Misinformation and Memory

Hear No Wrong, Remember No Wrong.

Beth Sheratt MSc student
As much of the population tuned in to the TV show Making a Murderer, it illustrated how false information, can change our original memory, this is known as the misinformation effect.
Research has previously shown that when misinformation has been given after an event it can alter the original memory of the event, for witnesses . It is suggested that this may occur in a Chinese whispers sort of way, leading to certain details being changed. Leading to individuals believing what they remember as the truth, when that may not be the case.
It isn’t only misinformation that can affect memory, for example how an individual is feeling on the day can have an impact. When we have a bad day everything seems to go wrong, or does it? Our memory can be less accurate depending on our mood. Investigations into factors such as mood and emotion, alongside misinformation have been conducted to see what the effect they have on memory. Interestingly, it was found that a positive mood was likely to increase the number of false memories created, as the result of misinformation.
Other research investigated which details can influence false memory, both the main (central), or the background (peripheral) details, alongside misinformation and memory. There were fewer false memories created when remembering the central events, especially when linked to negative memories. There is however, no research that looks at all four factors together; therefore, I decided to look at all four factors in one study in order to see the effect they have on memory.
An increased number of false memories were created for central details of the images, rather than for the peripheral details. This result contradicts most research, which states that peripheral details have an increased number of false memories. Also, the positive event was found to increase the number of false memories when remembering the main aspects of the image rather than the peripheral details, this supported previous research.
So, are central details more likely to create more false memories when misinformation occurs, than peripheral details? There seems to be disagreement in the area, suggesting more research needs to be done in order to explain why there is such a difference.
As misinformation was found to affect central details in this study, it could be important for authorities i.e. the police, to be made aware of how misinformation can affect an eyewitness’s memory. This could lead to a more reliable account of an event and ultimately less wrongful convictions.
Also, there appears to be inaccuracies in memory for central details when recalling a positive event, perhaps when relying on eyewitnesses in a court the jury need to be made aware that the influence of misinformation may be high on the original memory of an event.
All in all, different factors affect memory which may make it an unreliable piece of evidence when remembering a situation. Therefore, eyewitness testimonies may need to be treated with caution.


Robert Curtis

Brexit – some history and the famous Article 50.
Firstly, let us remember that we haven’t exited from the European Union, so using Brexit as a title is probably misleading. A lot of journalists are asking the question “how has Brexit affected your business or area of work?” To which the answer should be “I’ll tell you in three or four years’ time, when Brexit has taken place and I can judge the effects”. Instead we should be considering the implications of the vote on 23rd June to leave the EU which will lead to the UK leaving, and the nature of the relationships and balance of authority both during the negotiation period and after we leave.
This blog looks back a bit, and then forward, but not in detail to what we can expect in terms of relationships and compromises – that is too vast a subject and will have to wait for a while, perhaps a blog early next spring?
A bit of history
Secondly, do not think that this was a situation that was ever envisaged to occur in reality. True, Article 50 of the Lisbon Treaty lays down a mechanism for leaving but no-one gave any thought to how it would actually work. If you go back to the discussions surrounding the treaty in 2008 and 2009 they were all about the issue of sovereignty and the creation of a European state. Indeed the treaty created two aspects of a state, a president (but I bet few people reading this blog will know which president was created, what they do, or the name of the current incumbent….) and a foreign minister (same bet here…). This was the time that Ireland and the Netherlands voted to reject further integration, though no country has ever been asked, before the UK this year, whether they want to continue to be a member of the EU. Ireland and the Netherlands were in fact voting on something called the European Union Constitution, a title which caused many people across the continent to see red as it was blatantly an attempt to harmonise everything under the guise of one country. It was later changed to the Lisbon treaty (also called the Reform Treaty) to disguise its nature, though the wording is almost identical to the proposed Constitution. Reform was indeed very necessary as the EU was increasing from 15 to 27 countries and it needed to streamline and rationalise its institutions, the way they worked and their relationship to the member countries. But some saw it as an opportunity to create their dream of a United Europe, a single country with one government, one foreign policy, one defence policy and of course one currency and economic policy – including both fiscal (taxes and revenue) and monetary (supply of money and interest rates) aspects.
Article 50 was never really discussed by politicians, it was just a backstop inserted for completion, but it did generate quite a lot of discussion amongst lawyers, especially those who wanted to see a single state. Prior to that date the EU (or its former manifestations) had not included any notion of withdrawal – which may seem odd for any organisation but is perfectly in keeping with the idea of “ever closer union”. We have the former communist states of Eastern Europe to thank for its inclusion – having suffered in the Soviet era from an embrace which was, to put it mildly, no to their liking, the governments of those newly liberated states were not going to allow themselves to be trapped in another union of states, however welcome and benign it may have appeared. The argument of those who wanted a single state was that there was no need to include any form of exit article, as under Article 62 of the Vienna Convention on the Law of Treaties signed in 1969 (see link below) there is a right of states to withdraw from any international treaty. However, their argument was really a smokescreen for not including a right of withdrawal, and if the Constitution had been introduced, and further integration taken place, then individual countries would no longer exist so could not withdraw. Others argued that a specific right to withdraw was necessary to preserve national sovereignty – and this really is the crux of the whole discussion surrounding the referendum, and the raison d’être of the Brexiteers.
Who triggers Article 50?
The country that is leaving – but what does that really mean. Some rather angry Europeans, even quite senior members of the Council of Europe, publically stated that the result of the referendum was itself the trigger and that the UK had two years to leave. Others consider it to be a decision of the UK Parliament – which of course means we would never leave as the majority of MP’s, and a very big majority of the Lords, supported continued membership. If Parliament were allowed a vote, even a whipped vote, then that effectively would be thwarting the will of the people and overturning the democratic result of the referendum – and remember that David Cameron told us in no uncertain terms that this was a “once in a generation” vote, and the result, whichever way it went, was binding. Even as late as May 17th, Mr Cameron reiterated the position he had taken continuously throughout the campaign “It’s a once in a generation, once in a lifetime opportunity and the result determines the outcome”. Interestingly enough Nigel Farrage was actually a lot more equivocal, telling the Independent newspaper on the same day, May 17th, that “if the result was as close as 52-48 percent for “In”, this would be unfinished business.” Oddly enough he didn’t seem to put the same caveat on a 52-48 percent vote for “Leave” from which, we can assume, that he considers a small margin in his favour indeed to be “finished business”.
In reality it will be the Executive who decide when to trigger Article 50 – basically the Prime Minister advised by her closest ministers and civil servants. Oddly enough, the timing will probably be dictated more by Europe than the UK – with elections coming up in the two largest EU countries (Germany and France) it would not be sensible to trigger divorce proceedings before new governments were in place in those countries, for the simple reason that as soon as the negotiations begin we want full attention paid to them. Two years is a very, very short time to undo 43 years of close arrangements (marriage in many cases) and we wouldn’t want to lose the first 6 months because European civil servants’, trade negotiators’, and politicians’, attentions are engaged elsewhere.
The final unconsidered issue is “how” is it done and “who” does it? Again the treaty offers no guidance and there could be several mechanisms, and different levels of formality. The Queen as Head of State, the Prime Minister, the Foreign Secretary or the newly created Minister for Brexit (or to give him his full title the Minister for Exiting the European Union) could all be considered suitable, as could a senior civil servant. It is presumed that the article would come into force only after formal written notification – but who receives such notification? The European Commission actually plays no part in this, nor indeed does the Parliament (except to ratify certain terms). It is the Council of Ministers who will need to be notified, because, in essence, this is a membership issue. Thus the other members will need to be informed, formally, of the wish of one of their members, to leave the club. Interestingly it is also the Council which will agree the terms of exit and the shape of any new deal and all must be in unanimous agreement. What happens if one doesn’t agree is the subject of a further blog, but for now we assume it will be our Prime Minister who will write to the President of the Council of the European Union. As this is a rotating presidency, and the UK is still a member, leave it long enough and it could be Teresa May writing to Teresa May.

The following is a series of links to further reading. Firstly reference to Article 62 of the Vienna Convention on the Law of Treaties.
Next, two useful sites discussing the mechanics of leaving and the complexity of the negotiations, the trade elements of which I would like to return to later

The mechanics of leaving the EU – explaining Article 50

Finally link to the Centre for European Reform which includes a number of very thought-provoking articles. I’d recommend reading those by Charles Grant and John Springford in particular as they begin to explore some controversial and complex issues.


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Are we really that equal in the workplace?

Matt Sadler

We are living in rather uncertain times with political and socio-economic unsteadiness prevailing throughout our commercial world. Consequently, employment prospects are never less certain than they were pre-2007/8 and the financial crisis.

Nevertheless, we also live in a progressive and, some might argue, enlightened world where our individuality is protected by the laws of the land.

Diversity in employment has become a buzz term and employers are keen to display their ‘all-welcome’ approaches to recruitment coupled with anti-discrimination credentials. A rather cynical argument could be that this is no more than good financial sense because ‘Stonewall Champion’, ‘Investor in People’ or ‘Remploy Recruiter’ makes for a good PR banner on corporate stationary. However, just how equal do employers really see us?

It has been nearly 6 years since the implementation of the Equality Act 2010 in the UK and its umbrella anti-discrimination provisions aimed at protecting our rights in employment. The provisions are wide in scope and cover employment practices across the spectrum from job advert, through employment, to post-termination. Our individual characteristics are protected and we have legislated rights which we can stand up for.

Herein lies the dichotomy… Just how far are we prepared to go to protect our rights? At what stage do we step onto the proverbial soap box and proclaim our self-actualising motivations? Perhaps more insidiously – when do we keep quiet about our differences in order to achieve a goal of realising our dream job?

James Gower, writing in the Guardian in 2015, describes how career advisers told him to hide his cerebral palsy disability on job applications. He discusses research conducted by greatwithdisability.com that found 77% of disabled applicants worried about disclosing their disability on a job application. Why fear when section 20 of the Equality Act 2010 places a positive obligation on employers to provide ‘reasonable adjustments’ for employees who declare a medically recognised disability? This is all well and good but you have to get the job first! The cost of reasonable adjustments and aversion to placing themselves at risk of litigious claims may dissuade employers from engaging disabled applicants – An employer’s inclusive ethos may take a back seat to financial and liability risk-aversion.

Hidden or invisible disabilities are perhaps arguably more difficult for an employer to recognise as being inhibitive for an employee once a disclosure has been made. This is something Starbucks, the US coffee chain, recently found to their financial and reputation cost, when they mistakenly accused a dyslexic worker of falsifying report documents at work. An employment tribunal found that the coffee giant had failed to make reasonable adjustments for their employee. The potential cause of the problem: lack of training. Dr Kate Saunders, CEO of the British Dyslexia Association, said: “Many dyslexics are struggling in the work place with very high levels of anxiety, because employers do not have the training or the awareness to make adjustments for them.”

There is also a fear that disclosure in the workplace that can actually lead to greater problems for employees rather than entrench the protective shield of the Equality Act 2010. Protecting oneself from discrimination in the workplace is a difficult needle to thread for those who identify as Lesbian, Gay, Bisexual or Transgender. Stonewall, the LGBT charity, received responses from over 60,000 employees in the UK in 2016 regarding the treatment of LGBT employees in their workplace. They asked respondents ‘Are lesbian, gay and bi people comfortable disclosing their sexual orientation at work?’ The results are quite illuminating in that 42% were not comfortable disclosing their sexual orientation to colleagues and 48% were not comfortable disclosing to managers and senior colleagues in all circumstances.

There are obviously cultural and sociological negative factors that still prevail in the workplace that inhibit disclosures of sexual orientation. This is not the end of the argument though: A recent report by Conservative MP Alec Shelbrooke and Dr Mark McBride-Wright, Chair and Co-founder of industry network group InterEngineering, estimated that homophobia in one sector alone costs the UK economy over £11.2 billion a year. They discovered that homophobic bullying and outdated attitudes place pressure on LGBT members of the engineering industry to remain in the closet leading to lack of progression in the sector. Their April 2016 report, published in Gas International, includes discussions by Lord Browne of Madingley, a former chief executive for BP: “As a graduate trainee engineer at BP in the 1960s, it was immediately obvious to me that being gay in business and most definitely in the oil business, was unacceptable.’ The consequences of failing to create an inclusive work environment shows that when people are not comfortable bringing their whole selves to work they do not engage and productivity suffers as a result. We return to the root cause – lack of understanding and diversity training.

Case law decisions highlight how large organisations cannot afford to merely provide lip service to equality legislation and a shift towards embedding diversity training is of paramount importance, not only from a protective stance but a fiscal one too. In Daw v Intel Corporation UK Ltd. [2007] EWCA Civ 70, a stress at work negligence case, it was held that the employer, a renowned international IT technology company, failed in their primary duty to provide a ‘safe system of work’ resulting in mental health issues for the claimant. The court, dismissing the defendant’s appeal’ highlighted how Intel easily covered the claimant’s workload when she went off sick but failed to provide reasonable adjustments to her workload beforehand.

In Majrowski v Guy’s St. Thomas’ NHS Trust [2006] UKHL 34 the defendant brought a successful vicarious claim against their employer for harassment and victimisation suffered at the hands of a line manager on the grounds of sexual orientation. Both of these cases highlight the need for employers to act sooner and embrace proactivity in relation to diversity training. Interestingly, both of these cases were brought in negligence in the civil courts rather than an employment: A more costly exercise on the claimant’s part may indicate a personal need to fight harder for their individual rights.

Standing up for employment rights when faced with discriminatory barriers is not easy. Just how militant does one need to be to get the message across? How far do we really need to go to ensure sunlight reveals the cracks in certain employers’ facades? Prevention is undoubtedly better than cure and if equality and diversity are to be truly embraced then a strategic rethink by employers is needed. Greater investment in staff training and cultural change should aim to break down barriers that can lead to greater productivity, less negative publicity and a protected workforce. This is especially important as we seek to carve out a new direction for our industries over the coming years and attempt to build trading links with new post-EU Brexit partners – our nation’s employers need to set an example for all our futures.

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Dangerous Dogs

Sue Jenkinson

Following on from last month’s exploration of the Dangerous Wild Animals Act, this post is going to take a quick look at how the law reacts to and regulates dangerous dogs.

There have been numerous examples of dogs killing children and vulnerable people; and these events are always shocking (http://www.itv.com/news/anglia/2016-06-13/mum-whose-baby-was-mauled-to-death-knew-dog-was-dangerous-court-hears/) . The initial legislation is contained in the Dangerous Dogs Act 1991 ( http://www.legislation.gov.uk/ukpga/1991/65/contents ).

This Act is often regarded as an example of very unsatisfactory legislation; as it was rushed through parliament in six weeks,  in the light of public concern and the increasing press reports of dog attacks at the time (https://www.liberty-human-rights.org.uk/sites/default/files/liberty-s-evidence-to-the-constitution-committee-on-emergency-legislation.pdf) .

The legislation is chiefly considered flawed because it only covered attacks in public places and was introduced before there was wide spread awareness of dogs themselves being used as offensive weapons, also it did not address the increasing numbers of attacks on private property.

The 1991 Act also includes a list of specifically prohibited dog breeds namely;

  • The Pit Bull Terroe
  • The Japanese Tosa
  • The Dogo Argentino
  • The Fila Brasilero

However, it is often extremely difficult to tell if a dog is or is not a member of these breeds which further complicated implementation of the original act.

Although it is an offence to own or keep any of the above dogs, many dogs large and small have been dangerous and attacked people. During the last three years nearly 5,000 dogs have been destroyed because they are believed to be one of these breeds or being found to be dangerous by a court (http://www.bbc.co.uk/news/uk-36031843).

It is possible through DEFRA to get an exemption for a specific dog, but this process is complex expensive and little understood. The RSPCA has long opposed this breed list because it is indiscriminate and does not address the issue of individual dogs and they have extensively  argued for non-breed specific legalisation (http://news.bbc.co.uk/1/hi/uk/8018046.stm).

Samantha Gaines, from the RSPCA, said the assessment process for banned breeds was hugely problematic as it is based on appearance, not genetic heritage. “It does mean that any dog – regardless of its heritage can be [classed as a] pitbull terrier if its appearance is similar enough,” she explained.

s.3 of the Dangerous Dogs Act 1991 sets out the offence of being an owner of dog that is out of control in a public place. The penalty was a possible prison sentence of up to six months’, and up to £5000 fine and a Mandatory Destruction Order, this was amended in 1997 giving the courts discretion on sentencing and dog destruction.

However public concern and disturbing examples of dog attacks means that the 1991 legislation has been constantly under review and in 2010 DEFRA identified some of the important issues and loopholes in the existing legislation  (http://www.nhsbsa.nhs.uk/Documents/SecurityManagement/100309-dangerous-dogs-condoc.pdf).

Most significantly there has been increasing concern about the use of dogs as weapons and tools of intimidation. The solution proposed was to introduce extended legislation to cover private spaces, compulsory microchipping and extension of dog control orders; that already exist to control dog fouling under the Clean Neighbourhoods and Environment Act 2005. These orders are now Public Spaces Protection Orders and enables councils to restrict and or ban dogs from specific locations. This provision runs alongside the s.47 Offences Against the Person 1861 provision which ensures that a person who sets his dog on anther person who is then wounded by the dog will be guilty of the offence of malicious wounding.

It was announced in February 2013 (https://www.gov.uk/government/news/clampdown-on-dangerous-dogs) that a series of measures to deal with the outstanding problems was to be introduced which included

  • Compulsory microchipping
  • Offences under the Dangerous Dogs Act to be extended to private areas
  • Funding would be available to charities to promote responsible dog ownership


Both the Dogs Trust (https://www.dogstrust.org.uk/)and the RSPCA (http://www.rspca.org.uk/home) welcomed these changes, with some reservation as to the effectiveness of microchipping to reduce stray dogs. The Police and postal workers particularly welcomed the extension of liability to owners who have ‘out of control’ dogs in their own homes (http://www.bbc.co.uk/news/uk-politics-22082638). Subsequently the Environmental, Food and Rural Affairs Select Committee report recommend that an attack on an assistance dog should be treated as an aggravated attack and carry harsher penalties.


All these recommendations have now been made law, and are contain within The Anti-Social Behaviour and Policing Act 2014 s.98 and 99, alongside an increased sentencing provision.

  • 14 years in prison if a person dies as the result of a dog attack
  • 5 years in prison if a person is injured
  • 3 years imprisonment if an assistance dog is either killed or injured.

So, now the new legislation is in place what does it mean for dog owners? The key issue for pet owners is that now they can be prosecuted for having a dog that is ‘out of control’ in both public and private spaces. The definition of out of control is spelt out and is in some respects subjective, a dog is out of control if;

  • The dog injures someone
  • The dog makes someone afraid that it might injure them
  • The dog attacks another dog
  • The owner of another animal is afraid that they might be injured if they tried to stop the out of control dog attacking their animal

All dogs must be microchipped from the 1st of July 2016. Since May 2014, the above provisions have been in effect, so a dog owner can be committing a criminal offence if their dog is ‘out of control’ at home or in public and it is therefore essential that visitors, delivery people and others are safe from dogs and fear of a dog when they approach a front door or enter a house.

Fake Online Reviews

Judith Tillson
June 28th 2016

Many of us at this time of year will be thinking about booking a summer holiday break and in doing so may well turn to online review sites to help make an informed decision as to how to get there and where to stay. In fact, according to Nisha Arora, a senior director of the Competition and Markets Authority (CMA) more than half the population of the UK uses online reviews when choosing to purchase goods and services. According to the CMA around £23bn worth of consumer spending each year may be generated by the influence of online reviews such as those provided by Tripadvisor, Amazon and trade check sites.

It is natural to expect that any review offered online by either a business or an online marketing company will be a genuine representation of what has been written by consumers. However the CMA, having carried out investigations into a number of companies between June 2015 and April 2016 has discovered several instances of companies creating false reviews for their clients. In the course of investigations, the CMA discovered instances of where fake reviews were published and negative reviews not published. Any business that practices such misleading actions may well be subject to either an investigation or indeed risk prosecution under regulations 5 and 6 of the Consumer Protection from Unfair Trading Regulations 2008.

Closer to home, a recent investigation by BBC Radio Stoke exposed such practices on the part of a local letting agency based on evidence provided by a former employee. The link below gives full details of the investigation and the potential legal liability of the agency in question.

feature at 1.22.26

Wild animals

Sue Jenkinson

Recently the news has included some starting information. Following on from a freedom of information request sent to every council in the UK it has come to light that there are some alarming animals being kept in private homes up and down the land. (http://www.bbc.co.uk/news/uk-36356363) Some areas of interest to us in Staffordshire, include Cannock Chase, where three tigers and two lions reside and Stoke on Trent, two dwarf caiman, thirty cobra type snakes and six black widow spiders, while in Stafford someone is keeping six camels. The release of this information raises some interesting questions not least of all why would anyone wish to keep these deadly creators in their own home, a question that is beyond the scope of this blog to answer!

However, this recent news has prompted me to consider the law relating to dangerous animals and how it has developed. The keeping of wild animals commercially, in zoos and wild life parks and as pets has become increasingly controversial. There are strongly held views as to the morality of keeping these animals in captivity for whatever reason. (http://www.peta.org/about-peta/why-peta/pets/) While the recent channel 4 program, The Secret life of the Zoo, gave an insight into some of the breeding and conservation programs that zoos promote this cannot be said to apply to those animals kept as pets. (www.channel4.com/programmes/the-secret-life-of-the-zoo)

For many years there was no regulation or record of animals kept as pets and every one was at liberty to keep a tiger in their spare room if they felt so inclined. Clearly this was potently a significant danger to the public and also often extremely bad for the animal, with wild animals being kept in cramped and unsafe quarters and often suffering poor care and cruelty. Not so long ago, in the 1960’s and 70’s it was possible to buy all sorts of exotic animals from pet shops, Harrods famously had a pet department which could supply any pet requested and often had lion cubs and baby monkeys for sale to anyone who could pay the price. There were inevitably tragedies, injures and abandonments of animals that quickly stopped being cute and became uncontrollable and downright dangerous. It was clear that control of ownership and accommodation was needed and in 1976 the Dangerous Wild Animals Act banned keeping such creatures unless the owner held a license and provided suitable secure accommodation. (www.legislation.gov.uk/ukpga/1976/38) It is believed that during the 90 days’ grace offered to owners before registration became compulsory that many big cats were released into the wild and some believe they still roam wild and remote places to this day. (http://www.ukbigcats.co.uk/)

The schedule of animals that must be registered is from time to time updated as new exotic hybrids are developed. The schedule covers all animals that must be registered from poisons spiders and snakes to big cats. It is the local authority’s duty to ensure that licenses are up to date and accommodation annually inspected and safe. Local authorities must inspect the premises where ‘dangerous animals’ are and they also have a power to seize and dispose of animals that are not licensed or the licensing conditions are not being met.

The legalisation is often criticised as being about human safety rather than animal welfare. Charites like the Born Free Foundation (www.bornfree.org.uk) and RSPCA (www.rspca.org.uk/) are highly critical of the legislation believing that there needs to be an animal welfare focus rather than simply a public protection one. This is certainly the direction of travel as far local authorities are concerned with welfare increasingly being the first priority of inspection and inspectors normally being vets with appropriate insight into the species being inspected.

In December 2015 the House of Commons debated the exotic pet trade but there is no proposed to change the legislation.(http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm151209/halltext/151209h0001.htm) The debate did highlight some of the arguments against the trade in exotic pets which included negative impacts on captured animals, and wild populations. There are also negative impacts on animal’s bred in captivity that never live a natural life. While the Animal Welfare Act 2006 (www.legislation.gov.uk/ukpga/2006/45/contents) imposes a duty of care on all pet owners it is increasingly difficult to see how some exotic pets can receive the ‘opportunity to behave naturally’ in confined and often inadequate housing.

So the legislation should ensure the majority of the animals kept as pets across the UK and identified in the recent press reports will be loved, cared for and in safe and appropriate housing. However it is the unregistered and illegal trade that is of the greatest concern to animal welfare agencies and they certainly suggest that the registered animals are just the tip of the iceberg.

8 seconds proves to be too much cricket in latest Test

Mark Downie
18 April 2016

8 seconds proves to be too much cricket in latest Test
England and Wales Cricket Board and Sky UK Limited v. Tixdaq Limited and Fanatix Limited
Copyright work can be infringed if a ‘substantial’ part of the work is reproduced without the permission of its owner. There are several defences, including ‘fair use’ for the ‘purpose of reporting current events.’ Recently the High Court had to look at the meaning of these concepts in relation to very short clips taken from TV broadcasts of cricket matches.
Broadcasts of ECB cricket matches (and associated films like action replays) and were owned by the Claimants. The Defendants developed an App so that users could upload short clips, each lasting no more than 8 seconds, and add their own comments. The clips would then be shared. The Claimants argued that this was infringement, the Defendants that 8 seconds could not be ‘substantial’ and that, even if it was, the defence of fair use for the purpose of reporting current events applied.
The High Court ruled in favour of the Claimants.
1. In deciding whether the part copied was ‘substantial’ the law looks at the qualitative value of the clip and not just at the quantity of footage copied in relation to the whole match. Highlights, even very short ones (such as a catch or the fall of a wicket) can be very valuable to the copyright owner.
2. Although it was agreed that the matches constituted ‘current events’ the judge ruled that the clips were not made for the ‘purpose of reporting’ these events but for the commercial purpose of sharing the clips and attracting customers to the App. The clips were presented for consumption because they were valuable and not to provide information about current events.

Mark Downie
18 April 2016

Joint Enterpise

Joint Enterprise

Sue Jenkinson

Last month the issue of joint enterprise was a hot topic within the press and with legal commenters, because of the startling Supreme Court ruling in the case of R v Jogee [2016] UKSC 8.
The BBC commented that the ruling was a ‘moment of genuine legal history’ but does this ruling really mean that the criminal law text books need to be rewritten? This is an issue of common law rather than statute law, so in effect the law has been created within the courts and so it is up to the courts to correct any misinterpretation that has happened in the past and Ameen Jogee is a correction.
The joint enterprise law has been notoriously used to convict people in gang related cases where the defendants ‘could have foreseen’ violence and murder being committed by their fellow gang members during gang related violent crime. There have been several high profile convictions under the joint enterprise doctrine including David Norris and Gary Dobson who were convicted in 2012 for the murder of Steven Lawrence in 1993 and later five teenagers were convicted in 2011 when fifteen year old Zac Olumegbon was stabbed to death as he arrived at school.
The appellant Jogee had been convicted of murder in June 2011 alongside the Mohammad Hersi who had committed the fatal stabbing, while the appellant Jogee was outside yelling at Hersi to ‘do something’ to the victim. So the question the Supreme Court was considering was the secondary liability of Jogee who had assisted, encouraged or egged on Hersi to commit the crime, the court was grappling with the question; what is the mental element which the law requires of the secondary party? It is this area of secondary responsibility that has become known as ‘joint enterprise’. Although the CPS guidance form 2012 (https://www.cps.gov.uk/legal/assets/uploads/files/joint_enterprise.pdf ) more accurately refers to it as ‘parasitic accessory lability’.
For the last thirty years since the case of Chan Wing-Siu v the Queen [1985] 1 AC 168 the required mental element for the secondary perpetrator has been foresight of the possibility that the primary perpetrator will commit the additional crime. The Supreme Court has now held that this is too low a threshold and foresight of the possibility is inadequate and the correct mental element is an intention to assist or encourage the principle to commit the actual crime (in this case murder).
So that is the back ground to this surprising judgment but what has not been so readily discussed in the mainstream press is the disproportionate numbers of black prisoners who have been convicted of joint enterprise and received long sentences, 37% per cent of those serving long sentences, almost three times as many as are in the prison population (http://www.jointenterprise.co/Docs%20&%20PDFS/ISSUE%2030.pdf). This disproportionate conviction rate has developed alongside an increasing moral panic about gangs in particular in London, and a public belief, fuelled by the press, that large numbers of black and Asian young men belong to violent street gangs in cities across the UK. This alleged ‘epidemic’ has occurred at the same time as the youth crime rate has fallen over the last ten years, somewhat contradicting public perception. (https://www.gov.uk/…data/file/…/youth-justice-annual-stats-13-14.pdf)
Whether the latest judgment will mean that those convicted under joint enterprise will have their convictions quashed will depend on individual circumstances but it is worth noting that solicitors are already advertising for clients who have been convicted of joint enterprise. (www.jointenterpriseappeal.co.uk). It is to be hoped that those who have been wrongly convicted in the past do have their cases reconsidered, but it is also true that the Supreme Court judgment will mean that, sadly those who have loved ones who have died in tragic circumstances are having to consider the possibility that the closure they felt at a conviction may not hold and they will have to face a retrial in the future.