Syrian Refugees in Europe: what’s happening?

The following is the text of remarks made by our Dr Justin Borg-Barthet at a panel discussion organised by the Aberdeen University Yad’am Society on 6 February 2017.

Introductory remarks

To begin with, it is worth considering why we in Europe should be concerned about the Syrian refugee crisis.  Syria, after all, is not a European state and Syrians do not traditionally consider Europe to be their most immediate cultural hinterland.  It is arguable, therefore, that Syria and Syrian refugees are not European problems.

But let’s be clear that since the end of the Second World War, at least, we have all embraced the principle of a common humanity.  This is not merely a political statement, but is a principle entrenched in international law – like the 1951 Refugee Convention – and in the human rights law of the European Union and the European Convention on Human Rights (ECHR).

In the spirit of a broader humanity, I will not confine my comments to matters solely pertaining to the Syrian crisis.  That crisis is simply the most recent in a series of developments which have seen the European Union fall short of its humanitarian and human rights obligations in respect of refugees and asylum seekers.  It illustrates, in stark terms, an ongoing systematic and systemic problem in the EU’s relations with its neighbourhood.

In these brief remarks, I will address two main points.  First, I wish to highlight a failure to comply with obligations.  Secondly, I will consider briefly the constitutional policy implications of this failure, and make modest recommendations about how the Union could seek to address persistent problems.

Humanitarian and human rights obligations

EU human rights law has come a long way since the first steps towards European integration in the 1950s.  This is most clearly seen in recent judgments of the Court of Justice of the European Union (CJEU) regarding relocation of asylum seekers.  In the NS case, Afghan asylum seekers in the UK were to be returned to Greece, which was their point of entry into the EU.  Under the Dublin Regulation, Greece was responsible for processing the asylum claim.  It was found, however, that the applicants’ right to be free from inhuman and degrading treatment would be at risk due to systemic problems in Greece.  It followed that the UK could not return the asylum seekers.

The decision of the CJEU is, of course, to be applauded.  It demonstrated a shift in emphasis from the rights of states to those of individuals.  However, that judgment did nothing to alter the facts on the ground for most asylum seekers in Europe.

Reception conditions

Greece, Italy and Malta are the main ports of entry for refugees and asylum seekers from Africa, the Middle East and further afield.  Each of those states has been found to be in breach of the European Convention on Human Rights due to their inadequate treatment of refugees (e.g. M S S v Belgium and Greece (2011) 53 EHRR 2; Aden Ahmed v Malta ECHR App No 55352/12 (23 July 2013); Hirsi Jamaa v Italy (2012) 55 EHRR 21).  In particular, reception conditions have been found to breach the prohibition of the right to liberty (due to forced detention) and, consequently, the prohibition of torture (due to the adverse effects of detention on mental health).

The problems in these three states are compounded by the fact that they bear the brunt of responsibility for dealing with migration to the EU.  Whatever lofty declarations are made in the north and west of Europe, and despite images of hundreds of people trekking across a continent, the fact remains that pressures are concentrated in a small number of member states, which brings us to another problem of so-called burden sharing.

Burden sharing

A number of EU member states have long argued that there should be a system of compulsory burden sharing.  In other words, the responsibility for hosting and processing asylum seekers should be shared between the Member States rather than being concentrated in border-states.  The Geneva Convention arguably requires burden sharing as a matter of international law.  EU law itself is founded on the principle of solidarity between states and people.

But still, wealthier states which are geographically insulated from the crisis have resisted compulsory burden sharing.  Instead, they initially accepted a voluntary system.  Latterly, a system of agreed relocation has been put into place, but the Member States have been very slow in taking any practical steps to ensure that pressures are distributed.

This is important to member states which face significant financial and social burdens.  And because of those burdens, it is also important to asylum seekers.  No member state is able single-handedly to accommodate and welcome the numbers that have been crossing the Mediterranean Sea.  In the absence of collective action, asylum seekers remain vulnerable to the inadequacies of ill-equipped states.

Relocation to third countries

Following repeated failures in seeking compulsory burden-sharing within Europe, southern EU member states have changed their strategies.  Rather than advocating relocation of asylum claimants within the EU, they have successfully argued for the externalisation of problems through so-called reception centres in Turkey and Libya.  An agreement with Turkey is now fully operative.

Of course, there is nothing wrong, in principle, with supporting Turkey in its own efforts to provide reception to migrants, or in discouraging dangerous sea-crossings.  But the fact is that, for all the failures of EU member states, the treatment of asylum seekers in Turkey and Libya leaves far more to be desired.

You may recall that I mentioned the judgment in NS earlier.  In that case, it was decided that Member States could not return migrants to other EU States if there were systemic problems in the destination state.

There is no logical reason why that principle should not be applied between the EU and third countries in the same manner as it is applied within the EU.  Fundamental rights, after all, bind the member states whether they are acting unilaterally or collectively.  The principle of non-return in the judgment in NS should preclude the return of asylum seekers to Turkey.  Yet, just last week, the informal council meeting in Malta concluded that the Turkey agreement should be replicated in Libya.  Far from questioning the strategy, the Member States are seeking instead to entrench and extend it to ever more questionable destinations.

Tellingly, humanitarian corridors were not addressed in the council conclusions, but were determined to be a matter for the future.  We will deal with that once we have secured the border.  Now where have we heard that before?

Constitutional observations

The refugee and migrant crises expose cracks in the institutional architecture of the European Union.  There has been a consistent failure to act according to constitutional principles due to the stranglehold that the member states hold over law and policy-making processes.  If they refuse to act, the Union’s principles are meaningless in practice.  While the EU rightly baulks at President Trump, its own record of treatment of refugees has not been pristine.

Of course, it is difficult for the Union and Member States to act when public opinion is unsupportive.  But let’s not forget that public opinion is divided.  It is far from unanimous in its opposition to migration.

And there is equally a great danger in failing to uphold and defend principles.  If constitutional principles are not upheld, this lends an air of legitimacy to the ideologies that are threatening the EU’s collective model itself.  By reducing the stranglehold of states, and focusing instead on representation of people and rights of people, the Union could ensure that collective action remains possible, and that it is given further effect in future.

In other words, far from the answer being less Europe; far from the answer being the dismantling of Schengen; and far from the answer being border fences between states; the answer is a more principled Europe – a more meaningful European Union that is capable of acting internationally in accordance with its founding principles.

Dr Borg-Barthet is the co-author (with Carole Lyons) of an analysis article in the 2016 Edinburgh Law Review. ‘The European Union Migration Crisis’ is currently the ‘Most Read’ article online.

yadam-syria-poster
The poster for the recent event hosted by the Yad’am Society

2016 Graduation Address by Dr. Catherine Ng, considering Aberdeen graduate the Hon. Bertha Wilson

On Monday 13 June 2016 the University of Aberdeen LLB “class of 2016” graduated. This is the text of the Graduation Address by Dr. Catherine W. Ng at that occasion.

Vice-Chancellor, Ladies and Gentlemen:

We are gathered here today to mark a very important milestone in the lives of our graduates. This is a good moment to take stock before we all march onto the beautiful lawn outside and enjoy some well-deserved celebrations with friends and families. I imagine that is the immediate short term plan for almost all our graduates here.

What then of the medium and long term plans? Many of you will be entering careers that you have prepared for at least in part during your time here at Aberdeen. Above all, my hope is that you will fulfil your potential as individuals unhindered by any preconceptions that you or others may hold about you. I hope that by keeping an open and inquiring mind, and by constantly challenging preconceptions, you will also see possibilities in others, and that you will help them to reach their potential too.

Reading law does train us to challenge preconceptions. When we study case law, statutes, and treaties and their applications and implications, we try to overcome preconceptions and figuratively step into the shoes of each of the parties in a litigious dispute, or the parties negotiating a piece of legislation or a treaty in order to appreciate their perspectives. We do this to try to understand their concerns and interests at stake, and to assess the way the law seeks to resolve their differences. It is important to look beyond the law to the communities, the individuals, and the lives that the law touches. These exposures through the law let us glimpse a vast and diverse range of human experiences and conditions.

It is also important to view these experiences and conditions with a sense of compassion, empathy, and an open and learning mind. Your experiences here at Aberdeen may illustrate the point. At the start of your time here, you all arrived from different backgrounds, stages and walks of life. Most of you had a common cause which I hope was to study law. Along the way, you made friends and supported one another through both happy times and challenging times. You celebrated one another’s birthdays away from home, and you comforted one another through essay deadlines and examination nerves. With compassion and empathy, you formed common bonds to help one another to step closer to achieving each individual’s potential. In time, some of your preconceptions and initial impressions of differences melted away as barriers. Rather often apparent differences became points of interest that broadened your horizons. Some of you may have already visited one another in your home towns or countries, or learned something about them from one another. Keeping an open mind and not shying away from differences let you broaden your perspectives to be open to new ideas and to adapt to new circumstances in our globalised world.

Laws too change because of new ideas and new circumstances. Above all, laws advance because of individuals who can realise their potential to effect change. Let me give you an example of how putting aside perceptions and preconceptions has allowed one of your predecessors to realise her potential. Back in 1944, a 20 year-old raised here in Old Aberdeen graduated with an MA degree from the University of Aberdeen. She married a clergyman and they moved to Canada in 1949. When she looked to apply for Law School admission in Canada in 1954, she was told instead to consider crocheting because law was a tough subject and not for dilettantes.[1] Now there is nothing wrong with crocheting.  It is worthwhile and honourable work. Hospitals appeal for crochet hats and blankets to keep premature and sick babies warm, to help save lives. My point here is simply about how perceptions and preconceptions could have limited potential. This Aberdeen graduate’s opportunity to read law could have been limited because of another’s perception of her as a clergyman’s wife who happened to have had some time on her hands at that point. This Aberdeen graduate’s vision for herself could have been limited because she was then that rarity as a woman applying to study law, and moreover as a mature student seeking to re-enter mainstream education at age 31. Undeterred, she applied, was accepted, and completed her LLB degree three years later.

Fast forward to 1982: this Aberdeen graduate, now the Hon. Bertha Wilson, was appointed as the first woman judge to serve on Canada’s highest court, the Supreme Court of Canada.  Also in 1982, the Canadian Charter of Human Rights and Freedoms was enacted. She and her fellow judges were setting ground-breaking constitutional precedents on human rights issues. As a pioneering woman judge, she was pressed on the questions of how far she as a judge was or should be representing the voice of Canadian women. She responded by challenging the perception of the impartiality of judges as individuals and raised the question of whether men and women with their broadly diverse experiences would bring different perspectives to certain legal issues.[2] Still challenging perceptions, you see?!  Bertha Wilson served on the Supreme Court of Canada until her retirement in 1991.[3]  The University of Aberdeen recognised her achievements and awarded her the degree of Doctor of Laws, honoris causa, in 1989. Whether or not one agrees with her views, by her having shattered some of the stereotypes about the role of women, the late Bertha Wilson opened the vision for other Canadians to realise their potential.

Today in 2016, at the University of Aberdeen, our graduates are awarded their MA (Arts and Social Sciences), PhD, and LLB degrees. Seeing others take steps to realise their potential is one of the most gratifying experiences that life offers. We are on stage now to help highlight the achievements of our graduates. Graduates, it is indeed an extraordinary privilege to see you walk across the stage to mark these achievements. Later, as we join you on the beautiful lawn outside, I hope we can meet each other on that proverbial ‘even playing field’. Life is never even among individuals. We all carry with us different backgrounds and experiences. Life is unpredictable, and not all of it within our control.  Each one of us will be different tomorrow from today in our own individual ways. But what may allow individuals to be even is in the way we keep our minds open to be compassionate and to learn from one another, to be informed by diversity and not to prejudge differences, to be edified by the past and yet never be defined by it, and so to pioneer – take chances on ourselves and on others too.

I hope that during your time at Aberdeen, you have not only gained knowledge and understanding of the law, but also perspectives, life experiences, and friendships which you will cherish for the rest of your lives, which will help you realise your potential, and which you will in turn use to help others to realise theirs. I hope that you will lead fulfilling lives, and that you will continue to challenge perceptions and preconceptions.

On behalf of us all, our warmest congratulations to you, our graduates. Please do keep in touch with us through our alumni networks, and do keep us broadening one another’s horizons.

Thank you.

LLB Graduation 2016
Students on the aforementioned beautiful lawn enjoying some well-deserved celebrations with friends and families.

References

[1] Ellen Anderson, Judging Bertha Wilson – law as large as life (U Toronto Press 2001) 3 – 38

[2] Bertha Wilson, ‘Will Women Judges Really Make a Difference?’ (1990) 28(3) Osgoode Hall LJ 507

[3] Supreme Court of Canada, ‘The Honourable Bertha Wilson’ <http://www.scc-csc.ca/court-cour/judges-juges/bio-eng.aspx?id=bertha-wilson>  accessed 4 August 2016

Gotta catch ’em all, but what about the law? Access to land and #PokemonGO

This post is by Malcolm Combe

Amidst all that is going on in the world just now, I bet you a Jigglypuff you will have heard someone talking about Pokémon. You might not exactly know what this is, but you can still be affected, as this church in Glasgow discovered. You might have been bemused by the idea of people wandering around, smartphone in hand, chasing imaginary creatures in the augmented reality world of Pokémon GO. Or you might be an avid fan, so much so that you can identify with those who crowded into New York’s Central Park when a Vaporeon popped up.

This advance into augmented reality is a fun development for many and, it appears, a profitable one for Nintendo. That being the case, as the app has been rolled out across the world (launching in its native Japan today, as reported by BBC News) it has not been without issues. That news report highlights the first Japanese accident associated with the game has already occurred, after someone fell down some real stairs whilst distracted by the game. As it rolls across reality, it is clear there are safety issues involved with immersing yourself in augmented reality: in Scotland it might be mountainous terrain, in Bosnia it might be landmines. Its augmented reality has also rolled over the legal reality of various jurisdictions. The reality of realty, that is to say the reality of property law, allows landowners to take steps to retain and regain exclusive possession of their land in many circumstances. What those steps are will depend which jurisdiction a Pidgey nests in.

Scotland

What can a Scottish landowner do? In principle, the owner of land can get an interdict (a court order prohibiting certain conduct, equivalent to an English injunction) to prevent someone encroaching on her land by, for example, building on it. Similar orders could be obtained if someone was to undermine it or periodically intrude on it by swinging the jib of a crane over it. What about someone who turns up uninvited to your land without such profound plans? All they want to do is catch a Pikachu and move on, (hopefully) leaving the land itself undamaged and any real animals on it undisturbed. Can they do that?

Access to land in Scotland has been much discussed and often misunderstood. A commonly expressed sentiment is that there is no law of trespass in Scotland. That is not quite right, but from the other end of the spectrum a landowner putting up a sign saying ‘TRESPASSERS WILL BE PROSECUTED’ is likely to be sorely disappointed if it comes to an attempt to do so. Such signs might well suggest a desire to instigate criminal action against uninvited guests, but that is normally a matter for a public prosecutor in Scotland, namely the local procurator fiscal, rather than a landowner. Meanwhile, there are some circumstances when being on land can be a criminal offence, particularly if you are part of a disorderly group or if you cause damage to property or wildlife, but a careful Pokémon hunter should be able to avoid such offences. Indeed, a one-time, harmless trespasser might not even be liable for civil damages to a landowner in Scotland, although that should not be taken as an invitation to strut anywhere with impunity. Scotland is also criss-crossed by a number of defined public rights of way, allowing people to travel from one public place to another without fear of landowner challenge.

Private Property
This sign located off the old Deeside Railway promises prosecution for trespass. Good luck with that.

That gives an idea of the underlying Scots law position. That position has actually been liberalised by recent reforms, making the legal terrain even friendlier for access takers. The key legislation that does that is Part 1 of the Land Reform (Scotland) Act 2003. It gives everyone – yes, everyone, that is exactly what the statute says – rights to cross land or to be on land for certain purposes, including recreational purposes, subject to certain exceptions based on the character of the land or the conduct that is undertaken.

Those access rights are not unchecked: they must be exercised responsibly. Activity is not responsible if it interferes with the rights of other people, which includes other access takers as well as the landowner: if one person is lazily approaching a Snorlax, perhaps you should think carefully before you barge past them. There are also certain things that can never be classed as responsible, such as ‘hunting, shooting or fishing’ or taking motorised access (unless doing that in a vehicle which has been constructed or adapted for use by a person who has a disability). Although the term ‘hunting’ is not defined, it is respectfully submitted that hunting relates to real animals as opposed to augmented reality imaginary creatures.

Some land is excluded from the scope of access rights entirely, regardless of the conduct of a purported access taker. Access rights are simply incompatible with certain features on or of excluded land, such as a building, the ‘curtilage’ immediately surrounding a building, or a reasonably sized garden next to a dwelling. From this, we can glean that the interior of the church mentioned above would not be included in Scotland’s liberal access regime. Other exclusions include longstanding attractions where a fee is payable for entry, like Blair Drummond Safari Park, a sports field when it is in use, or farmland where crops are growing. Anyone seeking entry to such should ideally obtain permission: the ‘gotta catch ’em all’ defence will not wash here. In fact, Farmers Weekly has already carried an article warning Pokémon Go players to keep clear of farms.

Assuming the land itself is not excluded from access rights, can playing an augmented reality video game be classed as recreation? Recreation is not defined, but the Scottish Outdoor Access Code‘s (PDF) explanation of the term (at paragraph 2.7) is that it includes:

  • pastimes (such as watching wildlife, sightseeing, painting, photography and enjoying historic sites);
  • family and social activities (such as short walks, dog walking, picnics, playing, sledging, paddling or flying a kite);
  • active pursuits (such as walking, cycling, horse riding, orienteering, caving, air sports and wild camping); and
  • participation in events (such as walking or cycling festivals, hill running races, and orienteering events.

It does not seem a massive stretch to include Pokémon chasing as analogous to some of these activities, most notably orienteering.

England

All in all, it seems Scotland has a regime that is quite conducive to catching ’em all. What would be the position of an English landowner? It would be fair to say that England is not traditionally viewed as having a liberal access regime. Crucially, in England the very act of being on another person’s land without permission can give the relevant landowner a claim in damages, but England has also witnessed some important statutory reforms that widen access rights away from the traditional (delimited) public footpaths and occasional voluntary agreements.

The Countryside and Rights of Way Act 2000 applies to mapped open access land, which includes mountains, moor, heath and down, and registered commons (making a much smaller proportion of the country available for access when contrasted with Scotland, in the region of 865,000 acres). That legislation confers the right to enter and remain on land for the purposes of open-air recreation, but that right is restricted by twenty exceptions listed in a schedule to the statute.  The overall effect of this scheme would allow someone to walk on land, accompanied by a dog (but no other animal) and stop for a picnic, but not use a metal detector, camp or bathe in non-tidal water.  What about gaming? There is an exception relating to ‘organised games’. Previous DEFRA guidance suggested ‘organised games’ included ‘those which use a set pitch or defined area of play, organised starts and finishes and associated infrastructure, and which involves the participation of a number of people or a competitive element.  On the other hand, we do not consider that a family group or a small group of friends engaging in an ad-hoc game of rounders or cricket, playing with a frisbee etc are “organised games”.‘ As such, Pokémon hunting might just be alright in the areas mapped as open land, and perhaps also in coastal areas by virtue of the Marine and Coastal Access Act 2009.

Important as those areas are, what about the substantial area of land not covered by such legislation? In those circumstances, players may have to hope their desired Pokémon appears on an existing village green (which might not actually need to be green at all), or will be relying on a sympathetic landowner to allow access.

Conclusion

Each legal system may have different insights to bring to this new legal situation. Of particular interest to the liberally minded are the Norwegian friluftsliv, which translates as the ‘open air life’, and the Swedish allemansrätten and Finnish jokamiehenoikeus, which translate as ‘every man’s right’. For those in favour of a stricter approach, that mindset seems to be evident in many states in the USA. Wherever you are, there will be some considerations for landowners and access takers to work through: putting up a sign berating all things Pokémon is all well and good, but will it be enforceable?

STAY OUT OF MY YARD
Image credit: @davidharvey

Of course, there are other legal issues that might need to be considered. There might be a new issue for the future: should there be a remedy for a landowner against the person who projects augmented reality apparatus onto her land? This would not quite be analogous with a traditional nuisance by a neighbouring landowner or the situation of a photo or political slogan being projected onto a landmark. Alternatively, might there be some kind of negligence if people are lured to an unsuitable location?

Those challenges are for another day. All in all, it might be an idea to embrace the technology and make the best of it. That is what my own university seems to be doing, after all.

Although the allegedly grown-up Malcolm Combe is a lecturer in the School of Law, he remembers fondly the carefree days when he would come home from school to watch a TV double-header of Pokémon then cult Channel 4 quiz show ‘Countdown’. He also went to see ‘Pokémon: the First Movie’ in the cinema with his wee sister. He is delighted to find his latent knowledge of things like Team Rocket and Charmanders are once again relevant, and even more delighted to have combined that with some legal analysis.

UPDATE: A Drowzee and a Caterpie have been sighted in the Law School office. Staff are understandably concerned.

Presenting as an Integral Part of Research

This blog post is by Dave Lorimer, an LLM by Research candidate at the University of Aberdeen. In this post – the second this blog has hosted from a postgraduate student – he reflects on a recent interdisciplinary event at the University of Aberdeen.

The inaugural Granite Symposium on 25 April 2016 provided a good opportunity to present some postgraduate thoughts. The event allowed discussion of interdisciplinary issues, in particular where the social sciences meet technology, with a view to publication in a special edition of Granite Online Journal .

The keynote presentation by Prof Karen Kelsky was an enlightening review, albeit a very trans-Atlantic one, of where to go after ‘grad school’ and how to get there. Tricky questions for many of us. There was some thought-provoking advice about pacing the publication of research and how to tie it into an academic career.

For my part I presented on my latest numerical analysis on aspects of the criminal law. Having had an interesting and varied career as an engineer in the oil and gas industry, my early retirement (at a time when ‘bean-counting’, diminishing local reserves, standardization and ‘business modelling’ was taking much of the creative fun out of engineering) allowed me to pursue a life-long fascination with the law. It struck me in the course of my LLB that there were a number of analogous processes in the logic of the law and the logic of engineering. In fact, much of the work towards the end of my engineering career was primarily determined by a Law Lord.

The technical quality of Lord Cullen’s report on the likely chain of events leading to the Piper Alpha disaster would have made any experienced engineering professional proud. His review and recommendations on the use of Quantitative Risk Assessment (QRA) as a predictive tool in industrial safety management, for me at any rate, now resonate with a defeasible approach (as often used in artificial intelligence work) to assessing the ‘unknowable’ using the logic of numbers in a legal context; QRA predicts the likelihood of possible future events in order to identify the optimum approach to the best outcome – so why not seek to apply the same logic to the understanding of past events? So far I’ve worked on four discrete numerical applications within the area of criminal law. I presented separately on the first three at Strathclyde and Aberdeen, namely: 1) the risk reducing nature of corroboration with respect to wrongful conviction; 2) a numerical view of the criminal process as a chain of events; and 3) an exculpatory assessment of defence witness reliability in a murder case-study. The Granite Symposium allowed the opportunity to present on the fourth: a numerical assessment of information transfer by witnesses at trial. Each time I present, not only do the ideas under consideration become better understood but new facets are revealed in the process of receiving feedback from the audience, which ultimately strengthens and further develops the thinking.

Information transfer by witnesses at trial

At the heart of the witness accuracy model is some Enlightenment philosophy that I gleaned during the relatively brief study of McCoubrey and Whyte’s Jurisprudence as a law undergraduate, in conjunction with a curiosity about the history of philosophy as integrated with fiction by Jostein Gaarder and Robert Pirsig, plus a schoolboy interest in the writings of Jean-Paul Sartre. The Existentialist/Kantian view that what we see is not what we think we see and that the real world is unknowable is readily transferable to the analysis of the perceptive capacities of a jury. Information transfer from crime to witness to jury in the course of a trial may be broken down into seven stages and High (> 95%), Medium (50% mid-range) and Low (< 5%) rates of information transfer accuracy can be applied at each stage to give an overview of the ultimate extent of ‘erosion of truth’ in the picture as perceived by the jury. The seven ‘Kantian’ stages can be broken down as follows;

Event occurs – Witness perceives – Witness reflects – Witness recalls – Witness testifies – Jury perceives – Jury reflects.

The idea of ‘reflection’ after perception comes from David Hume (the philosopher, uncle of the institutional writer Baron David Hume) as do a number of other ‘Kantian’ concepts (the possibility that Kant believed he had a Scottish grandfather makes one wonder if he had read Burns too; ‘To see oursels as ithers see us’, ‘A man’s a man for a’ that’  and ‘That sense and worth o’er a’ the earth’ are well reflected in Kant’s moral philosophy; in this author’s humble view, they represent the Scotsman’s equivalent to Kant’s Categorical Imperative and its various formulations).

The surprising thing was that this ‘Kantian’ breakdown of stages raised the majority of feedback after the Granite Symposium presentation, in particular from researchers variously asking about applications with regard to:

  • advertising design development processes;
  • studying the history of theology;
  • computer science and the possibility of empirical work on the seven stages; and
  • neuroscience research, raising the question of whether Magnetic Resonance Imaging (MRI) scanning of the brain (known as functional MRI or ‘fMRI’) could lead to real-time assessment of information transfer accuracy at any or each of the seven stages. The state of the art with respect to the current size of MRI machines presents obvious practical issues with this but the idea that one day witnesses (and even jury members??) could wear an MRI scanner as a hat, may ultimately make polygraph (lie-detector) machines as obsolete and humour-inspiring as the wind-up gramophone.

The initial perception that this fourth and latest numerical application was of little more than scene-setting or background interest turned out to be wrong, at least as far as the Granite Symposium feedback is concerned. Some interesting ideas have been generated and the strength of the analysis – as in many if not most numerical assessments of this type – is not necessarily in the final arbitrary or defeasible numbers generated. As with experience in numerical risk analysis in industrial projects, much of the real value is in the analytical process of categorising inter-related parameters and the comparison of a range of inputs from a cause and effect perspective, as well as development of deeper understanding of the overall process and identification of key issues and new ideas. This is at the heart of a reasoning process and the numerical approach may be seen as a thread that binds or a link that chains – or even a kernel that continues to grow.

As far as academic presenting is concerned, any form of peer review – which includes presenting and discussing the issues with people of sound intellect and experience, plus any ‘digital dialectic (reasoning)’ such as blogging – also becomes part of the research and reasoning process. In fact, with respect to the research under consideration here, it seems at first thought perhaps a pity that jury members no longer get to question witnesses directly… but that’s another story.

Granite Q&amp;A with Karen Kelsky
Photo Credit – Granite: Aberdeen University Postgraduate Interdisciplinary Journal

Mooting Society: 2015-16 Review

This blog was contributed by the University of Aberdeen Mooting Society.

This year the Mooting Society has gone from strength to strength. A promising cadre of first years were able to hone their talents in the annual first year competition, whilst increased participation in our main faculty and criminal law competitions enabled many students to participate in mooting for the first time.

Aberdeen Moot
Left to right: Xeni Kisinova, Michael McDaniel, Joanne Smith, Anna Black

Internal competitions form a key part of the mooting programme, but they also play a role in selecting participants for external events.This year the Society decided to introduce another element to the selection process, holding an open audition for some of our external moots. As a result, Daniel Rehda, a mature student on the accelerated law degree, was able to participate in a moot held at the Supreme Court in London in front of Lord Sumption. Not only was this a fantastic experience for all involved, but Lord Sumption’s feedback was exceptionally helpful and thorough and will no doubt help all participants in any future court or indeed public speaking environment.

At the UK Supreme Court
L-R: Emma Macmillan, Anna Black, Daniel Rehda, Lord Sumption, Simon Boendermaker

The Society also participated in the UK Law Students Association and Alexander Stone mooting competitions, with Bethany Ingham and Guillaume Kitumaini competing in the former and Simon Boendermaker and Emma Macmillan in the latter. Whilst both sides were eventually bested after proceeding deep into each competition, the experience gained by all four mooters will serve them well in further competitions and in their legal careers.

Dundee
(L to R): The late Lord Jones, Bethany Ingham, Alistair McDermid. (The Hon. Lord Jones, a Senator of the College of Justice, sadly passed away earlier this month.)

The high note of our external competitions saw the Society taking part in Dundee University’s inaugural Inter Varsity moot; competing against the hosts, RGU and Edinburgh. Aberdeen entered two teams, and an unfortunate draw meant both Aberdeen teams faced each other in the semi-finals. Alistair McDermid and Bethany Ingham emerged victorious from that clash, before defeating the hosts to take the shield up the A90 to Aberdeen.

The Society has now held its AGM and the handover to the new committee has been completed. The new committee will press on with plans for various events such as the Times 2TG moot, UKLSA and Jessup moots. We are looking forward to holding auditions again in September for all potential new participants, not to mention the annual staff v student moot!

Of course, that doesn’t mean that the year is complete for the Society. There is still the annual Granite City moot at 18:00 on Tuesday 29 March at Aberdeen Sheriff Court, where teams from Aberdeen and Robert Gordon University will face each other before Sheriff Stirling. Aberdeen will be looking to retain their crown for a third consecutive year: everyone is warmly invited to attend to see if they can do so and to share a glass of wine afterwards at a reception sponsored by the law firm Brodies LLP.

 

David Carey Miller: a tribute

This blog post is by Malcolm Combe.

On 6 and 7 March 2015 I was lucky enough to participate in a conference celebrating the life and work of Professor David L. Carey Miller at the University of Aberdeen. David was both a wonderful scholar and a wonderful man, and his conference and the related dinner was befittingly well attended. When “DCM” spoke at that dinner, it was with his usual modesty. Delegates listened to his downplayed anecdotes about his remarkable career, whilst his younger colleagues – and perhaps even not so young colleagues – reflected on his record of publications and achievements with a mixture of awe, envy and pride.

Whilst David’s career was worthy of celebration in and of itself, another point of the conference was to showcase new ideas. The various papers from that conference are slowly being drawn together to form a “festschrift” for David. That process of bringing together a collection of essays to celebrate his contribution to Scots law and – given David’s fluency in a number of legal systems – his native South Africa and indeed further afield has perhaps taken a little longer than it might have, mainly because some contributors have been tardy in submitting developed versions of their conference papers. (The present writer included.) It is now to my eternal regret that David will not see the published version of that festschrift, or even a draft version of the words I planned to submit to it. Nor will he read the words in this crudely and hastily shunted together blog post. That is because David died suddenly at the weekend. His death leaves a void in the community in which he had been based for many years.

What follows is a short, personal reflection of what David meant to me. I am conscious of the dangers of making a piece about someone else all about me, but I am confident my own interaction with David will go some way to demonstrating the kind of man he was. No doubt others will have similar stories. (If so, please feel free to comment below or get in touch by any other means.)

Despite our respective connections to Aberdeen, I first met David in Glasgow, at the University of Strathclyde. That place of useful learning played host to the 2005 Society of Legal Scholars conference. David was a delegate at that event, whereas I had just finished my law degree and was one of a number of students (and recently ex-students) who acted as guides. On the basis that I was about to move to the University of Aberdeen to study the Diploma in Legal Practice (as the postgraduate phase of legal education in Scotland was called at the time), I was able to speak to David and strike up the beginnings of a relationship that resulted in me being both a research student and a tutor for the School of Law whilst working towards my postgraduate diploma. The fact that David was Head of School during that year no doubt helped with those appointments, but the most important factor in all of this was his taking the time to speak to and encourage a young whippersnapper when he had absolutely no obligation to do so.

Some of my research in my Diploma year was independent, but the most significant works were produced in partnership with David. This collaboration came to fruition in the form of two pieces of work: one on the boundaries of property law; and another on one of David’s specialist subjects, corporeal moveable property (co-authored by Andrew Steven and Scott Wortley). David’s contribution to my own development was immeasurable, both in terms of guidance and in his willingness to list me as an equally-ranked co-author. I can think of several others who similarly benefited from his benevolence towards more junior partners.

After completing my Diploma, I moved to Edinburgh to train then practise as a solicitor, but David fostered a continued link between me and Old Aberdeen. I taught an honours LLB seminar and participated in the Baltimore/Maryland Summer School, both at the invitation of David. (David’s enthusiasm for and dedication to that Summer School is something else worthy of celebration.) I rejoined the School of Law as a lecturer in 2011, a step made all the simpler by that ongoing relationship, then continued to work with David on an eclectic range of matters: teaching for the undergraduate property law course; submitting a response to the Scottish Law Commission on the reform of security for corporeal moveables; and presenting to a delegation of Norwegian judges about aspects of Scottish land law.

It is the first of those activities which brings me to my most personal insight into David, but it is one which also gives a great insight into him as a man.

On 20 August 2013 the summer diet of exams at the University of Aberdeen was in full flow. A number of students were tackling the Law of Property exam that David, me and others had set. With apologies to those students, I am afraid your travails are not important to this anecdote. The more noteworthy travails were mine. To put it mildly, I was not at my best that day. I was finding exam invigilation to be nigh on the most difficult thing I had ever done: for context, I was no longer able to walk the relatively short distance from my home to the university, my breathlessness and groin strain being attributed to a recently diagnosed hernia, so I had been forced to drive to the campus. David had kindly volunteered to help with invigilation that day, but the main thing he witnessed – with some concern – was me hirpling around the exam hall. He accompanied me back to the School of Law after the exam, carrying more than his fair share of exam scripts on my behalf. Clearly something was wrong with me, and the next day I was admitted to Aberdeen Royal Infirmary after blood tests showed something of concern that was decidedly not a hernia. The next again day I was diagnosed with stage 4 testicular cancer: this went some way to explaining my breathlessness, and a few other things besides.

It goes without saying this was not a great time for me, but I was lucky enough to have many colleagues who sprung into action to help. Special mention must go to the property law team of Roddy Paisley, Andrew Simpson, Douglas Bain and Abbe Brown, but extra special mention goes to David. Not only did he immediately step up to replace me as class coordinator of that course for the impending term, he also furnished me with copious supplies of books, butteries and best wishes when he visited me in the hospital at the first possible opportunity. When I was well enough to participate in academic tasks, he was happy enough to let me do so, but when I was not I was able to rely on him to deliver a course in my absence.

Fast forward to February 2016 and I can offer two further recent anecdotes. When I last saw him in person, I asked him if he would be kind enough to look over my contribution to his festschrift. He agreed, of course, but I had not quite finished it to a standard that I felt David would have been proud of. Following his sudden death he will never get to see it. Whilst I am grateful he was there to hear my oral tribute to him at his conference last year, the regret that he was not able to see even a form of those words written down is something that will linger with me for some time.

As for my last communication with David, this began with an email attaching a short “case commentary” note. The case my draft article related to was a dispute about corporeal moveable property. On Friday, he sent me some helpful points for consideration. I replied to thank him, offered him some counter-analysis, and also noted that I was actually on annual leave that day (albeit I was replying to emails). David then sent me some further thoughts and source material, whilst simultaneously imploring that I did not reply to his correspondence on my day off. I followed his order. I am strangely gutted that I did, as I did not get to finish that last conversation with him, but I think even that abrupt ending, at his behest, tells something of the man: not only was he keen to help in that specific instance, he was also looking out for my best interests as a whole.

Other tributes to David will follow, from friends and family who knew him for longer than I did. Until then, I hope this short note goes some way to set out what a special person David was. He leaves behind a staggering body of scholarship, which will be documented in the forthcoming festschrift, but he also leaves many fond memories. Even so, I will miss him terribly.

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Professor David Carey Miller is second from the left, receiving a presentation from a delegation of Norwegian judges. In the centre is Håvard Steinsholt, from that delegation. Malcolm Combe is second from the right, former colleague Dr Aylwin Pillai is on the right.

 

Historical documents reveal University’s opposition to Nazis

This is the inaugural blog post of the School of Law at the University of Aberdeen. As noted in our “About” page, this blog will showcase a variety of material, whether that is a work in progress, some published output, participation in a seminar or a conference, or anything that a news item on our website will not quite do justice to.

This post falls into the latter category. Recently, some fascinating minute books of the Faculty of Law (the precursor to our School of Law) resurfaced, leather bound and beautifully hand-written.

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Old documents of this nature have a certain curiosity value, but the minutes for the period from 7 December 1938 to 22 February 1939 are remarkable. The minutes reveal that the School of Law received correspondence from the Faculty of Law at the University of Amsterdam. That Dutch Faculty of Law did not have the North Sea keeping it a relatively safe from Hitler’s gathering military might and that Faculty wanted to highlight “with sorrow and dismay” that people were “being persecuted and tormented on account of their faith race or political convictions”, with a particular mention for the “so-called concentration camps”.  The Faculty of Law at Amsterdam sought support from “all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland”: the Faculty of Law, with the concurrence of the Principal of the University, unanimously supported their resolution.

The minutes imply that Aberdeen was not alone in receiving correspondence, and this resource and this post from Berkeley Law show that this was indeed the case. Beyond that, no other information is available at the School and no warranty is given as to the veracity of the minutes (although we have no reason to doubt them).

What difference did the stance of the Faculty of Law at the University of Aberdeen make? At one level, precious little. Hitler’s Germany looked east to Poland, then west to the Netherlands, and the rest is history. Not only that, the North Sea did not exactly keep Aberdeen entirely safe: the writer of this blog lost his great-grandfather to a German bombing raid on the city. Be that as it may, it is heartening – even just slightly – to note that the University was not completely inactive in the face of the challenges of the time. In fact, there is a certain resonance with the University of Aberdeen’s “Shining Lights” Scholarship Fund, which aims to support those who have refuges status (as reported on the BBC).

It seems fitting to give the final words of this blog over to the minutes themselves, which are transcribed below.

Blog by Malcolm M. Combe

7 Dec 1938

At a special meeting of the Faculty of Law held on the 7th day of December, 1938.

Present: Professors Taylor (Dean of the Faculty) and Morrison, Mr Esslemont, Mr Masson and Mr Mackinnon. The Principal was also present by invitation of the Faculty.

Minute Approved

The minute of meeting of 23rd November 1938 was read and approved.

Faculty of Law of the University of Amsterdam

A telegram of date 30th November, 1938 was submitted from the Faculty of Law of the University of Amsterdam.

After discussion, it was agreed to report to the Senatus as under:-

Intimating that the Faculty of Law had received the following telegram from the Faculty of Law of the University of Amsterdam:-

371 6.6.6.1843 30 Amsterdam 179

R.P 2/- Faculty of Law University of Aberdeen        30:11:38

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution this invitation has been wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland:- “The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith race or political convictions and that particularly in the so called concentration camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated, voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man, appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective Governments” and that the Faculty with the concurrence of the Principal has sent the following reply:- “Faculty of Law University of Aberdeen unanimously support your resolution.

Thereafter the Secretary was instructed to send a copy of the reply to the Faculties of Law of the Universities of Glasgow and Edinburgh and to enquire what steps they propose to take with a view to publishing the resolution and the action taken by them and to suggest that, if they concur a joint communication should be sent by the three Faculties of Law of the Scottish Universities to the leading newspapers in the country and that a joint communication be sent to the Government.

At the next meeting on 25 Jan 1939

Faculty of Law of the University of Amsterdam

In answer to the remit of 7th December, 1938, the Secretary reported that he had sent copies of the Faculty’s reply, regarding the resolution of the Faculty of Law of the University of Amsterdam, to the Faculties of Law of the Universities of Glasgow and Edinburgh. The University of Glasgow replied that it did not propose to take any action as no telegram was received by it. The University of Edinburgh replied that it had sent the following telegram to the Law Faculty, Amsterdam – “Telegram received, sympathise but deprecate action on these lines at this time” and stated that it was not proposed to take any further action.

Thereafter the Secretary submitted a copy of the resolution together with a list of the Universities (a) who had seconded the resolution and (b) who had adopted the resolution.

It was agreed to communicate the resolution to the Government and it was remitted to the Secretary to ascertain from the Secretary of State for Scotland as to whom the resolution should be addressed.

It was further agreed that when the Secretary had ascertained as above, copies of the resolution be published in the “Scotsman”, “Glasgow Herald” and “Aberdeen Press and Journal”.

22 Feb 1939

Faculty of Law of the University of Amsterdam

In answer to the remit of the Faculty of 25th January, 1939 anent the Resolution of the Faculty of Law of the University of Amsterdam, the Secretary reported that he had received a letter of 30th January, 1939 from Mr C C Cunningham of the Scottish Office Whitehall, intimating that it would be quite appropriate to communicate the Resolution to the Secretary of State for Scotland and he saw no strong objection to sending it to the Prime Minister if so preferred.

After discussion the Faculty resolved to send copies of the Resolution to the Prime Minister and to the Secretary of State for Scotland with the following covering letter approved by the Faculty:-

Sir

I have the honour to send you herewith copy of a resolution which has been adopted amongst Law Faculties, by the Faculty of Law of the University of Aberdeen.

I am directed to state that the Senatus Academicus of the University of Aberdeen has also approved of this resolution and of its being forwarded to you.

I have the honour to be, Sir

Your obedient Servant

Secretary

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