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From Nuremberg to the International Criminal Court

ICTY Through Children’s Eyes – Sarajevo Kids Festival 2014
Edin, 14 years old, Sarajevo.

Our LLB Law class had the privilege of being taught by Sir Geoffrey Nice QC this week. Sir Geoffrey, who is a Visiting Professor in Law at Goldsmiths, has led on the prosecution of Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia, where the former President of Serbia was charged with crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war, including for planning, instigating, ordering or otherwise aiding the widespread killing of thousands of Bosnian Muslims and Bosnian Croats, during and after the take-over of territories within Bosnia and Herzegovina and the killing of thousands in detention facilities there or for the forcible removal of the majority of the Croat and other non-Serb population from the approximately one-third of the territory of the Republic of Croatia that he planned to become part of a new Serb-dominated state.

Against the backdrop of such seminal experience, that defined the development of international criminal law at the beginning of this century, Sir Geoffrey undertook a historic review of international criminal law, focussing on several milestones: from the post WWII Nuremberg trials to the Universal Declaration of Human Rights and the setting up of the international criminal tribunals for Rwanda and the former Yugoslavia and, more recently, the International Criminal Court.

Sir Geoffrey’s presentation also focussed on his work as chair of the Independent Tribunal into Forced Organ Harvesting  from Prisoners of Conscience in China (murdering prisoners to extract hearts, livers, kidneys etc for commercial transplantation surgery).

The lecture was delivered in the context of ‘English Legal System in a Global Context’ module, which has the key aim of introducing our students to UK legal institutions, but goes further than what is normally covered in introductory modules of this nature, in comparing and contrasting UK legal institutions to foreign legal systems and in international law, with a view to enhancing the students’ knowledge of, and ability to critically analyse, how our domestic institutions operate and creating, more generally, a cosmopolitan legal spirit, that ensures we understand there is more to ‘Law’ than our domestic legal institutions and processes.

Sir Geoffrey presented his lecture in conversation with the Head of the Law programme at Goldsmiths, Professor Dimitrios Giannoulopoulos. The lecture was delivered online, in an interactive format, as a response to the emerging Coronavirus crisis. Students had the opportunity to ask several questions and expressed their excitement for Sir Geoffrey’s invaluable contribution.

 

Liberty’s Martha Spurrier to LLB class: “We must keep the Human Rights Act intact”

Martha Spurrier to Goldsmiths’ LLB Law students: “Rules affecting our human rights can sometimes be unfair and the law inadequate. You must be prepared to challenge unfair rules and campaign for their change”

In line with our approach of teaching Law in its socio-political context and exposing students to key players in the legal and political process, we had the great pleasure of hosting Martha Spurrier in the Year 1 ‘Public Law and the Human Rights Act’ module, coordinated by Goldsmiths’ Dr Virginie Barral.

Martha was appointed earlier this year Visiting Professor in Law at Goldsmiths. She is the Director of the UK’s leading human rights NGO Liberty and a human rights lawyer specialising in questions of access to justice, freedom of expression, children and women’s rights, and the rights of prisoners and immigration detainees.

In her lecture, Martha discussed how the Human Rights Act had changed the way civil servants and judges make decisions on a day to day basis, noting that a remarkable undocumented impact of the Act has been on the way public servants have integrated the concepts of rights in the way they interact with people.

Confronting students with current debates about updating the Human Rights Act (in line with the Conservative government’s 2019 election manifesto), Martha brought to light the inadequacy of the common law to protect fundamental rights effectively and insisted on the importance of keeping the Human Rights Act intact.

She also pointed out that rules can sometimes be unfair and the law inadequate. She encouraged students to be prepared to challenge unfair rules and campaign for their change.

Martha also deplored the lack of attention and interest paid in the UK to economic, social and cultural rights such as the right to food, shelter, or health whilst the financial crisis and deepening socio-economic inequalities have brought these in sharp relief with more families unable to feed themselves decently. She called for more radical thinking about socio-economic rights and drew from the work of Andrew Fagan to show that poverty and destitution often mean lack of access to civil and political rights. A higher level of protection of socio-economic rights was thus necessary to ensure fuller civil and political rights protection.

Martha predicted that alongside the climate crisis, which raises obvious fundamental rights questions, the future direction of rights protection and campaigning in the UK will focus on socio-economic rights and that Liberty was certainly thinking very hard about this.

We are delighted with Martha’s appointment as a Visiting Professor in Law at Goldsmiths, and are very excited to be working with her and Liberty, in our attempt to confront our students with major socio-political and economic challenges that we’re facing in the UK today.

Learning Public Law at the UK Supreme Court

Goldsmiths LLB Law students at the UK Supreme Court (November 2019)

Goldsmiths LLB Law students and academics at the UK Supreme Court (November 2019)

Goldsmiths students doing Public Law and the Human Rights Act in Year 1 of the LLB Law programme witnessed law being made at the highest level (and having potentially pervasive effect) during their recent visit to the UK Supreme Court.

In a busy day for the supreme jurisdiction in the country, the court first found that five asylum seekers that were detained pending their removal from the UK had been detained unlawfully and were therefore entitled to compensation under domestic law for any loss that the wrongful detention had caused them. ‘Thousands of asylum seekers could bring claims for millions of pounds of compensation’ after the Supreme Court judgment, wrote The Times (the Brief) the following day.

In a second judgment, the Court pronounced that a Royal Mail whistleblower had been unfairly dismissed, for raising concerns over alleged regulatory breaches.

Lord Kitchin, Lord Wilson and Lady Hale (President) delivered the judgments in these two cases.

Were the appellants right to refuse to fulfil Mr Lee’s order? How would you have applied the law if you were on the bench for this case?

The students then took part in an interactive workshop delivered by a member of staff at the Supreme Court, introducing them to key public law and human rights cases, asking them how they would have voted on them. R v Gnango, the leading authority on joint enterprise and transferred malice, and Lee v Ashers Baking company (the ‘gay cake’ case) were a focal point of discussion.

The group then moved to Courtroom 3, to observe Privy Council proceedings, in a case that was on appeal from the Court of Appeal (Bahamas). The appellant had been convicted of rape and sentenced to 14 years’ imprisonment in 1996, and his appeal raised the issue of whether the criminal proceedings had been vitiated by a procedural error at the committal stage and whether the defendant had been defined a fair trial because DNA samples had not been provided to the defence. Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones and Lady Arden were in the judicial bench.

Learning about the Privy Council’s role as the court of final appeal for UK overseas territories, Crown dependencies and (some) Commonwealth countries. 

The wonderful visit ended with the students spending some time at the permanent exhibition on the lower ground floor of the building and enjoying some cake, coffee and tea, at the Court’s café, in a well lit atrium that marries modern architectural elements with the neo-gothic building of the Court which started life as the Middlesex Guildhall in 1913.

The visit was part of the Public Law and the Human Rights Act curriculum, and is typical of the innovative approach taken at Goldsmiths to incorporate experiential learning activities and study visits as part of contact time in all modules in the LLB degree.

The visit was coordinated by the module convenor, Dr Virginie Barral.

Students and academic staff reflecting on the visit, and catching up with each other, over a cup of coffee.

 

Goldsmiths Law and The Better Human podcast

We are delighted to announce that, in line with the Law School’s commitment to innovate and create a distinctive offer on human rights and social justice, we are acting as the inaugural institutional sponsor for the Better Human Podcast, produced by our Visiting Professor in Law, Adam Wagner, a leading barrister at Doughty Street Chambers, and the founder and Chair of the pioneering and multi-award-winning RightsInfo charity.

The Better Human Podcast will explore the most important human rights issues of the day – Brexit, facial recognition, racism in sport, assisted dying, artificial intelligence – through engaging and accessible interviews with high-profile guests and plain English guides to key concepts and historical events. The tone of the podcast will be open and unpretentious, with all technical terms and concepts explained.

The podcast is inspired by the idea that in today’s polarised and dangerous political times, human rights – and the liberal values they arise from – can give us the lens we need to understand what’s happening and make our societies better.

The first episode explores free speech, and you can listen to it here.

In this episode, Adam Wagner speaks to Jodie Ginsberg, CEO of Index on Censorship about the human right to freedom of speech. He asks: sometimes described as the life blood of democracy, why is this important right so controversial? Do we have a right to offend, or not to be offended? Is Julian Assange a journalist? What about Tommy Robinson? Where is the  dividing line between racial hatred and protected opinions? And much more…

Goldsmiths Law students will have various opportunities to interact with the podcast, including participate in a live recording at Goldsmiths and, in due course, potentially, contribute library research that will feed into specific episodes.

The LLB Law programme at Goldsmiths gives students unique opportunities to engage with leading legal professionals and partake in challenging current debates, developing indispensable professional skills in the process.

HOW TO LISTEN TO THE PODCAST:

🎤 Listen on Google Podcasts

🎤 Listen on Apple Podcasts 

🎤 Listen on Spotify

🎤 Listen on PodBean

🎤 Listen on Overcast

🎤Listen on Stitcher

🎤 Listen on Pocket Casts

🎤 RSS feed: https://anchor.fm/s/e527bec/podcast/rss

New book: excluding unlawfully obtained evidence to protect human rights

A new book by Goldsmiths’ Head of Law, Prof Dimitrios Giannoulopoulos, explores the perennial controversy over the use of improperly obtained evidence in criminal trials. This is the first book to do so from a cross-cultural – comparative and international human rights – perspective.

The book compares and contrasts various procedural mechanisms, within Anglo-American and continental legal systems (with a focus on the United States, Greece, France and England and Wales), that may stop the jury, or the judge as a fact-finder, from accessing or using unlawfully obtained evidence – sometimes crucial, reliable evidence – when reaching a verdict or making a finding of guilt.

Analysis focuses on confessional evidence and evidence obtained by search and seizure, telephone interceptions and other means of electronic surveillance.

The book attempts to reinvigorate the idea of excluding evidence to protect constitutional or human rights (the rights thesis), arguing that there is significant scope for Anglo-American and Continental legal systems to place a renewed emphasis on it, particularly in relation to confessional evidence obtained in violation of custodial interrogation rights. This is because we can locate an emerging rapprochement, and unique potential for European Court of Human Rights jurisprudence to build consensus, in this respect.

In marked contrast, remaining divergence with regard to evidence obtained by privacy violations means there is little momentum to adopt a reinvigorated rights thesis more widely.

English law, in particular, offers a key illustration of discordance between privacy violations and violations of custodial interrogation rights. The discretionary powers that courts possess in relation to the latter often lead to exclusion. In contrast, the exclusion of evidence obtained in violation of the right to privacy is a rare occurrence in the related jurisprudence.

The book is available by Hart Publishing and on Bloomsbury online collections, and you can read a more detailed description here.

Book presentation at Berkeley Law School (10 April 2019), hosted by Prof Charles Weisselberg (first from left) and Prof Jonathan Simon (second from right)

Since publication of the book, Prof Giannoulopoulos has presented his research in this area to academic audiences in England (most recently at the Law School at the University of Exeter), Greece (at a major symposium of the Hellenic Criminal Bar Association) and in the United States, where the ‘exclusionary rule’ has been the source of one of the most enduring and controversial debates in American constitutional criminal procedure.

“Policing Los Angeles Forum” presentation, Loyola Law School (8 April 2019). From left to right: Prof Eric Miller, Prof Dimitrios Giannoulopoulos, Prof Christopher Hawthorne

In the United States, Dimitrios spoke at Loyola Law School’s Policing Los Angeles Forum, Stanford Law School, where the talk was hosted by Prof David Sklansky and was attended by many students in his constitutional criminal procedure class, and Berkeley Law School, where the event was sponsored by the Sho Sato Program in Japanese and US Law and the Centre for the Study of Law and Society.

A podcast from Prof Giannoulopoulos’ presentation at Loyola Law School is available here.

Lord Hughes: International human rights are fundamental to English criminal procedure, but not absolute

“The UK Supreme Court is entirely accustomed to analysing human rights (protected by the European Convention on Human Rights), but if you ask those daily tackling crime, the answer is they’re rarely necessary in the average criminal trial”, noted Lord Hughes of Ombersley, former Justice at the UK Supreme Court, opening up his keynote address in Goldsmiths Law’s annual criminal justice symposium at the British Academy (on 27 March 2019).

The reason is that these rights are “implicit in English criminal procedure”;  “we had arrived at these rights long before the drafting of the European Convention on Human Rights” (ECHR), he explained, taking the examples of ‘habeas corpus’, which had been guaranteed for the best part of three centuries before finding its way into Article 5 of the ECHR, the ‘burden of proof’, which was in place hundreds of years before being incorporated into Article 6, or the prohibition of torture, which was inherent in the common law since the 17thcentury.

What is interesting is the discussion about the extent and scope of rights since their incorporation into the ECHR via the mechanics of “fairly energetic judicial glossing in Strasbourg”, Lord Hughes pointed out.

He invited English criminal lawyers, and the many scholars attending the symposium, to look at two features of this process of judicial creativity.

The first, most obvious, feature was the extent of it. “These fundamental rights have been expanded enormously”, noted Lord Hughes.

The second feature is the very interesting interaction between the common law and European civil law traditions, which does not have the starting point as the common law when it comes to interpreting the Convention.

We need to “remember that whilst the common law may be very longstanding, and we’re rightly proud of it, and it may be very widespread across the world, and we’re rightly proud of that as well, it is by no means a universal system”, said Lord Hughes.

In highlighting the idiosyncratic character of the European Court of Human Rights, the former Supreme Court Justice, whose illustrious career included the Vice-Presidency of the Criminal Division at the Court of Appeal, added:

“It also behoves us to remember the difference between running a very long-established legal system such as ours in which an enormous amount can be taken as read, and, on the other hand, running a transnational court such as the Strasbourg Court where the judges come from an enormous variety of cultures, from a huge range of personal career experience, where there is no single common language, where the range of systems under consideration is enormous”.

“The Strasbourg Court is having to cope with all the systems of former Eastern Europe as well as former Code Napoleon central Europe as well as the common law, and when we run into occasional elements of frustration, we ought to remember just how difficult it is to administer a transnational court of that kind”.

In discussing examples of “direct importation into the UK systems of fundamental rights as interpreted in Strasbourg”, Lord Hughes started with the “very well-known example of Cadder” (which led to the incorporation of the right to speak to a lawyer from the beginning of police interrogation in Scotland).

The reform was in reality “judicial legislation in Strasbourg based on the kind of review of national practice all around the Council of Europe which they’re in the habit of conducting; it’s one of the things they do extremely well, to produce a synthesis of practice around the member-states”.

One other way in which rights had been expanded was by attaching to an Article of the Convention an ancillary or secondary duty to investigate things that might involve a breach, said Lord Hughes.

The classic example was “Article 2 inquiries into deaths in state custody or state hands”. “Article 2 does not say anything at all about investigation, but it’s a perfectly rational extension on the basis that the primary right won’t be effective unless you also have a secondary right to investigation. But it is pure judicial legislation of the kind which – if it happened in relation to an English statute by an English court – would attract, rightly, some would say, a great deal of criticism”.

A similar duty to inquiry had been expanded to Article 3 of the Convention, as illustrated in the case of Commissioner of Police of the Metropolis v DSD (the John Worboys case). “The effect of the expansion of Article 3 is that a victim of crime now has – as a result of DSD – a right of action against the police for breach of the secondary duty to investigate serious violence, and they will succeed if the police fall below reasonable standards”.

“It sounds perfectly straightforward, but entirely contrary to English tort law as it had stood until DSD; though police had public duties, they did not owe a duty of care to individual victims”, observed Lord Hughes.

He then asked:

“Does it matter that rights which are, as drafted, so expansively interpreted by judges – not by Parliaments, but by unelected judges, without any reference back to the States which originally agreed them?”

“Or maybe this is what states have voluntarily signed up to in accepting the Convention.”

In other words, Lord Hughes noted, these fundamental rights and their interpretation are a potent example of what is really a perennial problem faced by all legal systems, which is “how far should or can judges be creative in their interpretation of the Law or how far are they – like everybody else – bound by what it actually says; it’s a perpetual problem particularly faced by courts of final appeal but also, to some extent, by courts lower down”.

We could ask the same question by reference to other rights, for example Article 6 para 2 of the Convention, on the presumption of innocence or hearsay and the right to confrontation under Article 6.

It was equally important to observe, noted Lord Hughes, that although “a good deal of criminal procedure and evidence may fall to be reasoned according to fundamental rights, a larger part of English criminal procedure is entirely independent of fundamental rights”. Human rights are not “the prime source of our rules of fairness in the English criminal justice system; it’s actually the other way round … most of English criminal procedure was in place before these rights were derived from it very largely”.

“In fact, when the Convention was drafted, very largely by English lawyers, only some of the common law principles went into it. Others were deliberately left out, for example jury trial, the discretion not to prosecute (which would be quite incompatible with the Continental culture, where in many cases it is mandatory to prosecute), the cab-rank rule (the obligation of a barrister to accept any work in a field in which they practice, either acting for the defence or the prosecution), which wouldn’t work in Europe where you have division between public prosecutors and others, or the mandatory recording of police interviews.”

This line of thinking led Lord Hughes to a final conclusion:

While “these fundamental rights [ECHR rights] are very important – they’re often debated, they’re sometimes inspirational, they throw up the most fascinating meeting points of the common law and different legal cultures – they’re a long way from being the prime source of English criminal law and procedure.”

“They’re fundamental to us, in the sense that their ideas are embedded in our system, absolutes they’re not and we need to be careful about claiming that they’re absolutes.”

“The reality is that there is a huge scope for debate about their content and that debate has to be resolved by judges by exactly the same tensions that you meet domestically between the legitimate bounds of judicial creativity and the rule that judges – like anybody else – are bound by the law.”

“That’s a tension which has to be resolved here as it does everywhere else. They’re fundamental rights, they’re not absolute rights.”

LSE’s Prof Nicola Lacey chaired the keynote address.

Prof Nicola Lacey: Lord Hughes’ keynote raises some fascinating comparative and socio-legal questions about the impact of different legal cultures and different institutional structures in how courts work and how communication between systems works.

The symposium was coordinated by Goldsmiths’ Head of Law Prof Dimitrios Giannoulopoulos, and it was attended by major experts in criminal justice and human rights, from the UK and abroad.

from left to right: Prof Paul Roberts (Nottingham), Hannah Quirk (King’s), Richard Glover (Wolverhampton) and Prof Andrew Choo (City)

from left to right: Prof David Sklansky (Stanford), Yvonne Daly (DCU), Prof Dimitrios Giannoulopoulos (Goldsmiths), Prof Sarah Summers (Zurich), Prof Theodore Konstantinides (Essex) and HH Judge Donald Cryan (Visiting Prof, Goldsmiths)

 

 

 

 

 

 

 

 

 

Abenaa Owusu-Bempah (LSE) with Prof Sarah Summers (Zurich)

The symposium followed up on Goldsmiths Law’s criminal justice lecture, which took place the day before and was delivered by Stanford Law School academic Prof David Sklanksy.

Goldsmiths’ Prof Giannoulopoulos with Lord Hughes. The Inner Temple’s academic fellowship scheme has brought Goldsmiths Law closer to the profession, including eminent representatives of the UK judiciary and Justices at the Supreme Court

The Department of Law at Goldsmiths places strong emphasis on the study of criminal justice and human rights. Students taking the LLB Law at Goldsmiths can choose to specialise in these subjects, by taking the synonymous pathway degree (LLB Law with Criminal Justice and Human Rights).

For information on the annual criminal justice symposium or the LLB Law and LLB Law with Criminal Justice and Human Rights degrees contact the Law department at Law@gold.ac.uk

Photo credit: Richard Gardner

Goldsmiths Law collaboration with pioneering ‘Forensic Architecture’ agency

The LLB Law at Goldsmiths is innovative and cutting edge, preparing lawyers for a flexible 21stcentury workplace. As such, the programme places a strong emphasis on inter-disciplinary legal analysis and equipping students with skills that are applicable to the legal profession as traditionally conceived (see, for example, our recent announcement about integrating workshops and advice on the barrister profession by the Honourable Society of the Inner Temple) but also honing skills that will be central to future legal careers.

The latest illustration of this modern approach to legal studies is an emerging collaboration with Forensic Architecture, the pioneering research agency that undertakes advanced architectural and media research on behalf of international prosecutors, human rights organisations and environmental justice groups.

On 25 March 2019, Head of Goldsmiths Law, Prof Dimitrios Giannoulopoulos, visited the award winning agency, where MA students in Research Architecture were presenting their ongoing forensic investigations, under the supervision of Dr Lorenzo Pezzani (who leads the MA Studio in Forensic Architecture) and in the presence of the director of the agency, Eyal Weizman.

The MA in Forensic Architecture examines how architecture can engage with questions of contemporary culture, politics, media, ecology and justice. Goldsmiths Law is very keen to collaborate with the MA in relation to research and teaching at the intersection of architecture and justice.

One of the students who presented their work at the workshop, Dimitra Andritsou, examines the politics of fire at play at Moria refugee camp on the island of Lesvos, one of the frontier ‘chokepoints’ of the European border regime.

Slide from Dimitra Andritsou’s research presentation on fires at the Moria refugee camp as a manifestation of abandonment from the part of the state (credit: Dimitra Andritsou)

‘From blazes of indignation to flaring humanitarian infrastructure, fire on the island emerges as a lurking, ubiquitous presence’, her research project argues.

Dimitra’s work interrogates fire’s ‘manifestation as an ambiguous force that highlights the precarious, differentiated regime of abandonment and care, and thus signals institutional failure at diverse, inter-scalar registers’.

The Moria refugee camp (copyright: Giorgos Moutafis/Reuters)

Entering in conversation with Prof Giannoulopoulos about varied levels of accountability, and opportunities for intervention, from the local to the national and then to the transnational, including from relevant EU institutions, Dimitra replied that there was ‘an urgent need to problematize and rethink how accountability may be addressed at diverse levels in such a conflictual field’.

Earlier on this academic year, Forensic Architecture’s deputy director, Christina Varvia, spoke at Goldsmiths Law’s symposium on Technology and Human Rights (November 2018).

Forensic Architecture’s deputy director, Christina Varvia, speaking at Goldsmiths Law’s symposium on technology and human rights

Forensic Architecture have won several awards for their bold and innovative work, and were nominated for the 2018 Turner Prize.

 

 

 

 

 

Goldsmiths Law roundtable brings together academics, legal professionals and NGO experts to discuss the Human Rights Act

Goldsmiths Law and the Knowing Our Rights research project coordinated a roundtable event on the impact of the European Convention on Human Rights in the UK, on 22 January 2019, at the Royal Society of Arts. You can watch some of the highlights in this video.

The roundtable shed light on issues relating to the UK’s relationship with the ECHR, including:

– the effect of ECHR jurisprudence in the UK, such as in relation to balancing liberty with securitarian interests in the fight against terrorism, the right to vote, state surveillance, the right to private and family life of mothers in prison etc;

– how to fight against human rights sensationalism in the media;

– raising awareness about how human rights affect our lives;

– the link between Euroscepticism and the Conservative Government’s antipathy towards the Human Rights Act;

– where we are now with the Conservative Government’s plan to substitute a British Bill of Rights for the Human Rights Act, and how Brexit may have changed the dynamics.

The event provided another opportunity to mark the twentieth anniversary of the Royal Assent to the HRA, with a focus on the persons behind the HRA, those who helped bring it to life and determine its architecture (and on those who antagonise it too).

Speakers: Jonathan Cooper OBE, Doughty Street Chambers; Sanchita Hosali, Director, British Institute of Human Rights; Liora Lazarus, Associate Professor in Law, Faculty of Law, Oxford; Fellow, St Anne’s College, and Head of Research at the Bonavero Institute of Human Rights; Nadia O’Mara, Policy and Campaigns Officer at Liberty; Sir Geoffrey Nice QC, Visiting Professor, Law, Goldsmiths, University of London; Maya Sikand, Head of the Human Rights Team, Garden Court Chambers; Adam Wagner, Doughty Street Chambers; founder of RightsInfo and UK Human Rights Blog; Ruvi Ziegler, Associate Professor of Law, University of Reading.

Prof Dimitrios Giannoulopoulos, Head of Law at Goldsmiths and director of the Knowing Our Rights project, chaired the event.

The event was supported by the Human Rights Lawyers’ Association.

Benson and Giannoulopoulos on citizens’ rights after Brexit

No deal Brexit: on the road to nowhere for citizens’ rights

Prof Dimitrios Giannoulopoulos, Inaugural Chair in Law and Director of the Britain in Europe thinktank at Goldsmiths, University of London, and Dr Michaela Benson, Reader in Sociology, Research leader for the project Brexpats: freedom of movement, citizenship and Brexit in the lives of Britons resident in the European Union and a ‘Britain in Europe’ expert at Goldsmiths, University of London, provide a critique of the policy paper on citizens’ rights, published by the Department for Exiting the European Union (DExEU) on December 6th.

With the UK experiencing its deepest constitutional crisis of modern times, and amidst the drama coming from Westminster last week, few will have noticed the DExEU’s policy paper on citizens’ rights published on December 6th. But it is precisely these citizens (EU citizens in the UK, and UK citizens in the EU) who stand to be affected the most – their lives in some cases shattered – as a result of the political chaos Brexit has brought upon this country.

The paper makes for grim reading. For EU citizens in the UK, ‘no deal’ would mean a shorter deadline for applications, the loss of the right to appeal against a refusal of settlement under the scheme, the introduction of a cut-off point for family members to join EU citizens with ‘settled status’ and even a lower threshold for deportation, where EU citizens have committed minor crimes.

But a ‘no deal’ scenario does not in reality create the need for any of this. Most of the changes the policy paper advocates are a political choice and rather point to the beginnings of a ‘hostile environment’, and reverting to treating EU citizens as ‘bargaining chips’, ‘foreigners’, ‘others’.

As to UK citizens in the EU, the policy paper is simply reduced to a declaration of understanding of the uncertainty this dispersed population would face in the event of a ‘no deal’, which comes with the admission that ‘the UK cannot act unilaterally to protect the rights of UK nationals in the EU’.

In relation to practical matters of critical importance for the British in the EU, such as protecting past social security contributions, reciprocal healthcare arrangements and the right to bring EU and non-EU citizen family members back to the UK, the report makes the startling admission that the government is ‘exploring options’ and ‘will set out further details in due course’. Thirty months after the EU referendum, this is the frightening state of (no) planning for a ‘no deal’ Brexit.

Even in the case of the deal, serious issues remain for this dispersed population. It is unclear how the 27 member states intend to implement this agreement, and they have yet to make clear the administrative procedures British citizens already resident in their jurisdictions will need to go through in order to secure their status after transition. Simply, while currently processed as EU citizens with the right to Freedom of Movement, once EU citizenship is removed from British citizens, it is uncertain what their future legal status will be within these states, and whether they will be treated as Third Country Nationals.

This is just the latest in what has been an interminable rollercoaster ride for these citizens. It is a reminder of the detrimental effect Brexit has already had upon them,  and the state of precariousness they’ve been facing for so long.

Couple the above with publication of the hostile to EU citizens immigration white paper, which announces the end of free movement for them, the fact that the UK government has just dropped claims that no-deal Brexit is ‘unlikely’, and the announcement from the European Commission that it has started to implement its preparations for a no-deal Brexit, and the full extent of the predicament citizens affected by Brexit are faced with immediately becomes clear.

This is the nightmarish scenario citizens were reassured they would not be confronted with. ‘You can stay, and we want you to stay’, they said, but they didn’t really mean it.

 

Technology and human rights: an uneasy relationship?

Digital technology touches on and empowers every aspect of our lives, whether as consumers, users of public services, citizens or voters.

Yet the collection and exchange of personal information can interfere with our right to privacy, and the abuse of technology can distort our democracies and lead to serious breaches of human rights.

The informational privacy mega-scandals of recent years, such as the dramatic revelations by Edward Snowden of the post 9/11 global, mass, surveillance systems operated by security services, or the Facebook-Cambridge Analytica data harvesting scandal, which were courageously brought to the surface through the work of Carole Cadwalladr and whistle-blower Chris Wilie, point, worryingly, to the rise of a new Panopticism that threatens to suppress private existence in the interest of security, financial gain and control of political power.

On November 5, the Goldsmiths Law symposium on technology and human rights, in collaboration with the Goldsmiths-based Knowing Our Rights project and the New Europeans thinktank, explored key questions around the difficult coexistence of technology with human rights.

Prof Dimitrios Giannoulopoulos, who holds Goldsmiths’ inaugural chair in Law, opened up the symposium by identifying four key preliminary lines of inquiry: (a) the regulation of state surveillance, and the importance of ECHR jurisprudence in striking the balance between protecting national security and the right to privacy; (b) the abuse of communications technology as a threat to democratic elections in the age of social media; (c) the human rights challenges posed by artificial intelligence and (d) the ethical objections to machines exercising control over humans, e.g. in border control situations (he mentioned the example of an EU funded project, called IBORDERCTRL: the project is developing a way to speed up traffic at the EU’s external borders and ramp up security using an automated border-control system that will put travellers to the test using lie-detecting avatars).

Prof Giannoulopoulos explained that the symposium aimed to undertake a contextual study of specific technologies’ impact on the right to privacy, and reflect on what specific measures we can take to protect our core individual liberties against technological threats, and conversely how we can use technology to enhance the enjoyment of individual liberties.

Prof Douwe Korff with Julie Ward MEP

Prof Douwe Korff (Emeritus Professor of International Law at London Metropolitan University, Associate of the Oxford Martin School, Oxford and Visiting Fellow at Yale University’s Information Society Project) explained that it is becoming clear that the problem is not the rules and guidelines, but how they are being applied, noting, with concern, that law enforcement agencies are increasingly demanding the powers of national security agencies. Referring to the ECHR, he also noted that fighting arbitrary power, including in relation to privacy, is at the very core of the Court’s jurisprudence, but the problem has always been the loopholes, those deriving from the antagonistic interest to protect national security or public order for instance.

Julie Ward MEP (who is Labour’s spokesperson in the European Parliament on culture and education, member of the women’s rights and gender equality committee, Board member of the European Internet Forum, Attendee of the annual Internet Governance Forum, and an expert of the Goldsmiths-based Britain in Europe thinktank) argued that legislators have been slow to respond to the issue of technology conflicting with human rights. “The Facebook and Cambridge Analytica scandals demonstrate lack of attention”, she pointed out, “with Brexit and Trump being wake up calls”, adding that “there are dark web machinations we don’t even know about”.

Julie discussed her membership of the European Parliament Digital Working Group and the Human Rights Committee, and her work on the Copyright Directive, which she is a strong advocate for and which she considers an important mechanism to protect the incomes and incentives for creatives. She also raised concerns that at the European Internet Forum, “civil society is hardly in the room”, and that it’s primarily the “big players” (tech companies) talking to governments.  Julie pointed to the importance of ensuring that access to the internet is protected as a human right, and expressed concern that post-Brexit, British politicians will “not be in the room” when  internet-related agreements are being made and Britain will have less global influence in this debate.

Andreas Aktoudianakis with Prof Dimitrios Giannoulopoulos

Andreas Aktoudianakis with Prof Dimitrios Giannoulopoulos

Andreas Aktoudianakis, who provides direct, high-level research and programmatic support to the director of the Open Society European Policy Institute, placed the question in the context of the rise in populism in Europe. Big data is generating a ‘modern revival’ of 1930s communication theories, he explained, with algorithms confirming existing biases (filter bubbles) and falsehoods being 70% more likely to be shared than truths.

Dr Bethany Shiner

Dr Bethany Shiner

Bethany Shiner, a lecturer in Law at Middlesex University, asked whether the electoral law’s understanding of influence for the purpose of democratic autonomy is out-of-date when it comes to technology. She argued that explanations for electorate decision-making and influence, as reflected in popular discourse, as well as the law, are flawed and problematic in their simplicity, and that instead of measuring interference in elections through undue influence, harm can be shown by focusing on the intent of political campaigns to knowingly deceive, mislead or lie.

Hannah Couchman, who leads Liberty’s advocacy work on technology and human rights, including surveillance, the use of technology in policing and data rights, expressed significant concern about the use of AI in police decision-making and predictions. Datasets are all intrinsically biased, she noted; when we teach a computer, we are teaching it our own biases. She raised the example of HART (Hart Assessment Risk Tool), used by Durham Police Constabulary, which diverts people to and from the court process depending on their data and ‘risk of re-offending’. Hannah expressed the wider concern that these technologies are being used before we really know how they work; advantages are actually irrelevant until we’ve addressed the human rights implications of these technologies.

Hannah Couchman with Goldsmiths' Prof Susan Schuppli

Hannah Couchman with Goldsmiths’ Prof Susan Schuppli

The use of AI in policing in particular could generate arbitrariness, inequality and breach of fundamental rights, Hannah observed. The foundation of democracy and the rule of law is that you have reasoned decisions, which somebody can challenge and question and appeal, she concluded. You can’t do that with an algorithm, and, with self-learning algorithms you can’t even do that with the designer of the algorithm because they themselves will no longer be able to explain it.

Dr Jerdrez Nicklas

Dr Jerdrez Nicklas

Dr Jedrzej Niklas, a Research officer in the department of Media and Communications for the Justice, Equity and Technology (JET) project, at the London School of Economics, focused on the relationship between AI and social justice, explaining how JET examines the impact of automated computer systems on anti-discrimination advocacy and service organizations in Europe. Of particular interest to the symposium was a discussion of gender bias in search engines, which Jerdrzej explored in the Q & A session that followed his presentation.

Midori Takenake

Midori Takenake, an associate at Clifford Chance, working in the Corporate Technology team and advising a wide range of corporates, financial institutions and technology companies on data protection, emerging technology and key commercial agreements, explained that as a result of the GDPR, companies are now taking more notice of their ethical use of AI and large datasets. Companies are so worried of the fines attached to the GDPR that people are actually paying attention to these issues in the boardroom. “Data ethics” is the new buzzword, she said. But, at the same time, it’s often overlooked that GDPR and data protection is actually just one part of a much larger, broader ‘umbrella’ issue: human rights; the link is there but often is not made explicitly.

Kilian Vieth

Kilian Vieth

Kilian Vieth, who manages the work of SNV (Stiftung Neue Verantwortungon) on government surveillance and intelligence oversight, focused on how judicial oversight is critical in the field of bulk surveillance, but also a very complex exercise, because of the different conceptualisations of the intelligence cycle.

Jonathan McCully

Jonathan McCully

 

Jonathan McCully, a legal adviser to the Digital Freedom Fund and Editor of Columbia University’s Freedom of Expression Case Law Database, discussed facial recognition technologies, giving the example of taking a biometric map of your face and placing it on a watch list. The facial map can then be used to identify individuals in crowds and other public places. This generated significant concerns in relation to the discriminatory effects of these practices, particularly for women and people of colour. He also referred to the challenge of regulating the “Internet of Things” and the “Internet of Toys”, which he described as “bringing spies into our homes”. He pointed to the example of the “My Friend Caila” doll which has been banned in many places due to spying concerns.

from left to right: Jonathan McCully, Sabrina Rau and Kilian Vieth

Sabrina Rau, a Senior Research officer at the Human Rights, Big Data and Technology project (HRBDT) at the University of Essex, focusing specifically on the regulation of businesses, provided a brief background on the United Nations Guiding Principles on Business and Human Rights (UNGPs) and their development, explaining what they mean for ICT companies in the context of current regulation and what unique elements of the sector make such assessments challenging. She concluded by illustrating the added value of consulting the UNGPs to determine the responsibility that ICT companies should have when it comes to protecting, respecting and remedying human rights.

Griff Ferris, who is Legal & Policy Officer at Big Brother Watch, gave an outline of the Big Brother Watch (and others) v the United Kingdom case at the European Court of Human Rights, brought post-Snowden in 2013/14. He described the chilling effect of the PRISM and Tempora bulk interception regimes that were adopted by NSA and GCHQ, and were at the centre of the Big Brother Watch case. The outcome of the case was that the Court agreed that there was a lack of oversight and a lack of safeguards, he explained, but that generally the concept of bulk surveillance did fall under the state’s margin of appreciation (and was therefore legal). He concluded his analysis on the case by noting that Big Brother Watch is continuing to call for respecting necessity and proportionality in bulk surveillance.

He then added that other areas of concern for Big Brother Watch include face surveillance, predictive policing, free speech online, restrictions in relation to the regulation of the internet and the use of digital evidence in relation to victims with a complete lack of safeguards in place (e.g. rape victims’ phone data being downloaded by the police etc.)

Marianne Franklin, Professor of Global Media and Politics at Goldsmiths, who intervened via Skype, offered an overview of the Internet & Rights Principles Coalition, where she has served as a co-chair. The coalition is active across internet policy-making meetings that focus on human rights frameworks with partipcipants from civil society, technical community, academia, business, IGOs, political parties, and other policy makers around the world. It provides leadership and supporting roles on the ground and online for education, consultations, and implementation projects in which rights-based and sustainable internet policy agendas are at stake.

The main work of the Coalition has been to build awareness, understanding and a shared platform for mobilisation around rights and principles for the internet, explained Prof Franklin, drawing on the Coalition’s flagship document, the Charter of Human Rights and Principles for the Internet.

The symposium closed with a presentation by Christina Varvia, deputy director at Forensic Architecture (FA), the pioneering research agency based at Goldsmiths. Christina explained how FA undertake advanced architectural and media research on behalf of international prosecutors, human rights organisations and political and environmental justice groups. The premise of FA is that analysing violations of human rights and international humanitarian law (IHL) in urban, media-rich environments requires modelling dynamic events as they unfold in space and time, creating navigable 3D models of sites of conflict and the creation of animations and interactive cartographies on the urban or architectural scale. The techniques of architectural analysis also enable FA to generate new insights into the context and conduct of urban conflict. Combining these novel approaches, FA have built a track record of decisive contributions to high-profile human rights investigations, providing forms of evidence that other methods cannot engage with.

The symposium was organised in collaboration with the New Europeans  thinktank, and special thanks are due to Roger Casale, CEO of New Europeans, and Kristiana Kuneva, for coordination and support. New Europeans champions freedom of movement, non-discrimination and the principle of solidarity in Europe.

The team behind the Law programme at Goldsmiths wants to thank the many sixth form students who have attended the symposium for their attention as well as the wider audience which engaged in the debate, including representatives from the British Institute of International and Comparative Law (BIICL) and the Joint Committee on Human Rights.

Special thanks are also due to Gemma McNeil-Walsh, Research Assistant to the Director at BIICL. This post is based on notes she has taken at the symposium.

Photographs were taken by, and are the copyright of, of Richard Gardner.

For more information on the above, and on how the LLB Law programme at Goldsmiths integrates theoretical knowledge and skills related to the interaction between law, technology and human rights, please contact Prof Dimitrios Giannoulopoulos.