? How does their argument bolster yours? Or, how would you refute what the academic has argued? Analysing the academic commentary you have utilised is key to presenting critical analysis in your piece.

In the same vein, when presenting your arguments, it is recommended that you recognise ‘the other side.’ This is particularly important in controversial areas of law, like socio-economic rights, where presenting a one-sided argument will reflect poorly on the author’s critical analysis.

As a final note, the TCLR Online has published many case notes, and reading over these can help you to form a picture of what a case note looks like, and what a case note should contain. Many longer case notes have also been published in the print version of the TCLR, which can be found on the legal article database Heinonline.

The Gernot Biehler Case Note Competition

The Trinity College Law Review runs an annual case note competition in honour of Dr. Gernot Biehler. Dr. Biehler was a distinguished fellow of Trinity College and a lecturer in international law and conflicts of law, who died aged 48. Dr. Biehler was a keen supporter of the work of the Law Review.

The competition is open to first and second year undergraduate students from all universities. Case notes are subject to a word limit of 3,000 words excluding footnotes, and the deadline for submitting your entry is the 17th January 2020. The winning entry is published in the print journal of the Trinity College Law Review, and the winner receives a cash prize of €250. More information on the competition can be found at www.trinitycollegelawreview.org/submissions/ .

 

 

 

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