QED LAW revision seminars July / August 2008

Law Revision Course July / August 2008

“I thought that the criminal law seminar was outstanding. The information about how to tackle criminal law questions was so well presented and easy to follow. It complemented perfectly the very clear recorded criminal law lectures which I have found to be absolutely invaluable” Lilian Zihni, LLB, University of London (External)

This year’s summer revision course in the core Law Subjects - criminal law, law of contract, legal system, public law, law of tort, equity and trusts, land law and eu law - will take place on July 26th, July 27th and August 2nd at University College, London.

Open to all law students on LLB - GDL / CPE and ILEX courses.

For further information please click here

Anglia Ruskin declines to provide information

In common with all the other universities of the UK, Anglia Ruskin University was asked - under the terms of the Freedom of Information Act - to provide copies of its recent examination papers in criminal law. The request was made as part of comparative research into the format and content of criminal law exams nationally.

Anglia has declined to release the information. It has relied on s 43 of the Act which provides that information need not be provided if disclosure would ‘prejudice the commercial interests of any person including the public authority’.

Section 17 of the Act states that an authority relying on this exemption is obliged to explain why it applies. It must give reasons. Anglia Ruskin gives none. It merely states that education is its ‘product’ and that:’therefore… providing this information prejudices the commercial interests of the University.’

The logic of this is unclear.

How does it follow that, because the university is a provider of education, revealing information about its past exams would prejudice its commercial interests ? Is the implication that the examination papers themselves are also commercial products ?

Clearly if a requester were to publish the papers or exploit them commercially they would be in breach of the university’s copyright. But that is an entirely separate issue from the question of whether the information should be provided under the Act. All information released under the Act is subject to copyright. Were a public authority entitled to rely on its copyright as a reason for withholding information the Act would be ineffectual. And, in any case, the Copyright, Designs and Patents Act 1988 permits the publication of brief extracts for the purposes of research for non-commercial purposes, private study, criticism, review and news reporting.

Furthermore, the commercial interests exemption is not an absolute exemption. It is subject to a ‘public interest’ test. That is, even where a public authority is satisfied that the information requested is a trade secret or that disclosing it would prejudice commercial interests it can only decline to provide the information if it believes the public interest in withholding the information outweighs the public interest in disclosing it.

And again s 17 of the Act requires the public authority to give reasons - to explain to a requester why it would not be in the public interest to provide the information. Anglia Ruskin simply says it is not in the public interest to provide the examination papers.

My concern with this approach to the application and interpretation of the exemption sections in the FOI is that it runs counter to the spirit of the legislation. Although they operate in a commercial environment, universities are primarily public authorities, carrying out public functions and largely publicly funded. As such they are accountable to the public for the carrying out of those functions. Why should an interested member of the public - a prospective applicant or an employer for example - be denied information about the approach a university takes to a subject and how students are assessed in respect of it? The bias of the legislation is clearly in favour of disclosure. To exaggerate the commercial interests of the university at the expense of its public functions would stifle accountability. And what reason is there in that ?

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Unlike most universities, Anglia does not have an internal appeals procedure to deal with FOI refusals. It explains that an appeal can be made to the Information Commissioner. Although there is currently 18 months backlog with appeals it is being considered.

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Update: The Open University has also declined to provide its criminal law exam papers relying on s 43. The facts are slightly different. The OU ordinarily makes its exam papers available to the public but it operates its law degree in partnership with the College of Law and the papers belong to the College - which is not a public authority and therefore not subject to the Act. The OU believes that release of the papers would harm the commercial interests of the College -’by placing information in the public domain which is its commercial product’. The OU adds that it is not in the public interest to reveal the information as it would damage the relationship between the OU and the College. Discuss…

Freedom is a word I rarely use without thinking. Ho hum.

Should Nick Griffin and David Irving have been invited to speak at the Oxford Union? Everyone who is anyone and a lot of people who are not have offered their opinion on the issue. Even Charon got involved. And a lot of readers of his blog took advantage of the freedom to express their views.

‘Martin’ got the ball rolling by taking time off work to tell us that he agreed with Charon.

Fascinating stuff, Martin. Thanks for letting us know. That’s freedom of speech in action.

‘Tony’ then advised us:

“And this one above; if understood, said 5 yrs ago, shows Might in abuse if he cannot speak freely ad be rebutted cogently.”

I don’t agree with your opinion Tony but I defend your write to say it.

[Tony returned to apologise for his typos but, regrettably, not for the full frontal assault on the English language]

‘Anne’ - a staunch believer in the right to free speech and the right to waste her vote - lamented the fact that “for thirty-four years I have voted for a Party that wants to remain in a European Union that I want out of, a Party that continues to tell me untruths about the Reform Treaty, that wants to be at the “Heart” of Europe, etc”.

34 years! Anne – let go. They are not worth it.

‘Christopher’, taking freedom of speech to a transcendental level, took the time out from his lunch break to tell us: “ my views on the views of Griffin and Irving are irrelevent”.

All ‘Tim’ wanted to say was that he believed that people should be able to say what they wanted to say.

Thought provoking stuff.

‘Mark’ took advantage of the right to free speech to ask “If the Germans had won the war and occupied Gt Britain, would we still be caged? ”

Possibly, Mark, but we can’t know for certain. Controversially, David Irving thinks that we would have been raised in barns or,possibly, ‘free range’.

Tony returned and without any sense of irony offered his opinion on ‘truth’. This time, without the decency of an apology, he wrote –

“All Mr. Irvine has to show is that what he says; corresponds with reality that does NOT vary in accordance with viewpoints or Frege’s senses and references. I doubt he can do that at all, considering the testimony, fixed meaning of words, and substantial recorded facts.”

As before, Tony, I don’t understand a word of what you are saying but I defend your right etc…

‘Anne’ returned lamenting (yet again) .

This time she reminisced about the second world war, regretted the lack of a Churchill, and feared that the country was not ready.

We are ready, Anne. Believe me. Next time we will play 5 in midfield.

Peter thought that all views should be allowed but enigmatically kept his reasons for thinking that to himself.

Then at 7.02 pm ( and again at 7.04pm), the tone of the debate was raised by the appropriately named “Barry Turner” - who – would you know –

‘deals in free speech issues on a DAILY basis (I teach media law)’.

An expert on freedom of speech. This was just what the blog was looking for.

Although his schedule is presumably very busy (dealing with free speech issues on a daily basis) he made time to tell us (twice) that ‘the right to free speech is paradoxically defended by the very fact that we control it.’

Thanks Barry. I am always impressed how experts can spot paradoxes better than the rest of us.

“Ian’ told us that he is ‘white, protestant, straight and working class’ and then expected us to believe that he agrees with Nick Griffin.

Pull the other one, mate.

‘Anne’ returned to lament the fact that the board is not ‘adult’. She then reminisced about the Boer War and Churchill.

Ian returned at 10.19 to argue with Anne and Anne returned at 11.40 to argue with Ian.

But by that time I felt that I had learnt all there was to know about free speech and went to bed.

No comments please – I’ve got work to do (on a daily basis).

Clive C Smith

A sair fecht

This week Alex Salmond predicted that Scotland will be independent by 2017. Many commentators believe that is wishful thinking on behalf of Scotland’s first minister. The SNP has – at regular intervals – predicted the end of the Union. Winnie Ewing – the SNP’s first MP elected in 1967 - predicted independence by the 1970’s. In 1992 the slogan was “free by 93” and in 2000 the objective was independence by 2007.

But this time things may be different. Simon Heffer writing in the Daily Telegraph argues that the Union is already finished. The English, he suggests, are no longer prepared to tolerate a Union whose only beneficiaries are the Scottish people and the Labour Party. He repeats ( as he does regularly ) the (erroneous) view that Scotland is subsidised by England and, overlooking the fact that Labour currently has a majority of English MPs, writes that, with Scottish independence, “Labour’s chances of ever again ruling the key country of the Union - England - would vanish.”

Judging by the comments to his article there are many Daily Telegraph readers south of the border who agree with Heffer’s rant. But there is a lack of unanimity on the solution. Some favour Malcolm Rifkind’s proposal of a Grand Committee of the House of Commons in which only MPs representing English constituencies would be entitled to vote on matters affecting only England. Others believe this does not go far enough. And ‘Adrian’ wonders “what gives Rifkind the right as a Scotsman to pontificate on English matters”.

If Rifkind’s ‘right to pontificate’ is unacceptable to Adrian you can imagine how he and his disciples would react if an English Grand Committee were to be set up and Michael Martin, MP for Glasgow North East as Speaker decided that a Bill did not apply exclusively to England on the basis that it had public spending implications for the rest of the UK.

Other posters recommend more practical responses, requiring no change to the constitution. ‘Bored’ advises the English to move to Scotland and enjoy the free education, free prescriptions and care.

‘Peter’ offers a less amicable response. He suggests that the English should first leave the union and then “attack and conquer Scotland again and we have got rid of all England’s problems.”

As a solution to the West Lothian question this might appeal to those like ‘Mike’ who are ‘sick and tired of listening to Scots voices introducing programmes on tv, doing the commercials in between programmes, clogging up the Houses of Parliament, running our Government, managing our football clubs and presenting the news programmes.’

But for most it is probably a bit extreme and, in any case, with Trident at its disposal, Scotland might prove too well defended. The prospect of being sent homewards to think again (again) would probably discourage even the most bellicose of the English.

Advertising London

Am I easily shocked ?

As a frequent traveller on Eurostar I receive promotional email updates from them. Most are dull and formulaic. But not the one I received today.

Although sent by Eurostar UK it is aimed at a French audience and includes a link to a website designed to publicise the delights of London.

With nothing better to do I though I would have a look to see how the Smoke is portrayed and from a selection of video vignettes clicked on the link to ‘Froggy Julie’.

Filmed in Camden, the video is quite short ( and so it appears initially, is the cameraman ). The theme is set by the presenter who explains that she is going to test whether London punks are authentic or really French people disguised to attract visitors. A couple of punks are involved in a banal staged test involving hair pulling and the presenter is ‘convinced’ the punks are genuine. She askes them some daft questions (including ‘can you sing something’ which the female mishears as ‘can you think something’).

After a couple further exchanges designed to highlight the crazy sense of humour of the English the interview with the girl is brought to an end with a kiss and, in what must be a first for advertising, the young interviewee tells the cameraman that he is a c***.

I am not sure if the cameraman is or is not a c*** but the presenter appeared unperturbed.

The customer relations assistant at Eurostar, however, was perturbed. Clearly.

“When you say that the girl uses the ‘C’ word do you mean she says ’see - you - enn - tea’ ?” she asked me, scarcely believing that Eurostar was breaking new ground in high speed advertising.

“Yes” - I said, convincingly.

Eurostar are going to investigate.

If you would like to be offended before they pull the video…

Click the link to the website

Click - ‘passer l’introduction’ (skip the introduction) at the foot of the page.

Click -’Programmes’ on the right side of the next page.

Click - ‘Froggy Julie’ - that is the miniature screen in the centre of the top row.

Although most of the video is in French the two British interviewees speak a version of BBC English.

UPDATE: The offending video has now been replaced.

Eurostar Customer Service Team Leader, Natalie Hudlum explained: ” The project was conceived by a French marketing agency who are expected to monitor content for suitability and we can only assume that the link in question must have passed under their radar, and subsequently ours, when the checks were made. Eurostar would never knowingly condone this type of language and, as you say, allow something like this to be representative of us as a company.”

That’s a relief.

NB.

Kennedy - manslaughter and the administration of drugs

In Kennedy [2007] UKHL 38 the House of Lords considered the following certified question:

“When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?”

It concluded: ‘In the case of a fully informed and responsible adult, never.’

Those familiar with this area of criminal law will welcome the decision and Consilio will be publishing a commentary on it in November.

2:1 or not 2:1 ? What was the question ?

The current system of degree classification was introduced 200 years at Oxford University but when the Burgess Group in its Scoping Report declared that it was no longer ‘fit for purpose’ many assumed that its future was limited. However, in its final report published last week, the Group has preferred evolutionary change to revolution. It recommends that, by 2010/11, the current system of degree classification should be accompanied by a detailed transcript providing an “authoritative and official record of a learner’s programme of study, the grades they have achieved and the credit they have gained.” The Group intends that the proposed system will provide much more information about individual achievement and believes that the current ‘fixation on a single number’ will gradually disappear.

The NUS has given a qualified welcome to the Report. It believes that: “The present system cannot capture achievement in some key areas of interest to students and employers and many employers could be missing out on the skills and experience of potential recruits merely because these students had not attained a First/Upper Second.” It is optimistic that the existing system will gradually become obselete as the new one develops.

Although numbers and grades based on numbers will cease to be the sole measure it would be surprising if they no longer played a prominent part in evaluating student achievement. It is unlikely that employers and indeed students will ever entirely be free of their ‘fixation with numbers’ and, whilst they remain part of the evaluative process, it is the reliability of the grades based upon them which is likely to be the main concern.

Despite the external examining system, which is intended to ensure parity of standards, there is a widespread belief that some institutions are more generous than others and that there are inconsistencies between departments within the same institution. In addition there is evidence of grade inflation. The percentage of students obtaining first and upper second class honours has increased from 54% in 1994/1995 to nearly 60% in 2005/6. Despite the suspicion that the inflation is attributable to relaxed standards applied by the new universities recent research suggests that the Russell Group universities account for a disproportionate amount of the increase.

The Burgess Group declined to engage in the debate about grade inflation. It noted however that “the obsession with the top two degree classes is unhealthy and damaging. It reinforces an erroneous impression that a Lower Second or a Third class honours degree is not an achievement, when in fact the student has met the standard to receive an honours degree level qualification.”

No system – other than an administratively unwieldy centralised system – could ensure that the standards of all institutions were identical but the disorienting impact of grade inflation could be moderated by ranking each students performance according to percentiles. The knowledge that a student with a first class honours or upper second was in the top 10%, 20%, 30% or 50% of his or her cohort would provide an additional measure by which his or her achievement could be evaluated.

Over the coming weeks Consilio will be gathering information concerning the grades awarded to law students at UK universities to identify the extent of inflation in undergraduate Law awards. We will keep you posted.

NB

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There are two Editors of the blog - Mike Semple Piggot and Norman Baird.  To distinguish posts - we will try to remember to use our initials!
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