Update – April 2018

Yet again there has been a lengthy amount of time since I have managed to post to this blog. With an exceptionally busy work and family life at present, finding additional time is not always easy!

As a general update, I was appointed Programme Leader for the Criminal Justice Programme at UWS in 2017, as well as taking on further responsibilities relating to the School of Media, Culture & Society international strategy as a lead on our strategy for Africa. I have also been taking part in an extremely high research workload with commitments in the UK, Rwanda, and Kenya. Whilst incredibly rewarding from a number of perspectives, the reality is that all of this has resulted in a very overloaded average working week – one of the perils of academia!

Back to the family side of things, my wife and I were delighted that a second son came along (Daniel) in February 2018.

I will return to blog again when possible.

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Comment on Britain leaving the European Union

I know that I have not updated my blog in quite some time – this past year has been by far the busiest of my life professionally, especially whilst going through the PhD thesis completion process (I am currently undertaking corrections to my thesis which will be submitted in a matter of weeks), leaving little time for additional writing such as on this blog. This is something I hope will be eased over the coming year allowing me some time to devote to it.

I could write a very large blog on the subject of this morning’s decision in the EU referendum to leave the EU, however I am already considering ways to edit an already drafted article to include discussion of this, so will leave the majority of what I could say for then.

I do want to go on record to say, however, that having taught different aspects of EU law, constitutional law, and other aspects of international law since 2007 (as well as acting as external examiner for these subjects at more than one other UK University during the past five years), I was distraught at the manner in which both the leave and remain campaign were conducted. No real factual information beyond the most basic was communicated, and each side relied on little more than who could scare the population the most into voting the way they wanted.

From a workers’ and more general human rights perspective, the so called brexit is nothing short of a disaster. The perception of many is that the EU ‘dictated’ laws to the UK – nothing could be further from the truth. The UK for decades, more specifically since the progression from EC to EU in the Maastricht Treaty, and again since the development of the current EU framework with the Treaty of Lisbon, has been fully involved in all major legislative programmes at EU Commission, Parliament, and Council level. The ordinary legislative process of the EU is also actually much more democratic than the mass media, and those with an agenda would have you believe; for example, most people do not realise that the entire Commission is accountable to the EU Parliament (the directly elected EU Institution), and this is not only a theoretical power – in 1999 the Santer led Commission was effectively forced to resign en mass; jumping before they were pushed by the Parliament. The only Commissioner that refused to resign, Édith Cresson, was taken to court in Case C-432/04 (Commission of the European Communities versus Édith Cresson), and judged to have been in breach of her obligations as a Commissioner.

The majority of EU laws from a rights perspective have been, are, and will continue to be to give a level of protection to EU Citizens; a set of minimum standards and protections that all Citizens can expect regardless of whether they are in Italy, Poland, Greece, or the UK.

These rights could be in the areas of employment and labour laws (an area I used to teach, and was still involved in external examining for until 2015, so am still very up to date with my knowledge of), or from my current professional interests’ perspective in the area of justice.

For example, one area that I did not see mentioned a single time during the EU debate was that the Victims and Witnesses (Scotland) Act 2014, a piece of legislation that gives legally binding rights to victims of crime including the right for a victim to require that a decision not to prosecute an alleged offender is reviewed by the COPFS, and also gives legal recognition to the relatives of a deceased victim to be classed as victims in their own right, as well as numerous other positive legal rights, stems directly from the Directive establishing minimum standards on the rights, support and protection of victims of crime [Directive 2012/29/EU ]. The Scottish 2014 Act was created purely to comply with our EU obligation to improve legal rights and safeguards for victims of crime; prior to this the majority of policies relating to victims’ ‘rights’ were not legally enforceable and open to alteration at any stage by our domestic legislature. Without EU protection, this important legislation could be amended or abolished at any time – and to be clear I am not saying it will be – but the safeguard in place through the EU was one that ensured any changes to victims’ rights would have to be agreed by the other Member States of the EU, and as such any reduction in rights would be incredibly unlikely. Sadly, the citizens of the UK and Scotland will in the near future no longer benefit from this safeguarded position.

Again, I do not have a lot of time right now to devote to a more full blog on this issue, but wanted to at least leave something that shows my feelings on the matter. The next question to be answered is whether or not in light of the massive division in the ideology relating to this subject between Scotland and England (for any international readers – Scotland voted 62% to 38% in favour of staying in the EU, and with all constituencies without exception voting to remain, hence complete unanimity), there will be a real push for a further Scottish independence referendum and subsequent application to Join the EU as a Member State in its own right. Scotland’s First Minister, Nicola Sturgeon, has already discussed briefly that this is ‘on the table’, but the detail remains to be seen.

Hopefully I will manage to find the time to update again in the near future.

 

General Update / PhD Thesis Submitted

There has been somewhat of a lengthy gap since I last posted anything here, mainly due to the last few months being the busiest I have ever had in some eight years at UWS. Since my last post I have been working in Rwanda, London, Aberdeen, Tilburg, the Hague, and will be travelling back to Rwanda in four weeks time. Lecturing, and in particular marking during the February – June semester was also significantly busier than had been predicted at the start of the year, leaving me little time for additional activities such as writing here.

Then came the summer and although I have taken a significant amount of annual leave, in reality I have only had one (yes one) week off since June, with the rest of annual leave having been taken in order to completely ignore all other work matters and concentrate on nothing else other than completing my PhD thesis (on the subject of contempt of court in facie curiae, courtroom environment, courtroom behaviour, Human Rights law, comparative law, and other linked areas). And so, for three weeks of annual leave taken I was in reality physically in my office with the door locked simply working in private. I am delighted to say that I successfully completed my thesis and submitted it just before the end of August. This should now be in the process of being sent to examiners to consider prior to a viva examination hopefully sometime around November.

Trying to complete a PhD whilst working full time has been the hardest thing I have ever had to do in a working sense, especially so with the exceptionally limited time that one is able to devote to it in reality during any of the teaching semesters. I would never say to anybody not to embark on this same endeavour, however I would make it absolutely clear that it will eat into your personal time significantly, it will require significant dedication and self-motivation, and it will in all likelihood leave you both physically and mentally exhausted at points. BUT – once it is all over, even in advance of any sort of result or feedback, it will feel worth it when you have a final bound thesis, effectively a finished book, in your hands, knowing that it was something that you created (albeit with some assistance) all by yourself.

Of course, whatever the result, good or bad, I will post here with an update in due course once the thesis has been examined and viva taken place.

 

The Nether – Review – Duke of York’s Theatre – London

Warning – This review contains discussion around very sensitive subject matter of an adult nature.

The second show that I saw whilst working in London recently was one that I had not heard about prior to my visit, however on discovering the nature of the production it was one that I decided I had to see, as the subject matter is not one you would usually see so openly discussed in a west end theatre. The show is called ‘The Nether’, and what I have to start this review by saying is WOW! This was a phenomenally realised and balanced production that stayed away from a lot of the ‘mob’ mentality that traditionally follows around any mention of the core theme. Instead opting to examine many themes from a number of adult, genuinely debatable perspectives.

So what was the core subject? Paedophilia and the internet. Yes, you read that correctly.

The Nether is set in a somewhat dystopian 2050 (not exactly light-years into the future), where the internet has continued to develop and advance at a frightening rate. Rather than logging in to the internet as we do now through a computer and search engine, in the 2050 created by writer Jennifer Haley and director Jeremy Herrin ‘we’ log on by placing our hand on a terminal and uploading our entire consciousness into an infinite number of ‘realms’ (virtual websites). Throughout the play, the real world is referred to as the ‘outer world’ and the internet as the ‘inner world’. Society is supposed to have developed to the extent that it is only the elite who can still have their children educated in the real world, with the majority being educated via virtual realms. When you think about it, the entirety of this future society is not that far fetched. Think about just how far the internet has developed in the past 20 years. In 1995 I knew of very few people who had any sort of internet access, search engines were in their infancy, websites were extremely crude and functional, and any actual engagement within a website (such as comments or interactivity) was highly unusual. Fast forward to 2015 where the internet is everywhere. Computers, mobile phones, televisions, in the classroom, and the vast majority fully interactive. So fast forward not just another 20 years, but nearly double that to 35 years and imagine where the internet could be if the rate of change continues.

The play starts with a man in his 50’s named ‘Sims’ (played by Stanley Townsend) in a room with a female agent; Morris (Amanda Hale). It is not immediately apparent either what sort of agency Morris represents, or indeed what Sims is being detained for. All that is revealed is that the agent is looking for information on the ‘Nether’ (future term for the internet) activity of Sims, but that she cannot get the evidence necessary unless Sims logs on, something that he has no intention of doing. Slowly relevant information is drip fed to the audience leading to the realisation that the agency is a recently developed criminal justice agency that was set up specifically in reaction to the advances in programming on the Nether. Until recently, although ‘virtual reality’, it was still quite clear to those ‘online’ that they were not in the real world; however Sims is a master programmer and has created a realm that is indecipherable from reality. Every sense is covered – touch, smell, taste, sight, sound. It is here that the moral and legal debate begins over the notion of ‘thought crime’, and whether virtual crimes carried out online could be treated in the same way as crimes on the outside. Previously, various crimes such as paedophilia would have been treated differently when online than in reality. Anybody viewing child pornography on the internet / the nether would only have been convicted of various publication type offences, the question here is whether due to advances in sensation effectively making ‘full contact’ possible, whether or not such actions in the nether could be treated the same way as similar crimes in the ‘real’ world.

In order to test the sensation theory, the agency has sent an undercover agent to infiltrate Sims’ realm – which we have discovered is a hideaway for paedophiles who can go there, indulge in their fantasies, and even kill the virtual child, Iris (played in the show that I saw by Zoe Brough aged approximately 11, though through the run is played by four different girls – as well as Zoe Brough there is also Jaime Adler, Perdie Hibbins and Isabella Pappas)) with an axe at the end. The various questions raised (and debated in the holding cell / interview room between Sims and Morris) include the full sensation debate, whether or not the realm is actually a public service by allowing those with paedophilia tendencies to indulge in their fantasies and therefore prevent them from doing so in the ‘real’ world, whether or not there is a link between online activities and real world actions, and whether or not it is a crime if Iris is not even a real little girl, merely the image of one. Whether or not Iris feels real emotions and pain (when being murdered) is another area for discussion and debate. The form of the play is that the foreground is the interview room, and at various points the scene cuts away to the background which has been set up (in an incredibly intricate and ingenious way) as the virtual realm on the nether. In one of these cut scenes, the undercover agent directly asks Iris ‘do you feel pain?’ and ‘she’ interestingly answers ‘only as much as I want to’.

Bearing in mind the subject matter, it can be really quite uncomfortable viewing at times given the presence within the production of a young girl, especially in certain scenes where she (as supposedly programmed to do) has to allure the client into wanting to have sex with her. One scene in particular is difficult when in front of the client she ‘seductively’ removes her pinafore (with other undergarments still protecting her modesty thankfully) before the scene cuts back to the interview room. BUT – I have to stress that ALL scenes such as this are for a purpose, and each raise a huge number of questions all of which add to the overall production. There is absolutely nothing that could be called either obscene or ‘crossing the line’.

Going back to the idea that the audience is drip fed information a bit at a time – you may think that you have a fixed opinion on all of the raised questions thus far, but there is more that is thrown into the mix. We progressively see more of Morris interviewing a second man, Doyle (David Calder), who we are initially led to believe may be one of the clients at the realm created by Sims, as he openly admits to his paedophilia fantasies. We also see more of the undercover agent, Woodnut (Ivanno Jeremiah) with flashbacks to his operation. In particular we see Woodnut starting off with a very professional outlook related to his investigation, but becoming more and more sucked in to the realm, eventually admitting that he has fallen in love with Iris.

Yet all is not as it seems. The twist comes when we discover that when a person logs on to the nether, they can appear within a realm with any appearance that they choose. We find out that Sims has in fact had a number of young girls before Iris, and that they were all given the same appearance by him. It transpires that she was made in the image of a previous neighbour’s daughter that he managed to prevent himself from abusing in the real world and has since been ravaged by guilt over the real life encounter that he halted before it progressed. It further is eventually revealed that there was no undercover agent – Mr Woodnut never existed; it was Morris herself uploaded in male form carrying out the investigation herself, and it is clear that she too feels numb with guilt at what she has done and how she has fallen. The final major twist is that Iris is not simply a virtual girl, but that rather than being a client of Sims, Doyle (a 65 year old man) had actually uploaded himself as Iris, a supposedly 8 year old girl. So of course this then raises the question of whether or not it can truly be classed as sexual activity with a child if in reality the activity is actually with a 65 year old man who simply looks like an 8 year old girl. Through all of this, Sims, who deeply cared for Iris, was completely unaware of ‘her’ true identity as Doyle, and the further question was raised over whether he could accept Iris for who ‘she really was’.

There were some further details in the production, this summary by no means covers everything, but gives you the main points. Again – are the actions truly ‘criminal’ given the lack of ability to distinguish between real and virtual, are these realms helping prevent crime or enabling it, are there links between virtual lives and real ones, the corruption of previously ‘normal’ people after getting involved in the activities under investigation, as well as various other issues linked to identity and the context in which crimes take place.

The acting was absolutely superb from all in question, especially with the range of emotions required to be both displayed through performance and conveyed to the audience. These are not easy subject matters to try to garner sympathy or empathy for the ‘offenders’, and yet at times it was something they were successful in achieving.

I want to return to the ‘uncomfortable’ nature of some of the scenes that I mentioned previously just to mention that yes, it may have been uncomfortable at times, but this was a GOOD uncomfortable, as the reason for discomfort was that you were being forced to question or think about issues that our current society has always portrayed as being very black or white; made to consider things that you might not voluntarily consider if not faced by the issues so directly. The acting, writing, production and direction was brave, challenging, contemporary, and overall a breath of fresh air – totally outwith the normal comfort zone of a standard west end production (of which I have seen a great many to use as comparison over the past few years whilst working in London).

This is a production that deserves to win awards. It is that simple. It should be noticed and if there is any justice then it WILL be noticed. If it is not, then I can only surmise that it is because the various awards short-listers are fearful of any potential controversy due to the subject matter.

This is an absolute 5 star production – in truth I would give it more.

Production photos from the official programme here are (C) Johan Persson, others including those of the theatre exterior were taken by me.

 

Taken at Midnight – Review – Theatre Royal – Haymarket – London

As previously mentioned, every time I go to work in London I make a point of going to see something in the theatre that has a link to either law, criminal justice, politics, psychology etc. In other words, something that has a link to my broad academic interests. I was extremely fortunate that whilst in London this past week there were two productions that caught my eye, and so I was sure to set aside the time to go to both.

First of all there was ‘Taken at Midnight’, at the Theatre Royal, Haymarket. In a way I was lucky to see the show on this particular night (Wednesday 18th February 2015) as during the show we were faced with a rather unique issue. Still – more on that later.

The play follows the real life story of Hans Litten. Some of you reading this blog may already know the background here. Hans Litten was the lawyer who in 1931 subpoenaed Adolf Hitler to appear as a witness at a trial of four storm troopers accused of murder. This action, or rather the skill he displayed in running circles around Hitler during the trial, would prove to be his downfall, as in the aftermath of the Reichstag fire he was taken from his home and placed in ‘protective custody’ by the Nazi regime. Following various moves from concentration camp to concentration camp (in part due to Jewish blood in his family history), he eventually committed suicide in 1938 after refusing to assist the Nazis with their attempts to have various offenders’ (found guilty of offences before they came to power) convictions overturned.

The show itself was produced in a very clever way, with the set design split in two (shortly to cause a problem that I sadly predicted!) on the main stage. As you will be able to see in the picture below, the foreground played various office, home, and outdoor locations, with the background playing out the various concentration camp scenes. For all foreground scenes the story circulated around Hans’ mother Irmgard Litten, played with an exceptional performance by Penelope Wilton. These scenes were almost 50/50 split between Irmgard’s monologue and live action between her and the other characters including her husband Fritz (Allan Corduner), SS officer Dr Conrad (John Light), and British diplomat Lord Clifford Allen (David Yelland). Wilton plays her role masterfully, moving between distraught mother, cunning strategist, and strong opponent to the male protagonists of the piece with ease. Her ongoing struggle as she fights on behalf of her son is engaging from start to finish, and the director quite correctly made the decision to have her strong to the last – it would have been easy to have her character fall apart following the death of her son after a 5 year battle – this would have been the stereotypical ‘dramatical’ approach. BUT, this would not have been in keeping with the overall portrayal of Irmgard, who had been shown to be a rock throughout. It would have been easy for the performance from a lesser actress to have come across as unemotional, yet Penelope Wilton managed to get it just right – showing strength, yet still garnering sympathy and empathy. Her performance came across as being a sort of ‘dignified agony’.

As Hans, Martin Hutson was excellent…. whilst he was there….

In various scenes, his dialogue, in particular with Erich Muhsam (played by Pip Donaghy), was exquisitely delivered, whether showing pain from his torture-inflicted injuries, or humour during his (ill-fated) re-enactment of the court scenes whilst he popped on a false moustache and pretended to be Adolf Hitler….

So now to stop being cryptic and outline the ‘disaster’ that I have hinted at during various comments in this review. Mid-way through the fist act, during the aforementioned courtroom re-enactment, there were crates on stage, one of which Martin Hutson was to stand on as though he were in the witness stand. The problem was that these crates were placed right at the edge of the split in the stage where there was already a 1-2 foot jump down to the lower part of the stage. As these crates were placed prior to the scene in question, I thought to myself ‘If somebody were to fall from there (the 1-2 feet plus the further foot or so from the crate), it could be a bit nasty’. Fast forward to 10 minutes later, and as the scene called for, whilst re-enacting the court scene, the guards burst in to the room, and the main characters were supposed to quickly disperse so as to avoid suspicion. It was at this point that in reality, not part of the show, Martin Hutson lost his footing and fell to the second stage below. He very quickly got up and got on with it – many in the audience may not even have realised that it wasn’t supposed to happen as the scene was certainly supposed to be a bit chaotic. Regardless, being a true professional, Hutson continued to the end of the act seamlessly.

Then at the half-time interval, a gentleman came out (he did not introduce himself so I do not know if it was the director or the theatre manager) and announced that Martin Hutson had hurt his leg and had to go to hospital, and so the understudy Marc Antolin would stand in as Hans Litten for the remainder of the performance. And he was superb. It must have been incredibly difficult to be thrust into the production at that point – it wasn’t under normal circumstances of the lead actor having a day off, or being ill before the production. Antolin would have had not idea whatsoever that he was to be called upon until a few minutes before he went on. And so if ever a performance displayed leading man qualities it was this one. Antolin played the part of Hans during his slow spiral into depression and illness, and did so as a true professional.

Overall, the production raised a number of question about the relationship between law and politics, the pressures and fear of reprisals that lawyers and barristers can have, especially when operating under sensitive regimes. Thankfully, the production showed the profession of law in a sympathetic light, outlining the ethical struggles that a true professional lawyer has to go through when faced with difficult questions being asked of him. Hans Litten remained an ethical professional to the last.

This was a 5 star production, which in spite of the problems that cropped up managed to continue without missing a beat. It was heartening to see during the curtain call that all of the actors, individually gave Marc Antolin a round of applause. I just wonder if the set designers / producers might have a bit of a rethink regarding the placing of those crates given the obvious hazardous situation that the placement created – I actually find it quite hard to believe that nobody else foresaw the obvious danger that I did within moments of seeing how it was laid out. Still – excellent all round!

 

Great Britain – Review – Theatre Royal – Haymarket – London

An unusual post for my blog, but one that I think is appropriate. Every time I go to London on external examiner duty for the University of Westminster, I make sure that I get the chance to see something at the theatre. Usually I’ll try to see something that is either political / legal in nature if there is anything in that genre. Luckily when I was in London on work during this past week, I was able to get a ticket to see the opening night of ‘Great Britain’ at the Theatre Royal on Haymarket on Tuesday 9th September.

 

 

The production, written by Richard Bean, had previously held a successful run at the smaller Lyttelton Theatre during the summer months, and I was interested to see what all the fuss was about. Essentially the production is a satire on the ‘News of the World’ scandal and Leveson inquiry, however it has strong elements beyond this that focus on both political and police corruption and incompetence. As such, whilst the humour is excetionally strong, equally for those that choose to see beyond the comedy, there are real moments that give you pause for thought regarding both individual morality and modern human nature in general.

The way the production is structured is that the majority takes place in the newsroom of fictional tabloid newspaper ‘The Free Press’, with characters including the Murdoch-esque Proprietor played by Dermot Crowley, the vulgar editor played by Robert Glenister, and arguably the main character – Paige Britain (played by Lucy Punch), who is a ruthless up and coming news editor, who has frighteningly high ambitions to go as far as running the country from the murky shadows of the press by manipulating the leader of the Conservative party (Rupert Vansittart). Paige will stop at absolutely nothing to further her career and personal aspirations. Her journey takes us through initially minor areas such as employing people to go through the bins of celebrities, to more serious areas such as blackmailing members of the ‘Leveson’ committee who were investigating her conduct. The out of control spiral leads to the corruption of the previously clean Assistant Commissioner of the Police (Ben Mansfield), and eventually being caught after hacking the phones of fictionally abducted and killed twin children, and the suicide of their father after he was mistakenly arrested for their murder based on news reports stemming from Paige and her publication.

 

 

All of the cast without exception were perfectly cast in their roles – there was nobody who was utterly dislikable or without some sort of redeeming quality, even if it was simply admiration for having such courage of their convictions that they were if nothing else entirely honest with themselves. Undoubtedly though there were two stars of the show – Lucy Punch as Paige Britain, and Aaron Neil as the Police Commissioner. Whilst I have said a fair amount about Paige, as yet I have not discussed the Commissioner, who is characterised as little more than a puppet, but one who is unaware that this is the role he plays. He genuinely tries his best, but is simply clueless and in over his head. By far and away the best one-liners come from the Commissioner, and Neil’s delivery is absolutely first class. Little bits of detail such as the playing on the screen of modern phenomena such as ‘youtube’ videos that people have edited of his press conference announcements in the form of a mocking ‘music video’ genuinely add something to the performance, and had the audience in hysterics.

As mentioned earlier however, it is not all about the comedy. There were undertones of morality and reflections of real life corruption present, undoubtedly deliberately, throughout the show. Most of these were genuine areas that would make you think, such as; were the police really that terrified of the media prior to Leveson that they would have evidence but cover it up for fear of being portrayed in a bad light? Is whistleblowing, when made to the press and not the authorities truly ‘corruption’? (This I think I could write a blog on its own right in, so I’ll not answer the question) What really are the limits of freedom of expression and the ‘public interest’? In particular we have to reflect on the lengths some people go to just to achieve fame, and where does it really lead when we are faced with the character of Stella (Kellie Shirley), a young aspiring glamour model, who starts off agreeing to drop a dress size and have cosmetic surgery before being given a contract as a ‘page 7’ model, and eventually is accepting a large fee for the newspaper to have exclusive rights to her death inevitably coming as a result of an eating disorder.

One area that I do think was misguided, and for me did not really work was late on the performance when Paige took centre stage to ‘tell’ the audience that we didn’t really care about phone hacking when it was all about the celebrity gossip, and we only cared when there was a moral outrage over the eventual hacking of the dead children’s phones. Paige laments that had the hacking resulted in the children being found alive then she would have been a hero, but as in reality it only led to headlines and the arrest / suicide of the father she was painted as a villain. This monologue is an attempt to make the audience feel uncomfortable about their morality as it forcefully asserts unequivocally that we ‘all’ were guilty of this. I for one have never thought celebrity gossip of the nature put across by the tabloids is okay, nor have I ever thought that phone hacking etc. were ever acceptable as I believe that people have a right to a private and family life. Perhaps however this is due to my roots as a lawyer, and the fact that I have taken an active interest in issues relating to press activities and regulation since I taught media law for three years, and still act as an external examiner in the subject.

 

 

Of course, eventually it all comes crashing down around Paige, the Commissioner, and most of the other characters who had been corrupted, though the twist at the end is shown as Paige, following her inappropriately lenient punishment, manages to find huge celebrity herself as the host of a US talk show purely as a result of her former infamy, making the audience wonder, is there ever truly a way out of the sleaze, or will the cycle forever be perpetuated.

Overall, this was a superb production that should appeal to a wide demographic (though definitely NOT appropriate for children due to both the subject matter and the coarse language throughout), with a number of levels of comedy, satire, political commentary, and self-reflection. If you are in a position to see this, take the chance while you can.

I would definitely rate it as five out of five.

 

Practical / Clinical Education of Undergraduate Students in Law, Criminology, and Criminal Justice

It occurred to me a short time ago that having presented a short(ish – it’s circa 4,000 words) paper at the 2011 Higher Education Academy 3rd Annual Legal Education conference in Edinbugh, I never edited my paper for publication. Now some three years later it would likely be too late for this, however in order to ensure that what I discussed does not vanish into oblivion, I feel that my blog site is an ideal place to self publish. Please note that this is unedited, and so I apologise for any minor (or major!) typos, awkward sentence structures, and other errors!

 

Law, Criminology, and Criminal Justice Education: Skills and Engagement: The ‘MiniTrial’ project: Engaging pupils and students in mooting and other mock courtroom exercises.

Introduction

Education and teaching; the pedagogical side of things that Higher Education Institutions do on a day to day basis has always interested me, although it gradually began to interest me more and more as I completed my own postgraduate certificate in Teaching and Learning in Higher Education between 2008 and 2010, when having to hold discussions with other lecturers and tutors about their teaching methods, and having to complete assessments relating to issues such as innovative teaching and assessment methods, engaging students whether in large or small groups etc.

I’ll be the first to admit that at that stage as a young lecturer, having only started teaching in 2007, this was not something I had until that point put a great deal of thought into. I was taught using lectures, tutorials and seminars therefore I taught using lectures, tutorials and seminars. I was assessed through examinations, essays and oral presentations therefore I assessed my students using examinations, essays and oral presentations.

The problem with this is of course, that whilst developing skills in writing essays and presenting information (as well as the associated research skills) is important and useful, it often does not go far enough in developing specific practical skills that lawyers and criminal justice professionals have to use throughout their careers. Nor does it really engage students with the subject area in any meaningful way beyond basic theory.

The Amsterdam Article of the Future

There is a wonderful article written by Anthony G. Amsterdam, who is a Professor of Law at New York University School of Law for those of you that may well not have heard of him, that was published in the Journal of Legal Education in 1984, stemming from a presentation he made at the National Conference on Legal Education and the Profession – Approaching the 21^st Century, with the title ‘Clinical Legal Education – A 21^st Century Perspective’. I would of course highlight that this is an American paper, however this does not make any difference as the areas from the paper that I would highlight are transferrable to legal and criminal justice educational debates in any jurisdiction around the world. What is particularly strong and relevant within this paper, is that the theme of this HEA conference is about ‘approaching the 21^st century’, the very position that Amsterdam adopted in his writing. This may appear initially to be confusing as the paper itself was published in 1984, however to illustrate, here is the way in which the author explained the issue;

“I can put behind us certain debates that bedevilled legal education at the end of the twentieth century. These debates had to do with so-called skills training and clinical legal education – what they were all about and whether they should be taught in law school…. Now that we are in the enlightened twenty-first century, I can happily assume that they have been resolved… please recall that I speak for twenty first century ears, not twentieth.”[1]

From the above, it should be clear to you that Amsterdam was writing from when he rather idealistically hoped we as educators would have reached almost a Utopian standard, where all problems with law, criminology and criminal justice education have been swept aside. I’m sure you’ll agree that we have of course now reached that point…. or maybe not….

So, with a reflective outlook then, it is useful to analyse this article to assess the key points that Amsterdam discussed, and then try to compare them with the actual reality of the situation as it stands today.

From the outset, it should become obvious where we are going with this when look to the very first point Amsterdam discusses from his ‘twenty-first century’ perspective which is:

“…one of the principal ways in which legal education at the end of the twentieth century was too narrow. In those days the criticism was often voiced that legal education was too narrow because it failed to teach students how to practice law, failed to develop in them practical skills necessary for the competent performance of lawyers’ work. We now realise that this criticism… concealed a deeper more valid one… (That legal education) failed to develop in students ways of thinking within and about the role of lawyers – methods of critical analysis, planning, and decision making which are… the conceptual foundations for practical skills…”[2]

He goes on to say after debunking twentieth century thinking:

“In the twenty-first century we realise, of course, that a major function of law schools is to give students systematic training in effective techniques for learning law from the experience of practicing law.”[3]

Now, Amsterdam then goes on to discuss the merits of clinical legal education and in my opinion everything he said, now some thirty years later was and still is valid relating to all law, criminology and criminal justice undergraduate education. The question I would pose at this moment is:

Do you think that now as we stand in the real twenty first century that we have actually competently addressed and resolved these issues on a consistent basis in HEI’s across Scotland?

I would like to clarify, that of course there will be individual examples of good practice in some individual law, criminology and criminal justice modules of some HEI’s, and so universal failure is not an assertion, however through my research what I am asserting is that the examples of good practice are neither the majority, nor indeed consistently applied in HE in Scotland.

An example of a good practice initiative is the Law Wise Law Clinic at the University of the West of Scotland. This was set up in 2010 jointly by Dale McFadzean, one of the organisers of this HEA conference and various members of the Renfrewshire Law Centre in Paisley, and has been a success with positive feedback from all concerned, including the staff at the law centre and the students who have taken part. For this initiative, students in their degree or honours year of the BA (Hons) Law may apply through competitive interview process for a position at the clinic, and if successful will spend a day a week working in the law centre on both administrative tasks as well as assisting in conducting client interviews. This is a good example of the development of clinical legal skills – i.e. what lawyers actually do on a day to day basis. It is hoped that in the future, similar initiatives may be created for other degrees in similar areas at UWS such as the BA (Hons) Criminal Justice.

The problem remains though, that in spite of being a successful initiative, the practical training is still only one day a week, for one trimester in one year of a degree, at one Institution. Is this really enough?

Some educators may quite rightly point out in the past that various professional and practical skills specific to legal education were covered in what would have been the diploma in legal practice, and then further through CPD, now of course the equivalent argument might be presented in the context of PEAT 1 & 2. I would argue to rebut that however that I firmly do not believe that effectively a ‘crash course’ in legal practice is enough to teach and then develop these skills. Likewise, when it comes to specific practical skills in different areas of criminology and criminal justice, many of these are left until either Master level, or indeed not taught at all and left up to the industries taking on graduate trainees.

To illustrate why I do not believe that these current ideas of leaving practical training to this stage is unsuitable, I would highlight this example: It is well established educational fact that ‘cramming’ before an exam only leads to short term memory retention of the concepts in question, and that only long term learning and contextual understanding actually leads to full retention and ability to properly apply that knowledge. It is my assertion that teaching specific law, criminology and criminal justice skills, and engagement of students with the key concepts of these areas, should be viewed in the very same light as this. A one year ‘crash course’ at diploma or masters level may allow us to assess students and the majority to pass the test, however will they really after this be ready to take on the challenge of going straight into employment within the fields of law or criminal justice with well-rounded and fully developed skills? I do not believe so. As professionals in Higher Education, we can and should be doing better in this regard.

Indeed it seems that those at the top of assessing what makes a graduate suitable for employment specifically in the area of law are beginning to take note of many of the points made here. When I was given the task in 2010 of evaluating a variety of modules for a prospective LL.B degree validation recently at UWS, and having to align those modules with the most recent Law Society of Scotland foundation programme accreditation guidelines, I noted that in the most recent iteration of the criteria (in force since 2010), that specifically within the ‘Skills’ section of the required outcomes which now all qualifying law degrees must meet, these are two of the specific outcomes:

• Apply knowledge and analysis

o   Creatively to complex situations in order to provide arguable solutions to concrete problems by presenting a range of viable options from a set of facts and law.

And;

• In all formats demonstrate an ability to address the resolution of disputes by a variety of adversarial and non-adversarial skills.

So in what way is this all relevant then, and where is this heading? Well let me refer back again to Amsterdam, in conjunction with the criticisms I have asserted of the current situation with law, criminology and criminal justice education in Higher Education. Amsterdam was saying in his position of looking back from a fictional twenty-first century, that we now, actually being in the twenty-first century should realise that students will effectively learn about areas such as law, criminology and criminal justice most effectively by actually practicing the law. One of the main objections that educators and programme designers may well cite is that they simply don’t have access to a facility such as the Renfrewshire Law Centre, who are willing to enter into a collaboration Neither do they actually have the ability to send a large number of their students into any other relevant firm or criminal justice organisation in order to develop these skills relevant to professional practice.

However this is overcomplicating the issue, as of course for many years our students have in fact being developing these skills themselves, albeit often on a purely voluntary basis through their student law and criminal justice societies. In this regard I am referring to specific activities such as mooting and making use of mock court facilities, when the students will prepare and argue out in practice a fictional adversarial case, often based on real life examples. This is an option that I believe should not in fact be an option. I firmly believe that in order to at least on some level make consistent across law, criminology and criminal justice education the need to develop relevant practical skills, that mooting should be built in to the programme design for all qualifying law degrees, as well as any criminology or criminal justice degree where the student should expect upon gaining employment that they will have to regularly liaise in some way with the criminal justice system (or indeed civil courts). At the most basic level, this practice can be built in to tutorial exercises, where students role-play the parts of prosecution and defence lawyers (if law students), or ordinary or expert witnesses (if criminology or criminal justice students). Perhaps even more appropriately, these exercises can even be used as a form of summative assessment for relevant modules (examples being Criminal Law, Evidence, Family Law, Criminology, Criminal justice, Victimology etc.).

Some anecdotal evidence for you about this purely based on my own personal experience: As discussed earlier, I only began fully considering these types of issues relating to law, criminology and criminal justice education to a serious extent in 2010, and the mooting idea was one grabbed my attention. I had just taken over as coordinator of the UWS BA (Hons) Law degree’s third year ‘Law of Evidence’ module, and put in place a strategy leading towards potentially using mooting as a means of summative assessment. In order to see if it would work as part of an assessment strategy however, rather than leap in head first, I decided in that first year to run the mooting exercises as tutorials only. For the module I ran alternate sessions – one week it would be standard problem questions and mooting preparation questions / legal research in teams, the next week it would be the physical moot where I would act in the capacity of the Judge. This rotated so that by the end of the module, the students had taken part in four separate moots, yet still carried out their other necessary problem based examination preparation style tutorial questions.

In order to assess the impact of this format on the module and to help to ascertain if it was viable to carry this forward for assessment I handed out standard anonymous ‘stop, start, continue’ evaluation forms toward the end of the module – and these are just some of the positive responses I received from the students in the ‘continue’ section:

“The moots are a good way of going over the material and are enjoyable. It gives us an opportunity to practice legal skills.”

“Mooting – a good way to put into practice what we have been taught.”

“The use of the moot style set-up is extremely beneficial to students.”

“Having mooting in our tutorials – it allows us to put theory into practice.”

“The structure of the tutorials (mooting) has given us all a good experience.”

“Tutorial structure – this is more enjoyable than to just answer a few questions. It is easy to copy a textbook or lecture notes to give an answer, the mooting requires the student to have an understanding of the module material and allows them to develop their practical skills in relation to the material.”

“The mooting is the best way of learning. I have learned so much from researching and applying areas of law learned within tutorials.”

“Mooting in tutorials. It is a better learning experience for the student and gives the student a better understanding of the law.”

“Continue the mooting in tutorials as I’ve never done this before and it is a good experience.”

From this feedback as well as how smoothly the mooting sessions all ran, I have taken the decision to progress the mooting to form part of the summative assessment in 2011 / 2012, as it was clear that on the basis of my own trial, the students not only felt that they were developing their practical skills, but that they also appeared to be more engaged with both the module material, and also wider areas of the law and education as a result. Of course I could not yet draw any conclusions on the success or failure of the assessment method yet, as this would involve my having to adopt Amsterdam’s position as being in a fictional future in order to do that, however I cannot foresee at this stage any real barriers or problems that don’t also exist with other more generic forms of assessment such as general group work or oral presentations, and can only see the positives to both the student experience and also the development of both skills and engagement.

Engagement

Of course until this point, the coverage has been mainly focussed on skills issues with only really a fleeting mention of engagement until the anecdote about my own teaching experiences. So I would now like to discuss engagement in a more detail.

It may not be the case in all Higher Education Institutions, however I have discussed with acquaintances in other institutions certainly the issue of engagement, or rather disengagement. This can either be lack of engagement with the individual subject, or indeed lack of engagement with the law in a wider context. As such, I think that this is something that should be addressed in a bit of detail.

The main question I would have is: Why is there this disengagement and how can we engage students better?

What I would say is this: Get them engaged earlier!

When pupils move on from high school to become students in FE and HE, in many cases they have some degree of contextual background to base their choice of course and subject area on. Degrees in natural sciences and engineering all have a background in sciences and technical subjects taught in schools. Degrees in English, Mathematics, History, Geography and Languages can all be chosen based on subjects pupils have covered in schools. Even for degrees in management there are a range of both standard grade and higher grade subjects that can be taken at a number of schools in Scotland.

But what about law, criminology and criminal justice? Where is the contextual background for students who decide to go on and study any of these areas once they leave school? I would assert that the majority of law, criminology or criminal justice issues that students will have encountered before attending university will have been more relating to law enforcement and courtroom dramas such as Taggart, CSI, Law and Order etc. rather than them basing their decision to study their chosen area on real life relevant and accurate representations of the varied aspects of the world around us in these areas. Once many students actually then begin their undergraduate studies, it is not uncommon to see many visibly detach and disengage as they realise that law, criminology and criminal justice are not all about murders, solving crimes at a fast pace, and shouting in a courtroom, but that there are many more intricate, though perhaps in the mind of a young law student not ‘exciting’ aspects to these areas.

This disengagement is simply wrong, and is something that must be addressed.

There are two initiatives that spring to mind that have taken steps to alleviate this problem in some way, one in England and Wales, and one in Scotland.

In England and Wales there is the ‘Lawyers in Schools’ initiative, which has been running now for twenty years. The policy statement relating to this initiative is:

“Lawyers in Schools places legal professionals in the classroom to work with young people to develop their awareness and understanding of the law.”[4]

In short, there is a formal structure in place at this organisation whereby specific law firms are paired with specific schools whereby the activities are:

“We train the lawyer volunteers, who in turn visit the school that we partner them with. In teams, the volunteers lead small groups in six hour-long, interactive sessions on various aspects of the law.

Our education experts write the resources that the volunteers use. These are designed to foster debate and discussion, as well as to encourage critical thinking from the young people.

The sessions cover a range of legal topics and draw on the volunteers’ legal expertise. We support the volunteers throughout the programme, monitor and evaluate throughout the year and provide a full brokerage service between the business and the school.”[5]

In addition to these activities, the Lawyers in Schools initiative also run two annual mock trial competitions for school children, the first is the Bar National Mock Trial competition, always based in a criminal law context, and the second is a Magistrates’ court mock trial competition.

So this initiative is in effect carrying out what I would propose all HE institutions ought to be doing in legal education i.e. teaching the theory, but crucially also encouraging the practice of the specific legal skills relating to that theory.

However in England and Wales this is not enough, as there is currently only coverage of about twenty law firms and eight hundred school pupils involved at this stage, a drop in the ocean comparative to the number of children in School up and down the country.

In Scotland, we have the Mini Trial initiative, which was founded by the Hon. Lord Kinclaven, and is described by the Faculty of Advocates as:

“…an enjoyable way to learn about the Scottish legal system. They are mock court cases which secondary and primary school pupils act out, using materials devised by one of Scotland’s senior judges, the Hon. Lord Kinclaven.”[6]

The structure is somewhat similar to that of the Lawyers in Schools initiative and is described in this way:

“A single class or school can put on a MiniTrial.

There are also inter-school events. These take place regularly in real court-rooms at Airdrie, Ayr, Dundee, Edinburgh, Kilmarnock & Paisley through co-operation with the local Education Departments, Sheriffs, Sheriff Clerks, Procurators Fiscal, solicitors and advocates. It is hoped to extend them to other areas.

The Faculty of Advocates helps schools to put on MiniTrials, by providing advocates who volunteer to visit schools, offer guidance, and sometimes play the part of the judge.”[7]

In addition to the actual Mini Trial courtroom exercises, there is a regular blog maintained that discusses many areas relevant to Scots law, criminal justice, legal education, and school education issues in general.

The success of these initiatives in England and Wales, and also Scotland, appears to be very high as the feedback from all concerned (pupils, teachers, lawyers and criminal justice professionals) has been very positive, however it has to be stressed that these initiatives are still only reaching a small proportion of schools and school pupils.

The reality though, is that all of these great efforts are still not enough, and I would assert the idea that to put law, criminology and criminal justice on an even footing with the various examples of subjects that link from school to further and higher education such as mathematics, English and sciences; education similar to what is currently being done on a small scale with initiatives such as the MiniTrial project should in the future be provided for within the national curriculum. Only by providing the correct context of law, criminology and criminal justice to the next generation and those that follow will we ensure that all (or at least a healthy majority) of our students will be capable of fully engaging from day one of their undergraduate studies. And combining this early education with uniform, skills based approaches to teaching, learning and assessment as I have suggested with the use of mooting and mock court exercises would in my opinion be the ideal way of tackling both the skills and engagement deficit that can be found in law schools up and down the country. Although in conclusion, perhaps I am being a little bit ‘Amsterdam’ in my optimism that this may happen in the near future.

[1] Amsterdam, Anthony G.; Clinical Legal Education – A 21^st Century Perspective, 34 J. Legal Educ. 612 (1984)

[2] ibid

[3] ibid

[4] Lawyers in Schools Website, Citizenship Foundation – Individuals Engaging in Society, September 2011, http://www.citizenshipfoundation.org.uk/main/page.php?377

[5] ibid

[6] Mini Trials and the Faculty of Advocates, The Faculty of Advocates website; http://www.advocates.org.uk/minitrials.html

[7] ibid