New Technology and Researchers’ Access to Court and Tribunal Information: the need for European analysis

We discuss the limitations and rights which may affect the researcher’s access to and use of digital, court and administrative tribunal based information. We suggest that there is a need for a European-wide investigation of the legal framework which affects the researcher who might wish to utilise this form of information. A European-wide context is required because much of the relevant law is European rather than national, but much of the constraints are cultural. It is our thesis that research improves understanding and then improves practice as that understanding becomes part of public debate. If it is difficult to undertake research, then public debate about the court system – its effectiveness, its biases, its strengths – becomes constrained. Access to court records is currently determined on a discretionary basis or on the basis of interpretation of rules of the court where these are challenged in legal proceedings. Anecdotal evidence would suggest that there are significant variations in the extent to which court documents such as pleadings, transcripts, affidavits etc are made generally accessible under court rules or as a result of litigation in different jurisdictions or, indeed, in different courts in the same jurisdiction. Such a lack of clarity can only encourage a chilling of what might otherwise be valuable research. Courts are not, of course, democratic bodies. However, they are part of a democratic system and should, we suggest – both for the public benefit and for their proper operation – be accessible and criticisable by the independent researcher. The extent to which the independent researcher is enabled access is the subject of this article. The rights of access for researchers and the public have been examined in other common law countries but not, to date, in the UK or Europe.

Notes from Some Small Countries: A Study of the 'New Punitiveness' in Ireland, Scotland and New Zealand

In recent years there has been a remarkable surge of interest in the concept of punitiveness in theoretical criminology. Accounts serve to emphasise rupture over continuity, drawing attention to the increased focus on managerialism, risk and expressive penal policies in countries such as England and the US. Criticisms of these accounts have drawn attention to the weak empirical base for such assertions and the continued relevance of local cultural, historical and political conditions in mediating the effect of more punitive trends. In light of the relative neglect of smaller jurisdictions in this literature it was decided to locate these debates in three small common law jurisdictions, namely, Ireland, Scotland and New Zealand over the period 1976-2006 with a view to assessing the empirical evidence for penal change. This was done using a broader definition of punitiveness than normally employed incorporating indices relating to the ‘front end’ (eg police powers) as well as the ‘back end’ (eg prison and probation) of the criminal justice system. Data were collected on the three case studies using a multi-method approach involving examination of extensive quantitative data, interviews with key criminal justice stakeholders and documentary analysis. The data provide some support for the ‘new punitiveness’ thesis in these countries through a pattern of increased legislative activity aimed at controlling violent and sexual offenders and significant increases in the lengths of sentences imposed. However, analysis of qualitative data and a larger number of variables reveals distinctly different patterns of punitiveness over the thirty year period in the three countries. It is argued that the study holds important lessons for comparative criminology into the ‘new punitiveness’. There is a need for qualitative as well as quantitative data; for multiple rather than singular indices across a wide range of areas (juvenile justice, prison conditions, etc); and for ‘front end’ as well as ‘back end’ indices.

Taking as Giving, Appropriation as Access: Transfers of Land Development Rights and China’s Recent Experiments

Economic development at both the domestic and global levels is associated with increasing tensions which are inextricably linked to the meaning and allocation of property rights, which has a great impact on appropriation of resources and may lead to different paths of development. “Taking”-- the appropriation of private land for public needs -- is a typical example that exhibits those tensions, posing a challenge to the conventional conception of property as individualistic and exclusive rights of possession, use, and disposition and to the associated neoliberal model of development. Should the individual landowner be left to bear the cost of a regulatory intervention which endures to the wider benefit of the whole community? How to mitigate the tensions between private ownership and public regulation? If we take the liberal concept of property, then private property seems to be in constant conflict with public interests and wider social concerns. Meanwhile, community, situating between the state and the individuals, and community’s relationship to development rights, have not provoked enough discussion. The paper explores the different ways land development rights might be seen both in Western, essentially common law systems, and in China, especially now and in view of two case studies. An empirical example in Wugang, China reveals the importance of integrating the “community lens” proposed by Roger Cotterrell into studies of the transfer of land development rights. Reading through the community lens, taking could be giving and appropriation could also be access. This approach provides a new perspective to re-evaluate the relationship between legal appropriation and development.

The Right to a Fair Fight: Sporting Lessons on Consensual Harm

This article critically assesses the criminal law on consensual harm through an examination of the legality of fighting sports. The article begins by considering fighting sports such as bare-fisted prize fighting (dominant in the nineteenth century). It then, in historical chronology, examines the legality of professional boxing with gloves (dominant in the twentieth century). Doctrinally, the article reviews why and how, in a position adopted by the leading common law jurisdictions, fighting sports benefit from an application of the “well-established” category-based exceptions to the usual bodily harm threshold of consent in the criminal law. Centrally, fighting sports and doctrinal law on offenses against the person are juxtaposed against the theoretical boundaries of consent in the criminal law to examine whether and where the limit of the “right to be hurt” might lie. In sum, this article uses fighting sports as a case study to assess whether the criminal law generally can or should accommodate the notion of a fair fight, sporting or otherwise, predicated on the consent of the participants to the point that the individuals involved might be said, pithily, to have extended an open invite to harm.

Regulating Genetically Modified Organisms in Ireland – Laissez faire approach?

This chapter examines the legal framework applicable to genetically modified organisms (GMOs) in Ireland, bearing in mind the limited presence of GMOs. As a member of the European Union (EU), a specific, process-based regime applies regarding the authorisation and regulation of GMOs. This is intended to ensure a high level of environmental and human health protection and also enable producer and consumer choice. This regime is highly harmonized, but allows some flexibility regarding its implementation and, soon, the potential to opt-out from cultivation in part or entirely. Although, Ireland has only legislated on the area to the extent and in the manner required by the EU, it may avail of the opt-out in future – understandable in light of the lack of any cultivation currently and the green image of Ireland.
Complementary horizontal legislation and common law principles, relevant to labelling and varying forms of liability, deal with most issues that might arise quite comprehensively. However, they are quite complicated, overlapping and untailored and it is worth considering whether specific legislation should be developed to deal with liability related to GMOs.
Overall, Ireland holds varying stances to different forms of GMOs, with the greatest acceptance and use of GM-feed for pragmatic reasons. It has not developed a specific Irish approach, copy-pasting EU legislation and relying upon existing law to deal with any issues. This is understandable in light of the high level of harmonization and limited presence of GMOs in Ireland, but nonetheless will need to be developed as the availability of GMOs increases.

Activism and Restraint within the UK Supreme Court

This article provides evidence for the extent to which the UK Supreme Court as a body - and Supreme Court Justices as individuals - have displayed an activist or restrained attitude to their decision-making role. Taking October 2009 as the starting point (when the UKSC came into existence) the article surveys the degree to which the Court and individual Justices have (1) departed from precedents, (2) interpreted legislation in unanticipated ways, (3) rejected the government's position on matters of social, economic or foreign policy, and (4) developed the common law. The article concludes that, while the Supreme Court as a whole remains as conservative as the Appellate Committee of the House of Lords which preceded it (with the possible exception of its approach to immigration law), there are notable differences between the attitudes of individual Justices, one or two of whom appear to be straining at the leash.

From the Right to Life to the Right to Livability: Radically Re-approaching ‘Life’ in Human Rights Politics

This article critically reflects on current mainstream debate on abortion in international human rights discourse and the conception of life underpinning it. The public health focus on access to safe abortion which has dominated this discourse can be detected as committed to a fundamentally liberal idea of bounded and individual subjecthood which mirrors the commitments of the liberal right to life more generally. However, feminist challenges to this frame seeking to advance wider access to reproductive freedoms appear equally underpinned by a liberal conception of life. It is asserted that feminists may offer a more radical challenge to the current impasse in international debate on abortion by engaging with the concept of livability which foregrounds life as an interdependent and conditioned process. The trope of the ‘right to livability’ developed in this article presents a means to reposition the relation between rights and life and facilitate such radical engagement which better attends to the socio-political conditions shaping our interdependent living and being.

The inclusion and juridification of victims on the Island of Ireland

Concern for crime victims has been a growing political issue in improving the legitimacy and success of the criminal justice system through the rhetoric of rights. Since the 1970s there have been numerous reforms and policy documents produced to enhance victims’ satisfaction in the criminal justice system. Both the Republic of Ireland and Northern Ireland have seen a sea-change in more recent years from a focus on services for victims to a greater emphasis on procedural rights. The purpose of this chapter is to chart these reforms against the backdrop of wider political and regional changes emanating from the European Union and the European Court of Human Rights, and to critically examine whether the position of crime victims has actually ameliorated.

While separated into two legal jurisdictions, the Republic of Ireland and Northern Ireland as common law countries have both grappled with similar challenges in improving crime victim satisfaction in adversarial criminal proceedings. This chapter begins by discussing the historical and theoretical concern for crime victims in the criminal justice system, and how this has changed in recent years. The rest of the chapter is split into two parts focusing on the Republic of Ireland and Northern Ireland. Both parts examine the provisions of services to victims, and the move towards more procedural rights for victims in terms of information, participation, protection and compensation. The chapter concludes by finding that despite being different legal jurisdictions, the Republic of Ireland and Northern Ireland have introduced many similar reforms for crime victims in recent years.

Commentary on Locke's Second Treatise on Government (1690)

Extracts from a treatise in which Locke sets out his labour theory of property.
Locke's writings on the labour theory of property provided eighteenth century proponents of the concept of copyright at common law (that is, copyright as a natural authorial property right) with a philosophical basis upon which to develop their arguments. The commentary explores the significance of a series of correspondence between John Locke and Edward Clarke, then MP for Taunton, concerning the lapse of the Licensing Act 1662 (uk_1662), and in the run up to the passing of the Statute of Anne 1710 (uk_1710). The commentary argues that, regardless of how Locke's writings on property were subsequently co-opted in the mid-eighteenth century debates as to the nature of copyright, it is doubtful whether Locke himself considered that copyright existed at common law.

Commentary on Baller v. Watson (1737)

This case marks the first occasion, following the passage of the Statute of Anne 1710 (uk_1710), on which a living author sought to prevent the infringement of his own copyright before the courts, as well as the first time on which a ‘perpetual' injunction was granted to prevent the further unauthorised reproduction of the work.
The commentary describes the circumstances which led Gay to publish the work himself, by subscription, as well as the success he enjoyed (albeit posthumously) in preventing unauthorised versions of the work from being published. That a ‘perpetual' injunction was granted at the conclusion of the litigation was subsequently interpreted, by advocates of common law copyright, to suggest that, regardless of the Statute of Anne, the Lord Chancellor considered copyright to be a perpetual right.

Commentary on Warburton's Letter from an Author (1747)

The first of a number of public commentaries contributing to the mid-eighteenth century debate over the nature of literary property (see also: An Enquiry into the Nature of Literary Property (uk_1762a); An Argument in Defence of Literary Property (uk_1774a)).
Warburton, a strong proponent of the common law rights of the author, provided the first significant commentary upon the nature and classification of property and its relevance to, and relationship with, an author's work. Part of this commentary discusses Warburton's attempts to articulate a clear conceptual distinction between the claim of an inventor to the protection of a patent provided by the state, and the natural right of an author to the property in his work.

Commentary on Tonson v. Collins (1762)

Significant case in which the arguments for and against the existence of copyright at common law were extensively debated for the first time before the Court of King's Bench. Both William Blackstone (author of Commentaries Upon the Laws of England, and one of the judges to hold in favour of the common law right in Donaldson v. Becket (uk_1774)) and Joseph Yates (who would later provide the dissenting opinion in Millar v. Taylor (uk_1769)) appeared on behalf of the plaintiff and the defendant respectively.