News and Updates
Angela Rafferty QC (1989) is standing to become Vice-Chair of the Criminal Bar Association.
In April 2016, Simon Weil (1973) became Chair of The Handel House Trust.
Michael Collins (2005) read History and then Music at Trinity before joining the UK civil service as a generalist. In June 2015 he moved to the Crown Prosecution Service where he is part of the DPP’s Strategy Unit. Current priorities include reforming the way in which the CPS prosecutes cases involving indecent images of children and cybercrime.
Hannes Hofmeister (1997) recently published an article on the options a state has in the case of a withdrawal from the EU: ‘Splendid isolation’ or continued cooperation? Legal options for a state after withdrawal from the EU’ Columbia Journal of European Law 2015-2016, 21, 249-287. Hannes is Assistant Professor at Freie Universität Bozen.
In March, Philip Stenning (1965) published his latest book, co-authored with Distinguished Professor Emeritus David Bayley (SUNY Albany). It is entitled Governing the Police: Experience in Six Democracies.
Andrew Tuson (1998) became a partner at Berwin Leighton Paisner in May, specialising in contentious regulatory investigations and enforcement actions and litigation.
Alexander Deane (1997) launched ‘Brexit Express’ in early June – a ‘different kind of campaign in an EU debate overburdened with statistics. It’s a campaign about the way people feel.’
Wenhua Shan (1999) has been promoted to Assistant President of the Xi’an Jiaotong University. She was also elected President of the Shaaxi Province Commission on the Selection and Disciplining of Judges and Prosecutors. This is a significant appointment for the Province’s judicial reform efforts. Wen has also been elcted as Vice President of the SHAANXI Province Law Society, which is the most influential body of legal professionals in the Province.
Caroline Laske (1985) has published an article on Law French entitled “Losing touch with the common tongues – the story of law French”, in the International Journal of Legal Discourse 2016; 1(1): 169-192 The paper tells the story of this archaic language – a mix of Old Norman, Old French and Anglo-Norman – that was used in the common law for five centuries. Remnants of it are still present in today’s legal language. With its roots in Latin, it was in constant contact with the various dialects of both continental and insular French, as well as the upcoming Middle English, all of which had a major impact on the medieval linguistics and cultural landscape of England.
Henry Ellis (2003) moved from Stone Chambers to Quadrant Chambers in January 2016. He continues to practice in shipping and international trade.
Phil Riches (1993) has moved from Stone Chambers to 20 Essex Street.
David Hunt QC (1965) of Blackstone Chambers has become Treasurer of Gray’s Inn for the calendar year 2016.
Queen’s Counsel 2016 Announcements
Richard Julian Henshaw Edwards (1985) – 3VB
Tobias Augustine William Riley-Smith (1988) – Henderson Chambers
New Committee BiographiesAndrew Walker QC
Andrew Walker QC studied law at Trinity. He matriculated in 1987, was called to the Bar by Lincoln’s Inn in 1991, and took silk in 2011. He is a member of Maitland Chambers, and his professional practice focuses on property, company and commercial disputes, fraud, and professional negligence and valuation issues in a wide range of business sectors. He is currently Vice-Chairman-elect of the Bar Council, Chairman of its Ethics Committee, and Vice-Chairman of its Law Reform Committee. He was awarded the Bar Pro Bono Award in 2009 for some of his work with the homelessness charity, Shelter. He is also a trustee of the Industry and Parliament Trust, a charity which seeks to develop mutual understanding between Parliament and the worlds of business and commerce
Brian Lowe came up to Trinity in October 1931 to study law. Tomorrow, from the warmth of New South Wales, Mr Lowe, 102, will have his MA conferred – a little later than most Cambridge graduates.
In one of many Cambridge quirks, graduates can apply for their MA two years after their BA and when aged at least 24. Mr Lowe describes his time at Trinity, his career overseas and why he decided, more than 80 years after graduating, to apply for his MA.
‘I don’t know what conditions are like for students now but I suspect that in my time they may have been a bit stricter. In those days, if I remember right, we had to wear gowns to lectures and to dinner in the Hall. The college gates were closed at 9 or 10pm and to get out or in after that time required a pass, unless one climbed in or out as some used to do. The College in those days was all male. Female visitors were welcome but not after the gates shut in the evening.
For my first year I had rooms in Chesterfield Road and for the next two years Great Court R8, which overlooked Bishop’s Hostel. I shared these rooms with Geoffrey Makin who had been with me at Charterhouse and was also studying law. I visited these rooms the last time I was in Cambridge in 1989 when it was occupied by two female students but seemed much the same except that there was a wash basin where the coal had been kept, a great improvement.
I was not as active as I realize that I should have been in partaking in the many things on offer in those days but I played hockey in winter and in 1933 joined the Cambridge University Air Squadron which took up a good deal of time and taught me to fly.
My college tutor was JRM Butler and my supervisors were Professors Hollond and Duff. I think I was a good attendant at lectures in the Law School whose premises as I remember them were not attractive at the time. In the summer term I worked very hard for the exams, especially Tripos Parts I and II, which I passed.
I then commenced articles with a firm of solicitors in the City of London and after passing the final examination in about June 1937 I was enrolled as a solicitor. I continued working with the same firm until October 1939 when I was called up into the Royal Navy where I remained until March 1946.
In October that year I left England for Canada where I was employed as an Assistant British Trade Commissioner in Vancouver until March 1951. I then was employed in the legal division of a big public utility company in Vancouver until September 1961. In October 1961 I joined a legal firm in Vancouver with whom I remained until I retired in 1975. In October that year I went to live in Victoria, Australia, where I was enrolled as a barrister and solicitor but never practised.
I thoroughly enjoyed being at Cambridge. There is no doubt that it influenced my outlook for the better and that having a BA Cantab Law was very useful in obtaining employment in Canada.
I had been thinking of applying to be awarded an MA for some years but never got around to it. However, now that I am 102 I would very much appreciate having an MA to complete my CV.’
As a young Fellow at Trinity in the 1970s, Professor Boyd Hilton knew Brian Lowe’s Tutor, Sir James Ramsay Montagu Butler, and one of his Supervisors, Professor Patrick Duff. He reflects on their achievements and personalities, drawing on his memories and his research for a new history of the College.
The father of Patrick Duff was James Duff, a classicist and tutor, who gave his name to what is now called ‘Duff’s Garden’ between the Fellows’ Garden and the Burrell Field’s development. He wrote literally every day to his two elder sons while they fought at the front in Flanders (and elsewhere) during the 1914-18 War (and beyond). He sent these letters out in batches of four, and had to search around for things to say.
As College historian I wish he had written more about Trinity High Table and controversies arising, such as Bertrand Russell’s notorious ejection in 1916 (when James Duff was on the Council), but what he mainly wrote about – and no doubt he judged rightly that it would be more interesting to his sons in their dugouts – was the progress of his chrysanthemums, the collapse of his new-fangled central heating system, and the everyday doings of his two youngest children, Patrick and Hester.
Patrick Duff emerges from his father’s fond letters as lively, outgoing, inquiring, and capable. However, there was little trace of the lively child of the letters by the time I got to know him 60 years later. He had become deeply conservative and dry, rarely venturing outside Cambridge except to take part in the Lake Hunt, of which he was the Master. Indeed he was an archetypal bachelor Fellow, and very attached to his spinster sister Hester (who, like him, seems to have been a much livelier child than she ever was as an adult).
His expertise was in Roman Law, of which he became a Professor and he was for many years an exceptionally conscientious Tutor who never forgot a face or a pedigree. Moreover, even those who found his personality unexciting conceded that he had been a very judicious and effective Vice-Master.
I also knew Jim Butler. He was the eldest of Monty Butler’s three sons by his second marriage, and was born in what was then a bedroom of the Master’s Lodge and is now part of the Combination Room.Jim Butler
Jim was a seriously distinguished historian. One could argue that his 1912 book on the Great Reform Act, though ‘Whiggish’ in approach and long ago superseded in terms of archival research, nevertheless pioneered the ‘modern’ study of British politics. He was later the editorial mastermind of the multi-volumed ‘Official History of the Second World War’.
Like the Duff boys and his own brothers, he fought in the First World War; had he not done so he would almost certainly have become private secretary to George V, a post for which he was being groomed. It gives an indication of just how eligible this former head boy of Harrow and current young Fellow of Trinity was considered to be. Jim Butler was MP for Cambridge University in the 1920s.
Like Patrick Duff, Jim Butler became Vice-Master. He invited my wife and me to lunch in the A Great Court rooms now occupied by Ian McDonald. He was charm itself, and plied us with alcohol even though he was teetotal. Apparently he was equally generous in his entertainments as Vice-Master. He was also a Christian Scientist (got from his mother) and probably died unnecessarily by refusing to be treated medically following a straightforward ‘fall’. He had shown the same stoic fatalism while fighting in the First World War.Harry Hollond
Harry Hollond, who died too soon for me to know, was an immensely important Fellow, not just because he did a lot of the obvious jobs – Junior Bursar certainly, Senior Dean – but because of his representations to the Royal (Asquith) Commission on Oxford and Cambridge (1919-22) followed by his work as Secretary to the University of Cambridge Commissioners in 1924, which shaped the future of the University.
His was the most important hand in drafting new University Statues as well as new Statutes for Trinity, and he was subsequently asked to advise on the same by many other colleges. In this way he became a central figure in the wider University, and seems to have been much liked.
He taught conscientiously, I think, but published very little. In his written application for the Rouse Ball Professorship in 1943 he conceded the fact that he had been unproductive, and gave as a reason, not just the public service alluded to above, but the fact that for thirty years he had found that more than half an hour’s academic work at a time tended to give him brain fag – despite which admission he got the Chair. Autre temps autres moeurs.
Like Duff and Butler he was resident in College, but he was not a bachelor, being married to a glamorous American Marjorie Hollond who is noted in the Oxford Dictionary of National Biography for her work as an economist in academia and the civil service.
The mentoring scheme needs you! – Rachel Avery (1998)Rachel Avery
The Trinity Law Association mentoring scheme is now in its ninth year and of all the alumni associations at Trinity we are leading the way in mentoring. The scheme has paired dozens of students and former students with experienced lawyers working in a huge range of different practice areas with the intention that the wiser (sometimes!) and more experienced mentors will guide their mentees through the early stages of their legal careers. We are extremely fortunate that our alumni can be found in almost every area of the legal profession that one could think of and that in turn provides us with a large and varied database of mentors who are keen to pass on their experience of working in the law.
We have a large number of very committed mentors who we are extremely grateful to for giving up their time and passing on their experience to current and former students year after year. Mentors make a significant positive difference to as Rosalind’s account below attests.
It is an exciting time for the mentoring scheme for in the autumn we will be launching a new e-mentoring platform. This will make the mentoring scheme more efficient, easier to use and more accessible (we hope) to a wider audience. You will hear much more about this in the months to come, including how to create your online profile and we would urge all current mentors to sign up to this new scheme as well as encourage others who have not been mentors before to join our happy throng! In advance of the launch of the e-mentoring platform all members of the TLA will receive a questionnaire from the Alumni Relations Office asking for your views on the mentoring scheme. We would be very grateful if you would take a few minutes to complete this as we want to know what you think about the scheme (good and bad), and in particular, any suggestions you have as to how we could improve or extend the scheme or encourage more alumni to join.
Finally, I would be delighted to hear from anyone who is willing to act as a mentor or who wishes to know more about what this involves. For more information on volunteering to act as a mentor or on the mentoring scheme generally please contact me at: [email protected]
Rachel Avery is the co-ordinator of the mentoring scheme. She is a member of Devereux Chambers and teaches employment and commercial law at Durham University.
How mentoring made a difference to me – Rosalind Comyn (2015, LLM)Rosalind Comyn
As part of the Trinity Law Association Mentoring Scheme I was paired with Helen Mulvein, Legal Counsellor at the Foreign and Commonwealth Office. Since I do not plan to head down a ‘traditional’ legal career path practising as a barrister or a solicitor, I was initially hesitant about signing up for the scheme. However, great care was taken to match us with someone whose interests aligned with ours and I feel very privileged to have been paired with Helen, a leading international lawyer.
Helen took the time out of her (often incredibly) busy schedule to Skype me from her office at the UK mission to the UN in New York. We discussed the type of skills that the Government Legal Scheme (GLS) look for when recruiting, and areas of my CV that could be developed. She also gave me great insight into her work at in the UK Mission to the UN and her own career trajectory. The opportunity to have one of the government’s top legal advisors give me guidance about the best routes into a career in international law, and to be so open to answering any questions I had, was genuinely invaluable. Helen was really encouraging and as a result I feel better informed both about the GLS and working in international affairs in general.
I would without a doubt recommend the mentoring scheme to any students keen to gain from the experience and ‘insider’ knowledge of a leader in the field they hope to work in. Furthermore, it is a great opportunity to establish a valuable connection within the area of law that interests you.
Departures and Arrivals
This has been another year for sad goodbyes, first to Professor Gareth Jones who passed away earlier this year. We publish below the short obituary by John Spencer published by the Faculty. Gareth’s memorial service will take place on Saturday 29 October – time and other details to be announced. Alumni will be most welcome to attend.
We also say a different sort of goodbye at the end of the summer to Dr Matt Dyson, who will be going to Oxford to take up an Assistant Professorship and Tutorial Fellowship at Corpus Christi College. We are indebted to Matt for his boundlessly energetic and enthusiastic contribution to Trinity, not least in his outstanding work on access and admissions which has seen our numbers of applicants for Law increase hugely over the past few years. We congratulate him warmly on this thoroughly deserved promotion, but he will be missed!
At the time of writing, we are in the middle of the difficult process of trying to identify his successor… Watch this space!
And of course we have also just said goodbye to another cohort of students. The top students’ achievements are catalogued below.
Gareth Jones – by Professor John Spencer
Gareth Jones, who died on 2 April at the age of 85, was one of the foremost legal academics of his generation. His wide range of interests included legal history, contract, property and trusts. On the first he wrote his History of the Law of Charity 1532-1827 in 1969 and on the second, with William Goodhart, Specific Performance in 1986. But it is for The Law of Restitution, which he wrote in 1966 with Robert Goff, that his name is particularly well known. It was this book which established restitution in English law as a distinct topic. Now in its eighth edition (as The Law of Unjust Enrichment) it was quickly accepted as the definitive text, and has remained so.
After studying law at University College London, Cambridge and (as Choate Fellow) at Harvard, and then teaching law at Oxford and at King’s College London, Gareth came to Cambridge as a junior teaching Fellow at Trinity in 1961. He then remained in Cambridge for the rest of his career, which was long and exceptionally active. In Trinity he became a central figure, serving as Senior Tutor and later as Vice-Master. In the Law Faculty, he was omnipresent, serving (among a range of other roles) as Chairman from 1979 to 1981, and teaching for many decades his much-respected LLM course on restitution. Outside the Faculty he served, with efficiency and diligence, on a wide range of important but time-consuming University bodies – including the Council of the Senate and the General Board, and the Fitzwilliam Syndicate, which he chaired for 12 years. All this he combined with extensive travel: in particular, a long series of visiting professorships in the USA. And he still found time for writing and research – so building up a body of scholarship which was recognised by the award of a number of formal distinctions: including the titles of QC, LLD, FBA and Bencher of Lincoln’s Inn; and in Cambridge, the Downing Chair of the Laws of England, which he held from 1975 until he retired in 1998.
Gareth was a convivial man with an engagingly impish sense of humour. He was also known for his personal kindness and for the open-hearted hospitality offered at their home, together with his wife Vivienne. Her death in 2004 was a great grief to him, and to their many friends. Some years later he found personal happiness again with Dilys Brewer, who survives him.
Professor Jones was interviewed by Mrs Lesley Dingle not long before he died, and an entry in the Eminent Scholars Archive is forthcoming.
A memorial service for Gareth will be held in college on Saturday 29th October – time and further details to follow.
Tales from Tripos
Congratulations to all our students for enduring this year’s handwriting marathon, with particular plaudits to our First class performers:
Kirsty Corby (2015) and Ryan Turner (2015) (LLM)
Euchine Ng, Lindi Wang (2013) and Dominic Pugh (2013) (Part II)
Chris Coulter (2014) and Alexia Michaelides (2014) (Part IB)
Josh Fung (2015) and Wahdana Bilal (2015) (Part IA)
Photographs from the Trinity Law Residential and Robert Walker essay prize presentationsTrinity Law Residential and Robert Walker essay prize presentations
Hollond Fund news from Harvard – Irene Ding (second from left in the picture below!)Hollond Fund news from Harvard
My Harvard year started with a word: search.
I searched the entire campus for the famous John Harvard statute on the first day, only to find out I was actually walking in the MIT (The taxi driver apparently dropped me off in the wrong school). Then I met an Indian girl on my way to the dormitory. She told me that she was not able to see anything because she had lost her glasses and asked me if I could help her find them. Therefore, we walked along the Massachusetts Avenue to look for her spectacle case in the rain, each dragging two gigantic suitcases. She later became my best friend in the Harvard LL.M. Class 2016. During the orientation, the Dean of Harvard Law School said that each of us should have the confidence, security and audacity in being true to ourselves, because they have searched the entire world for us.
In retrospect, I think “search” has defined my Harvard year. I picked classes ranging from the Fourteenth Amendment of the U.S. Constitution (separation of powers and federalism), private law theory, taxation to mergers and acquisitions. Unlike many of my classmates with extensive work experiences and clear focus on particular substantive knowledge they want to acquire in Harvard, I found myself drawn to almost every class and ended up with a seemingly incoherent subject combination.
However, I gradually realised that diverse exposure did not necessarily mean incoherence. Since the study of law is effectively the study of the structure of human endeavors, different areas of law are related in the same logical way that various aspects of human behavior are interconnected. For example, the Constitutional Law is the study of power distribution and one of the most important enumerated Congressional powers is the power to tax. Therefore, the study of federal taxation is simply a detailed examination of the execution and manifestation of the Congressional taxing power. As Professor Alvin Warren repeatedly said in taxation class: you always need to ask a Constitutional question behind a tax question. Don’t miss the woods for the trees.
If the spirit of searching has enabled me to erect a meta-structure for legal learning, it has certainly empowered me to make many life-long friends. The best part of the Harvard LL.M. Class is the diversity it brings. My favorite conversation took place with a Ghanaian friend on the reform and future of developing countries. He challenged my view on the economic role of China and his personal experience with Ghana reform has also made me think whether I would implement similar measures if I were to be in the policy-making position. Poverty, feminism, immigration, climate change and financial crisis were the daily subject of speech and debate. Even so, I still often regret that I had not been able to capitalise upon the human talents in Harvard to the fullest potential.
On the less serious side of life, I also managed to explore Indian dance (thanks to my best friend) and learning some Japanese by following the Japanese Table in the Law School. Despite my negligible progress in both, I am still happy that I can now make a few clumsy moves with my neck and cook a bowl of real Japanese ramen!
This year has been genuinely enriching and rewarding. I am really grateful to Trinity College for supporting me throughout the entire journey and I will certainly search for ways to give back and nurture future generations of Trinity lawyers.
Professor Catherine Barnard: Brexit or Bregret…?
Anyone who followed referendum coverage would have done well to avoid seeing or hearing from Trinity’s Professor Catherine Barnard over the last few months. Whilst not carrying her heavy teaching load, being Senior Tutor, working on a major ESRC research project examining the experiences of EU-8 migrants and making all her usual overseas work trips, Catherine has been tearing around the UK – to TV and radio studios, town halls and schools – engaging the public in all things EU referendum-related. As a member of the UK in a Changing Europe team, Catherine had to remain publicly neutral on the key question. But within that limitation she produced a series of extremely helpful short articles and youtube films explaining some of the core principles of EU law. Google will readily pull up plenty of examples for you to watch, including one made for the Electoral Reform Society’s A Better Referendum campaign.
We reproduce below Catherine’s blog post on her activities around the referendum and the wider theme of the ‘impact’ of academic research. At the original time of writing, two days pre-referendum, our future was uncertain. At this editorial stage of writing, we are in extraordinary and unprecedented political and legal circumstances – for recent commentary on the present situation from Catherine on a panel also including Prof Mark Elliott (St Catharine’s), listen again to R4 Law in Action’s Brexit: The Legal Minefield first broadcast on 28 June 2016.
Dr Louise Merrett: a productive year of writing and reading…
Louise Merrett was on research leave for Michaelmas and Lent terms 2015/16. Some of her time was spent finishing existing projects including a chapter for a new book on The Contract of Employment edited by Mark Freedland and also finalising chapters for Chitty on Contracts and Benjamin Sale of Goods. She has also begun work on a new monograph for OUP on Agency in Private International Law which will complement her work on international employment law. The book will be co-authored by Pippa Rogerson, a Cambridge colleague. Louise has also been involved in a comparative project looking at the European Attachment Order (the European equivalent to a Mareva or Freezing Order) including attending a very enjoyable workshop in Glasgow. In October, Louise was a junior in a commercial court jurisdiction dispute which raises interesting and novel questions about the characterisation of a claim for equitable contribution between co-insurers under the Brussels I Regulation. Having won at first instance the case is now listed before the Court of Appeal and there may well eventually be a reference to the European Court of Justice.
And after all that, Louise then she topped off the year with a well-deserved promotion to University Reader (one rung shy of Professor). Congratulations, Louise!
Professor Sarah Worthington: sabbatical jaunts around the world and back again – thank you
Sabbatical leave is one of the many privileges of jobs in academia. It’s not a holiday, and yet it’s difficult not to approach the time without the same sense of excitement and anticipation – and, usually, the same optimistic expectation of achieving far more than usual in half the time to hand. Experience never dulls this rose-tinted assessment of what lies ahead. And so it was – again – for me.
I had two terms’ leave, and stayed in Cambridge for most of it. I kept a low profile, so much so that most people assumed I’d left the country – and now that I reflect on it, they have a point. I managed to get to Australia three times (lectures in 4 cities and reunions with family), France twice (walking in the mountains… and thinking about legal problems of course!), once to Spain (Barcelona for a marvellous comparative law conference, and to revisit old haunts) and once to Singapore (another conference, and much lively debate with old friends and colleagues). And of course there were many jaunts to London – not quite another country.
In between, I’ve scribbled furiously – sometimes pushed mercilessly by impatient publishers (not much fun) and sometimes by the thrill of a new line of argument. And although I didn’t do all I hoped I’d do, it’s been an extraordinarily productive time. I’ve had some new ideas – good ones I hope – in almost every area of my research. The result is new editions of two company law books, a few articles in journals and a few chapters in edited books… and a few far from finished papers. It’s confirmed that my move to Cambridge has been a good one, and I thank Cambridge colleagues and students for all the stimulating engagements in the lead up to this period of focus on the blank screen.
I return to final preparations for the Obligations VIII conference in Cambridge in July (do come if you are interested – the line-up is excellent), and beyond that I look forward to my return to teaching, with the excitement of co-teaching a new undergraduate dissertation paper in private law, to accompany the other dissertation options already on offer in the Tripos.
Although I didn’t do quite as much as I’d planned, I’ve had a marvellous time, and return to ‘academic normal’ with renewed energy and a buzz of good ideas for the year ahead. For that, of course, I have Trinity and the Faculty to thank, especially my Trinity and Faculty colleagues who have shouldered added burdens in many areas so as to free me to ‘think’. I did think, and I loved it – thank you.
Jo Miles: more money on divorce and Kiwi relationship property law
Jo is about to go on sabbatical leave for the coming academic year, during which time she will be continuing various aspects of her research on financial remedy orders on divorce.
In the past couple of years she has been a member of the Family Justice Council’s ‘Financial Needs’ Working Group, preparing guidance for litigants in person and most recently guidance for judges involved in financial cases on divorce, due to be published late June/ early July. The Law Commission amongst others have raised concerns about apparent geographical inconsistency in the exercise of the discretion resulting in very different outcomes – particularly as regards duration of spousal maintenance awards – in different parts of the country. In order to try to get a sense of possible drivers of these different outcomes, Jo, together with her collaborator Dr Emma Hitchings (University of Bristol), conducted some focus groups with judges this summer. She and Emma will be analysing that data, together with data from their earlier study of court files and practitioner interviews, during the coming year in order to try to improve our knowledge and understanding of the practice of family law in this area.
In December, Jo will be pursuing her international/comparative work in family law when she goes escapes the Cambridge winter to contribute to the work of the Law Commission of New Zealand and to participate in a Colloquium hosted by the University of Otago as they undertake a major review of NZ law on relationship property and maintenance. She will also make a short trip to Melbourne, Australia to collaborate with Professor Belinda Fehlberg on projects that they will be continuing during summer 2017 when Belinda will be a Visiting Fellow Commoner at Trinity. Closer to home, together with colleagues in the Faculty here, Jo is helping to launch the new Centre for Comparative, International and Domestic Family Law & Policy, to be known as Cambridge Family Law (for the sake of brevity, attractive as the acronym CIDFLaP is…!). And she has recently been elected to the International Academy of Family Lawyers.
Dr Matt Dyson: on his way to the Dark Blue Side…
In May I accepted a post in Oxford, at Corpus Christi College, and as Associate Professor in the Faculty of Law there. It was a sad and difficult decision to leave Trinity and Cambridge. The College, its students, fellows and staff have been the best one could hope for and leaving them seems somehow daft. But there are new opportunities elsewhere and new chances to stretch oneself. That I’ll be doing particularly in criminal law for the Faculty, and in my research areas of criminal law, tort law, comparative law and modern legal history. I’m looking forward to further work on complicity in the brave new age the Supreme Court and Privy Council have brought us to, as well as to further works working out the real relationship between tort and crime.
Other group projects, such as on the regulation of risk in private law, and on comparative criminal law, are on the horizon or indeed, in progress. While I go somewhere darker, and slightly wetter, Trinity will have a new law fellow in due course, someone as lucky as I was to be a part of such an amazing and inspiring community.
As the EU referendum loomed earlier this summer, Catherine Barnard, wrote a blog for the college website reflecting on engaging with the media and the public on the contentious issues raised by the EU membership debate, an experience that raises wider issues about the ‘impact’ of academic research and contribution to public debate. We reproduce that blog post here:
On 23 June, British, Irish and Commonwealth citizens aged over 18 who are resident in the UK and on the electoral register will be able to vote. (As will British citizens living abroad who have been on the UK electoral register in the past 15 years.)
As a College that seeks to engage with the wider world and to enable its members to take part in the most important decision for the UK for a generation, our message is clear. Trinity believes that members of the College should participate in this democratic process. To that end, the traditional ‘harangues’, when students and their Tutors meet, are an ideal opportunity to encourage students to register to vote, or arrange a postal vote if they will be away on 23 June.
It would be hard to escape the increasingly fervent debate over Brexit, and media coverage will doubtless increase as the date draws closer. I have experienced the growing appetite for expert comment on several of the issues thrown up by the prospect of the UK’s departure from the EU, including arguably one of the most contentious: immigration.
As the recipient of funding from the ESRC’s UK in a Changing Europe programme, I am required to engage with the public as much as possible – in a strictly non-partisan way – about the EU. And my research project with Dr Amy Ludlow [Trinity alumna, now fellow at Caius] explores the experiences of EU migrants in the UK – real-life, not imagined, stories of finding work and accommodation, receiving kindnesses and facing discrimination, attitudes to benefits, the British and – of course – the weather.
There does seem to be a gap between academic research about the many issues raised by Brexit and people’s confidence in their knowledge of those issues. ‘What does Brexit mean?’ is one of the most frequent Google searches about the EU. That appetite for ‘the facts’, for greater knowledge, and for understanding of the pros and cons of a debate or decision, may have a better chance of being satisfied if new ways of assessing universities and their academics’ research continue.
The 2014 Research Excellence Framework (REF) examined ‘impact’ as a measure of universities’ success for the first time. So ‘an effect on, change or benefit to the economy, society, culture, public policy or services, health, the environment or quality of life, beyond academia’ was counted alongside the traditional academic feather-in-cap of journal articles and (single-authored) books.
Impact, assessed by case studies of academics’ research, counted for 20% in the 2014 REF. Disseminating your research is not, on its own, sufficient to count as impact. But whatever definition is adopted and weighting given in the next assessment of universities, due out in 2020 or 2021, it is highly likely that ‘impact’ will feature. And more and more of us will seek to engage with audiences beyond academia.
To that end, in a bid to help answer questions about immigration and employment law, I have taken part in public fora, including events at schools and town halls, written articles for broadsheets and blogs, and been interviewed by local radio and national television.
I also use social media to disseminate my research and connect with migrants to encourage them to participate in our project. Both UK in a Changing Europe and Full Fact (another project with which I am involved) have excellent websites. Full Fact responds to questions from the public. Often those are very different to questions that academics ask themselves during their research.
Traditional media, especially broadcast, has to be innovative to respond to the needs of voters in this debate – which is a challenge, given tightly-packed news bulletins. A typical news ‘package’ is two to three minutes.
Recently, ITV began a ‘’ series about key issues in the EU referendum debate. Driving through a city street in a striking red Mini complete with Union Jack bonnet, ITV News’ National Editor Allegra Stratton unpicked the competing arguments of the Leave and Remain campaigns. These were superimposed on the dashboard and then the faces of academics, myself included, appeared in the wing-mirror (not a great look), before cutting to bite-sized answers.
Does all of this public engagement and media work amount to ‘impact’ for the purposes of the REF? Not necessarily. But the knowledge that we have gained as academics, funded largely by the taxpayer, should be put to good use – especially in a decision of this importance. The public wants to know. We have a duty to try to explain.
Forget the politics – Brexit may be unlawful
The circumstances surrounding the EU referendum are so bizarre, so chaotic and so impassioned that it is easy to overlook the fact that the UK’s withdrawal from the union would simply consist of two administrative acts performed by the government, acts that are subject to well-settled forms of legal analysis and legal evaluation. The government decides that the UK will withdraw from the EU; and the government notifies the European council of that intention.
There is strong reason to believe that the government’s withdrawal decision would be unlawful, and hence that the notification would be invalid.
The government acts in question are, as a matter of legal analysis, the exercise of legal powers. It is of the essence of legal powers that they have limits. The reason is that the exercise of a legal power alters the legal situation of anyone to whom that exercise applies. It may reduce their legal freedom, deprive them of rights, and impose new legal obligations. A legal power of a public authority, such as the government, may affect the legal situation of very many people. For this reason, the courts are particularly firm in keeping public authorities within the limits of their powers. UK withdrawal from the EU would affect the legal situation of every person in the UK, and the legal situation of many other people elsewhere.
At the request of a person directly affected by the exercise of a power, a court may conduct a so-called judicial review to determine whether the exercise of a public power on a given occasion is, or is not, within the limits of the power. This applies to all public powers at all levels of government and administration.
This activity of the courts is a product of centuries of constitutional struggle to control the temptation to absolutism of kings and, now, of the executive branch of government. The principle of the rule of law has become a fundamental principle of our constitution and of liberal democracy in general. All public power is subject to the law applied and enforced by the regular courts. Until 2015, the lord chancellor, as head of the judiciary, was the ultimate guardian of the rule of law. Then a lord chancellor was appointed who was not a judge but a government minister.
As the powers of public authorities have increased massively in volume over the last hundred years, the law of judicial review has developed to a corresponding extent. There are thousands of decided cases and whole libraries of commentaries. As a branch of law it is dense and subtle and controversial – especially when it involves undoing the work of an elected body; and controversial within a never-ending debate about how vigorous the courts should be.
So that they are not themselves seen as arbitrary, the courts are constantly developing and refining general principles of judicial review. In the light of the current state of those principles, two elements of the government’s decision-making in relation to withdrawal from the EU seem to be worthy of judicial review.
First, the original motivation for the holding of a referendum seems not to have been the public interest, but the particular interest of a political party. Especially in cases relating to local authorities, the allegation of a corrupt abuse of a public power is familiar – for example, a planning decision favouring a friend of the chairman of the planning committee. It would be bold to extrapolate such a case to the level of national government. But it is worth noting that it would be a challenge not to the Referendum Act of Parliament – challenging the validity of an act of parliament would raise formidable problems of general constitutional law – but to the actions of the government in the process leading up to that legislation.
Secondly, the courts, in countless cases, have entered into consideration of the substance of public decisions. They do not aim to second-guess the policy embodied in the decision. But they can take the view that the very substance of the decision is flawed in some fundamental way that takes it beyond the outer limits of the power. They have devoted much effort to finding general formulas for justifying this extreme step, reflecting again their crucial concern that they themselves must not seem to be acting arbitrarily.
In the light of the current law, it is possible that a court might take the view that it is arbitrary and unreasonable and disproportionate, in the legal sense of those words, to base the vastly important decision to withdraw from the EU on the opinion expressed by a bare majority of people taking part in a referendum provided for in an act of parliament – but an act of parliament that makes no provision for the legal effect of that referendum – thereby ignoring the opinion expressed by a very large minority. Governments are governments of the whole nation, not of a favourable constituency.
In the matter of withdrawal from membership of the EU, the government is not acting under its “prerogative power” in the field of foreign relations – an inherited power of the crown that needs no legislative basis. It is using the powers contained in article 50 of the treaty on European Union, which is part of UK law through the European Communities Act 1972. Article 50 explicitly leaves the legality of a withdrawal decision to national law. An unlawful decision under UK law would be invalid for the purposes of article 50.
The legality of the proposed government acts is open to serious question, a question that can only be finally answered in the courts.
Philip has also written a new book: Eutopia. New Philosophy and New Law for a Troubled World.
Matt Dyson provided academic firepower for the successful appeal against the doctrine of ‘joint enterprise’, or the law of complicity earlier this year.
On 18 February, the Supreme Court and Judicial Committee of the Privy Council ruled that one part of the law of complicity had been misinterpreted for 32 years. The joint decision of came after appeals by Ameen Jogee and Shirley Ruddock, who were convicted of murder, in England and Jamaica respectively.
Matt’s contribution was to undertake research on the last 500 years of the law on complicity: what it was, when and why it changed, and what the common threads were.
Ultimately, the court allowed the appeal. The court held that the particular error to be corrected was from a decision of the Privy Council in 1984, called Chan Wing-Siu. That case had held that an accomplice could be liable because he foresaw the principal offender (the principal) might commit a crime. The Supreme Court has now made clear that foreseeing a crime might be committed is only ever evidence of what is required, that is, that the accomplice intended the principal to commit the crime.
The law of complicity can apply to all crimes but its use in recent decades to prosecute for murder, especially in cases involving gangs, has proved contentious, giving rise to many appeals. There was also an important difference between the liability of the principal and the accessory, according to Matt:
Until Jogee, an accomplice would be liable for doing much less than the principal perpetrator, such as being one of five people who offered a knife rather than being the one person who used it. So the standard of fault for the accomplice was a lot lower than for the principal. But why should it be easier to be convicted as an accomplice than as a principal?
Lawyers acting for Jogee, Defence Law Ltd, said the law had ‘incorrectly and unfairly developed’:
This over-criminalised secondary parties… The consequence was that people were convicted of serious offences, committed by others, and imprisoned for lengthy periods.
In 2014 Matt was one of the academics, campaigners, Ministers and prosecutors who provided evidence to the, which recommended an urgent review of the use of the doctrine of joint enterprise in murder cases.
In its February 2016 ruling, the Supreme Court and Privy Council have corrected the errors of their predecessors. While media reports have suggested hundreds of prisoners could seek appeals as a result of the recent ruling, Matt cautions against accepting simplifications of the law of complicity:
For instance, it is often thought that ‘joint enterprise’ was how two of those involved in the murder of Stephen Lawrence were brought to justice. But, says Matt, the judge’s sentencing remarks suggest that intention, not foresight, was the grounds for their conviction.
Foresight as a test of culpability, a test which R v Jogee has removed, does not appear to have been relevant to their convictions. That will be the case with many, though not all prosecutions. A large proportion of prosecutions are brought on the basis that the defendants were all part of a common plan to commit crime, not on the basis of mere foresight of the possibility of a crime.
And that’s the point: where the defendant was only shown to have foreseen that possibility, murder is not an appropriate conviction. Manslaughter might be appropriate, depending on the facts; but it might also be that the defendant is not responsible or culpable for the death at all.
It does our criminal justice system no good to convict people of the most serious crime on the basis of the lowest form of culpability, mere foresight. We must prosecute all parties to criminal conduct but prosecute them for the right crime.
Matt’s contribution to the case underlines the useful and important role of independent and rigorous research in public debate and policy issues:
As soon as I heard the case had permission to appeal to the Supreme Court, I got in touch with the counsel involved and offered any help I could provide. I cared about the issue and thought it was important to contribute to try to make the law better. Given other academic commitments, we can’t always dive in to cases, but this was a special case. It’s also affected not just what we have to teach our criminal law students, but also how I teach it.
The experienced underlined the benefits of practitioners and academics working together:
There was a great deal to learn from working closely with the appellants’ legal teams, led by Felicity Gerry QC and Julian Knowles QC, as well as from legal argumentation from the respondents and the members of the Court.
More generally, done properly, and perhaps with a little luck, academic work of many kinds can contribute to wider society, including in informing public debate.
Matt explains the R v Jogee case in more detail in a Law Faculty video. And for all you lovers of Nutshells revision guides, here’s Matt’s “nutshell” refresher on this area of law:
Background: ‘joint enterprise’ or the law of complicity
Joint enterprise’ is a phrase attempting to describe criminals acting together. But it is not a technical legal term. The phrase can cover three very different situations with different problems and rules. The law of complicity is the proper legal term.
For centuries, criminal law has prohibited not just committing crime, but also assisting or encouraging another person (the principal) to commit a crime. The requirements were that you were responsible and culpable for the other’s crime.
The physical acts of complicity, which demonstrate responsibility, can take two forms. First, you can assist, by providing the principal perpetrator with, for example, a weapon, information, or acting as a lookout. Second, you can encourage, by offering support, courage, or telling someone to commit a crime.
The mental element of complicity, which demonstrates culpability, had for a long time been that you must intend to assist the principal to commit the crime and know, believe or intend the principal would commit it.
The 1984 case, Chan Wing-Siu, created a third type of complicity, where you agree to one crime and another emerges from it. This is called parasitic complicity. The idea from 1984 was that if you have agreed to one crime, we should make it easier to convict you of any others that arise in the course of the first. That would mean you do not need to assist or encourage the second crime, and you need only foresee that it might be committed. This 1984 decision was removed by the Supreme Court and Judicial Committee of the Privy Council in R v Jogee and Ruddock v The Queen.
In English law, if you are an accomplice, you can be charged, convicted and punished as if you were the principal. So, if five people attack a victim, preventing his escape, intending a sixth to kill with a knife, the law can convict six murderers, with six mandatory life sentences and significant minimum tariffs in prison, starting at 25 years for the knife-wielder.
The reason for this rule is not that we think accomplices are always and automatically as responsible and culpable as the principal, and the tariff in prison can reflect that. Rather the rule is to deal with what happens when we know that two or more defendants were involved in a crime, but we cannot show which did it and which assisted. The law attempts to solve this by treating them all as principals, rather than requiring all to be acquitted.
If you pause for a moment, you’ll realise that there are many people serving life sentences who did not by their own acts kill. Also, you might be unaware that the law of murder in England and Wales does not require a defendant to intend to kill, only to intend to cause serious harm. That is, if you intend to break someone’s arm, and for some reason that person dies, you are a murderer.
Lauterpacht, the Final Solution and the development of international criminal law: Philippe Sands QC’s East West Street
As readers will know, Cambridge’s world-famous Lauterpacht Centre for International Law is named after Sir Hersch Lauterpacht, giant of 20th century international law and father of Trinity fellow and distinguished international lawyer Sir Elihu Lauterpacht. Eli in turn taught Philippe Sands QC, amongst many other Cambridge law students over the years.
Sands’ recent book, East West Street: on the Origins of Genocide and Crimes Against Humanity (published by Penguin Random House) explores the extraordinary story of two Nuremburg lawyers, Hersch Lauterpacht and Rafael Lemkin. Both had studied law at Lviv in the 1920s and later found themselves prosecuting the Nazi war crimes of Hans Frank, who had overseen Hitler’s Final Solution, the mass murder of Jews. Lauterpacht and Lemkin had fled Nazi-held Europe before the war, and only discovered in 1946 that their entire families had been killed, just as Sands’ grandfather also discovered that he too was the sole survivor of his family of more than 70. Yet as Sands relates in a recent interview, “When the trial begins, these two Jewish lawyers don’t realise that Frank is the man who has killed their entire families.”
To quote from the publisher’s blurb:
In this extraordinary and resonant book, Sands looks at who these two very private men [Lauterpacht and Lemberg] were, and at how and why, coming from similar Jewish backgrounds and the same city, studying at the same university, each developed the theory he did, showing how each man dedicated this period of his life to having his legal concept—“genocide” and “crimes against humanity”—as a centerpiece for the prosecution of Nazi war criminals…
Sands brilliantly writes of how all three men came together, in October 1945 in Nuremberg—Rafael Lemkin; Hersch Lauterpacht; and in the dock at the Palace of Justice, with the twenty other defendants of the Nazi high command, prisoner number 7, Hans Frank, who had overseen the extermination of more than a million Jews of Galicia and Lemberg, among them, the families of the author’s grandfather as well as those of Lemkin and Lauterpacht.
A book that changes the way we look at the world, at our understanding of history and how civilization has tried to cope with mass murder. Powerful; moving; tender; a revelation.
East West Street is published by Penguin Random House and widely available in regular and e-book format.