LLM students through to semi-finals of prestigious Moot competition

Two Birkbeck LLM students are set to compete in the semi-finals of one of the most prestigious and popular mooting competitions in the UK, led by Mooting Co-Ordinator Jonathan Thorpe from the School of Law.

Lewis Aldous (pictured, right) and Daniel Cullen (left), both post-graduates on the LLM Qualifying Law degree programme, are through to the semi-finals of the Oxford University Press (OUP) and Inns of Court College of Advocacy National Mooting Competition.

Moot competitions are an ancient method of training lawyers in the art of advocacy, an essential skill for those wishing to practise law. Moots involve two teams, competing in a fictitious appeal case, but in front of a real judge. Teams are scored under several headings – on their ability to interpret and use the law, their skill in presenting legal arguments, and how they deal with questions from the judge during the moot.

Birkbeck Law School runs its own moot training programme each academic year. from which students are selected to compete externally, against other universities, in the major UK moots.

Over the past few years, Birkbeck Law School has had considerable success in the national moots, but LLM students Lewis and Daniel have done exceptionally well this year, beating three highly reputable law schools in legal problems ranging over criminal law, contract law and contempt of court, to reach the semi-finals of OUP.

Further congratulations are due to Lewis, who was recently awarded a full scholarship by Inner Temple Inn of Court to study to be a barrister.

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Strategic litigation: anti-racism in the courtroom?

Rebecca Sparrow, second year LLM student, discusses a recent event about how to challenge structural and state-sanctioned racism in law.

The Centre for the Research of Race and Law’s most recent event, Strategic Litigation: Anti-Racism in the Courtroom?, hosted two panels, each of which broadened understandings of what strategic litigation does and might look like. How, whether, and when to litigate, and how to ethically, and effectively occupy Mari Matsuda’s ‘multiple consciousnesses’ of working within and against the law, is a constant and pressing concern for anyone involved in social justice or political campaigns, critical academia and legal advocacy. This set of workshops provided a stimulating space for discussion and exploration of this fraught battleground of the law, particularly in the context of challenges to structural and state-sanctioned racism, including in its ever-increasing formulation through immigration policy.

In the first session, Ioannis Kalpouzos from the Global Legal Action Network suggested a challenge to Upendra Baxi’s suggestion that all political issues of salience in the second half of the 20th Century must be articulated through human rights. Kalpouzos described the Network’s efforts to use the International Criminal Court to challenge offshore detention in Australia, a country he described as the ‘envy of the Western world’ when it comes to brutal immigration regimes. He explored the potential of using International Criminal Law to name and label western state-sanctioned violence – even when that violence is not spectacular or radical, but bureaucratic and all-pervasive. This raised questions from the audience about whether using criminal law might exceptionalize particular moments of violence, and therefore also serve to normalise violence that we should be pushing to be accepted as human rights violations. The responses to these questions made the particularly strategic nature of such litigation clear.

Lewis Kett from Duncan Lewis Solicitors, one of the main law firms with legal aid contracts to represent those in UK immigration detention, spoke about his recent successful case challenging laws on segregation in immigration detention centres. Although this, and previous wins of Duncan Lewis’, have been important, and provided some of the only real positive changes to detention policy in recent years, Kett also expanded on the extent of the problems within existing policy, and how much further there is to go. In response to queries from workshop participants, he reflected on whether improving structurally violent institutions such as detention can serve to make them more palatable without removing their inherent violence, but concluded that as a solicitor it is ethically impossible not to litigate for reform where possible, not only to change practice but also to provide accountability, and as part of wider campaigns.

The second panel began with Muhammad Rabbani, the director of CAGE recently charged and convicted under terrorism legislation for refusing to hand over the passwords to his mobile phone and laptop in Heathrow airport. He was stopped under Schedule 7, the law introduced in 2000 that sees 50,000 people per year stopped in airports, with no right to remain silent, to seek legal advice, to refuse a strip search or the handing over of data. The 99.8% non-arrest rate, as Rabbani highlighted, signifies a breach of the Magna Carta principles against suspicionless arrest. Rabbani asked brave, poignant questions about how he might have been treated, both during his arrest and during legal proceedings, particularly when unable to find any lawyer willing to submit a judicial review on his behalf because he had a ‘pigmentation problem’, and so wasn’t considered ‘the ideal case’. Thus Rabbani questioned the possibilities for strategic litigation when the law is actively constructed to target Muslims. Where, in this context, is the space for strategic litigation? Rabbani had to take his strategy beyond the courtroom and run his own campaign.

Gracie-Mae Bradley’s presentation followed on perfectly from Rabbani’s warnings. She spoke about her experience both within human rights organisation Liberty, and as an organiser of the Against Borders for Children (ABC) campaign. In particular, she highlighted ways in which litigation, however strategic, is severely compromised if it is not accompanied or preceded by wide-reaching social campaigns. She drew attention to previous strategic wins in the context of UK immigration detention, such as the retracting of the Detained Fast Track programme, and the way in which the Home Office is finding ways to re-introduce slight variations on the same policies only a couple of years later. Litigation, she reminded us, is a way of challenging policy that is fully incorporated within the limits of the system that created it, and controversial policy changes are often actively channeled by Government into legal frameworks, as the delays entailed by public consultations often mean that any successful litigation has to be applied retrospectively, which makes old policies easier to reinstate later. Quoting Gary Bellow, himself quoted by Derrick Bell, in the context of Leroy Clark’s insistence that an over-reliance on the law limited the potential of the black community’s success in pushing for school desegregation in the South, Bradley noted that ‘rule change, without a political base to support it, just doesn’t produce any substantial result because rules are not self-executing: they require an enforcement mechanism.’ Thus she showed that ‘riding on a technicality’, to which much strategic litigation must often be confined, though often crucial, is never enough to establish real change alone. Using the examples of data collection in schools that can be used to inform the Home Office of undocumented children and their parents, she argued that litigation must be accompanied by campaigns that highlight the implications and mechanisms of damaging policies, rather than just channelling the technicalities of their implementation.

Shining a light from a different direction, though with many of the same implications, Chai Patel explored the difficulties litigating strategically in anti-racist campaigns, when many of the effects of harmful and racist policy are not quantifiable in the terms required by the law. Speaking about the Joint Council for the Welfare of Immigrants’ attempts to challenge the Right to Rent legislation of 2016, Patel described the insidious ways in which even though the requirement on landlords to ensure the immigration status of their tenants encouraged, in their own words, discrimination on the basis of perceived race or nationality, it was very difficult to quantify and record such prejudice. In particular, the detail that landlords will be fined for not checking documents if tenants are found to be residing unlawfully, but not for failing to check if they are legally renting, encouraged this discrimination. Thus the detail in the legislation makes it particularly likely to encourage biased assessments of prospective tenants’ immigration status. It also makes it particularly hard to collect data, pushing all conclusions into the realm of the hypothetical. Although litigation might, in this case, be one way to challenge the policy, it has been incredibly hard to show that it was the policy itself that was causing discrimination.

To sit in a room with such a broad mix of academics and practitioners, getting absorbed in the details, methods, implications, ethics, efficacy and revolutionary potential of strategic litigation against racist policy was inspirational. The mood was neither of cynical criticism nor naively hopeful for impossible change. And though the workshop participants, panellists and audience, provided necessary and timely reminders not to put all our faith in litigation, however strategic, the conference itself was inspiring testament to Rabbani’s moving encouragement that if we strive for compassion and courage, much is possible.

 

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Focus on the Funk

This post was contributed by Kojo Koram, PhD student in the School of Law. Kojo attended the Focus on the Funk event in May 2016.

Focus on the Funk

On the 20th-23rd of May 2016, a community of academics, activists and artists met at Birkbeck School of Law under an invitation to ‘Focus on the Funk.’ Over three days, the likes of Gayatri Spivak, Alicia Garza, Nina Power and Lewis Gordon all took up the task of trying to think through ‘the funk’.

Law and funk

We felt fortunate to have attracted such a cast of speakers, considering how unappealing the prospect of joining a law school threatening to ‘get funky’ must have appeared upon first reading. ‘Law’ and ‘Funk’ are understandably imagined as diametric opposites; the transgression implicit in bringing them together being what initially excited us as organisers. Funk most immediately invokes a genre of music, yet the notion of ‘the funk’ transcends this particular expression, its musical form being just one manifestation of the condition of the ‘funk’.

Etymologically, the word ‘funk’ derives, in part, from the obsolete Flemish word fonck meaning ‘disturbance’ or ‘agitation’ (citation from Oxford Dictionaries). This understanding of ‘funk’ synthesised with another definition – as ‘a strong smell’ – to become the common shorthand for the atmosphere of the jazz clubs of the early twentieth century. In these clubs, the funk denoted not just the musical corruption of classical European melodies occurring on stage but a particular orientation to life that could be found everywhere in these clubs. Here, one could encounter ‘the funk’ of life. When a particularly agitated form of rhythm and blues music emerged in the 1970’s, it was christened as ‘funk’ but it hadn’t invented the idea, rather fully realised it in musical form.

So while our reference to ‘the funk’ did not only mean music, we did attempt take the music seriously. We were concerned with what law sounds like, starting not with the harmony or even silence of law within lives that rarely encounter its force but with the crescendo that greets subjectivities over-determined by law. (For further on the relationship between law and music, and the role of sound in law, see James E. K. Parker, Acoustic Jurisprudence: Listening to the Trial of Simon Bikindi.(Oxford: Oxford University Press 2015)).

In response we turned to funk, which, as a music genre, de-emphasised the melodic in favour of bringing forward that which was buried underneath, the hypnotic bassline and the interrupting, staccato drumbeat. Funk music begins with the background mess of song and then, crucially, stays with it, sustaining the failure of the soothing melody to emerge and, instead, forcing artists to express themselves from inside the groove. The result is often vocalised through a scream.

Funk as a prism

To employ ‘the funk’ as a prism to examine questions of politics and philosophy offered a challenge particularly apt for our turbulent times. We were awed at the vigour with which this challenge taken up by our guests. After an introduction by the organisers, in which we performed our manifesto outlining future plans for a different way of philosophising about law, Gail Lewis and Nina Power began with a dialogue illustrating how law’s claim to public order is haunted by ungrievable lives such as Sarah Reed’s. (See Judith Butler, Frames of War: When is Life Grievable? (London: Verso 2009)). Their talk exposed the sacrificial piling of bodies upon bodies that guarantees received notions of law and order.

Then we welcomed an activist roundtable as Rupinder Pahar from the London Campaign Against State and Police Violence, Adam Elliott-Cooper from #RhodesMustFallOxford and Alicia Garza from #Blacklivesmatter illustrated the interconnection between epistemological and state violence across the Black Atlantic. (See Paul Gilroy, The Black Atlantic: Modernity and Double Consciousness (Cambridge: Harvard University Press 1993))

Next Kerem Nisancioglu, Brenna Bhander and Nathaniel Adam Tobias Coleman dismissed any myopic suspicions that thinking through the funk was to indulge in particularism. Rather than avoid ‘universal’ topics, this panel confronted them, compelling the audience to re-read received notions of sovereignty, property and reason. Doyens of modernity like Thomas Hobbes and Francis Galton were immersed into the funk, re-emerging as figures other than what they were, now finding the funk to be stuck to them.

Friday closed with Sarah Keenan, Stephanie Bailey, Taylor Le Meel and Karen Mirza generously talking us through the Art System from the perspective of the ‘Wretched of the Screen.’ Sarah Keenan sported a Vernon Ah Kee designed t-shirt with the words “Australia drive it like you stole it”, as she spoke about a recent unsanctioned installation which saw the projection onto the walls of Australia House of faces of refugees killed in Australian offshore detention. Both evenings were filled with wonderful cinematic and visual art exhibitions offered by our collaborators from the Serpentine Gallery, which continued into Sunday.

#BlackLivesMatter

The auditorium was at its most full on Saturday morning, perhaps evidence of Friday’s success, but more plausibly the result of Gayatri Spivak joining us to converse with Oscar Guardiola-Rivera on ‘The Politics of Deconstruction.’ Spivak guided the audience in revisiting her engagement with Jacques Derrida’s Of Grammatology, whilst tying her comments into the wider themes of the conference, advocating a way of reading described as ‘funky, not straight…an on-beat, off-beat, back-beat structure.’

We returned from lunch to celebrate the 70th Birthday of Paget Henry, with Lewis Gordon, Julia Suárez Krabbe and Nadine El-Enany honouring Henry by engaging with topics of such as race, rights and stunted moments of rebellion.

Later Alicia Garza, the co-founder of #BlackLivesMatter, returned to the stage to take up the task of explaining what law sounds likes when you must affirm your very existence through opposition to it? What does law sound like when its ordering is predicated on your arbitrary execution? And, perhaps more importantly, what response is available to you to make yourself audible over the violence of such a law? Alicia implored the audience to respond with a fearless and furious love. Alicia’s herstory of #BlackLivesMatter reminded us that the hash-tag that captured a movement, that captured a moment, initially began life as a love-letter. #Blacklivesmatter was the sound of black love and to a world producing harmony through the negation of that love: it sounded like a scream.

Once the audience finished giving Alicia an extended standing ovation, Lewis Gordon lived up to his reputation as ‘the closer’ with a keynote that executed a nuanced synthesis of the themes that had emerged over the conference. Lewis tied together issues of challenging legal violence, decolonising the curriculum and shifting the geography of reason whilst also transforming the stage into a makeshift drum-kit. His masterful musicianship and critique offered an embodiment of relationship between a political and philosophical commitment to ‘the funk’ and its musical manifestation.

Taking legal theory into a funky atmosphere

Ultimately, we spent a remarkable three days trying to extend Beckett’s embrace of the ‘mess’ of life towards a philosophical understanding of life’s ‘funk’. We took theory to school with the musicians, a move that appears curious in our age of fetishized disciplines. Modern European philosophy emerged interwoven with music, the Kantian imperative towards autonomous, universal human subjectivity finding expression through the overtures of Haydn, Mozart and Beethoven. (For further on the relationship between European classical music and philosophy, see Andrew Bowie, Music, Philosophy and Modernity (Cambridge: Cambridge University Press 2007))

Conversely, the African-American musical tradition, beginning from an understanding of modernity as catastrophe, would mutate these classical musical phrasings in the atmosphere of the jazz club. What would it mean to take legal theory into that funky atmosphere? To make law answerable to a tradition that responds to legalised structural violence with song; to enslavement with a call to ‘wade in the water’, to an unfair criminal justice system with a defiant cry that ‘we gon’ be alright’?

Our meeting was the beginnings of an exploration such questions. However, to begin with a ‘focus on the funk’ is to begin with failure and, in that sense, we met knowing that our collective ambitions had always, already failed. Yet in the embrace of that failure, we will persist in building our intellectual community, both inside and outside the academy. And we will try to fail better, each time we meet.

Watch highlights from Focus on the Funk:

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Cameras in the court

This post was contributed by Ruth Saunders, who attended the LSE Law and Birkbeck School of Law Judicial Images Project public lecture on Wednesday 13 April

‘From Oscar Pistorius to Reality TV: the implications of using the courtroom as a television studio’ was the title of last Wednesday’s well-attended lecture from the Judicial Images Network Project, a joint project of Birkbeck School of Law and LSE Law which brings together scholars across disciplines and continents to explore issues surrounding the production, regulation and consumption of judicial images.

The lecture featured speakers with extensive experience in the issues that arise from the use of cameras in courtrooms. Justice Dikgang Moseneke, Deputy Chief Justics of Constitutional Court of South Africa, took to the stage first to discuss the experience of, and issues arising from, televising the trial of Oscar Pistorius.

Describing the concept of open justice as a key and now well-established principle in post apartheid South Africa, Justice Moseneke discussed how the trial of Oscar Pistorius created new ways in which people could access and assess justice.

Dr Jur Ruth Herz

Dr Jur Ruth Herz

Emphasising that ‘democracy dies behind closed doors’, Justice Moseneke also acknowledged that televising the courtroom could foster a dynamic of intimidation for defendants and witnesses – but it would, he said, be more reliable than a journalist’s perception of events.

But ultimately, he finished, ‘we, the media and courts, share a common goal. We want the public to know and to assess what we do’.

Next, Visiting Professor at Birkbeck School of Law Ruth Herz, formally a Judge in Cologne and the star of popular German courtroom based reality TV show Das Jugendgericht (Youth Court), reflected on her four year experience in television.

Giving a frank recollection of her experiences, Ruth described her motivations for participating in the TV show to tackle the veil of secrecy that surrounds the court system in Germany. What she found, however, was that the presence of the camera with the focus on lighting, position and angle, did not create transparency.

Media, she says, speaks a different language, and is motivated first and foremost by money which informed casting choices and the types of cases heard.

These factors all worked against her attempts to use the reality TV court show as a useful educational tool to show viewers how justice in the courtroom works. She echoed the concerns raised by Justice Moseneke that Courts have a primary responsibility to pursue justice.

Lord Dyson, Master of the Rolls and Head of Civil Justice in England and Wales, closed the discussion commenting on his own experience of cameras in the courtroom. In the Supreme Court, Lord Dyson said, he was unaware and unaffected by the discreet cameras.

Professor Leslie Moran

Professor Leslie Moran

The Crown court pilot to introduce cameras in the court is proceeding carefully, he said, to minimise risks to the fairness of the trial and, he also described, a ‘duty of care to protect the vulnerable’.

Birkbeck’s Professor Leslie Moran brought together questions from the audience which resulted in a lively discussion.

brought together questions from the audience which resulted in a lively discussion.

In closing the event he encouraged all to become avid viewers not only of the UK Supreme Court summary judgment videos but also the UK’s first reality TV court show, ‘Judge Rinder’.

He explained, ‘the future of cameras in courts is already taking shape on our TV screen. We need to take it seriously and debate it further if it is to best serve the needs of open justice.’

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