Law Review

22nd September 2020

The Pendulum of Private and Public Interests: Striking the Balance with New Technology

Elliott Pardoe | Second year (LLB) Hons Student

R (on the application of Edward Bridges) v Chief Constable of South Wales [2019] EWHC 2341 (QB)

The law must always keep pace with new and emerging technologies. In this particular case, AFR (Automatic Facial Recognition), which goes beyond regular CCTV by comparing the biometrics of an individual against an image, was used. When comparing an image, a ‘similarity score’ is generated which is a numerical value indicating the likelihood of the two faces matching. At the time of the case, AFR had been used by the police in Cardiff on several occasions and the Claimant contended the illegal deployment of AFR in their vicinity on 27 March and 21 December 2017, because it contravened Article 8(1), the right to respect for one’s private life of the European Convention of Human rights.

Novel instances such as this highlight the need to balance the protection of private interests against public interest when harnessing new technologies to aid the detection and prevention of crime. In such cases, there is a need to strike the right balance, as permeated throughout the judgment. In this case, the court noted Lord Styne’s (concerning DNA retention) emphasis on the public benefits for law enforcement agencies in using new technologies, and that law enforcement agencies should be able to take full advantage of the opportunities presented (reference). However, Lord Reed’s counter observation of the growing concern in recent times about the surveillance, collection and use of personal data in Western democracies was also noted. Given the use of such data by more totalitarian countries such as China, this concern is well-founded.

On 27 March outside the Motor Point area in Cardiff, AFR was deployed. The defence exhibition which took place previously had attracted disorder and individuals that caused criminal damage, as well as making two bomb hoax calls. AFR created a list of wanted individuals, categorised by colour. For instance, red (for serious crimes), amber (wanted on warrant) and purple (suspected of committing a crime). Scanned faces would then be compared against AFR’s list.

In this case, the Claimant stated that he was unaware that AFR was in use and unaware that his face was being scanned. However, it was not possible to check if his face was scanned because if his facial biometric information was processed, the system would have identified him as not a person of interest, and thus immediately deleted his biometric data from the system. Furthermore, the officers involved provided the public with information of what was occurring, as well as informing people on social media.

The question before the court was whether this engages Article 8(1), the right to privacy and family life. Their lordships drew attention to Wood, which rejected that “the bare act of taking pictures” amounted to an interference with Article 8(1) rights. Furthermore, in the context of police activity, it was suggested the activity complained of was “expected and unsurprising”, thus not breaching Article 8(1). Despite that, it was distinguished that AFR goes beyond taking mere pictures as it captures an individual’s biometric data which is then further processed, by comparing it to the watchlist database. Such a use of the Claimant’s biometric data would go well beyond the “expected and unsurprising,” thus engaging Article 8(1).

It was established that the police have a basis in law for using AFR. Nevertheless, it had to be decided if the interference to the Claimant’s Article 8(1) rights was justified under the four-part test in Bank. It was held that the use of AFR was for a legitimate aim – to justify interference with the Claimant’s rights under Article 8(1) – and that the use of AFR is rationally connected to that legitimate aim. The question then became whether a less intrusive measure could have been used without compromising the objective, and if a fair balance has been struck between the rights of the individual and the interests of the community. As AFR was deployed in a limited open and transparent way, the intrusion of the Claimant’s Article 8(1) rights was also very limited. Furthering this notion, any unwanted individuals who were scanned would have instantly had their data deleted, mitigating any interference with the claimant’s Article 8(1) rights. Consequently, the use of AFR did not amount to a disproportionate interference with the Claimant’s Article 8(1) rights, with any interference being limited, due to the near-instantaneous discarding of the Claimant’s biometric data. As such, the use of ARF was justified.

The court noted that given AFR’s current use they are satisfied that it is being used proportionately. However, the use of AFR no doubt raises questions as to the balance between individual rights and that of the community, which will no doubt be revisited as technology further develops.

Article

22nd September 2020

The Power of Data

Divya Varghese | Second Year LLB (Hons) Student

Every second 40,000 searches are being conducted on Google. Every minute 31.35 million messages are being sent on Facebook. Everyday, 95 million photos are uploaded onto Instagram, while a staggering 2.5 quintillion bytes of data is being created right now. Within a click of a button we transfer so much data but often underestimate its capability. In recent times, the false consciousness of ‘privacy’ was highlighted, and our own data was weaponised, manipulated and misused to make democratic decisions.

We have always been aware of our data never being free from invasion of privacy. It has been justified by keeping us safe through ‘government surveillance’. However, we did not know the extent to how our data was being sold by tech giants and used by firms to make political decisions; a form of psychological warfare.

Cambridge Analytica (CA) was a political consulting firm. It was founded in 2013 and was a branch of the Strategic Communications Laboratories (SCL). The company claimed that it tailored messaging by extrapolating personalities of people through surveying to persuade voters.

The exploits were first reported in 2015 by The Guardian. The report claimed that Ted Cruz’s political campaign was using psychological data of millions of Facebook users without their permission. It is worthwhile to note that Facebook also owns Instagram and Whatsapp. The degree of ‘behavioural microtargeting’ was only revealed in 2018 by a former CA employee, Christopher Wylie. He provided first-hand testimony as well as documents revealing how user data from Facebook was deployed in political campaigns around the world, particularly Trump’s campaign and Brexit.[1]

Facebook allowed researcher Aleksander Kogan from CA to have access to 87 million of its users’ data. This was achieved through a Facebook app called ‘thisismydigitallife’ that was formatted as a quiz. Users were paid to take part in this personality quiz, but it also collected data from the Facebook friends of the quiz takers. The data included personal information, the pages people liked, as well as private messages. The data was scrutinised, and targeted ads were shown particularly to the ‘persuadables’; this was a demographic of people in the middle who were not sure who to vote for. These ads involved a mass focus on Hillary Clinton’s controversies, anti-immigration and pro-Trump propaganda. In 2019, new evidence showed that they had also worked on the ‘Leave’ campaign during Brexit by running the website and using targeted advertisements (reference). Further investigations showed that CA also had major influence in political campaigns globally: more than 100 campaigns in over 30 countries such as India and Trinidad.

Facebook failed to disclose the breach and Mark Zuckerberg was called to testify before Congress. He argued that Facebook was not aware that user data was being misused. New privacy policy and strict regulations were introduced, albeit too late. CA strongly denied all the allegations but both SCL and CA have since gone into liquidation. The triggering factor was an undercover documentary conducted by Channel 4 that exposed CA bosses explaining how the organisation operates (reference). This included: scale of their work in Trump’s campaign, fake identities to avoid investigations, untraceable propaganda, honey trapping and bribery.

Many predictions have been made in terms of data in the future. One thing that is clear is that almost every industry relies on it and nothing is immune to it. It is not that data itself is problematic, but rather it is the analysis of it, that makes it an issue. This misconduct has shown a new wave of crime in which no one is held responsible. Data can be created, destroyed and transformed; it can be the solution but in the wrong hands, it can also be a weapon. There needs to be legal developments in this area to ensure protection is at the centre of it.

This scandal has transformed the relationship between tech and politics. It has also made the public aware of misinformation and there has been a rise in mistrust in social media. The truth is that, social media is forever growing and that digital footprints that already exist are hard to erase. A recent Netflix documentary The Social Dilemma showed former engineers from tech giants addressing the disturbing influence of algorithms in creating polarisation in society through businesses often making profit upon disinformation. The examples include conspiracy theories regarding the coronavirus, 5G, climate change, Pizzagate, flat-earthers etc. The amplification of mere hearsay via these tools of persuasion are blurring the lines of what the truth is. Politicians are also engaging in the ‘spread of manipulative narratives with phenomenal ease’ as seen in Myanmar because such platforms allow it. Therefore, there is a lack of control over who we are and what we believe in, and it causes a discord in society. The power of data is the absence of ours.

[1] BBC, ‘Cheating may have swayed Brexit poll – Christopher Wylie’ (BBC, 2018) <https://www.bbc.co.uk/news/uk-politics-43558876>; and Alex Hern and Dan Sabbagh, ‘EU referendum won through fraud, whistleblower tells MPs’ (The Guardian, 2018) <https://www.theguardian.com/uk-news/2018/mar/27/brexit-groups-had-common-plan-to-avoid-election-spending-laws-says-wylie>

International Law Explained in Operational Terms

Article

22nd September 2020

International Law Explained in Operational Terms

Dr Kenneth Kang | Senior Editor of BULR

The question of ‘what is valid law’ is perhaps one of the most important questions for a lawyer. The problem with this question is that it rarely provides clear, concrete answers. Take the example of the upstream-downstream paradox from transboundary rivers where international lawyers are often employed to secure the national interests of states. In these circumstances, the upstream state traditionally advocates for the free utilisation of water within its territory, while the downstream state advocates for the waters full continued flow. [1] Such conflicting expectations raise the difficult question: how can the upstream-downstream paradox be best managed?

When faced with complex challenges, perhaps the more pressing issue is to better understand the present situation by asking the more preliminary question, ‘how can one improve observations’, as opposed to jumping ahead and asking ‘what can be done’. Admittedly, this reflective mode of analysis does not lead directly to better principles, guidelines or blueprints for action. But what it can do is bring about a shift in attention and sensitivity to issues of concern – and this is accomplished by understanding the manner to which legal processes form part of society in operation.

Significantly, operational is understood here not as a question of what is valid law and its passive unending final answers, but rather the more actively variant question of how the international legal system proceeds in determining the law’s validity? To answer this question, it is necessary to shift our frame of thinking from the subjectivities of personal opinion, and offer instead an analysis which can guarantee at least that one’s observations are ‘correctly false’, (e.g. to investigate what is not true in order to deﬁne legal processes more speciﬁcally). [2]

This certainty in the analysis can be acquired by examining particular reoccurring patterns within society, which of relevance here, is the law’s foremost reoccurring priority: the priority not so much to end disputes, nor to achieve specific purposes, but rather to create a world of expectations so that state practices can continue to be seen as either lawful or unlawful (otherwise the alternative would lead to absolute uncertainty).

In practice, this functional priority of law is operationalised by the conditional programme, ‘if X then Y’, or more specifically, ‘only if fact X is given, can the decision be made Y is legal or illegal’. The advantage here is that this programme underpinning all legal treaties is that it enables the law to prevent any future facts not accounted for at the time of the agreed treaty from being relevant to the legal/illegal decision. Hence, this is how the law offers states legal security, stabilises their expectations, and pacifies enduring conflicts. [3]

That said, in the event a treaty agreement produces more problems for one state than another (e.g. think of a water-sharing treaty with fixed water allocations), this does not mean that the law simply legitimises the status quo. Rather, it handles the problem by employing a purposive programme, ‘to decide Y for the purpose of achieving X’. Significantly, X expresses the expectation of goals such as ‘equitable utilisation’, or the ‘balancing of interests’ which are applied irrespective of treaty systems regulatory conditions. The advantage here is that this enables the law to reintroduce uncertainty into the established treaty systems, so as to induce learning pressures upon the relevant actors, and thus facilitate a politics of understanding.

Indeed, it is precisely this dual combination of the law’s conditional and purposive programmes which helps explain the manner to which law regulates conflicting expectations – something, I propose, an operational description can offer conceptual clarity to improve the way we account for law’s regulation of society.

[1] Kenneth Kang, ‘Making Paradoxes Invisible: International Law as an Autopoietic System” [2018] International Journal of Law in Context 315

[2] Kenneth Kang, ‘On the Problem of the Justification of River Rights’ (2019) 44 Water International 669

[3] Kang (n 1)

Article

21st September 2020

The (In)Stability of Network Neutrality

Nezhat Suzann Habib | Public International Law (LLM) Student

Net Neutrality and Freedom of Expression

Network Neutrality is known as “The First Amendment of the Internet”. [1] It is a system which facilitates the neutral and unbiased movement of data packets in the virtual world irrespective of its content, destination, or source. Activities such as: blocking, throttling, paid prioritisation, filtering specific content or applications are some activities that are deemed to be a breach of network neutrality.

International human rights law is strengthened by network neutrality and due to its presence, freedom of expression and individual human rights are protected and monitored under the umbrella of Human Rights Law. These rights have led to many societal issues being highlighted by individuals through digital media.

Global phenomena such as Black Lives Matter (referred on the internet as #blacklivesmatter) had nearly a million tweets before the mainstream media around the world began to investigate and report about various issues such as the protest in Ferguson, Missouri following police brutality by authorities and the consequent murder of Mike Brown.[2] Other movements such as Me too (referred to on the internet as #Metoo) attracted huge global attention. The movement allowed the public voicing of sexual assault survivors and can be credited for building a culture of believing the victim. It paved way for individual persons to be able to accuse powerful figures without fear of retribution. Celebrities such as Harvey Weinstein, Hollywood producer, was a prime example of this. Accusations against Harvey Weinstein of multiple sexual assaults resulted in the ‘The Women’s March on Washington’ after Trump’s election which is considered to be among the most prominent pro-women marches in history. Other key issues that are highlighted by social media and the presence of an open and largely unfettered internet platform include problems regarding the environment. This movement was spearheaded by Greta Thunberg, who is credited for initiating climate awareness and for bringing people to protest for climate policy in unforeseen numbers. Greta Thunberg has managed to globally transform and raise an anxious attitude towards climate change and has been instrumental in emphasising the value of sustainable growth. This phenomenon emerged as a result of network neutrality. It can be reasonably assumed that due to network neutrality and its function, Greta’s twitter message reached its audience without being blocked or filtered.

Net Neutrality, Netflix and Comcast

In 2010, the issue between Netflix and Comcast highlighted the prominence of network neutrality on the communication potential of the internet. During this time, Comcast collaborated with Blockbuster to challenge Netflix’s stronghold of the digital video streaming market.[3] The partnership did not last and as a consequence, Comcast decided in 2014 to charge Netflix with additional fees to uphold its high streaming quality and undisrupted service users. Netflix counter-argued that this was a violation of network neutrality and argued that it was illegal for Comcast to discriminate in this manner against Netflix.

As the dispute between Comcast and Netflix continued, consumers experienced lower quality and slowdown of Netflix streaming service. Comcast contested that Netflix is liable to pay higher fees as a percentage of data is used by Netflix on Comcast’s network. To counter-argue this, Netflix went to FCC and named the issue as ‘interconnection’, which in reality was a “public relations war” in lieu of Comcast’s network fee. The FCC, in 2015, considered Netflix and acknowledged ‘interconnection’ as a violation of network neutrality.[4] To sum up, eliminating network neutrality leads to access to digital content by the users based on the financial relationship one has with the ISP, while completely ignoring the availability of the information.

The issues regarding network neutrality does not only plague the developed world. Developing countries also battle with finding the optimum balance between maintaining the integrity of the internet, and, socio-political issues of their particular country. A prime example is the digital blackout that occurred in Kashmir, India. On 5 August 2019, the presidential decree revoked Article 320 of India’s constitution. This assured exceptional rights to the Muslim-majority state. The effects of the digital blackout have had severe negative consequences which resulted in social disorder, specifically banking operations were hit very hard from the action. People had no access to complete simple tasks such as pay their utility bills through online services. Other groups such as students and businesses suffered immensely through this internet shutdown as it took away their reliant resource.

The Way Forward

The process of achieving the standards of open and free network neutrality would only be possible if all governments and policymakers come together to ensure that network neutrality stays open and free. By resolving this issue, it will theoretically open the gates to tackle other related issues which would help individuals and corporations. For example, the #blacklivesmatter, #Metoo and environmental problems, and other issues can be highlighted which are only apparent because of network neutrality protecting and giving the consumers these possibilities on a non-discriminatory platform.

[1] Andrew Murray, Information Technology Law: The Law and Society (3rd edn, OUP 2016)

[2] Gigi B Sohn, ‘Social Justice or Inequality: The Heart of the Net Neutrality Debate’ (2019) 80 U Pitt L Rev 779

[3] Alison Novak and Melinda Sebastian, Network Neutrality and Digital Dialogic Communication: How Public, Private and Government Forces Shape Internet Policy (Routledge 2018)

[4] ibid

New Year’s Eve Celebrations Without the Fizz…

Article

20th December 2019

New Year’s Eve Celebrations Without the Fizz…

Martine Hardwick | Lecturer in Law, PhD Candidate

Introduction

On 31^st December 2019, Champagne will flow freely in England and Wales for opposite sex couples who will finally be able to register their civil partnerships after the long campaign led by Rebecca Steinfeld and Charles Keidan. Up until now, civil partnerships were not available for heterosexual couples. It was something reserved for same sex couples. This will change on 31^st December 2019, signalling celebrations amongst couples of the opposite sex. However, the mood will still be low amongst cohabitants. Despite longing for more protection and fairness from the law, co-habiting couples will not be presented with the opportunity to celebrate on New Year’s Eve as they will still be bound by the strict rules of formation and dissolution which mirror those of marriage.

The Law

The Civil Partnership Act 2004 was enacted to enable same sex couples who could not marry but wished to commit to each other in the way married couples do, to have access to responsibilities and rights akin to those which arise on marriage. It was a huge step forward for same sex couples although referred to as a mere “consolation prize” in Wilkinson v Kitzinger (2006). It was not until 2013 that the (Same Sex Couples) Marriage Act finally brought equality amongst all sex couples.

Whilst hailed as a victory, the 2013 Act however proved more advantageous to same sex couples who could then choose between marriage or civil partnership – a choice not open to heterosexual couples. May be, Civil Partnerships could have been abolished at that time; instead it led to a feeling of inequality of treatment amongst couples like Steinfeld and Keidan (2017), a heterosexual couple, who, because of their deep-rooted and genuine objections to marriage, were still not able to register their relationship as civil partners to each other because they were not of same sex. Their Supreme Court win in 2018 eventually led to secondary legislation being approved in the House of Lords on 5^th November 2019 and will become law on 31^st December 2019.

This recent change to the law will undoubtedly spark celebrations on New Year’s Eve as heterosexual couples make their way to the registry office for registering a Civil Partnership for the first time in history.

What about cohabitants? Should they celebrate or commiserate on New Year’s Eve?

Cohabitants are the most vulnerable and fastest-growing type of family in the UK in the 21^st century. Considering their relationships are the most likely to breakdown at a time when they are usually parenting young children, they should be given the opportunity to have the legal redress they deserve to avoid the harsh consequences they endure on separation. If they are not ready to marry or make the choice not to marry because of the constraints of the law or the fear of committing to too many obligations, cohabitants are not going to be attracted by a Civil Partnership which offers the same complexities as marriage.

The whole point of Civil Partnership is that it should be easy, but it is not. In fact, it produces the same challenges to those in a marriage. This was highlighted in the case of Owens v Owens (2017) when the Supreme Court ruled in July 2018 that Mrs Owens should remain wrapped up in a loveless marriage for another 5 years as she did not pass the test for “Unreasonable Behaviour”.

Therefore, even if the good news on New Year’s Eve are a cause for celebrations for some couples, is it not really a missed opportunity for cohabitants? Or to frame it differently, how could Civil Partnership, in its current form, attract cohabitants who wish to be legally recognized but without the burden of long- established rules?

Bonjour Le PACS?

Looking at the popularity of the Pacte Civil de Solidarité (PACS) in France, it seems as if this could be a very suitable option to bridge the gap between marriage and cohabitation.

Le PACS is a civil union which was created in 1999 to bring equality between same sex and different sex couples. It is simple, cheap, clearly explained and fair. This is equality from the beginning. Its supporters welcomed the reforms of la loi du 23 juin 2006 (the law of June 2006) which simplified the system by putting an end to the presumption of “indivision” (shared assets) in favour of “séparation des biens” (separation of assets) and giving parties the choice to contract how to hold their assets.

Unlike the complexities of Civil Partnership, it is quick. The parties can choose to register Le PACS at the “mairie” (registry office/townhall) of their residence where “le maire” (mayor) who, after checking the paperwork, will return the signed joint declaration to the parties with a registration number. Alternatively, the parties can register with their “notaire” (notary) if they wish to have a convention drafted at the same time.

Le PACS is also a cheap option. It does not cost anything if registered at the “mairie” and is very affordable if certified by the “notaire”.

Finally, the termination of the PACS is as simple as the registration and even better, it can be done jointly or unilaterally without the need to fabricate lies, find fault or experience lengthy acrimonious damaging and expensive litigation as for divorce or dissolution. Once the application for dissolution of the PACS is handed to the “mairie” or the “notaire”, where the PACS was recorded, the dissolution will have immediate effect.

Both parties will then be responsible for an amicable private arrangement and in the absence of a convention, will get their own assets back (séparations des biens). So far, so good.

What are the rights and obligations of the PACS then?

Le PACS is available for all cohabitants who are not blood related, already married or “pacsés”. Once “pacsés” (having registered their PACS), the parties can enjoy tax and health benefits and despite being financially responsible for the duration of the PACS, have no duty to maintain each other after the dissolution.

Le PACS gives couples an opportunity to register a civil union which is clearly tailored to their wishes either as a preliminary stage to marriage or as a status on its own.

Conclusion

As previously stated, there is an increase of young people living together, often with children, but not yet ready to engage in marriage, while still wanting to form a committed relationship. In this context, it is unlikely that Civil Partnerships, as they stand, provide the requirements and flexibility to meet the needs of the modern families.

Introducing a scheme similar to Le PACS borrowed from the French legal system has to be the way forward giving cohabitants protection while respecting their autonomy.

If Steinfeld and Keidan have paved the way towards legislation to bring equality between same sex and different sex couples, then this is victory. However, if the difference between marriage and civil partnership is in name only, then it is a wasted opportunity.

Even if the joyful and exciting New Year’s Eve celebrations go in full swing to the big countdown into 2020 for some, they will definitely go flat for others.

Mind Your Words: Entire Agreement Clause Fails to Act as Bar to Misrepresentation Claim

Article

30th May 2019

Mind Your Words: Entire Agreement Clause Fails to Act as Bar to Misrepresentation Claim

Leigh Callaway and Thomas Wilkinson | Senior Associate at Fladgate LLP; BU Placement Student and Administrator at Fladgate LLP

Entire Agreement Clause and Misrepresentation Claims

On appeal to the High Court, it was held that an entire agreement clause that did not expressly exclude liability for misrepresentation was not effective in excluding misrepresentation claims. [1]

Background

Pursuant to a share purchase agreement, NG Football Investments Limited (the “Buyer”) purchased the whole of the issued share capital in Nottingham Forest Football Club Ltd (the “Club”). The Club was heavily indebted, and as a result the seller, NFFC Group Holdings Limited (ultimately owned by Mr Fawaz Al-Hasawi) (the “Seller”), inter alia agreed to indemnify the Buyer against any liabilities of the Club outstanding to the extent they exceeded £6.6 million. While the transaction was under negotiation, the Seller provided various documents to the Buyer including a spreadsheet setting out what was said to be the liabilities of the Club, totalling £6,566,213.

The Buyer, however, asserted that the liabilities were in excess of £10 million and pursued a claim both under the contractual indemnity and for misrepresentation on the basis that the spreadsheet contained a representation as to the liabilities of the Club which was false and which was relied upon by the buyer.

First Instance Decision

At first instance, Master Bowles interpreted an entire agreement clause within the share purchase agreement as prohibiting the misrepresentation claim, thus striking that claim out.

Distinguishing from previous precedent [2], Master Bowles gave considerable weight to the contractual context of the agreement, namely, explicit provisions which provided for specific claims which may be brought, including claims under the indemnities referred to, which were subject to differing regimes for notice and time limits. He viewed these extensive provisions as forming ‘an important part of the contractual matrix’ [3] and believed that the entire agreement clause, read in light of other provisions of the agreement, demonstrated the parties’ intent to exclude claims arising outside of this contractual framework (including the claim in misrepresentation in the present dispute).

The High Court Decision

Whereas Master Bowles agreed in principle that the court is entitled to have regard to all the provisions of an agreement in construing any of them, he did not agree that contractual language providing for one type of claim carries an implication that all other types of claim are intended to be excluded. Ultimately, what must be shown is clear wording establishing an intention to go beyond defining the scope of the contractual agreement and exclude other claims; the mere possibility that the words used might extend to matters that could found such other claims would not be sufficient. Although creating a framework for claims may be sensible, the court must take care to avoid construing a contract to provide a better bargain for one party than the one that had actually been made.

Conclusion

The decision restates the prevailing view that: ‘what must be shown is clear wording establishing an intention to go beyond defining the scope of the contractual agreement and exclude other claims, the mere possibility that … words used might extend to matters that could found such other claims is not sufficient.’ [4] Further, the case implicitly recognises the increasingly literal approach the courts will take to contractual interpretation, refusing to interpret clauses in accordance with what makes the most commercial sense and instead seeking to adopt a ‘unitary’ approach which neither punishes astute parties nor rewards foolish parties.

Unravelling the meaning of dishonesty: Card Games in Casinos

Article

13th November 2018

Unravelling the meaning of dishonesty: Card Games in Casinos

Lauren McNab and Simon Curry | Second Year LLB (Hons) Student

Ivey v Genting Casinos UK Ltd [2017] 3 WLR 1212 (SC)

Over two days in August 2012 a professional gambler, Mr Philip Ivey, went to Crockfords Club Casino where he played a card game – Punto Banco, a variant of Baccarat. Due to being an advantage player he deployed a highly skilful method of edge-sorting, which relies on noticing design irregularities on the backs of playing cards. This technique, if used correctly, has the effect of greatly improving your chances of winning. Mr Ivey believed edge-sorting was an honest technique that ought to be known to the casino and the casino could protect itself against it. In this circumstance, My Ivey created an air of superstition to persuade the croupier to use the same pack of cards and to turn ‘lucky’ cards through 180 degrees. This increased the odds in his favour and eventually accumulated his winning to £7.7 million. However, Crockfords’s practice after a large win, such as this case, is to conduct an ex post facto investigation to work out how it occurred. Therefore, following examination of the recordings of the play, the investigators identified the technique used. This resulted in the casino operator refusing to pay and refund Mr Ivey’s deposited stake of £1 million. Furthermore, nobody at Crockfords had heard of edge sorting before.

The grounds for the refusal of payment were that no game of Punto Banco had been played, since the rules required the cards to be dealt at random. By edge sorting, Mr Ivey already knew what the cards were likely to be and thus diminished the requirement of the cards being dealt randomly. There was an implied term that Mr Ivey would not cheat. When Mr Ivey deposited a stake at the casino and played a card game, he entered a contractual relationship with the casino, which requires that he would not cheat, and therefore by edge sorting that term had been broken. It can be suggested then that Mr Ivey had committed the criminal offence of cheating under section 42 of the Gambling Act 2005[1], by interfering with the game for his benefit.

As Genting Casinos refused to pay, Mr Ivey brought an action for the sums which he could have won, claiming that he did not commit the suggested offence because he had deployed a perfectly legitimate advantage. In strengthening his argument, Mr Ivey referred to the ordinary meaning of ‘cheating’ as requiring a dishonest state of mind. Dishonesty can be seen in a plethora of offences, including theft. In such offences, dishonesty is codified under section 2 of the Theft Act 1968[2], but there is still a lack of a complete statutory definition of dishonesty, and therefore a gap exists.

The case of R v Ghosh [1982][3] outlines a two-stage test for dishonesty. The first stage is whether the conduct issued was deemed dishonest by the ordinary standards of reasonable and honest people; and, if yes, the next limb is whether the defendant realised that his conduct was, by those standards, dishonest. In relation to the subjective element Mr Ivey honestly believed that the steps he took were legitimate and lawful, and thus dishonesty was not shown.

However, in Ghosh it was held that cheating does not require dishonesty, and thus the subjective element of the Ghosh test was overruled. It was stated that Mr Ivey had cheated simply because he had acted deliberately to gain an unfair advantage and that his opinion was irrelevant. For example, section 42(3) of the Gambling Act 2005[4] provides that cheating may consist of deception or it may consist of interference in the process of the game. Therefore, the Supreme Court said that Ivey’s actions were ‘positive steps’ to fix the deck, and therefore amounted to cheating, regardless of what he had believed. This inevitably shows that Mr Ivey interfered in the process of the game and his conduct falls within the ordinary meaning of cheating.

The courts then seized the opportunity to highlight the issues of the Ghosh test; the second limb has the unintended effect that ‘the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted’; it sets a test out that the jurors often find puzzling and difficult to apply; and there is no logical or principled basis for the meaning of dishonesty to differ in connection to civil action or criminal prosecution. In his judgment in Ivey, Lord Hughes held that the test in Ghosh ‘does not correctly represent the law and that directions based upon it ought no longer to be given’.[5] It is suggested that all cases should now adopt the civil case approach, found in Barlow Clowes International Ltd v Eurotrust [2006], which requires only an objective test of dishonesty by ‘ordinary standards’, and thus makes the subjectivity of dishonesty less paramount.[6] It is notable that there is still subjectivity in that the fact-finding tribunal must first ascertain the actual state of the individual’s knowledge or belief as to the facts. ‘When once his actual state of mind a to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people.’[7] Leveson LJ provided in DPP v Patterson [2017] that ‘given the terms of the unanimous observations of the Supreme Court expressed by Lord Hughes, who does not shy from asserting that Ghosh does not correctly represent the law, it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.’[8] In Starglade Properties Ltd, the Chancellor summarised the effect of Barlow (at [25]): ‘[t]here is a single standard of honesty objectively determined by the court. That standard is applied to specific conduct of a specific individual possessing the knowledge and qualities he actually enjoyed.’[9]

The Supreme Court in Ivey held that ‘there could be no logical or principled basis for the meaning of dishonesty to differ between criminal and civil cases’, illustrating the move to a unified dishonesty test.[10] The test created in Ivey for dishonesty was, however, obiter dicta, and therefore does not strictly bind lower courts. There is, of course, a discretionary power to allow judges to apply Ivey, and as Leveson LJ and other authorities have expressed, this is exactly what the courts plan to do.

If courts now decide to take precedent from Ivey and solely apply the objective limb, dishonesty may become easier to prove. In this context, Ivey assists in clarifying the law, more so than reforming the law. The view has been illustrated in court now to be that the judgment represents the current state of criminal law. Sir Brian Leveson in DPP v Patterson [2017] (at [16]) stated ‘It is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.’ [11] Ivey may have addressed some of the issues with Ghosh by removing the subjective standard but the term ‘dishonesty’ is still undefined to the jury, leaving potential for widespread variation.

Ghosh was not new to being criticised, with Professor Griew providing strong opposition to the objective limb, arguing the issue of the ‘Robin Hood defence’.[12] This constitutes that the defendant could claim their actions were just, and thus legal in the sense that it was benefitting the community. Griew has suggested that there is no ‘ordinary standard’ of honesty for a jury to rely on since each juror uses their own individual standards, and that there is no existence of a relevant community norm.[13] This issue will be exaggerated with the removal of the subjective limb in Ghosh, and could lead to juries finding more acquittal on equitable grounds.

It must be noted that Lady Hale, at an event at the University of Bristol, has voiced doubt that the Supreme Court has the power to enforce the judgment in Ivey, as it created a common law dishonesty definition but really should be a statutory definition.[14] Instead, the UK Parliament should have their chance to alter the law on dishonesty. Hale stated ‘whether a particular state of mind in a particular set of factual circumstances constitutes dishonesty should be a question of law, not a question of fact for the magistrates or jury.’[15] This may suggest a call for the creation of a statute to provide clarity, as the standards of magistrates or juries fluctuate in their level, creating undesired inconsistency.

[1] Gambling Act 2005, s 42

[2] Theft Act 1968

[3] R v Ghosh [1982] 3 WLR 110 (EWCA)

[4] Gambling Act 2005, s 43

[5] Ivey v Genting Casinos UK Ltd [2017] 3 WLR 1212 (SC) [74]

[6] ibid

[7] ibid

[8] Director of Public Prosecutions v Patterson [2017] EWHC 2820 (Admin) (DC)

[9] Starglade Properties Limited v Roland Nash and others [2010] EWHC 148 (Ch)

[10] Ivey v Genting Casinos UK Ltd (n 6) [62]

[11] DPP v Patterson [2017] EWHC 2820 (Admin)

[12] Edward Griew, ‘Dishonesty: The Objections to Feely and Ghosh’ (1985) Criminal Law Review 431

[13] ibid 344

[14] Max Walters, ‘Hale says test of dishonesty may be question for parliament’ (The Law Society Gazette, 7 March 2018) <https://www.lawgazette.co.uk/law/hale-says-test-of-dishonesty-may-be-question-for-parliament/5065120.article#commentsJump> accessed 12 November 2018

[15] ibid

Article

13th November 2018

Gross Negligence Manslaughter

Thomas Wilkinson | Second Year LLB (Hons) Student

R v Zaman [2017] EWCA Crim 1783

The victim (Paul Wilson) purchased and ate, a takeaway meal from the defendants (Mohammed Khalique Zaman) restaurant. Mr Wilson had specifically stated his allergy to nuts, and the waiter who served Mr Wilson assured him the sauce contained no nuts. However, tragically, this was not the case, and Mr Wilson was found dead in his home after suffering an anaphylactic shock; due to a sauce which, contained substantial amounts of peanuts.

Originally, Mr Zaman was charged in accordance with principles of Gross Negligence Manslaughter, set out in R v Adomako [1994]. Mr Zaman gave evidence that he was not in the restaurant at the time the food was prepared and claimed that he had given sufficient training to staff regarding food allergies, which was subsequently ignored. After being found guilty of gross negligence manslaughter and other food safety offences, Mr Zaman was sentenced to six years imprisonment. Mr Zaman was given leave to appeal and accordingly, this judgment was given.

The grounds for appeal were as follows: the judge had erred in law as to the directions given to the jury concerning breach of duty and causation, as well as issues pertaining to the standard of care the appellant owed to the victim. Alleging that, rather than set the standard to the jury, the judge allowed the jury to decide on the relevant standard owed. However, little importance was attached to this point and, even if the judge had made an error, the standard of care was not considered a real issue of trial and any error did not undermine the safety of the judgment. Regarding breach of duty, it was stated in this case that there were many acts/omissions that may amount to a breach of duty in the circumstances, namely the appellant’s failure to inform customers as to the risk of peanut contamination, failure to adequately train staff and failure to create a system to prevent cross-contamination. Therefore, the jury must be given appropriate directions to identify and then determine whether these acts or omissions constituted a breach of said duty. The jury must be sure that at least one of those acts/omissions constituted a breach. Once an act or omission can be proved to amount to a breach, questions relating to causation, the seriousness of risk, and degree of negligence must be asked.

The case for breach of duty was based on various and distinct facts. It was appreciated that there was not a single unique way the appellant could have discharged his duty. However, the appellant could have ensured that peanuts and derivatives were not used in the restaurants. Failing to do this, the appellant could have issued instructions to staff specifying that they must not serve those with peanut allergies. Several small steps, such as better training and a better system of food safety could have led to a discharge of the duty. Collectively, it was held that the facts of the case constituted a breach of duty. However, counsel for the appellant stated the collective view of these facts was the wrong way to establish a breach of duty; instead, the direction from Brown (1984) 79 Cr App R 115 were necessary. This direction means that, when the prosecution purports various issues to constitute an element of breach of duty, the jury must be unanimous in what matter/s constituted the breach.

This argument was firmly rejected by the court. Highlighting that, there are many ways the appellant may have discharged his duty. With such contrasting evidence as to whether the appellant discharged his duty, the jury was entitled to consider the evidence. Furthermore, the prosecution’s case was essentially based on one breach – the failure to take reasonable steps to prevent injury to customers with declared allergies. This duty could have been discharged in many ways, and therefore the jury was entitled to consider various factual issues.

Regarding issues of causation, factual causation was evident; however, as affirmed in the Adomako, legal causation must be proved. It was argued that the judge erred in his summing up in two ways. Firstly, it was submitted that the judge confused legal and factual causation when he directed the jury that, if a breach of duty was found, the appellant did not dispute that this would amount to a material contribution to Mr Wilson’s death. The appellant had disputed legal causation, and therefore this direction was not right. Secondly, the judge did not leave to the discretion of the jury the possibility the negligence of the chef was the operating cause of death, and therefore the appellant’s actions had no causative effect. The court rejected this argument. Due to the nature of the breach, this argument was evidentially incorrect and defied logic. Mr Zaman conceded factual causation. It was clear that Mr Wilson purchased a meal from the Mr Zaman’s restaurant which led to his death. The common-sense result of this breach, if proved, was that it materially contributed to Mr Wilsons death, an argument which Mr Zaman did not readily accept. The decision did not extinguish any liability on behalf of the chef, however, once breach of the defendant’s duty was found, a question of causation naturally followed.

Accordingly, both the conviction and sentence were upheld.

This case is therefore a further reminder to restaurant owners to adhere to food safety legislation and take steps to satisfy their duties of care.

Beating your Burglar: Trespassers and Home-Owners

Article

7th November 2018

Beating your Burglar: Trespassers and Home-Owners

Cameron Hill | Final Year LLB (Hons) Student

Home-Owners’ Rights

Working on the Bournemouth University Law Review (BULR) has resulted in wider reading in legal areas and a need to keep abreast of legal updates beyond what is needed at relevant levels of study. The focus for this year’s blog posts for BULR is that of criminal law, which led to developing a broad interest in the latest criminal law updates.

A news item published around Easter 2018 recounted the story of pensioner, Richard Osborn-Brooks who stabbed and killed a burglar, who was attempting to steal from his home. In the wake of the burglar’s death his family have continually left floral tributes outside Osborn-Brooks, home. The pensioner was taken into police custody but released without charge following the incident. The 2018 new story surrounding Osborn-Brooks, re-ignites the question on ‘dis-appropriate’ force when used by a homeowner and the circumstances under which such actions can be legal.

This leads us to a consideration of home-owners’ rights which has been a hotly-debated topic for decades. The topic garnered considerable attention in the early 2000s with the case Martin v R [2001] EWCA Crim 2245 which concerned farmer Tony Martin who shot dead a burglar and injured a second burglar as they fled. The case was brought before Lord Woolf, and the right honourable Mr Justice Wright and Grigson in the Court of Appeal, after Mr Martin was sentenced to 15 years’ imprisonment for his actions by the court at first instance.

In the appeal Lord Woolf discussed whether Mr Martin had indeed been hiding with his unlicensed firearm awaiting his chance to shoot the burglars and the extent to which the argument of self-defence can be used. He also mused that the public reaction to Mr Martins prosecution at first instance was general dismay, coupled with the feeling that the law did not adequately support homeowner’s rights. After all, many felt that a homeowner should hold unfettered rights to protect themselves and their properties.

The Law – Crime and Courts Act 2013

The law on use of force was amended in 2013 by the Crime and Courts Act 2013 which inserted Section 76(5A) into the Criminal Justice and Immigration Act 2008. The statute is now endorsed by common law principles of reasonable force by the homeowner as set out in the case of Collins v Secretary of State for Justice [2016] EWHC 33. At paragraph 13 of this case, Sir Brian Leveson set out a two-fold test establishing (a) the genuine belief that the use of force was necessary; and (b) that at the time the degree of force used was also necessary.

The prongs of the test are subjective, thus allowing for mistaken belief as a defence. Therefore, this also means that an individual who feels under threat in their own home may over estimate the danger they are in or be overzealous when using force as highlighted in R v Oye [2014] 1 Cr App R 11.

A caveat in the law is the ability for a victim of the burglary to plead this defence where they are voluntarily intoxicated. The ability to effectively judge a situation is considered muted when the individual is intoxicated. For this reason, this may not be the fairest solution to the problem as in essence, it would prevent people from becoming intoxicated within their own homes for fear that they could not protect themselves in the event of a break-in.

The Future

Despite the memorials being laid outside Mr Osborn-Brooks’ home, there have not been calls from the would-be burglar’s family for justice. This is a departure from R (on the application of Collins) v Secretary of State for Justice [2016] EWHC 33. This case was brought by the father of a burglar who was left in a coma following a failed burglary. He brought proceedings in the High Court under the presumption that a law allowing the level of harm suffered by his son and a second invader during the burglary could not be compatible with Human Rights Law, specifically Article 2 (1), the right to life.

His case was unsuccessful, showing a clear shift from the High Court ruling in 2001 and may explain why the elderly Mr Osborn-Brooks who killed his burglar in self defence was released so quickly.

It may have taken nearly 15 years to fully reform the law to the point it has now reached, and while many people will feel more secure knowing they are able to protect themselves as necessary within their house there will always be those who would see the value in protecting the rights of trespassers.

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New Year’s Eve Celebrations Without the Fizz…

Mind Your Words: Entire Agreement Clause Fails to Act as Bar to Misrepresentation Claim

Unravelling the meaning of dishonesty: Card Games in Casinos

Gross Negligence Manslaughter

Beating your Burglar: Trespassers and Home-Owners

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