Enabling Free On-line Access to UK Law Reports: The Copyright Problem

The history of publishing legal decisions (law reporting) in the UK has been that of a privatised system since its inception, and that history has encompassed several hundred years. The privatised nature of this has meant that the product (the law report) has been, except in limited cases, viewed as the property of the publisher, rather than the property of the court or public. BAILII is an open access legal database that came about in part because of the copyrighted, privatised nature of this legal information. In this paper, we will outline the problem of access to pre-2000 judgments in the UK and consider whether there are legal or other remedies which might enable BAILII to both develop a richer historic database and also to work in harmony, rather than in competition, with legal publishers. We argue that public access to case law is an essential requirement in a democratic common law system, and that BAILII should be seen as a potential step towards a National Law Library.

An audit of assessment and reporting by Approved Social Workers (ASWs)

This paper examines the routine practice of Approved Social Workers (ASWs) in adult mental health services in Northern Ireland. It begins with a review of existing literature on the ASW role before describing how a retrospective audit, using a mixed methods approach, was used to collect data on eighty-four assessments carried out to determine whether compulsory admission to hospital was needed. Respondents were also asked to consider how such assessments might be affected by proposed changes to the law in this field. The key findings highlighted a number of areas of practice that may be improved. There were inconsistencies in how the assessments were recorded and an uneven distribution of workloads across ASWs. Some problems were identified with interagency working and, in a quarter of the assessments, the ASW reported having felt afraid or at risk. The authors make a number of recommendations, which include: the use of a standard reporting procedure; that organisations should consider how to deliver a more even distribution of ASW workload; that protocols should be developed that ensure that ASWs are not left alone in potentially risky situations; and that joint assessments with General Practitioners should be required, rather than just recommended.

Information sharing and reporting systems in the UK and Ireland: Professional barriers to reporting child maltreatment concerns

Across the UK recent policy developments have focused on improved information sharing and inter-agency cooperation. Professional non-reporting of child maltreatment concerns has been consistently highlighted as a problem in a range of countries and the research literature indicates that this can happen for a variety of reasons. Characteristics such as the type of abuse and the threshold of evidence available are key factors, as are concerns that reporting will damage the professional-client relationship. Professional discipline can also impact on willingness to report, as can personal beliefs about abuse, attitudes towards child protection services and experiences of court processes. Research examining the role of organisational factors in information sharing and reporting emphasises the importance of training and there are some positive indications that training can increase professional awareness of reporting processes and requirements and help to increase knowledge of child abuse and its symptoms. Nonetheless, this is a complex issue and the need for training to go beyond simple awareness raising is recognised. In order to tackle non-reporting in a meaningful way, childcare professionals need access to on-going multidisciplinary training which is specifically tailored to address the range of different factors which impact on reporting attitudes and behaviours.

Thinking Sexual Difference Through the Law of Rape

2013 marks 10 years since the Sexual Offences Act 2003 was passed. That Act made significant changes to the law of rape which appear now to have made very little difference to reporting, prosecution or conviction rates. This article argues that the Act has failed against its own measures because it remains enmeshed within a conceptual framework of sexual indifference in which woman continues to be constructed as man’s (defective) other. This construction both constricts the frame in which women’s sexuality can be thought and distorts the harm of rape for women. It also continues woman’s historic alienation from her own nature and denies her entitlement to a becoming in line with her own sexuate identity. Using Luce Irigaray’s critical and constructive frameworks, the article seeks to imagine how law might ‘cognize’ sexual difference and thus take the preliminary steps to a juridical environment in which women can more adequately understand and articulate the harm of rape.

Recent Developments in the Law of Torts in Northern Ireland Annual Conference of the Irish Association of Law Teachers

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.

In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed.

Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities.

Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel.

Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

Exploring inequities in child welfare and child protection services: Explaining the ‘inverse intervention law’

Attempts to record, understand and respond to variations in child welfare and protection reporting, service patterns and outcomes are international, numerous and longstanding. Reframing such variations as an issue of inequity between children and between families opens the way to a new approach to explaining the profound difference in intervention rates between and within countries and administrative districts. Recent accounts of variation have frequently been based on the idea that there is a binary division between bias and risk (or need). Here we propose seeing supply (bias) and demand (risk) factors as two aspects of a single system, both framed, in part, by social structures. A recent finding from a study of intervention rates in England, the 'inverse intervention law', is used to illustrate the complex ways in which a range of factors interact to produce intervention rates. In turn, this analysis raises profound moral, policy, practice and research questions about current child welfare and child protection services.